Massachusetts criminal defense Attorney Blog
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Braintree, Massachusetts firefighters responded to an alarm at an apartment complex two days ago sometime around 2:30 in the afternoon. After finding and eliminating the material that triggered the alarm they entered an adjacent apartment to make sure that the occupants were okay. While going through the home the firemen noticed a large quantity of marijuana in a bedroom closet. They observed very little furniture in the apartment and notified the police. Officers responded to the home and applied for a search warrant. Once inside the home they found one hundred sixteen pounds of packaged marijuana and some drug distribution paraphernalia. The property was secured. Just prior to the search Mary Mei Chan and Dang Huynh arrived at the home. Both were detained and ultimately arrested. They, along with the lessee of the apartment have been charged with trafficking marijuana and conspiracy to violate the Massachusetts drug laws. The case is pending in the Quincy District Court but will likely be prosecuted in the Norfolk County Superior Court in Dedham.

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Quincy, Massachusetts Criminal Defense Law Firm

Cases like this one present an interesting challenge for criminal defense lawyers. Three people have been charged with trafficking, none of whom were present when the firefighters responded to the alarm. The two people who did show up at the home were not identified as tenants of the apartment. How then is the prosecutor going to prove that either of these individuals intended to traffic this marijuana? I am not sure they can. Drug trafficking in Massachusetts requires the prosecution to proved beyond a reasonable doubt that the person 1) possessed the controlled substance, 2) that he did so with the intent to distribute that drug and 3) that the quantity exceeds the trafficking threshold, in this case fifty pounds. The only element that can easily be proven is the third element, the quantity of the substance. But establishing the elements of possession and intent to distribute for Chan and Huynh is not going to be easy. If both of them were smart enough to keep quiet and not talk to the police then proving the case against them will be difficult.

The same problem might apply to the lessee of the home. How can the district attorney prove that she had any involvement in drug trafficking activities. How long had she been the tenant? Did she actually live there at one time? Was she seen going in and out of the apartment building? Did she sublease this to someone else? Does she have a history of dealing controlled substances, particularly marijuana? I can certainly see where motions to dismiss might be viable in this case. Again, much of this depends on what if anything the defendants said to the police. Hopefully, for their sakes they said nothing.

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As a rule, bail in Massachusetts is set by a clerk, an assistant clerk or a judge. Clerk’s and assistant clerk’s set bail after a person is arrested and held either at a police station or jail and prior to the person being arraigned on the pending criminal charge. Judges set bail after arraignment usually at the request of the assistant district attorney but sometimes on their own volition. The purpose of bail is to ensure the defendant’s appearance at future court appearances. Several factors are considered prior to imposing bail. Roots in the community, the nature of the case, the criminal history of the accused, prior defaults, risk of flight and the safety of the community constitute the majority of issues taken into consideration when setting bail. Courts also look to see if the defendant has any pending cases at the time of the commission of the crime.

The range of terms for an order of bail varies significantly. I have had judges impose a bail of fifty dollars on my clients. I have also had clients held without bail. This is most often for extremely violent crimes. For crimes that have considerable mandatory minimum sentences judges might hold the defendant without bail particularly if the accused is not a citizen of the United States. Orders of bail that cannot be paid by the defendant are often appealed to the superior court as a matter of right. There do exist further appellate rights for bails that people want to challenge, i.e. to the Appeals Court, however this right is rarely exercised and even less frequently successful.

Sometimes judges set bail orders with attached conditions that are absurd but not likely to get reversed. I recently represented a motorcycle gang member who was released over the objection of the prosecutor to bail conditions that bordered on ridiculous. The client was ordered to wear an electronic monitoring device. He could not leave his home. He could not go to work. He could not use a cell phone. Notwithstanding a recent back surgery he could not take his prescription medications without the express permission of the probation department and the judge who set the conditions of bail. Nevertheless the client opted to accept these conditions rather than await trial in jail.

Perhaps the most onerous of all bail orders pertain to sex offenses. Almost everyone who is charged with a sex crime and is able to post bail is forced to wear a GPS device. The defendant is often not permitted to go within a specified distance from schools, parks, playgrounds or children. This distance ranges but five hundred feet is not uncommon. While this might not present a large burden to someone who resides in a rural area it is nearly impossible to honor for people who live in cities such as Boston or Lawrence. In these cases, once the defendant is out of custody we try to get the judge to modify the conditions to permit the defendant to work and live in areas that otherwise would constitute a violation of the bail conditions.

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Sometime around three o’clock in the morning on Route 495 a Massachusetts State Trooper reportedly observed a car committing several motor vehicle violations, one of which was operating in the breakdown lane. The officer stopped the car. Then, according to a report in Boston.com, the officer developed information that resulted in him searching the vehicle. One of the passengers, Lesley Isler was found in possession of the cocaine and Percocet pills. Isler was arrested and arraigned in the Marlborough District Court on charges of trafficking cocaine and Percocet. The operator was simply given a citation for a civil motor vehicle infraction. Another passenger, Thomas Hamilton was cited for possession of less than one ounce of marijuana. In accordance with recent Massachusetts law this is not a crime.

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Marlborough, Massachusetts Drug Trafficking Defense Law Firm

I am always troubled when I read police reports or media accounts of routine stops that result in the arrest of passengers in motor vehicles. Massachusetts law does not permit the police to order a passenger from a vehicle following a routine traffic stop. The exception is where the officer has a “reasonable apprehension of danger”. The test used by courts hearing challenges to these exit orders is an objective one. Courts look at the facts and circumstances to see if they objectively give the police a “heightened awareness of danger”. In several instances Massachusetts courts have ruled that there is no basis to interrogate a passenger after the driver has produced a valid license and registration. Protections in Massachusetts in this area are greater than those provided by the Fourth Amendment, thus making your choice of a Massachusetts criminal lawyer a very significant decision. Any time I get a client that was subject to an exit order I immediately think that a motion to suppress should be considered. A successful challenge to a search results in suppression and suppression usually means dismissal.

Aside from the legal issues that may benefit Isler I can see some factual “observations” that make no sense. Do you really believe that the driver was operating in the breakdown lane and committing a variety of motor vehicle infractions? No way. Maybe if he were impaired. But that is not even remotely suggested here. I imagine the trooper had a hunch based on the time of day, the number of occupants in the car, the race of the people in the vehicle or maybe some information from other police officers that was not disclosed. Or, perhaps an informant had a role in this but the officers are protecting that person and not being honest in how they are reporting this matter. This is something that the defendant’s lawyer will investigate.

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A Methuen, Massachusetts man has been charged with two firearm offenses in the Lawrence District Court following a brief investigation. According to a report in the Lawrence Eagle Tribune, Jad Ali Mokdad has been charged with having an unsecured firearm and possession of a high capacity feeding device. Both cases are pending in the Lawrence District Court. Apparently Mokdad bought a high capacity gun not too long ago. Mokdad’s father called the store that sold the defendant the gun and asked about getting a silencer and about modifying the weapon to feed it more ammunition. The gun store owner called federal authorities to report the activity. As a result Mokdad was arrested.

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Lawrence Weapons Charges Defense Law Firm

The use or possession of silencers in Massachusetts is a felony pursuant to Massachusetts General Laws Chapter 269 Section 10A. There is a potential five-year state prison sentence for anyone convicted of this crime. Possession of a large capacity feeding device is a felony as well. This act is prohibited by G.L. c. 269 Sec. 10(m). Perhaps, at least in the context of this case, the most serious crime with which Mokdad has been charged is failing to properly store the firearm in a locked container “so as to render the weapon inoperable by any person other than the owner”. In cases where this law is violated and a person under the age of eighteen can access the gun the accused faces a one-year minimum sentence. This law, G.L. c. 140 Sec. 131L is routinely charged by Massachusetts prosecutors when law enforcement officials legally enter a home and see, either in plain view or pursuant to a search warrant, a firearm not properly locked.

So what is going to happen to Mokdad? A lot depends on how the police got into his home and located the weapons. I would assume they had a search warrant. However the grounds for obtaining one are not articulated in this article. Mokdad’s father’s request to the gun store about getting the sought after devices should not in and of itself permit the police to get a search warrant. There must be more than that, particularly if the warrant targeted Mokdad and not his father. I can certainly foresee circumstances where a motion to suppress or a motion to dismiss might be filed by the defense in this case.

There is something else that might concern the defendant’s criminal lawyer. Assuming there was a search conducted with a warrant, did Mokdad’s Middle Eastern descent factor into the application affidavit. If so, on what basis was this a concern of the police? Keep in mind, Mokdad is scheduled to graduate from college with a degree in finance in just three months. There is no suggestion that he has any criminal history and there is no evidence of an intent to commit a crime with these weapons.

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While reading a Courthouse News Report earlier today I was again struck by the inflexible approach that federal judges take towards child pornography distribution cases. A federal judge in New York sentenced a teenager to thirty months in prison after he pleaded guilty to distributing child pornography. No doubt this was an excellent deal. There was a large quantity of images on the defendant’s computer accessed through a file-sharing program. This fact alone satisfied the element of distribution. Yet this judge, Judge Jack Weinstein correctly recognized that this form of distribution is at best passive. The government appealed the sentence. The Second Circuit of Appeals criticized the judge’s sentence, ruled that he misinterpreted the law and remanded the case for further sentencing. The district court then, without any choice, imposed a sixty-month sentence, the minimum mandatory under the law.

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Federal Child Pornography Defense Attorney

What I find most appalling about the appellate court decision is its failure to respect the detailed, well-researched efforts of the lower court judge. Consistent with his practice Weinstein visited a federal prison at Fort Devens, Massachusetts that was established to treat sex offenders. He believed that treatment at Devens for this defendant would be rehabilitative and would enable the accused to perhaps reenter society at a later date in a productive manner. Weinstein has made frequent field trips like this in the past so that he can better understand the implication of his rulings and sentences. Imagine that? A federal judge who cares enough to take off his robe and step down from his pulpit to ensure that his decisions are just and productive not simply for the defendant but for society as a whole. Weinstein’s sentencing decision was issued with great thought. The supporting memorandum was over four hundred pages in length. It contemplated several days of expert mental health testimony. It considered the defendant’s childhood, one that is riddled with scarring incidents of abuse and neglect. The sentence placed form over substance, treatment over punishment.

So what happened? The Court of Appeals decided that notwithstanding Justice Weinstein’s findings it knew better. It told Weinstein that he must apply the enhancements set out in the sentencing guidelines. Let’s take a look at just one of these enhancements. Using a computer to access child pornography enhances the sentence. What? How else would this be accessed nowadays?

This enhancement is best characterized as idiocy. It is 2013 folks. The Internet is used for everything. It is virtually the only way people are accessing child porn. So Justice Weinstein used common sense and justly decided not to enhance the sentence using that criteria. Unfortunately he must have forgotten that in federal court the culture is one of hostility. Prosecutors and judges alike want to “one-up” each other by showing how smart they through sentencing hearings they shout out “look, I found another way to increase the sentence”.

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In Commonwealth v Ortiz, decided earlier today the Massachusetts Supreme Judicial Court affirmed a conviction for drug distribution notwithstanding the failure of the prosecution to prove beyond a reasonable doubt that the substance charged was in fact cocaine. The facts of the case are as follows: In June of 2010 a Weymouth, Massachusetts police officer was conducting an undercover surveillance during which she observed what she believed to be a drug deal. One week later she saw the same car and same driver allegedly engage in identical activity. This time the officer approached the buyer and found her in possession of cocaine. A support team was notified and the car, being driven by Ortiz was pulled over. Ortiz was arrested and charged with distributing cocaine and a school zone violation. After a jury trial he was convicted.

The prosecutor and the defense lawyer agreed prior to trial to stipulate that the substance was cocaine. During the trial the substance was referred to as cocaine however at no time was a certificate of analysis produced nor was the stipulation offered by the assistant district attorney, the defense attorney or the judge. The judge did reference the stipulation during his jury charge. On appeal Ortiz argued that since the stipulation was not offered before the prosecutor rested his case the judge should have allowed the motion for a required finding of not guilty. The defendant further argued that a stipulation to an element of the offense should be in writing and signed by the defendant. Alternatively, the stipulation must be the subject of a colloquy. In rejecting the appeal and affirming the conviction the Supreme Judicial Court refused to answer the question as to whether the failure to enter the stipulation constituted error. Rather, the Court held that reaching that issue was not necessary since there was no substantial risk of a miscarriage of justice. Similarly, the challenge to the absence of a signed stipulation and the absence of a colloquy did not warrant a reversal of the conviction. However, this case has prospective application regarding stipulations to an element of the case. Going forward, such stipulation should be submitted to the jury prior to the government resting its case.

From my perspective this decision seems to relieve the district attorney of its
burden of proving all elements of the crime beyond a reasonable doubt. Even though there was an agreement that the substance was cocaine the agreement
itself was never conveyed to the jury. Thus, legally there was no adequate proof that the substance was in fact what was charged. It was incumbent upon the prosecutor or the judge to make this known to the jury prior to the final submission of all evidence.

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A twenty-five year old Woburn, Massachusetts man is being charged in Essex County for a stabbing incident that occurred yesterday morning. According to reports Timothy Wells slashed a Salem State College student on a shuttle bus and then stabbed the bus driver who came to the female victim’s defense. Wells fled the scene and was apprehended in New York earlier today. Wells, a senior at Salem State was found in possession of a knife a few weeks ago however no charges were filed. Wells, a senior at Salem State has been charged with Assault and Battery by Means of a Dangerous Weapon and Attempted Murder. It has been reported that Wells informed campus police about his concerns about his state of mind.

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Salem, Massachusetts Criminal Defense Law Firm

The facts of this case clearly suggest that Wells’ lawyer investigate the viability of a mental health defense. The most commonly used mental health defense in Massachusetts is the defense of lack of criminal responsibility. Lay people often refer to this defense as the insanity defense. If a jury finds that some lacked criminal responsibility at the time of the commission of the crime it cannot convict the person of that crime. It is the burden of the government to show beyond a reasonable doubt that the person was sane when he committed the offense. To succeed with this defense there must be evidence that the defendant had a mental condition that rendered him unable to conform his conduct to the requirements of the law. It is advisable that anyone employing this defense have an expert evaluate him and be prepared to testify at trial to the condition of the accused and its effect on his or her ability to behave properly.

The defendant is also entitled to have the jury instructed that an acquittal by reasons of insanity does not automatically permit the person to go free. Rather, the jury can, upon request be instructed that its decision to find the defendant not guilty will likely require hospitalization in a secure mental health facility and that he will not be released unless and until a judge finds that he is no longer mentally ill and dangerous. Voluntary intoxication and drug abuse can be factored into this analysis in certain circumstances.

Here, Wells’ condition was known to campus police prior to the incident. It would not surprise me to learn that he had a document mental health condition or that he was prescribed medication for his problems. In that case, the defense is what I call a real one; i.e. not something concocted in the absence of an explanation for Wells’ behavior. Mental health defenses rarely convince juries. They do however often convince prosecutors and judges that the accused should be acquitted and treated for his problems.

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Earlier today I was reading the Lawrence Eagle Tribune and came across an article about a Methuen, Massachusetts man just convicted of one count of Rape. The man, Kenneth Poirier was being tried for a rape that occurred over three years ago. It was alleged that Poirier picked up a woman outside of a Lawrence rooming house and at gunpoint and took her to a wooded area in Methuen where he raped her. His defense was that believing she was a prostitute he picked her up and that all sexual contact between the two was consensual.

An earlier article about this trial reported that the woman did not appear in court to testify claiming that she had medical issues. However, the police had to go out and find her. When they did she was put up in a hotel, fed and clothed. The woman admitted having no recollection as to whether or not she told the police that she was forced into the car at gunpoint. There was no physical evidence corroborating the woman’s claim that she had been raped.

Essex County Rape Defense Law Firm

Massachusetts Rape Defense Attorney

Consent is a defense to allegations of Rape. It is one of two defenses I would expect to see in a case with facts such as this. The other defense would be a denial of engaging in any sexual act. Both defenses seem to fit the newspaper accounts of the crime. For example, where, as here there is no physical evidence suggesting a sexual assault I can see where the defendant would deny any unlawful contact with this woman. Why then would she make these accusations? There are countless reasons, the most common being a prostitution deal gone bad or a failed drug deal. But you have to ask yourself this. If Poirier didn’t rape her and there was no physical evidence corroborating her accusations, why admit to having sex at all?

Sex crimes can be difficult to defend. There can be a tendency on the part of jurors to sympathize with someone making this claim. Even though judges instruct jurors not to let sympathy interfere with their verdict the actions of the complaining witness can elicit emotion and sway jurors. In this case it is also troubling that as the victim became emotional during the trial the judge ordered a recess for her to compose herself. The recess causes pause and immediate reflection on the words and actions of the emotional witness. Some lawyer might even argue that the judge’s decision to break from trial at that time suggested that the judge was sympathetic towards the witness and perhaps believed her. This can be difficult for the defense to overcome, regardless of guilt or innocence.

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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.

Massachusetts Larceny Lawyer

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.

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Christopher White, a forty four year old Lowell, Massachusetts man is facing charges of Possession of Child Pornography and Distribution of Child Pornography following the execution of a Search Warrant at his Jackson Street home. Authorities allege that a search of White’s computer revealed somewhere around twenty five thousand images of child pornography. The article is silent as to how the police were led to White’s home and the basis for the application for the search warrant. The case is currently pending in the Lowell District Court however if the district attorney elects to pursue the distribution charges the matter must be prosecuted in the Middlesex County Superior Court in Woburn or Lowell.

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Lowell, Massachusetts Child Pornography Defense Law Firm

Lawyers Defending Obscene Material Charges in Massachusetts

This article says very little about the strengths and weaknesses of the district attorney’s case against White. The simple execution of a search warrant leading authorities to unlawful acts does not come close to satisfying the prosecution’s burden of sustaining a case like this one. There must be something linking the defendant, in this case White, to the illicit material.

Here is something to think about when looking at this case. Did White have any roommates? Was the computer secure? In other words did someone need a password to get into it or was the device accessible to anyone who had access to the home? How did law enforcement learn that activity like this was taking place? Was there some sort of file sharing such as peer to peer networking involved? The answers to these questions can determine whether or not the prosecution can survive preliminary challenges.

The penalty for Distribution of Child Pornography in Massachusetts is ten years on state prison. This is a minimum mandatory sentence meaning that anyone convicted of this offense will not be paroled until he serves at least ten years of his sentence. This fact alone makes it extremely important that you choose the right criminal defense lawyer to defend you if you are charged with this crime.

Our office has successfully defended charges like this on several occasions. Every case is different and there are always defenses to cases no matter how strong you might think this case is against you. If you get arrested and charged with any Sex Crime in Massachusetts you need a lawyer.

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