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.


When we left off yesterday, Attorney Sam’s Take was discussing the concept of conspiracies. In a criminal conspiracy one merely needs to act in furtherance of the overall conspiracy in order to be charged as being part of that conspiracy. Let’s assume, for example, that there is a drug trafficking conspiracy going on between Boston, Massachusetts, and Barbados. In the conspiracy, the drugs are brought in from Barbados in flown to various locations in the United States. In one particular event, the plane needs to land in Boston.

Let’s say that Freddy Flyer owns an airplane which he keeps, naturally, in an airplane hangar. Let’s also say he makes an arrangement with the drug delivery man to have his plane out of the hanger on a given night so that they can park the drugs in there while they preparing them for sale. In such a case, Freddy would be part of the drug conspiracy. As a part of that conspiracy, he Can be charged with actions taken by other people in the furtherance of the conspiracy. for example, if, in order to get the plane to bring the drugs over, the pilot had to steal the plane. In this case, Freddie could be held liable for the theft of the plane.

Now let’s move Freddy to a position a little more removed. Let’s say that he was not aware that the reason he was supposed to move the plane was because of the delivery of drugs. However, it turns out that the circumstances in which Freddy met with the drug delivery man were so suspicious that he really should have known what was going on. In fact, it is difficult to believe that he did not know what was going on. This is when the federal theory of “willful blindness” comes into play. Another way to put “willful blindness” is to say “looking the other way”. To break it down further, the law considers taking an attitude like “look, don’t tell me. I don’t want to know.” as just about as good as knowingly and willingly joining in the conspiracy.

I actually handled one such case in federal court in Boston. We were fortunate enough to win that trial. Others, similarly situated, were not. The bottom line is that these theories have teeth. They can bring about a conviction.

We began this topic by discussing the federal multi defendant bust which recently took place. I was talking about becoming nervous when people not involved in an alleged criminal conspiracy are swept up in the large scale fancy named operation to attack the conspiracy.

Let’s say that Jerry Janitor works at a particular school in Boston. He opens and closes the building. Occasionally, Donnie and Dorena Drugdealer use the basement when the building is closed to prepare drugs for sale. On this particular night, Connie Conspirator started flirting with Jerry and invited him out for drinks. She is so intoxicating herself, that she is able to distract him from remembering to lock up the school building when he leaves at night. Donnie and Darina go into the building and begin to work. An hour or so later, the police raid takes place. Darina and Donnie are, of coarse, arrested.

But now, the police want to know how they got into the building. They learned that Jerry was supposed to have locked up the building but, this particular night, he failed to do so. Jerry explains about the beautiful Connie. However, the investigators are unimpressed. They decide that he left the building unlocked so that the drug dealers could come in. Therefore, he is Considered part of the conspiracy.

“But Sam, is there really enough to convict Jerry?”

I would say that there isn’t. However, I am a defense attorney. What would you expect? I will tell you this however. There is certainly enough there for him to be charged. And whether or not they believe it to be a strong case against Jerry, the government is likely to bring those charges.

“Why would they do that?”

If for no other reason, bring pressure upon him. They don’t know what he knows. Therefore, because of the pressure of a federal indictment hanging over his head, Jerry might be squeezed to give out any information he might have. At the very least, he might be able to shine some light as to how this particular event took place.

“And what if Jerry simply doesn’t know anything that would help them?”

Then Jerry’s life is about to be ruined for no particular reason.

“Well, if he is not convicted, his life isn’t going to be ruined, right?

You tell me. Let’s assume he is found to be not guilty. The suspicion, of course, is still hanging over his head. Do you believe that the school is likely to hire him back as the janitor? Do you believe that they would have held onto him as an employee while the charges were pending? What about the stress and financial costs of having to defend himself?

In other words…wrong.

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