A few months ago, I wrote about the arguments being heard by the United States Supreme Court in the case of United States v. Jones.  You can read my previous article on the case by clicking here, but to provide a brief synopsis: in that case the government argued that law enforcement officers do not need a search warrant to attach a GPS device to a person’s vehicle and then monitor the movements of that vehicle.  Today, the United States Supreme Court, in a unanimous opinion, held that the installation of a GPS device on a suspect’s vehicle constitutes a search for Fourth Amendment purposes, and therefore it presumptively requires a warrant.

This decision is being touted as one of the most important liberty and privacy cases decided by the Supreme Court over the past several decades.   According to the opinion written by Justice Scalia (joined by four other Justices), “[i]t is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information.  We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”   In a concurring opinion, Justice Alito (joined by 3 other Justices) did not agree that the warrantless trespass on to the defendant’s property was the key that made the installation of the GPS device and the subsequent monitoring of the vehicle an unconstitutional search.  Rather, Judge Alito reasoned that citizens have an expectation of privacy in their long-term movements because a reasonable person would not anticipate being monitored for extended periods of time.

As technology continues to evolve, the techniques used by law enforcement to monitor citizens will continue to get more and more sophisticated and advanced.  This opinion sends the message that there is a line that law enforcement may not cross.  New issues will certainly arise in the future based on more advanced technology (e.g., the use of a cell phone GPS system to monitor the movements of a suspect without a warrant); however, for the time being, this is a significant victory.  Anyone charged with a crime in New Jersey should contact New Jersey criminal defense lawyer Nace Naumoski for representation.

A former employee of a Parsippany, NJ mortgage lender pled guilty today in Newark federal court to one count of wire fraud in connection with his participation in a mortgage fraud scheme which purportedly netted him $138,402 in proceeds.  Jorge Abbud of Dover, NJ admitted that he targeted homeowners who had equity in their homes, but were facing foreclosure because they were unable to make regular mortgage payments.  Abbud faces up to a maximum of 20 years in federal prison as a result of the guilty plea.

Abbud purportedly told the homeowners to permit the titles to their homes to be recorded in the names of third-party purchasers, known as “straw buyers,” for a period of one to three years in order to avoid foreclosure while he worked on improving their credit scores and obtaining mortgages with more favorable interest rates on their behalf.  Abbud then recruited the straw buyers, whom he told that they were helping the homeowners keep their homes.  Abbud also reportedly caused the straw buyers to misrepresent their incomes on mortgage applications to purchase the homes.

18 U.S.C. Section 1343 makes it a federal crime for anyone to transmit by means of the wires, any communication in interstate or foreign commerce as part of a scheme to defraud.  Anyone convicted of wire fraud, which by its very terms covers a broad range of conduct, faces up to 20 years in prison and a fine of the greater of $250,000 or twice the gross amount of any pecuniary gain or loss resulting from the offense.  This case is the result of a recent crackdown on mortgage fraud by President Obama’s Financial Fraud Enforcement Task Force, whose stated goal is to “wage an aggressive, coordinated, and proactive effort to investigate and prosecute financial crimes.”

Anyone charged with mortgage fraud or any other financial crime in New Jersey should contact New Jersey criminal defense lawyer Nace Naumoski for representation.

Investigators from the Office of the Attorney General and the Lyndhurst Police Department conducted an undercover operation to ensnare unregistered home improvement contractors.  As part of the operation, investigators posed as the owners of a home that suffered flood damage after Hurricane Irene.  Investigators responded to advertisements for home improvement services and invited contractors to the house to provide an estimate.  Contractors who responded who were not registered with the State were subsequently charged with fourth degree crimes.  If convicted, the contractors face up to 18 months in state prison.

Under N.J.S. 56:8-136, commonly known as the Contractors’ Registration Act, any contractor in New Jersey who advertises their services publicly must register annually with the State.  As part of the registration, the contractor must show that they maintain an office in New Jersey with an actual street address, and must show proof of liability insurance of at least $500,000.  The act further provides that any person who knowingly violates the act is guilty of a fourth degree crime.

As a result of the sting, fourth degree criminal charges were filed by the Bergen County Prosecutor’s Office against eight different contractors from various towns around New Jersey, including Sparta, Kearny, Hackensack, Hasbrouck Heights, North Arlington, Cranford, Wayne, and Annandale.   The State claims that some of these contractors came to the home to provide estimates without even bringing a tape measure.  However, there is no indication of whether a tape measure is necessary to provide an estimate.  In fact, many experienced contractors can tell the rough size of a room without the use of a tape measure.

One thing that should be noted, which has not been noted by law enforcement authorities, is that there is not necessarily any correlation between whether a contractor is registered with the State and whether that contractor provided an honest bid for the job and provides honest services.  The fact that the Contractors’ Registration Act makes it an indictable crime for a contractor to fail to register with the State is proof of nothing more than the over-criminalization of our society.   So, there are potentially honest contractors, who do honest work and provide honest bids, now facing criminal charges for the mere act of not registering.

Anyone charged with a crime in New Jersey should contact New Jersey criminal defense lawyer Nace Naumoski for representation.

According to law enforcement sources, a Millburn, NJ man, William C. Martucci, was arrested today and charged with second degree Theft by Deception and second degree Financial Facilitation for allegedly participating in a stock fraud scheme. Prosecutors are alleging that Martucci induced a California man to invest $100,000 in stock that did not exist, and secretly diverted the money to his own use. Martucci then purportedly issued fake stock certificates from a company in which he held no position in order to cover up the alleged scheme. If convicted, Martucci faces up to twenty years in prison.

Under New Jersey’s Theft by Deception statute, N.J.S. 2C:20-4, “a person is guilty of theft if he purposely obtains property of another by deception. A person deceives if he purposely: a. Creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind…; b. Prevents another from acquiring information which would affect his judgment of a transaction; or c. fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.” Theft is a second degree crime if the amount involved in the theft is $75,000 or more.

New Jersey’s Financial Facilitation statute, N.J.S. 2C:21-25 provides that “a person is guilty of a crime if the person: a. transports or possesses property known or which a reasonable person would believe to be derived from criminal activity; or b. engages in a transaction involving property known or which a reasonable person would believe to be derived from criminal activity (1) with the intent to facilitate or promote the criminal activity; or (2) knowing that the transaction is designed in whole or in part: (a) to conceal or disguise the nature, location, source, ownership or control of the property derived from criminal activity; or (b) to avoid a transaction reporting requirement under the laws of this State or any other state or of the United States; or c. directs, organizes, finances, plans, manages, supervises, or controls the transportation of or transactions in property known or which a reasonable person would believe to be derived from criminal activity.” If the amount of money involved in the criminal activity is at least $75,000 but less than $500,000, financial facilitation is a second degree crime.  Second degree crimes carry a punishment of between five and ten years in prison.

Anyone charged with theft by deception, financial facilitation, money laundering, or any other serious financial crime in New Jersey should contact New Jersey criminal defense lawyer Nace Naumoski for representation.

Recently, in the case of State v. Bernokeits, the Appellate Division held that police officers need only reasonable suspicion, and not probable cause, in order to perform standard, roadside field sobriety testing on a driver suspected of driving under the influence. This means that police officers have a much lower burden when asking drivers to perform standard field sobriety tests than what is usually required for arrests and searches. Reasonable suspicion is described as “a particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity.”

In Bernokeits, the driver was pulled over for “equipment violations.” Upon talking to the driver, the police officer stated that he detected an odor of alcohol. The officer then asked the driver if he had been drinking, the driver admitted to having a beer at a local bar. The officer, who apparently had a super-human sense of smell, testified that the alcohol he smelled had an odor more like hard liquor than beer. He then asked the driver to exit the vehicle and perform field sobriety tests. After attempting the tests, the driver was arrested and charged with driving while intoxicated in violation of N.J.S. 39:4-50.

At trial, defendant moved to suppress the field sobriety tests arguing that the officer did not have probable cause to perform the tests. The municipal court judge stated that the circumstances constituted a reasonable and articulable suspicion of DUI, which justified the officer conducting a further investigation by asking the defendant to perform the field sobriety tests.

Law enforcement officers are permitted to stop a vehicle for any violation of the traffic laws. Once they stop the vehicle, asking the driver to step out of the vehicle while presenting his credentials has been described as “de minimis.” However, the additional intrusion of asking a driver to perform roadside sobriety tests is a “seizure,” and implicates the Fourth Amendment protection against unlawful searches and seizures. Under the “Terry doctrine,” first proclaimed by the United States Supreme Court in Terry v. Ohio, brief investigatory stops short of arrest are permitted where police officers have a reasonable suspicion of ongoing criminal activity.

According to the Appellate Division in this case, asking a driver to perform field sobriety tests is more akin to a brief investigatory stop (where only reasonable suspicion is required), than an arrest, for which probable cause is required. The Court acknowledged that there is no “bright line” test to determine when an investigative stop becomes an arrest, courts look at several factors, including the temporal duration of the stop, the degree of fear and humiliation that the police conduct engenders, whether the defendant was transported to another location, and whether the defendant was handcuffed. Since, according to the Court, field sobriety tests do not last very long, do not require transporting the person, do not require handcuffing the person, they are more akin to an investigatory stop than an arrest.

While the Court also noted that the “fear and humiliation’ from roadside sobriety tests is minimal when compared to the law enforcement interest in ensuring public safety, many of my clients would disagree. Anyone charged with a DWI or any other offense in New Jersey should contact New Jersey criminal defense lawyer Nace Naumoski for representation.

Elizabeth Mayor Chris Bollwage has stated in a press conference that he believes the 7-alarm fire that has been burning for more than 24 hours at a warehouse on Newark Avenue in Elizabeth was likely arson.  Fire crews first began trying to put out the fire using water and foam over a day ago; however, after these attempts were unsuccessful, local fire department and county officials decided to let the fire burn out.  More than 250 fire fighters from 35 companies have worked on putting out the fire.  If the fire is conclusively ruled an arson and suspects are located, they would be facing very serious criminal charges.

The big concern with letting the fire burn out is the potential for toxic fumes to make their way into the air.  Health officials, who have been monitoring the air quality, state that there is no immediate hazard; however, that could change in the future if there are hazardous materials inside the building.  If criminal charges are filed in this case, the release of hazardous materials could play a role in the criminal case and could serve to increase the charges against any suspects.

Under N.J.S. 2C:17-1(a), “a person is guilty of aggravated arson, a crime of the second degree, if he starts a fire or causes an explosion, whether on his own property or another’s:(1) Thereby purposely or knowingly placing another person in danger of death or bodily injury; or (2) With the purpose of destroying a building or structure of another; or (3) With the purpose of collecting insurance for the destruction or damage to such property under circumstances which recklessly place any other person in danger of death or bodily injury; or (4) With the purpose of destroying or damaging a structure in order to exempt the structure, completely or partially, from the provisions of any State, county or local zoning, planning or building law, regulation, ordinance or enactment under circumstances which recklessly place any other person in danger of death or bodily injury; or (5) With the purpose of destroying or damaging any forest.”  If the fire is not caused purposely or knowingly, but is caused recklessly, arson becomes a third-degree crime.

Anyone convicted of arson in New Jersey faces significant prison time.  A second-degree aggravated arson carries a prison term of up to 10 years, 85% of which must be served before the person is eligible for parole.  Therefore, anyone charged with arson, or any other serious crime in New Jersey, should contact New Jersey criminal defense lawyer Nace Naumoski for representation.

The Wall Street Journal recently reported in a cover story on the swelling ranks of federal law enforcement, that “[f]or years, the public face of federal law enforcement has been the Federal Bureau of Investigation.  Today, for many people, the knock on the door is increasingly likely to come from a dizzying array of other police forces tucked away inside lesser-known crime-fighting agencies.”  An excellent example of this is a recent criminal complaint filed in Newark federal court by the National Oceanic and Atmospheric Administration (“NOAA”) charging D.C. Air & Seafood, Inc., a seafood company located in Maine, and five individuals with a conspiracy to falsify records and obstruct justice in connection with the alleged overharvesting of Atlantic Sea Scallops off the coast of New Jersey.  The individuals charged in the criminal complaint, owner Christopher Byers, and fishermen George Bamford, Robert Hersey, Daniel Mahoney, and Michael McKenna face up to twenty years in prison if convicted.

In the Complaint, special agents of the NOAA allege that from March 2007 through March 2008, the Company and the individuals conspired with each other and others to knowingly making and submitting false Fishing Vessel Trip Reports in order to conceal a conspiracy to overharvest Atlantic Sea Scallops in violation of federal criminal law.  According to the complaint, D.C. Air was issued a permit authorizing it to purchase scallops from federally permitted vessels for 2007 and 2008.  Several fishing vessels were also issued permits to fish for scallops in the “Elephant Trunk Access Area,” a large sea scallop fishing ground off the mid-Atlantic coast.  Under NOAA regulations, the vessels are not permitted to harvest more than 400 pounds of sea scallops during the permitted fishing period.  The government is essentially alleging that vessels operated by the fishermen harvested more than the 400 pound limit.  The defendants are also accused of falsifying Fishing Vessel Trip Reports, which are required to be submitted under NOAA regulations, in order to conceal the fact that they had harvested more than the 400 pound scallop limit.  The scallops were allegedly off-loaded in Atlantic City.

Federal authorities are alleging a violation of 16 U.S.C. § 3372(d), which provides that “it is unlawful for any person to make or submit any false record, account, or label for, or any false identification of, any fish, wildlife, or plant which has been, or is intended to be (1) imported, exported, transported, sold, purchased, or received from any foreign country; or (2) transported in interstate or foreign commerce.”  This statute carries a punishment of up to five years imprisonment.  The defendants are also charged under 18 U.S.C. § 1519, which provides that: “whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States…shall be fined under this title, imprisoned not more than 20 years, or both.”

According to the Wall Street Journal article, a 2011 report issued by the inspector general for the Commerce Department focused on complaints against the NOAA, which is known for its weather reports, that enforcement agents were often heavy-handed against fishermen.  Other federal agencies have also come under attack for their criminal enforcement tactics.  In fact, there have even been cases where leaders within agencies have not been able to agree on the meaning of certain regulations that carry criminal penalties.  In an over-regulated society such as the one we live in, it is almost inevitable that companies or individuals operating in certain highly regulated industries can face criminal charges for a violation of rules and regulations.  As this case illustrates, sometimes those charges carry very serious punishments, including imprisonment.  Therefore, anyone under the scrutiny of any federal agency in New Jersey should contact a New Jersey criminal defense lawyer for guidance and representation.

Miguel Alvarez of Perth Amboy was acquitted today on aggravated manslaughter, reckless manslaughter, possession of a weapon for an unlawful purpose, and unlawful possession of a weapon charges stemming from the stabbing of another Perth Amboy man during a fight in August 2007.  Last year Alvarez was found not guilty of murder for the same incident; however, the jury was hung on the remaining charges.  Alvarez was tried again on the remaining charges and was finally vindicated today by a second jury.

Prosecutors argued that Alvarez walked up behind the alleged victim during a fight and stabbed him in the side while the alleged victim was fighting someone else.  However, Alvarez testified in his own defense that he was defending himself against a gang that had been threatening him.  According to Alvarez, he was jumped by the gang on the night of August 26, 2007 when he came out of a restaurant with several friends.

If Alvarez had been convicted of aggravated manslaughter, the most serious charge he was facing, he would have faced up 30 years in state prison.  However, the State has the burden of proving every element of the offenses charged beyond a reasonable doubt, and in this case, the prosecutors could not convince a Middlesex County jury that they had met that burden.

Recently, a scathing indictment of prisons in the United States appeared in Trial magazine.  To any criminal defense lawyer in the United States who visits jails and prisons with regularity, the issues raised in the article ring all too true.  Overcrowding, abuse of prisoners, dilapidated facilities, inadequate medical and mental health care, and disregard for safety are just some of the major issues in our nation’s prisons.  These are huge concerns in a country that imprisons more people per capita than any other country in the world.

The incarceration rate in the United States is not only the highest in the world, but also several times higher than the rate of incarceration in our “peer nations.”  For example, we have 6 times as many prisoners per capita as Canada, and 12 times as many as Japan.  The article points to one interesting cause of the high rate of imprisonment where New Jersey is a leader.  According to the article, “[e]very horrible crime sparks a new, more punitive sentencing regime.”  New Jersey is the birthplace of “Megan’s Law” (sex offender registration law named after Megan Kanka of Hamilton Township), “Tyler’s Law” (anti-bullying law named after Rutgers student Tyler Clementi), “Kyleigh’s Law” (motor vehicle law named after Kyleigh D’Alessio of Washington Township), and now “Caylee’s Law” (law named after Florida’s Caylee Anthony that would make it a felony not to report a missing child within 24 hours).  It seems like every time there is a horrible crime that gets media attention, legislatures blindly act on emotion and pass stricter laws with stricter prison sentences.

The article then points out that a large majority of the problems in America’s prisons  are a result of overcrowding.  “When you have overcrowding in a given facility or system, it affects everything: the laundry, the food service, medical and mental health care, and the staff’s ability to keep prisoners safe from each other.”  New Jersey criminal defense lawyers often see these issues in their daily practice.  Clients often complain to their defense lawyers that prisons do not provide them with the necessary nutrition needed to have a healthy diet and to avoid sickness, and that they live in overcrowded conditions where maintaining normal hygiene becomes very difficult.

Finally, the article discusses perhaps the biggest problem in America’s prisons: lack of medical and mental health care.  Many people who end up in prison suffer from some form of mental illness.  However, since our prisons lack good mental health care facilities and services, those people go untreated and wind up in prison over and over again throughout their lives.  Perhaps if better mental health treatment was provided in our prisons and if our prisons refocused their attention from punishment to rehabilitation, other problems, such as overcrowding, would be less of an issue.  It is a bitter irony that, as the leaders of the free world, our best solution for solving society’s problems is to imprison as many people as possible.

Former New Jersey Governor Jon Corzine has been subpoenaed by the House Agriculture Committee and the Senate Agriculture Committee to testify at their respective hearings this week and next week regarding his role in the collapse of MF Global.  Corzine resigned early last month after MF Global filed for bankruptcy protection.  Congress expects Corzine to testify regarding the allegation that up to a billion dollars in customer funds are missing.   However, to date, Corzine has not been charged with any crimes in connection with the investigation into MF Global’s business practices.  MF Global filed for bankruptcy after making risky investments in European sovereign debt that did not pay as expected.

The subpoenas present an interesting predicament for Corzine.  As a former Governor of New Jersey and a former Senator who is in the public eye, Corzine would likely want to testify and explain his conduct so as not to raise public suspicions that he did anything illegal.  However, if he chooses to testify before Congress, he faces two potentially serious traps.  First, he faces the high probability that things he says during his testimony would incriminate him and would lead to the filing of criminal charges against him and other company officials.  Second, he faces that possibility that he misstates something, which could potentially lead to perjury or obstruction of justice charges.

Under the Fifth Amendment of the United States Constitution, citizens cannot be forced to testify before a tribunal under oath if that testimony would tend to incriminate them.  However, while citizens have the right to remain silent, if they choose to ignore that right and to testify, they cannot provide false testimony.  While “taking the fifth” may provide for bad publicity for Corzine, he would be wise to exercise his privilege against self-incrimination and to refuse to testify before Congress.  There are countless stories of high-powered executives, attorneys, business people, media moguls, sports stars and others who found themselves charged or convicted of crimes because they ignored their right to remain silent and thought they could outsmart law enforcement.   As the saying goes, “when in a pickle, take the nickel.”