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photo_47832_20151022-300x191A mysterious young man from New Jersey might be able to run, but he can’t hide from a federal lawsuit seeking money damages for what he did to our client. That’s how a federal judge ruled, as the New York Law Journal reported last week.

Last October, our office filed a complaint in federal court alleging that Yosef Gerszberg had raped a 23-year-old actress the same night he met her at a dinner party on the Upper West Side of Manhattan. Before filing the complaint, we mailed Mr. Gerszberg a copy with a letter suggesting that he hire a lawyer, have the lawyer call us, and try to settle the case before going to court. A lawyer did call us, outraged, and said he was going to “countersue” us and the victim for a litany of grievances. It seemed clear that Mr. Gerszberg did not want to settle, so we went ahead and filed the lawsuit.

But Mr. Gerszberg did not respond. He did not just blow a deadline, he tried to ignore the fact that he was being sued for a serious sexual assault. So we had the papers hand-delivered to his last-known address, in Englewood, New Jersey. It was a swanky house, where, it happened, a gentleman by the name of Seth Gerszberg also appeared to live. After the younger Mr. Gerszberg continued to ignore the lawsuit against him, Judge Richard Sullivan of the Southern District of New York set the case down for a “default hearing” — meaning a hearing to determine whether a judgment should be entered against the younger Mr. Gerzsberg for failing to respond to the lawsuit. But a middle-aged man appeared at the hearing and told the court he lives in the swanky house and that the defendant has not lived there in more than a year. The man’s name was Seth Gerzberg. He said he had two adoptive sons and both, in fact, were named Yosef Gerzberg. But one of them also went by the name of Surab Bilich, and that was the person named in the lawsuit. The other Yosef Gerszberg, Seth advised us, had nothing to do with it. Unfortunately, Seth did not know where young Surab/Yosef lived or where he worked. He did have a phone number and an email for the young man. Judge Sullivan ordered him to turn them over.

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Under the regulations implementing New York’s Sex Offender registration act, a person who “has a history of drug or alcohol abuse” is considered at higher risk for re-offense, and can be assessed with points that lead to a higher risk level. In People v. Weber the defendant was found with bags of marijuana at the time of his arrest and on a prior occasion. The hearing court assessed him points in the drug abuse category, pushing him over the line into Level Two. Level Two requires publication of an offenders information on the internet and lifetime registration.

But in an opinion handed down yesterday, the First Department Appellate Division, disagreed. The People had to show that either that the defendant had a history of abuse or that the drugs were somehow connected to the crime at issue. The Appellate Division reversed the Level Two adjudication because “even assuming [the defendant] could be found to have been a marijuana user, such use was not established to be more than occasional social use, and thus would not warrant the assessment of points under the risk factor for drug abuse.” That put the defendant down to Level One, requiring twenty years of registration, but no internet notification.

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https://www.zmolaw.com/news/wp-content/uploads/2018/01/Screen-Shot-2018-03-14-at-3.10.35-PM-300x228.jpgA year ago, Gov. Mario Cuomo granted clemency to our client Felipe Rodriguez, commuting his life sentence to the 27 years he had already served for a 1987 murder. Felipe, who is also represented by Nina Morrison of the Innocence Project, was released because he was an incredible inmate: he had renovated the rectory in one prison and replaced the plumbing in another; he brought Cardinal Dolan to pray with the men on Easter and recruited writers from among the inmates for a prison newsletter. He was so respected by prison authorities that he was put in charge of caustic chemicals at Eastern Correctional Facility.

Felipe Rodriguez is also innocent. He was wrongly convicted of murdering a young Brooklyn mother named Maureen Fernandez and leaving her body behind a warehouse in Queens. His conviction was based on two pieces of evidence: (1) testimony of a drunk who identified Felipe a year-and-a-half after the murder as someone he briefly saw in a bar with the victim the night she was killed and (2) testimony from Javier Ramos, a friend of Mr. Rodriguez who had admitted to falsely accusing someone else of the murder because he was afraid of the police. No physical evidence, DNA, fingerprints or other forensics of any kind ever linked Felipe to the crime.

As the Daily News reported on Christmas Eve: “The case against Felipe Rodriguez was, at first, a case of no’s. No witnesses. No motive. No connection between Rodriguez and Fernandez. No DNA evidence. No criminal record. No history of violence. No knife. No description of bloodstains on the clothing of the man presumed to be the killer.”

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https://www.zmolaw.com/news/wp-content/uploads/2017/10/Screen-Shot-2017-10-17-at-11.20.45-PM-300x127.pngWhen officials at Bedford Hills Correctional Facility found out our client, Yekatrina Pusepa, was in an illicit relationship with a prison guard they did nothing to protect her. Instead, they held her out as bait. And when she would not cooperate with them, they threw her in solitary confinement based on trumped up charges. While in solitary, she was left alone with a notoriously violent inmate who had threatened her before — and was able to brutally attack her because of official indifference. Those are the charges in a new lawsuit brought by the Law Office of Zachary Margulis-Ohnuma and Perlmutter & McGuinness, P.C. in federal court in Manhattan.

The suit is one of at least three pending suits against the New York prison system based on what is alleged to be routine abuse and inadequate protection of women prisoners. In Pusepa’s case, the lawsuit alleges that prison officials bungled their investigation, which ultimately led to minor criminal charges lodged against her assailant, former C.O. Ruben Illa, by re-victimizing Ms. Pusepa at every turn. An official told Pusepa that the prison was aware that she was in a relationship with Illa. Under New York law, inmates are not legally capable of consenting to sexual contact with corrections officers, and therefore all sexual contact between inmates and officers is considered non-consensual. Such contact therefore violates the Eighth Amendment. But, according to the suit, the prison continued to allow Illa to work with Pusepa, even letting him swap shifts with another guard so that he could spend more time with her.

The other lawsuit, also brought by the Margulis-Ohnuma and Perlmutter & McGuinness firms, attempts to hold prison officials responsible for forcible sexual abuse by another guard at Bedford Hills, who was prosecuted for forcibly touching our client.

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Former Congressman Anthony Weiner was just sentenced to 21 months in prison for sexting with a 15-year-old. At sentencing, his lawyer asked that he be sent to FCI Schuylkill in Pennsylvania. That seems to have been a mistake: Schuylkill is a medium-security prison, filled with violent offenders and replete with restrictive rules. Schuylkill has a satellite camp, but as a sex offender, Weiner is not eligible (he gets the “Sex Offender Public Safety Factor” and therefore must go to a secure facility). There are low-security federal prisons that would be far more pleasant and conducive to the year-and-a-half or so of introspective atonement that Weiner will endure while he waits to go to a halfway house. The New York Times wrote about Weiner’s placement in federal prison, but, unfortunately, just about everything in their story was wrong.

The bottom line is that “designation” to a particular federal prison is a complicated process with far-reaching consequences. Experiences in federal prison vary widely. Camps like the ones at Schuylkill and Otisville are unsecured and generally not unpleasant places to be. Contrast that with the “ADX” at Florence, Colorado, which is reserved for the most dangerous criminals in the United States and drives many of its residents mad. The Bureau of Prisons decides where you will go in the weeks after sentencing at a central facility in Grand Prairie, Texas. They rely on the Presentence Investigation Report (known as the PSR) for facts about you and plug those into a formula that determines your security level. It is essential that the information in the PSR is accurate as any mistake could change which facility you end up in. There is a small industry of experts who keep up with the daily changes in conditions within the Bureau of Prisons and can advocate for a particular designation. The process is laid out in this 108-page BOP policy.

The New York Times missed most of this in talking about Weiner, whose situation is not too different from many first-time federal offenders, including people convicted of child pornography. Being a former congressman and pledging himself to “a rigorous curriculum of rehabilitation and therapy” probably make no difference at all. Whatever his lawyer may have believed (and it does not seem like they thought about it beforehand), there is zero chance he would have been assigned to a prison in New York City: the three federal jails in New York are reserved for inmates who are awaiting sentencing or witnesses for the government, plus a small cadre of trusted inmates near the end of their terms who work in the local jails.

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Two huge illicit markets operating on the Dark Web, AlphaBay and Hansa, were shut down today after being infiltrated by the government for the past several weeks. The sites had claimed up to 200,000 users, 40,000 vendors and 350,000 listings for illegal drugs, stolen credit card information, hacked computer code, counterfeit goods and other illegal items. A Canadian citizen based in Thailand was arrested last month in connection with AlphaBay.

The Dark Web consists of websites accessible only though the Tor network, an easy-to-use, technically sophisticated way to communicate anonymously over the internet. The technology, much to the dismay of governments around the world, has become popular with political dissidents as well as criminals hiding their activities from law enforcement. The Dark Web is home to numerous high-traffic online marketplaces with few limits on what can be bought or sold. These businesses conduct transactions in BitCoin, Ethereum and other cryptocurrencies.

According to the Department of Justice press releasee, AlphaBay users bought and sold “deadly illegal drugs, stolen and fraudulent identification documents and access devices, counterfeit goods, malware and other computer hacking tools, firearms, and toxic chemicals throughout the world.”

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The conviction of Ross Ulbricht, the mastermind behind the Silk Road marketplace on the Dark Web, has given the Second Circuit a chance to explore how to apply the Fourth Amendment to the search and seizure of stored digital information.

The government seized and searched Mr. Ulbricht’s laptop. Ulbricht, backed by the National Association of Criminal Defense Lawyers, argued on appeal that the search violated what is known as the “particularity” requirement of the Fourth Amendment. Under the Fourth Amendment, all warrants must be supported by probable cause and “particularly describ[e] the place to be searched, and the persons or things to be seized.” The Framers adopted the requirement that a warrant describe in a particular manner both the place to be searched and what the government intends to seize as evidence of a crime to prevent “general warrants.” A general warrant is a warrant that grants government agents discretion to search any and all property owned by a criminal suspect in an unrestrained and exploratory manner. By contrast, the Fourth Amendment demands that agents tell the court, before searching a suspect’s property, where they plan to search, what they plan to seize, and how the place to be searched and the things to be seized relate to the charged conduct.

Systems with digital information present special challenges for agents attempting to describe the target of their search and for courts attempting to fashion warrants that don’t authorize agents to rummage through wholly irrelevant digital files. The appeals court in U.S. v. Ulbricht recognized that hard drives typically contain a wide range of highly sensitive information, such as “tax records, diaries, personal photographs, electronic books, electronic media, and medical data, records of internet searches, [and] banking and shopping information.” Second, as a practical matter, it is difficult—if not impossible in most cases—for the government to separate sensitive, private, or irrelevant information from information that is targeted before they conduct an examination of a digital device. Often, agents must seize a suspect’s entire computer system, or gain access to a suspect’s entire email account, before they can determine if it contains evidence relevant to their investigation.

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In a decision that could have a wide-ranging effect on people convicted of child pornography offenses, the Second Circuit last month struck down a 225-month sentence imposed on a man convicted of having illegal material on his laptops and a thumb drive as he tried to drive into Canada. Joseph Jacobs was 39 years old and headed to his parents’ vacation home in Quebec when Canadian officials stopped him. He failed to show up for court in Canada, so charges were brought in the U.S. for “transporting” his personal collection of child pornography, which carries a maximum sentence of twenty years in prison. Other than that, his conduct was not remarkable: there was no evidence he produced child pornography, shared illegal photos, used a file sharing system, or tried to solicit a child. What he did do, though, was annoy the sentencing judge. He testified at his own trial and lied, then was rude and obnoxious at the sentencing hearing, showing no empathy for the victims or regard for the legal system.

Still, the appeals court said that a sentence near the statutory maximum was far too high in these circumstances: “A sentence of 225 months for a first-time offender who never spoke to, much less approached or touched, a child or transmitted explicit images to anybody is unreasonable.” The opinion provided several reasons for the panel’s decision which could be used in other cases. It noted Jacobs was already 39 at the time of the crime and that recidivism is lower in offenders that old, as compared to younger offenders. It provided statistics from the U.S. Sentencing Commission showing that 225 months was longer than almost all child pornography possession sentences. It reiterated the holdings and reasoning of U.S. v. Dorvee, which had found that the main sentencing guideline for child pornography was “irrational” and “eccentric” because its many enhancements (“specific offense characteristics” in Guidelines terms) were present in virtually every case. It noted that since Dorvee, that concern had only become stronger because the Sentencing Commission had since “effectively disavowed” the flawed guideline and “the latest statistics on the application of sentencing enhancements confirm that the enhancements Jenkins received under this Guideline are all-but-inherent.”

These are powerful words coming from the appeals court that oversees all sentencing in the Southern and Eastern District of New York. Throwing out a sentence based on “substantive reasonableness” is rare — it happened last year in another child pornography case, but that was a summary order with little precedential weight. People facing sentencing on child pornography charges would be well advised to carefully consider the arguments presented by the panel in U.S. v. Jacobs and apply them to their own cases.

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United States Attorney General Jefferson Sessions put out a tragic new policy today that, if it is followed, will ruin countless lives through the unyielding weight of the federal law. Under the policy, which is outlined in this memorandum “for all federal prosecutors,” the government will “charge and pursue the most serious, readily provable offense.” This means U.S. attorneys no longer exercise discretion, but instead will pursue people with the highest penalties, i.e. the longest Guidelines sentences and the harshest mandatory minimums, that they can. The new policy is a sea change, especially in drug cases, where prosecutors were previously directed to seek mandatory minimum sentences only against the most serious offenders (in case there was any confusion, Attorney General Sessions specifically rescinded that policy, known as the Holder Memorandum).

In child pornography cases, the new policy means that virtually all offenders may be charged with a mandatory minimum sentence of five years for “receipt” of illegal child pornography. While fraud cases generally do not carry mandatory minimums, it may mean that more defendants are charged with aggravated identity theft, which carries a two-year mandatory minimum sentence consecutive to any other sentence imposed. If individual prosecutors do not charge these “most serious, readily provable” offenses, they will have to get approval from the U.S. attorney for the district or an assistant attorney general, or their designee. Reasons not to charge must be “documented in the file.”

Defenders of over-criminalization in the federal system point to prosecutorial discretion as a counterweight to the thousands of acts that Congress has defined as federal offenses. Prosecutors, they argue, need to be able to bring serious charges in order to obtain cooperation from defendants and to force fair guilty pleas. But the Sessions memorandum, if read literally, would seem to turn that approach upside down: it directs prosecutors to charge as harshly as possible, no matter how extreme or unusual the law is. Of course, the U.S. Department of Justice has a long tradition of decentralization, leaving many crucial decisions and policies to local U.S. attorneys. Again, that ought to be a bulwark against overreaching under the federal criminal code. But the Trump administration seems intent on breaking down many of the customs that have kept the federal system, on balance, relatively fair. If the Sessions memo is followed, it spells tragedy for families gathered up in its broad, thoughtless net.

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Welcome to the revamped zmolaw.com website. This site combines content that was formerly on two separate webpages, integrating Sex Crimes Advocacy with the old zmolaw.com site. The new site has up-to-date information on our practice, press reports about our cases, and detailed information about criminal justice issues with a sharp focus on federal criminal defense and sex crimes. It also has comprehensive information about sex offender registration from a defendant’s perspective and sections on victims’ rights and civil rights. If you need a criminal lawyer, or you are interested in our work, please explore the new pages and check here frequently for updates.