Articles Posted in Search and Seizure

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methamphetamine.jpgThis past weekend police in Framingham, Massachusetts raided the home of Douglas Lester (a pseudonym), a twenty one year old man living on Day Hill Road. The Metrowest Daily News reports that early Sunday night Lester was seen selling marijuana to a female not far from his home. Police stopped the woman. She surrendered the drugs and the police applied for and obtained a Search Warrant for Lester’s home. Inside they found over fourteen grams of Meth (Crystal Methamphetamine) in various locations in the home. They also found several bags of marijuana. In excess of thirteen thousand dollars cash was taken during the raid. Scales, packaging materials and assorted Drug Paraphernalia were seen in the premises during the search process. Lester has been charged with Possession With the Intent to Distribute Marijuana and Trafficking Methamphetamine. Bail was set in the amount of twenty five thousand dollars. Lester is facing a Probation Violation as well. The case in currently in the Framingham District Court. The district attorney will likely indict this case and prosecute Lester in the Middlesex County Superior Court in Woburn.

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Framingham Drug Trafficking Defense Lawyer

Any Massachusetts Criminal Lawyer will tell you that based on the information in this article Lester’s chances of success hinge on the constitutionality of the Search Warrant. The first thing to analyze is the credibility of the police officer’s observations relative to the sale between Lester and the unidentified woman. What did they see? From what vantage point or location did they see the purported transaction? Was their view clear? How did they in fact determine that this was a drug deal? The next thing to look at is the credibility of the woman they stopped. What was in her possession? If there were drugs, what type? Marijuana? Crystal Meth? How much drugs was she possessing? What information did she give the police? What was her motive in providing this information? Does she have a criminal record? Was she using drugs at that time? Was she arrested and if so, with what was she charged? The next part of the analysis contemplates whether the information this woman provided coupled with the police observations gives rise to the issuance of the Massachusetts Search Warrant. This woman’s veracity and her basis of knowledge must be properly assessed if the information she provided is considered in the Search Warrant Application process.

Trying to Suppress Searches in Massachusetts is something our office attempts regularly for Massachusetts Drug Cases. Suppression often results in the dismissal of a criminal case. Without the drugs the district attorney is usually unable to proceed with its criminal charges. Hiring a Massachusetts Drug Crimes Lawyer who knows the law and is able to convince judges that a Search and Seizure was unlawful is critical to anyone charged with a Drug Crime in Massachusetts. Our offices have won countless drugs cases this way in counties throughout the state.

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A Salem, Massachusetts police officer became suspicious the other day when he saw a car with dark tinted windows. He then followed the car. He observed the car failing to stop for people in a crosswalk. The officer pulled the car over and quickly learned that the driver, Julio Cruz of Salem, Massachusetts was Operating With a Suspended License. Cruz, who was known to the officer claimed that he was out delivering pizza. No pizzas were in the car. Cruz was then arrested. His passenger, Enrique Gray-Santana, also of Salem, Massachusetts was also arrested for carrying a knife with a blade longer than permissible by town ordinance. The car was towed. It was also searched. Inside of the vehicle officers found enough cocaine to justify a trafficking charge. Both men now face charges of Trafficking Cocaine in the Salem District Court. If the weight of the cocaine satisfies trafficking threshholds then the case will be prosecuted in the Essex County Superior Court in Salem. Cruz has a pending Cocaine Distribution case pending in the same county.

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Salem, Massachusetts Cocaine Trafficking Defense Lawyer

Cocaine Distribution Law Firm in Massachusetts

Depending on the information contained in the police reports the district attorney’s case here might be susceptible to a Motion to Suppress. Forget about the stop for a minute. Forget about the “Motor Vehicle Violation”. Even if there is justification for the stop the officer’s conduct might have exceeded what is permissible under the United States Constitution and the Massachusetts Declaration of Rights. The law in Massachusetts does permit what are called “inventory searches” in some situations. The police may search someone arrested at the place of detention to secure the person’s property. An inventory policy must be followed to justify the search and if done properly the items seized can be used as evidence against that person. Inventory Searches of Motor Vehicles however are subject to a different procedure. Impounding motor vehicles is generally found to be justifiable if the district attorney can show public safety concerns or a risk of vandalism or theft to the vehicle if abandoned at the scene of the arrest. If an unarrested passenger can drive the car the impoundment will be considered illegal. Subsequent searches of the impounded vehicle might however be subject to a constitutional challenge. For example, Massachusetts Courts have held that the search of a towed car was investigatory and not an inventory search where the police used a drug sniffing dog to find drugs. Investigatory searches require Search Warrants. Inventory searches do not. Police inventory polices must be in writing and followed for an inventory search to survive a Motion to Suppress. Inventory searches have three purposes in Massachusetts; to protect the property in the car, to protect the police against claims of theft and to protect the public from danger. It is the district attorney’s burden to establish that he search was a lawful inventory search.

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ID-Theft5.jpgBack in early February Hingham, Massachusetts Police responded to a call for a dispute between a landlord and her tenant. Officers were advised that the woman had several aliases and was using multiple identities. An ensuing investigation showed that the woman, Wanpen Florentine had multiple birth dates, a couple of Massachusetts drivers’ licenses and perhaps more than seven names. Florentine was registered to vote under two difference names. Last week Florentine was arrested and charged with various Fraud and Identity Theft crimes, five of which are felonies. This past Monday a Search Warrant was obtained and Florentin’s home in Hingham was searched. The defendant is sixty two years old. She is being held on one hundred twenty five thousand dollars bail.

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Massachusetts Identity Fraud Crimes Defense Lawyer

The Massachusetts Identity Theft statute is G.L. c. 266 §37E which states that anyone who poses as someone else without that person’s permission and uses that identifying information to obtain goods, money or other items of value, or uses that identifying information to harass someone else is guilty of a misdemeanor. The punishment for a conviction for this offense is no more than two and one half years in the house and the possibility of a fine of up to five thousand dollars. Interestingly enough, it does not appear that the defendant in this case has been charged with this offense. Instead, she has been charged with Fraud related Motor Vehicle Crimes that are felonies, meaning that there is a possibility that the defendant will be indicted and could face a state prison sentence. Obviously the district attorney believes that her actions were serious enough to warrant prosecuting pursuant to other statutes.

Identity Theft is becoming rampant in this country. It is estimated that over nine million people are the victims of some sort of identity theft crime every year. The danger to fraud victims is real and may not be realized for years. Victims of this type of criminal activity may be denied job opportunities, loans and are sometimes arrested for allegations that they committed crimes that they in fact never committed. We have represented many people who have been charged with Crimes in Massachusetts who never actually committed these crimes. The people who stole their identity were the actual perpetrators of the crime. You can imagine the surprise and shock to the accused in these cases when they are arrested for drug offense, theft crimes or crimes of violence that they never even heard about.

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Roberto Saldana of Boston and Rose Marquez-Cartegena of Lawrence, Massachusetts were arrested late last week by members of the Essex County Drug Task Force. The Lawrence Eagle Tribune reports that Saldana was caught Distributing Heroin on six occasions to an undercover officer starting in January of 2012 and ending with his arrest on February 28, 2012. Each time Saldana was within one thousand feet of Central Catholic High School. During Saldana’s arrest the police found a set of keys to a local apartment in Saldana’s possession. Officers then took Saldana back to the home and has him open the apartment door. There officers found Marquez-Cartegena who was also arrested. A Search Warrant was obtained following her arrest. In the apartment authorities located and seized over seventeen thousand dollars cash, Drug Paraphernalia including cutting agents, packaging materials and a scale. Marquez-Cartegena has been charged with Possession With the Intent to Distribute Class A Heroin in a School Zone. The cases are pending in the Lawrence District Court. It is probable that the district attorney will not indict these cases.

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Lawrence Massachusetts Heroin Distribution Lawyer

Massachusetts Drug Violation in a School Zone Defense Attorney

The Massachusetts School Zone Drug Law was established in 1989 under G.L. c. 94C §32J. The law makes it a felony for anyone to Distribute, Possess With the Intent to Distribute or Traffic a controlled substance within one thousand feet of a school zone or within one hundred feet of a public playground or park. There is a minimum mandatory two year sentence for a conviction of this crime. Schools for the purpose of this law includes both public and private schools, pre-schools, secondary schools and vocational schools. It makes no difference if the school is in session or not, day night or vacation. In 2010 the Massachusetts legislature amended the law so that in many instances someone convicted can be paroled after serving one year.

As most Massachusetts Criminal Defense Lawyers will tell you School Zone Cases are often “broken down” by the district attorney’s office. This means that for many accused, particularly first time drug offenders with no criminal record, the district attorney’s office will agree to dismiss the School Zone Charge in exchange for a plea to a either a Possession With Intent charge or a simple Possession charge. Oftentimes an experienced Massachusetts Criminal Lawyer will be able to negotiate a continuance without a finding to the remaining charges thereby keeping the accused’s criminal record clean.

Here, while Saldana might have some problems it seems like Marquez-Cartegena’s case might have some good defenses. The police had no right to force Saldana to open the apartment door prior to obtaining a search warrant. If anything learned as a result of that unlawful entry gave a basis for the issuance of the search warrant the warrant might be declared invalid and the search struck down as unconstitutional. Also, Marquez-Cartegena’s mere presence at the apartment does not by itself provide sufficient evidence by which a jury might find her with the intent to distribute drugs. Massachusetts case law has been clear on this point. Presence at the scene of a crime with nothing more is insufficient to sustain a conviction for a crime.

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A Massachusetts drug and major crime task force had been involved in a one month long investigation of Heroin Sales in the greater Brockton and Taunton areas. The investigation resulted in the arrest of Leah Nelson, Abel Parker and Bryan Donachie, all Massachusetts residents residing in Plymouth County. An article in the Brockton Enterprise states that police watched Donachie travel from Wareham to East Bridgewater in Nelson’s car. Implicit in the article is that Donachie was using the car and making the trips as part of a Heroin Distribution effort. The officers obtained a Search Warrant for the car. This past weekend detectives saw the three defendants in the car. They approached and found Nelson in the driver’s seat, Donachie in the front and Parker in the back. As they approached the car the officers saw Parker packaging heroin. All occupants were searched. The police found about ten grams on Donachie. Each defendant was charged with Conspiracy, a School Zone Violation and Possession with the Intent to Distribute Heroin, a Class A substance. Nelson’s car was searched as well. There, officers located Drug Distribution Paraphernalia, about one thousand dollars worth of heroin and some heroin ingestion materials. Authorities claim that Donachie was purchasing about ten grams of heroin per day, breaking it down and reselling for a substantial profit. The cases are being prosecuted in the Brockton District Court.

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Massachusetts Drug Crimes Attorney

The School Zone Violation is the biggest problem the defendants in this case, particularly since this case is being prosecuted in Plymouth County. The district attorney in that county does not like to break down school zone cases. The result is that the case will likely be litigated either through a Motion to Suppress, Motion to Dismiss or trial. The prohibition against selling drugs in school zones in Massachusetts is governed by Massachusetts General Laws Chapter 94C Section 32J. The law states that anyone who sells drugs or possesses drugs with the intent to distribute the drugs within one thousand feet of a school zone or within one hundred feet of a playground shall be punished by a minimum mandatory two year jail sentence. The defendant’s intent or knowledge relative to the school zone itself is of no relevance.

From the perspective of a Massachusetts Drug Crimes Lawyer, it appears that Donachie and perhaps Nelson and Parker have drug problems. The presence of the needles and syringes supports that at least one, if not all of the defendants were using Heroin. Using narcotics is consistent with Possession, not the intent to distribute. The district attorney will argue that the act of packaging suggests otherwise. The evidence as taken from this article suggests that a combination of the two are at work here. At times this factor can motivate prosecutors to consider a reduction of the charges to something less onerous and perhaps something that will not include jail time. Much of this depends on the record of the accused, the extent of his or her drug problem and the quantity of drugs involved. In cases like this one, the defendants need a good lawyer.

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This past weekend a thirty seven year old homeless Lawrence, Massachusetts man told police that he had been shot in the elbow. An investigation was quickly launched leading the police to an address on Broadway. Officers arrived, were permitted to enter the address and were presented with BB guns. They claim that at that time they were able to see drugs, heroin and marijuana in plain view on a table. The person present in the home was a woman (Torres) who quickly accused her husband, Tommy Galarza as the person to whom the drugs belonged. Torres and Galarza were both arrested and charged with various Massachusetts Drug Crimes. Officers then applied for and obtained a Search Warrant. During the execution of the Search Warrant the police located thirty five grams of cocaine, twenty five grams of heroin, oxycontin pills, assorted pills, cutting agents, a scale and cash. Both Torres and Galarza have been charged with Trafficking Cocaine and Trafficking Heroin as well as Possession of Class B With the Intent to Distribute. It is likely that a Conspiracy charge will be filed as well. Through these efforts Lawrence Police were also able to meet up with a man by the name of Brian Smith, a neighbor. Smith was charged with Possession with Intent to Distribute Cocaine and Possession with Intent to Distribute Heroin. These cases will likely be prosecuted in the Essex County Superior Court in Salem, Massachusetts.

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Essex County Drug Crimes Lawyer, Salem, Lawrence

The case against Galarza seems to be the strongest for the defense. The police went to the home. He was not there. They see drugs in plain view in a common area in the home. There is no admission or confession by Galarza. His wife’s statement cannot be used in court against Galarza and in my experience it is extremely for one spouse to testify against the other. In Massachusetts, when someone is present in a home where drugs are dealt the law makes clear that this presence, in and of itself, is insufficient to sustain a prosecution for drug dealing activities. There must be proof that the defendant had control, knowledge and power along with the ability and the intention to exercise dominion and control over the drugs. This is not present here. We have no idea when the drugs entered the home and whether or not Galarza was even present in the home when the drugs were present. His wife’s self-serving, legally inadmissible statements cannot be used by the district attorney in a prosecution against Galarza. Massachusetts law states that presence and awareness standing alone do not constitute evidence that will warrant a jury to infer the intention and ability to exercise and control over the drugs. That being the case no one can reasonably argue that the facts in this case are sufficient as to Galarza to permit this prosecution to stand.

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Around 4:30 in the morning this past Sunday Massachusetts State Police responded to a call for a Motor Vehicle accident in the northbound lane of Route 24. The arrived to learn that Jason Ribeiro of Brockton, Massachusetts was driving a car the rear ended another vehicle. The victim called 911. The police investigation revealed the presence of a large capacity loaded firearm in Ribeiro’s car. Both of Ribeiro’s passengers, a juvenile and John Pires also from Brockton were charged with Possession of a Firearm. The case is currently pending in the Brockton District Court.

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Brockton Gun Defense Lawyer

It is extremely uncommon for multiple parties to get convicted for possessing the same firearm, particularly where the weapon is found in a motor vehicle. Unless one of the occupants is actually holding the gun or the weapon is tested for fingerprints there is simply no way to attribute Possession of the Firearm to one of the parties as opposed to the others. Now Massachusetts and most other jurisdictions recognize that someone can “constructively possess” an item. The law on constructive possession states that even without actual physical possession of an item a person can be legally responsible for possessing that object via constructive possession. To be convicted for possessing an item under that theory the prosecution must prove beyond a reasonable doubt that the accused has knowledge of the object, the ability to exercise control over that object and the intent to exercise control over that item. As to constructively possessing a gun in Massachusetts one of the leading cases holds that you can infer constructive possession of the gun “from defendant’s proximity to gun in motor vehicle, where evidence that, when stopped by police, defendant ‘first leaned forward and to the right before complying with the order to raise his hands[,] . . . [and] [a] loaded handgun was found protruding from under the passenger seat in the vehicle he was operating'”. Conversely, one cannot infer constructive Possession of a Gun in Massachusetts where the gun is in proximity to a defendant’s personal papers. Proximity and knowledge do not show possession.

So how here does the district attorney sustain a prosecution against all three where there exists only one gun? They probably cannot. This is where the assistance of an Experienced Massachusetts Firearm Defense Lawyer becomes necessary. It is possible in some circumstances to succeed on a motion to dismiss in cases like this, at least as to two of the defendants. It might be possible for that motion to apply to all three defendants. To better assess this case it is necessary to know where the weapon was found in the car. What if anything did the defendants say. Is there any physical evidence on the weapon that links one or more of the suspects to the gun; i.e. DNA evidence or fingerprint evidence. What did the person in the other car see relative to the weapon. Where was the weapon found in the car? Who was the owner of the car?

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jail.jpgA twenty four year old Medford, Masschusetts man, Brian Falasca was attempting to visit an inmate at M.C.I. Framingham this past weekend. During a search of his person prison guards found a suboxone pill in his shirt pocket. Falasca was interviewed. He denied intending to give the pills to the inmate. He claimed to have forgotten that he had the pills in his pocket. Subsequently, Falasca’s car was searched. In it authorities found forty five additional suboxone pills, some cash and Marijuana. Falasca has been charged with Possession With the Intent to Distribute Suboxone, Conspiracy to Violate the Controlled Substance Laws and Delivering Drugs to a Prisoner. The case is being prosecuted in the Framingham District Court.

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http://www.metrowestdailynews.com/news/police_and_fire/x1712042048/Man-charged-with-bringing-drugs-to-Framingham-inmate
Framingham Massachusetts Drug Crimes Defense Law Firm
Delivering Drugs to a Prisoner is a felony punishable by up to five years in state prison in Massachusetts. The crime is set out in Massachusetts General Laws Chapter 268 Section 28 which states that “[w]hoever gives or delivers to a prisoner in any correctional institution, or in any jail or house of correction, any drug or article whatever, or has in his possession within the precincts of any prison herein named with intent to give or deliver to any prisoner any such drug or article without the permission of the superintendent or keeper, shall be punished by imprisonment in the state prison for not more than five years, or in a jail or house of correction for not more than two years, or by a fine of not more than one thousand dollars.” There is very little case law on this crime. The law is cited in two unpublished criminal cases and one non-criminal case. If the act of distribution or attempted distribution is witnessed by prison guards or others the case is difficult to defend. However, in this case a defense might be more successful.

Falasca’s intent to deliver the drugs to an inmate has to be proven beyond a reasonable doubt by the prosecution. That might be a difficult task in this case. Suboxone is a drug used to treat opiate dependence. It is a medication that necessitates a prescription. It also has a street value and can be crushed and snorted to provide effect. Many people find it addicting in and of itself. Even if Falasca cannot produce a prescription the issue of his intentions is still material at trial. For instance, if he can show a heroin addiction a jury might well believe that he was trying to fight his urges through this medication. Or, he might have a dependency on this drug. Inadvertently possessing the substance does not indicate an intention to distribute or deliver the substance so proving this aspect of his case might be difficult.

As to the other counts, it is clear that challenging the Search and Seizure of Falasca’s car and its contents will be an issue in this case. A successful motion to suppress will result in the exclusion of the forty five bags of suboxone, the marijuana and the cash as evidence at a trial against this defendant.

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The Brockton Enterprise reports that last Friday members of a local drug task force arrested twenty to year old Katelyn Boutiette after what has been called a “months-long” investigation. Authorities believed that Boutiette might have been selling drugs in the greater Bridgewater area for the past year. The investigation resulted in the police obtaining and executing a Search Warrant at Boutiette’s home. During the search police located Drug Distribution Paraphernalia as well as eight grams of class “A”, enough to charge her with Possession With the Intent to Distribute Heroin. Boutiette’s car was seized as evidence as well. The case is pending in the Brockton District Court.

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Massachusetts Possession With Intent to Distribute Heroin Defense Lawyer

As a Massachusetts Criminal Defense Attorney there are many additional facts I would like to know about this case. What did the year or “months-long” investigation show? Was Boutiette seen distributing drugs? What are her drug habits? Is she a heroin user? Does she live alone or with someone else? Where were the drugs found during the search? Was anybody else present during the search, i.e. a friend or roommate? Was Boutiette present during the search? What information did the police have to get the Search Warrant in the first place? Was the warrant properly issued or is there a reasonable constitutional challenge to the search based on an absence of probable cause to search? The answers to these questions will likely guide the defense of this case.

So what happens to Boutiette? Suppression of the evidence seized during the search might occur if the search is declared unlawful. Or, if Boutiette does not have a criminal record then do not be surprised if the case gets continued without a finding. If Boutiette is able to show that she has a heroin habit then an acquittal of the charges is possible and a conviction for simple Possession of Heroin might be all that she faces. Certainly 8 grams of heroin can be consistent with personal use. The district attorney’s office will disagree with this. They will call a witness (expert), usually an experienced drug detective to say that the quantity, possibly coupled with other factors is consistent with an intent to distribute. There is a flaw in that characterization however. Unless the detective knows the accused and his or her habits any testimony on this issue can be viewed as speculative. Furthermore, the defense attorney can ask the detective how many times he has testified that a particular quantity (eight grams) is consistent with something other than an intent to distribute. I will bet that the answer is never. That, in and of itself speaks to the integrity of that testimony. Make no mistake about it. Heroin habits can easily exceed the eight gram per day threshold. The possession of eight grams can be the product of a lesser habit as well. Using some of the product over a short period of time is not unusual and a reasonable explanation for the possession of this amount of the drug.

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According to an article in the Melrose Patch, eleven people were arrested and charged with various Massachusetts Drug Crimes including Trafficking Cocaine Over 200 Grams. Ten of the individuals are from Massachusetts. The investigation began in March. Official were looking into activities of a Boston North End man who was alleged to have run the drug network. He allegedly dealt out of an accomplice’s apartment in Boston and Revere. In June Search Warrants were obtained resulting in the seizure of over five hundred grams of cocaine and seventy five thousand dollars cash. The article and the Massachusetts Attorney General’s Office press release identify the following defendants: Gerald Esposito of Boston, Steven Tracia of Revere, Kettia Piris of Revere, Anthony Giannetti of Revere, Adam Saggese of Melrose, Marino Velasquez of Revere, Anthony Vigorito of Boston, Ferdinando Daniele of Revere, Anthony Ascenzo of Boston, Salvatore Lazzari of Winthrop and Paul Mattarese of Maine. Charges range and vary from defendant to defendant and include Conspiracy to Violate the Controlled Substances Laws, Trafficking Over 100 Grams of Cocaine, Conspiracy to Distribute Marijuana, Possession of Cocaine, Trafficking Over 200 Grams of Cocaine, Conspiracy to Distribute Oxycodone and more. The cases are being prosecuted in the Suffolk Superior Court.

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Suffolk County Massachusetts Drug Crimes Defense Lawyer

In cases like this rarely do all eleven defendants go to trial. Many of the defendants are charged with crimes that do not contemplate mandatory minimum sentences. Depending on their records they may be able to resolve the case with probation or perhaps a continuance without a finding. All of this depends of course on the extent of their involvement in the operation. The defendants facing Drug Trafficking Charges are in a more difficult predicament. They will either have to get the items seized suppressed, plea bargain their cases down to something less than the crime with which they are charged or go to trial. In cases like this there are almost always varying levels of culpability from defendant to defendant. Each defendant’s defense will be unique and there is always the risk of finger pointing. Sometimes one of the defendants, usually one who possesses substantial information about the operation and a lesser amount of culpability with cooperate with the prosecution against the others. I expect you will see lots of evidentiary motions filed in this case. I also expect that one by one these cases will be resolved leaving one or two left to go to trial. These cases also become a managerial nightmare for judges and court staffs. It is nearly impossible to get eleven criminal defense lawyers together for hearings, motions, status conferences and related court appearances.

Sometimes in larger cases you see a lawyer representing more than one defendant. Rarely is this a good idea. At a minimum I believe it is necessary to consult with your own lawyer. Oftentimes conflicts of interest arise as cases progress making the representation of multiple parties controversial. These conflicts may not be apparent at the time of arraignment or when the initial discovery materials are produced. However, once they become evident you can be at risk if you and someone with a competing defense had the same criminal attorney.

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