Articles Posted in Current Events in Criminal Law (national)

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Platinum selling rap artist Fetty Wap (real name Willie Junior Maxwell II) was arrested and arraigned on October 29 pursuant to a federal indictment charging him and five other men with Conspiracy to Distribute Narcotics (the other five men were also charged with Use of Firearms in Connection with a Drug Crime). The charges are incredibly serious and Fetty Wap faces very significant jail time.

According to a press release from the U.S. Attorney’s Office for the Eastern District of New York, the rapper and five other men trafficked in significant quantities of heroin, cocaine, and the especially-dangerous drug, fentanyl. The defendants (including Anthony Leonardi, Robert Leonardi, Brian Sullivan, Anthony Syntje, and Kavaughn Wiggins) have all been arrested and detained pending trial. Prosecutors claim to have recovered at least 16 kilograms of cocaine, 2 kilograms of heroin, and fentanyl, though it is certain that they will allege that the group is responsible for far more than that. Indeed, the press release describes the amount of drugs trafficked by the crew as “massive”.

Fetty Wap is unlikely to be released on bail pending trial, though it may be possible given his likely financial resources. However, in federal narcotics cases of this size and scale, the presumption for judges is that a defendant should be detained pending trial. Fetty Wap would have to convincingly demonstrate that he does not pose a risk to the public, and that he would not flee if released on bond. Given his resources (and possible ability to live abroad), the amount of prison time that he is potentially facing, the fact that his codefendants are indicted for using firearms, and the fact that he allegedly trafficked in fentanyl, which is notorious for causing fatal overdoses, it seems unlikely that he will be bailed out pending trial.

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It was recently announced by the New York Attorney General’s Office that disgraced former New York governor Andrew Cuomo would be criminally prosecuted for an alleged groping of a female staffer at the governor’s mansion in Albany. 

Specifically, Cuomo will be charged with one count of Forcible Touching, in violation of Penal Law Section 130.52.* That code makes it a class A misdemeanor to intentionally, and for no legitimate purpose:

1. forcibly touch the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor’s sexual desire;  or
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Yesterday, the Department of Justice announced that its U.S. Attorney’s Office in Manhattan (Southern District of New York) had filed an indictment charging 18 former NBA players and 1 of their spouses with federal crimes relating to the defrauding of the NBA players’ association HRA (health reimbursement account). In short, the alleged mastermind of the crime, Terrence Williams, allegedly recruited former players into his scheme. They allegedly created fake invoices for chiropractic, medical, and dental services that they did not in fact receive, and then submitted those invoices to the HRA for reimbursement for those phony services.  The defendants are charged with violations of 18 U.S.C. § 1341 (wire fraud) and 18 U.S.C. § 1347 (health care fraud), and Terrence Williams also faces a charge of identity theft for bizarrely impersonating a health care plan administrator to try to shake down another player for his kickbacks under the scheme.

Of course some of these players may in fact be innocent. But you can expect the government’s case to be strong here. The prosecutors will probably be able to demonstrate that the medical/dental/chiropractic services detailed in these invoices submitted for reimbursement were not in fact provided. And the government almost certainly has the bank records, phone calls, emails, and text messages showing the transactions between Terrence Williams and the other participating defendants. There are probably several cooperating witnesses as well (i.e. former players who did not participate in the scheme though they were approached about it). So, most of these defendants – if not all of them – are likely to plead guilty. Indeed, the overwhelming majority of federal defendants do.

Sentencing at the federal level is an inexact science.  There is no statutory minimum here, and sentencing judges will look to the federal Sentencing Guidelines for guidance. However, the sentences suggested by those Guidelines are merely advisory, and not mandatory or binding.  In fraud cases, the biggest variable in the Guidelines calculation is the amount of loss (assuming these defendants mostly do not have criminal records already). The defendants will likely be in Criminal History Category I, on the left hand column of the sentencing table provided for by the Sentencing Guidelines.  Their base offense levels for Wire Fraud/Health Care fraud would be six. See U.S.S.G. 2B1.1. But then, you would have to add an additional offense level for the amount of fraud. There is some debate about whether this number should reflect “actual loss” or “intended loss,” which would make a difference here as the intended loss (i.e. the amount of false invoices submitted) was $3.9 million overall, but the actual loss was $2.5 million overall. Theoretically, each member of the group could be held responsible for the entire $3.9 million, as they were co-conspirators in a group effort to defraud the HRA. However, normally, in fraud cases, defendants are held accountable, so to speak, for the amount of money they themselves were actually involved in stealing (though that is not always the case, it is a fuzzy question of foreseeability). Terrence Williams, however, as the mastermind of the scheme, would probably have to add at least 16 levels to his sentencing offense level, in light of his being in charge of the entire scheme. Additionally, “masterminds” or managers of criminal enterprises can have their sentencing levels increased by another four levels. Pleading guilty tends to get a defendant an overall three-level reduction in sentencing offense level, so Terrence Williams could find himself at a suggested Guidelines sentencing range of 57-71 months (offense level 25), or roughly 5-6 years in federal prison.

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The Assimilative Crimes Act, 18 U.S.C. § 13, makes state law applicable to conduct occurring on lands reserved or acquired by the Federal government (as provided in 18 U.S.C. § 7(3)), when the act or omission is not already a crime under Federal law. For example, a person who commits the New York state law crime of Assault in the Third Degree on federal property might actually be prosecuted in federal court for, essentially, a violation of that state crime. The Assimilative Crimes Act could also possibly provide for the prosecution of sexual assault, burglary, and theft cases on federal property, to name a few examples. See e.g. Hockenberry v. United States, 422 F.2d 171 (9th Cir. 1970). See also United States v. Bowers, 660 F.2d 527 (5th Cir. 1981) (child abuse); United States v. Smith, 574 F.2d 988 (9th Cir. 1978)(sodomy); United States v. Johnson, 967 F.2d 1431 (10th Cir. 1992)(aggravated assault); United States v. Griffith, 864 F.2d 421 (6th Cir. 1988)(reckless assault); United States v. Kaufman, 862 F.2d 236 (9th Cir. 1988)(assault); Fesler v. United States, 781 F.2d 384 (5th Cir.), cert. denied, 476 U.S. 1118 (1986)(child abuse).

Finally, it should be noted that although many crimes can be prosecuted in both state and federal court without violating the principle of Double Jeopardy, a state law crime prosecuted in federal court via the Assimilative Crimes Act cannot also be prosecuted in state court. See Grafton v. United States, 206 U.S. 333 (1907).

If you or a loved one have been arrested and charged with a crime occurring on federal property in the New York City area, you should strongly consider contacting the Law Office of Matthew Galluzzo PLLC. Many defense attorneys know state law but are unfamiliar with the unique procedures of federal practice. Matthew Galluzzo, however, is a former Manhattan state prosecutor with over twenty years of experience who now specializes primarily in the defense of federal crimes. Give him a call to discuss your case and his possible representation of you.

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In federal court, the sentences for narcotics trafficking can be quite severe. The maximum and minimum penalties are generally contained in 21 U.S.C. Section 841. The Federal Sentencing Guidelines also help predict a likely outcome for a federal narcotics case. Generally speaking, the charges normally can be divided into three subsections of the law: 21 U.S.C. Section 841(b)(1)(A) provides for a ten year mandatory minimum sentence, 21 U.S.C. Section 841(b)(1)(B) most provides for a five year mandatory minimum sentence, and 21 U.S.C. 841(b)(1)(C) has no mandatory minimum sentence. However, those penalties can change significantly if a person overdoses or dies as a result of the drug at issue, and if the convicted seller has a prior conviction for selling narcotics.

For example, if a person is convicted in federal court of selling even a small amount of drugs, and one of his customers dies from an overdose, the minimum penalty immediately becomes 20 years. If the convicted person also has a prior conviction for selling narcotics, that person may face a life sentence for having sold drugs that results in an overdose.

These cases can certainly be defended against at trial. It can be difficult for prosecutors to prove which drugs a deceased person may have consumed, who they purchased them from, or whether the drugs were actually responsible for the person’s death. However, these cases are extremely serious and should be defended by an attorney with experience in these matters. Matthew Galluzzo, a federal criminal defense attorney and former Manhattan prosecutor, has defended individuals accused of trafficking narcotics resulting in death. If you or a loved one are facing federal charges relating to narcotics, you should strongly consider contacting him to discuss his possible engagement.

 

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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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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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