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Alexandra Shapiro leads another victory at Second Circuit

Recently Alexandra Shapiro was successful in overturning the corruption conviction of Dean Skelos, a former New York state senator and majority leader.  Skelos and his son, Adam Skelos, had been charged in 2015 by the United States Attorney’s Office in the Southern District of New York (SDNY) with bribery, extortion and conspiracy relating to accusations that the father’s office pressured a developer, a medical malpractice insurer and environmental company to give his son consulting work that resulted in hundreds of thousands of payments. The father and son were convicted at trial in December 2015. Alexandra represented the ex-senator on appeal and another lawyer represented the son. Both convictions were overturned.  This isn’t the first time Alexandra has been victorious at the Second Circuit.  We have blogged about her seemingly golden touch before in a blog post, Alexandra the Great. The grounds for appeal were largely based on the United States Supreme Case ruling in McDonnell v United States which limited the application of the federal bribery statute 18 U.S.C. §201.  The Court ruled that an official act is a decision or action on a “question, matter, cause, suit, proceeding or controversy” and that it must involve the formal exercise of a governmental power, be something specific and focused that is “pending” or “may by law be brought” before a public official.  The Court clarified that setting up a meeting, talking to another official or organizing an event, without more, does not qualify as an “official act” per McDonnell. In the Skelos appeal, the panel found that the jury instruction given in the Skelos case was too broad, and considering the ruling in McDonnell, the definition of “official acts” provided to the Skelos jury could not be ruled harmless beyond a reasonable doubt. The Skelos appeal ruling was instant big news and reported in the New York Daily News and in the New York Times, where Shapiro was quoted as stating that Dean Skelos was grateful for the ruling and that “[w]e believe that as events unfold, it is going to become clear that this is a case that never should have been brought.” Joon H. Kim, the acting U.S. attorney for the SDNY has already indicated that the office intends to retry the father and son and was quoted in the New York Times as stating, “We look forward to a prompt retrial…” Oddly enough, even former U.S. Attorney Preet Bharara, who no longer would need to comment, felt compelled to weigh in on the ruling on Twitter. Regardless of what the future holds for this case, this victory lap is sweet and another well-deserved win for Alexandra Shapiro, who has her own firm Shapiro Arato, in New York City.  Alexandra continues to be at the center of many of the most influential white-collar appeals in this last decade and she continues to be a shining example of the great work that women are doing in our field. The post Alexandra Shapiro leads another victory at Second Circuit appeared first on Women Criminal Defense Attorneys.
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Will a Misdemeanor Conviction Affect My Immigration Status?

Immigration is a complicated and nuanced area of the law. Many different factors can have a significant impact on a person's immigration status. Possibly the most feared factors are criminal convictions. A criminal conviction can result in deportation and other consequences when it comes to a person's immigration status. Fortunately, not all criminal convictions will have a significant impact on a person's immigration status. But, whether or not a person is convicted of a misdemeanor or a felony is actually less significant when it comes to immigration status than the type of crime a person is convicted of. Serious Crimes and Aggravated Felonies Generally, serious crimes, like murder, drug trafficking, human trafficking, conspiracy, and others, will be grounds for deportation. However, starting in 1988, congress created a list of "aggravated felonies" which also can be grounds for deportation, and has expanded that list over time. It is worth noting that the list of aggravated felonies includes many crimes that are typically only charged as misdemeanors. The list initially only included serious offenses that one might expect to be grounds for deportation, but is continually being amended to include more minor violations, such as: Simple battery Theft Filing a fraudulent tax return Failure to appear in court In addition to the above crimes, any crime that is considered a crime of moral turpitude can also have grave impacts on a person's immigration status. Crimes of Moral Turpitude Crimes of moral turpitude generally include acts that infer a person has breached another person's or the public's trust. These can include both felonies and misdemeanors. While crimes like fraud, embezzlement, perjury, child abuse, and tax evasion are easy to understand as crimes where trust has been broken, small crimes like petty theft or shoplifting, which are typically misdemeanors, can also be considered as such. If a non-citizen is convicted of a crime of moral turpitude, or an aggravated felony, they may not only be deported, but they may be ineligible to return to U.S. forever. Therefore, it is incredibly important for any non-citizen facing criminal charges to not only consult a criminal attorney and inform them of their immigration status, but to also consult an experienced immigration attorney, especially before agreeing to any plea bargain. Related Resources: Find Immigration Lawyers Near You (FindLaw's Lawyer Directory) How to Fight Wrongful Deportation (FindLaw's Law and Daily Life) Can ICE Agents Make Arrests at Courthouses? (FindLaw's Law and Daily Life) Can This New Chatbot Solve Refugee Legal Issues? (FindLaw's Law and Daily Life)
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Are Programmers Liable If Hackers Misuse Software?

In 2012, Taylor Huddleston created what is known as a remote management tool, a piece of software that allows users to remotely log keystrokes, download stored passwords, turn on the web cam, access files, and watch a computer screen in real time. Designed, he says, to help low-income users who couldn't afford more expensive remote-access programs monitor online activity for safety reasons, NanoCore was going to be Huddleston's ticket out of a trailer he lived in on his mother's property and into a real house. And it worked -- Huddlestone sold NanoCore and another piece of software called Net Seal and was able to buy a $60,000 home. But FBI agents and police raided that home last December, and are now charging Huddlestone conspiracy and aiding and abetting computer intrusions, for all the times hackers used NanoCore to commit crimes. Illegal IT So should Huddlestone be criminally liable if he didn't intend his software to be used for hacking? His attorney, Travis Morrissey, likens the case to firearms manufacturers: "Everybody seems to acknowledge that this software product had a legitimate purpose," he told the Daily Beast. "It's like saying that if someone buys a handgun and uses it to rob a liquor store, that the handgun manufacturer is complicit." Thus far, courts haven't held firearms makers liable for criminal acts committed with their products, but computer crimes laws are written a bit differently. One factor might be where Huddlestone chose to market his software: HackForums.net. As the Daily Beast points out: It would soon become clear that it was a terrible place to launch a legitimate remote administration tool. There aren't a lot of corporate procurement officers on HackForums. Instead, many of Huddleston's new customers had purely illicit uses for a slick remote access tool. Illegal Intent? Huddlestone quickly found out what his buyers were using the software tool for, and, to his credit, attempted to curb illegal activity using NanoCore: In short order, Huddleston found himself routinely admonishing people not to use his software for crime. "NanoCore does not permit illegal use," he wrote in one post. In another, "NanoCore is NOT malware. It is intended to be used legitimately and I don't want to see words like 'slave' and 'infect.'" Huddleston backed his words with action. Whenever he saw evidence that a particular buyer was using the product to hack, he'd log in to Net Seal and disable that user's copy, cutting the hacker off from his infected slaves. But these efforts may not be enough. By then the cat was out of the bag and hackers were trading in copies of NanoCore that bypassed Huddlestone's disabling efforts. Now, he's looking at jail time for making a product he thought would help people. Related Resources: Browse Criminal Defense Lawyers by Location (FindLaw's Lawyer Directory) Programmer Faces Federal Charges for Creating Software Used by Hackers (ABA Journal) What Are the Criminal Penalties for Hacking? (FindLaw Blotter) When Is Computer Hacking a Crime? (FindLaw Blotter)
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Federal Court: Civil Rights Act Protects Gay, Lesbian Workers From Discrimination

Title VII of the Civil Rights Act prohibits discrimination against employees based on race, color, religion, sex, or national origin. Because it was enacted in 1964, many have wondered whether gay and lesbian workers were also protected under the law. The Seventh Circuit Court of Appeals answered that question this week, ruling that Title VII protects employees from discrimination on the basis of sexual orientation. The court reasoned that the statute's ban on sex discrimination also prohibited sexual orientation discrimination because, among other reasons, the discrimination is based on outdated gender stereotypes. Here's a look: Stereotypical Discrimination The plaintiff in the case, Kimberly Hively, contends that she was passed over for full-time employment at Ivy Tech Community College because she is lesbian. Her central claim, as it pertains to Title VII, is that this discrimination was based on her sex or gender -- that, had she been a man, she would not have been discriminated against for being sexually attracted to women. And the majority found it persuasive: Viewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual ... Hively's claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man). Essentially, Hivey was still discriminated against based on her sex in that she did not conform to stereotypes about female sexual orientation. A Definitive Decision? The court's decision is groundbreaking. Until now, the majority of courts interpreting Title VII have held that it did not cover discrimination based solely on sexual orientation. While the Second Circuit found that sexual-orientation discrimination wasn't explicitly prohibited by Title VII, it recently found that gay workers who were subject to gender stereotyping still had the right bring sex discrimination claims. The Supreme Court has yet to decide the issue, but may need to soon, giving the disagreement between circuits. For now, the Seventh Circuit's ruling applies only to its own jurisdiction: Illinois, Indiana, and Wisconsin. Related Resources: Find Employment Lawyers Near You (FindLaw's Lawyer Directory) Seventh Circuit Holds That Title VII Forbids Anti-Gay Job Discrimination (The Washington Post) LGBT Worker Protections Missing in Mississippi and Most States (FindLaw's Law and Daily Life) 5 Signs of Employment Discrimination (FindLaw's Law and Daily Life)
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College Students Arrested Allegedly Selling Xanax to Undercover Officers

Four college students at DePaul University in Chicago have been arrested for selling over 100 Xanax pills to undercover officers. The sales occurred on four separate occasions, for various quantities and prices, over the last few weeks. While Xanax is commonly used to help individuals with serious anxiety or other mental health issues, the drug is also sought after by recreational users. Despite the fact that it is legally available to individuals with a prescription, an individual cannot legally distribute or sell Xanax, or any other prescription drug for that matter, to any other person. Unfortunately for both legal and illegal Xanax users, the drug is reportedly highly addictive, which can lead to severe dependency issues. Selling Prescription Drugs Is Illegal Although individuals can legally purchase prescription drugs if their doctor provides a prescription, without the prescription, it is illegal to buy, or even possess, prescription drugs. This is because prescription drugs are considered controlled substances, similar to the traditionally illegal drugs, like cocaine or heroin. As such, they're regulated by the federal government, as well as state law. Like most state and federal drug laws, penalties for possession and illegal sale of prescription drugs will vary depending on the type and quantity of the drugs involved, as well as the circumstances surrounding the sourcing of the drugs. For instance, if an individual is discovered manufacturing an illegal prescription drug, they could be facing much more severe penalties than for simply possessing, or buying, an illegal prescription. Penalties for Selling Prescription Drugs Since prescription drugs can be legally obtained via a prescription, many times individuals will steal prescription pads in order to get their supply from a legal drug store. However, doing so can result in serious related criminal charges for fraud, or even conspiracy. Also, doctors who are found to be complicit in prescription drug schemes can face censure and serious penalties from medical licensing boards, in addition to serious criminal charges related to drug dealing. For first-time possession offenders, frequently the penalties will not be severe, or rise beyond the level of a misdemeanor. The penalty may not even include any jail time, unless there are extenuating circumstances, like a stolen prescription pad. For first-time distribution offenders, penalties usually will include jail time, and are likely to be charged as a felony. Related Resources: Hit with a drug charge? Have the charges reviewed free. (Consumer Injury - Criminal) If Roommate Sells Drugs, Can You Get Arrested? (FindLaw Blotter) Ice Cream Truck Driver Sold Oxycodone Pills from His Truck (FindLaw's Legally Weird) Drug Trafficking/Distribution (FindLaw's Learn About the Law)
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Can the Feds Force You to Unlock Your Phone With Your Fingerprint?

You might've thought enabling Touch ID on your iPhone made it more secure. After all, it's harder to fake your fingerprint than to guess a passcode. But when it comes to the law enforcement searches, your smartphone might've gotten a lot more vulnerable. According to Forbes, federal law enforcement officers recently served a warrant on a California home which gave them "authorization to depress the fingerprints and thumbprints of every person who is located at the SUBJECT PREMISES during the execution of the search and who is reasonably believed by law enforcement to be the user of a fingerprint sensor-enabled device that is located at the SUBJECT PREMISES and falls within the scope of the warrant."Essentially, cops could force everyone in the residence to open their phones. Is this really legal? Fourth Amendment Concerns The Fourth Amendment protects people "against unreasonable searches and seizures," and generally requires law enforcement officers to get a warrant before searching someone's home or personal effects. In order for the Fourth Amendment to apply, a person must show that he or she has a "reasonable expectation of privacy" in the place being searched or thing being seized. But courts have consistently found that a person has no expectation of privacy in physical characteristics like fingerprints, and that a police may therefore require that a person give fingerprint samples. So requesting a fingerprint to open a phone likely doesn't violate the Fourth Amendment's reasonableness requirement. In terms of search warrants, they must be based on probable cause, and "particularly [describe] the place to be searched, and the persons or things to be seized." This has generally been interpreted to mean the warrant must be narrow in scope, but, as Electronic Frontier Foundation staff Andrew Crocker told the Washington Post, a warrant that "extended to include any phone that happens to be on the property, and all of the private data that that entails" could stretch those limits. Fifth Amendment Concerns The Fifth Amendment, on the other hand, protects people against self-incrimination and could apply to warrants for biometrics in certain circumstances. In general, courts have not found fingerprints, by themselves, to be self-incrimination because they aren't "testimonial" in the sense that they don't amount to a statement about something. But does that necessarily mean that officers can force you to use your fingerprint to unlock your phone? Law professor and blogger Orin Kerr looked at three such scenarios and opined that, as long as the officers already know that the phone is yours, the answer is probably yes. At that point your fingerprint would not be telling officers anything they didn't already know, or, as Kerr put it, "No testimonial statement from the person is implied by the act of placing his finger on the reader." But when -- as in the case above that involves a search of a residence with multiple phones and multiple people -- cops don't know which device belongs to whom, being forced to unlock a phone could be testimonial: It amounts to testimony that says, "yes, this is my phone," or at least, "yes, this phone was set to recognize a part of my body as a means of access." It further says: "I am familiar enough with this phone to know that the fingerprint reader was enabled and which part of me was used by me to program the fingerprint reader." According to Forbes, the warrant in this case is "unprecedented," but we may see similar warrants as more people use their fingerprints to secure their smartphones. If you've been subject to a similar search, you should contact a criminal defense attorney as soon as possible. Related Resources: Find Criminal Defense Lawyers Near You (FindLaw's Lawyer Directory) Do You Have to Let Cops Search Your Cell Phone? (FindLaw Blotter) Cell-Phone Fingerprint Ruling: 5 Things You Should Know (FindLaw Blotter) Geo-Tracking: Should Phone Location Info Require a Warrant? (FindLaw Blotter)
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Iris Bennett obtained an NPA for Florida Defense Company

IAP Worldwide Services Inc, a Florida defense and government contractor was represented by Iris Bennett of Smith Pachter with her partner Joseph Covington relating to a criminal investigation surrounding the company’s involvement in a conspiracy to pay bribes to officials in Kuwait to secure a government contracts in violation of the Foreign Corrupt Practices Act (FCPA). Bennett and her partner successfully negotiated a non-prosecution agreement with the Department of Justice for IAP this last June to resolve criminal charges against IAP.  Iris Bennett focuses her practice on investigations and white collar criminal matters. Before private practice she clerked for two federal judges and served as a federal public defender in the District of Columbia. The company agreed to pay a $7.1 million dollar penalty.  The agreement also called for continued cooperation by IAP and mandates that the company adopt a strict anti-corruption stance and create appropriate structures, systems and procedures to prevent corruption. The company will also regularly need to report to the Criminal Division regarding compliance. An ex-VP for the company, James Rama, was the only individual charged and he pled guilty to one charge of violating the Foreign Corrupt Practices Act (FCPA). No other high level executives were individually charged which was a strong focus in the defense argument at sentencing that took place this last October when Rama was ultimately sentenced to a significant jail term.  Read about the sentencing here.  One has to wonder what the outcome would have been to this company and its more high level executives post Yates memo if they hadn’t resolved this case in June? The drama all began in 2004, when the Kuwaiti government rolled out a plan called the Kuwait Security Program (KSP), which was designed to help national agencies surveil using closed-circuit TV. The project would involve a two-phase roll out. First would come a feasibility test, then an installation period. The Kuwaiti Ministry of the Interior helped choose contractors and planned to collect substantially more revenue in the installation phase (Phase II) than in the feasibility test phase (Phase I).   However, Rama and IAP (who later admitted to these facts in the non-prosecution agreement) made a play to work on the first phase so they could secretly tweak the requirements for the second phase to favor IAP and thus give the company a competitive advantage when it came to bidding. They created a fake company (“Ramaco”) to try to win the Phase I business without disclosing conflict of interest and won that bid, which was worth $4 million. Rama and IAP then diverted approximately $1,783,688 of that money to a consultant to bribe Kuwaiti officials and then funneled money to IAP from Ramaco through different accounts and contacts. The resolution is certainly a job well done by Iris Bennett and her partner. Congrats! The post Iris Bennett obtained an NPA for Florida Defense Company appeared first on Women Criminal Defense Attorneys.
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Women Criminal Defense Attorneys: Angie Halim Successfully Defends Philadelphia Traffic Judge

Just last week Angie Halim, a criminal defense lawyer from Philadelphia, won an acquittal of the primary charges for a Traffic Court Judge who was charged with fraud along with five other Traffic Court Judges. The US Government alleged that the group of judges conspired to fix traffic tickets and give associates breaks on traffic tickets, which supposedly cost the city thousands or possibly millions of dollars. The judges were charged with conspiracy, mail and wire fraud, and perjury. Halim represented Judge Robert Mulgrew who, along with all six judges, was acquitted of the most significant charges. Mulgrew was convicted of perjury, along with some of the other defendants, for lying about receiving consideration for fixing the tickets of certain VIPs. It seems a little counterintuitive but we all know that is how the jury system works sometimes. Halim reportedly used a very effective demonstrative aide in closing that sent a clear message about the ridiculousness of the Government’s case. The Philadelphia Magazine summarized the closing arguments and highlighted a pie chart that Halim used to demonstrate what amounted to a frivolous amount of “fixed” tickets. She pointed out through her chart that of the 66,000 tickets Mulgrew adjudicated from 2008-2011, the FBI deemed only 16, which was 0.01 percent, of them as “fixed.” The Philadelphia Magazine reported that “in what was arguably the most crowd-pleasing visual aid of the day, Halim used a gigantic orange pie chart to demonstrate how miniscule 0.01 percent really is, zooming in on an otherwise invisible green dot that represented the amount of tickets Mulgrew is accused of ‘fixing’.” Halim was reported as arguing, “Mr. Mulgrew did the best he could in an imperfect system.” In the end, the jury clearly agreed with her and acquitted her client of the primary charges, but ironically found him guilty of perjury. Mulgrew was also charged in a separate fraud and tax case which he had previously plead guilty to relating to the misuse of State of Pennsylvania grant funds and filing a false tax return. The sentencing was postponed until the conclusion of the ticket fixing trial. Any criminal defense attorney that has fought for a client in federal court knows that you should never underestimate the Government in a trial. But it is also safe to say the Government should never underestimate Angie Halim. Bravo to her. I continue to be impressed by the caliber of women champions of justice in Philadelphia.
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Ryan Ferguson Files $100M Civil Rights Lawsuit

Ryan Ferguson's attorney has filed a $100 million civil rights lawsuit on behalf of the Missouri man wrongly convicted and imprisoned for nearly a decade. As you may recall, Ferguson, 29, was freed in November after spending more than eight years in prison for the murder of Missouri newspaper editor Kent Heitholt in 2001. The court overturned his conviction because the case was rife with evidentiary problems. On the 10th anniversary of his arrest, Ferguson is at the center of a legal dispute again, but this time as a victim in a civil lawsuit. Civil Lawsuit Filed Ryan Ferguson's lawsuit takes aim at the unlawful way authorities conducted their investigation and case. Ferguson's attorney Kathleen Zellner filed the suit against 12 defendants -- including individuals (cops, investigators, and attorneys) as well as the Columbia Police Department, the city of Columbia, Boone County, and the Boone County Prosecuting Attorney's Office. Among the lawsuit's numerous claims are allegations of: Destruction and/or suppression of exculpatory evidence, Fabrication of evidence, Reckless or intentional failure to investigate, Malicious prosecution, Conspiracy to deprive constitutional rights, Failure to intervene, False arrest, Defamation, and Indemnification. None of the DNA collected at the scene, or the footprints and fingerprints, matched Ferguson; however, jurors unanimously convicted Ferguson by relying on the testimony of two witnesses. Those two witnesses later confessed to lying under the oath, according to the suit. In addition, details surfaced that prosecutors repeatedly failed to disclose exculpatory evidence -- evidence that could have helped Ferguson and may have changed the outcome of the case. There are also reports that the wife of the key witness was intimidated and coerced by authorities who were overly zealous about obtaining a conviction, St. Louis' KSDK-TV reports. Different Types of Damages The lawsuit asks for actual damages of $75 million and punitive damages of $25 million. Actual damages are awarded to compensate for actual losses (also called "compensatory damages"). The amount awarded is based on the proven harm, loss, or injury suffered by the plaintiff. The actual damages award does not include punitive damages, which may be awarded when a defendant's actions are especially reckless or malicious. Punitive damages are awarded in cases of serious or malicious wrongdoing to punish or deter the wrongdoer or deter others from behaving similarly. Considering the level of misconduct alleged and the number of involved parties, Ferguson is certainly poised well to obtain a hefty settlement from his wrongful conviction. Related Resources: Attorney for wrongly convicted Ryan Ferguson files $100M lawsuit (CBS News) Ryan Ferguson vs. State of Missouri (FindLaw) Man Framed for Murder by N.Y. Cop Gets $6.4M (FindLaw's Injured) How Do You Get a Conviction Vacated? (FindLaw's Blotter)
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