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Appeals court hears challenge that Milan indictments omitted updated scienter language
Summary
In Commonwealth v. Milan, defense counsel argued indictments repeating an older version of G.L. c. 272 §28 failed to plead the 'knows or believes to be a minor' scienter element; the panel and Commonwealth debated whether precedents (Dowy, Paladino, Jones) allow the omission and whether grand-jury minutes or waiver affect relief.
Good morning. The Massachusetts Appeals Court on Monday wrestled with whether six indictments against Michael Milan were legally sufficient after defense counsel David Osborne said the filings used language from a pre‑2011 version of the statute and failed to plead the key scienter element requiring that a defendant know or believe the recipient to be a minor.
Osborne, representing the appellant, told the panel that all six indictments used substantially identical language drawn from an outdated statutory text and that the absence of the "knows or believes to be a minor" phrasing meant the grand jury never alleged conduct that would sustain a dissemination conviction. He asked the court to…
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