Follow-Up: Why Is He Still Jailed For Growing?


David Maglio convicted in federal court of cultivating so much cannabis that he must have been selling it


In March 2016, police in Hull raided the home where David Maglio, a registered medical marijuana patient with a hardship cultivation license, was growing his own cannabis.


Having obtained a search warrant based on high electric bills and an officer’s statement that he smelled marijuana, police wrestled Maglio to the ground, seized his weed and two guns, and arrested him for dealing without having sought or obtained any reliable evidence to that fact. 


Rather than trying Maglio in state court, Hull police transferred his case to federal authorities, who labeled him a flight risk and placed him in pretrial detention. He has remained locked up since April 2016, effectively serving three-plus years of federal time without being convicted of anything or having a chance to prove his innocence. As Maglio’s attorney predicted in a previous DigBoston article about this case, “the prosecution could win if it can sufficiently narrow what the jury is allowed to hear and what evidence and what legal options they may consider.” And at his federal trial in Boston that wrapped earlier this month, that’s exactly what happened.


At an initial hearing on Oct 25, Maglio’s lawyers attempted to have the search of his Hull residence invalidated and the gathered evidence thrown out. The presiding federal judge, Mark Wolf, had refused the same request at a previous hearing, and once again acknowledged that the officer who filed for the warrant had reason to know of Maglio’s medical marijuana registration, but considered that a small matter. Nor did Wolf appear to deem important the argument that the electricity readings were exaggerated; instead, bucking legal precedent, he accepted the smell of marijuana as evidence.


Wolf also accepted the word of a so-called trusted informant, but one who had an established grudge against Maglio. As such, the judge allowed the search to be taken as valid and the evidence from the search to be admitted.


Following a day of jury selection, the trial proceeded with Maglio indicted on three counts:


1 – Possession of 100 or more marijuana plants with intent to sell


2 – Possession of firearms in furtherance of a crime


3 – Possession of firearms after being convicted of a felony


Without evidence of weed sales or gun use needed, the prosecution framed the matter as a question of whether there were copious amounts of cannabis and guns in the house. Large bags of weed seized from the raid were brandished indignantly, given to the judge to handle, shown to witnesses to identify, and finally left in the jury room during deliberations. The guns were also left as an exhibit in the jury room. Meanwhile, an attempt by Maglio’s attorney to show that his client had a medical marijuana registration was objected to, with the objection sustained. 


Similarly, no questions were asked or answered about how the two guns found, an AR-15 and a handgun, came to be in Maglio’s house. In both cases, Maglio says the guns were in the custody of Maglio’s wife, Erika Zerkel—one had been given to her by her father, and the other, they say, was being kept for a friend who didn’t want it in his house.


The defense considered calling up the Hull policeman who filed a faulty search warrant related to the case, but ultimately decided against it. Nor did Maglio testify in his own defense. In a phone conversation from prison, Maglio maintained that he was not selling to anyone: He says he was raising several plants to try out different strains, and says he had large amounts because he was making extracts and tinctures. But neither he nor his lawyer made that case to the jury.


As for the amount… After first expressing confidence that they could prove a count of 100 plants, the prosecution asked for a safe count of 50 as a fallback position. The count was eventually abandoned altogether, and Maglio was accused simply of possessing marijuana with intent to distribute, a charge on which the jury found him guilty. 


Regarding the guns, the prosecution’s attempt to portray them as obvious tools of violent drug running failed. Maglio was acquitted on the count of possessing firearms in furtherance of crime, though he was found guilty of possessing firearms while being a felon. Maglio was addicted to opioids in the past, and convictions from those times basically made this count a foregone conclusion.


In the end, Maglio agreed to forfeit the two guns, $5,000 in cash that was seized, and the weed itself. After three years of imprisonment waiting for a trial, Maglio will be sentenced on Jan 24. He still has yet to hold his son, who was born a few months after his arrest, in his arms.

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