Criminal Defense Blog

APRIL 21, 2014

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In a recent opinion, a judge at the United States District Court, District of Massachusetts ruled that the evidence obtained by the government pursuant to the defendant’s agreement to provide it in exchange for immunity may not be offered against the defendant, despite the government’s arguments that the defendant waived his immunity under the proffer agreement and that its use of the evidence constituted a permissible “derivative use” under the agreement.

In United States v. Scott, the defendant learned that he was the target of a federal investigation into alleged mortgage lending fraud in February 2009. The defendant entered into a proffer agreement with the U.S. Attorney’s Office, drafted by the government, which provided him certain immunities. Specifically, the proffer agreement provided that “no statements made or other information” provided by the defendant would be used directly against him (with certain exceptions not relevant), but the government would be permitted to “make derivative use of, or may pursue any investigative leads suggested by, any statements made or other information” provided by the defendant.

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Posted In: Criminal Fraud , Due Process , Immunity , Warrants

MAY 12, 2014

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On April 29, 2014, the United States Supreme Court heard oral arguments in two criminal cases that have asked the Court to determine whether searching a person’s cell phone at the time he is arrested is a proper “search incident to arrest,” or an unreasonable search that infringes on the arrestee’s rights under the Fourth Amendment to the Federal Constitution. One of those cases – U.S. v. Wurie – is on appeal from the First Circuit in Massachusetts.

In Wurie, the police arrested the defendant in connection with a drug deal. Among other items that were on the defendant at the time of the arrest, the police seize two cell phones from him. After they were seized, the police observed that one of the cell phones repeatedly received phone calls from a number identified as “my house” on the external caller ID screen. A few minutes later, one police officer opened the cell phone and looked at the defendant’s call log. In doing so, the officer observed a photograph of a woman holding a baby, which was set as the phone’s wallpaper. The officer then navigated the cell phone to determine what phone number was associated with the calls from “my house.”

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Posted In: Arrest , Drug Offense , Evidence , Searches and Seizures , Warrantless Search

MAY 19, 2014

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Last week, the Massachusetts Appeals Court reversed the defendant’s conviction in a sexual abuse case, based upon the improper expert testimony offered by the Commonwealth at trial, and the defendant’s appellate lawyer’s failure to raise that issue on the original appeal of the conviction.

In Commonwealth v. Aspen, the defendant was convicted of one count of rape of a child under sixteen, six counts of rape, two counts of indecent assault and battery, and one count of assault and battery, all in relation to accusations of sexual abuse made by the defendant’s stepdaughter. At trial, over the objection of the defendant’s trial attorney, the court permitted an expert witness to testify about general behavioral characteristics of sexually abused children in a manner that could have improperly suggested to the jury that the stepdaughter’s testimony was credible.

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Posted In: Assault and Battery , Criminal Appeals , Expert Testimony , Ineffective Assistance of Counsel , Sex Offense

MAY 26, 2014

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Last week, the Massachusetts Supreme Judicial Court (SJC) reversed the conviction of a criminal defendant for first degree murder after finding that the trial judge had erred in instructing the jury as to their deliberations on first degree murder versus the lesser offense of second degree murder.

In Commonwealth v. Figueroa, the defendant did not deny that he shot and killed the victim. Instead, the issue was whether the defendant’s killing was done with the intent to kill or deliberate premeditation. If the jury believed that the defendant had the requisite intent, then a verdict of first degree murder would have been appropriate. However, if the jury believed that the defendant was so intoxicated from alcohol and/or cocaine that he could not have formed the legal intent, then a conviction of second degree murder would have been appropriate.

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Posted In: Homicide , Intoxication Defense , Jury Instructions

JUNE 9, 2014

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On May 19, 2014, the Massachusetts Supreme Judicial Court (SJC), in Commonwealth v. Sepheus, reversed the conviction of a defendant convicted of possession of cocaine with intent to distribute, and determined the defendant is entitled to a new trial, because trial counsel was ineffective for failing to object to a portion of the Commonwealth’s expert’s testimony. The portion of the expert’s testimony to which counsel did not object was the expert’s response to questions counsel asked that allowed the expert to offer his own opinion as to the defendant’s guilt.

The defendant was arrested on outstanding warrants in Springfield, MA on September 30, 2009. At the time of the arrest, the defendant was with another man, whom Springfield police observed perform what they believed to be a narcotics transaction. Both the defendant and the other man were arrested. Defendant was found in possession of three small bags of “crack” cocaine, weighing approximately 0.4 grams and packaged individually in the twisted-off corner of a sandwich bag, and $312 in currency. The defendant did not have in his possession a device to ingest the drug.

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Posted In: Drug Offense , Expert Testimony , Ineffective Assistance of Counsel

JUNE 30, 2014

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Last month, the Massachusetts Appeals Court reversed the Boston Municipal Court’s denial of a defendant’s motion to suppress evidence of his post-arrest breathalyzer test as evidence of his alleged operation of a motor vehicle while under the influence of alcohol. The decision examined the regulations applicable to breathalyzer test results and their reliability.

In Commonwealth v. Hourican, the defendant had driven his vehicle into a police patrol wagon. Police observed that the defendant had “glassy eyes” and smelled of alcohol. After failing two out of three field sobriety tests, the defendant was arrested. He then consented to a breathalyzer test in which he produced two breath samples. One sample measured 0.121% blood alcohol content (BAC), and the other measured 0.143%, resulting in a differential between the two samples of 0.022%. Both samples indicated that the defendant’s BAC level was above the legal limit of 0.08%.

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Posted In: Breathalyzer Tests , OUI , Operating Under the Influence