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From witness to suspect June 24, 2009

Posted by jefhenningeresq in My Cases.
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I’ve been working hard on one of my latest white collar crime cases and I thought I’d share a conversation I had with a law enforcement official.  I can’t get too much into the details of the case, but my client isn’t charged with anything at all.  However, law enforcement is performing an investigation and my client is part of it one way or another. 

Like usual, I did some great work right away and I actually knew more than this detective than what was going on; at least in one aspect of the case.  She wanted to speak with my client and she assured me that he was just being looked at as a witness.  However, after further questioning, she did admit that my client could go from a witness to a suspect depending on what he said.

So I’m suppose to sit there and let him talk while I hope for the best?  I of course questioned her even further.  I learned that there was no prosecutor on the case yet.  Thus, she can’t promise me a damn thing.  What if she thinks that my client is just a witness but then this unknown prosecutor thinks otherwise?  I then asked, if my client is just a  witness, why not draw up an immunity agreement?  Of course, there was no real response to that one.

In the end, the prep work that I had already done on  the case took the focus off of my guy for now.  We’ll see how it pans out.

This is why you should have an attorney that knows what he or she is doing.  The fact that she expected me to just walk my client in there and have him dig a huge hole for himself tells me that most attorneys just go with it, otherwise she wouldn’t ask.  Of course, you also can’t have an attorney that tells the cop to take a hike.  After all, you can do that on your own right?  Instead, a plan needs to be developed and executed to protect you and your family.  That is what I do for my clients.

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Mortgage insurance companies use private investigators to kick-off prosecutions June 13, 2009

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Most people realize that they are in hot water when the police call.  However, the same cannot be said when an investigator for a company calls to ask some questions.  What these people fail to realize is that every move they make going forward could very well determine whether they will spend some time behind bars even though the police know nothing about them at that moment.

As I have discussed before, most insurance fraud prosecutions start off with investigations from insurance companies and not law enforcement.  In fact, some insurance companies employ dozens of full-time investigators.  If you read some of the press releases from New Jersey’s Insurance Fraud Prosecutor, you will see that the insurance company that initiated the investigation is usually mentioned. 

Some mortgage companies are knee-deep in foreclosures and other problems due to the meltdown of the real estate market to bother you these days.  However, other companies are doing what it takes to stay alive, especially companies that provide private mortgage insurance or PMI. If fraud is suspected, the company will have an investigator attempt to put all of the pieces together.  That means that he is going to call you and ask you some questions.

Since this investigator is not a cop, anything you say to him will be used against you and there is virtually no way to keep these statements out of court.  But ignoring him won’t really help you since they could pull your PMI due to your failure to cooperate. 

The way to handle any investigation into your actions whether it be from an FBI agent, an investigator for a mortgage company or even an issue with your employer is to call an attorney before doing anything.  You need an attorney that knows how to develop a plan to move the situation forward without putting yourself at risk for prosecution. 

When clients first call me, they often ask what I will do with their case.  I tell them that there is no one way to handle every case.  In fact, my response to these cases is often unique to each case.  However, the results that can be obtained when a client hires me early on are quite often much better than they are when clients wait until their world is about to come crashing down on them.  In fact, a large number of clients that call me early enough can often avoid charges all together.  As a result, the costs to them are much lower.  Look at it this way, it is much easier and cheaper to prevent toothpaste from coming out of the tube then trying to put everything back into an empty one.

Bottom line, if you think a mortgage company or any other company, employer or law enforcement agency suspects you for fraud or any other crime, call a good attorney right away.  If it is in New Jersey, call me anytime.

A good defense requires money, a good attorney and a plan June 11, 2009

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I know this seems just like my last post, but I think it is important to really lay this out so that others can avoid similar mistakes. 

This guy that came in my office today is accused of various Federal crimes.  He was contacted by the FBI just about a week ago.  In that time, he hired an attorney who is not a member of NACDL which really makes me question whether or not this attorney knows what he is doing.   This attorney also only charges him $5000.  Well for $5000, it seems like this guy got his hand held while he confessed.  Yeah, that’s right, not even a proffer, a confession!  So, now he is looking at prison time and wants a second opinion.  My answer to him was that he got sold out which is what $5000 for major Federal charges buys you.

So what would I do different?  Just about everything.  If my client is  saying anything, it would not be for a few months.  I want to research all of the issues of the case and try to size up the case.  I even want to do some investigation if I can. 

His position was that he was guilty due to the paper trail in the case.  I told him that the paper trail actually helps him.  If no witnesses can actually link him to anything, then that is one possible defense right there.  You also have the issue of intent or mistake.  Without seeing any discovery, it just sounded like he had some issues.  I also pointed out that the reason they wanted him to confess was because they have problems (small or large) with their case.  Otherwise, taking a statement is a waste of time really.

This attorney also told him that he will be going to prison.  Well yes, that’s the case if no one fights for him.  We’ve had some cases where the guidelines called for prison (zone d) and yet, the client still stayed out of prison.  So, never say never.

Thus, if you are facing charges or inquiry from law enforcement, find a good attorney that is not going to take a small fee just to hold your hand.  Also make sure that the attorney knows what he or she is doing and ask if they are a member of NACDL.  Finally, find out if they have a plan, even if it is a general idea of how they are going to fight for you!

A Federal criminal investigation is like open-heart surgery June 9, 2009

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If you read my entire blog from back to front, I must seem like a broken record.  I feel the need to repeat myself because I keep seeing people that just don’t get it.  If any law enforcement agency is coming after you, it is serious business.  However, if the Federal government is looking at you, it is incredibly serious business.  If you get charged, there is a great chance you will be convicted.  If you are suspected of a white collar crime, it is likely that you come from a middle-class or better background.  Thus, if convicted, you stand to lose everything.

As a result, I view some cases like emergency open-heart surgery.  Your life is on the line and I have to do everything in my power to keep the patient alive.  In addition, if you were facing such a surgery, you would do anything and everything to stay alive.  However, some people just don’t get this.  They tell me that they don’t have the money for a big, aggressive defense.  But of course, they have credit cards, a house with equity, nice cars and various other possessions that can be sold.   Of course, they won’t find this money because they don’t view the case as that serious.  Instead, it seems like some clients convince themselves that everything will be ok. 

Problem is, once things go south, it is tough to put the toothpaste back in the tube.  At some point, probably when they are sitting in prison, they think about all of their belongings and how useless they are now that their life is ruined.  I can only hope that someone reads my blog before they make the wrong choice and so they hire a good attorney that actually has a plan.  It may cost a lot of money and you may have to  change your lifestyle, but you cannot put a price on freedom and liberty.

Examination Under Oath: How the Insurance Company Will Set You Up June 7, 2009

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An insurance fraud charge usually starts well before the police get involved.  As I’ve said before, insurance companies employ large teams of investigators, lawyers and others who do nothing else but insurance fraud investigation.  Once they have enough evidence to deny the claim or get money back, they call the police and hand them a case tied up in a bow and ready to prosecute.

If you submit an insurance claim and the company suspects fraud, they will likely send you a letter for an “Examination Under Oath” or EUO.  An Examination Under Oath is basically a deposition, but since there is no actual case, they call it an Examination Under Oath.  An attorney will question you under oath about every last detail of your claim and everything you say will be taken down by a court reporter.

Thus, if you try to change your mind later on, the prosecutor on the case will hammer you as you gave a very detailed statement under oath.  So, your credibility will be shot regardless of whether you were mistaken or lying.  Regardless, your statement made during the Examination Under Oath will be used against you.   The worst part is that you can’t challenge the statement as you were not questioned by the police.

So, what to do if you get a letter requesting a Examination Under Oath?  Call an attorney and make sure that the attorney knows that he or she is doing when it comes to insurance fraud.  As I practice in every court in New Jersey, I would be more than happy to help you if you get a request for an Examination Under Oath.  The best part about getting an attorney for an Examination Under Oath is that it is rarely expensive and if you are never charged with insurance fraud, you will be saving many thousands of dollars in addition to the damage such a charge would do to your reputation.

Outside of New Jersey?

My consulting practice is available nationwide.  Hiring a litigation consultant to help defend you is a cost-effective way of getting a tough lawyer on your side.  Call me anytime to discuss your case.

When the FBI knocks, call an attorney June 3, 2009

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Dealing with a smart client is like a breath of fresh air.  I just had a client on a major case hire me before saying or doing anything when the FBI came calling.  As a result, all options are on the table.  The client indicated that he had spoke to some other attorneys that had no plan, that he was screwed and that he should ask the FBI what they want.

What do you think they want?  To hang out?  To take a survey about your neighborhood?  No, they are looking to nail you to the wall.  Anything you say to them will help them and I mean anything. 

Of course, you can’t  win every single case like in the Devil’s advocate and when no charges are even filed yet, it is virtually impossible to tell a client that there is a 100% chance of any outcome.  I’ve seen some of the worst looking cases go nowhere for any number of reasons.  You are not convicted until you are convicted so until that happens, there is always a chance of winning the case or otherwise avoiding absolute disaster.

The other important aspect of a white collar crime case and one of the main reasons why the client hired me over the other attorneys that had spoken with or planned to meet with was that I had a plan.  There is too much “passive representation” or “reactive representation” which is when the attorney just waits for something to happen. 

I often say that I provide “aggressive representation” and that is just not a fancy tagline, especially in a white collar crime case. In these cases, there is a ton of work to do before a complaint is even filed.  Since there is so much work to do, I may charge a little more than another attorney would but my client today realized that his life is on the line and this is an emergency that needs to be dealt with right away.

There is no one way to handle every case, so I don’t have a cookie cutter plan that I put in place.  Instead, I create a plan with the client and the rest of my office.  My office has a proven track record of handling these cases so we are not working  just to keep busy.  We take the action necessary to fight for the client.  The other thing that the client liked is that my entire office works as a team on his case.  So he has three attorneys with over 40 years combined experience in addition to our entire support staff working together on the case.

This is going to be a major case so it’ll be interesting to see how it develops and how my strategy works in this case.  I’ll post updates as I can but I will be limited in what I can disclose.

Ex-politician avoids serious prison term in computer crime case May 21, 2009

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This was a rather high profile case that I just finished up last week.  Due  to my client’s position as a politician at the time of his arrest, this incident was featured in a ton of news articles.  However, I was able to keep the sentencing out of the news for the most part so I’m going to be vague on the details.  Other than a brief mention on television, there was nothing in print. 

Basically, my client was charged with very serious offenses that could have landed him in prison if convicted.  He confessed before he hired me and the evidence against him was strong.  I worked the case out with prosecutor for a plea to lesser charges with probation and 364 days of county jail time.  I’ve had these cases before and I have been able to get that 364 down to zero but it isn’t easy to do that.

I filed a sentencing brief that the prosecutor viewed as so impressive, that he agreed to slash his recommendation in half.  So,  the new recommendation to the court was 180 days in jail and not 364.  This is the first time I have seen the State do this.  Of course, I still pushed for zero days.

However, when I got to court, the whole game changed.  This judge does not like these cases and there was another defendant with the very same charges. His attorney also asked for no jail time but the judge ripped him up pretty good.  I the end, he got the full 364.  The prosecutor told me that he knows this judge and he rarely departs from the 364 when these deals are made.

Great huh?  Looked like my guy was getting the 364 and not even the 180 that the State was recommending now.  I spent about a half hour arguing with the judge, focusing him on my client and his situation, his service to the community and the circumstances of the case.  The judge thanked me for my zealous advocacy of my client  which was important because he did not thank the previous attorney. 

In the end, the judge gave my guy 120 days in jail.  Would I have liked nothing?  Of course!  However, I can’t see how I could have done anything else with this case.  Of the 120, my guy will probably do about half of that.  Even better, the judge granted my application to delay his entry to jail so that he can get his life together.  The last guy went right out in cuffs.

While my client was happy, especially after seeing what happened to the last guy, I had a prospective client that was sitting in the audience watching me as well.  She was so impressed with me that she fired her previous attorney and has since hired me.  Thus, I had a good day in court.

Former county employee avoids lengthy prison sentence May 7, 2009

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Another client that found me from this blog.  Great guy that made some mistakes.  The only bad part was that he hired me rather late, but it was just in time for me to help him avoid a really bad situation.  He was charged with official misconduct for taking money that customers paid for applications that he was in charge of.  Although the case made the paper as a huge story initially, I was able to keep the story off the front page at the end.  Thus, I won’t get into the facts.

He hired me late because he had reached a plea deal but he did not feel that his attorney was really helping him.  Thus, he hired me to file a motion to take back his plea.  Be careful what you wish for.  I showed up to court on the day of his sentencing having just been hired a week prior asking to come into the case and file the motion to take back his plea.  However, before the court would hear that request, the court threw a monkey wrench into the case that no one expected.

In New Jersey, the crime of official misconduct carries a mandatory two year parole stip for a third degree and a three year stip for a second degree if the offense touches upon the defendant’s position.  A “stip” as we call it, means that the defendant will have to do that amount of time, in this case two years, before parole can even consider letting him out of prison.  Under a flat sentence, parole can let the person out whenever they want to which is usually much less than the stip.

In this case, the State filed a motion to ask the court to waive the two year parole stip and give my client a “three flat”.  However, as part of this motion, the State has to show substantial cooperation.  Although there is no law on this issue, the Court held that this applied to co-defendants and since there were none in this case, there was no cooperation regardless of how much the client helped the State.  Thus, the motion was denied and the plea was thrown out!

So, this guy hires me to do better than a three flat and as soon as I start the case, everything blows up and now he is looking at a much worse sentence.  Not only will this keep in prison about 15 months longer at least, but he will be in a much worse prison.  Worst yet, if he didn’t take that deal in the next few weeks, the offer would have gone up to a 5 with a 3 year stip as he would be indicted for second degree official misconduct.  Great huh?

I never give up and I couldn’t let this happen so I spent over a week trying to think of a way out of all of this.  I came up with a number of solutions and presented them to the prosecutor.  Luckily, he was a real professional guy and was willing to go to bat for me.  See, one of the biggest problems with this case is that it was big news and very political due to my client’s position and the entity that he worked for.  However, the prosecutor agreed to dismiss the official misconduct charge in exchange for a plea to third degree theft.  Thus, we don’t have to worry about any stip here.

Now, instead of years, my client will probably only do a few months.  While I would have liked to keep him out of prison, he was caught red-handed, he confessed and he had a record for other financial crimes.  Thus, under all of the circumstances, a flat sentence was a miracle.  Its funny how some things just seem to happen for a reason.  Needless to say, his whole family is so happy that they found me in the nick of time!

Almost forgot, because he was sentenced on the same day of the new plea, the media had no idea this would go down so the new plea and sentence  wasn’t a big news story in the local area.  Due to the political nature of the situation, it could have been much bigger news if the media was there.

Mortgage fraud is heating up, time to lawyer up now April 14, 2009

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Just in the last few months, I’ve noticed an increase in mortgage fraud cases and investigations.  Some of these cases are older and some may be simply sloppy business practices, not actual crime.  However, I believe the powers that be (i.e.  politicians) have sent down word that the public wants these people to burn.  Thus, the focus has gone from the mafia to terrorism to mortgage fraud.

Anyone who in any way connected to the mortgage industry and has received a subpoena, a civil suit, a request to give a statement by law enforcement or any other sign of possible criminal activity is strongly urged to speak to an attorney as soon as possible.  If the attorney tells you that there is nothing you can do until you are charged, you may want to see someone else.

My fear is that anything that is slightly off will be looked at as criminal activity thus ensnaring a lot of innocent people.   Most of these people may call an attorney after it is too late.

Call the police at the first sign of trouble, or else! March 17, 2009

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As an attorney, I have to wear many hats.  One of those hats is psychology professor.  I am always trying to figure out why people do one thing or the other.  I spend a lot of time trying to understand why people speak to the police without an attorney especially in white collar crime situations.  In a “street crime” situation, there is often only one interview/interrogation and it may be sudden.  Thus, the target may not have enough time to decide if they should call an attorney first.  I totally understand that situation.

What I have a problem understanding is the drawn out, white collar crime investigation.  For some people, it just never dawns on them to call an attorney to help them.  They may have weeks or even many months before the rug is finally pulled out from under them and thus, plenty of time to get an attorney or even just speak with one. Yet, they still just wing it and think that they are in control and can handle it by themselves.

My thoughts on all this come from a new case I have.  I was just amazed at all of the contact between the police and my client and the length of time that this all went on for.  I don’t want to get into all of the details, but trust me when I say that my client made the case much, much worse by dealing with the police and I don’t just say that because my client made a statement.  My client is actually charged with fabricating evidence in attempt to avoid prosecution.  What’s worse is if my client would have called me at the first sign of trouble, or any time before the client allegedly fabricated evidence for that matter, the case would have been rather easy to handle and there would not have been any criminal charges. 

Here is a good example, although not involving white collar crime.  Client A is charged with sexually touching his teenage step-daughter.  Client B is charged with raping a young child.  Client A made was called by the police and agreed to make a statement.  Client B called my office at the first sign of trouble.  We met with officials and he denied any involvement but was not subject to intense questioning.  Client A was arrested and his family hire me afterwards.  Client B was never charged and the investigation was closed.  While I was able to keep Client A out of prison (even though this was almost impossible to do) he had to pay my office about 6 or more times what Client B paid me.  So, if nothing else, it pays to hire an attorney first. 

Another quick example.  Client C is arrested for $3000 of credit card fraud.  While he made a statement after arrest, he would have had an amazing defense without the statement.  Client D is accused of $150,000 in credit card fraud.  He hires me before turning himself in and I am able to get the charges torn up before he turns himself in and I work out a great settlement with the credit card companies that is interest free.  Once again, Client D pays me much less than Client C. 

Bottom line, call an attorney ASAP if you even think you could be suspected of any criminal activity.