18 U.S.C. § 844(i) makes it a federal crime punishable between 5 and 20 years to “[m]aliciously damage[] or destroy[], or attempt to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.” (The penalties are higher when public safety officers sustain injuries).

According to the complaint (as well as video footage available on the Internet) – Ms. Shader allegedly threw a Molotov cocktail (a bottle of flammable beer containing a burning rag or cloth) through the window of a police vehicle while it was occupied by four police officers. Thankfully, no police officers were injured. According to the publicly-available complaint filed against her, Ms. Shader has also admitted to the conduct. In addition, it is alleged that just a few hours later, the two aforementioned lawyers threw similar Molotov cocktails into an empty NYPD vehicle in Brooklyn.

Defending against these cases is going to be challenging for their attorneys. Ms. Shader probably has no defense whatsoever, assuming that her statement was voluntarily given to the police. As much as Mr. Mattis, an African-American attorney, may have a valid grievance about police brutality in America, there is no First Amendment or protest exception to this criminal statute. These attorneys could go to trial and attempt to persuade juries to “nullify” their cases, meaning find them not guilty where the evidence clearly proves their guilt. The Eastern District of New York is an extremely diverse jury pool – almost certainly the most diverse jury pool in the U.S. – but it seems unlikely that a jury of 12 would unanimously agree to forgive this sort of conduct that jeopardizes lives and safety.

Defense attorneys are going to have to fight hard to try to persuade federal prosecutors to charge their clients differently, in order to avoid stiff jail sentences. Federal prosecutors rarely if ever make deals for “lesser included offenses,” but there are some charges that could be potentially substituted for 18 U.S.C 844(i) that do not have the same penalties, e.g. 18 U.S.C. § 33, 18 U.S.C. § 231, 18 U.S.C. §2232. Perhaps they could be permitted to plead guilty to one of these charges in satisfaction of the primary charge. Otherwise, their attorneys might try to have the case charged in state court, as well, with the hope that their clients could plead guilty to an offense with a lesser penalty in state court with the federal court being dismissed as covered by those state-court pleas. This is admittedly something of a long shot but perhaps worth considering under the circumstances.

Ultimately, this case is most likely going to be about demonstrating remorse and good character to the prosecutors in the hopes of earning some mercy or leniency from them. A “proffer” could be necessary to do so. Otherwise, they’ll likely be forced to accept a plea with a five-year mandatory minimum sentence.

Matthew Galluzzo is a former Manhattan state court prosecutor and experienced federal court defense attorney on the CJA panels for the Southern and Eastern Districts of New York. If you or a loved one have been arrested or charged with a federal crime, you should strongly consider contacting him immediately.

The sentencing range for the original criminal charges under the Federal Sentencing Guidelines was 12-18 months (Base Offense Level of 13 with a two level increase for obstructing justice offset by a possible two level reduction for acceptance of responsibility following a guilty plea). Of course, the client also now faced the possibility of additional criminal charges and penalties for acting as a fugitive and failing to appear in court. The prosecution initially submitted a proposed plea agreement whereby the client would receive a sentence of between 12-18 months in prison.

However, the attorneys at The Law Office of Matthew Galluzzo presented to the federal prosecutor considerable mitigating evidence of our client’s life story and family, as well as circumstances surrounding his original crimes. Ultimately, the prosecutors agreed to allow the client to plead guilty to the second count of the original indictment and avoid additional charges for acting as a fugitive. The second count of the indictment carried a 0-6 month Guidelines sentence, representing a considerable savings on the original 12-18. Then, we were able to persuade the judge to schedule an expedited sentencing hearing and ultimately to sentence our client to time served. Thus, instead of receiving a sentence of between 12-18, as it originally appeared our client would, our client received a sentence of less than four months. Obviously, the client is quite happy with the result.

If you or a loved one have been arrested for a violation of federal criminal law in Brooklyn or Queens (i.e. the Eastern District of New York), you should strongly consider contacting the experienced federal criminal defense attorneys at the Law Office of Matthew Galluzzo. Their team of former prosecutors has considerable experience representing individuals charged with a wide variety of crimes in that courthouse, and may be able to help you as well.