The other day a potential client came to see me about his federal criminal case in New York. During our discussion, he wondered if there was any real benefit of hiring an attorney who was heavily experienced in the federal system or would any smart and hard-working lawyer do? He had found an attorney online who seemed to be very smart but had just left the District Attorney’s office three years ago to become a defense attorney. In this entry, I will answer this question by providing an example of how hiring a top New York federal criminal attorney can change your case – and your life.
The Arrest: Brooklyn Defendant Facing an Impatient North Carolina Judge
KT was arrested in Brooklyn years ago on federal charges in the Eastern District of North Carolina. He was being held on charges including the attempted murder of a United States Postal Employee while he was engaged in his official duties, in violation of 18 U.S.C. § 1114, punishable by up to 20 years in prison. Other charges included the use and carrying of a firearm during and in relation to the attempted murder, in violation of 18 U.S.C. § 924 (c) – and punishable by a mandatory, consecutive sentence of five years in prison. To put it succinctly: KT was facing 25 years in prison for shooting a United States postman on federal grounds – the post office. To make matters worse, he was a New York resident who would be facing justice in Wilmington, North Carolina, not exactly a hotbed of compassion for violent, northern interlopers.
But first things first: somehow I convinced a federal Brooklyn magistrate to release KT on bail which included as security his mother’s home. This allowed him to travel with me to North Carolina for his first appearance 10 days later, instead of being transported by United States Marshals, handcuffed, on a multi-day bus ride down south. During our first appearance, the federal judge made clear that he would be moving this case along quickly to its conclusion: despite my not having received a single piece of paper of discovery yet, the judge ordered pretrial motions due exactly one month later. It was made plainly clear to me that I had one month to figure out how to prevent KT, a 24 year-old young man, from spending the next 25 years of his life in prison.
The Evidence Against KT: And a Plan is Hatched
While there were no witnesses who could identify KT as the shooter during the incident two years earlier, many identified the Jeep he was allegedly driving as the car from which the shooter emerged. The Jeep was recovered by law enforcement and inside it was a jacket belonging to my client. The owners of the Jeep were a husband and wife who were prepared to testify that they had loaned KT the Jeep the night of the shooting – and that KT had admitted the shooting to them immediately afterward. The husband/witness was at the time incarcerated for an unrelated narcotics offense. As was clear, the evidence was very strong and we had very little time to counter it.
Immediately we devised a plan. I had been in touch with a former inmate-turned paralegal who I believed could befriend the wife/witness; as a result of our investigation we knew was working at a clothing store in Brooklyn. As the paralegal had full knowledge of both the prison and legal system, I felt there was potential for something positive here. Sure enough, within two days, the paralegal had befriended the wife and learned her story: she and her husband, who was incarcerated in federal prison in North Carolina, were preparing to testify in a case which involved a shooting on post office grounds. They both hoped that with their cooperation, the husband would receive a reduced sentence, possibly time served. This was clearly my case they were talking about.
The paralegal offered his assistance to the wife: he would advise she and her husband on how to best go about receiving this reduced sentence. The wife agreed and had her husband call our paralegal on his cell phone to discuss these issues; during these conversations, the husband indicated that he would be testifying against my client and was “prepared to say anything I need to say in order to get him convicted to reduce my sentence.” Numerous conversations such as this occurred over the next few days – but because nearly every one of them occurred with the wife present, the paralegal was only able to record one conversation.
A Rarely Used Legal Attack On a Government Witness
I then sent out a discovery letter to the prosecutor which included a novel request for the preservation of the husband’s calls from prison (which were made on a recorded line as all prison calls are) and for a review of the calls for any Brady material, a Supreme Court case which requires prosecutors to turn over any exculpatory information they have to the defendant; this includes impeachment material of their witnesses. Brady v. Maryland, 373 U.S. 83 (1963). Surely, tapes of calls made by a government witness stating his willingness to testify falsely in exchange for a reduced sentence fit that definition. The request for preservation of the tapes was due to the Bureau of Prisons policy destroying all inmate prison calls after a period of approximately six months.
The government did not formally respond until a few days before our motions were due. In its letter, the government claimed that it “was not aware of any authority the United States Attorney’s Office has to require the Bureau of Prisons to preserve tapes. Further, we know of no legal authority requiring the prosecution to make such tapes available for a ‘fishing expedition.’” Clearly, the prosecutor was unaware of three important things: 1) that a small handful of courts across the country did hold that tapes of the Bureau of Prisons prison calls were within the custody and control of the prosecution; 2) that this sparse caselaw did obligate the prosecution, therefore, to actively review these tapes for evidence of any exculpatory or impeachment material and to turn those over to the defense; and 3) and most importantly, that our request was no lark or “fishing expedition”: I knew exactly what the witness’s prison call tapes would reveal – and I was prepared to inform the judge in an in camera, or private meeting in his chambers.
Our motions which contained the legal authority described above were submitted to the court the day before they were due and less than one month after KT first appeared in the North Carolina courtroom. The government’s response, two weeks later, was weak: it was clear to me that the judge would most likely require the prosecution to review the husband’s prison calls — especially after I explained to the court that the inmate/witness had stated during the calls his willingness to perjure himself during the trial. Nevertheless, I received a plea offer of 15 years along with the threat that the government might supersede the indictment against KT and add federal drug trafficking charges, turning a potential 25 year sentence into decades more.
The Prosecution Folds
The government requested a meeting with me on the morning of the scheduled oral argument on my motions. During the meeting, the prosecutor asked me what was in the tapes I had wanted disclosed. I told the prosecutor what her witness had said and that his willingness to commit perjury against KT extended to his other witness, the wife, who clearly supported his idea on tape. The prosecutor was dubious — and asked me if I had any proof. At that point I pulled out a cassette tape — this was 1999 after all — and gave it to her to play: on the tape, her witness is clearly heard stating that was planning to testify against “some dude who shot someone at the post office” and that if he “had to lie” he would. Immediately, the prosecutor asked me what type of plea deal I would be willing to accept on behalf of KT: I offered a plea to a an assault on the postman, the United States employee, in violation of 18 U.S.C. § 111 (a)(1), and the dropping of the attempted murder and related firearms charge. In addition, I asked that the government agree not to charge KT with narcotics trafficking. The prosecutor agreed to this offer — and suddenly KT was facing just a few years in prison instead of the decades in prison as contained in the original charges.
The sentencing occurred a few months later and the judge, who acknowledged reading the defense motions, expressed his admiration for the legal work I had done — and sentenced KT to 27 months in prison but with a recommendation for immediate entry into the Intensive Confinement Program, also known as “boot camp” which required inmates to serve just six months before being released. All in all, this case ended with a fantastic result despite starting under such difficult and high-pressured circumstances. Every case is different and every case requires an inventive, imaginative effort — and this case required it quickly. And to the potential client who wasn’t sure if an experienced New York, federal criminal attorney is more likely to get a better result than a young lawyer with no federal experience, I would say this: of course, are you crazy? Call the Law Offices of Jeffrey Lichtman at (212) 581-1001 to discuss your case today.