Massachusetts criminal defense Attorney Blog
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On April 3, 2013 eight firefighters responded to a call in Rowley, Massachusetts. A shed had burned down and reports stated that the fire was spreading. A couple of hours later everyone returned to the Rowley Fire Station. An argument between the fire chief and one of the firefighter’s followed. Apparently that argument became physical. The police investigated the matter and later that night an application for a criminal complaint was filed in the Newburyport District Court. The case has been scheduled for a Clerk Magistrate’s Hearing next week. The charges being sought are Assault and Battery.

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Newburyport, Massachusetts Assault and Battery Defense Law Firm

Violent Crimes Defense Attorney in Massachusetts

There is a process for the issuance of criminal complaints in Massachusetts that involve misdemeanors where the accused is not under arrest. The law establishing the procedure is Massachusetts General Laws Chapter 218 Section 35A. That law states that the accused shall be given the opportunity to be heard and to oppose the issuance of the complaint. The exception is where there is an imminent threat of bodily injury, flight or the commission of another crime. The Clerk Magistrate conducting the hearing weighs the evidence and makes the determination as to whether probable cause exists to believe that a crime was committed and that the accused is the person who committed the crime. Probable cause is the lowest standard in the criminal legal system in Massachusetts.

These proceedings, commonly known as Clerk’s Hearings, are limited in scope and for a complaint to issue either the victim or a police officer simply needs to lay out the allegations. There is no right to cross-examine witnesses at these hearings. Once a criminal application is filed by a civilian in Massachusetts a Clerk Magistrate must act on it. The finding of probable cause does not mean however that the Clerk Magistrate must issue the complaint. The clerk can refuse to issue a complaint. The clerk can hold the issuance of the complaint and afford the parties the opportunity to resolve the case without criminal court action. The clerk can continue the matter for a period of time with the understanding that a complaint will not issue provided the accused stays out of trouble or makes restitution. The function of the Clerk Magistrate in these matters is not only to make probable cause determinations but to screen out nuisance or petty cases to help keep the criminal courts running smoothly. Any Massachusetts Criminal Lawyer will tell you that the Clerk Magistrate Hearing is a wonderful opportunity to resolve a case without judicial intervention. This is where jobs, reputations and a person’s liberty can be saved without excessive cost, litigation or embarrassment. Good, experienced clerks know the value of a case and will always work hard to promote justice at its earliest stage. As a matter of fact, a significant number of clerk magistrates in Massachusetts are in fact lawyers and have practiced for years before their appointment.

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This past October Daniel Goichman of Southborough, Massachusetts was charged in the Westborough District Court on charges of Possession of Child Pornography. It is alleged that while online he solicited minors. His home was searched and a Search Warrant was also issued for his computer. Apparently the search of the computer provided evidence that Goichman had been distributing Child Pornography as well. Goichman has a conviction for Rape stemming from an out of state incident in 2001. Bail has been set in the amount of seventy thousand dollars. The case will be prosecuted in the Worcester Superior Court.

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Massachusetts Child Pornography Defense Law Firm

Worcester County Sex Crimes Lawyer, Rape, Child Abuse

Distribution of Child Pornography or Possession With the Intent to Distribute Child Pornography in Massachusetts is prohibited by Massachusetts General Laws Chapter 272 Section 29B(b). A conviction of this crime is a felony punishable by a minimum mandatory ten year prison sentence and as much as twenty years in jail.

As a Massachusetts Criminal Lawyer I have represented several people charged with Distribution of Child Pornography. Not one of these people actively disseminated the illicit material. Upon their arrest, all of these people were stunned to find out that they were facing lengthy mandatory prison sentences. They were also shocked to learn that their actions satisfied the element of distribution. After all, the only thing they did was download and view the material. They never actively distributed what these images and videos. How then could they be charged with distribution? Perhaps the case of United States v. Richardson best outlines the dangers of file sharing and the rationale for why peer to peer file sharing constitutes the act of distribution.

In Richardson law enforcement entered a p2p network in an undercover capacity. They found Child Pornography in one of the user’s accounts. The police downloaded the illicit material from this person’s account. The user was identified as the defendant and a Search Warrant was executed at his home. The search confirmed p2p activity. Richardson was convicted after a jury waived trial. Affirming the conviction the court reasoned that the structure of the p2p programs encourages file sharing. Users get a rating based on their contribution to the network. A higher rating facilitates downloading additional materials. Richardson argued that distributing equates with delivering. He claimed that he never actually transferred the Child Pornography to anyone. Rather, he only permitted entry into his computer. The court rejected this argument and held “that downloading images and videos containing child pornography from a peer-to-peer computer network and storing them in a shared folder accessible to other users on the network amounts to distribution.” This seems to be the consensus throughout the country.

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According to reports, David Minasian and Madonna Say, of Malden, Massachusetts and Lynn, Massachusetts respectively have both been charged with Sex Trafficking in the Massachusetts Federal Court in Boston. Authorities allege that in Chelsea Minasian met up with a fifteen year old female runaway who had recently left a treatment facility. Minasian offered the girl help. The three ultimately headed to Florida by car. On the way, Minasian gave the girl Marijuana, Alcohol and Drugs. He then offered the girl employment as a Prostitute. Minasian advertised the girl as an escort over the internet. Men in both Florida and Massachusetts responded to the ads. Minasian and Say have been charged with Sex Trafficking by Force, Fraud or Coercion and Sex Trafficking of a Child. The case is being prosecuted in the Massachusetts Federal District Court.

Massachusetts Sex Trafficking Defense Law Firm

Lawyers Who Defend Child Sex Trafficking Cases in Massachusetts

The defendants in this case were probably charged with a violation of 18 U.S.C. Section 1591; Sex Trafficking by Force, Fraud or Coercion. The statute states that anyone who transports someone, or receives a financial benefit from, or threatens or forces the person who is under the age of eighteen to engage in sex is guilty of this crime. The crime is a felony. If the victim is over the age of fourteen and under the age of eighteen the accused must serve a sentence of at least fifteen years in prison.

Laws like this one have been implemented by states throughout the country. In 2011, Massachusetts enacted a similar act. In essence, the Massachusetts legislation created a crime for Human Trafficking for Sexual Servitude. The law prohibits transporting, enticing or harboring another with purpose that that person engage in sexually explicit acts. A conviction for this offense in Massachusetts mandates five years in jail. There is a maximum twenty year sentence that can be imposed and fines of up to twenty five thousand dollars. Human Trafficking for Sexual Servitude that involves someone under the age of eighteen permits a judge to impose a life sentence after a conviction. The law proscribing this activity is Massachusetts General Laws Chapter 265 Section 50. All states now have enacted some sort of Human Trafficking law that is modeled in large part after the federal law under which Minasian and Say are being prosecuted.

Successful defenses to these cases are difficult to establish. Even if the victim lies about his or her age the accused cannot use that as a defense. In cases where the internet was used to advertise services, the victim’s image will serve as corroborative evidence for the prosecution, even if the victim chooses not to testify.

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The Massachusetts Supreme Judicial Court issued its opinion in four cases today all implicating the Massachusetts Marijuana Law. Three of these cases are discussed here. All three of these decisions found in favor of the defendants. The decisions effectively explain and perpetuate the spirit of Massachusetts General Laws Chapter 94C Section 32L making possession of less than one ounce of marijuana a civil offense.

In Commonwealth v. Pacheco, a state trooper was on patrol at night in a park in Lynn, Massachusetts. A sign in the park indicated that the park closed at dusk. The officer saw a car parked in a handicapped spot. When he approached he detected an odor of burnt Marijuana coming from the car. Several occupants of car admitted to smoking Marijuana and one stated that a small amount was left. Everyone in the car was ordered out. They were searched for weapons. A bag of Marijuana containing less than one ounce was found on the floor mat in the rear of the vehicle. The officer then searched the trunk of the car. He found a backpack which he opened. Inside he found a gun. The defendant admitted that the gun was his.

The Supreme Judicial Court held that the Search and Seizure was unlawful. In doing so it cited two other cases also decided today. In one case, Commonwealth v. Daniel, the Court stated that smelling freshly burnt marijuana coupled with Possession of less than one ounce of the drug by itself does not provide probable cause to believe that an amount of marijuana consistent with criminal activity is in the car. Daniel is an expansion of the Court’s decision in Commonwealth v. Cruz holding that the smell of burnt marijuana alone does not give rise to probable cause to search a car. Additionally, the Court ruled today in Commonwealth v. Jackson that “social sharing of marijuana” does not satisfy the element of Distribution of Marijuana.

As a Massachusetts Criminal Defense Lawyer I imagine that these cases will result in the dismissal of many pending Massachusetts Drug Cases. Since G.L. 94C Section 32L was passed many lawyers warned their clients that sharing a joint with a friend might be considered a crime and that being caught engaging in that conduct would, at a minimum result in an arrest. The open and public use of marijuana has become significantly noticeable since the passage of this act. It is not uncommon to smell burnt marijuana or to see people smoking marijuana in Boston during work hours.

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For several weeks a Massachusetts Drug Task Force had been investigating a Heroin Distribution operation in the Bridgewater, Massachusetts area. The investigation suggested to the officers that Samantha Lee Costa was the source of local heroin sales. On April 1, 2013 the police applied for an obtained a Search Warrant for her apartment. The execution of the Search Warrant took place just after 6:30 p.m. that day. Costa and a woman named Nicole Rossier were present at the time of the search. Several other people were in the apartment as well. Nearly four grams of heroin were located along with some pills, Marijuana and a Syringe. Drug Packaging materials and an insignificant amount of cash, (one hundred sixty four dollars) were found in the apartment as well. Costa has been charged with Possession With Intent to Distribute Class A, Heroin and Possession of Class D, Marijuana. The case is being prosecuted in the Brockton District Court.

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Brockton, Massachusetts Drug Defense Law Firm

Possession With Intent to Distribute Drug Lawyer in Massachusetts

As a Massachusetts Criminal Lawyer, based on this article it is clear to me that the charges against Costa are excessive and likely not provable. In order to convict someone for Possession With the Intent to Distribute Drugs in Massachusetts, the district attorney must show that the accused, in this case Costa, intended more than to just use the drugs. The only apparent evidence supporting that is the presence of baggies, packaging materials. Keep in mind that baggies are a household item and absent additional evidence of intended distribution it can be argued that the drugs that were being used by Costa came from those baggies. The syringe in this case was full. This is an indication that someone was about to use the heroin, not sell it.

Here is something else to consider. What is the evidence that Costa rather than someone else intended to use the Heroin? Rossier and several other people were present when the police raided the home. It is highly unlikely that the syringe or other drug ingestion materials will be fingerprinted. How then can the district attorney convince a jury that the drugs were Costa’s and not somebody else’s. They probably cannot make this argument successfully unless Costa made some incriminating statements or someone wants to testify against her. Hopefully she was smart enough not to make any statements to the police and contacted a lawyer right away. Certainly the people at the apartment are not in a position to testify as they have criminal exposure for Knowingly Being Present Where Heroin is Kept. Each of these people should have a lawyer to avoid being prosecuted along with Costa.

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Kathleen Allen, a twenty three year old Middleboro, Massachusetts woman was held on one hundred thousand dollars bail after her arraignment in the Wareham District Court. It is alleged that Allen was high on Heroin and Operating Under the Influence when her pickup truck slammed into a sedan killing the driver of the smaller car, a local college freshman. The most serious charge Allen faces is Motor Vehicle Homicide. At the time of the incident Allen had three open criminal cases.

According to reports, police officers responded to the crash scene where they observed two vehicles overturned. The victim died at the accident scene. Allen was brought to the hospital and treated for some minor injuries. Her passenger was med-flighted to a Boston hospital with serious injuries. Reports state that while driving Allen dropped a cigarette. When she went to pick it up she lost control of the wheel. Her passenger tried to steer the vehicle into the correct lane and as the two struggled for control of the wheel the pickup truck hit the victim’s car. Allen supposedly told the police that not long before the accident she injected herself with Heroin. She also admitted to drinking heavily. The case is currently being prosecuted in the Wareham District Court.

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Wareham, Massachusetts Criminal Defense Law Firm

Lawyers Who Defend Motor Vehicle Homicide Cases in Plymouth County

Motor Vehicle Homicide in Massachusetts is a felony proscribed by Massachusetts General Laws Chapter 90 Section 24G. The law states that anyone operating under the influence of alcohol or drugs who causes death to another can be punished by up to fifteen years in state prison. A conviction for this offense mandates a one year jail sentence. There is also a fifteen year loss of license for anyone convicted of this offense. Interestingly enough, the district attorney could have charged Allen with manslaughter based on the same conduct. A conviction for manslaughter would carry a possible twenty year state prison sentence. Massachusetts courts have stated that the Motor Vehicle Homicide statute was designed to find a middle ground between manslaughter and Operating to Endanger.

As a Massachusetts Criminal Lawyer I can see where Allen’s case might be difficult to defend successfully. There are several hurdles she has to overcome, which in the circumstances of this case will be tough to jump. Allen will have to show that the accident was not her fault. The district attorney will likely have an accident reconstructionist engaged. If they determine Allen was at fault then she will have to overcome the factor of impairment. This involves first challenging the admissibility of her admissions to the police, then trying to exclude as evidence the breathalyzer or blood test. Allen’s passenger’s recollection of the events might help with her defense depending on the testimony that person can provide and his or her credibility. Allen has a tough fight ahead of her.

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According to a local news report, Kevin Carmichael, a karate instructor at a Braintree karate studio has been charged with Indecent Assault and Battery. Authorities allege that the acts occurred recently. Apparently Carmichael was asked to meet with Braintree Police detective two days ago. He agreed. Afterwards he was charged with Indecent Assault and Battery. Bail was set in the amount of twenty five thousand dollars. The case is currently pending in the Quincy District Court. No details of the alleged assault have been reported nor are there allegations that Carmichael did this to other victims.

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Braintree, Massachusetts Sex Crimes Defense Law Firm

Lawyer Who Defend Indecent Assault and Battery Cases in Massachusetts

In order for the district attorney to prove someone guilty of Indecent Assault and Battery in Massachusetts he must six elements beyond a reasonable doubt. The first element involves the victim’s age. Massachusetts charges this crime in accordance with the victim’s age. The threshold age is fourteen so depending on the crime alleged; i.e. Indecent Assault and Battery on a Person Under the Age of 14 or Indecent Assault and Battery on a Person Over the age of 14 this element must be established. The second element is that the accused committed an Assault and Battery. The third element involves the indecent aspect of the case. The prosecutor must prove that the defendant used force to commit the indecent touching which involves the following: if victim is male, the genital area, buttocks or pubic area. If the victim is female, the breasts, thighs, pubic area, genitals or buttocks. The term indecent is evaluated in the context of the case. It is fact specific. Fourth, the prosecutor must show intent on the part of the defendant. Fifth, the touching must be offensive or harmful and last, there can be no justification or excuse for the act.

For a Massachusetts Criminal Lawyer the third element is fertile ground for absolving a client. Many of the cases involving these charges focus their defense on the actual nature of the act, not the fact that a touching occurred. People are touched in many ways every day. Some people are more affectionate than others. They are comfortable making physical contact with others or “touching” them. While the alleged victim might perceive the touching to be offensive the defendant may not have intended it that way. This is one factor that helps determine whether or not to go to trial on a case like this. In this case, much of the defense will hinge on what Carmichael told the police on Saturday. Hopefully he said nothing, or very little. As I have written and told my clients on countless occasions, keep your mouth shut. You cannot talk your way out of being charged criminally. You can only make matters worse for yourself.

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A lengthy investigation into Revere Blood gang activities led to the arrest of fifteen men from various parts of Massachusetts including Revere, Lynn and New Bedford. It is alleged that various gang members were involved in gun and drug sales in Suffolk County and Essex County. Nine of the defendants have been charged with Federal Drug Crimes. The remaining six have been charged in state courts in Boston and Salem, Massachusetts. The charges for each vary and include Trafficking Cocaine, Trafficking Heroin, Firearms Charges and Counterfeit Drugs. Many of the accused have prior drug convictions. Conspiracy is another charge that many of the defendants face.

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Massachusetts Federal Drug Crimes Defense Law Firm

Lawyers Who Defend Drug Cases in Revere and Lynn, Massachusetts

While the article is not clear as to what charges each defendant faces I imagine that the charges in Federal Court are more severe than those filed in state court. The combination of drugs and guns as the basis for a criminal charge in Federal Court can be devastating. For example, 18 U.S.C. Section 924(c) mandates a consecutive sentence if a firearm is used in connection with a drug trafficking case. This law requires someone convicted of the offenses to first serve jail time on the drug case and then to serve time on the gun charge. The minimum mandatory sentence on such a case is five years from and after the drug charge and up to thirty years. The sentence increases in accordance with the type of firearm that was possessed. Possessing the gun as opposed to brandishing or actually shooting the gun also effect the length of sentence. This law is much more severe than Massachusetts state laws prohibiting the same conduct. As a Massachusetts Criminal Lawyer I imagine that the cases against the people charged in federal court carry those sentence enhancements.

It is difficult to assess possible defenses for the accused in these cases due to the lack of detail in the article. Factors that trigger the defenses include the defendant’s actual role in the criminal enterprise; i.e. was this someone who was caught selling drugs and guns or simply someone who was at the homes that were searched when the warrants were executed. The quantity of drugs found on an individual often guides defenses. For instance, someone with a history of drug possession convictions or with a documented drug abuse history might be able to claim possession rather than an intent to sell drugs if the quantity in his or her possession is consistent with their drug habits. The presence of Drug Distribution Paraphernalia factors into the analysis of the defendant’s intent as does the presence of absence of drug ingestion devices.

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Today, in E.C.O. v. Compton, the Massachusetts Supreme Judicial Court published a decision addressing the Massachusetts Restraining Order Law as well as the age of consent for sexual activity in the Commonwealth. The facts of the case are as follows:

About a year and a half ago a sixteen year old girl from Massachusetts was traveling overseas with some family members. She met the defendant who was twenty four at the time. The girl lied about her age. After returning to Massachusetts the girl and the defendant maintained contact through email, texts and social media. The communications revealed a level of intimacy between the parties that contained sexual undertones. The defendant and the girl planned to meet in Massachusetts in October of 2011. There were discussions about sex and an express intention to spend time together in a hotel room. In preparation of that meeting the defendant rented a hotel room. Learning of this plan the girl’s father applied for a Restraining Order against the defendant. When the defendant arrived in Massachusetts he was served. The daughter never appeared in court. Her father did. He gave the judge copies of the electronic communications. The father conceded that the defendant never harmed or threatened the girl nor did he in any way coerce her to having sexual relations. The judge sitting in the Salem District Court extended the order for one year. The defendant appealed.

The Massachusetts Supreme Judicial Court reversed the order. In doing so it restated the standard for “abuse”, a necessary element for the issuance of a Restraining Order. In Massachusetts, the abuse necessary for a Restraining Order is defined as attempting to cause physical harm, causing physical harm, placing someone in fear of imminent serious physical harm or causing someone to engage in sexual relations. In this case the father agreed that the defendant did not harm his daughter nor did he attempt to do so. Furthermore, at not time did he force the girl to engage in involuntary sexual relations. Consequently the order should not have been extended. The Court reiterated that the age one can consent to having sex in Massachusetts is sixteen, the girl’s age at all relevant times.

It is clear that the plaintiff in this case, the girl’s father applied for the Restraining Order in an effort to keep his daughter from seeing the defendant. This action constitutes an improper use of the Massachusetts Restraining Order Statute. The statute was designed to prevent abuse, not to put a halt to relationships that parents find inappropriate. As a Massachusetts Criminal Lawyer it surprises me that this order issued in the first place. I imagine that the affidavit supporting the Restraining Order application referenced the intention of the defendant to supply the girl with alcohol, thus prompting the judge to issue the order to protect potential abuse.

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About two months ago a police officers were looking for a car reported stolen. Shortly thereafter officers located a vehicle fitting the description of the Stolen Car. The police followed the car and a chase ensued. The stolen vehicle supposedly reached speeds of one hundred ten miles per hour. The chase was called off but the vehicle continued at a high rate of speed and ultimately crashed. The driver of the car, a woman somehow managed to escape the wreckage and fled to a nearby building. There she tried to conceal her identity by dressing up as a janitor. The woman was apprehended. While being transported she admitted to driving the car but claimed that over the previous four day period she was involuntarily injected with Heroin and given Methamphetamine. She was then told to get into the stolen car, to drive and not to stop. The woman was charged with Larceny of a Motor Vehicle, Operating to Endanger and other Motor Vehicle Offenses. Ironically, she was not charged with any Drug Crimes; i.e. Possession of Heroin or Possession of Methamphetamine.

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Massachusetts Motor Vehicle Crimes Defense Law Firm

Larceny of a Motor Vehicle Defense Lawyer, Massachusetts
Involuntary Intoxication is a defense to criminal accusations in Massachusetts. There is a Massachusetts on point that supports the woman’s contention in this case; Commonwealth v. Darch. That case states that if someone “is compelled to ingest intoxicants unwillingly” he or she can defend the allegations on the theory of involuntary intoxication. In Massachusetts, to overcome this defense the district attorney must prove beyond a reasonable doubt that the defendant’s intoxication was voluntary. This defense can be successful if the defendant gets a blood test or someone can corroborate the position that someone drug the accused. As a practical matter, for this defense to work the defendant is going to need a lot more than a statement such as the one made by the defendant in this case. Here is what I see as a problem with the defense in this case. The chase starts once the police start following the car thereby suggesting that the defendant knew the car to be stolen. After the car crashed the defendant took deliberate actions to avoid detection. She fled to a nearby building. She used a disguise to avert detection. Then, she gave a detailed description of how she was drugged; something that a drugged out person would be unable to do. Finally, there was no suggestion other than her words that drugs were involved in this activity.

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