TABLE OF CONTENTS
TABLE OF AUTHORITIES   .  .  .  .  .  .  .  .  .   iii  
QUESTIONS PRESENTED    .  .  .  .  .  .  .  .  .  . iv 
STATEMENT OF THE CASE  .  .  .  .  .  .  .  .  .  .  1
STATEMENT OF FACTS  .  .  .  .  .  .  .  .  .  .  .  1 
	A. 	THE COMMONWEALTHŐS CASE  .  .  .  .  .  .  1
	B.	MR. MANZELLIŐS CASE   .  .  .  .  .  .  .  8
ARGUMENT   .  .  .  .  .  .  .  .  .  .  .  .  .  .  8 
IT WAS REVERSIBLE ERROR AND VIOLATIVE 
		OF THE DUE PROCESS AND FAIR TRIAL PROVISIONS
OF THE UNITED STATES CONSTITUTION AND THE MASSACHUSETTS DECLARATION OF RIGHTS FOR 
THE JUDGE TO DENY THE DEFENDANTŐS MOTION 
FOR A REQUIRED FINDING OF NOT GUILTY WHERE 
THE EVIDENCE WAS INSUFFICIENT FOR A RATIONAL
TRIER OF FACT TO CONCLUDE, BEYOND A REASONABLE DOUBT, THAT THE DEFENDANT WAS GUILTY OF WIRETAPPING .  .  .  .  .  .  .  8  
	
THERE WAS NO EVIDENCE OF A RECORDING,
SECRET OR OTHERWISE, AS REQUIRED UNDER
M.G.L. C. 272, SEC. 99  .  .  .  .  . 9

1.	NO EVIDENCE WAS INTRODUCED OF A RECORDING AT ALL   .  .  .  .  . 9

	2.	NO EVIDENCE WAS INTRODUCED OF A
		SECRET RECORDING   .  .  .  .   12

B.	THERE WAS NO EVIDENCE OF THE
	INTERCEPTION OF AN ORAL 
COMMUNICATION .  .  .  .  .  .  .  . 16

IT WAS REVERSIBLE ERROR AND VIOLATIVE 
		OF THE DUE PROCESS AND FAIR TRIAL PROVISIONS 
OF THE UNITED STATES CONSTITUTION AND THE MASSACHUSETTS DECLARATION OF RIGHTS FOR 
THE JUDGE TO DENY THE DEFENDANTŐS MOTION 
FOR A REQUIRED FINDING OF NOT GUILTY WHERE 
THE EVIDENCE WAS INSUFFICIENT FOR A RATIONAL TRIER OF FACT TO CONCLUDE, BEYOND
A REASONABLE DOUBT, THAT THE DEFENDANT
WAS GUILTY OF DISORDERLY CONDUCT.  .  .   19

	III.	THE	TRIAL JUDGEŐS INSTRUCTIONS, WHICH ERRONEOUSLY CHARGED THE JURY THAT THEY 
MAY NOT CONVICT THE DEFENDANT ON THE 
DISORDERLY CONDUCT CHARGE IF THEY FOUND 
THAT THE DEFENDANTŐS ACTIONS WERE BASED 
ON LEGITIMATE NEWS GATHERING ACTIVITIES, 
CREATED A SUBSTANTIAL LIKELIHOOD 
OF A MISCARRIAGE OF JUSTICE   .  .  .  .  22

CONCLUSION   .  .  .  .  .  .  .  .  .  .  .  .  .  26
ADDENDUM  .  .  .  .  .  .  .  .  .  .  .  .  .  ADD-1
RECORD APPENDIX .  .  .  .  .  .  .  .  .  .  .  . R-0

TABLE OF AUTHORITIES
CASES
Commonwealth v. A Juvenile, 368 Mass. 580 (1975).   21  

Commonwealth v. Acevedo, 427 Mass. 714 (1998)  .  . 25

Allegata v. Commonwealth, 353 Mass. 287 (1967).  .  20

Bonacorso Const. Co. v. Master Builders, Inc., 1991 WL 72796 (D. Mass.)   .  .  .  .  .  .  .  .  .  .  .  15

Commonwealth v. Chou, 433 Mass. 229 (2001) .  .  .  20

Commonwealth v. Feigenbaum, 404 Mass. 471 
(1989) .  .  .  .  .  .  .  .  .  .  .  .   19, 23, 24

Commonwealth v. Freeman, 352 Mass. 556 (1967) .  .  24

Commonwealth v. Gordon, 422 Mass. 816 (1996)  .  .  13

Commonwealth v. Hyde, 434 Mass. 594 (2001) .  . 11, 12

Commonwealth v. Jackson, 370 Mass. 502 (1976) .  .  13

Jet Spray Cooler, Inc. v. Crampton, 361 Mass. 835 
(1972) .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  15

Lawler v. General Elec. Co., 1 Mass. App. Ct. 220 
(1973) .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  15

Moore v. Marty Gilman, Inc., 965 F. Supp. 203 (D. Mass. 1997)  .  .  .  .  .  .  .  .  .  .  .  .  .  15

Reidy v. Crompton & Knowles Loom Works, 318 Mass. 135 (1945) .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  15

Commonwealth v. Rivera, 445 Mass. 119 (2005)  .  .  13

Commonwealth v. Sholley, 48 Mass. App. Ct. 496 
(2000) .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  21

State v. Stampone, 775 A.2d 193 (N.J. Super. A.D. 
2001)  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  22


Commonwealth v. Wright, 61 Mass. App. Ct. 790 
(2004) .  .  .  .  .  .  .  .  .  .  .  .   10, 11, 16

Commonwealth v. Zettel, 46 Mass. App. Ct. 471 
(1999)  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 21

STATUTES

M.G.L. c. 272, sec. 53 .  .  .  .  .  .  .  .  .  . 19 

M.G.L. c. 272, sec. 99 .  .  .  .  .  .  .  .  . 9, 16

M.G.L. c. 272, sec. 99(B)(2) .  .  .  .  .  .  . 9, 16

M.G.L. c. 272, sec. 99(B)(6) .  .  .  .  .  .  . 9, 16

M.G.L. c. 272, sec. 99(C)(1) .  .  .  .  .  .  .  .  9 


QUESTIONS PRESENTED
1.	Whether it was reversible error and violative of the due process and fair trial provisions of the United States Constitution and the Massachusetts Declaration of Rights for the judge to deny the DefendantŐs motion for a required finding of not guilty where the evidence was insufficient for a rational trier of fact to conclude, beyond a reasonable doubt, that the Defendant was guilty of illegal wiretapping, when there was no evidence of a recording, secret or otherwise, and there was no evidence of the interception of an oral communication?
2.	Whether it was reversible error and violative of the due process and fair trial provisions of the United States Constitution and the Massachusetts Declaration of Rights for the judge to deny the DefendantŐs motion for a required finding of not guilty where the evidence was insufficient for a rational trier of fact to conclude, beyond a reasonable doubt, that the Defendant was guilty of disorderly conduct, when the DefendantŐs actions served a legitimate interest of attempting to protect his personalty?
3.	Whether the judgeŐs jury charge created a substantial likelihood of a miscarriage of justice when she erroneously charged the jury that they may not convict the Defendant on the disorderly conduct charge if they found that the DefendantŐs actions were based on legitimate news gathering activities, and whether such a charge erroneously shifted the burden of proof?











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