Matthew Galluzzo has successfully applied for resentencing in other 18 USC 3582 cases, including modifications of sentences based upon US v. Davis and other changes in the law. He is an experienced federal criminal defense attorney and appellate lawyer and he offers a reasonable flat fee for an application to modify a federal sentence. Contact him today to discuss whether such a petition might benefit you or your loved one.

The question on everyone’s mind has been whether Ms. Maxwell will finally disclose the names of the other purportedly rich and powerful celebrities who engaged in illicit conduct with minors and Jeffrey Epstein. Ms. Maxwell has steadfastly refused to do that, even after Epstein’s death (to the surprise of some). Ms. Maxwell initially denied being knowingly involved in any criminal conduct, and her statement at sentencing was hardly an apology, either.

Ms. Maxwell may also have a legitimate ground for an appeal to the Second Circuit Court of Appeals. After the verdict, a juror disclosed that they had not told the Court during jury selection about having been a victim of a sexual assault. Judge Nathan (the trial judge) denied a motion for a new trial on that basis, and Maxwell will almost certainly pursue that argument on appeal.

The question now is whether Ms. Maxwell will consider disclosing the names of the Epstein “clients” pursuant to Federal Rule 35. That rule makes it possible for a convicted defendant to have their sentence reduced for providing “substantial assistance” to law enforcement following the imposition of sentence:

(b) Reducing a Sentence for Substantial Assistance.

(1) In General. Upon the government’s motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.

(2) Later Motion. Upon the government’s motion made more than one year after sentencing, the court may reduce a sentence if the defendant’s substantial assistance involved:

(A) information not known to the defendant until one year or more after sentencing;

(B) information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or

(C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant.

As you can see, Ms. Maxwell will need to disclose this information within a year, or it will be too late for her to benefit. She theoretically might try to appeal her sentence before making that decision to cooperate, but her appeal might take longer than a year to resolve. Clearly, though, were she to divulge important information about “the clients” to federal prosecutors, she might be able to reduce her sentence such that she does not risk dying in prison.

Matthew Galluzzo is a New York City federal criminal defense attorney and former sex crimes prosecutor in Manhattan.

Previously, judges were required to impose 25-year consecutive sentences on convictions for 924(c) firearm charges when the defendants had previous convictions for 924(c). However, the problem with this law is that a person who committed two violations of 924(c) would be sentenced to a 25-year mandatory minimum consecutive sentence, even if they committed that second 924(c) violation before being convicted of the first 924(c). That is precisely what happened to Mr. Johnson: he was arrested in North Carolina for a bank robbery with a firearm, and then charged shortly thereafter with another robbery with a firearm in New York. Even though he had not yet been convicted of a 924(c) charge when he committed the robbery in New York, he got the mandatory minimum consecutive 25-year sentence because the other 924(c) crime happened in North Carolina (and he was convicted in that case) before being sentenced in New York.

Congress clarified this issue recently such that in order for the mandatory consecutive 25-year sentence to apply, the first conviction for 924(c) had to have been final before the commission of the second 924(c) crime. Judges then generally have discretion to modify sentences imposed under the old scheme. United States v. Ballard, 2021 WL 3285009, at *4-*5 (S.D.N.Y. Aug. 2, 2021); 18 U.S.C. Section 3582. Mr. Galluzzo and Mr. Johnson argued that Mr. Johnson had undergone significant rehabilitation, that he suffered from a variety of health ailments, and that the requested sentence modification still constituted sufficient punishment for his offenses, in which no one was injured.

The court generally agreed and reduced Mr. Johnson’s aggregate sentence by about thirteen years.

If you or a loved one need the assistance of an experienced federal criminal defense attorney, or wish to pursue an appeal of a “stacked” sentence under 924(c), you should strongly consider contacting Matthew Galluzzo.

The decision from Judge Rakoff is available here: Rakoff decision Leonard Johnson.

The authority of the FBI to investigate criminal offenses and enforce laws of the United States on cruise ships on the high seas or territorial waters of the United States depends on several factors: The location of the vessel, the nationality of the perpetrator or victim, the ownership of the vessel, the points of embarkation and debarkation, and the country in which the vessel is flagged all play a role in determining whether there is federal authority to enforce the laws of the United States.

The principal law under which the U.S. exercises its Special Maritime and Territorial Jurisdiction is set forth in Section 7 of Title 18 of the U.S. Code. This statute provides, in relevant part, that the U.S. has jurisdiction over crimes committed on a ship if:

• The ship, regardless of flag, is a U.S.-owned vessel, either whole or in part, regardless of the nationality of the victim or the perpetrator, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular state;
• The offense by or against a U.S. national was committed outside the jurisdiction of any nation;
• The crime occurred in the U.S. territorial sea (within 12 miles of the coast), regardless of the nationality of the vessel, the victim or the perpetrator; or
• The victim or perpetrator is a U.S. national on any vessel during a voyage that departed from or will arrive in a U.S. port.

However, it is important to note, that when an incident occurs outside the territorial waters of the U.S., there are numerous other factors that come into play in determining the FBI’s role and ability to investigate. In addition to the laws of the U.S., the laws of other sovereign nations, and international law will determine our legal authority to respond to and/or investigate the crime. As these incidents may involve the citizens or interests of other countries, the FBI’s investigative efforts may implicate the sovereignty interests of other involved nations. Resolution of these questions requires consultation and coordination within the U.S. government. Put another way, when more than one nation might have jurisdiction or an interest in investigating a crime upon a cruise ship, those countries have to work together to decide who will be primarily responsible for the investigation and/or prosecution.

The FBI has posted a number of senior-level agents in 60 Legal Attaché—or Legat—offices and 13 sub-offices throughout the world. Through established liaison with principal law enforcement services in designated foreign countries, the FBI’s Legats are able to pursue investigative activities where permissible. The Legats’ authority to conduct investigations overseas or to coordinate FBI extraterritorial teams’ investigations abroad varies greatly and must be determined by each Legat on a country-by-country, case-by-case basis.

The Legats coordinate closely with the Department of Justice’s Office of International Affairs, which provides assistance in international criminal matters to U.S. and foreign investigators, prosecutors, and judicial authorities, primarily in the area of international extradition of fugitives and evidence gathering, and with the Department of State.

Extraterritorial Response

When a Legat has made a determination to respond to a crime on the high seas incident involving U.S. citizens and/or interests occurring outside of the U.S. territorial waters, the Legat’s role in the investigation will vary depending on the host country and the FBI’s resources in the area. The United States cannot board a foreign flag vessel on the high seas to enforce U.S. criminal laws without the consent of the flag state, except for a limited number of recognized universal offenses.

In cases involving suspected criminal activity directed at or aboard a foreign flag vessel on the high seas, international coordination and cooperation is required to board the vessel at sea, investigate the facts, collect evidence, and sort out the jurisdiction of various states with interests in the matter.

Normally, the FBI will attempt to board the vessel before it docks or shortly after, ensuring access to all passengers with an emphasis on protection of life and preservation of evidence, as well as securing the crime scene. In some circumstances, the Legat may request the vessel to dock in the next port of call where relations with a host country or the availability of U.S. resources will better serve the investigation.

FBI personnel or other regional U.S. government entities may conduct the crime-scene investigation or the Legat may coordinate with the host country law enforcement to conduct the crime scene investigation. The Legat will make this decision based on concurrence from the host country, known skill level and resources of local law enforcement, and available U.S. resources. When viable, the FBI will examine, note, and arrange for the proper care of all evidence associated with the incident.

After all crime-scene and witness/victim/suspect interviews have been completed, the FBI will obtain the itinerary of the vessel so, if necessary, the vessel and crew can be located at a later date. Prior to disembarking of passengers/crew notices of contact information for the FBI will be provided should they have any pertinent information regarding the incident after their departure. In some cases, individual letters may be sent to passenger/crew asking for any information concerning the incident. Throughout the investigation, the United States Attorneys Office is kept apprised of the facts of the investigation to obtain a prosecutive opinion.

Extraterritorial Arrest

If a foreign national is indicted for a crime committed on the high seas in violation of U.S. law, but is not located in U.S. territory, the FBI will pursue a logical fugitive investigation to locate and apprehend the subject as the FBI would with any FBI fugitive. Working in coordination through the FBI’s extensive Legat network and liaison with foreign local law enforcement, attempts will be made to locate the fugitive. If the fugitive is located in a foreign country, the FBI and Department of Justice prosecutors, working in coordination with the Office of International Affairs and U.S. State Department, will make every effort to secure the fugitive’s return to face justice in the United States.

Violations Constituting Crimes on the High Seas

The FBI traditionally focuses its investigative efforts on specified serious crimes for which penalties are provided for under Title 18 when the crimes are committed within the special maritime and territorial jurisdiction of the United States. These specified crimes include: assault, murder, attempt to commit murder or manslaughter, kidnapping, sexual abuse, robbery, and theft (as defined in Title 18, Sections 113, 1111, 1112, 1113, 1201, 2111, and 661).

18 U.S.C. 113 applies to assaults on cruise ships.

18 U.S.C. 1111 applies to murder on cruise ships.

18 U.S.C. 1112 applies to manslaughter on cruise ships.

18 U.S.C. 1113 applies to attempts to commit murder or manslaughter on cruise ships.

18 U.S.C. 1201 applies to kidnapping on cruise ships.

18 U.S.C. 2111 applies to robbery on cruise ships.

18 U.S.C. 661 applies to theft on cruise ships.

18 U.S.C. 2241 applies to sexual abuse on cruise ships.

18 U.S.C. 2242 also applies to sexual abuse on cruise ships.

18 U.S.C. 2244 also applies to sexual abuse on cruise ships.

Crime Statistics

Sexual assault and physical assaults on cruise ships were the leading crime reported to and investigated by the FBI on the high seas at 55 percent and 22 percent respectively. (These statistics were collected during the five-year period between 2002 and 2007).

Statistics collected by the FBI indicate that most of the sexual assaults on cruise ships take place in private cabins and over half are alcohol-related incidents. Employees are identified as suspects in about 37 percent of the cases, and 65 percent of those employees are not U.S. citizens. Employee-on-employee assaults make up approximately 2 percent or two of the total cases opened. Fifty-nine percent of the sexual assault cases from fiscal 2002 to February 2007 were not prosecuted, and the typical reasons for prosecutive declinations were lack of evidence, indications that the act was consensual, and/or contradictory victim/witness/subject statements.

Physical assaults are the second most frequent crime upon the high seas. The majority of physical assault cases are on cruise ships, as compared to other commercial vessels. Physical assaults take place in a myriad of locations, including bars and casinos, shared cabins, ship decks, and crew member facilities. These cases are predominantly confrontations between adult males. The majority of the physical assault cases are domestic disputes and a high percentage are alcohol-related incidents.

Missing persons on cruise ships comprised only 12—or 5 percent—of cases opened during this period from 2002 to 2007. Missing person cases were more sporadic in nature and did not appear to have any significant pattern. There were slightly more cases opened on cruise ships and private vessels than fishing vessels and other commercial crafts.

The FBI’s field offices in Miami, Los Angeles, Houston, Tampa, New York, and New Orleans have the largest volume of crimes on the high seas cases, due to their large and active ports and the number of ships that arrive in and depart from these ports.

Crime Victims’ Rights

In 2010, Congress passed legislation mandating important procedures to ensure the integrity and proper handling of investigations of alleged sexual assaults on cruise ships falling under U.S. jurisdiction. The Cruise Vessel Safety and Security Act of 2010 requires cruise ships to provide medical attention and rape forensic exams to victims of these crimes, and provide them with a means to make a confidential report of the alleged rape or sexual assault. To learn more about these rights provided for by this legislation, click here.

Conclusion

If you or a loved one have been arrested or are being investigated for a crime on a cruise ship, or were a victim of a crime on a cruise ship, you should seriously consider contacting the experienced criminal defense attorneys at the Law Office of Matthew Galluzzo. Their team of former prosecutors has tremendous experience investigating sexual and physical assault cases. In fact, Matthew Galluzzo is a former sex crimes prosecutor in Manhattan whose opinion on rape investigations has been sought countless times by newspaper and television journalists. Moreover, their team has gotten tremendous results in defending against federal sexual crimes alleged to have occurred on international vehicles.

Under CPL 440.10, a defendant can ask the trial court that accepted the guilty plea to vacate the conviction if the defendant did not receive the effective assistance of counsel in some way that was not apparent from the trial record. Typical claims of this sort tend to focus on attorney conflicts of interest, failure to advise clients on the immigration consequences of their pleas, failure to interview witnesses or investigate leads, or failing to communicate plea bargain offers.

Article 10 of the New York Mental Health and Hygiene Law gives the state the power to seek the civil commitment of certain convicted sex offenders following their release from prison. In short, a sex offender can serve his sentence for his sex crime but still be kept in custody against his will if it is proven, by a preponderance of the evidence, that he has a “congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct.”

An interesting question arises: what if a convicted sex offender accepted a plea bargain without being advised of the possibility that they would actually be civilly committed and thereby forced to spend a significantly longer time in custody than he had expected under the terms of his plea deal? One might argue that the attorney’s failure to advise his client of this potential consequence constituted ineffective assistance of counsel worthy of the vacatur of the plea pursuant to CPL Section 440.10. The argument suggested here is potentially analogous to the vein of cases under Padilla, which gave many convicted defendants the right to claim that they did not receive the effective assistance of counsel because they, too, were not properly advised of the “civil consequence” of deportation stemming from their guilty pleas. One of the difficulties of this argument, on the other hand, is that only approximately 7% of convicted felony sex offenders ultimately become civilly committed, whereas immigration consequences for certain criminal convictions are more certain for non-citizens.

The attorneys at The Law Office of Matthew Galluzzo are experienced appellate practitioners with a background in prosecuting and defending sex crimes. They have been successful in overturning convictions via CPL 440.10 in a variety of contexts, resulting in much more favorable outcomes for their clients. If you or a loved one are being subjected to an upcoming sex offender civil commitment proceeding that you did not anticipate, you should strongly consider contacting the experienced criminal defense attorneys at The Law Office of Matthew Galluzzo to determine whether you might be able to pursue such an appeal via CPL 440.10.

The text of the decision is available here.

People v. Western Express International Inc., No. 156

New York State Court of Appeals

No. 156

New York Law Journal

10-19-2012
Cite as: People v. Western Express International Inc., No. 156, NYLJ 1202575459447, at *1 (Ct. of App., Decided October 18, 2012)

Opinion by Chief Judge Lippman. Judges Ciparick, Graffeo, Read, Smith and Jones concur. Judge Pigott dissents and votes to affirm in an opinion.

Decided October 18, 2012

Jan Hoth, for appellant Latta.

Submitted by Marianne Karas, for appellant Vassilenko.

Allen Fallek, for appellant Roach.

Matthew J. Galluzzo, for appellant Perez.

David M. Cohn, for respondent.

*1 Jonathan Lippman, Chief Judge:

Appellants have been indicted for enterprise corruption (Penal Law §460.20 [1] [a]), a class B felony, based in essential part on their commission of numerous predicate offenses.¹ There was proof before the grand jury that three of them-Douglas Latta, Lyndon Roach and Angela Perez –

*2 repeatedly purchased stolen credit card data which they then used for fraudulent purposes, and that the remaining appellant, Vadim Vassilenko, through the company he controlled, defendant Western Express International, Inc. (Western Express), facilitated transactions by which the purloined credit card data was transferred.

Appellants’ conduct, the People claim, was part of a larger enterprise to traffic in stolen credit card information. To make out the corrupt enterprise, the People adduced before the grand jury proof that Eastern European vendors of stolen credit card data engaged in internet transactions with buyers in New York. There was also proof that, in consummating these transactions, buyers and sellers sometimes availed themselves of services offered by Western Express through its publicly accessible internet web sites. While Western Express’s menu of services – i.e., check cashing, mail receiving, issuing money orders, digital currency exchange, and Russian/English translation – was superficially unremarkable, the services themselves being legal and admitting of legitimate utility in the conduct of international transactions, there was evidence that some Western Express customers, among them defendants Latta, Roach and Perez, used the company’s services for “carding” purposes, i.e., to traffic in stolen credit card information.

The People, in presenting the matter to the grand jury, dwelt principally on the carders’ use of Western Express’s digital currency exchange service. Western Express, having

*3 purchased large sums of the unregulated internet currencies EGold and Webmoney, was an authorized vendor of those forms of tender. For a commission of between two and five percent, the company would transfer into a customer internet account held in an assumed name digital currency purchased from it by the customer with US dollars. The digital currency could then be, and on occasion was, transferred to pay for stolen credit card information, after which the vendor would sell the digital currency received in payment back to Western Express for its value in another digital currency or US Dollars, with Western Express taking an additional commission. This transactional pattern recommended itself for money laundering purposes by reason of the circumstance that E-currency was not government regulated and that international transactions using it went largely unscrutinized.

There was evidence that Western Express was not a neutral observer of this use of its services; its employees offered advice on how to structure transactions to avoid detection and defendant Vassilenko, the company’s president, recognizing that a significant portion of Western Express’s business was from “carding” transactions,² actively sought the patronage of carders. Carder business was encouraged by postings on the Western Express web sites and there was proof that Vassilenko attempted (evidently unsuccessfully) to advertise Western Express’s services on Carder Planet, a members-only web site devoted exclusively to facilitating

*4 illegal carding activities.

Supreme Court granted appellants’ respective motions to dismiss the subject indictment’s enterprise corruption count upon the ground that the proof before the grand jury, even when viewed most favorably to the People, did not make out the existence of a “criminal enterprise.” As is here relevant, guilt of enterprise corruption under New York’s Organized Crime Control Act (OCCA) (Penal Law §460.00 et seq.) requires proof that the accused “when, having knowledge of the existence of a criminal enterprise and the nature of its activities, and being employed by or associated with such enterprise … intentionally conducts or participates in the affairs of [the] enterprise by participating in a pattern of criminal activity” (Penal Law §460.20 [1] [a]). For OCCA purposes a “criminal enterprise” is “a group of persons sharing a common purpose of engaging in criminal conduct, associated in an ascertainable structure distinct from a pattern of criminal activity, and with a continuity of existence, structure and criminal purpose beyond the scope of individual criminal incidents” (Penal Law §460.10 [3]). In dismissing the enterprise corruption count, Supreme Court focused upon the absence of proof of an “ascertainable structure distinct from a pattern of criminal activity”:

“Here, the People have failed to even articulate-much less adduce evidence proving-any system of authority or hierarchy in which the defendants participated … [W]hat the People allege are a series of arms-length business transactions-admittedly extensive and, if the People’s allegations are true, illegal-conducted by a variety of organizations and individuals, each operating independently

*5 and with no overarching structure or system of authority. In essence, the People have described an illegal industry rather than a corrupt enterprise, the criminal parallel of a typical legitimate industry consisting of producers, wholesalers, distributors, retail outlets, and credit suppliers, each of [whom] has a unique but independent role in the industry.”

In reversing and reinstating the enterprise corruption count (85 AD3d 1 [1st Dept 2011]), the Appellate Division, while acknowledging that there was no evidence of a traditionally structured, i.e., hierarchical, entity, theorized that Vassilenko had used Western Express to create a structured enterprise the purpose of which was to “actively encourage more and larger transactions by its participants on an ongoing basis” (id. at 14). The evidence, said the Court, permitted the inference that defendants knowingly played roles in the enterprise even though, for the most part, they had no personal interaction (id.). Two Justices dissented, expressing the view that the requisite “ascertainable structure” to the alleged enterprise had not been demonstrated, even to the bare bones extent necessary to sustain the enterprise corruption count to trial. The dissenters found compelling the absence of “evidence of any collective decision-making or coor dination with respect to the purported enterprise’s activities or of any overarching structure of authority or hierarchy in which defendants participated” (id. at 19). One of the dissenting Justices granted appellants’ separate applications for permission to appeal to this Court. We now reverse and reinstate the orders of Supreme Court dismissing the enterprise corruption count as

*6 against appellants.

New York’s OCCA was enacted in 1986 to afford state prosecutors a means of exacting heightened penalties for criminal activity referable to or generative of structured criminal enterprises (see Penal Law §460.00). Those enterprises were understood to present a distinct evil by reason of their unique capacity to plan and carry out sophisticated crimes on an ongoing basis while insulating their leadership from detection and prosecution (see id.; People v. Besser, 96 NY2d 136, 142 [2001]). The Federal Racketeer Influenced and Corrupt Organizations Act (RICO) (18 USC §1961 et seq.) had, of course, for some time enabled federal prosecutors to prosecute enterprise corruption as such, but until the enactment of the OCCA there was no New York State analogue.

The common challenge posed both federal and state legislators in penalizing enterprise corruption as a separate crime was to delineate the circumstances under which conduct already fitting under a criminal definition would additionally be subject to prosecution and more serious penalization for its connection to a criminal organization. To justify the superadded penalties for participation in a corrupt enterprise, and concomitantly to avoid sweeping relatively minor offenders into complex multi-defendant, multi-count prosecutions entailing a risk of draconian punishment, it was necessary to distinguish between what on the one hand were merely patterns of criminal conduct and what on the other were patterns of such conduct demonstrably designed to achieve the purposes and promote the

*7 interests of organized, structurally distinct criminal entities. Accordingly, both RICO and the OCCA require the prosecution to prove, in addition to a pattern of criminal activity, the existence of a separate criminal enterprise to which that pattern of activity is beneficially connected (see United States v. Turkette, 452 US 576, 583 [1981]; Penal Law §§460.20 [1]; 460.10 [3]). While RICO does not explicitly require proof of the enterprise’s structural integrity, it is settled that a qualifying enterprise must have structure (Boyle v. United States, 556 US 938, 940-941 [2009]). And, as noted, the OCCA, which is assertedly of more narrow application than RICO (Penal Law §460.00),³ makes the requirement of “an ascertainable structure distinct from a pattern of criminal activity” express in its definition of “criminal enterprise” (Penal Law §460.10 [3]). Both statutes demand or have been understood to demand proof of an association possessing a continuity of existence, criminal purpose, and structure – which is to say, of constancy and capacity exceeding the individual crimes committed under the association’s auspices or for its purposes (id.; Boyle, 556 US at 946).

There is no question that the People presented as to each appellant considerable evidence of a pattern of illegal activity. The issue to be decided is whether they also presented evidence from which a petit jury could reasonably

*8 infer (see People v. Bello, 92 NY2d 523, 525 [1998]) that that activity bore the requisite relation to a distinct criminal enterprise-a “group of persons” seeking a “common purpose” and associated in an ascertainably structured entity. The People and the Appellate Division majority proposed a structure composed of buyers and sellers of stolen credit card information arrayed around Western Express’s hub-like web sites, drawn there by reason of the sites’ menu of facilitative services. As Supreme Court perceptively observed, however, this does no more than describe a prevalent pattern evidently organic to the “carding” market; it is how that business often happens to be configured given the needs and interests of the individual market participants. It is, however, not indicative of a distinct, structured criminal enterprise. There is no hint that any of the market participants acted except for and according to their own particular interests,⁴ much less that their actions within the illicit market were somehow connected to the workings of a structured, purposeful criminal organization.

The People urge that a criminal enterprise need not be hierarchical to be structured and that structure may be inferred from patterns of criminal conduct. While both of these propositions may be true in theory, it remains that under the OCCA a “common purpose” is required and the structure of a criminal enterprise must be “ascertainable.” Here these conditions are not met. The presented evidence was indicative

*9 of no more than the manner in which international transactions in stolen credit card data were commonly conducted, with or without the use of Western Express’s services⁵; it did not support the further inference of a distinct, beneficially related criminal enterprise.

It is true that in Boyle the RICO requirement of enterprise structure was deemed satisfied simply by proof of the underlying pattern of criminal activity and the inference of structure that that proof would bear (see 556 US at 947-948). The OCCA, unlike RICO, however, specifically demands that the structure be distinct from the predicate illicit pattern, and not surprisingly there are no New York cases in which the requisite structure has been inferred simply from an underlying pattern. Moreover, Boyle involved a ring of thieves whose relatively constant membership met from time to time to plan and execute bank heists, the proceeds of which they shared (see id. at 941). There was, then, some evidence from which a continuing cooperative criminal enterprise possessed of a common purpose and some, albeit loose, structure could be inferred. Here, although there was evidence of many arms’ length transactions, there was no proof of concerted activity from which a petit jury might reasonably have gathered that the appellants were knowing participants in the affairs of a “criminal enterprise” within the meaning of Penal Law §460.10 (3).

Doubtless, the internet may be used to facilitate crime, and we do not exclude the possibility that a web site

*10 singularly preoccupied with processing a screened clientele’s illicit transactions could be understood as elemental to and reflective of a criminal enterprise. But crimes committed by resort to cyber means are not invariably referrable to distinct nefarious enterprises, and the web sites here involved do not permit the inference of an overarching criminal purpose or organization; while Western Express may have sought to make its web sites attractive to carders, the sites themselves presented simply as publicly accessible loci for the conduct of business, the legality of which turned in the end upon the independent agendas of individual users. To the extent that the usage was for illegal purposes, it reflected the existence of a prevalent black market but did not reasonably justify the additional inference necessary to the viability of the proposed enterprise corruption prosecution, that there was within that market an enduring structurally distinct symbiotically related criminal entity with which appellants were purposefully associated.

Accordingly, the order of the App ellate Division, insofar as appealed from, should be reversed and the orders of Supreme Court, New York County, dismissing the enterprise corruption count of the indictment as against appellants, reinstated.

*11 Eugene F. Pigott, Jr., J.(dissenting):

The days of traditional organized crime families seem to be fading. Instead, in today’s modern world, criminal organizations now vary in size and even operate on a global span by way of the computer. Criminal organizations operating on the internet do so without any notion of a hierarchy or any formalized decision-making process. The New York State Legislature, recognizing that organized crime is evolving, has expressly permitted courts and prosecutors to apply the Enterprise Corruption statute (Penal Law §460.20 [1] [a]), in their discretion, to organizations that engage in a pattern of criminal activity and that possess any sort of “ascertainable structure” (see Penal Law §460.00).

The majority correctly summarizes the Grand Jury presentation by the People, noting the following: (1) defendant Western Express purchases “large sums of the unregulated internet currenc[y]”; (2) it then transfers this money to customers with “assumed name” accounts; (3) those “customers” then buy stolen credit card information with this unregulated money; and (4) the “customer” then sells the currency back to Western Express obtaining U.S. dollars in return with Western Express taking an additional commission. As the majority notes,

*12 this is simply a digital form of money laundering.

My colleagues conclude that no “ascertainable structure” was presented to the Grand Jury in this case because, although there was a “prevalent black market” for stolen credit card information, within that market there was no “enduring structurally distinct symbiotically related criminal entity with which appellants were purposefully associated” (majority op at 11). I find no such requirement in the statute.

The People allege that a cybercrime group (which the People termed the Western Express Cybercrime Group), was formed. The group included a pre-existing corporation, Western Express International, Inc., that acted as the “money mover” for the other members of the group. Those other members included “vendors” and “buyers” who trafficked in stolen credit card numbers and other stolen personal identifying information.

The group acted with a common purpose to engage in conduct constituting the crime, among others, of trafficking stolen information, while avoiding detection by law enforcement. Specifically, the vendors and buyers, through Western Express, were permitted to conduct anonymous transactions, via the internet and by other means, using sophisticated payment schemes. Western Express further assisted the buyers and vendors by helping structure the transactions to avoid federal reporting requirements. For instance, via computer, Western Express employees advised certain members to structure wire transfers in small amounts under various names. Thus, although the members had their own self-interest to profit from the

*13 criminal activity, they also acted for the benefit of both the vendors and buyers. Indeed, all of the participants of the group were acting together for the intended result and common goal of ensuring that all parties to and proceeds of the transactions remain virtually untraceable.

The purpose in enacting the Enterprise Corruption statute “was to address the particular and cumulative harm posed by persons who band together in complex criminal organizations” (People v. Besser, 96 NY2d 136, 142 [2001]). Here, Western Express and the other group members banded together in a way that was distinct from a simply buy-sell transaction on the black market. Rather, the parties acted in an organized way, or, in other words by an “ascertainable structure”, which allowed the members to be more successful in effecting their criminal purpose and to avoid detection from law enforcement for several years.

I would, therefore, affirm the order of the Appellate Division.

1. These included scheme to defraud, conspiracy, grand larceny, money laundering, possession of stolen property, and falsifying business records. No issue is before us respecting the sufficiency of the counts charging these offenses; this appeal concerns no more than the sufficiency of the evidence offered in support of the enterprise corruption count.

2. Vassilenko estimated that 5 percent of his business was from carding transactions. The People contend that the actual percentage was much higher.

3. As is here relevant the Legislature in enacting the OCCA was careful to explain that “[t]he organized crime control act is a statute of comparable purpose [to that of RICO] but tempered by reasonable limitations on its applicability, and by due regard for the rights of innocent persons. Because of its more rigorous definitions, this act will not apply to some situations encompassed within comparable statutes in other jurisdictions” (Penal Law §460.00 [emphasis supplied]).

4. We note that, while the Appellate Division offered that the common purpose of the purported enterprise was to encourage more and larger criminal transactions, there was no proof that Western Express’s customers availed themselves of the company’s services with any objective other than the expedient conduct of their own individual transactions.

5. There are numerous providers of such services and, in fact, after Western Express’s demise, its carder clientele simply switched to different providers of comparable services.

Order, insofar as appealed from, reversed and orders of Supreme Court, New York County, dismissing the enterprise corruption count of the indictment as against appellants, reinstated. Opinion by Chief Judge Lippman. Judges Ciparick, Graffeo, Read, Smith and Jones concur. Judge Pigott dissents and votes to affirm in an opinion.

Criminal defendants that have been convicted in New York have the right to one “direct appeal,” or an appeal to a higher court. In the New York state system, the four Appellate Divisions review convictions from Supreme Court (the trial court that primarily handles felonies). The Appellate Division, First Department is responsible for Manhattan and the Bronx, the Second Department deals with cases from Brooklyn, Queens, Staten Island, Westchester and Long Island, the Third Department is based in Albany, and the Fourth Department is in Rochester.

From there, cases can be further appealed to the state’s highest court, the Court of Appeals (based in Albany). A defendant is not entitled to have his case heard by that court; typically, an appellant must persuade the court that his case involves issues of statewide import. If the Court of Appeals agrees to consider the arguments, then it grants certiorari (sometimes referred to as “leave to appeal” or “cert”) and the appellant’s attorney can file a brief arguing for a reversal of the conviction or modification of the sentence.

In order to pursue the original “direct appeal,” the defendant must first file a “notice of appeal” with the correct Appellate Division immediately. Aside from finding an attorney to handle the matter, the defendant seeking to appeal his conviction also needs to obtain the transcripts of his court appearances as soon as possible. Typically, the defendant or his attorney must contact the specific court reporters directly to order the transcript, and arrange for payment to the court reporter. Indigent defendants can apply to the Appellate Divisions for “poor person relief” if they need to have the minutes provided free of charge. (Note: indigent defendants that have been represented by the Legal Aid Society, some other public defense agency, or an 18b attorney, can also apply for free appellate representation).

In the federal system, a conviction in New York federal district court (such as the Southern District of New York or the Eastern District of New York) is appealed to the Second Circuit Court of Appeals. A conviction in the District of New Jersey is appealed to the Third Circuit Court of Appeals.

Generally speaking, typical direct appeals have to involve errors or appealable issues that can be gleaned from the transcript, or “minutes” of the court proceedings. These sorts of appeals usually stem from mistakes that happened during a trial. Some common areas of appeal include pre-trial suppression hearings, jury selection, the sufficiency of the evidence, the weight of the evidence, and Molineux and Sandoval.

In cases involving the possession of contraband (such as narcotics or firearms), there is usually a pre-trial suppression hearing before a judge. These “Mapp hearings” (or Mapp/Dunaway) usually involve police officers testifying as to their basis for the search that led to the recovery of the contraband. If the judge is convinced that the officers had sufficient or probable cause to act as they did in searching the defendant’s property or person, then the contraband can be used by the prosecutor at trial. If, on the other hand, the judge finds that the police officers violated the constitutional rights of the defendant, then he orders “suppression,” meaning that the contraband may not be used at trial. Most of the time, suppression requires the prosecutor to dismiss the case. Obviously, then, these suppression hearings can be enormously important. The decisions of judges in suppression hearings can be appealed to the Appellate Division, even sometimes in cases where the defendant decides to plead guilty after losing the hearing. Furthermore, statements by defendants can be suppressed where they were involuntarily made or made in violation of Miranda warnings (the subject of a Huntley hearing). Finally, identifications of suspects can also be suppressed where the procedures used for showing the suspect to the eyewitness were performed improperly (the subject of a Wade hearing).

The jury selection process can sometimes be appealed as well. For example, if the appellate attorney can demonstrate that the judge wrongfully failed to exclude a potential juror that couldn’t be fair (or failed to assure the court that she could be fair), then the subsequent conviction might be reversible. Also, a conviction may be reversible where the prosecutor systematically excluded jurors for some discriminatory reason (the age, gender, or race, for example). This is sometimes referred to as a “Batson violation”.

Furthermore, an appellate lawyer can challenge the conclusions to be drawn from the proof as well. Typically, one can either challenge the sufficiency of the evidence or its weight. When arguing sufficiency, an appellate lawyer assumes that all of the prosecution’s evidence was true and credible, but that the evidence nevertheless failed to prove a specific and necessary element of the crime. Appellate lawyers can also argue about the “weight of the evidence” at trial, meaning that the prosecution’s evidence simply wasn’t strong enough to warrant a conviction. The distinction between “sufficiency” and “weight” is subtle but nevertheless very significant, as they involve different standards of review by the appellate courts.

Some other types of appeals can also be made to the court in which the conviction occurred. The most common of these is brought pursuant to CPL Section 440.10. These motions can be made at virtually any time but are best done as soon as possible. A 440.10 motion can involve legal issues that are not apparent from the court transcript, meaning that they occurred “off the record”. For example, newly discovered evidence or improperly withheld evidence (such as exculpatory “Brady material”) can form the basis of a successful 440.10 motion. Many appellants choose to argue that their trial attorneys represented them poorly, or provided “ineffective assistance of counsel” (note: these arguments can sometimes be made on direct appeal as well). Along similar lines, many non-citizens have successfully argued that they were deprived of their constitutional right to effective assistance of counsel, or that they made uninformed decisions about their cases, because they were not properly advised of the immigration consequences of their criminal cases. These arguments are sometimes referred to as “Padilla appeals,” referring to the Supreme Court decision from which these cases spawned. (The attorneys at The Law Office of Matthew Galluzzo have handled cases such as these). Defendants can also pursue similar motions to set aside the verdict after a trial conviction but before their sentence pursuant to CPL Section 330.30 (the main difference between 440.10 and 330.30 being the timing). Finally, a court can reduce or modify a sentence pursuant to a motion brought under CPL Section 440.20. Decisions on these sorts of motions can also generally be appealed to the Appellate Division.

Finally, after one’s state appellate options have been fully “exhausted,” meaning that every direct appeal has been decided, an incarcerated person can possibly look to state courts writs of habeas corpus (and possibly even federal courts) for release from prison. The writ of habeas corpus is a civil motion brought to challenge the legality of the detention of the prisoner. Basically, the prisoner argues that his constitutional rights are being violated by virtue of his unlawful detention (i.e. the conviction or sentence was improper or unlawful), and the remedy is release from custody.

If you or a loved one have been convicted of a crime and are considering an appeal, you should strongly consider contacting the intelligent and experienced criminal appeals lawyers at the Law Office of Matthew Galluzzo. Their team of former prosecutors includes a pair of experienced lawyers – Matthew Galluzzo and Zack Johnson – that routinely handle trial-level matters yet began their careers specializing in criminal appeals. Zack Johnson has successfully argued a criminal appeal before the highest court in the state of New York (the Court of Appeals) and Matthew Galluzzo is currently working on an appeal to that court involving a cutting-edge legal issue. (See http://cyb3rcrim3.blogspot.com/2011/06/cybercrime-enterprise-organized-crime.html). Unlike most criminal lawyers, they are skilled at handling cases at both the trial level and on appeal; indeed, they firmly believe that being appellate lawyers makes them better trial lawyers, and vice versa. They also stay abreast of new developments in state and federal law, as evidenced by their sophisticated blog on criminal law topics. As a result of their exceptional backgrounds, they are uncommonly good at identifying potential grounds for appeal, and they work tirelessly to ensure that their finished products are persuasive. Contact them today to set up a free initial consultation to discuss your case.