Matthew Galluzzo

Published on: April 3, 2023

What is a gag order and what happens when Trump violates it?

Now that Trump has been indicted in Manhattan (New York County) for alleged crimes relating to the falsification of business records, some experts have hypothesized that the judge overseeing the case will order a pre-trial gag order over the parties – including the prosecutors, the defense attorneys, and the famous defendant himself, ex-President Trump. This post discusses the legal issues surrounding a gag order and the practical implications of it in this case.

A gag order basically instructs a party to a litigation to refrain from speaking publicly about the case. A New York judge overseeing a criminal case has the power to issue a gag order over one or more of the parties to the case. Gag orders are relatively rare, however. They certainly are not done as a matter of routine. The Constitution guarantees the right to free speech, after all, and courts are generally loath to abridge those rights. However, gag orders may be necessary to protect other valuable rights under the Constitution, such as the right to a fair trial (contained in the Sixth Amendment of the Bill of Rights), as well as the all-important “true administration of justice”.

Sometimes defense attorneys ask courts to order prosecutors not to talk about their clients’ cases publicly for fear that they would prejudice any potential jurors. For example, the attorneys for Ghislaine Maxwell – convicted in Manhattan federal court of assisting notorious sex trafficker Jeffrey Epstein – contended that the federal prosecutors had tainted potential jurors by hosting press conferences in which they laid out the facts of their case. Ultimately that application for a gag order was denied, but the federal judge did admonish the attorneys to adhere to the rules of professional conduct for lawyers, which generally prohibits attempts to unfairly influence juries (or potential juries) outside of the courtroom. After all, the paramount rule of trials was explained by Justice Holmes in 1907: “The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether private talk or public print.” Patterson v. Colorado, 205 U.S. 454, 462 (1907).

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Published on: April 3, 2023

Galluzzo appears on NPR Morning Edition to discuss the Trump indictment.

By Matthew J. Galluzzo

On March 31, Matthew Galluzzo – a criminal defense attorney and former Manhattan prosecutor – appeared on NPR’s Morning Edition with host Sacha Pfeiffer to discuss the new Trump indictment in New York County. A link to his interview is available here.

Published on: October 20, 2021

Arrest of Connecticut State Rep. Michael DiMassa on federal wire fraud charges

By Matthew J. Galluzzo

Today, the U.S. Attorney’s Office for the District of Connecticut announced the arrest of Democratic State Representative Michael DiMassa for allegedly defrauding over $600,000 from the city of West Haven. The federal wire fraud charges carry a maximum penalty of 20 years in prison.

According to a press release from the prosecutor, Mr. DiMassa supposedly formed an LLC with another person and used that LLC to bill the City of West Haven for consulting services that were not in fact provided. Allegedly, Mr. DiMassa made withdrawals from the LLC at about the same time he made large chip purchases at Mohegan Sun casino. One might suspect the government to argue that Mr. DiMassa’s fraud was the result of a gambling addiction.

Of course, nothing has been proven as of yet. But if Mr. DiMassa is in fact convicted of wire fraud for allegedly stealing $600,000, he is likely looking at a Federal Sentencing Guidelines range of between 33 and 57 months. In federal cases, crimes have minimum and maximum penalties, but judges use an advisory system called the Federal Sentencing Guidelines to narrow down the sentencing range. Those guidelines give defendants and attorneys an idea of what to expect at sentencing, but are nevertheless just approximations. This table provides the guidance.

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Published on: May 21, 2020

Understanding Lori Loughlin’s plea agreement

By Matthew J. Galluzzo

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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Published on: June 11, 2018

Federal criminal charges for lying to a federal agent (18 USC § 1001)

By Matthew J. Galluzzo

Most people do not realize that it is a federal crime to lie to a federal law enforcement agent. However, 18 U.S.C. § 1001 makes it a federal felony, punishable by up to five years in prison (or 8 years for a case involving terrorism), to “knowingly and willfully falsify, conceal, or cover[] up any trick, scheme or device a material fact… or make[] any materially false, fictitious, or fraudulent statement or representation” in regards to a federal law enforcement investigation. It also prohibits the knowing and willful making or using of any “false writing or documents containing the same to contain any materially false, fictitious, or fraudulent statement or entry.” Thus, for example, a criminal suspect who lies when questioned by an FBI agent can be guilty of a serious crime, even if that suspect is not actually guilty of the underlying crime for which he was being investigated. This situation often arises when people who have received subpoenas from law enforcement agents unfortunately sometimes agree to speak with agents or prosecutors but then make statements that those agents later discover to be untrue.

Most of the time however, people accused of this crime are frequently also charged with other crimes, too. For example, this charge is frequently brought against those who lie to U.S. Customs officials about their possession of cash, in conjunction with a charge of 31 USC § 5361(a)(1)(A). It is also common in health care fraud matters for a defendant to be charged with violating both 18 U.S.C. § 1035 – making false statements relating to health care matters – as well as 18 U.S.C. § 1001. In any case, the additional charge for making false statements may not be as serious as the underlying crime for which the defendant was originally investigated, but the fact that the defendant lied to law enforcement can be viewed as an “aggravating factor” by the judge at sentencing, meaning that it could seriously increase the ultimate sentence that the defendant will serve.

Though the maximum possible statutory penalty for this offense is five years in prison, pursuant to the Federal Sentencing Guidelines, the base offense level for this crime is 6. This base offense level means that a person convicted of this crime (and this crime alone) is more likely to receive a sentence of between 0 to 6 months in prison.

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Published on: June 11, 2018

Federal criminal charges for assault on an airplane

By Matthew J. Galluzzo

Delayed flights, crowded airplanes, rude people, and stressful rides to the airport can make airline travel particularly stressful. Sometimes, rude flight attendants or passengers fueled by alcohol can cause tempers to flare, and physical fights sometimes erupt during the flight. These fights or disputes can result in federal criminal charges, as “the special maritime jurisdiction” of federal courts applies to airplanes coming into the United States or traveling across state lines.

Federal assault charges can apply to any person who causes an offensive physical touching to another person on the airplane. Certainly, that can apply to physical violence, but it might also apply to unwanted sexual touching of another person as well. Assaulting another person on an airplane is normally a petty offense under federal criminal law, pursuant to 18 U.S.C. § 113(a)(5). (Those accused of sexually assaulting others on airplanes can also be prosecuted with the more serious felony charge of 18 U.S.C. § 2244(b), however, and attempts to maim or murder can be prosecuted as felonies, as well). That means that the crime is a misdemeanor with a maximum prison penalty of six months and/or a fine of $5000.00. Also, it means that the defendant is not entitled to a jury trial. Instead, the defendant must have his case tried by a federal magistrate judge.

Locating and interviewing witnesses in these cases is of paramount importance to the defense. Occasionally, shaky cell phone video footage might be available of the incident or dispute, and it may actually vindicate the accused person. Sometimes defendants have even acted unknowingly or unintentionally, by virtue of intoxicated or sleep disorders, and such defense should be explored and developed if applicable.

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Published on: June 4, 2018

Federal sentencing success for G&A client

By Matthew J. Galluzzo

The Law Office of Matthew Galluzzo 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 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.

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Published on: May 31, 2018

Federal criminal charges under 18 USC 2423 (illegal sex and travel)

By Matthew J. Galluzzo

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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Published on: May 31, 2018

Understanding the Weinstein indictment and the next steps in the case

By Matthew J. Galluzzo

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.

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