Massachusetts criminal defense Attorney Blog
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Today’s Somerville Patch reports that a woman had been advertising her services over the Internet. Specifically, she offered sex for a fee. Her advertisement listed the Washington Street Holiday Inn in Somerville as her place of business. An undercover detective responded to the listing and met up with the woman in her hotel room. She requested one hundred twenty five dollars for one half hour of sexual services and two hundred dollars for a full hour. The woman, a sixty year old from Randolph, Massachusetts then took off her clothes, provided the undercover with a condom and laid out some rules for the encounter. She was then arrested and charged with sexual conduct for a fee, also known as prostitution.

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Somerville, Massachusetts Prostitution Defense Lawyer

I get calls on cases like this one from perspective clients on a regular basis. Several of them ask me the same question: “Isn’t this entrapment?” The answer is no. People think that police officers conducting covert operations that result in an arrest is entrapment. It is not. Entrapment is a defense to criminal charges that focuses on the predisposition of the accused. It is not entrapment for police officers to entice a prostitute or drug dealer into performing or attempting to perform their services. If the person is predisposed towards the commission of a crime and the police simply facilitate their efforts entrapment has not occurred. Entrapment is a viable defense where the government or its agents overcome the will of a person and in some way coerce them to commit a crime.

On several occasions I successfully represented people accused of trafficking cocaine with an entrapment defense. On one occasion I represented a recent college graduate (Jim) who enjoyed smoking marijuana and sometimes snorting lines of cocaine. One of his “friends” would share with him a small amount of cocaine. Unbeknownst to Jim the “friend” was actually an informant, trying to work off a pending drug case. The informant had convinced his handler, a state trooper, that Jim was a major drug dealer. In order to work off his case the informant had to produce, or, in this case introduce the trooper to a drug dealer and to actually access drugs.

So one day the informant brought the trooper over to meet Jim. The trooper was introduced as a cocaine supplier. During the meeting the trooper pulled out a small quantity of cocaine, similar to the amount that the informant would share with Jim. Jim and the informant snorted a few lines. The next day the informant called my client and told him that the individual he had just met wanted a large amount of cocaine and that he wanted Jim to get it for him. Jim was confused and wanted to know why this person would think he could get him a large quantity of cocaine. Jim said that he had no interest in this proposition. Over the course of the next several months the informant badgered and threatened Jim. He convinced Jim that the person who had given him some cocaine, the trooper, was dangerous and that Jim owed him. A record of hundreds of telephone calls was produced from the informant to Jim. The calls were made at all hours of the night. The informant incessantly harassed Jim and had him fearing for his life. Consequently, Jim gave in and agreed to produce a large quantity of cocaine. The informant introduced Jim to a major drug dealer and a deal with the undercover was ultimately consummated. Jim was arrested and charged. We were able to show that the government’s harassment of Jim overcame his will and forced him into the drug deal. Jim was acquitted before a Suffolk County jury.

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Earlier this week an article circulated via UPI talked about an evolving test that Massachusetts prosecutors will undoubtedly be using to help prove their cases. X-ray photoelectron spectroscopy, commonly referred to as XPS, looks at individual cotton fibers that contain distinct chemical traces on their surface. The chemicals are used in the treatment and manufacturing process of cotton garments. The XPS process helps to distinguish cotton fibers that through microscopic examination were thought to be indistinguishable. The chemicals in question are used to make the clothing article wrinkle free, resistant to staining or waterproof. Through XPS these chemicals can be identified on the surface of the individual fibers.

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Massachusetts Criminal Lawyer Using Expert Witnesses and Technology

I imagine that once XPS testing is “perfected” this science will become prevalent in Massachusetts courts, particularly in serious felonies being prosecuted in the superior courts. I say this even though I do not believe that using XPS experts will be beneficial to the district attorney. Here is why. Prosecutors will want to test fibers to see if a match can be made to clothing worn or owned by the accused. At least initially, if there is a match there will be an argument that this link to the defendant corroborates other evidence in the case. This strategy will ultimately appear desperate. In general the fibers we are talking about and their processing and manufacturing treatments are not typically unique. Clothing is mass manufactured. In many cities it is common for youth to be wearing the same or similar clothing made by a particular company. For instance, for years black hooded sweatshirts made by a particular sporting goods company were the wardrobe of choice in certain parts of Boston and other major cities. You could walk down the street and see scores of youth wearing the same articles of clothing, same make and same logo. So how then does this more effectively link a particular defendant to a crime scene? It probably doesn’t and defense lawyers will quickly pick up on this as a challenge to the significance of this evidence.

Then why would prosecutors get into XPS testing at all? The trend among prosecutors in Massachusetts for more than a decade now is to introduce evidence known to have little significance if they believe that the defense will comment on its absence otherwise. For example, in murder cases where DNA is not an issue a prosecutor may nevertheless call a DNA expert to testify that certain evidence could not be tested for DNA. The same logic applies to fingerprinting and testing blood samples. So, once XPS testing becomes a household term we will see prosecutors, through their expert witnesses discussing this process. This will apply whether or not XPS testing was done and regardless of the test results. Thus, it will be important for Massachusetts criminal defense lawyers to familiar themselves with this process whether or not they use it.

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While following the Aaron Hernandez Massachusetts murder case I was struck by the prosecutor’s motion asking Judge Garsh to recuse herself. According to several news sources, Bristol County prosecutor William McCauley claimed that in 2010 Garsh displayed hostility towards him by accusing him of wrongfully excluding evidence. He further complained that this judge undermined his credibility before a jury. McCauley filed a similar motion in 2011 that was never argued. Instead, the case ended up before another judge. Garsh denied McCauley’s motion and will preside over the proceedings and perhaps the trial itself.

While there is nothing novel about asking a judge to recuse himself for cause in Massachusetts it is done sparingly. If the judge decides not to step down from the case the challenging party risks retaliation. Such actions will likely be subtle. Rulings may be less likely to go your way. The judge can use the inflection in his voice to undermine your efforts. Your opponent might be shamelessly embraced in a manner visible to the jury but not captured in the trial transcript. Simply put, if the judge wants to screw you for filing such a motion he can. Now of course retaliation is impermissible yet good luck trying to prove that it happened to you. In this particular case I sincerely doubt that McCauley will suffer consequences for trying to have Garsh remove herself from this case. As a matter of fact, given the media attention this case has been getting and will be getting it will be difficult for Garsh not to bend over backwards to prove that she has no bias towards the prosecution.

On the other hand, I cannot understand why a judge, being accused of bias would not simply step away from a case. Naturally, Judge Garsh’s words “I do not fear or favor the Commonwealth or the defendant” resonate nicely. But why stay on the case? Acceding to a recusal request is not an admission of fear. Nor does stepping away from this case acknowledge agreement that McCauley’s accusations of unfairness are true. There are literally thousands of other cases to sit on. The judge could simply step aside and before doing so rule that she has no bias. She would merely be avoiding any appearance of impropriety and she could then pass the case on to another judge.

Unlike some other states, there is no peremptory challenge of judges in Massachusetts. Alaska Statute 22.20.022 permits a peremptory challenge to a sitting judge if the challenging party files an affidavit alleging that with this judge a fair and impartial trial cannot be obtained. California C.C.P. Sec 170.6 allows for the peremptory challenge of a judge without the need to give the court a factual basis for its belief that the judge is biased. These laws make a lot of sense. They tend to keep reminding judges of the need to be fair and respectful of the litigants. They promote confidence in the judiciary. They eliminate favoritism. If a party is uncomfortable with a perceived relationship between the judge and an opponent he can remove the judge from the proceeding. This is a nice check against judicial ignorance. Judges who are routinely victimized by peremptory challenges might modify their behavior. They might read the advance sheets. They might be nicer to the litigants. They might learn to act appropriately.

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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.

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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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