Forty-nine out of the fifty United States have laws making writing a bad check a crime. The crime is known as larceny by check. The Massachusetts law prohibiting this conduct is G.L. c. 266 Section 37. That statute makes it a crime to write or pass a check knowing that there do not exist sufficient funds to cover the check. Simply passing the instrument satisfies the prosecution’s burden of going forward with these charges unless the accused covers the bad check within two days of being notified that the check has bounced. Fraudulent checks exceeding two hundred fifty dollars can result in a felony complaint issuing. Several times each month I get a call about one of these cases. The client usually asks if he or she can be prosecuted for bouncing a check. The answer is usually “yes, you can be prosecuted or that crime” however the likelihood of being convicted depends on factors discussed below. Continue reading →
An article in today’s Salem News discusses a scheme used by local retail store employees to obtain goods without having to pay for them. Apparently five employees used portable scanning devices issued by the store to ring up sales for fellow employees. Some of the items would be voided out so it would look like the employee was paying for one item when in fact the items voided out would be taken as well. Improper refund credits were applied to gift cards and the defendant’s personal credit cards as well. The gift cards were then used at the store to make purchases. It appears that the defendants were charged with larceny over $250, a felony in Massachusetts. Continue reading →
Over the years I have defended several cases involving the possession of or passing of counterfeit bills or money. Some of these cases were prosecuted in the district court and others in superior court. Interestingly enough, some of the more serious cases were prosecuted in the district court and vice versa. Initially, very few of my clients knew the severity of these charges. Most of them thought it was no big deal until I told them a little bit about the counterfeit money statutes in Massachusetts. Then they panicked. So, just how serious is possession of counterfeit money in Massachusetts? This post examines that question.
You always hear about people going to New York City to buy pocketbooks, glasses, handbags, shoes and more from street vendors. They talk tongue and cheek about the great deals they are getting. These people know they are not getting the real thing. They go for the experience of “shopping” in New York and having some fun for a couple of days. But did you know you can do the same thing in Lawrence, Massachusetts? Well, just a couple of weeks ago forty two people were arrested in Lawrence and charged with selling counterfeit goods. All of them were arraigned and now await a pretrial hearing in June and July.
About six months ago the Massachusetts Legislature passed a law raising the age for adult prosecutions from seventeen to eighteen. The law had prospective application. There is however one school of thought that this law applies to cases that were pending at the time the law went into effect. Thus, a seventeen year old charged in adult court whose case was pending when the law passed could possibly have his case dismissed upon request. This is exactly what happened earlier this week when a Lowell criminal defense lawyer asked the judge to dismiss a breaking and entering case against her client. The crime was committed in July 2013. At that time the defendant was seventeen years old. He is now eighteen. The law became effective on September 18, 2013.
While reading posts on my Google+ account today I noticed defendants in various parts of the country facing stiff sentences for computer related crimes. Take for instance the case of Jared James Abrahams, a nineteen year old California man and college student who recently pleaded guilty to a computer based extortion scheme. Abrahams was accused of taking over webcams by infecting computers with malware, then capturing the victims disrobing and extorting them for more photos under the threat of publishing the photos. It was also alleged that Abrahams demanded victims get onto Skype and do as he requested, again under the threat of exposing the illicitly accessed images. Abrahams is looking at thirty-three months in federal prison for the commission of these crimes. Victims identified on Abrahams computer equipment, one of whom was a minor, were from all over the world.
In another case, known computer hacker Jeremy Hammond could end up with a ten year sentence for hacking into computers and stealing tens of thousands of credit card numbers. The financial losses calculated by the government directly attributable to Hammond’s actions could be reach two and one half million dollars. Hammond’s lawyers claim that his efforts were part of his social activism, not for personal gain and not initiated maliciously. Rather, it was part of a nonviolent protest that should be punished as such. The government is seeking a sentence of ten years for Hammond, significantly more than the twenty months being requested by his legal team.
So what does this tell you about the state of computer crimes right now? Well obviously they are being taken very seriously by prosecutors. Both of these unrelated cases are being prosecuted by the federal government. The sentences being requested are staggering regardless of the motive or sensitivities of the defendants. Abrahams suffers from a documented case of autism for which he has been treated for over ten years. Hammond is motivated by social forces and has not profited from his actions. Nevertheless, prosecutors want blood. They want lengthy sentences. This trend is consistent not only in federal courts but in state courts including Massachusetts. The message district attorneys want to send is clear; virtual trespassing, no matter what the motive will not be tolerated and deserves sever punishment.
So how are these cases defended? Usually by challenging the validity of the search warrant the permits the police access to your electronic/computer equipment. Fight to show an absence of probable cause and improper issuance of the search warrant. Additionally, you might be able to defend these cases by showing that the government has failed to establish that you are in fact the person who committed the acts, regardless of what is on the computer.
A couple of days ago the Massachusetts Appeals Court issued its decision in Commonwealth v DeGennaro, a case involving theft, real estate fraud and embezzlement. As a factual backdrop the Court found the following:
In one instance, over a six week period the defendants received over forty eight thousand dollars in two installments from the victim. This money constituted the deposit for the construction of a new home. The defendants represented to the victims that the money would be kept in an interest bearing escrow account. Instead, the defendants deposited the money into their commercial checking accounts. They wrote checks from the account and depleted the money. None of the expenditures pertained to the victim’s home construction. The construction never took place. The money was never returned. No home was built.
In another transaction the victim tendered checks in an amount more than fifty-five thousand dollars. Again, the victim understood that the defendants would use the money as a down payment for the construction of a house. In less than two months that account too was depleted. As with the first case, construction delays were negotiated and yet again no construction took place. The deposits were never returned to the victim.
In another matter, DeGennaro hired a subcontractor to install plumbing and heating for homes that he had built. The first check tendered to this victim by the defendants bounced. A subsequent check cleared. The victim continued to perform services but was never paid. This pattern repeated itself relative to another property where this victim was providing the same services for the defendants.
It is no surprise to me that the defendants in these cases were convicted. What does surprise me is that these cases were prosecuted criminally in the first place. These cases almost never get presented to law enforcement. The reason for that is simple. If the victim is correct and he was actually defrauded by the contractor the sum of money taken from him will motivate the district attorney to look for jail time after a conviction. There are not many defenses to cases with these fact patterns. Money was moved from one shell LLC to another. The funds were depleted not for construction purposes but for the enrichment of the defendants. No work was performed. This was nothing more than a scam that was repeated several times with several customers. Yet victims in these cases who consult lawyers will realize very quickly that if they go to law enforcement with their complaints a prosecution will ensue, there will likely be a felony conviction involving jail time and restitution will never be made. The victim will never get back his deposit. So what happens? Usually the builder will continue with his scheme, paying off one victim with funds stolen from another. If he gets lucky, in a good real estate market he might get a windfall with a construction project or housing development and be able to pay everybody back. Rarely do the builders come to the end of their rope as happened with DeGennaro. In his decision, Justice Sikora put it best when he wrote “This appeal requires interpretation of a seldom litigated criminal statute”. It is seldom litigated because the victims know that they will never get paid if the defendant gets prosecuted.
According to a report on Boston.com Steven and Lori Palladino along with their son Gregory stole in excess of ten million dollars from forty-two victims some of whom are over the age of sixty. The Ponzi scheme, as it is being called, alleges that the Palladinos raised money through investors by promising large returns on the investment. Rather than investing the money however the defendants used the money to fund an extravagant lifestyle. The money was spent on lavish vacations, cars and gambling debts. A criminal usury charge was also filed alleging that Steven Palladino loaned money and charged a forty percent interest rate on the loan. There is also an allegation that Steven Palladino spent some of the money on a girlfriend. The Palladinos owned Viking Financial Group and were its only employees. Among the charges are Larceny Over $250, a felony and Larceny Over $250 with a victim over the age of sixty. If found guilty of the latter indictment the penalty can be enhanced. The younger Palladino was charged only recently in this case.
Lawyers Who Defend Usury Indictments in Massachusetts
A few thoughts come to mind when I read this article all of which are to me somewhat revealing about the district attorney’s case. Number one. Why is this case being prosecuted by the Suffolk County District Attorney’s Office rather than by the feds? The answer probably has something to do with the strength of the government’s case. It is the consensus among Massachusetts Criminal Defense Lawyers that in this district the feds cherry pick their cases. They prosecute only the strongest cases, those they believe they have very little chance of losing. Thus, there may be problems of proof for the district attorney. Number two. Why disclose to the public the facts about Steven Palladino having a girlfriend? I imagine the prosecution wants to create division in the family and possibly get Lori Palladino to agree to cooperate with the prosecution. If that is true, then again I question the strength of the prosecution’s case or its belief that it can prevail on the indictments as charged. Number three. Why indict the Palladino’s twenty-eight year old son? My answer is that in all probability the prosecution wants to squeeze the Palladinos. There is no instinct greater that that of a parent protecting a child. Most parents would die to protect their child. Again however, to me this signifies admitted weaknesses in the case against these defendants.
On March 1, 2013 in Commonwealth v. Doyle, 11-P-1779 the Massachusetts Appeals Court reversed a conviction for Malicious Destruction of Property Over $250. In Doyle the following facts were presented to a jury: On October26, 2010 Boston Police responded to a call in Dorchester where an ATM machine had been broken into. Upon arrival they encountered an individual who pointed to Doyle. Doyle was carrying a large duffel bag. As officers went towards him he fled. Doyle was caught. The duffel bag was searched. Inside the police found tools believed to be used to break into ATM machines. Doyle was charged with Malicious Destruction to Property Over $250, Breaking and Entering and Possession of Burglarious Tools. The jury convicted Doyle on all counts.
As to the Malicious Destruction charge, Doyle claimed that the district attorney lacked sufficient evidence to establish the element of malice and that there was no evidence as to the value of the ATM machine. The issue of the ATM machine’s value was not addressed by the Appeals Court. Instead, the court held that the evidence adduced by the prosecution did not satisfy the element of malice.
Massachusetts General Laws Chapter 266 Section 127 states that anyone who destroys property of another willfully and maliciously is guilty of a crime. If the value of the property destroyed exceeds two hundred fifty dollars the crime is a felony and the potential sentence is ten years in state prison. Malice is ìa state of mind of cruelty, hostility or revenge.” In this case the act of damaging the property was done for the purpose of breaking into the ATM machine and nothing more. In other words, damage to the property had to be done in order for the act to be committed. . . at least in the manner Doyle committed the act. The Appeals Court drew its authority from another Massachusetts Appeals Court case, Commonwealth v. Redmond, 53 Mass.App.Ct. 1 (2001). In Redmond, the defendant’s goal was to steal computer equipment. To do so, he needed to destroy property (a door, window, alarm system) to get to the property he wanted to steal. This conduct was not deemed malicious, rather it was necessary to achieve his ultimate criminal goal. The incidental or necessary property damage was deemed “the adventitious by-product of a wholly discrete criminal enterprise”.
As a Massachusetts Criminal Lawyer I can tell you that anytime there is damage to property incidental to another intended crime, Malicious Destruction to Property is charged. An Experienced Criminal Defense Lawyer will see the duplicative unsupported charge and immediately move to have that count dismissed. Keep in mind that any conviction can adversely impact someone’s future and eliminating all counts possible in a complaint cannot be overlooked.
According to a report in the Brockton Enterprise, Dery Moeda of Brockton, Massachusetts has been indicted by a Plymouth County grand jury for Home Invasion and related Massachusetts Violent Crimes. It is alleged that Moeda broke into a home on October 11, 2012 around 7:30 in the morning. While in the home he placed a gun against a thirteen year old girl’s head, telling her to remain silent while the apartment in which she lived was searched for nearly one hour. Apparently Moeda and his cohorts were looking for money they believed to be in the home. The girl identified Moeda through a photo array. In addition to Home Invasion, Moeda has been charged with Kidnapping and Larceny Over $250. The case is being prosecuted in the Brockton Superior Court.
Brockton Criminal Defense Lawyer, Home Invasion, Larceny
Whenever a Massachusetts Criminal Lawyer defends a case like this one the photographic identification process gets scrutinized. I always want to know what the victim saw and how strong her identification of the suspect was prior to her being presented with the photographic array. The identification itself and the photographic array get introduced into evidence unless the defendant’s lawyer is able to show that this aspect of the identification process was unnecessarily suggestive and that the identification itself was tainted because of it. The burden is on the defendant to show by a preponderance of the evidence that given the totality of the circumstances the identification process was so “suggestive and conducive to irreparable misidentification as to deny the defendant due process of law”. While this task is difficult and arguably unconstitutional given its burden shifting application, recently the Massachusetts Supreme Judicial Court established an advisory protocol to help ensure against abuse. This would require law enforcement to make it clear to the witness that the person who committed the crime may or may not be in the array. The witness should also be advised that it is just as important to clear someone as it is to identify someone. Additionally, the witness should be told that the individuals depicted in the photographs might appear different than they did at the time of the crime and that regardless of whether or not an identification is made the investigation will continue. The procedure shall also ask the person making the identification to state the degree of certainty he has in selecting the photo.
When this procedure is not used in accordance with the Supreme Judicial Court’s recommendation I usually ask the trial judge to incorporate in the jury instructions language that reflects law enforcement’s failure. I view a significant percentage of out of court photographic identifications as unreliable and suggestive. This is certainly something worth litigating in Massachusetts Criminal Cases.