Commonwealth v. Martins Maint., Inc.

101 Mass.App.Ct. 186

190 N.E.3d 1099

COMMONWEALTH,

v.MARTINS MAINTENANCE, INC.¹ (and two companion cases² ).

Nos. 20-P-1238

20-P-1239

& 20-P-1240.

Appeals Court of Massachusetts, Bristol.

Argued February 2, 2022.

Decided June 9, 2022.

Randall E. Ravitz, Assistant Attorney General, for the Commonwealth.

J. Richard Ratcliffe (Thomas J. McAndrew also present), for the defendant.

Present: Meade, Blake, & Neyman, JJ. Trafficking.

BLAKE, J.

The defendant, Martins Maintenance, Inc., a corporation that provides commercial janitorial services, was indicted for trafficking of persons for forced services in violation of G. L. c. 265, § 51 (a ) (labor trafficking).³ The Commonwealth may establish a corporation's criminal liability under one or both of two theories. The first is a theory of vicarious liability; the second is a theory of collective knowledge. A Superior Court judge found that the Commonwealth presented insufficient evidence to the grand jury to establish probable cause under either theory of liability, and dismissed the indictments. The Commonwealth appealed. We conclude that there was insufficient evidence presented to the grand jury to establish probable cause under the vicarious liability theory, but that there was sufficient evidence to establish probable cause that the company was profiting from labor trafficking under the collective knowledge theory. Accordingly, we reverse the orders dismissing the labor trafficking indictments.

Background. The indictments arose from the alleged labor trafficking of two women by Fernando Roland, an employee of Martins Maintenance, Inc. (Martins or the company).⁴ Because the sufficiency of evidence of the labor trafficking is directly related to what Martins knew or should have known about Roland's conduct, we set forth the company's ownership scheme and supervisory structure in some detail, in the light most favorable to the Commonwealth. See Commonwealth v. Stirlacci, 483 Mass. 775, 780, 137 N.E.3d 375 (2020).

1. Martins Maintenance, Inc. Martins is a family-owned business that provided commercial janitorial services throughout New England and Pennsylvania during the relevant time period. Manny Martins, Sr., the company's president, founded Martins, but his children, Manny Martins, Jr. and Lisa Martins Caldarone, ran the company.⁵ Manny Jr. was vice president of operations and was responsible for, among other things, overseeing all company operations, supervising site inspections, and reviewing employee training materials. Lisa was the director of administration and was responsible for, among other things, approving employee payroll correction forms when employees were overpaid or underpaid.

Jose Felix was the director of operations (also known as a regional operations manager). He oversaw the provision of all services, supervised area managers and supervisors, performed site inspections, and took steps to correct problems. Felix made day-to-day management decisions, but he did not have authority to make financial decisions. Depending on the issue, Felix reported to Manny Sr. or Manny Jr. Felix supervised Brandon Araujo who was an area/regional account manager and responsible for the management of multiple job sites. Araujo was instructed by Manny Jr., Lisa, and Felix to "[d]o what you have to do to get the job done," because Manny Jr. "[didn't] care who the hell clean[ed] the place, [ ] just get the place cleaned."

2. The janitors. Martins subcontracted janitors through various entities to provide cleaning services to its clients, instead of hiring them as company employees, in an effort to avoid compliance with certain employment laws. Despite this arrangement, Martins advertised janitorial job openings with the company's office telephone number, received job applications, conducted interviews, extended offers, maintained personnel records, provided training, established rates of pay including raises, required all janitors to wear company-branded uniforms, made worksite assignments, provided cleaning supplies, implemented a time-keeping method for hours worked, supervised janitors, and prepared employment verification letters.

In its proposals to clients, Martins described its recruitment, hiring, and training of janitors. Notably, Martins represented that it conducted background checks that included confirmation of an applicant's eligibility for employment, and verification of an employee's "green card" status both at the beginning of and periodically during their employment. Nevertheless, Manny Jr. sent janitors who "weren't legal" to one particular subcontractor entity. Because these workers did not have Social Security numbers, Martins's management directed the human resource manager⁶ to "guess" or put in random numbers, and no personnel files were created for them.

Martins used a computerized system to track janitors’ time. Janitors were required to punch in and out using a work site telephone, an employee code, and a location code. Personal cell phone use at a job site was prohibited.

3. Fernando Roland. Fernando Roland worked as a janitor.⁷ As detailed infra, the management team was aware that Roland did not properly punch in and out of work; punched in without using the work site telephone; habitually punched in at two work sites simultaneously; reported an impossibly high number of cleaning hours;⁸ and had other people (the victims) at work sites with him, all in violation of company policies. Company records demonstrate that Roland punched in to one work site from another location forty-one times, and punched in at two different locations at the same time on at least fourteen occasions.

The company owners and upper management were aware of numerous issues with Roland. For example, Lisa instructed Araujo, Roland's direct supervisor, to address performance issues with Roland, and issue a final warning to him. Araujo did not do so because he felt badly for Roland, but did give him a verbal warning. Roland was told that on one hand, there were too many hours submitted for his work; and that on the other, no one person could clean an entire building alone as he reported doing. Araujo documented the interaction by writing a "Record of Verbal Warning." It said Araujo would discuss issues with Manny Jr. and Felix. In addition, during unannounced work site visits, Araujo found Roland with the victims, in violation of company policy. On one occasion, a company client called Araujo to report that Roland was at the work site with a "lady."

When confronted, Roland always had an excuse, and promised it would not happen again. Although Araujo thought Roland was "subbing people in and out for him," he was aware that Manny Jr. just wanted the job done, and took no further action. Although Roland continued to work for Martins, Lisa and Felix removed him from certain accounts.

4. The alleged victims. In April 2016, S.D., then age twenty-two, moved to New Bedford from Senegal in hopes of attending school. Roland arranged for S.D. to stay with his girlfriend and her son; he also took possession of her important papers, including her passport.⁹ Within weeks, Roland arranged for S.D. to marry his girlfriend's son, claiming that it would help her bring the rest of her family to the United States. S.D. reluctantly complied.

Almost immediately, Roland took S.D. to his assigned work sites for her to clean. He provided her with and instructed her to wear a Martins-branded shirt;¹⁰ he directed her to punch in using his name or the name Isaura Monteiro (another janitor). He also told S.D. that, if asked, she was to identify herself as "Monteiro." S.D. typically worked five to seven days per week. Although her hours varied, S.D. worked nights, from between 5 P.M. and 8 P.M. until between 5 A.M. and 8 A.M. Each week Roland drove with S.D. to pick up his paycheck and a check payable to Monteiro. Initially Roland gave S.D. ninety dollars the first week and then no money for several weeks; eventually he gave her between ninety dollars and $120 per week, but he deducted money for rent and transportation. In the end, S.D. received between twenty to twenty-five dollars for herself.

Three times at work sites, Juvenio Silva,¹¹ a company account manager who also supervised Roland, met S.D., who he knew was not Monteiro. Roland introduced S.D. to Silva as "Mijo." When Silva asked S.D. to sign a company form, she signed her real name.¹² When Silva asked S.D. if she had a "green card," consistent with Roland's instructions, she said "it was in process." Silva then told her to work under someone else's name. Once Manny Jr. traveled to a work site in response to a client complaint and found Roland with S.D. Roland introduced her to Manny Jr. as "Mijo."

In April 2017, Roland recruited A.C., a then sixty-two year old immigrant who did not speak English, to clean. Roland gave A.C. a Martins-branded shirt, drove her to the work sites, and punched her in and out under his name or the name of his daughter (a Martins employee). A.C. worked nights, forty hours per week. Roland controlled A.C.’s wages, sometimes paid her rent, and sometimes provided her with no more than twenty dollars per week. As he did with S.D., Roland took possession of A.C.’s passport and other important papers. Both Araujo and Silva met A.C. at work sites, where she was introduced by Roland as his daughter, notwithstanding her advanced age.

Discussion. "[G]enerally a court will not inquire into the competency or sufficiency of the evidence before the grand jury" (quotation and citation omitted).

Commonwealth v. McCarthy, 385 Mass. 160, 161-162, 430 N.E.2d 1195 (1982). Extraordinary circumstances that may warrant a judicial inquiry into grand jury proceedings include "when it is unclear that sufficient evidence was presented to the grand jury to support a finding of probable cause to believe that the defendant committed the offense charged in the indictment." Commonwealth v. Freeman, 407 Mass. 279, 282, 552 N.E.2d 553 (1990).

We review the...