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.

FEDERAL DRUG DEFENDANT (GRANDMA) IS OUT OF LUCK`

The last Attorney Sam’s Take of the week is about a story which does not come from Massachusetts, although it could. It involves the federal criminal justice system and a practice which takes place all the time here in Boston’s Federal Court.

It is the case of Elisa Castillo (hereinafter, the “Defendant”). The 56-year-old grandmother had no prior record when her criminal justice woes began.

You see, a few years ago, the Defendant’s beau urged her to enter into a business arrangement with another gentleman which involved the purchase of three tour buses which would travel between Mexico and Houston. The gent would front the money and the buses would be put into her name.

Guess what?

The buses were apparently used for a bit more than simple tourism. It turns out the buses were fitted with secret compartments enabling the smuggling of cocaine across the border. A criminal investigation resulted in conspiracy and drug charges for 68 people…including the Defendant. The charges involved the transportation of at least a ton of cocaine.

She was in pretty heavy duty company in court. Among those charged were allegedly drug capos and other “known” crime bosses who had multimillion dollar prices on their heads before their capture.

However, the bigger fish had bargaining chips. They knew information about even bigger fish that they could offer the feds in return for a sweeter deal.

The Defendant claims she would have been more than happy to give information to federal prosecutors…if she had any. Unfortunately, she indicated that she did not know about the drug courier bus use and, in fact, was not involved with the criminal element until this particular fiasco. And even in that matter unknowingly.

Her lack of criminal history, by the way, would suggest that this is true. And so, assuming some truth to her lack of knowledge, she is penalized by not having the criminal history that would enable her to make a good deal.

More bad news for the Defendant. She claimed to be innocent. She insisted that she was tricked into unknowingly helping this operations by making the bus available. So, she exercised her right to go to trial.

…And so she went to trial on the big drug conspiracy case. Although the government never claimed she had first-hand involvement, such as touching the drugs or making money off of them, she was found guilty of being the manager.

So…what do you think the Defendant’s sentence was?

Here is a hint…it was harsher than those received by anyone else in the case.

Ready?

Life without the possibility of parole!

Attorney Sam’s Take On Federal Criminal Discretionary Prosecution

As mentioned, this matter did not happen in the Commonwealth. However, what happened in it could happen anywhere, particularly in the federal system.

During my many years as a Boston criminal lawyer, I have watched as the typical scenario plays itself out. It has not mattered who the particular United States Attorney was in office. It is simply policy.

We have discussed it many times.

A Conspiracy is alleged. Many folks may or may not be involved. Some almost certainly are not involved, but may or may not have information that would be valuable to the prosecution of this or other matters. So, when it is time for the charges, an enormous net is thrown over everyone.

Then, it is bargain-time. Who has enough criminal ties to help the prosecution? We can talk another time about whether this procedure really brings reliable information. For example, Whitey Bulger was one such reliable witness and now he is considered the second coming of Satan.

The thinking is, even if there is little chance of conviction, it is worth charging such people because they might have this information. If it ruins lives…well, those lives should never have gotten entwined with a criminal enterprise, right?

Allegedly, I mean.

We are left with a system which, if there really is any truth to that “presumption of innocence” rumor, that will punish the non-guilty.

“But, Sam, isn’t that the way prosecutions are done all over? Making deals with bad guys to get worse guys?”

Sure. But look at what happens in this case. Nobody is claiming that the Defendant is a “bigger fish” than the other defendants. At worst, she is the bottom of the barrel. Yet, she is looking at a life sentence.

I have seen cases where criminal charges are threatened against people against whom there is really no case just to force them to give information that the prosecution has decided they have. If the person continues to insist they don’t have the information, then the criminal charges come.

“But if there is no real case, they are likely to be found ‘Not Guilty’, right?”

Not always, but let’s assume so for the sake of argument.

“So then…no harm – no foul, right?”

Sure. If you consider a criminal record (just for being charged), the loss of thousands of dollars to pay a lawyer, destruction to a career and home life and the ongoing look of suspicion “no foul”.

Do you? Would your life withstand it?

Either way, have a great, safe and law-abiding weekend!

For the original story upon which this blog was based, please go to http://www.takepart.com/article/2012/05/22/grandmother-receives-life-prison-first-time-drug-offense

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