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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In broad strokes, the new policy calls for

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

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

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

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

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

In many states, prosecutors and defense attorneys have the ability to sentence bargain, meaning that in addition to determining what charges the client agrees to plead to, they also agree to a specific sentence that the court must then accept or reject. In the very few cases where the court rejects the sentencing recommendation, the client is afforded the opportunity to withdraw the guilty plea or accept the sentence as determined by the court. The federal system is much different.

In the federal system a client negotiates the specific charges that he pleads to and the court determines the sentence based upon:

1. The advisory United States Sentencing Guidelines’ range,
2. The Pre-Sentence Report from Probation, and
3. The sentencing submissions from both the Assistant U.S. Attorney and defense counsel.

The defendant’s sentencing submission is extremely important because it has the ability to persuade the court to sentence the person to levels below the advisory Guidelines’ range, and below the sentence sought by the government.

Recent surveys of federal judges reveal the importance of several key factors in their sentencing determinations. These factors include:

• Details of the defendant’s mental health or substance abuse issues and how they relate to the offense(s) committed;
• Whether the defendant was abused as a child or faced other harsh conditions that would help put the offense in context;
• Whether the defendant ceased their criminal activities prior to the investigation becoming known or the arrest;
• The defendant’s lifestyle and good deeds, or community minded service, prior to arrest;
• The reason(s) for the defendant’s criminal conduct;
• Why the defendant is unlikely to commit future offenses;
• What has the defendant done to demonstrate or express sincere remorse; and
• The defendant’s sincere remorse expressed at sentencing.

These issues should be addressed and explained in an orderly and persuasive manner in defense counsel’s sentencing submission to the court. Carefully screened letters from family and friends may be highlighted and attached as exhibits and statistical analysis for the types of crimes and likelihood of recidivism may also be included. The background of the defendant and any mental health issues explaining or putting the offense in context are important, as are the characteristics that distinguish this defendant and his matter from similar cases.

Providing the court with relevant, specific sentencing factors may motivate the court to deviate from the advisory Guidelines and sentence the defendant to less time. A detailed and compelling sentencing submission requires substantial time and experienced defense counsel.

Stahl Gasiorowski Criminal Defense Lawyers have successfully represented hundreds of state and federal clients, and have written individualized sentencing submissions for decades. We take the time to carefully identify, explore and highlight every possible favorable sentencing factor to the court to obtain the best possible results for our clients. 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.

Federal law permits judges to disregard or override a jury’s not guilty verdict by sentencing a defendant to conduct she was acquitted of by the jury. In the usual multi-count indictments presented in federal court, a defendant can be found not guilty on 9 out of 10 counts, yet still face more severe sentencing based upon the conduct contained in the acquitted counts. This is because a jury must find the conduct was committed by the defendant beyond a reasonable doubt. A federal judge, however, may impose sentencing enhancements based on the much less demanding preponderance of the evidence standard. Thus, if the sentencing judge finds there is a greater than 50% chance the conduct contained in the indictment is true – even a single percent higher – they may consider it.

While this is surprising and even shocking to most people, it is not uncommon. Allowing this to happen only contributes to the trial penalty and infringes on our Fifth and Sixth Amendment guarantees of due process and the right to a jury trial. Justices Scalia, Ginsburg and Thomas have each noted that the practice of sentencing based on acquitted conduct “has gone on long enough” and likely violates the Sixth Amendment.

Fortunately, respected United States senators from both sides of the aisle have sponsored the “Prohibiting Punishment of Acquitted Conduct Act of 2019.” Senators Durbin, Grassley, Leahy, Tillis, Booker and Lee introduced the bill on September 26^th. Respected organizations such as the NACDL (National Association of Criminal Defense Lawyers), the ACLU (American Civil Liberties Union), Aleph Institute, and others have lent their support to the proposal to amend Title 18 U.S.C. Section 3661 and thus limit the use of acquitted conduct at sentencing. Hopefully Congress will pass this bill and end the draconian practice that serves only to enhance the trial penalty for those asserting their right to trial.

[1] See Plea Bargaining in the Federal System and The Financial Realities of the Criminal Justice System

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 being sentenced in federal or state court, it is critically important to carefully plan what you are going to say to the judge, both in written submissions and orally, before the sentence is imposed. Acceptance of responsibility and true remorse are key factors judges consider when imposing a sentence.

A recent article about a federal sentencing in Florida is a perfect example. A judge in the Southern District of Florida changed her mind and imposed a more severe sentence after listening to the defendant speak. The case involved a low-income housing fraud scheme. The defendant claimed contrition and responsibility, but immediately thereafter stated he did not act with fraudulent intent and never received a single complaint of underpaying a worker. Nearly a full year was added to his sentence as a consequence. His statement, according to the judge, was a far cry from any acceptance of responsibility she had heard in 30 years on the bench. The judge also remarked that she didn’t know who the defendant made the statement for, but suspected it was for members in attendance and their perception of him as a CEO of his construction firm.

In this instance, the defendant violated two important rules: first, he denied the very essence of the charge – fraudulent intent; and second, he walked away from true acceptance of responsibility by denying any intent to defraud. In response to the court’s questioning, the defendant remarked “if there is any victim, I am all ears to listen to that person.”

Such examples are less common than a defendant that simply gets carried away when he thinks the court is receptive to his remarks or “story.” At times, judges engage in a dialogue, asking the defendant questions about why they got involved in the criminal conduct, or how they could have led a seemingly law-abiding life and engaged in such aberrant behavior. Without proper preparation, a defendant can easily slide into statements and explanations that the court may interpret as excuses or walking away from full acceptance of responsibility, warranting harsher punishment. While the defendant can offer context about the criminal conduct, he must always stay true to telling the court that he accepts full responsibility for his conduct and does not shift the blame to others.

The case in Florida does not mean that the defense attorney did not discuss acceptance of responsibility and remorse with the client. Rather, it may have been a situation where the client decided that no matter what he would continue to maintain that he had no fraudulent intent. However, the client must always be made aware of the likely consequences of such a position. Lastly, it must be remembered that judges hear defendants’ sentencing statements every week, so the client must not try to “sell” or charm the judge, as it will backfire. True remorse and acceptance is obvious to the listener.

I have been involved in countless cases where the court tells the defendant that she was going to give him X years and, after listening to him, has decided to give him a reduction based on his true, heartfelt remorse. In deciding the best course of action, it is always important to keep in mind that the sentencing judge wants to know why the defendant in front of them deserves mercy.

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.

Anyone facing a federal sentencing knows how difficult and daunting the U.S. Sentencing Guidelines can be for many types of crimes. For financial crimes, the amount of loss, number of victims, complexity of the scheme and the like can quickly ratchet someone with no prior offenses into the 10+ year range. With a system that does not allow for early release on parole, like most states, and that credits a defendant with only 54 days a year good time credit, sentencing in the federal system can be particularly harsh.

The Sentencing Guidelines, created in an effort to have greater uniformity in sentencing for similar crimes, have been advisory rather than mandatory since 2005. A report by the U.S. Sentencing Commission reviewing 150,000 sentences in drug; illegal reentry; fraud; and “other” cases by federal judges in 30 major cities revealed the prevalence of sentencing disparities.

The results illustrate several important facts. First, there are wide differences in sentences imposed by judges within the same city; the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to the case. Second, most judges across the country on average gave below the low end of the recommended guideline range. Third, sentences typically vary more from the advisory guideline range as the sentencing ranges get higher. For example, in economic crimes, where the advisory range exceeds 60 months (5 years) based upon the amount of loss, the majority of sentences go farther below the advisory range.

Given the above statistical analysis, what can experienced federal criminal defense attorneys do to maximize the benefit his or her client receives at sentencing? A number of federal judges recently spoke at the ABA Conference in New Orleans for the White-Collar Bar meeting. The judges emphasized three important factors they consider at sentencing:

One, a detailed sentencing memo from the defense that clearly and succinctly addresses the individual sentencing factors that warrant consideration for a below guideline sentence. Those factors usually include the defendant’s personal background and prior good deeds that distinguish him from other similarly situated defendants. Considerations typically include the defendant’s involvement in the community, church and charitable organizations prior to the charged offense; physical or mental health needs or treatment; and post-offense conduct that reflects a commitment to leading a law-abiding, respectful life.

Two, the defendant’s future plans to maintain a law-abiding life, including whether he has the support of his family, friends, and/or employer.

Third, what the defendant says at the sentencing. Many judges indicated this was critical in determining an appropriate sentence. Specifically, the judges wanted to hear the defendant accepting full responsibility for his actions, speaking with them sincerely and candidly without reading from a script.

In deciding the best course of action, it is always important to remember that the court wants to know why they should take a chance on a particular defendant and sentence them below the guideline range.

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.

Stahl Gasiorowski Criminal Defense prides itself on the detailed, exhaustively researched and nuanced sentencing presentations we make in federal and state court matters. Laura Gasiorowski, a member of the firm for 15 years, is especially gifted in working with clients and their families in crafting powerful presentations. With her background in death penalty mitigation, she is well equipped to investigate the client’s social, mental, and educational history and uncover the type of powerful mitigation evidence that often makes the difference. Knowing and understanding the Guidelines is crucial, but in addition to making the right legal arguments a sentencing memo has to individualize the client and present whatever personal characteristics, social history, or circumstances that mitigate culpability.
Part of that success can be attributed to thinking about what is best for the client and the eventual sentencing from the very beginning of the case. Does the client have any addictions – drugs, alcohol or gambling? Does the client need mental health counseling for past abuses or traumatic events? What caused the client to become involved in the charged offenses? How can those factors assist with plea negotiations and sentencing?

Reviewing these types of potential issues at the outset is invaluable both for the success of a sentencing presentation as well as for the individual client. For example, we just had a client in a serious federal drug case whose life and personal circumstances demanded something other than incarceration despite the Guidelines recommendation. This was a difficult case with a client reticent to share any personal history much less admit that there were significant issues that needed to be addressed. From plea negotiations to sentencing we identified and developed a powerful mitigation strategy, teasing out the client’s tragic personal history, addiction issues, and psychological struggles and persuading the client to begin therapy, seek treatment for addiction, and begin medication.

When we submitted the sentencing motion, which took weeks of drafting, we accomplished something as important, if not more important, than successfully arguing the Section 3553 factors that would ultimately persuade the Court to vary substantially. We helped a client identify longstanding but undiagnosed mental health and addiction issues, seek and obtain therapy and treatment, and secure employment. It certainly helped to have a compassionate judge who carefully read the sentencing memorandum and its detailed explication of the impact of Traumatic Brain Injury, abuse and addiction on this defendant’s ability to function. That memorandum detailed the tragic circumstances of the client’s life, recent diagnoses and treatment of underlying mental health problems and the client’s remarkable progress from the time of the first meeting with Ms. Gasiorowski to the day of sentencing. The sentencing presentation emphasized how the client’s personal history and terrible life circumstances contributed to the fateful decisions that brought us all to court, explaining without excusing the client’s criminal conduct.

Ultimately, we are not only proud of helping to obtain the right result – probation – for this client, but of our ability to help the client begin life again as a whole person. It took almost two years, but the results will hopefully last a lifetime.

Experience, exhaustive research and investigation, and finely tuned briefing of all possible legal issues and mitigation evidence distinguish the sentencing work of Stahl Gasiorowski Criminal Defense. Our commitment to the client sets us apart.

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.

In the multiple investigations surrounding the Trump presidency and his administration, former National Security Advisor, General Michael Flynn, pled guilty to lying to the FBI and cooperated with the government. He cooperated ostensibly to earn a “substantial assistance letter” and downward departure motion, which is filed by the government on a defendant’s behalf to seek a sentence below the advisory U.S. Sentencing Guidelines’ range, in this case 0 – 6 months.

Normally, when a defendant pleads and cooperates, the defendant, his counsel and the government are aligned – on the same page – as to the defendant’s conduct, value as a cooperator, and oftentimes what sentence the person should receive. What is so unusual here, and perhaps why the federal judge encouraged and granted an adjournment of the sentencing, is that Flynn’s attorneys filed a sentencing memorandum seemingly attacking the underlying factual basis for the crime. The memo argued that Flynn was duped into lying to the FBI by not being afforded the opportunity to have counsel present during the interview and because he was not warned that lying to the FBI is a crime.

Even more puzzling is that the known facts do not support their positions. First, Flynn was not in custody and thus not entitled to counsel or being advised of his Fifth Amendment right to have an attorney present for any questioning. Second, the FBI report demonstrates that General Flynn was given multiple opportunities to correct his statements and was reminded of certain facts that should have made it clear to him that the agents knew about the sum and substance of his contacts with the Russian Ambassador. Third, it defies logic that someone with General Flynn’s background and experience did not know that lying to the FBI was a potential crime.

When both the attorneys and Flynn were asked by the judge whether they were arguing that Flynn was entrapped by the FBI, they said “no.” Flynn himself acknowledged that he knew it was a crime to lie to the FBI. The only seemingly plausible explanation, other than Flynn wanted to play to the President’s base and hope for a pardon, is that Flynn’s attorneys were attempting to make a technical distinction between the FBI’s interview of Flynn and their interviews of van der Zwaan and Papadopoulos, who were warned by agents that lying to them could be prosecuted.

That distinction, however, is meaningless, in that it offers no mitigation to lying to the FBI and it undercuts Flynn’s remorse and full acceptance of responsibility. More significantly for sentencing, it offers the judge competing versions of the person before him: one that wants full credit for pleading, accepting responsibility and cooperating, and one who wants to argue that he was set up and mistreated. That argument doesn’t usually lend itself to a sentence of probation.

When a person cooperates, it is all or nothing. The government is the sole arbiter of whether the person’s cooperation meets the standard of “substantial assistance” to the United States and whether a motion for a downward departure from the Guidelines will be filed. Until Flynn’s sentencing memo was filed, the government was in favor of the best possible outcome, no jail time. Now, the judge has seemingly called that recommendation into doubt.

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.

Criminal defense attorneys representing non-citizen defendants are obligated to provide advice regarding the immigration consequences of a plea or guilty verdict. The Supreme Court’s decision in Padilla made it clear that failure to do so constitutes ineffective assistance of counsel.

This is because a conviction may render a defendant removable (subject to deportation), inadmissible or both under complex immigration laws. Aggravated felonies, for instance, subject a defendant to mandatory removal. Importantly, an experienced and inventive defense attorney may be able to negotiate a plea to charges with no immigration consequences. Regardless of whether a non-citizen defendant faces trial or decides to plead, the decision must be made with full understanding of the immigration consequences. The question is how specific that advice must be; is it sufficient to advise a client that a conviction may or could result in removal/deportation?

Defense attorneys should take note of a recent First Department decision, People v. Doumbia. In this New York state appeal, the Court held that Doumbia’s attorney’s advice that he “could” be deported, when his guilty plea for attempted robbery made deportation a certainty, constituted ineffective assistance of counsel. Interestingly, Doumbia did not file a CPL 440.1 motion, but made his ineffective assistance claim on direct appeal. The dissent argued that because there might be avenues for avoiding even mandatory deportation, such as youthful offender treatment, an attorney’s duty under Padilla is only to inform the client that there is a risk or possibility that he or she may be deported. The majority, however, opined that such a standard not only undermined the Sixth Amendment protection afforded the non-citizen defendant, but would also conflict with the concept of a “truly informed” plea bargain. Lawyers have an affirmative duty to inform clients about the consequences of criminal convictions with as much specificity as possible.

Doumbia makes clear how important it is for noncitizen defendants facing criminal charges to have experienced counsel explain the immigration consequences of a plea; whatever post plea strategy counsel may have under the circumstances, the client must first be made aware that for certain convictions, removal/deportation is not merely a risk or a possibility, but mandatory. Unfortunately, in many cases defense attorneys do not fully investigate immigration consequences or put the onus on the client to seek the advice of immigration counsel.

At the Law Offices of Robert G. Stahl, the attorneys are experienced in representing noncitizens charged with state and federal crimes, and can fully and specifically advise clients on the immigration consequences of a conviction so that the client can make a knowing and informed decision. We frequently negotiate with prosecutors to charge defendants alternatively to avoid immigration consequences, to limit loss in certain fraud cases, or otherwise minimize or eliminate the risk that our client might face exile from their family through removal.

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 rstahl@stahlesq.com.

U.S. Attorney General Jeff Sessions recently issued a directive to all U.S. Attorney’s Offices to charge defendants with the most serious provable offenses/ that carry the most substantial sentences, including mandatory-minimum sentences. This directive is a shift back to prior years where the “war on drugs” and other initiatives were designed to reduce crime and incarcerate – warehouse for extended periods – defendants for the longest possible terms.

Unfortunately, the myth that long prison sentences incarcerate the most dangerous offenders and reduce crime through deterrence, has been debunked in study after study. Former President Obama and his Attorney General Eric Holder, recognized this fact and had implemented a policy to not indiscriminately charge the most serious offense for non-violent drug offenses because it disproportionately incarcerated a generation of minorities. The prior administration, and interestingly Governor Christie, view these recidivist non-violent drug offenders as a health crisis.

The ACLU has reported that black males are four to five times likelier to be convicted of drug possession, even though black males and white males use drugs at similar rates. While the vast majority of drug dealers are white, three quarters of all people in prison for drug offenses are African American or Latino. The collateral consequences of the war on drugs results in a generation of people being incarcerated for excessively long terms, families torn apart and the loss of voting rights forever.

The return to a policy of charging the most serious offense, that often includes mandatory-minimum prison terms, takes discretion away from judges to fashion a sentence tailored to the individual offender, rather than the offense. With a mandatory-minimum sentence set by statute, the court lacks the ability to take into account the traditional sentencing factors of age, education, family background, prior good deeds, the actual nature of the offense, extenuating circumstances and the like. Mandatory sentencing simply imposes a minimum number of years regardless of the individual and the specific facts and circumstances of that particular case.

The financial consequences to society are great as well. Substantially more people are incarcerated for substantially longer periods of time, thus increasing the costs exponentially. The current cost of the prison system is approaching $100 billion a year. The trend in the past several years of fewer prisoners and a reduction in the number of privately run prisons that cost taxpayers even more money will be reversed under Sessions’ renewed charging policy.

Mandatory minimum sentences occur in the federal system as well as in many states. Some state, like Florida, have enacted extremely harsh mandatory sentences for selling as few as 25 or 30 pills of one’s own prescribed painkillers. Often these individuals are addicted to prescription painkillers and sell their drugs to support their habit. The only way to avoid the harsh minimum sentence is to become a cooperator/informant and set-up others in similar schemes. If the person cannot set others up, or chooses not to, they are incarcerated for years rather than receiving the appropriate drug treatment.

Opioid addiction is the most fast-paced drug problem sweeping the country. Heroin, prescription painkillers and synthetic opioids are the new drug of choice among a large cross-section of the population. The need for drug education and treatment has never been more pressing. Yet the proposed new federal budget cuts drug programs across the board. It seems like we are taking a giant step back in time, ignoring the reality of the drug problem and simply looking to incarcerate another generation of people.

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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 rgs@sgdefenselaw.com. Or Contact us online.

The United States Sentencing Guidelines provides federal judges with a set of guidelines to calculate an appropriate and “reasonable” sentence in criminal cases. These guidelines are intended to encourage fair and consistent sentencing proportionate to the magnitude of the crime committed. In most cases, sentencing guidelines suggest a range of months to years of prison time, in addition to a period of supervised release. Other sentences may call for a period opf probation, or a number of hours of community service. However, when the defendant in a criminal action is a corporation or similar organization, the recommended sentences must change. It’s impossible to put a corporation in jail (though individual employees or members may be co-defendants and may face prison time for their own charges).

When the defendant in a criminal matter is an organization, the court’s first recourse for sentencing generally takes the form of various fines and penalties. A distinct order of priorities exist for the purpose of determining appropriate fines for an organization found guilty of criminal behavior. The first and foremost concern for the court is remedying, whenever possible, the harm caused by the organization through its criminal acts. If there are identifiable victims, the court may order that restitution be paid directly to the persons harmed to make them whole or otherwise remedy their loss. The organization may also be obliged to notify potential victims who have not been expressly identified. Additional fines or community service may also be required if the crime resulted in persistent conditions that continue to harm others (such as the illegal dumping of toxic pollutants in areas where people or animals may be sickened by them). Sentencing guidelines generally recommend that any monies paid by an organization first go toward fully compensating its victims, before any other type of fine is paid.

If the primary purpose or mode of operation of the accused organization is found to be criminal in nature, courts are often authorized by to impose fines significant enough to deter not only that corporation but others who may be engaged in similar activities. In many cases, though, the organization being charged with criminal behavior is not so thoroughly corrupt that it lacks any legitimate and legal purpose or means of operating. Punitive fines for these organizations are generally determined by considering a series of factors regarding how serious the crimes committed by the organization were and how culpable the organization as an entity is considered to be. The severity of an organization’s crimes is strongly influenced by the amount of financial gain (in terms of either increased profits or cost savings) resulting from the criminal acts, or the amount of financial loss the organization’s criminal activity caused others – deliberately, knowingly, or recklessly.

Culpability is a difficult matter to quantify when dealing with an organization made up of numerous individuals, particularly if that organization has segments or departments that operate semi-independently of one another. As such, the sentencing guidelines include a weighted system for measuring degrees of culpability. The larger an organization (or branch within the organization) in which high-level executives or managers participated in, supported, or willfully ignored the criminal actions in question, the more culpable the organization is, as the criminal activity is manifestly more widespread and pervasive. Similarly, the organization is considered more culpable if it has a history of similar illegal activity or violated an existing court order. Attempting to cover up the offense or obstructing a government investigation also compounds the organization’s culpability.

There are actions that an organization can take to reduce its culpability, as well. If the organization had an effective regulatory compliance and ethics program in place, it will be considered less culpable than an organization without such a program. An ethics and compliance program is considered effective if it reasonably could have discovered the violation before outside parties exposed it – even if the program did not actually discover the criminal behavior first. Similarly, if the organization reports the violations to the proper governmental authorities as soon as it becomes aware of them, cooperates with any government investigations, and clearly and explicitly accepts responsibility for the harm caused by those violations, the court will consider the organization less culpable than one that attempts a cover-up.

In addition to any fines levied by the courts according to these sentencing guidelines, a judge may add probation to the sentence of an organization convicted of criminal activity if she determines that the organization requires increased scrutiny because of the risk of offending again, or to ensure that appropriate measures are implemented within the organization to reduce that risk (like the establishment of a compliance and ethics department). If another, similar offense is committed during the probationary period, the penalties recommended under the sentencing guidelines will be substantially more severe due to violating probation. The judge may also impose a monitorship by an outside attorney or expert in the field to establish additional safeguards and protocols to uncover and discourage bad conduct.

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. 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.

The stages of a criminal case as it proceeds through the legal system can be confusing for individuals who find themselves on the wrong end of legal charges for the first time. Though popular media has no shortage of stories set within the criminal justice system, these fictional depictions often leave out important details. When a substantial portion of your personal and professional future hangs in the balance, it’s critical to have a complete and accurate understanding of the steps through which your criminal case will proceed.

Criminal Arrest

A criminal case begins with an investigation into alleged criminal conduct. The formal process begins when an individual accused of a crime is taken into custody by law enforcement. To make an arrest, the law enforcement officer must either be present at the time the crime is committed and see it happen, or have an arrest warrant for the suspect in question. Arrest warrants may be obtained by law enforcement when they can present probable cause that a given individual committed the crime. There are certain procedures, determined by the jurisdiction, that an arresting officer must follow for a legitimate arrest.

Criminal Charges

The accused has the right to be informed of the crime(s) for which they are being charged, either at the time of the arrest or as promptly thereafter as is practical.

Initial Appearance

This is usually the first occasion on which a given criminal case comes before a judge. Generally the initial appearance must occur within 24 hours of the arrest. During this appearance, the identity of the accused is confirmed, the criminal charges against them are explained, and the accused is informed of their rights (to remain silent, and to be represented by an attorney). Public defenders are assigned to defendants who cannot afford a lawyer.

Preliminary Hearing

An accused defendant has the right to be present and represented by an attorney at this hearing, the purpose of which is to present and challenge evidence that shows probable cause to believe that a criminal act was indeed committed, and that the defendant was the perpetrator. Evidence may be presented at this stage to support or dispute these claims. If the Judge determines that the State failed to demonstrate that there was probable cause to believe that the defendant committed a crime, the charges are dismissed and the defendant released. The State can avoid a probable cause hearing by presenting the case to the grand jury and obtaining an indictment. The indictment is proof that the grand jury found sufficient probable cause to believe that the defendant committed the crime(s)charged.

Bail or Detention Hearing

If not already determined at the defendant’s initial appearance before the court, a separate hearing is convened to establish whether bail is appropriate, and if so, in what amount.

Grand Jury

Felony cases in some jurisdictions involve a grand jury indictment rather than a preliminary hearing. In these cases, a grand jury consisting of private citizens sworn to secrecy hears evidence only from the prosecutor, the defense is not permitted to participate. The grand jury in a criminal case has the power to compel testimony from concerned parties, including the victim. After investigating, the grand jury votes on whether to indict or dismiss.

Arraignment

At this stage of a criminal case, the defendant is formally presented with the charges against them contained in the indictment and enters a plea.

Pre-Trial Hearings

Before the trial begins, both the prosecution and the defense may introduce motions to address outstanding issues pertaining to the case, which are ruled upon by the judge.

Plea Negotiations

Instead of proceeding to trial, the defendant may choose plead guilty to the original charge or a lesser charge, in exchange for some form of consideration from the prosecution – often involving either dropping other charges or recommending a specific sentence. The court has the option to accept or reject the plea agreement; if it is rejected, the defendant may withdraw their plea.

Criminal Trial

If the case is not dismissed or resolved with a plea agreement, it goes to trial before a jury. This is perhaps the most well-recognized portion of a criminal case. Jurors are selected, evidence is presented, witnesses are questioned and cross-examined. The burden of proof rests on the prosecution to prove the defendant’s guilt beyond a reasonable doubt. If they cannot, the defense attorney may ask for a judgment of acquittal.

Verdict

If the trial is completed without a judgment of acquittal, dismissal, or plea agreement, the jury withdraws to consider the facts and reach a verdict, which is then presented to the court. If the jury finds the defendant not guilty, the defendant is released. Otherwise, the case proceeds to sentencing.

Sentencing

The sentence received by the defendant is often determined at a separate hearing. Both the prosecution and the defense present evidence regarding the appropriate punishment, and the judge makes the final determination.

Appeals

You may appeal the ruling in your criminal case to a higher court if you believe an error or inappropriate action resulted in an unfair decision. Appeals are difficult to win, and your attorney can help you determine whether you have grounds for an appeal.

The experienced attorneys at Robert G. 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 Mountainside, New Jersey office and 212-755-3300 for our New York City office, or email us at rgs@sgdefenselaw.com.