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Recent news articles featuring attorney calcagni

Language barrier at issue in drunk-driving case

Lawyer vows to appeal

By Phillip Bantz
Rhode Island Lawyers Weekly
Published: April 1, 2011

Providence lawyer John L. Calcagni III recently lost a hard-fought OUI trial in which his defense hinged on the language barrier between his client and the trooper who arrested him. But the case, which was decided by a jury in New Bedford, Mass., appears to be far from over.

On the night of Dec. 22, 2009, a Massachusetts State Police trooper stopped Calcagni’s client, Daniel P. DaLomba, for driving erratically after a witness reported seeing DaLomba’s vehicle drifting across three lanes of traffic and travelling 15 mph under the speed limit, according to an arrest report.

DaLomba, a Cape Verdean immigrant living in Pawtucket, speaks Creole and some Portuguese, but virtually no English. By communicating through physical gestures, the trooper had DaLomba, 53, perform a series of roadside field sobriety tests, which he said DaLomba failed.

The trooper detained DaLomba, took him to a nearby police barracks and gave DaLomba a copy of his statutory rights in Spanish, which he believed DaLomba understood.

After looking over the form, DaLomba agreed to take a breath test, which registered his blood-alcohol level between .15 and .23 percent, according to the arrest report. The legal driving limit is .08.

DaLomba was convicted of OUI following a trial in New Bedford District Court. But Calcagni plans to appeal the verdict. He recently spoke with Lawyers Weekly’s Phillip Bantz about Commonwealth v. DaLomba.

Q. Is a language barrier between an officer and a driver a fairly common issue? Have you tried other cases like this one?

A. Actually, this is the first case I’ve ever had like this. I think it’s a novel issue, but one that is being or will be encountered by other lawyers in coming years. I really think it’s a neat issue that’s probably affecting other lawyers or people who perhaps don’t have the means to press the issue.

Q. DaLomba’s arrest report states that he understands Spanish, but is that true?

A. Actually, it’s not. He doesn’t speak any Spanish. He may have understood a word or two, but he doesn’t understand the language. He testified at the motion hearing that the officer just kind of pointed and my client signed. And for that reason, the blood alcohol was excluded as evidence.

Q. What evidence did the jury have to consider during the trial?

A. It was really just the officer’s observations: the standard field sobriety test and the operation of the vehicle. The field sobriety test was really the thrust of the state’s evidence.

Q. How did you address the field sobriety results?

A. We attacked that [evidence] by [emphasizing] the fact that Mr. DaLomba said he didn’t understand what the officer was saying that night. The officer indicated that it is his practice to demonstrate how you do the tests, but he doesn’t demonstrate the whole test. He just goes through the preliminary motions. So it was impossible for my client to have a meaningful understanding of what was actually required of him.

Q. You tried to suppress the field sobriety test, right?

A. Absolutely. The judge denied the motion. Apparently there is no statutory requirement to advise a person of their rights before they are given a field sobriety test. And so basically [the judge] found that the defendant understands a limited amount of English, and this was enough for him to comply with the field tests but not enough for him to consent to the breath test, which I thought was an odd discrepancy myself. … I’d say that if [jurors] didn’t have that field test evidence, there would be no conviction for DaLomba.

Q. If DaLomba didn’t understand the officer, why didn’t he decline to cooperate?

A. We had a foreign language expert testify about this. It’s called gratuitous concurrence. Basically, DaLomba’s reply was yes to all the questions because he didn’t understand. It’s the same thing that happens when you have an expert in a certain subject talking to someone with a very limited understanding of the subject. The person with limited understanding will agree with whatever the expert says.

Q. Just how limited is DaLomba’s grasp of English?

A. Our expert said he knows, gratuitously, like 50 words in English. And he’s also very limited with Portuguese, too. When I started working with DaLomba in court before the trial, we had a Portuguese interpreter. [DaLomba] always said he could understand Portuguese, but one interpreter urged me to get a Creole interpreter. When I got the Creole interpreter, my interaction with my client was like night and day. I would ask him questions to trick him, and he would come up with rock-solid answers. He also seemed to open up personality-wise. Come to find out, DaLomba’s got a third-grade education and it’s in the Cape Verde education system where Portuguese was taught, but on the streets it’s Creole.

Q. So on appeal I assume you’ll focus on trying to get that field sobriety test tossed out. Can you discuss the argument you plan to bring?

A. I’m going to argue that the motions judge committed error when he refused to exclude the field sobriety test, and I’m going to argue that while there is no statutory requirement for rights advisement for a field test, the law obviously acknowledges that someone being administered a test, like a breath test, has knowledge of what’s being asked of them and what’s being expected of them and how the information being provided is being used against them. Right now, a guy like Mr. DaLomba is at a complete disadvantage from step one. It’s like sitting down for a test without having been given any of the study materials.

Q. Have you found any caselaw to back up your argument?

A. I haven’t found much guiding caselaw on this issue of language and field sobriety tests. I did find a couple of cases in New Jersey that weren’t exactly on point and some that held weight against me, basically saying that driving is a privilege, and in order to obtain that privilege people have to give up certain rights, such as complying to tests on the roadside. Obviously, I will not be citing those cases.

 

6th Circuit decision chills e-mail seizures
Expected to impact prosecutors in R.I.

By David Frank
Rhode Island Lawyers Weekly
Published: April 7, 2011

Practitioners say a landmark 6th U.S. Circuit Court of Appeals ruling should spell the end of a long-standing practice in Rhode Island and across the country of federal prosecutors seizing e-mails without warrants.

In U.S. v. Warshak, the court held that because a criminal defendant had a reasonable expectation of privacy in the more than 27,000 e-mails stored on his Internet Service Provider, prosecutors could not access them by simply issuing an ex parte secret subpoena under the Stored Communications Act.

“This is the first time any appellate court has issued a final judgment indicating that the Department of Justice’s 25-year practice of acquiring the content of citizen e-mails violates the Fourth Amendment,” said Martin G. Weinberg of Boston, who represented the defendant in the case. “It constitutes a seismic change in how the government is going to attempt to acquire the content of e-mails.”

Boston’s Robert M. Goldstein, who represented a co-defendant company in the case, described Warshak as “a watershed decision applying Fourth Amendment jurisprudence to the evolving technological applications of today’s society.”

The government, which declined to seek en banc review, unsuccessfully argued that it had properly relied on the SCA to acquire the e-mails from a third-party ISP.

Judge Danny J. Boggs, writing for the court, held that the statute is unconstitutional to the extent it allows prosecutors to read e-mails without first obtaining a search warrant.

“The police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call — unless they get a warrant,” the judge said. “It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber’s emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement absent some exception.”

On notice

Providence lawyer George J. West said one reason the case has drawn so much attention is that the court applied fundamental constitutional principles to a 21st century form of communication.

Because the judge’s reasoning was not limited to the facts of Warshak or to 6th Circuit law, West said, it will undoubtedly be cited in cases in which e-mail seizures are challenged.

“We use e-mail so ubiquitously now, and people certainly expect that their e-mail communications will remain private,” he said. “I’m sure that lawyers will look to this case when seeking to uphold the right [that] individuals have to be free from intrusion, unless a neutral magistrate issues a warrant based on probable cause.”

Although the issue has not been addressed by the 1st Circuit, John L. Calcagni III of Providence said the law generally disfavors any government interception of a communication without a search warrant.

“I don’t think you’d find an American out there who would disagree with the fact that we have an expectation of privacy in communications we transmit through e-mail,” he said. “Because of the changing technology, the law itself needs to evolve. This seems to be a case where the justices in the 6th Circuit have addressed those changes in a way that is consistent with the protections of the Fourth Amendment.”

DOJ spokeswoman Laura Sweeney declined to comment.

Allison D. Burroughs, who practices in Nutter, McClennen & Fish’s government investigations and white-collar crime group, said the decision puts a serious dent in the viability of the SCA.

The Boston lawyer, who supervised the computer crime and intellectual property divisions of the U.S. Attorney’s Office during her 16-year tenure as a federal prosecutor, said the court clearly found the law, enacted in 1986, was outdated and in need of reform.

“This decision is going to require the [SCA] to be revisited by Congress if they want prosecutors to have ways to get content other than through a search warrant,” she said. “As a practical matter, they have essentially invalidated a big chunk of the law.”

With the court’s ruling now law, Weinberg said, federal practitioners in all circuits should move to suppress any e-mails seized from a commercial ISP without a warrant.

“If the government chooses to avoid Warshak, they do so at their own risk because any other court will look at the legal landscape and know the courts of appeal are 1-0 against them,” he said. “Defendants will certainly have a far more principled basis to contend that suppression was mandated post-Warshak than pre-Warshak.”

Any such challenge will now inevitably begin with an analysis of the decision, Weinberg said.

“The DOJ and its lawyers are on clear notice that the Fourth Amendment applies and that if they are seeking the contents of your e-mails, they must have probable cause, a warrant, and it must be particularized,” he said. “The court that sits in the heartland of this country has told the government ‘no,’ and said that what they’ve been doing all these years offends the concepts of the founding fathers and the Constitution.”

27,000 messages

In the early 2000s, the Department of Justice began investigating defendant Steven Warshak and his company for conspiracy, fraud and money laundering.

Prosecutors in January 2005 obtained a sealed order under the SCA, which required the defendant’s ISP, NuVox, to turn over his e-mails. The ex parte order also prevented the ISP from notifying the defendant of the request.

The order led to the seizure of 27,000 private e-mails, many of which included attorney-client communications, Weinberg said. The defendant moved to exclude on grounds that the e-mails had been obtained in violation of the SCA, a statute that allows the government to compel a service provider to disclose certain customer communications.

Although a 6th Circuit panel found in 2007 that the defendant had a reasonable expectation of privacy in the e-mails, the decision was vacated on procedural grounds during an en banc review.

At trial, the defendant was convicted and sentenced to 25 years in prison.

On appeal, he argued that the seizure of the e-mails violated his rights under the Fourth Amendment.

‘Enduring consequence’

In finding that a constitutional violation had occurred, Boggs wrote that e-mail plays an “indispensable” role in the information age, and defendants today clearly have a subjective expectation of privacy in them.

Given the nature of the defendant’s incriminating e-mails, it was highly unlikely he expected them to be made public, the judge said, noting that the issue before the court was whether society was prepared to recognize such an expectation as reasonable.

Boggs said the question was one of “grave import” and “enduring consequence,” considering the prominent role e-mail has assumed in modern communication.

“Since the advent of email, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place,” he said. “People are now able to send sensitive and intimate information, instantaneously.”

As more citizens use e-mail as their primary means of communication, the judge wrote, it would defy common sense to afford their messages less protection than letters or phone calls. He said the ISP is the functional equivalent of a post office or a telephone company.

“The Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish,” the judge said. “[I]t is manifest that agents of the government cannot compel a commercial ISP to turn over the contents of an email without triggering the Fourth Amendment.”

Although he said the government relied in good faith on the SCA, such an argument could not control.

“If every court confronted with a novel Fourth Amendment question were to skip directly to good faith, the government would be given carte blanche to violate constitutionally protected privacy rights,” Boggs said. “The doctrine of good-faith reliance should not be a perpetual shield against the consequences of constitutional violations.”

 

Benning soldier convicted of having self shot

The Associated Press - Published by ArmyTimes.com
Posted : Wednesday Sep 15, 2010 10:09:47 EDT

FORT BENNING, Ga. — A Fort Benning soldier was convicted of charges that involved having a fellow recruit shoot him in the leg so he could get a medical discharge from the Army.

Pvt. Jonne T. Wegley was convicted Monday at a court-martial on charges that included solicitation to commit aggravated assault, intentionally inflicting self-injury and conspiracy. He was acquitted of maiming.

Wegley was sentenced to four months' confinement and a dishonorable discharge. Prosecutors had asked for three years in prison and a bad conduct discharge.

The Columbus Ledger-Enquirer reported that William M. Hudgins, who served with Wegley during basic training last year, testified that Wegley offered him $5,000 and a job in exchange for shooting him.

Hudgins said the plan was for him to hide a round in his boot while the two were on the firing range. Then they would walk into a nearby wooded area and Hudgins would shoot Wegley in the left leg. He testified Monday that Wegley gave him $102 as a down payment.

"Private Wegley is a self-serving individual willing to do anything to get out of the Army," said Capt. Caitlin Chiaramonte, the prosecuting attorney. "Private Wegley not only ruined his career, but Mr. Hudgins' career."

Wegley's attorney, Maj. John Calcagni, said Wegley could have gotten out by refusing to train. "This story doesn't make any sense," he said. "He said that Wegley was going to pay him $5,000. Where does a private E-1 get that kind of money?"

Prosecutors argued that Wegley was depressed. His brother had been seriously injured and was in the hospital, and his girlfriend had aborted their child and found proof of him cheating on her.

Hudgins was convicted earlier and served 10 months in confinement.

 

Fall River man held on threat charges

By Kevin P. O'Connor
Herald News Staff Reporter - Published by www.HeraldNews.com
Posted Jul 02, 2010 @ 08:09 PM
Last update Jul 02, 2010 @ 08:23 PM

Fall River — Bruce Vitrano has to hope the judge who hears his case is a car racing fan.

Without that, the Roadrunner could be stalled.

Vitrano, 59, of Union Street, who is known as “Roadrunner,” was ordered held in custody until he posts $5,000 bail on charges that he made threats when entering the Fall River Justice Center, 186 S. Main St., on Thursday.

Court officers allege Vitrano was noisy and appeared to be in a hurry when he walked into the court complex. He was arrested after he allegedly told officers at the security gate he was late for an appointment with his probation officer and that he had a double barreled-shotgun on his leg and nitrous oxide in his bag.

Close, but not quite, said Vitrano’s lawyer, John Calcagni III.

“He is incredibly regretful for what occurred yesterday,” Calcagni said. “But what he said was that he had a double-barreled carburetor on his legs and nitrous oxide in his bag.”

Double barrel carburetors and nitrous oxide packs were both modifications made for muscle cars, like the Plymouth Roadrunner, in the 1960 and 1970s. A car with those modifications was significantly faster.

District Court Judge Deborah Dunn set bail at $5,000 cash. A probable cause hearing is set for July 30. If the case has not been presented to a grand jury by that date, a District Court judge will determine if there is enough evidence to continue the case for trial in Superior Court.

If convicted of making a threat to disrupt the peace of a public place, Vitrano could face up to 20 years in prison.

 

Three charged in late-night shooting that left 2 injured

By Kevin P. O'Connor
Herald News Staff Reporter - Published by www.HeraldNews.com
Posted Jul 02, 2010 @ 08:00 PM

FALL RIVER —

Two men were shot at the corner of Plymouth Avenue and Rodman Street just before midnight Thursday.

They survived and three people are in custody, charged with attempted murder.
Police dispatchers were flooded with calls at 11:30 p.m., reporting gunfire in the alley between a filling station and a fast food restaurant.

Officers saturated the area, the first officers finding two men down with gunshots, one of them in the service station, one still and bleeding in the alley. The men, ages 19 and 20, share a home on Hartwell Street.

As more officers raced into the area, officers David Lafleur and John Robinson pulled up Hartwell Street and reported they saw several witnesses shouting to them and pointing at a Geo Tracker ahead of them in traffic.

They stopped the car and saw three people inside, one of them reaching under the passenger seat of the car.

All three were removed from the car at gunpoint. Police searched the car and found a .22-caliber semi-automatic pistol, its slide locked back — something that happens when a pistol is fired until it is empty.

They arrested Chantra Say, 19, of Stevens Street, Mary Huot, 19, of Fordney Street, and Jessika Sardinha, 19, of Edgemond Street.

“The shooter was Chantra Say,” said prosecutor Carolyn Morrisette. “He was accompanied by Mary Huot. After the shooting, they ran and were picked up by Jessika Sardinha.”

Eight shell casings were found at the scene of the shooting.

Police allege that Sardinha borrowed her mother’s car and then went with Huot to pick up Say. They then drove to Rodman Street and pulled into the parking lot next to a converted mill building that is behind the McDonald’s Restaurant and the Shell Gas station at the corner of Plymouth Avenue and Rodman Street.

Say and Huot got out of the car and Say saw the two men. He began running toward them, shooting as he ran, hitting both men, police said.

One man was shot in the pelvis, neck and thigh, the bullet shattering a leg bone. The other man was shot in the side and the back, Morrisette said.

Morrisette asked that Say and Huot be kept in custody until a hearing to allow the District Attorney’s office to argue they are too dangerous to be released. She requested bail of $10,000 cash for Sardinha.

Lawyers Gregory DiPaulo, representing Mary Huot, and John Calcagni III, representing Say, agreed to a July 9 hearing to determine if their clients should be granted bail. The two will be held in custody until that time.

Lawyer William Tenczar asked District Court Judge Deborah Dunn to set bail at less than the requested $10,000 for Sardinha.

“My client had no knowledge of any of the activities that took place away from her vehicle,” Tenczar said. “She was in fear when she heard the gunshots. She saw her friends running from the area. She thought they were fleeing the scene out of fear of the gunshots.”

Bail was set at $10,000 cash for Sardinha. She did not post bail before the close of court Friday.

All three were charged with two counts of attempted murder, two counts of assault with a deadly weapon, carrying a firearm in the commission of a crime, using a firearm in a felony, illegal possession of a firearm and ammunition and possession of a large capacity firearm.

Sardinha was also charged with being an accessory after the fact of a felony.

Though police allege only Say had a pistol and he was the only person to fire, all three were charged with all the counts because police say they were all part of a conspiracy. The crimes of one are the crimes of all members of a conspiracy.

The district attorney now must present the case to a grand jury and secure an indictment to try the case in Superior Court. The charge of attempted murder carries a sentence of up to 20 years. Attempted murder with a firearm carries a minimum sentence of 10 years.

If any of the three are ordered held in custody pending trial, they must be brought to trial within 90 days.