In Kelly v. United States, issued this week—the so-called “Bridgegate” case—the Supreme Court once again limits the use of federal criminal fraud statutes to establish a standard of good government for state and local governments. As in McNally v. United States and Skilling v. United States, the Court in Kelly continues to insist that fraud, to be a federal crime, must have as its goal the obtaining of money or property. Until the Court decided McNally in 1987, courts had approved of convictions where a defendant sought to deprive the victim of the “honest services” of someone who owed a fiduciary duty to the victim, on the theory that such services were “property” of the victim. The Court rejected this expansive definition of property in McNally, narrowing the scope of the mail and wire fraud statutes. Congress immediately amended the statutes in 1988 to reinstate the broader concept: “For the purposes of this chapter, the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.” In Skilling the Court again took up “honest services” fraud and held that the statutes encompass only such schemes as involve bribery or kickbacks. After Skilling all federal fraud cases must either involve money or property as the goal of the fraud, or if the goal is subversion of “honest services” it must be by means of bribery or kickbacks. Since in Kelly no bribes were given, the government advanced two ways they said that the defendants deprived the Port Authority, which operated the bridge, of property.
On November 6, 2019, David Duncan and Norman Zalkind won a not guilty verdict after trial for their client charged with assault and battery with a dangerous weapon in the district court in Boston. The jury did not reach a verdict on a charge of assault and battery, which remains pending.
As part of the substantial criminal justice reforms enacted last year, the Massachusetts legislature gave a break to certain “first offender” juvenile delinquents. It did so by narrowing the definition of “delinquent child” found in G.L. c. 119 § 52, which effectively divests jurisdiction from the Juvenile Court for such “first offenders” because the Court has no jurisdiction except of “delinquent children.” In relevant part, the statute now defines “delinquent child” to be “a child between 12 and 18 years of age who commits any offense against a law of the commonwealth; provided, however, that such offense shall not include . . . a first offense of a misdemeanor for which the punishment is a fine, imprisonment in a jail or house of correction for not more than 6 months or both such fine and imprisonment.” Previously, a “delinquent child” was defined as “a child between seven and 18 who violates any city ordinance or town by-law or who commits any offence against a law of the commonwealth.”
As we have previously discussed on this blog, the Massachusetts wiretap statute makes it a crime to “secretly record” any person without their consent. The law has been used to prosecute and convict people who secretly record police activities. In Martin v. Gross and Project Veritas Action Fund v. Conley, an individual and a public-interest organization challenged the statute on First Amendment grounds. Chief Judge Saris of the U.S. District Court agreed with the challengers. In a decision published on December 10 of last year, Judge Saris held that the statute was unconstitutional insofar as it prohibited the secret recording of public officials (including police) engaged in their official duties in a public place. Police, and other public officials in Massachusetts, must now assume that their acts and statements are being recorded, whether they are told so or not. Continue reading
The “First Step” bill now circulating in the U.S. Senate promises to make some changes to sentencing and imprisonment that would ameliorate harsh penalties and treatment. However, it does not go far enough, and in some cases it actually takes a step backward. There are multiple provisions, but I will look at only one of them, which makes changes to the mandatory minimum sentences imposed on defendants convicted of drug offenses based on their prior criminal history.
Section 401 of the bill is titled “Reduce and Restrict Enhanced Sentencing for Prior Drug Felonies.” The bill does both of these things: it reduces the mandatory minimums applicable to each enhancement category, and it restricts the prior offenses that trigger enhancement. But it also adds an entirely new category of prior offense that can trigger enhancement.
Boston 25 News interviewed Attorneys David Duncan and Marty Rosenthal about a lawsuit against Sky Zone trampoline park in Massachusetts, in which they represent a plaintiff who suffered serious injuries while visiting the park. The interview was the result of an investigation into a pattern of similar injuries at Sky Zone trampoline parks across the state, many of which have sparked lawsuits. Watch the interview here.
In 2011, the Massachusetts Department of Public Health (“DPH”) discovered that state lab chemist Annie Dookhan had tampered with drug samples and falsified drug analyses submitted to DPH’s Hinton drug testing lab in Boston, where she was employed as an analyst, and that the tainted results were then used as evidence in criminal trials. Her misconduct began in 2003 and extended until the end of 2011. Over the course of the next two years the understanding of the scope of her misconduct grew, until it became apparent that over 40,000 criminal cases were affected. Multiple litigations later, the Supreme Judicial Court issued an opinion (its third involving Dookhan) which tried to find a middle way between wholesale dismissal of the cases she had a hand in analyzing and painstaking, time-consuming and expensive case-by-case determination of the impact of her misdeeds. As my colleague discussed at the time, in Bridgeman v. District Attorney for Suffolk District, the SJC fashioned a remedy in light of four principles:
- The government must bear the burden of taking “reasonable steps” to remedy egregious misconduct on its part;
- Relief from a conviction generally requires a convicted defendant to file a motion for relief;
- Dismissal of a criminal conviction “with prejudice”, i.e. without the option to re-file charges, is a remedy of last resort; and
- Where the misconduct affects large numbers of defendants, the remedy must be not only fair, but timely and practical.
We are pleased to announce that five of our attorneys have been selected to the 2018 Massachusetts Super Lawyers List. We would also like to congratulate six of our attorneys for being selected to the 2018 Massachusetts Rising Stars list.
Super Lawyers rates outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations, and peer evaluations. Only up to 5 percent of the lawyers in a state are named to the Super Lawyers list, and no more than 2.5 percent are named to the Rising Stars list.
Please join us in congratulating the following attorneys who have been selected as “Super Lawyers” and “Rising Stars” this year.
Zalkind Duncan & Bernstein LLP is proud to announce that firm partners Norman Zalkind, David Duncan, Inga Bernstein, Emma Quinn-Judge, and Monica Shah, and of-counsel attorneys Elizabeth Lunt and Harvey Silverglate are listed in the 2019 edition of The Best Lawyers in America. Best Lawyers is the oldest and most respected peer-review publication in the legal profession and rates attorneys by conducting exhaustive peer-review surveys in which tens of thousands of leading lawyers confidentially evaluate their professional peers. Congratulations to all!
Marijuana has been in the news this summer. Medical marijuana has been increasingly available in Massachusetts since it was approved, first by voters then by the legislature in 2012. There are currently 36 medical marijuana dispensaries regularly providing marijuana to medical cardholders. In the first half of 2018 well over 9,000 kilograms of marijuana has been dispensed to some 56,000 cardholders.
On July 1, in compliance with a ballot initiative approving the recreational use of marijuana, the state licensed the first grower for recreational marijuana, approving 10-20,000 square feet of grow space. That single licensee, by industry estimates, should be capable of producing, very conservatively, 30 grams per square foot per harvest, or 30-60 kilograms per harvest. Assuming 6 harvests per year, this licensee should be able to produce 180-360 kilograms of marijuana per year. There are 40 pending applications for cultivation licenses. In addition, recreational users are permitted to grow their own plants for personal consumption.