Massachusetts Criminal Defense Attorney Blog

In July of 2007 a Quincy Police officer saw William McKinley "acting affectionately" with a teenager in the lobby of a hotel.  After an investigation the officer learned that the subject had been "red flagged" by a federal agency for possible sex crimes involving a minor.  Subsequently McKinley's hotel room was raided.  A laptop containing pictures of child pornographic material was found on its hard drive.  Also in the room was the teenager who the officer observed earlier, later identified as a sixteen year old boy.  The boy told the police that McKinley gave him a drink, showed him pictures of naked boys and that the two had sex.  No charges were brought against McKinley for having sex with the boy but he was charged with possession of child pornography and distributing obscene material to a minor.  He was sentenced to three years in state prison.  McKinley has already served time for cocaine charges and indecent assault on a child. 

Read Article:  Massachusetts Man Convicted of Violating Child Pornography Laws

It is likely that the child pornography statute under which McKinley was prosecuted is Massachusetts General Laws Chapter 272 Section 29C.  That law makes it a crime to possess child pornography and permits a sentence of up to 5 years in prison for the first offense.  There is a minimum mandatory sentence of 5 years on second offenses.   

Continue reading "Massachusetts Man Given 3 Years By Norfolk Superior Court Judge On Child Pornography Charges" »

Somerville, Massachusetts police were investigating prostitution in their city and set up a sting operation.  An undercover officer responded to an advertisement and met with 24 year old Natasha Janvier, a prostitute, in her Somerville apartment.  Services and fees were discussed after which backup officers stormed the apartment to make their arrest.  In the process of doing so they smelled marijuana in an adjacent room.  Upon entering the room they located Michael Martinez, 27 from Boston and two juveniles.  While identifying Martinez the officers found six individually package bags of cocaine in his wallet.  Janvier was charged with sexual conduct for a fee.  Martinez has been charged with possession with the intent to distribute cocaine and a school zone violation. 

Read Article:  Boston Drug Dealer, Somerville Prostitute Arrested

Engaging in sexual conduct for a fee in Massachusetts is a misdemeanor.  Massachusetts General Laws Chapter 272 Section 53 states that anyone who offers to engage in sexual conduct for a fee or anyone who pays another to engage in sexual conduct with him or her is guilty of this crime.  There is a maximum sentence of 1 year in jail for a conviction of this offense. 

If the reports in this case are correct then Janvier's actions constitute a violation of this law.  She established prices of $130 for 30 minutes and $175 for a full hour of her sexual services.  She also had a list of dos and don'ts for having sex with her.  The extent of her sentence will likely be predicated on her criminal history.

Continue reading "Massachusetts Police Arrest Prostitute, Drug Dealer In Somerville Housing Projects" »

Eighteen year old Joshua Rodriguez from Marblehead was arraigned in the Lynn District Court on charges that he raped three girls under the age of sixteen all within a six week period.  According to reports, a 14 year old and a 15 year old complained that they were raped in December while another girl, also 14 told authorities that she was raped on February 4, 2009.  At the arraignment the district attorney told the judge that on December 3, 2008 Rodriguez forced one of the victims into a bathroom and forcibly raped her.  Another victim was raped in a car and threatened by the defendant afterwards.  The third victim reportedly smoked marijuana with Rodriguez, passed out and awakened to the defendant on top of her fondling her genitals.  Rodriguez is no stranger to the legal system.  He has a prior breaking and entering charge, motor vehicle offenses and drug charges.  Bail was set in the amount of $25,000.00. 

Read Article:  Rape Charges Pending Against Marblehead Teenager In Lynn

Typically when you hear about rape cases involving 18 year old males and 14 or 15 year old girls the charge will be rape of a child without force, commonly referred to as statutory rape.  Not so in this case.  These are forcible rape charges.  While the potential sentence for both is the same, people convicted of forcible rape typically receive stiff state prison sentences.  Rape of a child in Massachusetts is a violation of Massachusetts General Laws Chapter 22A or Massachusetts General Laws Chapter 23.  The former is rape with force, the latter is statutory rape. 

From reading the article it seems like Rodriguez has a tough road ahead of him.  Prosecutors in Massachusetts try to join cases like this for one trial to show motive or pattern.  If judges permit the joinder defending these cases is extremely difficult.  It is one thing to attack one victim through cross-examination or show inconsistencies in her story.  It is another thing to try to do this to three people, all of whom claim to have been raped in separate incidents, on different dates and at separate locations.  Cases like this usually get resolved through plea bargaining. 

Continue reading "Massachusetts Teenager Facing Rape Charges In Essex Superior Court" »

Apparently Framingham and Massachusetts State Police had been on to Anthony Batista and Hector Perez for several months.  Armed with information that the two Boston, Massachusetts men were selling crack cocaine in Framingham an investigation that included undercover drug buys began.  Batista became known to the officers on last Friday detectives in Framingham followed him through some downtown roads.  They saw him exit his car and get into a car with Hector Perez.  Batista later got back into his own car and was pulled over by the police.  He immediately surrendered a bag of cocaine and admitted to getting it from Perez.  Perez was apprehended.  Police found 18 individually packaged bags of cocaine in his possession.  Both were charged with distribution of cocaine, possession with the intent to distribute cocaine, conspiracy and a school zone violation.  Batista was also charged with driving without a license. 

It looks like Perez might have some bigger problems as well.  He has outstanding warrants.  One is out of the Worcester Superior Court for trafficking cocaine and possession with the intent to distribute cocaine.  The other warrant is out of the Framingham District Court for possession with intent to distribute cocaine, possession of cocaine and a school zone violation. 

Read Article:  Boston Men Facing Cocaine Charges in Framingham Court

The article is unclear as to why Batista was charged with distribution, possession with intent and conspiracy.  Clearly there is a case for possession of cocaine.  He had the substance in his possession when stopped by the police.  If Batista was the seller in one or more of the undercover buys then the distribution charge makes sense.  As to the conspiracy and possession with intent, the police must show that Batista and Perez were working together to sell the cocaine that Perez was caught with either as joint venturers or co-conspirators. 

Jail time is a distinct possibility for both men in this case.  The school zone charge alone carries a minimum mandatory 2 year jail sentence.  Perez's trafficking cases carry anywhere from a 3 year mandatory sentence to a 15 year mandatory sentence depending on the amount he was charged with trafficking.

Continue reading "Two Boston, Massachusetts Men Arrested, Charged With Dealing Cocaine" »

Massachusetts police allege that a thirty seven year old man was under the influence when he lost control of the snowmobile he was driving causing it to crash into rocks, killing his passenger.  Chris Corriveau is now charged with operating under the influence of alcohol (OUI) and motor vehicle homicide.  The victim, a thirty six year old woman died at the scene. 

Read Article:  Massachusetts Authorities Charge Man With Drunk Driving and Motor Vehicle Homicide in Connection With Snowmobile Fatality

Massachusetts General Laws Chapter 90 Section 1 defines motor vehicles in Massachusetts.   The law states that any vehicle made for propulsion by power is a motor vehicle.  Motorized bicycles are not motor vehicles however in accordance with Massachusetts General Laws Chapter 90 Section 1B anyone operating a motorized bicycle is subject to the laws of the road and can be prosecuted for DUI.  In Massachusetts motorcycles are motor vehicles as are golf carts, mobile homes, tractors and mobile construction cranes.  While arguably a snowmobile may be considered a motor vehicle, in this case there is an issue as to whether the vehicle was operated on a public way.  Public way is an element that the district attorney must prove beyond a reasonable doubt before someone can be convicted of OUI or motor vehicle homicide. 

The issue of impairment can also be attacked in any alcohol related driving case.  Field sobriety tests are subjective and vulnerable to attack on cross-examination.  People would be amazed at how many times police officers demonstrating these tests in court stumble or inadequately perform the very tests that they administered in the field to the defendant.  Breathalyzer tests are subject to the same scrutiny as are any other machines.  Think about how many times you drove past one of those stationary police radar signs that tell you how fast you are driving.  Rarely do they reflect the same speed registered on your speedometer.  The speeds often vary by 5 or 6 miles per hour.  What does this tell you?  Either the police radar is inaccurate or your speedometer is inaccurate.  Why does this happen?  Because these are machines and they are fallible. 

Continue reading "Drunk Snowmobile Driver Charged With Motor Vehicle Homicide In Massachusetts" »

In January of 2008 Christopher Cook sold 200 OxyContin pills to a cooperating witness.  Then, less than two months later FBI agents caught Cook trying to steal "what he believed to be OxyContin pills for a drug source".  In November of 2008 Cook pleaded guilty to possession, distribution and attempted possession with intent to distribute OxyContin pills. Cook, a 29 year old Pembroke man who had applied to become a Boston Police Officer will now spend the next eighty seven months in federal prison. 

Read Article:  OxyContin Dealer Gets Seven Years in Federal Prison

OxyContin is a Schedule II drug pursuant to 21 United States Code Section 812.  That section defines Schedule II drugs as substances that have a high potential for abuse, have a currently accepted medical purpose and abuse of which might may lead to severe psychological or physical dependence.  According to federal law it is a crime to possess oxycontins with the intent to distribute the drug.  It is also a crime to attempt to possess oxycontins with the intent to distribute the substance. 

Sentences for convictions of drug offenses are in some cases mandated by statute.  Where there is no mandatory sentence to impose judges regularly refer to the federal sentencing guidelines for guidance on how to sentence someone.  The federal sentencing guidelines give a range of sentencing options that vary depending on the crime and the person who was convicted.  Things such as prior criminal record, the quantity of the drugs and whether or not weapons were used are considered by these guidelines. 

Continue reading "Boston Police Applicant/Oxycontin Dealer Sentenced To 87 Months In Federal Prison" »

John Ellement of the Boston Globe reported that a Boston man has been charged with killing his girlfriend of six months shortly after seemingly enjoying their first Valentine's Day together.  Shortly after 3:00 a.m. Sunday the defendant, Mario Gonzalez called Boston Police telling them that an intruder had entered the couple's home and stabbed the victim.  Later however Gonzalez confessed in Spanish to killing the victim.  According to reports, Gonzalez, concerned that Forty might leave him had made certain threats that she likely did not believe.  Members of Forty's family stated that Gonzalez, a Guatemala native admitted to killing someone in his homeland. 

Read Article:  Boston man charged with killing girlfriend, Boston Globe February 18, 2009

Here are some interesting statistics about domestic violence in the United States.  Starting in the mid 1990's, at least 1,500 women were killed annually as a result of domestic violence.  Approximately 33% of all female murder victims were killed in domestic incidents.  About 1/3 of all women's injuries resulting in emergency room hospital visits are the result of domestic violence.  Women ages 20-34 are at the greatest risk for domestic violence.  This case marks the first reported domestic violence death in Boston this year.

To say that Gonzalez's case appears to be difficult to defend is an understatement.  Prior threats of violence against the victim, a bogus story to the police and ultimately a confession are huge hurdles for the defense lawyer to jump.  Fortunately for Gonzalez he has one of Boston's best criminal defense lawyers working for him. 

Continue reading "Boston, Massachusetts Man Charged With Killing Girlfriend Of Six Months" »

The New York Daily News reports that former Boston College Basketball player Sean Williams has been arrested and charged with violating a restraining order and trespassing.  Williams has had problems in this area in the past.  He was thrown off of the Boston College basketball team in his junior year for smoking marijuana and has been banned from entering the Boston College campus.  Prior to his expulsion Williams had been suspended for marijuana use. 

Read Article:  http://www.nydailynews.com/sports/basketball/nets/2009/02/16/2009-02-16_nets_sean_williams_arrested_at_bc_over_r.html

The article's reference to a restraining order violation is somewhat sketchy.  Restraining orders in Massachusetts are governed by Massachusetts General Laws Chapter 209A.  Restraining orders protect family or household members in Massachusetts.  Those individuals are defined as people who 1) are or were married to one another, 2) reside or had resided in the same household, 3) are or were related by blood, 4) have a child together or 5) are in or have been in a substantive dating relationship.  There is no indication that anyone fitting that definition was involved in this incident.

Trespassing in Massachusetts is prohibited by Massachusetts General Laws Chapter 266 Section 120.  The law states that anyone who without authority enters or remains in or on property another, or does so in violation of a restraining order is guilty of trespassing.  A conviction of this offense carries a potential 30 day jail sentence. 

This case will likely be prosecuted in the Brighton District Court. 

Continue reading "Former Boston College Basketball Player Sean Williams Charged With Restraining Order Violation" »

Laura Calverley, reporter for the Attleboro Sun Chronicle reported that a Rhode Island man has been arrested and charged with possession with intent to distribute drugs.  The defendant, Cristian Torres will have to defend against these drug charges in the Taunton District Court.  Details of the arrest are somewhat sketchy.  Apparently Torres was driving in Rehoboth when he was stopped by a local police officer.  Police subsequently located drugs on Torres and in his car; specifically marijuana and Vicodin.  Members of the Bristol County Massachusetts State Police Bristol County Drug Task Force were present for the arrest as well.  According to the article, the quantity of narcotics (unspecified) along with its packaging led police to believe that Torres intended to distribute the controlled substances.  Authorities also located a large amount of cash.  Torres was operating on a suspended license. 

Read Article:  http://www.thesunchronicle.com/articles/2009/02/15/news/4421695.txt

Some pretty interesting thoughts come to mind when reading about this arrest.  First, why was Torres pulled over.  Massachusetts and Federal Laws demand that police officers have a valid reason to pull you over.  You must have violated some sort of law or ordinance.  Police cannot simply pull someone over for no reason.  There is nothing in the article suggesting that Torres was doing something wrong warranting a stop of his vehicle.  The second thought that comes to mind is why were local police and a drug task force were involved in the stop.  Was he being followed or investigated as part of a larger investigation.  Third, what right did the police have to search the interior of Torres' car.  Many of these questions might well be answered by looking at the police report.  If they are not then perhaps Torres has a legitimate challenge to a violation of his constitutional rights. 

Continue reading "Bristol County Drug Task Force Arrests Man On Drug Charges" »

After a 2 month investigation police in Lawrence, Massachusetts arrested 12 people, 7 drug dealers and 5 of their customers.  According to the Lawrence Eagle Tribune the investigation began after the narcotics unit started to receive tips on their hot line about drug activity in lower Tower Hill.  The police efforts, conducted with undercover officers engaging in hand to hand purchases resulted in the execution of a search warrant at 10-12 Bedford Street.  No drugs were seized during the raid however narcotics distribution paraphernalia was found.  After the raid police set up shop in the apartment purporting to be drug dealers themselves.  When people arrived to purchase drugs they were arrested. 

Read Article:  http://www.eagletribune.com/punews/local_story_044004833.html

So the question here is:  Were the buyers entrapped.  The answer is most likely no.  At least once a week someone comes into my office complaining that he was "entrapped".  The story always follows one of two scenarios:  1) I was buying drugs from someone who turned out to be a cop; or, 2) I sold to someone who was a cop but he asked me for the drugs and set up the deal.  Massachusetts law on entrapment is quite clear.  There is nothing improper about police setting traps to catch unwary criminals.  It is however improper to implant ideas in innocent minds.  Pleading or arguing with a defendant is enough to show entrapment.  The key is predisposition.  If someone is predisposed to committing a crime there is nothing wrong with law enforcement soliciting the commission of the act.  Doing more however is improper and serves as an affirmative defense. 

Attorney Stephen Neyman has won three hand to hand sales to undercover police officers in drug trafficking cases.  In each of these cases the defense theory of entrapment was advanced and accepted by the jury. 

Continue reading "Lawrence, Massachusetts Drug Bust Nets 12 Dealers and Customers" »

Derek Blumenthal and Christopher Chamberlain both of Brockton are being held at the Bristol County Jail.  They are charged with extortion by threat of injury and witness intimidation.  It is alleged that they made threats to a Brockton dentist's family and tried to extort money from them.  According to reports in the Brockton Enterprise, the defendants were driving by the victim's Easton home every ten minutes demanding four hundred dollars for money purportedly owed for drugs.  The men made threatening calls from their cell phone, telling the dentist's wife that if she did not pay the money that her son owed they would go "into the house and beat her beyond recognition".  More calls had been made earlier in the day and messages were left with the dentist's answering service in Raynham and Dorchester.  Over 20 calls were made altogether.  

Read Article:   http://www.enterprisenews.com/news/x1177286299/Two-Brockton-men-charged-with-extortion

So what are these guys looking at? 

1.  Extortion:  The Massachusetts statute making this a crime in Massachusetts General Laws Chapter 265 Section 25.  The law prohibits anyone from communicating a threat to someone else with the intent to extort money from that person.  A conviction can carry a prison sentence of up to 15 years if the case in prosecuted in the superior court.  If the reports are correct this case was properly charged.

2.  Witness Intimidation:  Massachusetts General Laws Chapter 268 Section 13B sets out the criteria for witness intimidation.  If you threaten someone who is a potential witness in a criminal case you can be found guilty of this charge and sentenced for up to ten years in prison.  The article does not make clear how these two men are in violation of this statute.

I would bet that these cases remain in the district court given the absence of any physical harm to the victims.  If that is the case both defendants face no more than 2 1/2 years in the Bristol County House of Correction.

Continue reading "Two Brockton Men Charged With Extortion, Witness Intimidation" »

According to the Somerville Journal, Last week Vincent Primo and his girlfriend, Kim Szathmary, both of Medford were indicted by a Middlesex County Grand Jury for robbery and attempted robbery in Cambridge and Somerville.  In November and December of 2008 there were 7 incidents of attempted robbery and robbery in the Somerville and Cambridge area.  The crimes were similar in that a male would take women's handbags from them forcible, and on one occasion a victim was stabbed.  The crimes occurred near public transportation stations.  Surveillance cameras captured Szathmary using the victim's credit cards.  Primo was identified through photographic arrays.  Both defendants were indicted on four counts of robbery, armed and unarmed, two counts of armed assault with the intent to rob, assault and battery by means of a dangerous weapon, armed assault with intent to murder and credit card fraud.  Somerville District Court Judge Maurice Flynn set bail in the amount of $500 for Szathmary and he held Primo without bail. 

Read Article: http://www.wickedlocal.com/somerville/news/x84117951/Medford-couple-arrested-for-stabbings-robberies-in-Somerville-Cambridge

Perhaps the most serious crime with which the couple have been charged is armed robbery.  Massachusetts General Laws Chapter 265 Section 17 states that anyone who is armed with a dangerous weapon uses the weapon to effectuate a theft from the victim is guilty of armed robbery.  The maximum sentence for armed robbery is life in prison.  Unarmed robbery in Massachusetts has the same elements as armed robbery with the exception that there is no dangerous weapon involved.  Unarmed robbery also carries a life sentence.  It looks like lawyers for the defendants in this case have a tough fight ahead of them. 

Continue reading "Middlesex Grand Jury Indicts 2 For Robberies In Cambridge, Somerville" »

Steven Mai and William Blundell are getting arraigned in the Lynn District Court today stemming from their involvement in criminal activity in Lynn on Saturday night.  Apparently there was a party attended by fifty to sixty people, all of whom were identified as being Crip gang members or associates.  The party was hosted by Natasha Cedano at her home at 4 Summerset Court.  Complaints by neighbors of excessive noise and a female brandishing a gun prompted the arrival of police officers.  As officer approached the party they observed Mai wearing a shirt remembering a murdered Crip gang member.  Seeing the police Mai threw an object, later identified as a .35 caliber handgun into some bushes.  He was charged criminally for possession of a firearm, possession of ammunition and disorderly conduct.  Blundell was at the party shouting obscenities as they arrived.  Blundell was arrested and charged with disorderly conduct and failing to disburse. 

Read Article:  http://www.itemlive.com/articles/2009/02/10/news/news18.txt

Crips are a violent street gang that started in the late 1960's in Los Angeles, California.  The two co-founders are now dead.  Raymond Washington was murdered in 1979.  Tookie William was executed in San Quentin Prison years after having been convicted and sentenced to death.  There are over 30,000 Crip gang members operating throughout the country.  The Lynn Crip gang is known as the Avenue King Crips. 

The most serious charge here is the gun possession case against Mai.  If convicted he faces a minimum mandatory 18 months in jail pursuant to Massachusetts General Laws Chapter 269 Section 10. 

Continue reading "Lynn Man Charged With Gun Possession After House Party Becomes Unruly" »

Juan Fernandez of Lynn, Massachusetts was arraigned in the Attleboro District Court after being charged with drunk driving (DUI), leaving the scene of an accident, possession with intent to distribute controlled substances and operating to endanger.  All of this stems from a collision last Saturday morning involving Fernandez and a Massachusetts Police Officer.  Apparently, at 4:50 in the morning Fernandez was driving the wrong way on Interstate 95 near Route 123.  His car struck a police cruiser who was attempting to stop him from operating in the wrong direction.  It was reported that Fernandez was so drunk that when questioned by police he did not know where he was. 

Read Article:  http://www.thesunchronicle.com/articles/2009/02/10/news/4390515.txt

Massachusetts district attorneys look at drunk driving in two contexts.  One is based on the police officer's observations of the defendant at the time he or she is stopped.  The officer considers the manner of operation of the vehicle, the suspect's physical appearance, the odor of alcohol, physical behavior and the performance of field sobriety tests.  These subjective criteria help the police form opinions as to sobriety or impairment.  The second context in which prosecutors look at drunk driving cases involves an "illegal per se" operation of a motor vehicle.  Massachusetts and all other states have adopted a rule that anyone operating with a blood alcohol of .08 percent or higher is guilty of drunk driving.  There is an overlap between an officer's observations and the illegal per se view of this crime.

Many drunk driving cases are defensible.  Police officers' subjective opinions are often countered by reasonable explanations for certain behavior.  For instance, officers typically use the expression "unsteady on his feet" to support their opinion that someone was intoxicated.  Many times however the defendant will have a physical defect or problem that causes a certain gait.  Another common phrase used by the police at trial is "slurred speech".  This can be explained by certain impediments or accents particular to the suspect.  Unless the officer knows the person he has no way of knowing if the speech pattern is the effect of alcohol or the individual's particular speech pattern. 

Continue reading "Lynn Man Charged With OUI After Driving Wrong Way On Route 95 And Hitting Cruiser" »

Even though Paul Mateiko has a license to carry firearms he does not have the right to possess a machine gun.  Worcester Police actually found multiple machine guns when they searched Mateiko's home Saturday night.  These weapons along with 79 other firearms, thousands of rounds of ammunition and explosive devices were enough to convince a Worcester District Court Clerk Magistrate to impose bail in the amount of $15,000 for the defendant.  Makeito was charged with four counts of illegal possession of a machine gun and one count of unlawful possession of an infernal machine.

Read Entire Article:  http://cms.firehouse.com/web/online/News/Massachusetts-Crews-Make-Explosive-Find-/46$62661

The crimes charged are as follows:

1.  Possession of an infernal machine.  This is prohibited by Massachusetts General Laws Chapter 266 Section 102A.  That statute makes it a crime to possess any device that can danger life or property by fire or explosion.  There is a possible 10 year prison sentence that can be imposed for anyone convicted of this crime.  Massachusetts case law makes clear that the device must be something which is made.  It cannot just exist of a single element of the device.  It must consist of more than one part in order to be a device, instrument or machine. 

2.  Possession of a machine gun.  Massachusetts General Laws Chapter 269 Section 10 makes it a crime to possess a machine gun.  A conviction for this offense carries a minimum mandatory 18 months in the house of correction. 

Continue reading "Worcester Man With 81 Firearms Charged With Possession Of Machine Gun" »

At 2:00 this morning in Somerville, 32 year old Marcel Laurol of Malden man was shot by a 25 year old man from Brockton.  Laurol then hijacked a taxicab and drove it into his attacker.  Both of these guys are going to need good defense lawyers.

According to the BostonChannel Laurol was shot in the leg near Elm Street and Herbert Street.  He then jumped into a taxicab, assaulted the driver, hijacked his passengers and drove down Chester Street.  Laurol then drove into the Brockton man (the shooter) injuring his arms and head.  The cab then struck a nearby building. 

Laurol was charged with kidnapping, carjacking, assault and battery by means of a dangerous weapon, reckless operation of a motor vehicle and operating with a revoked driver's license.  Apparently the police were unable to locate and identify the taxicab's passengers. 

Read Full Article:  http://www.thebostonchannel.com/news/18668109/detail.html

Carjacking in Massachusetts is a crime under Massachusetts General Laws Chapter 265 Section 21A.  That law states that anyone whoever "with intent to steal a motor vehicle, assaults, confines, maims or puts any person in fear for the purpose of stealing a motor vehicle shall" is guilty of carjacking.  You do not have to actually steal the car to be found guilty so long as you intended to do so.  There is a maximum 15 year prison sentence for anyone convicted of this offense.  If the crime is committed by someone who is armed with a dangerous weapon the maximum sentence increases to 20 years.  If the offense is committed with a firearm there is a 5 year minimum sentence. 

Continue reading "Malden Man Charged With Carjacking, Assorted Criminal Offenses" »

On January 23, 2009 Barnstable and Yarmoutth police along with a Brockton K-9 officer executed a search warrant at 55 Nautical Way, the home of Kenneth and Denzel Chisholm.  In the course of doing so officers located and seized 2,000 oxycodone pills valued at $60,000 a couple of guns and $15,000 cash.  The search warrant was sought out after police received information that the Chisholm brothers were in possession of particular caliber firearms identical to firearms used in an earlier shooting of two men.  Also located during the search was some cocaine, marijuana, narcotics packaging paraphernalia and a police scanner. 

Authorities described the defendants as major players involved in drug trafficking crimes and violent crimes.  Both men were initially charged with trafficking oxycodone in excess of 200 grams, possession of a firearm (defaced serial number), possession with the intent to distribute a class D substance and possession of ammunition.  Charges are pending in the  Barnstable District Court until the defendants are indicted. 

Read Entire Article: 

http://www.capecodonline.com/apps/pbcs.dll/article?AID=/20090123/NEWS11/90123025

So exactly what does this mean for the Chisholm brothers.  That is a good question.  The big case is the trafficking carrying a minimum mandatory 15 year state prison sentence.  Search warrant cases such as this one always raise the question "Whose drugs were these?".  Massachusetts law makes clear that someone's presence at a crime scene without more is not sufficient to establish his guilt.  This is so even if the defendant knew about the crime and took no steps to prevent it.  The district attorney must prove that the defendant intentionally participated in committing that crime, not that he was just there or knew about it.  Thus, there is no guilty by association in Massachusetts.  In order to convict the prosecutor is going to have to show that that both defendants had the intent to possess the oxycodone with the intent to distribute the same.  That can be accomplished through statements made by the defendants, the location of the drugs or trafficking related paraphernalia in the home, fingerprints on the drugs or its packaging.  There are many other ways to prove that the defendants engaged in a joint venture and many ways to defend against these allegations. 

Continue reading "Barnstable Men Charged With Trafficking Oxycodone, Related Drug Offenses" »

This past Wednesday, Ricardo Calvo of Worcester was sentenced to fifteen years in federal prison for being a felon in possession of a firearm.  The defense was looking for a seventy seven month prison sentence based on his lawyer's representation that Calvo had a history of substance abuse, physical abuse and emotional abuse since he was a child.  According to defense counsel Victoria Bonilla, Calvo was introduced to drugs by his father at the age of 12.  The prosecution argued that the defendant's lengthy criminal history was reason enough not to depart from the 15 year mandatory minimum sentence. 

The defendant was arrested in December of 2005 along with sixty other people as part of a federal crime sweep.  When he was apprehended police found him in possession of a .22 caliber pistol, magazine and ammunition.  

Read Entire Article:  http://www.telegram.com/article/20090205/NEWS/902050969/1008/NEWS02

Calvo was most likely charged with a violation of 18 U.S.C. Section 922(g) making it a crime for anyone who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year to possess a firearm.  The sentence associated with a conviction of this crime is a maximum of 10 years in federal prison.  So, for Calvo to have been sentenced to 15 years there must have been an armed career criminal enhancement.  To be enhanced the defendant in this case must have been convicted of three prior felonies for serious drugs or violence. 

Victoria Bonilla is an excellent experienced Massachusetts Criminal Defense Lawyer who unquestionably did a great job for her client.  The federal courts are a tough place to defend people accused of committing crimes.  The defense victories are difficult to come by and success in this forum is a relative term.

Continue reading "Massachusetts Man Convicted Of Being Felon In Possession Of Firearm" »

According to police Rayfield McCants, 28 of Cambridge, Massachusetts got onto an MBTA bus Tuesday night and intentionally rubbed himself against a woman passenger.  Afterwards, when the woman exited the bus McCants followed her and harassed her until a bus driver came to her aid.  McCants now stands charged with indecent assault and battery.  Apparently when McCants got on the bus he sat directly next to the woman even though the bus was virtually empty.  The bus driver witnessed the events on and off the bus and assisted the woman until the suspect was arrested by the police.  Bail in the amount of $5,000 cash was set. 

Read Full Article http://www1.whdh.com/news/articles/local/BO103666/

The Massachusetts statute prohibiting indecent assault and battery is Massachusetts General Laws Chapter 265 Section 13H.  The law states that anyone who is convicted of this crime can be punished for up to 5 years in state prison.  If the case is kept in the district court there is a maximum 2 1/2 year house of correction sentence that can be imposed.  Massachusetts courts define indecent assault as acts fundamentally offensive to today's moral values.  Touching the buttocks or private areas of another certainly suffice to convict for this crime. 

Continue reading "Cambridge Man Charge With Indecent Assault And Battery Stemming From Incident On MBTA Bus" »

The Harvard Crimson reported today that third year Harvard Law student Charles Simpkins was arrested and charged with disorderly conducting and resisting arrest.  According to the article, on January 24, 2009 Simpkins left a bar drunk and entered a parked Boston Police cruiser.  He told the officers to give him a ride and offered that he worked for the district attorney's office.  Apparently the defendant was an intern at the Suffolk County District Attorney's office, working at the Dorchester District Court.  The district attorney's office terminated Simkins' employment shortly after the incident. 

Read Full Article at

The charges Simkins faces are as follows:

1.  Resisting Arrest.  Massachusetts General Laws Chapter 268 Section 32B makes resisting arrest in Massachusetts a crime.  The law states that anyone who knowingly prevents or attempts to prevent a police officer from arresting someone either by using or threatening force against the office or doing something that creates a substantial risk of causing bodily injury to the police officer is guilty of this crime. The maximum sentence for a violation of this law is 2 1/2 years in jail. 

Here are some nuances to this law.  It is not a defense to this crime that the officer was attempting to make an unlawful arrest.  Also, the term police officer refers to those in uniform or in plain clothes provided that in the latter case the officer exhibits his credentials while attempting to make the arrest. 

2.  Disorderly conduct.  This is a crime pursuant to Massachusetts General Laws Chapter 272 Section 53.  The law states that anyone who acts disorderly may be punished by up to 6 months in jail or fined up to $200 or both.   A person is disorderly if with a purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor. 

A Beverly, Massachusetts man pleaded guilty to his 5fh drunk driving charge and will spend the next three to three and one half years in state prison.  Gary Lee was first convicted of OUI in Massachusetts back in 1975.  He picked up his second DUI in 1982 in Alaska.  Two more convictions in Massachusetts followed, one in 1985 and the other in 2004.  The plea took place in the Essex County Superior Court in Salem, Massachusetts. 

This case resulted from an incident in June of 2008.  Beverly Police responded to the scene of a motor vehicle crash where they found the defendant being treated by ambulance personnel.  The medical attendants detected alcohol on the man's breath and alerted the police.  Once it was clear that the man had no injuries the police conducted field sobriety tests which the defendant failed.  A breathalyzer test was administered.  The defendant blew a .24, three times the legal limit. 

Massachusetts OUI laws require someone convicted of a 5th offense drunk driving charge to serve at least 2 years in jail.  There is also a fine of at least $2,000 associated with a conviction as well a lifetime loss of license.  The case can be prosecuted in either the district court or the superior court.  In this case the Essex County District Attorney's Office chose to prosecute the defendant in the Superior Court.  Massachusetts District Courts can sentence to no more than 2 1/2 years in a county house of correction.  Judges in Massachusetts Superior Courts can sentence people to state prison.  The maximum sentence for a 5th offense OUI in Massachusetts is 5 years in prison.

Continue reading "Beverly Man Convicted Of 5th Offense Drunk Driving In Essex Superior Court" »

Assistant United States Attorney Suzanne Sullivan's reputation took a severe blow last week when Jonathan Saltzman from the Boston Globe reported that Chief District Court Judge Mark L. Wolf threatened sanctions for Sullivan's failure to provide exculpatory evidence to defense counsel.  According to the article, the veteran prosecutor failed to disclose that a Boston Police officer offered testimony in court that was contradicted by what he told Sullivan beforehand.  In a lengthy memorandum Wolf wrote that "The court assumes that her failure to disclose material, exculpatory information was not intentional, in part because Sullivan produced her notes for the court's in camera inspection," Wolf wrote. "Nevertheless, the violations were clear and inexcusable. If the error by an experienced prosecutor was inadvertent, it seems only to be explained by ignorance of, or utter indifference to, the constitutional duty she repeatedly claimed to have understood and obeyed."  In another part of the memorandum Sullivan's actions were referred to as an "egregious failure" to disclose materially exculpatory evidence. 

This notwithstanding, the arrest and evidence obtained against the defendant was found to be made in a constitutional manner.  The defendant is charged with firearms related activity. 

Read Entire Article:

http://www.boston.com/news/local/massachusetts/articles/2009/01/27/judge_chastises_federal_attorney/?page=full

About two to three years ago I had a case against Suzanne Sullivan.  At that time she was an assistant district attorney in the Plymouth County District Attorney's office.  The case involved multiple counts of sexual abuse of several children.  I was the second defense lawyer on the case.  Ms. Sullivan had inherited the case from another prosecutor who had just left the district attorney's office to join the United States Attorney's Office.  I personally found Ms. Sullivan to be extremely professional.  She promptly provided me with all discovery materials.  She even went so far as to invite me down to her office to view her file.  I accepted her invitation.  She gave me a couple of large boxes full of police reports, grand jury minutes, witness statements, exhibits and more.  She even left her notes of interviews with witnesses in the box for me to review and photocopy.  I was permitted to view this material in a private room, unsupervised.  Ms. Sullivan gave me access to a copy machine and made sure that I was able to obtain copies of all materials I wanted.  We later tried the case.  Suzanne Sullivan's hospitality and professional congeniality continued in the same manner.  She never personalized the case, prosecuted with a passion and conducted herself in a dignified manner.  That case was and remains my only contact with this prosecutor.  Her ethics and professionalism are, in my opinion unparalleled.   

The rule in federal courts is similar to that In Massachusetts state courts as they relate to prosecutorial misconduct.  Dismissal with prejudice "is a draconian sanction that must be reserved for cases manifesting egregious prosecutorial misconduct or a serious threat of prejudice to the defendant."  Even dismissals without prejudice are rare and not used absent "some demonstrable prejudice to the defendant."  Our courts prefer alternative sanctions such as a fine or a report to the Board of Bar Overseers.  On appeal there are times when prosecutorial misconduct results in a reversal of the conviction and a new trial. 

Continue reading "Judge Suggests Misconduct On Part Of Massachusetts Federal Prosecutor" »