This has been a turbulent few weeks, and it will be a while before the uncertainty passes. I wanted to reach out to you and update you on how COVID-19 has impacted my firm, as well as the entire criminal justice system.
My firm has been prepared to weather this storm for some time. As a result, the only change to how we do business is that we now rely on Facetime, Zoom, and other teleconferencing technology to conduct what would normally be face to face meetings. Other than that, our business of advocating zealously for our clients continues unabated, without interruption. We are here to help you, your loved ones, or your friends, should the need arise.
On the other hand, federal and state courts, prosecutors, police officers, and ongoing investigations have been massively disrupted. We are constantly assessing this fluid, rapidly changing situation and monitoring the responses of all levels of government that are tasked with carrying out criminal investigations and prosecutions. We have already seen guidance from various law enforcement agencies instructing their rank and file to exercise discretion and to shift their enforcement priorities.
In the coming days, weeks, and months we expect to see additional guidance from state and federal law enforcement and prosecutors regarding changes to their enforcement priorities, charging decisions, decisions on whether to take a matter to trial, and sentencing recommendations.
All the best,
Tim Anderson, Managing Partner
Tim Anderson Law, LLC
Federal Criminal Defense Lawyers
“To carry out these frauds, Shkreli was all things to all people.” – Government’s Sentencing Memo to the Judge
Martin Shkreli’s sentence of 7 years (84 months) for federal securities fraud was much, much less than his federal sentencing guidelines range of about 27 years to 33 years. The government attorneys argued that he should get at least 15 years, while his attorneys argued for 12 to 18 months. In the end, the judge split the baby and gave him 7 years.
So, although Shkreli’s sentence was well above the 12-18 months his defense team asked for, it was still far below the advisory sentencing guidelines range and less than half of the government’s request of 15 years.
So, how did he do? Was his sentence a fair one?
Being sentenced in federal court is one situation where you do not want to be above-average. According to the U.S. Sentencing Commission, over the past four or five years the average sentence for convictions of securities fraud, like Shkreli’s, has gone from a little over 6 years down to about 4 years. So, Shkreli got an above-average 7 years.
Despite the unique and colorful circumstances surrounding Shkreli (including his wacky pronouncements before and during trial), his attorney, Benjamin Brafman. was smart in his submissions and arguments to the judge, distinguishing his client from other defendants who are convicted of this type of offense. Although not that many federal securities fraud cases are brought across the country, in 2016 alone 14 of those were sentenced in the Eastern District of New York, where Shkreli’s case was handled.
His attorney, Brafman had a lot to work with in arguing to the judge at sentencing, including that Shkreli was a first-time, non-violent offender, and most importantly, that there was no need for restitution to any victims as no one was out any money. Of course, the forfeiture portion of Shkreli’s case got plenty of coverage, especially because an album by the Wu-Tang Clan worth a few million appeared in a federal court filing.
The takeaway is that while Shkreli may have been “all things to all people,” as the prosecutor suggested, while he was committing the acts that led him to being sentenced in federal court, and he may have said a number of outrageous things before and during trial, it appears that the judge in this case concluded he was simply another offender up for sentencing. The judge considered the arguments both for and against Shkreli, applied the law, and seemed to find a good middle ground at 7 years.
As a federal criminal defense lawyer who has stood next to famous (or infamous) clients at sentencing, one thing I always ask for at sentencing is that the judge not single out my client for being in the public eye, or for choosing to take a shot at trial. The judge seems to have appropriately done just that in Shkreli’s case, even though Shkreli and his legal team surely are disappointed in how much time he got.
Defense Team led by Tim Anderson, Esq., Secures Favorable Sentence in High-Profile Hacking Case
Newark, New Jersey – February 21, 2017
A team of federal criminal defense attorneys led by Tim Anderson of Red Bank, New Jersey, concluded its representation last Thursday in New Jersey federal court, of a client charged with identity theft and conspiracy to commit wire fraud in a high-profile hacking case. Federal District Judge Esther Salas sentenced Sergey Vovnenko to 41 months in prison, in a case in which Vovnenko potentially faced over 30 years in prison.
Vovnenko, whom the U.S. Attorney’s Office called “the administrator of two criminal online hacking forums,” was sentenced last week to 41 months in prison for his role in an international cybercrime operation.
Vovnenko’s case began in 2015, when the United States Attorney’s Office of New Jersey extradited him from Italy to New Jersey, to face a six-count federal indictment for his role in an international cybercrime conspiracy, including four counts of aggravated identity theft, one count of unauthorized access of a computer, and one count of conspiracy to commit wire fraud.
After Vovnenko arrived in the United States, he retained Tim Anderson and his team to negotiate a favorable plea agreement with the U.S. Attorney’s Office. Months of work and negotiations by defense counsel resulted in the Government agreeing to dismiss four of the six counts against Vovnenko, and with Vovnenko pleading guilty to one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, and one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A, which also carried a two-year mandatory minimum prison sentence.
At sentencing, Tim Anderson and his team successfully argued Vovnenko’s case before the Court, and Judge Salas sentenced Vovnenko to 41 months in prison, while also crediting him for the time he spent in jail in Italy awaiting his eventual extradition to the United States.
During sentencing and post-sentencing interviews, Anderson credited Vovnenko with having “changed for the good” and believed that Judge Salas treated Vovnenko “very fairly.”
The defense team was led by attorney Tim Anderson of Red Bank, New Jersey, and included Mr. Anderson’s associate, attorney Daniel Petersen, and Vovnenko’s co-counsel, attorney Eugenie Voitkevich of Woodbridge, New Jersey.
Tim Anderson Law is a boutique criminal defense firm that focuses on federal and state criminal defense, with over 24 years of federal criminal trial experience. Through over 20 years of successful defenses, Tim Anderson has earned an AV® (“Preeminent”) peer-review rating, the highest possible, from the Martindale-Hubbell nation-wide directory of attorneys, for preeminent legal ability and highest ethical standards. Tim Anderson Law has obtained many dismissals, not-guilty verdicts, decisions not to prosecute, substantial downward departures in sentencing, reduced charges, and favorable plea agreements in the Newark, Camden, and Trenton federal courts, as well as in Superior Courts throughout New Jersey. The firm has significant experience and knowledge of the intricacies of the Federal Sentencing Guidelines, which has led to many outstanding outcomes for its federal clients.
Tim Anderson Law |225 Broad St. Red Bank, NJ 07701 | (732) 212-2812 | https://timandersonlaw.com | firstname.lastname@example.org
Eugenie A. Voitkevich is a solo practitioner in Woodbridge, New Jersey, who is fluent in Russian and focuses on both civil and criminal litigation.
The Law Office of Eugenie A. Voitkevich | Woodbridge, New Jersey | (732) 407-1047 or email: email@example.com | triallawyernj.com or russianlawyernewjersey.com
HBO’s The Night Of was the hit of the summer. It wasn’t so much a ‘who done it’ but a pretty in depth look at the criminal justice system as a whole – from a crime to the investigation to indictment, pre-trial detention, trial motions, witness, evidence, a jury decision.
It raised the consciousness of many viewers, appalled some, reinforced the views of others. Along the way it was, of course, entertaining – even in its realism.
The Night Of is the story of Naz, a Muslim-American college student who takes his father’s cab one night and … ends up arrested and in Riker’s Island on a murder charge. After the first episode the show focuses on Naz coping with pre-trial detention, his lawyer (an amazing John Turturro) frantically trying to put a defense together in the face of damning evidence, and the detective and prosecutor building the case against Naz.
There’s a couple of great sequences with the prosecutor, Helen (a superb theater actor …….) interviewing some of her potential witnesses, experts all. Judging from comments on social media and on the New York Times and other reviews and recaps, these scenes seem to have upset more than a few people.
They go like this:
Scene One: The NYC Drug Lab
Helen: Tell me about the effect the stuff he (Naz) had in his bloodstream when he was arrested.
Doctor: It was a strong cocktail, people react differently. Some people could fly a 747 across five time zones and be fine; others wouldn’t be able to lift their head off a pillow. Which one are you interested in?
Helen: The aviator.
Scene Two: The Coroner
Helen: … I’m wondering if that’s how he (Naz) got the cut on his hand. Do you see what I’m saying?
Coroner: I don’t think I do.
Helen: You’re stabbing someone with a knife, sometimes it goes so deep it hits bone, that causes your hand to slip on the blade … but it only slips once, even though you stabbed her twenty-one times. How common would that be?
Coroner: How common do you like it to be?
Helen: I’m asking, Harry, not telling. The question is, if this wound resulted in cutting his hand on a piece of glass or from the blade of a knife.
Harry: Hard to say.
Helen: Well, what if you had to say?
Harry: Will I have to say?
Harry (Looking at the photo for the first time): This cut was the result of his hand slipping from the handle of the knife onto the blade of the knife in the act of stabbing her.
A pause while Helen and Harry lock eyes for a five count. Then Harry repeats his finding in a perfect courtroom voice. Helen thanks him.
Again, a lot of series watchers – and there were a lot of them – seemed to be disturbed by these scenes. “It’s not fair’, ‘That’s not justice’, ‘They don’t care about the truth’, and a lot more, some of it vociferous.
This is a view of the ‘system’ that’s as prevalent as it wrong. At this point in The Night Of, the NYC Police and the prosecutor’s office are convinced of Naz’s guilt. They have reams of damning evidence but no witnesses. They have an indictment. They are building a court case against someone they are convinced stabbed a young woman to death.
They are, in short, doing what they need to do to get a killer off the streets. Everything Helen does is toward that end. Everything Helen does is perfectly legal and ethical. She is doing her job, which at this point is to win the case. The case she believes in.
At this point in The Night Of, it’s up to Naz’s defense team to offer … alternatives. To dispute evidence, to say to the coroner, “Yeah, but, couldn’t the cut have been caused by glass?”
The NFL starts its season this week. One of the marquee games this weekend is Sunday night when the New England Patriots take on the Arizona Cardinals in Arizona. It’s a marquee game because the Patriots are the Patriots and Arizona is the up and coming team in the NFC.
The game has, of course, become pretty much ‘must see’ just as much for who’s not playing Sunday evening – Tom Brady.
Brady begins his four game suspension Sunday for the ‘Deflategate’ matter. At this point if you’re remotely familiar with Deflategate, any recitation of the facts would be nails-on-chalkboard- grating, so let’s assume we all know the facts.
Over the last 18 months of the Deflategate insanity, a number of writers and commentators (sport and otherwise) have gone on and on about Brady, Goodall, Deflategate, and its application to the criminal justice system.
So, are there any lessons to be learned from this debacle? Well, yes, but probably not what you would think. After all, when it comes down to it, this is really an issue in which a billionaire (Robert Kraft) supporting a multi-millionaire (Brady) married to another multi-millionaire (please) are fighting with a multi-millionaire (Goodall) who represents a multi-billion-dollar corporation (the NFL) that the first billionaire is also a member off. That pretty much bears little relationship to the criminal justice system, especially when you remind yourself that the only thing that was ever at risk in the whole mess was Brady missing four games; no one faced probation, prison, etc.
Some of the process, however, i.e. how we got here a Monday away from the lead sports story around the nation starting with “Tom Brady was not in Arizona last night, and …” is instructive.
It’s pretty much become an accepted fact – even for Brady haters (and there are a lot of us) – that The Wells Report, the investigative report conducted by the law firm that also represents the NFL, was unfair and biased. The science was dreadful (really, anyone who drives in winter knows what happens to tires in the cold), the assumptions slanted from the start, it looked as if the NFL conducted an investigation solely to prove its theory.
The report even cited Brady’s destruction of his cell phone as proof of guilt, as in ‘he did it to get rid of text evidence’. This despite that fact that any 13-year-old will tell you that texts live forever, they don’t exist only on the phone.
That is what investigations do. When people use the phrase ‘build a case’ they mean just that. Investigators take bits and pieces and, to quote Paul Simon, ‘hints and allegations’ and put a presentable case together. The final presentation is not a thorough examination of every angle of case and a deep exploration of innocence or guilt and alternative theories and what ifs. That’s why it’s called a prosecution.
The case against Brady was built by people who saw enough early on to assume he was guilty of something, who knew the Patriots had been guilty of other things over the years and put it all together. Wells is a very good attorney; he wrote up a very good case. Flawed, but logical and well-presented and, on the surface, quite damning.
Up to this point, this is how the criminal justice system works. In my last post I wrote about why you do not talk to authorities without a lawyer – this is the reason why.
The thing about the Brady matter, the thing that has, rightfully, maddened so many people, is that in this case Brady’s investigator, judge, jury, and sentencing authority were the same man – Roger Goodall.
And, that’s the other thing to take out of all this. In the real world – that would be the world the NFL is largely unacquainted with – the accused gets every opportunity to refute the case put together by the experts in putting together cases. And, they get to do it systematically, over time, at first in discussions with a prosecutor, then before an impartial judge.
There’s one key to all this, one key to picking apart an investigation, presenting your story clearly, concisely, and with acceptable intensity: having an experienced attorney representing you from the start.