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Conspiracy

Criminal Conspiracy.

Criminal conspiracy is an agreement by two or more persons to commit an unlawful act or to commit an act via unlawful means. Conspiracy is often charged as part of a drug case alleging a distribution network.

If you are charged with conspiracy, you are innocent until proven guilty. In order to prove you guilty, the Commonwealth must prove, beyond a reasonable doubt, that:

1) you joined in an agreement or plan with one or more other persons;
2) that the purpose of the agreement was to do something unlawful, or to do something by unlawful means; and
3) that you joined the agreement knowing about the unlawful plan and intended to help carry it out.

Easier to prove in Massachusetts than in some other states.

In Massachusetts, it is not required to prove that you took some step( s) towards carrying out the conspiracy. This makes convictions much easier to obtain.

In addition it is not always possible to prove a conspiracy by direct evidence, so prosecutors often rely on circumstantial to seek convictions. While some states also require an overt act in furtherance of the conspiracy to be proved, meaning the prosecutor must show that the defendant also took some step towards carrying out the conspiracy, Massachusetts courts have long discredited this approach.

In most cases, conspiracy is charged in addition to another offense, normally the subsequent crime committed as part of the conspiracy. Under Massachusetts law, even if a defendant is acquitted for the subsequent offense, the defendant can be found guilty of conspiracy or vice versa.

Penalties for conspiracy.

The penalties for conspiracy can be severe, depending on the offense the defendant conspired to commit. If the defendant conspired to commit a felony that is punishable by life in prison, the punishment for the conspiracy offense could be up to 20 years in jail in addition to a $10,000 fine. If the defendant conspired to commit an offense that was punishable by ten years or more, then the defendant could be placed in jail for up to ten years and fined up to $10,000. For all other conspiracies to commit felonies punishable for less than ten years in prison, the defendant could be held in jail for five years and charged a fine of $5,000. Finally, if a defendant is found guilty of conspiracy to commit a crime that is not a felony, the defendant could still be given a sentence of up to 2 ½ years in jail and a fine of $2,000.

These penalties are in addition to any sentence for the crime that was the purpose of the conspiracy, such as distribution of drugs or fraud.

Distribution of Drugs and Possession of Drugs With Intent to Distribute

In Massachusetts, distribution or possession with intent to distribute a “controlled substance” – an illegal drug – is a felony, if the substance is class A, B, or C. If the controlled substance is class D or E, the charge is a misdemeanor, but the consequences can still be serious.


Distribution of a Controlled Substance.

The offense of Distribution of a Controlled Substance is just what it sounds like. To charge you, the police have to have probable cause that you took part in a transaction in which you or someone you were partnered with gave or sold an illegal drug, of any amount, to another person. The amount of the drug doesn’t matter – it could be as little as a gram.  

It is not necessary that any money be exchanged, either.  Simply handing a bag, pill, or any other form of a controlled substance to another person is a crime.

Special note on marijuana: despite the recent changes in the laws related to marijuana, which you can see here, you can still be charged and convicted of selling or giving away marijuana if you don’t satisfy very specific conditions. See the conditions under which you can give or sell marijuana here.


Possession of a Controlled Substance With Intent to Distribute.

To charge you with possession of a controlled substance with intent to distribute, the police must have probable cause that you possessed an illegal drug, and that you intended to give or sell it to someone else. They do not have to prove who you intended to sell it to, how much you intended to sell, or when you intended to sell it.

Proving intent.

A person’s intent is his or her purpose or objective. Determining what is in someone’s mind is sometimes very difficult, but jurors are told that they should examine the defendant’s actions and words, and all of the surrounding circumstances, to help them determine what the defendant’s intent was at that time.

Jurors are also instructed that as a general rule, it is reasonable to infer that a person ordinarily
intends the natural and probable consequences of any acts that he does voluntarily or deliberately.

A jury does not have to find that the defendant knew that he was breaking the law, but it is necessary that they find he intended the act to occur which constitutes the offense.

These cases are very fact specific. It would seem difficult to prove what someone intended in their mind to do before they actually did it. However, the prosecution usually relies on circumstantial evidence to prove this charge. Often the evidence that is used to prove an intent to sell is a large amount of controlled substance in your possession (though ti doesn’t have to be a large amount), the presence of scales, large amounts of cash, records of prior sales, multiple cell phones, often “burners”, or baggies or other materials often used to package rugs for sale.

As with any drug charge, the way in which the police found the evidence is of critical importance. If the police discovered evidence after you were illegally pulled over in your car, or came as the result of an illegal search, we will move the Court to suppress the evidence. Same if the police obtain information based on illegal questioning


Penalties for Possession with Intent to Distribute and Distribution of Controlled Substances

Penalties for these offenses often depend upon the amount, or weight, of controlled substances involved in your case.  The penalties listed below are maximums, and any mandatory minimum sentences that apply.


Distribution or possession with intent to distribute class A
 in Massachusetts is a felony.

Under MGL c. 94C s. 32, a conviction for this offense carries up to the following potential penalties:

  • 10 years in state prison
  • $10,000 fine

A second or subsequent offense for possession of class A with intent to distribute is a felony in Massachusetts, with a mandatory minimum state prison sentence of 3 1/2 years, up to the following potential penalties:

  • 15 years in state prison
  • $25,000 fine

Distribution or possession with intent to distribute class B- cocaine, crack or methamphetamine is a felony.

This charge carries a mandatory minimum 1 year jail sentence, up to the following potential penalties:

  • 10 years in state prison
  • $10,000 fine

A second or subsequent offense for distribution or possession with intent to distribute class B cocaine, crack or methamphetamine carries a mandatory minimum 3 1/2 years in state prison and $2,000 fine, up to the following potential penalties:

  • 15 years in state prison
  • $25,000 fine

Distribution or possession with intent to distribute class B- other than cocaine, crack or methamphetamine- is a felony.

This charge carries the following potential penalties:

  • 10 years in state prison
  • $10,000 fine

A second or subsequent offense for distribution or possession with intent to distribute class B under this section carries a mandatory minimum2 years in jail and $2,500 fine, up to the following potential penalties:

  • 10 years in state prison
  • $25,000 fine

Distribution or possession with intent to distribute class C in Massachusetts is a felony.

 carries up to the following potential penalties:

  • 5 years in state prison
  • $5,000 fine

A second or subsequent offense for distribution or possession with intent to distribute class C carries amandatory minimum18 months in jail and $1,000 fine, up to the following potential penalties:

  • 10 years in state prison
  • $10,000 fine

Distribution or possession with intent to distribute class Din Massachusetts is a misdemeanor.  

It carries the following potential penalties:

  • 2 years in jail
  • $500 (minimum) up to $5,000 fine

A second or subsequent offense for distribution or possession with intent to distribute class D carries amandatory minimum1 year in jail and $1,000 fine, up to the following potential penalties:

  • 2 1/2 years in jail
  • $10,000 fine

Distribution or possession with intent to distribute class E in Massachusetts is a misdemeanor.

It carries the following potential penalties:

  • 9 months in jail
  • $250 (minimum) up to $2,500 fine

A second or subsequent offense for distribution or possession with intent to distribute class E carries the following potential penalties:

  • 1 1/2 years in jail
  • $500 (minimum) up to $5,000 fine

Distribution or Possession with Intent to Distribute Class A, B, or C to a Minor in Massachusetts carries enhanced penalties.

You face the following potential penalties if charged with distributing, or possession with intent to distribute, the following substances to anyone under the age of 18 years old:

Distribution/ possession with intent to distribute HEROIN to a minor:

  • 5 years state prison (mandatory minimum), up to 15 years in state prison
  • $1,000 to $25,000 fine

Distribution/ possession with intent to distribute COCAINE to a minor:

  • 3 years state prison (mandatory minimum), up to 15 years in state prison
  • $1,000 to $25,000 fine

Distribution w/ possession with intent to distribute CLASS B (other than cocaine) to a minor:

  • 5 years state prison (mandatory minimum), up to 15 years in state prison
  • $1,000 to $25,000 fine

We have more than 20 years of experience successfully defending people charged with serious drug offenses.  Contact us to talk about your case.  Use the form on this page or call us.  Get the information you need and discuss the facts of your case so you can make the best decisions for your future, and your freedom.

School Zone Drug Violations

School Zone Mandatory Minimum.

In Massachusetts, otherwise relatively simple drug charges are dramatically escalated when they occur within 300 feet of a school or park (this distance was reduced from 1,000 feet to 300 feet in 2012). When someone is charged with a drug offense in a “school zone,” the penalty for the school zone violation includes a mandatory minimum sentence of two years in jail, which must be imposed “from-and-after” the punishment for the underlying drug offense. This means the mandatory minimum does not even begin to run until the punishment for the underlying offense is done.

For example, if you are sentenced to sixty days for possession and the two year mandatory minimum because you were arrested in a school zone, then you must serve the sixty days in jail, then begin the two year sentence on day 61.

Defending a School Zone Charge.

First, before the Commonwealth can prove a violation of the school zone law, it must prove the underlying drug charge.

Second, the Commonwealth must prove that the violation occurred within 300 feet of a school, park, daycare center, or other similar location described in the statute.

Beyond the defense of the underlying charge, there are viable defenses to the allegation that the offense occurred in a school zone. The police and district attorneys are not often required to prove that a given property is a “school” or “park” as defined in the statute. Nor are they often required to prove the distance from one point to another, which is required to prove a school zone violation. Sometimes, the police bring the charge of a school zone violation based on any approximations made beforehand, which may have never been tested, but if the Commonwealth wants to impose a mandatory minimum because of a school zone violation, even the measurements made by police must be called into question.

Possession of Controlled Substances

Drugs that are illegal to possess in Massachusetts are classified into five categories, and each category carries different penalties for possession of those substances.

What Does “Possession” Mean?

To prove you guilty of possession of a controlled substance, the government must prove that you had the substance in your “possession, custody or control.”  Maybe the best explanation of what this means is the instruction that judges give jurors at trials in which the possession of something is an element of the charge against them.

The Massachusetts jury instruction for the proof of “Possession”:

“What does it mean to “possess” something? A person obviously
“possesses” something if he (she) has direct physical control or custody of
it at a given time. In that sense, you possess whatever you have in your
pocket or purse right now.

However, the law does not require that someone necessarily have
actual physical custody of an object to “possess” it. An object is
considered to be in a person’s possession without physical custody if he
(she) has:

• knowledge of the object,
• the ability to exercise control over that object, either directly or
through another person, and
• the intent to exercise control over the object .

For example, the law considers you to be in possession of things
which you keep in your bureau drawer at home, or in a safe deposit box at your bank.

Whether the defendant possessed is something that you
must determine from all the facts and any reasonable inferences that you
can draw from the facts. However, I caution you to remember that merely
being present in the vicinity of a , even if one knows that it is
there, does not amount to possession.

Neither is possession proved simply because the
defendant was associated with a person who controlled the motor vehicle
or the property where was found.

To show possession, there must be evidence justifying a conclusion
that the defendant had knowledge of the controlled substance coupled with the ability
and the intent to exercise control over the . Only then may the
defendant be considered to have possessed the controlled substance.”


Controlled Substance Classification in Massachusetts.

Massachusetts classifies controlled substances on a 5 tier, A through E scale.

Class A – Some examples of class A drugs are heroin, morphine, codeine, or ketamine, although other drugs are listed as class A. These drugs are considered to be the most dangerous of controlled substances and carry the harshest possession penalties.

Class B – While not classified as dangerous as class A drugs, class B drugs are still considered very dangerous and the possession of these drugs will carry harsh penalties. Drugs considered to be class B are cocaine, crack, PCP, LSD, or amphetamines.

Class C – Class C drugs will carry less harsh penalties than classes A or B, and these drugs include mescaline, diazepam, or peyote.

Class D – Class D drugs are considered to be less dangerous on the controlled substance scale, and this class includes marijuana, hashish, or any drug containing THC as its psychoactive component.

Class E – Class E drugs include prescription medication, and if a person is found not to have a prescription for the class E drugs they are in possession of they may face criminal drug possession charges.

Each class of controlled substances carries its own penalties for possession. Class A drug possession holds the harshest penalties for even small amounts of the drug, while the penalties incurred for possessing classes D or E drugs are much lower.


Penalties for Controlled Substance Possession.

Class A – The possession of a class A substance will come with a period of incarceration of up to 2 years in jail for a first time offense, and these penalties can go as high as 5 years in prison for subsequent offenses. These charges may also come with potential fines that go as high as $2,000, or $5,000 if the drug in question is heroin.

Class B – A first time offender may receive up to a year in jail, while those with past convictions could face 2 years in jail. These charges may also come along with fines.

Class C – Possession of a class C substance in the state of Massachusetts is similar to possession of a class B substance in terms of penalties. Often, a first time offender will face up to a year in jail as well as fines, while the penalties will grow with subsequent offenses.

Class D – Marijuana laws have changed recently, making the possession of marijuana for recreational use legal.  Go here to see the laws about marijuana possession.

Class E – Possession of a class E substance in the state of Massachusetts may result in a misdemeanor charge as well as probation and/or a fine.

Special Case: Possession Of Heroin in Massachusetts.

Heroin possession carries some of the weightiest penalties in the state of Massachusetts. Although a class A drug, heroin possession and other heroin related charges will often carry penalties harsher than those for other Class A substances.

A first time offender facing heroin possession charges may be forced to pay a fine of up to $2,000 as well as a 2 year prison sentence.

For subsequent charges, a convicted person could then face up to 5 years in prison as well as a fine of up to $5,000. Also, while the possession of other classes of drugs will often come with a misdemeanor charge, heroin possession is more likely to be considered a felony.

Special Case: Knowingly Being Present Where Heroin is Kept.

Knowingly being present where heroin is kept is a misdemeanor under Massachusetts General Laws Chapter 94C Section 35. You can be convicted of this crime if the District Attorney proves beyond a reasonable doubt either:

  • That you knew you were at a place where heroin was kept or deposited; or
  • That you were with another person who you knew to be in possession of heroin.

It is not a crime to be present where drugs other than heroin are present, even if you are aware of it. For example, it is not a crime to knowingly be present where marijuana is kept, stored or even grown. This is because the legislature considers heroin use or sale to be so dangerous and destructive that merely being around the drug should be a crime.

Drug Trafficking

Drug Trafficking & Distribution

Selling and distribution of illegal drugs or prohibited substances is a crime at both state and federal levels. Persons charged with drug trafficking and distribution face serious penalties, including sentencing, fines and loss of freedom. It is essential to get an experienced Criminal Defense Lawyer to help you fight for your rights and freedom if you are charged with this type of criminal activity.

Drug Trafficking & Distribution Laws

In the state of Massachusetts, the possession or trafficking of drugs or narcotics is defined as the possession of the drugs with an intention to distribute them, or the actual distribution of drugs or narcotics. You would be charged either with possession or trafficking, depending on how much of those illegal drugs you possessed and whether you had any drug distribution paraphernalia in your possession.

In a trial, the prosecutor needs to prove several elements beyond a reasonable doubt. All elements of the drug possession and the amount of drugs that were charged in the indictment must be proven. Drug trafficking is the most serious of all drug crimes in Massachusetts and they have a mandatory minimum prison sentence that a convicted person must serve before they can get a parole.

The three most frequent types of drug possession and trafficking in this state are:

  • Marijuana
  • Cocaine
  • Heroin

About Drug Dealing Laws in Massachusetts

Drug possession is a serious crime in Massachusetts and it is dealt with harshly. Trafficking is an even greater crime, with harsher punishments. If a person is convicted for the illegal possession of a prescription drug, they can be sentenced to jail for up to one year and be fined $1,000.

Someone who is found in possession of heroin will get two years in jail and a fine of up to $2,000. Possession of the last of these three prohibited drugs, marijuana, will land a convicted person with up to six months in jail and a fine up to $500.

Sentencing for Trafficking in Massachusetts

Drug Trafficking in Massachusetts is a Class D Felony. If you are convicted of this criminal offense, you could receive a serious sentencing:

  • 2.5 to 15 years in prison if you are found guilty of trafficking 50 pounds or more of the drug. You may also face another 1 to 2.5 years in the county jail; a one year sentence is mandatory.
  • 3 to 15 years in state prison is the sentence for trafficking 100 pounds but less than 2,000 pounds. There is a minimum three year sentence for an offense of this magnitude.
  • 5 to 15 years in state prison is the sentence for trafficking 2,000 to 9,999 pounds. The minimum sentence required is five years.

Drug Trafficking for cocaine in Massachusetts is more serious than a conviction for trafficking marijuana. It is a Class B Felony. For a conviction, the following sentences apply:

  • For up to 14 grams but less than 28 grams of cocaine, you get 5 to 20 years in prison; there is a five year minimum sentence.
  • For up to 28 grams but less than 100 grams, there is a sentence of 10 to 20 years in prison; the minimum sentence is 10 years.
  • For up to 100 grams but less than 200 grams, 10 to 20 years in prison; 10 years minimum sentence.

Anyone convicted for trafficking heroin in Massachusetts will be charged with a Class A Felony.

  • 14 grams but less than 28 grams of heroin gets you up to 20 years, with five mandatory years in prison.
  • 28 grams but less than 100 grams will bring 20 years in prison and a seven year minimum sentence.
  • 100 grams but less than 200 grams is a 20 year prison sentence with 10 year minimum sentence.

Defense for Drug Trafficking Charges

The best defenses are created by experienced Drug Trafficking Criminal Defense Attorneys. They use multiple defenses to protect their clients and create defenses customized for each case and client.

In many drug trafficking cases, the person charged with this crime is merely a mule or agent, and that this type of participant was not the target of legislators who imposed mandatory sentences for controlled substances. When the lawyer is familiar with the court systems, judges, prosecutors and other factors, they may use a mule defense to benefit their client.

New laws and rulings also affect the defense strategy used by Criminal Defense Attorneys. They understand any ambiguity in mandatory minimum sentencing. They can argue a defense that there is no tie to a larger organization, no violence or weaponry was used and cite other factors to help strengthen your defense case. They will call in reliable resources and expert witnesses to support your defense case.

An experienced drug trafficking lawyer will use many strategies to circumvent or avoid minimum mandatory prison sentences. Some claims in this area include challenging the admissibility of any state evidence. Medical records are usually protected, but if used for prosecution of drug trafficking, there could be a potential error there to exploit in your defense. Lawyers always are watching for any violation of constitutional rights.

Other challenges are based on search and seizure tactics. If there were violations here, that evidence could be suppressed. Entrapment is another possible defense argument if a suspect was persuaded to commit a crime by undercover agents. The lawyer will also present effective cross examinations of government witnesses, to try to show motivations and lack of credibility.