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.

“THE POLICE SAY I MADE THREATS TO COMMIT A CRIME AGAINST SOMEONE. CAN I BE PROSECUTED FOR THAT?”

We are going through a rather bumpy ride through this political season. Insults are being handed out like candy, including against the Commander-In-Chief. However, there are limits (at least, as to most presidential candidates) which folks are supposed to know they cannot breach.

Do you know what they are?

Alex Hernandez, 31 and hereinafter the “Defendant” may have missed that particular memo.

The Defendant, an inmate at Old Colony Correctional Center in Bridgewater, has been charged with threatening to kill President Barack Obama.

The charges were brought Monday with two counts of threatening to kill the President and inflict bodily harm upon him.

You may be wondering how in inmate in state prison got out to threaten the President.

Well, actually, he didn’t.

What apparently happened was that federal agents launched an investigation in March 2015 after an unnamed inmate told someone that the Defendant, another inmate, had told him that he wanted to kill the president in a “lone-wolf style attack.”

The Defendant is also alleged to have said that he wanted to “become a mujahedeen,” or holy warrior, and get false travel documents to flee the country after the attack.

The Boston Herald  also tells us that authorities say the Defendant had images in his prison cell of late al-Qaida chief Osama bin Laden and Islamic State militants holding assault weapons.

If convicted, the Defendant faces up to five years in prison (aside from whatever other sentence he is currently serving).

In case you are wondering, it is not a crime to have those posters or pictures on one’s wall. I would imagine it is not even against to prison rules given that they had been up in the first place.

 

Attorney Sam’s Take On Opinions And Other Comments That Can Land You In Custody Within The United States In 2016

I have to confess that I had a rather vivid fantasy life as a child. I’m sure glad that I was not a kid in this particular day and age because I did not always keep my mouth shut about such things.  Before the investigation begins, no, I was not fantasizing about killing government officials).

I also have to admit some confusion when clients of mine stand accused of inciting others to assault someone, they get criminally charged. Likewise, when a client is accused of actually assaulting someone, but my client says that it was an accident or that it was the complainant assaulting him, charges are pressed and we are told that the Commonwealth will leave it to the jury to decide the truth.

Over the past months, these rules do not seem to apply to everyone. Well, at least to one particular presidential candidate and his staff.

But I digress.

You may think that you have to contact someone and actually inform him/her that you are going to hurt or kill them in order to be charged with making threats. This is not always true.

Likewise, you may believe that it actually has to be an imminent threat and something that is credible in order for you to be criminally charged.  Nope.

Think it has to be an outright statement of intent that you are actually going to commit the deed? Nope again.

First of all, what you probably know is that if you actually tell someone that, “I am going to break into your house some night and repeatedly smash your head with a hammer”, you are committing the crime of threatening to commit a crime. The more deadly the threat, the heavier the crime.

What you may not realize is that you do not have to be so specific. There have been cases where someone says, “Somebody should kill that S.O.B”. Such a case can be prosecuted. Similarly, telling Betty Bigmouth that you are going to “pop a cap” into Andy Annoying is a threat, although not made to the particular target. However, these days, it can be prosecuted.

“Sam, what if it is clear that I do not have anything with which to ‘pop’ that ‘cap’?

Doesn’t really matter. You could always get one.

“What if I have a gun, but it is empty and I point it at someone and don’t say anything?”

That’s called “Assault With A Dangerous Weapon” and you can go to jail for it.

“But what if I just say that someday, I might just kill Andy Annoying, but it is clear that there is no way I could do it now?”

Well, that’s a good question. I would say that they could pursue charges. After all, that is essentially what happened with the Defendant here. The Defendant was in prison, serving time, in the Commonwealth of Massachusetts. The President is nowhere near here, is heavily guarded and is unlikely to be visiting the prison any time soon.

There is a question of credibility of the informant, but let’s ignore that for the moment.

Anyway, the Defendant is being prosecuted for stating what amounts to an opinion and a fantasy Something there is no way he could do.

“So, what are you saying, Sam? That sometimes it depends who you are talking about? That law enforcement picks and chooses which times it will seek charges against someone?”

Oh, now, that’s a topic for another day. At least one other day.I will mention one final, though.

Prosecutorial Discretion

Contact Information