By Laura K. Gasiorowski, Esq.

My partner Robert Stahl and I recently met with a potential client who was served with a Grand Jury Subpoena and was concerned about the potential criminal investigation and charges. This client came to the meeting with a detailed list of questions for us, many of which concerned our background, experience, and approach to handling a federal criminal case. These questions prompted me to think about what is the most important qualifications for hiring the right lawyer when a client is facing potential prosecution by the federal government.

Facing criminal charges is one of the most serious and stressful experiences anyone can endure. Whether you’re under investigation or have already been charged, one of the most important decisions you will make is choosing the right attorney to represent you. The stakes are high — your freedom, reputation, and financial future are all on the line. When the criminal charges might be federal, it is even more important to make sure that you choose the right attorney to defend you. When it comes to defending against complex federal charges, especially white-collar crimes such as fraud, embezzlement, or insider trading, not all criminal defense lawyers are the same. Here’s what you should look for when hiring a white collar criminal defense attorney:

1. Federal Court Experience Matters: Federal cases are vastly different from state criminal cases. The criminal statutes are more complex, and the penalties more severe. Federal cases also differ from state cases in terms of procedures, judges, prosecutors, and the applicable Rules. Make sure your attorney regularly practices in federal court, particularly in the jurisdictions where your case is pending (e.g., the Southern District of New York, Eastern District of New York, or District of New Jersey). At Stahl Gasiorowski, our primary practice area is federal criminal defense, which includes white-collar criminal defense and corporate investigations, in the District of New Jersey, and in the Eastern and Southern Districts of New York. We can, and have, handled federal criminal cases in Pennsylvania, California, Massachusetts, Maryland, Alaska and West Virginia as well.

Ask: – How many federal cases have you handled in this district? – What types of federal charges have you defended?

1. Specialization in White Collar Crimes: These cases often involve complicated financial transactions, regulatory issues, and intricate investigations that often require the assistance of investigators, experts and e-discovery providers. Electronic discovery in federal white collar cases can be staggering… in the terabytes… and require significant resources, time and familiarity with review platforms. In addition, all federal criminal cases require a deep familiarity and experience with the Federal Sentencing Guidelines, which your attorney must understand in order to assess your potential sentencing exposure, as well as the complicated law regarding determination of forfeiture, restitution and losses for Guideline purposes. In many cases, there are also parallel civil investigations, by the SEC, FINRA or other entities. Your attorney should have a track record defending clients charged with white-collar offenses like wire fraud, securities fraud, tax fraud, or conspiracy and other violations of federal law.

Ask: – Have you defended clients in cases similar to mine? – Do you have experience dealing with federal prosecutors, agencies like the SEC or IRS, or parallel civil investigations?

1. Reputation and Credibility: Federal prosecutors respect experienced defense attorneys who have a proven reputation in the courtroom. Judges, too, take notice of skilled advocates with a history of effective, ethical representation. Familiarity with the prosecutors (AUSAs) in the United States Attorneys’ offices, with the Judges on the bench, and with the Pretrial Services and Probation Officers is an asset when negotiating a plea, seeking to reduce charges, obtaining release or more lenient release conditions, or obtaining services for your client.

Look for: – Recognition by legal organizations – positive client testimonials – peer endorsements from other attorneys

1. Strategic Approach to Early Intervention: The earlier your attorney can get involved in your case, the better the chances of limiting your exposure to charges or penalties. Look for a lawyer who emphasizes early intervention — engaging with prosecutors before charges are filed can sometimes prevent an indictment altogether.

Ask: – How would you approach early negotiations with the government in my case?

1. Trial Experience: You may be surprised to learn that the vast majority of federal criminal cases resolve with pleas, not trial. This is because such cases are more thoroughly investigated than state cases, with greater resources. In federal trials, there is a significant “trial penalty” that may result in a more severe sentence. Sometimes, the best attorney may not be the one with the most trials under their belt, because many white-collar defense attorneys are successful by avoiding charges altogether, or resolving cases short of a trial through plea or alternative dispositions. That said, while many cases resolve through negotiations, hopefully resulting in no charges, reduced charges and a favorable plea or other disposition, you need an attorney who is fully prepared to go to trial if necessary. A lawyer who isn’t afraid to take your case before a jury can often secure better plea deals or dismissals simply because the prosecution knows they’re facing a formidable opponent who is willing and able to go to trial if necessary.

Ask: – How many federal jury trials have you conducted? – What were the outcomes of those trials?

1. Personal Attention and Communication: Federal cases can drag on for months or even years. Choose an attorney who will provide personal attention, keep you informed at every stage, and answer your questions honestly. At Stahl Gasiorowski, we take on a limited number of clients and cases so that we can provide that personal attention and devote the time necessary to thoroughly investigate and prepare a defense. We are criminal defense attorneys first and foremost. As a small firm, we provide big firm expertise, and obtain big firm results, at a better price point, and without layers of administrative assistants and lower level associates. Our partners will be handling your case.

Ask: – Who will be handling my case day-to-day? – How often will I get updates?

Bottom Line: If you or your business is under federal investigation or facing white-collar criminal charges, choosing the right lawyer is your first line of defense. Don’t settle for general criminal defense — find an advocate with federal experience, a deep understanding of white-collar law and the sentencing guidelines, and a reputation for winning tough cases or achieving good results with alternatives to incarceration, favorable pleas or non-prosecution agreements.

If you’d like a confidential consultation to discuss your federal case, contact us today. We have extensive experience defending individuals and businesses in federal courts in New Jersey and New York, and we’re ready to fight for you.

Stahl Gasiorowski Criminal Defense Lawyers have successfully represented hundreds of individuals under complex federal and state investigations with terabytes of discovery. 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 Ms. Gasiorowski at lkg@sgdefenselaw.com or Mr. Stahl at rgs@sgdefenselaw.com.

Federal agents and AUSAs serve subpoenas that demand the production of huge amounts of documents and data. They seek search warrants that authorize the seizure of every electronic device at the location to be searched – computers, servers, external hard drives and cell phones. They seize tens of thousands of emails, texts and other forms of communication from businesses and individuals. This common investigative tactic results in an exponential growth in seized data to be reviewed and turned over in discovery to the defense.

A few years ago, after several high profile cases exposed the Department of Justice’s failures in processing and timely disclosing seized data to the defense, the DOJ told U.S. Attorney’s Offices around the country to collect less evidence. In late 2022, a training program was implemented to teach more than 6000 federal prosecutors to be more selective in the evidence sought and seized. This was the so called “smart collection” approach.

This approach was developed because DOJ struggled to fund and find the software and personnel needed to store and analyze the volume of electronic evidence seized. In fiscal year 2023, DOJ requested $27 million for U.S. Attorneys’ offices “e-Litigation modernization”, including 52 new positions and technology upgrades. This was in addition to DOJ’s $1.5 billion e-discovery vendor services contract awarded in 2020 and set to expire in 2027.

Putting aside the government’s issues and budget, seizures of terabytes of data require an enormous expenditure of time and resources for the defense. Effective review of the data requires hosting a search platform that can search millions of pages for key words, names and dates in an expedient fashion. Outside vendor platforms can cost thousands of dollars a month just for the platform. Add to that the time spent by paralegals and associates conducting the actual searches and initial review of the documents, and then the further review by the attorney handling the case. One can quickly see that only well-funded clients, or ones with some type of insurance or corporate backing, can afford zealous representation.

The costs for the review of massive amounts of documents and other data, coupled with potentially much lengthier prison sentences post-trial rather than a negotiated plea, account for the 95-97% rate of pleas in the federal system. Few individuals can afford the costs of a trial – legal and discovery fees, expert witness fees and the so-called “trial penalty” (harsher sentences after a loss at trial).

DOJ must do better at seizing and turning over data that falls within the confines of the items authorized to be seized in the warrant, and limiting the scope of the documents sought in grand jury subpoenas. Courts must enforce discovery obligations on the government and compel the government to produce the discovery in a timely and organized fashion that permits defendants to be properly and zealously represented, including those defendants that cannot afford costly search platforms.

Stahl Gasiorowski Criminal Defense Lawyers have successfully represented hundreds of individuals under complex federal and state investigations with terabytes of discovery. 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@stahlegasiorowski.com Ms. Gasiorowski at lkg@stahlegasiorowski.com.

For years, courts around the country have admitted “expert” testimony on bitemark analysis. These so-called experts have opined that bitemarks on human skin, often presented in sexual assault and murder trials, are distinct and “match” the defendant’s dental records.

A new comprehensive federal report from the National Institute of Standards and Technology (NIST), still in its draft/commentary stage, finds quite the opposite. The report states in relevant part, “forensic bitemark analysis lacks a sufficient scientific foundation because the three key premises of the field are not supported by the data . . . . First, human anterior dental patterns have not been shown to be unique at the individual level. Second, those patterns are not accurately transferred to human skin consistently. Third, it has not been shown that defining characteristics of those patterns can be accurately analyzed to exclude or not exclude individuals as the source of a bitemark.”

Bitemark analysis relies on the assumptions that teeth marks are unique, that they reliably transfer to surfaces such as skin, and that the marks can then be analyzed and linked to specific individuals. The NIST Report notes that it is not clear that bites leave distinct patterns because bites usually consist only of the front (anterior) teeth and the marks they leave can vary greatly depending on injuries, breakages, or obstructions. Second, skin is the surface most often analyzed for bitemarks, but it’s malleable and doesn’t reliably hold teeth marks over time depending on the rate and amount of swelling at the site, healing, and skin elasticity. Third, linking bitemarks that may or may not be unique, left on elastic surfaces that swell and heal, to people is riddled with uncertainty.

The Report’s key takeaways reveal that bitemark analysis lacks sufficient scientific foundation; dental patterns have not been shown to be unique; those patterns are not accurately transferred to human skin consistently; there is a lack of data to demonstrate that anterior (front teeth) dental patterns are unique; a number of studies have shown high levels of inaccuracies; and there is insufficient support in the scientific community as to the accuracy of such analysis.

Bitemarks, along with hair and shoe prints analysis, all have been debunked to a large extent in recent years as lacking objective test of scientific validity. Yet, scores of defendants remain in prison based, at least in part, on highly questionable “expert” analysis and testimony. The scope of the problem was evidenced in 2015, when the FBI admitted that nearly every one of the experts at its microscopic hair analysis lab had given scientifically invalid testimony. This erroneous testimony affected close to 270 cases, of those, 32 defendants were sentenced to death and 14 were executed or died in prison.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend our clients’ rights, including moving to exclude faulty analysis of crime scene “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 the past, federal agents and prosecutors have sought subpoenas and search warrants that authorize the seizure of every electronic device at the location to be searched – computers, servers, external hard drives and cell phones. This policy has resulted in an exponential growth in seized data to be reviewed and turned over in discovery. After several high profile cases exposed the Department of Justice’s failures in processing and timely disclosing seized data to the defense, the DOJ has told U.S. Attorney’s Offices around the country to collect less evidence.

DOJ officials disclosed this new emphasis in an interview with Bloomberg Law. In a program set to launch later this year in mandatory training for more than 6,000 federal prosecutors, DOJ will instruct them to be more selective in the evidence sought and seized. This controversial policy shift will emphasize a “smart collection” approach in DOJ’s annual discovery training.

As with most new policies, some veteran prosecutors are pushing back claiming that the new policy could result in missing valuable evidence, result in less than thorough investigations, miss exculpatory information and is generally not in the government’s best interests.

For its part, DOJ readily acknowledges that it is a constant struggle to fund and find the software and personnel needed to store and analyze the volume of electronic evidence seized. DOJ requested $27 million for U.S. Attorneys offices for the next fiscal year for “e-Litigation modernization”, including 52 new positions and technology upgrades. DOJ already has a $1.5 billion e-discovery vendor services contract awarded in 2020 that is set to expire in 2027.

Despite the massive amount of money, search platforms and personnel devoted to electronic discovery, there have been a plethora of cases that have revealed DOJ’s failure to timely analyze and turn over discovery to the defense. And when discovery is turned over, often times it is in a massive dump in an unusable format that the defense must then retain its own experts to load onto costly search platforms. By tailoring government searches of electronic devices, the government acknowledges that its past practice of grabbing every bit of data is impractical and unworkable. While the government claims that it is at a disadvantage to well-funded big law and corporations in reviewing large amounts of electronic data, the reality is that most individuals charged in federal fraud cases are the ones at a disadvantage. The vast majority of defendants cannot afford the costs of web-based search platforms and 100s or 1000s of hours it takes to search and review potentially the electronic data. Data that may be critical defense evidence that may go undiscovered.

Stahl Gasiorowski Criminal Defense Lawyers have successfully represented hundreds of individuals under complex federal and state investigations with terabytes of discovery. 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.

It’s 6 a.m. or 8 p.m., your doorbell rings and two people are standing outside holding up their badges and credentials. They say they are Special Agents with the FBI or IRS and would like to talk with you for just a few minutes about something important. They ask if they could come in to speak with you privately. Caught off-guard, and not wanting them to think that you have anything to hide, you invite them in (and, of course, you don’t want your neighbors to see them talking to you on your front steps). The agents are “friendly” and just have a few questions to get your input, your side of things, or to serve you with a grand jury subpoena. You decide to talk to them, only for a few minutes, in the comfort of your own home or office. At the end, they thank you for your time and hand you either a grand jury subpoena or a “target letter.”

After they leave, you start to wonder – what did I say? How much did I tell them? Am I in trouble, did I implicate myself or others? You start to look for an attorney. You can’t ask your family or friends who they hired last time the FBI or IRS visited them because you don’t know anyone who ever faced such a situation. So, you scour the internet to find an experienced criminal defense attorney, one with a lot of federal experience because it’s a federal investigation.

The next day you’re in the attorney’s office. After talking to the attorney you realize that what you thought was an innocuous 15 -30 minute chat with the FBI was actually an hour and a half where you told them some things, but not others. You discover that it is a federal crime to lie to the agents. You learn that it doesn’t matter that they didn’t read you your rights, like in the movies, because you weren’t “in custody.” When you tell the lawyer that you only spoke to them because you didn’t want the agents to think you were involved or guilty, the lawyer tells you that the agents already think that you’re involved, that’s why they were at your house to interview you in the first place. You then learn that there were two agents so that the interview was witnessed by two of them for credibility later on if you dispute what you said. You learn that a “target letter” is issued by an Assistant U.S. Attorney because she believes that you are involved in criminal activity and wants you to come in with your attorney to negotiate a plea of guilty. You realize that it was a mistake to say anything to the agents without first talking with an experienced white-collar criminal defense attorney.

So, what should you do in such a situation? The safest course would be to politely tell the agents that while you would like to talk with them, you need to contact your attorney and that he will get back to them. Ask them for their business cards so that you can give the information to your attorney. If they don’t have cards, write down their names, agency and contact information. Do not under any circumstances talk with them about the subject matter of their investigation. After they leave, contact an experienced criminal defense attorney to discuss your rights, potential exposure and your options.

If you did talk with the agents, experienced criminal defense counsel can help you get through the situation and protect your rights going forward. The task will be to mitigate any statements made and develop an overall strategy to succeed.

Stahl Gasiorowski Criminal Defense Lawyers have successfully represented hundreds of individuals under federal and state investigations. 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.

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.

ProPublica recently reported that Facebook hired 1000 workers around the world to review WhatsApp messages that are flagged as “inappropriate.” WhatsApp markets itself as a private messaging platform that secures those messages with end-to-end encryption that only the participants can view. Billions of people around the world use WhatsApp and other such “secure” messaging services to exchange private, sensitive business or personal messages.

When Facebook purchased WhatsApp in 2014, both companies assured their users that their messages could not be accessed by either company. However, we have now learned that Facebook not only reviews flagged messages, but has on occasion shared those messages with the Department of Justice and other law enforcement agencies in criminal investigations. ProPublica discovered that hourly contract workers in Texas, Ireland and Singapore review millions of users’ content using Facebook software to sift through private messages, images and videos that have been reported by WhatsApp users as improper. These workers then review the flagged content for claims of fraud, child porn, terrorism and the like.

The head of WhatsApp dismissed the report as a non-story, asserting that its end-to-end encryption platform is secure even as the company works with law enforcement to solve crimes. In fact, ProPublica discovered more than a dozen instances where data from WhatsApp was used in criminal prosecutions since 2017. WhatsApp defends its actions arguing that it hired the workers to identify and remove the worst abusers from the platform, not to control or moderate content.

While the benefits of uncovering crimes involving child pornography or terrorist plots may outweigh users’ privacy, the real question is whether contract employees of a for-profit company should be the ones making those decisions. When law enforcement seeks to review a user’s content – emails, web searches, messages – it must obtain a court authorized warrant based on probable cause. The standards used by WhatsApp, and its parent company Facebook, do not require probable cause or an independent determination by a judge. What standards and training, if any, are provided to these contract employees to review private communications is unknown. The old adage -let the buyer (in this case user) beware applies. End-to-end encryption is only as private as the platform it’s on.

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.

A new, just released report shows the number of federal and state-authorized wiretaps conducted in 2019. A wiretap is a court-authorized warrant, allowing law enforcement to listen to and record conversations and/or text messages on a target’s phone. In most jurisdictions, the law enforcement agency applying for such an order must demonstrate that there is probable cause to believe that the target is engaged in a specified unlawful activity, that he uses the particular phone to conduct his illegal activity, that traditional methods of investigation have been tried or would not likely be successful, and that the wiretap is necessary to uncover the full extent of the target’s criminal activity, and/or the other coconspirators’. Such authorizations are usually limited to a 30-day period, but can be extended by a court under certain circumstances. Many individuals in the United States use encrypted messaging to protect their privacy – some for innocuous reasons, others for more illicit ones. Encryption may not, however, protect messages and conversations from being produced pursuant to a wiretap.

The aforementioned report shows court-approved wiretaps have increased over time. State wiretaps that uncovered encrypted messages increased to 343 in 2019, up from 146 the prior year. Of these, authorities were unable to decipher plain text messages in all but 9. Of the 121 federal wiretaps seeking messages with encryption, authorities were unable to decipher 104.

The report’s findings come as a debate heats up in Congress. A fight is raging regarding whether tech companies, such as Facebook, Apple and WhatsApp, should be compelled to allow law enforcement access to the encrypted messages. U.S. Attorney General Barr and FBI Director Wray have called on these tech companies specifically to allow court-authorized access. They argue that without access to encrypted messages, drug dealers, terrorists and the like have a simple way to thwart legitimate government investigations.

The majority of wiretap investigations are drug related. New York and California account for half of the state applications. The Southern District of New York leads in federal applications.

Privacy advocates, cyber security experts, and major tech companies argue that allowing law enforcement access to encrypted platforms would jeopardize privacy by allowing malicious actors a way into the platforms. The argument goes that any back door that would defeat the end-to-end encryption would be a way in for hackers. Whether the tech companies will bend to law enforcement’s increasing frustration remains to be seen.

This is an ever-developing and expanding area of law. It is important to hire well-versed and adept counsel when dealing with law enforcement’s intrusion into your personal data. We at Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. To contact the firm, 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 a person is a target of a federal or state criminal investigation, they are often contacted − either directly if unrepresented or through counsel if represented − to attend either a proffer or a reverse proffer with the U.S. Attorney’s Office, State Attorney General’s Office, or County Prosecutor’s Office.

While proffer and reverse proffer sound alike, they are in fact quite different. A reverse proffer is the opportunity for defense counsel to meet with the prosecutor and agents to hear some of the alleged evidence they have against the client. The agents provide a sort of “show and tell” about the investigation and the evidence against the client in an attempt to convince the client to cooperate in the investigation. Cooperate in this setting means plead guilty and provide evidence against coconspirators in the scheme. While law enforcement usually wants the client/target to attend the meeting, often experienced defense counsel will attempt to set a meeting for just counsel to ensure that the client does not inadvertently blurt out information, as many clients find it difficult to sit through these types of meetings without commenting.

Conversely, a proffer is a meeting where the government expects the client to admit and explain their role in the offense and that of any other coconspirators. Before a proffer meeting is scheduled, the client must understand the very limited protections a proffer agreement provides. The agreement only protects the client/target’s direct statements from being used directly against him at trial.

The distinction is best explained this way – if the client simply agreed to speak to an investigator by themselves, anything the client said could be used against them in the prosecution’s case in chief, and is akin to a confession. The investigator could take the stand and testify that the client divulged incriminating information. Under a written proffer agreement, anything said during the proffer by the client cannot be used directly against him at trial.

However, the proffer agreement allows law enforcement to use any information provided by the client in their investigation. They can go and collect evidence or statements from others based upon any information provided by the client. That is called derivative use of the information, and the prosecution can use that evidence notwithstanding the fact that they only learned of it from the client. The client’s statements and information can also be used at trial against the client to impeach his testimony, if he testifies and contradicts what he said in the proffer. The rationale being that the client cannot lie, either during the proffer or at trial. If he does, the jury has a right to know. And perhaps most important, the client’s defense attorney cannot put on witnesses or cross-examine government witnesses in a manner that would contradict what the client said during the proffer.

In rare instances there are occasions where a proffer can be used in an attempt to either convince the government that the client is innocent or has a very limited role in the offense. In most cases, this would be done through an attorney proffer, where defense counsel meets with the government to explain the client’s position.

Agreeing to a target proffer is a very serious step that should only be decided after sufficient facts are known about the case, the potential evidence, and the client’s exposure. Once a client proffers, it is almost impossible to later decide to defend the case at trial. It should never be to “just see what the government has” and talk about the case.

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 the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.

Whether you are in federal or state court, well-crafted pretrial motions are essential to a successful defense. Pretrial motions are requests by way of formal motion, which may ask for the court to compel the prosecutor to turn over evidence, to dismiss the indictment or certain counts, to exclude or limit certain evidence, or to prevent the prosecutor from making certain arguments to the jury, among other things. These types of motions may also raise discovery violations; challenge the admission of evidence from searches, electronic surveillance, identifications, and custodial interrogation; and/or challenge the sufficiency of grand jury proceedings. Discovery motions in particular are critical because often times the prosecution does not turn over a complete set of discovery or evidence favorable to the defense. Defense counsel should set forth its detailed discovery demands in writing to the prosecution both early in the proceedings and later, as discovery is received. As the discovery is reviewed, counsel may uncover items missing or referred to in documents that lead him to believe that there are other reports that should be turned over as well. Written discovery demands establish specific requests that put the prosecutor on notice and can later establish discovery violations for failure to disclose those requested items. Defense counsel can also submit Freedom of Information Requests to certain agencies that may be compelled to turn over reports that may not otherwise be obtainable. For instance, Child Protective Services can be compelled under certain circumstances to turn over reports of interviews or psychological evaluations in their files that the prosecutor may not possess or request. Such information can be highly probative of credibility or inconsistent statements about the alleged conduct.

Pretrial motions to exclude or limit certain evidence are known as motions to suppress. A motion to suppress can ask for the exclusion of a range of evidence, including physical evidence seized pursuant to a search warrant, consent searches, or warrantless searches; custodial statements from the defendant, with or without Miranda warnings given; recorded communications, whether by an informant or cooperator, or by court-authorized wiretap; and searches of electronic devices such as cellphones and computers. If the court grants a hearing on any of these issues, the prosecutor must present witnesses under oath to establish that the items were lawfully seized or recorded. This is the defense’s opportunity to learn what potential witnesses may testify to at trial, and to cross-examine those witnesses prior to trial in an attempt to establish a violation substantial enough for the court to exclude that evidence.

Pretrial motions to dismiss the entire indictment or specific counts are based upon the sufficiency of evidence presented – and/or legal instructions given – to the grand jury. While difficult to win, successful motions to dismiss can force the prosecution to either dismiss the case or counts, or re-present the case to another grand jury with additional evidence or legal instructions.

A successful defense starts with a thorough review of the facts and discovery that enables the attorney to research and draft effective, case-specific motions tailored to uncover weaknesses in the prosecutor’s case and establish defenses to the charges. Boilerplate motions using form, canned briefs are ineffective and fail to alert the court to specific important issues that could affect the course of the proceedings.

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 the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.

I have written a number of times about modern technology being used in criminal investigations, from cellphone towers tracking our phones, to Alexa and other smart home devices used to record internet searches and conversations, to security cameras used to spy on their homeowners. Recently, the New York Times and other media outlets reported that Google has the ability to track which cellphones are in the area of a crime scene at a particular time. Once law enforcement narrows down which phones they are interested in, they obtain a warrant for the particular cellphone owner’s information.

Google refers to the program as “Sensorvault.” Unlike law enforcement tracking a particular suspect’s phone through “traditional” means – such as cell tower location, Wi-Fi, or GPS – this program allows law enforcement to uncover who was in the area of the crime without having any particular suspect’s information at all.

In response to a search request, Google provides anonymous identification numbers to law enforcement to review. The search results may reveal hundreds of devices in the area at a particular time, which then must be narrowed down to a few based upon additional information. Once law enforcement narrows those devices down to ones they believe fit other information or patterns, Google reveals the users’ names and other information. One should not be lulled into a false sense of security by believing only Google phones, such as the Pixel, are accessible. Android phones and some iPhones are also vulnerable, giving available data to Google.

As reported, this technology was first used by federal agents in 2016 and has been increasingly used since by federal, state, and local law enforcement. Google employees report that the Sensorvault program includes information on hundreds of millions of devices worldwide, dating back at least ten years. Concerning, it has been reported that law enforcement submits hundreds of requests per week to Google for such information.

The use of geolocation technology allows law enforcement to locate suspects and potential witnesses to active, as well as past, crimes. This raises several privacy concerns, as well as serious legal issues. Warrants issued for this type of information can span a particular building, or block of buildings, over several hours at a time. Countless people using their devices may be revealed to law enforcement, with no regard for whether they are involved in the crime being investigated.

Courts have not yet addressed these concerns. As technology advances, our legal system undoubtedly struggles to keep up. Determinations of probable cause, reliability, reasonableness, and privacy are lagging in a world of ever-expansive surveillance: be it our movements or the innocuous use of our devices and accounts.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend organizations and 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.

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I have written before about both the good advances in technology, and the negative consequences of some of those developments. Here are a few more methods high tech methods that law enforcement uses, and occasionally misuses, in its investigations.

Stingrays

A Stingray is a brand of international mobile subscriber identity (IMSI) catcher, also known as a cell-site simulator. Each cellphone has an ISMI, a unique number usually comprising 15 digits that is stored in the SIM card. Stingrays are used by law enforcement and the military to locate individual cell phones by simulating or mimicking the strongest nearest cell site. The user’s phone connects to the Stingray because it offers the strongest signal. The IMSI catcher then maintains that signal connection until law enforcement tracks the location of the cell phone of the unsuspecting user. The use of such devices is highly secret and controversial because it is used without first obtaining a warrant from a judge, and rarely does the person or his attorney know that such a device was used. In addition, there is evidence that some of these devices can capture conversations or text messages which require judicial authorization.

Cell Phones

Not only can a person’s cell phone conversations or text messages be intercepted through a judicially approved Title III wiretap, they can also be used to physically track or monitor the user’s location and travels. Mobile phone providers maintain and store records of which cell towers the phone uses while turned on. The person does not have to be calling or texting for this feature to record the movement of the phone. Law enforcement can obtain the historical records from the provider of the location of the specific cell towers and triangulate the user’s location or travels. Whether the police need a warrant, rather than simply a subpoena, to obtain this information is presently being decided by the U.S. Supreme Court.

GPS Tracking

With a warrant, agents can place a GPS tracking device on a person’s car that records in real time the exact movements of the vehicle 24 hours a day, 7 days a week. Since police do not need to physically follow the vehicle, the person being surveilled remains completely unaware.

Facial Recognition

In 2014, the FBI’s Next Generation Identification (NGI) program became fully operational. The database contains almost 30 million photos. In addition, the FBI has access to some states’ driver’s license photos, State Department’s visa and passport database and the Department of Defense. The FBI program claims to have an 85% accuracy rate when using images of people facing forward with no more than 15 degrees off the center axis. Private companies, such as Facebook and Google, claim accuracy rates of 98%. Thus, this technology is quickly advancing to where there will be ever expanding databases of citizens’ photos that subject them to identification from video surveillance cameras, social media posts, government databases and other media.

Gunshot Detection

This technology uses a network of microphones to detect a gun’s unique explosive sound and then triangulates the source of the sound using GPS. Microphones are placed strategically around many cities and neighborhoods to capture the sound of gunshots and can even turn cameras toward the direction of the shots in an attempt to capture photos of the people involved. New York, Chicago and Washington D.C. have programs that identify and locate gunshots in real time.

Smart Home Devices

Smart home devices like Alexa, Amazon Echo and Google Home record not only a person’s requests and search history, they can also record ambient sounds in one’s home. Police have obtained warrants attempting to compel Amazon and others to turn over the recordings for murder investigations. Devices that make life easier and safer, can be used by law enforcement to investigate criminal activities. Security cameras, smart doorbells with video capabilities, remote access devices, all have the ability to provide law enforcement with recordings or a timeline of use and activities that can be used as evidence against the homeowner or others.

Computers

Our computers and smart phones contain an unimaginable amount of personal information about our daily activities and lives. Law enforcement search and download suspects’ computers and phones daily in all type of investigations. Unlike searches for physical evidence such as guns, drugs, counterfeit currency and like that require only the seizure of those specified items, searches of electronic devices are typically much more intrusive. Police typically seize the devices and their tech people make forensic copies of the hard drives and databases. Within those downloads there may be gigabytes of irrelevant, but highly personal information, that law enforcement has no legitimate reason to examine.

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 at rgs@sgdefenselaw.com

The police stop you for an alleged driving infraction – speeding, failure to stay in lane, tinted windows – and while talking with you the officer smells the odor of marijuana. The officer asks you to step out of the car, searches the car and finds drugs. You contact a criminal defense attorney to defend you and explore the possibility of a motion to suppress the search. If you are the driver of a personal vehicle or the owner, you have what is known as an expectation of privacy and “standing” to suppress the search. However, if you are a passenger of the vehicle, or the driver of a rental car that was rented by a friend or family member and you are not listed on the rental agreement, you may lack standing to challenge the search of the vehicle.

How can this be? How can someone driving a car who is subject to a search by law enforcement not have the legal authority to challenge the search? Well, this precise issue has just been heard by the United States Supreme Court in the Byrd case. The case began in 2014 when Terrence Byrd was stopped by a Pennsylvania State Trooper. When the Trooper learned that Byrd’s fiancée rented the car and that Byrd was not listed on the rental agreement, the Trooper searched the car and found heroin. The Trooper had no probable cause to search the car. Rather, he asserted that he did not need Byrd’s consent for the search because he was an unauthorized driver. Typical rental agreements only authorize the renter’s spouse, or someone who appeared at the time of the rental and signed as an additional driver, to operate the vehicle. Mr. Byrd and his fiancée had been together for 17 years and had 5 children together, but were not married. The trial court refused to suppress the search and Byrd was sentenced to 10 years in prison.

Hearing oral argument the other week, the Supreme Court seemed inclined to hold that people not listed as authorized drivers on rental agreements still have privacy rights when stopped by police. Justice Sonia Sotomayor said it would give the police too much power, specifically stating “If we rule that someone without permission has no expectation of privacy even when the renter has given it to them . . . then what we’re authorizing is the police to stop every rental car and search every rental car, without probable cause, that might be on the road.” Several other justices suggested that failing to list an additional driver was a mere breach of contract that does not overcome the protections of the Fourth Amendment, which bars unreasonable searches.

This is a complicated and unsettled area of the law until the Supreme Court decides the issue. While it may make no sense to the average layperson, the law requires a person to have a reasonable expectation of privacy in order to be afforded Fourth Amendment protection from unreasonable search and seizure. An unauthorized driver of a rental car, a passenger in a friend’s car or a guest at a friend’s house may not be able to challenge the validity of a search even when that person is charged with a crime related to the items discovered in that search.

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 at rgs@sgdefenselaw.com

State v. Tier concerns an issue of criminal procedure that had not previously been addressed by any court of appeals in New Jersey: the interpretation of Rule 3:13-3(b)(2)(C), which addresses a criminal defendant’s obligations to provide the State with discovery before trial. Though at first glance the opinion seems to concern a mundane issue of criminal procedure, it touches on the interplay of several important constitutional principles. On one hand, a defendant has a right to remain silent and “has an absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources.” On the other hand, New Jersey courts have adopted a stated policy that favors the pre-trial sharing of information to avoid surprise and gamesmanship at trial. These principles often come into conflict as the State puts pressure on the trial court to preview the defense before it is entered at trial, arguing that the trial will be delayed by surprise evidence.

The trial judge in Tier, over a defense objection, ordered the defendant’s attorney to create written summaries of defense witness statements that had been communicated orally to defense counsel and to provide the summaries to the State before the start of trial. The defendant appealed, arguing that the judge’s order exceeded the mandate of Rule 3:13-3(b)(2)(C). Rule 3:13-3(b)(2)(C) provides that the defendant must provide the State with “the names, addresses, and birthdates of those persons known to defendant who may be called as witnesses at trial and their written statements, if any, including memoranda reporting or summarizing their oral statements.” On appeal, the Supreme Court found that the trial judge misinterpreted the plain language of Rule 3:13-3(b)(2)(C), which must be interpreted narrowly to protect a defendant’s constitutional rights. The Court said that a defendant is obligated to provide the State only with pre-existing written statements by its witnesses who are expected to testify, but that defendants are not obligated to reduce oral statements to writing for the benefit of the State.

A similar issue had previously been decided by the Supreme Court in 1979 in State v. Williams: whether defense witness summaries already in existence were required to be disclosed if the defendant had no intention of using them at trial. In that case, the Supreme Court also ruled in favor of the defendant, placing no duty on the defendant to produce those documents. The Court felt that to place such a burden on a defendant “would chill the defense’s investigation and infringe on the defendant’s right to effective assistance of counsel.”

These two Supreme Court opinions, taken together, clearly delineate the circumstances under which a defendant must turn over witness statements to the State prior to trial. They also provide valuable guidance to defense attorneys who, in preparing for trial, should be making reasoned, strategic decisions as to whether to reduce witness statements to writing.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with white collar crimes, domestic violence, drug crimes and criminal charges. Mr. Olesnycky’s cases have been widely covered in the news, including the New York Times, CBS This Morning, NBC4 New York, the Associated Press, the Boston Globe, NJ.com, the Star Ledger, and ESPN. 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 at ao@sgdefenselaw.com.