On March 21, the Firm achieved a great result in a criminal case before Chief Judge Loretta Preska in the Southern District of New York. CJA pro bono client Djiedjom Wilson was initially sentenced in 2011 for federal bank fraud; in 2012, following his release from federal custody (but while still on supervised release), Mr. Wilson was arrested by local authorities in Connecticut and charged under state law with selling drugs. Mr. Wilson was subsequently transferred to federal custody and charged with violating his supervised release based on his arrest in Connecticut.
Mr. Wilson faced a US Sentencing Guidelines range of 15 to 21 months imprisonment, and the US Probation Department requested a 21-month sentence. Fried Frank successfully argued for a below Guidelines sentence of 10 months based on, among other things, his likely detention and deportation following release and his acceptance of responsibility by pleading guilty, a factor not specifically addressed by the Guidelines for violations of supervised release. Chief Judge Preska credited the argument and sentenced Mr. Wilson to a 10 month term of imprisonment. Because Mr. Wilson has already been in federal custody for approximately 6 months, Mr. Wilson's effective sentence is another 4 months imprisonment. Fried Frank also negotiated with state prosecutors in Connecticut to not press the charges on the substantive offense, which they are able to do as a separate sovereign. Fried Frank was appointed as replacement counsel in November 2012 and Joshua Roth argued at sentencing.
On April 2, the Firm achieved a very positive result in a criminal case before Judge Robert P. Patterson in the Southern District of New York. CJA client Manuel Araujo was arrested in 2007 for a wide-ranging narcotics trafficking and money-laundering conspiracy. Mr. Araujo immediately began cooperating with a range of law enforcement entities. He was the key witness in the trial against Hector Dominguez, a co-defendant and a drug kingpin affiliated with the violent Mexican drug cartels. Mr. Araujo continued to cooperate despite Hector Dominguez’s threats on Mr. Araujo’s life and those of his family, and Hector Dominguez’s attempt from prison to hire a hitman to kill Mr. Araujo. Mr. Araujo remained free on bail and cooperated with government authorities in his own case and also cooperated extensively in other government investigations through 2012.
The Government recognized Mr. Araujo’s extensive cooperation, but still Mr. Araujo faced a lengthy US Sentencing Guidelines range of 210-262 months’ imprisonment. Fried Frank argued for a sentence of time-served (5 days) based on, among other things, his acceptance of responsibility by pleading guilty, his remarkable self-rehabilitation since his arrest, and his extensive cooperation with multiple government agencies in the face of the death threats. Judge Patterson credited Fried Frank’s arguments and, in a courtroom crowded with approximately25 family and friends, sentenced Mr. Araujo to time-served, with 4 years supervised release. Despite the Probation Office’s recommendation of the imposition of a US$9,000 fine, Judge Patterson also accepted Fried Frank’s arguments on this point as well and declined to impose any fine. Christen Furka argued at sentencing.
On December 4, 2012, the Firm achieved a victory in a criminal case before Judge Robert W. Sweet in the Southern District of New York. Litigation partner Steven Witzel was appointed to represent Mr. S on a violation of supervised release charge. Mr. S violated his supervised release by resisting arrest and testing positive for marijuana use. Before facing this charge in federal court, Mr. S served 14 months in state prison as a result of pleading guilty to resisting arrest at the state level. The federal government's violation of supervised release charge was due, in large part, to the state conviction for which Mr. S had already served time. The government was asking for an additional 3-9 months of incarceration.
Mr.S faced a maximum of 36 months in prison. Fried Frank was appointed counsel on November 30, the day after federal authorities took custody of Mr. S, and at a hearing four days later argued that the equities weighed in favor of a time-served sentence of five days. Prior to the hearing, Firm attorneys contacted several members of Mr. S's family to secure their attendance at his hearing and to ensure that Mr. S had a place to live when he was released. They also secured a commitment from the Osborne Association, an organization that provides drug addiction treatment, career counseling and other services aimed at helping people recently released from prison to successfully reintegrate into the community.
Litigation associate Justin Ross presented all of this information persuasively, and was able to convince the court to sentence Mr. S to time-served, and release him that day subject to two years of supervised release, drug and mental health treatment, and other conditions of supervision. That afternoon, Mr. S left the courthouse with his family.
In May 2012, the Firm achieved a victory in a criminal case before Judge J. Paul Oetken in the Southern District of New York. Steven Witzel was appointed to represent Mr. Perez Mendez on drug conspiracy charges. Although he was arrested in connection with that investigation, he was initially charged with only unlawful reentry, for which he served 10 months in prison. Then, just days before completing his sentence, Mr. Perez Mendez was charged with involvement in the drug conspiracy.
Mr. Perez Mendez faced a US Sentencing Guidelines range of 21 to 27 months imprisonment. Fried Frank, however, argued that he should receive a sentence of time served, which would credit Mr. Perez Mendez for the 10 months he already served on the unlawful reentry charge, and take account for a reduction due to good behavior that he would have been eligible to receive on his sentence had the government charged him with both crimes at the same time.
The Firm's arguments persuaded Judge Oetken, and the court sentenced Mr. Perez Mendez to time served. In fact, while later serving on a panel with a different Fried Frank partner, Judge Oetken praised the quality of our representation, and noted that the extraordinary sentence of time served was a reflection of the Firm's "superb quality of advocacy" on behalf of our client.
The Firm obtained a below-guidelines sentence of 29 months in prison for pro bono client Mr A. Mr. A was extradited to face criminal charges for allegedly participating in a conspiracy to launder narcotics proceeds. The Government asserted that Mr. A had laundered between $1,000,000 and $2,500,000. As such, a conviction at trial could have resulted in a prison sentence of 151 – 188 months (12.6 – 15.7 years).
Initially, the Government offered Mr. A a plea agreement that would stipulate to a sentencing guidelines range of 108 – 135 months (9 – 11.25 years). After spending nearly 100 hours with Mr. A, combing through thousands of tapped telephone calls (in Spanish and Arabic) and hundreds of pages of documents, the Firm successfully negotiated a plea agreement in which the Government stipulated to a sentencing range of only 33 – 41 months (2.75 – 3.4 years).
Mr. A ultimately pleaded guilty to participating in a conspiracy to engage in a single monetary transaction in the amount of only $110,000. On May 6, 2011, Judge Victor Marrero sentenced Mr. A to 29 months, of which he has already served 18 months. He considered time that Mr. A spent in prisons in Panama suffering horrendous conditions, as well as evidence of post-arrest rehabilitation and additional time that he will spend awaiting deportation. With good time credit, Mr. A expects to be back at home with his family in early 2012.
After the hearing, Judge Marrero praised the Fried Frank team for exemplary work on this pro bono matter.
Pro Bono Victory on Aggravated Identity Theft Charge
The Firm won a significant victory on behalf of pro bono client Juan Tureseo. New York litigation partner Steven Witzel was appointed to represent Mr. Tureseo in the fall of 2006, when he was charged with unlawfully re-entering the United States, impersonating a U.S. Citizen and Aggravated Identity Theft. The latter two charges were based on the fact that he presented a US citizen's birth certificate to the government claiming that it was his own. At trial, the Fried Frank team sought a jury charge on the aggravated identity theft charge that would require the government to prove that Mr. Tureseo knew that the birth certificate belonged to another actual person. Judge Kevin Duffy declined to so charge the jury, and Mr. Tureseo was convicted on all counts. The aggravated identity theft charge carried a mandatory two year consecutive sentence. (18 U.S.C. §1028A)
At the time that we claimed that the statute required the government to prove that the identification used belonged to an actual person, there were only three reported district court decisions on the matter. One, from the Western District of Washington, went our way and two, from the Northern District of Virginia, went the government's way. We appealed the issue to the Second Circuit and while appeal was pending, six circuit courts came down with decisions, split evenly. Shortly after argument in our case, the Supreme Court accepted certiorari in one such case, Flores-Figueroa v. US, from the First Circuit. Two weeks ago, the Supreme Court decided that 18 USC §1028A required the government to prove that the defendant knew that the identification used belonged to another actual person.
In deciding the Tureseo appeal, Judge Miner held that, while the government had put forth some circumstantial evidence to show that Mr. Tureseo knew that the birth certificate belonged to another person, that evidence was countered by cross examination that showed that the person whose birth certificate it was had never before seen Mr. Tureseo. Conviction on that count was vacated, and the matter remanded for further proceedings, which will result in the removal of two years' imprisonment from the sentence.
Pro Bono Victory in Criminal Matter
On February 6, 2009 the Firm achieved a significant victory on behalf of client D. Steven Witzel was appointed in 2005 to represent Ms. D in connection with charges that she was trafficking in large volumes of controlled substances and was involved in gun charges and attempted kidnapping. Ms. D agreed to cooperate with the government, and provided information sufficient to enable the government to arrest and convict two major drug traffickers. Ms. D faced a potential "Guideline" sentence of more than 25 years, but Ron Lazebnik persuasively and successfully argued at sentencing that Ms. D's involvement was predominantly due to the strong influence of her older boyfriend. Judge Pauley (SDNY) sentenced Ms. D to time-served of a little less than three years, and she was immediately released from custody, and to her family and friends, with many tears of joy in the courtroom.
Fried Frank is a consultant with the Duke Law School Innocence Project, which has been leading the reinvestigation of Kalvin Michael Smith's conviction since 2003. Smith filed a motion in Forsyth County Superior Court (North Carolina) April 29 alleging that he was wrongfully convicted in the 1995 attack on Jill Marker because of withheld evidence, false evidence, an ineffective defense attorney and other violations and requested a new trial. Marker was struck on the head nearly 20 times with a blunt object on Dec. 9, 1995, at the rear of the Silk Plant Forest, a store she managed. The weapon was never found. Smith's conviction has come under question in part because of witness statements that were allegedly coerced.There have also been questions raised about the police working on the matter, who, among other things, stopped investigating the initial suspect, Kenneth Lamoureux, after he moved out of town. The Duke team has also discovered a videotape of a photo lineup that Williams showed to Marker in which she failed to identify Smith as her attacker, but appears to identify Lamoureux as having been in her store. For more information, see a five-part series on the case written by the Winston-Salem Journal: http://silkplantforest.journalnow.com/.
Working in conjunction with the Office of the Appellate Defender, the Firm works on direct appeals on behalf of clients convicted of crimes in New York State courts. Representation is primarily handled by mid-level litigation associated who comb trial records for appealable error, brief qualified appeals, and argue them before the Appellate Division, First Department. On at least one occasion appeals have been accepted by the New York Court of Appeals, providing junior associates with the opportunity to argue in the state's highest appellate court.
In 2006, the New York Legislature amended the state's notorious "Rockefeller" drug-sentencing laws. The amendment resulted in the elimination of the mandatory life sentence requirement for individuals convicted of class A-I and A-II drug felonies. Additionally, the Legislature provided a remedy for inmates who had already been sentenced under the old law, which allowed certain A-I and A-II felons to petition for re-sentencing in order to eliminate life terms and potentially shorten their prison sentences. Acting as co-counsel to the Legal Aid Society, Firm lawyers (including many litigation associates) are currently working on a number of re-sentencing petitions.
In an effort to represent criminal defendants who cannot otherwise afford legal counsel, Firm members serve as active participants on the Criminal Justice Act (CJA) panel of the US District Court for the Southern District of New York. As a CJA panelist, partner Steven M. Witzel is currently representing several defendants accused of a wide variety of crimes, including murder in aid of racketeering, and one drug conspiracy defendant.
FAMM: Winning a Fair Sentence in the Supreme Court
Families Against Mandatory Minimums (FAMM) is an organization dedicated to fair and proportionate sentencing laws. Advocates of a case-by-case approach to sentencing, FAMM works to achieve sentencing that is "individualized, humane, and sufficient but not greater than necessary to impose just punishment, secure public safety, and support successful rehabilitation and reentry."Working with FAMM, Fried Frank secured release for pro bono client Paul Glover, whose case raised significant constitutional issues for sentencing fairness. Glover was serving 84 months in prison for misappropriation of employee benefit funds and related crimes. His case made it as far as the United States Supreme Court in Glover v. United States. The case was remanded to United States District Court, and the sentence was overturned. Glover was re-sentenced to 70 months in prison and, having served 76 months, was immediately released.