Posts Tagged ‘US Attorney’s Office’

Federal Criminal Defense Attorney Explains Illegal Firearm Possession (18 USC 922[g]).

Tuesday, December 3rd, 2013

One of the most common criminal charges in the federal system is a violation of 18 USC 922(g). This chapter makes it illegal for certain persons to possess firearms. Notably, this charge in this subsection does not depend upon the type of firearm possessed, though that factor can affect the potential penalties for the offender.

The statute states the following:

(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;
(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
(6) who has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) who is subject to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) who has been convicted in any court of a misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Now consider the following about the above:

    1) Convicted felons

Generally speaking, this means that it is illegal for a convicted felon to possess a firearm, as felonies are typically by definition crimes punishable by a term in prison exceeding one year. Notably, it is irrelevant whether the felon actually served a jail sentence or not for his felony conviction – all that matters is whether the conviction itself could have legally resulted in such a sentence. The conviction need not have occurred within the territorial jurisdiction of the federal prosecution, meaning that the US Attorney for New Jersey can prosecute someone for possessing a firearm in New Jersey even if his prior felon conviction was in California.

    2) Fugitives from justice

This applies to anyone with an outstanding bench warrant for a criminal case or an escapee from prison or custody.

    3) Drug addicts

As a practical matter, this particular allegation is much more difficult for prosecutors to prove, as drug tests or admissions of this sort are not normally available to them.

    4) The mentally defective

This subsection is obviously quite controversial as it seems to demonize those that have sought treatment for mental illness; even those that have since been stabilized with medication or “cured” are still technically prohibited, for life, from owning a firearm once they have been committed to a mental institution for a period of time (absent any waivers of this charge).

    5) Illegal Aliens

Obviously, an illegal alien charged with possessing a firearm is not only facing criminal charges for possessing a firearm on U.S. soil, he is also likely facing removal/deportation proceedings as a result of this charge.

    6) Dishonorable Discharge

Interestingly, receiving a dishonorable discharge from any branch of the U.S. military prohibits a person from possessing a firearm in much the same way that a felony conviction would.

    7) Renouncing U.S. citizenship

This is rarely applicable or used, in that it would be a rare case to find a person that had 1) renounced his or her U.S. citizenship, 2) returned to U.S. soil, and 3) been arrested for possessing a firearm.

    8) People subject to orders of protection

As you can see from above, a person with a pending temporary or final order of protection – issued by either a family court or a criminal court – may also be prohibited from legally possessing a firearm under certain conditions. Most people subject to orders of protection against others as a result of New York state criminal court cases are probably unable to legally possess a firearm under federal law, though it would depend on the factors listed above.

    9) Misdemeanor convictions for domestic violence

Lastly, individuals that have been convicted of misdemeanor domestic violence crimes such as assault, aggravated harassment, endangering the welfare of a child, criminal contempt, menacing or other charges cannot legally possess a firearm under federal law. Typically in state court domestic violence crimes are specially designated as such and the resultant convictions are often specifically listed on criminal records as having been for “domestic violence”, making it easier for prosecutors to determine whether an individual in possession of a firearm has committed a federal crime on this basis.

If you or a loved one have been arrested for a federal drug charge like 18 USC 922(g), or if you have questions about whether your gun ownership is lawful, you should strongly consider contacting an experienced criminal defense attorney immediately.

For more on this subject, you can visit the ATF’s website.

The Future of Wall Street Insider Trading Prosecutions: A Criminal Defense Lawyer’s Thoughts on the Raj Rajaratnam Conviction

Thursday, May 12th, 2011

This week, Manhattan federal prosecutors scored a huge victory with a conviction in the insider trading trial of billionaire Raj Rajaratnam, the former manager of the successful Galleon hedge fund.  Rajaratnam is expected to be sentenced to anywhere between 15.5-19 years in prison as a result of his conviction, though he plans to appeal to the Second Circuit Court of Appeals.  Now that the trial phase is over, however, it is time to contemplate what, if any, consequences this conviction could have for the financial industry and the professionals working in it.   Smart defense attorneys will also dissect this trial – in particular, the strategies used by the attorneys – and learn some valuable lessons from it.

To begin, it is widely believed that this conviction will embolden prosecutors and make them even more willing to pursue financial professionals suspected of insider trading.  This is probably true, though some commentators seem to forget that federal prosecutors were already under significant pressure from the public and their politicians to hold the perceived Wall Street fat cats criminally accountable for the nation’s economic woes.  (And the numbers speak for themselves: over the last 18 months, the Manhattan U.S. Attorney’s Office has charged 47 individuals with insider trading crimes and 36 have pleaded guilty or been convicted. Preet Bharara, the U.S. Attorney for the Southern District, has promised more prosecutions to come, as well.)

From an attorney’s standpoint, it was interesting to see techniques that were once reserved for cartel and Mafia prosecutions – such as wiretaps and cutting testimony deals with cooperating co-defendants – put to such effective use against Raj Rajaratnam.  Indeed, as Rajaratnam’s attorney, John Dowd, discovered, an incriminating tape recording of your client can be very difficult to overcome. (Coincidentally, the other front-page trial currently in progress – that of the “rape cops” Kenneth Moreno and Franklin Mata –  involves a highly damaging secret recording of the defendant.)  The techniques prosecutors used were not new, but until now, Wall Street defendants were not used to seeing them used against them.

In some ways, though, this very public trial and conviction of Mr. Rajaratnam might yield some subtle silver linings for future inside trading defendants.  From a criminal lawyer’s standpoint, the case against Mr. Rajaratnam was a grand affair : Mr. Rajaratnam was one of the richest and most successful hedge fund managers on the Street, the government had numerous recorded wiretapped conversations, and the prosecutors cut deals with other defendants for their testimony.  So, the question becomes: will juries accept anything less?  What if prosecutors don’t have incriminating wiretapped conversations?   In some ways, the issue is analogous to the “CSI Effect” often lamented by prosecutors: without elaborate DNA evidence or scientific proof, juries that have spent years watching fictional and unrealistic television courtroom dramas are often less willing to convict defendants.  So, what was once considered a cutting-edge prosecutor’s advantage – DNA evidence – has now almost become a prerequisite for their success. Similarly, juries in white collar/insider trading cases may not be willing to convict someone without the sort of wiretapped conversation that they may have read about in Rajaratnam’s case.  Prosecutors have made it clear that they intend to pursue more wiretaps against Wall Street executives, but there is simply no way that every prosecution case will involve this evidence.  Thus, those lucky defendants – particularly the lower-level defendants with less of a profile than Mr. Rajaratnam – may be able to successfully take advantage of this “CSI Effect” with their juries.

Hindsight always being 20/20, we hesitate to criticize the defense strategy, as it was most assuredly a difficult case to defend.  However, there are two things that we can probably take away from this case: first, the jury on white-collar cases should probably not be blue collar.  Right now, anti-Wall Street sentiment is at an all-time high in this country.  Mr. Rajaratnam’s team deliberately avoided putting financial professionals on the jury – we suspect that they did that because they were concerned about jurors that would be personally familiar with the issues relating to public and private investment information.  However, that strategy may have backfired; certainly, it is difficult for teachers and blue collar workers to relate or sympathize with the plight of billionaires.  A few financial professionals on the jury might have felt a little “defensive” about the prosecution’s case, if, as defense attorney John Dowd suggested, what Mr. Rajaratnam did wasn’t a crime because this sort of thing “happens every day on Wall Street.”

Additionally, Mr. Rajaratnam perhaps should have testified in his defense.  The decision whether or not to testify is a complicated one and we are sure that Mr. Rajaratnam and his team agonized over it, but ultimately, we think that it is exceptionally difficult to win cases like these unless the defendant personally provides an explanation for his actions, and, perhaps even more importantly, demonstrates to the jury that he is a decent and likable human being.

If you or a loved one have been arrested or are being investigated for insider trading or some other financial-related crime, you should strongly consider contacting the experienced criminal defense attorneys at Galluzzo & Johnson LLP.  Our attorneys include three former Manhattan prosecutors that have tried, and won, exceptionally difficult trials and arbitrations under intense pressure.  We have successfully represented Wall Street brokers, traders, and other financial professionals in a wide range of criminal and civil matters.  Our attorneys have a deep and sophisticated understanding of the financial industry, and we have used that expertise to win stunning victories in cases involving alleged financial fraud.  Call us or email us today to set up an appointment at our convenient Wall Street location.