Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

A Massachusetts Bodybuilding Ex-Boston Firefighter Faces Allegations Of Fraud And Breaking Restraining Orders

You know, sometimes, when it rains…it pours. It’s happened to all of us and, now, it is happening to a particular former Boston firefighter.

Albert A., 46, (hereinafter, the “Defendant”) had enough problems. First of all, he had lost his job as a firefighter after participating in a bodybuilding contest despite claiming he was permanently disabled. You see, he had applied for a disability pension, saying he slipped on a staircase March 21. Not too long thereafter, though, he was found to have participated in a bodybuilding contest.

Woops.

Now, his fall on the staircase is matched by his falling in love with someone who seems to have fallen out of love with him. The result? He now faces criminal charges that he has violated a restraining order.

According to his ex-love, the Defendant has stalked her with such ferocity for six years that she finally she took out a restraining order and was too petrified to leave her Jamaica Plain apartment. She claims that she keeps her doors locked and closes her curtains “because he looks up to my window when (he’s) not in my hallway,” she wrote in the affidavit.

“He constantly calls me at work, harassing, at home, my parents, my siblings and my children,” she wrote in an Oct. 28 affidavit. “He gets in my hallway and stands by my door for hours. He follows me everywhere, and for that reason I am in fear of leaving my house.” According to the affidavit, the Defendant has been harassing her for six years. Yet, on the application for the restraining order she lists herself as having a current or present dating or engagement relationship with him.

On Sunday night, she called the police to report that she saw him behind her building. When police arrived, he was not there. He was later found at the Faulkner Hospital where he was treated overnight and much of Monday for an undisclosed “ailment.”

He spoke to the police on the phone from the hospital emergency room, according to Boston police. It’s unclear if he called police or if officers called him.

The Defendant was arraigned Tuesday on two counts of violating the order taken out by the former girlfriend on Oct. 28. A West Roxbury District Court judge ordered him held on $750 bail.

The Defendant’s descent into controversy began earlier this year. In March, he claimed he was injured on the job and a doctor proclaimed him permanently disabled. By May, he was on paid leave awaiting approval of his disability pension application.
Then he competed in a bodybuilding contest.

Fire Commissioner Roderick Fraser ordered the Defendant to return to work, but the he did not comply and was later fired. His disability pension was also denied.
The Defendant made $81,000 a year as a Boston fire inspector, according to city payroll records.

Samuel’s take:

Obviously, I do not know whether the allegations on the part of the ex-girlfriend are true or not. However, I have handled a great many similar cases in my time. For the purposes of this daily blog, let’s look at the lessons we can draw from two possible scenarios.

First of all, let’s assume, for the moment, that the allegations are true. Like The Shadow, in the days of yesteryear, the Defendant is everywhere, watching everything.

One might look at these allegations and say, “What’s the big deal? I mean, there no allegations of violence. So what if he calls her and looks up at her window…right?”

Wrong.

If a restraining order has been issued, the court has ordered that the Defendant stay away. It usually indicates that there is to be no contact whatsoever and, in fact, usually reflects a particular distance from the complainant and her property that he must keep away from. That means no calls, no visits, no having Uncle Freddy call her on his behalf or calls to her work.

If the complainant, during a lonely hour, calls him and says, “call me back”…it is a violation of the restraining order to do so.

Unfair? Maybe. The law? Yes.

And, yes, although the restraining order proceeding is not considered a criminal proceeding, breaching the restraining order is a crime.

Now, let’s look at the flip side – what if it is not true? Well, then, the Defendant is in the position of having to disprove a negative. True, in our criminal justice system, he is presumed innocent unless and until proven guilty. But, the courts take these charges very seriously and generally the fear of what the Defendant will do if he is free comes into play. Yes, he may win down the road at trial…but, until then, he is in the hot seat.

What most people do not know is how these restraining order hearings work. What happens is that the complainant goes to court, swears out an affidavit alleging fear, and, in most cases, a temporary order will issue. The Defendant will then be served with the papers and, if he wants to oppose it, he shows up to do so.

Unfortunately, many accused abusers do not attend. They figure, “Well, that love affair is over, I do not have to go”. I have even had some people who asked the police, “Do I have to go?” and “Do I need a lawyer?” Often, they receive the answer “no” to both questions.

Technically, they are correct. No warrant will issue if you if you do not show and the law does not state that you have to be represented at the hearing. The problem is that this answer is incomplete. The rest of the answer is “…unless you don’t want the restraining order on your record and also to open yourself up for criminal prosecution just on the complainant’s say-so”.

Restraining Order, or Chapter 209A, proceedings, are serious.

Because they are not considered criminal hearings, the accused is given fewer rights. Different courts handle the appearance of counsel differently in terms of cross-examination, the presentation of witnesses and the like. However, once a complainant has the order issued, the accused is substantially at risk.

If this were a perfect world, and people never lied, then this would not be such a problem. So long as the accused stays away, there would be no problem. But, in my experience, this is not the world we live in. Very often, particularly with love affairs that turn bad, people are angry. Angry people have long since learned that the system can be used to exact revenge. It is therefore quite easy to pick up the phone, say “he is out there”, and get the Defendant arrested.

The bottom line lesson here is simple. Treat restraining orders very seriously. If you are in the position to contest one, do so and do it with experienced counsel. If one has been already allowed, obey it. Even if you feel it was a miscarriage of Justice, obey it. Even if you just want to tell her……obey it.

As for the allegedly fraudulent application for disability payments…that is the subject for another day’s blog. The bottom line is that it is the white collar crime of fraud. If today’s Defendant is not being so charged, he should count himself lucky.

NOTE TO READERS: No, you did not simply overlook my daily blog yesterday; there wasn’t one. Sorry about that. I was not in a position to be able to post. Generally, I try to post the daily blog by 9:00a.m., Monday through Friday, although I note that today’s is already late. I greatly appreciate your interest in the blog and expect to be back on regular schedule tomorrow morning.

The full articles of this story can be found at
http://news.bostonherald.com/news/regional/view/2008_11_05_Bodybuilding_firefighter_Albert_Arroyo_pleads_not_guilty/srvc=home&position=recent , http://news.bostonherald.com/news/regional/view/2008_11_03_Bodybuilding_firefighter_in_more_trouble/ and http://news.bostonherald.com/news/regional/view/2008_11_04_Disgraced_firefighter_accused_of_stalking/

Contact Information