It may come as a surprise to most, including many criminal defense attorneys, that the federal system detains a greater percentage of people arrested than state systems. Since the Bail Reform Act (BRA), enacted in 1984, pretrial detention has significantly increased from 19% in 1985 to 75% in 2019, which is particularly astounding, considering violent crime accounts for only 2% of federal arrests.

The BRA provides that a court release a defendant on the “least restrictive” conditions to “reasonably assure” the appearance of the defendant and the safety of the community. Detention hearings shall only be held in cases which involve very specific factors that authorize pretrial detention. Such factors include drug offenses, certain gun and recidivist offenses, crimes of violence or terrorism, as well as offenses involving a maximum term of life in prison or death.

In 1987, when the constitutionality of the BRA was challenged, the United States Supreme Court stressed that “[i]n our society liberty is the norm, and detention prior to trial . . . is the carefully limited exception.” However, statistics demonstrate that federal prosecutors around the country routinely and impermissibly seek pretrial detention at a far greater rate than allowed by the BRA. In spite of the fact that in 2019, 99% of federally-charged defendants appeared in court as required, and 98% of defendants did not commit new crimes while on pretrial release.

In an effort to counter a government’s claim of serious risk of flight, defense counsel may overcome the argument by demonstrating that the client has lived in the community for a long time, is married with children, is steadily employed, has no record of failing to appear, and/or no prior record. In cases involving serious risk of danger to the community, defense counsel may overcome the argument through similar factors, as well as additional conditions of release such as home confinement with electronic monitoring or third-party custodians.

Recently, the Judicial Conference of the Unites States asked Congress to narrow the presumption of detention in drug cases to only people with very serious criminal records. This is important given the push from the Department of Justice to federally charge a greater number of people arrested for state drug and gun offenses. Many lower-level drug offenders are scooped up under the guise that they are associated with organized drug distributors or gangs. Since federal cases routinely take far longer to resolve by plea or trial, individuals in federal pretrial detention face limited family contact and ready access to counsel, as well as loss of employment and ultimately harsher sentences.

It is critical to hire experienced federal criminal defense counsel when charged with a federal crime. Our attorneys are highly experienced in representing individuals charged with federal crimes where the government seeks pretrial detention. Mindful of the importance of self-distancing, we at times work remotely but are available to meet new clients either in person, through video conferencing, or by phone. Challenging times demand innovation and accommodation to our client’s needs. Stahl Gasiorowski Criminal Defense is here for all of your criminal legal needs during this time. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at rgs@sgdefenselaw.com

In the federal system, most people charged with non-violent offenses are released on conditions after their first appearance before a magistrate judge. Conditions of release are meant to reasonably assure the appearance of the defendant in court as required, as well as the safety of any other person or the community pursuant to 18 U.S.C. §3142(c). Conditions may be as simple as release on an unsecured appearance bond (meaning no property or money is posted); travel restricted to the continental United States; surrender of one’s passport; surrender of any firearms; and telephonic or in-person reporting to Pretrial Services. In certain serious cases, conditions of release could be very stringent, requiring home detention with electronic monitoring where the person is only allowed out of the home for pre-approved visits with their attorney or medical appointments; surrender of family members’ passports; the posting of real properties with substantial equity; and release of the defendant to third party custodians who are required to report any violations of the release conditions to the court.

What conditions, if any, the court mandates depends in part upon the recommendations of Pretrial Services (PTS). PTS is an arm of the court, and interviews the charged individual about their background; prior addresses; prior criminal record; assets and liabilities; frequency of travel outside the United States; and the existence of any physical or mental health issues. After reviewing the charges and the person’s history, PTS gives the court its position, relaying whether it believes release on conditions is possible and what conditions, if any, the court should order.

The magistrate judge presiding over the detention hearing has the final say on a defendant’s release, and can choose to adopt Pretrial Services’ recommendations in whole or in part, or reject them entirely. In determining whether there are conditions of release that will reasonably assure the appearance of a person and the safety of any other person or the community, the court will consider the factors set forth in § 3142(g), not one of which is dispositive and all of which must be weighed with the underlying principle that only “a limited group of offenders” should be denied bail pending trial.

Those factors include:

1. The nature and circumstances of the offense charged, including whether it is a crime of violence;
2. The weight of the evidence against the person;
3. The history and characteristics of the person, including the person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, drug or alcohol problems, criminal history and any past record of missing court appearances; and
4. The nature and seriousness of the danger posed to any person or the community if the person was released, including intimidation of prospective witnesses or jurors

If the government moves for pretrial detention, risk of flight must be demonstrated by a preponderance of the evidence; it must prove that no conditions of release can reasonably assure the presence of the defendant at trial. Dangerousness requires proof by clear and convincing evidence that no conditions of release can reasonably assure the safety of others or the community. Certain violent crimes and drug offenses carry a presumption of detention that must be overcome by the defense to secure the person’s release pending trial. The rules of evidence and admissibility do not apply to these hearings, and the government may proceed by way of proffer of evidence or witnesses. The defense has the opportunity to present their own witnesses, as well as cross-examine any government witnesses, and the defendant has the right to testify.

Stahl Gasiorowski Criminal Defense has successfully argued numerous bail and detention hearings, as well as successfully appealed detention orders. 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 rstahl@stahlesq.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.

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.

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.

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

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

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

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

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

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

I’ve posted before about the line of case following United States v. Trujllo-Alvarez, 900 F. Supp. 2d 1167 (D.Or. 2012), which held that ICE could not detain and attempt to remove a non-citizen defendant charged with the federal crime of illegal re-entry, once the defendant has been released under the Bail Reform Act. Trujillo and its progeny affirm that when the Executive Branch decides that it will defer removal and deportation in favor of first proceeding with a federal criminal prosecution, it is obligated to follow all applicable laws governing such prosecution, including, of course, the Bail Reform Act. Once the Secretary of Homeland Security opts for prosecution over deportation, and invokes the jurisdiction of the district court, that court has priority, and administrative deportation proceedings stall until and unless the criminal prosecution concludes or is dismissed. United States v. Blas, Crim. Action No. 13-378, 2013 WL 5317228, at *3 (S.D. Ala. Sept. 20, 2013). In United States v. Galitsa, 17 Cr. 324 (VEC), Judge Caproni followed the Trujillo-Alvarez reasoning, as did Judge Irizzary in United States v. Rosario Ventura, 17-cr-418, in the Eastern District of New York, holding that the Government must either release the defendant under the bond conditions set in the matter and proceed with prosecution, or dismiss the indictment and proceed with removal.

Now in another opinion out of the Eastern District of New York, United States v. Benzadon Boutin, No. 17-cr-590 (DLI), Judge Irizzary has reiterated that Trujillo and the line of cases issuing from this decision stand for more than just the narrow proposition that ICE custody cannot be used to end run around a district court’s order of release under the Bail Reform Act. In that case, the Government invoked the jurisdiction of the Court, charging defendant with non-immigration related federal crimes, including money laundering, and consented to his release on bail bond. Simultaneously, DEA agents were seeking an ICE detainer which they then lodged, so that once the defendant met his bail conditions, he was taken into ICE custody. The original date for the removal proceeding was advanced, with no explanation; as a result, the defendant was unable to retain counsel and was ordered removed in absentia, making ICE detention mandatory despite the fact that ICE’s own regulations provide that removal of an alien during the pendency of a criminal prosecution is prejudicial to the interests of the United States. 8 C.F.R. Section 215.3(g).

As one may imagine, the Court criticized the lack of coordination between the Department of Homeland Security and the DOJ, and marveled that DHS, under the auspices of ICE, would deport an alien regardless of the prejudice to criminal prosecution and in flagrant violation of the Bail Reform Act, especially in light of case law, statutes and DHS’s own regulations which would seemingly permit guide the resolution of how to proceed when there are pending immigration and criminal proceedings. Rejecting all of the Government’s rather weak attempts to distinguish the case from Trujillo and Ventura, the Court cited its grave concerns over the apparent denial of defendant’s due process rights by the machinations of DHS and ICE.

The Court did more than chastise the government for attempting to simultaneously pursue civil and criminal remedies despite the constraints of law and immigration regulations, however. In anticipation of an order of dismissal of the criminal indictment, the government requested a dismissal without prejudice, and a stay in order to seek an appeal.The Court was having none of this, observing quite correctly that dismissal without prejudice would frustrate the very purpose of dismissal, which was to force the government to make a choice: prosecution or removal.The Court also rejected the request for a stay, and ordered the government to make a decision either to release the defendant from ICE custody and proceed with the criminal case, or to retain the defendant in ICE custody and proceed with 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 rgs@sgdefenselaw.com.

Press reports of late have revealed that former Army Lieutenant-General and National Security Advisor Michael Flynn and former Trump Foreign Policy Advisor George Papadopoulos pled guilty to making false statements to government agents. Federal statute, 18 U.S.C. § 1001, prohibits a person “in any matter within the jurisdiction of the executive, legislative, or judicial branch” of the federal government from “knowingly and willfully” (1) falsifying, concealing or covering up “by any trick, scheme, or device a material fact;” (2) making any materially “false, fictitious, or fraudulent statement or representation;” or (3) making or using “any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry …”.

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

Remember Martha Stewart? While investigating a potential insider trading scheme involving Stewart and her financial advisor, Stewart spoke with federal agents and it was later determined that she lied. While she escaped the stock fraud charges, she went to prison for making false statements during the investigation. More recently, Flynn, Papadopoulos and many others have not been charged with the crime for which they were being investigated, but have faced federal prison for lying to investigators.

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.

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.

A plea agreement is the negotiated resolution of a criminal case between the government and the defense when the client decides to plead guilty rather than fighting the charges at trial. The benefit of a plea agreement is that the plea is usually to a lower offense or a limited number of charges rather than to the most severe charge(s). In most instances, a defendant is rewarded in some fashion for pleading guilty rather than going to trial. In the State of New Jersey, the defendant’s attorney can negotiate a plea to the specific charges and the length of the sentence. This is commonly referred to as sentence bargaining. The plea form will be in writing with all of the terms that have been agreed to between the defense attorney and the Assistant Prosecutor. The form – New Jersey Judiciary Plea Form – lists the charges the person is pleading to along with the statutory maximum period of incarceration, fines and penalties. The form also lists the specific sentence the prosecutor has agreed to recommend, along with any other agreements between the parties.

In almost every case, the sentencing judge abides by the terms negotiated between the defense and the prosecutor. If the judge does not agree at sentencing to the negotiated terms, the defendant has the right to either withdraw his plea and go to trial, or accept the sentence the judge imposes. If the defendant decides to withdraw his plea, nothing the defendant said under oath at the time of the plea can be used at trial against the defendant.

In the federal system, a plea agreement is much different and offers fewer protections and less certainty of sentence to the defendant. The standard plea agreement in the District of New Jersey provides for the charge(s) that the defendant will plead to, the time period covered by the agreement and any stipulations between the parties. Typically, the parties’ stipulations will cover the base level offense under the U.S. Sentencing Guidelines and any additional enhancements/points for amount of loss, role in the offense and other offense offense-specific categories.

The benefit to the defendant is that he or she pleads to a limited number of offenses, often negotiating a lower loss amount or drug quantity, and has limited other possible enhancements through the stipulations (agreement) between the parties. In addition, the defendant receives points off the total offense level for acceptance of responsibility (pleading guilty rather than going to trial). A federal plea agreement most often limits the person’s exposure and reduces the possible sentence under the circumstances.

Unlike the state system, however, the federal court is not bound by the stipulations between the parties and the defendant is not allowed to withdraw his plea if the court sentences a defendant to a longer period of incarceration than agreed to in the plea agreement. Here in the District of New Jersey, there is an added stipulation that the defendant waives his right to appeal the sentence if the court sentences the person at or below the stipulated guideline range. Should the court sentence above the agreed upon range, then the right to appeal is preserved.

It is vital that a person charged in the federal system be represented by an experienced federal criminal defense attorney. Plea bargaining in the federal system is quite different from that in the state, and offers far greater uncertainties in the ultimate sentence. While in the state system the sentence is agreed to by the parties, in the federal system the defense must draft and submit a detailed, compelling sentencing submission to the court in order for the client to receive the best possible sentence.

Contact NJ & NY Criminal Defense Attorneys

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

There is an alarming trend towards aggressive investigations by state and federal authorities on physicians. Whether it is by the state medical boards, DEA or federal or state prosecutors, doctors’ practices are subjected to heightened scrutiny. While this may be traced to the war on drugs, recent deaths related to the abuse of prescription opioids, and the criticism the DEA has faced for its failure to develop measureable results in its enforcement efforts; the genesis is less important than the trend itself for those subjected to the harsh spotlight of scrutiny.

Under the standard that a physician is guilty of criminal conduct if he or she prescribes without “a legitimate medical purpose” and “outside the usual course of his or her professional practice,” many good, decent, over-worked physicians find themselves fighting to keep their licenses, DEA registrations and freedom. This is particularly true for those brave souls who continue to help patients with chronic, non-cancer pain.

The law enforcement climate surrounding prescribing opioids has resulted in many good physicians abandoning that aspect of their practice and patients. This has had the effect of reducing the number of physicians willing to treat those in chronic pain, while increasing the scrutiny on those who continue to do so. Those physicians now have become a limited pool of targets for law enforcement and regulatory agencies.

Most alarming is the increasing number of criminal investigations using undercover agents pretending to be patients with chronic pain. These covert operations may be run independently, or in conjunction with the medical board and DEA administrative authorities. These investigations may be initiated by a complaint from a pharmacy about the number of prescriptions by a particular doctor, a complaint by a patient or the patient’s insurer, a check with the Prescription Monitoring Program revealing a larger number of opioid prescriptions, or a motor vehicle stop of patients that are interviewed about their medications. With little more than a suspicion that the physician may be over-prescribing, a full-fledged undercover operation could be launched.

Should the undercover operation reveal certain conduct or actions that appear inconsistent with law enforcement’s view of normal medical practice, the physician and her office may be subjected to a search warrant, seizure of medical records and computers, administrative or grand jury subpoenas for medical records and testimony, and the entire staff may be interviewed and treated like co-conspirators. The devastating effects of such actions can result in severe economic and reputational losses to the medical practice.

The dangers faced by the physician require immediate retention of experienced, skilled defense counsel to represent and protect their interests. The dilemma faced by the physician may come down to fighting to keep her DEA registration and ability to prescribe Schedule II-V drugs, protecting her medical license or potentially waiving her Fifth Amendment right to remain silent in a criminal investigation. These “parallel investigations” – criminal and administrative at the same time – often present a Hobson’s choice of actively defending one’s medical license by producing documents and testimony, or protecting one’s freedom and not testifying until the full scope and breathe of the criminal investigation is known. Only experienced criminal defense counsel can competently analyze the situation and offer advice about how to proceed. Every licensed professional must worry about their ability to continue in their chosen field, however, the first and foremost concern must be for one’s liberty. Although the instinct is understandable, rushing to defend the administrative action, while a parallel criminal investigation is on-going, may lead to disastrous results.

The dichotomy is straightforward. Physicians are trained to listen to their patients, rely in great part on their self-reporting of their conditions and pain, and to establish a relationship of trust. Law enforcement and regulatory bodies turn that relationship on its head and undermine what is a “legitimate medical purpose.” They hold physicians to a heightened standard of verification and a view that pain patients lie and deceive to obtain the medications for their own addictions or for diversion. Given this dichotomy, is it any wonder that physicians face increasing peril in their practices?

The attorneys at Stahl Gasiorowski Criminal Defense have decades of experience representing physicians, dentists and other medical professionals in federal and state criminal and administrative investigations. If retained early in the investigation, our goal is to prevent criminal charges from being pursued or filed, and to protect the license and registration of the healthcare professional.

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.

The root of due process lies in the 5th Amendment to the U.S. Constitution, which states that no one shall be deprived of life, liberty or property without due process of law. In addition to the Constitution itself, both federal and state rules of criminal procedure also help to ensure that the due process rights of the accused are respected from the time of arrest through pretrial and trial proceedings and during sentencing if the trial results in a conviction.

The right to due process is so significant that it is referred to twice in the Constitution; in addition to the 5th Amendment, it also appears in the 14th Amendment, which effectively superimposes elements of the Bill of Rights onto state legal systems such as that of New Jersey. Procedural due process concerns itself with ensuring that the legal system observes constitutional rights included in the 4th, 5th, 6th and 8th Amendments.

Not every matter that finds its way before a court will invoke due process concerns. For due process to be an issue, there must by some action by the government. This includes meeting the requirements for the issuance of a search or arrest warrant, and whether probable cause exists to detain a person before trial.

What are some procedural due process rights in criminal cases?

Due process in criminal law is largely established in the Bill of Rights to the U.S. Constitution. These include but are not limited to protections against unreasonable search and seizure, the rights of a defendant after arrest (which also contains the specific “due process” language), the right to a public and speedy trial and to have the assistance of legal counsel, and limitations on excessive bail requirements or cruel and unusual punishment.

In later posts we will examine specific due process elements, most notably the relevant amendments to the U.S. Constitution that form the core of procedural due process, in more detail.

• The right to a speedy and public trial. In undemocratic legal systems courts are often used as a tool of political oppression. Holding a person in custody indefinitely “pending trial” is one way that the government can effectively imprison a person without ever having a trial. The Sixth Amendment ensures that in New Jersey and elsewhere in the United States these forms of judicial abuse are proscribed.

• The right to a trial by an impartial jury. Criminal trials must be decided by a jury, and not by a judge alone. This is a safeguard against Star Chamber-style proceedings, in which judges appointed by and acting on behalf of the government can deny the right of the accused to an adequate defense.
• The right to be informed of the nature and cause of the accusation. The Sixth Amendment requires the government to let you know what it is accusing you of, so that you and your defense counsel can prepare a defense accordingly.
• The right to confront witnesses against you. Another way for the government to abuse the system of justice is to use “secret” witnesses or hearsay testimony. The Sixth Amendment preserves your right to know who the government’s witnesses are, and to challenge them directly. Note, though, that in some limited circumstances, such as child victims of sexual abuse, the right to face-to-face confrontation of prosecution witnesses may be curtailed.
• The right to present witnesses in defense. The ability to conduct an effective defense depends on right of the defendant to call upon witnesses. The Sixth Amendment safeguards this right, and even provides the compulsory ability to make such witnesses available if need be.
• The right to defense counsel. The right to an attorney before trial is protected by the Fifth Amendment. The Sixth Amendment extends your right to an attorney into the conduct of the criminal trial.

In summation, the Sixth Amendment gives criminal defense attorneys a set of tools to ensure that your rights are preserved not only when you are arrested but also when you are being held in custody pending trial and during trial.

Although it is only a single paragraph long, this amendment includes a considerable array of protections for criminal defendants in New Jersey, which are outlined below.

Grand jury indictment requirement: The main role of the grand jury is to determine if probable cause exists to bring an indictment against a person. A grand jury is largely an investigative body, and is not the same thing as a criminal trial jury, the responsibility of which is to decide questions of evidentiary fact during the prosecution of a case.

Double jeopardy safeguards: The Fifth Amendment requires that the prosecution take its best shot one time only. If it fails to secure a conviction, it cannot retry the defendant for substantially the same offense.

Not having to testify against yourself: The Fifth Amendment prohibits prosecutors from calling a criminal defendant to the stand to testify, thereby converting the defendant into a witness against himself. The “right to remain silent” that police officers must inform a criminal suspect of at the time he is taken into custody is a reminder of this important Fifth Amendment protection, as are the other “Miranda rights” including the right to consult with an attorney before and during questioning and to have an attorney appointed to him by a court if he cannot afford to hire one, as well as the warning that any statement he makes can and will be used against him at trial.

Note that if the defendant testifies on his own behalf, the Fifth Amendment does not preclude the prosecution from cross-examining him. Also, if the government grants immunity from prosecution in a criminal case, then it can compel a person to testify as a witness even if the testimony would otherwise be self-incriminatory.

The right to due process: A criminal proceeding must be overseen by an impartial judge, and allow the defendant the opportunity to fully present his defense during all phases of his involvement with the criminal justice system – from initial custodial questioning all the way through post-trial appeals.

The Eighth Amendment is one of the shortest in the Constitution, comprising a single sentence, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

This elegance of simplicity in its language, however, can be misleading. The amendment in fact contributes to procedural due process protections in multiple ways.

Excessive bail: The question of whether an amount set as bail for someone accused of a crime is excessive has two facets: preventive detention situations, and whether a bail amount is more than is necessary to protect the government’s interest in a given case.

Preventive detention refers to matters in which bail is denied to someone because of the fear that if released on bail that person would represent a danger to the community. This is generally not subject to challenge under the Eighth Amendment, although the accused has the right to an adversary hearing before the court before bail can be denied. Otherwise, what makes bail “excessive” is when the amount is set so high that it becomes more than what is reasonably necessary to ensure that the accused will stand trial.

Excessive fines: This part of the amendment mostly applies to criminal sanctions, although it may be applicable to civil forfeiture cases. Excessive fines have not yet been the subject of any significant court case.

Cruel and unusual punishments: A punishment is excessive if it makes no measurable contribution to acceptable goals of a punishment (that is, the punishment simply a needless imposition of pain and suffering) or is grossly out of proportion to the severity of the crime. This part of the amendment has been considered mainly in the context of death penalty cases. Although the U.S. Supreme Court has held that the death penalty itself is not cruel and unusual, it has curbed some laws that apply it based on factors such as whether the law did not provide enough discretion to the jury it the application of a death sentence.

The Sex Offender Registration and Notification Act is a national sex offender registry that was enacted into law to bring uniformity to federal and state laws designed to keep track of convicted sex offenders. The law applies to the 50 states and the District of Columbia as well as to U.S. territories and Indian tribes that are recognized by the federal government.

Failure to register or update information as a sex offender in each jurisdiction where a person lives, works or attends school is a federal crime if the individual travels to another state or to another country. The penalties for a conviction of this federal crime could include a prison sentence of up to 10 years and substantial fines. If prosecutors can also prove that the individual was guilty of committing violent federal charges, the prison sentence can increase to 30 years.

The goal of SORNA is to provide the public and state and federal officials with accurate and up-to-date information about sex offenders registered under local sex offender registration statutes. To this end, the national sex offender registry allows individuals to access the registries in all jurisdictions to which SORNA applies through a single website.

Because of the severe long-term consequences of a conviction of federal charges SORNA, a person under investigation for violating its provisions should seek the advice of an attorney skilled and knowledgeable in the area of federal criminal defense. Although this post provides information about this area of the law, it is only an overview of the subject matter. It is neither offered, nor is it intended to be relied upon, as legal advice.

Consider an example of a bank robbery in which three people are involved: one to serve as lookout, another to drive the getaway car, and the third to gather the money. During the commission of the robbery, one of them fires a weapon and injures another person before all three are apprehended.

In this situation, federal prosecutors will be involved, because bank robbery is a federal crime. The prosecution will need to convince a jury, beyond a reasonable doubt, that the following existed:

1. An agreement between two or more persons;
2. To commit an unlawful act; and
3. An overt act taken by at least one of them in furtherance of that agreement.

Some of the unique characteristics of conspiracy law include the following:

• Any statement by one of the conspirators may be used as evidence against all of them.
• All of the conspirators are considered to be equally guilty of any foreseeable crime that any one of them may be convicted of.
• Conspiracy is considered to be an ongoing crime for statute of limitations purposes. That is, the applicable statute of limitations begins with the commission of the last overt act in its furtherance.

In our bank robbery example, if one of the three individuals made an incriminating statement, that statement could be used in court against all three, and if the person who was injured during the commission of the robbery dies then all three participants will be charged with homicide even though two of them never fired a shot.

Conspiracy charges, federal or at the New Jersey state level, can be complex to defend against as well as to prosecute. This post only provides an introductory examination of the topic. Anyone wanting to know more about this topic, or who may be facing conspiracy charges, should consult with a law firm experienced in criminal defense cases.

The actual procedures for pre-trial negotiation are laid out in federal sentencing guidelines. These guidelines break plea negotiations down into multiple sub-categories, the three most common being charge bargaining, sentencing recommendations and specific agreed sentences.

Charge bargaining often involves negotiations for someone accused of multiple crimes to agree to plead guilty to one charge in exchange for dismissal of the other charges. Although it is seemingly simple in theory, charge bargaining can actually be a complex matter because it is subject to additional considerations know as “relevant conduct” and “multi-count grouping,” both of which can affect the outcome of the negotiations. If the charge bargain does not work out successfully, the defendant has the option of withdrawing the guilty plea to the negotiated charge.

Sentencing recommendations involve the prosecution’s agreement in exchange for a guilty plea to either recommend a particular sentence, or to agree not to oppose the imposition of a given sentence. These agreements have no binding effect: if the court refuses to go along with the sentencing recommendation, withdrawal of the guilty plea is not possible.

A specific sentencing agreement is similar to a sentencing recommendation, except that it is binding in nature. This does not mean that the court cannot refuse to impose the agreed-upon sentence; but if it does, then unlike a sentencing recommendation the defendant can withdraw his or her guilty plea to the bargained-for charge. Binding sentencing agreements can still be subject to other sentencing guidelines, however, so they must be carefully negotiated to avoid being negated by criteria outside of the agreement.

There are other types of plea bargaining than the three above. And as has been pointed out, the most common forms of plea bargaining require knowledge of how federal criminal rules and sentencing guidelines work to avoid running into trouble later on. This is where having a defense law firm that is already experienced with defending against federal charges and with negotiating federal plea and sentencing mitigation can be very important.