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Press Release:

Thursday, April 29, 2010 at 11:21 AM

Dear Members of the Press:

Please find below a letter sent to Pittsfield Police Chief Wynn. I write this because I want to be accurate about (1) why I think Tina Helfer engaged in custodial interference, and (2) why I think Richard Rodriguez, Jr. met the statutory definition of a missing child and why I believe the local and state law enforcement had an obligation to put the child on the missing child registry. When the Pittsfield Police did not put the child on the missing child registry, I contacted the State Police.

What next follows is a letter I sent via certified mail to the Colonel of the State Police when I the Pittsfield Police refused to place the child on the Missing Child Registry.

I had conversations with Lt. Peter DiDomenica, Office of the Superintendent, Massachusetts State Police, 470 Worcester Rd., Framingham, MA 01702. Tel. 508-820-2667

Some technical things. A temporary order granting Richard Rodriguez Senior custody was issued in July. The final judgment was issued on November 13th of 2009.

Press Conference today in front of the Pittsfield Family and Probate Court at 44 Bank Row in Pittsfield is on (Thursday, April 29, 2010 at 2:00 PM). Attorney Del Gallo will be there, the father (Richard Rodriguez Senior) will be there, but the son will not be there. To address concerns of court security, we have agreed to have the press conference by the bicycle racks-black metal loops out of the ground-on the city sidewalk. Weather looks like it will not be a problem so we will not have it at the underhand of the Berkshire Athenaeum, unless there is some unexpected sudden rain storm.

Rinaldo Del Gallo
Office 413 445 6789

The Law Office of Rinaldo Del Gallo, III
100 North Street
Suite 404
Pittsfield, MA 01201-5109
PHONE: 413-445-6789
FAX: 413 553-3579

Police Chief Michael Winn
Pittsfield Police Department
39 Allen Street
Pittsfield, MA 01201

Thursday, August 13, 2009

HAND-DELIVERED

RE: Abduction of Richard Rodriquez, Jr.

Dear Chief Wynn:

I am in receipt of your August 10, 2009 letter, which included a communication to you from Attorney Richard M. Dahoney on behalf of the Pittsfield City Solicitor's Office.

SOME CORRECTED FACTS

1. The complaint for custody was filed February 8, 2008, and it was filed five (5) short days after the child's abduction on February 3, 2008 (Super Bowl Sunday). The August 10, 2009 opinion letter from the City Solicitor's Office of Richard M. Dahoney incorrectly states that a petition seeking an acknowledgment of paternity and custody was filed on July 20, 2009. July 20, 2009 was the date custody was finally granted.

2. Your letter states that your "Detective Bureau has offered to investigate this matter based upon the limited information available to us and attempt to locate the mother. You declined this offer of assistance, based upon your concern that the investigation would alert Ms. Helfer." This is an inaccurate representation of events. The police wanted to ask Ms. Tina Helfer's father where Tina was-we wanted the police to find out where Ms. Helfer's SSI benefit checks are being sent by the federal government and then obtain custody of the child with a surprise visit to the house. We had asked this, without success, to have this done before the father found out or this case obtained publicity. We also think it is unlikely the father will volunteer the whereabouts of the daughter.

PART 1: LISTING RICHARD RODRIGUEZ JUNIOR AS A MISSING CHILD

THE LAW ON REMOVAL OF OUT OF WEDLOCK CHILDREN, AND KIDNAPPING BY A RELATIVE

Before I get into details regarding why I believe that the Pittsfield Police have a duty to register Richard Rodriquez, Jr. as a "missing person," I want to indicate some things about Massachusetts law regarding the removal of children out of state and kidnapping by a relative.

Pursuant to Massachusetts statutory law,

A minor child of divorced parents who is a native of or has resided five years within this commonwealth and over whose custody and maintenance a probate court has jurisdiction shall not, if of suitable age to signify his consent, be removed out of this commonwealth without such consent, or, if under that age, without the consent of both parents, unless the court upon cause shown otherwise orders. . . .

Mass. Gen. L. ch. 208, § 30.

Mass. Gen. L. ch. 208, § 30 is commonly called the "removal" statute and almost all of the cases regarding this statute regard whether a parent seeking removal of the child should be granted permission to leave. It is a statute that is commonly the subject of discussion of father's rights groups because it involves when a mother can move out of state with a child. The overwhelming majority of cases involve custodial parents that are seeking orders to be able to leave Massachusetts-not parents that illegally left without a court order.

Much of this debate, however, has nothing to do with the present case. It is illegal to remove a child from Massachusetts against the consent of the other parent without a court order (as Tina Helfer did not) who is either (1) a native of Massachusetts or (2) has resided here for over five years. The child, Richard Rodriguez, Jr., is both a native (he was born in Pittsfield) and has resided for over five years.

CHILDREN BORN OUT OF WEDLOCK ARE PROTECTED BY THE MASSACHUSETTS

REMOVAL STATUTE, Mass. Gen. L. ch. 208, § 30

Mass. Gen. L. ch. 208, § 30 by its explicit language, refers to "a minor child of divorced parents." However, as a matter of law children born out of wedlock still enjoy its protections, for the Constitution demands that children born out of wedlock to be given the same protections as children born in wedlock.

Moreover, there is a statutory requirement to treat children born out of wedlock the same as children born in wedlock. Massachusetts law reads,

"Children born to parents who are not married to each other shall be entitled to the same rights and protections of the law as all other children."

Mass. Gen. L. ch. 209C, §1.

Pursuant to Massachusetts law and United States Constitutional law, Mass. Gen. L. ch. 208, § 30 (the removal statute) affords children born out of wedlock the same protections regarding removal from the state and away from the other parent, even though the statute is particularly addressed to "minor child of divorced parents."

Judge LaPointe of the Probate and Family Court, by the way, has indicated he agrees with this interpretation by stating so through comments on the bench. The mother is in violation of Mass. Gen. L. ch. 208, § 30 and the out of state detention is unlawful. This, as we shall see, is relevant to the question as to whether there was kidnapping by a relative, since an element of the crime is "without lawful authority."

RICHARD RODRIQUEZ, JR. IS A "MISSING CHILD" PURSUANT TO Mass. Gen. L. ch. 22A, § 1

The question as the City Solicitor's Office put it, "is whether the child is ‘missing.'" Pursuant to Mass. Gen. L. ch. 22A, § 1 a "Missing child or children" is defined as

"any person under the age of eighteen years missing from his normal and ordinary place of residence and whose whereabouts cannot be determined by the person responsible for such child's care."

The argument by the City Solicitor's Office is that the child is not "missing from his normal and ordinary place of residence." (August 10, 2009 Letter of City Solicitor's Office, page 1, emphasis in original).

Perhaps, more succinctly, what is in question is what is a "normal place of residence" or "ordinary place of residence." While there is no case law analyzing these words, it would be an absolutely shocking conclusion if a "missing child" did not include a child that was missing from his custodial parent. It would also be a shocking result if the "normal" or "ordinary" place of residence would be in the secret hiding place of the abducting parent.

It is a cardinal principal when interpreting statutes to give words their normal and ordinary meaning. Thus, when the Mass. Gen. L. ch. 22A, § 1 uses the term "normal and ordinary place of residence," that expression, no pun intended, should be given its normal and ordinary meaning. The "normal and ordinary place of residence" of a child is their lawful residence with the custodial parent, not the unlawful hideaway of the noncustodial parent secreting the child. There is nothing "ordinary" or "normal" about breaking the law.

"It is a common understanding that most people obey the law even when they disapprove of it." Jacobson v. United States, 503 U.S. 540, 551 (U.S. 1992). It is "normal" and "ordinary" that people would obey the law. Pursuant to Mass. Gen. L. ch. 208, § 30, the child was not to be removed from the commonwealth. Pursuant to the court order of July 20th to which you were provided a copy, custody was with father. Incidentally, there is also an order ordering the child to return to Massachusetts. A child's "normal and ordinary place of residence" would be that by which by law the child is to reside, not the hideaway of the abducting parenting. It is "normal" and "ordinary" to obey the law, and as a rational corollary, a child's "normal and ordinary place of residence" would be the locale where there child is to reside lawfully.

The purpose of Massachusetts Chapter 22A is to establish a central register for missing children to find children taken and hidden from the other parent. It would completely undo the purpose of Massachusetts General Law Chapter 22A (establishing a central missing child registry) for a child to have a "normal" or "ordinary" place of residence that would include the secret hideout of the abducting parent unbeknownst to the custodial parent, thus rending a child that would be a "missing child" under regular, everyday parlance something other than a "missing child" under Mass. Gen. L. ch. 22A, § 1, which would in turn relieve the police of any duty to register such child and search for him or her when they are missing.

But the purpose of the statute is by no means the only reason to interpret Mass. Gen. L. ch. 22A, § 1 use of the term "normal and ordinary place of residence" to be that of the lawful custodial parent. It is a matter of statutory law and case law that a statutes "construction [shall not be] inconsistent with the manifest intent of the law-making body." Mass. Gen. L. ch. 4, § 6. See also, La Branche v. A.J. Lane & Co., 404 Mass. 725, 732 (Mass. 1989); Mass. Elec. Co. v. Mass. Comm'n Against Discrimination, 375 Mass. 160, 168 (Mass. 1978). The "normal" and "ordinary" residence of a child, in ordinary and common language, is where the child lawfully lives, not where he or she has been unlawfully secreted by the noncustodial parent.

ABSENCE OF CRIME DOES NOT MAKE A DIFFERENCE AS TO WHETHER RICHARD RODRIGUEZ IS A "MISSING CHILD"

Your letter might be construed as suggesting that since there was no kidnapping by a relative when the child was first taken on February 3, 2008, the child is not a "missing child" pursuant to Mass. Gen. L. ch. 22A, § 1, and therefore there is no obligation to list the child as a missing child under Mass. Gen. L. ch. 22A, § 4. If this was not your intent, please accept my apologies, but I do want to make certain things clear, because these legal principals are important.

The Massachusetts Supreme Judicial Court has stated that

"Even in the absence of criminal taking, parents may make use of Federal and State statutory schemes to locate a missing child, and have the child returned to Massachusetts."

Commonwealth v. Beals, 405 Mass. 550, 555 (Mass. 1989)(emphasis supplied). This sentence was made expressly in the context of a case where the parent had taken the child prior to a court order.

The purpose of the Central Register under Mass. Gen. L. ch. 22A, § 2 is to locate children that have been taken from their lawful custodian where their whereabouts are unknown. After Beals, it is not "kidnapping" to take a child in frustration of the rights of the other custodial parent if no court order is in place and it was not otherwise without lawful authority-an issue that was at the core of the Beals decision. But the Beals court went out of its way to state that this did not mean that the other parent had no remedies to list the child as a missing child in the absence of a court order.

EVEN IF THE CITY SOLICITOR'S OPINION IS CORRECT, THERE IS NOTHING PREVENTING THE PITTSFIELD POLICE DEPARTMENT FROM ENTERING THE CHILD AS A "MISSING CHILD"

You make a reference in your letter stating that "the Pittsfield Department will not be coerced into violating Massachusetts law." Obviously, if my interpretation of "missing child" as defined by Mass. Gen. L. ch. 22A, § 1 is correct, you would be violating Massachusetts law by refusing to list Richard Rodriquez Jr. in the central registry. But I want to assume in this section of the letter, for the sake of argument, that the City Solicitor has correctly interpreted Mass. Gen. L. ch. 22A, §1 in the sense that you are not require to enter Richard Rodriguez, Jr. in the central registry. Even were the City Solicitor correct that you are not obligated under Mass. Gen. L. ch. 22A, § 4 to list Richard Rodriquez, Jr. as a missing child, nothing in Mass. Gen. L. ch. 22A, § 4 or any other section prevents you from making such a listing. Thus, you would not be "violating Massachusetts law" by making such a listing. Of course, if the missing boy is a "missing child" as defined by Mass. Gen. L. ch. 22A, § 1, you would be violating the law by not making the listing.

It is worth carefully reviewing Mass. Gen. L. ch. 22A, § 4 for language which would prevent the police from listing Richard Rodriguez Jr. as a "missing child."

The statute reads:

Section 4. Whenever a parent, guardian, or governmental unit responsible for a child, reports to any police officer or law enforcement official that a child is missing, such police officer or official shall immediately cause to be entered into the central register relevant information relative to said missing child. Such police officer or law enforcement official shall also immediately undertake to locate such missing child. Police officers, law enforcement officials and others so designated by the colonel of state police solely for the purpose of locating a missing child shall have access to the fingerprints and other data and information concerning the missing child on file with the central register.

There is nothing in here suggesting that children that do not meet the definition of "missing child" under Mass. Gen. L. ch. 22A, § 1 may not be listed in the registry as your letter states. In other words, Mass. Gen. L. ch. 22A, § 4 provides a standard whereby police must act to register a child, but does not provide a standard whereby police are prohibited from registering a child in the central registry; there are simply no words of prohibition in Mass. Gen. L. ch. 22A, § 4.

PART 2: KIDNAPPING BY A RELATIVE

As stated before, whether or not Richard Rodriquez, Jr. is a missing child is not dependent on whether the mother, Tina Helfer, committed the crime of abduction by a relative. Nonetheless, I would like to state why I believe she has committed the crime of kidnapping by a relative under Massachusetts law. Before I do so, it should be made clear that we are infinitely more interested in getting hold of the child and reuniting him with the father than punishing the mother. Still, the mother should be brought to justice and more importantly, extradited. The police and District Attorney's Office should make all efforts to assist the kidnapping victim, the innocent child.

The statute making kidnapping by a relative a crime reads in its entirety as follows:

Whoever, being a relative of a child less than eighteen years old, without lawful authority, holds or intends to hold such a child permanently or for a protracted period, or takes or entices such a child from his lawful custodian, or takes or entices from lawful custody any incompetent person or other person entrusted by authority of law to the custody of another person or institution shall be punished by imprisonment in the house of correction for not more than one year or by a fine of up to one thousand dollars, or both. Whoever commits any offense described in this section by taking or holding said child outside the commonwealth or under circumstances which expose the person taken or enticed from lawful custody to a risk which endangers his safety shall be punished by a fine of not more than five thousand dollars, or by imprisonment in the state prison for not more than five years, or by both such fine and imprisonment.

Mass. Gen. L. ch. 265, § 26A.

There shall be an extended discussion of the meaning of "without lawful authority" because it is critical as to whether Mass. Gen. L. ch. 265, § 26A was violated when the mother left the state on February 3, 2008.

There shall also be an extended discussion of the ramifications of there being no explicit mention of a level of knowledge, known as scienter, to commit the crime in Mass. Gen. L. ch. 265, § 26A.

"Scienter," a Latin term, is a legal term that refers to the level of intent or knowledge of wrongdoing necessary to commit a crime. Some crimes are strict liability (or partial strict liability), some crimes are defined by negligence, some by recklessness, and some by a knowing act. Mass. Gen. L. ch. 265, § 26A (kidnapping by a relative) is silent on the scienter element. This is important because it is relevant to whether there was kidnapping by a relative after the July 20, 2009 order granting legal and physical custody to the father.

THE "WITHOUT LAWFUL AUTHORITY" ELEMENT OF Mass. Gen. L. ch. 265, § 26A (KIDNAPPING BY A RELATIVE) IS SATISFIELD IF THERE IS A VIOLATION OF Mass. Gen. L. ch. 208, § 30 (REMOVAL OF A CHILD FROM THE COMMONWEALTH PRIOR TO COURT ORDER IF THE CHILD IS A NATIVE OR RESIDENT FOR FIVE YEARS)

It was once the case, prior to Commonwealth v. Beals, 405 Mass. 550 (Mass. 1989), that it was unclear whether child snatching by one parent prior to a court order constituted a crime. Commonwealth v. Beals, 405 Mass. 550, 555 (Mass. 1989) clarified the law that in the absence of some other violation of law so as to constitute a detention "without lawful authority." If there is no violation of a statute, and there is no custody order, there is no kidnapping by a relative as defined by Mass. Gen. L. ch. 265, § 26A. It is worth noting that in Beals, there was no allegation that Mass. Gen. L. ch. 208, § 30 (the removal statue) had been violated, or some other statute had been violated so as to make the detention unlawful.

The Beals court noted "Because parents generally act with lawful authority in taking their children, the plain meaning of the phrase "without lawful authority" [of Mass. Gen. L. ch. 265, § 26A] does not encompass parents' taking their children in the absence of a custody order to the contrary." Beals at 554. Thus, absent some other violation of law, a taking of a child by one parent that does not violate Mass. Gen. L. ch. 208, § 30 (the removal statute) does not constitute a crime as defined under Mass. Gen. L. ch. 265, § 26A (kidnapping by a relative). Two classical cases come to mind where behavior would not violate Mass. Gen. L. ch. 208, § 30: (1) a removal of a child that does not violate a court order within Massachusetts or (2) a removal of a child that does not violate a court order without Massachusetts where the child is neither a native of Massachusetts nor has been here for five years. If in either of these two scenarios, as in Beals, there is a pre-court order detention out of state, Mass. Gen. L. ch. 265, § 26A has not been violated (unless the detention was unlawful on some other legal theory).

A careful (or frankly even a cursory reading) of Beals indicates that when a child is taken in violation of law, the "without lawful authority" element has been satisfied. There is no mistaken this obvious and normal conclusion. Reading Beals differently would be completely unjustified--it is a truism to observe that one cannot take a child with lawful authority if he or she took the child in a way that was contrary to a statute regarding the taking of a child. The Beals court merely held that when one parent takes another child prior to a court order, if there is no other court order or statute making the detention illegal, the "without lawful authority" element of Mass. Gen. L. ch. 265, § 26A has not been satisfied. Obviously, a detention of a child in violation of Mass. Gen. L. ch. 208, § 30 by an illegal removal from the state is "without lawful authority," and nothing in Beals suggest otherwise.

When a parent removes a child from Massachusetts in violation of Mass. Gen. L. ch. 208, § 30 (the removal statute), the "without lawful authority" element of Mass. Gen. L. ch. 265, § 26A (kidnapping by a relative) has been satisfied.

It is conceded that the Beals court stated, "G. L. c. 265, § 26A, does not criminalize the act of a parent's taking his or her children out of the Commonwealth permanently or for a prolonged period in cases in which no court proceeding or custody order exists." Commonwealth v. Beals, 405 Mass. 550, 551 (Mass. 1989). But this only is true when a parent holds a child with lawful authority, i.e., they have not violated Mass. Gen. L. ch. 208, § 30 (the removal statute) or some other law making the detention illegal.

Even if we are to conclude that the level of scienter of Mass. Gen. L. ch. 265, § 26A is "knowingly," a level of scienter not mentioned anywhere in the statute, Tina Helfer knowingly removed the child without lawful authority because (1) she knew she was leaving the Commonwealth of Massachusetts and (2) everyone is presumed to know the law. There is certainly probable cause that she committed a violation of Mass. Gen. L. ch. 265, § 26A; extradition efforts to seek the return of the child should be commenced immediately.

 
AFTER THE JULY 20, 2009 ORDER, THERE WAS CLEARLY A TAKING "WITHOUT LAWFUL AUTHORITY," AND THE LEVEL OF SCIENTER OF MASS. GEN. L. CH. 265, § 26A IS NOT KNOWINGLY, ESPECIALLY IN THE CONTEXT OF WILLFUL IGNRANCE-IN FACT THE STATUTE DOES NOT STATE A LEVEL OF SCIENTER

Mass. Gen. L. ch. 265, § 26A does not state any scienter requirement. In other words, the words "knowingly" or "intentionally" or "recklessly" or "negligently" (or similar words) do not appear in the statue.

This does not present constitutional issues, especially in a willful ignorance case such as this. "A claim that the Constitution requires proof of scienter in every criminal case is absurd." Mueller v. Sullivan, 141 F.3d 1232, 1235 (7th Cir. Wis. 1998). "Strict criminal liability is not necessarily a denial of due process of law." Commonwealth v. Knap, 412 Mass. 712, 714 (Mass. 1992).

"When the Legislature has wanted scienter . . . to be an element of the offense, it has said so expressly." Commonwealth v. Montalvo, 50 Mass. App. Ct. 85, 89 (Mass. App. Ct. 2000). "Although scienter is generally a necessary element of a criminal offense, it is now well settled that it is constitutionally permissible for a legislature to dispense with that element in the creation of certain kinds of offenses." Commonwealth v. Kraatz, 2 Mass. App. Ct. 196, 198 (Mass. App. Ct. 1974).

Many crimes do not require a showing of scienter and are strict liability offenses. See e.g., Commonwealth v. Caldwell, 14 Mass. 330, 333 (Mass. 1817); Commonwealth v. Montalvo, 50 Mass. App. Ct. 85, 88 (Mass. App. Ct. 2000)("scienter as to age is not an element of the offense of selling alcoholic beverages to a person under age twenty-one"); Commonwealth v. Knap, 412 Mass. 712, 713 (Mass. 1992)(scienter of child's age is not an element of statutory rape); Commonwealth v. Smith, 44 Mass. App. Ct. 394, 395 (Mass. App. Ct. 1998)(Commonwealth did not need to show that the perpetrator knew the victim was over 65 for the crime of robbing someone over age 65); Commonwealth v. Lawrence, 69 Mass. App. Ct. 596 (Mass. App. Ct. 2007)(did not have to show that defendant knew he was in a drug-free school zone, but only that he knew he was selling drugs, for conviction of selling drugs in school zone); United States v. Park, 421 U.S. 658, 674 (U.S. 1975)(strict criminal liability for selling food with rat droppings).

Strict liability is proper when the legislature "preferred to place [responsibility] upon those who have at least the opportunity of informing themselves of the existence of conditions." United States v. Dotterweich, 320 U.S. 277, 285 (U.S. 1943). Clearly, we would expect an abducting mother to make efforts to see if the father has filed papers seeking custody of his abducted child. Strict liability is especially proper in the "willfull blindness" type of cases because the law does not allow one to skirt the law by intentionally being ignorant of things that they ought to ordinarily take care to know about. Sometimes, courts simply substitute willful blindness for knowledge, and such cases can be found in the accompanying footnote.

Here, the mother would have naturally known that when she left Massachusetts surreptitiously, the father would naturally exert court efforts to seek custody of his child (or minimally secure visitation rights). In this case, the mother was informed by substitute service. As the United States Supreme Court said in the famous case of Pennoyer v. Neff:

Substituted service by publication, or in any other authorized form, may be sufficient to inform parties of the object of proceedings taken where property is once brought under the control of the court by seizure or some equivalent act. The law assumes that property is always in the possession of its owner, in person or by agent; and it proceeds upon the theory that its seizure will inform him, not only that it is taken into the custody of the court, but that he must look to any proceedings authorized by law upon such seizure for its condemnation and sale.

Pennoyer v. Neff, 95 U.S. 714, 727 (U.S. 1878). Likewise, knowing that there was jurisdiction in Pittsfield, the mother would naturally have been informed of the suit by examining the docket of the Probate and Family Court and searching for substituted service by publication. It would be absurd to believe that there was little or no chance to believe that the father would seek custody after she kidnapped the child.

Using self-imposed ignorance to substitute for actual knowledge is especially justified when the self-imposed ignorance was in violation of the law itself. In re Legel, Braswell Government Sec. Corp., 648 F.2d 321, 329 (5th Cir. Fla. 1981)(lack of knowledge was created by "its self-imposed ‘ignorance,' and was particularly egregious when that ‘ignorance' was in violation of SEC rules.") Here the mother violated Mass. Gen. L. ch. 208, § 30-had she not violated Mass. Gen. L. ch. 208, § 30 and did not go into hiding in another state, she would have known of the court order since she would have received traditional service. Here, by breaking the law, the mother has become ignorant of any service-this is not a permissible defense to an element of "knowingly," and element that must be reemphasized is nowhere to be found in the statute in question.

Other cases do not require "knowing" but allow for a finding of guilt when one has shown the scienter of the reckless regard for the truth. See, e.g, Commonwealth v. Macey, 47 Mass. App. Ct. 42, 43 (Mass. App. Ct. 1999)("The scienter element [of the crime of assault and battery to a child so as to cause injury] is supplied by resort to the common law and is satisfied by proof that the defendant acted either intentionally or in a wanton or reckless manner."); Commonwealth v. Kenney, 449 Mass. 840, 856-857 (Mass. 2007)("in a prosecution for possession of child pornography under G. L. c. 272, § 29C, in circumstances where the defendant's actual or constructive knowledge of a child's age is disputed, the Commonwealth's burden of proof on that element may be satisfied with evidence that the physical disparity between the subject of the sexually explicit material and a person who is eighteen years of age is such that it would be obvious [beyond a reasonable doubt] to a reasonable person that the material was proscribed.)

Finally, on the issue of kidnapping by a relative, if there is any lack of clarity in the law, the District Attorney has the availability of making a motion under Massachusetts Rule of Criminal Procedure 34 to have the judge report a question of law to the appellate courts to seek an opinion as to whether the facts alleged constitute a crime.

BY NOT REGISTERING RICHARD RODRIGUEZ, JR. AS A MISSING CHILD, THE PITTSIELD POLICE DEPARTMENT IS SERIOUSLY HARMING EFFORTS TO LOCATE THE CHILD

One thing is also worth noting: While it may be true that "access to a panoply of State and Federal programs designed to locate missing children does not depend on whether the child is missing because of a criminal taking," Commonwealth v. Beals, 405 Mass. 550, 555 (Mass. 1989), a panoply of protections does depend on whether the child is listed as "missing" in the central registry.

For instance, under Federal law,

a) The Attorney General [of the United States] shall-- . . . (3) acquire, collect, classify, and preserve any information which would assist in the location of any missing person (including an unemancipated person as defined by the laws of the place of residence of such person) and provide confirmation as to any entry for such a person to the parent, legal guardian, or next of kin of that person (and the Attorney General may acquire, collect, classify, and preserve such information from such parent, guardian, or next of kin); and(4) exchange such records and information with, and for the official use of, authorized officials of the Federal Government, including the United States Sentencing Commission, the States, cities, and penal and other institutions . . .

28 USC § 534

But all of the protections of 28 USC § 534 requires an official missing person. Moreover, by not treating this as a kidnapping by a relative, the FBI may not assist under the Fugitive Felon Act, 18 U.S.C. §1073, and the District Attorney will not apply for a UFAP (or an Unlawful Flight to Avoid Prosecution). These are all important tools to find the child.

You mention in your letter that you have contacted the Center for Missing and Exploited Children-we greatly appreciate this effort. But the failure to register the child in the central registry will greatly hamper, if not effectively eliminate efforts by the Federal Bureau of Investigation and law enforcement agencies of other jurisdictions. Also, the Pittsfield Police Department and the District Attorney's Office would be hampering efforts to locate the child using the Federal Parental Locator Service under 42 USC §663.

The extreme pain and anguish visited upon the father and son by the actions of the mother are tremendous. But (1) failing to register the child in the central registry and (2) failing to treat the matter as kidnapping by a relative and seek extradition as well as FBI assistance has greatly hampered matters.

SPECIFIC REQUESTS FOR ASSISTANCE

1. We ask that your register Richard Rodriquez, Jr. in the central registry.

2. We wish that you contact the District Attorney's Office and seek the commencement of a complaint for kidnapping by a relative, and seek extradition. In the mean time, if there is any ambiguity in the law, we ask that you ask the District Attorney's Office to file a motion under Criminal Rule Procedure 34 to report a question to the Appellate Division.

3. We ask that you enlist the support of the Federal Bureau of Investigation.

4. We ask that you make all efforts to contact the Social Security Administration to find out where Tina Helfer's SSI checks are being sent.

5. We ask that you notify police agencies in states where Tina Helfer may be located for assistance.

6. We ask that you consider this matter a criminal manner.

7. We ask that you seek an opinion from the City Solicitor as to whether you are prohibited from registering the child in the central registry. We call to the City Solicitor's attention the lack of any proscriptive words in Mass. Gen. L. ch. 22A, § 4.

***

On a few final notes, I do thank you for getting an opinion from the City Solicitor. Also, I think I would be doing you a disservice if I did not tell you we were considering legal action if the child was not registered in the Central Registry.

I have provided the City Solicitor's Office, the District Attorney's Office, and Mayor Ruberto's Office a copy of this letter.

Sincerely,

Rinaldo Del Gallo, III

************************************************************

Here is the letter I sent to the State Police

The Law Office of Rinaldo Del Gallo, III
100 North Street
Suite 404
Pittsfield, MA 01201-5109
PHONE: 413-445-6789
FAX: 413 553-3579
E-MAIL: rdelgalloiii@aol.com

Colonel Mark F. Delaney
Massachusetts State Police
470 Worcester Road
Framingham, MA 01702

RE: Registering a Missing Child

Monday, August 17, 2009

Dear Colonel Delaney:

I am an attorney out of Pittsfield, Massachusetts and I represent Mr. Richard Rodriquez Senior and I write on his behalf. Richard Rodriquez Senior has an out of wedlock child by the name of Richard Rodgriquez, Jr. The biological mother is Tina Helfer.

Richard Rodriquez, Jr. was born February 6, 2002. They were living at 44 Wilson Street, Pittsfield for two years prior to the kidnapping. The father lived with the mother all child's life prior to an abduction on February 3, 2008.

On February 3, 2008 (Superbowl Sunday), Richard Rodriquez Junior was abducted from his home in Pittsfield, Massachusetts. The biological father is Richard Rodriquez and the mother is Tina Helfer. The mother left without any notice, and the father's only contact with the child was but a single phone call about three weeks after the kidnapping. The couple previously lived on Wilson Street here in Pittsfield. Mr. Richard Rodriguez currently lives at 267 Lenox Avenue in Pittsfield.

A complaint seeking a custody and return of the child was filed on February 8, 2009, five days after the abduction in Pittsfield, in the Berkshire Family and Probate Court. Pursuant to a court order dated July 20, 2009 from the Berkshire Family and Probate Court, Mr. Rodriguez has been granted sole physical and sole legal custody. (An attested copy of the order, signed by the honorable Judge Edward J. Lapointe, from Docket Number 08W0031 before the Berkshire Division of the Probate and Family Court Department of the Massachusetts Trial Court is attached to this letter.)

Currently, (1) Richard Rodriquez Senior is the lawful and sole custodial parent and (2) the whereabouts of Richard Rodriguez, Jr. are not known. Richard Rodriquez, Jr. is now a missing child as defined by Mass. Gen. L. ch.22A, § 1.

Pursuant to Massachusetts law:

"Whenever a parent, guardian, or governmental unit responsible for a child, reports to any police officer or law enforcement official that a child is missing, such police officer or official shall immediately cause to be entered into the central register relevant information relative to said missing child. Such police officer or law enforcement official shall also immediately undertake to locate such missing child."

Mass. Gen. L. ch.22A, § 4.

I respectfully request that:

1. You "immediately cause to be entered into the central register relevant information relative to said missing child," pursuant to Mass. Gen. L. ch.22A, § 4.

2. You "immediately undertake to locate such missing child" pursuant to Mass. Gen. L. ch.22A, § 4.

Please call me for additional information. Richard Rodriquez may be reached at (413) 464 0719.

Sincerely,

Rinaldo Del Gallo, II