Massachusetts criminal defense Attorney Blog
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According to a report in the Somerville, Massachusetts Patch, three Massachusetts residents were arrested last week on Drug Charges. Somerville Police were conducting a drug investigation during which they stopped a car they believed contained some Heroin. The stop occurred in the middle of the afternoon. Once the car was stopped, one of the occupants, Jesse Peloquin told the officers that the drugs were in her bra. She, along with Ryan Kanode and Marie Stefano were all charged with various Massachusetts Drug Crimes. Among the crimes were Conspiracy to Violate the Controlled Substances Act, Possession of Heroin, a Class A Drug, Distribution of Heroin and Knowingly Being Present Where Heroin is Kept. The cases are pending in the Somerville District Court.

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Somerville, Massachusetts Drug Defense Law Firm

Drug Distribution Defense Attorney in Massachusetts

Massachusetts General Laws Chapter 94C Section 35 makes the following acts a crime: 1) knowingly Being Present where Heroin is Kept or Knowingly Being in the Company of Someone who is in Possession of Heroin. This crime is a misdemeanor and it carries a maximum one year jail sentence. While this crime is often prosecuted in Massachusetts district attorneys often agree to dismiss the charge upon payment of court costs if the accused has no criminal record, and in particular no prior drug offenses.

Distribution of Heroin on the other hand is a felony in Massachusetts. The law prohibiting the behavior is M.G.L. c. 94C Section 32. There is a potential ten year prison sentence associated with this crime. However, these cases are usually prosecuted in the district court where a judge can sentence to no more than two and one half years. If the accused has a conviction for a similar offense then he or she can be charged under subparagraph (b) of this law which has a mandatory three and one half year state prison sentence for anyone convicted. Often however, an Experienced Massachusetts Criminal Lawyer can get the district attorney to agree to reduce the charges to something not requiring jail time.

So what are the possible defenses for the accused in this case? That depends on what the police claim to have seen. First, there may be a viable Motion to Suppress if the police conducted the stop, Search and Seizure in violation of the defendants’ constitutional rights. What did they in fact see that in their mind permitted them to search the car? After the stop, what evidence exists to show that any of the occupants went to Somerville to distribute drugs? The article seems to indicate that the three defendants drove to Somerville to buy drugs, not to sell them. What evidence do the police have to prove that Kanode and Stefano knew that Peloquin had Heroin in her bra? This article suggests that there are countless defenses available to these three that might result a positive resolution to this case.

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Richard Meltz of Massachusetts and Christopher Asch were arrested and charged with Conspiracy to kill and Rape women. Meltz is the chief of the Veterans Affairs Police. Authorities allege that the two men began their plan about a year ago. According to law enforcement, the two did more than simply plan their attack. They acquired materials to anesthetize women and accessed a Taser to subdue their targets. Apparently the defendants made electronic solicitations over the internet. One of the accused discussed Kidnapping and cannibalizing victims. He also elaborated on a plan to evade DNA detection.

The alleged details of the crime are quite graphic. During the period of the investigation, these two defendants and another engaged in electronic communications planning the kidnapping, torture and murder of women. This third individual used the internet in an attempt to solicit people to kill, kidnap and rape his wife and others. This third individual ultimately led law enforcement to Meltz and Asch. Following up on this information, in an undercover capacity the feds met with Asch. On one occasion Asch produced a bag full of devices intended for use in torturing and drugging his ultimate targets. These meetings along with telephone intercepts detailed plans to kill a particular target who was in fact another undercover agent. The defendant’s plan further included methods of disposing with the victim’s body and ways to avoid detection.

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Massachusetts Federal Sex Crimes Defense Law Firm

Kidnapping Defense Attorney in the Boston Area

The crime of Kidnapping is typically prosecuted by the state in which the crime is committed. Occasionally this crime is prosecuted in the Federal Courts primarily in those instances where the actual offense is the Conspiracy to Kidnap. One of the statutes proscribing this activity, 18 U.S.C. Section 956 authorizes a possible life sentence after a conviction. The Massachusetts Kidnapping law provides a maximum ten year prison sentence for anyone convicted of that offense. There are aggravated forms of the crime that permit a tougher sentence. For example, if a Firearm is used during the act the accused faces a ten year mandatory sentence. If serious bodily injury is inflicted during the commission of the crime the accused faces a twenty five year mandatory minimum sentence. The Massachusetts District Courts also have jurisdiction over kidnapping charges. If the case is prosecuted in that court there is a maximum two year house of correction sentence that can be imposed.

So how are Meltz and Asch going to defend against these allegations? A lot depends on the defendant’s ability to recall the conversations they had with undercover law enforcement that were not recorded. This, along with the motive of the co-conspirator who initially led the feds to Meltz and Asch will be critical to the defense.

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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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