Published May 12, 2017 by

Charging and Sentencing Guidelines to Federal Prosecutors

Attorney General Jeff Sessions guided Department of Justice with respect to charging and sentencing policy through May 10, 2017 Memorandum.  Memo directs prosecutors to “charge and pursue the most serious, readily provable offense.”  Memo defines most serious offense as one that carries “the most substantial guidelines sentence, including mandatory minimum sentences.”  Deviation from directive would require approval “by a United States Attorney or Assistant Attorney General, or a supervisor designated by the United States Attorney or Assistant Attorney General, and the reasons must be documented in the file.”  Memo further directs prosecutors to stock to 18 U.S.C. § 3553 guidelines for sentencing.  The memo still leaves open flexibility of application of “most serious” rubric on case by case basis.  Nonetheless, the guidance may be a useful tool during Deferred Prosecution / Non-Prosecution Agreement negotiation. Memorandum is published at the following DOJ link: https://www.justice.gov/opa/press-release/file/965896/download

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Criminal Law

Sentencing U.S. Federal

Published October 24, 2016 by

Justice, Hackers, and Extradition

DOJ’s recent news release about Yevgeniy Nikulin, a visitor to Czech Republic from Russia, adds a new country to Mr. Nikulin’s travel itinerary: the United States of America.  Instead of a tourist visa, the document allowing the U.S. visit would be a grand jury indictment for allegedly hacking computers of LinkedIn, Dropbox and Formspring.  List of countries with which the United States has extradition agreements is a public information, freely available to anyone, and codified under 18 U.S.C. § 3181.  Unofficial, but more colorful version is also available on Wikipedia.  Russian Federation is not on the list.  But, Czech Republic extradition history with the U.S. goes back to 1925.  Recent confirmation of US-Czech extradition friendship is Treaty Doc. 109-14 (Agreement to ensure conformity with U.S.-EU Extradition Treaty), placed Czech Republic. Perhaps, more interesting are the the charges that Mr. Nikulin faces, because these apply to anyone (within and without U.S.).  According to the indictment, these are: 18 U.S.C. §§ 371, 1028A(a)(1), 1029(a)(2), 1030(a)(2)(C), 1030(a)(5)(A). Fraud and related activity in connection with computers 18 U.S.C. § 1030(a)(2)(C)  states: Whoever— * * * intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains— * * * information from any protected…

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Criminal Law Legal Profession

18 USC 1028A 18 USC 1029 18 USC 1030 18 USC 3181 18 USC 371 U.S. Federal

Published October 21, 2016 by

DOJ’s HR Antitrust Guidance

Now human resources professionals are officially guided by Justice to refrain from certain acts when competing for talent.  October 2016 Guidance provides pointers which include employer agreements: Not to recruit certain employees; Not to compete in terms of compensation; Boycotting temporary employees; Fees and terms of compensation for contractors. Guidance cites enforcement actions on entities that came under its radar, including: Arizona Hospital & Healthcare Association, eBay, Intuit, Lucasfilm and Pizar, Adobe, Apple, Google, Intel, Intuit, Debes, Council of Fashion Designers of America.  According to Justice, these entities entered into agreements that violate Sherman Antitrust Act.  The guidance does not stop at “agreements”, but goes further to proscribe “sharing sensitive information.” Even if an individual does not agree explicitly to fix compensation or other terms of employment, exchanging competitively sensitive information could serve as evidence of an implicit illegal agreement.  

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Criminal Law Employment Law

Antitrust U.S. Federal

Published October 17, 2016 by

Driving someone’s car with suspended registration in New York

Consider a following hypothetical.  You are in New York.  Your friend or someone you know hands you the keys and asks you to drive giving you any reason (e.g. “I had some drinks”).  As a conscientious fellow human being, you take the keys and get behind the wheel.  Then, police pulls you over and issues you an appearance ticket / summons for driving a vehicle for which the registration has been suspended.  You explain the officer that this is not your car and you had no way of knowing (registration sticker on the windshield shows that the status is current).  Officer politely places the appearance ticket in your hands and even more politely asks you to explain this to the judge.  You look at the ticket, you look at the person who gave you the keys, and ask yourself “what is going on”!?  The person who gave you keys just recalls that she did not pay for car insurance in light of current global financial crisis, causing the insurance company to report to DMV, which in turn suspended the registration.  You probably still wonder what is going on.  Well, police officer and the person who asked you to drive a…

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Criminal Law

CPL 1.20 CPL 100.10 CPL 100.25 CPL 150.10 CPL 170.30 CPL 170.35 CPL 170.55 New York State NYPL 15.15 U.S. Constitution VTL 511 VTL 512

Published October 16, 2016 by

Judge or Hearing Officer?

Folks that receive “appearance ticket” may come to the part of the criminal court (e.g. part AR2 in Queens) where Judicial Hearing Officer (JHO), rather than the Criminal Court Judge will be presiding.  Court personnel would ask one to fill out consent to adjudication before a judicial hearing officer, such as Form CRC 3063-4.  Procedure and laws are the same as in other parts before judge, but pace is a bit faster.  Court attorneys, who assist judge, are very helpful in suggesting how to proceed, because of their regular presence in the courtroom before that judge.  Sometimes, however, the outcome before JHO may not be desirable for defendant.  For example, defendant may prefer to engage in the plea bargaining with assistant district attorney (ADA), who is probably not present in JHO’s courtroom, but is present in criminal judge’s courtroom.  This designed JHO-Judge system allows flexibility for defendant to present its case to JHO, but also to ask JHO for a transfer to criminal judge for hearing (e.g. part AP2 in Queens).  This should be a great news for the defendant who is in a tough spot and would like to explore plea bargaining possibilities before the trial with ADA.

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Criminal Law

Diversion New York City

Published October 15, 2016 by

New York City’s Criminal Court Appearance Ticket Critique

Form CRC-3206 is a commonly used form utilized by New York City Police Department (NYPD) to summon individuals charged with crimes (mostly misdemeanors) and violations.  NYPD Officer would usually give part of CRC-3206 packet called “Appearance Ticket” directing individual to appear in court on certain time and date.  Front side of the Appearance Ticket would list a title of the offense with a brief details about the place and statements (if any).  Back side of the Appearance Ticket provides two step instructions generally, and mail pleading instructions for public consumption of alcohol and public urination charges.  While most folks take form CRC-3206 for granted, review of the form against standards under Criminal Procedure Law (CPL), New York Codes, Rules and Regulations (NYCRR), and Vehicle and Traffic Law (VTL) casts a shadow on current version of CRC-3206.  (NYPD’s uses CRC-3206 dated 1/16, however the “appearance ticket” part is the same as 7/15 version). Criminal Procedure Law (CPL) Art. 150 prescribes legal requirements applicable to appearance tickets.  CPL § 150.10(2) requires appearance ticket to “contain the language, set forth in subdivision four of section 100.25, notifying the defendant of his right to receive a supporting deposition.”  The appearance ticket does not contain…

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Criminal Law

15 NYCRR 122 CPL 1.20 CPL 100.10 CPL 100.25 CPL 100.40 CPL 150.10 CPL 170.30 CPL 170.35 New York State VTL 1807

Published February 25, 2016 by

Transactional Records Access Clearinghouse (TRAC) by Syracuse University

Syracuse University manages a useful and practical database – trac.syr.edu (a.k.a. TRAC) – informing public about statistical elements of law enforcement.  For example, immigration practitioners may find a useful information about asylum denial rates by individual immigration judges across the country.  Potential criminal defendants can get understanding of potential charges that prosecution can bring for unlawful federal activities.

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Criminal Law Immigration Law

U.S. Federal

Published June 28, 2015 by

Good News For Banks, Bad News for Lawyers

It should be no news to attorneys in general, and to New York attorneys in particular, that a new breed of crooks has been trying to take a foot hold in profiteering on lawyers who place their trust before client verification.  Plenty of articles has been written on this subject, plenty probably will be written.  For the shear volume of literature on subject one can just type “attorney scams” in the google search engine.  The point of this article is not to rewrite what is generally known, but to rather bring up a different angle on these developments. This law firm has been targeted by similar solicitations.  Brief communication with alleged client revealed many red flags: Use of a common domain name in the email (e.g. @outlook.com or @outlook.jp) Receipt of mail from different overseas locations Inconsistent signatures Inconsistent responses Claims (for breach of contract) addressed to satellite stores, not the headquarters Information of evidence of alleged payment not matching the information stated on the alleged wire transfer and other transaction documents In other words, it is the basic attention to details that should place a reasonably prudent attorney on alert.  The unfolding story is usually the same for all. …

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Criminal Law Legal Profession

New York State

Published April 17, 2015 by

Local Troubles in the U.S. Result In Loss of Freedom to Travel Internationally

In Eunique v. Powell, 9th Circuit concluded that passport denial, and therefore, freedom of international travel that comes with it, does not violate Fifth Amendment Due Process and Equal Protection rights for folks who don’t pay child support.  2d Circuit said the same in Weinstein v. Albright.  What about other reasons, including those where local government makes criminal accusations against you, and you decide to skip the court.  Well, usually skipping the court appearance would result in a warrant.  Warrant, in turn, can result in difficulties of one’s travel internationally using U.S. passport.  U.S. State Department has a regulation for that occasion under 22 C.F.R. § 51.60 which says: The Department may not issue a passport, * * *, in any case in which the Department determines or is informed by competent authority that: * * * The applicant is the subject of an outstanding state or local warrant of arrest for a felony; * * * So 22 C.F.R. § 51.60 applies to folks that are applying or reapplying for U.S. passport.  For those U.S. citizens that already have U.S. passport, State Department has the following protocol handy: The Department may revoke or limit a passport when: * * * [t]he…

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Criminal Law

U.S. Constitution U.S. Federal

Published November 19, 2014 by

Failure to Release Some Criminal Defendants Solely for Immigration Reasons Violates U.S. Constitution

New York Supreme Court in Brooklyn considered the legality of practice by NYC Department of Corrections continued detention of defendants – based on a civil immigration detainer – notwithstanding the fact that defendant could be released for criminal charges.  People Ex Rel. Swenson v. Ponte, 2014 NY Slip Op 24304 (Oct. 15, 2014).  Interpreting law (8 U.S.C. § 1357(d)) and regulation (8 C.F.R. § 287.7) governing the use of immigration detainers, the Court concluded that the local law enforcement agency is not required to detain anyone.  Court cited NYC Administrative Code § 9-131 (“The department shall not honor a civil immigration detainer by: holding an individual beyond the time when such individual would otherwise be released from the department’s custody, except for such reasonable time as is necessary to conduct the search specified in paragraph two . . .”).  Acknowledging that NYC Administrative Code can give way (be preempted) by State and Federal laws, the Court went further to the Supreme Law of the Land.  Citing Fourth Amendment, Court began looking for probable cause.  Court found no probable cause to exist because (1) Department of Homeland Security (DHS) removal order; (2)  DHS’ reason to believe that a person is subject to removal;…

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Criminal Law Immigration Law

Immigration and Nationality Act New York City New York State U.S. Constitution U.S. Federal