Property crime, theft and white collar crime.
So-called "property crimes" span a wide range of offenses - robbery, trespass, breaking and entering, malicious destruction of property, receiving stolen property, larceny by stealing, as well as "white collar" crimes like embezzlement and fraud. Each one of these offenses carries a unique set of challenges, which a skilled lawyer can help you navigate. From issues regarding illegal search and seizure, charges filed by dubious motives or resort to speculation, to misapplication of important legal criteria, our office will immediately identify the strategies most likely to win your case.
Property offenses implicate a wide variety of issues. Feel free to click on the corresponding link to jump to any issue of specific interest to you: Search and Seizure | Identification issues | Fabricated allegations | Charging errors | White Collar | Misdemeanor / felony thresholds
Is possession really nine tenths of the law?
In any case in which police officers find a tangible item alleged to have been stolen, they may think they have their suspect red handed, and that conviction is assured. After our office takes over your defense, these officers may realize they have celebrated too soon. It may surprise you to learn that police frequently make serious mistakes in the manner in which they search for evidence, often resulting in evidence secured at the expense of your rights. In this country, where individual freedoms constitute the foundation for our system of law, we demand that police play by the rules. When they do not, they will be denied access to the evidence they obtain as a result. For this very reason, the United States Supreme Court created the "exclusionary rule" to prevent the government from using evidence at trial that they obtained unlawfully. Wong Sun v. United States, 371 U.S. 471 (1963). Because of the tremendous power of this rule, we will carefully examine your case to determine whether the officers stayed within the limits set by the Constitution when searching for and seizing evidence. When they have not, we will uncover their errors and demand that the Court hold the government accountable.
Unlike most lawyers, our team at Erkan & Associates never assumes that police followed the rules and did their job correctly. The degree of skill and attention devoted to this process can be the difference between dismissal of a case or consequences which could follow you for the rest of your life. Read our pages on drug possession and trafficking and firearms offenses for more information about unlawfully obtained evidence. You can also click here to browse through our case results to see case after case in which we secured dismissal after uncovering police wrongdoing.
Unlike other crimes like drunk driving or drug possession, where a police officer personally observes the alleged crime, police most often become involved in property crimes after the fact. Situations like this present a number of opportunities to weaken the government's case. If a civilian is the only witness to a crime, police may often rely on their identification to build a case. The law prefers that police use non-suggestive ID procedures. So, for example, if a witness reported that the offender had a mustache, police should obviously not show the witness an array of seven clean shaven men with only one wearing a mustache. Yet time and again, police officers stumble in putting together a fair presentation. We will hold them accountable when they do.
Even worse is when police conduct a "show-up" identification, in which an officer allows a witness to view a single individual to make an identification. Despite the wide consensus that mistaken identity is the number one contributor to wrongful convictions, Massachusetts courts still permit police to use these unfairly suggestive procedures. Johnson, supra, According to the Innocence Project, "Mistaken eyewitness identifications contributed to approximately 71% of the ... wrongful convictions in the United States overturned by post-conviction DNA evidence." https://www.innocenceproject.org/eyewitness-identification-reform/
Problems of mistaken identity are magnified when the identification crosses ethnic or racial lines, such as in those cases where a white witness identifies a black person as the perpetrator of a crime. As the Massachusetts Supreme Judicial Court recently acknowledged, "cross-racial [mis]identification was present in 42 percent of the cases in which an erroneous eyewitness identification was made[.]" Commonwealth v. Gomes, 470 Mass. 352, , 382, n. appx. 10 (2015). A terrifying reality indeed.
Contrary to what you might see on TV, police use single person or single photo identification procedures in the majority of cases -- including in those cases in which police officers themselves are the identification witness. Police identifications conducted in this manner are the most dangerous. Not only does this type of evidence carry the risk of mistaken identification, when a police officer makes the ID, their testimony carries tremendous weight in the eyes of jurors, who labor under the misapprehension that police officers have some sort of superpower that immunizes them from the frailties which encumber the human capacity to accurately identify another person during a fleeting or stressful incident. We do not subscribe to the perception of police as flawless observers. Rather, we will marshal the evidence to show that police are prone to error to the same extent as any ordinary person. Utilizing these strategies, we recently obtained the exoneration of a young man whom a highly decorated state police narcotics detective erroneously identified as a drug trafficker that had directly sold narcotics to him on four separate occasions during an undercover sting. Click here to learn more about that case, including the fallout which has set into motion the potential for a comprehensive overhaul in the way police are conducting identifications in this state moving forward.
Whenever an accuser has a prior relationship with a defendant, credibility issues can make or break a case. Jealous lovers, rival co-workers, and angry landlords and tenants can have powerful motives to exaggerate or completely fabricate allegations. At Erkan & Associates, LLC we always take our clients seriously when they insist that an accuser is simply out to get them. We understand how important it is to identify key facts which can uncover an accuser's bias or outright spite. By taking the time to listen to the client's concerns, and by locating and interviewing people familiar with the accuser's hostility towards a client, we can develop powerful ammunition for cross-examination at trial. We will go to any lengths to expose a liar intent on staining a client's reputation and destroying his future. Click here for more information on our peerless fact investigations.
Flawed charges in selected crimes.
Massachusetts law punishes a wide variety of property crimes including breaking and entering, destruction of property, trespassing, tagging and vandalism. Although many property offenses are similar to each other, each one is defined by a specific set of "elements" which must be present in order for the government to obtain a conviction.
Note - burglary, home invasion, armed assault in a dwelling, and robbery are considered violent crimes in Massachusetts. For an in-depth discussion of violent crime, click here.
The police officers who apply for complaints and warrants are rarely lawyers. Consequently, their understanding of the basic building blocks of even minor offenses is commonly flawed. If you are charged with a property offense, contact our firm immediately so that we can use our superior knowledge of the law to gain the upper hand.
Breaking and entering.
G.L. c. 266, § 16 prohibits breaking and entering in the night time with the intent to commit a felony. To convict for this offense, the government must prove that the accused: (1) "broke" into a building, ship, or vehicle belonging to another person; (2) "entered" the building, ship, or vehicle; (3) had the intent to commit a felony; and (4) the offense occurred during the night time.
The law defines "breaking" as the exertion of physical force, however slight, to remove an obstruction and gain entry, or, entering through an opening not intended as an entrance, such as a window or a chimney. Commonwealth v. Hall, 48 Mass. App. Ct. 727, 730-731 (2000). If an individual entered a building through a door that was left wide open, he did not "break" into the building. Consequently, he did not commit the crime of breaking and entering in the night time with the intent to commit a felony.
The law states that "entry" occurs when an individual places any body part or any implement within the enclosed part of a
building, ship, or vehicle. If an individual broke a car window but did not put any implement or part of his body inside, then he did not commit this offense.
If a defendant committed a "break" and an "entry," the next question is whether he intended to commit a felony inside. Massachusetts law defines a "felony" as any offense punishable by imprisonment in state prison. All other crimes are misdemeanors. An individual who breaks and enters without the intent to commit any felony offense within is not guilty of this offense. So, for example, if an intoxicated person opens the door to a residence, mistakenly believing it to be his own house or that of a friend, he is not guilty of this offense because he entered with innocent intent. Or, if an individual breaks and enters a residence simply to get out of the cold, his intent was to merely trespass - a misdemeanor offense.
Lastly, in order to prove this offense, the government must prove that it occurred at "night time." Massachusetts law defines night time as the time between one hour after sunset and one hour before sunrise. G.L. c. 278, § 10.
When the government fails to prove any one of these elements, then its case falls apart at trial, and may even be vulnerable to a pretrial motion to dismiss. Depending on the circumstances, the person's conduct may meet the definition of another crime, such as trespass, property damage, or breaking and entering with the intent to commit a misdemeanor. However, exploiting weaknesses in any one element of the offense can reduce the seriousness of the offense even when it does not lead to outright acquittal. And even if the government's allegations do meet the elements, the next question becomes - can they prove it? With our office at your back, the government's job gets a whole lot harder.
Read the model jury instructions for breaking and entering here.
Malicious destruction of property.
The government frequently mis-charges malicious destruction of property under G.L. c. 266, § 127. Most police and prosecutors think this charge is appropriate whenever anything is broken. That is not true. Rather, the government must prove: (1) the accused injured or destroyed the property of another; (2) he acted willfully; and (3) with malice.
In the context of this offense, Massachusetts law defines "malice" as motivated by "cruelty, hostility, or revenge," towards the owner of the property. Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 4-5 (2011). When an individual causes property damage incidentally while doing some act, the individual does not destroy the property "maliciously." For example, an individual who breaks open an ATM to steal money, causing damage to the ATM, did not act with malice, because his goal was to get the money; the damage was incidental to that goal. Commonwealth v. Doyle, 83 Mass. App. Ct. 384 (2013). A person throwing stones off of an overpass which end up hitting a car does not act with malice, but an individual shooting out a car window with a BB gun, whose purpose was simply to smash the window, acts maliciously. Commonwealth v. Cimini, 34 Mass. App. Ct. 925 (1993).
Read the model jury instructions for malicious destruction of property here.
Motor vehicle theft.
Another crime that the government frequently overcharges is motor vehicle larceny. Larceny offenses require proof that the defendant unlawfully took the property of another person with the intent to permanently deprive the person of the property. Commonwealth v. Olivera, 48 Mass. App. Ct. 907, 908 (1999). Consequently, in any case where a car was taken but was later found abandoned on the street, the government will have a difficult time proving the intent to permanently deprive the owner of the car. Commonwealth v. Hogg, 365 Mass. 290, 295. This type of conduct does not amount to motor vehicle larceny. Instead, this conduct might fit the mold for a different crime - use of a motor vehicle without authority. The difference between these two offenses is crucial, as the former can result in up to 15 years in state prison.
Another mistake that police and prosecutors make is to assume that any person present in a stolen car is guilty of this serious felony. This is plainly wrong. The government has to prove that each person in the car had actual knowledge that the car was stolen. If they were not caught in the act of stealing, this is a tough proposition to prove in court in the absence of compelling circumstantial evidence warranting an inference of knowledge -- such as a broken window and a screwdriver in the ignition. When the government's case is built on assumptions, we will deny the government a conviction.
White Collar Crimes.
Sometimes, lapses in judgement or innocent errors - like imperfect bookkeeping or cashing a questionable check - can snowball, resulting in charges for embezzlement, uttering a false check, or fraud. These charges can put your finances, career, and future in jeopardy.
Although the government will not hesitate to charge these offenses, they seldom understand the charges. Even more rarely do they put in the time and effort to prove them. For example, if the government accuses you of forging a signature on a check, chances are nobody personally saw who signed the check. Although an expert handwriting analyst might solve the issue and confirm whether you are the person who signed, the government's arrogance frequently prevents them from seeing the flaws in their own cases. Consequently, we are always ready to put the government to its burden of proof. The government expects that by simply charging these offenses, they can scare a defendant into pleading guilty. By forcing the government to its burden of proof, we can expose the fact that they never anticipated that they would have to prove the case at trial.
Misdemeanor versus felony threshold.
In many property crimes, the difference in whether a crime is treated as a felony or a misdemeanor depends on the amount of loss involved. We have watched lawyers time and time again overlook any serious inquiry into the government's evidence on this threshold issue, resulting in the conviction of their clients for serious felonies in the absence of proof substantiating the offense. The issue of valuation arises most frequently in cases involving theft or destruction of items. In almost every such case, police will automatically opt for the felony charge. Not only does this wrongfully deprive the accused of their important right to a clerk's hearing (click here to learn more about this critical procedural protection), but it sets the table for a serious, life-altering felony conviction that is totally unwarranted by the evidence. When a person claims they had an item stolen, the reality is that they may not be forthcoming with the fair market value for that item. In cases where property is damaged, police, prosecutors and victims will incorrectly assume that the felony threshold is controlled by the replacement value of the damaged item as a whole. This is not the law. It is not the replacement cost of the Mercedes with a broken window; it is the replacement or repair cost of the window itself. Most lawyers will sign their clients up for a plea in these cases, without seeking any proof. This is a mistake with huge consequences for the accused.
If you are charged with any sort of property crime, please contact our office for a free evaluation of your case. We will walk you through the strategies we can employ to give you the upper hand when fighting these cases in court.