Celtics' Assistant Coach Criminally Charged in What Appears to be Civil Dispute

celtics checkbook.jpg"Larceny by Check" charges were brought against Walter McCarty in the Framingham District Court last week. The former Celtics player and present assistant coach apparently wrote a check to a cabinet maker without enough money in his account to cover it.

According to the Milford Daily News, McCarty was building a home in Wayland and agreed to pay approximately $33,000 to an Illinois company for some cabinets. McCarty made a $12,000 down payment and after the cabinets were installed, he sent them another check for $18,000. That check bounced.

According to the article, McCarty told the cabinet company that his checking account had been compromised by an identity thief. The article also alleges that between May 30 and June 23 he made several promises to make payment. The company eventually contacted the police and they brought criminal charges. At his arraignment, McCarty said that the case involves a construction dispute.

In the event that he was withholding payment because he had issues with the cabinets or the installation, this should not be in criminal court. The fact that the bad check appeared to be less than enough to satisfy the final price indicates that he was withholding at least $3,000 and that indicates that a dispute did exist. A written contract would be helpful in this regard. Written communications between the parties will surely shed more light on this issue, especially if McCarty had been complaining about the product all along.

Making promises to pay without complaining about the product, however, would undercut the construction dispute claim. Moreover, the article implies excuse overkill because there was an initial claim of of identity theft and a subsequent claim of construction dispute. I suppose it could be both, and McCarty is surely entitled to the benefit of a doubt.

McCarty's defense is not unusual in larceny by check cases. Larceny by check is, however, somewhat of an hybrid larceny. While one may not be guilty of this without proof of an intent to defraud, the statute, contains language that does not readily accommodate individuals in this situation. The law says that just writing a bad check is "prima facie evidence of an intent to defraud and knowledge of insufficient funds . . . unless the maker . . . shall have paid the holder . . . within two days of receiving notice that such check . . . has not been paid." Since the statute does not indicate a punishment for its violation we must look to the larceny statute. There we find that McCarty has been charged with a felony punishable by up to 5 years in state prison.

"Prima facie" is a legal term that essentially means that the evidence is taken as preliminary proof subject to offsetting evidence. The larceny by check law essentially says that you have two days from learning that you have written a bad check to pay the full amount. If you don't, your failure is prima facie proof that you have committed the crime of larceny.

This is an unusual statute that appears to clash with the presumption of innocence. The rationale, however, is fairly clear. In a typical larceny, a person takes someone's property with the intent to keep it. Here, a person is allegedly pretending to pay for something by writing a check and the victim has lost property while relying on the pretense. Whether this fits McCarty's case remains to be seen. One thing is clear.
If McCarty had simply failed to pay, he would not have been in criminal court. The act of writing the check changed everything.

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Marijuana Brownies for Children Results in Charges Against Father

brownies.jpgDistribution of Marijuana and Child Edangerment. Those charges were read against Christopher Desimone and his girlfriend Ann Marie Farrow in the Attleboro District Court on Monday.

According to the Sun Chronicle, Desimone is a divorced father of two daughters aged 8 and 11. Desimone's ex-wife has physical custody of the kids while Desimone lives with Farrow in Attleboro. The two girls were visiting their father's home two weeks ago when the alleged crime took place. The prosecution alleged that Farrow baked marijuana brownies and Desimone encouraged the girls to try them. One girl had a brownie crumb and the other took one bite. Neither felt any effects. Some time after the girls returned home, they told their mother that they had been served brownies laced with marijuana. Their mother took one girl to a doctor for a drug test, which came back positive for marijuana.

Two Attleboro Police Officers conducted an investigation culminating in the arrest of Desimone and Farrow on Friday. The couple apparently spent the weekend in custody. The chief of police said the case was "deeply disturbing." At their arraignments in the Attleboro District Court, the prosecution asked for relatively high bails of $1500 and $1000 and noted that [t]he commonwealth takes drug distribution to children quite seriously." (Yes, she said "quite" seriously.) Attorneys for the defendants, on the other hand, requested dismissals.

One attorney pointed out that sharing marijuana cannot support a charge of marijuana distribution. In addition, he argued that reckless endangerment requires "evidence that the children were in danger or suffered serious bodily harm." With regard to "sharing," the marijuana, the judge asked the attorney whether he was "suggesting that the child [was] socially sharing marijuana?" The judge then denied the requests for dismissal and set bails of $1,000 for Desimone and $500 for Farrow.

First, a few questions on the factual allegations. Why did it take two weeks for the case to be brought? Did the kids wait two weeks before telling their mother? Did it take two weeks to get the results of the drug test? Even if it did, why wait? Weren't the words of the children enough? How did the children know that the brownies had been laced with marijuana? Did one or both of the defendants tell them there was marijuana in the brownies? It appears so, otherwise how do you explain that one girl had just a crumb and the other had just one bite. Most kids don't hold back like that on dessert.

For the record, let me say that for the most part, I share the sentiments of the chief. This story, on its face, is disturbing. I also agree with the prosecutor in that distributing drugs to children should be taken very seriously.

But, lets look at the application of the law to the allegations and look at the allegations in light this state's developing marijuana policies.

In 2012 Massachusetts decided to decriminalize the possession less than one ounce of marijuana. Last year, the Supreme Judicial Court did, in fact, rule that passing a joint around was an act of social sharing, and therefore, not illegal distribution. Soon there will be legal medical marijuana distribution centers across the state. Three of them will be operated by a man who is former Congressman and former Top District Attorney for Norfolk County. There is actually a provision (725.015) in the medical marijuana regulations allowing "qualified [marijuana] patient" status to children under the age of 18. The regulations do not have a minimum age requirement. Is it possible that some time in the future the medical marijuana distribution centers will become profitable recreational marijuana distribution centers?

How does this relate to the story? Well, first of all, the perception of marijuana as drug that is either dangerous or even unhealthy has been all but eliminated. After crossing that line how much further must one go to reach the ludicrous conclusion that a little pot brownie may be good for a child. Assuming that the allegations against Desimone and Farrow are true, isn't this the probable scenario. Isn't it likely that Desimone and/or Farrow themselves use marijuana and believe it to be harmless? Some cultures allow young children to sip wine on holidays. Is pot next? Let's hope not.

What about second hand medical marijuana smoke? Will there be any regulations against smoking in the same room with children? If not, aren't they likely to fail a drug test? What would the consequences be for the medical marijuana parent?

What about the charge of child endangerment? To be convicted of this crime there must be proof beyond a reasonable doubt that the person charged did something that created a "substantial risk of serious bodily injury . . . to a child." Did Desimone and Farrow do this? While it is hard to imagine any justification for giving them the brownies, they did not force them to eat more than the experimental amounts, and neither child showed any negative effects, never mind serious bodily injury. Can it reasonably be said that there was a risk of serious bodily injury? That will be a question for a jury and jurors are members of the community. The community at present is taking a very different view of marijuana.

Desimone has been arrested, held on bail, and will surely be thoroughly investigated by the Massachusetts Department of Family and Children. While that appears to be justified, real issues remain with regard to the state of the law in this regard.

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Drug Charges Stem from Alleged "Meaningless Drive" in Norwood

coke bag.jpgThe Norwood Police seized cocaine from two men in the Home Depot parking lot last week after a detective watched them meet and drive around the parking lot. According to the Norwood Transcript and Bulletin, detective David Eysie had suspicions about Miguel Escobar-Cruz and had been keeping an eye on him. On Wednesday he watched Cruz drive to Home Depot and meet Walter Mullock. Mullock got into Cruz's vehicle and they drove through the lot in what Eysie described as a "meaningless drive." The police believe that drug dealers pick up buyers and drive around while making their sales in order to avoid detection.

In this case, the Transcript states that "Eysie pulled Cruz over after the drive was complete." and "[w]hen Eysie pulled them over, he stated what he had witnessed, at which point, they were cooperative." Apparently, the police claim that Cruz's cooperation included giving the police his supply of cocaine and perhaps even admitting that he sold some to Mullock. The police later obtained a warrant to search Cruz's Norwood home and found more cocaine, packaging materials, and $4,000 of alleged drug money.

The police charged Cruz with Distribution of Class B Cocaine, Conspiracy to Violate the Drugs Laws, and Possession of Class B Cocaine with Intent to Distribute, Mullock was charged with simple Possession of Class B Cocaine and Conspiracy to Violate the Drugs Laws.

Cruz got caught with the cocaine in his car, admitted to selling cocaine to Mullock, and had more cocaine and other incriminating evidence back at his house. So it is open and shut, right? Maybe not.

From the perspective of a criminal defense attorney, there is a weak link that may turn the case in Cruz's favor. It involves every individual's right to be free from unreasonable searches and seizures. Here, that weak link is the stopping of Cruz's car. Twice the article says that Eysie pulled Cruz over. If this is true, then there very well may be a viable motion to suppress all evidence obtained as a result of that stop.

Stopping a car is a seizure in the constitutional sense. The police are not allowed to stop a car without witnessing a civil motor vehicle infraction or having probable cause or reasonable suspicion of criminal activity. In this case, what evidence did the detective have to support his stopping of the car?

Eysie must have had some suspicions about Cruz, otherwise he would not have been following him. Those suspicions could not have amounted to much, otherwise he would have stopped and arrested Cruz before he got to Home Depot. So the reason for the stop must have been the so-called "meaningless drive." How is driving around a parking lot evidence of criminal activity? Other than a hunch that turned out to be accurate, there did not appear to be anything else to support the stop of Cruz's car. And hunches do not amount to adequate grounds to step over the protections against unreasonable searches and seizures that the constitution provides.

If this analysis is correct and the warrant for Cruz's home was based upon the stop in the parking lot, then that evidence will also be suppressed.

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Marijuana Charges Brought After Another Brookline Police Smell Test

Marijuana leaf1.jpgBrookline Police brought marijuana (Class D) distribution charges against Kevin Nguyen yesterday after he was pulled over under suspicion of having a warrant out for his arrest. According to the Brookline Patch, an officer "ran a query on a vehicle that came up that the driver had an active warrant." The officer stopped the car, identified Kevin Nguyen as the driver, and arrested him on the outstanding warrant.

The police then performed an "inventory" search of the car. This is police policy. All items of value must be listed on an inventory form and held for safe keeping. The police have this policy to protect themselves and tow drivers from potential claims of missing valuables. If done according to procedures, courts will not view these searches as violations of privacy rights. They may, therefore be done without a warrant, or probable cause.

In this case, however, the nature of the search changed. The Brookline Officers conducting the inventory, "allegedly detected the fresh odor of marijuana coming from inside the vehicle but nothing was found." This is impressive. Just last week I wrote about officers from this same department detecting such an aroma, and here they do it again. It is not clear if the same officer was involved in both arrests.

In any event, the car had to be towed and it appears that its first stop was not the storage lot, but the police station. There, a "K9 unit was put into the car." In other words they let a drug sniffing dog climb in. The dog "located a scent," and "[l]ater, the police allegedly found a small brown Gucci bag full of cash, about $9400, and about 6.7 ounces of marijuana in a white shopping bag." How much later, and why it took additional time is not stated in the article.

Issues/Comments:

Odor of Marijuana. Unlike last weeks blog, there appears to be at least some corroboration behind the charge of having an intent to distribute. The volume of marijuana is not extreme, but may weigh against a claim of personal use. I should point out once again that the proposed medical marijuana regulations suggest that ten ounces should be considered a sixty day supply, unless the prescribing doctor were to suggest more. But here, there is also the cash. The weight and the cash are not conclusive but support the charge from a prosecution perspective. Kevin Nguyen's side, however, has not been heard yet.

Search and Seizure-- the stop. Kevin Nguyen's defense will likely take a close look at whether there is a viable motion to suppress. As always, this is best viewed in a chronological sequence. First, did the police have constitutional justification to stop the car? At a glance this looks obvious - he had a warrant. But, the police did a query on the vehicle's registration. I doubt, however, if the officer identified Nguyen before making the stop. Just because the registered owner of a car has an active warrant does not mean the registered owner is driving the car.

Search and Seizure -- the non-inventory search of the car. The next inquiry is whether the thorough search of the car was constitutionally justified? The inventory was supposedly routine. But, what about the tow to the police station and dog sniff. What was this police action based on? Was it based on the officer smelling a "fresh odor of marijuana?" Would that amount to probable cause to believe that the car contained marijuana? The article does not say where the police found the evidence. Why didn't they find it during the inventory? Was the evidence in a secret "hide." If so, did the police have sufficient probable cause to start taking the car apart? Assuming, for the sake of argument, that they did, why didn't they get a warrant? They had the car in their possession, and Kevin Nguyen was locked up. There was no rush since the car was not going anywhere. Why not present their probable cause argument to a magistrate in the Brookline District Court (which is right next door) later in the morning. The law requires warrants unless there are circumstances justifying a search without one. I don't see those circumstances here.

Marijuana Legalization. Obviously, the police must enforce the law, but whether one supports marijuana legalization or not, these charges are getting harder to take seriously. At present the state is only considering legalizing medical marijuana and entities seeking licenses to become distributors must be "not for profit." But, how long will it be before possession of any amount is legal without a prescription? Why are organizations clamoring for these licenses if there is no profit? Surely the administrators will be taking a salary. Is there any cap on the salaries for principals of these non-profit organizations? No. Are these groups interested in public service and breaking even? I think not. Will these licensees be first in line in the event of wholesale legalization? What will their profits be then? And how will people like Mr. Nguyen feel about that?

This blog is actually many times longer than the short story in the Patch. And I trust that there is a lot more evidence to be analyzed on Mr. Nguyen's behalf. If he has not done so already, he should have an experienced criminal defense attorney look into this as soon as possible.

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Marijuana Possession with Intent to Distribute Charges Look Thin and Illustrate Questions About Mass. Marijuana Laws

marijuana.jpgMarijuana charges were brought against a couple after a traffic stop in Brookline early Sunday morning. According to the an article in the Milton Patch, Catherine Burns was driving her car with her date, Armond Smikle, as a passenger when the Brookline Police allege that she drove through a stop sign. The officer conducting the stop approached the vehicle and claimed to have smelled a strong odor of alcohol "emanating from Burns." The officer also alleged the usual symptoms - slurred speech and eyes that were bloodshot and "glossy."

The article then states that the officer "went to check their licenses." This is interesting. Why would the officer take Smikle's license? The law does not require that passengers carry identification, or even provide it to the police. Perhaps -- and this may be wishful thinking -- the officer was anticipating that the driver may be arrested and he wanted to know if he could let Smikle take the car and avoid the tow. After all, at that stage, there was no reason to suspect the passenger of a crime. Unfortunately for Smikle however, that changed almost immediately.

While checking the licenses the officer claims to have seen the couple reaching around to the back seat of the car. He also said that Smikle opened the door. All of this could have been innocent activity, but during an early morning stop, the police take no chances. The officer called for back up.

A bad situation got worse when one of the responding officers smelled "fresh marijuana" in the car. This is somewhat surprising. I know that many police officers are trained to recognize the particular scent of marijuana, but in circumstances like these it is amazing that an officer was able to make this detection. They were out on the streets of Brookline in the early morning hours with a woman who was giving off a strong odor of an alcoholic beverage, and an officer was able to individualize the scent of fresh marijuana coming from the same area. If there were large trash bags full the crop in the vehicle this would make more sense. But, the police would find only 2.9 ounces in the center console, which I assume was wrapped in plastic. Stunning. Their drug detection dog performed a follow-up sniff and only came up with a "smoking device." It is unclear how that device escaped the officer's scent-assisted inspection. After all, the pipe must have been used, otherwise the dog would not have focused on it, and as such one would expect an odor even stronger than that of raw marijuana.

The police charged Burns with Operating Under the Influence of Alcohol, and charged them both with Possession of Marijuana with the Intent to Distribute.

Why has the couple been charged with having an intent to distribute marijuana? It is not even a crime to possess an ounce or less, and there was not all that much more than that in the center console. There were no large sums of cash, scales, or packaging materials to support an inference of distribution. Sometimes it appears that, in light of decriminalization, prosecutors have forgotten that it is still a crime to possess more than one ounce. Should that not be the charge? Every amount over an ounce does not signify an intent to distribute. And the pipe indicates that someone in the car most likely intended to smoke it, not sell it.

Moreover, Smikle would be correct in wondering why he has been charged with having anything to do with the marijuana it at all. Where is the evidence that he possessed it? Even if he shared the officer's sense of smell, and thereby knew that there was pot somewhere in the car, that knowledge does not go very far towards proof that he possessed it, much less that he was contemplating any sales.

What about the smoking device? The article described it as "plastic and hollow." Apparently they were not charged with possession of drug paraphernalia. This, by the way, is still a crime in Massachusetts. Will medical marijuana patients violate this law if they chose to use a pipe instead of rolling their own?

Putting aside the OUI charge, how would the case of Burns and Smikle look if either one of them had a valid prescription? For an answer a good place to start would be the proposed medical marijuana regulations, which allow for a medical marijuana patient to possess a sixty-day supply. The proposed regulations suggest that 10 ounces would be a reasonable sixty-day supply. That is, unless a physician determines that a patient needs more. How does 2.9 ounces denote an intent to distribute when 10-plus ounces is a reasonable sixty-day supply?

For one thing, I suppose we must have faith that medical marijuana use is very different from illegal recreational use. Prescription holders are expected to take their doses incrementally over time to address their diagnosed symptoms. Prescription holders are expected not share or sell their medical marijuana. Prescription holders are expected to refrain from driving under the influence of marijuana. And prescription holders are expected to possess only non-criminal ingestion devices.

Those accused of failing to follow medical marijuana rules and those without prescriptions would be well advised to seek experienced criminal defense counsel.

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Jail Assault Charges Against Aaron Hernandez?

February 27, 2014

Hernandez.jpgThe Sheriff of Bristol County announced yesterday that former Patriot tight end, Aaron Hernandez, was involved in a fight with another inmate on Tuesday. The sheriff only said that there was a brief altercation in an area where inmates are not supposed to contact each other; neither man was injured; and an investigation is underway. Later "news" outlet TMZ, citing "sources extremely familiar with the situation," said that Hernandez was unrestrained, the other man was wearing handcuffs. In addition, TMZ said that the other inmate had been "talking smack" to Hernandez. It remains to be seen if these factual allegations have any merit at all.

Today's Sun Chronicle reports that the sheriff will likely file charges. Against whom? Will the sheriff bring charges against Hernandez, the other man, or both of them? There are many other questions that I expect will be answered after the full investigation. Here are some that come to my mind as a criminal defense attorney.

What will the charges be? Assault and battery? Assault and battery with a dangerous weapon such as a shod foot or handcuffs? Will the second man agree to press charges? Will Hernandez agree to press charges? If neither agrees to testify, where will the evidence of a fight come from? A video recording? Is a security video sufficient to prove the elements of what ever is charged? Don't they each have a Fifth Amendment right against self incrimination which would dissuade them from testifying against each other? Under these circumstances does the sheriff really want the media circus and expense involved with transporting these two to the New Bedford District Court?

It is interesting to speculate why these two men were in a restricted area together, but that has very little relevance to the potential criminal charges. The question will be whether either or both committed some type of assault that is provable in court.

If the charge is misdemeanor assault and battery, whoever is charged should be given an opportunity for a hearing before a magistrate to determine if there is probable cause to issue a criminal complaint. This is where the real potential evidence will be unveiled, whether it be witness testimony, video recordings, or both.

In my experience, inmates are reluctant to testify against other inmates. If they do, they are not treated well by the population when they return to custody. Moreover, I would be somewhat surprised to learn that either Hernandez or the other man even reported the fight to corrections officers. In jail, that also falls into the so-called "rat" category.

I fully expect that a video recording exists, since most places inside of jails are monitored with cameras. So, lets assume that the video will be the evidence. Try to imagine, however, a trial where no witness testifies as to what really occurred, and all the evidence comes from a video screen. And remember, it is illegal for these recordings to include audio, so in this situation there will be no evidence of words spoken before or after the altercation. Is such a video likely to provide proof beyond a reasonable doubt? I suppose that we shall see, but if the parties are not interested, why bother? I think we can safely assume that not all jailhouse violence results in criminal charges. This case however, involves a celebrity, and that can change everything.

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Charges Need to be Sorted Out After Six Arrested in Van Containing Ammo/Knuckles

February 14, 2014

brass knucks.jpgCrimes involving "constructive possession," while difficult to prove, are easily charged when one is in the vicinity of something illegal. Guilty or not, you may be arrested and brought to court to defend yourself. Six young men riding in a mini van in Worcester last week will learn this soon in Worcester District Court.

According to Mass Live, a Massachusetts State Police trooper stopped a mini van for civil violations in a section of Worcester known for criminal activity on Saturday morning. The driver of the van, Jorge Luis Deya, did not immediately stop after the trooper activated his lights. In addition, the trooper claims to have seen the passengers "frantically moving" when the van did come to a stop. The trooper called for backup from the Worcester Police Department, approached the driver, and learned that Deya did not have a valid driver's license. The police ordered everyone to get out of the van and then they searched it. Inside, they found brass knuckles, 82 rounds of low caliber ammunition, and a bottle of wine.

Defense counsel will surely explore whether the exit order was a violation of each individual's constitutional right to be free from unreasonable searches and seizures. If one of the passengers had a valid driver's license why wouldn't that individual be allowed to drive away without the exit order and search? Would the events preceding the stop justify the failure to take this course? This must be analyzed.

Of the six occupants, two were 20 years old, three were 18, and one was 17. All, therefore, were adults for purposes of criminal court. None, however, had a license or firearms identification card which would allow him to have the ammunition or brass knuckles and none were old enough to possess wine. And this is not kids stuff. Possession of brass knuckles is a felony punishable by up to five years in state prison. Whether such a sentence is likely or not, a felony conviction itself has far reaching negative consequences. Especially for the futures of young people.

The article does not say where in the van the items were found. At some point this information will be relevant when a judge or jury decides individual culpability. The police, however, simply grouped them all together. And the police probably had no choice. We may safely assume that none of the items were in the actual possession of just one of the men. If they were, then the charges would be brought solely against him.

Many who read these typical stories quickly assume that they are all guilty in one way or another. The same may be said of stories involving underage drinking parties. After all, they must have all known what was going on. The law, however, does not work that way. Each individual is entitled to have his/her case examined with an eye toward a presumption of innocence. And just being there is never enough for a possession conviction.

In order to be convicted of possessing something, the prosecution may attempt to prove actual knowing possession such as having an item in your pocket. In the alternative, they may attempt to prove constructive possession. This will likely be the theory that the prosecution will use in this case.

As such, the prosecution will be required to prove all of the following beyond a reasonable doubt against each individual. 1) The individual had knowledge of the object, 2) the individual had an ability to control the object, and 3) the individual intended to exercise control of the object.

Let's take the example of one rear seat passenger. Where is the actual proof that he knew the objects were in the car? Maybe he saw and heard the others talking about the objects, but there is no proof of that. Even if there were, and even if all of the objects were within his reach, that's not enough for criminal possession. There must be proof that he had an intention to exercise control of the objects. Where will that proof come from? Unless he admitted that to the officers, it will not be susceptible of proof.

Isn't everyone in the car entitle to be presumed to be the person who was just along for the ride with no intention of taking actual possession of the brass knuckles, ammunition, or wine? After all, what would be worse -- letting a guilty party escape punishment, or convicting an innocent one for the sake of preventing that escape? Our law prefers the former.

Even some people who find themselves in this situation have doubts about their own criminal responsibility. Contacting an experienced criminal defense attorney,early, therefore, vitally important.

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Drug Charges May be Transferred from Wrentham District to Norfolk Superior Court

cash.jpgNorwood Police Officers arrested Jorge Vega on drug charges last week after a Norfolk County Police Anti-CrimeTask Force (NORPAC) investigation. According to the Norwood Patch, the task force had been watching Vega and eventually saw him involved in a transaction with another individual from whom they seized cocaine. A week later they successfully applied for a search warrant from the Dedham District Court. The warrant allowed them to search two vehicles "related to Vega" and Vega's Brockton home. The article implies that the police arrested Vega at the time of the search. They seized $30,000 in cash, but no drugs. He was charged with Subsequent Offense Distribution of Cocaine and Operating with a Revoked Driver's License. He was arraigned in the Wrentham District Court and held on $25,000 bail.

It is not clear if they found the money in the home or one of the cars. This and many other facts will make a difference. If found in one of the cars, how were the cars "related to" Vega? Did he own them or did someone else? Were the cars "related to" anyone else? What justification did the police have for getting a warrant for the cars? Since he was charged with a operating after suspension, it appears that his arrest followed a traffic stop. If the police found money in a car, defense counsel will explore these issues and likely file a motion to suppress.

If the police found the money in the home, where in the home? In an area that was "related to" Vega only? Or did other people live in there? Did someone else possess the money? The police obviously believe that it is drug money, but it is just money and we all hope that there is no crime in having a lot of it. The same search and seizure issues will apply here. What was the probable cause to justify the search of his home in Brockton? The sale must have happened in the jurisdiction of the Wrentham District Court, because that is where he was arraigned. If they found drugs at his house he would have been arraigned in the Brockton District Court.

There is plenty to work to do on the issues surrounding search and seizure. However, they only found money and that is not the main component of the case. The actual charges will hinge on the alleged sale of cocaine a week prior to the arrest. So what are the trial issues? If the buyer does not testify, her words to the police will be inadmissible hearsay. And I doubt that she will be willing to testify against Vega because that would involve self incrimination. So, it will be up to the police to prove the one alleged sale based solely on their observations. Could it be that they witnessed innocent activity and were predisposed to believe it was a drug sale. Without the buyer, who can actually say where she got the cocaine. The case, therefore, may not be as strong as it seems.

There are two reasons that this case may be headed for indictment and transferred to the Norfolk Superior Court. First of all, the article states that Vega has been charged with a Distribution (Subsequent Offense). There is no jurisdiction in the Wrentham District Court for this charge. Secondly, Vega has other drug charges pending in the Norfolk Superior Court and the District Attorney may not want to proceed against him to two locations.

In any event, I trust that Mr. Vega has much needed experienced criminal defense counsel on side.

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Charges Against Allegedly Naked Walpole Teacher May be Excessive

Goggles.jpgThe Wrentham District Court will hear the charges of Open and Gross Lewdness and Disturbing the Peace that the Walpole Police filed against a Norfolk County Agricultural School teacher last week.

According to Wicked Local Walpole, a woman called the Walpole Police at 8:00 a.m. on Martin Luther King Day after twice passing a man in his driveway. The first time, she saw him he was wearing a hat, goggles, and a towel. The second time, "[i]n her return trip," he had "lost the towel." When the police arrived at his house, the man was wearing the towel and he insisted that he had never taken it off.

At that point it appears that the police were either going to give him the benefit of a doubt, or were going to file charges to be addressed at a clerk's hearing in the Wrentham District Court. That is, until another call came in two hours later. This time a woman said that a man was "naked" in the driveway (no mention of hat or goggles). To make matters worse, the woman said that he "thrust his hips onto his mail box as she drove by." This visual is highlighted with the allegedly accurate description of the man as having a "paunch" with "dark body hair."

With this information, the police obtained an arrest warrant for felony Open and Gross Lewdness and misdemeanor Disturbing the Peace. They executed the warrant at 3:00 p.m. on Wednesday. The article contains no information about his arraignment in the District Court.

Beyond the somewhat irregular allegations, this story brings to mind some issues with regard to Massachusetts Laws Chapter 272 entitled "Crimes Against Chastity, Morality, Decency, and Good Order." Both of the charges in this case are contained in this chapter.

While bodily exposure is an element of the crime of Open and Gross Lewdness, there needs to be more. Just being naked and being seen, is not enough. There must be proof beyond a reasonable doubt that the exposure was intentional. In other words, if the towel fell off, that would not be enough. Perhaps that is why the police apparently did not seek a warrant until the second woman said that the man was naked and thrusting "onto his mailbox." (I expect that "onto" was simply an unwise choice of words in the by the reporter).

In addition to exposure that is intentional, there must be even more. There must be proof that the intentional exposure was done to produce shock. And there must be proof that at least one person was actually shocked. Again, the prosecution will likely argue that the thrusting goes a long way toward satisfying this element. But, they will need to prove that the thrust was done specifically to shock the onlooker.

In sum, there must be proof that the teacher intended to expose certain parts of his body in a shocking way to other people who were in fact shocked. For the man to be convicted, the woman will have to come to court, testify, and thereby satisfy all of the elements, including shock.

If the prosecution is unable to prove the element of shock, they may fall back on a lesser offense of Indecent Exposure. Here there would have to be proof of intentional exposure along with someone being offended as opposed to shocked. That is an interesting distinction.

What is more interesting are the legal differences between the greater and lesser charges in this regard. Open and Gross Exposure is a felony, while Indecent Exposure is a misdemeanor. A more striking distinction is that the lesser charge actually requires exposure of genitals, while the more serious charge may be satisfied with non-genitalia such as buttocks or breasts. Apparently the drafters were concerned more with how one shows it, than what one shows. The case depends on the evidence, of course, but in my opinion the lesser charge may be more applicable. Even then, however, a conviction may not be easy in these circumstances.

It should be noted that a singe conviction of the felony Open and Gross Lewdness does not require one to register as a sex offender. A second conviction, however, does trigger that obligation an that obligation lasts for 20 years. I trust that the man has experienced criminal defense counsel to undertake the analyses and investigation necessary to bring an apparently imposing situation down to reality.

Even though it is probably the least of the teacher's concerns, let's look at the charge of Disturbing he Peace. Although this charge looks like a gift compared to the other, it could be even more difficult to prove when you look at the proof required. The elements of this crime are: 1) intentionally engaging in disruptive conduct such as making loud noises, threats, challenges, insults, etc. and 2) annoying/disturbing the tranquility of at least one person by doing such things.

So with Open and Gross one must be shocked, with Indecent Exposure one must be offended, and with Disturbing the peace one must be annoyed and/or disturbed.

In sum, what appears to be a relatively simple story actually has some provocative twists.

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Theft of Ammunition Case May Be Full of Holes

ammo shelf.jpgThe Foxboro Police have arrested a woman by the name of Kerry Barasso and charged her with stealing ammunition from Bass Pro Shops. The articles in the Patch and the Sun Chronicle raise serious questions about her culpability and that of a second suspect.

According to Chronicle, the police believe that on January 14, Ms. Barasso and Daniel Foscaldi made purchases at the store, but also took about 300 rounds of assorted ammunition without paying for them. They claim that the couple "concealed the stolen ammunition in the bottom of a black bag with the other items on top." As a result of a State Police bulletin to be on the look out (B.O.L.O.) for the couple and the car, the Marion Police pulled them over the next day. The police towed the car and searched it. Inside they found a black bag containing the purchased items, but no ammunition. According to the Chronicle, "there was not enough evidence at the time to arrest the suspects."

The Foxboro Police conducted a further investigation and did obtain arrest warrants. They executed the arrest of Barasso on January 21 -- one week after the alleged theft. They have not located Foscaldi.

My first question is -- What did the police have when they obtained the arrest warrants that they did not have at the time of the B.OL.O.? The news articles say that a Foxboro Police Detective interviewed employees and reviewed security videos. Apparently none of the employees said that they witnessed the theft of bullets, otherwise store security would not have let the couple leave the store. This makes me wonder what the employees knew when they called the police in the first place, and how it was enough for the B.O.L.O.

So what was on the videos? The news said that the video showed Barasso or Foscaldi with a similar black bag inside the store and that another video shows them driving away in the same car. That proves nothing. If the prosecution is going to obtain a conviction, they must have more than that. If they have video of the two concealing ammunition in the bag, wouldn't that be reported? Wouldn't the Marion Police have had that information when they pulled them over the next day? I wonder if it exists.

Recap: Someone at the store was suspicious and called the police. The police arrived and did an initial investigation that warranted the B.O.L.O. but not warrant any arrests. The couple gets pulled over the next day and since they don't have ammunition, there is not enough evidence to arrest them. A detective sees one video of the couple in the store with a bag similar to the bag found at the traffic stop and another video of them going to their car and leaving. Something is missing here and it is not just the ammunition.

Perhaps a store employee assisted them in the ammunition selections by unlocking a case. The news does imply that the store knew what kind of ammunition they were looking for. But, again, if they knew this, how did they let them leave and how was there insufficient evidence at the traffic stop?

The Chronicle says that Ms. Barasso has been charged with larceny of ammunition and larceny of property worth more than $250. While the Massachusetts larceny statute does have a special provision for stealing firearms, it has no such clause for stealing ammunition. So it may come down to one count of larceny over $250 -- a felony. However, even in the unlikely event that there is enough proof for larceny, proving the value, without the items, will be very difficult. Each round would have to cost 84 cents. It is possible, but possibilities are not proof enough in a criminal case.

Other areas to be explored. Why did't the police charge Shoplifting instead of Larceny? If the value was less than $250 how could the police get felony warrants as opposed to misdemeanor summonses for clerk's hearings?

Where missing ammunition is involved, you may be sure that the police, the prosecutor, and the Wrentham District Court will be taking this very seriously. Obviously, Ms. Barasso and Mr. Foscaldi would be well advised to obtain experienced legal counsel.

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Felony Drug Charges Appear Excessive for Norwood Couple After Cape Arrest

December 31, 2013

images.jpgThe Truro Police stopped and arrested Lawrence and Susan Pandolfo of Norwood as they drove on Route 6 in Truro last Friday afternoon. According to the Cape Cod Community News an officer - traveling in the opposite direction -- thought they were speeding, turned around, and pulled them over. Both of the Pandolfos provided valid driver's licenses. Because Lawrence had recently purchased the car, however, the registration was not in order and the car had to be towed.

With the assistance of back-up officers, the Pandolfos were then frisked for weapons. The Community News article does not give any explanation as to why these two had to be frisked. Nor can I imagine one. Equally inexplicable was the subsequent search of Ms. Pandolfo's purse. Inside they found an "envelope containing an undisclosed quantity of $20 bills." So far, we have a couple in a car that may have been speeding without a valid registration while in possession of money.

An "inventory" search of the car, however, turned up open containers of alcohol, prescription pills, an "undisclosed amount of marijuana," narcotics (6 brown cubes) "packaged for sale," two pipes, and some bottles and cans of alcohol. All that certainly makes things look worse, but it does not appear to support the criminal charges -- Possession of Marijuana with Intent to Distribute; Possession of Class B Substance With Intent to Distribute; and Possession of Class C Substance With Intent to Distribute.

Since no one was offering anything for sale, the prosecution will have to look elsewhere for proof that either or both of the Pandolfos intended to sell anything. That proof not only appears to be lacking, but much of the evidence points in the opposite direction. In fact, I would argue that the recovered evidence is more indicative of a party than a sales mission.

It was Friday afternoon (pay day) between Christmas and New Years and Ms. Pandolfo had twenties in an envelope. Not tens, fives, ones, or a combinations consistent with low level drugs sales. The prosecution may speculate about whether the twenties were from one larger level sale but that amounts to nothing. A connection between the drugs and the money is non-existent. If this case goes the way it should, the Pandolfos should be prepared to file a motion for return of the money.

The volume of drugs does not necessarily indicate an intent to sell either. There were six hard cubes of a Class B substance. The article does does not say how big the cubes were, just that they were "packaged for sale." There is no distinction, however, between something that is packaged for sale and something that is packaged for purchase. If someone buys something that had been packaged by a seller, that is how it is going to look, right?

As for the prescription pills, it is not even clear at this point whether the Pandolfos had a valid prescription. There is no law against taking your medication out of the marked bottles and combining them into a single bottle. And even if they did not have prescriptions, just having them does not mean they were for sale.

There were three individually wrapped bags of an undisclosed amount of marijuana. If it were large bags of marijuana, I'm sure that the police would have portrayed them as such. I have a suspicion that the amount recovered weighed less than an ounce and as such was not even criminal to possess.

Tellingly, the police found empty and full containers of alcohol and two pipes. Again, entertainment or enterprise?

There are other issues for defense counsel to explore vigorously. Was the stop and were the searches constitutionally permissible? Are both parties equally guilty? Having the same name and being in the same place is not enough.


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Norwood Police Seeking Charges Against Landlord for Tenants' Activities

According to a recent article in the Patch, the Norwood Police will be filing criminal charges against the landlord/owner of rental property on Sturtevant Avenue because tenants have been involved with marijuana.

Henry Samuels (age 24) and his mother, Lashauna Peltway (age 40) live in apartment number one at 15 Sturtevant Avenue. Last August the police arrested Samuels at the apartment for selling marijuana to "two school age kids." According to the article, at the time of the arrest, the police "put [the landlord] on notice that further action from them was required in regards to eviction of tenants." (Does this mean that the police officially told them to evict the offenders? If that is the actual notice given, it is pretty weak.) The story also implies that since that arrest the police have been investigating Samuels.

The article states that the police executed a search warrant at the apartment, but it does not say when this event took place. We may assume from the June 7 date of the article that it was recent. During the search, Peltway was present, but Samuels was not. Both, however, will be charged in the Dedham District Court with Possession of Marijuana with intent to Distribute "based on the drugs seized." In addition, Peltway will be charged with "being the Keeper of a Disorderly House."

The article correctly cites the statute that the police will use against the landlord as Chapter 139, section 20, but misquotes the statute's wording. In criminal law, the true language of a statute is crucial because that language must be applied when the court decides whether to issue a criminal complaint.

The applicable terminology is: "Whoever knowingly lets premises owned by him, or under his control, for the purpose of . . . the illegal keeping, sale or manufacture of controlled substances . . . or knowingly permits such premises, while under his control, to be used for such purposes, or after notice of any such use omits to take all reasonable measures to eject therefrom the persons occupying the same as soon as it can lawfully be done, shall be punished . . . ." (emphasis added).

So a prosecution under this section has three options. By proof that the landlord leased the premises for the purpose of illegal drug activity, or by proof that the the landlord knowingly allowed it to be used for such purposes, or by proof that the landlord failed to take reasonable measures to evict the tenants after being notified of the drug activity.

The first option is unlikely. It is inconceivable that the landlord leased the apartment to Peltway for the purpose of marijuana sales. The second two appear to be somewhat easier to prosecute. If a landlord is put on notice of illegal activity, and the landlord does not take reasonable measures to evict the offenders, the landlord may be in violation of the statute. There are, however, many questions to consider.

Who must give "due notice? The police? If so, is it enough for the police to describe allegations against a tenant to a landlord? Is it fair to give the police the power to force the commencement of eviction proceedings based upon hearsay? What kind of evidence should the police have to justify their giving "due notice."

What form of notice is required? Is written notice necessary, or may the police just stop by and tell a landlord that the rental property is being used for illegal purposes? Should the notice contain specific allegations of continuous crimes? If so, I would think that it should be in writing and it should give specifics.

The statute is entitled "Aiding or Permitting Nuisance." Nuisance implies ongoing activity. How much illegal activity is necessary? Would one event be enough? Two? Was Samuels convicted as a result of the 2012 arrest? How did the evidence recovered in the raid support charges against both Samuels and his mother?

How much time is reasonable to evict a tenant in situations like this? Does the law of landlord/tenant provide for an expedited process? Who else lived in the apartment? Were there young children living there too? If so, should they be the subject of an eviction under these circumstances? Had the landlord done anything in reaction to receiving the notice in 2012? Would a good faith warning be enough to avoid a chapter 139 charge?

As usual, the language of this law leaves many questions unanswered. I expect that they will be addressed by one of the excellent clerk magistrates at the Dedham District Court and therefore be examined carefully, professionally, and with fairness to all parties.

The landlord would be well advised to have an experienced criminal defense attorney with him/her at that stage.


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Marijuana Trafficking Suspects Appear to be Over Charged

Marij Bud.jpgThe Quincy Police have filed several charges including marijuana trafficking against a Quincy couple after an incident last Thursday. The story in boston.com reveals that the prosecution may have difficulties proving many of them.

It all started when a utility company decided to turn off services at a house on Norfolk Street. The company enlisted the help of detectives from the Norfolk County Sheriffs office to enter the house. There is no explanation for this. Perhaps it is the company's policy to have law enforcement on hand for this task. But, why detectives and why not local police? Defense counsel will surely explore whether of not there was a secondary law enforcement motive for entering the house. If so, then they should have had a warrant, and there may be grounds for a motion to suppress.

Back to the story. When the utility employee and the detectives arrived, there was a man spreading mulch outside the house. Apparently, neither the detectives nor the utility employee bothered approaching the man to discuss the utility situation. According to the article the man left "[w]hen police entered the house." So they saw the man in the yard, and just went into his house. Why not speak to him first? Why not ask him for the key? Why not tell him the reason for going in his house while he is spreading mulch outside? It also makes you wonder if the man was investing in mulch while failing to pay utility bills.

When the mulch man left, the detectives took note of his license plate. Again, if this was simply a utility shut off, why were they interested in the man's license plate at this point in time. I assume that the police had not discovered anything suspicious at the time that the man drove away. Was there more going on here? Was there a law enforcement motive to the entry of the house? There is no mention of whether the house was locked or not. Surely, absent some emergency, utility companies are not breaking down doors to turn off power. Strange.

In any event the detectives smelled "raw marijuana" when they went inside. After looking around, they found marijuana plants growing under lights. The Quincy Police and members of the Federal Drug Enforcement Agency then got a search warrant and eventually discovered 65 growing marijuana plants and 18 small dried marijuana plants.

The police eventually found the mulching man's vehicle in another part of town. They knocked on the door and two boys told the police that they did not know where their father was. The police, however, could see him inside and after initially refusing to do so, the man came out and was identified as Hao Vu. When the police started to question him, however, Vu ran off and tried to hide behind a restaurant. He was arrested and charged with Trafficking in Marijuana, Conspiracy to Traffick Marijuana, Disorderly Conduct, and Resisting Arrest.

The police return to check on the boys and when nobody answered the door, they forced their way in and found Annie Vu in a bedroom with four children. Armed with information that the marijuana grow house was in the name of both Hao and Annie Vu, they arrested Annie too. She was charged with Trafficking in Marijuana, Conspiracy to Traffick Marijuana, and Resisting Arrest.

Unless there is a lot more to this than what has been reported, these two have been grossly overcharged. Lets start with Annie. Just because she is on the deed or the lease from the marijuana grow house does not mean that she was involved with the growing. Where is the evidence that she was ever at the house while the plants were there? And conspiracy? The prosecution needs evidence that she and Hao agreed to distribute marijuana. Where is that evidence? How about resisting arrest? Refusing to answer the door and hiding in a bedroom is no where near enough evidence for that charge. One has to threaten a police officer or create a risk of injury to a police officer for this charge to be sustained.

Now lets look at the charged lodged against Hao Vu. Trafficking charges are based upon weight. For marijuana, the minimum weight is fifty pounds. How will the prosecution establish the weight of these plants? Will they weigh just the portions suitable for smoking? Surely, they don't have fifty pounds of "buds." What about the proverbial "stems and seeds." How about the actual roots? Moreover, will the police weigh the plants after a proper period of drying? If they don't dry the stuff and just put it in plastic bags, the moisture will cause their evidence to rot. There were a total of 83 plants. They would each have to weigh just under ten ounces to make the cut.

As for the conspiracy charge, again, I just don't see any compelling evidence that Annie and Hao got together on this. There's no mention of it in the article. The same analysis with regard to the resisting arrest charge applies to Hao. Running away is not enough, unless there is something about the run that would put the officers at risk of injury. Here, they said that he ran and tried to hide behind Quizno's. That's not going to do it.

Some have said that when you make the police chase you around they will have their revenge. Perhaps that accounts for the charge of Disorderly Conduct. What exactly did Hao do to merit this charge? When and where did he cause public inconvenience or alarm? It looks like they were throwing everything possible a these two. They will need experience legal counsel to sort this out.

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Disorderly Conduct Charge for MBTA Train Surfer

red line train.jpgDisorderly Conduct charges were brought in the Quincy District Court against Justin Green of South Boston after he tried to surf a subway train out of the North Quincy MBTA station last Friday.

According to Boston.com, some people in the train apparently saw Green hanging on to the top of a car as the train began to pull out of the station. The driver stopped the train for several minutes in order to get Green back on to the platform. When confronted, Green allegedly said that he had a "God given right to do anything he wants," and that he was only risking his own safety.

Depending on your perspective, he almost had a point. When you first read the story, you may get the feeling that he was doing something wrong, but ask, "what is the crime?" In fact, if not for the stopping of the train and inconveniencing the passengers, I doubt if the disorderly charge would apply. To be convicted of disorderly conduct here, the prosecution needs to prove 1) that Green created a hazardous condition that did not serve any legitimate purpose for Green, and 2) that Green recklessly created a risk of public inconvenience or alarm.

The second element is obvious. Green was attempting to surf at 5:30 p.m. on a Friday, and when the conductors stopped the train of his choice, other oncoming trains were delayed. So, its safe to say that he recklessly created a risk of inconvenience to several passengers on public transit.

The first element is actually not so clear. It may have been hazardous, but by what standard will the court determine whether or not Green's actions served a legitimate purpose for him. He has already said that he had a right to do as he pleased. He obviously considered train surfing his own "legitimate purpose," regardless of whether or not anyone else agreed.

However, since this is a very minor crime punishable by a $150 fine, it is unlikely that the Quincy District Court will delve too deeply into whether the law applies to what the accused believes to be legitimate versus what is objectively legitimate.

This is simply a story that illustrates the elements of a crime that is often used as a catch-all when nothing else seems to apply.


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Drug Distribution Suspect Proclaims Confidence in His Attorney

cuffs on lawyer.jpgDrug distribution and drug possession charges were brought against two men in the West Roxbury Division of the Boston Municipal Court after the men were arrested in Roslindale on Wednesday. Dennis Reynolds of Attleboro was charged with selling heroin to Daniel Hancock of Walpole. Hancock was charged with possession of heroin. After being handcuffed, Reynolds allegedly said: "I'll beat this case like I beat my last case, wait till you meet my lawyer."

The Roslindale Patch reported that undercover Boston Police officers saw what they believed to be a drug transaction between the two men at the corner of Metropolitan Avenue and Washington Street. The Officers approached to investigate. The article states that Hancock then began to struggle with officers. There is no explanation as to why there was a struggle when the police were simply approaching to ask questions, but as so often happens when such a struggle ensues, Hancock ended up on the pavement in handcuffs. The police would later claim that there were 3 bags of heroin near where he lay.

No drugs were taken from Reynolds, but he had $134 in his pocket. So at this point the police had speculation that Reynolds had just sold drugs to Hancock (Or the opposite was about to happen). The situation got worse, as it usually does, when the accused men agreed to speak to the officers. The men were likely separated and gave "contradictory statements about the money." The article says that the men initially said that the met to settle a debt. The article does not contain the contradictory information.

Back at the police station, Reynolds apparently called his girlfriend -- not his lawyer -- and said "Baby shut off my phone they have my phone." It seems that she was unable to do this quickly enough as the officers claimed to have received one call and one text from people seeking to buy drugs.

So, will Reynold's lawyer have a chance of beating this case? If he had called his lawyer first, he or she would surely have told him refrain from making incriminating statements. Although Reynold's words are technically hearsay, most of them are admissible against him in court. The prosecution will likely be able to admit the conversation with his girl friend and that is not helpful to his defense. The same applies to his statements about the money. Fortunately for him (and his lawyer) the prosecution will not likely be able to use his complimentary description of his lawyer because it contains reference to a prior case. Jurors may not know of a person's prior conviction of similar charges because they are only supposed to focus on the facts before them.

So what will they have before them? If not for the words and actions of the two men after the police approached, the case would consist of police speculation that they had witnessed a possible drug deal. Surely defense counsel will challenge the admissibility of the phone call and text message on illegal search and seizure grounds, and should prevail. It may come down to just what the officers saw. Will they be able to say who was the seller and who was the buyer? After all, it could go either way. And that is reasonable doubt.

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