If you've just been convicted of embezzling from your brother, don't tell a reporter you can put him in prison, court rules

A woman who avoided a prison sentence on her brother's request for embezzling from his Brockton construction company wound up in prison anyway after a judge ruled she violated a "no contact" order via comments in a newspaper article in which she claimed to have enough info about his business to have him sent away.

In a ruling today, the Massachusetts Appellate Court upheld Maria Pereira's sentence of 3 1/2 to 5 years in prison for violating probation on her original no-prison sentence by uttering an apparent threat against her brother. Her brother had initially agreed to a sentence of $1,000 a week restitution and no prison even after prosecutors showed that Pereira, who'd been working as an accountant for her brother, actually stepped up her embezzling after she won $455,000 after taxes on a scratch ticket and learned her brother had cancer.

Her initial sentence was also lenient because her brother agreed to have 15 of 16 counts against her dismissed and agreed to total restitution of just $104,000 of the roughly $1.6 million she allegedly siphoned.

As part of her original sentence, she agreed not to contact her brother. A Superior Court judge ruled she violated that a couple weeks after her sentence by talking to a Brockton Enterprise reporter. And after concluding she stopped making weekly payments after just one week, he sentenced her to prison.

Pereira appealed, arguing in part she has a First Amendment right to talk to a reporter, and that's not the same as contacting her brother.

The appeals court disagreed, saying she used her comments to the Enterprise to send her brother a message, and that the lower-court judge did nothing wrong in concluding that was a form of "contact."

A probation condition forbidding contact with, including threats to, the victim has a clear rational relationship to ... encouraging the defendant's acceptance of responsibility for the crime and protecting the victim, as a member of the public, from further harm, whether emotional, physical, or financial, at the hands of the defendant. The defendant does not argue that these are not valid goals, or that the no-contact condition, as applied here, trenched more broadly on her free speech rights than necessary to achieve these goals. ...

The defendant here makes no argument that the no-contact condition of probation was insufficiently clear to put her on notice that contact made through her directing comments at the victim through a newspaper article was prohibited. See Kendrick, 446 Mass. at 75, quoting from Commonwealth v. Orlando, 371 Mass. 732, 734 (1977) (No-contact probation condition constitutionally sufficient where, although "imprecise," it provided "comprehensible normative standard so that [people] of common intelligence will know its meaning"). The probation officer had warned the defendant that contact through third parties was prohibited. She nevertheless took the initiative to contact the newspaper to make statements about the victim thathe could, and did, reasonably understand as threats. Indeed, the judge found that her statements constituted "issuing [the victim] a threat." As defense counsel conceded before this court at oral argument, the defendant should reasonably have known that her statements to the newspaper about the victim would come to the victim's attention. We thus see no error in the judge’s finding and conclusion that, in these circumstances, the defendant's remarks violated a valid no-contact condition of probation.

Also, the court dismissed her claim that she no longer had any of her lottery winnings with which to repay her brother - agreeing with a lower-court judge that she had failed to account for roughly $81,000 of the money.

PDF icon Complete Pereira ruling89.58 KB