Articles Posted in Drug Crimes

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Popular swimming phenom and eight gold medal winner Michael Phelps has been suspended by USA due to the picture of him holding what is believed to be a marijuana bong. The now famous picture of Phelps surfaced in Star magazine. According to reports, the incident occurred in November, when Phelps attended a house party while visiting the University of South Carolina. Phelps has apologized to his fans and referred to his behavior as regrettable. Phelps has never tested positive for any banned substance.

Phelps has been in the spotlight before for “regrettable behavior” including a previous conviction for operating under the influence of alcohol often referred to as driving under the influence or DUI in Massachusetts.

In Massachusetts, a conviction for driving under the influence can carry a sentence of up to two years in jail. The District Attorney has to prove that you were driving a car on a public way and that you were under the influence of alcohol. Any one of these areas should be challenged when defending an OUI case in a Massachusetts. To prove operation the District Attorney does not have to show that you were actually driving. Massachusetts Courts have held that starting the engine of the car or making use of the power provided by the engine constitutes operation. Massachusetts Courts have held that putting the keys in the car’s ignition can be enough to establish operation.

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

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

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

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

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

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

So what are these guys looking at? 

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

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

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

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

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

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

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

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

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

Read Entire Article: 

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

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

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This past Saturday, armed with a search warrant Quincy police officers went to search the third floor apartment at 40 Bradford Street in Quincy.  One of the defendants, Alexander Fainer pulled up in his car just as the search was about to commence.  He gave the officers the key to the apartment and when they entered the other occupant, Deidre Reilly came to the door with a dog.  Rather than securing the dog Reilly let it go and one of the officers was attacked sustaining injuries requiring stitches.  During the search officers located about 42 grams of heroin, 9 ounces of cocaine, some pills and counterfeit money.  The defendants are being charged with trafficking in heroin, possession of cocaine with intent to distribute, possession of Suboxone and possession of counterfeit currency.  The defendants were arraigned in the Quincy District Court.  The case will likely be indicted by a grand jury to the Norfolk County Superior Court in Dedham. 

Read Entire Article, http://www.patriotledger.com/

http://www.patriotledger.com/news/cops_and_courts/x941718544/Detective-bitten-searching-Quincy-apartment-for-drugs

The heroin trafficking charges carry a minimum mandatory 7 year state prison sentence.  If there was a school zone within 1,000 feet of the apartment there is an additional 2 year mandatory prison sentence that must be added on to these charges.  Possession with the intent to distribute cocaine carries no minimum sentence.  Probation can be imposed or in some circumstances with a good lawyer you might be able to get that charged continued without a finding.  That is unlikely here in that other substances of a large quantity were involved. 

The search warrant and subsequent seizure of drugs always requires scrutiny to see if certain constitutional requirements were met.  Lawyers will file motions to suppress searches if they believe that the warrant never should have issued or if there is some evidence that the police lied to the judge or magistrate who issued the warrant.  In this case it would be interesting to see who was the target of the warrant, Fainer, Reilly or both.  Another issue that might arise is whose drugs were these.  Did they belong to one occupant or both.  Motions to dismiss are often successful in situations where someone was merely present at the scene but had no involvement in the drug crime. 

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Fox News reported that Marc Bellino, a 26 year old Braintree, Massachusetts was arrested and charged with drug and weapons offenses.  Charges are pending in the Quincy District Court.  According to reports police received information that there was a problem at 11 Zana Park Drive, the address where Bellino lived with his parents.  When police entered the premises they located white powder consistent with cocaine and related drug distribution paraphernalia including a scale and razor.  Authorities further allege that Bellino admitted to having more drugs in the house along with a sawed-off shotgun, some handguns and an assault rifle.  Serial numbers were obliterated from the firearms and Bellino did not have licenses to possess the weapons. 

So what are the possible charges Bellino faces?  First is the cocaine.  If the quantity totals less than 14 grams he can be charged with possession with the intent to distribute cocaine.  This would be a violation of Massachusetts General Laws Chapter 94C Section 32A.  To convict Bellino of these charges the prosecution will have to proved beyond a reasonable doubt that he possessed a certain amount of cocaine and that he did so with the intent to distribute the cocaine rather than keep it for personal use.  The prosecution will likely use the scale and firearms as evidence to show that Bellino was in the business of distributing cocaine.  If convicted and he has no prior convictions for this offense, Bellino can be sentenced to up to 2 1/2 years if the case is prosecuted in the district court or up to 10 years if the case gets indicted to the superior court. 

The possible firearms charges are possession of a firearm in violation of Massachusetts General Laws Chapter 269 Section 10.  Of particular not is the sawed-off shotgun.  If the case remains in the district court a conviction carries a minimum mandatory 18 months in the house of correction.  If indicted to the superior court there is a minimum mandatory 2 1/2 year state prison sentence.  More importantly, this charge carries a possible life sentence. 

Possession of drug paraphernalia is a misdemeanor punishable by up to 2 years in jail.  It is a violation of Massachusetts General Laws Chapter 94C Section 32I to possess such materials.  In this case, the razor and electronic scale are alleged to by the prohibited paraphernalia.  The sentences in this case can be consecutive whether or not the case is resolved in the district court or the superior court. 

Possible defenses in this case involve the legality of the entry to Bellino’s house.  It does not appear that the police had a warrant nor is there any indication that some sort of emergency preceded the entry.  Typically in cases such as this motions to suppress are filed.  If allowed, much if not all of the evidence is excluded from trial.  Oftentimes this results in a dismissal of the case due to the fact that the prosecution is unable to proceed with its case.

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On November 15, 2008 a Walpole man was arrested and charged with drug and weapons charges after leading police on a high speed chase.  He had been released after posting bail in the Stoughton District Court.  Then, just last week, the same man was arrested when he was found in possession of heroin.  He is now being held without bail at the Norfolk County Jail in Dedham.  

As to the first case, it was reported that the defendant led police on a high speed chase on Route 24.  When he was apprehended he was found in possession of 31 bags of heroin with a street value of approximately $1,500.  Apparently the quantity was not sufficient to charge the man with trafficking heroin.  After stopping the vehicle police also located a loaded .32 revolver and 11 grams of marijuana.  Police were assisted in stopping Antoine by a truck driver who blocked the vehicle.  Antoine and another were ordered out of the car at gunpoint at which point officers observed a bag of marijuana wedged between the driver’s seat and the door.  

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A Hudson, Massachusetts man pleaded guilty to cocaine trafficking in the Middlesex County Superior Court on Monday.  He was sentenced to 3-4 years in state prison.  The defendant was charged with cocaine trafficking and conspiracy after his arrest in 2007.  According to a report in the Metrowest Daily News, the defendant’s home was raided by police in September of 2007.  Seized during the raid was more than five ounces of cocaine.  Police estimated the street value of the drugs at between seven and eight thousand dollars.  Charges against a co-defendant also charged with these crimes are still pending.  

Cocaine trafficking in Massachusetts is a crime under G.L. c. 94C sec. 32E(b).  To convict someone of trafficking the prosecution must prove beyond a reasonable doubt that the person possessed a controlled substance (in this case cocaine), with the intent to distribute the substance or that he actually did distribute that substance, and that the amount of the substance exceeded a threshold weight.  The penalty is a function of the quantity of the substance you have been convicted of trafficking.  An ounce of cocaine equals 28 grams.  In this case the defendant was accused of trafficking 5 ounces or 140 grams of cocaine.  The punishment required by law in this situation is that the defendant serve a minimum mandatory 10 years in state prison.  By all accounts he got a great deal.  

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