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Drug deal or loan? The Massachusetts Appeals Court recently grappled with that question in the case of an alleged drug dealer charged with beating an associate with a plastic toy. Specifically, was the alleged crack deal a loan? The court decided the thorny legal question as it related to a Massachusetts law prohibiting the use of assault and battery for the purpose of collecting a loan. In a novel legal argument, the defendant argued he could not be charged under the law because the alleged crack deal was not a “loan.” Commonwealth v. Thompson, No. 01-P-433 (Mass. App. Ct. 2002). An alleged New York drug dealer known as “G” allegedly retained the services of Kenneth Luciano when G wanted to expand his crack cocaine empire into Great Barrington, Mass. Unfortunately for everyone involved, instead of selling the crack to customers, Luciano and his girlfriend allegedly consumed it themselves. G went to Great Barrington, along with Michael Thompson and another man, to see Luciano. Upon arrival, Thompson allegedly battered Luciano with the plastic toy while the other man stabbed him. A jury convicted Thompson of violating Chapter 265, Section 13C, of the Massachusetts criminal code, and he appealed. Thompson argued that he could not be convicted of assault and battery for the purpose of collecting a loan because the crack was not a loan — a debt perhaps, Thompson argued, but not a loan. Basing his argument on the definition in Black’s Law Dictionary, Thompson argued that a “loan” was something given for temporary use with the understanding that it would be returned. Clearly, Thompson argued, no one intended for the crack to be returned. “At the very least, there’s an ambiguity, and under Massachusetts law, criminal statutes must be strictly construed with ambiguities resolved in favor of the defendant,” said Richard Russell of Falmouth, Mass., who is Thompson’s appellate attorney. However, Berkshire County Assistant District Attorney Joseph Pieropan, who argued the appeal for the commonwealth, said common sense must apply. ‘COMMON SENSE’ “Although there was no case law directly on point, common sense dictates that the law applies to unsavory characters other than loan sharks,” he said. Black’s or no Black’s, the appellate court sided with the commonwealth. “Such a spare construction of the term ‘loan,’” it ruled, “flies in the face of common sense and does not reflect its ordinary usage.” Nevertheless, Russell said, Thompson will appeal. “The court can make a stretch and say that this type of transaction is a loan,” he said. However, he added, “The problem is that under the law, they can’t make that stretch.”

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