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14-P-1955 Appeals Court

COMMONWEALTH vs. LEONARD DEGNAN.

No. 14-P-1955.

Essex. December 1, 2016. - March 30, 2017.

Present: Cypher, Maldonado, & Blake, JJ.

Municipal Corporations, Officers and employees. Solicitation to 

Commit Felony. Bribery. Conspiracy. Fraud. Evidence, 

Bribe, Conspiracy, Fraud. Practice, Criminal, Duplicative 

convictions, Argument by prosecutor.

Indictments found and returned in the Superior Court 

Department on September 11, 2012.

The cases were tried before Douglas H. Wilkins, J.

David A.F. Lewis for the defendant.

Philip A. Mallard, Assistant District Attorney, for the 

Commonwealth.

BLAKE, J. Following the election of William Lantigua as 

mayor of Lawrence (city) in 2009, the defendant, Leonard Degnan, 

served as his chief of staff. During the defendant's tenure in 

that position, he secured the donation of a trash truck from the 

city's waste services provider to a city in the Dominican 
2

Republic. The donation request took place during a meeting in 

which the defendant told the provider that the mayor's office 

"had the ability to rip up" the provider's contract with the 

city. Following the donation, the city took no action to void 

or modify the contract.

In 2012, a grand jury returned several indictments charging

the defendant with bribery and other crimes related to the trash 

truck donation. A 2014 jury trial resulted in convictions of

soliciting a bribe, soliciting a gratuity, conspiracy to solicit 

a bribe, and unlawful use of an official position with 

fraudulent intent.

1 On appeal, the defendant claims that the 

Commonwealth presented insufficient evidence to support the 

convictions, and that errors in the prosecutor's closing 

argument created a substantial risk of a miscarriage of justice. 

With the exception of the conviction of soliciting a gratuity

under G. L. c. 268A, § 3(b), which we vacate as duplicative of

the bribery conviction, we affirm the defendant's convictions.

Background. In the light most favorable to the 

Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 

(1979), the jury could have found the following facts.

1. City's waste removal contract. Allied Waste (Allied) 

is a waste hauling company that holds multiple municipal 

 

1 The jury acquitted the defendant of one count of 

extortion.
3

contracts, private contracts, and commercial accounts. In 2009, 

Stanley Walczak was a general manager at Allied responsible for 

the negotiation of municipal contracts with the city, among 

other duties. In September, 2009, prior to Lantigua's election, 

Walczak and the city renegotiated a new $6.4 million, three-year 

contract to commence on October 1, 2009, with two additional 

option years. The new contract was significantly different from 

the prior, as it converted the city to an automated collection 

system with limited barrels per household. To fulfil the 

contract, Allied was required to purchase new barrels and new 

side-loading trucks at a cost of $2 million to $3 million. 

Despite the significant financial investment required, the 

parties expected that the reduced manpower needed, as well as 

the limited trash collection per household, would result in 

savings over the long term.2 As an additional cost-saving 

measure, the new contract also eliminated bulk item pickup. 

During the early implementation of the new contract, some of the 

city's residents protested the reduced services.

2. Connection to the Dominican Republic. In November,

2009, the city's voters elected Lantigua, who was the first 

mayor originally from the Dominican Republic. More than one-

 

2 By limiting the collection barrels per household, Allied 

and the city hoped to decrease the trash and increase the 

recycling collected, which would, in turn, reduce Allied's trash 

disposal fees and increase its revenue from the sale of the 

recycled material.
4

third of the city's eligible voters are from the Dominican 

Republic, with a significant number of those from the Dominican 

city of Tenares. Shortly after the election, Lantigua and the 

defendant met with the mayor of Tenares while they were 

vacationing in the Dominican Republic.

3. Solicitation of the donation. After his return from 

the Dominican Republic, the defendant commenced work in the new 

administration. He directed the everyday operations of the 

city, acted as its "finance director," and oversaw the city's 

contracts, including its contract with Allied, all in close 

connection with the mayor. Vendors, including Walczak, knew

that the "mayor's office ha[d] a lot of clout" and "a lot of 

say" in the renewal and awarding of contracts and, for that 

reason, they knew that it was in their interest to be responsive 

to the mayor's office.

In December, 2009, Frank McCann, the head of the city's

department of public works, telephoned Walczak to set up a 

meeting with Walczak and the defendant. At that point, Walczak 

had known McCann for about eleven years and had worked with him 

as the city's contact person on its trash contracts. During the 

call, McCann informed Walczak that, at the meeting, the 

defendant was going to ask that Allied donate one or two trash 

trucks.
5

The meeting took place later that month at the defendant's 

insurance office.

3 According to Walczak, it proceeded as 

follows. From behind his desk, with McCann and Walczak seated

in front of him, the defendant immediately launched into a 

hostile attack about the new trash contract. He stated that

both he and the mayor were not happy with the contract, and that 

he "could not believe" that the previous administration had 

signed such a "way overpriced" contract. Continuing in a 

confrontational tone, the defendant emphasized that the cost of 

the contract had been significantly increased from the previous 

one, but provided fewer services, and that he "didn't believe it 

would work in the city of Lawrence." The defendant told Walczak

that "he was the right hand of the mayor" and "could find a lot 

of other companies to come in to do it a lot cheaper." Finally, 

the defendant said that he and the mayor "had the ability to rip 

up the contract, not honor it."

About fifteen minutes into the meeting, while Walczak was 

attempting to explain how the contract had come into existence, 

the defendant cut him off and told him that the defendant and 

the mayor were "going to give [Allied] a chance . . . even 

though [the city] could terminate the contract, they were going 

to give [Allied] the opportunity to work with [them]." The

 

3 The defendant owned an insurance business and had worked 

there prior to becoming chief of staff.
6

tenor of the meeting then immediately changed. The defendant 

told Walczak that "[he] and the mayor would be very happy" and 

"it would go a long way if [Allied] could donate . . . a couple 

of trucks" to the city's sister city of Tenares, because it is 

very poor.

Walczak never before had been asked for such a donation. 

Feeling threatened, he believed that if he could not produce a

trash truck, the mayor and the defendant would void the 

contract. Likewise, he thought that if he went to the police 

about the defendant's threat, the contract would be voided. 

Thinking of his employees, the value of the relatively new 

contract, the precarious financial position of the city,4 and the 

significant investment Allied had already made, Walczak decided 

to "see if there was . . . a way to make this all work." He 

told the defendant that he would "run the request up the 

flagpole" and "get back to them." As he left the office, 

Walczak knew the situation was not good, but he did not want "to 

get into a battle with a municipality[,] [a battle] [y]ou never 

win."

 

4 Walczak was concerned about the city's going into 

bankruptcy and receivership. When Lantigua took office, the 

city had an approximate $25 million budget deficit.
7

McCann confirmed Walczak's description of the meeting.5 

According to McCann, the defendant initially impressed upon 

Walczak how important and tough he could be so that he and the 

mayor would get what they wanted -- the donation of a trash 

truck. McCann also noted that "[t]here was no please in [the 

donation request]," and the defendant framed it in such a way as 

to let Walczak figure out the meaning of the request rather than 

stating it directly.6

4. Resulting donation. After the meeting, Walczak 

telephoned his maintenance manager, who reported that Allied had 

a trash truck, which was going to be auctioned off for an amount 

likely between $1,500 and $2,500, available for donation. 

Walczak then sought approval for the donation from his superiors 

in an electronic mail message dated December 16, 2009. Walczak

did not disclose that the defendant had threatened him for a 

trash truck donation, but rather cast his request solely as one 

to secure the good will of the new administration. In doing so, 

 

5 McCann's testimony at trial was offered by way of his 

prior grand jury testimony, which was read into the record. In 

earlier portions of his grand jury testimony, McCann denied that 

the defendant took part in the conversation with Walczak in 

which the request for a trash truck was made. McCann later 

changed his testimony and confirmed Walczak's version of events.

6 The defendant did not testify at trial, but his grand jury 

testimony was read into the record. In that testimony, he 

acknowledged that the mayor had told him that he wanted a trash 

truck and that "[he (the defendant)] may have" discussed the 

donation with Walczak and McCann in a meeting.
8

he thought that he "could take care of it, get it done and over 

with by . . . donating an old truck." Walczak obtained the 

requisite approval within a day.

Over the course of the next several weeks, Allied prepared 

the truck for donation at its own expense, including giving the 

truck a new paint job and new tires at the mayor's request. 

Thereafter, Lantigua, representatives of Allied, and the mayor 

of Tenares all posed for a photograph in front of a truck

similar to the one being donated.

7 Another Lawrence businessman, 

Francis Coady, then agreed to tow the truck to a port in New 

Jersey at no charge for shipment to Tenares.

8 After the truck 

successfully arrived in Tenares, the city made no attempt to 

cancel or modify Allied's contract, nor did it complain about 

its cost. Lantigua also supported Allied when issues arose in 

the city council regarding trash collection.

Discussion. 1. Sufficiency of the evidence of bribery. 

On the facts present here, a bribery conviction in violation of 

G. L. c. 268A, § 2(b), requires proof that a "municipal employee

. . . or a person selected to be such an employee . . . directly 

or indirectly . . . corruptly . . . solicit[ed] . . . anything 

 

7 Preparations were still being made to the donated truck 

when the picture was taken.

8 Coady testified that the defendant called him about towing 

the truck, and that he essentially offered to do the job at no 

cost if the defendant could wait about a month.
9

of value for . . . any other person or entity, in return for 

. . . being influenced in his performance of any official act or 

any act within his official responsibility."9

Here, the facts establish that, at all relevant times, the 

defendant was a municipal employee or a person selected to be 

such an employee, who solicited a trash truck (something of 

value) for either the mayor (any other person) or the city of 

Tenares (an entity). At issue on appeal is the remaining 

portion of the statute, which requires proof of the defendant's 

corrupt intent and limits the influenced action to the sphere of 

the defendant's "official" duties. In seeking guidance on the

meaning of these parts of the statute, because G. L. c. 268A, 

§ 2, tracks a cognate Federal statute, we may look to the 

relevant Federal case law, in addition to our own. See Scaccia

v. State Ethics Commn., 431 Mass. 351, 354-355 (2000); 

 

9 General Laws c. 268A, § 2(b), inserted by St. 1962, 

c. 779, § 1, provides: "Whoever, being a . . . municipal 

employee . . . or a person selected to be such an employee . . .

directly or indirectly, corruptly asks, demands, exacts, 

solicits, seeks, accepts, receives or agrees to receive anything 

of value for himself or for any other person or entity, in 

return for (1) being influenced in his performance of any 

official act or any act within his official responsibility . . .

shall be punished."

While the statute includes the terms "asks, demands, exacts

. . . [and] seeks," in addition to "solicits," given the 

evidence here, and for the sake of clarity, we shall limit 

ourselves to that term.
10

Commonwealth v. Dutney, 4 Mass. App. Ct. 363, 376-377 & n.16 

(1976).

In Scaccia, the Supreme Judicial Court described bribery 

under G. L. c. 268A, § 2, as a "quid pro quo" or "an exchange, 

involving a two-way nexus." Scaccia, supra at 356. See United

States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 404-405 

(1999).

10 The specific intent to enter into an unlawful quid pro 

quo is, essentially, the corrupt intent required by the statute. 

United States v. Alfisi, 308 F.3d 144, 149 (2d Cir. 2002) ("The 

'corrupt' intent necessary to a bribery conviction is in the 

nature of a quid pro quo requirement . . ."). In other words, 

the statute is violated when an official solicits a bribe, 

knowing that it will be given for the purpose of inducing him to 

violate his official duty. See United States v. Valle, 538 F.3d 

341, 345-346 (5th Cir. 2008). Whether, upon receipt of the 

bribe, the defendant actually is influenced in the performance

of his official duties is not required to prove criminality.

See Evans v. United States, 504 U.S. 255, 268 (1992) ("[The] 

fulfillment of the quid pro quo is not an element of the 

offense"); Valle, supra at 346 ("[T]he statute [is] violated 

when an official [takes] the bribe, knowing that it was given 

 

10 By contrast, because a conviction of soliciting a 

gratuity under G. L. c. 268A, § 3, requires no proof of a 

corrupt intent on the part of the defendant, it has been 

described as a "one-way nexus." Scaccia, supra at 356.
11

for the purpose of inducing him to violate his official duty, 

whether or not he actually intended to follow through with the 

violation"). In determining whether the defendant agreed to be 

influenced in the quid pro quo exchange, "[t]he jury may 

consider a broad range of pertinent evidence, including the 

nature of the transaction." McDonnell v. United States, 136 

S. Ct. 2355, 2371 (2016).

Here, the evidence permitted the jury to infer the 

defendant's corrupt intent. At the meeting with Walczak and 

McCann, the defendant made abundantly clear that the purpose of 

the donation was to keep the trash contract intact. Even though 

the defendant did not spell out the quid pro quo directly, his 

approach was not subtle. By both Walczak's and McCann's 

accounts, the defendant made clear, through his threatening and 

hostile manner, the repercussions of failing to provide the 

requested donation. From this evidence, the jury could infer 

that the defendant solicited the trash truck in exchange for not

voiding the contract -- an unlawful quid pro quo.11

The other portion of the statute at issue limits the 

influence exerted to an "official act or any act within [the 

defendant's] official responsibility." G. L. c. 268A, 

 

11 The defendant's challenge of Walczak's authority to 

donate the truck is baseless and irrelevant, as it is the 

defendant's -- not Walczak's -- intent, conduct, and authority 

that are at issue.
12

§ 2(b)(1). Thus, the bribe must be in exchange for influence 

only within the official realm at the defendant's disposal. 

General Laws c. 268A, which concerns the conduct of public 

officials and employees, defines an "official act" as "any 

decision or action in a particular matter or in the enactment of 

legislation," G. L. c. 268A, § 1(h), inserted by St. 1962, 

c. 779, § 1; an "official responsibility" is defined as "the 

direct administrative or operating authority, whether 

intermediate or final, and either exercisable alone or with 

others, and whether personal or through subordinates, to 

approve, disapprove or otherwise direct agency action," G. L. 

c. 268A, § 1(i), inserted by St. 1962, c. 779, § 1.

The decision whether to terminate a large municipal 

contract, such as the trash contract, is indisputably an 

official act. As an intermediate official, the defendant did 

not hold the authority, himself, to terminate the contract. 

Nevertheless, the Commonwealth presented sufficient evidence

that the contract was within the defendant's official 

responsibility. The defendant testified that his duties 

included working with vendors and advising the mayor on large 

contracts, such as the trash contract. Thus, at the very least, 

he had intermediate operating authority with respect to the 

contract, exercisable with another (the mayor), to direct agency 

action. Put another way, the defendant had the requisite 
13

authority to be able to make good on his agreement to influence 

the mayor's treatment of the trash contract.

On appeal, the defendant nevertheless argues that the

Commonwealth did not meet its burden because it presented no 

evidence that the contract, which was binding and enforceable, 

could be terminated. In other words, the defendant argues that 

the contract was not subject to official action or influence. 

The contract, itself, however, belies that argument. It was 

admitted in evidence and includes a convenience clause 

permitting the city to terminate the contract without providing

a reason.12 This evidence, in combination with testimony that

the defendant intended to void the contract if the mayor did not 

receive the trash truck donation, establishes that the contract, 

itself, was not a bar to the defendant's commission of bribery.

13

 

12 The convenience clause provides: "The City may terminate 

this Agreement at any time by giving written notice to the 

Contractor of such termination and specifying the effective date 

of such termination."

13 Likewise unavailing is the defendant's claim that city 

could not legally invoke the convenience clause as retribution 

for the failure to pay a bribe. Regardless of the legality, or 

the outcome of any later legal battle, the immediate effect of 

invoking the clause would be termination of the Allied contract, 

as contemplated by the defendant's bribery scheme.
14

The judge properly denied the defendant's motion for a 

required finding of not guilty on the G. L. c. 268A, § 2(b), 

bribery conviction.14

2. Duplicative convictions. We vacate as duplicative the 

defendant's conviction of soliciting a gratuity under G. L. 

c. 268A, § 3(b). The elements of that statute are essentially a 

subset of those of G. L. c. 268A, § 2(b), missing only the 

element of corrupt intent.15 See Commonwealth v. Vazquez, 69 

Mass. App. Ct. 622, 627 (2007) ("For a violation of G. L. 

c. 268A, § 3[b], it is enough that the defendant requested or 

received something of substantial value for or because of an 

official act or an act within his official responsibility").

For that reason, as this court and the Supreme Judicial Court 

have recognized, one is a lesser included offense of the other. 

 

14 The defendant argues that his telephone call to Coady did 

not provide evidence to support conviction on any of the charged 

offenses. He does not, however, challenge its admission on the 

basis of relevance. Regardless, we observe that the telephone 

call was not the central piece of the Commonwealth's evidence, 

and that the jury were entitled to assign to it the weight they

deemed appropriate.

15 General Laws c. 268A, § 3(b), as amended by St. 2009, 

c. 28, § 62, provides: "Whoever knowingly, being a present

. . . municipal employee . . . or person selected to be such an 

employee . . . , otherwise than as provided by law for the 

proper discharge of official duty, directly or indirectly, asks, 

demands, exacts, solicits, seeks, accepts, receives or agrees to 

receive anything of substantial value: (i) for himself for or 

because of any official act or act within his official 

responsibility performed or to be performed by him; or (ii) to 

influence, or attempt to influence, him in an official act taken 

. . . shall be punished."
15

See Scaccia, 431 Mass. at 356 ("A [G. L. c. 268A, § 3,] gratuity 

violation is, essentially, a lesser included offense of [G. L. 

c. 268A, § 2,] bribery"); Dutney, 4 Mass. App. Ct. at 376-377

(same). See generally Commonwealth v. Porro, 458 Mass. 526, 531 

(2010) ("[A] lesser included offense is one whose elements are a 

subset of the elements of the [greater] charged offense"). 

Where a defendant is convicted of both the greater and lesser 

offenses, the conviction of the lesser offense must be dismissed 

as duplicative. See Commonwealth v. Vick, 454 Mass. 418, 431-

432 (2009); Commonwealth v. Guaman, 90 Mass. App. Ct. 36, 47

(2016).16

3. Remaining claims. The defendant's remaining claims 

require little discussion.

a. Sufficiency of the evidence of conspiracy to solicit a 

bribe. Because the Commonwealth presented sufficient 

circumstantial evidence of an agreement between the defendant 

and the mayor to commit the crime of bribery, the Commonwealth 

met its burden to prove the crime of conspiracy. See generally 

Commonwealth v. Cerveny, 387 Mass. 280, 288 (1982); Commonwealth

v. Lonardo, 74 Mass. App. Ct. 566, 569 (2009).

 

16 We need not remand for resentencing because the sentence 

imposed on the lesser included offense was concurrent with the

sentences imposed for the convictions of conspiracy and unlawful 

use of an official position. See, e.g., Commonwealth v. 

Johnson, 461 Mass. 44, 54 n.12 (2011).
16

b. Closing argument. None of the five unobjected-to 

statements the defendant challenges was error, much less the 

cause of a substantial risk of a miscarriage of justice. See 

Commonwealth v. Smith, 460 Mass. 385, 398 (2011). Rather, the

statements were confined to the evidence, including the 

reasonable inferences to be drawn therefrom. See Commonwealth

v. Kater, 432 Mass. 404, 422 & n.14 (2000). More specifically, 

the evidence supported the prosecutor's characterization of the 

defendant as the "captain" of the Lantigua "team." His remark 

that this case was not about a trash truck, but about the "cloud 

of corruption" that "hovers" or "hangs" over the truck was a 

fair summary of the case. In responding to the defense's

suggestion that the jury consider why the defendant was the only 

one on trial, the prosecutor's statement that it "[was] not 

their time" was a fair response. Nor did the prosecutor 

misstate evidence of the defendant's telephone call to Coady. 

Finally, the evidence supported the prosecutor's suggested 

inference, based on the timing of events, that the conspiracy 

may have formed on the vacation to the Dominican Republic that 

the defendant took with Lantigua immediately after he won the 

election and had become friendly with the mayor of Tenares.

Conclusion. The judgment of conviction of solicitation of 

a gratuity, in violation of G. L. c. 268A, § 3(b), is vacated, 
17

the verdict is set aside, and that indictment is dismissed. The 

remaining convictions are affirmed.

So ordered.