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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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Dedham District Court Arraigns Two on Drug Charges After Norwood Police Search Car

script.jpgThe Norwood Police received a call from TJ Max last week after store employees saw two people removing security tags from merchandize. According to the Transcript and Bulletin, when officers arrived at he store the suspects were still inside. The man, Ergin Abaz, had a shopping bag containing merchandise. The woman, Christin Quattrucci had some goods in her pocketbook. The police arrested both of them for shoplifting. The article states that the police also found pill bottles and a doctor's prescription pad in Quattrucci's possession.

The police then searched their car. They found a "tote bag" that allegedly belonged to Abaz, and they searched that too. Inside they found "drugs and doctor's prescription pad." The doctor's name on the pad matched the name on Ms. Quattrucci's bottles.

Mr. Abaz and Ms. Quattrucci were arraigned in the Dedham District Court on Monday. These are the charges:

Abaz. Shoplifting, Conspiracy to Violate the Drug Laws, Receiving Stolen Property, Possession of a Class B Drug with Intent to Distribute, Possession of a Class B Drug, and Possession of Class C Drug with Intent to Distribute.

Quattrucci. Shoplifting, Conspiracy to Violate the Drug Laws, Receiving Stolen Property, Possession of a Class E Drug, and Possession of Marijuana.

These are some observations and areas of concern from a defense perspective:

Why were the police searching the car? Does a shoplifting arrest give the police probable cause to search the car for evidence of the crime? Not likely. I suspect that the police explanation will be as follows: The two were arrested and would not be able to drive away. The car needed to be towed. It is police policy to do an "inventory search" to secure any valuable contents. But, who is to say that the car needed to be towed? Isn't it possible that one or both would bail out of the police station? After all, at that point they were just charged with shoplifting. The police station at 137 Nahatan Street is practically right across the street from TJ Max at 146 Nahatan. If they made bail they could walk over and drive away. Hence, no need for a tow, and no need for an inventory search.

Even if the call for a tow were justified, defense counsel will surely seek information to determine whether an inventory actually took place. If so, the police would have filled out an inventory form with a list of the items found. The absence of such a form may indicate that the search was not an inventory, but a search for evidence. Without probable cause or some other justification such a search would be a constitutional violation.

A motion to suppress will expose an invalid search, suppress the items found, and result in dismissal of the charges related to the search.

Where is the evidence of a conspiracy to violate the drug laws? A conspiracy conviction would require proof that they made an agreement to do something illegal. The article seems to imply that Abaz and Quattrucci were writing their own prescriptions. However, there does not appear to be any proof of that. Moreover, there does not appear to be any proof that they had any agreement to do it. Being in each others' company with the drugs and prescriptions is not enough to prove an agreement.

In any event, there is very little chance that a conspiracy trial will take place in the Dedham District Court based upon these allegations. Procedural rules do not allow for a conspiracy trial to take place at the same time as trial on the other charges unless defendants agree. The prosecution generally does not want two trials when they may get what they want from one.

Finally, why has Abaz been charged with having an intent to distribute drugs at all? A large volume of drugs may support this, but there is nothing in the article about volume. Nor are there any other indicators such as drug sale records, packaging materials, or large amounts of money. These drugs could just as easily have been for Abaz's personal use.

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Dedham District Court To Hear Domestic Assault Charges After Motorist Tip To Wellesley Police

The Wellesley Police received a telephone report of a possible assault in a moving car last Friday just before 4p.m. According to an article in the Wellesley Townsman, the caller "said he believed he had seen the operator of the car strike a woman in the back seat." Wellesley Police Officers pulled the car over on Route 9 to investigate.
A man, Jamal Abdulla Jaylani of Somerville, was behind the wheel and there was a woman in the back seat that appeared to have been crying. She did not have any facial injuries, but her face was "very red." The police arrested Mr. Jaylani and charged him with domestic assault and battery.

The Dedham District Court has jurisdiction over criminal cases occurring in Wellesley. The Dedham Court, like other Massachusetts District Courts, closes at 4:30 p.m. This is significant because this incident occurred so close to closing time, that it would be unlikely for the police to have booked and processed Jaylani in time for his arraignment in the Dedham Court on that same day. Since the article says that he made bail, and the court was likely closed, he must have been bailed out of the police station. If he had not, he would have had to wait in a cell for the entire weekend before being brought to court for an opportunity to ask the judge for a lower bail.

Based upon the article, the charge is assault and battery. Prosecutors call this a "domestic" assault and battery even though no such a charge actually exists in the criminal statutes. They designate the case "domestic" simply because the case involves an allegation that a man assaulted a woman with whom he was acquainted. Prosecutors give special attention to these matters because of their concerns about a possibility of future violence or abuse between the parties, as well as the need to notify the alleged victim of the court proceedings. On many occasions, however, the couple reconciles and the victim is not only well aware of the proceedings, but is more sympathetic to the defendant than she (or he) is to the prosecution.

One indicator that this may be the case for Mr. Jaylani's is the absence of any indication that the victim requested an emergency restraining order against him that afternoon. There can be no doubt that the Wellesley Police satisfied their obligation to notify her of her right to request such an order. Because she did not, it would not be surprising to find that it was actually she who paid the bail to secure Jaylani's release from the police station.

If the victim fails to testify against Mr. Jaylani at trial, the only other person that could assist the prosecution would be the man that initially called the police. Whether the person identified himself or not will be a significant consideration for the defense. Even if the man appeared at trial, however, he may not be much help to the prosecution. After all, he told the police that he "believed he had seen the operator of the car strike a woman in the back seat." This type of statement would not be enough for proof beyond a reasonable doubt that Jaylani actually made contact with her, especially, where she had no injuries. An experienced Dedham Criminal Lawyer will surely emphasize all of these points.

These are potentially volatile situations with prosecutors sometimes faced with what seems like the task of protecting a victim in spite of her own wishes. For the defense, it is a matter of sizing up the potential evidence and using every legal tool available to aggressively protect the rights of an innocent client.

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Shoplifters at iParty to be Charged in West Roxbury Court

gorilla1.jpgThe West Roxbury Division of the Boston Municipal Court will hear criminal charges of shoplifting and larceny against two men involved with the theft of gorilla suits from iParty on Monday. According to the article in the Boston Herald, there were actually four men together in the store. Employees of iParty apparently noticed three of them leave with one carrying the goods -- two gorilla suits valued at one hundred dollars each. The Boston Police reportedly said that the other two "booked it down VFW Parkway." The one man that stayed behind said he did nothing wrong and he actually called the man in possession of the stolen get-ups and convinced him to bring them back. According to the Herald, that man, 18 year-old Brian Cherry, "was charged with larceny/shoplifting of $200 and over." It is not clear if they were both charged; the article said that they were all involved.

Looking back, if the man that remained in the store did not help out, and the man with the gorilla suits did not return, the police would have just one suspect who asserted his innocence and the store would be out two costumes. Of course, there may be evidence, not reported, that could prove that the man that stayed behind "aided or abetted" Mr. Cherry in the theft. Perhaps they both planned to go out on Halloween as apes.

In any event, this misadventure has some interesting issues. As mentioned, "aiding or abetting" could be applied to convict the man that stayed behind. Since he did not carry off the merchandise, the only way he may be guilty is if he "aided and abetted" Mr. Cherry.

In order to prove this, the government needs proof that he participated in some way, and shared Cherry's intent to steal. His participation may be shown by assisting, encouraging, planning, standing by as a lookout, agreeing to help, or agreeing to help with the escape. If this is provable, then the man left behind could be found guilty of shoplifting even though he never left the store with the merchandise.

It is important to note that merely being present is not enough to prove him guilty, even if he knew it was about to happen and did nothing to stop it. In other words, under our laws, there is no such thing as guilt by association. To be convicted, there must be proof beyond a reasonable doubt that he actually "participated" in the crime and shared Cherry's intent.

There are other legal issues involving the charges. The article says that the charges are "larceny/shoplifting of $200 and over." Actually the charge must be either shoplifting or larceny an the government may bring either charge. If it is shoplifting it will be "shoplifting over $100," because The Massachusetts Shoplifting statute provides for enhanced penalties when the value of the merchandise is over $100. At that stage, the penalty increases to a possible jail sentence of 2 1/2 years and a fine of $1,000.

If the charge is is larceny it will be "larceny under $250," because the Massachusetts Larceny statute provides for penalty enhancements at a cut off point of $250. If, as it is in this case, the value of property involved in a larceny prosecution is less than $250, the penalty is a maximum of 1 year in jail and a fine of $300. Hence in this particular incident, the shoplifting charge is actually more serious than the larceny charge.

An experienced criminal defense attorney will know this. Hopefully for Mr. Cherry and his friend this analysis will not be necessary. If they have no prior criminal involvement, an experienced criminal defense attorney should be able to have the charges dismissed, or avoid the prosecution altogether with a disposition at a clerks hearing.

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