Articles Tagged with Galluzzo & Arnone

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Galluzzo & Arnone recently earned an excellent result for our client in Brooklyn federal court (the Eastern District of New York). Our client was originally arrested at JFK Airport in 1990 and charged with lying to a U.S. Customs agent about a significant amount of cash that he had in his possession at the airport. Federal prosecutors indicted him for two criminal charges related to this deception, in violation of 31 USC 1536(b) and 18 USC 1001. However, rather than return to court and defend himself, he returned to his home country and remained there for the next 28 years (note: he was not our client in 1990). Later, in 2018, he attempted to come back to the United States to visit his family but was arrested at the airport pursuant to a 1990 warrant for failing to appear in the Brooklyn federal court as required.

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 Galluzzo & Arnone 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.

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18 USC Section 2423

Federal criminal law prohibits a wide range of activities relating to transporting people and/or traveling across state lines or internationally for the purpose of engaging in illegal sexual activity. Specifically, 18 U.S.C. § 2423 prohibits four types of activities and carries very severe penalties.

First, 18 U.S.C. § 2423 makes it a felony punishable by a minimum of 10 years in prison (and by as much as life in prison) to “knowingly transport[] an individual who has not attained the age of 18 years in interstate or foreign commerce… with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense.” This provision obviously applies to those engaging in the human trafficking of underage prostitutes, and also potentially applies to an adult who drives or attempts to drive a minor across state lines so that he or she can have sex with that minor in another state. It could also apply to people who purchase bus or plane tickets for minors to travel into the U.S. or across state lines for the purpose of engaging in illegal sex.

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Understanding the Weinstein indictment and the next steps

According to numerous reports, Harvey Weinstein has been indicted on charges of Rape in the First Degree, Rape in the Third Degree, and Criminal Sexual Act in the First and Third Degrees. The first-degree charges are Class B violent felonies, meaning that they are punishable by a minimum of 5 years and a maximum of 25 years in prison. Rape in the First Degree (Penal Law Section 130.35) applies to cases in which defendants allegedly use forcible compulsion (physical force or the threat of physical force or harm) to engage in non-consensual vaginal intercourse. Criminal Sexual Act in the First Degree (Penal Law Section 130.50) applies to cases in which the defendants have allegedly used forcible compulsion to non-consensually penetrate mouths or anuses with their penises. (Thus, the distinction between “Rape” and “Criminal Sexual Act” under New York criminal law is the orifice being penetrated.) The third-degree varieties of these charges most commonly are applied in situations where a person is “incapable of consent,” meaning physically helpless (i.e. asleep or intoxicated). These third-degree charges are Class E felonies without mandatory minimum prison sentences.

It should come as no surprise that Weinstein was indicted given that he was arrested and preliminarily charged with these same crimes. Indeed, an indictment by the grand jury was basically a sure thing once the decision to arrest Weinstein was made. Weinstein could have testified before the grand jury in his own defense but that would have been a tactical mistake. A grand jury presentation in a case like this normally involves a prosecutor simply calling the complainant to testify under oath before the grand jurors about the crime. A defendant being indicted (for any crime, not just rape and sexual assault) does not get to listen to the witnesses testifying against him in the grand jury, nor does his attorney have the right to cross-examine those witnesses or make arguments to the grand jury. However, by testifying before the grand jury, Weinstein would have subjected himself to being cross-examined by a prosecutor under oath. That decision would have locked him into a version of events that he could not later modify or correct for trial. Equally problematically, it would have given the prosecutor an opportunity to hear Weinstein’s trial testimony prior to trial. This would have afforded the prosecutor months (or maybe even years) to prepare a scathing cross-examination for trial after having a “practice round” with him in the grand jury. Given that the odds of prevailing at the grand jury are normally terrible for a defendant – and probably especially so for Weinstein given the publicity surrounding his situation – there was realistically very little for Weinstein to gain from testifying before the grand jury. Most defendants understandably decline to do so.