Boston Bar Assoc. Task Force- 3 recommendations for avoiding wrongful convictions

A BBA task force noted that for every defendant wrongly convicted, a criminal goes free. The report makes three key recommendations:

(1) Enactment of a Massachusetts statute to guarantee post conviction access to DNA testing and to require preservation of biologic forensic evidence. (Massachusetts is one of only 4 states that does not have such a statute).

(2) Expanding the membership and function of the Forensic Science Advisory Board to include scientists and lawyers who are not prosecutors. (The report cites a 2008 study by the National Academy of Sciences raising serious questions about the scientific foundation of significant portions of forensic evidence admitted in courts.)

(3) Videotaping confessions. (Based on a 2004 decision of the Supreme Judicial Court most police departments are now recording confessions of suspects. The number of departments who are doing videotapes rather than just audiotapes is still in the minority. Experience of those departments who are videotaping demonstrates that the evidence obtained is more effective because there is absolutely no doubt about what is happening during the witness interview.

Bit surprised that they did not recommend further reform of prosecutor's ability to buy testimony in the form of not prosecuting snitch witnesses for certain crimes--a major problem in numerous cases we have worked on over the years. The notion of sending a check for $70,000 to a witness in exchange for their cooperation seems obviously wrong. But the notion of giving someone 8 years of their life back by not prosecuting them (and what value do you put on a year in prison?--$70,00 per year? more?)--that tactic will continue unabated. Although a jury can weigh evidence of such side deals, the fact is that many inducements given by the government to snitch witnesses are not documented at all.

FINRA BrokerCheck fixes gaping hole in database.

Our tests show that changes to FINRA's Brokercheck have finally closed a major loophole in a database long criticized as outdated and difficult to use (previous editions were cumbersome: for example, users were required --in an era when name searches are the norm on almost any database--to specify past employers for a broker before checking their background; otherwise the search did not work).

Some estimate that more than 15,000 individuals who left the securities industry after facing regulatory action did not have their disciplinary history available on BrokerCheck. Those records became available this month. Many of those former brokers returned to the business world in different capacities and, like stock market vampires, found new victims. Repeated scandals in 2009 finally forced the industry to make this necessary change.

How to do a background check in Massachusetts

The big problem facing HR people is balancing costs with coverage. For example, some firms offer a "statewide criminal check" or even "national criminal check". Often times they are simply checking a database of convictions only -- a small universe of people compared to those who are charged. So if your guy has a record of being charged with sexual assaults against women in the workplace, but somehow pled out to misdemeanors or had the cases dismissed, a statewide convictions database would give you no reason to pause.

By searching the lower district courts for any cases filed, your background due diligence would allow you to find the cases and make your own evaluation. This is especially true in certain states such as Massachusetts, where the lower courts hear some felony cases, assaults, and various other serious crimes.

Your lawyer: trial lawyer or settlement artist?

One of the little truths that come to light as you go along in this business is that some lawyers never learn how to take a case to trial. I once sat in a meeting in California with a group of lawyers on joint defense case. Several big names; several big egos (the lawyers, not me). As we began, one lawyer, whose website bragged about extensive experience litigating major civil and white collar criminal cases, looked uncomfortable as the discussion proceeded --which witnesses were being contacted, what impeachment material was developing, etc. It became clear that this lawyer had done little pretrial investigation. He rarely did--the concept of a PI systematically interviewing witnesses was new to him. Rather stunning. The guy was all hat, no cattle.

Clients don't just want an attorney with a law degree; they deserve a intelligent street fighter, a trial lawyer who aggressively develops the facts of a case. Ask your lawyer what he does before trial. Those tasks have more to do with winning than his courtroom maneuvering.

Privacy is dead and no one cares

Recently, we tracked down a number of witnesses using the usual armada of investigative databases. However, some witnesses had moved recently and did not appear to have current addresses in the data. No problem: many witnesses between the ages of 21 and 30 had conveniently plastered their entire personal life on Facebook, Twitter, Bebo, etc. making follow up relatively easy. One witness when called on her "private" cell phone expressed dismay at the intrusion. Later, she realized that she had provided the cell phone to a numer of retailers who, to her surprise, resold her "private" cell number database firms.

The modern American: willing to give private contact information to grocery clerks in exchange for "special offers" on mustard.

Equifax stops selling credit reports for employment background checks

Although allowed under the Fair Credit Reporting Act, Equifax has stopped selling credit reports for employment background checks.
Use of credit reports by employers has become more controversial as many people have been hammered in this poor economy and otherwise reliable employees are thrown into credit difficulty by layoffs, mounting bills, mortgage defaults. etc.

Trader sues after being fired for relationship with Ponzi schemer Nicholson

Lindy Boville, a former trader, has sued RBC Capital Markets for gender bias over her firing, which she said stemmed from her dating a hedge fund manager later charged with fraud for running a Ponzi scheme. Boville accused RBC of using her relationship with James Nicholson as a pretext to fire her in March 2009 and assign her accounts to male workers, RBC spokesman Kevin Foster denied those allegations: "Ms. Boville showed poor judgment in helping Jim Nicholson raise money for his hedge fund and failing to disclose her activities to her supervisors. It is irrelevant that she had a personal relationship with Nicholson, and she should have told RBC what she was doing."

Nardizzi & Associates had warned an investment banking client in 2007 that something was amiss with Nicholson and his Westgate Capital firm. A grand jury in April indicted him for a scheme that caused $150 million of losses.

Massachusetts sets rules on GPS tracking by police

The Supreme Judicial Court ruled that secret GPS tracking of Massachusetts citizens is permissible under the state constitution provided that police obtain a warrant beforehand. The unanimous ruling written by Justice Judith Cowin upheld the drug trafficking conviction of Everett H. Connolly, a Cape Cod man who was tracked by State Police in 2004 after they installed a GPS device in his mini-van.

“We hold that warrants for GPS monitoring of a vehicle may be issued,’’ Cowin wrote. “The Commonwealth must establish, before a magistrate . . . that GPS monitoring of the vehicle will produce evidence’’ that a crime has been committed or is imminent. The SJC said the devices can be installed for up to 15 days before police must show cause for further tracking. Despite the overheated portrayal of the decision in the Boston Globe and Boston Herald, (both of which hype stories to counter their dance on the edge of bankruptcy), support for the ruling was fairly widespread among law enforcement and defense investigators.

$3.1 million settlement for client in Ayer wrongful conviction

Dennis Maher reached a $3.1 million settlement in his civil rights case against the town of Ayer. Maher was released from prison in April 2003 after having served 19 years of a life sentence for rape. He was exonerated when forensic tests revealed his genetic fingerprint did not match DNA evidence found at the scene of an alleged 1983 Ayer rape at the Caza Manor Hotel. Maher claimed his civil rights were violated due to the negligent management and training of Ayer Police Department investigators, including now-retired Officer Nancy Taylor-Harris.

Maher's civil case was based partly on evidence unearthed by private investigator John Nardizzi, who discovered that one of the alleged rape victims had faced criminal assault charges of her own during that era. These charges were dropped in exchange for her cooperation on the Maher case. Defense counsel was never told about the arrangement that Taylor and the Ayer Police had engineered with the victim/witness. The witness's criminal charge was transfered to another court and essentially disappeared from the public docket, only to be unearthed two decades later. The prosecutor who handled the Maher case later testified at his deposition: "Officer Taylor, in my opinion, engaged in misconduct by working some side arrangement with the victim not to prosecute her for a criminal case against the police department, and withheld that information from me."

Nardizzi also unearthed evidence that a key witness at trial, Richard Nichols, was well-known to Ayer Police and Nancy Taylor (who denied any memory of him in her deposition). Nichols was the son of a former police matron employed for decades at the Ayer Police Department. Moreover, Nichols had been arrested multiple times. Ayer Police were not able to produce any notes, reports, or statements from interviews with Nichols, despite the fact that a meeting between Nichols and Taylor was documented in a police log, and Nichols turned out to be the centerpiece of their case.

Supreme Court orders client Michael O'Laughlin released on bail

After nearly 9 years in prison, Michael O'Laughlin was release on bail last week. Attorney General of the Commonwealth of Massachusetts had filed any emergency motion with the US Supreme Court to keep Michael in prison. Associate Justice Stephen Breyer of the Supreme Court denied the Attorney General's motion and ordered Michael to be released with bail. Justice Breyer wrote: "Respondent’s liberty interest in release is particularly substantial given that it is not reasonably likely that this Court would grant a petition for certiorari filed by the Commonwealth."

The 1st Circuit Court of Appeals had overturned a Massachusetts Supreme Judicial Court decision earlier this summer, holding that the evidence presented could not permit any rational jury to conclude that O'Laughlin was the assailant beyond a reasonable doubt.

Can Johnny Read Nonverbal Cues?

Wall Street Journal has an opinion piece arguing social networking puts younger people at a face-to-face disadvantage. Although younger generations are communicating at a hurried and increased pace with a variety of technological gadgets, many of their communication tools involve the exchange of written words alone. The author argues they "are ever less likely to develop the "silent fluency" that comes from face-to-face interaction. It is a skill that we all must learn, in actual social settings, from people (often older) who are adept in the idiom. As text-centered messaging increases, such occasions diminish. The digital natives improve their adroitness at the keyboard, but when it comes to their capacity to "read" the behavior of others, they are all thumbs."

Interesting observation. In the dozens of successful con artists we have investigated over the years, almost all were described by friends and victims (who were often former friends or lovers) as having highly evolved social skills--charming in all the bad ways. If someone gave off signs saying they were a victim, these guys read that message and pounced.

Kroll sued for conflict of interest & faulty due diligence

Kroll, a risk consultancy firm (which is what private investigation firms morph into when they have office space in New York City), has been accused of “gross negligence” and of misleading investors via a “clean report” on Sir R. Allen Stanford. Kroll has fired its Latin American office chief Tom Cash over the incident.

Federal lawsuits allege Kroll engaged in a conflict of interest when it vetted Stanford for a trade group looking to protect its investments after the firm had previously worked for the Texas billionaire’s companies.

In a pair of lawsuits filed in May, the National Electrical Contractor’s Association reached out to Kroll in October 2006 to determine if it should continue buying high-interest certificates of deposit from Stanford International Bank. The association ended up losing all of its $2.5 million investment in what is believed to be a $8 billion Ponzi scheme.

NECA had paid Kroll $15,000 to perform due diligence on Stanford in April 2007. The contract had a stamped signature for Tom Cash, who took the money even though he and Kroll had been retained by Stanford in a prior case. “Kroll never disclosed Mr. Cash’s connection with Mr. Stanford and the obvious conflict that this relationship presented,” the NECA lawsuit states. NECA said Kroll’s due diligence report failed to reveal what industry experts have called “major, major, major red flags,” including:

~ The National Association of Securities Dealers levied a $20,000 penalty on Stanford

~ The U.S. Treasury Department issued an advisory in 1999 warning U.S. banks to scrutinize transactions involving Antigua due to corrupt regulation of offshore banks. The British Treasury issued a similar warning.

~ Kroll never highlighted the small size and unsophisticated nature of Stanford’s auditor, Antigua-based C.A.S. Hewlett.

The lawsuits also quotes one of Kroll’s own investigators, William Brittain-Catlan. “I’m amazed by the way people were taken in by ‘Sir Allen.’ There’s so much stuff out there that anyone who wanted to do a cursory check would have seen. Various allegations have been flying around for years,” said Brittain-Catlin, author of “Offshore: The Dark Side of the Global Economy.”

Appeal for en banc hearing in O'Laughlin case denied

This just in from Advocates for the Wrongfully Convicted:

The US First Circuit Court of Appeals has denied the Commonwealth of Massachusetts appeal for an en banc hearing. This means that the decision by the 3-judge panel that reversed Michael O'Laughlin's conviction on June 11, 2009 remains intact. The only option left for the Commonwealth is for the Attorney Generals office to file a petition for writ of cert to the US Supreme Court, and we believe they will. We expect the Commonwealth will move to stay the order (keeping Michael in prison) while the writ of cert to the US Supreme Court is pending. Michael's lawyer will file a motion for release and try to obtain bail for Michael so he can be released from prison.

No trespass at Harvard by Massachusetts private investigator

Yesterday morning, Judge Sragow dismissed all charges against our investigator Joseph Cadillic (and also those against his wife). Defense counsel argued that facts contained in the Harvard University Police report failed to establish the elements of trespass and breaking & entering. The judge agreed, and granted the motion to dismiss.

The DA made several contacts with sources at Harvard to determine whether the university wished for the judge to issue findings of fact and law (which could have set grounds for appeal). Harvard declined to do so.

Once again, the constitutional right of American citizens to be free from unreasonable searches and seizures has been upheld.

On Saturday afternoon, May 30, 2009, Harvard University police arrested the Cadillics without cause. This firm was assisting the Simmons Agency and MIT Crime Club with research on the murder of Justin Cosby and security measures at Harvard University.

Client Settles Civil Rights Case for $3.4 million

Our client, The Estate of Kenneth Waters, settled a civil rights case against The Ayer Police Department, Officer Nancy Taylor, and other Ayer police officers, for $3.4 million.

Kenneth Waters was wrongfully arrested and convicted. He served 18 years of a life sentence for the 1980 murder and armed robbery of Katharina Brow. Waters was released from prison after DNA evidence had revealed the blood of an unknown person at the murder scene. Waters died during an accidental fall shortly after being granted his freedom.

His sister, Betty Anne Waters, had put herself through law school in order to represent one client: her brother. She located the biological evidence and worked to have it subjected to DNA testing.

Waters complaint alleged that the Ayer Police and Taylor's deliberate bad-faith suppression of favorable evidence led to his conviction – including suppression of evidence that Waters was not the source of the perpetrator’s bloody fingerprint on a piece of a toaster on the dining room floor; as well as suppression of Waters’ time card from work, which cemented his alibi. Taylor was also accused of used coercive and suggestive tactics to manufacture falsely incriminating statements from witnesses Brenda Marsh and Roseanna Perry.

The civil rights case filed by Dennis Maher against many of the same defendants for similar actions during this era is pending.

RIAA piracy case appealed; was evidence obtained by unlicensed investigator?

The only illegal downloading case to go to a jury trial was appealed. Jammie Thomas-Rasset implored the judge to overturn the $1.9 million verdict, which she called "excessive, shocking and monstrous." In their motion, Thomas-Rasset's laers argued that much of the evidence used against her had been improperly collected by Media Sentry Inc, working on behalf of the Recording Industry Association of America (RIAA). They argued that the evidence gathered by Media Sentry should have been suppressed because the company did not own a private investigator's license.

Good listener? Party bore? Unsure of the difference?

Guy at party said upon learning a detective was in the group: "I always wanted to be an investigator -- I can talk to anyone!" The problem is not talking to anyone; the skill is getting others to talk to you in a genuine way. Reid offers some tips on listening skills:

1. Avoid assumptions before actually doing the interview. Listen fully to answers.
2. Recognize the difference between a personal judgment and a factual statement.
3. Do not assume every verbal slip-up is an admission of guilt. Develop context and follow up with specific questions in the area of concern.

Massachusetts sees increase in patent litigation

Mass Lawyers Weekly reported an increase in patent cases filed in Massachusetts after streamlined procedures and rules were implemented. Top venues for filing cases continue to be headed by the usual suspects: Northern California, Eastern Texas, and Delaware (which has long had a reputation for sophisticated handling of complex business cases).

Yeager case defines limits on white collar prosecutions

Interesting discussion of the USA v. Yeager case which defines the limits on the governement trying to repackage facts and charge defendants under different statutes after a jury already decided the conduct was not illegal.

Court of Appeals Reverses Conviction of client Michael O'Laughlin

In a rare decision upholding a lower court decision overturning a jury verdict, the 1st Circuit Court of Appeals overturned the Massachusetts Supreme Judicial Court [SJC] in the murder case of client Michael O'Laughlin. Citing the "the extremely high bar " in such instances, the court found in part: "Taken together, the circumstantial evidence in this case, even when drawing all reasonable inferences in favor of the prosecution, does not permit any rational jury to conclude that O'Laughlin was the assailant beyond a reasonable doubt." The opinion is notable for its thorough parsing--and ultimate rejection-- of the consciousness of guilt evidence cited by the SJC.

The court summed up the case as follows:

"A Massachusetts Superior Court jury had convicted O'Laughlin of the following counts: (1) burglary and armed assault in a dwelling; (2) armed assault in a dwelling; (3) armed assault with intent to murder; and(4) assault and battery by means of a dangerous weapon. The Superior Court then sentenced O'Laughlin to 35-50 years on Counts One and Two; 19-20 years on Count 3; and 9-10 years on Count 4, ruling that the sentences were to be served concurrently.

The intermediate Massachusetts Appeals Court reversed the judgments holding that there was insufficient evidence to support the verdicts. Commonwealth v. O'Laughlin, 830 N.E.2d 222 (Mass. App. Ct. 2005) (hereinafter "O'Laughlin I"). The Massachusetts Supreme Judicial Court ("SJC") reinstated the judgment reasoning that there was sufficient evidence to support the verdicts. Commonwealth v. O'Laughlin, 843 N.E.2d 617 (Mass. 2006) (hereinafter "O'Laughlin II").

O'Laughlin filed a petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts on grounds that (1) the SJC's (which had ruled that was objectively unreasonable because there was insufficient evidence to support a guilty verdict and (2) that the SJC violated his constitutional right to present a defense. The district court denied O'Laughlin's petition for habeas relief.

After careful consideration, we reverse the judgment of the district court and order the district court to grant the petition. "

A full factual recounting of the case is found here. Michael remains in prison pending a state appeal for an en banc hearing by a full panel of 1st Circuit judges.

Client Est. of Kenneth Waters wrongful conviction case will go to trial

The civil rights case filed by client The Estate of Kenneth Waters will head to trial after a summary judgment motion file by defendants Town of Ayer, Nancy Taylor, et al. was rejected by the trial judge.

Kenneth Waters was wrongfully arrested and convicted. He served 18 years of a life sentence for the 1980 murder and armed robbery of Katharina Brow. Waters was released from prison after DNA evidence had revealed the blood of an unknown person at the murder scene.

Waters complaint alleged that the Ayer Police and Taylor's deliberate bad-faith suppression of favorable evidence led to his conviction – including suppression of evidence that Waters was not the source of the perpetrator’s bloody fingerprint on a piece of a toaster on the dining room floor; as well as suppression of Waters’ time card from work, which cemented his alibi. Taylor was also accused of used coercive and suggestive tactics to manufacture falsely incriminating statements from witnesses Brenda Marsh and Roseanna Perry.

Investigator arrested without cause by Harvard police

On Saturday afternoon, May 30, 2009, Harvard University police arrested without cause one of our investigators, Joseph Cadillic, who was assisting the Simmons Agency and MIT Crime Club with research on the murder of Justin Cosby.

After identifying himself to a student, providing a business card, and his purpose for visiting, Mr. Cadillic requested permission to view the area of the shooting. Harvard police, instead of making a reasonable inquiry into how he came on campus, then arrested Mr. Cadillic and his wife Elissa (who was present but is not employed as an investigator).

Why does a university whose motto, Veritas, means truth, have a long history of dubious interpretations of law when it comes to witness access, due process, and free speech? This is especially true when events highlight certain unpleasant truths about drug use and violent crime at Harvard.

We look forward to all criminal charges against Mr. Cadillic being dismissed. We continue to seek information about Justin Cosby's murder on campus and encourage any information to be sent to us.

Lie detecting: focus on what people say, not how they act.

New York Times reports some researchers are focusing on speech content instead of body language as a better indicator of when someone is lying.

Background Check Myths

After our recent post about a background check that saved a client millions of dollars , some clients have called to ask how firms can offer "national criminal record checks" for $24.95.

The national criminal check is the unicorn of the industry-- a complete myth. Usually, these firms are checking a compilation of conviction data--people who actually spent time in prison. However, only a very small percentage of people charged with crimes ever do any time. National offender databases are misleading: they miss charges that have been pled out, dismissed, not prosecuted. A bit like taking a photo of someone's nose and selling it as a portrait.

Legality of GPS tracking

A Hingham incident shows how those who use (or misuse) GPS tracking systems can face civil and criminal prosecution. General rule is that the owner (or joint owners) of the vehicle can install a GPS tracking system. Anyone else may face an invasion of privacy suit -- or worse. Case law continues to evolve here.

Kroll, USIS, OPM investigators charged with falsifying background checks

Washington Post reported that employees for Office of Personnel Management as well as subcontractors Kroll and USIS, which handle the background inquiries for more than 100 federal agencies, lied about interviews they never conducted and submitted false statements.
In the race to the low price swamp, it has long been suspected that some firms offer background checks at prices they cannot afford without cutting corners ( "national criminal check"' for $4.95 anyone?). A shabby product is the logical result.

Senator Stevens' conviction overturned

Boston Globe reports a federal judge tossed out the conviction of former US senator Ted Stevens after the Justice Department admitted its prosecutors mishandled evidence in the corruption case. Two prosecutors did not turn over notes from an interview in April 2008 with the case's key witness--notes that contained exculpatory evidence. Veteran defense investigators know this is a not uncommon phenomenon: several agents
from different agencies sit in on one interview, and their notes differ vastly from the "official report" that is eventually turned over to the defense. Always good practice to identify everyone at the meeting, and review notes from everyone present.

Prosecutors who handled the trial have been removed from the case and their conduct is under investigation.

Death of weapons frisk greatly exaggerated after MA high court ruling

News reports are exaggerating the impact of a new Supreme Judicial Court ruling in Massachusetts on a police officer's right to stop and frisk suspects for weapons. This right was established in 1968 in the Supreme Court case Terry v. Ohio. In Commonwealth v. Paul Gomes, the SJC held that conducting a pat frisk of a suspect solely on a general concern that he was in a high crime area violates the Fourth Amendment prohibition on unreasonable searches and seizures. Key line in the SJC case : " Officer Walsh gave no testimony that the police observed anything suggesting that the defendant had a weapon." Coupled with no weapons priors for Gomes, the search was found to be unreasonable.

No new law here. Just a reminder that, if no requirement existed for specific suspicions about a suspect, residents in high-crime areas could be pat frisked while simply walking in their neighborhood.

Detecting a liar - the punishment question

Last week, traveled to Argentina with the Boston Braves Football Club, and played against retired veteran from legendary clubs Boca Juniors and River Plate, as well as others. We did OK (no scores please), but the rat-a-tat-passing and superior ball skills of the Argentines was impressive . With help from my amigos, I witnessed an interesting incident at a Buenos Aires shop whereby an owner grilled an employee over suspected theft (in the open-- a slight departure from USA custom). Owner asked, "What do you think I should do to the person who stole the . . .?" This was interesting: many US interview courses teach this as a key component during the interview process. Called the punishment question by some (Reid), truthful suspects are open to some degree of appropriate punishment.

Men in suits lie too

Bloomberg published a good piece on investors increasingly hiring private investigators to conduct due diligence on hedge fund owners. The low-rent marketing beloved by bankers since the 1950s (open New Account -- win free Napkin!) should have been a clue that suits & ties fit both gentlemen and con men. Mama was right--appearances count. A reluctant witness once told me, " I wasn't going to speak about this case, but you look legitimate-- such a nice suit . . ."

Great assets of Bernie Madoff

Rumblings of massive asset searches underway worldwide (investors are not waiting for the feds to conclude work) for accounts linked to the businesses run by Bernie Madoff.

One question bantered about recently by veteran researchers: does Gramm-Leach-Bliley Act cover business accounts? More specifically, are businesses considered "customers" under the act and thus protected by the sort of tactics once used to find assets hidden by scam artists like Madoff? General counsel for one large firm advised me the act does cover business accounts, but others disagree--off the record. No one wants to be the test case.

Due diligence pays for Nardizzi client


In the wake of repeated news of SEC investigations of hedge fund and investment management firms, an investment bank credited an early-stage due diligence report by investigative firm Nardizzi & Assoc. for saving clients from multi-million dollar fraud losses.

The Securities and Exchange Commission charged a Pearl River, N.Y., investment management firm Westgate Capital Management, LLC and its managing member, James M. Nicholson with operating a large-scale scheme that defrauded hundreds of investors of millions of dollars. The SEC alleges that Westgate solicited investors with false claims of an almost unbroken eight-year string of monthly investment successes.

In the fall of 2007, a New York investment bank had retained Nardizzi & Assoc. to investigate links between Nicholson, Westgate, and other individuals. The report issued by Nardizzi swayed the investment bank away from investing with Nicholson.

The arrest of Nicholson made waves in tony Palm Beach as well, as reported in the Palm Beach Daily News:

“The vigilance of Madoff-wary investors has helped bring about the arrest of another part-time Palm Beach resident, the manager of an unregistered hedge fund accused of swindling an estimated $900 million from clients since 2004.

The FBI on Wednesday arrested James M. Nicholson, 42, owner of a penthouse in the Dunster House condominium complex, on charges of securities fraud and bank fraud. Also on Wednesday, the Securities and Exchange Commission filed a federal complaint against Nicholson and his company, Westgate Capital Management LLC of Pearl River, N.Y., seeking relief for the fraud and an injunction to stop it.

A telephone call to Nicholson's primary residence in Saddle River, N.J., was not returned by press time. A telephone line listed for Nicholson's multi-million dollar Dunster House penthouse was disconnected.”

The investigation into Nicholson began when Westgate investors reacted to alleged Ponzi mastermind Bernard Madoff's $50 billion scheme. When they began to redeem their own investments in different Westgate hedge funds, nearly $5 million in checks bounced.

The SEC released this statement regarding Westgate Capital Management, LLC and its managing member, James M. Nicholson, who was arrested by the FBI at his New Jersey home.

Jury rejects murder charge, finds teen guilty of manslaughter Jury rejects murder charge, finds teen guilty of manslaughter Jury rejects murder and finds manslaughter charge


Lowell teenager Billeoum Phan, now 16, was found guilty of voluntary manslaughter for the shooting death of Samnang Oth, 21, of Chelsea. Phan was the one of the youngest defendants ever in Massachusetts to face a murder charge.

According to police reports, at approximately 11:18 p.m. on August 12, 2006, Lowell Police responded to 40 Royal Street in Lowell for reports of shots fired.

Although the initial investigation determined that a gang-related fight broke out at a birthday party at the Royal Street residence, the defense investigation showed that the police failed to interview dozens of witnesses. Moreover, several witnesses were called by Phan to testify to the terrifying specter of rocks and bottles raining into the first floor apartment, where several young women, including one pregnant woman, sought shelter. The defense argued that Phan was acting in self-defense when he fired the gun and hit Oth.

Defense counsel Jack Cunha represented Phan, with John Nardizzi leading the defense investigation.

The judge sentenced Phan to DYS custody until the age of 21 for the voluntary manslaughter conviction. Then Phan will have have a suspended five-year state-prison sentence and probation after his release.