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 Felonies and Violent Crimes

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

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

In the past, arson referred to the crime of burning someone else’s home or property while the structure was occupied. It was intended to protect the lives of anyone who happened to be inside the burning structure. However, the modern definition of arson is quite different. Today, the property being burned no longer has to be a home with people inside. It doesn’t even need to be a structure. Burning another’s land, vehicle, or other personal property without their permission is an act of arson.

To prove arson, the prosecution must be able to show that you intended to burn the property, and that you acted without permission. Intention is important, because accidentally burning someone else’s property does not constitute arson. If you purposefully set fire to a neighbor’s fields, this is arson. If the fire was accidental, it is not. In some cases, reckless behavior that results in the burning of another’s property may lead to arson charges.

You can also be charged with arson for setting fire to your own property, but only under certain circumstances. The act must be committed for fraudulent purposes. If you purposely burn down a dilapidated shed on your property, this is not arson. But if you burn down your garage to collect insurance funds, this is arson. A Boston criminal defense attorney can help you protect your rights if you’ve been charged with arson or any other crime.

Penalties for Arson in MA

As with any crime, the penalties for arson are largely dependent on the severity of the crime, and prior criminal history. Arson can be a misdemeanor or a felony, depending on several factors. Felony arson generally involves setting fire to a home or dwelling while people are inside. If convicted of arson in MA, you may be facing:

  • Up to one year in jail, for misdemeanor offenses.
  • A prison sentence of between one and 20 years, for felony convictions.
  • Up to life in prison, if the crime was intended to kill or harm occupants of a dwelling.
  • Fines of between a few thousand dollars and fifty-thousand dollars, or more.
  • Restitution (a financial payment intended to compensate victims for any damages suffered).
  • A probation sentence of at least 12 months, and up to five years.

Section 111A of Massachusetts General Laws Chapter 266 holds that:

Anyone who intends to injure, defraud or deceive any insurance company shall be punished with a prison sentence of not more than five years, or by imprisonment in jail for not less than six months and not more than two-and-a-half years, or by a fine of at least $500 and not more than $10,000. A MA defense attorney can help you determine how to proceed if you’ve been charged with arson. Continue reading

The answer to this question is that of the answer to most legal questions, it depends. An OUI can be a misdemeanor or a felony, depending on multiple factors. Was this your first OUI or your fourth?  Was anyone injured? Were there any aggravating circumstances, such as drug possession, at the time of your arrest? Third or subsequent OUIs are considered felony offenses. In MA, convicted felons are prohibited from obtaining a gun permit or Firearm Identification Card. Read on for more information about OUIs and their impact on your ability to purchase and carry a gun.

A felony is any crime punishable by at least one year in a state prison. Even if a person’s sentence is reduced to less than one year, he or she may still be classified as a felon. Although third and subsequent OUI offenses are automatic felonies, first and second offenses can be felonies under certain circumstances. For example, if someone is seriously injured or killed in an accident because you were driving under the influence, your first OUI may be elevated to a felony conviction. A Boston criminal defense attorney can help you determine your rights to purchase or carry a gun if you were previously convicted of an OUI offense.

What About My Second Amendment Rights?

A felony conviction results in the loss of many rights, including your second amendment rights. Although the Second Amendment of the U.S. Constitution guarantees U.S. citizens the right to bear arms, it excludes those convicted of felonies. Although a felony is a surefire way to remove your right to possess a gun, there are other situations in which U.S. citizens are prohibited from purchasing or carrying firearms. These may include:

  • Anyone convicted of domestic violence, even a misdemeanor offense
  • Individuals convicted of juvenile crimes
  • Anyone with an outstanding warrant
  • Individuals residing in mental health hospitals or addiction treatment centers
  • Individuals under the age of 18 who are in the U.S. illegally

What About My Spouse?

Unless your spouse is also a convicted felon, he or she can possess a gun after your felony OUI conviction. Unfortunately, this can present a sticky situation. Let’s say your wife owns a gun and you’re a convicted felon; if she puts the gun anywhere accessible to you – including the family home – she would be in violation of the law. Further, if you were unaware that the gun was in the home and it was discovered by law enforcement, you could be charged with unlawful possession.

What are the Penalties for Gun Possession Following a Felony OUI Conviction?

In MA, unlawful possession of a firearm is punishable by a minimum of two-and-a-half years in prison, with a maximum of five years in prison. To prove unlawful possession, the following circumstances must be proven:

  • The individual was in physical possession of the firearm, and was aware that he had possession of the firearm.
  • The firearm was a revolver, pistol, or other weapon from which a bullet can be discharged.

If you were convicted of a misdemeanor OUI offense, your right to purchase or carry a gun is unlikely to be impacted. However, an application and background check will provide confirmation. A MA criminal defense attorney can help you determine how to proceed if you’ve been charged with unlawful possession of a firearm following an OUI. Continue reading

In most cases, if a landlord’s negligence leads to an unsafe condition on their property, the landlord generally won’t be held criminally liable for resulting injuries or death. However, an exception may occur if the landlord’s actions were especially egregious.

Last December, a fire killed 36 people at the Ghost Ship artist collective in Oakland, California. The space, which had been rented to artists as a living and working space, was also used for parties, similar to the dance party that was underway when the tragedy occurred.

The art collective’s manager, Derick Alamena and his assistant, Max Harris, were arrested earlier this week in connection with the deadly blaze. They are each being charged with 36 counts of involuntary manslaughter. Although it is not believed that either Alamena or Harris had anything to do with starting the fire, their egregious disregard for the safety of tenants and party-goers has elevated their actions to criminal status. A MA criminal defense lawyer can help you determine how to proceed if you’ve been charged with involuntary manslaughter.

On Tuesday, five new trauma response teams are launching in an effort to help residents of Boston’s high-crime neighborhoods cope with violence. According to Mayor Martin Walsh, this initiative was created in response to residents’ concerns. The effort, which will consist of health centers and community organizations, will be led by Walsh and the Boston Public Health Commission.

Outreach organizations will be set up in Roxbury’s Whittier Street Health Center, Jamaica Plain’s Tree of Life, the Four Corners Actions Coalition of Dorchester, and North Suffolk Mental Health of East Boston. In addition, a mobile vendor will host a 24-hour crisis hotline.

“We spent May to August of last year hosting 14 community listening sessions and heard from over 350 residents and providers,” said Catherine Fine, the Division of Violence Prevention director. “We asked them what they’d like to see in their neighborhoods following a traumatic event. And this is what we heard they wanted.”

Even when a traumatic event occurred in the distant past, teams will provide assistance if requested. “Someone may, following an event, feel like they don’t want to connect to someone,” said Fine. “And they can take support or access teams at any time, a year later, two years later.”

What is a Traumatic Event?

For the purpose of this new initiative, a traumatic event includes gun-related homicides, shootings that affect anyone under age 18 or multiple victims, and any traumatic event involving a child. According to Fine, in addition to providing assistance to victims, the initiative aims to inform residents that just because an area has a high crime rate, criminal activity doesn’t go unnoticed. A Boston defense lawyer can help you determine how to proceed if you’ve been charged with a criminal offense.

“We want community members to know the city cares,” said Fine. “We want to connect with residents to let them know there are services that are available.” Those involved with the initiative will inform the community of ongoing efforts through community meetings, door-to-door informational campaigns, and healing sessions. “The fact that we are sort of knitting together more of a system connecting these entities together is unique,” she said. “We hope it’s the start of a very positive model.”

Gang Violence in Boston Neighborhoods

Although this new initiative is aimed at helping residents cope with any type of crime-related traumatic event, much of the violent crime in the Boston area is due to gang activity. One of the most notorious gangs in Boston is the MS-13, a violent gang whose motto is “mata, viola, controla’’ — kill, rape, control.

MS-13 targets public high school students, mostly immigrants, and often recruits kids as young as 14 years old. They pull from many Boston neighborhoods, but Chelsea, East Boston, and Everett are typically hardest hit. “Mentors” assist them throughout the initiation process, which usually involves a combination of illegal drug activity, theft, rape and other forms of violent crime. A MA defense attorney can help if your child has gotten caught up in gang activity. Continue reading

In short, yes. But it’s not only the gun that matters, it’s the threat. If you threaten a person with physical harm, and the person reasonably believes that you may inflict that harm, that crime is known as “assault.” Whether you point a gun, a knife, or even a closed fist at someone, if he or she fears for their safety, you may be charged with assault. That being said, pointing a gun at someone is more likely to be perceived as a real threat than shaking a closed fist would be. For this reason, an assault charge involving a gun will probably require a more complex defense than would an assault without a deadly weapon. An experienced Boston criminal defense attorney can help you determine how to proceed if you are charged with assault.

The sheer presence of a firearm is compelling evidence for the prosecution. Consider the following example: About one year ago, a Maryland police officer was convicted of first and second degree assault after he was caught on film ordering a man into his vehicle while pointing a gun at his head. Officer Jenchesky Santiago was observed shouting at William Cunningham in a way that seemed to convince both Cunningham and those who watched the video that he intended to use the gun. And the whole incident began because Cunningham was illegally parked. Not only was the officer’s response disproportionate to the very minor infraction, it was deemed an assault crime in court.

Assault vs. Assault and Battery

Assault can be a confusing charge because it is often used interchangeably with assault and battery. But battery is really a separate activity. While assault occurs when you make a threat of physical harm, battery occurs when you make good on that threat. The individual doesn’t have to be injured by the battery to constitute a charge of assault and battery. For example, if you attempt to punch someone in the face but he ducks and you only graze his cheek, you can still be charged with assault and battery. In that example, you may even be charged with assault and battery if you miss him entirely. The simple fact that you attempted to make good on your threat of physical harm is often enough.

Penalties for Assault or Assault and Battery

Not every threat is assault, however. A skilled MA defense attorney can help you protect your rights and reputation if you are facing an assault charge. If you are convicted of assault, or assault and battery, you may face the following penalties:

  • Both assault and assault and battery are punishable by a fine of up to $1,000 and up to two-and-a-half years in jail.
  • Assault that causes serious bodily injury is punishable by a fine of up to $5,000 and up to five years in prison.
  • If you cause harm to a child, you can face up to five years in prison. If that harm is substantial, you may spend up to 15 years in prison.

Continue reading

Following a shooting that occurred at the South Shore Plaza earlier this month, town officials are meeting to discuss how to improve security at the mall. The meeting between South Shore’s General Manager Rick Tonzi, the town’s mayor Joseph Sullivan, and Chief of Police Paul Shastany is not the first of its kind to discuss the incident. On Wednesday, Tonzi refused to attend a meeting of the town council’s public safety committee, emailing the following statement about the policies of the mall’s owner, Simon Property Group: “Simon does not publicly comment on what we do and don’t do on security at South Shore Plaza.”

Tonzi’s failure to attend the town council meeting was met with displeasure by Town Councillor, Charles Kokoros. “I think it’s a little disrespectful to the council and the committee,” he said. The shooting, which occurred in the shoe department of the Macy’s store, is believed to be linked to Boston gang rivalries. According to investigators, previously “neutral” territories have become fair game in these gang wars.”It’s a serious incident and we’re treating it very seriously,” said Sullivan.

A statement from mall management claims that management has a good relationship with the mayor’s office and Braintree police and that it practices joint training exercises with law enforcement “to ensure that all organizations are adequately prepared in emergency response procedures.”

Town Councillors and attorneys for the mall believe that the shooting was an isolated incident that happened in the mall, but not because of the mall. Even so, it’s a grave reminder that previously “safe spaces” can become dangerous if gang activity is not kept in check. “Wherever they encounter, that’s the venue for violence,” said Shastany.

What is the Solution?

Dealing with the underlying issue of gang violence is paramount to improving safety in Boston and the surrounding areas. But this is not a problem that can be eliminated overnight. In the meantime, South Shore Plaza and similar shopping centers can take safety precautions to protect customers and the general public. Kokoros would like to see increased law enforcement presence and security cameras at South Shore Plaza, for instance. Currently, there are three police officers on duty at the mall.

And the argument for more cameras may be a good one. According to Shastany, pictures from the existing security cameras were instrumental in identifying shooting suspect Michael J. Spence. The 24-year-old Quincy man is facing firearms charges for his role in the shooting.

The Rise in Gang Violence

Fortunately, no one was injured in the South Shore Plaza shooting, but gang violence is on the rise in Boston and the surrounding areas. Consider the violent street gang, MS-13, whose motto is “Mata, viola, controla” or kill, rape, control. MS-13 is based in El Salvador and has about 30,000 members worldwide, many in the Boston area. MS-13 targets young people, often as young as 14 or 15. To become a “homeboy” the young person is told to commit a serious crime, sometimes the murder of a rival gang member. If you are worried that a child or loved one has been swept up in this kind of violence and crime, it is in your best interest to contact a MA criminal defense lawyer as soon as possible. Due to their young ages, gang members may be able to avoid jail time and the more severe penalties reserved for adults. However, without the help of a skilled Boston criminal defense attorney, violent offenders may still be tried as adults. Continue reading

On Friday, we began discussing a particular meeting in Pittsfield where law enforcement made an unfortunate declaration about gang-related violence.

It would appear that the local police department is waiving the fear-mongering flag of “gang violence” without much of a basis and is relying on the stale standard chorus of “just trust us…we don’t really have the time to be up front”.

When one looks between the lines…one sees the questionable basis.

Few people, however, look between this lines, especially when the alleged danger seems so great.  They tend to simply take the advice of law enforcement.

“Just trust us”.

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Pittsfield Police Chief Michael Wynn is sounding an all-too-familier cry.

Simply put, “The gangs are coming! The gangs are coming!”

After all, this is a time where there is a great deal of violent crime, usually gun-related, throughout the Commonwealth. Attention of late has also shifted to the alleged criminals upon who’s word the Commonwealth has depended in putting other accused individuals away. That can’t bring too much comfort to law enforcement.

But I digress.

Of course, the Chief is actually saying that the gangs are not only “coming”, but are actually here.  In fact, he has announced that this is an opinion he has held for many years, although, for some unannounced reason, he says that the department did not talk about it.

Watch the video!  I did not make it up!

Continue reading

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