Posted tagged ‘Massachusetts Criminal Law’

Child Pornography Laws

November 15, 2013

Child Pornography Laws

           Sweeney and Associates has handled high profile child pornography cases which have received not only national but international media coverage in the cases of Robert Diduca and Geoffrey Portway. We have also handled numerous cases in State and District Courts in this area.  When you are faced with charges involving child pornography the laws are harsh and it is extremely important that you hire an experienced attorney familiar with both Massachusetts Child Pornography Law and Federal Child Pornography Law. At Sweeney and Associates we have handled Child Pornography and Sexual Assault cases both in state courts and federal courts and are very knowledgeable in this area.

Depending on the charges, Possession of Child Pornography, Production of Child pornography or Distribution of Child Pornography, as well as the type and amount of material you possess, you may be charged in a District or Superior Court in Massachusetts or your case could be taken over and brought directly into Federal Court. Some cases may start out in District Court but then the Federal Government will take over the case and charges will be brought in Federal Court due to the type of images you possess, the amount, whether you have been distributing these images by trading online or engaging in Peer to Peer Networks. Do to the level of investigatory resources the Federal government has allocated to investigate these crimes your case may well begin and remain in Federal Court. Peer to peer networks and chat rooms are self monitoring and reporting potential violations to the police and the police and federal agencies have agents who also monitor these sites and track IP addresses right back to your computer.  They then come with a search warrant and seek to question you and most clients end up hurting their case fatally by giving a statement to the police during these searches instead of invoking their 5th Amendment privilege to remain silent and not answer any questions.  Because of this, it is important to hire an attorney experienced with handling these types of charges in any court.

With any case involving child pornography, our primary goal is always to fight the charges against you and force the government to prove not only that it was your computer but that it was actually you using the computer to download or distribute images or videos. Note that in one case that we were involved with the police raided the wrong home, arrested and charged the occupant with Child Pornography charges and it took months before he was cleared when it was proven that a neighbor was using his wireless router to access the internet.

At Sweeney and Associates we are very proactive in fighting these charges.  We begin by filing motions to obtain all the discovery information available including copies of the hard drive(s) of your computer because discovery is a key component in Child pornography cases.  Generally, the charges are based on the Commonwealth or Government tracking your chat room conversations, Peer to peer networking exchanges, IP address, and/or your email address where photographs or videos were sent or received. Being knowledgeable in the field of technology and having a computer expert on hand allows us, in some cases, to discredit the reliability of the tracking technology and provides the defense that it was another individual responsible for the possession or distribution of child pornography.

After we obtain and review all the discovery, cases generally follow one of two paths. In some cases, we can proceed with filing a motion to suppress certain evidence or the search warrant. We can also file motions to dismiss based on our review of the discovery including if the images do not meet the statutory definition of child pornography (see below) or if the person depicted appears to be of age. In other cases, due to the evidence in their possession, including any statements you may have made to the investigators, we must try to reach an agreement with the prosecutor known as a plea agreement.

While our main goal is always to keep you from being convicted, we are also very well aware of the stigma associated with these kinds of charges and the collateral consequences including having to register as a sex offender if you are convicted at trial. If negotiating a plea is in your best interest and you agree, then we will discuss your case with the prosecutor. We have been successful in reducing or amending certain charges so that a person receives only probation and/or does not have to register as a sex offender.  (NOTE this is not a promise that this will happen in your case as each case is different and attorneys cannot promise any outcome in any particular case.  Past achievements are not promises of future achievements.)

Below is a chart depicting the most common charges a person will face in both state or federal court and the punishment for each charge. Please note this is not an exhaustive list and for those offenses that increase incarceration time based on prior convictions, there are only certain convictions that qualify for the increase in incarceration time.

STATE STATUTES AND PUNISHMENTS

G.L. c. 272 29A Production of Child Pornography State prison not less than 10 years nor more than 20 yearsOR$10,000- $50,000 fineORBoth incarceration and fine
G.L. c. 272 29B Distribution of Child Pornography(depiction of a person under 18 in a state of nudity or engaged in a sexual act) State prison not less than 10 years nor more than 20 yearsOR$10,000- $50,000fineOR3x the economic gain from distributing the imagesOR

Both incarceration and fine

G.L. c. 272 29C Possession of Child Pornography State prison not more than 5 years ORHouse of Correction not more than 2.5 yearsOR
$1,000-$10,000 fineOR
Both incarceration and afineMust register as a sex offenderCase Cannot Be Continued Without A Finding

FEDERAL STATUTES AND PUNISHMENTS

 

18 U.S.C. § 2251(a) Sexual Exploitation of a Child Not less than 15 years nor more than 30 years for first convictionNot less than 25 nor more than 50 years if second convictionNot less than 35 years nor more than life if third or subsequent convictionANDFine imposed
18 U.S.C. § 2252(a)(2) Distribution of Child Pornography Not less than 5 years nor more than 20 years for first convictionNot less than 15 years nor more than 40 years if prior convictionANDFine imposed
18 U.S.C. § 2252(a)(4)(B) Possession of Child Pornography Not more than 10yearsORFine imposedORBoth incarceration and a fineNot more than 20 years if the child is under 12

AND

Fine imposed

Not less than 10 years nor more than 20 years if second or subsequent conviction

AND

Fine imposed

Most states mirror the Federal Laws on Child Pornography found in 18 USC § 2256:

For the purposes of this chapter, the term—

(1) “minor” means any person under the age of eighteen years;

(2)

(A) Except as provided in subparagraph (B), “sexually explicit conduct” means actual or simulated—

(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the genitals or pubic area of any person;

(B) For purposes of subsection 8(B)  [1] of this section, “sexually explicit conduct” means—

(i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited;

(ii) graphic or lascivious simulated;

(I) bestiality;

(II) masturbation; or

(III) sadistic or masochistic abuse; or

(iii) graphic or simulated lascivious exhibition of the genitals or pubic area of any person;

(3) “producing” means producing, directing, manufacturing, issuing, publishing, or advertising;

(4) “organization” means a person other than an individual;

(5) “visual depiction” includes undeveloped film and videotape, data stored on computer disk or by electronic means which is capable of conversion into a visual image, and data which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format;

(6) “computer” has the meaning given that term in section 1030 of this title;

(7) “custody or control” includes temporary supervision over or responsibility for a minor whether legally or illegally obtained;

(8) “child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—

(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or

(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

(9) “identifiable minor”—

(A) means a person—

(i)

(I) who was a minor at the time the visual depiction was created, adapted, or modified; or

(II) whose image as a minor was used in creating, adapting, or modifying the visual depiction; and

(ii) who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and

(B) shall not be construed to require proof of the actual identity of the identifiable minor.

(10) “graphic”, when used with respect to a depiction of sexually explicit conduct, means that a viewer can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time that the sexually explicit conduct is being depicted; and

(11) the term “indistinguishable” used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults.

Even though the federal statutes state the length of incarceration, it is important to note that an individual’s sentence in Federal Court is governed by the Federal Sentencing Guidelines which contain “enhancements” based on the nature and number of images, whether a computer was used, the age of the child and other such issues that arise in almost every case.  Federal Judges are not generally pleased with these enhancements and have deviated from them to reduce the defendant’s jail time.  You want an attorney that is aware of these and will negotiate on your behalf to reduce the penalty. While judge’s have discretion to deviate from the Guidelines by either increasing or decreasing an individual’s sentence, most often the judge will sentence an individual based on the Guidelines calculation. The Federal Sentencing Guidelines determine a person’s sentence by starting at a base level for the specific charge and then the sentence is either increased or decreased based on a variety of factors. A person’s criminal history is also taken into account in determining one’s sentence. A person’s sentence is also reduced if they take responsibility for their crime by pleading guilty. Attorneys at Sweeney and Associates are knowledgeable in how to calculate a sentence under the Guidelines which is invaluable in determining whether or not your best option is to proceed with a trial or accept a plea agreement.

Attorney Richard Sweeney is experienced and knowledgeable in every aspect of child pornography charges.  It is vital to your future and liberty that you hire reputable and experienced attorneys to handle your case. If you are facing these charges, contact Sweeney and Associates at 617-328-6900 or email us at RSweeney@RSweeneylaw.com  today and let us help you navigate the system and obtain the best result possible.  This type of charge affects you and your whole family and we are experienced and can provide you and your family with the resources and help necessary to deal with these charges.

What Happens If You Get Arrested in Massachusetts

January 17, 2013

I was just arrested now what?

First, invoke your right to remain silent.  Shut up.  Do not give any confessions.  Do not give any statements.  Do not sign anything that even remotely smells like a statement or admission.  You have a constitutional right not to make a statement to the police.

Second, demand to speak to your lawyer, immediately.  You have a constitutional right to speak to your lawyer before questioning by the police, but only if you request one.  Once you have demanded to speak to your attorney do not speak to the police until your lawyer speaks to you.  The police DO NOT have to get a lawyer for you but they do have to stop questioning you.

Third, do not talk to your cell mates regarding your case.  They may inform on you to get leniency in their cases.  You may have to talk to them but you do not have to discuss the specifics of your case.

Fourth, if you are arrested for Driving While Intoxicated you should refuse to give a breath sample if you have had anything at all to drink.  You should refuse to participate in any field sobriety test.  If you have been drinking you should refuse to admit anything at all.  If you have “an odor of alcohol on your breath” you will most likely be arrested anyway as almost every police officer will not gamble his future on letting you go with the possibility that you may end up in an accident or cause an accident.  Any admission is likely to result in your arrest anyway.  Giving a breath test that shows a blood alcohol over .08 is going to be admissible as evidence and may be the basis for a conviction alone. Failing a field sobriety test is admissible and may result in conviction.  You have the right to remain silent and to refuse to give evidence about yourself so USE THAT RIGHT!

Fifth, even if you cannot afford to hire an attorney you can have one appointed for you.  When you do this you will be getting the next lawyer in line that day.  Most of these attorneys are excellent but you need an expert in drunk driving so you should plead “not guilty,” tell the judge you will hire your own attorney, and ask for copies of all of your reports from the court so that you may give them to the attorney of your choice.  If you cannot afford an attorney, the court has documents for you to fill out to see if you are eligible for a court appointed attorney.  Ask for these when you report to probation the very first day in court.

If you have been arrested and would like more information or assistance, feel free to contact us at (617) 328 -6900 or visit our website at www.rsweeneylaw.com.

Search and Seizure

October 17, 2012

Do the police have to advise you of your rights?

Police need not advise you of your rights and they are not responsible for advising you of your rights to refuse an illegal search. They are not required to tell you if and when they can make a permissible search. Police need not tell you that you can withhold permission for them to enter your home, nor that police have a right to seize anything in plain view.

JUST SAY NO!

That should be the words we all use when the police ask if they can search you, your car or your home.  Consent from you, in most cases, makes the search legal and everything they discover admissible against you in court.

Once you are placed under arrest and handcuffed, police may search your vehicle without a search warrant only if you are within reach of the vehicle, or if the police reasonably believe that evidence can be found in the vehicle that will prove the offense for which you were placed under arrest. The purpose of a search is to uncover and expose evidence that can then be seized by the police.   Every citizen of the United States has a right under the Constitution to a reasonable expectation to privacy. However, those rights are limited. Police however often take liberties in stopping people without probable cause, and arresting people based on illegal foundations.

A search in and of itself, violates a person’s reasonable expectation of privacy. Permissible searches are often called legal searches, while impermissible searches are often called illegal searches or prohibited searches. If the violation of a person’s expectation to privacy is reasonable, then the search is permissible. A reasonable search can occur with explicit consent or implicit consent. If a person is asked if they may be searched and that person then responds affirmatively, consent has been given to the search. By giving consent, the searched person no longer has a reasonable expectation to any privacy. If contraband, paraphernalia, a weapon, or some other piece of evidence or if criminal activity is “in plain view”, an exception to consent arises under the law. That type of voluntary exposure allows the police to view the article without a search. Since a search is not needed to view something “in plain view”, then there is no violation of a person’s reasonable expectation to privacy. To put it another way, the law assumes that if the person intended that which was “in plain view” to be kept private, then he or she would not have placed it in a position where it could be easily viewed by anyone.

A police stop is a seizure under the law. If the seizure is reasonable, then it is permissible, otherwise it is a violation of a person’s Fourteenth Amendment rights (also commonly termed an illegal search and seizure). If a police officer observes criminal activity, or activity which would lead a reasonable person to conclude that it was of a criminal nature, or if an informant provides sound and verified information to the police officer about a criminal activity, then a subsequent seizure is reasonable and permissible. If at the time of a stop, a police officer sees or has a reasonable belief that the suspect is armed, the officer may “pat down” the suspect and seize any weapons that could cause harm to the officer or another person during an arrest.

Can they search my home?

In almost all instances, a search warrant is required for the police to enter a private dwelling. In most other instances when a search warrant is not required, the officer must have probable cause. However, there are exceptions to the rule. If an officer has an arrest warrant and in the process of executing the warrant in the suspect’s yard the suspect gets away and runs into his home, the police have a right to enter the home in “hot pursuit” to make the arrest. If an officer has probable cause (more than a reasonable belief that a crime has been committed), and he cannot take the time to obtain a warrant without losing evidence or the suspect, then he may enter and search and seize without a warrant. An officer may also search a home if he has consent to do so, however, whether that consent allows permissible search of another dwelling member’s belongs is quite another story. If the person who gives consent to the search has authority to give the consent, then the search may be permissible so long as it does not violate the rights of another person. The mere sharing of a home (roommates) does not give one roommate authority to consent to a search of the other roommate if there existed a reasonable expectation to privacy. The right to a reasonable expectation to privacy is a personal right to privacy of the person’s physical body and his immediate surroundings. A search includes a person’s clothing, body, and immediate surroundings or those surroundings within his reach. For example, a legal search of a person sitting in a recliner would include the immediate area surrounding the recliner as well as the person’s body.

What if the search was not legal?

If a search or a search and seizure was impermissible, under the exclusionary rule, the evidence gathered from that seizure is inadmissible in the defendant’s criminal trial. As you might expect, there are exceptions to that rule, too. If the search was to protect the public, if one or more legal searches and one or more illegal searches are conducted, or if the search revealed evidence that would have been otherwise known or produced by some other means regardless of the search, then the search – even though illegal – and the evidence gathered can be admitted into evidence at trial. The exclusionary rule prohibits evidence obtained in an illegal manner from being used against a person during a criminal trial.  I cannot cover all of the exceptions to the rules of evidence for criminal prosecution. The exclusionary rule has many exceptions to determine which is legal and illegal evidence. As well, it is only one legal doctrine used to analyze evidence in a criminal trial, and each procedure (search and seizure) must be analyzed separately.

As you can see this is an area that is full of issues that can benefit you if you are arrested and the police seize evidence to be used against you as a result of a search and seizure.  The better lawyers study these issues and the cases that come out on a weekly basis to ensure that your rights are protected.

If the evidence is thrown out your case often is thrown out with it.

Experienced attorneys look at the evidence and file motions to suppress (throw out) the evidence if it was a result of an unlawful search and seizure.  In short your entire case can depend on a good lawyer looking at the facts and applying the law.

If you are arrested…

Make sure that you hire an experienced defense attorney that specializes in this area.  The law firm of Sullivan and Sweeney has extensive experience in this area and we can assist you in evaluating your case and providing the best defense for you.  Research any attorney you are entrusting your future to and be sure to look at the experience and background of Attorneys Richard Sweeney and Sabrina Bonanno at wwwRsweeneylaw.com.  Call us at 617-328-6900 for immediate help or send an email to RSweeney@RSweeneylaw.com.

Massachusetts Drug Lawyer

October 25, 2010

Defending Against Criminal Drug Charges

This article is intended to provide clients who are under investigation or have been charged with possession, distribution or trafficking in cocaine, heroin, oxycodone or other Class A or Class B narcotics in Massachusetts.  It is written by a retired Boston Police Sergeant, now criminal defense lawyer, with extensive experience in the investigation of drug crimes from initial investigations, to search warrants to actual indictment and arrests of hundreds of people charged with drug crimes in Massachusetts.  That expertise has allowed me, now as your attorney, to look closely at the charges against you and to find the best possible defense in your particular case. 

Always remember that each case is unique in its investigation, the officers involved and the court in which you are charged.  This local knowledge is helpful in knowing how the court is likely to react to your charges.

Anyone accused of a drug crime should follow the advice of an attorney experienced and knowledgeable in the defense of selling, trafficking, delivering, or conspiracy to sell, traffic, or deliver cocaine, marijuana, oxycontin, oxycodone, GHB, or other drug, and who is familiar with the specific facts of the individual’s case.   This is a general article and not meant as specific legal advice in your particular case. 

Introduction

Defending a person arrested, indicted, or charged with selling or conspiracy to sell illegal drugs present unique and special challenges that many other criminal charges do not present. Unlike crimes such as robbery or assault which the government investigates after the fact; when the government conducts an investigation in the sale, conspiracy to sell, or the trafficking in drugs the government will often target individuals and “build a case” against the targeted individual.  In the typical investigation of the sale or the conspiracy to sell or traffic in drugs the government can take its time and build its case. Wiretaps, the use of confidential informants, undercover agents, accountants to comb thru financial records, video and audio surveillance, are all tools that the government will often employee in conducting a drug investigation.

If the government does not have enough evidence they simply continue to investigate  such as surveillance of the targeted individual or switch to a proactive investigation and introduce undercover agents or “confidential informants” in an attempt to entice the target of the investigation to commit criminal acts. (Note: One exception to this scenario is the vehicle stop where the police stumble upon a large amount of drugs.) Due to the extreme complexities and unusual nature of a drug sale, conspiracy or trafficking case and the extreme and harsh penalties often inflicted upon those convicted of such crimes with sentences which can reach up to life in prison, it is extremely important that anyone facing such charges hire an attorney experienced and qualified in defending against allegations of drug selling, dealing, and drug trafficking.

The most important defense against drug charges involves being aggressively proactive in seeking information regarding the investigation and the agencies or departments involved.  Also the amount of drugs you are alleged to possess will play a huge part in your case as, in Massachusetts, the drug must be tested and the actual person who tested the drug must testify at your trial.   With limited money and resources the state almost always reserves these individuals for bigger cases and you have an opportunity at trial to have the drug evidence thrown out under these circumstances if they cannot prove the substance is in fact the illegal drug they state it is.  We are aggressive in filing pre-trial motions that force the state to divulge as much information regarding the investigation and arrest as possible to better understand the case against you and the possible defenses available to you.

Anyone attempting to formulate a defense to an allegation of drug sale, drug conspiracy, or drug trafficking, should also consider the following factors when developing the plan of defense.

Hire an Attorney Immediately Who Has Experience Handling Drug Cases

Serious and irreparable mistakes can be made by the targeted individual who tries to deal with the government himself before or instead of hiring an attorney. Because the government will employ tricks or lies to get the person to agree to a search or to make a statement these individuals will usually make the huge mistake of agreeing to a search of their home, car, or other private premises, and will also often make the huge mistake of making a statement to the government. I do not know of any person who has ever been convicted of a crime for keeping quiet or for being uncooperative with the government but I do know of plenty of individuals who have talked themselves into a conviction or consented to searches that resulted in a conviction which could have been avoided had the individual first kept quiet and refused to cooperate and hired an attorney.

Hiring an attorney immediately has further benefits. When targeted by the government and under investigation or arrest or indictment for the sale, trafficking or conspiracy to sell and traffic of cocaine, marijuana, oxycontin or other drugs the targeted individual needs to take action by having an attorney and our private investigator making sure that the investigator is speaking to witnesses and potential witnesses, collecting documents and evidence which are exculpatory, making sure that favorable witness statements are locked in early so that it becomes more difficult for the witness to turn against you and later make an allegations in an attempt to save themselves from prosecution when the government starts to reward or threaten witnesses or co-defendants with charges they may be facing.

Another reason that it is extremely important to have an attorney involved as soon as possible especially if the targeted individual is in fact guilty and the State has a strong case is that it may be in that persons best interest to become the cooperating witness. In such cases it is often the first defendant in a large conspiracy that agrees to cooperate with the government that will receive a significant reduction in their ultimate sentence or possibly avoid a conviction. Those who hold out and go to trial or later plead guilty are often left facing much longer prison terms. Deciding whether to become the cooperating witness or to hold out and fight the charge to the end is possibly the most difficult and most important decision one faces. It involves considerations of whether the target is actually guilty, the strength of the government’s case, the extent of the exposure (potential sentence or prison term), whether there is danger of violent reprisal from other members of the criminal enterprise, and the personal values of the person who is under investigation. Due to the complexity of this decision it simply should not be made without the advise of an attorney who can assess the strength of the government’s case, possible defenses, and the potential sentence if a conviction is obtained by the government, and who can take measures to insure as much as possible that the government will honor any promises it makes.

Any criminal defense attorney who believes that he can match the power and resources of the government or leads his client to believe such a thing is not very experienced. Even an army of criminal defense lawyers or the largest law firms cannot match the government’s financial resources, its manpower and its resources to find and use “cooperating witnesses”.   However, this does not mean that a defendant cannot win. The government can and has been beaten. The key is to remember that the only thing that the defense attorney needs to do is to convince the jury that there is reasonable doubt. Granted, getting the jury to see that there is reasonable doubt is sometimes easier said than done. Often times however, what appears to be an impossible case for the Defendant to win can in fact be won by simply finding that one weak spot in the government’s case and exploiting that weak spot. Taking out one aspect of the government’s case, or showing one key government witness to be a fraud and a liar, or showing how federal agents and police officers can make serious mistakes in judgment and perception, or showing the willingness of the government to violate rights, can cause a jury to sometimes see the governments entire case in a different light.

In almost all cases political pressure will often dictate what types of cases will be prosecuted and how aggressively. Few types of crimes have been the focus of as much political focus as drug crimes. In fact no other type of crime has been the subject of an official “declaration of war”. The result of this political pressure and the declared “war on drugs” is the desire of the politicians to appear tough and aggressive. They are therefore often reluctant to abandon cases that should be abandoned and will sometimes seek the mandatory minimum sentences in drug cases to show they are tough on crime.  This often results in a grave injustice to the defendant.

Almost every serious drug prosecution will involve a charge of conspiracy. Prosecutors love conspiracy charges because the law of conspiracy encompasses a wide variety of activity.  Witnesses should be located and affidavits obtained for pre-trial use and for locking in the witnesses testimony for trial that verify the relationship with the other defendants or conspirators was familial, social, or a legitimate business and that these witnesses observed no criminal activity by the client. Financial, real estate, personal property, and legitimate business records should be obtained to demonstrate that the Client is not living an extravagant life style and is not wealthy, as one would expect if the person were involved in a drug conspiracy. If the targeted individual does have significant wealth evidence of legitimate sources of that income should be gathered. The targeted individual with wealth may need to hire accountants to testify as experts as to the legitimate sources of income of the targeted individual.

A “cooperating individual” is the person who agrees to testify on behalf of the government in return for an agreement from the government for a reduction in that person’s sentence, or sometimes even the dismissal or agreement not to file charges against the “cooperating individual”. In short a police officer will catch a suspect with drugs and offer him a deal if he cooperates and turns in a “friend”.  The secret to this arrangement is that rarely will the “cooperating individual” or the government directly and expressly acknowledge that a deal was made. The officer will usually tell the cooperating individual that he cannot make any promises but that if the individual testifies against the other defendant(s) that the prosecutor will take his cooperation into consideration later on. Therefore the “cooperating individual” when cross-examined will attempt to claim that he was not promised anything and that he has just seen the error of his ways and is doing his “civic duty”. It is therefore extremely important that an attorney defending a person charged with a drug offense be very skilled in cross-examination and be able to demonstrate thru cross-examination that the cooperating witness will say or do anything including lie under oath and take down an innocent person if that is what it takes to save his own skin. The difference that a skilled cross-examiner can make in this situation as compared to the in-effective cross-examiner can very well be the difference in many cases between a guilty verdict and a not guilty verdict. It is further extremely important to do as much of a background investigation on the “cooperating individual” as possible in order to obtain extrinsic evidence such as previous criminal convictions in order to attack the credibility of the cooperating individual.

Do not Cooperate with the Government Before Getting Legal Advice

One of the most important things that any person under arrest or investigation for the sale, conspiracy to sell, and the trafficking in drugs needs to understand is that there is almost never any benefit in consenting to a search, agreeing to make a statement, or agreeing to cooperate unless and until an attorney has been consulted and has worked out an understanding with the government on your behalf. When I say almost never I mean that in 10 years as a criminal lawyer I have never seen a targeted individual’s cooperation provide him with significant benefit unless an attorney worked out the deal, it may have happened but I have never seen it. Many individuals believe that a police officer cannot lie to you and believe that if the government’s agent says that they are going to help you they are legally and duty bound to honor that promise, this is not true. Government agents are allowed to lie, at least to a certain extent. They can lie about what evidence they have when interrogating a defendant. They can make implied promises and then claim that no express promise was made.

Although there are times that cooperating with the government can be a person’s best option to avoid a criminal conviction or a much longer prison sentence any “deal” needs to be negotiated by a qualified criminal attorney because if the government can get what they want from the targeted individual without providing him anything in return they are happy use him and then leave him to “hang”.

Plea Bargaining

Plea-bargaining which is the term for the defendant agreeing to a lesser sentence in return for his agreement not to take the case to trial and / or in return for his cooperation in the prosecution of other individuals is an art.

There are two things that in my opinion greatly help in the ability of a defense attorney to be able to negotiate a favorable plea bargain. The first is whether the defense attorney has a reputation as an attorney who is willing to take a case to trial and who is at minimum a competent defense lawyer. Prosecutors are not likely to give a favorable plea bargain to a defendant who is represented by an attorney that they know does not like to or who is afraid to take a case to trial or who is incompetent. Why should they? They know they will get what they want in the end. The more willing the defense lawyer is to take a case to trial, the better he is, and the more he will make the prosecutor work for any conviction he may hope to obtain often greatly enhances the ability of that defense attorney to negotiate a favorable plea bargain. If a prosecutor knows that he will have to work much harder (which means spending his weekends preparing for trial) or that he may not get a conviction at all because the defense lawyer knows what he is doing the prosecutor will often be more likely to offer that lawyer a better deal. The second factor that in my opinion greatly helps the ability of a defense attorney in the art of plea-bargaining is if the defense attorney has had prior experience working as a police officer or a prosecutor and has established relationships with the police and the district attorney’s office.

Taking into account knowledge of the prosecutor’s job and each particular prosecutor’s personality is very important in plea negotiations. There are times during negotiations to take a hard stance meaning that you point out the weakness of the government’s case and express your confidence you could win, there are times you need to bluff and act like you can win even though you know that is not likely, and there are times to acknowledge to the prosecutor that the defendant is in fact guilty and to appeal to the prosecutor’s sense of mercy, and compassion.

How to negotiate with the prosecutor and when simply depends upon many different variables that are different with every case and with every prosecutor. These variables include the prosecutor’s personality, how long he has been a prosecutor, local custom, the facts of the case, the defendant’s desires, the judge involved in the case, and other factors. It is the weighing, considering, and balancing of these factors and determining the best way to approach plea bargaining that makes plea negotiations an art.

Pretrial Motions

There are various types of pre-trial motions to file in drug cases, a few of the more common motions include:

A) A motion to suppress, which challenges a search or the seizure of evidence because the search or seizure by the Government was illegal.

B) A motion for bill of particulars and other discovery motions keyed specifically towards drug cases seeking that the Government discloses more details about when, where, and how it alleges that the defendant committed the crime, who was involved in the investigation and how was this particular investigation conducted.

C) A motion in limiting seeking to prohibit the Government from placing into evidence certain evidence that is unfair or overly prejudicial (such as the prior criminal conviction of a defendant).

Use of pre-trial motions is one of the best ways for the Defense to find the weak parts of the Governments case and to assess the credibility and vulnerability of Government witnesses.

Finally, if you have a drug problem and need help handling your problem then we can assist you in getting that help with our team of professionals that we have used over the years to help many clients not only beat their case but beat their addiction.  In some cases getting that help can assist you in winning your case.

Conclusion

Defending against criminal allegations of selling or conspiracy to sell, distribute or trafficking in cocaine, marijuana, heroin, oxycontin, or other illegal drugs present unique and special challenges that many other criminal charges do not present. Anyone facing a drug charge should hire an attorney who has extensive experience not only as a criminal defense lawyer but who also has extensive experience with how police handle drug cases.

Attorney Richard Sweeney spent years as a Boston Police Officer and retired as a Sergeant directing one of the Boston Police Drug Units and has testified in state and federal courts in hundreds of criminal cases involving search warrants, investigations, hand to hand sales and conspiracy cases involving every class of drug. Sweeney & Associates is an AV-Rated criminal defense firm and we have successfully represented our clients in every phase of an investigation or a trial involving drugs.

You NEED a law firm with KNOWLEDGE, EXPERIENCE AND THE ABILITY TO DEFEND YOUR CASE!!  Call Attorney Richard Sweeney at 617-328-6900 and use my experience and knowledge to help you or your loved one.  Call now or visit us at www.Rsweeneylaw.com for more information.

This article used some content ideas from many different online posts.

MASSACHUSETTS DUI DEFENSE: HOW TO AVOID A MASSACHUSETTS DRUNK DRIVING ARREST AND MASS DRUNK DRIVING ROADBLOCKS

July 4, 2010

How smart is it to drive a car through the streets with, say, a .16 blood alcohol level? Not very. In fact, it is abundantly stupid and inherently dangerous for you and everyone in your vicinity. How about saving about $5,000 in attorney’s fees and take a cab instead of driving? How about, since it’s the summer and we all know we are going to imbibe, just plan to take a cab from the start?

Yes, think about it. A good attorney will charge you at least $5,000 pre-trial to work up your case. Yes, people, there are defenses to high blood alcohol DUI’s. That’s not to say that your case can be won. Many can, many can’t. It depends on how competent your lawyer is, how the cop did the investigation, if the machines used were properly calibrated, and what you said at the time of the investigation, amongst other things.

Remember, anyone with a law license from the State of Massachusetts can take your money and represent you on a DUI. That doesn’t mean that they know what they are doing. Drunk Driving law is a specialty just like doctors specialize.  You need a criminal defense firm not a real estate attorney.

Police agencies all over Massachusetts are setting up roadblocks, and putting officers on overtime, to make as many DUI arrests as possible. Hopefully, the tips below will come in handy for you.

Over Holiday weekends in particular you will run into Drunk Driving Roadblocks.  They are usually at chokepoints where you can’t turn around and they are looking for you, the “drunk driver”.   When you are in one do not turn attempt to get out or you will draw all of their attention,  Be Polite, Be Brief or Be Gone!!

1. If you drive in Massachusetts and you plan on having a cocktail or two, make sure you know where your license and registration are. Massachusetts DUI officers historically write in their Massachusetts DUI reports (putting only facts that harm you in them) that the suspect “fumbled for his wallet” and couldn’t find his registration. They use this to try to show you were impaired. Be prepared.

2. When you get signaled by the Massachusetts Police officer to pull over for a DUI assessment, do so immediately and safely. Roll down your window and put your hands on the steering wheel.

3. If a Massachusetts DUI officer asks you if you know why you are being pulled over, remember you don’t have to answer. What a dumb question! He knows why he is pulling you over. He is pulling you over to assess you for drunk driving, and he’s using the fact that you might have committed some minor vehicle code violations as an excuse. Don’t make any admissions to him. So, you can just ask him, “why?”

4. The next question the Massachusetts DUI officer is likely to ask is, “Have you had anything to drink tonight.” Remember your rights? You are not required to speak to officers. I know, I know, you think, “But if I don’t talk to the officer, he will be mad.” Let him be mad. You are not at a social gathering; he is not invited to your next birthday party. So don’t worry about how he feels. He is collecting evidence against you. Don’t give him any. It is best to say, “Officer, I appreciate what you do for a living, but I don’t wish to answer any of your questions.” You do NOT have to answer. The less from you he gets, the better for you in the long run. He is gathering evidence. But, you say, maybe he will let me go if he knows I’m being honest with him. NO. Most people who are pulled over and have alcohol on their breath get arrested. It’s just a fact of life. Don’t give him anything to put in that report that he can use against you later.

5. He may then say, “I’d like you to complete a series of tests for me.” Again, let him know that you do not wish to participate in any tests. You are not required to comply. Massachusetts DUI officers try to give a series of field tests to determine if you are impaired. I have NEVER known any officer to do these as per the standardized protocol. I am a retired Boston Police Officer who was trained to administer these tests, and was required to pass a practical and written test to get that certification. Cops learn how to do these, and then promptly forget them, making up their own “tests.” Do not do them. Do NOT let the officer collect more false “evidence” against you. Just reiterate that you do not wish to perform and tests. It’s your right.

6. The officer will most likely arrest you, cuff and take you to the station or barracks. You will be required to take a breath or blood test. You must choose to take one of these tests, or have your license suspended for failure to take the breathalyzer. A few pointers: If you are still absorbing alcohol, the breath test will read high. It is also an INDIRECT measurement of blood alcohol level.  If you believe that you have had too many drinks then DO NOT TAKE THE TEST.

7.  If you are arrested, you will be released within 12 hours on your promise to appear in court..  Get a good attorney to represent you as early in the process as possible to preserve your rights.  A capable attorney can read the reports and give you an honest assessment of your chances of winning the case at trial.

So, be careful. Don’t drink and drive. Drive safely. If stopped don’t talk to the police. Be polite, but do not let them gather inculpatory evidence against you. And when you get home call a good Massachusetts DUI Defense lawyer at 617-328-6900.  See our website at www.Rsweeneylaw.com

Massachusetts Sex Offender Registry

May 23, 2010

Megan’s Law is the term commonly used to describe state laws requiring convicted sex offenders, or people who are tagged as sexually deviant based upon prior convictions, to register themselves with a statewide board as sexually deviant.

What is the sex offender registry board?

The sex offender registry board is the panel which must decide in which of the three categories of sexually deviant behavior each person who commits a sex crime in the Commonwealth belongs. The three levels range from modest offenses such as lewd and lascivious conduct or indecent exposure to the higher ranges where people who have been convicted of multiple counts, or sexually violent crimes, or who have been determined as sexually dangerous persons or sexual predators. The board also hears appeals from people who believe that they either belong in a different category of sex offenders or who believe they do not belong on the list.

How long do I have to be on the list if I am required to register?

Sexually violent offenders, those who have offended against a child, and those with two or more convictions must register for life. All other sexual offenders must register for 20 years, however, they may petition the Sex Offender Registry Board for relief after 10 years following their last conviction, release from custody, or discharge from community supervision.

Will people in my neighborhood know that I am on the Sex Offender Registry?

Active community notification is conducted by the police departments where the offender resides, works, and where the offense(s) took place on all offenders finally classified a Level 3. The police shall provide information about Level 3 offenders to all schools, daycares, and places where the public is likely to encounter the offender. Additionally, the police shall cause such information to be transmitted through a media outlet such as television, newsprint, etc.

Information about offenders finally classified at Level 2 may be released by the police departments upon written inquiry from any individual 18 years of age or older, who certifies they are requesting the information for their own personal safety or the safety of their family. Individuals may also contact the Sex Offender Registry Board for information related to Level 2 or Level 3 offenders. This request must be made in writing on a form bearing the signature of the requester attesting to the fact that they are 18 years of age or older and the information is requested for their own personal safety or the safety of their family.

Information about those offenders who have finally been classified at Level 1 and those offenders pending classification shall not be released to the public, but may be shared between law enforcement agencies.
What is the penalty for not registering?

Under the law any sex offender who knowingly fails to register or reregister, or who knowingly provides materially false information to the Sex Offender and Crimes Against Minor Registry shall be guilty of a felony.

A first conviction shall be punished by imprisonment for not less than six months and not more than two and one-half years in a house of correction nor more than five years in a state prison or by fine of not more than $1,000.00 or by both such fine and imprisonment.

A second and subsequent conviction shall be punished by imprisonment in the state prison for not less than five years.

What offenses require registration with the board?

Offenses requiring registration with the board include, but may not be limited to:
Indecent assault and battery on a child under 14; indecent assault and battery on a mentally retarded person; indecent assault and battery on a person age 14 or over; rape; rape of a child under 16 with force; rape and abuse of a child; assault with intent to commit rape; assault of a child with intent to commit rape; kidnapping of a child; enticing away a person for prostitution or sexual intercourse; drugging persons for sexual intercourse; inducing a minor into prostitution; living off or sharing earnings of a minor prostitute; second and subsequent adjudication or conviction for open and gross lewdness and lascivious behavior; incestuous marriage or intercourse; disseminating to a minor matter harmful to a minor; posing or exhibiting a child in a state of nudity; dissemination of visual material of a child in a state of nudity or sexual conduct; possession of child pornography; unnatural and lascivious acts with a child under 16; aggravated rape; any attempt to commit any of the aforementioned violations

What can I do if the Registry has informed me that I must register?

If you feel that the registry has placed you in the wrong Level of offender, or if you feel that you do not belong on the registry, and you have a compelling reason why you believe so, you should contact an attorney and begin the appeal process. People have had success in appeals, especially where the crime was committed a number of years ago and there has been no crime committed since, and in cases where the crime that was allegedly committed was pled to prior to the creation of the sex offender registry. We have represented a number of people in appeals before the sex offender registry board, and have had some success.

Drug Crimes in Massachusetts – CEO or Student it’s a Big Problem!

March 14, 2010

It’s not just drug dealers that get arrested for drug crimes. All too often students, professionals, housewives, doctors, lawyers, firefighters, police officers and others find themselves stopped by police and are in possession of an illegal narcotic.  For some it started as a bad back whose pain became overwhelming and for others it is a recreational drug that they are holding at the wrong time in the wrong place.  For students it can be that a roommate has it in the dorm or in a car with you and the police charge everyone present.  For others it’s a hidden addiction that now may ruin all they have worked for at home and at work.  For some it seemed like a great idea to make some quick money and only now do they realize the price they may have to pay involving strict mandatory minimum sentences.  A few unlucky clients may receive a phone call from a police officer that asks them to come to the station or meet with the officer “so we can talk before this becomes a problem.”   DO NOT RETURN THAT CALL BEFORE TALKING WITH AN ATTORNEY!!!!

The government’s “war on drugs,” has made for harsh, and often mandatory, penalties for narcotics-related crimes.  These severe penalties for drug crimes can have serious consequences for the futures of those charged. The criminal penalties are complex, depending on the drug, the amount you were caught with and the circumstances of your arrest, but even simple possession may carry prison time, steep fines, and the lifelong stigma of a felony conviction. The penalties rise significantly if your arrest involved violence, if it’s not the first offense or if firearms were involved. Unlike other crimes, many drug crimes also carry non-criminal penalties like loss of your driver’s license in Massachusetts, becoming ineligible for student loans or federal assistance programs, adverse consequences in immigration court and trouble with professional licensing or military service.  A narcotics charge hurts you everywhere you turn.

Massachusetts does have several programs available for first time offenders or those with addiction problems.  Attorney William Sullivan and Richard Sweeney work first and foremost with you on your particular case to make sure that every available defense is investigated and every piece of evidence is used to preserve your rights and get that all important NOT GUILTY!  In cases where law enforcement made a mistake that violated your civil rights, we may be able to get your case dismissed altogether. Also under recent changes in the law the government now has to produce an expert at your trial who has weighed and tested the drugs in your case and must then take the stand and go through rigorous cross-examination by us before the commonwealth can prove that what you had on you was, in fact, an illegal narcotic drug.  Due to budget restraints that does not happen in many cases and charges can be dismissed simply because the expert is not available to testify on your trial date.  Using our expertise and long experience in dealing with drug crimes we are in an excellent position to assist you even if you were actually in possession of an illegal substance.  They have to prove their case against you and that is fact specific to each case.  We make them prove it beyond a reasonable doubt.

We will examine everything about your arrest and subsequent treatment to find any errors in the investigation, the search, the drug testing or other misuse of power that can destroy the case against you.  In addition we have extensive experience in the investigation phase from the police side and the prosecution of the case from our time spent working in the District Attorney’s Office prosecuting these cases and as a Boston Police Drug Unit Sergeant investigating  drug cases at all levels.

If the case is solid, we have been able to work with you and the commonwealth towards reducing your charges or the penalties you face, working towards allowing you to qualify for treatment and/or probation. Often we can get you situated in treatment programs and work towards showing the court that you are well on the way to recovery and therefore less of a risk to re-offend and that probation and continued attendance in rehabilitation programs is a better alternative than a jail sentence.

We are a dedicated criminal defense firm, well-respected by our peers and by the courts in Massachusetts.  That knowledge is reflected in our record of successes, which includes not guilty verdicts, dismissal of charges, placing clients in drug diversion programs, probation and getting reduced charges and penalties.  Sullivan and Sweeney has been awarded the coveted peer review rating of AV (“very high to preeminent” in legal ability and ethics) by the Martindale-Hubbell International Law Directory — the highest rating awarded to attorneys and one shared by fewer than 7% of all lawyers in the United States and we are also listed in the prestigious Bar Register of Preeminent Lawyers.

If you’ve been charged with a drug crime in Massachusetts you’re facing charges that will change everything about your future.  In addition your family faces the stress of not only dealing with a possible jail sentence for a loved one but also the difficulty of not knowing where to start to get help with an addiction problem.  With so much at stake, you need the experience and knowledge of attorneys who deal with these crimes daily in Massachusetts. Call Sweeney & Associates at 617-328-6900 today to schedule a free consultation on your case.

You, and your family, have a lot of questions and a lot of concerns.  We will take the time to answer your questions and work with you towards a succesful resolution to your problem.  We have represented hundreds of out-of-state students at Boston area Colleges and we can help you and your family navigate through both school and the courts.  You already have a problem now make the call to find the resolution.

Please see our website at www.RSweeney.lawcom or call 617-328-6900 for additional information and helpful links.