Hull police targeted a couple for cannabis. Now the feds are pushing for a serious sentence.
If you think that nobody in Massachusetts goes to jail for growing their own medical cannabis anymore, just meet David Maglio. You can write him at the Dedham jail, where he has been held in pretrial detention for more than three years.
Early in the morning on March 17, 2016, he heard voices outside his door.
“Hello, Hull Electric. Can we come in?”
Maglio opened the door. In seconds, he was wrestled to the ground.
Then the SWAT team burst in: Hull police, along with members of the Metropolitan Law Enforcement Council and a couple of DEA agents.
They knew what they were looking for: plants. Dangerous plants. Marijuana plants. And they found them: 16 full-size plants and some smaller sprouts and clones. And something more: two guns.
Erika Zerkel, Maglio’s wife, explained that the guns were registered and belonged to her father and her firearms instructor. No good. In Massachusetts, you can’t legally keep any guns in your house that you don’t own.
Maglio went out to his truck and brought back his registration as a medical marijuana patient and his hardship cultivation license. Still, he says he was given an ultimatum: “If you don’t say the guns were yours, we’ll prosecute your wife and her dad.” As police prepared to arrest Maglio, one officer said, “What about her?” Another reportedly replied, “Arrest her too.”
(The Hull police chief told reporters, “The male suspect in this case is a career criminal, well-known to police, who was armed and dangerous … All precautions were taken, and I am very proud that this investigation came to a conclusion without incident or injury to either the suspects or police officers involved.”)
Zerkel describes what happened next: “They took both me and David in a police car together to the Hull jail. The cell they tried to put me in was exceptionally hot—at least 100 degrees, and being that I was five months along in my pregnancy, I was having difficulty breathing.
“I voiced my concern and they removed me and placed me in a juvenile cell—a small room with a slit in the door. They locked the door, leaving me alone in this room as I began to hyperventilate. I banged on the door to get their attention and they finally answered. I was transported to the local hospital.
“Once at the hospital, I was not placed in a room. Rather I was handcuffed to a gurney in the lobby of the emergency room, as I continued to have labored breathing. I pleaded with the policeman who was standing next to me and asked him if I could call my lawyer to be released on bail. He would not allow me to make any calls. I pleaded with the nurses to let me use a phone—no one would help me. I continued to ask and yet [police] continued to refuse me a basic right: to contact my attorney.
“It wasn’t until around 3 pm that someone brought me a phone and I was finally able to make a call. At 5 pm I was transported back to the police station. They put me back in the juvenile cell. Again I couldn’t breathe and banged on the door. [The] officer just laughed at me and then starting talking about David and how he would never get out. Hours later, the bail bondsman finally arrived, and I was released for $40 fee and on personal recognizance.”
Zerkel was arraigned in Hingham District court the next day on a charge of intent to distribute marijuana, pushed and shoved by a media mob on her way in and out of the building.
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David Maglio moved to the Boston area when he was 18. A motorcycle accident had left him with lower back pain, and his doctor had something perfect for that: oxycodone. Maglio eventually became addicted to OxyContin, and later on to heroin. During his addict days, he was convicted of some nonviolent offenses, mostly possession of controlled substances. He served time for cocaine possession.
The rollout of medical marijuana offered Maglio a way out. As he started using cannabis, he moved away from opioids. Meanwhile, Zerkel and Maglio met online while Zerkel was living in San Francisco. They carried on a long-distance romance for five years, marrying in August 2015. Zerkel moved to Hull in September 2015, and Maglio’s mother moved in with them.
Maglio had registered as a Massachusetts medical marijuana patient in May 2015. No dispensaries were open yet, but using his hardship cultivation license, he was permitted to grow as much marijuana as he needed to keep a 60-day supply on hand.
In November 2015, Zerkel says her father drove up from Florida for Thanksgiving. He left his car for their use and also left a gun that he had brought with him, because he couldn’t fly back with it. Zerkel was used to having guns in her house and says she didn’t know that it was illegal to keep anyone else’s guns in her house. Around the same time, Zerkel also says that her firearms instructor asked her to keep custody of one of his guns while he was going through a nasty divorce.
The day after Thanksgiving 2015, the Maglios’ car was clipped by another car as they pulled out of their driveway in Hull. An officer arrived to inspect the damage and demanded Maglio’s identification, claiming that he wasn’t the rightful occupant of the home (the previous owner was well-known in town). An hour later, the Maglios say they were pulled out of their driveway and told, “Your kind isn’t welcome in Hull.”
Less than two weeks later, Maglio was pulled over again, and issued a citation for an invalid permit. When Maglio returned to the Hull police from the Registry of Motor Vehicles with proof that the permit was good, the Maglios say that the cops refused to void the citation and forced Maglio to appear in court, where the citation was thrown out.
During the winter of 2015-2016, there were several more incidents of police pulling both Maglio and Zerkel over, cruising slowly by the house, and following Zerkel to the park where she walked her dog. They also say an officer was seen on the property reading the electric meters.
In March 2016, Hull police went to obtain a search warrant for the Maglio home, telling the judge magistrate that Maglio was not a registered medical marijuana patient and that officers could smell marijuana from 50 feet away from the house. Authorities also produced an electric bill showing high rates of usage, and claimed that they had information from a jailhouse informant that Maglio had sold him 13 pounds of marijuana and had at least five guns in his basement. Maglio says the source in question was never in his home and that he hadn’t sold marijuana to anyone.
The raid happened the next day. Bail was set at $80,000 and then revoked on the grounds that Maglio was a flight risk. In the face of Maglio’s valid patient registration, the state charges started to look untenable. DEA agents were in on the raid as well, though, and federal law bases penalties for possession of marijuana solely on the number of plants of any size. Besides the 16 full-size plants, the agents had counted every sprout, every clone, and every stalk hanging to dry. By the time they finished, they had counted more than 100 plants, enough to make Maglio eligible for the same penalties as if he had been caught with 100 kilos of marijuana.
The case was transferred to the feds. On April 8, 2016, Maglio was charged with possession of marijuana with intent to distribute and being a felon in possession of a firearm. He was held and is still being held pretrial—first at Plymouth County Correctional Facility in Plymouth and then at Norfolk County Correctional Center in Dedham. A motion to dismiss charges was filed. It took more than a year to get a hearing. In the meantime, Maglio’s lawyer learned some interesting things:
- It appears that Hull police actually cited an arrest report from Rutland, which noted that Maglio had a valid patient registration.
- The description of how police obtained information regarding Maglio’s grow appears to be highly compromised.
- Officers went through the motions of searching for Maglio’s patient registration but omitted his date of birth.
Surely, Maglio thought, the story pitched by police would collapse when the evidence was brought before a judge. But the judge was Mark L. Wolf, a US district court appointee from the Reagan era. At a hearing on October 2, 2018, in the Moakley Courthouse in Boston, Maglio’s lawyer argued that the evidence against his client should be dismissed since the search that obtained it was based on a lie. Still, Wolf denied the motion.
Maglio goes to trial Aug 12 at Moakley Courthouse. He still has high hopes that the government’s case will collapse when the evidence is brought before a jury. His attorney, however, warns him that 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.
Increasing the stakes, the prosecution has invoked a federal statute known as Section 851, which allows them to double the possible sentence based on Maglio’s previously having served a significant amount of time. Meaning that he now faces a possible sentence of up to 16 years.
Zerkel, who says she doesn’t use cannabis for anything, is also still facing a charge of intent to distribute marijuana. Her son was born with his father in jail. Maglio has never held him.
Andy Gaus is a Massachusetts-based cannabis advocate and a member of MassCann-NORML.
