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.

Articles Posted in Criminal Law

Beginning in 1996, federal law made it illegal for any person convicted of domestic abuse to purchase a firearm. But in the more than 20 years since that law passed, countless mass shootings have been perpetrated by individuals with a history of spousal abuse. Recently, a man convicted by the Air Force of beating his wife and stepson opened fire at a church in rural Texas, killing 26 people. How did Devin P. Kelley obtain an AR-15 military-style rifle after a domestic abuse conviction? According to the Air Force, his conviction was never entered into the National Criminal Information Center database.

“I am deeply disturbed — in fact, outraged — that this domestic violence conviction was apparently never reported, and what concerns me equally is the possibility that it’s only one example of non-reporting by the Department of Defense,” said Senator Richard Blumenthal, in a recent interview.

Massachusetts Laws on Guns and Domestic Violence

As of 2014, anyone convicted of a crime of domestic violence is prohibited from owning a firearm in Massachusetts. This is even true of misdemeanor convictions. In MA, domestic abuse includes any act of violence or abuse committed by one member of the household against another. Abuse includes:

  • causing or attempting to cause physical harm,
  • putting someone in fear of serious bodily harm, and
  • threatening or forcing another to have sexual relations.

And domestic abuse isn’t always physical. It can be emotional or sexual, and can even involve neglect or financial abuse. Domestic abuse crimes include:

  • assault,
  • violation of a 209A abuse prevention order (restraining order), and
  • intimidation of a witness.

What About Restraining Orders?

In MA, the issuance of a 209A abuse prevention order will automatically disqualify you from having or obtaining a License to Carry Firearms (LTC), or a Firearms Identification Card (FID). Regardless of whether the order is temporary, permanent, or an emergency order, you will have to surrender all firearms to the police. Once the order is lifted, you may be able to get your FID reinstated, and your firearms may be returned to you. A Boston criminal defense attorney can help you determine your rights if a protective order has been issued against you.

Can I Seal a Domestic Abuse Conviction?

In addition to the prohibition on buying or possessing firearms, any type of domestic violence conviction can negatively impact your ability to get a job or find housing for years into the future. In some cases, you may be able to get your conviction sealed, effectively hiding it from background checks conducted by employers and landlords. Once your record is sealed, only law enforcement agencies will have access to your criminal record. In rare cases, your sealed record may be accessed if you apply for a firearms license.

If your conviction was for a misdemeanor, you must wait five years to have your record sealed. The waiting period for a felony is 10 years. A MA defense lawyer can help you determine if you are eligible to have your criminal record for domestic violence sealed from public view. Continue reading

We’ve all been stuck behind a slow driver in the left lane. It can be frustrating, aggravating, even infuriating. But should it be illegal? Most states have addressed the issue of left lane “slowpokes” through legislation, signs, or fines. Proponents of these laws argue that driving slow in the left lane is as dangerous as speeding because it frustrates people to the point of road rage. Some states – including  Georgia, Nevada, Oklahoma, Tennessee, and Virginia – have recently adopted tougher laws and enforcement to keep people out of the left lane, unless they are passing.

Some states, such as Missouri and Michigan are using a subtler approach to educate and inform. Missouri uses funny signs, such as “Camp in the Ozarks, not the left lane,” and Michigan troopers turn traffic stops into teaching opportunities with the state’s newly-launched “Southpaw Initiative.” Violators are stopped and educated about left lane driving and how it can disrupt the flow of traffic. A Boston criminal defense attorney can help you determine how to proceed if you’ve been charged with a crime during a routine traffic stop.

A Violation of Rights?

Although most of the violators in Michigan’s Southpaw Initiative were let off with just a warning (key word, most), critics are concerned about the possible implications. Charles E. Sydnor III, a Democrat representing Maryland’s Baltimore County, said he was recently pulled over in Virginia for a left-lane violation. He claims to have been preparing to make a left turn.

“Once you incentivize law enforcement to go after people in the left lane, it could be a pretext to pulling people over for no reason,” said Sydnor.

But despite the potential for such laws to encroach on our constitutional rights, states are increasingly likely to adopt left lane-related laws in order to reduce traffic congestion. Oklahoma’s new law, which went into effect last week, imposes a fine of more than $200 for drivers who hang out in the left lane too long. A MA criminal defense lawyer can help you protect your rights if you’ve been charged with a crime during a routine traffic stop.

“I believe it has caused some road rage incidents,” said Oklahoma State Trooper Dwight Durant, and spokesman for the state’s Highway Patrol. “It’s caused some collisions with property damage, personal injury and even death. We’re hopeful this new law will cut down on that.” OK has also installed 234 signs across the state warning drivers to avoid clogging the left lane. And effective July 1, Nevada and Virginia are carrying fines of up to $250 for the same.

How to Gently Nudge Left Lane Hogs Out of the Passing Lane

Due to the dangers of slow driving in the left lane, minimum speed limits are typically posted on highways. Anyone driving below the minimum speed can be ticketed and fined. These folks usually fall into one of four categories: distracted, “leaf peepers” or tourists, new drivers, and the elderly. If you encounter a slow driver, or someone who just won’t leave the left lane, avoid aggressive tactics to get them to move. Instead, safely pass the slow driver. If passing isn’t possible, gently urge the driver to speed up or move by following the advice below:

  • Keep your cool and have patience
  • Flick your headlights a few times
  • Calmly tap your horn

If they still won’t budge, take a few deep breaths and count your blessings. It could be worse. Continue reading

Tim Piazza, a 19-year-old sophomore at Penn State University, died last year due to injuries sustained in a hazing incident. The Beta Theta Pi fraternity, which was supposed to be alcohol-free due to a previous suspension, led Piazza and several other pledges through a hazing ritual dubbed “the gauntlet.” Surveillance videos show a heavily-intoxicated Piazza falling several times throughout the night, including once down a flight of stairs. In total, 18 Beta Theta Pi members were criminally charged for their involvement in Piazza’s death.

In September, Judge Allen Sinclair threw out several charges against fraternity members, including some of the most serious. But last week, Pennsylvania District Attorney Stacy Parks Miller refiled some of those charges, including those for involuntary manslaughter and aggravated assault. “Today we refiled the previously dismissed charges for Tim Piazza’s unnecessary death,” said Parks Miller. A Boston criminal defense lawyer can help you determine how to proceed if you’ve been charged with a crime.

Piazza’s family believes that the reckless behavior of the defendants was directly responsible for the death of their son. According to their official statement, the fraternity brothers abandoned Piazza when they realized he was in “dire trouble.” In addition to seeking justice for their son, the family also wants to ensure that this type of behavior is stopped.

“Had it not been for the crimes committed that night, Tim would be with us today,” said Piazza’s family in the statement. “This is about bringing justice to a group of individuals who felt they were above the law and entitled to abuse and torture others because it was ‘tradition.’ This is also about justice for Tim and making a statement that this behavior is not acceptable and cannot be allowed to continue to harm others.”

Are Universities Responsible?

In one of recent history’s largest criminal cases against a fraternity, 18 members of Beta Theta Pi were charged in more than 1,000 counts. Piazza’s death has prompted a nationwide discussion about university oversight of fraternities. Penn State claims it was not responsible for enforcing the fraternity’s prohibition on alcohol, and has since banned the chapter from the campus.

“This is a huge challenge because we don’t own the houses, we don’t own the property, we aren’t the national organization governing fraternities,” said Penn State’s president, Eric Barron.

In addition to the aforementioned felony charges, other charges against fraternity members include reckless endangerment, tampering with evidence, furnishing alcohol, and hazing. A MA defense lawyer can help you protect your rights if you’ve been charged with any type of crime.

University Crack Down

The Piazza case is just one of several deadly hazing rituals at U.S. colleges and universities in recent years. Deaths at Baruch College, Fresno State University and Northern Illinois University, among others, may have been chalked up to “boys being boys” in years past. But each of these hazing-related deaths has resulted in criminal charges. Institutions of higher learning are also cracking down on binge drinking and sexual assault, banning hundreds of fraternity chapters from operating on campus, and prohibiting freshman from pledging at all. Continue reading

If you are stopped on suspicion of drunk driving, you are guaranteed certain constitutional rights. For starters, you have the right to remain silent if you are placed under arrest. Police will generally inform you of this right by reading the “Miranda warning” at the time of your arrest. But your rights don’t stop there.

Fourth Amendment Rights

The fourth amendment to the U.S. constitution protects against unreasonable search and seizure. When the search and seizure pertains to a motor vehicle, police are generally required to have probable cause in order to make a traffic stop. If the officer cannot show that there existed a reasonable suspicion that a law was being broken, any evidence obtained during the traffic stop may be thrown out. This includes breath and blood test readings. A Boston criminal defense attorney can help you determine how to proceed if you’ve been charged with OUI.

Fifth Amendment Rights

The fifth amendment includes the right to remain silent, which also happens to be the first right of the aforementioned Miranda warning. But the fifth amendment also provides several other rights and protections, including a prohibition on double jeopardy, and the right to not self-incriminate. Police are not required by law to read you the Miranda warning, but anything you say may be inadmissible in court if they fail to do so. That being said, anything you say before you are arrested is fair game.
Sixth Amendment Rights

The sixth amendment guarantees the assistance of legal counsel to anyone who is placed under arrest. Basically, this means that if you can’t afford an attorney, one will be provided for you. That being said, it is generally a good idea to hire private counsel, even if you qualify for a public defender. The cost of a good OUI attorney can save you lots of money, and heartache, in the long run.

OUI Penalties in MA

If you get convicted of OUI, the penalties will depend heavily on the particulars of your case, whether it’s a first offense, and prior criminal history. Penalties may include:

  • First offense: Fines between $500 and $5,000, one-year license suspension, and up to 2.5 years in jail.
  • Second offense: Fines between $600 and $10,000, two-year license suspension, up to 2.5 years in jail w/ mandatory minimum of 30 days.
  • Third offense: Fines between $1,000 and $15,000, eight-year license suspension, up to five years in prison w/ mandatory minimum of 150 days. This is a felony charge.
  • Fourth offense: Fines between $1,500 and $25,000, 10 year license suspension, up to five years in prison w/ mandatory minimum of one year. This is a felony charge.

If you’ve been charged with OUI or any type of crime, a MA criminal defense attorney can help you protect your rights. Continue reading

Unfortunately, domestic violence is not uncommon in this country. Although the term domestic violence usually brings to mind the image of an abusive husband or boyfriend, this offense actually covers a broad range of criminal behavior. When a person subjects a parent or grandparent, child, cohabitant, or current or ex-partner to unlawful physical or emotional injuries, that person may be charged with domestic violence.

Domestic violence can involve physical abuse, such as when a parent strikes a child, and emotional abuse, such as when a husband forbids his wife to leave the house. Domestic violence – which may also be called domestic abuse, dating violence, and spousal abuse – occurs when one person in one of the aforementioned domestic relationships puts down, attempts to control, or physically harms the other.

Types of Domestic Violence

Domestic violence comes in many forms, and many victims experience multiple forms of abuse. Some of the most common types of domestic violence include:

  • Child endangerment is one lesser-known type of domestic violence. This form of abuse occurs when a caretaker places a child in a high-risk situation.
  • Elder abuse refers to the abuse or neglect of a person age 65 or older. In addition to physical and emotional abuse, this offense encompasses financial exploitation and abandonment.
  • Domestic sexual abuse can take many forms, from forcing a spouse to engage in unsafe sex practices to incest and rape of a child.
  • When an intimate partner, or a child caring for an elderly parent or grandparent controls the victim by withholding or stealing money, this type of financial abuse can be a form of domestic violence.
  • Stalking involves repeatedly harassing and threatening a victim, showing up at his or her home or place of employment, leaving harassing voicemails, and repeatedly sending unwanted emails or texts. A MA stalking defense attorney can help you determine how to proceed if you’ve been charged with stalking or cyber-stalking.
  • Teen intimate partner abuse occurs with shocking frequency; up to 12 percent of all teens in grades 7 through 12 have been victims of physical abuse by their teen partner, and about 20 percent have been victims of psychological abuse. Teen intimate partner abuse dramatically increases the victim’s risk of developing risky behaviors, such as practicing unsafe sex, using drugs, eating disorders, and suicide. Further, teen victims of domestic violence are more likely to become victims again as adults.

Studies show that domestic violence affects up to five percent of adult relationships in this country alone. About two million of those victims are women. In 2003, domestic violence was involved in approximately 1,300 deaths. And about 50 percent of all women who are murdered are domestic violence victims.

Depending on the severity of the charge and whether the defendant has a criminal record, domestic violence can be a misdemeanor or a felony offense. If the victim is a child, a felony charge is more likely. If you are charged with domestic violence you may have to pay hefty fines, perform community service, attend anger management programs, and submit to a restraining order. You may also see time behind bars. A Boston domestic violence defense attorney can help you determine how to protect your rights if you’ve been charged with domestic violence or any other crime. 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

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

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