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gavel-1238036The United States Supreme Court recently reversed a judgment of the Sixth Circuit in Honeycutt v. United States. In the decision, the United States Supreme Court ruled that under 21 U.S.C. §853(a)(1), which mandates forfeiture of property derived from certain drug crimes under federal law, “a defendant may [not] be held jointly and severally liable for property that his co-conspirator derived from the crime but that the defendant himself did not acquire.”

The background was as follows. “Terry Michael Honeycutt [the petitioner here] managed sales and inventory for a … hardware store owned by his brother, Tony Honeycutt. After observing several “‘edgy looking folks’” purchasing an iodine-based water-purification product known as Polar Pure, Terry Honeycutt contacted the [police] to inquire whether the iodine crystals in the product could be used to manufacture methamphetamine…. An officer confirmed that individuals were using Polar Pure for this purpose and advised [Terry] to cease selling it if the sales made [him] ‘uncomfortable.’…. Notwithstanding the officer’s advice, the store continued to sell large quantities of Polar Pure. Although each bottle of Polar Pure contained enough iodine to purify 500 gallons of water, and despite the fact that most people have no legitimate use for the product in large quantities, the brothers sold as many as 12 bottles in a single transaction to a single customer. Over a 3-year period, the store grossed roughly $400,000 from the sale of more than 20,000 bottles of Polar Pure…. [T]hese sales prompted an investigation” that led to the indictment of “the Honeycutt brothers for various federal crimes relating to their sale of iodine while knowing or having reason to believe it would be used to manufacture methamphetamine.” In addition, “the Government sought forfeiture money judgments against each brother in the amount of $269,751.98, which represented the hardware store’s profits from the sale of Polar Pure. Tony Honeycutt pleaded guilty and agreed to forfeit $200,000. Terry went to trial” and was convicted on numerous counts. “The [federal] District Court sentenced Terry … to 60 months in prison. Despite conceding that Terry had no ‘controlling interest in the store’ and ‘did not stand to benefit personally,’ the Government insisted that the District Court ‘hold [him] jointly liable for the profit from the illegal sales.’…. The Government thus sought a money judgment [against Terry] of $69,751.98, the amount of the conspiracy profits outstanding after Tony[’s] … forfeiture payment. The District Court declined to enter a forfeiture judgment, reasoning that [Terry] was a salaried employee who had not personally received any profits from the iodine sales…. [T]he Sixth Circuit reversed,” opining that the brothers were jointly and severally liable for the proceeds of their crimes and, therefore, “that each brother bore full responsibility for the entire forfeiture judgment.” Terry sought certiorari. Continue reading →

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booze-1481628-300x225In a recent decision, Commonwealth v. Dayton, the Supreme Judicial Court responded to a reported question: whether, under G.L. c.276, §58A, a defendant who is charged with OUI third offense, must have three prior OUI convictions before he can be subjected to pretrial detention without bail under the statute.

The background was as follows. “[T]he defendant … was charged in the Superior Court with [several] motor vehicle violations, including two indictments for OUI, third offense…. Each OUI indictment alleged that [the defendant] had been convicted of OUI twice before — in 1988 and in 1989. The Commonwealth moved for a dangerousness hearing pursuant to §58A. This statute specifically allows the Commonwealth to move for a “dangerousness hearing” where a defendant is held “under arrest” and charged with a felony that involves, among other qualifying factors, a third or subsequent conviction for a violation of section 24 of chapter 90 – the OUI statute. During the hearing, the court must make a determination as to whether the defendant is in fact “dangerous” under the statute – i.e., that no conditions of release will reasonably assure the safety of any other person or the community. In the event that the defendant is found to be dangerous, the court may elect to release him with certain conditions. Alternatively, the court may determine that even the imposition of conditions would be insufficient to ensure the safety of another person or the community, and therefore order the defendant to be held without bail for up to 120 days. Continue reading →

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big-brother-is-wa-1550805-300x225In a recent decision, Commonwealth v. Connolly, the Appeals Court ruled that testimony from a police officer describing a video that he watched, but that the Commonwealth failed to produce in discovery, should not have been admitted.  In reversing the defendant’s conviction of assault and battery under G. L. c. 265, § 13A, the Court ruled that the Commonwealth (1) failed to authenticate the contents of the videotape and (2) failed to lay a sufficient foundation for admission of the officer’s identification testimony.

The background was as follows. “[S]ome sort of incident occurred between the defendant and the victim [a woman named White] at an apartment building.” Officer Giardina was dispatched to the scene of the incident “where he spoke with both White and the defendant. He observed that White was ‘elderly.’…. The defendant told the officer that he had been in the community bathroom … and accidentally bumped White over when he opened the bathroom door. The officer did not arrest the defendant because ‘it appeared that it was an accident.’ About a month later, … Giardina returned to the apartment building and spoke again with the defendant. This time, the defendant admitted that he and White ‘had a small argument’ before going their separate ways. The defendant also admitted that he made contact with White twice: first, when he knocked her over with the bathroom door, and second, when he bumped into her in the hallway. According to the defendant’s description of this second incident, after he ‘walked down the hallway and came back,’ he ‘was turned around looking away from [White]’ when ‘she came up behind him’; at that point he ‘quickly turned around,’ ‘didn’t realize she was there,’ and ‘just threw his hands up to stop her and knocked her down.’ That same day, … Giardina met with [a man name] Crouse, who he ‘believe[d] … was one of the building supervisors.’ The officer testified, over the defendant’s objection, that Crouse showed him ‘video of the incident.’ [Giardina] then described the contents of the video, again over the defendant’s objection, as follows: ‘In the video you can see Mrs. White going to the bathroom door. The door swings open. You see Mrs. White go into the bathroom and then she comes out from the bathroom and you also see Mr. Connolly come out from the bathroom. They go their separate ways…. Mr. Connolly was walking away from the bathroom. Mrs. White was still by the bathroom door…. [I]t appears that they’re having some sort of shouting match. And then Mr. Connolly walks back towards Mrs. White and shoves her to the ground.’” In his appeal, the defendant argued “that the officer’s testimony should not have been admitted [1] because the Commonwealth failed to authenticate the video; and [2] [because] the officer’s identifications of the defendant and White constituted inadmissible lay opinion testimony.” Continue reading →

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jail-1211438-200x300The Supreme Judicial Court recently issued a decision – Commonwealth v. Lydon – clarifying the trial court’s authority to award jail credit to defendants.  In the decision, the Court vacated the judge’s “order denying [the defendant’s] motion for credit for time being served in a house of correction for one set of offenses, while he was awaiting trial and sentencing in the Superior Court on a second, unrelated set of offenses.”

The background was as follows. “While the defendant was on probation for various drug offenses (Roxbury charges), he was arrested and arraigned in the District Court for three new robbery offenses, for which he later was indicted and arraigned in the Superior Court (Dorchester charges). About five weeks after his arrest on the Dorchester charges, the defendant stipulated to violation of the conditions of his probation, was sentenced on the Roxbury charges, and began serving a six-month committed sentence in the house of correction. One hundred and thirty-two days later (while he was serving the Roxbury sentence), he pleaded guilty to the Dorchester charges, and was given a committed sentence to State prison ‘forthwith and notwithstanding’ the Roxbury sentence. The sentencing judge credited against the Dorchester sentence the thirty-six days the defendant had been held before sentencing on the Roxbury charges, but denied the defendant’s motion for additional credit for the 132 days he already had served on the existing Roxbury sentence. The defendant [did] not argue that he was entitled as of right to a 132-day jail credit on the Dorchester sentence. Instead, his claim [was] that a judge has discretion to authorize such credit in these circumstances for two reasons: first, under Commonwealth v. Ridge, 470 Mass. 1024, 1025 (2015), a judge has discretion to award jail credit directly; and, second, a judge has discretion to effectively authorize a credit by imposing a concurrent sentence in a separate case nunc pro tunc to the commencement of the prior sentence.” Continue reading →

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calendar-1568148-300x199In Commonwealth v. Davis, the Appeals Court affirmed the allowance of the defendant’s motion to dismiss under Mass.R.Crim.P. 36(b). This rule of criminal procedure addresses a defendant’s right to a speedy trial and allows for a dismissal of the charges where a defendant is not brought to trial within one year after his arraignment, not including any “excludable” time – i.e., any period of delay resulting from justifiable delays or agreed upon continuances, as laid out under the rule. The decision was based on the fact that the defendant was not brought to trial within the requisite one-year time frame, and the Commonwealth failed to demonstrate that the delay was justified. The main focus of the decision was the justification for various “continuances contributing to the delay of the defendant’s trial.” Four of the continuances, “accounting for 268 days, [were] attributable to what the parties agree[d] was court congestion. The occasion of each of these four delays was a lack of any or a sufficient number of jurors, but the length of the delays was also due at least in part to the court’s calendar constraints…. The defendant objected to each of these delays and the motion judge found that these 268 days [were] attributable to the Commonwealth.” Continue reading →

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gavel-2-1236453-300x200The Supreme Judicial Court recently issued a decision in a petition filed under G. L. c.211, §3, ruling that the public defender’s office, not judges, have the independent authority to decide who represents indigdent defendants in court. In the decision – Deputy Chief Counsel for the Public Defender Division of CPCS v. Acting First Justice of The Lowell District Court – the SJC “affirm[ed] CPCS’s independent authority under G. L. c.211D [and S.J.C. Rule 3:10] to select and supervise attorneys for indigent defendants in the pilot program it had launched in the drug court session of the Lowell Division of the District Court Department (drug court).”

The background was as follows. Drug courts have been developed to provide the option of treatment as an alternative sentencing option “in cases where the underlying criminal behavior is thought to be motivated by a defendant’s substance abuse.” The “drug court model … favors a collaborative and nonadversarial approach to supervision of the drug court defendant.” “A judge is the leader of the drug court team,” which includes clinicians and treatment providers. Ordinarily, “[d]efense counsel has no formal role in the drug court sessions because in the post-adjudicative setting, the drug court defendant has no right to counsel. However, if a drug court defendant is issued a probation violation notice, defense counsel is appointed.” “In July, 2015, CPCS initiated a drug court pilot program (pilot), which, in a departure from [the usual] policy, permitted the assignment of counsel to indigent drug court defendants for every stage of the drug court proceedings.” “The impetus for the pilot” was the idea “that a drug court defendant’s likelihood of success in substance abuse treatment would be enhanced if defense counsel gained expertise in addiction issues and was familiar with the team’s view of the defendant’s participation. This pilot innovation permitted assigned counsel to participate in drug court ‘staffings’ [planning sessions] which ordinarily would not involve the presence of appointed counsel.” In September, 2015, “a disagreement between the Justice [of the drug court] and CPCS attorneys surfaced … in an incident involving one of the CPCS attorneys chosen to participate in the pilot…. [T]he upshot was that the Justice” determined “that this attorney would not be permitted to represent probationers in the drug court…. Eventually the Justice announced a categorical ban on CPCS attorneys in the drug court, effectively terminating the drug court pilot…. [The Justice] expressed the belief that CPCS attorneys in the Lowell office were ‘extremely hostile’ to the drug court mission and that they refused to ‘participate fully’ as team members.” In response to the judge’s actions, CPCS filed its c.211, §3, petition, “argu[ing] that under … c.211D and S.J.C. Rule 3:10, … CPCS has independent authority to assign counsel to indigent criminal defendants and that a judge may not remove assigned counsel without notice and the opportunity to be heard, or categorically exclude CPCS attorneys from assignments in the drug court.” The single justice reported the matter to the full SJC. Continue reading →

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school-bus-1431472-300x178The Appeals Court recently issued a decision – Commonwealth v. Cooper – clarifying what clarifies as an “accredited” preschool for the purposes of G. L. c. 94C, § 32J, the school zone statute. The defendant was convicted of drug distribution of a class E substance, in a school zone. In its decision, the Appeals Court ruled (1) that the evidence was sufficient to establish that the pills seized from the defendant at the time of his arrest were a class E substance (gabapentin); and (2) that the evidence was insufficient to establish “that the school furnishing the basis for [the defendant’s] school zone violation was an ‘accredited private preschool’ within the meaning of [G.L. c.94C,] §32J.”

The background was as follows. Undercover police officer “Munro told the defendant that she was looking to buy drugs” and the defendant told Munro that he had a prescription for a medication called gabapentin (a class E substance). Munro and the defendant made arrangements to meet for a sale at a restaurant. There, “Munro watched as the defendant removed yellow pills from a prescription bottle and placed them in a plastic bag. The defendant then handed the pills to Munro underneath the table at which they were seated, and Munro handed him the agreed-upon payment in exchange. Following the exchange, the defendant cautioned Munro to be careful when taking the pills, and not to consume more than five pills at once. He further explained that the pills were 300 milligram, quick-release capsules. During their conversation, Munro observed the defendant holding a prescription pill bottle, and saw the defendant’s name on the label.” In due course, “[t]he pills … were sent to the State police drug laboratory and examined by [a] chemist” who “determined that [they] were all the same color, appearance, and size, and [that] each bore the marking ‘G5027.’ Based on her examination … and after consulting reference materials maintained in the laboratory concerning the markings of prescription medications, [the chemist] concluded that [the capsules] contained gabapentin.” Regarding the school zone charge, there was evidence that the restaurant where the drug sale occurred was “located within 300 feet of the Bright Horizon Children’s Center,” a private preschool “licensed by the Department of Early Education and Care, as required for it to operate in Massachusetts.” On appeal from his conviction of possession of gabapentin in a school zone, the defendant argued (1) “that the Commonwealth’s failure to present evidence of a chemical analysis of the substance [in question] left the jury to speculate whether [it] was gabapentin”; and (2) that the fact that the Bright Horizon Children’s Center was licensed did not necessarily mean that it was “accredited” within the meaning of c.94C, §32J. Continue reading →

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balance-1172786-300x204In a recent Supreme Judicial Court decision – Commonwealth v. Garvey – the SJC In affirmed the dismissal of the habitual offender portions of the defendant’s indictments and, in the process, clarified subsection (a) of the statute. In the decision, the SJC specifically ruled that that in order to procure enhanced sentencing of a defendant under the habitual offender statute (G.L. c.279, §25[a]), the Commonwealth must prove that the requisite prior convictions with qualifying sentences arose “from separate incidents or episodes of criminal behavior.”

The background was as follows. “After returning eight indictments relating to the charged drug crimes, the grand jury received evidence concerning the defendant’s prior convictions, which the prosecutor introduced to establish probable cause for enhanced penalties to be available in relation to these drug offenses. In particular, the grand jury heard that on March 13, 2002, the defendant was convicted of four offenses, each described in a separate count of a single indictment, and was sentenced to at least three years in State prison on each offense…. The grand jurors did not, however, hear any evidence as to when these offenses occurred. The grand jury also heard that on December 5, 2002, the defendant was convicted of distribution of a class B substance and conspiracy to violate the controlled substance act, but they did not hear any testimony related to sentencing on those offenses.” “The defendant moved to dismiss the habitual offender portions of the indictments, arguing that the grand jury heard no evidence that his four underlying 2002 convictions arose from different criminal episodes. [The] judge allowed the motion in a margin endorsement, writing that ‘to be a[] habitual offender, one must have at least two prior convictions with qualifying sentences resulting from separate, prior criminal episodes’ (emphasis in original; quotation omitted). The Commonwealth appealed from the judge’s order.” Continue reading →

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home-deck-lines-on-the-porch-1193976-225x300In Commonwealth v. Leslie, the SJC weighed in on privacy interests for residents of multi-family dwellings. In its decision, the SJC affirmed the allowance of the motions to suppress of defendants on the ground that the sawed-off shotgun seized by the police “as a result of [their] unlawful physical intrusion into the curtilage of [Price’s] residence,” a multifamily building, violated the warrant requirement of the Fourth Amendment and art. 14 of the Massachusetts Declaration of Rights.

The basic facts were as follows. “Detective Griffin … observed a group of four men, who “appeared ‘nervous,’” walking down the street toward “a certain residence on Everton Street (residence)…. [T]the residence was a known location of gang associates and … the neighborhood in which the residence is located was a ‘hotspot’ for shootings and firearms offenses. The property at the residence, which is a three-family home, was fenced in on the front and left side…. The left-side porch area was blocked by a large, blue recycling bin, which obstructed the view of the area from Everton Street…. Griffin observed the four men, including Leslie, enter the front gate of the residence and meet a fifth man, Price, on the porch…. Five minutes after the men arrived, Leslie walked off the front porch, swiveling his head from side to side in a surveillance-conscious manner, toward the left side of the front yard to the side porch area. Although …Griffin’s view was [partially] obstructed…, he was able to observe Leslie crouch down and appear to manipulate something under the side porch.” Later, Griffin “observed Price walk over to the side porch area” and behave “as Leslie had done previously.” “[S]uspect[ing] that a firearm was hidden under the left-side porch area,” Griffin “contacted the other members of his unit … for assistance. The officers intended to approach the men at the residence to conduct field interrogation observations…. The officers approached the men on the porch and began to engage them in conversation…. Griffin, however, veered … to the left side of the yard, where Leslie and Price previously had gone. He saw a sawed-off shotgun on the ground under the porch.” Leslie and Price were arrested. “Subsequently, the officers learned that Price lived at the residence in the second-floor apartment, but Leslie was not a resident.” After the grand jury returned indictments against the defendants for firearm offenses, they filed motions to suppress the shotgun. “The judge allowed the motions …, ruling that the search was governed by [Florida v.] Jardines, 133 S.Ct. [1409,] 1417-1418 [2013], in which the United States Supreme Court held that a warrantless search of the front porch of a single-family home with a drug-sniffing dog violated the Fourth Amendment. The [Supreme] Court reasoned that the porch was part of the curtilage to which the police could lawfully approach but that in bringing a drug-sniffing dog, the police exceeded the scope of their implied license to enter the defendant’s property.” Continue reading →

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3d-illustration-mobile-technology-mobile-phone-1412071-225x300

3d illustration: Mobile technology. mobile phone

In a recent Supreme Judicial Court decision – Commonwealth v. Fulgiam – the Court held that the search of the content of text messages requires a search warrant. Despite the existence of such a warrant in this case, however, the SJC rule that reversal was not required.

The background was as follows. The two victims (a man and a woman) were robbed and killed in their apartment. There was evidence that the defendants were involved in drug sales with the male victim. “[T]hrough a court order pursuant to 18 U.S.C. §2703(d)” (part of the Stored Communications Act), in response to an administrative subpoena issued pursuant to G.L. c.271, §17B, the Commonwealth procured the defendants’ cellular telephone records. The records “include[ed] call detail information …, subscriber information, cell site location information …, and, for Corbin, the content of text messages.” On appeal, Corbin argued that the Commonwealth’s warrantless access to the content of his text messages “was unlawful on statutory and constitutional grounds, and that his trial counsel was constitutionally ineffective in failing to file a motion to suppress the records.”

In its decision, the SJC opined that under 18 U.S.C. §2073(a) and art. 14 of the Massachusetts Declaration of Rights, “a warrant was required to obtain access to the content of Corbin’s text messages.” The Court explained that “[a] warrant with probable cause was required because Corbin had a reasonable expectation of privacy in the content of his text messages.” Therefore, stated the Court, “a motion to suppress challenging the Commonwealth’s access [to the text messages] on these grounds likely would have been successful.” The Court concluded, however, that defense counsel’s failure to seek suppression of the text messages did not create a substantial likelihood of a miscarriage of justice. Continue reading →