Massachusetts criminal defense Attorney Blog
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According to a report on Boston.com, Dane Mullin, a Salem, Massachusetts man is accused of committing an Indecent Assault and Battery on a woman in Boston this past Tuesday. The incident occurred on a Green Line train during the morning commute. Mullin, a level three Sex Offender has open cases in the Salem District Court as well. One of these is for Failure to Register as a Sex Offender. Mullin is also on probation after being convicted of similar incidents just a few months ago. Mullin’s convictions for Massachusetts Sex Crimes date back to 2007. In addition to the new charges Mullin faces a Probation Violation proceeding.

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Massachusetts Sex Crimes Defense Law Firm

Indecent Assault and Battery Lawyers in Massachusetts

So just how big are Mullins’ problems? Well, lets first look at the underlying crime. Indecent Assault and Battery in Massachusetts is a felony. It is punishable by up to five years on state prison. While I doubt that this case will be indicted Mullin is still facing a two and a half year jail sentence. He is also subject to incarceration for the Probation Violation. Moreover, he is probably looking at Community Parole Supervision for Life. This subjects Mullin to the jurisdiction of the parole board for life. This statute, M.G.L. c. 127 Section 133D treats the defendant as if he or she is on parole. The parole board establishes terms and conditions that the violator must adhere to. The parolee cannot file a petition to terminate for at least fifteen years. Then, termination can occur only with a vote of the majority of the parole board members. Termination proceedings require sex offender evaluations as well. Here is another aspect of the Massachusetts Lifetime Community Parole statute that can impact the offender. A violation of the conditions of parole require a thirty day jail sentence. a second violation results in a six month sentence and a third results in the parolee serving a year. If the violation is the result of another criminal offense then these sentence run from and after the sentence on the new criminal case.

Mullin has some significant criminal defense issues in front of him. Possible lifetime parole, an imminent jail sentence for his Probation Violation, the new case and answering to the warrants will keep his Massachusetts Criminal Lawyer busy for some time.

Sometimes in cases like this one enlisting an expert in the field of Sex Offenses can be helpful. Sex offender evaluations and sentencing recommendations often guide judges in ordering a sentence that addresses the offender’s issues, protects society and mitigates the length and conditions of the sentence. I have found this quite helpful on many occasions. Judges and prosecutors can be influenced by thorough professional evaluations and recommendations.

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Last week members of the Quincy, Massachusetts Police Department received a utility shutoff notice for 228 Norfolk Street. Shortly after noon the officers arrived at the residence to serve the notice. A man, Hao Vu, answered the door and quickly left the home. Officers immediately noticed a strong odor of Marijuana. They also felt heat coming from the cellar. The article further states that the officers saw Marijuana Plants and heat lamps used to grow the drug. Based on these observations the police left the home to get a Search Warrant. During the execution of the Search Warrant eighty one Marijuana plants were found. Shortly thereafter Hao Vu was found along with his wife Annie Vu. Both Annie and Hao Vu have been charged with Trafficking Marijuana. The case is now pending in the Quincy District Court but will likely be prosecuted in the Norfolk County Superior Court in Dedham, Massachusetts.

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Quincy, Massachusetts Marijuana Trafficking Defense Law Firm

Lawyers Who Defend Drug Crimes in Norfolk County Massachusetts, Quincy, Dedham

The first thing that catches my eye about this case is the actions of the police when they served the utility notice. While they may have smelled an overwhelming odor of Marijuana that in and of itself would not provide sufficient information for a magistrate or judge to issue a Search Warrant. I am sure what in fact prompted the issuance of the warrant was the observation of plants and grow lights. Yet how were the cops able to see these? Where is the basement door in relation to the front door? How big are the plants? The article also mentions that the officers felt heat when the door was opened. What was the heat bill this month compared to prior months?

Massachusetts case law makes clear that without a search warrant or exigent circumstances a search of someone’s property is illegal. Similarly, an illegal entry that results in observations that serve as a basis for probable cause in a search warrant affidavit requires suppression. As to challenges to search warrants, Massachusetts Appellate Courts have stated that the information obtained as a result of an unlawful entry must be excised from the search warrant affidavit. If, absent that information there still exists probable cause for the issuance of the warrant the search will stand. If not, suppression is ordered. In this case, depending on the content of the search warrant affidavit I can see several potential challenges to this search. The officers’ unlawful entry into the home, possibly dubious observations and uncorroborated suspicions might be applicable here.

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The Lawrence Eagle Tribune posted a couple of articles concerning Cameron Dambrosio, the eighteen year old Methuen, Massachusetts High School student accused of posting terroristic threats on his Facebook page. Apparently Dambrosio’s threats suggested that he wanted to kill people and engage in acts more significant than the recent marathon bombings. Dambrosio’s home was searched and an Xbox and a computer were seized. Due to the nature of some of the threats involving the federal government as targets the FBI was notified about the case.

The case was first brought to the attention of Methuen authorities by students at Methuen High School who saw the Facebook posts. Consequently the police were notified. The posts were characterized as “alarming”. Most of the threats were general. They were not directed towards anybody in particular. Bail was set in the amount of one million dollars. The case is currently pending in the Lawrence District Court where Dambrosio faces a felony charge of Communicating a Terrorist Threat.

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Lawrence, Massachusetts Violent Crime Criminal Defense Law Firm

Lawyers Who Defend Felony Crimes in Essex County Massachusetts

I imagine the statute under which Dambrosio is being prosecuted is Massachusetts General Laws Chapter 269 Section 14. The law as currently written was enacted in 2002, largely in response to the September 11, 2001 attacks. The portion of the law applicable to this case is subsection (c) which states that anyone who communicates a threat that causes serious public alarm is guilty of a felony. The punishment for a conviction of this offense is a minimum three year in state prison or a minimum six months in the county house of correction. If the case is prosecuted in the Superior Court there can be a maximum twenty year sentence imposed. Although this law is over ten years old there is only one case in Massachusetts interpreting this law and that case, Commonwealth v. Kern, 449 Mass. 641 (2007) focuses on a limited aspect of the statute. As a Massachusetts Criminal Lawyer one issue that may effect the direction of this case is the definition of the phrase “causing alarm” inherent in the statute. I find it somewhat amazing that with all the social media available to everybody today there is very little appellate litigation involving this statute.

What interests me most about this case is the blog comments posted beside the article in the Lawrence Eagle Tribune. Some suggest a First Amendment defense to this case. That is always an interesting defense to criminal cases. Rarely do lawyers use this type of defense. There are cases however and this might just be one of them where the right to free speech might be used successfully before a jury.

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An article in today’s Boston Globe discusses Judge Denise Casper’s first significant ruling in the James “Whitey” Bulger case, one that involves assuring the anonymity of a confidential informant. Bulger’s lawyers argued that one of FBI Agent John Gamel’s informants should be identified so that the defense can impeach government witness Kevin Weeks. Weeks previously stated under oath that he, Bulger and two others legitimately won a 1991 Mass Millions prize in excess of fourteen million dollars. The confidential informant who the defense wants to unmask has contradicted this claiming that the lottery money was not legitimately won but rather a money laundering scheme. Reasoning that there is no connection between the crimes charged and the lottery winnings the judge refused to order disclosure of the informant’s identity. She specifically wrote that “Contrary to Bulger’s argument, there is still reason to preserve the CI’s anonymity. The key consideration is not that there is no pending investigation or other law enforcement interest remaining in the underlying matter, but that the qualified privilege presumes confidentiality unless the burden to disclose such information is met … This assurance of anonymity is essential.”

So when if fact does Massachusetts require the informant’s identity to be disclosed? Like most jurisdictions, Massachusetts recognizes the government’s privilege not to disclose the identity of a confidential informant. The Massachusetts Courts endeavor to protect the safety of the informant by maintaining anonymity. The courts also acknowledge that the privilege helps the police in investigating criminal activity. The privilege however is not absolute. The standard for requiring disclosure in one of materiality particularly at the trial stage of the proceedings. Disclosure is often required where it bears on the issue of guilt or innocence. If the confidential informant participated in the crime charged disclosure will be ordered. Also, if the informant was a percipient witness to the crime alleged and is the only civilian witness disclosure will be ordered. In essence, a balancing test is done by the judge to see whether applying the privilege would result in an unfair trial for the defendant.

As a Massachusetts Criminal Lawyer I can certainly see why the defense would want this person’s identity disclosed. Weeks and several other government witnesses in this case cut deals that resulted in reduced jail sentences in exchange for their testimony. Naturally, attacking their credibility is a major consideration to the defense. The lottery matter is not irrelevant in the context of this case. The crimes charged go back more than three decade. They include money laundering, which is precisely what the confidential informant said the lottery winnings were about.

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According to a report in the Somerville, Massachusetts Patch, three Massachusetts residents were arrested last week on Drug Charges. Somerville Police were conducting a drug investigation during which they stopped a car they believed contained some Heroin. The stop occurred in the middle of the afternoon. Once the car was stopped, one of the occupants, Jesse Peloquin told the officers that the drugs were in her bra. She, along with Ryan Kanode and Marie Stefano were all charged with various Massachusetts Drug Crimes. Among the crimes were Conspiracy to Violate the Controlled Substances Act, Possession of Heroin, a Class A Drug, Distribution of Heroin and Knowingly Being Present Where Heroin is Kept. The cases are pending in the Somerville District Court.

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Somerville, Massachusetts Drug Defense Law Firm

Drug Distribution Defense Attorney in Massachusetts

Massachusetts General Laws Chapter 94C Section 35 makes the following acts a crime: 1) knowingly Being Present where Heroin is Kept or Knowingly Being in the Company of Someone who is in Possession of Heroin. This crime is a misdemeanor and it carries a maximum one year jail sentence. While this crime is often prosecuted in Massachusetts district attorneys often agree to dismiss the charge upon payment of court costs if the accused has no criminal record, and in particular no prior drug offenses.

Distribution of Heroin on the other hand is a felony in Massachusetts. The law prohibiting the behavior is M.G.L. c. 94C Section 32. There is a potential ten year prison sentence associated with this crime. However, these cases are usually prosecuted in the district court where a judge can sentence to no more than two and one half years. If the accused has a conviction for a similar offense then he or she can be charged under subparagraph (b) of this law which has a mandatory three and one half year state prison sentence for anyone convicted. Often however, an Experienced Massachusetts Criminal Lawyer can get the district attorney to agree to reduce the charges to something not requiring jail time.

So what are the possible defenses for the accused in this case? That depends on what the police claim to have seen. First, there may be a viable Motion to Suppress if the police conducted the stop, Search and Seizure in violation of the defendants’ constitutional rights. What did they in fact see that in their mind permitted them to search the car? After the stop, what evidence exists to show that any of the occupants went to Somerville to distribute drugs? The article seems to indicate that the three defendants drove to Somerville to buy drugs, not to sell them. What evidence do the police have to prove that Kanode and Stefano knew that Peloquin had Heroin in her bra? This article suggests that there are countless defenses available to these three that might result a positive resolution to this case.

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Richard Meltz of Massachusetts and Christopher Asch were arrested and charged with Conspiracy to kill and Rape women. Meltz is the chief of the Veterans Affairs Police. Authorities allege that the two men began their plan about a year ago. According to law enforcement, the two did more than simply plan their attack. They acquired materials to anesthetize women and accessed a Taser to subdue their targets. Apparently the defendants made electronic solicitations over the internet. One of the accused discussed Kidnapping and cannibalizing victims. He also elaborated on a plan to evade DNA detection.

The alleged details of the crime are quite graphic. During the period of the investigation, these two defendants and another engaged in electronic communications planning the kidnapping, torture and murder of women. This third individual used the internet in an attempt to solicit people to kill, kidnap and rape his wife and others. This third individual ultimately led law enforcement to Meltz and Asch. Following up on this information, in an undercover capacity the feds met with Asch. On one occasion Asch produced a bag full of devices intended for use in torturing and drugging his ultimate targets. These meetings along with telephone intercepts detailed plans to kill a particular target who was in fact another undercover agent. The defendant’s plan further included methods of disposing with the victim’s body and ways to avoid detection.

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Massachusetts Federal Sex Crimes Defense Law Firm

Kidnapping Defense Attorney in the Boston Area

The crime of Kidnapping is typically prosecuted by the state in which the crime is committed. Occasionally this crime is prosecuted in the Federal Courts primarily in those instances where the actual offense is the Conspiracy to Kidnap. One of the statutes proscribing this activity, 18 U.S.C. Section 956 authorizes a possible life sentence after a conviction. The Massachusetts Kidnapping law provides a maximum ten year prison sentence for anyone convicted of that offense. There are aggravated forms of the crime that permit a tougher sentence. For example, if a Firearm is used during the act the accused faces a ten year mandatory sentence. If serious bodily injury is inflicted during the commission of the crime the accused faces a twenty five year mandatory minimum sentence. The Massachusetts District Courts also have jurisdiction over kidnapping charges. If the case is prosecuted in that court there is a maximum two year house of correction sentence that can be imposed.

So how are Meltz and Asch going to defend against these allegations? A lot depends on the defendant’s ability to recall the conversations they had with undercover law enforcement that were not recorded. This, along with the motive of the co-conspirator who initially led the feds to Meltz and Asch will be critical to the defense.

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On April 3, 2013 eight firefighters responded to a call in Rowley, Massachusetts. A shed had burned down and reports stated that the fire was spreading. A couple of hours later everyone returned to the Rowley Fire Station. An argument between the fire chief and one of the firefighter’s followed. Apparently that argument became physical. The police investigated the matter and later that night an application for a criminal complaint was filed in the Newburyport District Court. The case has been scheduled for a Clerk Magistrate’s Hearing next week. The charges being sought are Assault and Battery.

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Newburyport, Massachusetts Assault and Battery Defense Law Firm

Violent Crimes Defense Attorney in Massachusetts

There is a process for the issuance of criminal complaints in Massachusetts that involve misdemeanors where the accused is not under arrest. The law establishing the procedure is Massachusetts General Laws Chapter 218 Section 35A. That law states that the accused shall be given the opportunity to be heard and to oppose the issuance of the complaint. The exception is where there is an imminent threat of bodily injury, flight or the commission of another crime. The Clerk Magistrate conducting the hearing weighs the evidence and makes the determination as to whether probable cause exists to believe that a crime was committed and that the accused is the person who committed the crime. Probable cause is the lowest standard in the criminal legal system in Massachusetts.

These proceedings, commonly known as Clerk’s Hearings, are limited in scope and for a complaint to issue either the victim or a police officer simply needs to lay out the allegations. There is no right to cross-examine witnesses at these hearings. Once a criminal application is filed by a civilian in Massachusetts a Clerk Magistrate must act on it. The finding of probable cause does not mean however that the Clerk Magistrate must issue the complaint. The clerk can refuse to issue a complaint. The clerk can hold the issuance of the complaint and afford the parties the opportunity to resolve the case without criminal court action. The clerk can continue the matter for a period of time with the understanding that a complaint will not issue provided the accused stays out of trouble or makes restitution. The function of the Clerk Magistrate in these matters is not only to make probable cause determinations but to screen out nuisance or petty cases to help keep the criminal courts running smoothly. Any Massachusetts Criminal Lawyer will tell you that the Clerk Magistrate Hearing is a wonderful opportunity to resolve a case without judicial intervention. This is where jobs, reputations and a person’s liberty can be saved without excessive cost, litigation or embarrassment. Good, experienced clerks know the value of a case and will always work hard to promote justice at its earliest stage. As a matter of fact, a significant number of clerk magistrates in Massachusetts are in fact lawyers and have practiced for years before their appointment.

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This past October Daniel Goichman of Southborough, Massachusetts was charged in the Westborough District Court on charges of Possession of Child Pornography. It is alleged that while online he solicited minors. His home was searched and a Search Warrant was also issued for his computer. Apparently the search of the computer provided evidence that Goichman had been distributing Child Pornography as well. Goichman has a conviction for Rape stemming from an out of state incident in 2001. Bail has been set in the amount of seventy thousand dollars. The case will be prosecuted in the Worcester Superior Court.

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Massachusetts Child Pornography Defense Law Firm

Worcester County Sex Crimes Lawyer, Rape, Child Abuse

Distribution of Child Pornography or Possession With the Intent to Distribute Child Pornography in Massachusetts is prohibited by Massachusetts General Laws Chapter 272 Section 29B(b). A conviction of this crime is a felony punishable by a minimum mandatory ten year prison sentence and as much as twenty years in jail.

As a Massachusetts Criminal Lawyer I have represented several people charged with Distribution of Child Pornography. Not one of these people actively disseminated the illicit material. Upon their arrest, all of these people were stunned to find out that they were facing lengthy mandatory prison sentences. They were also shocked to learn that their actions satisfied the element of distribution. After all, the only thing they did was download and view the material. They never actively distributed what these images and videos. How then could they be charged with distribution? Perhaps the case of United States v. Richardson best outlines the dangers of file sharing and the rationale for why peer to peer file sharing constitutes the act of distribution.

In Richardson law enforcement entered a p2p network in an undercover capacity. They found Child Pornography in one of the user’s accounts. The police downloaded the illicit material from this person’s account. The user was identified as the defendant and a Search Warrant was executed at his home. The search confirmed p2p activity. Richardson was convicted after a jury waived trial. Affirming the conviction the court reasoned that the structure of the p2p programs encourages file sharing. Users get a rating based on their contribution to the network. A higher rating facilitates downloading additional materials. Richardson argued that distributing equates with delivering. He claimed that he never actually transferred the Child Pornography to anyone. Rather, he only permitted entry into his computer. The court rejected this argument and held “that downloading images and videos containing child pornography from a peer-to-peer computer network and storing them in a shared folder accessible to other users on the network amounts to distribution.” This seems to be the consensus throughout the country.

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According to reports, David Minasian and Madonna Say, of Malden, Massachusetts and Lynn, Massachusetts respectively have both been charged with Sex Trafficking in the Massachusetts Federal Court in Boston. Authorities allege that in Chelsea Minasian met up with a fifteen year old female runaway who had recently left a treatment facility. Minasian offered the girl help. The three ultimately headed to Florida by car. On the way, Minasian gave the girl Marijuana, Alcohol and Drugs. He then offered the girl employment as a Prostitute. Minasian advertised the girl as an escort over the internet. Men in both Florida and Massachusetts responded to the ads. Minasian and Say have been charged with Sex Trafficking by Force, Fraud or Coercion and Sex Trafficking of a Child. The case is being prosecuted in the Massachusetts Federal District Court.

Massachusetts Sex Trafficking Defense Law Firm

Lawyers Who Defend Child Sex Trafficking Cases in Massachusetts

The defendants in this case were probably charged with a violation of 18 U.S.C. Section 1591; Sex Trafficking by Force, Fraud or Coercion. The statute states that anyone who transports someone, or receives a financial benefit from, or threatens or forces the person who is under the age of eighteen to engage in sex is guilty of this crime. The crime is a felony. If the victim is over the age of fourteen and under the age of eighteen the accused must serve a sentence of at least fifteen years in prison.

Laws like this one have been implemented by states throughout the country. In 2011, Massachusetts enacted a similar act. In essence, the Massachusetts legislation created a crime for Human Trafficking for Sexual Servitude. The law prohibits transporting, enticing or harboring another with purpose that that person engage in sexually explicit acts. A conviction for this offense in Massachusetts mandates five years in jail. There is a maximum twenty year sentence that can be imposed and fines of up to twenty five thousand dollars. Human Trafficking for Sexual Servitude that involves someone under the age of eighteen permits a judge to impose a life sentence after a conviction. The law proscribing this activity is Massachusetts General Laws Chapter 265 Section 50. All states now have enacted some sort of Human Trafficking law that is modeled in large part after the federal law under which Minasian and Say are being prosecuted.

Successful defenses to these cases are difficult to establish. Even if the victim lies about his or her age the accused cannot use that as a defense. In cases where the internet was used to advertise services, the victim’s image will serve as corroborative evidence for the prosecution, even if the victim chooses not to testify.

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The Massachusetts Supreme Judicial Court issued its opinion in four cases today all implicating the Massachusetts Marijuana Law. Three of these cases are discussed here. All three of these decisions found in favor of the defendants. The decisions effectively explain and perpetuate the spirit of Massachusetts General Laws Chapter 94C Section 32L making possession of less than one ounce of marijuana a civil offense.

In Commonwealth v. Pacheco, a state trooper was on patrol at night in a park in Lynn, Massachusetts. A sign in the park indicated that the park closed at dusk. The officer saw a car parked in a handicapped spot. When he approached he detected an odor of burnt Marijuana coming from the car. Several occupants of car admitted to smoking Marijuana and one stated that a small amount was left. Everyone in the car was ordered out. They were searched for weapons. A bag of Marijuana containing less than one ounce was found on the floor mat in the rear of the vehicle. The officer then searched the trunk of the car. He found a backpack which he opened. Inside he found a gun. The defendant admitted that the gun was his.

The Supreme Judicial Court held that the Search and Seizure was unlawful. In doing so it cited two other cases also decided today. In one case, Commonwealth v. Daniel, the Court stated that smelling freshly burnt marijuana coupled with Possession of less than one ounce of the drug by itself does not provide probable cause to believe that an amount of marijuana consistent with criminal activity is in the car. Daniel is an expansion of the Court’s decision in Commonwealth v. Cruz holding that the smell of burnt marijuana alone does not give rise to probable cause to search a car. Additionally, the Court ruled today in Commonwealth v. Jackson that “social sharing of marijuana” does not satisfy the element of Distribution of Marijuana.

As a Massachusetts Criminal Defense Lawyer I imagine that these cases will result in the dismissal of many pending Massachusetts Drug Cases. Since G.L. 94C Section 32L was passed many lawyers warned their clients that sharing a joint with a friend might be considered a crime and that being caught engaging in that conduct would, at a minimum result in an arrest. The open and public use of marijuana has become significantly noticeable since the passage of this act. It is not uncommon to smell burnt marijuana or to see people smoking marijuana in Boston during work hours.

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