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.

A recent survey of 2023 rates from top firms reveal attorney hourly rate increases of 8-14%. Notably, top partner rates now range from $2,100 to $2,720 an hour. The bottom partner rates from $1,025 to $1,995 per hour. Even more telling, first year associates, those lawyers who have just passed the Bar exam and have little to no real life experience in the practice of law, range from $660 to $895 per hour.

Most cases handled by big law firms are layered with multiple attorneys, ranging from young associates to upper class associates to junior and senior partners. Add all their rates together and you can have billings at tens of thousands of dollars an hour. There are additional costs as well, from paralegals with rates from $200 to $400 per hour or more, to discovery platforms that can costs thousands of dollars per month. Major corporations, high net worth individuals and the like can afford to pay, or have Directors and Officers insurance that pays, for these firms.

When facing criminal charges, the stakes are incredibly high. The attorney you choose can mean the difference between freedom and conviction. While larger law firms may seem to offer the best defense due to their size and resources, smaller boutique criminal defense firms present unique advantages that can significantly benefit clients. Here’s why the boutique firm of Stahl Gasiorowski Criminal Defense is your best ally in the fight for justice.

Personalized Attention

At Stahl Gasiorowski we handle fewer cases at a time compared to big law firms. This allows for a level of personalized attention that can be pivotal in criminal cases. The intimate setting ensures that your legal team knows your case inside out and is always accessible to address your concerns. You’re not just another case number; you’re a valued client with a bespoke defense strategy tailored to your unique circumstances.

Specialized Expertise

Stahl Gasiorowski specializes in criminal defense. Our attorneys are passionate about this area of law and have dedicated their careers to perfecting their craft. Such narrow focus results in a depth of knowledge and a nuanced understanding of criminal law that’s hard to match. This expertise offers keen insights into prosecution tactics, familiarity with local court nuances, and a refined skill in crafting compelling defense strategies.

Agility and Adaptability

The types of criminal cases Stahl Gasiorowski typically handle are complex that require extensive research and review a large amounts of discovery. Skill, combined with experience and flexibility, allow us to maximize our effectiveness. We are agile, able to adapt and respond rapidly to new developments without the layers of bureaucracy that can slow down larger firms. Our structure allows us to pivot strategies and tactics swiftly, a vital asset during the high-stress proceedings of criminal defense.

Cost-Effectiveness

Since Stahl Gasiorowski only handles complex federal and state criminal matters, we are able to operate with lower overheads and, as a result, can offer more cost-effective pricing structures without compromising the quality of legal defense. This means clients have access to high-caliber legal services and a dedicated defense without the daunting costs often associated with the larger firms.

Direct Expert Representation

At Stahl Gasiorowski, clients receive representation from highly skilled, experienced attorneys, not junior associates learning on the job. This means that your case is in the hands of an experienced attorney from start to finish, bringing a level of advocacy and proficiency that can be crucial in criminal cases.

Building a Strong Attorney-Client Relationship

Facing serious criminal charges is a profoundly personal and stressful experience. We offer the opportunity to build a strong, trusting relationship with our attorneys. This connection results in a more open exchange of information, which is essential for constructing a robust defense. The trust between our clients and attorneys produces results in court, presenting a united and convincing front to judges and juries.

Conclusion

While larger firms may seem impressive with their scale and brand recognition, when it comes to criminal defense, the individualized attention and services offered at Stahl Gasiorowski offer distinct advantages. Personalized attention, specialized expertise, agility, cost-effectiveness, direct representation, and a strong attorney-client relationship are necessities in building a formidable defense.

Stahl Gasiorowski has specialized in representing individuals and corporations in federal and state criminal investigations and charges. Our partners each have more than 30 years’ experience zealously defending clients in matters involving health care fraud, crypto currency marketing and transactions, wire fraud, bank fraud, money laundering, drug and gun conspiracies and tax fraud.

Stahl Gasiorowski Criminal Defense Attorneys actively and aggressively protect clients’ rights and offer big law skills at boutique firm prices. To contact us call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com or Laura K. Gasiorowski at lkg@sgdefenselaw.com.

Universities around the country have been aggressively investigating hazing. These investigations have been propelled by several tragic events that have resulted in fatalities or serious injuries usually resulting from excessive alcohol consumption.

Most university policies, as well as state laws, broadly define hazing as any type of conduct in relation to joining a fraternity, sorority, eating club or sports team that is not purely an athletic competition. Most universities have language similar to the following:

“Any student shall have the right to be free of all activities which might constitute hazing, while attempting to become a member of, or maintain membership in, a fraternity, sorority, athletic team, student organization, eating club, or other organization. Organizations, their members, and their prospective members are prohibited from engaging in or encouraging others to engage in activities that are defined as hazing.

Hazing encompasses a broad range of behaviors that may place another person in danger of bodily injury, or that demonstrates indifference or disregard for another person’s dignity or well-being.

Examples of hazing include but are not limited to the following:

• Ingestion of alcohol, food, drugs, or any undesirable substance.
• Participation in sexual rituals or assaults.
• Emotionally or psychologically abusive or demeaning behavior.
• Acts that could result in physical, psychological, or emotional deprivation or harm.
• Physical abuse, e.g., whipping, paddling, beating, tattooing, branding, and exposure to the elements, or the threat of such behaviors.
• Participation in illegal activities or activities prohibited by University policy.

Students who participate in hazing pledges are potentially subject to both criminal and university charges. Even the pledges who are subjected to hazing can and often are charged with violation of university hazing policy. Further, it is no defense to hazing that the person (pledge) consented to the activity.

Similarly, under New Jersey law, a person is guilty of hazing, “a disorderly persons offense, if, in connection with the initiation of applicants to or members of a student or fraternal organization, that person knowingly or recklessly organizes, promotes, facilitates, or engages in any conduct, other than competitive athletic events, which places or may place another person in danger of bodily injury. A person is guilty of aggravated hazing, a crime of the fourth degree, if that person commits an act which results in serious bodily injury to another person. Consent shall not be available as a defense to a prosecution under law.”

Often, students are faced with a difficult decision – if they fail to cooperate and are not candid with university disciplinary investigators, they can be disciplined for failure to cooperate and lack of honesty, while full cooperation can lead to a wider investigation of the activities and result in additional disciplinary action by the university. Conversely, anything they reveal in the university setting may be used against them in a parallel criminal investigation.

Stahl Gasiorowski Criminal Defense Attorneys has successfully represented a number of university students investigated and charged with hazing. We have the experience and skills to effectively navigate our clients through these complex investigations to achieve the best possible outcome. To contact Mr. Stahl or Ms. Gasiorowski, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com or Ms. Gasiowski at lkg@sgdefenselaw.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.

Last fall Deputy Attorney General Lisa Monaco announced the Department of Justice’s more aggressive approach to corporate compliance. In her policy speech this week, she highlighted a series of new policies and warned cooperating companies not to slow walk their disclosures, told prosecutors to speed up their investigations and expanded self-reporting programs throughout the Department.

Of note, Monaco acknowledged the past year’s decline in corporate prosecutions. In an effort to assist prosecutors’ timely investigations of individuals, Monaco said that any company that delays in turning over key documents and information to the government will risk losing some or all credit for cooperating. While companies are already required to turn over non-privileged information about employee wrongdoing in order to receive cooperation credit, Monaco said that the DOJ would view companies more favorably that claw back compensation from those employees. In her view, such a policy could deter wrongdoing — “compensation systems that clearly and effectively impose financial penalties for misconduct can deter risky behavior and foster a culture of compliance.”

Recidivist corporate offenders, even for unrelated prior misconduct, were warned that any prior violations would factor into DOJ’s treatment of new offenses. But, in an attempt to assuage corporate anxiety about prior misdeeds that resulted in either civil fines or criminal pleas, Monaco said that criminal resolutions more than 10 years old, and civil or regulatory settlements more than 5 years old, would be given less weight.

Lastly, Monaco said that every section of DOJ that prosecutes corporate crime will develop an individualized program to incentivize corporate self-disclosure. The common principles for these programs will include foregoing guilty pleas when the company self-reports, cooperates and remediates the misconduct. Further, monitorships, while back in favor and to be freely implemented when appropriate, will be circumscribed when the above requirements have been met. Prosecutors will be tasked, however, with making sure that the monitors are performing properly and stay on budget.

Federal investigations and prosecutions of corporations and individual employees and officers are complex and time consuming. There are a variety of factors that must be considered to properly defend the company and its employees while conducting an independent investigation of the alleged wrongdoing. Stahl Gasiorowski Criminal Defense Lawyers have extensive experience representing individuals and corporations accused of 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 rstahl@stahlesq.com.

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.

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.

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.

U.S. Attorney General Merrick Garland announced that the Department of Justice (DOJ) is planning a hiring spree to investigate and prosecute pandemic related fraud and traditional white collar crimes. President Biden’s budget seeks $3.5 million to hire an additional 120 prosecutors to focus on pandemic related fraud and $325 million for 900 additional FBI agents to investigate white collar crimes.

Speaking at the ABA’s annual white collar crime conference, Garland said that DOJ’s interest in white collar crimes is once again being prioritized. DOJ is placing renewed emphasis on serving victims of white collar crime with an approach similar to that in violent crimes. What this means is that DOJ will place a greater emphasis on victims’ rights and economic losses. There will be a renewed effort on criminally prosecuting responsible corporate officers, rather than merely accepting big-dollar corporate pleas or civil resolutions with large financial penalties.

This announcement comes on the heels of DOJ’s new hires for the Criminal Division’s Fraud Section late last year, as well as its renewed efforts in prosecuting environmental and antitrust matters. In addition to the new funds and hires, DOJ will use what the AG calls “force multipliers” to uncover fraud – partnerships with government agencies in the U.S. and abroad and new data analytics. Embedded in the Fraud Section are FBI data experts that model their assessments of payment anomalies and other activity patterns first developed in investigations of health care fraud.

A.G. Garland also announced the formation of KleptoCapture, its new Russian sanctions task force headed by former SDNY AUSA Andrew Adams. With more than a dozen prosecutors, the task force is designed to quickly and aggressively enforce sanctions here, and those coordinated with other countries, to punish the Kremlin and certain oligarchs for the invasion of Ukraine.

Stahl Gasiorowski Criminal Defense Attorneys actively and aggressively defend clients being investigated and prosecuted for white-collar fraud. We have successfully defended cases involving health care fraud, tax fraud, crypto currency, international money transfers and money laundering, import duties and taxes, and other types of sophisticated fraudulent schemes. 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.

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 is being investigated or charged with a criminal offense, it is one of the most stressful and unnerving times of the person’s life. It is common to feel overwhelmed and uncertain about who to hire and what to ask in the initial consultation with a criminal defense attorney. Below are some tips on choosing the right attorney and the major questions a prospective client should ask the attorney.

First:

Look for an attorney and firm that specializes in criminal defense. But don’t stop there, find ones that have vast experience in the type of matter you face. If it is a federal investigation or indictment, make sure that the attorney has significant federal experience because federal cases are much different than state, county or municipal prosecutions. Focus on the type of charge as well. If the investigation or charge involves healthcare fraud, ask the attorney about his or her experience in healthcare fraud cases. Experience with both the type of case, and the prosecuting agency, is often critical to success. The more experience the attorney has usually results in better insights into the case, its defense and the type of resolutions that are realistic with the particular prosecuting agency.

Second:

An experienced criminal defense attorney should be able to talk, at least generally, about the strengths and weaknesses of the case. He or she should be able to identify the relevant issues, strategies going forward, and potential defenses. If the case is new, then the attorney can only give general insights because the prosecution has not yet provided any discovery – law enforcement reports, statements by witnesses or the client, recordings, photographs, documents, emails, text messages, etc. – that more fully detail the government’s case. But, the attorney should be able to explain how these types of cases are investigated and prosecuted, and be able to offer insights as to the type and scope of work that lies ahead. Be aware, however, that the attorney has no credible way of predicting the outcome of your matter at this early stage.

Third:

How long will it take to resolve the case? Experienced criminal defense counsel can inform you generally how long a case like yours usually takes, and what you can expect along the way. While each investigation and case are different, the attorney can give you a good idea of how long and what to expect for cases in the federal system or in each state or county that they practice.

Fourth:

How much will it cost to defend your matter? Most criminal cases are handled on a flat fee basis for certain portions of the case. A client needs to know that she can afford the representation and the attorney needs to know that the client has the resources to properly defend the case. In certain instances, particularly when the matter is still in the investigative stage and charges have not yet been brought, the representation will start on an hourly fee basis until the attorney has a better understanding of the scope and complexity of the case.

Fifth:

Who else will be working on your case, and does the firm have the time to handle your matter? These are important issues that the potential client should inquire about. The experience of the other lawyers in the firm, as well as their caseload, is critical to the quality of representation. Firms that handle a large volume of cases, with minimal staff, may not have the time and attention to detail that the client’s matter requires.

A Word of Caution:

These questions provide a good framework for the client to make an educated and informed decision about counsel. There are also the intangible areas of comfort and trust in the person and firm. But do not be lulled by boastful promises or talk of the attorney’s confidence that the case will be dismissed, or that charges will never be brought. Experienced and ethical counsel will reserve their opinions about the outcome until they have the relevant facts and can fully examine the evidence and the case law. Good defense counsel will tell you what you need to know, rather than what you want to hear for comfort.

Contact Stahl Gasiorowski Criminal Defense Lawyers

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.

Typical scenario – early morning, FBI agents show up unannounced at your home or workplace wanting to speak with you. You are not under arrest, they are simply investigating something that you can help with. Maybe it’s about your employer, or friend, or something you were involved in with others. You are caught off-guard by the surprise visit, you may still be sleepy and you think that if you don’t cooperate with the agents they will think that you have something to hide. So you agree to speak with them for a “few minutes”, and those minutes turn into an hour or two. You recall one agent asking questions and the other taking notes. You don’t think that you gave a “formal statement”, nothing that could get you in trouble.

Unfortunately, you just gave a statement, most likely unrecorded, to a federal agent and if that statement contained material misrepresentations, you have potentially violated two federal criminal statutes – making false statements (lying) to federal agents and obstruction of justice.

In 2017, I wrote about former National Security Advisor Michael Flynn and former Trump foreign policy advisor George Papadopoulos guilty pleas to making false statements to government agents. Federal statute, 18 U.S.C. § 1001, prohibits a person “in any matter within the jurisdiction of the executive, legislative, or judicial branch” of the federal government from “knowingly and willfully”:

(1) falsifying, concealing or covering up “by any trick, scheme, or device a material fact;”

(2) making any materially “false, fictitious, or fraudulent statement or representation;” or

(3) making or using “any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry …”.

This statute applies when someone is interviewed by the FBI or other federal agencies, even without being advised of his rights or being placed under oath, as in a deposition or court proceeding. There is no pre-warning required or given. In fact, these situations usually occur under a “friendly- type” interview, or just a “few questions” to clear up an issuer or to help the agents understand a situation better.

Remember Martha Stewart? While investigating a potential insider trading scheme involving Stewart and her financial advisor, Stewart spoke with federal agents and it was later determined that she lied. While she escaped the stock fraud charges, she went to prison for making false statements during the investigation.

More recently, a Harvard University Chair of its Chemistry and Biology Departments, Charles Lieber, was convicted of two counts of making false statements to the FBI post-arrest and after being advised of his Miranda rights to remain silent and have an attorney present. The agents arrested him in connection to an alleged Chinese espionage plot concerning scientific intellectual property. In the course of his arrest, the false statements he made to the FBI were used at trial to both present evidence as to the false statements counts, but also to show his guilty knowledge of the underlying scheme.

In another case involving a professor, this time at Texas A & M University, charges were based on his alleged lies to NASA about his affiliation with a Chinese university. Professor Cheng’s case involves questions of law about a Congressional budget bill that restricts NASA’s two-way funding arrangements with the Chinese government and whether the professor was required to disclose his ties to the Chinese university. In denying a motion to dismiss, the court held that while it could not determine the whether there was a requirement to disclose until evidence was heard at trial, the criminal case would proceed based on the professor’s alleged lies to the federal government. In other words, whether NASA’s inquiries were legitimate or not, it was entitled to honest answers.

In both of these cases, very highly educated people went forward with interviews with federal agents without the advice and presence of experienced defense counsel and both ended up facing serious federal criminal charges. Before agreeing to speak to federal agents, these cases demonstrate that the individual should first consult with a highly experienced white-collar criminal defense attorney to make sure that their rights are protected.

Stahl Gasiorowski Criminal Defense Lawyers have represented 100s of individuals in federal investigations and requests for interviews by federal agents. We aggressively protect our clients’ rights, and ensure that they do not unwittingly or purposely make statements that could later prove to be false or misleading. 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.

Chief Financial Officers, Account Managers and bookkeepers all, to vary degrees, are trusted employees who have access to corporate funds. Access to company funds, with little or sporadic oversight, can leave a company vulnerable to a variety of fraudulent schemes to obtain funds those employees were not entitled to. Common schemes include:

1. The trusted employee setting up fictitious companies as suppliers of goods and materials and creating false invoices for payment.
2. Another scenario involves the trusted employee engaging in a kickback scheme with an actual outside vendor/supplier to inflate invoices and “kick back” a percentage of the funds received from the company.
3. Other schemes simply involve a trusted employee giving themselves bonuses and other unauthorized forms of compensation.

These schemes can go undetected for years and often result in the loss of hundreds of thousands to millions of dollars. They are usually detected when the company experiences a significant downturn in revenue, a verified audit, or the potential sale of the company requiring a close examination of the books and records.

When such schemes are discovered, the employer or counsel will usually retain a forensic accountant to uncover the extent of the fraud. Counsel will often advise the employer to confront the employee and convince them to pay back as much of the stolen funds as possible before notifying law enforcement. The employer may lead the employee to believe that they want to work with them to recover the funds and to make the company as whole as possible without the need for attorneys, litigation or law enforcement. Many employers will suggest that the employee “cooperate” and voluntarily turn over their retirement funds, monies in their family checking and savings accounts, and sell their home and other valuables in order to pay back the funds that were improperly taken.

What an employee needs to know is that they should first retain experienced criminal defense counsel to assist them throughout this complicated process. This is critical for a number of reasons.

First, anything the employee says to the employer or their counsel is likely an admission against interest and can be used in a future criminal prosecution.

Second, the employee needs the advice of counsel about the potential benefits versus risks of acknowledging the theft and the repayment of all or part of the monies taken prior to any potential criminal case.

Third, the employee needs their own attorney to deal with the employer to make sure that any monies repaid are handled correctly and that retirement funds are not simply liquidated without sufficient funds remaining to pay the interest and penalties usually due for early withdrawal.

Fourth, despite any conversations or assurances that law enforcement will not be contacted if the employee returns the funds, there is nothing that can bind an employer to such a promise. Any assurance not to report is against public policy and unenforceable as a matter of law.

Seizure of bank accounts, assets and real property through civil litigation is a very time consuming and costly endeavor. Once law enforcement is involved, prosecutors are more focused on the criminal charges, while restitution and forfeiture are a secondary concern. Consequently, most employers try to recover as much money as they can before notifying law enforcement. It is much easier for the company to recover funds with the cooperation of the former employee. Thus, it is critical for the employee to retain experienced criminal defense counsel at the outset.

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.

Around the country, a number of state and federal courts have started to use virtual grand juries to indict, and virtual juries for actual trials. If you are concerned that jurors involved in virtual processes may not represent a true cross section of the population, or that virtual hearings are inherently unfair, you are not alone.

To begin, attorneys representing clients charges with criminal violations are very concerned that virtual proceedings are indeed, inherently biased. First, with respect to the grand jury processes, potential grand jurors must have the necessary computer equipment, skills, and internet access to be “present” for remote presentations by the prosecutor while sitting at home. These kinds of technical requirements may eliminate a number of potentially qualified jurors simply because they lack a functioning computer, or do not live in an area with appropriate, reliable internet service.

Next, it is important to know that grand jury proceedings are held in secret. Therefore, the investigation, potential defendants, witnesses, exhibits and other information is highly confidential. How is a grand juror, in his or her own home perhaps with children or other family members in the home, expected to safeguard the information they receive during a remote presentation?

Finally, another significant question to consider is whether appearing remotely for grand jury proceedings allows proper flow of questions and deliberation on the proposed charges, or if doing so inhibits meaningful and full participation due to technology? Such questions are valid regarding the selection of grand jurors, grand jury proceedings, and fairness overall.

To continue, virtual jury trials present even greater difficulties, primarily with reference to the jury selection process. In many jurisdictions, potential jurors are given three questionnaires to complete – a hardship request, a technology inquiry, and a case specific form. Jurors can appear in person at some courthouses, while others require appearance by Zoom or cellphone. Once again, otherwise qualified jurors may be excused simply due to lack of appropriate technology, skills, or internet access.

In some cases, attorneys and the court must conduct their voir dire – individualized questions – of the potential jury pool remotely. To be specific, normal jury selection procedures which seat 12 potential jurors in the jury box for questioning, where those being excused are replaced by others from a larger jury pool, are often not possible as Zoom does not allow easy, physical, in and out movement of participants from certain “rooms” or locations, or jurors are simply using call-in numbers as opposed to Zoom. Thus, it is difficult for attorneys to challenge and keep track of potential jurors’ positions.

Additionally, as virtual jury selection takes considerably longer than in-person jury selection, many attorneys who have experienced this process report that at times, potential jurors do not pay attention to proceedings as they are distracted by other work, family members, phone calls, or simply because they have muted the proceeding. Ultimately, virtual jury selection proves difficult as it takes considerably longer than in-person jury selection and may result in qualified jurors being dismissed, or distracted, for non-case-specific reasons.

Once these numerous obstacles are addressed and a jury is selected, there is no shortage of potential issues to follow. In a completely-virtual trial, attorneys, the judge, and court staff must be prepared to present the case virtually, meaning all witnesses and exhibits have to be accessible, or prepared, to appear and be shown by Zoom. Technical issues are bound to occur, and can very quickly try the patience of the jury. The ability to disclose a potential document or other media to a witness, the Judge, and the opposing side – without the jury viewing the document before it is in evidence – takes practice, and greater preparation. Hence, issues following jury selection are numerous and unpredictable, especially regarding managing jury attention and patience, as well as fluid, confidential disclosure of information and evidence void of technological issues. Preparation for virtual presentation is key.

Even in person trials, with all the necessary safety precautions, present serious issues of fundamental fairness as well. Jury selection is still a serious concern because many otherwise qualified jurors will be excused because of their health concerns in participating in the courtroom and jury room. Once selected, the attorneys must present their case while everyone, including witnesses, are wearing face masks and socially distancing. Jurors must be able to hear and judge witnesses’ testimony and credibility, all the more difficult while their mouths are covered. Attorneys must be able to present witnesses and evidence all while wearing masks that inhibit their voices, breathing and connecting to the jurors through their facial expressions. Finally, jurors’ attentions may be stressed and inhibited by worrying about their health and that of their fellow jurors, both during the presentation of the evidence and through deliberations. As the trial drags on, are excuses made by jurors to be relieved? Are judgments rushed to simply get out of the courthouse? These are well-founded fears by defense counsel whose clients’ freedom will be decided.

Mindful of the importance of self-distancing, we at times work remotely but are available to meet new clients either in person, through video conferencing, or by phone. Challenging times demand innovation and accommodation to our client’s needs. 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 rgs@sgdefenselaw.com.

Many federal, state, and municipal courts have limited the number and types of cases they will be handling in the near term. Some have adjourned jury trials for several weeks and in some cases even months to see what happens after a period of isolation. Courts have summarily waived Speedy Trial Act rights and ordered continuances for a period of time. State courts in particular are promoting the use of video and teleconferencing in lieu of appearing in court. Municipal courts have adjourned court appearances for motor vehicle summonses and code violations. Detention has been waived in certain cases depending on the type of crime, the age of the offender, and other relevant factors.

This is due to fears of spreading the virus to the jail population – causing a sudden boom in cases – and the risk that the greater the jail population, the greater the risk to inmates and staff.

Federal and state criminal investigations and arrests, however, are continuing. While some investigations may lie dormant for a period of time, U.S. Attorneys’ Offices around the country continue to investigate and prosecute cases, especially those with statute of limitations deadlines looming. State investigations and prosecutions continue as well.

Our attorneys and staff are actively and aggressively defending our existing clients’ cases. We are also available to meet with new clients. Being mindful of the importance of self-distancing, we at times work remotely but are available to meet new clients either in person or through video conferencing, and have the capability to offer initial consultations by phone. Challenging times demand innovation and accommodation to our clients’ needs. Stahl Gasiorowski Criminal Defense is here for all of your criminal legal needs during this time.

In many cases, defense attorneys utilize various experts to assist in their defense of a client. Those experts may include private investigators, forensic accountants, psychologists, DNA analysts, accident reconstruction analysis and economists. While experts can provide invaluable assistance in understanding the prosecution’s theory of the case and in analyzing and attacking the government’s evidence, special care must be taken to protect and preserve the attorney-client and work-product privileges.

Attorney-client privilege protects communications between the client and her lawyers that are made in confidence and for the purpose of obtaining legal advice. The purpose of the privilege is to promote full and frank communication about the matter. Similarly, the work-product privilege is designed to protect communication from discovery when they were made in anticipation of litigation. The scope includes documents and tangible items prepared by the attorneys or others under their direction – usually experts. Absent the crime-fraud exception where the attorney is involved in the client’s ongoing crime, or communications about future criminal activity as opposed to past, completed crime, the attorney-client privilege is a bedrock principle of our legal system and cannot be intruded upon by the government.

What happens when a third party is brought into the attorney-client relationship and communications? Under normal circumstances, the privilege is waived by disclosing information to someone other than the attorney or his staff. To protect the privilege, the law firm must formally retain the experts to provide analysis and advice about the pending litigation or case. The lawyers’ discussions with the experts about privileged information gleaned from the client are protected as long as those communications are about the subject matter of the litigation. In a financial crime or tax case, forensic accountants are routinely hired under what is known as a “Kovel” agreement, named after a Second Circuit case dating back to 1961. Other types of experts hired by the law firm fall under similar protections as they are acting as agents of the lawyer.

Experts hired by a law firm during the course of litigation to assist the firm in defending a client are protected absent any waiver. This is quite different from an accountant hired individually by a taxpayer to handle their annual tax returns. Communications and documents provided by the client to their regular accountant or tax preparer are not protected in a criminal investigation as they were not made under the circumstances listed above. Thus, the IRS may and will interview the client’s accountant as to any statements made by the client and subpoena any documents provided by the client.

Waiver of these privileges can occur under a number of scenarios too complicated to explain here in detail. Whenever experts are used in a criminal investigation or case, care must be taken by counsel and client alike to zealously protect that privilege.

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.

After more than two years of careful research and deliberation, the National Association of Criminal Defense Lawyers (NACDL) released The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. The “trial penalty” refers to the substantial difference between the sentence offered prior to trial versus the sentence a defendant receives after a conviction at trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial. The report notes that to avoid the trial penalty, defendants must surrender fundamental rights which are essential to a fair justice system. The release of this report has garnered support from leading criminal justice reform entities, all of which agree that the incursion on the right to a trial poses a clear threat to justice.

The data revealed that after a 50-year decline, fewer than 3% of federal criminal cases result in a trial. That means that more than 97% of federal criminal cases were resolved by guilty pleas. In a constitutional system predicated upon the Sixth Amendment right to a trial, the fact of imbalance and injustice in the system seems self-evident.

The report identifies and exposes the underlying causes of the decline of the federal criminal trial and puts forth meaningful, achievable principles and recommendations to address this crisis. Mandatory minimum sentencing provisions have played an important role in reducing the trial rate from more than 20% thirty years ago to 3% today. Instead of using these mandatory sentencing laws for their intended purpose — to impose harsher punishments on a select group of the most culpable defendants — the Department of Justice got in the habit long ago of using them broadly to strong-arm guilty pleas, and to punish those who exercised their right to trial. The Sentencing Guidelines also contribute to this lopsided result, providing excessively harsh sentencing ranges that frame plea discussions when mandatory sentences do not. Finally, the report found that federal judges are complicit as well. In too many cases, excessive trial penalties are the result of judges having internalized a cultural norm that when defendants “roll the dice” by “demanding” a trial, they either win big or lose big. The same judges who will go along with a plea bargain that undercuts a severe Guidelines range are too reticent to stray from the sentencing range after trial.

The report concludes that these excessive trial penalties, undermine the integrity of our criminal justice system. Forcing the government to its proof in a trial is a constitutional right guaranteed under the Sixth Amendment. The “innocence problem”, is the fact that prosecutors have become so empowered to enlarge the delta between the sentencing outcome if the defendant pleads guilty versus the outcome if he goes to trial and loses, that even innocent defendants now plead guilty. A system characterized by extravagant trial penalties produces guilty pleas in cases where the government cannot satisfy its’ burden of proof beyond a reasonable doubt, whether the person is guilty or innocent.

Misconduct and mistakes by law enforcement, witnesses and prosecutors are only revealed through an open and public trial. When the trial process is subverted and limited to only a few select cases, mistakes and misconduct go undetected and result in innocent lives spending years incarcerated. Moreover, when misconduct goes undetected, it flourishes and expands. There are many recent examples of police detectives in various jurisdictions planting evidence, using the same corrupt informant to identify alleged homicide suspects, and other miscarriages of justice.

Robert Stahl, and his firm, 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.

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.

Fitbit Data Leads to Husband Charged with Wife’s Murder

Technology has advanced the ease and quality of life immeasurably. Smart phones are handheld computers that can surf the internet; deliver emails, texts and phone calls; take videos and pictures; make dinner reservations and track your every movement through various apps. Our cars can almost drive themselves with lane change warnings; infrared cameras; heads-up displays, cruise control with radar; event data recorders that record speed, braking and seatbelt use; and GPS tracking in case the car is stolen. Home security cameras, Amazon Echo, smart TV, smart appliances and the like can all be controlled remotely through the internet. A variety of devices that are small and comfortable enough to wear, such as Fitbits, iWatches and the like can track our movements, heart rates, calories burned, number of steps and location.

As helpful as these devices are to their users, law enforcement too has come to discover that these devices can provide valuable, irrefutable evidence in criminal investigations. Just recently, a Connecticut husband was charged with his wife’s murder after his story about his wife’s whereabouts was refuted by information from her Fitbit that revealed not only her location but when and far she was moving (or not) at specific times.

Earlier this year, Arkansas authorities used recordings from an Amazon Echo in a murder case. And last year, investigators in Ohio used evidence from a man’s pacemaker to charge him in an arson case.

Until recently, E-Z Pass records, cell site pings, GPS in our cars, social media postings and red light and other security cameras were all that investigators had available to piece together a person’s movements with varying degrees of accuracy. Now, with these new wearable devices, law enforcement has gained valuable new tools to track a person’s movements.

With rapidly developing technology, and law enforcement’s ability to gather and use the information in criminal cases, courts are increasingly called upon to determine the legitimate collection and preservation methods permitted. Whether the collection of the data requires a search warrant, communications data warrant or grand jury subpoena is being fought in courts throughout the country.

Contact NJ & NY Criminal Defense Attorneys

Protect your rights.

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.

Our offices are located in Mountainside, New Jersey and Manhattan. 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 rstahl@stahlesq.com. Or Contact us online.