To be sure, there were exceptions to this, particularly for national security purposes and fighting organized crime. But even with an expansion in the use of wiretapping, using it in cases of suspected fraud or other white collar crime is still a stretch.
On Monday, however, a trial opens in New York that is likely to feature extensive use of wiretap evidence. Rajit Gupta, a former director of Goldman Sachs, is accused of insider trading.
Last year, wiretapping evidence was also used in another high-profile insider trading case. It was used to convict Raj Rajaratbam, the co-founder the Galleon Group, a prominent hedge fund.
Gupta is accused of supplying Rajaratbam with inside information. The information that Gupta is alleged to have passed along includes a key investment - to the tune of $5 billion - that Warren Buffet made in Goldman Sachs during the financial crisis.
]]> The government claims that it needs to use wiretaps to build such cases. The argument is that hedge funds make so many trades that traditional methods of investigation are able to isolate improper ones very well.But this is a major departure from previous justifications for the use of wiretaps. Until the Galleon case last year, the 1968 law that regulates federal authority to use wiretaps had never even been used in securities cases.
In short, allowing such wiretaps to be used in white collar cases has been a game changer. But that doesn't mean the Fourth Amendment has gone out the window; there still need to be privacy protections.
Source: "Hedge Funds, Beware of Using Your Phones, They Might Be Tapped," Michael Bobelina, Forbes, 5-16-12
]]>They can also tempt otherwise law-abiding people to be involved in New York prescription fraud.
Today, at a conference in Nassau County, a conference is addressing the issue of prescription drugs by focusing particularly on young people. By some estimates, the number of American youth over age 12 who have engaged in prescription drug abuse may be as high 4.5 million.
Such statistics are startling. Today's conference is exploring strategies for better prevention, in order to reduce the numbers.
Organizers of the conference believe that education about the dangers of prescription of prescription drug addiction is crucial to preventing them.
"An ounce of prevention is worth a pound of cure," said Rene Fiechter, an assistant district attorney, "and we know that we cannot arrest our way out of this problem."
It is good to have a prosecutor recognizing that arrests alone do not solve a large social and public health problem. In the past, law enforcement agencies and prosecutors have tried that approach on many different types of drug offenses.
]]> Far too often, the result of emphasizing arrests and prosecutions instead of prevention and treatment has been counterproductive. Jailing or imprisoning people doesn't solve the problem in the long run, if they don't ever get the rehabilitation resources they need.The stakes are high as society tries to get its arms around the prescription drug abuse problem. In Nassau County alone, an average of three people die every week from misuse of prescription drugs.
Source: "Nassau Conference Focuses On Teen Prescription Drug Abuse,"CBS New York, 5-11-12
]]>Other companies joining the agreement include Warner Brothers, Disney Interactive Media Group, and Apple. Lawmakers are attempting to persuade other companies to join as well.
The issue has implications for New York City sex crime defense.
Proponents of the agreement hope that forbidding registered sex offenders from playing online video games will make it more difficult to establish contact with young children. Online video games encourage frequent contact between strangers. Most games contain an audio feature, allowing users to speak to one another. However, questions remain over whether such denying access to sex offenders is an appropriate limitation of rights.
Although New York is the first state to ban sex offenders from online video games, this is not the first time registered sex offenders in New York have faced limited access to online forums. An agreement with the online social network Facebook in 2007 allows users to report sexually inappropriate online behavior. Facebook also responds to these reports within twenty-four hours.
]]> The registration process for registered sex offenders is extensive. Email addresses and online gaming identities must be submitted to the state of New York. The information is then referenced against online gaming accounts. This process is repeated every week to keep the list of offenders updated.It is important for registered sex offenders to make sure they are complying with these requirements, and for those facing charges to understand the potentially severe consequences of conviction.
If offenders fail to comply, intentional or unintentional access to restricted forums or websites could result in additional sex crime charges. Not only can this have a devastating effect on professional and family life, it could mean a lifetime on a Sex Offender Registry List.
Source: "Video-Game Companies Agree to Close Sex Offenders' Online Accounts," Joseph Goldstein, New York Times, 4-5-12
]]>This means that even inmates entering jail for minor offenses can be strip searched. It would apply, for example, to New York City drug possession charges. Indeed, it would even apply to someone arrested for traffic violations, as long that person is placed at least temporarily in a jail's general population.
The name of the Supreme Court case is Florence v. Burlington County. Albert Florence was arrested for failing to pay a fine that he had already paid. He was pulled over on a public highway, and later said he believed he was targeted because he was an African-American man driving an expensive car.
After his arrest, Florence was subjected to two strip searches in two different jails over a six-day period. The experience led to deep feelings of fear and humiliation.
The fear is understandable, given the evidence of sexual abuse and assault behind bars. Such abuse often starts during strip searches, according to data from the U.S. Department of Justice.
]]> The type of strip search upheld by the Supreme Court is supposed to be limited to visual inspection. It does not include touching the inmate or making abusive gestures. The data on sexual assault in jail, however, suggests that strip searches often go far beyond visual inspection.Legal commentators point out that the Court's ruling does not address such issues as whether strip searches can be done on people in small holding cells, prior to bail determination.
Source: "The Supreme Court's Decision on Strip Searches Will Make Jails More Dangerous," Lovisa Stannow, Huffington Post, 4-18-12
]]>Securities fraud in New York City may now be included in this lengthy list.
The U.S. Sentencing Commission voted last week to increase penalties for insider trading. Many members of the legal community believe, however, that the penalties are already plenty severe.
Financial professionals are the target group for the change in the sentencing guidelines. The U.S. Justice Department argues that financial professionals face many temptations to engage in improper trading, and that therefore longer sentences are needed to deter them.
Defense lawyers point out that there is no evidence that increasing the length of sentences will actually serve as a more effective deterrent to misconduct.
]]> Brokers, stock analysts, hedge fund managers and other financial professionals do face many pressures. This is true whether they work on Wall Street or elsewhere. And sometimes they do succumb to temptation.But an analysis by the Wall Street Journal last year showed that defendants convicted recently of insider trading have received significantly more severe sentences than similarly situated defendants in the past.
It should also be noted that raising the upper end of the sentencing range guidelines range doesn't mean that a judge will actually impose that sentence in a given case.
Samuel Buell, a law professor at Duke University, suggests that many judges already believe that the sentencing guidelines for insider trading are too strict - not too lenient.
Source: "Longer Sentences Sought for Insider Trading," Brent Kendall, The Wall Street Journal, 4-15-12
]]>Under the new law, DNA will be collected from everyone convicted of a felony in New York and for virtually all misdemeanors as well. The inclusion of white collar crime and other offenses will essentially double the size of the DNA database.
With the database expanding, it's more important than ever to make sure that wrongful convictions are properly investigated and addressed. New York's Innocence Project has been doing good work on this for years, and it's time to build on those efforts.
New York Attorney General Eric Schneiderman has put forward a proposal for doing that. He would like to create a special office to review possible wrongful convictions and fine-tune the process of pursuing damage claims by people who can prove they were sentenced for crimes they were not guilty of.
]]> The new office would be called the Conviction Review Bureau. The office would work with district attorneys around the state to identify appropriate cases for investigation and resolve them according to newly developed best practices.In making the proposal, Schneiderman emphasized the public safety aspects of the work the new office would do. "There is only one person who wins when the wrong person is convicted of a crime: the real perpetrator, who remains free to commit more crimes," the attorney general said.
Catching the real culprit is indeed important. But so is freeing the innocent.
Source: "NY attorney general to review wrongful convictions," Wall Street Journal, 4-11-12
]]>Sometimes errors are harmless. But when they involve forcing entry into the wrong house on a drug aid, it's a serious issue.
Raids that can lead to drug possession or trafficking charges should be thoroughly investigated. Last month, however, law enforcement officers bashed down the door of an elderly man's home in the Finger Lakes district of Upstate New York - only to discover that they had the wrong house.
The officers barged into the home of Fred Skinner, 76, of Auburn, as he was having breakfast. They had guns drawn and handcuffs out.
After telling Skinner not to move and hurriedly searching the premises for about five minutes, the officers realized they had the wrong house. They had broken down the wrong door.
]]> One officer tried to sooth Skinner's by giving him the phone number for the police department. The Auburn police chief, Gary Gionnotta, later apologized to Skinner's son. Gionnotta said that such incidents have occurred only a few times in his 16 years as a police officer.That is hardly an excuse, however, and Gionnatta admitted as much in a media interview. "We're just like everyone else, we're human, we make mistakes too," he told the Huffington Post. "When we make a mistake, we try to make it right as best we can."
The police department did offer reimbursement in the amount of $1,250 for the cost of the door broken in the erroneous drug raid. But clearly more care should be taken before barging into someone's home.
Source: "Cops Raid Wrong Home: Drug Bust Wasn't Intended for Fred Skinner, 76-Year-Old New York Man," Steven Hoffer, Huffington Post, 3-29-12
]]>The number of prescription painkillers issued in New York has increased significantly over the last few years. In 2007 there were 16.6 million prescriptions issued for painkillers and in 2010, almost 22.5 million painkiller prescriptions were filled, an increase of six million. To address the growing illicit painkiller issue, and prevent prescription fraud, a group of mayors has voiced support for a new bill proposed by New York's Attorney General Eric T. Schneiderman.
The name of the proposed law is the Internet System for Tracking Overprescribing also known as I-STOP. The goal of the law is to help doctors and pharmacists provide prescription painkillers to people who legitimately need the drugs. The proposed law will help medical professionals accomplish the goal by providing real time information about prescriptions. The information will enable doctors and pharmacists to recognize possible patterns of drug abuse. New York already has a drug monitoring program but the legislation will improve the current system say supporters.
]]> Twenty-three mayors from around New York released a joint statement and said the updated drug monitoring program will tackle the new and developing drug abuse issue by reducing the practice of "doctor shopping", which is the practice of visiting multiple doctors to build a large supply of drugs, diminishing the number of drugs obtained by stolen prescription pads and providing help to patients.Source: WKBW-TV, "Mayors and Supervisors Endorse Scheiderman Plan to Address Prescription Drug Crisis," March 26, 2012
]]>No one wants kids being put at risk by intoxicated drivers. That's why the New York legislature passed Leandra's Law in 2009.
Leandra's Law requires people convicted of DWI to install ignition interlock devices and use them for six months after getting their licenses back. This has affected the resolution of drunk driving charges ever since.
The administrative and logistical issues raised by the requirement to install these breath test devices are considerable. Inevitably, implementation challenges arise regarding how to pay for the devices, how to monitor compliance, and so on.
Now, legislators have proposed to add more requirements to Leandra's Law.
The transportation committee of the state Senate has approved a proposal to require installation of ignition interlocks on any vehicle owned or operated by the person convicted of DWI, or the car that was used when the offense was committed. Convicted offenders would be prohibited from driving without such devices.
If an offender were able to show good cause for not attaching an interlock device on a vehicle, the offender would be required to wear an alcohol monitoring device attached to the skin. This could be an ankle bracelet, for example, capable of detecting alcohol.
]]> The proposed legislation would prohibit getting a driver's license back after a DWI conviction until the interlock requirement has been met. It would also create felony charges for driving drunk on a conditional license.In short, the potential consequences from DWI charges would be enhanced, if the proposal becomes law.
Source: "Senate Approves Legislation To Strengthen Leandras Law," NewsLI.com, 3-13-12
]]>This would include numerous offenses, such as DWI and securities fraud, for which DNA collection was not previously permitted. Such an expansion raises concerns not only for New York City DWI defense, but for numerous non-violent offenses that would become subject to mandatory DNA samples upon conviction.
The database already has over 416,000 DNA records. The Senate and the Assembly appear close to an agreement to greatly expand it. But the two chambers have not yet worked out all of the differences between their separate bills.
As things stand now, the Assembly DNA expansion bill contains two provisions that are not in the Senate bill. One is a requirement that interrogations be videotaped. The other involves use by police of double-blind photo arrays. It is possible that these provisions will ultimately be addressed in separate legislation.
]]> A key issue in the expansion debate has been improving the process for the defense to gain access to DNA tests. Currently, defense attorneys have to apply to a judge and make a reasonable cause showing in order to gain access to DNA database information that could lead to the exoneration of their clients.Some judges can be reluctant about such applications. Many defense attorneys therefore believe that access to genetic information in the database should be clarified.
Source: "NY Sponsor sees compromise DNA databank deal," Wall Street Journal, 3-13-12
]]>There is a big difference, however, between conduct that carries civil consequences and conduct that is proper grounds for New York white collar crime charges.
For example, consider the recent action by the New York state regulators to tighten the regulations on doctors involved in the review of no-fault car insurance claims. The Department of Financial Services has issued regulations that would allow the department to prevent a doctor who is found to have approved fraudulent claims from continuing to work in the auto insurance industry.
The department says it is implementing a law passed by the New York Legislature in 2005. It is curious, though, that it has taken seven years to do that.
Criminal charges against doctors for fraud are not common. In fact, the superintendent of the state financial services department, Benjamin Lawsky, admits convictions of doctors for car insurance fraud are rare.
]]> It is true that federal prosecutors alleged last week that a group consisting largely of Russian immigrants that defrauded auto insurers out of millions of dollars in no-fault cases. The charges assert that this was done through a complicated network of questionable clinics.But again, there is quite a big difference between a full-blown criminal prosecution, on the one hand, and civil consequences - such as taking away a doctor's license to practice medicine - on the other.
The same would be true of a doctor's alleged participation in prescription fraud.
Source: "NY Anti-Fraud Law Gets Delayed Start, Following Big Federal Bust," Fred Mogul, WNYC, 3-8-12
]]>In New York City alone, for example, the number of oxycodone prescriptions filled in 2009 was nearly 900,000, according to the city's health and mental hygiene department. Law enforcement agencies suspect that New York prescription fraud and trafficking are among the major drivers behind these numbers.
That doesn't mean, however, that the current proposal for an online database of prescriptions is the best way to prevent abuse of prescriptions by doctors, dealers, or people struggling with addiction.
New York Attorney General Eric Schneiderman's proposal is known by the acronym I-
STOP. The Internet System for Tracking Overprescribing would create a central, online database that would monitor the prescription fulfillment process in real time for certain controlled substances.
The I-STOP bill would impose new duties on both doctors and pharmacists. Before writing a new prescription, doctors would be required to review a patient's prescription records. And once a new prescription is written and filled, doctors and pharmacists would have to report that.
]]> The Medical Society of the State of New York, a group representing 30,000 doctors, opposes the bill. The group is concerned that the new process for filling prescriptions would place too great of a burden on the practice of medicine.If doctors have to jump through too many rigid hoops before prescribing drugs, that could keep painkillers and other necessary drugs from those who really need them.
Source: "Plan to Stem Prescription Drug Crisis in New York State Fuels Disagreement on How to Do It," Forbes, 3-2-12
]]>To take just one example, a former New York governor is questioning New York City weapons charges in the case of a retired Marine who tried to check his handgun last fall at the Empire State Building.
The gun was properly registered in Indiana. But New York law prohibits the possession of guns that are unlicensed in New York even if they are licensed in another state. As a result, the ex-Marine, Ryan Jerome, is facing a violent felony charge. A conviction could trigger a mandatory minimum prison sentence of 3 ½ years.
Former Gov. David Patterson does not think Jerome should be prosecuted. Indeed, Patterson went so far as to say that if Jerome were convicted, he should be pardoned.
]]> Ryan Jerome works as a jeweler and has said he carries a gun because he has to transport gold to and from refinery facilities.Jerome's arrest has led to a letter-writing campaign on his behalf by hundreds of current or former marines. Former Gov. Patterson has now joined them in calling for Manhattan District Attorney Cyrus Vance to drop the gun charges.
Although Jerome is free on bail, prosecutors are trying to get him to accept a plea deal in which he would admit to attempted possession, which is a misdemeanor.
Source: "Ex-gov Paterson asks DA Vance to dismiss ex-Marine's gun possession case," New York Post, 2-15-12
]]>Yet state and federal authorities seem determined to push ahead with investigations that could result in charges of mortgage fraud.
This week, state governments, the federal government, and some of the nation's largest banks entered into a $25 billion settlement over how those banks handled foreclosures during the downturn. Bank of America, JP Morgan Chase, and Wells Fargo were among the banks participating in the settlement.
The questionable practices used by the banks included the practice that came to be known as "robo-signing." This involved failure to satisfy legal requirements for review of foreclosure petitions. The settlement establishes how the banks are required to handle foreclosures and how loans are to be serviced.
]]> As large as the settlement is, with its $25 billion price tag, the government claims that much still remains unresolved about the conduct of individuals in the real estate industry and elsewhere in the financial system. The U.S. Justice Department will lead a state-federal group to investigate whether promises made to investors or others were actually misrepresentations."Our goal is to cut through a lot of confusion, identify what the misconduct out there was - criminal or subject to civil penalty - and come up with a comprehensive solution," said New York Attorney General Eric Schneiderman.
It remains to be seen what that "comprehensive solution" will look like.
Source: "Bank Mortgage Probes Will Proceed, New York and Delaware Say," Business Week, 2-16-12
]]>In November, Washington voters will decide whether to make pot legal for recreational purposes in their state. Polls indicate that in several states, supporters and opponents of marijuana legalization are about equally split.
Washington may not be the only state with marijuana on the ballot this fall. Advocates of legal marijuana use are gathering signatures to put the issue on the ballot there as well. Similar efforts are underway in several others states, including California.
Supporters of legalizing marijuana possession argue that pot does no more harm than alcohol or tobacco. On principle, the argument goes, people over the age of 21 should be allowed to make their own decisions. The state should therefore not use the criminal law to coerce decisions.
]]> There is also the practical argument that laws against marijuana possession are no more effective than laws against alcohol possession were during Prohibition.Opponents counter that marijuana is a gateway drug that can result in people getting addicted to ever-stronger substances, such as cocaine or heroin
It's also true that, even if Washington or another state legalizes marijuana possession, marijuana would remain a controlled substance under federal law.
Still, it seems fair to say that attitudes toward marijuana possession are changing, both in New York and across the country.
Source: "Legal Recreational Marijuana: Not So Far Out," Time, 2-6-12
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