Archive for the ‘Current Events in Criminal Law (national)’ Category

PENAL LAW 220.77: Operating as a major trafficker or “kingpin”

Tuesday, May 19th, 2015

Operating as a major trafficker – NY’s “Kingpin” statute (Penal Law Section 220.77)

A few years ago, the New York Assembly enacted into law a tough new statute designed to increase the penalties for major narcotics traffickers or managers of drug trafficking organizations. Penal Law 220.77, oftentimes referred to as New York’s “kingpin statute,” makes it a Class A-1 felony offense to

  1. act as a director of a controlled substance organization during any period of twelve months or less, during which period such controlled substance organization sells one or more controlled substances, and the proceeds collected or due from such sale or sales have a total aggregate value of seventy-five thousand dollars or more; or
  2. as a profiteer, knowingly and unlawfully sell, on one or more occasions within six months or less, a narcotic drug, and the proceeds collected or due from such sale or sales have a total aggregate value of seventy-five thousand dollars or more; or
  3. as a profiteer, knowingly and unlawfully possess, on one or more occasions within six months or less, a narcotic drug with intent to sell the same, and such narcotic drugs have a total aggregate value of seventy-fie thousand dollars or more.

Notably, the statute sets forth especially severe penalties, even when compared to other Class A-I narcotics-related offenses. A person convicted of this offense – even one with no prior record – faces an indeterminate prison sentence anywhere from 15 years to life or 25 years to life.

Interestingly, it should be noted that under New York law, there is a big difference between controlled substances and narcotic drugs. Controlled substances include most every drug, but a narcotic drug is heroin and cocaine.

In calculating the values of the drugs, obviously a qualified police officer can attest to the average street value; in many cases however undercover officers purchase the drugs from the defendants or their associates, so the amount of money that was spent is the proof of the value of the drugs.

These cases typically arise after long-term investigations involving undercover police officers and police informants.  Oftentimes wiretap and other forms of electronic surveillance play a prominent role in developing these cases as well.

Defending these cases effectively regularly requires strong challenges to search warrants and electronic surveillance or “eavesdropping” warrants. Also, defense attorneys can sometimes effectively argue that although trafficking of narcotics may have in fact occurred, their particular clients played a minor or negligible role in the criminal enterprise.

One notable recent “kingpin charge” case in the news involved the arrest of several members of an organization allegedly in possession of over $2 million worth of heroin (70 kilograms).

If you or a loved one have been arrested for a major trafficking or “kingpin” charge, you should strongly consider contacting the experienced criminal defense attorneys at Galluzzo & Johnson LLP. Their team of former Manhattan prosecutors has worked on several cases involving major traffickers with an outstanding record of success.

Robert Durst: Is his confession admissible? Analyzed by a defense attorney and former prosecutor

Tuesday, March 17th, 2015

Robert Durst HBO Confession – Would it be admissible?

 

In a captivating HBO television episode, Robert Durst, long a suspect in several homicides, apparently confessed –unwittingly, perhaps – by muttering to himself in the bathroom while wearing a live microphone. Durst was promptly arrested by police and is currently facing extradition to California to face charges in connection with a murder in Beverly Hills.

The question currently being debated amongst lawyers in the media is whether this recorded audio confession would be admissible against Durst in a trial for the Beverly Hills murder of Ms. Berman. The short answer is yes, probably.

In order for the prosecution to use evidence against a defendant, a proper evidentiary foundation has to be established. So, in this case, the prosecution would first have to demonstrate that the recording was authentic, meaning that it was in fact what it purported to be (i.e. a recording of Mr. Durst’s voice taken while he was in the bathroom). Witnesses would have to testify as to how the recording was obtained and how it was handled prior to being played in court. It is seemingly safe to assume that this foundation could be established without too much trouble.

Out-of-court unsworn statements are also assumed to be inadmissible unless they fit into one of the “hearsay exceptions”. There are a multitude of possible exceptions to the hearsay rule, but here, the statement clearly falls within the category of a “statement against penal interest,” meaning that it tends to incriminate the person who made the statement. Accordingly, there would not be any hearsay problem with the admissibility of the statement.

The biggest question in this case, however, is whether this statement was obtained in violation of Mr. Durst’s constitutional rights. American courts apply a principle called the “exclusionary rule” which holds that any evidence obtained (including statements taken) in violation of a defendant’s constitutional rights cannot be used against him at a trial. The exclusionary rule exists to prevent police officers from engaging in unlawful conduct, and to protect the constitutional rights of citizens. Thus, prior to any evidence of statements being presented to a jury, a judge is tasked with screening the proffered evidence in a pre-trial hearing to determine whether it was lawfully obtained.

Most problematically for Durst is the fact that this evidence was not obtained by police officers. The exclusionary rule is designed to prevent government agents from violating the constitutional rights of citizens, but does not apply to private actors. For example, police cannot search a suspect’s house without a warrant and then use the illegal evidence that they found inside – it would be “fruit of the poisonous tree” of their illegal conduct. On the other hand, if a private citizen voluntarily and without coordination with the police decides to search his neighbor’s house and find evidence therein, that evidence could be used by police against the neighbor.

The lines get blurred when private actors are working in coordination with law enforcement. If Robert Durst’s attorneys could show that the journalists from HBO were deliberately and consciously working with police pursuant to a coordinated plan to obtain a confession from Durst during the television interview process, then maybe the attorneys could establish that those HBO journalists were acting as “state actors” for purposes of admissibility analysis, meaning that the constitutional limitations would apply to their conduct. Normally, though, the threshold showing for “state action” is very high, and I seriously doubt that the amount of coordination required for a private actor to be considered a “state actor” is going to be shown to have existed in this case. Without a finding of state action, there would simply be no problem with the admissibility of this confession.

As an illustration of this state actor concept, consider Batman in the movie “Batman Begins.”  At the beginning of the movie, Bruce Wayne buys some fancy vigilante gear and runs around catching criminals and delivering them to the police in handcuffs. The police have no idea who Batman is or how to get in contact with him. Batman, at this point, is not a state actor because he is not working with the police, he is working on his own. As such, any evidence obtained by Batman against the defendants “in violation of the U.S. Constitution” would still be admissible in court proceedings against those defendants (assuming the proper evidentiary foundations could be laid by Batman as a testifying witness). Later, however, Commissioner Gordon installs the Batsignal on the roof of the police precinct and asks Batman for help in catching the Joker. At this point, Batman is a state actor, which means that any confessions elicited by Batman from the Joker in violation of Joker’s constitutional rights would hereby be inadmissible at a later trial. Thus, the question for Robert Durst would be: were the HBO journalists acting more like Batman at the beginning of the movie (pre-Batsignal) or more like Batman at the end of the move (post-Batsignal)?

An interesting case that provides an example of this “state actor” analysis in the television context is Fisk v. Letterman, a civil rights case in which David Letterman’s alleged stalker claimed that producers from CBS conspired with police to deprive the stalker of her constitutional rights.

Even if Durst’s attorneys manage to convince a judge that the HBO journalists were acting as state actors, the next question would be: did they do anything in violation of Durst’s constitutional rights? This would again be a very difficult argument for Durst’s attorneys to win. To be sure, there have been some cases in which police officers were able to obtain recordings of conversations by suspects using elaborate recording and long-range microphonic technology, and the statements obtained in that manner were deemed inadmissible because they were obtained in violation of the suspects’ “reasonable expectation of privacy”. See U.S. v. Silverman. However, notwithstanding the fact that Durst apparently forgot that he was wearing a live microphone in the bathroom, there was nothing surreptitious about this recording. Durst wore a microphone for every interview and watched the journalists pin the microphone on him. There is also some evidence that the producers had to previously remind Durst not to forget to take his microphone off before walking away from interviews. Durst should have known that he might have been wearing a live microphone when he uttered the incriminating statements. But at the end of the day, the question is not whether Durst said something stupidly and clumsily, but whether the “state actor” journalists acted unfairly. That’s basically an impossible argument for Durst’s attorneys to make successfully.

Noah Feldman, a professor at Harvard Law School, has opined that the statements would be inadmissible because they “were more prejudicial than probative.” It is true that judges have to engage in that analysis before deciding whether to admit a piece of evidence. However, this argument for inadmissibility is basically just absurd. In a nutshell, the argument is that because Durst confessed to committing multiple murders, it would be unfair to present this statement to a jury in a trial concerning just a single murder. Put another way, a jury is not supposed to hear about uncharged crimes not presently being considered by the jury, and this confession logically implicates him in more crimes than would be at issue. On the other hand, the probative value of this confession is clearly enormous: HE IS CONFESSING TO MURDER IN A MURDER CASE. Thus, the argument by Prof. Feldman is essentially 1) that it’s unfair to Durst to use a completely voluntary and damning confession against him because his confession was so breathtaking in its scope, and 2) that a confession to murder shouldn’t be presented to a jury because the confession doesn’t mean that he committed murder. With all due respect to Professor Feldman: that argument sounds good in lofty academia but would get you laughed out of any real courtroom in America. Also, to limit the prejudice against the defendant, a judge could (and would) give a limiting instruction to the jury explaining that they were not to consider the possibility that he had committed other crimes. This instruction seems illusory in some ways but it is routinely used in situations like this to solve these sorts of issues for purposes of appeal.

The author of this post, Matthew Galluzzo, is a criminal defense attorney and former Manhattan prosecutor currently defending someone against homicide charges in a case in which the purported victim’s body was never found.

 

 

 

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Understanding the criminal laws at issue in the DSK trial in France

Tuesday, February 10th, 2015

Former International Monetary Fund chief Dominique Strauss-Kahn is charged with “aggravated procurement” for his alleged role in a French prostitution ring, facing up to 10 years to life imprisonment and a 1.5 million euros fine.

The facts go back to 2012 when DSK – as he is widely known in France – was taking part in several parties held in hotel rooms all over the world (Lille, Madrid, Vienna, but also New York and Washington), where prostitutes were paid to sleep with the participants. The two week trial, which started on Monday, February 2nd, 2015, before a French court, involves no less than fourteen defendants.

In addition to the political and media tumult, this case is raising numerous legal issues.

DSK is facing charges of “proxénétisme aggravé”, which has been widely referred to as “pimping” but can more accurately be translated to “procurement” ; or more specifically in the state of New York to “promoting prostitution”, as stated under section 230.15 of the NY State Penal Law.

Prostitution is not illegal in France, but only so long as it remains a strictly personal choice and an individual activity. Neither having sex in exchange for a fee nor patronizing a prostitute are forbidden, but soliciting is.

Any form of coercion, procurement or organization is illegal. A parallel can be made to the laws of states in which marijuana is “legalized”: growing and possessing marijuana for one’s own consumption is allowed, but selling it or organizing a network of users would be illegal.

Furthermore, the definition of “proxénétisme” and assimilated offenses – articles 225-5 and following of the Penal Code – is very broad. It encompasses the act of “pimping” in the most common sense – employing prostitutes and taking a cut from their earnings – but also every act that would encourage prostitution, including unclear links to prostitution. As an example, even the spouse of a prostitute can be charged with this offense if he or she unable to justify his or her means, or merely by sharing life expenses. More surprisingly, a customer who would recommend his favorite prostitute and give her or his number could fall under the scope of the law too.

Additionally, this offense does not even require a venal aspect, and the lack of any financial profit from prostitution does not prevent a court from charging someone. A mere assistance, putting two persons in contact, providing a location, or any profit of any kind, is enough under this law.

It clearly seems that the level of involvement is different for each defendant, as some are being charged with a more traditional form of procurement (e.g. the notorious pimp Dominique Alderweireld – aka Dodo la Saumure), and some being only linked to the prostitution ring for their remote assistance or unclear profit, such as is the case of the charges being leveled against DSK.

Finally, under French criminal law, offenses are said to be aggravated when they are committed under certain circumstances which are considered to worsen the offense, therefore increasing the maximum sentence. In this case, the offense is said aggravated because it was committed in a group, involving different perpetrators acting as authors and/or accomplices.

These rules combined thus explain the charges of “proxénétisme aggravé”.

Assuming that these charges are accurate under French law, the next obvious question is whether they are typically brought, or whether they hide a political motive of the prosecutors or courts.

When taking a look at the number of defendants and the breadth of the network, it definitely appears it could be organized prostitution and procuring. Nonetheless, with regard to DSK alone, the facts seem to be a mere customer case, and that is the reason why the prosecution was calling for a dismissal of his case.

One of the particularities of this case is that some of the other defendants were the ones organizing the parties and paying for the prostitutes. DSK is not alleged to have ever paid the women with whom he had sex. This particularity can lead to two different outcomes.

DSK does not deny having had sex with women at these parties, but he claims that he did not know at the time that they were prostitutes. If the prosecution, who bears the burden of the proof, does not manage to establish this knowledge, DSK cannot be convicted of procuring because this offense requires a showing of intent. Proving he did not know is obviously more difficult since he did not pay.

On the opposite, if DSK is proven to have been aware the women were prostitutes, the fact that the parties were organized for him and that he did not pay becomes an issue. Indeed, he would then not be a classic client of prostitution, which would be perfectly legal but would involve paying for the service. In that hypothesis, he would not have paid the women and therefore would have knowingly benefited from the prostitution of another person, and therefore his conduct would fit one of the definitions of “proxénétisme”.

The trial against DSK is without a doubt unusual, but then again it is also uncommon to have numerous huge parties organized for you where prostitutes are offered to you free of charge, one could argue. Nevertheless, it seems fairly obvious that the charges are unusual enough, and the evidence scant enough, for one to suspect that the pursuit of DSK on these charges is largely politically motivated.

Credit: Camille Molina, éléve-avocat of the Paris bar.

What would have happened to the Charlie Hebdo terrorists: a summary of French criminal procedure in terrorism cases

Thursday, January 22nd, 2015

On January 7th 2015, two gunmen launched a terrorist attack on the French satirical magazine Charlie Hebdo in Paris, shooting dead twelve people and injuring many others. Among those killed were four well-known cartoonists, staff of the weekly and two police officers.

This extremist Islamic attack took place almost 3 years after the magazine had published caricatures of the Prophet Muhammad.

The two men managed to flee the premises by car, but were later identified as Said and Cherif KOUACHI. The identity of a third man, Mourad HAMYD, was also broadcast as allegedly linked to the events. However after this man turned himself in, he was later released and his case dismissed.

The police kept searching for the Kouachi brothers before eventually killing them two days after the attack in the printing complex where they had taken a hostage.

After these dreadful events, the question arises : what would the terrorists have faced in court if they had been caught alive?

The interesting point in this kind of case is that the facts fall into the legal classification of terrorism, defined as acts aimed at seriously disrupting public order by intimidation or terror.

These charges of terrorism lead to the application of a special procedure, unofficially referred to as “a second procedure”.

Firstly, whereas the usual rule of jurisdiction states the competent court is the one where the facts have taken place, all the cases including acts of terrorism charges fall within jurisdiction of the courts of Paris, and therefore have to be prosecuted and tried there.

Secondly, a more obvious difference is that the statutory time limits of any part of the procedure would be increased.

As an example, the alleged terrorists, like any offender who is arrested, would have been taken into custody, and instead of the 24 hours normally allowed (and renewable once), they could have been questioned for 144 hours.

Moreover, they would have had very different rights during that initial period of custody. The person held in custody would normally be able to ask for the assistance of an attorney. If asked for, the investigators have had to wait for the attorney at least 2 hours before they could start questioning the person in custody. When there are terrorism charges, however, the prosecutor can ask the court to delay the assistance of the attorney up to 72 hours.

For the most serious offenses, the ones where the sentences can be 10 years or more, the procedure of judicial investigation is mandatory. At the end of their initial custody period, if serious or convergent evidence had been collected, the alleged terrorists would therefore have had to have been brought before a “juge d’instruction”, a magistrate responsible for conducting this mandatory investigative phase that precedes a criminal trial.

The length of this procedure varies greatly from a case to another, depending on the charges, the complexity of the facts or the number of defendants. During this phase, the alleged offender, still presumed innocent, can be held in custody, for a maximum of 4 months in the less serious cases.

Once again, the procedure would have been quite different because of the terrorism charges. The maximum duration for which the defendant can be remanded in custody is 4 years and 8 months, bearing in mind that with charges of terrorism, a bail offer is highly unlikely.

At the end of the judicial investigation, either the judge has gathered sufficient evidence and refers the case to the court, or dismisses the case.

This case would have been referred to the ‘Assize’ court, which specializes in the most serious offenses. There, the procedure would also have been particular. Indeed, the composition of the court would have differed from ordinary cases, as there would have been no jury. The terrorism cases are brought before seven judges instead of three judges and six jurors.

The trial after follows the same rules as the usual procedure, and the defendant is either found innocent or guilty, although to convict in these cases, a simple majority of the judicial panel is needed instead of a two third majority as is typical in criminal jury trials.

In the end, if the two terrorists had been found guilty and convicted, they could have been sentenced to life imprisonment with mandatory jail term.

Even if the special procedure that applies to terrorism charges already makes the prosecution so much easier than in other cases, the Charlie Hebdo attack has nevertheless brought the idea of a “French Patriot Act” back to the forefront.

 Credit: Camille Molina-Brusley

What if Ray Rice had been arrested in Manhattan? Analyzed by a Defense Attorney and former Domestic Violence Prosecutor.

Friday, September 12th, 2014

There has been a media firestorm about NFL running back Ray Rice’s assault of his wife Janay Rice. While exiting an elevator in Atlantic City, NJ, Ray Rice – a powerfully built football player – punched his wife in the face and appeared to knock her unconscious. He then dragged her along the floor of the casino; the entire gruesome episode was captured on videotape and Ray Rice was arrested.

Generally, the reaction from the public and other players has been appropriately scornful of this detestable conduct. After initially suspending him for just a few games (a decision for which the league commissioner, Roger Goodell, received considerable and deserved criticism), the NFL suspended him from playing for a year. His team waived him despite his multi-million dollar contract and importance to their on-field success. Ray Rice’s Nike sponsorship has been canceled and his high jersey even removed from the display case of his high school. If there’s any silver lining to this terrible tragedy, it is that it has forced people to have frank conversations about the problem of domestic violence.

Some people have been wondering aloud, also, about the disposition of the criminal case that arose from this act. Ray Rice was indicted for aggravated assault but ultimately allowed to enter into a pre-trial intervention (or diversion) program, whereby he will avoid jail or even a criminal conviction so long as he attends and successfully completes an anger management program.  Also, seemingly, there is no order of protection preventing him from interacting with his wife.

The author of this post was previously interviewed about this disposition for USA Today, and offered the opinion that this disposition was “inappropriate”.  The Atlantic County prosecutor that made this plea bargain and New Jersey defense attorneys that practice in Atlantic County have responded by saying that Ray Rice received a typical plea bargain and did not receive preferential treatment despite his status and money. The author has no reason to doubt that this is true, but the fact remains, that this disposition was shockingly lenient. Indeed, one need only consider how this case would have played out in nearby Manhattan as a comparison.

Ray Rice would have been charged with a class A misdemeanor punishable by up to one year in jail called Assault in the Third Degree, in violation of Penal Law § 120.00. He also would have been forced to abide by a full order of protection preventing him from returning to his victim’s home (even if it is also his home) or having any contact with her whatsoever, in person or on the telephone, etc. during the pendency of the case. Oftentimes, prosecutions are impossible when victims refuse to cooperate (a factor cited by the New Jersey prosecutor), but here, the victim’s cooperation was not necessary for the prosecutor to get a conviction at trial or proceed with the case because a videotape made everything plain and clear.

Some people have also been critical of or very surprised by some of the supportive public statements made by Ray Rice’s victim, his wife Janay, but those statements are hardly surprising to anyone familiar with domestic violence. To say that the psychology of a battered spouse is often complicated would be an understatement. One can read the outpouring of Twitter statements under the #whyistayed hastag to understand some of the conflicting emotions that abuse victims often feel. Here, Janay made it clear that she did not want her husband to suffer serious legal or financial consequences for his actions, and that she wanted her relationship with him to continue. The prosecutor cited Janay’s desires for leniency as a justification for the plea bargain, while also describing the plea bargain as typical for first-time offenders in domestic violence cases.

However, there is another approach, and it is favored by the Manhattan District Attorney’s Office: ignore the desires of domestic violence victims. Time and time again domestic violence victims in Manhattan beg prosecutors to remove orders of protection so that they can be with their abusers, and Manhattan prosecutors and judges routinely – almost reflexively – refuse to budge.  It is not uncommon to see a domestic abuse victim sitting in the courtroom at a criminal court arraignment in Manhattan begging the judge to allow her husband/boyfriend to come home, only to see the judge look up at her and then coldly issue a full stay-away no-contact order of protection. These orders of protection have teeth too: Manhattan police officers perform routine home visits in pending domestic violence cases to catch defendants back at their apartments with their victims, and will make arrests for Criminal Contempt on the spot.

The assumption behind this approach is that domestic violence victims don’t make good decisions for themselves when it comes to their abusers. In NJ, apparently, the prosecutor will hear out the victim and take his/her opinion into consideration when making a plea bargain offer. (Anecdotally, the Queens County D.A. in New York oftentimes takes a similar approach). Basically, that just isn’t the case in Manhattan, and I cannot possibly explain why one jurisdiction does it differently than the other.

Although New York County has a “pre-trial intervention” program like the New Jersey equivalent called an “ACD” (adjournment in contemplation of dismissal), only rarely does a domestic abuser get offered such a disposition on a very serious assault case like this one (which is not to say that some assault cases are not serious, just that the violence in this case was particularly shocking in its brutality). Moreover, it would be very unlikely to happen in a case with a videotape like this one because the number one weakness in most domestic violence prosecutions – that it cannot be proven without a cooperative victim – was not present here. Yes, Manhattan does refer defendants in domestic violence cases to various domestic-abuse-counseling and anger-management programs, but that is usually done in conjunction with a plea to a violation AND, importantly, also in conjunction with a full-order of protection in favor of the victim. But in this case, with a videotape showing such a brutal assault, Ray Rice would likely be looking at a criminal conviction and the possibility of jail or probation, plainly put. That would be the more expected disposition with evidence this strong and facts this outrageous. I’ve worked on hundreds of domestic violence cases in this jurisdiction on both sides of the aisle and can state that confidently.

Consider for a moment this paradox: if Ray Rice had hit an ordinary man or a woman with whom he was not in a romantic relationship in that way, he would probably be in serious jeopardy of going to jail for it in almost any jurisdiction. Right now, this office is representing a young man charged with punching another man one time in the face, and the Manhattan District Attorney’s Office is recommending to the judge that he receive a sentence of one year in jail.  I imagine that the New Jersey prosecutor that gave Ray Rice this plea bargain routinely expects people to plead guilty to criminal charges after being indicted for aggravated assault, especially when there’s conclusive videotaped proof the person’s guilt.  So why is it that a football player with bulging biceps can punch a woman in the face and leave the courthouse for good without ever having spent a day in jail or any sort of criminal record? One wouldn’t likely get that result if one punches a man in an elevator with a video surveillance camera.

I think the NJ prosecutor needs to answer that question more adequately than he already has.

(Note: there are thousands of assault cases in Manhattan every year and they have widely different results. Indeed, this office has gotten extraordinary results on a number of occasions. But the fact remains that an “ACD” with anger management and no order of protection in a case this serious with a videotape would not be a “typical” outcome in NY, it would be a highly unusual or uncommon result – an outlier, really.)

The author of this post, Matthew Galluzzo, is a criminal defense attorney and former Manhattan domestic violence prosecutor. In addition to defending criminal defendants, he also represents victims of domestic violence and sexual abuse in civil litigation.

Criminal Defense Attorney Discusses Federal Pornography and Obscenity Charges

Wednesday, May 21st, 2014

Recently, federal law enforcement authorities announced the arrests of 71 people in the New York City area in connection with an alleged child pornography production and distribution ring.

The federal charges most often applied to the creation, manufacture, possession and distribution of obscene materials involving minors are typically the following: 18 USC § 1466A, 18 USC § 2251, 18 USC § 2252, 18 USC § 2252A.  The full language of those charges is available below at the end of the article.

Of course, a conviction for any of these crimes can have serious potential consequences.  Serious jail time is a very realistic possibility for anyone convicted of any of these crimes, as is registration as a sex offender in your home state.  Careers, reputations and families can be ruined.  Enormous civil penalties and fines can also be levied against those convicted of these crimes.

The Federal Sentencing Guidelines are very complicated, and you should consult with a criminal defense attorney to understand the sentencing exposure for a person accused of one of these crimes, but generally speaking, the Guidelines suggest the following sentencing ranges for persons convicted of these crimes: LINK AVAILABLE HERE (US Sentencing Guidelines 2G2.2). There are aggravating and mitigating factors in the Guidelines calculations, but generally, someone without a criminal record is probably going to start at a base offense level of 18 or 22.  A conviction for a base offense level 18 crime involving a person with no criminal record translates to a Guidelines sentence of 27-33 months in prison, and a conviction for a base offense level 22 crime involving a person with no criminal record translates to a Guidelines sentence of between 41-51 months in prison. Criminal convictions can cause the numbers to escalate significantly (by moving to the right from column to column on the Sentencing Table).  To view the 2013 Guidelines Sentencing Table, click here.

Thankfully, these cases can be very defensible. Sometimes a person charged with possessing explicit images of minors might be able to argue that images are in fact images of adults. In other cases, computer experts may be able to demonstrate that the criminal images were unwittingly downloaded or received onto the accused’s computer by a computer virus or malware, meaning that there was neither knowledge of the images nor malicious intent on the part of the accused.

If you or a loved one have been arrested in connection with federal charges of this nature, you should seriously consider contacting the experienced criminal defense attorneys at Galluzzo & Johnson LLP.  Matthew Galluzzo, in particular, is a former Manhattan sex crimes prosecutor and is a well-recognized expert in the investigation and prosecution of sex crimes; he has served as a consultant to the South African government’s sex crimes prosecution agency and he has been quoted several times on the subject by media outlets including the New York Times and Reuters, among others.

 

TITLE 18 – CRIMES AND CRIMINAL PROCEDURE
    PART I – CRIMES
    CHAPTER 71 – OBSCENITY

18 USC 1466A

      (a) In General. – Any person who, in a circumstance described in
    subsection (d), knowingly produces, distributes, receives, or
    possesses with intent to distribute, a visual depiction of any
    kind, including a drawing, cartoon, sculpture, or painting, that -
        (1)(A) depicts a minor engaging in sexually explicit conduct;
      and
        (B) is obscene; or
        (2)(A) depicts an image that is, or appears to be, of a minor
      engaging in graphic bestiality, sadistic or masochistic abuse, or
      sexual intercourse, including genital-genital, oral-genital, anal-
      genital, or oral-anal, whether between persons of the same or
      opposite sex; and
        (B) lacks serious literary, artistic, political, or scientific
      value;

    or attempts or conspires to do so, shall be subject to the
    penalties provided in section 2252A(b)(1), including the penalties
    provided for cases involving a prior conviction.
      (b) Additional Offenses. – Any person who, in a circumstance
    described in subsection (d), knowingly possesses a visual depiction
    of any kind, including a drawing, cartoon, sculpture, or painting,
    that -
        (1)(A) depicts a minor engaging in sexually explicit conduct;
      and
        (B) is obscene; or
        (2)(A) depicts an image that is, or appears to be, of a minor
      engaging in graphic bestiality, sadistic or masochistic abuse, or
      sexual intercourse, including genital-genital, oral-genital, anal-
      genital, or oral-anal, whether between persons of the same or
      opposite sex; and
        (B) lacks serious literary, artistic, political, or scientific
      value;

    or attempts or conspires to do so, shall be subject to the
    penalties provided in section 2252A(b)(2), including the penalties
    provided for cases involving a prior conviction.
      (c) Nonrequired Element of Offense. – It is not a required
    element of any offense under this section that the minor depicted
    actually exist.
      (d) Circumstances. – The circumstance referred to in subsections
    (a) and (b) is that -
        (1) any communication involved in or made in furtherance of the
      offense is communicated or transported by the mail, or in
      interstate or foreign commerce by any means, including by
      computer, or any means or instrumentality of interstate or
      foreign commerce is otherwise used in committing or in
      furtherance of the commission of the offense;
        (2) any communication involved in or made in furtherance of the
      offense contemplates the transmission or transportation of a
      visual depiction by the mail, or in interstate or foreign
      commerce by any means, including by computer;
        (3) any person travels or is transported in interstate or
      foreign commerce in the course of the commission or in
      furtherance of the commission of the offense;
        (4) any visual depiction involved in the offense has been
      mailed, or has been shipped or transported in interstate or
      foreign commerce by any means, including by computer, or was
      produced using materials that have been mailed, or that have been
      shipped or transported in interstate or foreign commerce by any
      means, including by computer; or
        (5) the offense is committed in the special maritime and
      territorial jurisdiction of the United States or in any territory
      or possession of the United States.

      (e) Affirmative Defense. – It shall be an affirmative defense to
    a charge of violating subsection (b) that the defendant -
        (1) possessed less than 3 such visual depictions; and
        (2) promptly and in good faith, and without retaining or
      allowing any person, other than a law enforcement agency, to
      access any such visual depiction -
          (A) took reasonable steps to destroy each such visual
        depiction; or
          (B) reported the matter to a law enforcement agency and
        afforded that agency access to each such visual depiction.

      (f) Definitions. – For purposes of this section -
        (1) the term visual depiction includes undeveloped film and
      videotape, and data stored on a computer disk or by electronic
      means which is capable of conversion into a visual image, and
      also includes any photograph, film, video, picture, digital image
      or picture, computer image or picture, or computer generated
      image or picture, whether made or produced by electronic,
      mechanical, or other means;
        (2) the term sexually explicit conduct has the meaning given
      the term in section 2256(2)(A) or 2256(2)(B); and
        (3) the term graphic, when used with respect to a depiction
      of sexually explicit conduct, means that a viewer can observe any
      part of the genitals or pubic area of any depicted person or
      animal during any part of the time that the sexually explicit
      conduct is being depicted.

TITLE 18 – CRIMES AND CRIMINAL PROCEDURE
    PART I – CRIMES
    CHAPTER 110 – SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN

18 USC 2251

      (a) Any person who employs, uses, persuades, induces, entices, or
    coerces any minor to engage in, or who has a minor assist any other
    person to engage in, or who transports any minor in or affecting
    interstate or foreign commerce, or in any Territory or Possession
    of the United States, with the intent that such minor engage in,
    any sexually explicit conduct for the purpose of producing any
    visual depiction of such conduct or for the purpose of transmitting
    a live visual depiction of such conduct, shall be punished as
    provided under subsection (e), if such person knows or has reason
    to know that such visual depiction will be transported or
    transmitted using any means or facility of interstate or foreign
    commerce or in or affecting interstate or foreign commerce or
    mailed, if that visual depiction was produced or transmitted using
    materials that have been mailed, shipped, or transported in or
    affecting interstate or foreign commerce by any means, including by
    computer, or if such visual depiction has actually been transported
    or transmitted using any means or facility of interstate or foreign
    commerce or in or affecting interstate or foreign commerce or
    mailed.
      (b) Any parent, legal guardian, or person having custody or
    control of a minor who knowingly permits such minor to engage in,
    or to assist any other person to engage in, sexually explicit
    conduct for the purpose of producing any visual depiction of such
    conduct or for the purpose of transmitting a live visual depiction
    of such conduct shall be punished as provided under subsection (e)
    of this section, if such parent, legal guardian, or person knows or
    has reason to know that such visual depiction will be transported
    or transmitted using any means or facility of interstate or foreign
    commerce or in or affecting interstate or foreign commerce or
    mailed, if that visual depiction was produced or transmitted using
    materials that have been mailed, shipped, or transported in or
    affecting interstate or foreign commerce by any means, including by
    computer, or if such visual depiction has actually been transported
    or transmitted using any means or facility of interstate or foreign
    commerce or in or affecting interstate or foreign commerce or
    mailed.
      (c)(1) Any person who, in a circumstance described in paragraph
    (2), employs, uses, persuades, induces, entices, or coerces any
    minor to engage in, or who has a minor assist any other person to
    engage in, any sexually explicit conduct outside of the United
    States, its territories or possessions, for the purpose of
    producing any visual depiction of such conduct, shall be punished
    as provided under subsection (e).
      (2) The circumstance referred to in paragraph (1) is that -
        (A) the person intends such visual depiction to be transported
      to the United States, its territories or possessions, by any
      means, including by using any means or facility of interstate or
      foreign commerce or mail; or
        (B) the person transports such visual depiction to the United
      States, its territories or possessions, by any means, including
      by using any means or facility of interstate or foreign commerce
      or mail.

      (d)(1) Any person who, in a circumstance described in paragraph
    (2), knowingly makes, prints, or publishes, or causes to be made,
    printed, or published, any notice or advertisement seeking or
    offering -
        (A) to receive, exchange, buy, produce, display, distribute, or
      reproduce, any visual depiction, if the production of such visual
      depiction involves the use of a minor engaging in sexually
      explicit conduct and such visual depiction is of such conduct; or
        (B) participation in any act of sexually explicit conduct by or
      with any minor for the purpose of producing a visual depiction of
      such conduct;

    shall be punished as provided under subsection (e).
      (2) The circumstance referred to in paragraph (1) is that -
        (A) such person knows or has reason to know that such notice or
      advertisement will be transported using any means or facility of
      interstate or foreign commerce or in or affecting interstate or
      foreign commerce by any means including by computer or mailed; or
        (B) such notice or advertisement is transported using any means
      or facility of interstate or foreign commerce or in or affecting
      interstate or foreign commerce by any means including by computer
      or mailed.

      (e) Any individual who violates, or attempts or conspires to
    violate, this section shall be fined under this title and
    imprisoned not less than 15 years nor more than 30 years, but if
    such person has one prior conviction under this chapter, section
    1591, chapter 71, chapter 109A, or chapter 117, or under section
    920 of title 10 (article 120 of the Uniform Code of Military
    Justice), or under the laws of any State relating to aggravated
    sexual abuse, sexual abuse, abusive sexual contact involving a
    minor or ward, or sex trafficking of children, or the production,
    possession, receipt, mailing, sale, distribution, shipment, or
    transportation of child pornography, such person shall be fined
    under this title and imprisoned for not less than 25 years nor more
    than 50 years, but if such person has 2 or more prior convictions
    under this chapter, chapter 71, chapter 109A, or chapter 117, or
    under section 920 of title 10 (article 120 of the Uniform Code of
    Military Justice), or under the laws of any State relating to the
    sexual exploitation of children, such person shall be fined under
    this title and imprisoned not less than 35 years nor more than
    life. Any organization that violates, or attempts or conspires to
    violate, this section shall be fined under this title. Whoever, in
    the course of an offense under this section, engages in conduct
    that results in the death of a person, shall be punished by death
    or imprisoned for not less than 30 years or for life.

 

TITLE 18 – CRIMES AND CRIMINAL PROCEDURE
    PART I – CRIMES
    CHAPTER 110 – SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN

18 USC 2252A


      (a) Any person who -
        (1) knowingly mails, or transports or ships using any means or
      facility of interstate or foreign commerce or in or affecting
      interstate or foreign commerce by any means, including by
      computer, any child pornography;
        (2) knowingly receives or distributes -
          (A) any child pornography that has been mailed, or using any
        means or facility of interstate or foreign commerce shipped or
        transported in or affecting interstate or foreign commerce by
        any means, including by computer; or
          (B) any material that contains child pornography that has
        been mailed, or using any means or facility of interstate or
        foreign commerce shipped or transported in or affecting
        interstate or foreign commerce by any means, including by
        computer;

        (3) knowingly -
          (A) reproduces any child pornography for distribution through
        the mails, or using any means or facility of interstate or
        foreign commerce or in or affecting interstate or foreign
        commerce by any means, including by computer; or
          (B) advertises, promotes, presents, distributes, or solicits
        through the mails, or using any means or facility of interstate
        or foreign commerce or in or affecting interstate or foreign
        commerce by any means, including by computer, any material or
        purported material in a manner that reflects the belief, or
        that is intended to cause another to believe, that the material
        or purported material is, or contains -
            (i) an obscene visual depiction of a minor engaging in
          sexually explicit conduct; or
            (ii) a visual depiction of an actual minor engaging in
          sexually explicit conduct;

        (4) either -
          (A) in the special maritime and territorial jurisdiction of
        the United States, or on any land or building owned by, leased
        to, or otherwise used by or under the control of the United
        States Government, or in the Indian country (as defined in
        section 1151), knowingly sells or possesses with the intent to
        sell any child pornography; or
          (B) knowingly sells or possesses with the intent to sell any
        child pornography that has been mailed, or shipped or
        transported using any means or facility of interstate or
        foreign commerce or in or affecting interstate or foreign
        commerce by any means, including by computer, or that was
        produced using materials that have been mailed, or shipped or
        transported in or affecting interstate or foreign commerce by
        any means, including by computer;

        (5) either -
          (A) in the special maritime and territorial jurisdiction of
        the United States, or on any land or building owned by, leased
        to, or otherwise used by or under the control of the United
        States Government, or in the Indian country (as defined in
        section 1151), knowingly possesses, or knowingly accesses with
        intent to view, any book, magazine, periodical, film,
        videotape, computer disk, or any other material that contains
        an image of child pornography; or
          (B) knowingly possesses, or knowingly accesses with intent to
        view, any book, magazine, periodical, film, videotape, computer
        disk, or any other material that contains an image of child
        pornography that has been mailed, or shipped or transported
        using any means or facility of interstate or foreign commerce
        or in or affecting interstate or foreign commerce by any means,
        including by computer, or that was produced using materials
        that have been mailed, or shipped or transported in or
        affecting interstate or foreign commerce by any means,
        including by computer;

        (6) knowingly distributes, offers, sends, or provides to a
      minor any visual depiction, including any photograph, film,
      video, picture, or computer generated image or picture, whether
      made or produced by electronic, mechanical, or other means, where
      such visual depiction is, or appears to be, of a minor engaging
      in sexually explicit conduct -
          (A) that has been mailed, shipped, or transported using any
        means or facility of interstate or foreign commerce or in or
        affecting interstate or foreign commerce by any means,
        including by computer;
          (B) that was produced using materials that have been mailed,
        shipped, or transported in or affecting interstate or foreign
        commerce by any means, including by computer; or
          (C) which distribution, offer, sending, or provision is
        accomplished using the mails or any means or facility of
        interstate or foreign commerce,

      for purposes of inducing or persuading a minor to participate in
      any activity that is illegal; or
        (7) knowingly produces with intent to distribute, or
      distributes, by any means, including a computer, in or affecting
      interstate or foreign commerce, child pornography that is an
      adapted or modified depiction of an identifiable minor.(!1)


    shall be punished as provided in subsection (b).
      (b)(1) Whoever violates, or attempts or conspires to violate,
    paragraph (1), (2), (3), (4), or (6) of subsection (a) shall be
    fined under this title and imprisoned not less than 5 years and not
    more than 20 years, but, if such person has a prior conviction
    under this chapter, section 1591, chapter 71, chapter 109A, or
    chapter 117, or under section 920 of title 10 (article 120 of the
    Uniform Code of Military Justice), or under the laws of any State
    relating to aggravated sexual abuse, sexual abuse, or abusive
    sexual conduct involving a minor or ward, or the production,
    possession, receipt, mailing, sale, distribution, shipment, or
    transportation of child pornography, or sex trafficking of
    children, such person shall be fined under this title and
    imprisoned for not less than 15 years nor more than 40 years.
      (2) Whoever violates, or attempts or conspires to violate,
    subsection (a)(5) shall be fined under this title or imprisoned not
    more than 10 years, or both, but, if such person has a prior
    conviction under this chapter, chapter 71, chapter 109A, or chapter
    117, or under section 920 of title 10 (article 120 of the Uniform
    Code of Military Justice), or under the laws of any State relating
    to aggravated sexual abuse, sexual abuse, or abusive sexual conduct
    involving a minor or ward, or the production, possession, receipt,
    mailing, sale, distribution, shipment, or transportation of child
    pornography, such person shall be fined under this title and
    imprisoned for not less than 10 years nor more than 20 years.
      (3) Whoever violates, or attempts or conspires to violate,
    subsection (a)(7) shall be fined under this title or imprisoned not
    more than 15 years, or both.
      (c) It shall be an affirmative defense to a charge of violating
    paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) that -
        (1)(A) the alleged child pornography was produced using an
      actual person or persons engaging in sexually explicit conduct;
      and
        (B) each such person was an adult at the time the material was
      produced; or
        (2) the alleged child pornography was not produced using any
      actual minor or minors.

    No affirmative defense under subsection (c)(2) shall be available
    in any prosecution that involves child pornography as described in
    section 2256(8)(C). A defendant may not assert an affirmative
    defense to a charge of violating paragraph (1), (2), (3)(A), (4),
    or (5) of subsection (a) unless, within the time provided for
    filing pretrial motions or at such time prior to trial as the judge
    may direct, but in no event later than 14 days before the
    commencement of the trial, the defendant provides the court and the
    United States with notice of the intent to assert such defense and
    the substance of any expert or other specialized testimony or
    evidence upon which the defendant intends to rely. If the defendant
    fails to comply with this subsection, the court shall, absent a
    finding of extraordinary circumstances that prevented timely
    compliance, prohibit the defendant from asserting such defense to a
    charge of violating paragraph (1), (2), (3)(A), (4), or (5) of
    subsection (a) or presenting any evidence for which the defendant
    has failed to provide proper and timely notice.
      (d) Affirmative Defense. – It shall be an affirmative defense to
    a charge of violating subsection (a)(5) that the defendant -
        (1) possessed less than three images of child pornography; and
        (2) promptly and in good faith, and without retaining or
      allowing any person, other than a law enforcement agency, to
      access any image or copy thereof -
          (A) took reasonable steps to destroy each such image; or
          (B) reported the matter to a law enforcement agency and
        afforded that agency access to each such image.

      (e) Admissibility of Evidence. – On motion of the government, in
    any prosecution under this chapter or section 1466A, except for
    good cause shown, the name, address, social security number, or
    other nonphysical identifying information, other than the age or
    approximate age, of any minor who is depicted in any child
    pornography shall not be admissible and may be redacted from any
    otherwise admissible evidence, and the jury shall be instructed,
    upon request of the United States, that it can draw no inference
    from the absence of such evidence in deciding whether the child
    pornography depicts an actual minor.
      (f) Civil Remedies. -
        (1) In general. – Any person aggrieved by reason of the conduct
      prohibited under subsection (a) or (b) or section 1466A may
      commence a civil action for the relief set forth in paragraph
      (2).
        (2) Relief. – In any action commenced in accordance with
      paragraph (1), the court may award appropriate relief, including -

          (A) temporary, preliminary, or permanent injunctive relief;
          (B) compensatory and punitive damages; and
          (C) the costs of the civil action and reasonable fees for
        attorneys and expert witnesses.

      (g) Child Exploitation Enterprises. -
        (1) Whoever engages in a child exploitation enterprise shall be
      fined under this title and imprisoned for any term of years not
      less than 20 or for life.
        (2) A person engages in a child exploitation enterprise for the
      purposes of this section if the person violates section 1591,
      section 1201 if the victim is a minor, or chapter 109A (involving
      a minor victim), 110 (except for sections 2257 and 2257A), or 117
      (involving a minor victim), as a part of a series of felony
      violations constituting three or more separate incidents and
      involving more than one victim, and commits those offenses in
      concert with three or more other persons.

   TITLE 18 – CRIMES AND CRIMINAL PROCEDURE
PART I – CRIMES
CHAPTER 110 – SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN

18 USC 2252A


(a) Any person who -
(1) knowingly transports or ships using any means or facility
of interstate or foreign commerce or in or affecting interstate
or foreign commerce by any means including by computer or mails,
any visual depiction, if -
(A) the producing of such visual depiction involves the use
of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;

(2) knowingly receives, or distributes, any visual depiction
using any means or facility of interstate or foreign commerce or
that has been mailed, or has been shipped or transported in or
affecting interstate or foreign commerce, or which contains
materials which have been mailed or so shipped or transported, by
any means including by computer, or knowingly reproduces any
visual depiction for distribution using any means or facility of
interstate or foreign commerce or in or affecting interstate or
foreign commerce or through the mails, if -
(A) the producing of such visual depiction involves the use
of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;

(3) either -
(A) in the special maritime and territorial jurisdiction of
the United States, or on any land or building owned by, leased
to, or otherwise used by or under the control of the Government
of the United States, or in the Indian country as defined in
section 1151 of this title, knowingly sells or possesses with
intent to sell any visual depiction; or
(B) knowingly sells or possesses with intent to sell any
visual depiction that has been mailed, shipped, or transported
using any means or facility of interstate or foreign commerce,
or has been shipped or transported in or affecting interstate
or foreign commerce, or which was produced using materials
which have been mailed or so shipped or transported using any
means or facility of interstate or foreign commerce, including
by computer, if -
(i) the producing of such visual depiction involves the use
of a minor engaging in sexually explicit conduct; and
(ii) such visual depiction is of such conduct; or

(4) either -
(A) in the special maritime and territorial jurisdiction of
the United States, or on any land or building owned by, leased
to, or otherwise used by or under the control of the Government
of the United States, or in the Indian country as defined in
section 1151 of this title, knowingly possesses, or knowingly
accesses with intent to view, 1 or more books, magazines,
periodicals, films, video tapes, or other matter which contain
any visual depiction; or
(B) knowingly possesses, or knowingly accesses with intent to
view, 1 or more books, magazines, periodicals, films, video
tapes, or other matter which contain any visual depiction that
has been mailed, or has been shipped or transported using any
means or facility of interstate or foreign commerce or in or
affecting interstate or foreign commerce, or which was produced
using materials which have been mailed or so shipped or
transported, by any means including by computer, if -
(i) the producing of such visual depiction involves the use
of a minor engaging in sexually explicit conduct; and
(ii) such visual depiction is of such conduct;

shall be punished as provided in subsection (b) of this section.
(b)(1) Whoever violates, or attempts or conspires to violate,
paragraph (1), (2), or (3) of subsection (a) shall be fined under
this title and imprisoned not less than 5 years and not more than
20 years, but if such person has a prior conviction under this
chapter, section 1591, chapter 71, chapter 109A, or chapter 117, or
under section 920 of title 10 (article 120 of the Uniform Code of
Military Justice), or under the laws of any State relating to
aggravated sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor or ward, or the production, possession, receipt,
mailing, sale, distribution, shipment, or transportation of child
pornography, or sex trafficking of children, such person shall be
fined under this title and imprisoned for not less than 15 years
nor more than 40 years.
(2) Whoever violates, or attempts or conspires to violate,
paragraph (4) of subsection (a) shall be fined under this title or
imprisoned not more than 10 years, or both, but if such person has
a prior conviction under this chapter, chapter 71, chapter 109A, or
chapter 117, or under section 920 of title 10 (article 120 of the
Uniform Code of Military Justice), or under the laws of any State
relating to aggravated sexual abuse, sexual abuse, or abusive
sexual conduct involving a minor or ward, or the production,
possession, receipt, mailing, sale, distribution, shipment, or
transportation of child pornography, such person shall be fined
under this title and imprisoned for not less than 10 years nor more
than 20 years.
(c) Affirmative Defense. – It shall be an affirmative defense to
a charge of violating paragraph (4) of subsection (a) that the
defendant -
(1) possessed less than three matters containing any visual
depiction proscribed by that paragraph; and
(2) promptly and in good faith, and without retaining or
allowing any person, other than a law enforcement agency, to
access any visual depiction or copy thereof -
(A) took reasonable steps to destroy each such visual
depiction; or
(B) reported the matter to a law enforcement agency and
afforded that agency access to each such visual depiction.

Oscar Pistorius’ Defense Analyzed by a Criminal Defense Attorney (April 8, 2014)

Tuesday, April 8th, 2014

Oscar Pistorius’ Defense Analyzed by a Criminal Defense Attorney (April 8, 2014)

Author Matthew Galluzzo, Esq. is a former Manhattan prosecutor and criminal defense attorney with Galluzzo & Johnson LLP.  In 2011-2012, he worked alongside South African criminal prosecutors as a legal consultant to the South African National Prosecuting Authority.  He has been following the Pistorius murder case and has given television interviews to CNN and Dateline (NBC) on the subject.

April 8, 2014 

After briefly hearing from a forensic pathologist proffered by the defense, Oscar Pistorius took the stand Monday to testify in his own defense. Although the burden of proof is on the prosecution in South Africa (just as it is in the United States), as a practical matter, Pistorius could not plausibly expect to be found not guilty of murder unless he personally rebutted the state’s prima facie case to commit murder.  Indeed, in a fairly similar case, State v. De Oliveira, an appellate court refused to consider the defendant’s argument that he was only guilty of culpable homicide (and not premeditated murder) for mistakenly shooting people that he believed to be intruders in his home, citing his failure to testify personally to that effect.  His silence on the subject was specifically held against him, in fact, and most assuredly would have been held against Pistorius had he chosen not to testify.

Of course, the world already knew his version of events because Pistorius had already given a sworn affidavit as to the facts of Ms. Steenkamp’s death in connection with his application for bail. Pistorius really had no choice but to lay out his defense early, because under South African law, for an individual to be eligible for bail on a murder charge, he has to somehow rebut the presumption that he is dangerous and/or a violent threat to the community. As a practical matter, a failure to address the state’s allegations that one acted violently in connection with the crime for which one is charged will result in the court denying the application for bail.  Generally speaking, criminal defense attorneys prefer to not have to lay out their defense early and before they have had an opportunity to investigate all of the facts, but getting bail for one’s client is so critically important to the success of a defense that sometimes it is unavoidable, as it was here.

Pistorius’ defense is subtly complicated. The question is not simply whether he intended to kill his girlfriend or believed there was a burglar in his home.  The questions presented are more precisely 1) whether he subjectively and genuinely believed that he was under imminent attack upon his life and that he was justified in acting as he did, and then 2) whether his actions in self-defense were objectively reasonable.  If he fails to prove the first prong then he will be convicted of pre-meditated murder, and if he fails at the second prong then he will be found guilty of culpable homicide, or a negligent unlawful killing. Of course, if the court does ultimately determine that he knew that his girlfriend was in the bathroom then he loses spectacularly and will get a sentence of life in prison.

In analyzing this particular case, it is very important to understand that in South Africa, pre-meditated murder does not mean that the killing was pre-planned; in fact, it does not even have to be “intentional” as we use that term in American criminal law.  Indeed, a “reckless” killing of another person can also result in a conviction for premeditated murder.  See e.g. State v. Naidoo, Case #321/2001.  The concept of recklessness is familiar to American criminal law practitioners: a person acts recklessly with respect to a result when he or she is aware of the risk that his actions could lead to that result, but acts anyway.  In South Africa, the analysis is very similar but slightly different – the fact-finder must determine whether the individual was aware of the risk of the terrible outcome – i.e. had “foresight” to it – and “reconciled” himself to that risk and decided to proceed anyway. The point is that although the prosecutor in Pistorius’ case is presenting the argument that Pistorius intended to kill his girlfriend, he has an extra arrow in his quiver, so to speak, in that he can also quite plausibly argue that Pistorius’ version of events makes him guilty of a reckless murder anyway.  This also forecloses the possibility of an acquittal of murder under the theory that Pistorius was only trying to scare the person in the bathroom (Steenkamp or intruder), as obviously shooting four times into a tiny toilet room would have created a grave risk of death to the person inside.

Looking at the first prong of the defense, in South Africa, for an intentional (or reckless) killing to be justified as “self-defense,” the person exercising force must genuinely believe that his life (or the life of another) is in imminent danger and that deadly force is necessary to prevent the harm. Clearly, Pistorius has maintained without any concession that he genuinely believed that his girlfriend was asleep in bed when he opened fire at the bathroom door. However, if he concedes on cross-examination that just prior to pulling the trigger the thought occurred to him that maybe, possibly, the person behind the door was not a murderous intruder, then he acted RECKLESSLY – with foresight to the possibility that he was wrong about his need to fire – and can be held fully liable for premeditated murder.  I expect that Pistorius will steadfastly refuse to admit that he ever considered that possibility (as stupid as it may make him sound). Moreover, there was some especially damaging testimony from a state witness as to Pistorius’ understanding of South African law regarding self-defense and justification. Specifically, in order to be certified to own as many firearms as he does, Pistorius had to pass an examination that asked questions about when he would be authorized to use deadly physical force to defend his home, and his (correct) answers to those questions strongly suggest that Pistorius knew that he could not use deadly physical force on an intruder without first knowing whether that person was armed with a deadly weapon or intended to actually do him any physical harm.   As such, it would seem that Pistorius acted “recklessly” with respect to his legal right to act in the way that he allegedly did in defending himself.  If this is the case, then the court is likely to conclude that he had foresight as to the outcome – an unlawful killing – and should thus be found guilty of premeditated murder.  So, Pistorius is going to have to somehow explain how his actions in this case were materially distinguishable from the scenarios presented to him on his firearm certification examination, and honestly, I do not expect him to be able to do that effectively – the prosecutor will probably pound him to death with his previous answers on the certification examination.

If Pistorius somehow manages to persuade the court that he neither believed that his girlfriend was in the bathroom nor that he had “foresight” as to the possibility that he was not justified in acting as he did, he then has to battle against the lesser included charge of culpable homicide. The defense team would probably consider a conviction for culpable homicide to be a victory, as that charge carries no mandatory minimum prison sentence. Culpable homicide is a negligent unlawful killing under South African law. An unlawful killing results in cases in which there is no justification. It should be noted that the fact that Pistorius did not ACTUALLY need to exercise self-defense (because the person in the bathroom was not, in fact, a murderous intruder) does not mean that the killing is automatically unjustified.  For example, if you were sitting in your home one night when someone burst into your home wearing a ski mask and wielding what appears to be a meat cleaver, you would probably be justified in shooting that person to death, even if it later turned out to be your brother-in-law trying to pull a Halloween prank with a plastic toy knife. After all, you acted relatively reasonably under the circumstances, and so we would call that act of killing an accident or a tragic misunderstanding rather than a crime.

Unfortunately for Pistorius, the analysis as to whether he was negligent (i.e. whether he acted reasonably under the circumstances) is an objective rather than subjective test.  That means that the judge must consider what a reasonable person in his situation would do, and does NOT take into account such subjective aspects of the person, including but not limited to his age, health, general level of anxiety, or physical disability.  This rule has been criticized as cruel or unforgiving to the old, infirm, or to those with disabilities, but South African law has consistently refused to give concessions in this regard.  Thus, the question for the court is not: what was reasonable for Pistorius – a man with no legs – to do in that situation, but rather, what would a reasonable person have done if faced with the possibility of an intruder in the bathroom? Pistorius has made much of his assertion that he was not wearing his prosthetic legs at the time he fired at the bathroom door, and that he felt especially vulnerable without his prosthetic legs, but ultimately, this fact is only relevant to his subjective intent in believing that he was justified (prong #1), and should not be part of the analysis as to prong #2.

Unfortunately for Pistorius, he is almost certainly going to face a barrage of tough but straightforward questions from the prosecutor about why he didn’t act more reasonably than he did. The prosecutor will certainly ask him why he didn’t ask questions first before opening fire, why he didn’t check to make sure Reeva wasn’t in the bathroom, why he didn’t call security and wait for them to arrive, why he didn’t fire a single warning shot rather than four shots in quick succession, why he didn’t give the intruder an opportunity to retreat, and why he felt so threatened by someone that was seemingly just sitting on the toilet, among other questions.  None of his answers are going to be very good, because they cannot be.

Pistorius has demonstrated an uncommon amount of emotion during the trial, having repeatedly vomited during graphic moments and broken down crying whilst apologizing under oath to the Steenkamp family and describing the events of her death. A skeptic might suggest that his crying could be just as indicative of innocence or guilt; after all, if he did in fact murder her in a moment of regrettable rage, one would expect him to harbor feelings of guilt, remorse, and depression about having thrown his own life away.  Nevertheless, in our experience, this display of emotion is likely to have a genuine impact on the fact-finders (the judge and assessors), who are expected to use their common sense to evaluate the credibility of his testimony, and that can include judging the sincerity of his emotions on display. It would certainly be bizarre if he were not displaying any emotion, guilty or innocent.

It is difficult to handicap this case.  Judges (and assessors, who also vote as to Pistorius’ guilty or innocence) are human beings, and any judicial process involving human beings can be unpredictable. The racial and socioeconomic situation in South Africa is also dizzyingly complex, and it would be naïve to assume that that history could not affect the outcome in this high-profile media matter.  Ultimately though, I expect Pistorius to be convicted of pre-meditated murder and would be absolutely astonished if he is not convicted of culpable homicide.

 

Sex Offender Registration and Modification in New York

Tuesday, April 1st, 2014

Blog – Sexual Offenders Registry:

 

By Laura Monagle.

Conviction for a sex offense can have life long ramifications for defendants who will be required to register as sex offenders. The following post will explain the process of registration as a sex offender. If you are facing charges which could result in you being determined to be a sex offender, you should contact an experienced attorney to take on your case.

Relevant Offenses:

Conviction for one of the following offenses of the New York Penal Law (‘NYPL’)(or conviction for an attempt to commit one of the following offenses) will result in the defendant being required to register as a sex offender:

  • Luring a child (NYPL 120.70).
  • Sexual misconduct (NYPL 130.20).
  • Rape (NYPL 130.25-35 – first, second and third degree).
  • Criminal sexual act (NYPL 130.40-50 – first, second and third degree).
  • Sodomy (NYPL 130.40-50 – first, second and third degree).
  • Forcible touching (NYPL 130.52) (not the first offense but on the second conviction).
  • Persistent sexual abuse (NYPL 130.53).
  • Sexual abuse (NYPL 130.55-65 – first, second and third degree) (not the first offense but on the second conviction).
  • Aggravated sexual abuse (NYPL 130.65-a-70 – first, second, third and fourth degree).
  • Course of sexual conduct against a child (NYPL 130.75-80 – first, and second degree).
  • Facilitating a sex offense with a controlled substance (NYPL 130.90).
  • Predatory sexual assault (NYPL 130.95).
  • Predatory sexual assault against a child (NYPL 130.96).
  • Unlawful imprisonment (NYPL 135.05-10 – first and second degree).
  • Kidnapping (NYPL 135.20-25 – first and second degree).
  • Patronizing a prostitute (NYPL 230.05-06 – first and second degree.
  • Promoting prostitution (NYPL 230.30-32 – first and second degree).
  • Compelling prostitution (NYPL 230.33).
  • Sex trafficking (NYPL 230.34).
  • Disseminating indecent material to minors (NYPL 235.22).
  • Unlawful surveillance (NYPL 250.45-50 – first and second degree).
  • Incest (NYPL 255.25-27 – first, second and third degree).
  • Use of a child in a sexual performance (NYPL 263.05).
  • Promoting an obscene sexual performance by a child (NYPL 263.10).
  • Possessing an obscene sexual performance by a child (NYPL 263.11).
  • Promoting a sexual performance by a child (NYPL 263.15).
  • Possessing a sexual performance by a child (NYPL 263.16).
  • Facilitating a sexual performance by a child with a controlled substance or alcohol (NYPL 263.30).

(Note: for some of these offenses, a conviction does not require registration but may result in registration).

Risk Assessment Instrument:

When an individual is convicted of an offense which requires registration as a sex offender, as assessment must be undertaken to determine the level of ‘risk’ the offender presents to the community. There are three levels of registration – level one (the lowest), level two and level three (the highest). As per the Sex Offender Registration Act (‘SORA’) Risk Assessment Guidelines and Commentary, there are two considerations which must be taken into account in determining the threat a sex offender poses to the community – one: the likelihood that the offender will reoffend, and – two: the harm that would result if the offender were to reoffend. The Board of Examiners of Sex Offenders (‘Board’) came up with an objective instrument, used to determine the level of risk posed by an offender. This instrument is split into four sections:

  1. Current offenses:
  • Use of violence.
  • Sexual contact with the victim.
  • Number of victims.
  • Duration of offence conduct with the victim.
  • Age of the victim.
  • Other victim characteristics.
  • Relationship between the offender and the victim.
  1. Criminal history.
  • Age at the time of committing first sex crime.
  • Number and nature of prior crimes.
  • Recency of prior felony/sex crime.
  • Drug or alcohol abuse.
  1. Post-offense behaviour.
  • Acceptance of responsibility.
  • Conduct while confined/under supervision.
  1. Release environment.
  • Supervision.
  • Living/employment situation.

Points are tallied in each section – the higher total that an offender scores, the more risk they present to the community. An offender will be registered as a level one risk if they score 70 points or less. An offender will be registered as a level two risk if they score less than 110 but more than 70 points. An offender will be registered as a level three risk if they score more than 110 points. To see the points that are awarded in these different categories, click here for a sample scoresheet (Risk Assessment Instrument).

An offender will be presumed to be a level three offender if any of the following four ‘overrides’ apply to the offender – one: prior convictions for sex felonies – two: offending causing physical injury or death to the victim – three: the offender has made a recent threat of re-offense – four: the offender has been clinically assessed to have a psychological, physical or organic abnormality that reduces their ability to control their sexual impulses (for example: paedophilia or sexual sadism). Each of these circumstances provides strong evidence that an offender is a danger to the community. The fact that these overrides are presumptive means that the Board or the presiding court can choose to depart from it them, should the situation warrant this. It should be noted that this is a rare occurrence. (On a separate note, those individuals found to have such abnormalities are at risk for civil commitment after the expiration of their incarceration).

In order for points to be tallied against an offender in the process of calculating the level of risk, the Board or presiding court must have “clear and convincing evidence of the existence of that factor”. This evidence can be derived from any number of reliable sources, from the offender to the victim to any supervising officers who have observed the offender. The fact of an arrest should not be taken as clear and convincing evidence that the relevant offense was committed.

The level of risk into which an offender is categorized will determine their obligation under SORA, as well as the amount of information which the public is entitled to know about that individual.

Information Database:

The New York State Division of Criminal Justice Services (‘CJS’) publicizes on its website (http://www.criminaljustice.ny.gov/SomsSUBDirectory/search_index.jsp) information pertaining to level two and three sex offenders through out the State. This includes a physical description of the offender (including the presence of any scars or tattoos, as well as nicknames/aliases), a listed address, the charges for which they were convicted, a description of the offense and relevant modus operandi, and the sentence the offender received. Information about level 1 offenders is not permitted to be made public.

Obligations:

Individuals convicted of one of the enumerated crimes above (or an attempt to commit one of these crimes) must register as a sex offender as per SORA § 168-f – (1) any sex offender shall – (a) at least ten calendar days prior to discharge, parole, release to post-release supervision or release from any state or local correctional facility, hospital or institution where he or she was confined or committed, or – (b) at the time sentence is imposed for any sex offender released on probation or discharged upon payment of a fine, conditional discharge or unconditional discharge, register with the division on a form prepared by the division. Failure to register as a sex offender when required to do so constitutes an E felony, and any offender charged with this offense faces four years imprisonment.

Offenders are registered as either a level one, two or three risk level. Offenders are also designated as a sexual predatory, sexually violent offender, predicate sex offender, or ‘no designation’. Offenders who are registered as level one, and ‘no designation’, are to be registered annually for a period of twenty years. Offenders who are any designation other than ‘no designation’, and who are either a level two or three risk, are registered for life. Under § 168-h(2), offenders who are registered as level two risk and ‘no designation’ may be able to petition for relief after twenty years of registration (discussed further below).

Offenders who are registered as a level three risk or are designated sexual predator status must personally verify their address with law enforcement every 90 days.

Section 168-f sets out the extensive verification duties on the registered sex offender. This includes the duty to verify home and employment addresses, changes to internet account belonging to the offender, and to update their photograph (how often this must occur), as well as how often each of these must occur (this depends on risk level).

Petition to Remove Status:

There is some scope for an offender to petition for relief of duty to register, or modification of their risk level. This process is set out in § 168-o, and has been somewhat controversial because of changes made to the minimum period of continuous registration before such a petition can be made. The recent decision of Nolan v. Cuomo WL168674 (EDNY, 2013) affirmed the earlier decision in Woe v. Spitzer 571 F.Supp.2d 382 (EDNY, 2008). Each of these decisions attempted to interpret § 168-o sub-sections (1) and (2). Sub-section (1) allows for level 2 sex offenders to petition for relief from their duty to register, however, this petition can only be made after 30 years of continuous registration. There is no allowance for level 1 sex offenders to make the same application under this sub-section. However, sub-section (2) allows for any sex offender to petition for modification of their risk level. This has been interpreted as allowing level 1 sex offenders to petition for modification to a risk level below level 1 (and therefore, effectively relieving level 1 offenders of the duty to register). The onus is on the sex offender to present evidence that suggests they should be relieved of their status; this is a high evidentiary burden.

It should be noted that if an appeal for relief under § 168-o(1) is successful, the District Attorney (‘DA’) is granted an appeal as of right.

State versus Federal requirements:

 The Federal government passed the Sex Offender Registration and Notification Act (‘SORNA’) in 2006, in order to set minimum standards for all of the states to follow regarding registration of sex offenders. This Act requires that sex offenders (even if convicted of a Federal sex offence) must register with the state in which they reside. SORNA also enumerates the minimum amount of information which states must gather about their sex offenders, although not all of this information can be made public.

If you or a loved one have been arrested for a sex offense or are considering moving for an adjustment of your registration level, you should seriously consider contacting the experienced criminal defense attorneys at Galluzzo & Johnson LLP.  Matthew Galluzzo, in particular, is a former Manhattan sex crimes prosecutor who has successfully represented numerous individuals accused of sex offenses.

Credit: http://www.criminaljustice.ny.gov/nsor/sortab1.htm

http://www.nycourts.gov/reporter/06_SORAGuidelines.pdf

http://www.smart.gov/sorna.htm

Animal Cruelty Criminal Charges (Cockfighting etc.)

Monday, February 10th, 2014

Animal Cruelty Criminal Charges (Cockfighting Etc.)

(by Laura Monagle)

The Organized Crime Task Force this week made the biggest cockfighting bust in New York history, a bust involving 3000 birds. Two fights were raided simultaneously over the weekend in Brooklyn and Queens, in which investigators found birds incarcerated in tiny cages containing razors blades. The seventy individuals present at the two fights were arrested, although all but seven were released without charges. 115 birds were removed from the two locations.

http://nypost.com/2014/02/10/70-arrested-in-new-yorks-largest-ever-cockfighting-bust/

Concurrent to the bust of the fights was a raid on an upstate farm, from which over 3000 birds were rescued.

Charges relating to animal cruelty are governed by Article 26 of the New York Agriculture and Markets Law. Media reports stated that the individuals faced only charges of animal fighting, which come under § 351(2): any person who engages in any of the following conduct is guilty of a felony punishable by imprisonment for a period not to exceed four years, or by a fine not to exceed $25,000, or by both such fine and imprisonment – (a) for amusement or gain, causes any animal to engage in animal fighting, or – (b) trains any animal under circumstances evincing an intent that such animal engage in animal fighting for amusement or gain, or – (c) breeds, sells or offers for sale any animal under circumstances evincing such an intent that such animal engage in animal fighting, or – (d) permits any act described in paragraph (a), (b) or (c) of this subdivision to occur on premises under his control, or – (e) owns, possesses or keeps any animal trained to engage in animal fighting on premises where an exhibition of animal fighting is being conducted under circumstances evincing an intent that such anima engage in animal fighting. It was reported that six of the men charged had brought cocks to the fights, and as such this activity would come under the above-mentioned sub-section (a). Thus the six men face felony charges, and up to four years imprisonment. The seventh individual was also charged with animal fighting charges, but the specifics of this arrest were not made public.

Cockfighting rings are often associated with the commission of other crimes. Depending on the facts of the case, the individuals who were charged could also face charges such as enterprise corruption (New York Penal Law § 460.00 et seq.)(‘NYPL’), money laundering (NYPL § 470), and/or gambling-related offenses (NYPL § 225).

The above charges are all very serious, and anyone facing such charges should contact an experienced attorney to handle their case. 

 

 

Arrests for Selling Fake Tickets and Ticket Scalping

Monday, February 3rd, 2014

Arrests for Selling Fake Tickets and Ticket Scalping:

(Credit: Laura Monagle)

With the Super Bowl just around the corner, the problem of ticket scamming has been heavily reported in the media. It was reported this week that two men were caught selling fake Super Bowl tickets to fans for thousands of dollars.

http://nypost.com/2014/01/28/cops-bust-super-bowl-ticket-scammers/

While the internet has created a market for the selling of second hand tickets, individuals caught selling phony tickets face criminal prosecution. New York Penal Law (‘NYPL’) §170 sets out the offences relating to forged items.

Counterfeit Super Bowl tickets would come under the 170.00 (1) definition of a ‘written instrument’: any written instrument or article, including computer data or a computer program, containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording information, or constituting a symbol or evidence of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage of some person; or the sub-section (2) definition of a ‘complete written instrument’: one which purports to be a genuine written instrument fully drawn with respect to every essential feature thereof. Sub-section (7) defines a ‘forged instrument’ as: a written instrument which has been falsely made, completed or altered.

The two men arrested in this week’s Super Bowl ticket bust face multiple charges, including forgery and criminal possession of a forged instrument.

NYPL sets out the offenses relating to forgery in § 170.05 (forgery in the third degree) and § 170.10(1) (forgery in the second degree) which would be relevant to the making of counterfeit tickets. Forgery in the third degree relates to making/altering a written instrument with the intent to deceive or defraud. Forgery in the second degree relates to the same act, with respect to a commercial instrument (that is, a ticket to an event). It is likely that with regards to the Super Bowl tickets in this case, and in any similar case, that an individual would be charged in the second degree, as the penalty is higher. Forgery in the third degree is a class A misdemeanor, and anyone charged under this section faces one year imprisonment. Forgery in the second degree is a class D felony, and anyone charged under this section faces seven years imprisonment.

Individuals who are found with fake tickets on their person face charges relating to criminal possession of a forged instrument. NYPL § 170.20 (criminal possession of a forged instrument in the third degree) and § 170.25 (criminal possession in the second degree) are the relevant provisions. If an individual has been charged with forgery in the second degree, it is likely that they will also be charged with criminal possession of a forged instrument in the second degree, which also requires that the instrument be a commercial instrument. Criminal possession of a forged instrument in the third degree is a class A misdemeanor, and anyone charged under this section faces one year imprisonment. Criminal possession of a forged instrument in the second degree is a class D felony, and anyone charged under this section faces seven years imprisonment.

The two men arrested this week, who sold individual Super Bowl tickets for $1,500 each, could face charges of grand larceny in the fourth degree, under § 155.30 (1): stealing property (money), the value of which exceeds one thousand dollars. NYPL § 155.05(2)(a) allows for larceny by way of trick (fake tickets). Grand larceny in the fourth degree is a class E felony, and anyone charged under this section faces four years. Attempted grand larceny (under § 110.00, an ‘attempt’ is engaging in conduct with intent to commit a crime which tends to effect the commission of the crime) is a class A misdemeanor, and anyone charged under this section faces one year imprisonment.

Sale of counterfeit tickets could also result in charges of fraudulent accosting, under NYPL § 165.30. Sub-section (1) states that a person is guilty of fraudulent accosting when he accosts a person in a public place with intent to defraud them or money or other property by means of a trick, swindle or confidence game. This sub-section clearly only relates to ticket scalping in a public place. Fake tickets would seem to be sufficient to constitute a trick or swindle. Fraudulent accosting is a class A misdemeanor, and anyone charged under this section faces one year imprisonment.

In addition to the above charges, individuals who are caught ticket scalping could face charges under the Arts and Culture Affairs Law (‘ACA Law’). ACA Law § 25.09 states that any person who is in violation of §25.13 (sale of tickets without a license) will be guilty of ticket speculation. Ticket speculation is a class A misdemeanor, and anyone charged under this section faces one year imprisonment.

Given the heavy penalties associated with these offenses, individuals charged with any of the above offenses should contact an experienced attorney to handle their case.