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Eighteen year old Joshua Rodriguez from Marblehead was arraigned in the Lynn District Court on charges that he raped three girls under the age of sixteen all within a six week period.  According to reports, a 14 year old and a 15 year old complained that they were raped in December while another girl, also 14 told authorities that she was raped on February 4, 2009.  At the arraignment the district attorney told the judge that on December 3, 2008 Rodriguez forced one of the victims into a bathroom and forcibly raped her.  Another victim was raped in a car and threatened by the defendant afterwards.  The third victim reportedly smoked marijuana with Rodriguez, passed out and awakened to the defendant on top of her fondling her genitals.  Rodriguez is no stranger to the legal system.  He has a prior breaking and entering charge, motor vehicle offenses and drug charges.  Bail was set in the amount of $25,000.00. 

Read Article:  Rape Charges Pending Against Marblehead Teenager In Lynn

Typically when you hear about rape cases involving 18 year old males and 14 or 15 year old girls the charge will be rape of a child without force, commonly referred to as statutory rape.  Not so in this case.  These are forcible rape charges.  While the potential sentence for both is the same, people convicted of forcible rape typically receive stiff state prison sentences.  Rape of a child in Massachusetts is a violation of Massachusetts General Laws Chapter 22A or Massachusetts General Laws Chapter 23.  The former is rape with force, the latter is statutory rape. 

From reading the article it seems like Rodriguez has a tough road ahead of him.  Prosecutors in Massachusetts try to join cases like this for one trial to show motive or pattern.  If judges permit the joinder defending these cases is extremely difficult.  It is one thing to attack one victim through cross-examination or show inconsistencies in her story.  It is another thing to try to do this to three people, all of whom claim to have been raped in separate incidents, on different dates and at separate locations.  Cases like this usually get resolved through plea bargaining. 

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Apparently Framingham and Massachusetts State Police had been on to Anthony Batista and Hector Perez for several months.  Armed with information that the two Boston, Massachusetts men were selling crack cocaine in Framingham an investigation that included undercover drug buys began.  Batista became known to the officers on last Friday detectives in Framingham followed him through some downtown roads.  They saw him exit his car and get into a car with Hector Perez.  Batista later got back into his own car and was pulled over by the police.  He immediately surrendered a bag of cocaine and admitted to getting it from Perez.  Perez was apprehended.  Police found 18 individually packaged bags of cocaine in his possession.  Both were charged with distribution of cocaine, possession with the intent to distribute cocaine, conspiracy and a school zone violation.  Batista was also charged with driving without a license. 

It looks like Perez might have some bigger problems as well.  He has outstanding warrants.  One is out of the Worcester Superior Court for trafficking cocaine and possession with the intent to distribute cocaine.  The other warrant is out of the Framingham District Court for possession with intent to distribute cocaine, possession of cocaine and a school zone violation. 

Read Article:  Boston Men Facing Cocaine Charges in Framingham Court

The article is unclear as to why Batista was charged with distribution, possession with intent and conspiracy.  Clearly there is a case for possession of cocaine.  He had the substance in his possession when stopped by the police.  If Batista was the seller in one or more of the undercover buys then the distribution charge makes sense.  As to the conspiracy and possession with intent, the police must show that Batista and Perez were working together to sell the cocaine that Perez was caught with either as joint venturers or co-conspirators. 

Jail time is a distinct possibility for both men in this case.  The school zone charge alone carries a minimum mandatory 2 year jail sentence.  Perez’s trafficking cases carry anywhere from a 3 year mandatory sentence to a 15 year mandatory sentence depending on the amount he was charged with trafficking.

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The Boston Globe recently reported that a girls basketball coach at the Melrose YMCA was arrested and charged with rape and indecent assault and battery on a child under fourteen. According to the Boston Globe, the Middlesex County District Attorney alleges that the Reading defendant, “. . . over the course of a number of years, violated the trust placed in him as a coach of young girls and sexually assaulted this young victim.” The North Reading Police Chief stated that, “Because of the way that the suspect operated, our investigators are concerned that there could be additional victims who have not yet come forward.” The Reading resident was arraigned in the Woburn district court. However, the Middlesex County Grand Jury will likely indict the defendant and the case will proceed through the Middlesex Superior Court now located in Woburn, MA.

The maximum penalty for the crime of rape [M.G.L.A. 265 § 22] is life in prison. In order for the District Attorney to prove someone guilty of rape, it must prove that the defendant compelled another to have intercourse by force against an individual’s will or compelled by threat of bodily injury. Although the crime of rape in Massachusetts is a crime of violence, the force used to accomplish the rape need not be physical force. Additionally, in certain circumstances the force necessary for the District Attorney to prove rape may be constructive force as well as physical force, violence, or threat of bodily harm. However, if Commonwealth relies on constructive force it must also prove that sexual intercourse was against the victim’s will.

The maximum sentence for a defendant who is convicted for indecent assault and battery on a child under fourteen [M.G.L.A. 265 § 13B ] for the first time is two and one half years in jail or ten years in state prison. For proceedings under this statute, a person under fourteen years of age is considered incapable of consenting to the conduct of the defendant.

In Massachusetts, a touching is considered indecent when the conduct of the defendant violates social and behavioural expectations to such a degree that A touching is indecent, within meaning of statute governing indecent assault and battery, when, judged by the normative standard of societal mores, violates social and behavioural expectations, in a manner which is fundamentally offensive to moral values and which the common sense of society would regard as immodest, immoral and improper.

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Massachusetts police allege that a thirty seven year old man was under the influence when he lost control of the snowmobile he was driving causing it to crash into rocks, killing his passenger.  Chris Corriveau is now charged with operating under the influence of alcohol (OUI) and motor vehicle homicide.  The victim, a thirty six year old woman died at the scene. 

Read Article:  Massachusetts Authorities Charge Man With Drunk Driving and Motor Vehicle Homicide in Connection With Snowmobile Fatality

Massachusetts General Laws Chapter 90 Section 1 defines motor vehicles in Massachusetts.   The law states that any vehicle made for propulsion by power is a motor vehicle.  Motorized bicycles are not motor vehicles however in accordance with Massachusetts General Laws Chapter 90 Section 1B anyone operating a motorized bicycle is subject to the laws of the road and can be prosecuted for DUI.  In Massachusetts motorcycles are motor vehicles as are golf carts, mobile homes, tractors and mobile construction cranes.  While arguably a snowmobile may be considered a motor vehicle, in this case there is an issue as to whether the vehicle was operated on a public way.  Public way is an element that the district attorney must prove beyond a reasonable doubt before someone can be convicted of OUI or motor vehicle homicide. 

The issue of impairment can also be attacked in any alcohol related driving case.  Field sobriety tests are subjective and vulnerable to attack on cross-examination.  People would be amazed at how many times police officers demonstrating these tests in court stumble or inadequately perform the very tests that they administered in the field to the defendant.  Breathalyzer tests are subject to the same scrutiny as are any other machines.  Think about how many times you drove past one of those stationary police radar signs that tell you how fast you are driving.  Rarely do they reflect the same speed registered on your speedometer.  The speeds often vary by 5 or 6 miles per hour.  What does this tell you?  Either the police radar is inaccurate or your speedometer is inaccurate.  Why does this happen?  Because these are machines and they are fallible. 

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In January of 2008 Christopher Cook sold 200 OxyContin pills to a cooperating witness.  Then, less than two months later FBI agents caught Cook trying to steal “what he believed to be OxyContin pills for a drug source”.  In November of 2008 Cook pleaded guilty to possession, distribution and attempted possession with intent to distribute OxyContin pills. Cook, a 29 year old Pembroke man who had applied to become a Boston Police Officer will now spend the next eighty seven months in federal prison. 

Read Article:  OxyContin Dealer Gets Seven Years in Federal Prison

OxyContin is a Schedule II drug pursuant to 21 United States Code Section 812.  That section defines Schedule II drugs as substances that have a high potential for abuse, have a currently accepted medical purpose and abuse of which might may lead to severe psychological or physical dependence.  According to federal law it is a crime to possess oxycontins with the intent to distribute the drug.  It is also a crime to attempt to possess oxycontins with the intent to distribute the substance. 

Sentences for convictions of drug offenses are in some cases mandated by statute.  Where there is no mandatory sentence to impose judges regularly refer to the federal sentencing guidelines for guidance on how to sentence someone.  The federal sentencing guidelines give a range of sentencing options that vary depending on the crime and the person who was convicted.  Things such as prior criminal record, the quantity of the drugs and whether or not weapons were used are considered by these guidelines. 

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John Ellement of the Boston Globe reported that a Boston man has been charged with killing his girlfriend of six months shortly after seemingly enjoying their first Valentine’s Day together.  Shortly after 3:00 a.m. Sunday the defendant, Mario Gonzalez called Boston Police telling them that an intruder had entered the couple’s home and stabbed the victim.  Later however Gonzalez confessed in Spanish to killing the victim.  According to reports, Gonzalez, concerned that Forty might leave him had made certain threats that she likely did not believe.  Members of Forty’s family stated that Gonzalez, a Guatemala native admitted to killing someone in his homeland. 

Read Article:  Boston man charged with killing girlfriend, Boston Globe February 18, 2009

Here are some interesting statistics about domestic violence in the United States.  Starting in the mid 1990’s, at least 1,500 women were killed annually as a result of domestic violence.  Approximately 33% of all female murder victims were killed in domestic incidents.  About 1/3 of all women’s injuries resulting in emergency room hospital visits are the result of domestic violence.  Women ages 20-34 are at the greatest risk for domestic violence.  This case marks the first reported domestic violence death in Boston this year.

To say that Gonzalez’s case appears to be difficult to defend is an understatement.  Prior threats of violence against the victim, a bogus story to the police and ultimately a confession are huge hurdles for the defense lawyer to jump.  Fortunately for Gonzalez he has one of Boston’s best criminal defense lawyers working for him. 

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The New York Daily News reports that former Boston College Basketball player Sean Williams has been arrested and charged with violating a restraining order and trespassing.  Williams has had problems in this area in the past.  He was thrown off of the Boston College basketball team in his junior year for smoking marijuana and has been banned from entering the Boston College campus.  Prior to his expulsion Williams had been suspended for marijuana use. 

Read Article:  http://www.nydailynews.com/sports/basketball/nets/2009/02/16/2009-02-16_nets_sean_williams_arrested_at_bc_over_r.html

The article’s reference to a restraining order violation is somewhat sketchy.  Restraining orders in Massachusetts are governed by Massachusetts General Laws Chapter 209A.  Restraining orders protect family or household members in Massachusetts.  Those individuals are defined as people who 1) are or were married to one another, 2) reside or had resided in the same household, 3) are or were related by blood, 4) have a child together or 5) are in or have been in a substantive dating relationship.  There is no indication that anyone fitting that definition was involved in this incident.

Trespassing in Massachusetts is prohibited by Massachusetts General Laws Chapter 266 Section 120.  The law states that anyone who without authority enters or remains in or on property another, or does so in violation of a restraining order is guilty of trespassing.  A conviction of this offense carries a potential 30 day jail sentence. 

This case will likely be prosecuted in the Brighton District Court. 

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Laura Calverley, reporter for the Attleboro Sun Chronicle reported that a Rhode Island man has been arrested and charged with possession with intent to distribute drugs.  The defendant, Cristian Torres will have to defend against these drug charges in the Taunton District Court.  Details of the arrest are somewhat sketchy.  Apparently Torres was driving in Rehoboth when he was stopped by a local police officer.  Police subsequently located drugs on Torres and in his car; specifically marijuana and Vicodin.  Members of the Bristol County Massachusetts State Police Bristol County Drug Task Force were present for the arrest as well.  According to the article, the quantity of narcotics (unspecified) along with its packaging led police to believe that Torres intended to distribute the controlled substances.  Authorities also located a large amount of cash.  Torres was operating on a suspended license. 

Read Article:  http://www.thesunchronicle.com/articles/2009/02/15/news/4421695.txt

Some pretty interesting thoughts come to mind when reading about this arrest.  First, why was Torres pulled over.  Massachusetts and Federal Laws demand that police officers have a valid reason to pull you over.  You must have violated some sort of law or ordinance.  Police cannot simply pull someone over for no reason.  There is nothing in the article suggesting that Torres was doing something wrong warranting a stop of his vehicle.  The second thought that comes to mind is why were local police and a drug task force were involved in the stop.  Was he being followed or investigated as part of a larger investigation.  Third, what right did the police have to search the interior of Torres’ car.  Many of these questions might well be answered by looking at the police report.  If they are not then perhaps Torres has a legitimate challenge to a violation of his constitutional rights. 

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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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