New Jersey Criminal Defense Attorney Blog Covering New Jersey and Federal Criminal Law and Procedure

Articles Posted in Current Events

Two years ago, the Obama administration commenced an effort to grant clemency to federal non-violent drug offenders who would have received shorter prison sentences had they been sentenced under subsequently revised advisory sentencing guidelines.  Last week, President Obama granted clemency to 111 federal inmates, 35 of whom originally received life sentences.  Earlier in August, Obama granted clemency to 214 similarly situated federal inmates.  August’s clemency grants raises his total number of commutations to 673 – more than the past 10 presidents combined.

The administration is attempting to address a substantial number of clemency petitions in its final months.  This effort is apparently angering several Republicans in the House and Senate; however, and given the fact that he is finishing his second term, Washington insiders believe that Obama couldn’t care less.  Obama is, in fact, the first sitting US President to tour a prison facility, having visited El Reno FCI in Oklahoma last year where he, among other things, actually met with inmates.  He has also had lunch with clemency recipients.  All indications are that he truly believes in this and, given the end of his tenure, can act without fear of major political repercussions.

As discussed previously on this blog, the clemency initiative was intended to address the sentences of non-violent offenders sentenced under now-amended sentencing guidelines that previously set longer sentences for their particular offenses.  The problem that the administration faces is that several thousand federal inmates, including white collar defendants, defendants convicted of violent offenses and sex offenders, all applied for clemency, thereby flooding the program with petitions. Continue reading

This blog and the accompanying firm website have numerous entries concerning drug court and other diversionary programs.  One of the many stated purposes of these programs is to make the criminal justice system more efficient and effective.  Other federal and state efforts and initiatives currently being implemented share the same goal.  These programs and efforts all focus attention on a growing recognition of the need to increase the system’s overall efficiency, and to use criminal justice resources as effectively as possible.  Particularly in these times of tight budgets and cost-cutting, all of these issues warrant discussion.

Briefly, a diversionary program diverts a criminal case away from the mainstream criminal justice system to a program that is more suited to resolving the issues that gave rise to the case.  Currently, in New Jersey, the two most popular diversionary programs are Pre-Trial Intervention and Drug Court.  Pre-Trial Intervention (frequently referred to as “PTI”) is a special form of probation that has been around for many years.  The program is open to defendants with no prior criminal record and relatively low-level charges (typically no higher than third degree indictable offenses).  The defendant must be cleared for entry into PTI by a section of the Clerk’s Office known as Criminal Case Management, and by the prosecutor’s office of the county where the case is pending.  A defendant who successfully completes PTI probation will not have a record for an indictable (felony) conviction.  The disposition of that case will show as “PTI” on their criminal record.  This is very significant, since the successful defendant will not have a felony record and all of the disabilities and problems that accompany it.  In the past, defendants were accepted into PTI without having to plead guilty to any particular offense.  In recent years, more prosecutor’s offices have required the defendant to plead guilty to an offense as a prerequisite to acceptance.  The plea is then held in abeyance and, if the defendant completes the program successfully, is vacated.  Defendants who fail to complete PTI successfully are simply sentenced on their plea.

Drug Court, which is a more recent development, is another popular diversionary program.  It is designed for defendants whose criminal conduct is motivated by substance abuse problems.  For example, a defendant may be charged with a series of burglaries, and it is ultimately discovered that they committed the offenses so that they could obtain items to sell in order to have money to purchase narcotics.  Non-violent defendants with drug problems may be eligible for admission into Drug Court.  The defendant has to be evaluated by a trained substance abuse counselor who, in turn, prepares a report for the court and counsel.  That report describes the defendant’s drug problem, and makes treatment recommendations.  Defendants deemed acceptable by the court are admitted into the program.  Instead of receiving a conventional sentence on their criminal charges, they are sentenced to a term of Drug Court probation.  The term is typically five years, but they can be discharged earlier if they complete all of the steps of the program in a shorter period of time.  As with PTI, defendants who are admitted into Drug Court can be required to enter a guilty plea on the underlying criminal charges, and can be sentenced on that plea if they violate the terms and conditions of their Drug Court supervision.  Every New Jersey county has a Drug Court judge who is trained to handle these cases and, during their tenure as Drug Court judge, develops considerable experience with defendants with substance abuse issues. Continue reading

Many defendants focus exclusively on only one issue in their case – Am I going to jail?  If there is even a possibility that this question may be answered affirmatively, follow-up issues concerns the length of the sentence and the facility where it may be served (e.g., state prison vs. county jail).  What often gets lost in the discussions concerning this aspect of a criminal case are the collateral consequences of sentencing.

Collateral consequences are other things that happen to someone with a felony conviction that have little to do with jail or prison time.  These consequences follow a defendant upon release from custody, and can affect virtually every aspect of their life.  A Federal Judge in the Eastern District of New York just wrote a 42-page opinion concerning collateral consequences that should be required reading for every trial judge (Federal and State) in the United States.

Chevelle Nesbeth, the defendant and a college student from Connecticut who apparently had no meaningful prior criminal record, was entering the country at Kennedy Airport.  She was coming from Montego Bay, Jamaica.  In a random bag inspection, customs agents noticed what they viewed as unusually dense handrails on her suitcases.  Further inspection revealed approximately 600 grams (or 2 1/2 pounds) of cocaine, with an estimated street value of $45,000.  Nesbeth elected to proceed to trial, arguing that she received the bags from friends and knew nothing about the drugs.  The jury did not believe her, and convicted her of importing drugs and possession with intent to distribute.  Under the Federal advisory sentencing guidelines, Nesbeth faced a sentence including, among other punishments, a custodial term of 33 to 41 months. Continue reading

Prior articles on this blog have discussed our increasing dependency on our electronic devices.  Many members of my generation are still getting somewhat used to smart phones, I-pads, and the like.  However, for our children who have grown up with them, using these devices is perfectly natural and an ordinary part of life.  These things are all second-nature to them.  The younger generation will never understand our take on these devices because they did not grow up in a time when a Princess slim-line rotary telephone (remember those?) was cutting-edge technology.

While they seem to be thoroughly in tune with the latest technological rages and crazes, our kids do not necessarily appreciate the darker side of modern technology which, in addition to all kinds of devices, includes a bewildering array of apps and social media products and services.  Last week, an 18-year-old Ohio woman learned the hard way that misuse of this technology can have dire consequences.

Marina Alexeevna Lonina (age 18) and an acquaintance identified as Raymond Boyd Gates (age 29) have been charged in connection with the rape of one of Lonina’s classmates.  Lonina and the victim, who was 17 at the time of the incident, attended the same high school outside Columbus.  Lonina, Gates, and the victim were socializing at a Columbus residence when, at some point, Gates allegedly forced the victim to have sex with him.  Lonina “Periscoped” (live-streamed in real time) the rape.  One of Lonina’s friends, who was located in another State, viewed the live-stream of the rape and contacted law enforcement.  During the evening preceding the sexual assault, Lonina had also photographed the victim in the nude.  A Franklin County grand jury indicted Lonina and Gates for kidnapping, rape, sexual battery, and pandering sexually oriented material involving a minor.  Lonina was also charged with illegal use of a minor in nude material or performance, which related to photographing the victim the night preceding the rape.  These latter two charges appear to be variations of distributing child pornography.  Each defendant now faces over 40 years in prison. Continue reading

A free and independent judiciary is a cornerstone of our constitutional structure.  In our system, judges are supposed to remain free of political pressure to the fullest extent possible so that they can interpret and apply our laws without having to fear political reprisals resulting from their decisions.  Anybody who has successfully completed a middle school social studies class knows that in this country, the judiciary is supposed to act as a check on the other two branches of government.  The notion of a free and independent judiciary is, however, being reduced to little more than a nice sentiment.  In reality, the federal judiciary, as well as state judicial systems throughout the country, are increasingly under assault from both the executive and/or legislative branches of government.

As a threshold matter, it is important to remember that no judicial system in the United States can be wholly free of politics.  Judges are elected to the bench in 38 states.  In these states, judges have to run political campaigns just like candidates for the legislative or executive branches which, of course, includes raising money.  Campaign spending in a recent Arkansas judicial election reached $1.2 million.  In a relatively recent Wisconsin judicial election, the amount exceeded $2.6 million.  The issues of campaign finance and money in politics are discussed frequently in the context of executive and legislative elections.  The same problem appears to be growing in the judicial arena as well, but does not appear to be receiving the same level of attention.  (Personally, I think the idea of an elected judge is patently silly, and totally contrary to the kind of judiciary that best fits within our constitutional democracy.)

Further, in states that do not elect judges, candidates are appointed to the bench by elected representatives.  Judicial appointments thereby become campaign issues at the time of the election and re-election of those representatives, and those elected to positions of power typically appoint judges who are either members of the same political party, who share their political views, and/or who contributed significant sums to their campaign.  Against this backdrop, it is completely naive to assume that all politics can be removed from the judicial appointment process.  Given the foregoing, some politics in the process is inevitable, and American society has apparently decided to accept this. Continue reading

A US Magistrate Judge in California ruled recently that technology giant Apple could be required to create specialized software to help federal investigators bypass the security protocols on the encrypted Iphone 5S used by Syed Farook, one of the San Bernardino shooters.  This ruling conflicts with the ruling of a US Magistrate Judge in Brooklyn, who found that he could not order Apple to take steps to bypass the security features of an Iphone seized during an earlier drug investigation.

The media coverage of the more recent San Bernardino case has been far more extensive because it involves the December 2, 2015 mass-shooting committed by a married couple who were radicalized by ISIS.  The facts and events giving rise to the older Brooklyn case are far more ordinary.   But for the Iphone issue, that matter arises from just another relatively routine federal narcotics investigation – one of who-knows-how-many that play out in federal courts across the country every single day.

But a review of the ordinary drug case reveals far more about the development of the cell phone security issue that is at the heart of this debate.  The drug case involves an alleged methamphetamine dealer named Jun Feng, who’s phone was seized during the 2014 search of his Queens, New York residence.  Investigators sought to access his phone to obtain information that is fairly routine in drug cases, such as contact lists.  According to prosecutors in that case, Apple had assisted federal agents in extracting information from Iphones tied to criminal investigations approximately 70 times in seven years.  To law enforcement’s surprise, Apple suddenly changed its position as to such issues in Feng’s case.  Feng entered a guilty plea last October, but attorneys for both Apple and the Government continued to press the Court for a ruling and the Court ruled against the Government. Continue reading

The United States Attorney’s Offices for the Southern District of New York and the Northern District of Georgia recently announced three indictments charging several defendants with, among other things, computer hacking, theft and fraud.  [US v. Shalon, No. 15-cr-00333 (S.D.N.Y.); US v. Murgio, No. 15-cr-00769 (S.D.N.Y.); and US v. Shalon, No. 15-cr-00393 (N.D.Ga.)]  More specifically, the grand juries hearing these cases charged the defendants with computer hacking, securities and wire fraud, identity theft, illegal internet gambling, conspiracy to commit money laundering, and operating an unlicensed money transmitter.  These cases are noteworthy not only because of the sheer magnitude of the enterprise described by federal prosecutors, but also because of the manner in which they highlight the increasingly aggressive posture that the Justice Department continues to take toward cybercrime.

According to the US Attorney, the defendants hacked into the computer systems of several large financial services companies and financial news publishers.  Federal prosecutors did not identify the companies involved, but other news sources identified at least some of them as JPMorgan Chase, ETrade, Scottrade, TDAmeritrade, Fidelity Investments, and Dow Jones.  The defendants allegedly stole personal information for more than 100 million people and used it to, among other things, market securities in a deceptive manner by arranging to have prospective purchasers cold-called.

The defendants’ other activities allegedly included operating illegal online casinos, payment processing for criminals, operating an illegal bitcoin exchange, and laundering money through up to 75 shell companies and accounts around the world.  In the course of doing so, the defendants purportedly procured and used over 200 false identification documents which included over 30 false passports issued by almost 20 different countries, as well as servers located in Egypt, the Czech Republic, South Africa, Brazil and other countries.  The US Attorney believes the defendants generated hundreds of millions of dollars in illegal proceeds.  Many of the charged offenses carry federal prison terms of 20 years. Continue reading

The United States houses a quarter of the world’s prison population.  The Justice Department has an annual budget of about $27 Billion, a third of which is spent on operating the federal Bureau of Prison’s 120 facilities.  Further, since 1980, the US population has grown by about a third, while the federal prison population has grown by about 800%.  It is estimated that federal prisons are currently operating at about 40% over capacity.  Much of this resulted from the harsh sentences imposed for drug-related crimes in the 1980s and 1990s, when the approach to this class of offenders was mass-incarceration.

In April, 2014, the United States Sentencing Commission, the body responsible for formulating sentences for federal offenses, generated new guidelines that reduced the penalties for non-violent drug crimes.  It later said that the revised guidelines could be applied retroactively to many inmates serving long sentences for narcotics-related offenses, leading to inmate requests for reduced sentences.

The Commission’s actions on this issue coincide with bipartisan efforts to reverse the mass-incarceration approach to drug crimes.  Indeed, a bipartisan group of senators recently proposed substantial revisions to federal sentences geared toward reducing mandatory minimum sentences and granting early release to inmates serving sentences disproportionate to their offenses. Continue reading

Cleveland, Ohio has become the latest city to enter into a consent decree with the United States Justice Department (“DOJ”) concerning the conduct of its police force.  Other cities that have previously entered into similar agreements include New Orleans, Seattle and Detroit.

The consent decree stemmed from a DOJ investigation that found Cleveland police officers had routinely used excessive force (e.g., tasers, pepper spray and guns) against mentally ill, unarmed and already-handcuffed suspects.  DOJ investigators reviewed approximately 600 use-of-force incidents that occurred between 2010 and 2013 and concluded that officers almost routinely used guns in a “careless and dangerous manner”.  Other problems with the police department included its apparent inability and/or unwillingness to investigate complaints against itself.

The consent decree will cover such topics as use of force by police officers, community policing and engagement, accountability, crisis intervention and bias-free policing.  The consent decree will be supervised by a Federal judge, and will terminate only after Cleveland can demonstrate sustained and substantial compliance with its terms.  If the City fails to implement the changes contemplated by the agreement, the judge can order them to do so. Continue reading

The Cook County Jail in Chicago is one of the largest county jails in the United States, holding up to 9,000 inmates on any given day.  It is estimated that approximately one third of these inmates are mentally ill.  Indeed, Cook County officials have stated that the jail is, in effect, the largest mental health facility in Illinois.

Unfortunately, and as I have written in other posts, it is not unusual for a jail or prison facility to hold such a large number of mentally ill inmates.  What is unusual at Cook County, however, is the fact that the new director of the jail is a Clinical Psychologist, Dr. Nneka Jones Tapia.  Dr. Jones Tapia is apparently no stranger to the issues of mentally ill jail inmates or the situation in Cook County, having previously been in charge of the jail’s four divisions that house its large population of inmates with mental health issues.

Statistics show that the overall inmate population at the jail may be falling; however, the number of inmates with mental health issues either remains constant or increases.  These inmates suffer from the entire array of mental health problems including, without limitation, depression and bipolar disorder.  Some of them are floridly psychotic and require stabilization. Continue reading