Criminal Defense

New York Attorney General  Eric Schneiderman  filed a lawsuit in a Brooklyn Supreme Court alleging that banking giants Bank of America, JP Morgan Chase, and Wells Fargo created and maintained a mortgage database and then used that information to institute defective foreclosure proceedings against homeowners. Mr. Schneiderman alleges that the banks created this private mortgage electronic registry system, or MERS, as a tool to make it nearly impossible for homeowners to track which bank or entity in fact owned the home or issued the mortgage for the home in question. In essence, the complaint alleges that large banks created a private system with inaccurate records to more easily conduct fraudulent foreclosure proceedings against homeowners, while limiting the ability of those homeowners to defend themselves against foreclosure.

“The banks created the MERS system as an end-run around the property recording system, to facilitate the rapid securitization and sale of mortgages,” Schneiderman said, through his press office. “Once the mortgages went sour, these same banks brought foreclosure proceedings en masse based on deceptive and fraudulent court submissions, seeking to take homes away from people with little regard for basic legal requirements or the rule of law.”

The lawsuit states that “by creating this bizarre and complex end-around of the traditional public recording system, banks achieved their primary goal — over 70 million mortgage loans, including millions of subprime loans, have been registered in the MERS system and the industry has saved more than $2 billion in recording fees.”

The lawsuit seeks an end to this practice, along with civil damages and payments to victimized homeowners.

Mafia man  Salvatore Montagna  or “Sal the Ironworker” was shot November 24, 2011while walking out the door of a home in Ile Vaudreuil, a small island just five minutes west of Montreal. While in New York, Montagno worked for the Bonanno family, a household name to those familiar with the mob families and prominent construction fraud in the area. The Bonanno family is one of the five largest mafia families in New York. In the construction world, they were known experts at “inflating invoices,” i.e. overestimating the amount of workers and materials needed in order to complete large construction projects.

Montagna was born in Montreal, raised in Italy and moved to New York when he was 15. He never filed to obtain U.S. citizenship and after receiving a conviction for refusing to testify before a grand jury on illegal gambling in 2009, Montagna was deported to Canada. After keeping a low profile for several years, by 2011, Montagna was suspected of becoming part of the mafia in Montreal. He continued his New-York born construction scheme by shaking down local construction companies for five percent of their profits.  His death is the continuation of a number of mafia-related deaths in Montreal in recent years and he leaves behind his wife and three daughters.

After a 5 year-long evasion of the authorities, Earl Seth David was apprehended in Toronto last Tuesday for his part in one of the largest immigration scams in U.S. history. David, also knows as “Rabbi Avraham David,” is awaiting extradition from Canada to face charges for his actions as the ringleader of multi-million dollar immigration fraud scheme.

David’s Manhattan-based firm, the David Firm, is alleged to have procured work visas for at least 25,000 immigrant clients from 1996 to 2009 by falsely claiming that U.S.-based companies were sponsoring the foreign nationals for employment. David continued the scheme even after his license to practice law in New York was suspended in 2004.

In the United States, American-based companies and employers are permitted to file applications with the U.S. Department of Homeland Security in an effort to “sponsor” a foreign individual on the premise that his/her skills are special and necessary for the firm. The firm is alleged to have falsified the documents necessary for such a sponsorship, creating fake pay stubs, tax returns and experience letters to deceive the Department of Labor into issuing labor-based visas. Meanwhile, David was alleged to have collected up to $30,000 for each alien applicant, yielding himself and his accomplices, millions in profit; accomplices that include, employees of the firm, accountants and one Labor Department employee. The group faces charges of immigration fraud and conspiracy to commit wire and mail fraud, charges in which David shares, although money laundering is added to his list as well. With thousands having been granted unwarranted stay and authorization to work in the country and multi-million dollar profits scammed, this group will soon face the possibility of 20 years each in prison.

A deal between Governor Cuomo and state lawmakers for the expansion of the DNA database in New York for convicted criminals has been reached, which will create a database among the nation’s largest, according to the New York Times. Under current law, DNA samples are only required for less than half of the potential crimes in New York, including all felonies. This proposal will require New Yorkers convicted of any crime to submit a DNA sample to the state for entry into the state’s existing DNA database.

While prominent critics of this proposal include the New York Civil Liberties Union, defense attorneys and judges will have broader access to DNA evidence in order possibly exonerate defendants. Jonathan Lippman, the Chief Justice of the New York Court of Appeals, the highest court in New York, told the New York Times, “This legislation is a major step forward in eliminating wrongful convictions in New York…. The legislation takes an even-handed, balanced approach to this problem, particularly by expanding the access of convicted offenders — not only those convicted after trial, but also those who pleaded guilty — to DNA testing.”

Prosecutors, including Manhattan District Attorney Cyrus Vance, are largely for this measure. Vance told the New York Times, “I think the passage of this legislation speaks to something that clearly is in our control and that clearly is going to have a real impact on solving old cases, preventing future cases and hopefully exonerating the innocent.”

“The power to arrest — to deprive a citizen of liberty — must be used fairly, responsibly and without bias.”  Such was part of a statement given by  Loretta E. Lynch , the United States attorney for the Eastern District of New York. The public announcement followed the arrest of Officer Michael Daragjati, 32, of the New York Police Department, charged with a civil rights violation.

The complaint alleges that Officer Daragjati, an 8-year veteran with the force, falsely arrested a black man and was then found bragging about the incident during a telephone conversation. Daragjati stopped and frisked the man in the Stapleton area of Staten Island this past spring. The man was searched and revealed no possession of any contraband or weapons however, when he complained about his treatment by the officer and requested Daragjati’s badge number, he was arrested and charged with resisting arrest.  Daragjati noted in his police report that the arrested had flailed his arms and kicked his legs, exhibiting disorderly conduct and resisting arrest, thus enabling him to detain the man for a period of roughly 36 hours.

To Daragjati’s dismay, authorities intercepted a phone conversation he had with a female friend the day after the arrest during which, the officer referred to the man using racial slurs and acted proud of his arrest. At least 12 more phone conversations were intercepted where Daragjati was heard speaking derogatorily about African-Americans.

In unrelated matters, Daragjati has also found himself charged with both attempted extortion and insurance charges. The case at hand carries a maximum sentence of one year and fine of up to $100,000. However, the man once donning blue may soon be trading in his uniform for one less admired, as the other pending charges carry much longer sentences of up to 20 years and $500,000 in charges.

On May 7, 2012, the Court in Matter of Victorino W., D-29783-11, dismissed two resisting arrest charges against two female students when it held there was insufficient evidence to show that neither of the two respondents knew they were being arrested.   The first student Victoria W. allegedly pushed a safety agent during a cafeteria fight, climbed onto a table and refused to come down when ordered to do so.  It is alleged the second student Karen B. bit a Garden City police officer who was trying to escort her into an ambulance.  The Court reasoned that “[b]ecause neither respondent was made aware that she was to be arrested, before she committed the acts alleged to constitute resisting arrest, and because the circumstances were not such as to give an inference the respondent knew she was to be arrested, the evidence in each case is insufficient as a matter of law to establish an intent to resist arrest.” 

Pursuant to New York Penal Law § 205.30, “a  person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.”  Resisting arrest is a class A misdemeanor. 

Please contact Erik M. Bashian, a New York trial attorney and former juvenile prosecutor, if your child is the subject of an arrest and requires legal representation in the New York Family Court system.

Last month in Sanford, Florida, Trayvon Martin was shot and killed by self-appointed neighborhood watch volunteer George Zimmerman, sparking outrage and a debate over “Stand Your Ground” laws found in states across the country. Zimmerman was briefly interviewed police and not arrested for the death, with police asserting that this law ties their hands. This law, enacted in Florida under Governor Jeb Bush in 2005, provide that a person who is in danger of being killed or badly harmed may stand his or her ground and protect themselves and be immune from both criminal and civil liability. Previously, a person who was threatened by a knife or a gun had a duty to escape the situation, if reasonably possible. Under the current law, a person who is threatened may use a deadly weapon and use it against the aggressor, without making any attempt to escape.

Zimmerman, 28, told the police that he acted in self-defense when he fatally shot Martin, 17, in the chest, and Sanford police maintained that their hands were tied by the Stand Your Ground law and that probable cause did not exist to arrest Zimmerman. The victim was an African-American teenager walking in a gated community, found with a can of soda and Skittles on his person. Zimmerman observed the victim walking and called 911, saying that the victim was “suspicious.” Even though the 911 operator told Zimmerman not to follow the victim, Zimmerman did so anyway. Zimmerman maintains that the victim attacked him and that he fired at the victim in self-defense. Many are calling the investigation conducted by the Sanford police department inadequate – Florida state is conducting its own investigation, as is the US Justice Department.

According to the New York Times, the number of defendants claiming self-defense has risen significantly since the law was passed, with journalists have stating that in their discussions with police and prosecutors in Florida, the increase may be as high as three-fold. Gang members have also begun asserting protections under this law to shield participants in gang shoot-outs. With the loser of the shootout dead, the gunman’s side of the story usually prevails, according to the New York Times, and prosecutors are sometimes forced to drop the case. Rather than letting a jury decide a defense of self-defense, the decision is now often made by the police or district attorney’s office under the current law.

The state attorney in Tallahassee told the New York Times, “The consequences of the law have been devastating around the state. It’s almost insane what we are having to deal with.”

Another blow to Dominique  Strauss-Kahn’s  reputation, an anonymous letter received by Thompson and Wigdor, counsel for Nafissatou Diallo. It seems as though Strauss-Kahn, currently facing a seven-count indictment for the alleged sexual attack on a New York maid, may have more legal issues if his alleged victim’s attorneys keep digging around Air France.  Thompson and Wigdor have been encouraging female employees of the airline to solicit information regarding any inappropriate behavior they experienced while interacting with Strauss-Kahn.

Diallo’s attorneys have already received two accounts from displeased  Air France  employees and now have a letter alleging the existence of many many more. As reported by Le Parisien newspaper, it alleges that the airline, which has an arrangement with Strauss-Kahn to board any flight of his choice at his convenience, has received several hundred complaints from disgruntled employees and crew members. It further alleges that the airline had to implement a strict all-male crew when this once thought to be the future President of France was on board. A French magazine  Le Point  reported that even moments before Port Authority detectives arrested the man, he had hollered at a flight attendant “What a nice ass” as she prepared for takeoff.

Although a spokesperson from Air France stated that the airline denies all of the allegations pertaining to Dominique Strauss-Kahn, any more employees coming forward or mysterious letters turning up are sure to hurt this defendant’s case. Thompson and Wigdor certainly plan to use this alleged pattern of behavior to strengthen the credibility of their claim against the man.

In a  unanimous decision , the U.S. Supreme Court has ruled that police must obtain a warrant before attaching a GPS tracker to a suspect’s vehicle.  However, the Court was split 5-4 in its reasoning behind the ruling, with Justice Antonin Scalia writing for the majority.   Justice Scalia  reasoned that the  Fourth Amendment’s  protection of “persons, houses, papers, and effects, against unreasonable searches and seizures” would extend to private property, including one’s vehicle.  In contrast, the minority decision emphasized a more sweeping declaration that installing the GPS tracker not only trespassed on private property, but violated the suspect’s “reasonable expectation of privacy.” 

The case involves a narcotics operation allegedly run by the defendant, Antoine Jones.  During the course of the investigation, DC police and FBI agents tracked Mr. Jones, a nightclub owner, through several means of surveillance techniques, which included tapping his cellphone under a warrant from a federal judge.  Authorities also placed a GPS tracking device on his Jeep Grand Cherokee without a valid warrant, which the government argued was not constitutionally required.  The Justice Department argued that the FBI uses GPS tracking devices in thousands of investigations each year, and attaching a tiny tracking device to a car’s undercarriage was too trivial a violation of property rights to matter.  However, the majority shot this argument down, reasoning that even a small trespass, if committed in “an attempt to find something or to obtain information,” constituted a “search” under the Fourth Amendment.

This is a landmark case as far as constitutional rights in the digital age are concerned.   Justice Sotomayor joined in the majority opinion, but wrote separately to set out various privacy issues that emerging technology was presenting.  For example, smartphones have the ability to disclose a user’s location unless the internal GPS functions are actually turned off.  Unfortunately, the Court’s ruling provided no definitive answers as to whether the government must obtain a warrant for access to such private property.

Staying true to our nation’s ideals of religious freedom, the United States Supreme Court, the nation’s highest legal authority unanimously held  that a Muslim prisoner in Arkansas, Gregory Holt, is entitled to grow a beard for religious reasons.

Holt brought his claim under a federal law, the Religious Land Use and Institutionalized Persons Act, which seeks to protect prisoners’ religious rights.  The Supreme Court held the Arkansas prison policy, which prohibits prisoners from keeping beards to be a violation of religious rights and rejected the state’s reasoning that the policy was needed for security reasons in order to prevent prisoners from concealing contraband.

Justice Alito noted that the state already searches clothing and hair and failed to provide a valid reason for why it could not search beards as well. In their arguments Holt’s lawyers had noted that more than 40 states and the federal government allow prison inmates to keep similar beards.  If your fundamental or civil rights are being violated please contact Bashian & Papantoniou to schedule your free consultation.

The trial of  R. Allen Stanford , a money manager and chairman of the now defunct  Stanford Financial Group , began on Monday, January 23, 2012.  Stanford has been accused of running a $7.2 billion Ponzi scheme after being arrested in 2009 in Virginia.  As with most fraudulent Ponzi schemes, Stanford Financial Group was investigated by the SEC, FBI, and the  Financial Industry Regulatory Authority  (FINRA), a major U.S. private-sector oversight body, to determine how Stanford International Bank was able to consistently make higher-than-market returns to its depositors.  The  complaint  alleges that Stanford defrauded more than 20,000 investors through the sale of bogus certificates of deposit at Stanford International Bank, Ltd., a financial institution created by Stanford and based in Antigua.

Several aspects surrounding this case will make for an interesting trial.  First, Stanford was the victim of a vicious prison beating in 2009 stemming from an altercation regarding use of the telephone.  He now claims that he has lost all memory and that he cannot recall the details of his business and banking operations.  Second, Stanford has filed a lawsuit accusing federal prosecutors, the FBI and the SEC of his complaint terms “ abusive law enforcement ,” and adamantly adhering to his claim of innocence.  The suit seeks $7.2 billion in damages, which, coincidentally, is about the same amount that he is accused of stealing in the Ponzi scheme.  Stanford has also filed suit against insurer Lloyd’s of London, claiming that Lloyd’s should be held liable for his legal fees as part of the Director’s and Officer’s policy held by Stanford Financial Group.  However, after it was determined that Lloyd’s did not have to pay, Stanford is now attempting to have the U.S. taxpayer pick up his legal fees through his claim that he is indigent.

Finally, James Davis, the former CFO of Stanford Financial Group and Stanford’s college roommate at Baylor University, will testify as the government’s key witness.  Davis has already pled guilty and hopes that his testimony will lead to a lighter prison sentence at his own sentencing.  There is no doubt that these juicy details ensure that Stanford’s trial will be one to watch.

Amora Rachelle, a second year law student at  Hofstra University  was arrested this past week for fraudulently impersonating a psychiatrist. The 35 year-old Long Island resident was billing both clients and insurance companies despite her lack of a medical license. Although this is not the first time Rachelle has made the headlines, it is her most damaging story yet. She had recently been in the news after secretly videotaping her Rabbi husband’s encounters with prostitutes on the Sabbath. Rachelle currently faces an enumeration of felony charges including: grand larceny in the third degree, falsifying business records in the first degree, scheme to defraud in the first degree, offering a false instrument for filing in the first degree and finally, unauthorized practices.

This scandal tainting Hofstra University’s law school comes on the heels of Rachelle’s classmate, 23 year-old Evan Sachs who was arrested earlier this year for randomly stabbing an eight year-old child at Dave and Busters. The accused was charged with attempted murder in the second degree in addition to two counts of assault of possession of a weapon. Sachs was a 1L at Hofstra Law School until dropping out several months later. Earlier this year, he walked up to a random eight year-old boy playing video games in the popular Westbury location arcade and stabbed him in the back five times.

While Hofstra Law School’s rankings continue to be on the rise, this negative press is certainly casting down a dark shadow. Fraud and attempted murder charges among the student roster leaves many wondering about the otherwise reputable school’s screening process of applicants.

A United Arab Emirates Officer, Colonel Arif Mohamed Seed Mohamed Al-Ali, was acquitted this past Friday from charges of keeping an unpaid servant in his home. Elizabeth Cabitia Ballesteros accused Al-Ali of having her work long, unpaid hours cleaning, cooking and babysitting. In addition, she claimed that she was forced to sign a receipt that Al-Ali had paid her twelve monthly payments of $1,600 which she maintains was never actually received.

Judge Mary M. Lisi found numerous holes in Ballesteros’ complaint, ultimately ruling that her testimony “doesn’t have the ring of truth.” Al-Ali, his wife and five children, along with Ballesteros, moved to Rhode Island last year so he could study at the Naval U.S. War College in Newport, R.I. Despite the harsh preconception Al-Ali, an educated and wealthy man faced when confronted with accusations from a poor Filipina mother of three working as housemaid and nanny for him, Judge Lisi found the truth. Why would a successful, 30-year military man, just given an opportunity to study his practice in the U.S., an offer of only 47 issued worldwide, suddenly scam a woman who had worked for him and cared for his children for three years? Furthermore, after Ballesteros went missing, why would he telephone the police on her behalf, inevitably calling attention to himself?

Ivy O. Suriyopas, a lawyer from the Garden City branch of the  Asian American Legal Defense and Education Fund , is outraged with Lisi’s decision. She has plans to pursue a civil suit against Al-Ali and his wife Samah Alharmoodi, seeking $200 in damages for Ballesteros as a result of illegal trafficking. Although Al-Ali has returned to the U.A.E., he will be forced to return to face this nightmare in our courts yet again.