The Henry Law Firm PLLC is committed to excellence and providing aggressive, impactful legal representation to people in New York City, New York State and around the country. Our NYC federal criminal defense lawyers have a depth of experience in federal criminal and white collar criminal defense cases that is unmatched by other boutique criminal defense litigation firms. Our attorneys draw from over a decade of experience handling every type of federal criminal case in trial and appellate courts from North Carolina to Hawaii. Our lawyer’s ability to leverage those years of experience, advanced litigation technology and innovative defense strategies allows us to deliver outstanding representation and results. That is why we implemented a four-point philosophy that helps us achieve great results for our clients. Our commitment to defending individuals and institutions is unwavering.
If you have been contacted by a federal law enforcement agent, received a target letter notifying you of an investigation or have already been arrested, we are available to assist you at any time. Our firm prides itself on client engagement through multiple avenues of communication. In the most critical time of your life, contacting experienced legal counsel is the most important thing you can do. At The Henry Law PLLC we know that time is of the essence.
Results-Driven Trial Lawyers
Not every case goes to trial, but at the heart of every great defense is the ability of an attorney to put the pressure on the government at trial. Our attorneys have tried federal criminal cases to verdict in multiple districts around the country. While we recognize that trial is not always the right move, our finely tuned ability to prepare and execute a winning trial strategy gives us the upper hand when negotiating outcomes. That is why we attack every case using an aggressive, trial-ready strategy designed to achieve results. And, when the cards are on the table we will bring our significant trial experience to bear.
Appellate and Administrative Enforcement Representation
Inevitably, many federal and white collar cases have associated administrative enforcement, appellate or forfeiture components. We have significant experience defending against investigations and enforcement actions by the Securities and Exchange Commission (SEC), Financial Regulatory Authority (FINRA), Commodity Futures Trading Commission (CFTC), Internal Revenue Service (IRS) and other administrative bodies. Our attorneys have successfully argued appeals in the United States Supreme Court and other federal appellate courts around the country. We have also successfully recovered hundreds of thousands of dollars for clients in civil forfeiture actions by state and local law enforcement agencies.
We strive to make every client feel that they are receiving a personal commitment and attention from our entire team. We accept new engagements in a way that ensures that our institutional and individual clients are provided the responsiveness, service and results consistent with the highest standards of excellence. in this way, we are able to focus our attention and resources on our select clientele to deliver serious legal firepower.
Our firm focuses on federal crimes and white collar violations specifically. We spend every hour of our day researching, writing, reading and talking about federal and white collar crime. We have thousands of hours of training in the intricacies of federal crimes and financial crimes. We do not pretend to be a full-service criminal defense firm. Ours is a firm solely dedicated to the most aggressive, well-informed defense for individuals and corporations facing criminal or civil penalties in federal courts. Our laser-focused approach to these narrow subsets of criminal defense provide our clients with the assurance that their case is being handled by a seasoned attorney who has devoted years of their career to defending these kinds of cases. The difference is our knowledge of the rules, regulations and procedures that make this area of the law so complex. Our clients can rest assured that we are up to date on the most recent updates and changes in the law. The results speak for themselves.
The Go-To Firm for White Collar and Federal Criminal Defense
Our attorneys have been recognized for excellence in white collar criminal defense and federal criminal defense by multiple legal publications, organizations and their peers. Our attorneys have been named SuperLawyers by Thomson Reuters, have been rated 5 out of 5 and named AV Preeminent by Martindale-Hubbell and have consistently been rated 5 out of 5 stars by former clients. That reputation has been earned over the course of hundreds of cases in federal trial and appellate courts around the nation.
No matter how serious the case, we are equipped to handle whatever comes your way. We regularly engage forensic experts, accountants, investigators, former federal agents and other specialists to assist us in our defense. Through a carefully cultivated network of trusted experts, we are able to provide you with the most informed, strategic defense possible. Having the right team of people on your side is often the difference between a good result and a great result. We have also harnessed the power of technology to provide serious litigation firepower and a unique ability for our clients to stay engaged in their representation. Using programs that increase our capability to review and dissect discovery, organize and produce substantive legal documents and present forceful, memorable courtroom presentations, we are able to set ourselves apart from other firms and the government. We have also implemented innovative client communication tools that provide clients access to their case documents, encrypted attorney direct messaging, video conferencing and interactive scheduling and calendar tools. The ability to see your case move forward in real time allows you to stay engaged and provides the attorneys with insightful feedback.
Innovative Fee Solutions
Our open-minded approach to valuing our professional services gives our clients an ability to achieve a workable fee structure while ensuring they receive quality legal representation. Our firm offers multiple payment options, and has experience obtaining 3rd-party funding if available. When everything is on the line, we offer peace of mind
Last week, ex-Perella Weinberg Partners LP banker, Sean Stewart, was convicted in the Southern District of New York with violations of the insider trading laws. The conviction comes in the wake of Newman, a case that seriously damaged the ability of the government to prove tipper-tippee insider trading, by requiring “a meaningfully close personal relationship that generates an exchange that … represents at least a potential gain of a pecuniary or similarly valuable nature,” for the tipper. U.S. v. Newman, 773 F.3d 438, 452 (2d Cir. 2014). Formerly, insider trading convictions required no such relationship, and the revelation of the holding led to multiple overturned convictions and ongoing litigation in several high profile cases. But as the Stewart case shows, the U.S. Attorney’s office is not backing away from insider trading cases, they are simply finding other ways to prosecute.
In Stewart, the government attacked the case from three angles to overcome the Newman hurdle by, 1) researching and alleging a “pecuniary gain,” 2) focusing on the close Father-Son relationship of the tipper-tippee in this case, and 3) charging under the “tender offer” standard. The tactics used by the government have overcome the first step in challenging the Newman paradigm. But, at what cost? It seems that the use of the very close familial relationship in this case explores an entirely new realm of prosecutorial discretion and legal substance. To prove insider trading, must the government now go after people who are discussing inside information within the context of a family relationship? In this case, they certainly used that as a focal point in proving a violation of the law.
In this case, unlike prior insider trading cases, heavy emphasis was put on finding and proving some pecuniary gain by Stewart. In this instance, the government was able to show that that the Father used proceeds of insider trading to pay “expenses related to Sean Stewart’s wedding,” after pouring over Stewart’s Father’s bank accounts. Even if the idea that a pecuniary gain could be derived from a Father paying for expenses for his Son’s wedding is a violation of the law seems stretched, it was enough to overcome early challenges and resulted in a conviction. It is certain that if the government continues down this path there are any number of things that could be used within a familial relationship to prove pecuniary gain.
To prove a meaningfully close personal relationship the government focused on Stewart and his Father. Clearly, a family tie here distinguishes this case from the casual relationships between tippers-tippees in Newman. By focusing on the family relationship, the government strengthened the argument that the Court should rely on the close relationship and relax the pecuniary gain standard. In this case and others, it seems to be working. In fact, the Supreme Court has accepted Cert in a case from the Ninth Circuit, U.S. v. Salman. In that case, the tipper was the brother of one tippee and the brother-in-law of the other tippee. The Court did not require proof of a pecuniary quid pro quo, but relied on the close family relationship because gifting inside information to a close family member can be seen as a pecuniary gain for the tipper.
In the last prong of the government’s attack, they proceeded in an additional count under the tender offer rule. One of the five mergers that Stewart discussed with his Father involved a tender offer. Because the tender offer was not implicated in Newman, this is really just an additional charge in the Stewart case, not a direct attack on the rule laid down in Newman. Tender offer insider trading cases do not require tipping for a personal benefit in violation of a fiduciary or similar relationship. A tender offer prosecution only requires that the tipper have material information about a potential tender offer and “know, or have reason to know, the information (i) is nonpublic; and (ii) has been acquired from the tender offeror or the issuer of securities offered to be purchased.” So, even though the impact of this count does not directly apply, it points to the government recognizing that charging additional alternative crimes is in the game plan for future prosecutions.
In essence, the government has simply focused on closer relationships where they can show a specific pecuniary gain for the tipper. The tactics, though creative, do not overcome the obstacles laid down by Newman, they simply repackage the same types of insider trading claims while limiting the scope of the people they intend to prosecute. It seems that all that has happened is the government has focused on a more narrow set of individuals who have very close relationships, all familial thus far, and left the large scale arms length insider trading cases out of the equation. The slippery slope of enforcing insider trading against a small group of closely knit individuals seems short-sighted and does not address the policy issues related to insider trading on whole; The big fish get away while the government criminalizes family and close friends in small-ish trading scenarios. Instead of using criminal resources to closely examine a Father’s bank records for evidence that he provided some wedding expenses to his Son, resources would be better spent doing a deep dive into the relationships and bank records of this individuals who really deserve prosecution and leave the SEC to enforce the rest.
Despite the misgivings of the tactics and the true impact of these prosecutions on Newman, if any, the government has set its sights on moving ahead with insider trading prosecutions despite the circumstances. Despite the great strides gained by Newman, financial professionals are still at serious risk of prosecution. Only now they face serious inquiries into their personal lives and that of their families. The stakes are high and careful attention should be paid to all insider trading issues, especially in the context of family and close friends.
The impact of United States v. Johnson and the unconstitutionality of the “residual clause” continues as the United States Sentencing Commission (“USSC”) has now officially released the Supplement to the 2015 Guidelines Manual (“Manual”) that is effective today. On the Sentencing Commission website page for the 2015 Manual it notes:
There is a Supplement to this Manual, available in PDF format below. The amended guidelines, as set forth in this document, supersede the versions set forth in the 2015 Guidelines Manual and, together with the rest of the 2015 Guidelines Manual, constitute the operative Guidelines Manual effective August 1, 2016. This supplement incorporates the amendment to §4B1.1 (Career Offender) and §4B1.2 (Definitions of Terms Used in Section 4B1.1).
In addition to the release of the Manual, the USSC has released an interactive e-learning tool.
The Supplement to the Manual only applies to cases committed after August 1, 2016, or to persons who are sentenced after August 1, 2016, if the Supplement is helpful to them. If a person committed the offense prior to August 1, 2016, or if the Supplement increases an individual’s guideline range it does not apply. It is important for people to make sure that the correct Manual is applied to their case.
The purpose of the Supplement is to address the fallout from the Johnson case. Even though the Supreme Court has accepted Cert in Beckles, which will determine whether the Johnson decision applies to Career Offender cases, the USSC has taken the preemptive step of enacting these revised provisions. The USSC summarizes the changes as:
The amendment eliminates the residual clause in the career offender guideline definition of “crime of violence.” In its place, the amendment revises the list of specific enumerated offenses that qualify as a “crime of violence.” While a few select definitions are provided, the list revised by the amendment continues to rely on long-existing case law for purposes of defining enumerated offenses. Although “burglary of a dwelling” is deleted as an enumerated offense, the amendment provides an upward departure provision in §4B1.2 to address certain cases in which the instant offense or a prior felony conviction was any burglary offense involving violence that did not otherwise qualify as a “crime of violence.”
The USSC has also revised the guideline by offering a potentially lower sentences if the predicate offenses are now classified as misdemeanors, saying:
In addition, the amendment adds a downward departure provision in §4B1.1 (Career Offender) for cases in which one or both of the defendant’s “two prior felony convictions” is based on an offense that is classified as a misdemeanor at the time of sentencing for the instant federal offense.
These are important changes that will impact many people moving forward. Make sure that you and your attorney are up to speed on these issues.
As technology progresses, so do the investigative techniques of federal and state law enforcement agencies. It is no wonder there is such a privacy debate amongst scholars, politicians, prosecutors, criminal defense attorneys and, now, large technology companies like Apple and Microsoft. People store vast amounts of information, use phones more than ever and have access to hundreds of ways to communicate with one another. But, the police continue to use the oldest method in the book, wiretaps.
The use of wiretapping has been around since there were telephones. But, in the criminal context, federal and state authorities are requesting permission to intercept telephone and text messages at a more frequent rate every year. Because of the ongoing and more prevalent use of wiretaps, the United States Courts have been keeping track of wiretap application since at least 2005. They recently published their 2015 Wiretap Report, which contains some interesting, and potentially alarming information.
In 2015 the number of federal and state wiretaps reported increased 17% from 2014. In all, 4,148 wiretaps were reported in 2015, and the majority of those (2,745) were authorized by state court judges. The remainder were authorized by federal judges. The most interesting fact is that out of the 4,148 wiretap requests submitted to either a state or federal judge not a single application was denied. The government was granted permission to listen into live telephone calls and read realtime text messages every time they asked.
The fact that the government is granted such wide latitude is interesting. Perhaps, wiretap requests are only made when sufficient evidence is available to reach probable cause. However, it seems implausible that none of the applications had a flaw. But, because it appears that the wiretap reporting is done independently by each agency, the information may be less than 100% inaccurate.
Also of note is that encryption played a part in a small number of intercepts. The Report says:
The number of state wiretaps in which encryption was encountered decreased from 22 in 2014 to 7 in 2015. In all of these wiretaps, officials were unable to decipher the plain text of the messages. Six federal wiretaps were reported as being encrypted in 2015, of which four could not be decrypted. Encryption was also reported for one federal wiretap that was conducted during a previous year, but reported to the AO for the first time in 2015. Officials were not able to decipher the plain text of the communications in that intercept.
The report notes that drug investigations are the single largest category of investigation where a wiretap is requested at 79%. That is followed by homicide and conspiracy at approximately 5% each.
On average an intercept last 30 days, however a number of intercepts have lasted for many months. The Report notes:
In 2015, for reported intercepts, installed wiretaps were in operation for an average of 43 days, 9 days above the average in 2014. The federal wiretap with the most intercepts occurred during a narcotics investigation in the District of South Carolina and resulted in the interception of 81,122 messages over 300 days, including 35,402 incriminating interceptions. The state wiretap with the most intercepts was a 120-day wiretap for a narcotics investigation in Maricopa County, Arizona, which resulted in the interception of 412,298 cell phone conversations, of which 15,566 were incriminating.
Data on individuals arrested and convicted as a result of interceptions reported as terminated are presented in Table 6. As of December 31, 2015, a total of 4,448 persons had been arrested (up 26 percent from 2014), and 590 persons had been convicted (up 7 percent from 2014). Importantly, New York, New York, had the highest number of total convictions (85) for any state jurisdiction in 2015.
Clearly, the impact of wiretaps on criminal investigations is significant. It is also a extremely expensive to do. The Report reflects:
The average cost of an intercept in 2015 was $42,216, up 7 percent from the average cost in 2014. The most expensive state wiretap was in Rockland County, New York, where costs for a 390-day narcotics wiretap resulting in 36 arrests and 18 convictions totaled $1,363,192. For federal wiretaps for which expenses were reported in 2015, the average cost was $48,892, a 9 percent increase from 2014. The most expensive federal wiretap completed during 2015 occurred in the District of Connecticut, where costs for a conspiracy investigation that included five other wiretaps totaled $884,769.
Ultimately, the Report confirms the use of wiretaps too investigate crimes from drug conspiracy to insider trading is on the rise. As law federal law enforcement increases their reliance on wiretap technology, the state courts are increasingly relying on this capability to make cases. If you are charged with or being investigated for a crime, there is a better than good chance that you may be wiretapped. As a result, you should contact an attorney to discuss the implications of a wiretap and how you can defend yourself.
As the questions surrounding the applicability of Johnson swirl, the Supreme Court granted a new case, Beckles v. United States, that will likely answer whether the residual clause is vague as it is applied to the Career Offender Guideline. This is an interesting twist because appellate courts around the country have already remanded several cases finding that the residual clause within the career offender guideline, U.S.S.G. 4B1.1 and 4B1.2, is constitutionally vague under Johnson. The decision will have widespread impact, but puts a number of cases on hold until the Court finally determines whether the application of the vagueness doctrine applies to the sentencing guidelines.
Beckles raises a number of questions. Specifically, Beckles asks the Court to decide:
(1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”); (2) whether Johnson’s constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and (3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.
Obviously, questions 1 and 2 overlap in many respects. Question 1 will definitevly sort out whether individuals sentenced as career offenders under the residual clause in the past can benefit from the Johnson holding. Questions 2 will answer the broader question of whether Johnson applies to 4B1.2 at all. Question 3 deals with the narrow question of whether mere possession of a sawed-off shotgun is a crime violence if Johnson is not applicable.
The specific difference in application of Johnson to the guidelines is that the guidelines are not laws enacted by Congress. Instead, the United States Sentencing Commission, created through an act of Congress, issues guidelines with oversight. The Armed Career Criminal Act, on the other hand, is a statute enacted by Congress directly. Thus, the question remains whether a constitutional vagueness challenge applicable to a statute in the United States Code applies equally to a guideline issued by the Sentencing Commission, which is not mandatory.
Even though the Supreme Court has accepted Cert on this issue, some Courts still believe Johnson is applicable. In fact, the District of Nebraska issued an opinion holding Johnson is retroactively applicable to a guideline case after Beckles was granted.
This is an immensely important decision for many individuals sentenced as career offenders in federal prisons around the country. It is hard to imagine the Supreme Court finding that Johnson is not applicable in this context. Hopefully, the Supreme Court clarifies the issue regarding the applicability of constitutional interpretation to the Sentencing Guidelines, which, although advisory, have a tremendous impact on sentences handed down by courts everyday.
Knoxville, TN – June 28, 2016 – The Henry Law Firm PLLC is proud to announce that Bradley L. Henry has been named to the 2016 Rising Stars list by SuperLawyers for the Mid-South (TN, AL, AR, MS). Mr. Henry focuses his practice on representing individuals being investigated for or charged with white collar criminal offenses, federal criminal offenses or regulatory enforcement actions.
“Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement.”
No more than 2.5 percent of attorneys are named to the Rising Stars list.
The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship. Prior results do not guarantee future outcomes.