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The Quincy Patriot Ledger reports that Andrew Mullen, 26 of Quincy has been arrested and charged with rape in the Quincy District Court in connection with his hiring of an escort on Christmas day.  Apparently the man called the woman who arrived at Mullen’s home late Christmas day.  There was an agreement for specified services.  At approximately 3:30 a.m. the woman called the police and reported that she had been raped.  The woman denied being a prostitute.  According to the newspaper article, the police “are still looking into the circumstances because some statements from the alleged victim were inconsistent with the situation police encountered.” 

Read Article, Quincy Patriot Ledger January 13, 2009. 

Rape is a felony in accordance with Massachusetts General Laws Chapter 265 Section 22.  The crime is punishable by up to 20 years in state prison or as much as life in prison if serious bodily injury results from the defendant’s actions.  Ultimately the crime of rape is prosecuted in the Superior Courts, not the District Courts. 

A few questions of a factual nature come to mind when looking at this case.  First, what is meant by the word “escort”.  Second, what were the terms of the agreement.  Third, what were the results of the rape kit prepared at the hospital.  Fourth, what is inconsistent between the statements the woman made and the situation the police encountered.  Fifth, if in fact the allegations are still being investigated why was the defendant charged so quickly.  Sixth, how did the defendant know how to contact the woman. 

From a legal prospective this case has an interesting twist.  Typically, you are not allowed to introduce evidence of a victim’s sexual conduct as part of your defense in a sexual assault or rape case.  An exception to this rule involves evidence of the victim’s sexual conduct with the defendant.  The law that is known as the Massachusetts Rape Shield Law.  To introduce such information at trial you must file a written motion that the judge will hear outside the presence of the jury. 

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According to Lee Hammel of the Worcester Telegram and Gazette a federal grand jury has indicted a Massachusetts man on charges of falsifying records in a federal investigation, altering and falsifying records in a federal investigation, wire fraud, making false statements, and the theft of honest services from the National Guard and DEA.  It is alleged that the 40 year old man, Earl Hoffman from Lowell used federal resources to harass a former girlfriend.  Hoffman was employed by the Massachusetts National Guard’s counter-drug program.  His subsequent assignment to a DEA related task force had him analyzing and collecting data for the task force in drug related criminal investigations.  The assignment provided Hoffman access to a computer database containing sensitive information. 

According to the article the prosecution is alleging the following facts:

1.  On May 25, 2007 Hoffman used a DEA computer in Worcester to obtain driver’s license records of a woman with whom he had an intimate relationship.  The relationship had ended badly years earlier.

2.  Hoffman got the woman’s driver’s license information, photograph and criminal records.

3.  Purporting to be the woman’s new boyfriend, Hoffman emailed the woman’s license picture along with an insult to the woman’s teenage son.  He also sent the son a pornographic photograph. 

4.  Hoffman faxed a DEA subpoena to a telephone company to get the woman’s phone records from when they were together.

Once the investigation began Hoffman told the DEA supervisor that he had requested the woman’s information because her telephone number had been linked to a pending investigation.  He further stated that a supervisor asked him to subpoena the telephone records.  Hoffman stated that the information was requested for official purposes. 

The prosecution has charged Hoffman with violating the Driver’s Privacy Protection Act.  This is the first known criminal charge under this act.   

The Driver’s Privacy Protection Act is codified in 18 U.S.C. Section 2721.  The law prohibits anyone with lawful access to personal information from motor vehicle records from disclosing that material to anyone else.  The law also makes it illegal to obtain this information without a lawfully designated purpose or to make a false representation to obtain this data.  18 U.S.C. Section 2723 states that a conviction of this crime carries a fine.  The other crimes with which Hoffman has been charged carry significantly more severe penalties.  This law was enacted in 1994 in response to the murder of actor Rebecca Shaeffer who was killed by someone who obtained her information from the California Department of Motor Vehicles. 

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Boston.com reported that a 29 year old Abington School teacher has been charged in the Brockton Court with statutory rape for having had intercourse with a 13 year old boy over three hundred times in the past eighteen months.  Read article, Boston.com, January 9, 2009.  The first act of rape occurred on February 7, 2006.  This was followed up by continuous acts occurring almost every other day.  According to reports the teacher, Christine McCallum gave the boy a cell phone and wrote him letters suggestive of a her being obsessed with the victim.  Prosecutors have charged McCallum with seven counts of statutory rape.  The defendant was released however she has been ordered to wear a GPS monitoring device.  Related charges are also pending in the Hingham District Court.  During the arraignment and bail hearing defense counsel argued that the prosecution lacked evidence of the crime and offered that the McCallum had become “like a surrogate mother” to the victim.  The allegations of statutory rape were denied.  The victim is now sixteen years old. 

Statutory rape is a crime in accordance with Massachusetts General Laws Chapter 265 Section 23.  The law states that anyone having sexual intercourse or unnatural sexual intercourse with someone under the age of sixteen shall be punished.  There is a maximum sentence of life in prison upon a conviction for this offense. 

This crime is not uncommon.  Just a few weeks ago something similar happened in Walpole, Massachusetts when the football coach and athletic director, former New England Patriot Danny Villa was charged with the statutory rape of a 15 year old student.  School Teacher News reports 480 incidents of inappropriate sexual conduct between students and teachers just this year alone.  See www.schoolteachernews.com scandal page or click on the following link: http://www.schoolteachernews.com/scandal2008.html. 

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Two Massachusetts men were charged with larceny over $250, receiving stolen property, credit card theft and credit fraud after getting arrested in a stolen car.  The men, Barry Sylvester of Pembroke and Daniel Meehan of Dorchester stand accused of stealing a Department of Recreation and Conservation truck from a parking lot in Dorchester on New Year’s Eve.  It is also alleged that the two used a stolen credit card to purchase power tools.  A state trooper who observed the vehicle heading southbound or Route 3 made a call.  The defendants were spotted at an Exxon Station in Plymouth, Massachusetts at about 3:00 p.m. last Friday.  Plymouth Police confronted the men and made arrests.  Read full story, Brockton Enterprise January 5, 2008. 
 
A likley breakdown of the charges is as follows:
 
1.  Credit Card Fraud.  The Massachusetts credit card fraud statute is Massachusetts General Laws Chapter 266 Section 37C.  This law makes it a crime to fraudulently use a credit card.  Massachusetts case law suggests that there must be testimony from the true cardholder that the defendant was using it without his consent.  Evidence that defendant identified himself as the cardholder to sales associate was insufficient to support inference that defendant obtained the credit card without cardholder’s consent.  There is a maximum sentence of 5 years in prison if convicted of this crime in the Superior Court or up to 2 1/2 years in the house of correction if the case is kept in the District Court.
 
2.  Receiving Stolen Property.  This crime is proscribed by Massachusetts General Laws Chapter 266 Section 60.  This statute makes it a crime to buy, receive or aid in the concealment of stolen property.  To convict someone of this crime the prosecution must prove beyond a reasonable doubt that the property in question was stolen, that the defendant knew that the property was stolen and that the defendant knowingly kept the property in his possession.  In all likelihood this charge pertains to the stolen tools since receiving a stolen motor vehicle is a separate crime as is larceny of a motor vehicle. 
 
3.  Receiving Stolen Motor Vehicle.  This is a crime in accordance with Massachusetts General Laws Chapter 266 Section 28.  This law states that anyone who is in possession of a motor vehicle knowing the same to be stolen is guilty of a crime.  A conviction under this statute is punishable by up to 15 years in prison. 

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Hosea Richardson, 33 of Newton, Massachusetts was wanted by police for charges of domestic violence in the West Roxbury District Court.  Last week the hunt for Richardson ended peacefully when he surrendered to Boston Police.  Authorities alleged that Richardson had beaten a female in her West Roxbury home after spending a night dancing at a local nightclub.  Richardson fled and allegedly called his mother who lived in Newton to pick him up at a parking lot in Dedham.  The next day Richardson called the police and told them he was going to the hospital where the victim was being treated to get into a confrontation with the police and the victim.  Police feared that Richardson, who had confessed that he was not afraid of being killed by police, would initiate an incident that could result in a physical conflict.  Ultimately the police located Richardson who surrendered peacefully.  He is being held pending a psychiatric evaluation and to answer on domestic violence charges along with other unrelated pending matters. 

Domestic violence occurs when a partner or a family member attempts to dominate another either physically or emotionally.  This typically occurs between husbands and wives, or partners in a dating relationship.  Both men and women can be the victim of domestic violence.  Domestic violence can take on many forms.  Physical abuse and sexual abuse are the most common but psychological abuse or intimidation are also well known forms. 

In Massachusetts domestic violence is governed by Massachusetts General Laws Chapter 209A.  That law provides that anyone who is being abused by a family member or a household member may apply for a restraining order.  The restraining order can require no abuse, or that the person against whom the order issues refrain from contacting the victim or even that that person vacate the home.  Abuse in Massachusetts for the purpose of the statute is an attempt to cause or the actual causing of physical harm, placing another in fear of imminent serious physical harm of causing another to engage in involuntary sexual relations by force or threats or duress.  Household members are considered people who are or were married to one another, are or were residing in the same household, are or were related by marriage, have a child in common or are or have been in a substantive dating or engagement relationship. 

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Jessica Fargen of the Boston Herald reported that former New England Patriot and Walpole football coach and athletic director who has been charged with rape of a child has had his bail reduced from $100,000 to $7,500 by a Norfolk County Superior Court judge.  Last week Daniel Villa was charged with raping a 15 year old student.  He resigned as teacher, football coach and athletic director.  Prosecutors allege that Villa once coached the 15 year old student athlete and that romantic involvement commenced in October.  The relationship ended in December when the girl’s father found text messages between Villa and his daughter.  Apparently Villa texted the student over 500 times in a one month period.  If Villa is able to post bail he will be required to wear a GPS monitoring device.  Once released Villa cannot have contact with the alleged victim or her family, or contact with anyone younger than 16, except his own children, and no contact with Walpole schools. 

The day that Villa was arraigned in the Wrentham District Court on these charges his wife Joanne filed for divorce.  The couple have been married for 18 years and have 4 children.  Joanne Villa is seeking possession of the home, custody of the children and to resume her maiden name. 

Danny Villa played 12 seasons in the NFL.  His first 5 were spent with the New England Patriots, then he played for the Phoenix Cardinals.  He played the 4 seasons with the Kansas City Chiefs followed by another year in New England.  He finished his career in 1998 with the Carolina Panthers.  Villa played in 157 professional football games. 

Villa has probably been charged with rape of a child in violation of Massachusetts General Laws Chapter 265 Section 23.  That law states that anyone who has sexual intercourse or unnatural sexual intercourse, and abuses a child under 16 years of age, shall be punished by imprisonment in the state prison for life or for any term of years or, or any term in a jail or house of correction. These types of cases cannot be continued without a finding.  This crime is also known as statutory rape.  Consent is not a defense to these charges.  To convict someone of these charges the prosecution must prove beyond a reasonable doubt that the defendant engaged in sexual intercourse or unnatural intercourse with someone under the age of 16.  In Massachusetts the law states that once a person reaches the age of 16 he or she can consent to having sexual relations.  Unnatural sexual intercourse is defined in Massachusetts as including oral and anal intercourse, fellatio, cunnilingus, and other intrusions of a part of a person’s body or other object into the genital or anal opening of another person’s body. 

Crimes such as this are very difficult to defend due to the fact that consent is not a defense.  The absence of a sexual act is a defense and one that is most frequently asserted when these cases go to trial.  However, corroborating evidence in the form of admissions through text messages or clothing with traces of semen or DNA make acquittals more unlikely.  Typically defendants in Villa’s situation plead guilty and hope that the judge who imposes sentence acts reasonably and/or that the district attorney’s office makes a reasonable recommendation for disposition. <!– This following tag is for the wrapper –>

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The Lynn Item reports today that a 28 year old Peabody man was arrested for drunk driving, fourth offense.  The defendant, Robert Farley was held without bail pending a dangerousness hearing.  It is alleged that Farley was driving 79 mph on Route 1 at 1:30 a.m.  Police followed the car watching it weave between lanes and around cars without signaling.  Once the police activated their lights Farley slowed but failed to stop for a lengthy distance.  Once stopped the defendant appeared unsteady on his feet and swayed from side to side falling backwards towards the hood of his car.  Police located an open container of alcohol and several empty beer cans in the car.  Farley was in possession of illegal prescription drugs and was operating without a license or registration in his possession.  Nearly 3 hours after his arrest Farley asked a trooper if he believed that he was still drunk.  The trooper conducted several field sobriety tests at that time and related in essence that four of six administered had been failed.  A police report indicated that the suspect had to be told five different times in the course of two minutes the location of where his car had been towed.  Read Article, Lynn Item, December 30, 2008. 

So how much trouble is Farley in?  Well first, he is being held without bail pending a hearing on dangerousness.  Dangerousness is governed by Massachusetts General Laws Chapter 276 Section 58A.  That statute permits the prosecution to move a judge to detain an individual pending trial.  The judge must hold the suspect in custody until a hearing can be scheduled.  The statute permits the prosecution 3 days to prepare for the hearing.  This means that if the prosecutor wants to move for detention based on dangerousness and they are not ready to proceed with a hearing the judge, upon their request, must hold you for as many as 3 days if this is the time necessary for the prosecution to prepare for the hearing.  It appears that the prosecution is afraid that Farley, given his criminal history and relative youth is a risk to the public and that incarceration is in the community’s best interest while his case is pending.  After the hearing the judge can impose virtually limitless terms for release, or he may simply decide to detain Farley pending trial. 

This however is only the beginning for Farley.  He must also defend the 4th offense drunk driving charges.  If convicted of a 4th offense OUI you must serve at least 1 year in jail.  There is a potential 5 year prison sentence if the case is indicted and tried in the superior court.  There is also a 10 year loss of license and a hardship license will not be an option for at least 5 years and for up to 8 years. 

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Fox News reported that Marc Bellino, a 26 year old Braintree, Massachusetts was arrested and charged with drug and weapons offenses.  Charges are pending in the Quincy District Court.  According to reports police received information that there was a problem at 11 Zana Park Drive, the address where Bellino lived with his parents.  When police entered the premises they located white powder consistent with cocaine and related drug distribution paraphernalia including a scale and razor.  Authorities further allege that Bellino admitted to having more drugs in the house along with a sawed-off shotgun, some handguns and an assault rifle.  Serial numbers were obliterated from the firearms and Bellino did not have licenses to possess the weapons. 

So what are the possible charges Bellino faces?  First is the cocaine.  If the quantity totals less than 14 grams he can be charged with possession with the intent to distribute cocaine.  This would be a violation of Massachusetts General Laws Chapter 94C Section 32A.  To convict Bellino of these charges the prosecution will have to proved beyond a reasonable doubt that he possessed a certain amount of cocaine and that he did so with the intent to distribute the cocaine rather than keep it for personal use.  The prosecution will likely use the scale and firearms as evidence to show that Bellino was in the business of distributing cocaine.  If convicted and he has no prior convictions for this offense, Bellino can be sentenced to up to 2 1/2 years if the case is prosecuted in the district court or up to 10 years if the case gets indicted to the superior court. 

The possible firearms charges are possession of a firearm in violation of Massachusetts General Laws Chapter 269 Section 10.  Of particular not is the sawed-off shotgun.  If the case remains in the district court a conviction carries a minimum mandatory 18 months in the house of correction.  If indicted to the superior court there is a minimum mandatory 2 1/2 year state prison sentence.  More importantly, this charge carries a possible life sentence. 

Possession of drug paraphernalia is a misdemeanor punishable by up to 2 years in jail.  It is a violation of Massachusetts General Laws Chapter 94C Section 32I to possess such materials.  In this case, the razor and electronic scale are alleged to by the prohibited paraphernalia.  The sentences in this case can be consecutive whether or not the case is resolved in the district court or the superior court. 

Possible defenses in this case involve the legality of the entry to Bellino’s house.  It does not appear that the police had a warrant nor is there any indication that some sort of emergency preceded the entry.  Typically in cases such as this motions to suppress are filed.  If allowed, much if not all of the evidence is excluded from trial.  Oftentimes this results in a dismissal of the case due to the fact that the prosecution is unable to proceed with its case.

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Rarely does the prosecution have the right to appeal from a jury verdict.  However, in Commonwealth v. Dery, Slip Opinion December 23, 2008 it looks like the prosecution did just that – – and lost its case in the process. 

The defendant Zachary Dery was tried on September 13, 2007 for OUI and other traffic matters.  The impanelment process commenced and due to the parties striking prospective jurors the panel was reduced to 5 members.  The judge told the defendant that he could proceed with 5 jurors.  The defendant consented to trial in that manner freely and willingly.  No written waiver was filed and the prosecution never lodged an objection to this process.  The defendant’s gamble paid off and he was acquitted of the OUI charges.  

For some reason, not explained in the Court’s opinion the Commonwealth tried to have the case restored to the trial list claiming that 5 jurors cannot legally decide the case and that the defendant never signed a jury waiver in accordance with Massachusetts Rule of Criminal Procedure 19(b).  The trial judge refused to allow the prosecution to retry the case and an appeal followed. 

As to the constitutional argument, the Supreme Judicial Court held that a trial by a jury of less than six jurors survives constitutional scrutiny provided the defendant consents to this procedure.  Contrary to the position of the prosecution, a five person jury trial is not a nullity.  In another case also decided today that sentiment was explained.  See Commonwealth v. Nicoll, Slip Opinion December 23, 2008.  As to the failure to sign the jury waiver pursuant to Massachusetts Rule of Criminal Procedure 19(b) the Court held that the prosecution’s failure to object at the time of the waiver resulted in a forfeiture of its rights and that Rule 19(b) serves as a safeguard for the benefit of a criminal defendant.  In addition, in this case Rule 19(b) might not have been applicable in that jeopardy, which is a prerequisite for Rule 19(b) had not yet attached. 

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A 38 year old Newton man has been charged with soliciting payments from a developer in exchange for relaxing permit and inspection requirements.  The defendant, Paul Camilli faces charges of bribery in the Concord District Court.  A Middlesex County District Attorney press release said that Camilli was arraigned today on one count of a public employee accepting or receiving a bribe.  The private developer began a construction project in Maynard earlier this year.  The defendant is the Maynard superintendent of public works.  Apparently Camilli was making life difficult for the developer.  The developer asked what would get the project done.  Camilli responded that he was looking for cash.  Ultimately the developer paid thousands of dollars to get the necessary approvals.  The investigation was conducted with undercover law enforcement officials and surveillance videos.  Bail in the amount of $1,000 was imposed.  See Waltham Daily News, December 21, 2008.  See also Middlesex District Attorney press release December 22, 2008. 

Most likely Camilli was charged with violating Massachusetts General Laws Chapter 268A Section 2.  Subsection (b) of that law makes it a crime for any county, state or municipal employee to ask for or receive, directly or indirectly anything of value in return for 1) being influenced in his official capacity, 2) being influenced to commit a fraud on the state, municipality or county or 3) being induced to commit or omit acts in violation of his or her official duty.  A conviction for this offense carries a potential 3 year prison sentence and a $5,000 fine. 

This statute focuses on hindering the potential for the undermining of official integrity.  Even though the statute targets public officials, private citizens can be convicted if it is shown that they acted as an agent of the public official.  For instance, someone who acts as a “bag man’ for a public official can be convicted under this statute.  It is no defense that the bribe was not accepted. 

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