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.

Cellphone carriers acquire and maintain location information on almost every American with a cellphone. Carriers routinely sell this information to marketing companies and services, such as bank fraud protection, under contracts that require the location-acquiring companies to obtain customers’ consent. Often, that consent is hidden in fine print or an app that simply requires a click of a button. In addition to selling this valuable information to marketing companies, carriers and their intermediaries often sell tracking information to bounty hunters, repo companies, and bill collectors.

Recent news reports indicate a company called Babel Street is selling a tool called Locate X to federal law enforcement agencies. Locate X allows users to “geo-fence” an area; identifying any cellphones in a particular geographic location. The tool can see user data from months before, up to and including where a device has traveled. It was reported that U.S. Customs and Border Protection, the Secret Service, and U.S. Immigration and Customs Enforcement have spent millions of dollars on contracts to use Locate X – all in seeming violation of the Supreme Court’s Carpenter ruling.

Law enforcement yet again has the ability to track a cellphone’s movements without court authorization. If a particular geographic area is under surveillance, or a crime has been committed in the area, law enforcement can obtain the location data of any and all cellphones near that area, as well as where those devices were before and after the relevant time period.

According to recent articles, Babel Street asserts that Locate X is for “research purposes” only, and allegedly forbids law enforcement from using its data as evidence in court. That supposed limitation, however, does not protect Americans from unauthorized surveillance that the Supreme Court sought to protect in Carpenter. Requiring law enforcement to establish probable cause in order to obtain a court-authorized warrant before such intrusive data can be collected helps protect us all from unwarranted government spying and surveillance.

Even with a court order, geo-fence information can lead to erroneous conclusions by law enforcement. Just recently, a Florida man out for his normal bike ride became a suspect in a Gainesville burglary investigation after a geo-fence warrant authorized Google to reveal every person who was in the designated area at the time of the crime. Google collects location information using Bluetooth, GPS, Wi-Fi, cell phone connections and, in the Florida case, the person’s fitness-tracking app. The fitness app showed that the “suspect” passed the burglary victim’s home three times with an hour, leading police to mistakenly suspect that he was the perpetrator casing the home before breaking in.

Hundreds of millions of people carry cellphones with them every day, with the numbers steadily increasing. In turn, law enforcement’s use of geo-fenced information has dramatically risen in the past four years. Allowing unfettered access to our geo-location data violates our rights and allows the government to track our movements without good cause as determined by a neutral party – the court. While judicial procedure is far from perfect, as the Gainesville case demonstrates, it is certainly better than companies selling the information indiscriminately.

This is an ever-developing and expanding area of law. It is important to hire well-versed and adept counsel when dealing with law enforcement’s intrusion into your personal data. We at Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.

When a person is a target of a federal or state criminal investigation, they are often contacted − either directly if unrepresented or through counsel if represented − to attend either a proffer or a reverse proffer with the U.S. Attorney’s Office, State Attorney General’s Office, or County Prosecutor’s Office.

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

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

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

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

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

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

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.

With our societal addiction to the internet, smartphones, and computers, today’s teens face growing exposure to new forms of harassment and bullying. These can sometimes lead to criminal charges for those engaging in this conduct, and potentially anxiety, depression and, suicidal thoughts for the recipients.

Sexting is the sending, receiving or forwarding of sexually explicit material over electronic devices, including cellphones and computers. Sexually explicit material includes nude or partially nude photos or videos. Studies have revealed that more than 50% of young adults have sent nude or seminude photos of themselves to others, and more than 70% have received such materials. New Jersey, like many states, criminalizes the sending, possession, sharing or viewing of sexually explicit photos and videos of anyone under the age of 18 under its child pornography laws. That means that a student under 18 who sends a nude photo of themselves to another student under 18 could face criminal prosecution. While there is a diversionary program available for juveniles charged with their first sexting offense, these are serious matters that persist in middle and high schools across the country.

Revenge porn, also referred to as non-consensual pornography, is the distribution of sexually explicit images of an individual without his or her consent and without legitimate purpose. It is an ever-increasing, invasive form of cyber harassment. It usually involves a former sexual partner, who sends nude photos or videos to the victim’s family, friends, or employer in an effort to degrade, embarrass, and harass. In New Jersey, this form of harassment is a third-degree crime, exposing the perpetrator to 3-5 years in state prison.

Cyberbullying is the repeated and intentional harassment of another person over electronic devices. Cyberbullying is rampant among teenagers and has recently resulted in a number of highly publicized suicides by victims. Studies have demonstrated that the adverse impact of cyberbullying can last much longer and cause greater damage than traditional forms of in-person bullying.

These activities are the latest form of domestic violence, stalking, and harassment. They carry serious criminal penalties and require experience and expertise to handle correctly, as they risk incarceration, criminal fines and penalties, and civil restraining orders.

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.

We receive many calls over the course of the year from potential clients, telling us they received a “target letter” from the U.S. Attorney’s Office or State Attorney General’s Office and that they are considering whether to go to an interview with law enforcement under a “proffer agreement.”

When approaching these topics, our firm ensures that clients are fully informed and aware of every possibility before taking such an important step. The first task is to confirm that the client fully understands what a target letter means. Such letters explicitly state that the person is the target of a criminal investigation, meaning the government believes that it has evidence that the person committed one or more federal or state criminal offenses, and is looking to potentially charge them.

Target letters are used to get the client’s attention and are often meant to entice them into meeting with the investigating authority for an interview. Typically, the letter indicates that the client has 7 – 10 days to have their attorney contact the prosecutor with any facts they may want to bring to the prosecutor’s attention. Often, they advise that if the person does not have an attorney, they may contact the investigator directly. It is critically important for the person to retain experienced criminal defense counsel before responding to a target letter. After the attorney makes contact, the government typically pushes to have the client brought in for a proffer, a meeting limited in scope, conducted for the purpose of having the client give the government information.

Before a proffer meeting is scheduled, the prospective client must understand the very limited protections of a proffer agreement. The agreement purports to protect the client/target from incriminating themselves by prohibiting the government from directly using anything the client may say during the meeting against them later at trial. The distinction is best thought of this way – if the client simply agreed to speak to an investigator by themselves, anything the client said could be used against them in the prosecution’s case in chief, and is akin to a confession. The investigator could take the stand and testify that the client divulged incriminating information. Under a written proffer agreement, anything said during the proffer by the client cannot be used directly against him at trial. However, the proffer agreement allows law enforcement to use any information provided by the client in a number of ways.

First, the agents or investigators can go out and collect evidence or statements from others based upon any information provided by the client. That is called derivative use of the information and the prosecution can use that evidence, even though they only learned of it from the client.

Second, the information can be used at trial against the client to impeach his testimony, if he testifies and contradicts what he said in the proffer. The rationale being that the client cannot lie, either during the proffer or at trial. If he does, the jury has a right to know.

Third, and perhaps most damaging, the client’s defense attorney cannot put on witnesses or cross-examine government witnesses in a manner that would contradict what the client said during the proffer. For instance, if the client said that he was at a meeting with the coconspirators when drug sales were discussed, the defense could not argue that there is no proof of the client’s attendance or put on a witness that claims the client was elsewhere, as it would be contrary to what the client said during the proffer, allowing the proffer statement to be used for impeachment purposes.

Agreeing to a target proffer is a very serious step that can only be decided after sufficient facts are known about the case and the client’s exposure is understood. In rare instances, it could be used as an innocence proffer, where the client and his attorney try to convince the government that they are mistaken and that the client should not be charged. In the typical scenario, however, it is a calculated step toward cooperation and a plea. Thus, before even considering whether a client should proffer, experienced defense counsel and the client must review the type and strength of the evidence against the client, and whether the client has sufficient information that could assist the government in its investigation and earn the client a better plea or sentence. It should never be to “just see what the government has” and talk about the case.

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.

Recent statistics show that about 96% of the criminal cases in federal court are resolved through guilty pleas. The number of cases going to trial has dramatically decreased in the past ten years. Thus, today’s criminal defense attorneys must be adept at negotiating the best possible resolution for their clients that choose to plead guilty.

Plea bargains in the federal system, however, differ significantly from plea bargains in many states. For example, in New Jersey a state plea between the county Prosecutor’s Office and the defendant most often is to an agreed upon sentence. If at sentencing the judge disagrees with the agreed upon sentence, the defendant has the option of accepting the sentence handed down by the judge or withdrawing their plea and opting for trial. Nothing the defendant says during their plea hearing can be used against them at trial. It is a rare occurrence, however, for a state court judge to disagree with the negotiated disposition and sentence.

In the federal system, the U.S. Attorney’s Office and the defense agree to the specific statute(s) or counts of the Indictment or Information the client will plead to, and often to the specific U.S. Sentencing Guidelines sections and levels that are applicable to the case. This results in an advisory Guidelines range that the parties believe are applicable to the plea. This agreement, however, is only binding on the parties to it – the government and the defense. The Court and U.S. Probation make an independent assessment and determine separately whether the plea agreement calculations are correct. If the court determines that the sentencing range is greater than agreed to, the defendant cannot withdraw their plea and opt for trial. The defendant’s only recourse is to appeal the sentence to the U.S. Court of Appeals.

In addition, each federal district has slightly different rules or accepted practices in negotiating pleas. For example, in the District of New Jersey, when the parties agree to the Guidelines’ levels based upon amount of loss, the amount of drugs, the defendant’s role in the offense, and any other enhancements, the defense is not allowed to affirmatively argue for a variance or departure from the advisory Guidelines range agreed to unless the right is specifically listed in the agreement. In many other districts, no such restriction is placed on the defense, allowing them to argue for a below Guidelines sentence based upon a departure, variance, or the traditional sentencing factors expressed in 18 U.S.C. Section 3553(a) – the nature and circumstances of the offense, the history and characteristics of the defendant, the need for the sentence to reflect the seriousness of the offense, and to provide specific and general deterrence. Thus, it is critical for defense counsel to be intimately familiar with each districts’ policies for plea agreements and sentencing.

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 federal government has hired 300 additional prosecutors and created the Opioid Fraud and Abuse Detection Unit and the Joint Criminal Opioid Darknet Enforcement Team to investigate, uncover, and prosecute the prescribing and dispensing of opioids by healthcare professionals – doctors and pharmacists – as well as street-level sales of opioids and fentanyl. Since January 2018, over 200 doctors have been charged.

What are the agents and prosecutors looking for in these cases? They are typically looking for what is referred to as “pill mill” cases, where corrupt doctors write prescriptions to patients they know or should have known are misusing the prescriptions. The pharmacists who fulfill those suspect prescriptions are also frequent targets.

Typically, investigations center on doctors who are suspected of writing prescriptions for large quantities of opioids to individuals that do not medically need them. Investigators look for red flags such as patients traveling from geographically distant locations to the doctor’s office; incomplete or no medical exams to verify alleged pain; a failure to offer alternatives, such as non-opioid based pain management; the absence of a gradual increase from less addictive pain medications to opioids; patients without medical insurance paying cash for each visit; a high number of pills prescribed; and doctors who write and fill the prescriptions themselves for cash.

With regard to pharmacists, investigators look for red flags such as prescriptions with unusually high quantities or that have evidence of alteration; patients traveling far distances to the pharmacy or the prescribing doctor; patients paying with cash for their prescriptions; a high percentage of opioid prescriptions filled; and prescriptions sent and filled from suspect doctors.

In addition to these red flags, every state but Missouri has Prescription Drug Monitoring Programs (PDMP). These programs monitor and track information submitted by doctors and pharmacies about the prescribing and dispensing of controlled substances. They track which doctors give opioid prescriptions, which patients receive the prescriptions, and what pharmacies do the fulfilling. These systems allow for quick and early detection of patterns evidencing possible fraud or abuse.

Given that many doctors and national chain pharmacies have greatly limited their prescribing and dispensing of opioids due to heightened government scrutiny, small independent pharmacies and medical practices have come under enormous pressure to fill a legitimate need for these medications. Along with that need comes the potential for abuse and investigation.

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Stahl Gasiorowski Criminal Defense has successfully represented many doctors and pharmacists under investigation by the DEA, state investigators, and licensing boards. 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.

Over the past several months I have written about the increasing use of every day technology that automatically tracks our movements and records our conversations. Cellphones ping off cell towers that give the government access to our daily movements through information stored by carriers like Verizon, AT&T and Sprint. Alexa and other smart home devices can record our conversations and keep track of our search histories. Smart phone apps and Fitbits that track movement, heart rates and other physical activity can be used to track locations, times and other physical attributes that law enforcement can access to investigate a variety of crimes.

In San Jose, California police used information gathered by the victim’s Fitbit to charge her 90-year-old step-father with murder. Anthony Aiello told investigators that he had last seen his stepdaughter when he took homemade pizza and biscotti to her house. Mr. Aiello told investigators that she then walked him to the door and handed him two roses in gratitude. Five days later, Mr. Aiello’s stepdaughter, Karen Navarra, 67, was discovered by a co-worker in her house with fatal wounds on her head and neck.

The victim had been wearing a Fitbit fitness tracker, which investigators said showed that her heart rate had spiked significantly around 3:20 p.m. on Sept. 8, when Mr. Aiello was there. It then recorded her heart rate slowing rapidly, and stopping at 3:28 p.m., about five minutes before Mr. Aiello left the house. Mr. Aiello told the authorities he had dropped off the food for his stepdaughter and left her house within 15 minutes and claimed that he saw her drive by his home with a passenger in the car later that afternoon.

Investigators obtained a search warrant and retrieved the Fitbit data. When Ms. Navarra’s Fitbit data was compared with video surveillance from her home, the police discovered that the car Mr. Aiello had driven was still there when her heart rate stopped being recorded by her Fitbit. Mr. Aiello was subsequently arrested on murder charges based in large part on the information from the victim’s Fitbit.

Originally designed to motivate wearers to take control of their fitness and health, fitness devices have become a high-tech tool that law enforcement utilizes to solve crimes. Attached to a person’s body, these devices have a unique front-row seat to their lives, inadvertently documenting both the intended and unintended data.

Fitbit location data has been used in a number of recent cases, from a sexual assault case in Pennsylvania in 2015 and a personal injury case in Canada in 2014. In 2017, a Garmin Vivosmart GPS recorded a woman’s struggle with an attacker in Seattle. The same year, investigators used data from the Fitbit of a Connecticut woman to charge her husband with murder. This year, investigators in Iowa, with the help of F.B.I. experts, sifted through data from the Fitbit of Mollie Tibbetts, a 20-year-old student who was missing for about a month before her body was discovered in August. Surveillance video led them to a 24-year-old man who was charged with murder.

And while these devices have been useful to solve crimes, they can also be misused by government agencies and private citizens to unlawfully spy on their users. A suspicious spouse or boyfriend can use their partner’s computer, smartphone or wearable fitness/heath device to surreptitiously gain unauthorized insight into the movements, contacts and conversations of another. Such unauthorized access is an invasion of privacy when done by an individual, and a violation of Fourth Amendment protections against unlawful search and seizure when done by government agencies. Just recently, the FBI unlocked a suspect’s smartphone using the owner’s image as it was set up for facial recognition rather than a numeric code. As smart devices proliferate and advance, law enforcement’s use of these devices as evidence will increase rapidly. We must at the same time guard against the misuse of the information that can be accessed and make sure that proper protocols and procedures are employed to lawfully access the highly private and detailed information contained on these devices.

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.

Last week’s decision in Carpenter v. United States, a 5-4 decision that the government must obtain a court-authorized warrant for cell site location information (CSLI), is a small step toward recognizing privacy rights in an age of ever-expanding technology. Most people do not realize that their cell phones are capable of tracking their every movement – 24 hours a day, 7 days a week. As we move about, our cell phones ping off of the nearest cell tower. Several times a minute our cell phones contact the nearest cell tower. Our cell providers collect and store that information. Examining that information can reveal a person’s daily movements with a fair degree of accuracy, usually within hundreds of feet to a few miles. Each tower has time-stamped records for every cell phone that pinged off of it, and more specifically, which direction on the tower’s multiple receivers.

Until Carpenter, law enforcement merely needed an order showing reasonable grounds to believe that the records were “relevant and material to an ongoing criminal investigation.” This is a significantly lower standard than what is needed for a court-authorized warrant requiring probable cause. In 2016, Verizon and AT&T had received more than 125,000 requests from law enforcement for CSLI to track citizens’ whereabouts without a warrant.

In its recent decision, the Supreme Court reasoned that the Fourth Amendment – the “right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause . . . ” – extends to the unintentional providing of cell site information to a third party carrier. The majority held that protecting privacy from new digital technologies is in accord with the founding fathers’ central aim to impede surveillance that is “too permeating”.

Given that there are some 396 million cell phone accounts in the United States, and that most people carry their phones everywhere they go, such protections become of vital importance to us all. Surveillance techniques are ever expanding. Law enforcement has an arsenal of surveillance tools that have the potential to invade our everyday lives and privacy. Cell phone tracking, GPS trackers on vehicles, license plate readers on police cars, wearable devices such as FitBit, traffic cameras, gunshot detectors, stingray devices and the like all grant an enormous amount of information into our lives that only a few years ago were the stuff of science fiction. Our constitutional safeguards must keep pace with the ever-expanding technology and surveillance.

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.

In the federal system, a person may be charged and arrested by way of a complaint or indictment. A complaint is a written statement of essential facts establishing the offense charged made under oath by the agent before a magistrate-judge. Based upon the complaint, an arrest warrant may be issued upon the establishment of probable cause to believe that an offense has been committed and that the defendant committed it. The warrant must list the defendant’s name, or description by which he can be identified, the offense charged, command that the defendant be brought without unnecessary delay before a magistrate-judge and be signed by the judge.

An indictment is returned after a properly impaneled grand jury, consisting of 23 grand jurors with a minimum quorum of 16, hears evidence from the U.S. Attorney’s Office and at least 12 grand jurors find probable cause to believe that a crime has been committed and that the defendant committed the crime. The grand jury presentation is done in secret, with evidence presented by the prosecution through agents and witnesses. The defendant, and his counsel, are not permitted to attend and may not even be aware of the grand jury investigation or presentation. Once the grand jury votes on the indictment drafted and presented to them by the Assistant U.S. Attorney (AUSA), an arrest warrant may issue by a magistrate-judge based upon the probable cause finding of the grand jury.

If a person is charged by way of a complaint, they are entitled to a preliminary hearing before a magistrate-judge within 14 days of the arrest to determine whether there is probable cause that the crime charged was committed by the defendant. At such a hearing, the defense may cross-examine adverse witnesses and may introduce evidence. However, most defendants, if they do not waive the preliminary hearing, are indicted by a grand jury before the scheduled hearing as the government usually does not want to reveal and expose their witnesses and case to the defense at this early stage.

In either event, the magistrate-judge will set the conditions of release, or in particularly serious cases to pre-trial detention, at the initial appearance. In the federal system, if the defendant is released on bail, the judge will set the conditions of release which customarily require the signing of a bond by the defendant and other responsible parties, travel restrictions to the District of the offense or the person’s home state, surrender of passport, and other conditions to reasonably assure the defendant appears at all court proceedings and is not a danger to the community.

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

Just the other day, “Bridgegate” cooperator and former Port Authority of New York and New Jersey official David Wildstein, was sentenced in federal court to probation. The two defendants that he cooperated against were sentenced to 24 months and 19 months in federal prison. Despite the fact that Wildstein pled guilty to two counts of conspiracy for his role in the offense, and faced several years in prison, the sentencing judge granted the government’s downward departure motion for a much more lenient sentence – in this case probation.

In the federal system cooperators, those conspirators who assist the government by providing truthful information, assistance and testimony to the government, are rewarded at sentencing with a motion filed under section 5K1.1 of the United States Sentencing Guidelines that permits the court to depart below the advisory guideline range specified for the particular offense and its enhancements.

There are several types of cooperation that may merit these types of sentence reductions. For example, if a person is confronted by the FBI while the investigation is still pending and is interviewed about their alleged participation in an ongoing crime, she may decide to cooperate with the FBI. This cooperation could include giving truthful information about her activities and those of her co-coconspirators, and to proactively work with the agents by recording phone calls and meetings with the others involved under the direction of the FBI. In instances where conspirators have already been arrested and charged, a person could agree to cooperate with the prosecution by providing evidence and testimony against the others charged.

In either scenario, it is critical that the person has an experienced federal criminal defense attorney representing them to fully protect their rights and to make sure that they obtain the best possible result. The attorney must evaluate the client’s potential cooperation and determine whether it is of the kind and nature that would meet the threshold for such a downward departure motion. Experienced defense counsel must also prepare his client for the proffer with the government to make sure the client will make the best possible presentation and truthfully and accurately convey the information.

If the government decides that the person has provided “substantial assistance to the United States,” then the prosecutor will file a formal motion at the time of sentencing for the court to depart below the advisory Guideline range. The letter-motion will also include the details of the person’s cooperation and how significant it was to the prosecution. Experienced defense counsel will also submit a lengthy sentencing brief, along with relevant letters from family and friends, explaining why the client should receive the maximum benefit – largest downward departure – for the cooperation.

While a cooperation agreement is not possible in all cases, or even appropriate in many instances, in the right case it does provide an alternative to trial or simply pleading guilty to the lowest possible offense and exposure. Only experienced federal criminal defense counsel can properly evaluate the client’s case, information and potential for cooperation.

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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 rstahl@stahlesq.com. Or Contact us online.

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.

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 rgs@sgdefenselaw.com. Or Contact us online.

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.

An arrest warrant is, in many cases, the formal start of a criminal case against an individual. It is a sworn written recitation of enough “facts” of the case that demonstrate to a judge that there is probable cause to believe that a crime(s) has been committed and the at the defendant committed the alleged crime(s).
In most cases, a police officer or federal agent presents the information in writing based upon his or her own investigation and information provided by other law enforcement officers with knowledge of the case. While the information may not be complete, and need not be at this stage, there must be sufficient information for the judge to find probable cause. Probable cause has been defined as information sufficient to warrant a prudent person’s belief that the person committed a crime.

If law enforcement has sufficient information that rises to the level of probable cause, the judge will issue (authorize) the arrest warrant. The warrant must state the person’s name, the offenses charged, command the person to be arrested and brought before a judge, and be signed by the judge. Once the police locate and arrest the person named on the arrest warrant, the person will be held until bail is set.

In the state system, the new bail procedures require that a person arrested on a warrant be held until he can be interviewed and a Public Safety Assessment can be completed (see our prior posting on New Jersey’s new bail system). In the federal system, the person must be brought before a magistrate-judge without unnecessary delay for a bail hearing. Prior to the bail hearing, Pretrial Services will interview the person and make a recommendation to the judge about the risk factors – risk of flight and danger to the community.

It is critical to have experienced criminal defense counsel involved as soon as possible to advocate both with the prosecutor and Pretrial Services on the client’s behalf to obtain the least restrictive bail as possible. A good, experienced criminal defense lawyer will have gathered the relevant information to present to Pretrial Services about the client’s work and family history, ties to the community, prior travel, location of passport and responsible parties who are willing to sign for the client’s release.

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.

In many types of criminal cases, the right expert can be invaluable. Whether it is a forensic accountant in a complex fraud or tax investigation; a medical or billing expert in a healthcare fraud investigation; a forensic psychiatrist for a sex abuse or child pornography case; a computer expert for a computer crimes matter; or a drug or gang expert in a serious drug case, the proper expert retained early in the investigation can assist the client’s criminal defense attorney in his or her efforts to prevent the charges from being filed, or to develop a solid defense to aid in plea negotiations or to prevail at trial.

In many types of investigations, the government employs or hires its own experts to analyze a wide variety of data, information or documents. These government “experts” may be recognized in their fields, or they may be analyzing and opining on evidence in fields in which they are not truly qualified. It is critical in such cases, that the defense attorney have at his disposal the best possible expert in the relevant field of inquiry to conduct their own review and analysis of the evidence and to potentially refute the conclusion of the government expert.

In recent years, there have been notable cases that have demonstrated that government experts have either overreached or provided false reports and testimony. For instance, state drug labs around the country have discovered state laboratory technicians that have failed to conduct drug tests on tens of thousands of drug seizures and simply falsified their reports. Other so-called experts have opined on subjects that do not meet generally accepted scientific standards, including hair and fiber analysis. Often, the testimony by these alleged experts have resulted in convictions based on false or unsound results.

In many other types of situations, the right expert can analyze the evidence and discover the weaknesses or fallacies in the government’s theory of the case. The ability to independently analyze varied and complex financial transactions, computer code, hundreds of emails and attachments, billing records or scientific results can mean the difference between a conviction or acquittal.

Aggressive, experienced defense attorneys use experts as early in the process as possible. The mechanics are fairly straightforward, but important to protect the client’s interests. The law firm retains the expert in an effort to preserve the attorney-client privilege. The client is responsible for the fees and expenses, but the expert communicates with the law firm rather than with the client directly. Since in most cases costs are an issue, the attorney must work within the client’s budget in both deciding which expert to retain and the scope of the work required. In many cases, the expert’s work will provide leverage in plea negotiations by highlighting the weaknesses in the government’s case or presenting alternate theories of the transactions or evidence. In other cases, it may be necessary for the expert to testify at trial. In either case, the expert’s training, experience and reputation all come into play.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals being investigated or charged with serious federal and state crimes. 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.

Police generally cannot enter a home without a search warrant. When certain circumstances are present, however, there are recognized exceptions to warrant requirement. One such exception is consent; a resident may invite the police into his or her home without requiring the police to obtain a warrant. Another exception is the “protective sweep”; the police may enter a home to conduct a quick search for potentially dangerous persons if they are already lawfully within a residence and they develop a reasonable suspicion that that there is an individual in the residence that poses a danger. If during a lawful protective sweep the police find in plain view something that is clearly contraband, such as illegal drugs, the police may lawfully seize the contraband and prosecute the possessor.

In Bryant, officers responded to a home from which a 911 call was placed by a woman who alleged that her boyfriend had struck her. While two officers spoke to a woman who was outside the home, crying inside a car in the driveway, two other officers knocked on the door to the house. When a man answered, the officers instructed him to take a seat on the couch inside. One of the officers questioned the man while the other conducted a protective sweep of the house. The officers did not get any information about the domestic violence incident from either the woman or the man prior to conducting the sweep. During the protective sweep, the officer found marijuana and a firearm.

The Supreme Court ruled that the marijuana and the firearm must be suppressed because the evidence was uncovered during an illegal warrantless search of the home. The protective sweep was improper because the police conducted it without developing any facts that would suggest there might be another person inside the house who possesses a danger. In essence, the Bryant decision stands for the proposition that a 911 call alleging domestic violence within a home, without more, does not give the police reasonable suspicion to conduct a protective sweep of the home where the incident took place.

In the other case, In re Forfeiture of Personal Weapons and Firearms Identification Card Belonging to F.M., decided on June 30, 2016, the Supreme Court ordered the permanent confiscation of a police officer’s firearms and firearms purchaser identification card, even after the underlying criminal and civil domestic violence complaints against the police officer had been dismissed.

Under New Jersey law, police responding to a domestic violence incident are entitled to seize any weapon on the premises that would expose the victim to a risk of serious bodily injury. If the defendant is charged with a crime of domestic violence or becomes subject to a domestic violence restraining order, the police must seize any weapons registered to or owned by the defendant. The State may then seek forfeiture of the weapons and the defendant’s firearms purchaser identification card in the family court. The forfeiture may be predicated upon any one of several reasons, including the defendant’s mental unfitness to possess weapons, or that the defendant became legally unable to possess certain weapons due to the issuance of a final restraining order or conviction of a crime. The State may also seek permanent confiscation of weapons and firearms purchaser identification cards if it can demonstrate to the family court that the defendant’s possession of weapons poses a continued threat to the victim. This is true even where the criminal charges and restraining order are ultimately dismissed or dropped by the victim.

In In re Weapons of F.M., a police officer responding to a domestic violence call observed F.M., who was himself a police officer, throw his estranged wife into a stone retaining wall. F.M. was charged with simple assault and the wife sought a restraining order. F.M. claimed that he was merely attempting to remove his wife from holding onto his car to prevent his court-ordered visitation with his children. Ultimately, the restraining order was dismissed by the family court judge, and the municipal court dismissed F.M.’s assault charge after the defendant agreed to attend court-ordered counseling.

The State nevertheless proceeded with a motion to forfeit F.M.’s weapons and firearms purchaser identification card based upon his history of domestic violence, arguing that the return of his weapons would not be in the interest of public safety. A great deal of evidence was presented to the family court, including contradictory testimony from F.M. and his wife, as well as the testimony of mental health experts, presented by the State, who concluded that F.M. suffered from narcissistic and anti-social tendencies. The family court rejected the State’s arguments and returned F.M.’s weapons and firearms purchaser identification card.

The Supreme Court reversed the family court’s decision, as well as an Appellate Division decision upholding the family court. The significance of In re Weapons of F.M. is that the Supreme Court, which is ordinarily expected to defer to the factual and credibility determinations of the family court in gun forfeiture cases, took the extraordinary step of concluding that the family court’s decision to rearm the defendant was “manifestly unsupported” by competent evidence.

The Supreme Court’s decision, in essence, was that the family court dismissed the State’s claim without addressing certain critical evidence that should have been addressed on the record, and for improperly discounting the unrefuted expert testimony. The Supreme Court’s decision is long, complex, and very fact-dependent, but the decision signals the Court’s insistence that rearming decisions be made with care, even if the underlying criminal charges and/or restraining orders are dismissed by other courts. It also suggests that if the State relies on expert testimony in support of its motion to forfeit a defendant’s weapon, a defendant would be well-served to obtain his or her own expert to refute the State’s evidence, because the Court found it significant that the State’s expert evidence was never refuted by the defendant.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with domestic violence and criminal charges. Andrew Olesnycky, Esq.has served as the head of the Union County Prosecutor’s Office’s Domestic Violence Unit, and the domestic violence supervisor. He represents those accused of domestic violence in criminal, civil, and administrative proceedings, as well as victims of domestic violence seeking restraining orders in family court. 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 aolesnycky@stahlesq.com.

In the past few years, the explosion in the popularity of smart phones, text messaging, and use of social media has dramatically altered the fabric of our lives in ways that we are only beginning to understand. It has also changed the way that sophisticated attorneys investigate and litigate criminal cases. We all now carry with us detailed records of our conversations, photographs, and even our whereabouts in our mobile phones. For those unlucky enough to become ensnared in a criminal case, those records can become evidence of incalculable value. This is especially so for cases of domestic violence, where the parties almost always have created a voluminous record of communications in the form of text messages and online chats by the time a contested matter goes to trial.

Unfortunately, the legal system is notoriously slow to adopt clear rules governing new technologies, and the admission of electronic communication has been no exception. In State v. Hannah, however, decided on December 20, 2016, the New Jersey Appellate Division published an important opinion that clarified the requirements for the admissibility of social media posts, including statements made on social media platforms such as Twitter and Facebook. Hannah provides clear authority establishing that social media posts are to be treated like any other writing for authentication purposes, and that it is not necessary to produce a representative from a social media company as a witness to use a social media post as evidence.

The court’s opinion in Hannah concerned the evidentiary rule known as “authentication.” The rule of authentication is, essentially, a screening process by which a judge makes a preliminary determination whether a document or writing is, in fact, what its proponent claims it to be. If the party seeking to admit the evidence can demonstrate to the judge that the evidence is what it is claimed to be, that evidence can then be presented to the jury, which then weighs the value of that evidence. In weighing the evidence, the jury is free to consider whether there is sufficient proof that the evidence is genuine. The Hannah court ruled that a victim’s testimony alone can be sufficient to establish the authenticity of posts that are ostensibly written by the defendant.

In Hannah, the defendant was accused of attacking a victim with a high-heeled shoe at a party, and was ultimately found guilty of assault. One of the pieces of evidence admitted during her trial was a “tweet” – i.e. a message posted on the social media platform Twitter – that taunted the victim with the words “shoe to ya face, bitch.” The tweet was published under a Twitter handle regularly used by the defendant and which bore the defendant’s profile photograph, but the defendant denied that she was the person who wrote that particular message. To establish that the defendant wrote the tweet, the prosecution elicited testimony from the victim that she was familiar with the defendant’s Twitter handle from prior online communications, she recognized the defendant’s profile picture on the Twitter handle as being the defendant’s, and that the “shoe to ya face” comment was delivered during a “back and forth” conversation about the incident. The victim took a screenshot of the offending tweet and presented it at trial along with her testimony regarding the circumstances in which she viewed it. The defendant’s attorney argued that the State failed to authenticate the electronic evidence, that a greater level of scrutiny should be required for social media posts sought to be admitted as evidence, and that a representative from Twitter would have to be present in court to authenticate the tweet.

The Hannah court refused to apply an extra level of scrutiny to electronic communications and social media postings, as is required in some other States. “We need not create a new test for social media postings,” the court said. “Defendant argues a tweet can be easily forged, but so can a letter or any other kind of writing. The simple fact that a tweet is created on the Internet does not set it apart from other writings. Accordingly, we apply our traditional rules of authentication . . . .”

If you are involved as a defendant or victim in a criminal or civil domestic violence case where electronic evidence is involved, it is best to speak to an experienced attorney about the preservation and use of that evidence.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with domestic violence and criminal charges. Andrew Olesnycky, Esq.has served as the head of the Union County Prosecutor’s Office’s Domestic Violence Unit, and the domestic violence supervisor. He represents those accused of domestic violence in criminal, civil, and administrative proceedings, as well as victims of domestic violence seeking restraining orders in family court. 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.

A felony conviction has a serious impact on a defendant’s life, even beyond the obvious immediate consequences of sentencing. A person who has a felony conviction on their record forfeits certain rights that other members of the community enjoy. In some jurisdictions there exists a process by which an individual can seek to have a felony conviction expunged from their record, but even this process may not fully restore every right and privilege that the person held prior to their conviction.

Civic Participation

The right to participate in the civic process is one of the most fundamental rights of citizenship, but that right may be temporarily or permanently lost as the result of a felony conviction. Persons with such a conviction on their record may not vote, sit on a jury, or serve as a notary public. The terms of this disenfranchisement vary by state; some states permanently revoke these civil rights, and a person seeking to regain them must submit a petition for pardon or clemency. In other states, felons retain their right to vote even while serving their prison sentence (albeit by absentee ballot). Most states fall somewhere in between. New York and New Jersey restore an ex-offender’s voting rights after their sentence has been completely served, including incarceration and parole. In New Jersey, any probation must also be completed before civil rights are restored.

Firearms

Another significant restriction on the rights of former felony offenders involves possession of firearms. Any person convicted of a felony offense may not legally possess a firearm – even a hunting rifle – unless they have had their rights restored by the appropriate government agency. This is a much more significant hurdle than getting one’s voting rights restored, and the process involved depends on whether the person was convicted under state or federal law. The nature of the felony is irrelevant; even non-violent offenses result in the forfeiture of the offender’s gun rights.

Public Assistance

There are many forms of government aid directed toward people experiencing financial need that become unavailable to an individual if they are convicted of a felony. This includes student loans, housing aid, and several other financial assistance programs. This can be a problem for many former offenders, who may find their opportunities for legitimate employment limited as a result of their criminal record.

Deportation

A felony conviction can have even more serious consequences for individuals who are not United States citizens. There are large categories of felony crimes for which conviction may result in a non-citizen resident of the US being deported to their country of origin – even if they are residing in the country legally and with all proper documentation. The kinds of crime that may trigger deportation proceedings include aggravated felonies and “crimes of moral turpitude.” The latter category is poorly defined, but generally includes crimes involving fraud or deception, theft, or the intent to cause harm to others. Crimes of moral turpitude can result in deportation if the crime is committed within five years of the offender’s legal entry into the United States, or if the offender commits two or more such crimes (on separate occasions) regardless of the length of time since entering the country.

An aggravated felony includes any of a wide variety of serious offenses, including murder, sexual assault or abuse, treason or espionage, drug or weapons trafficking, and financial crimes such as fraud, money laundering, and tax evasion. Conviction of any of these crimes is almost certain to result in deportation unless the offender can prove that they are likely to be tortured upon return to their country of origin.

Employment Ramifications

A felony conviction is likely to make an individual’s professional future more challenging, not because of any direct government action, but because employers may hesitate to hire applicants who have committed felony offenses. The outlook for ex-offenders does improve with time, however, assuming they avoid any additional charges going forward. It’s critical to remember that while an applicant may have a harder time finding an employer willing to hire them with a felony on their record, lying to an employer about a criminal past is almost certain to result in firing when the employer finds out.

A felony conviction for licensed professionals in the fields of medicine, accounting, law, real estate and the like face an additional burden of losing their licenses to practice in their chosen fields. These individuals will have an especially hard time returning to work after a felony conviction.

A felony conviction is likely to change an individual’s life in many ways, some of which they may not initially expect, which makes the help of experienced legal representation critical for anyone facing felony charges.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. 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.

Thanks to television and movies, most people are aware that prosecutors often make deals or agreements with individuals under investigation, wherein the person being investigated is granted immunity from prosecution or a reduction of charges in exchange for providing information to the government. Of course, the details of these negotiations are dramatized for the sake of the narrative; the reality of the situation is far more complex, particularly in white-collar criminal investigations. Almost any immunity or plea arrangement begins with a proffer agreement.

Proffer agreements, alternately termed debriefings or “queen for a day” agreements, have traditionally been used in three scenarios:

• One, to protect a client in an interview where the client is likely a witness, but may have some exposure if later developed facts come to play.
• Second, to debrief a client pursuant to, or in contemplation of, an immunity agreement.
• Third, to debrief a client who wants to work out a cooperating plea agreement and can provide law enforcement with valuable information about criminal activities, without the client’s words being used directly against her.

However, great care must be used in deciding to proffer a client as the protections are quite limited.

In recent years, proffer agreements have removed many of the protections once afforded. Most proffer agreements are generally only beneficial to someone who has some degree of criminal exposure; in other words, someone potentially at risk of being charged with a crime. With some types of crimes, the line between “potential defendant” and “witness” is fairly clear, but in many cases with white-collar crimes, it’s difficult to have a complete picture early in a case. Many valuable witnesses in white-collar crime investigations could have been charged with conspiracy or “aiding and abetting” or worse, if they had not obtained proffer agreements and subsequent immunity or other deals.

The terms of a proffer agreement will be outlined in a proffer letter. You and your attorney should go over this letter carefully to ensure that you understand exactly what it does and does not promise, and what it allows the government to do with the information your provide. Proffer agreements generally offer only one protection – they prevent your statements at the debriefing from being used directly as evidence against you at any subsequent trial. However, if you testify in court in a way that contradicts your proffer testimony, the prosecution can (and most likely will) use your proffered statements to challenge your testimony, and you may later be charged with perjury or obstruction of justice. Most alarmingly, if you ever decided to go to trial, your lawyer could not put on witnesses, evidence or make arguments that contradict what you said in the proffer without opening the door to your statements during the proffer coming in to impeach and discredit that evidence. Also, the information you provide as part of a proffer agreement can be used to generate leads for further investigation, which may turn up new evidence against you in the current or a subsequent criminal proceeding.

Unlike depositions and court testimony, there is no stenographer present to record statements given under a proffer agreement. The only written account of your “statement” is the report generated by the agent taking notes during the proffer. Thus, it is critical for your lawyer to take his own detailed notes of what you said as there may be disputes in the future as to what was actually said during the proffer.

If the proffer is being used to negotiate an immunity agreement, your lawyer may be able to do an “attorney proffer” where he relates the information to the prosecutor first to make sure your testimony will be of use and be immunized. This gives the prosecution an opportunity to evaluate the information you provide in terms of usefulness and trustworthiness before agreeing to a deal, and provides you with the opportunity to explain your role in events with some limited assurance that your words won’t be used against you.

Is a proffer agreement worth the risk? As with so many things in life, the answer is “maybe.” You should discuss the matter with your attorney, considering factors like the terms of the agreement (and whether they are negotiable), the strength of any potential case against you and/or your defense against the potential charges, whether you are willing to be completely candid and truthful, and the potential consequences of conviction vs. accepting the offer. Remember that government agencies can share information, so there could be collateral consequences (such as loss of professional license) to proffering.

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.

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 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. 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.” They say that you should get an attorney, or if you can’t afford one, the court will arrange for an attorney for you.

After they leave, you start to panic. What did I say? How much did I tell them? 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 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 lawyer you realize that what you thought was an innocuous 15 minute chat with the FBI was actually an hour and a half where you told them some things, but not others. You learn 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. It starts to dawn on you that it was a mistake to say anything to the agents.

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 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.