Articles Posted in Federal Crimes

Ok, I admit it. Since all the action with the Boston Marathon bombing, Attorney Sam’s Take has been fairly quiet. No, it is not that there have been no further drug, gun or assault arrests in the Commonwealth. It is not even that there was a dearth of things to talk about. And, no, simply because the bombing took place on April 15th, I was not detained by the IRS. There have been other reasons which we might get to some other day.

If I had been writing about the bombing and surviving suspect, Dzhokhar Tsarnaev, (hereinafter, the “Defendant”), I would have been warning you about issues that have arisen anyway.

The Defendant’s case is pending in Boston’s Federal District Court. His alleged crimes are federal crimes because of how they were carried out. A simple shooting during the Boston Marathon would likely have been prosecuted in state court. However, when terrorism is involved, not to mention the use of weapons of mass destruction…the federal system steps in.

Any regular reader of this back-to-being daily blog knows how I have ranted about the issues that have arisen the case of James “Whitey” Bulger. It has seemed that the prosecutors, and to some degree the court itself, has handled the matter with different rules than in all other cases. Perhaps it is because of the high level of media coverage Maybe it is because Mr. Bulger seems to personify for many the opposite of presumption of innocence. Whatever the reason, basic tenants which we hold sacred under our Constitution seem to be suspendable in that case.

Enter the case of the Defendant and his deceased brother.

A great deal of media coverage? Absolutely.

High level of public acceptance of immediate guilt? Certainly.

And so, once again, the Constitutional issues have come up in the case as it now is pending in Boston’s federal court.
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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?”

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As you have probably heard, there was a rather large federal bust which took place toward the end of last week. When the dust settled, thirty people were facing charges in a crackdown on two street gangs who allegedly terrorized folks in the Bowdoin-Geneva section of Dorchester as well as the Uphams Corner section of Roxbury.

The federal prosecutor, who was facing her own bad press at the moment, released the statement, “This community has been in desperate need of reprieve from the violence. We hope the arrests and prosecution of the defendants will quiet the streets and improve the quality of life for all residents.”

As you undoubtedly know, there has been a rash of violence taking place on the Boston-area streets and this massive bust has probably been in the works for a long time. In fact, United States Attorney Carmen Ortiz revealed that over 300 law enforcement officers (ranging from federal to local agencies) executed search warrants and made arrests in what officials have named “Operation Concord”. The operation focused on violence and drug distribution by the Woodward Avenue and Hendry Street gangs, prosecutors said. It dated back to drug traffic in the summer of 2011.

Most of the people arrested were arrested locally. Two were already in custody, one was arrested in California and one in Maine. One last one is still a fugitive.

According to law enforcement, those arrested were allegedly involved in gang, gun, and drug activity. They were allegedly controlled by two young men believed to be leaders of the Hendry Street gang and the Woodward Avenue Gang. These leaders were allegedly responsible for distribution of large amounts of crack cocaine, oxycodone pills, and marijuana.
All of the defendants have been held without bail.

The Reverend Richard “Doc” Conway, a Dorchester Catholic priest whose parish includes some of the streets affected, said he was relieved to hear police had moved to arrest violent gang members from the area.

“Any time you get guns off the streets that’s a plus,” he said. “And when you cut down rivalries between gangs and get the leaders off the street, that’s good for the neighborhood.”
Emmett Folgert, who runs the Dorchester Youth Collaborative in Fields Corner, said busting up two major gangs could have a ripple effect on smaller groups that often take their cues from older gang leaders.

Major arrests of gang leaders impact “not only the areas that these guys were operating out of but areas where their rivals are,” Folgert said. “It turns the temperature down. It’s a multiplier effect.”

Mayor Thomas M. Menino called it “a great day for the hardworking people of Bowdoin-Geneva and Uphams Corner.”

So…everyone, other than those arrested, see the mass arrest as a good thing.

But I’ve got to wonder…
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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?
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Tales of Whitey Bulger hit the news again at the end of this past week. Actually, it came through the indirect route of Catherine Greig (hereinafter, the “Defendant”) and her upcoming sentencing. She is due to be sentenced next week and the prosecution has handed in a memorandum in which they recommend that the Defendant serve ten years in federal prison.

While it involves the Defendant’s case, it is her boyfriend who is of more interest to the media and the populous. The sentencing memo apparently sheds some light on Whitey’s life “on the run” and so everybody is all over it.

In the sentencing memorandum, the government is asking the court to reject the Federal Sentencing Guidelines (which they usually ask the court to follow) and sentence the Defendant to more time than suggested. In order to justify the request, the government discussed “alleged tidbits” of the Defendant’s “life on the run” with Bulger.

Somehow, some of this information slipped into the hands of the media.

“Greig not only concealed Bulger from law enforcement but did, herself, commit multiple additional felonies in order to protect him from capture,” Prosecutors said. “This is no garden variety harboring case. It is the most extreme case of harboring this District has seen.”
The court document describes Bulger as “a high fear, or high anxiety, patient” and revealed that the Defendant committed the sinful acts of helping him get necessary medical and dental treatments.

“The medical and dental records also show that Bulger had a fear of shots – he described himself in one written form as a ‘dental chicken, from Chicago.’ Sometimes, as medical records revealed, the Defendant was actually present during medical procedures to calm him down.” The documents contained the additional bombshell that the Defendant sometimes helped the Bulger control his temper at times.

Hmm. Must be a new Felony Mental Health Management statute or something.
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Hello. I hope you had an enjoyable, albeit alittle warm, Patriot’s Day. Well, at least in Massachusetts it was Patriot’s day. We tend to honor the Patriot’s of wars present and past by running the Boston Marathon. I guess that is a battle in and of itself.

But that is another story.

The Boston Criminal Lawyer Blog last left off talking about discovery practices in the Federal Court. The matter which brought it up was the case of James “Whitey” Bulger (hereinafter, the “Defendant”) who is facing murder charges dating back quite a long time.

The question we left off at was, “But, the government’s primary responsibility is to seek Justice and a fair trial, right?”

And, of course, the answer is “Yes!” In both state and federal court, the prosecutors’ primary mission is to seek the truth and do “Justice”.

“So, what’s the problem? Of course the prosecution will give the defense what it needs in order to have a fair trial, right?”

That is not what I said. I said that it was the government’s primary responsibility, as recognized by their own oath that they take. However, whether that translates to reality very well is another story. A story that we have discussed quite a bit over the years of this blog.

First, you must understand that, like any business, there is a structure to a prosecutor’s office. At the top of that structure is the main prosecutor. In the state court, that would be the District Attorney. Every county has one. In the federal court, it is the United States Attorney.

Both the District Attorney and the United States Attorney are political positions.

This means that how things that their office does look politically (in the media and so on) matters a great deal to the boss of the organization. And, naturally, it is that boss who sets the directives, tone and policies of the office. All the assistants below him or her are underlings who answer to supervisors who answer to their supervisors all the way up to the big boss.

As we have discussed in the past many times, nobody gets good public reaction these days when perceived “soft on crime”. You merely have to consider the previous case of Judge Lopez and the current matter of Judge Dougan as evidence of this. If that is not enough, just look at the press accounts of criminal cases. Folks tend to be out for blood when it comes to criminal allegations. Therefore, the safest thing a prosecutor can do is to be unrelentingly “tough” on crime.

“After all”, most prosecutors will tell you, “What if I give the defendant a break and he goes out and kills someone?!?!”

I remind you of the parole debacle which began about a year ago and still plagues us today as discussed a few weeks ago.

Now, add something else to the equation. The prosecutors are trial lawyers. In other words, they are advocates. And they want to win.

Add to that fact the certain indoctrination which one goes through at such a place of work and the translation becomes simple….all criminal defendants are guilty. Otherwise, they would not have been arrested by the nice trustworthy police officer. That’s it. That simple.

From the prosecutorial point of view, the reason for discovery is chiefly so that the nasty defense lawyers can get a chance to poke unfair wholes into the case against their clients.
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The Boston Criminal Lawyer Blog has often decried what has happened to the so-called “presumption of innocence“. You know the presumption…that alleged one that we claim to be the foundation of our criminal justice system. I tend to say that, at least until trial, that seemingly invisible presumption may be still hanging around, but it is usually outshouted by the assumption of guilt!

The more high profile the matter, it seems the more this is true. But then, who can really blame the media? That nasty A-word (alleged) is so long and hard to spell…!

The epitome of this seems to be the case of reputed mob-boss James “Whitey” Bulger (hereinafter, the “Defendant”).

When the Defendant’s case is discussed in the papers, I seldom see that nasty A-word in his title. It is generally things like ” Lawyers for mobster James ‘Whitey’ Bulger…” or “Bulger, the former leader of the Winter Hill Gang…”

I apparently slept through that trial during which he was convicted of being a mobster or leader of the Winter Hill Gang. Oh well, at least we are going through the motions of pretending he is not really already found guilty of the murders for which he is to stand trial.

Anyway, his case is due to be coming back to Boston’s federal court on Wednesday. It is the continuing battle of discovery between the defense and the government. The battle pits the court between giving the defense a shot at what could be claimed to be a fair trial and shoving the case through to trial and geting it over with.

The Defendant’s lawyers have been sparring with prosecutors over the mountains of material expected to be used at the trial now scheduled for November. The defense argues that said mountain was a disorganized mess so that it is impossible to make sense of it all and adequately prepare for trial in time for the November deadline. The prosecution is basically taking the position that they should not be penalized for giving so much of their case away to the defense in their never-ending quest for peace, justice and the American way.

Interestingly, there is a bit of irony here. In federal criminal cases, the argument is usually that the mountains of discovery (albeit usually more organized) come too close to the trial so that the defense is not given the opportunity to be adequately prepared for trial.
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