Massachusetts Criminal Defense Lawyer Blog

Can the State and Federal government prosecute same crime under the Double Jeopardy Clause?

June 26, 2018 | by Michael DelSignore

Does Double Jeopardy bar prosecution for the Same crime in Federal and State Court? A series of petition for certiorari before the United States Supreme Court ask the Court to address whether the Double Jeopardy Clause bars either the State or Federal Government from prosecuting a person for the same crime when the other entity has already convicted the individual.

The Double Jeopardy Clause of the Fifth Amendment states that no person shall be subject for the same offense to be twice put in jeopardy life or limb. The Clause does not distinguish between State versus federal government. The United States Supreme Court has interpreted this clause as not barring prosecution in State and federal court on the theory that each is a separate sovereign entity. The three petition for Certiorari all ask the Court to revisit this doctrine.

In support of the petition in Gamble v. United States, the defense argues that at the time of the court decision in it was very rare to have both federal and state prosecutions, but with the expansion of federal law, dual prosecutions have become more common. The dual sovereign doctrine was formed in cases from the 1800s and was reaffirmed in a case called Bartkus v. Illinois, 359 u.S. 121 (1959). The defense points to the concurring opinion of Justice Ginsburg and Justice Thomas in Puerto Rico v. Sanchez Ville, 136 S.Ct. 1863 (2016) suggesting that the doctrine should be revisited as reason for the Court to grant certiorari.

Eldred case before the Massachusetts SJC raises the issue of whether addiction is a medical condition that precludes a court from ordering drug free to an addicted person as a probationary condition

June 7, 2018 | by Michael DelSignore

The Massachusetts SJC will soon release a decision that could have a major impact on how addiction and drug offenses are treated in Court. The case of Commonwealth v. Julie Eldred involves a very common situation that occurs in the district courts. The defendant agreed to a plea on the charge of Larceny over $ 250.00; as part of that plea, the defendant was to remain drug free with random screens. The defendant received a CWOF or continuance without a finding which is technically not a criminal conviction in Massachusetts.

The defendant tested positive for fentanyl; the judge in the Concord District Court detained the defendant until she could find a bed in an in-patient treatment, pending a final violation hearing. At the final violation hearing, the defense filed a motion to change the condition of probation to remove drug free, arguing the the defendant because of her addiction could not comply with that condition. The district court judge reported the question to the appeals courts, and the SJC accepted the case for direct appellate review.

The defense argued that the court cannot impose conditions designed for someone to fail. This reasoning is derived from the case of Commonwealth v. Henry, 475 Mass. 117 (2016) where the SJC held that the court must address someone’s ability to pay before ordering restitution as a condition of probation.

Rapper Nelly fighting back, files countersuit against Women who accused him of Sexual Assault

February 23, 2018 | by Michael DelSignore

Celebrity rap-superstar Nelly is fighting back after allegedly sexually assaulting a Seattle woman on his tour bus back in October of 2017 and sexually assaulting two women in England, beginning in 2016. Nelly recently filed a countersuit, denying all allegations of sexual assault and rape, and requested that the amended complaint filed against him be dismissed by the judge.

According to the filed complaint, the woman, in this case, is alleging that Nelly raped her on his tour bus in Seattle outside of a Walmart, where he was stopped last year amid his world tour. The amended complaint also includes claims from two other women, that Nelly sexually assaulted them after performances in England in June of 2016 and in December of 2017.

In Seattle, the women allegedly called 911 in the parking lot of the Walmart following the assault; she told police that she went to Nelly’s bedroom with him on the tour bus, where he masturbated in front of her and forced himself on her while she was under the influence of alcohol.

Who makes decisions Criminal Defense Lawyer or the client at issue in McCoy v. Louisiana

February 19, 2018 | by Michael DelSignore

In McCoy v. Lousiana, the United States Supreme Court will address the issue of who has the authority to control the decision to admit guilt, the lawyer or the client. Can the Lawyer for strategy reasons, concede guilt to avoid the death penalty? This was the issue facing a criminal defense lawyer who despite his client’s wishes conceded guilty to spare his client the death penalty. The strategy failed. His client appealed to the United States Supreme Court arguing that a lawyer cannot concede guilty over his clear objection.

The defendant wanted to maintain his innocence, but the lawyer disagreed and required the defendant plead guilty in order to avoid the death penalty. The issue raised by this case is that even if it is a good strategy to concede guilt, can the lawyer make that decision over the client’s objection.

In a criminal case, there are certain decisions that the client has absolute control over:

Young teens charged with cyberstalking following suicide of a classmate in Florida

February 5, 2018 | by Michael DelSignore

A Florida pre-teen was found dead in her home in Glades, Florida on January 10. The alleged culprits in the case, two middle-schoolers, are facing cyberstalking charges after one of their classmates, Gabriella Green, took her own life after being harassed on the internet through various social media platforms.

Cyberbullying, as defined by the United State Government, is bullying that takes place using electronic technology. Essentially, the term “cyberbullying” describes the act of harassing, threatening or intimidating another individual via electronic means such as by use of cell phones, computers, tablets, and social media platforms.

Cyberbullying is illegal in Florida as well as in states across the country and can result in criminal charges. Generally speaking, cyberbullying is a crime most prominent among young adults, teenagers, and preteens. It is a crime of the generation; social media platforms are becoming increasingly popular “weapons” for teenagers to bully one another.

What it means to Possess a Firearm in Massachusetts

January 26, 2018 | by Michael DelSignore

In a Massachusetts gun charge of possession of a firearm without an FID card, there are typically three common defenses that are successful in fighting the case:

1. That you did not possess the firearm

2. That the seizure of the firearm from you was unlawful

Judge dismisses constitutional challenge to Iowa Law in famous “Bachelor” case

January 25, 2018 | by Michael DelSignore

A judge in Iowa recently dismissed “Bachelor” Chris Soules constitutional challenge to an Iowa law, which requires any surviving driver involved in a fatal accident to remain at the scene until law enforcement arrives. Soules’ argument comes as he is trying to avoid prison, after fatally rear-ending a neighbors tractor; Soules was ultimately charged with leaving the scene of a fatal car crash, a class D felony charge, for his role in the April accident that resulted in the death of his neighbor. If convicted of the crime, Soules could face up to 5 years in an Iowa State prison.

The law in which Soules is seeking to challenge states specifically that “a surviving drier shall promptly report the accident . . . and should immediately return to the scene of the fatal accident or inform law enforcement where he or she can be located following the accident”. Prosecutors in the case are making their arguments clear that Soules completed neither of the above-mentioned requirements. He left the scene following the accident and did not attempt to make his whereabouts known to authorities.

Soules attorneys worked to highlight many of the steps Soules took following the incident to help his neighbor; he called 911 following the accident and identified himself as being involved in the accident, administered CPR to the suffering victim, and remained at the scene until the ambulance arrived. The major issue surrounding the case is that Soules was driven home before law enforcement arrived.

Search Incident to Arrest doctrine key in Serious Massachusetts Felony Offense of Human Trafficking

January 23, 2018 | by Michael DelSignore

As a Massachusetts Criminal Defense Lawyer, the outcome of serious criminal cases can often come down to very specific facts developed during a motion to suppress. In the case of Commonwealth v. Aderito Barbosa, the defendant was charged with Human Trafficking. This is a criminal offense that carries up to twenty years in a Massachusetts State Prison; if found guilty of the crime you are required to serve a minimum mandatory five-year state prison sentence. If the victim is under the legal age in Massachusetts, you could be looking at a life sentence.

In this case, the police raided the defendant’s hotel room at the Park Plaza in Boston. Upon exiting the elevator, the defendant was greeted by the police. Knowing what they were there for, he requested an attorney and said he would exercise his Miranda rights. He tried to flee and was alleged to have resisted arrest and, at that time, requested a lawyer. As part of an arrest, police are permitted to conduct a search incident to arrest. A search incident to arrest is a search conducted by the police during the actual arrest; they are legally permitted to search the person being arrested, including his or her immediate surroundings.

Federal laws mandate that the police may search for weapons, contraband, or evidence of a crime, even if it is not related to the crime for which the individual is being arrested for. However, in Massachusetts, police are only granted the authority to search for evidence which is related to the crime.

Possession of a Firearm without FID card in Massachusetts and when does a seizure occur under the Fourth Amendment

January 22, 2018 | by Michael DelSignore

In the case of Huertas v. United States, the defendant is requesting that the United States Supreme Court grant certiorari in his case, to address the issue of when an individual can be seized for the purposes of the Fourth Amendment. In order to trigger a defendant’s Fourth Amendment rights, the person must be seized under the law. For example, a person is not automatically seized any time there is interaction with the police. A court will look at the circumstances of the encounter and attempt to determine if a reasonable person would not feel free to leave. Cases involving flight from the police raise interesting Fourth Amendment issues.

The Branden case was a gun charge. In gun crimes, often the police will receive anonymous tips that are frequently uncorroborated that a person has a gun. In the Branden case, the defendant initially spoke to the officer. The defendant submitted to the officer’s show of authority for between 30 and 60 seconds. When the officer got out of his car, the defendant ran and discarded a gun while running from the officer.

By temporarily complying with the officer’s show of authority, the defendant argued that he was seized under the Fourth Amendment. The defendant argued that since the defendant was seized, the seizure was unlawful because it was not supported by reasonable suspicion.

Scope of Consent to Search closed containers at issue in case before the United States Supreme Court

January 19, 2018 | by Michael DelSignore

The United States Supreme Court is considering an appeal in the case of Gonzalez-Badillo v. Unites States which will address the issue of whether a general consent to search justifies searching a closed container under the Fourth Amendment. In the Badillo case, the defendant gave a general consent to search as he was at a bus station. The officer inspected the bags of the defendant and thought his shoes were lumpy. The officer could see plastic inside the slit of the sole of the shoe but could not see anything illegal. The officer opened up the sole without obtaining further consent for the search.

The Fifth Circuit found that the search was lawful because once the officer told the defendant that he was looking for anything illegal, the defendant could expect that he would search any item that might contain drugs. The Court further concluded that the boots were suspicious and that the defendant failed to object during the search made the consent valid.

Dissenting Justice Elrod of the Fifth Circuit found that a general consent to search cannot be interpreted as authorization to destroy personal property during the search. Justice Elrod found that consent to search which includes unlocked containers cannot be said to include the right to damage property found within the containers.