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.

Attorney Sam’s Take: Criminal Defense Attorneys Claim Their Clients In Drug And Identity Theft Cases Are Not The Guilty Parties

There are many types of defense in the criminal justice system, They are the same in Boston as they are anywhere else. “SODDI”, Some Other Dude Did It, is one of the most popular ones. When the Commonwealth’s finger of accusation is pointed at a suspect, said suspect rarely points his or her finger in the same direction. Usually, it is in the direction of somebody else.

We have discussed many times how prosecution witnesses will often make deals with the government to provide testimony (true or not) against a defendant in whom the government has greater interest in prosecuting.

Prosecution witnesses, of course, are not the only ones who are willing to pass the prosecutorial buck in order to avoid a lifetime in involuntary Commonwealth housing. Two stories this week take such strategies to a new level. Allegedly.

Let’s take the case of Mr. Demare Gary, 19, (hereinafter, Daddy Defendant”) , for example. This Roxbury gentleman stands accused of stashing crack cocaine in the shoe of his Three-year-old daughter. While the Commonwealth may insist that he tried to avoid discovery of the drug by planting it on the little girl, his attorney is claiming that he is actually “taking the fall” for someone else.

Usually, possession can be actual or constructive. Here, the child was in actual possession of the drugs. Declining to prosecute the three-year-old as a drug dealer, the government alleges that Daddy Defendant constructively possession the crack.

As we have discussed in the past, one can still be deemed to possess an item even though it is not on his person. You are grateful for this, by the way, every time you leave your home in the morning and return to it at night still having ownership rights to all that is inside the home.

Anyway, Daddy Defendant apparently confessed to stashing the drugs on the child. His attorney, however, does not believe him. He claims that his client is not guilty of the charges facing him, namely, child endangerment and drug trafficking charges.

Bail has been set for Daddy Defendant in the amount of $2,000 cash.

The drugs came to light not when the three-year-old was attempting to do a hand-to-hand sale, but when she complained to staffers at her school that t one of her shoes hurt. When staffers took the shoe off, they found 17 bags of crack cocaine, police said.

After “turning” the juvenile drug “mule”, the police went to her family who willingly pointed the finger at Daddy Defendant. He agreed with them, explaining that he had forgotten that he had put the drugs there.

Forgetting where you misplaced the narcotics, by the way, is not a defense to possession.

Actually, the three-year-old reportedly disagreed with the rest of the family. She is said to have told the police that, “My mommy put it in my shoes and said it was candy.”

But, apparently, the police did not believe her.

Leaving behind this particular whodunit, the case(s) of Bayron Guity, 24, (hereinafter, “Teflon Defendant”) reflect his own alleged brand of “trick or treat” in Salem this Halloween season.

Well, actually, the emphasis is on the “trick” part.

Were you one of his recipients?

There are three unlucky winners of Teflon Defendant’s “Who Will I Be Next” game out there who may not even know that they now have criminal records, according to police, courtesy of a 2005 Salem High School graduate who has racked up a series of arrests…under other peoples’ names. It was a routine traffic stop in late October that led to this investigation. The police stopped a car in Salem and the driver gave his name as “Darwin Amaya.”

Police then found a Massachusetts identification card issued by the Registry of Motor Vehicles. However, it had a different name, “Andres Rivera,” with a different address. So, the officers booked him under the Rivera name and charged him with giving them a false name.

That sounds logical enough, but it turned out that both names were false.

The matter was handed over to Salem police Detectives and they submitted the prints they took from “Rivera” to state and national fingerprint databases.

Guess what?

The prints matched ones taken during a 2004 arrest of a “Darwin Amaya” and a 2005 arrest of one “Edwin Estoloza” in Peabody. Checking further with the FBI, the detectives found out that the prints also matched an “Andres Rivera” arrested in Clarke County, Ga.

Gathering all the information, the police concluded that the three names belonged to the same person…but who was he?

The investigation finally led to a public housing project near Salem State University. There they were greeted by Celia Chamorrow, who looked at the photos and identified them as her son, Guity.

Thanks, mom!

The Teflon Defendant is now residing with Commonwealth law enforcement officials. Bail was set at $50,000 and he has been charged with three counts of identity fraud and misuse of a motor vehicle document.

No need to worry about the high bail though. If he makes it, he will only move as far as local immigration officials. You see, they have obtained a warrant for the native Honduran. You see, conviction of this scheme is grounds for deportation for a non-citizen.

You see, criminal investigations can come to your doorstep at any time. Maybe the source of suspicion is your toddler who is toddling around school with illegal drugs in her shoe. Maybe the “brilliant” maneuvers you thought had succeeded years ago turned out not to be so successful. Or…maybe somebody else has used your identity and earned an arrest warrant in your name.

Guilty, innocent or in between, my suggestion is the same as always. Do not fight with, try to outsmart or flee from law enforcement. Merely politely comply with processing and leave all the other maneuvers and conversation for an experienced criminal defense attorney when one is found.

Should you wish to discuss a criminal case with me, please feel free to call me to arrange a free initial consultation at 617-492-3000.

For the original story upon which today’s blog is based, please go to http://www.boston.com/news/local/breaking_news/2010/11/crack_discovere.html?p1=News_links and http://www.salemnews.com/local/x967713775/Police-Salem-man-used-fake-names-during-several-arrests

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