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United States District Court Violation Notices – a Dangerous Trap for the Uninformed

People who commit minor offenses on federal property (such as parks, beaches, government buildings, or national monuments) sometimes receive United States District Court Violation Notices. These notices look a bit like traffic tickets or criminal summonses (see links below). They typically list the offense charged and the date and time of the offense. They also usually offer the option to pay a fine through the mail or request an appearance in court. Many people elect to simply pay the fine through the mail because they think it is harmless to do so. (And, the arresting officers usually tell them that it’s no big deal and they should just pay the fine). However, most of the time, pleading guilty through the mail actually constitutes a guilty plea to a crime that will show up on a background check. These offenses are typically misdemeanors and the records of conviction are publicly available through the federal Central Violations Bureau. Those convicted of a federal petty offense have to respond “yes” to the question as to whether they have been convicted of a crime, and of course those professionals with employment-related licenses may be obligated to report these convictions to their certification boards. See the links below to a typical violation notice:

violation notice (page 1) violation notice (page 2)

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One common federal criminal charge applies to the possession of firearms by felons. 18 U.S.C. 922g includes a variety of situations involving illegal firearm possession, but subsection 1 of that provision states:

      (g) It shall be unlawful for any person – 

        (1) who has been convicted in any court of, a crime punishable

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Earlier this week, a Canadian woman from Quebec named Pascale Ferrier was arrested by American border agents crossing into the United States near Buffalo, New York. She was wanted by law enforcement for allegedly sending an envelope containing ricin to the White House. (Ricin is a potentially lethal poison) The envelope was addressed to President Donald Trump and contained a note calling him, among other things, an “Ugly Clown Tyrant”. Fingerprints from the package sent to the President matched fingerprints on file from Ms. Ferrier’s previous incarceration in Texas. The letter and its contents also appear to match several other letters sent to prison officials in Texas, which also appear to have contained ricin. At the time of her arrest, Ms. Ferrier also allegedly had a firearm in her waistband.

For now, Ms. Ferrier is charged in a D.C. federal court with one count of violating 18 U.S.C. Section 871 (Threats against the President). Among other things, this charge makes it illegal for a person to knowingly deliver a letter containing a threat to take the life of the American President. The maximum penalty for this charge is 5 years in prison.

Ms. Ferrier is likely to face additional charges soon, however. For example, should law enforcement choose to charge her for the threatening letters she might have sent to the officials in Texas, she could face several counts of 18 U.S.C. Section 2332b (Acts of terrorism transcending national boundaries). Basically, if a person attempts to kill an official of a U.S. government agency through the mail in a manner transcending national boundaries, then that person can be charged with this crime. Those charges would carry potential life sentences.

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Recently, in response to the horrific killing of George Floyd at the hands of Minneapolis police officers, there have been protests in major cities across the United States. An upstate woman and two New York attorneys were arrested and charged in federal court with crimes relating to their alleged throwing of Molotov cocktails at police vehicles during the protests in Brooklyn. However, most protestors arrested in New York City are charged with Desk Appearance Tickets in state court, and are typically charged with some combination of the following crimes: Obstructing Governmental Administration in the Second Degree (Penal Law 195.05, a Class A misdemeanor), Assault in the Second Degree (Penal Law 120.05, felony assault on a police officer, a class D felony), Reckless Endangerment in the Second Degree (Penal Law 120.20, a Class A misdemeanor), Resisting Arrest (Penal Law 205.30, a class A misdemeanor), or Disorderly Conduct (Penal Law 240.20, a violation). (Note: the charge(s) listed on the Desk Appearance Ticket are not necessarily the same as the charges that will appear in court on the actual criminal complaint – in fact, the number of charges usually increases from the Desk Appearance Ticket to the actual court complaint).

Oftentimes, in these cases in which no one was injured, a protester-defendant could – with the help of an experienced attorney – successfully negotiate a plea bargain whereby the protester will have no criminal record and spend no time in jail (such as an “adjournment in contemplation of dismissal or a violation like Disorderly Conduct). In cases involving Desk Appearance Tickets, such negotiations may even be possible prior to the return date (i.e. the first court appearance). However, for reasons relating to principle, many protester-defendants refuse to accept any such deal, preferring to demand dismissal or a trial where their voices can be heard by a jury. Such an attitude is certainly understandable but it does tend to increase the risk of a negative result (such as a permanent criminal record).

Unfortunately, some protests escalate into confrontations with police officers. In those cases, charges like Assault in the Second Degree can sometimes be levied against arrested protesters alleged to have injured police officers. That charge is a serious felony that can carry real jail time, and should not be treated lightly at all. The best defense in these cases is often to argue that the defendant did not act unreasonably, and that any injuries to the police officer were sustained on account of his/her own aggressive or improper actions. In today’s current climate, that argument can have real traction with some jurors.

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In response to the shocking video of the apparent murder of George Floyd at the hands of Minneapolis police officers, people across the country have protested against police brutality and racism. Most of the protesters have been peaceful and well-intentioned, though some have unfortunately used the occasion as an opportunity for violence and looting. Recently, three people were notably arrested and charged in federal court in Brooklyn (the Eastern District of New York) for federal crimes relating to the use of explosive Molotov cocktails against NYPD vehicles. Samantha Shader, a woman from upstate New York, was arraigned on Monday and charged with Causing Damage by Fire in violation of 18 U.S.C. § 844(i). Astonishingly, two New York attorneys – Colinford Mattis and Urooj Rahman – have also been arrested for similar conduct and are presently awaiting their arraignment in federal court on presumably the same charge. It’s an unusual charge to see in federal court, but also an extremely serious one.

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.

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Today, the prosecutors in the case against Lori Loughlin filed with with the court a signed copy of her plea agreement, thereby indicating that Mr. Loughlin intends to plead guilty in connection with the “Varsity Blues” case involving college admissions fraud. (Her actual plea hearing has been scheduled for tomorrow, May 22, via videoconference). The agreement that she has entered into is somewhat rare in federal court, and has certain advantages for her.

Normally, in federal court, when a defendant chooses to plead guilty, he or she enters into a plea agreement with the prosecutors to establish certain terms and parameters for the sentencing. Plea agreements look like contracts and are usually at least five single-spaced pages long. A defendant acknowledges in the document that he/she is pleading guilty knowingly and voluntarily, and that he/she cannot take back the guilty plea once it has been entered before the court at a plea hearing. The agreements usually set forth the minimum and maximum possible penalties for the charged offenses, so that the defendant can acknowledge that he/she understands them. Also, a defendant agrees to plead guilty to certain charges in the indictment, and admits to certain conduct (for example, an amount of money fraudulently stolen, or a quantity of narcotics trafficked) that impacts the sentencing. Then, the parties to the plea agreement (the prosecutor and the defendant) agree to certain other factors (such as the defendant’s role in the offense, for example) that may establish where on the sentencing chart (for the Federal Sentencing Guidelines) that defendant’s sentence is likely to be. But, the agreements explicitly state that the ultimate decision as to the defendant’s sentence will be up to the sentencing judge to determine, based upon these established facts and parameters within the plea agreement, as well as the judge’s own considerations of the defendant and the defendant’s crime.

Here, in Ms. Loughlin’s case, the sentence has already been established by the agreement. This fact makes the agreement quite unusual for federal court, though hardly unprecedented. Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), Ms. Loughlin has agreed to plead guilty to conspiracy to commit mail and wire fraud, and in exchange, she will receive a sentence of two months in prison, a fine of $150,000.00, 24 months of supervised release with 100 hours of community service, and a special assessment of $100. The prosecution also will agree to dismiss the remaining charges against Ms. Loughlin and not pursue any further charges in connection with what it knows about this affair.  This all depends, however, upon the court accepting the agreement and Ms. Loughlin’s guilty plea.

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Strictly speaking, the criminal justice system does not require that victims of crime have lawyers. Prosecutors are responsible for pursuing criminal cases against perpetrators and are generally expected to at least consider the victims’ expectations or hopes regarding the outcome. However, over the years, Matthew Galluzzo (a former Manhattan prosecutor) has represented, advised, advocated on behalf of, and assisted dozens of crime victims in a wide variety of matters – most commonly sexual assault, domestic violence, and fraud. If you or a loved one have been a victim of a crime, you might benefit from a consultation with Mr. Galluzzo for the reasons set forth in more detail below.

  1. Understanding the Process

The criminal justice system can be intimidating for a victim, so much so that many crime victims decline to even make a report or complaint. As a longtime former Manhattan prosecutor, Matthew Galluzzo can answer questions a crime victim might have about the process, including: 1) whether, and how the perpetrator will be arrested, 2) what the perpetrator might be charged with and what penalties he/she would face, 3) whether the crime victim will have to testify, and/or when and how often, 4) whether the crime victim will ever have to confront the perpetrator in court, 5) whether the crime victim’s identity will ever be known to the perpetrator, and 6) what sort of outcome the crime victim might reasonably expect. Many crime victims have found these sorts of consultations with Mr. Galluzzo to be invaluable, in that it relieves some of the stress in the process and helps them decide what course of action to take.

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The Department of Education recently released new policies and procedures for American colleges and universities to follow in investigating allegations of sexual assault and sexual harassment involving its students. Generally speaking, the new policies afford more protections for accused students than were required under the Obama-era Title IX policies, and victims’ rights advocates are already decrying the changes.

The biggest changes in the policy involve 1) granting accused students the right to cross-examine and confront their accusers (though not personally), 2) establishing that the standard of proof for a finding of guilt may be either “clear and convincing” or a “preponderance of the evidence,” (matching civil law standards, generally) , and 3) and redefining the meaning of “sexual harassment” to align with the U.S. Supreme Court’s definition: “sexual harassment” is unwelcome conduct that is “so severe, pervasive and objectively offensive that it denies a person equal educational access.” (Under the Obama administration, sexual harassment was more broadly defined as “unwelcome conduct of a sexual nature.”)

These changes will have a huge impact on Title IX sexual harassment/assault proceedings on college campuses. Previously, in connection with complaints of sexual assault to school administrators, student/complainants would give their version of events (one way or another) during an investigation and/or hearing, and the accused would have the ability to give his/her version of events. However, there would be no confronting of the witnesses by the adverse parties. Moreover, the standard of proof was so low, the administrators so risk-averse and generally sympathetic to victims, and the elements of an actionable offense were so broad that successfully defending against these accusations was exceptionally difficult. As a practical matter, accused students generally lost and were disciplined or expelled. However, many students complained that the trials were akin to the Salem witch trials, with no due process and no real chance to win. Indeed, lawsuits were filed by accused students in federal courts across the country, and so many of them persuaded courts that they had been denied due process during Title IX investigations that these changes by the current administration may have been an inevitable response to the litigation.

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Two men in Rhode Island were recently arrested and charged by federal prosecutors with attempting to defraud the Small Business Administration (SBA) of over $500,000 by purportedly submitting a false application for relief funds earmarked for small business owners through the Coronavirus Aid, Relief and Economic Security (CARES) Act. Given the increasing desperation of many small business owners during the pandemic and quarantine, as well as the significant amount of federal funding being made available, one can expect more such prosecutions to occur in the near future.

According to a Department of Justice press release, David Butziger and David Staveley sought over half a million in forgivable loans for various businesses that either were no longer operating, for which they had no employees, or in which they held no ownership stake. Though they have not yet been indicted, they have been charged by way of criminal complaint Conspiracy to Make a False Statement to Influence the SBA (18 U.S.C. § 371), Conspiracy to Commit Bank Fraud (18 U.S.C. § 1349), and Bank Fraud (18 U.S.C. § 1344[2]). Though it is difficult to estimate the prison penalties they may be facing, a fraud involving $500,000 might put them at an offense level of 18 for purposes of the Federal Sentencing Guidelines. As such, they might be facing a Guideline sentence of 18-24 months in prison following a guilty plea. However, there is no statutory minimum sentence, so they could receive in theory receive probation.

This arrest and prosecution should serve as a serious warning to any small business owners considering submitting false or exaggerated applications. However, it will be interesting to see whether the federal authorities will start making arrests or threatening to prosecute individuals whose applications might contain sloppy mistakes rather than outright falsehoods. Without the assistance of a competent accountant, or with a fluctuating and/or seasonal payroll, one could easily envision a small business owner submitting an “honest” application that raises eyebrows from SBA administrators.

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Federal law enforcement agents from the DEA routinely seize quantities of cash that they suspect to be tied to or derived from narcotics trafficking. Frequently, these seizures happen in conjuncture with the arrests of those in possession of the cash, or pursuant to indictments. But most of the time, agents seize cash – even huge sums of it – without arresting anyone. In those cases, the owners or possessors of that seized cash have some difficult decisions to make.

In these cases, federal law generally requires the agents to send a notice to the person from whom the cash was seized. The person who receives the notice is typically given the opportunity to make a claim for the cash, which includes an explanation as to the source of the cash. This response must be made under penalty of perjury, and can include supplemental documentation from a related business (such as tax returns or bank statements), or sworn statements from other people, among other things. Every once in awhile, the agents return the cash to the claimant based upon the representations made by the claimant, or based upon the evidence demonstrated to the agency. Our attorneys have successfully assisted clients in getting cash returned by federal agents this way.

If, however, the agency refuses to return the money based upon these representations, then they must commence a civil forfeiture action in federal court. The precise procedures for doing so are outlined in 18 U.S.C. § 983. Ultimately, in a civil court proceeding, the federal agency (DEA) must prove by a preponderance of the evidence that the seized cash represents proceeds of illegal activity. This is the civil standard for proof and it is much lower (easier) than the “beyond a reasonable doubt” standard necessary to prove a person’s guilt of a crime.

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