Commonwealth v. Lima (Lawyer Weekly No. 11-077-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1746 Appeals Court COMMONWEALTH vs. VIRGEN MILLIE LIMA. No. 13-P-1746. Suffolk. November 13, 2014. – July 22, 2015. Present: Cypher, Fecteau, & Massing, JJ. Motor Vehicle, Insurance. Insurance, Motor vehicle insurance, Defrauding insurer. Fraud. Larceny. False Pretenses. Practice, Criminal, Required finding. Indictments found and returned in the Superior Court Department on March 11, 2010. The cases were tried before Regina L. Quinlan, J. Charles Allan Hope for the defendant. Christopher Hurld, Assistant Attorney General, for the Commonwealth. CYPHER, J. The defendant, Virgen Millie Lima, appeals from convictions by a Superior Court jury of two counts of motor vehicle insurance fraud under G. L. c. 266, § 111B, and two counts of larceny under G. L. c. 266, § 30.[1] The defendant argues that there was insufficient evidence of intent to defraud and that she did not commit larceny by false pretenses, because there was no property stolen from Safety Insurance Company (Safety Insurance). We affirm. Background. The charges against the defendant arose from an investigation by the Massachusetts Insurance Fraud Bureau (IFB), which was prompted by two referrals from Safety Insurance involving the same car dealership and the same insurance agency. The investigation began in 2008 while the defendant was employed as a licensed insurance agent by Brighton Insurance Agency in Brighton (Brighton Insurance). Following the IFB investigation, in which the investigator discovered a pattern of commercial vehicle policies involving undocumented drivers, a report of the findings was submitted to the office of the Attorney General. After review, that office sought indictments from a grand jury that charged the defendant with fraudulent statements or representations in three applications for commercial automobile insurance, prepared by the defendant and submitted by Brighton Insurance to Safety Insurance. The defendant also was charged with larceny in respect to those policies.[2] Facts. A significant portion of Brighton Insurance’s business involved serving a large influx of Brazilian immigrants, many of whom had Brazilian driver’s licenses. Brighton Insurance actively sought their business by advertising that it had staff fluent in Spanish and Portuguese, including the defendant. Similarly, many customers of an automobile agency, Inman Motors in Somerville, were Brazilian, and were referred to Brighton Insurance for their insurance needs. They were assisted in making that connection through the efforts of Wanderson Silva, one of Inman’s employees. Gordon Owades, the majority partner in Brighton Insurance, testified […]
Commonwealth v. Rex (Lawyer Weekly No. 10-118-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11480 COMMONWEALTH vs. JOHN REX. Norfolk. March 3, 2014. – July 9, 2014. Present: Ireland, C.J., Spina, Cordy, Gants, Duffly, & Lenk, JJ. Obscenity, Child pornography. Habitual Offender. Practice, Criminal, Dismissal, Grand jury proceedings. Grand Jury. Lewdness. Probable Cause. Constitutional Law, Freedom of speech and press. Evidence, Photograph. Indictments found and returned in the Superior Court Department on January 18, 2012. A motion to dismiss was heard by Mitchell H. Kaplan, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Varsha Kukafka, Assistant District Attorney (Anne Yas, Assistant District Attorney, with her) for the Commonwealth. Bruce W. Carroll for the defendant. Carlo Obligato, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief. SPINA, J. A Norfolk County grand jury indicted the defendant, John Rex, on seven counts of possession of child pornography, G. L. c. 272, § 29C, and seven counts of being a habitual offender, G. L. c. 279, § 25.[1] Relying on Commonwealth v. McCarthy, 385 Mass. 160 (1982), the defendant filed a motion to dismiss the indictments, which the Commonwealth opposed. He claimed that the seven photocopies of photographs of naked children (excerpted from a National Geographic magazine, a sociology textbook, and a naturist catalogue) on which the indictments were based did not constitute child pornography within the meaning of G. L. c. 272, § 29C, and were protected by his right to free speech under the First Amendment to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights. Following a hearing, a judge in the Superior Court allowed the motion to dismiss, concluding that none of the photocopies constituted a “lewd exhibition” of the children’s body parts as described in G. L. c. 272, § 29C (vii). The Commonwealth filed an appeal pursuant to G. L. c. 278, § 28E, and Mass. R. Crim. P. 15 (a) (1), as appearing in 422 Mass. 1501 (1996). The case was entered in the Appeals Court, and we transferred it to this court on our own motion. At issue is whether the judge properly dismissed the indictments on the ground that the grand jury were not presented with any evidence to support a finding of probable cause to arrest the defendant for possession of child pornography. Because we conclude that the photocopies did not […]
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Holland, et al. v. Jachmann, et al. (Lawyer Weekly No. 11-047-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13‑P‑0280 Appeals Court RANDYE M. HOLLAND, trustee,[1] & others[2] vs. EMIL JACHMANN & another[3] (No. 1). No. 13‑P‑280. Hampden. January 8, 2014. ‑ May 14, 2014. Present: Kantrowitz, Vuono, & Sullivan, JJ. Consumer Protection Act, Unfair or deceptive act, Attorney’s fees. Practice, Civil, Consumer protection case, Attorney’s fees. Damages, Attorney’s fees. Contract, Performance and breach, Agreement not to compete. Attorney at Law, In‑house counsel. Civil action commenced in the Superior Court Department on July 27, 2006. The case was heard by Peter A. Velis, J.; postjudgment motions regarding attorney’s fees were heard by him; and entry of a final amended judgment was ordered by him. Susan E. Stenger (Thomas T. Reith with her) for the defendants. George Stanbury, of California, for the plaintiffs. KANTROWITZ, J. Of significance, we are asked whether attorney’s fees for legal work performed by in-house counsel may be awarded under G. L. c. 93A. We hold that, in the discretion of the trial judge, such fees may be awarded. The plaintiffs (sometimes referred to collectively as Omniglow) brought the present action against Cyalume Technologies, Inc. (Cyalume), and Emil Jachmann, its chief executive officer (collectively, defendants), seeking to remedy the defendants’ efforts to undermine the plaintiffs’ business. After a seventeen-day, jury-waived trial, the judge found the defendants liable for numerous breaches of contract, conversion, and violations of G. L. c. 93A. Several posttrial proceedings ensued, concluding in a final judgment entered on August 1, 2011, largely in favor of the plaintiffs. Following the disposition of the postjudgment motions, an amended final judgment was entered on July 12, 2012. On appeal, the defendants raise many issues. While involved and complicated, ultimately they are of a garden variety, albeit weed-infested, and best resolved via an unpublished memorandum and order pursuant to our rule 1:28 that is also being issued today. Holland v. Jachmann (No. 2), post (2014). As such, we concern ourselves here only with the c. 93A issues. Background. This business dispute arose out of a complicated transaction through which the Omniglow Corporation, a manufacturer of light sticks and other luminescent products, was effectively split into two companies. In late 2005, the company now known as Cyalume purchased the profitable segments of the Omniglow Corporation consisting principally of sales in the government, military, and safety (GMS) markets. As a condition of the […]