News reports today indicate that Bravo celebrity Jen Shah was sentenced to 78 months for her role in a wire fraud that resulted in $5 million in losses.

For people unfamiliar with the federal sentencing guidelines, the base offense level for a wire fraud is enhanced by a number of levels that corresponds to the loss amount. For a loss of more than $3.5 million but less than $9.5 million, USSG 2B1.1 instructs that 18 additional levels should be added to the base offense level. The resulting offense level may then be further enhanced by additional characteristics of the crime including the number of victims and the the special vulnerability of victims, or additional characteristics of the offender, such as whether he or she used a special skill or abused a position of trust. The total offense level then corresponds to a range of months which increases vertically by the prior criminal history of a defendant.

In this case, Jen Shah’s attorneys requested a significant variance down from the applicable 130 month guideline range, insisting that Ms. Shah should serve no more than 36 months, or 3 years. To challenge Jen Shah’s recommended sentencing range, and justify such a significant variance, her lawyers presented mitigating factors pursuant to 18 U.S.C. 3553, which requires a sentencing court to consider the personal history and characteristics of the defendant, the nature and circumstances of the offense, and any other relevant factor that mitigate or reduce the defendant’s culpability.

Even though there are guidelines instructing recommended sentencing ranges for specific offenses, defendants are entitled to individualized sentencing that takes into account their personal history and circumstances, and the specific circumstances of the crime that may distinguish it from the “heartland” case. For defendants facing federal charges, it is crucial to hire a criminal defense attorney with experience in federal criminal matters, and the special skill required to assemble and present a compelling sentencing mitigation argument.

The lawyers at Stahl Gasiorowski. PC have represented hundreds of federal defendants before sentencing courts in New York, New Jersey and elsewhere. For each and every case, we delve into a client’s personal history, and the facts of the case, to present an exquisitely crafted sentencing memo that puts the client’s criminal conduct into context and establishes a reasoned and emotional basis for leniency. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300.

A recent high profile case highlights the federal government’s ability to seize a convicted defendant’s accounts to satisfy an Order of Restitution after a conviction at trial or a guilty plea. The Second Circuit recently held that the retirement funds of Evan Greebel, the former convicted attorney and Martin Shkreli’s codefendant, could be seized in partial satisfaction of the restitution amount owed. Greebel was convicted in a separate 2017 trial for assisting his client Shkreli’s fraudulent taking of funds from Retrophin to pay Shkreli’s hedge fund debts, and for manipulating the stock price of Shkreli’s drug company. After conviction, Greebel was sentenced to 18 months in prison and ordered to pay $10.4 million in restitution.

In its opinion, the Second Circuit upheld the trial court’s decision that Greebel’s 401(k) accounts at his former law firm were subject to garnishment in an effort to collect the restitution amount. The Second Circuit held that the Mandatory Victims Restitution Act (MVRA) gives the government full access to retirement funds, and that ERISA’s prohibition on disbursing retirement funds to third parties is trumped by the MVRA.

It is well-established that under 18 U.S.C. § 3664(m)(1)(A), the Government may enforce a restitution order in the manner provided by subchapter B of Chapter 229, or 18 U.S.C. § 3613. An order of restitution may be executed in accordance with the practices and procedures for the enforcement of a civil judgment under federal law or state law or by all other available and reasonable means. 18 U.S.C. § 3613 (a) and (f).

The MVRA broadly permits the United States to enforce a restitution order “against all property or rights to property of the person fined.” Pursuant to §3613(c), once restitution is ordered, all the defendant’s property becomes subject to a lien in favor of the United States, and for purposes of debt collection, such lien is treated like a tax lien. §3613(c). Thus, any property the IRS can reach to satisfy a tax lien, a sentencing court can also reach in a restitution order – bank accounts, retirement funds, stock accounts and even Social Security benefits. Additionally, while periodic payments (usually monthly payments through the Probation Department) in satisfaction of a restitution order are limited to 25% of the defendant’s disposable income, one time lump sums payments, such as the garnishment of a retirement or bank account, are not limited.

The only issue left unanswered by the Second Circuit in Greebel was whether the government could seize all the funds, or whether it had to leave the defendant sufficient funds to pay the 10% tax penalty for early withdrawal of retirement funds. In many instances, the amount left to a defendant to pay tax penalties and taxes on garnishment of retirement accounts can be negotiated with the government.

Stahl Gasiorowski Criminal Defense Attorneys have represented scores of clients facing restitution and forfeiture orders and garnishments. We actively and aggressively protect clients’ rights. To contact Mr. Stahl, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rstahl@stahlesq.com.

Earlier this month, the U.S. Department of Health and Human Services, Office of Inspector General (HHS, OIG) issued a special fraud alert advising healthcare providers to exercise caution when contracting with telemedicine companies. Such alerts are significant as they put providers on notice that OIG intends to investigate and prosecute potential fraud regarding telemedicine/. Such notices provide the opportunity for healthcare providers to review their practices and compliance, as well as list examples of suspect practices in the industry.

Historically, federal regulations limited the use and scope of telemedicine. It became widely available, however, during the COVID crisis that necessitated the loosening of government regulations. While a relaxation of regulations and restrictions offered patients greater access to physicians, it also opened the door to fraudulent conduct. In previous articles, we explored schemes involving compound medicines, genetic cancer screening (CGx and PGx tests) and durable medical equipment (DME) such as orthotic braces.

This latest fraud alert confirms that OIG is still aggressively targeting DME companies, laboratories and pharmacies using telehealth services. The OIG alert offers a non-comprehensive list of factors that they examine in potential fraud cases, including:

1. Patients that are referred to a practitioner through a telemedicine company, telemarketing, recruiter, call center, health fair or internet;
2. Practitioner has only limited access or contact with the alleged patient to meaningfully access the medical necessity of the services solicited;
3. Telemedicine company compensates the practitioner based on the volume of prescriptions and services;
4. Telemedicine company only provides services to federal health care program beneficiaries, and does not accept private insurance;
5. Telemedicine company only provides a single class of products such as braces, genetic testing, compound medicines – pain, scar and vitamin creams – thus limiting a practitioner’s treatment options; and
6. Telemedicine company does not expect its physicians to follow up with the patients regarding their prescriptions or services.

This alert expressly notes that proactive marketing that advertises free or low cost items or services covered by federal healthcare programs and exclusively marketed to such beneficiaries is “suspect”. Additionally, any program that limits a practitioner from contacting a patient to follow up or offer other medical services is suspect.

While HHS, OIG alerts provide valuable guidance for practitioners and other healthcare professionals, they also provide federal prosecutors the opportunity to argue that a provider’s good faith defense is limited after such an alert has been issued, i.e. that providers are on notice that such practices as suspect.

Stahl Gasiorowski Criminal Defense Attorneys have represented dozens of physicians, marketers, telehealth companies and pharmacists in federal healthcare fraud investigations. We proactively and aggressively protect our clients’ rights. To contact Mr. Stahl, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.

Cybercrimes – hacking, phishing, ransomware and the like – are well-known to every user of the internet. We are bombarded weekly with emails and texts claiming that we need to update our passwords, personal profile, and the like. Now comes the rise of what has been called “romance scams”. The typical scheme starts with a fake dating profile on an online dating site. Fake name, picture, background, likes and what the alleged person is looking for in a mate is established. Once selected, the fraudster starts a series of on-line communications that lure the unsuspecting victim in with attention, romance and affection. The fraudster then sets out a story about why s/he needs money – lost their passport and credit cards while on a trip; a co-worker was injured and it was the fault of the scammer; needs money for a sick relative – always with the promise to return the money.

In 2021, it was reported that victims were scammed out of at least $547 million, an 80% increase over 2020. This figure is likely conservative since many victims of romance scams are too embarrassed to report them or the amounts are too small for law enforcement to actively investigate. Not unexpectedly, recently divorced and windowed women are frequent targets of romance scams.

Federal law enforcement has discovered that many of these types of scams are run out of Nigeria by organized groups, a well-known hotbed for cyber fraud and money laundering schemes. Many others, however, are simply con artists here in the United States looking for easy marks by preying on someone’s kindness, loneliness and vulnerabilities.

While older woman are common targets, the government reported that people between the ages of 18-29 are increasingly targets resulting in a tenfold increase from 2017 to 2021. Netflix documented one such scam in its documentary “The Tinder Swindler”. The film recounted the exploits of Shimon Hayut who held himself out as the son of a famous Russian-Israeli diamond scion. He lavished his victims with first class travel, jewelry and clothing using the proceeds from prior victims. His promotion of his lavish lifestyle on social media – private jets, yachts, expensive watches and clothes – was one way he recruited his victims. Once he lured a woman in, he then fabricated tales of being in danger and needing money for his safety.

These types of schemes are particularly heinous. They not only deprive the victims of often limited resources, they prey on their vulnerabilities, often leaving the victims psychologically scarred and feeling deeply violated. Victims are often too embarrassed to tell family, friend or law enforcement. Some are even left believing that the person who romanced them was genuine and something bad must have happened to him after they lose contact.

Recently, U.S. Attorney’s Offices, FBI and other federal agencies have been aggressively investigating and prosecuting these hideous schemes as often there are multiple victims totaling substantial losses.

Stahl Gasiorowski Criminal Defense Attorneys actively and aggressively protect clients’ rights. To contact Mr. Stahl, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.

In response to a dramatic surge in car thefts across New Jersey, State Attorney General Matt Platkin announced today that he is reversing a policy that prevented police officers from pursuing stolen cars. In late 2021, Platkin effected a statewide policy that prohibited police from chasing a stolen car unless they suspected it had been used in the most serious of crimes, such as murder, vehicular homicide or kidnapping. Thus, the A.G.’s policy prohibited police from pursuing a car simply because it had been stolen.

After scores of stolen vehicles, and complaints from citizens, local government officials and police, Platkin relented to now permit police to chase a car they think has been stolen.

Last year, Platkin said he wanted to limit police chases because high-speed car chases are dangerous, and can put police officers and innocent drivers alike at risk. It was part of an overhaul led by Governor Murphy to reduce the use of force by police. However, with motor vehicle thefts up 127% from last January state officials recognized that the policy needed to be changed.

In addition, Platkin and Gov. Murphy announced that the state would use $10 million in American Rescue Plan funds to purchase automated license plate recognition technology. The funds will allow local police departments to purchase high-speed, automated camera systems that capture and store computer-readable images of license plates. These license-plate readers will be placed at “strategic locations throughout” towns and the N.J. State Police will also deploy cameras along major highways.

According to the Attorney General’s office, the most commonly stolen luxury vehicles are BMW X6, Land Rover Range Rover Sport, Audi Q5 and BMW X3.

The top vehicles stolen statewide in 2022 include Honda Accord, Jeep Grand Cherokee, Honda CR-V, BMW X5 and BMW 3-Series.

High speed chases are dangerous to the officers involved, as well as innocent drivers and pedestrians that may be injured when the stolen vehicle or the police crash. Police must use common sense, as well as policy guidelines, in their pursuits. More often than not, a stolen vehicle is just that – stolen – not a car being used to commit a serious felony. Many high end cars are stolen from wealthy suburbs because the owners negligently leave the keys in their car in their driveway or unlocked garage. Others are left running at convenience stores while their owners run in for a quick purchase. These types of thefts are crimes of opportunity and can be easily eliminated. Other car thefts involve use of force, specialized electronic equipment or fraudulent schemes that obtain access to vehicles that are much more difficult to combat.

Stahl Gasiorowski Criminal Defense Lawyers have extensive experience representing individuals charged with federal and state felonies. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at rstahl@stahlesq.com.

The Department of Justice just announced charges against 21 individuals in a nationwide crackdown of COVID-19 related prosecutions that resulted in $150 million worth of fraud. The schemes were varied and involved medical doctors, medical labs, marketers and others in the healthcare field.

For instance, two owners of a lab in California allegedly billed more than $125 million in fraudulent claims. In Maryland and New York drive through test site operators are accused of using confidential patient information to bill for lengthy office visits that never occurred. In New Jersey, five individuals were accused of paying or receiving kickbacks for referring COVID tests to a particular lab. Even though the tests were medically necessary, and the lab only billed the allowable rate to the government program, the lab was accused of violating the anti-kickback statute that prohibits paying individuals or companies to refer tests.

The Maryland case charged a physician with submitting false claims to Medicare and private insurers. The defendant owned drive through COVID testing sites. Employees gathered patient information at the sites and later submitted false claims for complex in office visits for other healthcare procedures that never occurred.

In Florida, a registered nurse was charged with signing huge numbers of medically unnecessary doctor’s orders in exchange for sham telemedicine consulting fees. Another case in Florida charged individuals with fraudulent Medicare billing for medical equipment that was obtained by paying kickbacks to marketing companies that solicited patients for equipment they didn’t need.

In other schemes, defendants in California were charged with allegedly counterfeiting vaccine cards. Another case involved a hospital pharmacy director who obtained authentic Moderna dose lot numbers and used them to falsify vaccine ecards.

In New Jersey, one of the District’s first healthcare fraud trials just resulted in a guilty verdict against a medical sales representative of a diagnostic lab who paid kickbacks to a physician for referring tests to the lab. In an effort to disguise the kickbacks, the marketer placed the physician’s medical assistant on the lab’s payroll. In a related scheme, the marketer was paid for promoting medically unnecessary compound medicines that certain insurance plans covered. The defendant and others paid kickbacks to doctors to prescribe the unnecessary compounds without even examining the patients.

Other cases have charged individuals with fraudulently obtaining relief funds from the Coronavirus Aid, Relief and Economic Security Act. A 2020 bill that provided billion in emergency financial assistance.

These and scores of other cases highlight federal authorities continuing investigations and DOJ’s aggressive prosecution of a variety of healthcare fraud schemes. These schemes involve medically unnecessary compound medicines, genetic cancer tests, kickbacks on prescriptions for DME – durable medical equipment – such as braces, as well as COVID-19 tests.

Federal healthcare laws and regulations are complex. There are countless ways for doctors, pharmacists, lab owners and marketers to violate these laws. Stahl Gasiorowski Criminal Defense Lawyers have extensive experience representing individuals and corporations accused of healthcare fraud. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at rgs@sgdefenselaw.com.

In addition to the 93 U.S. Attorney’s Offices around the country that investigate and prosecute health care fraud, the Fraud Section of the Department of Justice’s Criminal Division based in Washington D.C. has approximately 76 federal prosecutors devoted to such prosecutions. This DOJ Unit targets complex health care fraud involving illegal prescription, distribution and diversion of opioids; telemedicine fraud; and fraud related to COVID, including counterfeit vaccine cards.

The just released year-end report for 2021 reveals the total cases prosecuted and significant cases of note. The unit charged 202 individuals involved in $1.75 billion in alleged losses, with a significant number of guilty pleas, as well as convictions at trial.

Just in September 2021 alone, DOJ announced charges against 138 defendants, including 42 medical professionals, in connection with a national health care fraud enforcement action.

The Unit is assisted by a data analytics team that identifies suspicious health care billing patterns and likely geographic hotspots for fraud and illegal opioid distribution. In 2021, this data analytics team made 385 proactive investigative referrals to various federal law enforcement agencies.

In addition to the illegal prescription and distribution of opioids, the Unit has aggressively targeted laboratories, telemedicine doctors and nurse practitioners, marketers and pharmacies engaging in illegal kickback schemes. These schemes are designed to induce medical professionals to order medically unnecessary compound medicines, such as pain creams, scar creams, vitamins and migraine medication; or orders for unnecessary laboratory tests for genetic cancer screenings. The payments include money based on a per prescription basis, whether in the form of direct payments, payments to the physician’s spouse, or disguised as lease payments or alleged ownership interest payments for a physician-owned lab.

Stahl Gasiorowski Criminal Defense Attorneys actively and aggressively defend clients being investigated and prosecuted for health care fraud. Over the past five years we have defended numerous physicians, pharmacists, marketers and lab owners accused of health care fraud. To contact Mr. Stahl, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.

When someone pleads guilty or is convicted of a federal or state crime, there are serious collateral consequences, in addition to potential jail time, forfeiture, restitution and other fines and penalties. The term ‘‘collateral consequence’’ means a collateral sanction or a disqualification, a penalty, disability, or disadvantage that is imposed by law as a result of an individual’s conviction for a felony, misdemeanor, or other offense, but not as part of the judgment of the court. Collateral consequences are legal and regulatory restrictions that limit or prohibit people convicted of crimes from:

• Accessing employment
• Business and occupational licensing
• Housing
• Voting
• Possession of firearms and hunting licenses
• Education
• Military service

A federal conviction results in the loss of the right to:

• Vote,
• Possess firearms,
• Sit on a jury
• and may result in travel bans from many countries.

Depending on the type of crime, the person’s professional license may be suspended, or the person may be banned or debarred from certain federal programs for a period of years.

There are more than 45,000 state and local laws and regulations that have profound ramifications for those with criminal records. Roughly 600,000 people leave prisons every year hoping that their punishment has ended, only to encounter a combination of laws, rules, and biases forming barriers that block them from jobs, housing, and fundamental participation in our political, economic, and cultural life. These collateral consequences illustrate the excessively retributive nature of our criminal justice system.

Currently, 30 states disenfranchise at least some people based on past conviction. Some collateral consequences serve a legitimate public safety or regulatory function, such as keeping firearms out of the hands of people convicted of violent offenses, prohibiting people convicted of assault or physical abuse from working with children or the elderly, or barring people convicted of fraud from positions of public trust. Others are directly related to a particular crime, such as registration requirements for sex offenders or driver’s license restrictions for people convicted of serious traffic offenses. But some collateral consequences apply without regard to the relationship between the crime and opportunity being restricted, such as the revocation of a business license after conviction of any felony.

These consequences create social and economic barriers for individuals reentering society by denying or restricting benefits otherwise available to all Americans. Collateral consequences can also adversely affect adoptions, housing, welfare, immigration, employment, professional licensure, property rights, mobility, and other opportunities. The effects of such restrictions often increase recidivism and undermines meaningful reentry.

Despite these sweeping adverse consequences, defendants are generally not entitled, as a matter of due process, to be warned of these consequences, either before accepting a plea or upon conviction. Although the U.S. Supreme Court has required consideration of certain immigration effects of a criminal conviction, the Court left open what other disenfranchisements might rise to the level requiring constitutional protection.

The attorneys at Stahl Gasiorowski Criminal Defense advise all of our clients of the potential collateral consequences of their plea or conviction. We routinely represent licensed professionals that may face parallel administrative actions or hearings seeking to suspend their license based upon the criminal investigation or charges

Stahl Gasiorowski Criminal Defense Lawyers have extensive experience in serious federal and state criminal cases. The founder of the firm, Robert Stahl, is a Certified Criminal Trial Attorney by the Supreme Court of New Jersey, a Fellow of the American College of Trial Lawyers and a former Assistant U.S. Attorney who tried some of the largest fraud and tax cases in the District of New Jersey. He has been aggressively defending serious cases in federal and state courts for more than 25 years.

Newly sworn in Manhattan District Attorney Alvin Bragg issued new policies and procedures to his staff that substantially altered existing office policy in prosecuting criminal cases. The new directive defers certain prosecutions for lower-level offenses, reduces certain felony offenses, prohibits seeking life in prison without parole, and prohibits seeking bail except in limited violent offenses.

Bragg ran on a progressive platform that promised to overhaul the system and to reduce the number of people behind bars. His first major directive seeks to implement his ideology toward charging, bail and sentencing in the face of rising crime rates throughout the city and calls from officials and the public to crack down on crime. The new policies are a reflection of the DA’s personal experiences growing up in New York, as well as his goal to link safety with fairness.

In broad strokes, the new policy calls for

1. More diversion and alternatives to incarceration for individuals in crisis and youthful offenders;
2. Reduction in pretrial incarceration, recognizing the ongoing multitude of problems in Rikers, limiting such incarceration to violent crimes and limited exceptions;
3. A focus in sentencing on accountability rather than the length of the sentence as research shows that certain longer sentences do not deter crime or provide greater community safety;
4. Limit youthful offenders (up to age 25) in adult court system; and
5. Actively support those reentering society after their prison terms.

This sweeping directive affects decisions regarding charging, pretrial
detention, dispositions, cases involving juveniles and charges against non-citizens. It represents a major shift in existing policy that called for charging the most serious offenses possible in the majority of cases. As for non-citizens, the directive calls for avoiding dispositions that would affect immigration status and lead to potential removal from the country.

Many of the directive’s goals are laudatory and long overdue. Prosecutors around the country routinely and reflexively charge the most serious possible offenses rather than examining the specific facts, background of the individuals, mitigating circumstances and other relevant information. At the charging phase, defendants are broadly categorized and face lengthy prison sentences.

The new policy requires ADAs to examine each case individually, based on the type of the offense, the age and circumstances of the defendant and other relevant factors. By doing so at the charging phase, rather than at sentencing where many jurisdictions limit judges’ discretion through sentencing guidelines and mandatory-minimum laws, DA Bragg believes that fairness will result in greater safety to the community. Time will tell whether the new policy will yield the intended results.

Stahl Gasiorowski Criminal Defense is here for all your criminal legal needs. We are experienced in all types of complex criminal matters involving a many types of electronic evidence. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at rstahl@stahlesq.com.

In an internationally watched case, the Pennsylvania Supreme Court overturned Bill Cosby’s conviction finding that he had been improperly prosecuted after relying on what he believed was a promise of immunity from then District Attorney Bruce Castor which caused Cosby to testify in a civil case brought by one of his victims and make various statements against interest that were later admitted in his criminal trial.

In 2015 Cosby was charged with sexually assaulting a former Temple University basketball coach, Andrea Constand more than 10 years prior. Ms. Constand had also filed a civil lawsuit against Cosby over the assault. Then D.A. Castor, who later went on to some notoriety for briefly representing former President Donald Trump, issued a public statement that he would not file criminal charges because he had concluded that a criminal conviction was highly unlikely. The majority of the Pennsylvania Supreme Court found that Castor’s statement was designed to coerce Cosby to testify about the assault in the civil suit. Had Castor not made this statement, the Court reasoned that Cosby would have asserted his Fifth Amendment right not to testify in the civil deposition, rather than testifying and incriminating himself. Since Castor’s successor at the D.A.’s Office later charged Cosby, and the prosecutors used Cosby’s civil deposition testimony at trial, the Court found that Cosby’s rights had been violated.

Interestingly, the Court found that while the record supported a finding that no formal non-prosecution agreement existed and that Castor had been equivocal about any future prosecution, the Justices reasoned that the real issue was the extent to which Cosby relied on what he believed was a promise by the D.A. Holding that this was an issue of fundamental fairness and a violation of due process, the Court overturned the conviction and barred future prosecution on the Constand assault.

While concurring that Cosby’s due process rights were violated, Justice Dougherty said that the remedy should have been simply barring the deposition evidence from the criminal trial. Justice Dougherty stated “we should not use Castor’s ‘blunder’ to place Cosby in a better position that he otherwise would have been in by forever barring his prosecution.” Dissenting Justices disputed that Castor’s public statement created a binding promise that Cosby could have relied on in deciding to testify in the civil deposition.

While there is understandable outrage that Cosby’s conviction was overturned, particularly because so many victims came forward to bravely testify that he drugged and sexually assaulted them, and the fact that some of Cosby’s defenders now claim that he was a victim and has been fully exonerated, issues of due process and fundamental fairness are at the core of our system of justice. When those are violated, the remedy in a particular case may be harsh, but the Constitution and law are more important than one individual or one case. The Pennsylvania Supreme Court did not find that Cosby was not guilty, and those supporters who claim that he was simply refuse to listen to and credit the overwhelming evidence presented at trial against him.

Stahl Gasiorowski Criminal Defense is here for all of your criminal legal needs during this time. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at rstahl@stahlesq.com.

Police investigations and criminal trials are, in an ideal world, intended to discover the truth, identify the guilty, and exonerate the innocent. Unfortunately, the world we live in is far from ideal, and investigations and trials are conducted by human beings who are vulnerable to error, prejudice and, at times, outright corruption. Sometimes, despite the sincere best efforts of everyone involved, mistakes are made and a wrongful conviction occurs. Other times, as in the case of Barry Gibbs of New York, something more sinister is at work. Mr. Gibbs served 17 years of a second-degree murder sentence before it was discovered that the investigating detective had framed him to cover up a Mafia-related killing.

The story of Gibbs’ wrongful conviction began in 1986. At that time Gibbs, a Navy veteran and a postal worker, was accused of murdering Virginia Robertson. Ms. Robertson was found strangled to death on November 4th, 1986, her body dumped near the Belt Parkway and covered with a blanket. A jogger witnessed the dumping of the body, reporting initially that he had seen a Caucasian man, about 5’6” and 140 pounds, removing the body from a gray car. Although Mr. Gibbs was substantially taller and heavier than this description, the witness picked him out of a police lineup and later identified him on the witness stand. That jogger, David Mitchell, later admitted that he had been forced to lie by the investigating detective, Louis Eppolito, who had threatened his family.

Coercing an eyewitness was not the only way in which Eppolito molded the evidence to point to Mr. Gibbs. The killer had been seen wearing a pair of red jeans, and a similar pair turned up in a search of Gibbs’ residence – though they did not fit him. Gibbs owned a gray car, but it had long been inoperable with two flat tires. A police informant who was incarcerated with Mr. Gibbs before trial claimed that Gibbs had admitted to the murder, though other witnesses who were imprisoned with Gibbs asserted that Gibbs maintained his claims of innocence throughout his incarceration. Mr. Gibbs has also claimed in the civil rights lawsuit he filed after his eventual exoneration that Eppolito withheld evidence from prosecutors that would have exonerated Gibbs, and that Eppolito beat him until he gave a false confession. On the strength of this and other fabricated evidence, Mr. Gibbs was convicted of second-degree murder in 1988.

A break in Mr. Gibbs’ case finally came in 2005, when the former detective, Eppolito, and his partner Stephen Caracappa, were indicted for crimes committed in connection with their ties to the Luchese crime family, including passing along documents and information about police investigations and participating in Mafia killings or covering them up. An attorney working with The Innocence Project, an organization that works to help the wrongfully convicted clear their names, recognized Eppolito as the investigating detective in Gibbs’ case and pushed for a federal investigation. A search of Eppolito’s Las Vegas home turned up Gibbs’ case file, which was missing from police records. The case against Barry Gibbs began to unravel as the extent of Eppolito’s corruption was revealed.

Barry Gibbs was finally exonerated and released from prison in September of 2005, after serving 17 years of his sentence, plus the two years he spent in prison awaiting trial. The world had changed dramatically in nearly two decades, forcing Mr. Gibbs to adapt to computers, cell phones, and countless other changes in technology and society. With his attorney’s help, he sued the City of New York for the violation of his rights and his wrongful conviction and incarceration. A settlement was reached, and in 2010 the City agreed to pay Gibbs $9.9 million. That strikes most people as a huge sum of money, but serving almost 20 years in prison for a crime he did not commit exacted a high toll on Mr. Gibbs, leaving him with lasting emotional scars. A corrupt police officer robbed Gibbs of almost two decades of his life and branded him a murderer. Though the system did eventually work to correct its error, without the efforts of private organizations like The Innocence Project, Mr. Gibbs would still be behind bars.

The case of Barry Gibbs illustrates how helpless an innocent person is in the face of a justice system that has already decided their guilt (or has reasons to make them appear guilty). Only because Mr. Gibbs had access to the help of experienced legal professionals was he eventually able to clear his name. A good defense attorney has access to resources and connections that private individuals lack, and understands the law and police procedure. Not all police are Louis Eppolito, but even honest mistakes can lead to a wrongful conviction. You deserve the protection of experienced legal representation. That representation must start as early in the process as possible. If Mr. Esposito had the resources to retain aggressive, skilled criminal defense counsel form the outset, his case and life might have been very different.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us atrstahl@stahlesq.com.