On August 18, 2015, I completed a three-month long trial in Supreme Court, New York County on an indictment charging Conspiracy to Commit Murder, Attempted Murder, Conspiracy to Commit Gang Assault, Conspiracy to Commit Criminal Possession of Weapons in the Second Degree (two statutory theories), Assault in the First Degree, Gang Assault and Criminal Possession of a Weapon in the Second Degree (two statutory theories). Conspiracy to Commit Murder is an A-1 felony carrying an indeterminate sentence of a minimum sentence of 15 to 25 years and a maximum of life.

The trial involved five defendants and testimony included over 200 witnesses and evidence concerning over 30 shooting and knifing incidents over a four-year period. Three cooperators testified. The charges arose from alleged gang rivalry between three different alleged gangs in west Harlem. Over 120 individuals were indicted, of whom about 60 pleaded guilty prior to the trial. The five defendants in our trial were the first tried. While two murders were part of the evidence presented, none of the five defendants was involved in those murders.

A partial verdict was rendered for three of the defendants on August 18. One defendant was acquitted outright of five counts involving one shooting incident and the three conspiracy charges. My client was acquitted of two of the shooting incidents charged in 10 different counts but found guilty of three other shooting incidents and the conspiracy charges. Similarly, another defendant was acquitted of two shooting incidents but found guilty of another shooting incident and the conspiracy charges.

On August 19, another defendant pleaded guilty to Conspiracy in the Second Degree with a promise of 5-1/2 to 16-1/2 years after having been acquitted of 7 of 10 counts, but while the jury was still deliberating the A-1 felony. A fifth defendant was acquitted of 11 of 15 counts including the A-1 Murder Conspiracy, but found guilty of some of the lesser charges including Attempted Assault in the First Degree and Attempted Gang Assault.

Overall for the five defendants, there were 47 acquittals of about 75 counts.


Recent white-collar civil and criminal developments as reported in The New York Times:

On March 14, 2015, The New York Times reported that the SEC has changed its approach to settling certain cases by requiring an admission of wrongdoing.  Previously, it was common fro the SEC to settle a case without a corporate acknowledgement of wrongdoing.  See: http://nyti.ms/1ACKfOr

On March 11, 2015, The New York Times reported that Utah is the first state in the nation to initiate a public white-collar offender registry.  Defense counsel argue that it piles on punishment.  Proponents argue that it protects the public and furthers restitution.  One condition to get off of the registry is to make full restitution.  Left unsaid is whether the registry has an ex post facto element like sex-offender registries requiring offenders convicted prior to the passage of the law to register.  See:  http://nyti.ms/1AlVBWR

On February 25, 2015, The New York Times that the SEC has set letters to several companies probing whether companies are silencing potential whistleblowers, as reported in The Wall Street Journal.  Dodd-Frank gave the SEC authority to establish a corporate whistleblower program.  See: http://nyti.ms.1zgill5

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The New York Times recommended in an editorial today that the government accord Edward Snowden clemency or a lenient plea bargain for his whistleblowing revelations of domestic spying and potentially criminal conduct by the National Security Agency.  Snowden was an NSA contractor who stole highly classified documents and then revealed the abusive nature of NSA collection of domestic personal data through Internet and telephone call monitoring.  The Times stated, “[c]onsidering the enormous value of the information he has revealed and the abuses he has exposed, Mr. Snowden deserves better than a life of permanent exile, fear and flight.”

 The Times provided a summary of the extraordinary revelations of NSA misconduct including:

 –  The NSA broke federal privacy laws or exceeded its authority thousands of times per year according to the agency’s own internal auditor.

 –  The agency broke into the communications links of major data centers around the world allowing it to spy on hundreds of millions of user accounts.

 –  The NSA systematically undermined the basic encryption systems of the Internet, making it impossible to know if sensitive banking or medical data is truly private.

 –  Snowden reveled that James Clapper Jr., the director of national intelligence, lied to Congress in March when he testified that the NSA was not collecting data on millions of Americans.  

 –  The Foreign Intelligence Surveillance Court rebuked the NSA for repeatedly providing misleading information about its surveillance practices.

 –  A federal district judge ruled earlier this month that the phone-records collection program probably violates the Fourth Amendment of the Constitution and called the program “almost Orwellian.”

 Of course, The Times is talking into the wind when it recommends that the Obama Administration offer Snowden clemency.  The Obama Administration has established itself as a “take no prisoners” defender of classified material and has maintained the national security apparatus it inherited from the Bush Administration.  It would be fanciful to expect the Obama Administration to dismantle the national security state even when Snowden’s revelations demonstrate that this very government has turned on its own people and violated rights enshrined in the U.S. Constitution.  

On December 2, 2013, The Nonhuman Rights Project filed a habeas corpus petition to free a chimpanzee held in a cage in a shed in a used-trailer lot in Gloversville, N.Y.  (“Rights Group Is Seeking Status of ‘Legal Person’ for Captive Chimpanzee,” James Gorman, The New York Times, December 3, 2013, p. A19 [“NYT”]).  Habeas corpus petitions are used to bring before a court in the United States a case to free human beings held in custody against the law or their rights.  This novel approach to animal rights is based further on the legal principle recognizing animals as legal persons for the purpose of being the beneficiary of a trust.  Leona Helmsley famously left $12 million in her will to her dog, Trouble. 

 Asserting rights for chimpanzees that are normally reserved for human isn’t so far-fetched.  After all, corporations are recognized as persons under the law, and corporations have a lot less life that chimps have.  Over 90 percent of human DNA is also found in chimpanzees.  (American Society of Genetics (2012, November 6), “Humans, Chimpanzees and Monkeys Share DNA But Not Regulatory Mechanisms,” Science Daily, http://www.sciencedaily.com/releases/2012/11/121106201124.htm).  According to the legal brief filed by The Nonhuman Rights Project, Chimpanzees have qualities that should provide them with a right to bodily liberty including awareness of self, past and future.  (NYT). 

 The Nonhuman Rights Project plans on filing three similar petitions for three other chimpanzees caged in New York State. 



The U.S. Attorneys Offices throughout the country are the chief federal law enforcement officials and litigators for the federal government.  Their mission, however, may be endangered by sequestration’s additional round of budget cuts amounting to $100 million for all federal agencies in the coming fiscal year.  So, far the U.S. Attorneys Offices have survived on attrition and a hiring freeze.  For example, last year the U.S. Attorney’s Office for the Southern District of New York lost 20 attorneys of its 230 attorney staff through attrition and the hiring freeze.  (“Prosecutor Sees Danger in Budget Cuts,” Benjamin Weiser, The New York Times, Dec. 3, 2012, p. A23 [“NYT”]).  Annual attrition amounts to about 22 attorneys each year.  (NYT).

With dwindling prosecutorial resources, U.S. Attorneys Offices will be forced to prioritize which cases they take and which they refuse.  The obvious strategy is to decline the types of prosecutions that states can and do take.  Traditional areas in which the states have prosecutorial expertise include weapons possession, illicit drug offenses and intra-state fraud.  The federal government may wish to retrench in these areas and emphasize prosecutions of a purely interstate nature such as interstate fraud, drug importation and terrorism.

Most states have laws prohibiting convicted felons from possessing weapons.  The federal “trigger-lock” program, in cooperation with state prosecutors, brings defendants who are being prosecuted by states into federal court for enhanced penalties.  However, many of the state penalties are already sufficient to get gang members off the streets for extended periods.  In most states, deemphasizing the trigger-lock program will not seriously disadvantage prosecutorial goals.

Similarly, with drug prosecutions, the states have the prosecutorial experience and apparatus to pick up declining numbers of prosecutions by the federal government.  For example, in New York City, the City’s Office of the Special Narcotics Prosecutor has special jurisdiction across the five boroughs to bring drug prosecutions in State court.  The Special Narcotics Prosecutor also has a large, experienced staff to bring these prosecutions.  Given the stalemate in federal funding, the States will have to decide whether it is their own priority to continue the war on drugs and supplement declining federal prosecutions in this area.   This may be an optimal time for the society as a whole to reevaluate the efficacy of the war on drugs and the effect it has had in creating a nation with the second largest incarceration rate in the world.

A third area in which most states are well versed is in the prosecution of fraud.  The federal government could cede prosecution of all intrastate fraud to the states and emphasize prosecution of fraud that is clearly interstate in scope.

The upcoming round of budget talks will determine in a significant way not only the nature of federal law enforcement, but also, the nature of the federal government in the near future.

Visit us at http://www.garycutlerlaw.com and trialblog.net.

According to information released on November 27, 2013 at the Federal Bar Council’s Annual Thanksgiving Luncheon, the federal courts cannot continue to operate in Fiscal Year 2014 at funding levels equal to last year “without adversely impacting its constitutional and statutory responsibilities.”  Last year’s budgets for all federal agencies were reduced over the prior year by the sequestration when Congress failed to reach an agreement on an operating budget for the federal government triggering a vast reduction in spending on all federal programs.  In fiscal year 2013, Judiciary funding was cut by nearly $350 million.  The cuts are devastating because the Judiciary has no control over its workload; the courts must react to the cases it receives from the Executive Branch, including criminal cases, individuals and businesses.  Congress will be debating a budget in the coming months and if they fail to reach an agreement on spending levels, an additional round of sequestration cuts will occur. 

 The Federal Bar Council is an organization of attorneys who practice before the federal courts of New York, Connecticut and Vermont.  According to the Federal Bar Council, if last year’s cuts are frozen in place there will be serious consequences throughout the federal judiciary.  Operating budgets would drop three percent below FY 2013 levels.  This would result in an estimated loss of 1,000 employees nationwide through the end of FY 2014.  The courts have already lost 3,000 staff positions since July 2011. 

 These staff cuts would further reduce supervision and drug and mental health treatment services for convicted felons released from prison; lengthen an already severe backlog in the processing of civil and bankruptcy cases; further reduce public hours in clerks’ offices; and cancel or extend costly delays in the implementation of critical information technology applications.  Probation and pretrial services staffing would be reduced.

 A hard freeze would also result in a $6 million shortfall for jurors’ fees. 

 Court security would experience a $23 million shortfall.  Hours for Court Security Officers would be reduced by 50 hours each.  In FY 2013, sequestration resulted in a 30 percent cut in funding for court security systems and equipment and additional reductions were made in contract guard services.  According to the Federal Bar Council, ” [c]uts of this scale would create severe security vulnerabilities throughout the federal court system by impairing the [U.S. Marshal’s Service] ability to provide adequate security for judges, jurors, litigants, court personnel, and the public.” 

 Amounts paid to CJA lawyers, who represent the indigent in criminal cases, would be reduced by $15 per hour and payments would be delayed two weeks into FY 2015. 

The Federal Public Defenders, who represent 40 percent of indigent defendants, received a $52 million cut in FY 2013.  20,600 days of employee furloughs resulted from the cuts and staff was reduced by 11 percent or 400 employees. 

During the Thanksgiving luncheon, the Federal Bar Council kicked off a Congressional writing campaign to restore funding to the Judiciary above sequestration levels. 

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In a case that drew broad media attention, a Greenwich Village psychic, Sylvia Mitchell, 39, was sentenced in New York Supreme Court last week to 5 to 15 years’ imprisonment for defrauding clients of over $100,000.  The media’s focus undoubtedly arose from the irony of a successful fraud prosecution against a practice that everyone knows is fake.  What’s next on the radar of the District Attorney, professional wrestling?  Nonetheless, the gullibility of the victim is no defense against fraud. 

Prosecutors originally offered Mitchell a plea without jail time.  (“Judge Gives Fortuneteller In Manhattan 5 to 15 years,” Michael Wilson, The New York Times, November 15, 20013, p. A27 (“NYT”)).  This may have reflected the DA’s uncertainty about a conviction but also likely reflected Mitchell’s status as a first time offender with two teenage children.  After a jury convicted her, the DA recommended a three to nine-year sentence, but the Court sentenced above that recommendation.

What got Mitchell into trouble with the law was not the falsity of any predictions, but rather, the falsity of what she claimed she could do for her clients and her vision into the past.  Mitchell’s former attorney stated that Mitchell wasn’t predicting the future.  Rather, she told her clients that she would pray for them and perform rituals to get rid of any negativity she sensed around them.  (“Sylvia Mitchell, NYC Psychic Gets Prison In 6 Figure Scam Case, ” Jennifer Peltz, Huffington Post, “Huff Post New York,” 11/14/13 (“Huff Post”).  One client testified that she paid more than $120,000 after Mitchell promised she would help rout “negative energy.”  (“Huff Post”).  How is this any different than the promises of most organized religions or any New Age psychotherapist?  But Mitchell also told that victim that the victim’s unrequited crush on a fellow office worker resulted from the victim’s family having harmed the crush in a prior life.  (Huff Post).  While this statement is not within the realm of rational thought, it is still within the realm of “magical thinking,” as Bill Maher would put it, that affects a good portion of this country. 

Another client testified that Mitchell told her that the client had been an Egyptian princess in the past and she needed to break her attachment to money.  Mitchell convinced her to hand over $27,000 to hold, only some of which was refunded.  (“Huff Post”).  This is the stuff of which typical fraud charges are made, but alone, would not be a sufficient loss to sustain a 5 to 15 year sentence. 

The prosecution portrayed Mitchell as a predator on people with insecurities or who were in emotional difficulties.  The defense asserted that people hired Mitchell to assist and there was no evidence that she did not assist.  (“Huff Post).  One assumes that Mitchell turned down a no-jail plea deal believing a jury would view her work as an expensive life coach. 

There is a plethora of psychics’ storefront parlors in New York City.  Apparently, they have a sufficient stream of income to pay high rents.  One can only assume their success comes from repeat customers who do not visit for the entertainment value.  May we expect a roundup of psychics by the DA in the near future?

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An audible gasp was heard in the courtroom on November 15, 2013 when Jeremy Hammond was sentenced to 120 months imprisonment and three years of supervised release.  (“Hacker Receives 10-Year Sentence for ‘Causing Mayhem,'” Mark Mazzetti, The New York Times, Nov. 16, 2013, p. B2 (“NYT”)).  The Huffington Post described Hammond as “an activist who uses computer networks for political protests and other actions.”  (“A Conversation With Jeremy Hammond, American Political Prisoner Sentenced to 10 Years,” Vivien Lesnik Weisman, “Huffington Post,” “Huff Post Politics,” November 19, 2013, p. 1 (“Huff Post”).  Hammond is a “prominent member of the hacking group Anonymous.”  (NYT, p. B2).  He has also been described as “working under the banner of AntiSec, an offshoot of the hacktivist collective Anonymous.”  (Huff Post, p. 1).

Months earlier, in May 2013, Hammond pleaded guilty to a one-count Information charging him with a conspiracy to engage in computer hacking in violation of 18 U.S.C Sections 1030(a)(2)(C), (c)(2)(B)(iii) and (c)(2)(C).  The information described the conspiracy as follows:

“From at least in or about December 2011, up to an including in or about March 2012, HAMMOND and his co-conspirators mounted a cyber assault on the website and computer systems of Strategic Forecasting, Inc. (“Stratfor”), an information analysis company based in Austin, Texas, which maintained the website ‘www.stratfor.com.'”

(“Sentencing Memorandum On Behalf of Jeremy Hammond,” November 1, 2013, p. 2 (“Hammond Sent. Mem.”)).

The Stratfor hack resulted in the leaking of 5.2 million emails and account information for approximately 860,000 Stratfor subscribers and clients including information from 60,000 credit cards.  (Huff Post, p. 1).  The emails revealed domestic spying on activists including Occupy Wall Street and a practice of surveillance through personal management programs or fake online personas.  (Huff Post, p. 1).  According to the Government, associates of Hammond used the credit card numbers to make at least $700,000 worth of donations to non-profit groups.  (NYT, p. B2).

Prior to his plea, Hammond had reached a plea agreement with the Federal Government in which he stipulated that the U.S. Sentencing Guideline range was 151 to 188 months’ imprisonment, but that the maximum statutory sentence of the offense of conviction was 120 months.  (“Government’s Memorandum of Law With Respect To Sentencing,” November 12, 2013, p. 1).  The statutory maximum controlled the maximum sentence the Court could give.  The relatively high Sentencing Guideline range was driven by two factors:  1) a loss amount between $1 million and $2.5 million, and 2)  a number of victims larger than 250.  (Hammond Sent. Mem., p. 4).  The Sentencing Guidelines, however, are not mandatory and are only one of many factors listed in 18 U.S.C. Section 3553(a) that the Court must take into account when sentencing a defendant.  Federal District Judge Loretta Preska could have sentenced below the ten year maximum.

In addressing the Court at sentencing, Hammond stated that his hacking activities were “‘acts of civil disobedience’ against both an expanding surveillance state and the companies that do the government’s bidding.”  (NYT, p. B2).  This defense was echoed by his attorneys who stated that Hammond, “questioned the government’s use of private security firms to gather intelligence at home and abroad, and the free reign afforded to these companies to operate without public scrutiny or government oversight.”  (Hammond Sent. Mem., p. 3).  His crime “was undertaken as an act of civil disobedience.”  (Hammond Sent. Mem., p. 3).

Judge Preska disagreed telling Hammond, “there’s nothing high-minded or public-spirited about causing mayhem.”  (NYT, p. B2).

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New York City Criminal Court Judge Robert Mandelbaum sentenced Genevieve Sabourin to six months’ imprisonment yesterday, November 14, after she was convicted of two counts of stalking and one count of harassment and one count of aggravated attempted harassment. Ms. Sabourin, a publicist and aspiring actress, was accused of stalking and harassing actor Alec Baldwin and his wife Hilaria Thomas Baldwin. Earlier in the week, Judge Mandelbaum sentenced Ms. Sabourin to a 30 day term of imprisonment for contempt of court for disrupting the trial. The defendant had been offered a plea bargain in which she would serve no jail time and the charges would have been dismissed. Instead, Ms. Sabourin chose a non-jury trial that led to her combined sentence of seven months.

The New Jersey Supreme Court ruled on July 18, 2013 in State v. Thomas W. Earls that the police will have to obtain a search warrant to obtain location information from cell phone providers.  Cell phone providers can place the location of cell phones at specific times by tracking the particular cell phone tower with which the cell phone is interacting or has interacted in the past.  Typically, law enforcement agencies have been able to obtain this data without a warrant in other parts of the country.  

The Court based the ruling on the expectation of privacy reasonably expected by cell phone customers.  The decision was based squarely on the New Jersey State Constitution guarantees of privacy and not the Fourth Amendment to the U.S. Constitution, which protects against unreasonable searches and seizures.