Rulings Roundup

Each week, the lawyers at Brad Bailey Law, P.C. review the most recent appellate rulings in criminal cases throughout Massachusetts and the First Circuit to keep abreast of, and well-informed about, the current state of the criminal law; to ensure they are equipped to provide the very best defense possible for their clients. Here's a recap of some state and federal rulings in MA in the past two weeks we believe criminal defense lawyers in the Commonwealth should be aware of... (Yes, I'm taking a short break from my more topical-style BBLawg; temporarily all Tsarnaeve'd and Hernandez'd out...)

From the Supreme Judicial Court:

Commonwealth v. Canning, SJC-11773

In May 2013, the Defendant's property was searched pursuant to a search warrant, and he was found to be cultivating marijuana on his property. He was charged with possession with the intent to distribute marijuana, distribution of marijuana, and conspiracy to violate the drug laws. The Defendant filed a motion to suppress the evidence obtained pursuant to the search warrant. The district court allowed Defendant's motion, concluding that although the affidavit filed in support of the search warrant application demonstrated probable cause that the Defendant was cultivating marijuana on his property, it failed to establish probable cause that Defendant was not authorized to do so in light of the Commonwealth's medical marijuana law, which was approved by voters in November 2012.

The Supreme Judicial Court affirmed, holding that the affidavit failed to establish probable cause for the search. In order to obtain a search warrant to search a suspected marijuana cultivation site, the affiant must show that the targeted individual is not properly registered under the 2012 medical marijuana statute.  The failure of the affiant to set forth such facts will cause the warrant application to fail for want of probable cause.  Again, while the affidavit in Canning set forth probable cause to believe the defendant was cultivating marijuana, it did not "establish probable cause to believe that the defendant was not authorized to do so and therefore was committing a crime."

Commonwealth v. Forlizzi, SJC-11746

The Defendants were indicted charges arising out of alleged misconduct in connection with a prior insurance fraud trial. They moved to dismiss their indictments, alleging the Commonwealth had engaged in prosecutorial misconduct during the investigation which ultimately led to their indictments.

Specifically, the Defendants claimed that the prosecution had inappropriately 1) caused the grand jury to subpoena the bank records of trial counsel in violation of Mass. R. Prof. C. 3.8(f), 426 Mass. 1397 (1998); and 2) improperly obtained counsels' tax records though the insurance fraud bureau.

The superior court denied the motion dismiss, concluding that although prosecutors had engaged in overreaching in obtaining counsels' tax records, the subpoenaing of bank records was not inappropriate, and overall their conduct did not warrant dismissal of the indictments - it would be too great a sanction under the circumstances.

The Defendants filed an interlocutory appeal pursuant to Mass. Gen. Laws ch. 211§ 3. A single justice of the Supreme Judicial Court denied relief, concluding that the Defendants failed to demonstrate irremediable error.  In other words, if any error had occurred below, such error is not so substantial that it could not be addressed and corrected on direct appeal if and when the defendants are actually convicted. Addressing it during the pendency of the underlying trial would be a grant of extraordinary relief to which the Defendants were not entitled. The Supreme Judicial Court affirmed.

From the First Circuit:

United States v. Majeroni, No. 01-111-15 (First Circuit)

The Defendant was convicted of possession of child pornography and violating his supervised release. The district court imposed consecutive sentences of 150 months and 24 months, as well as a life term of supervised release. The Defendant appealed the child pornography possession conviction on several grounds.

The First Circuit affirmed the conviction and found that:

1) the district court did not abuse its discretion in admitting Defendant's prior child pornography conviction. Admission of an over 10 year old prior child pornography possession conviction was not error.  It was probative given the similarities of the cases. Moreover, the prior conviction was a guilty plea, so there was no "risk of having the issue of prior conduct bloom into a trial within the trial" and the trial court's limiting instruction cured all remaining potential prejudice;

2) the district court did not err in admitting evidence of the terms of Defendant's supervised release;

3) the district court did not err in denying Defendant's motion to suppress evidence from the search of his apartment;

4) the evidence was sufficient to convict Defendant of the charged offense - it was permissible to show the jury the alleged contraband images to determine if they depicted children; and

5) the district court did not abuse its discretion in sentencing Defendant to a 174-month prison term despite his history of extreme child abuse, military service, mental health issues, and post-offense rehabilitation. These were taken into consideration, and the Defendant received only a mid-range prison term (rather than a longer permissible/possible sentence).

United States v. Szpyt, No. 13-1543 (First Circuit)

The Defendants were indicted in 2008 for numerous drug crimes, including conspiracies involving the distribution of cocaine in MA, and the distribution of cocaine and marijuana in ME. After a jury trial, the Defendants were found guilty of conspiracy to distribute, and possess with intent to distribute, cocaine and marijuana. The evidence at trial established at least two conspiracies. The Defendants appealed, and the First Circuit vacated the convictions.

The First Circuit held: 1) there was insufficient evidence to support the Defendants' convictions on the ME conspiracy, but 2) there was sufficient evidence to convict the Defendant's on the MA conspiracy. The Court determined there was a material variance between the allegations set forth in the indictment and the facts proved at trial and vacated the convictions. On remand, the district court entered a judgment of acquittal.

Subsequently, The ME US Attorney's Office (re)indicted based solely on the MA cocaine distribution conspiracy.  The district court dismissed the new indictment on Double Jeopardy clause grounds. The government appealed, arguing that the current indictment alleged a factually distinct and separate conspiracy from the earlier indictment and conviction. The First Circuit held that the new indictment was not barred by the Double Jeopardy clause since the MA cocaine conspiracy was different than the wide-ranging (ME + MA) conspiracy set forth in the original indictment.

United States v. Guzman-Batista (First Circuit)

A search warrant was obtained to search a home which was suspected to be a narcotics trafficking hub.  The application stated that law enforcement observed someone on pre-trial release (the Defendant) exit the home, get on an ATV, and place a pistol in their waste band.  The Defendant was subsequently indicted for violating 18 U.S.C. 922(n) – receiving a firearm or ammunition which has been transported in interstate or foreign commerce while under indictment for a certain category of crimes. The Defendant filed a motion to suppress, alleging that the evidence seized from his home was discovered pursuant to a state search warrant rife with false statements that without which, probable cause for the warrant was lacking.

A Franks hearing was held, and the presiding magistrate judge recommended the district court grant the Defendant's motion to suppress. The magistrate found that the sworn statements made in support of the search warrant contained false and misleading information that rendered probable cause for the search warrant lacking.

The district court held its own Franks hearing, de novo, and rejected the magistrate's findings, and denying the Defendant's motion to suppress.

The First Circuit affirmed, holding that the Defendant's argument came down to a determination of credibility, and that the credibility determinations by the district court as to the veracity of the police officer's statements were not so erroneous as to require reversal, i.e., the First Circuit will not second-guess the trial court's determinations as to credibility.

United States v. Jorge Correa-Osorio, Nos. 12-1300 & 12-2220 (First Circuit)

The Defendants were both convicted of cocaine offenses, and both appealed (on different grounds). The male defendant argued that the district court allowed into evidence identification evidence which "resulted from a highly suggestive and unreliable procedure."  Specifically, the district court allowed a witness to identify the defendant who was the only male defendant at defense table during the trial.

The First Circuit affirmed the convictions holding the trial judge did not err by admitting identification evidence and certain statements under the co-conspirator exception to the hearsay rule. The jury is in the best position to evaluate the witness's in-court identification of the defendant and his demeanor during the same.  There was also strenuous cross-examination regarding the identification.  The court noted that to transfer the identification from merely suggestive to unduly suggestive, they would have wanted to see something like: "the prosecutor drew the witness’s attention to the defendant (say, by pointing to him) or asked questions that suggested the hoped-for result, or if the defendant looked different from others in the courtroom or at counsel table when the identification occurred (say, by being the only black person present)."

——

That wraps up this edition of Rulings Roundup. Check back soon for further updates and information on the latest developments in the criminal law of the Commonwealth and 1st Circuit. In the meantime, if you or a loved one finds themselves in trouble with the law, don't hesitate – immediately contact the lawyers at Brad Bailey Law, P.C. - Brad Bailey's extensive experience on both sides of the criminal law makes him the most uniquely qualified, and best possible choice for representation if you are facing criminal investigation and/or charges. Hiring Brad Bailey Law, P.C. could be the difference between just reading Rulings Roundup or being featured in it... Call today: 857-991-1945 or 781-589-2828 for emergency assistance.

If you have this type of case contact Brad Bailey one of the top criminal defense lawyers in Boston.

Commonwealth v. Canning, SJC-11773

In May 2013, the Defendant's property was searched pursuant to a search warrant, and he was found to be cultivating marijuana on his property. He was charged with possession with the intent to distribute marijuana, distribution of marijuana, and conspiracy to violate the drug laws. The Defendant filed a motion to suppress the evidence obtained pursuant to the search warrant. The district court allowed Defendant's motion, concluding that although the affidavit filed in support of the search warrant application demonstrated probable cause that the Defendant was cultivating marijuana on his property, it failed to establish probable cause that Defendant was not authorized to do so in light of the Commonwealth's medical marijuana law, which was approved by voters in November 2012.

The Supreme Judicial Court affirmed, holding that the affidavit failed to establish probable cause for the search. In order to obtain a search warrant to search a suspected marijuana cultivation site, the affiant must show that the targeted individual is not properly registered under the 2012 medical marijuana statute.  The failure of the affiant to set forth such facts will cause the warrant application to fail for want of probable cause.  Again, while the affidavit in Canning set forth probable cause to believe the defendant was cultivating marijuana, it did not "establish probable cause to believe that the defendant was not authorized to do so and therefore was committing a crime."

Commonwealth v. Forlizzi, SJC-11746

The Defendants were indicted charges arising out of alleged misconduct in connection with a prior insurance fraud trial. They moved to dismiss their indictments, alleging the Commonwealth had engaged in prosecutorial misconduct during the investigation which ultimately led to their indictments.

Specifically, the Defendants claimed that the prosecution had inappropriately 1) caused the grand jury to subpoena the bank records of trial counsel in violation of Mass. R. Prof. C. 3.8(f), 426 Mass. 1397 (1998); and 2) improperly obtained counsels' tax records though the insurance fraud bureau.

The superior court denied the motion dismiss, concluding that although prosecutors had engaged in overreaching in obtaining counsels' tax records, the subpoenaing of bank records was not inappropriate, and overall their conduct did not warrant dismissal of the indictments - it would be too great a sanction under the circumstances.

The Defendants filed an interlocutory appeal pursuant to Mass. Gen. Laws ch. 211§ 3. A single justice of the Supreme Judicial Court denied relief, concluding that the Defendants failed to demonstrate irremediable error.  In other words, if any error had occurred below, such error is not so substantial that it could not be addressed and corrected on direct appeal if and when the defendants are actually convicted. Addressing it during the pendency of the underlying trial would be a grant of extraordinary relief to which the Defendants were not entitled. The Supreme Judicial Court affirmed.

From the First Circuit:

United States v. Majeroni, No. 01-111-15 (First Circuit)

The Defendant was convicted of possession of child pornography and violating his supervised release. The district court imposed consecutive sentences of 150 months and 24 months, as well as a life term of supervised release. The Defendant appealed the child pornography possession conviction on several grounds.

The First Circuit affirmed the conviction and found that:

1) the district court did not abuse its discretion in admitting Defendant's prior child pornography conviction. Admission of an over 10 year old prior child pornography possession conviction was not error.  It was probative given the similarities of the cases. Moreover, the prior conviction was a guilty plea, so there was no "risk of having the issue of prior conduct bloom into a trial within the trial" and the trial court's limiting instruction cured all remaining potential prejudice;

2) the district court did not err in admitting evidence of the terms of Defendant's supervised release;

3) the district court did not err in denying Defendant's motion to suppress evidence from the search of his apartment;

4) the evidence was sufficient to convict Defendant of the charged offense - it was permissible to show the jury the alleged contraband images to determine if they depicted children; and

5) the district court did not abuse its discretion in sentencing Defendant to a 174-month prison term despite his history of extreme child abuse, military service, mental health issues, and post-offense rehabilitation. These were taken into consideration, and the Defendant received only a mid-range prison term (rather than a longer permissible/possible sentence).

United States v. Szpyt, No. 13-1543 (First Circuit)

The Defendants were indicted in 2008 for numerous drug crimes, including conspiracies involving the distribution of cocaine in MA, and the distribution of cocaine and marijuana in ME. After a jury trial, the Defendants were found guilty of conspiracy to distribute, and possess with intent to distribute, cocaine and marijuana. The evidence at trial established at least two conspiracies. The Defendants appealed, and the First Circuit vacated the convictions.

The First Circuit held: 1) there was insufficient evidence to support the Defendants' convictions on the ME conspiracy, but 2) there was sufficient evidence to convict the Defendant's on the MA conspiracy. The Court determined there was a material variance between the allegations set forth in the indictment and the facts proved at trial and vacated the convictions. On remand, the district court entered a judgment of acquittal.

Subsequently, The ME US Attorney's Office (re)indicted based solely on the MA cocaine distribution conspiracy.  The district court dismissed the new indictment on Double Jeopardy clause grounds. The government appealed, arguing that the current indictment alleged a factually distinct and separate conspiracy from the earlier indictment and conviction. The First Circuit held that the new indictment was not barred by the Double Jeopardy clause since the MA cocaine conspiracy was different than the wide-ranging (ME + MA) conspiracy set forth in the original indictment.

United States v. Guzman-Batista (First Circuit)

A search warrant was obtained to search a home which was suspected to be a narcotics trafficking hub.  The application stated that law enforcement observed someone on pre-trial release (the Defendant) exit the home, get on an ATV, and place a pistol in their waste band.  The Defendant was subsequently indicted for violating 18 U.S.C. 922(n) – receiving a firearm or ammunition which has been transported in interstate or foreign commerce while under indictment for a certain category of crimes. The Defendant filed a motion to suppress, alleging that the evidence seized from his home was discovered pursuant to a state search warrant rife with false statements that without which, probable cause for the warrant was lacking.

A Franks hearing was held, and the presiding magistrate judge recommended the district court grant the Defendant's motion to suppress. The magistrate found that the sworn statements made in support of the search warrant contained false and misleading information that rendered probable cause for the search warrant lacking.

The district court held its own Franks hearing, de novo, and rejected the magistrate's findings, and denying the Defendant's motion to suppress.

The First Circuit affirmed, holding that the Defendant's argument came down to a determination of credibility, and that the credibility determinations by the district court as to the veracity of the police officer's statements were not so erroneous as to require reversal, i.e., the First Circuit will not second-guess the trial court's determinations as to credibility.

United States v. Jorge Correa-Osorio, Nos. 12-1300 & 12-2220 (First Circuit)

The Defendants were both convicted of cocaine offenses, and both appealed (on different grounds). The male defendant argued that the district court allowed into evidence identification evidence which "resulted from a highly suggestive and unreliable procedure."  Specifically, the district court allowed a witness to identify the defendant who was the only male defendant at defense table during the trial.

The First Circuit affirmed the convictions holding the trial judge did not err by admitting identification evidence and certain statements under the co-conspirator exception to the hearsay rule. The jury is in the best position to evaluate the witness's in-court identification of the defendant and his demeanor during the same.  There was also strenuous cross-examination regarding the identification.  The court noted that to transfer the identification from merely suggestive to unduly suggestive, they would have wanted to see something like: "the prosecutor drew the witness’s attention to the defendant (say, by pointing to him) or asked questions that suggested the hoped-for result, or if the defendant looked different from others in the courtroom or at counsel table when the identification occurred (say, by being the only black person present)."

——

That wraps up this edition of Rulings Roundup. Check back soon for further updates and information on the latest developments in the criminal law of the Commonwealth and 1st Circuit. In the meantime, if you or a loved one finds themselves in trouble with the law, don't hesitate – immediately contact the lawyers at Brad Bailey Law, P.C. - Brad Bailey's extensive experience on both sides of the criminal law makes him the most uniquely qualified, and best possible choice for representation if you are facing criminal investigation and/or charges. Hiring Brad Bailey Law, P.C. could be the difference between just reading Rulings Roundup or being featured in it... Call today: 857-991-1945 or 781-589-2828 for emergency assistance.

If you have this type of case contact Brad Bailey one of the top criminal defense lawyers in Boston.

In May 2013, the Defendant's property was searched pursuant to a search warrant, and he was found to be cultivating marijuana on his property. He was charged with possession with the intent to distribute marijuana, distribution of marijuana, and conspiracy to violate the drug laws. The Defendant filed a motion to suppress the evidence obtained pursuant to the search warrant. The district court allowed Defendant's motion, concluding that although the affidavit filed in support of the search warrant application demonstrated probable cause that the Defendant was cultivating marijuana on his property, it failed to establish probable cause that Defendant was not authorized to do so in light of the Commonwealth's medical marijuana law, which was approved by voters in November 2012.

The Supreme Judicial Court affirmed, holding that the affidavit failed to establish probable cause for the search. In order to obtain a search warrant to search a suspected marijuana cultivation site, the affiant must show that the targeted individual is not properly registered under the 2012 medical marijuana statute.  The failure of the affiant to set forth such facts will cause the warrant application to fail for want of probable cause.  Again, while the affidavit in Canning set forth probable cause to believe the defendant was cultivating marijuana, it did not "establish probable cause to believe that the defendant was not authorized to do so and therefore was committing a crime."

Commonwealth v. Forlizzi, SJC-11746

The Defendants were indicted charges arising out of alleged misconduct in connection with a prior insurance fraud trial. They moved to dismiss their indictments, alleging the Commonwealth had engaged in prosecutorial misconduct during the investigation which ultimately led to their indictments.

Specifically, the Defendants claimed that the prosecution had inappropriately 1) caused the grand jury to subpoena the bank records of trial counsel in violation of Mass. R. Prof. C. 3.8(f), 426 Mass. 1397 (1998); and 2) improperly obtained counsels' tax records though the insurance fraud bureau.

The superior court denied the motion dismiss, concluding that although prosecutors had engaged in overreaching in obtaining counsels' tax records, the subpoenaing of bank records was not inappropriate, and overall their conduct did not warrant dismissal of the indictments - it would be too great a sanction under the circumstances.

The Defendants filed an interlocutory appeal pursuant to Mass. Gen. Laws ch. 211§ 3. A single justice of the Supreme Judicial Court denied relief, concluding that the Defendants failed to demonstrate irremediable error.  In other words, if any error had occurred below, such error is not so substantial that it could not be addressed and corrected on direct appeal if and when the defendants are actually convicted. Addressing it during the pendency of the underlying trial would be a grant of extraordinary relief to which the Defendants were not entitled. The Supreme Judicial Court affirmed.

From the First Circuit:

United States v. Majeroni, No. 01-111-15 (First Circuit)

The Defendant was convicted of possession of child pornography and violating his supervised release. The district court imposed consecutive sentences of 150 months and 24 months, as well as a life term of supervised release. The Defendant appealed the child pornography possession conviction on several grounds.

The First Circuit affirmed the conviction and found that:

1) the district court did not abuse its discretion in admitting Defendant's prior child pornography conviction. Admission of an over 10 year old prior child pornography possession conviction was not error.  It was probative given the similarities of the cases. Moreover, the prior conviction was a guilty plea, so there was no "risk of having the issue of prior conduct bloom into a trial within the trial" and the trial court's limiting instruction cured all remaining potential prejudice;

2) the district court did not err in admitting evidence of the terms of Defendant's supervised release;

3) the district court did not err in denying Defendant's motion to suppress evidence from the search of his apartment;

4) the evidence was sufficient to convict Defendant of the charged offense - it was permissible to show the jury the alleged contraband images to determine if they depicted children; and

5) the district court did not abuse its discretion in sentencing Defendant to a 174-month prison term despite his history of extreme child abuse, military service, mental health issues, and post-offense rehabilitation. These were taken into consideration, and the Defendant received only a mid-range prison term (rather than a longer permissible/possible sentence).

United States v. Szpyt, No. 13-1543 (First Circuit)

The Defendants were indicted in 2008 for numerous drug crimes, including conspiracies involving the distribution of cocaine in MA, and the distribution of cocaine and marijuana in ME. After a jury trial, the Defendants were found guilty of conspiracy to distribute, and possess with intent to distribute, cocaine and marijuana. The evidence at trial established at least two conspiracies. The Defendants appealed, and the First Circuit vacated the convictions.

The First Circuit held: 1) there was insufficient evidence to support the Defendants' convictions on the ME conspiracy, but 2) there was sufficient evidence to convict the Defendant's on the MA conspiracy. The Court determined there was a material variance between the allegations set forth in the indictment and the facts proved at trial and vacated the convictions. On remand, the district court entered a judgment of acquittal.

Subsequently, The ME US Attorney's Office (re)indicted based solely on the MA cocaine distribution conspiracy.  The district court dismissed the new indictment on Double Jeopardy clause grounds. The government appealed, arguing that the current indictment alleged a factually distinct and separate conspiracy from the earlier indictment and conviction. The First Circuit held that the new indictment was not barred by the Double Jeopardy clause since the MA cocaine conspiracy was different than the wide-ranging (ME + MA) conspiracy set forth in the original indictment.

United States v. Guzman-Batista (First Circuit)

A search warrant was obtained to search a home which was suspected to be a narcotics trafficking hub.  The application stated that law enforcement observed someone on pre-trial release (the Defendant) exit the home, get on an ATV, and place a pistol in their waste band.  The Defendant was subsequently indicted for violating 18 U.S.C. 922(n) – receiving a firearm or ammunition which has been transported in interstate or foreign commerce while under indictment for a certain category of crimes. The Defendant filed a motion to suppress, alleging that the evidence seized from his home was discovered pursuant to a state search warrant rife with false statements that without which, probable cause for the warrant was lacking.

A Franks hearing was held, and the presiding magistrate judge recommended the district court grant the Defendant's motion to suppress. The magistrate found that the sworn statements made in support of the search warrant contained false and misleading information that rendered probable cause for the search warrant lacking.

The district court held its own Franks hearing, de novo, and rejected the magistrate's findings, and denying the Defendant's motion to suppress.

The First Circuit affirmed, holding that the Defendant's argument came down to a determination of credibility, and that the credibility determinations by the district court as to the veracity of the police officer's statements were not so erroneous as to require reversal, i.e., the First Circuit will not second-guess the trial court's determinations as to credibility.

United States v. Jorge Correa-Osorio, Nos. 12-1300 & 12-2220 (First Circuit)

The Defendants were both convicted of cocaine offenses, and both appealed (on different grounds). The male defendant argued that the district court allowed into evidence identification evidence which "resulted from a highly suggestive and unreliable procedure."  Specifically, the district court allowed a witness to identify the defendant who was the only male defendant at defense table during the trial.

The First Circuit affirmed the convictions holding the trial judge did not err by admitting identification evidence and certain statements under the co-conspirator exception to the hearsay rule. The jury is in the best position to evaluate the witness's in-court identification of the defendant and his demeanor during the same.  There was also strenuous cross-examination regarding the identification.  The court noted that to transfer the identification from merely suggestive to unduly suggestive, they would have wanted to see something like: "the prosecutor drew the witness’s attention to the defendant (say, by pointing to him) or asked questions that suggested the hoped-for result, or if the defendant looked different from others in the courtroom or at counsel table when the identification occurred (say, by being the only black person present)."

——

That wraps up this edition of Rulings Roundup. Check back soon for further updates and information on the latest developments in the criminal law of the Commonwealth and 1st Circuit. In the meantime, if you or a loved one finds themselves in trouble with the law, don't hesitate – immediately contact the lawyers at Brad Bailey Law, P.C. - Brad Bailey's extensive experience on both sides of the criminal law makes him the most uniquely qualified, and best possible choice for representation if you are facing criminal investigation and/or charges. Hiring Brad Bailey Law, P.C. could be the difference between just reading Rulings Roundup or being featured in it... Call today: 857-991-1945 or 781-589-2828 for emergency assistance.

If you have this type of case contact Brad Bailey one of the top criminal defense lawyers in Boston.

The Defendants were indicted charges arising out of alleged misconduct in connection with a prior insurance fraud trial. They moved to dismiss their indictments, alleging the Commonwealth had engaged in prosecutorial misconduct during the investigation which ultimately led to their indictments.

Specifically, the Defendants claimed that the prosecution had inappropriately 1) caused the grand jury to subpoena the bank records of trial counsel in violation of Mass. R. Prof. C. 3.8(f), 426 Mass. 1397 (1998); and 2) improperly obtained counsels' tax records though the insurance fraud bureau.

The superior court denied the motion dismiss, concluding that although prosecutors had engaged in overreaching in obtaining counsels' tax records, the subpoenaing of bank records was not inappropriate, and overall their conduct did not warrant dismissal of the indictments - it would be too great a sanction under the circumstances.

The Defendants filed an interlocutory appeal pursuant to Mass. Gen. Laws ch. 211§ 3. A single justice of the Supreme Judicial Court denied relief, concluding that the Defendants failed to demonstrate irremediable error.  In other words, if any error had occurred below, such error is not so substantial that it could not be addressed and corrected on direct appeal if and when the defendants are actually convicted. Addressing it during the pendency of the underlying trial would be a grant of extraordinary relief to which the Defendants were not entitled. The Supreme Judicial Court affirmed.

From the First Circuit:

United States v. Majeroni, No. 01-111-15 (First Circuit)

The Defendant was convicted of possession of child pornography and violating his supervised release. The district court imposed consecutive sentences of 150 months and 24 months, as well as a life term of supervised release. The Defendant appealed the child pornography possession conviction on several grounds.

The First Circuit affirmed the conviction and found that:

1) the district court did not abuse its discretion in admitting Defendant's prior child pornography conviction. Admission of an over 10 year old prior child pornography possession conviction was not error.  It was probative given the similarities of the cases. Moreover, the prior conviction was a guilty plea, so there was no "risk of having the issue of prior conduct bloom into a trial within the trial" and the trial court's limiting instruction cured all remaining potential prejudice;

2) the district court did not err in admitting evidence of the terms of Defendant's supervised release;

3) the district court did not err in denying Defendant's motion to suppress evidence from the search of his apartment;

4) the evidence was sufficient to convict Defendant of the charged offense - it was permissible to show the jury the alleged contraband images to determine if they depicted children; and

5) the district court did not abuse its discretion in sentencing Defendant to a 174-month prison term despite his history of extreme child abuse, military service, mental health issues, and post-offense rehabilitation. These were taken into consideration, and the Defendant received only a mid-range prison term (rather than a longer permissible/possible sentence).

United States v. Szpyt, No. 13-1543 (First Circuit)

The Defendants were indicted in 2008 for numerous drug crimes, including conspiracies involving the distribution of cocaine in MA, and the distribution of cocaine and marijuana in ME. After a jury trial, the Defendants were found guilty of conspiracy to distribute, and possess with intent to distribute, cocaine and marijuana. The evidence at trial established at least two conspiracies. The Defendants appealed, and the First Circuit vacated the convictions.

The First Circuit held: 1) there was insufficient evidence to support the Defendants' convictions on the ME conspiracy, but 2) there was sufficient evidence to convict the Defendant's on the MA conspiracy. The Court determined there was a material variance between the allegations set forth in the indictment and the facts proved at trial and vacated the convictions. On remand, the district court entered a judgment of acquittal.

Subsequently, The ME US Attorney's Office (re)indicted based solely on the MA cocaine distribution conspiracy.  The district court dismissed the new indictment on Double Jeopardy clause grounds. The government appealed, arguing that the current indictment alleged a factually distinct and separate conspiracy from the earlier indictment and conviction. The First Circuit held that the new indictment was not barred by the Double Jeopardy clause since the MA cocaine conspiracy was different than the wide-ranging (ME + MA) conspiracy set forth in the original indictment.

United States v. Guzman-Batista (First Circuit)

A search warrant was obtained to search a home which was suspected to be a narcotics trafficking hub.  The application stated that law enforcement observed someone on pre-trial release (the Defendant) exit the home, get on an ATV, and place a pistol in their waste band.  The Defendant was subsequently indicted for violating 18 U.S.C. 922(n) – receiving a firearm or ammunition which has been transported in interstate or foreign commerce while under indictment for a certain category of crimes. The Defendant filed a motion to suppress, alleging that the evidence seized from his home was discovered pursuant to a state search warrant rife with false statements that without which, probable cause for the warrant was lacking.

A Franks hearing was held, and the presiding magistrate judge recommended the district court grant the Defendant's motion to suppress. The magistrate found that the sworn statements made in support of the search warrant contained false and misleading information that rendered probable cause for the search warrant lacking.

The district court held its own Franks hearing, de novo, and rejected the magistrate's findings, and denying the Defendant's motion to suppress.

The First Circuit affirmed, holding that the Defendant's argument came down to a determination of credibility, and that the credibility determinations by the district court as to the veracity of the police officer's statements were not so erroneous as to require reversal, i.e., the First Circuit will not second-guess the trial court's determinations as to credibility.

United States v. Jorge Correa-Osorio, Nos. 12-1300 & 12-2220 (First Circuit)

The Defendants were both convicted of cocaine offenses, and both appealed (on different grounds). The male defendant argued that the district court allowed into evidence identification evidence which "resulted from a highly suggestive and unreliable procedure."  Specifically, the district court allowed a witness to identify the defendant who was the only male defendant at defense table during the trial.

The First Circuit affirmed the convictions holding the trial judge did not err by admitting identification evidence and certain statements under the co-conspirator exception to the hearsay rule. The jury is in the best position to evaluate the witness's in-court identification of the defendant and his demeanor during the same.  There was also strenuous cross-examination regarding the identification.  The court noted that to transfer the identification from merely suggestive to unduly suggestive, they would have wanted to see something like: "the prosecutor drew the witness’s attention to the defendant (say, by pointing to him) or asked questions that suggested the hoped-for result, or if the defendant looked different from others in the courtroom or at counsel table when the identification occurred (say, by being the only black person present)."

——

That wraps up this edition of Rulings Roundup. Check back soon for further updates and information on the latest developments in the criminal law of the Commonwealth and 1st Circuit. In the meantime, if you or a loved one finds themselves in trouble with the law, don't hesitate – immediately contact the lawyers at Brad Bailey Law, P.C. - Brad Bailey's extensive experience on both sides of the criminal law makes him the most uniquely qualified, and best possible choice for representation if you are facing criminal investigation and/or charges. Hiring Brad Bailey Law, P.C. could be the difference between just reading Rulings Roundup or being featured in it... Call today: 857-991-1945 or 781-589-2828 for emergency assistance.

If you have this type of case contact Brad Bailey one of the top criminal defense lawyers in Boston.

United States v. Majeroni, No. 01-111-15 (First Circuit)

The Defendant was convicted of possession of child pornography and violating his supervised release. The district court imposed consecutive sentences of 150 months and 24 months, as well as a life term of supervised release. The Defendant appealed the child pornography possession conviction on several grounds.

The First Circuit affirmed the conviction and found that:

1) the district court did not abuse its discretion in admitting Defendant's prior child pornography conviction. Admission of an over 10 year old prior child pornography possession conviction was not error.  It was probative given the similarities of the cases. Moreover, the prior conviction was a guilty plea, so there was no "risk of having the issue of prior conduct bloom into a trial within the trial" and the trial court's limiting instruction cured all remaining potential prejudice;

2) the district court did not err in admitting evidence of the terms of Defendant's supervised release;

3) the district court did not err in denying Defendant's motion to suppress evidence from the search of his apartment;

4) the evidence was sufficient to convict Defendant of the charged offense - it was permissible to show the jury the alleged contraband images to determine if they depicted children; and

5) the district court did not abuse its discretion in sentencing Defendant to a 174-month prison term despite his history of extreme child abuse, military service, mental health issues, and post-offense rehabilitation. These were taken into consideration, and the Defendant received only a mid-range prison term (rather than a longer permissible/possible sentence).

United States v. Szpyt, No. 13-1543 (First Circuit)

The Defendants were indicted in 2008 for numerous drug crimes, including conspiracies involving the distribution of cocaine in MA, and the distribution of cocaine and marijuana in ME. After a jury trial, the Defendants were found guilty of conspiracy to distribute, and possess with intent to distribute, cocaine and marijuana. The evidence at trial established at least two conspiracies. The Defendants appealed, and the First Circuit vacated the convictions.

The First Circuit held: 1) there was insufficient evidence to support the Defendants' convictions on the ME conspiracy, but 2) there was sufficient evidence to convict the Defendant's on the MA conspiracy. The Court determined there was a material variance between the allegations set forth in the indictment and the facts proved at trial and vacated the convictions. On remand, the district court entered a judgment of acquittal.

Subsequently, The ME US Attorney's Office (re)indicted based solely on the MA cocaine distribution conspiracy.  The district court dismissed the new indictment on Double Jeopardy clause grounds. The government appealed, arguing that the current indictment alleged a factually distinct and separate conspiracy from the earlier indictment and conviction. The First Circuit held that the new indictment was not barred by the Double Jeopardy clause since the MA cocaine conspiracy was different than the wide-ranging (ME + MA) conspiracy set forth in the original indictment.

United States v. Guzman-Batista (First Circuit)

A search warrant was obtained to search a home which was suspected to be a narcotics trafficking hub.  The application stated that law enforcement observed someone on pre-trial release (the Defendant) exit the home, get on an ATV, and place a pistol in their waste band.  The Defendant was subsequently indicted for violating 18 U.S.C. 922(n) – receiving a firearm or ammunition which has been transported in interstate or foreign commerce while under indictment for a certain category of crimes. The Defendant filed a motion to suppress, alleging that the evidence seized from his home was discovered pursuant to a state search warrant rife with false statements that without which, probable cause for the warrant was lacking.

A Franks hearing was held, and the presiding magistrate judge recommended the district court grant the Defendant's motion to suppress. The magistrate found that the sworn statements made in support of the search warrant contained false and misleading information that rendered probable cause for the search warrant lacking.

The district court held its own Franks hearing, de novo, and rejected the magistrate's findings, and denying the Defendant's motion to suppress.

The First Circuit affirmed, holding that the Defendant's argument came down to a determination of credibility, and that the credibility determinations by the district court as to the veracity of the police officer's statements were not so erroneous as to require reversal, i.e., the First Circuit will not second-guess the trial court's determinations as to credibility.

United States v. Jorge Correa-Osorio, Nos. 12-1300 & 12-2220 (First Circuit)

The Defendants were both convicted of cocaine offenses, and both appealed (on different grounds). The male defendant argued that the district court allowed into evidence identification evidence which "resulted from a highly suggestive and unreliable procedure."  Specifically, the district court allowed a witness to identify the defendant who was the only male defendant at defense table during the trial.

The First Circuit affirmed the convictions holding the trial judge did not err by admitting identification evidence and certain statements under the co-conspirator exception to the hearsay rule. The jury is in the best position to evaluate the witness's in-court identification of the defendant and his demeanor during the same.  There was also strenuous cross-examination regarding the identification.  The court noted that to transfer the identification from merely suggestive to unduly suggestive, they would have wanted to see something like: "the prosecutor drew the witness’s attention to the defendant (say, by pointing to him) or asked questions that suggested the hoped-for result, or if the defendant looked different from others in the courtroom or at counsel table when the identification occurred (say, by being the only black person present)."

——

That wraps up this edition of Rulings Roundup. Check back soon for further updates and information on the latest developments in the criminal law of the Commonwealth and 1st Circuit. In the meantime, if you or a loved one finds themselves in trouble with the law, don't hesitate – immediately contact the lawyers at Brad Bailey Law, P.C. - Brad Bailey's extensive experience on both sides of the criminal law makes him the most uniquely qualified, and best possible choice for representation if you are facing criminal investigation and/or charges. Hiring Brad Bailey Law, P.C. could be the difference between just reading Rulings Roundup or being featured in it... Call today: 857-991-1945 or 781-589-2828 for emergency assistance.

If you have this type of case contact Brad Bailey one of the top criminal defense lawyers in Boston.

The Defendant was convicted of possession of child pornography and violating his supervised release. The district court imposed consecutive sentences of 150 months and 24 months, as well as a life term of supervised release. The Defendant appealed the child pornography possession conviction on several grounds.

The First Circuit affirmed the conviction and found that:

1) the district court did not abuse its discretion in admitting Defendant's prior child pornography conviction. Admission of an over 10 year old prior child pornography possession conviction was not error.  It was probative given the similarities of the cases. Moreover, the prior conviction was a guilty plea, so there was no "risk of having the issue of prior conduct bloom into a trial within the trial" and the trial court's limiting instruction cured all remaining potential prejudice;

2) the district court did not err in admitting evidence of the terms of Defendant's supervised release;

3) the district court did not err in denying Defendant's motion to suppress evidence from the search of his apartment;

4) the evidence was sufficient to convict Defendant of the charged offense - it was permissible to show the jury the alleged contraband images to determine if they depicted children; and

5) the district court did not abuse its discretion in sentencing Defendant to a 174-month prison term despite his history of extreme child abuse, military service, mental health issues, and post-offense rehabilitation. These were taken into consideration, and the Defendant received only a mid-range prison term (rather than a longer permissible/possible sentence).

United States v. Szpyt, No. 13-1543 (First Circuit)

The Defendants were indicted in 2008 for numerous drug crimes, including conspiracies involving the distribution of cocaine in MA, and the distribution of cocaine and marijuana in ME. After a jury trial, the Defendants were found guilty of conspiracy to distribute, and possess with intent to distribute, cocaine and marijuana. The evidence at trial established at least two conspiracies. The Defendants appealed, and the First Circuit vacated the convictions.

The First Circuit held: 1) there was insufficient evidence to support the Defendants' convictions on the ME conspiracy, but 2) there was sufficient evidence to convict the Defendant's on the MA conspiracy. The Court determined there was a material variance between the allegations set forth in the indictment and the facts proved at trial and vacated the convictions. On remand, the district court entered a judgment of acquittal.

Subsequently, The ME US Attorney's Office (re)indicted based solely on the MA cocaine distribution conspiracy.  The district court dismissed the new indictment on Double Jeopardy clause grounds. The government appealed, arguing that the current indictment alleged a factually distinct and separate conspiracy from the earlier indictment and conviction. The First Circuit held that the new indictment was not barred by the Double Jeopardy clause since the MA cocaine conspiracy was different than the wide-ranging (ME + MA) conspiracy set forth in the original indictment.

United States v. Guzman-Batista (First Circuit)

A search warrant was obtained to search a home which was suspected to be a narcotics trafficking hub.  The application stated that law enforcement observed someone on pre-trial release (the Defendant) exit the home, get on an ATV, and place a pistol in their waste band.  The Defendant was subsequently indicted for violating 18 U.S.C. 922(n) – receiving a firearm or ammunition which has been transported in interstate or foreign commerce while under indictment for a certain category of crimes. The Defendant filed a motion to suppress, alleging that the evidence seized from his home was discovered pursuant to a state search warrant rife with false statements that without which, probable cause for the warrant was lacking.

A Franks hearing was held, and the presiding magistrate judge recommended the district court grant the Defendant's motion to suppress. The magistrate found that the sworn statements made in support of the search warrant contained false and misleading information that rendered probable cause for the search warrant lacking.

The district court held its own Franks hearing, de novo, and rejected the magistrate's findings, and denying the Defendant's motion to suppress.

The First Circuit affirmed, holding that the Defendant's argument came down to a determination of credibility, and that the credibility determinations by the district court as to the veracity of the police officer's statements were not so erroneous as to require reversal, i.e., the First Circuit will not second-guess the trial court's determinations as to credibility.

United States v. Jorge Correa-Osorio, Nos. 12-1300 & 12-2220 (First Circuit)

The Defendants were both convicted of cocaine offenses, and both appealed (on different grounds). The male defendant argued that the district court allowed into evidence identification evidence which "resulted from a highly suggestive and unreliable procedure."  Specifically, the district court allowed a witness to identify the defendant who was the only male defendant at defense table during the trial.

The First Circuit affirmed the convictions holding the trial judge did not err by admitting identification evidence and certain statements under the co-conspirator exception to the hearsay rule. The jury is in the best position to evaluate the witness's in-court identification of the defendant and his demeanor during the same.  There was also strenuous cross-examination regarding the identification.  The court noted that to transfer the identification from merely suggestive to unduly suggestive, they would have wanted to see something like: "the prosecutor drew the witness’s attention to the defendant (say, by pointing to him) or asked questions that suggested the hoped-for result, or if the defendant looked different from others in the courtroom or at counsel table when the identification occurred (say, by being the only black person present)."

——

That wraps up this edition of Rulings Roundup. Check back soon for further updates and information on the latest developments in the criminal law of the Commonwealth and 1st Circuit. In the meantime, if you or a loved one finds themselves in trouble with the law, don't hesitate – immediately contact the lawyers at Brad Bailey Law, P.C. - Brad Bailey's extensive experience on both sides of the criminal law makes him the most uniquely qualified, and best possible choice for representation if you are facing criminal investigation and/or charges. Hiring Brad Bailey Law, P.C. could be the difference between just reading Rulings Roundup or being featured in it... Call today: 857-991-1945 or 781-589-2828 for emergency assistance.

If you have this type of case contact Brad Bailey one of the top criminal defense lawyers in Boston.

The Defendants were indicted in 2008 for numerous drug crimes, including conspiracies involving the distribution of cocaine in MA, and the distribution of cocaine and marijuana in ME. After a jury trial, the Defendants were found guilty of conspiracy to distribute, and possess with intent to distribute, cocaine and marijuana. The evidence at trial established at least two conspiracies. The Defendants appealed, and the First Circuit vacated the convictions.

The First Circuit held: 1) there was insufficient evidence to support the Defendants' convictions on the ME conspiracy, but 2) there was sufficient evidence to convict the Defendant's on the MA conspiracy. The Court determined there was a material variance between the allegations set forth in the indictment and the facts proved at trial and vacated the convictions. On remand, the district court entered a judgment of acquittal.

Subsequently, The ME US Attorney's Office (re)indicted based solely on the MA cocaine distribution conspiracy.  The district court dismissed the new indictment on Double Jeopardy clause grounds. The government appealed, arguing that the current indictment alleged a factually distinct and separate conspiracy from the earlier indictment and conviction. The First Circuit held that the new indictment was not barred by the Double Jeopardy clause since the MA cocaine conspiracy was different than the wide-ranging (ME + MA) conspiracy set forth in the original indictment.

United States v. Guzman-Batista (First Circuit)

A search warrant was obtained to search a home which was suspected to be a narcotics trafficking hub.  The application stated that law enforcement observed someone on pre-trial release (the Defendant) exit the home, get on an ATV, and place a pistol in their waste band.  The Defendant was subsequently indicted for violating 18 U.S.C. 922(n) – receiving a firearm or ammunition which has been transported in interstate or foreign commerce while under indictment for a certain category of crimes. The Defendant filed a motion to suppress, alleging that the evidence seized from his home was discovered pursuant to a state search warrant rife with false statements that without which, probable cause for the warrant was lacking.

A Franks hearing was held, and the presiding magistrate judge recommended the district court grant the Defendant's motion to suppress. The magistrate found that the sworn statements made in support of the search warrant contained false and misleading information that rendered probable cause for the search warrant lacking.

The district court held its own Franks hearing, de novo, and rejected the magistrate's findings, and denying the Defendant's motion to suppress.

The First Circuit affirmed, holding that the Defendant's argument came down to a determination of credibility, and that the credibility determinations by the district court as to the veracity of the police officer's statements were not so erroneous as to require reversal, i.e., the First Circuit will not second-guess the trial court's determinations as to credibility.

United States v. Jorge Correa-Osorio, Nos. 12-1300 & 12-2220 (First Circuit)

The Defendants were both convicted of cocaine offenses, and both appealed (on different grounds). The male defendant argued that the district court allowed into evidence identification evidence which "resulted from a highly suggestive and unreliable procedure."  Specifically, the district court allowed a witness to identify the defendant who was the only male defendant at defense table during the trial.

The First Circuit affirmed the convictions holding the trial judge did not err by admitting identification evidence and certain statements under the co-conspirator exception to the hearsay rule. The jury is in the best position to evaluate the witness's in-court identification of the defendant and his demeanor during the same.  There was also strenuous cross-examination regarding the identification.  The court noted that to transfer the identification from merely suggestive to unduly suggestive, they would have wanted to see something like: "the prosecutor drew the witness’s attention to the defendant (say, by pointing to him) or asked questions that suggested the hoped-for result, or if the defendant looked different from others in the courtroom or at counsel table when the identification occurred (say, by being the only black person present)."

——

That wraps up this edition of Rulings Roundup. Check back soon for further updates and information on the latest developments in the criminal law of the Commonwealth and 1st Circuit. In the meantime, if you or a loved one finds themselves in trouble with the law, don't hesitate – immediately contact the lawyers at Brad Bailey Law, P.C. - Brad Bailey's extensive experience on both sides of the criminal law makes him the most uniquely qualified, and best possible choice for representation if you are facing criminal investigation and/or charges. Hiring Brad Bailey Law, P.C. could be the difference between just reading Rulings Roundup or being featured in it... Call today: 857-991-1945 or 781-589-2828 for emergency assistance.

If you have this type of case contact Brad Bailey one of the top criminal defense lawyers in Boston.

A search warrant was obtained to search a home which was suspected to be a narcotics trafficking hub.  The application stated that law enforcement observed someone on pre-trial release (the Defendant) exit the home, get on an ATV, and place a pistol in their waste band.  The Defendant was subsequently indicted for violating 18 U.S.C. 922(n) – receiving a firearm or ammunition which has been transported in interstate or foreign commerce while under indictment for a certain category of crimes. The Defendant filed a motion to suppress, alleging that the evidence seized from his home was discovered pursuant to a state search warrant rife with false statements that without which, probable cause for the warrant was lacking.

A Franks hearing was held, and the presiding magistrate judge recommended the district court grant the Defendant's motion to suppress. The magistrate found that the sworn statements made in support of the search warrant contained false and misleading information that rendered probable cause for the search warrant lacking.

The district court held its own Franks hearing, de novo, and rejected the magistrate's findings, and denying the Defendant's motion to suppress.

The First Circuit affirmed, holding that the Defendant's argument came down to a determination of credibility, and that the credibility determinations by the district court as to the veracity of the police officer's statements were not so erroneous as to require reversal, i.e., the First Circuit will not second-guess the trial court's determinations as to credibility.

United States v. Jorge Correa-Osorio, Nos. 12-1300 & 12-2220 (First Circuit)

The Defendants were both convicted of cocaine offenses, and both appealed (on different grounds). The male defendant argued that the district court allowed into evidence identification evidence which "resulted from a highly suggestive and unreliable procedure."  Specifically, the district court allowed a witness to identify the defendant who was the only male defendant at defense table during the trial.

The First Circuit affirmed the convictions holding the trial judge did not err by admitting identification evidence and certain statements under the co-conspirator exception to the hearsay rule. The jury is in the best position to evaluate the witness's in-court identification of the defendant and his demeanor during the same.  There was also strenuous cross-examination regarding the identification.  The court noted that to transfer the identification from merely suggestive to unduly suggestive, they would have wanted to see something like: "the prosecutor drew the witness’s attention to the defendant (say, by pointing to him) or asked questions that suggested the hoped-for result, or if the defendant looked different from others in the courtroom or at counsel table when the identification occurred (say, by being the only black person present)."

——

That wraps up this edition of Rulings Roundup. Check back soon for further updates and information on the latest developments in the criminal law of the Commonwealth and 1st Circuit. In the meantime, if you or a loved one finds themselves in trouble with the law, don't hesitate – immediately contact the lawyers at Brad Bailey Law, P.C. - Brad Bailey's extensive experience on both sides of the criminal law makes him the most uniquely qualified, and best possible choice for representation if you are facing criminal investigation and/or charges. Hiring Brad Bailey Law, P.C. could be the difference between just reading Rulings Roundup or being featured in it... Call today: 857-991-1945 or 781-589-2828 for emergency assistance.

If you have this type of case contact Brad Bailey one of the top criminal defense lawyers in Boston.

The Defendants were both convicted of cocaine offenses, and both appealed (on different grounds). The male defendant argued that the district court allowed into evidence identification evidence which "resulted from a highly suggestive and unreliable procedure."  Specifically, the district court allowed a witness to identify the defendant who was the only male defendant at defense table during the trial.

The First Circuit affirmed the convictions holding the trial judge did not err by admitting identification evidence and certain statements under the co-conspirator exception to the hearsay rule. The jury is in the best position to evaluate the witness's in-court identification of the defendant and his demeanor during the same.  There was also strenuous cross-examination regarding the identification.  The court noted that to transfer the identification from merely suggestive to unduly suggestive, they would have wanted to see something like: "the prosecutor drew the witness’s attention to the defendant (say, by pointing to him) or asked questions that suggested the hoped-for result, or if the defendant looked different from others in the courtroom or at counsel table when the identification occurred (say, by being the only black person present)."

——

That wraps up this edition of Rulings Roundup. Check back soon for further updates and information on the latest developments in the criminal law of the Commonwealth and 1st Circuit. In the meantime, if you or a loved one finds themselves in trouble with the law, don't hesitate – immediately contact the lawyers at Brad Bailey Law, P.C. - Brad Bailey's extensive experience on both sides of the criminal law makes him the most uniquely qualified, and best possible choice for representation if you are facing criminal investigation and/or charges. Hiring Brad Bailey Law, P.C. could be the difference between just reading Rulings Roundup or being featured in it... Call today: 857-991-1945 or 781-589-2828 for emergency assistance.

If you have this type of case contact Brad Bailey one of the top criminal defense lawyers in Boston.