Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

If you have been convicted of a crime, your conviction is a public record. What does that mean? Well, for starters, potential employers and landlords can do a criminal background search, and they may deny you employment or housing when they see the conviction. What many people don’t know, however, is that anyone can walk into a court clerk’s office and perform a criminal record search on a particular individual.

And it’s getting even easier than that. In the past, a person had to physically walk into a court clerk’s office to perform such a search. Since the birth of the internet, however, any average Joe can use the services of an online criminal background search firm while sitting in his pajamas sipping coffee. Private, for-profit companies gather conviction records from myriad sources, then use them to create databases which can be accessed by any paying customer with a curiosity about someone’s record, or lack thereof.

So, What Shows Up?

If someone performs a criminal background check on an individual, the following information may be revealed:

  • Warrants
  • Arrests
  • Misdemeanor convictions
  • Felony convictions
  • Court records, including judgments, dockets, and orders
  • Sex offenses
  • Records of incarceration

Thanks to the Fair Credit Reporting Act (FCRA), civil suits and arrests will not show up in a criminal background search after the passing of seven years. However, criminal convictions may remain on the report indefinitely. A MA criminal defense attorney can help you protect your rights if you’ve been charged with a  crime.

Can My Record be Sealed?

The only way a criminal record can be hidden from public view is through the process of expungement, also known as sealing. When a judge “seals” a criminal conviction, not only is the record no longer public, the individual can answer “No” on any application asking if they have ever been convicted of a crime. That being said, certain individuals and organizations – such as prosecutors and law enforcement agencies – can still view expunged records. And expungement isn’t always an option.

In order to have your record sealed, you and your offense must meet certain requirements. In most cases, it must have been your first offense, a relatively minor offense, you must have completed your sentence, and a period of time must have passed since completing your sentence. To qualify for expungement, your case must meet one of the requirements below:

  • Your case was dismissed (you were found not guilty, or the case ended without a conviction).
  • Five years have passed since you finished serving your sentence for a misdemeanor offense, and you have not re-offended.
  • 10 years have passed since you finished serving your sentence for a felony offense, you have not re-offended, and your conviction was not for “crimes” against the public, violations of the State Ethics Act, certain sex offenses, and certain firearms offenses
  • Your conviction was for first-offense misdemeanor drug possession (at the judge’s discretion, these cases may be sealed immediately)

A Boston defense lawyer can help you determine if you qualify for expungement. Continue reading

If you’ve been charged with shoplifting in MA you might be wondering what penalties you face, and if you even need a lawyer. After all, shoplifting charges are relatively minor, right? Well, not exactly. For starters, the penalties you face are largely dependent on the severity of your charges and prior criminal history; you could be looking at up to two-and-a-half years behind bars. Secondly, any criminal conviction on your record – even shoplifting – can have serious consequences for years into the future.

What is Shoplifting?

Walking into a store, putting an item in your purse, and walking out without paying for it is an obvious example of shoplifting. But shoplifting can take other forms as well. Simply concealing merchandise while in the store can be considered shoplifting. Altering or swapping price tags, or placing merchandise in different containers is also a form of shoplifting. A Boston criminal defense attorney can help you determine how to proceed if you’ve been charged with shoplifting or any other crime.

If a merchant suspects you of shoplifting, you can be detained at the store for a reasonable amount of time. When law enforcement arrives, you can be arrested without a warrant if the officer(s) have probable cause to do so.

Shoplifting Penalties

If convicted of shoplifting in MA, you may be facing fines, jail time, and a possible civil suit. Merchants can sue shoplifters to recover damages for stolen goods. Penalties vary based on the value of goods stolen and other factors. If you have been charged with shoplifting, the following penalties may apply to you:

  • Goods valued at less than $100: If you have no prior offenses, you will likely face a fine of up to $250.
  • Goods valued at up to $100: If you have one prior offense, you will likely face a fine of up to $500.
  • Goods valued at up to $100: If you have two prior offenses, you will likely face a fine of up to $500, and up to two years in jail.
  • Goods valued at $100 or more: A fine of up to $1,000, and up to two-and-a-half years in jail.

In addition to the above criminal penalties, you may face civil damages of up to $500, plus actual damages.

Do I Qualify for a Pretrial Diversion Program?

Maybe you’re innocent. Maybe you did shoplift the item(s) you are charged with shoplifting, but you now realize you made a mistake. In either case, an experienced MA defense attorney can help you protect your rights. Fortunately, MA offers something called a pretrial diversion program for some people who are accused of low-level crimes. If you qualify for a pretrial diversion program, you might have to do things like complete community service and make restitution, but you will not end up with a criminal record. Once you have fulfilled the requirements of the program, the charges will be dropped. A plea bargain may be an option if a diversion program is not. This occurs when a defendant pleads guilty in exchange for a lighter sentence. Continue reading

On September 14, an 18-year-old college student from Roswell, Georgia was killed during a hazing incident at Louisiana State University. Maxwell Gruver died of complications related to acute alcohol intoxication while trying to join Phi Delta Theta. Students hoping to be accepted into a particular fraternity or sorority are called pledges. When pledging a fraternity or sorority, the student will likely have to attend mandatory meetings, social activities, and other events. Hazing, however, should not be a requirement.

Hazing is frowned upon by most colleges and universities, and in many cases, it’s criminal. Hazing is an action or situation intended to make the pledge uncomfortable. It is generally reckless, and can endanger the student’s mental or physical health. In the case above, witnesses claim that Gruver was made to drink at least 10 “pulls” of hard liquor on the evening before his death. According to officials, the freshman’s blood alcohol content (BAC) was 0.495 percent, more than six times Louisiana’s legal limit for driving.

Felony Negligent Homicide Charge

Ten people were arrested for misdemeanor hazing that lead to Gruver’s death. One of those arrested, Patrick Forde, is from Westwood, Massachusetts. Another defendant, Matthew Alexander Naquin, is facing a felony negligent homicide charge for his role in Gruver’s death. According to witnesses, Naquin disliked Gruver. He targeted the young pledge, forcing him to drink more than everyone else.

The morning after the hazing incident, fraternity members found Gruver lying on a couch, and were unsure if he was breathing. He was rushed to Baton Route hospital, where he later died. All of the 10 suspects, ages 18 to 21, were Phi Delta Theta members. The LSU chapter has been closed by the fraternity’s national office.

‘‘The ramifications of hazing can be devastating,’’ said LSU President F. King Alexander. ‘‘Maxwell Gruver’s family will mourn his loss for the rest of their lives, and several other students are now facing serious consequences – all due to a series of poor decisions.’’ A MA defense attorney can help you determine how to move forward if you’ve been charged with hazing, or any other criminal offense.

Criminal Penalties for Hazing

Many universities have policies specifically banning hazing. Further, the dangerous ritual can result in criminal penalties, including up to 30 days in jail. And negligent homicide can carry a penalty of five years in prison. Despite the consequences, some fraternity and sorority chapters still engage in hazing. In February, a Penn State student was killed in an alcohol-related hazing incident involving the Beta Theta Pi fraternity. To date, 14 of that fraternity’s members are facing criminal charges in that student’s death.

Investigators working on the LSU hazing case are studying text messages, and have learned of possible videos. They have also gathered additional evidence, including a bag containing a “pledge test.” A Boston criminal defense attorney can help you protect your rights if you have been charged with hazing, or any other crime. Continue reading

A criminal conviction in Massachusetts doesn’t necessarily mean the end of a case. If you feel that you’ve been wrongfully convicted of a crime, you may have a few more options. Depending on the circumstances surrounding your wrongful conviction, you may be able to move for a new trial with a new jury. But a judge will only grant a new trial if serious errors or injustices occurred during the original trial. More likely, you will request an appeal of the decision.

In an appeal, the defendant challenges his or her conviction, or the associated sentence. It is possible for the sentence to be challenged by itself, and not the underlying conviction. The appeal is heard by a higher court known as an appellate court. If successful, the appellate court will change the decision of the lower court. In certain cases, an appeal can end a case in its entirety, but generally an appeal simply takes the case back a few stages.

What if the Intermediate Appellate Court Upholds My Conviction?

The appeal process can seem to drag on forever. In most situations, the defendant will first appeal to an intermediate appellate court. If that court upholds the conviction, the defendant can then appeal to the highest court in the state. If still unsuccessful, the defendant can appeal to the U.S. Supreme Court. That is to say, if the higher court approves the request to review the case. A MA criminal defense attorney can help if you wish to file an appeal.

Appeals are generally reviewed only when the request is based on a legal claim made by the defendant during the trial. For example, if a defendant claimed that he was getting ineffective assistance from his counsel during the trial, his request is more likely to be reviewed than if he had stayed silent about his concerns until the trial had concluded.

And errors during the trial don’t guarantee a successful appeal. In order for an appellate court to reverse a conviction or reduce a sentence, the legal error must have likely contributed to the defendant’s guilty verdict. If the defendant’s constitutional rights were violated, however, the conviction may be reversed even if the violation didn’t impact the outcome. A Boston criminal defense attorney can help you determine how to proceed if you’ve been charged with any type of crime.

Can I Appeal if I Plead Guilty?

Yes. But your options are seriously limited. Guilty pleas are intended to be final. In rare situations, a conditional guilty plea may be granted with the ability to appeal a specific issue. In other cases, you may file a petition for something called a writ of habeas corpus. Habeas corpus presents an argument as to why a guilty plea should be withdrawn. For example, what if Bob plead guilty to an assault charge because he thought it was the best option? But new evidence shows that Bob actually acted in self defense? Bob may be able to file a petition for a writ of habeas corpus, with the hope that his conviction will be overturned. If the judge denies the request, he can appeal. Continue reading

Steven Avery, subject of the popular Netflix show “Making a Murderer,” was denied a new trial by a Wisconsin judge last week. Avery maintains his innocence in the 2005 murder of 25-year-old photographer Teresa Halbach. Despite the finding of new evidence in his case, the judge ruled that there simply wasn’t enough new information to sway the result in Avery’s favor. That being said, the judge was unaware of some key developments in the case. As such, Avery’s attorney has said that they are not giving up.

In June, Avery’s lawyer, Kathleen Zellner, filed a motion seeking a new trial. The motion, which consisted of more than 1,000 pages, claims that his conviction was based on false testimony.

The six-page decision to deny the motion, made by Sheboygan County Judge Angela Sutkiewicz, held that the motion not meet the standard for a new trial. Sutkierwicz went on to explain that the new evidence was too ambiguous to make a difference.

But Zellner has vowed to keep fighting. “We are filing an amended petition because we have additional test results and witness affidavits. The scientific testing is not completed,” she said. “We remain optimistic that Mr. Avery’s conviction will be vacated.”

Motion for New Trial vs. Appeal

In order for a convicted defendant to be granted a new trial, he or she must show that there is a reasonable probability that new evidence is strong enough to change the outcome. A motion for a new trial and an appeal are two entirely different things. For a new trial to be granted, there must be new evidence or evidence of injustice, such as juror misconduct. The following circumstances may warrant the granting of a new trial:

  • Jury misconduct
  • Court errors
  • Misconduct or prejudice on the part of the prosecution
  • Discovery of new evidence
  • Loss or destruction of trial record
  • Ineffective counsel

If any of the above scenarios exist, a new trial may be granted. In Avery’s case, the motion was requested on the basis of new evidence, but the judge didn’t consider the evidence to be compelling enough to grant the motion. If the court does not agree to vacate the past ruling in Avery’s case, he will have to file an appeal, which may or may not be successful.

Where a new trial provides the opportunity to have your case heard again by a new jury, an appeal is an opportunity to have a higher court review your original case for certain mistakes. It is not a new trial, and you cannot present new evidence. A MA criminal defense attorney can help you protect your rights if you feel that you have been wrongly convicted of a crime. Continue reading

The fall of 2017 will be a time of major decision making for the U.S. Supreme Court and its new Justice Neil Gorsuch. The Court will be deciding on a number of cases, but its focus on the following cases and criminal law issues is of particular interest to attorneys nationwide. A Boston criminal defense attorney can help you protect your rights if you’ve been charged with any type of crime.

Cell Phone Searches

Is cell phone location data simply routing information, or does it constitute conversational content? That is the big question in United States v. Carpenter, the case in which law enforcement officers used cell site data to incriminate Timothy Carpenter. The officers didn’t get a warrant before obtaining this information, and they used it to link Carpenter to locations at which several robberies had occurred. If cell phone location data is only a form of routing information, it is not protected by the Fourth Amendment. If, however, the Supreme Court decides that this information is a form of conversational content, it is protected by the Fourth Amendment, making law enforcement’s actions in the above case unconstitutional.

On Sunday, a Nevada man opened fire at a Las Vegas concert, killing 58 and wounding more than 500. Stephen Paddock used automatic weapons to shoot concertgoers from his room at the Mandalay Bay hotel. Following the massacre, police discovered .223 caliber and .308 caliber assault rifles, and other firearms that had been altered to operate as automatic weapons. Nevada had previously prohibited high-caliber automatic weapons under the 1994 Federal Assault Weapons Ban, however, that law expired more than 10 years ago.

The tragedy, which is the largest mass shooting in U.S. history, has everyone shocked, and baffled. According to his brother, Paddock wasn’t an avid gun guy. “Where the hell did he get automatic weapons,” said Eric Paddock. “He has no military background or anything like that. A MA defense attorney can help you protect your rights if you’ve been charged with a crime.

Where and how Paddock obtained these automatic weapons is as yet unknown. Some were probably purchased illegally. That being said, Nevada’s gun laws are some of the most relaxed in the nation. Gun owners are not required to register their firearms, or even to be licensed. In Massachusetts, gun laws are much stricter. In fact, MA’s gun laws are some of the most comprehensive in the country. Not surprisingly, MA’s violent crime rates are among the lowest in the country.

Are Gun Laws Really So Tough?

In order to purchase or carry a firearm in Massachusetts, a prospective buyer must be fingerprinted, receive safety training, take a test, and submit to a waiting period. In addition, law enforcement is involved in the entire process.

In MA, there are five different types of firearms licenses. These are:

  • RFID – Permits an individual to carry pepper spray or mace
  • FID – Permits an individual to carry pepper spray, mace, and long rifles
  • Class B license – Permits an individual to purchase long rifles and hand guns with no more than 10 rounds (concealment is not allowed)
  • Class A license – Permits an individual to purchase any firearm in MA, and includes concealment privileges
  • The 5th license – Permits the purchase of automatic weapons (for law enforcement only)

 

If you want to purchase a gun, you must first obtain a license of ownership. In order to obtain a license, you will have to complete an application, pay applicable fees, and be interviewed and fingerprinted at the local police department. From start to finish, it takes about 30 days. By integrating law enforcement into the process, implementing waiting periods, and making the license application so rigorous, purchasing a gun in MA is not an easy task. A Boston defense lawyer can help you determine how to move forward if you’ve been charged with a gun crime.

MA is Tough on Gun Dealers

As hard as the purchasing process sounds, MA gun laws are even more rigorous for dealers. In fact, MA has the harshest gun store laws in the country. Dealers must be licensed, maintain regular communication with the state, keep detailed records, allow inspections, and follow a long list of security regulations. Continue reading

Dr. Roberto A. Fernandez was sentenced to 97 months in prison for prescribing medically-unnecessary drugs to patients in exchange for financial kickbacks. In addition to his prison sentence, Fernandez was ordered to pay $4.8 million in restitution after he plead guilty to wire fraud and conspiracy to commit healthcare fraud.

Fernandez referred patients to pharmacies to obtain medications they didn’t need. In some cases, the prescribed drugs were contraindicated with other drugs the patients were already taking. As a thank you for the uptick in referrals, pharmacy owners rewarded Fernandez with kickbacks in the form of extra pain pills and fraudulent Medicare billing for services that never took place. Fernandez amassed an extensive network of co-conspirators; the fraudulent billing and pain pill scheme involved six health care facilities and racked up more than $20 million in false expenses.

According to the Department of Justice, Fernandez received kickbacks for “signing plans of care and prescriptions for medically unnecessary home health services.” The dishonest doctor also admitted to providing “prescriptions for expensive, name brand drugs, including HIV/AIDS medications that conflicted with other HIV drugs already prescribed to the beneficiaries.” Several of the pharmacy owners and healthcare professionals involved in the scheme with Fernandez are already behind bars. A MA criminal defense attorney can help you determine how to proceed if you’ve been charged with a crime.

Six Years of Fraud and Distribution

In addition to wire and health care fraud, Dr. Fernandez was charged with:

  • conspiracy to defraud the U.S. government by paying and receiving healthcare bribes and kickbacks.
  • conspiracy to distribute controlled substances.
  • distribution of controlled substances.

According to law enforcement, the fraudulent Medicare claims and illegal prescription of controlled substances, including opioids, had been going on for at least six years.

Fernandez is Not Alone

This latest health care scheme comes on the heels of a $1.3 billion national health care fraud crackdown, which involved 412 defendants, including 115 physicians, nurses and other licensed health care professionals. Those charged were involved in the illegal prescription and distribution of opioids and other narcotics. Attorney General Jeff Sessions announced the largest-ever health care fraud takedown in July.

“Too many trusted medical professionals like doctors, nurses, and pharmacists have chosen to violate their oaths and put greed ahead of their patients,” said Sessions. “Amazingly, some have made their practices into multimillion dollar criminal enterprises. They seem oblivious to the disastrous consequences of their greed. Their actions not only enrich themselves often at the expense of taxpayers but also feed addictions and cause addictions to start. The consequences are real: emergency rooms, jail cells, futures lost, and graveyards.  While today is a historic day, the Department’s work is not finished. In fact, it is just beginning. We will continue to find, arrest, prosecute, convict, and incarcerate fraudsters and drug dealers wherever they are.”

Penalties for Health Care Fraud

A conviction of federal health care fraud is a serious offense that may result in the following penalties:

  • Up to 10 years in prison for each offense
  • Up to 20 years in prison if the fraud resulted in serious bodily injury
  • Up to life in prison if the fraud resulted in death
  • Up to $250,000 per offense for false Medicare or Medicaid claims, up to billions for organizations that engage in multiple counts of health care fraud
  • Restitution to pay back money that was illegally obtained

A Boston criminal defense attorney can help you protect your rights if you’ve been charged with a crime. Continue reading

If you are caring for a child – whether your own or someone else’s – you have a legal responsibility to keep that child away from unreasonably harmful or dangerous situations. If you put a child in an unhealthy, inappropriate, or dangerous situation, or you don’t intervene to help remove a child from such a situation, you may be charged with child endangerment. In MA, child endangerment is a serious crime with equally serious consequences.

Children are vulnerable. As adults, it is our responsibility to protect them to the best of our abilities. Child endangerment, abuse, and neglect are punished harshly, and being convicted of any of these crimes can bring a lifetime of consequences. In addition to imprisonment and hefty fines, crimes related to child welfare can ruin your reputation, and negatively impact your ability to get a job or find housing for the rest of your life. Prosecutors can be especially aggressive when it comes to child endangerment cases; nobody wants to go easy on someone who harmed an innocent child. For this reason, child endangerment charges often get blown out of proportion.

OUI with a Child in the Vehicle

One of the most common types of child endangerment charges involves a parent who is arrested for OUI with a child in the vehicle. We all know that drunk driving is illegal, and that doing so with a child is even worse. But people make mistakes…even parents. Let’s say, for example, that Stacy goes to a friend’s house for dinner. She takes her four-year-old twins, Nolan and Chloe. Stacy has two glasses of wine with dinner, knowing that she’ll be fine to drive after a big meal and the passing of several hours. But Stacy’s mom calls from the hospital; she’s having heart palpitations. Stacy scoops up the twins and rushes to the hospital. In a panic, she fails to come to a complete stop at a stop sign and gets pulled over. The officer smells alcohol on Stacy’s breath, and asks her to get out of the vehicle. Stacy submits to a breath test, which registers a blood alcohol concentration (BAC) of 0.09. Stacy is arrested for OUI and winds up facing additional charges for child endangerment.
Common Types of Child Endangerment

The point of the story above is not that Stacy didn’t do anything wrong. She did. Rather, it is to illustrate that even a good parent can make a mistake that endangers a child. In the above case, the prosecution may paint a very different picture of Stacy. Over-dramatizing child endangerment cases is very effective for the prosecution. For this reason, it is crucial to work with a highly-experienced Boston criminal defense attorney if you have been charged with child endangerment or a similar crime. Common types of child endangerment include:

  • OUI with a child in the vehicle
  • Failure to properly secure a child in a moving vehicle (car seat, seat belt, etc.)
  • Exposing a child to drug use, manufacturing, or distribution
  • Failure to properly secure firearms in the presence of a child
  • Leaving a young child without supervision
  • Engaging in sexual activity in the presence of a child

The interesting thing about child endangerment laws is that they are intended to punish behavior that could harm a child, but a child doesn’t need to be harmed for a conviction to occur. For example, if loaded firearms are kept in reach of a child, the responsible adult could be convicted of child endangerment even the child never touched one of the firearms. Of course, cases involving actual harm will generally be punished more severely than those that do not result in injury. A MA defense attorney can help you protect your rights if you’ve been charged with child endangerment.

Intent is also considered when determining punishment in a child endangerment case. If the adult did not intend for the child to be exposed to the harmful situation, the penalties will likely be less severe than if he had. That being said, intent is not necessary to convict someone of child endangerment. As long as a reasonable person would have realized that the situation was dangerous, that is generally enough to convict. For example, leaving a young child in a car unattended can be a form of child endangerment. However, leaving a child in an air-conditioned car for five minutes is very different from leaving a child in a hot car for 45 minutes. In the first scenario, a reasonable person wouldn’t necessarily consider the situation to be dangerous, whereas most reasonable people would find the second scenario to be dangerous. Continue reading

Following a criminal conviction, individuals are sometimes released back into the community with specific restrictions. This system – known as probation – may be served in lieu of, or in addition to, time behind bars. With probation comes an extensive list of potential restrictions, including regular meetings with a probation officer, drug testing, and even location monitoring via an electronic device. The particulars of your case, including past criminal history, will factor largely into the terms of your probation.

But What if I Violated these Terms?

It shouldn’t come as a surprise that the punishment for violating your probation terms will depend on the severity of that violation. For example, if you missed a meeting with your probation officer because you overslept, you might just get a slap on the wrist. However, if this is the third time you “overslept,” or if your violation was more serious, the punishment may be significantly harsher. Below are some potential consequences of violating your probation:

 

  • You get off with a warning. If your violation was unintentional, or relatively minor, you may just get a warning from your probation officer. However, the warning will likely come with a notice that subsequent violations will subject you to harsher punishments. A MA criminal defense lawyer can help you protect your rights if you’ve violated the terms of your probation.
  • You get ordered to appear at a probation hearing. If your violation is more severe, or you’ve received multiple warnings in the past, you may find yourself at a probation hearing. At this hearing, a judge will determine whether you did, in fact, violate your probation. If a violation occurred, the judge may add more restrictions to your terms, extend the period of your probation, or outright revoke it.
  • You get ordered to pay fines. You may have already paid fines, but a judge can order you to pay additional fines for violating your probation. A Boston criminal defense attorney can help you determine how to proceed if you’ve violated your probation.
  • You get sent to jail or prison. Depending on the severity of your violation, and the severity of the underlying offense, you may find yourself behind bars. Even worse, your jail sentence may be longer than it would have been for the original crime.

Common Conditions of Probation

Probation conditions can be few, or they can be extensive. Judges will often tailor the conditions to match the crime, as well as the individual’s history. Common conditions include:

  • Rehabilitative terms, such as group therapy, random drug testing, and avoidance of certain people
  • The payment of fines and court fees
  • The payment of victim restitution
  • The completion of community service
  • The requirement to not commit another crime
  • The requirement to obtain employment or education
  • Compliance with court orders
  • Regular visits with a probation officer
  • The requirement to not leave the state
  • The requirement to not possess any weapon
  • Prohibition of all drugs and alcohol

Common Probation Violations

There are a million ways in which an individual can violate his or her probation. Some of the most common include:

  • Failure to appear for a scheduled court hearing or appearance
  • Failure to report for a scheduled meeting with your probation officer
  • Failure to pay required fines or victim restitution
  • Traveling across state lines without permission
  • Visiting people or places you are prohibited from visiting
  • Drug use, possession, or sale
  • Committing another criminal offense
  • Getting arrested

Continue reading

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