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You’ve Been Charged With a Federal Crime in New Jersey. What Happens Next?

Posted by Leslie Posnock on February 22, 2016  |   No Comments »

Being charged with a federal criminal offense in New Jersey is traumatic. Individuals charged with a crime have many questions regarding what they face in the immediate future. Most people have no experience or knowledge of how the federal criminal system works, particularly at the beginning of the case. Our clients often ask the following questions: Will I be arrested? If so, where will I he taken? Will I be fingerprinted and photographed? Will I be held in jail? Does the federal bail system work the same as the bail system in State Court? When will I go to court for my first appearance? What happens in federal court on your first appearance on a criminal charge? We never let our clients navigate the federal criminal case processing system alone. Initially, we will contact the government prosecutor (the Assistant United States Attorney) to discuss your case. We will negotiate what is called “a surrender date” and we will accompany you to the FBI office and or the U.S. Marshall’s office in the federal courthouse in either Newark, Trenton or Camden, for processing. We will provide U.S. Pretrial Services with all of the information available to us to ensure that you are released on your own recognizance or under the least restrictive conditions. If the government seeks your pretrial detention, we will demand a detention hearing to secure your release. For more detailed information on the initial stages of federal criminal case processing, and what you can expect, click below to see our articles entitled:

We know that obtaining the least restrictive release conditions are of paramount importance to you, especially in the early stages of the case, when your world has been turned upside down. Our dedicated and experienced federal criminal defense attorneys stand with you every step of the way to bring order, peace of mind, and a light at the end of the tunnel when you are charged with a N.J. federal criminal offense. For individuals who are facing NJ federal criminal prosecution or sentencing in the United States District Court for the District of New Jersey, or state criminal prosecution or sentencing in the criminal courts of New Jersey, or who are appealing their criminal matters before the United States Court of Appeals for the Third Circuit, the New Jersey Appellate Division, or the Supreme Court of New Jersey, it is critical to have an experienced federal and state New Jersey criminal defense attorney represent you. The experienced criminal defense lawyers of Schwartz & Posnock appear in all Federal Courts of New Jersey, as well as the State and Municipal criminal courts in New Jersey, and have convenient locations in Monmouth County (Eatontown), Essex County (Livingston), Union County (Linden), and Middlesex County (East Brunswick). Call us at 732-544-1460 or email us at info@schwartzposnock.com to schedule an appointment. We look forward to obtaining a positive outcome of your case. IMG_0555

nj federal criminal atatorney

New Jersey Criminal Lawyer

DAVID A. SCHWARTZ, is a criminal lawyer in New Jersey, practicing with the law firm of Schwartz & Posnock. With 30 years combined experience, David shares the firm’s

Immigration Consequences of NJ Criminal Convictions

Posted by Leslie Posnock on January 21, 2016  |   No Comments »

If you are an immigrant, even one with legal status, a New Jersey criminal conviction can end your dream of US citizenship, and may even lead to your deportation, inadmissibility, or visa problems.  The United States Government has recently stepped up immigration enforcement, and many people who entered guilty pleas to criminal charges in the past are finding themselves in federal custody.

Some of the types of convictions that can lead to immigration consequences include crimes of moral turpitude, aggravated felonies, firearm offenses, domestic violence and child abuse, violation of a protective order, falsifying government documents, and drug possession.  Whenever a conviction occurs the visa holder should be aware that immigration status may be affected as well and should seek out guidance on this issue from an attorney.

If you face deportation or other immigration consequences based on an old conviction, there may be a basis to reopen and renegotiate your case. A United States Supreme Court decision , Padilla v. Kentucky, held that a criminal defense attorney has the affirmative duty to inform his or her client of the immigration consequences of a guilty plea prior to entry of that plea. Failure to have done so can lead to your criminal conviction being vacated.

Two New Jersey criminal cases discuss whether Padilla applies to guilty plea cases resulting in deportations which occurred prior to the Supreme Court’s 2012 decision. The New Jersey Supreme Court decided in State of New Jersey v. Gaitan that post-conviction relief petitioners who entered guilty pleas prior to Padilla cannot establish an ineffective assistance of counsel claim just by alleging that they were not advised regarding the risk of deportation. Instead, a petitioner must satisfy prior New Jersey law showing that his New Jersey criminal lawyer provided affirmative misadvice regarding the immigration consequences of a guilty plea.

In State of New Jersey v. Santos, decided on May 8, 2012, the New Jersey Supreme Court reiterated that the Padilla decision, at least for the time being, is not retroactive in the state courts of New Jersey.

New Jersey criminal lawyers should be aware of the requirements of advising a client of the immigration consequences of a guilty plea. New Jersey criminal lawyers should also be aware that their client’s guilty pleas can be vacated pursuant to the United States Supreme Court decision in Padilla.

The experienced attorneys of Schwartz & Posnock have represented the immigrant community in NJ Municipal Court, Superior Court, and Federal Court criminal cases throughout the State of New Jersey for over thirty years. We have a proven track record of excellent results for our clients. Please contact us in any one of our convenient locations, including our Monmouth County office, located in Eatontown (at the Jersey Shore), our Essex County office, located in Livingston, our Union County office, located in Linden, or our Middlesex County office, located in East Brunswick, to discuss your case. You may call the experienced criminal defense attorneys of Schwartz & Posnock at 732-544-1460 or email us at info@schwartzposnock.com. Our website may be found at: www.schwartzposnock.com.

 

NJ Civil Rights and NJ Criminal Defense: New Use of Force Investigation Guidelines

Posted by Leslie Posnock on September 16, 2015  |   No Comments »

Recently, the New Jersey Attorney General issued “Supplemental Law Enforcement Directive Regarding Uniform Statewide Procedures and Best Practices for Conducting Police-Use-of-Force Investigations” This is an extensive new guideline that may play an important role in the preparation and planning for the filing of federal civil rights cases based on the use of police force. Our firm uses these Guidelines in support of our clients who have civil rights cases, as well as in the defense of our criminal clients.

One of the most significant changes made in the new Use of Force Investigation Guidelines is the “Comprehensive Conflicts Inquiry to Inform Suppression/Recusal Decisions.” This guideline specifically addresses conflicts of interest between the agency or individual allegedly using force and the agencies or individuals conducting the investigation. The new Guideline provides as follows:

“When the investigation is conducted by the County Prosecutor, the Prosecutor shall as
expeditiously as feasible determine whether any actual or potential conflict of interest exists that might undermine public confidence in the impartiality and independence of the investigation. As part of this comprehensive conflicts inquiry, the Prosecutor shall determine whether any member of the leadership team of the office (EMS, the County Prosecutor, First Assistant Prosecutor, Chief of Detectives, etc.), has had any personal or professional interaction with or relationship to the principals of the investigation that might reasonably create an actual or potential conflict of interest for the member or office. The Prosecutor likewise shall determine whether any person assigned to
participate in or supervise the use-of-force investigation has had any such personal or professional interactions with or relationship to the principals(s) of the investigation. The Prosecutor also shall determine whether the principals of the investigation is/are expected to testify on behalf of the State in pending matters being prosecuted by the Prosecutor’s Office, and whether the principals of the investigation has/have, within the preceding 5 years, been assigned to a task force operating under the direct supervision of the Prosecutor’s Office.”

“The County Prosecutor within 3 days of initiating the investigation shall report the results of the comprehensive conflicts inquiry to the Director. The County Prosecutor shall have an ongoing responsibility to update the comprehensive conflicts inquiry report based on new information or the involvement of additional persons in the investigation. The initial report and any updates to that report shall be made in a manner and on a form as shall be prescribed by the Director. The Director
shall develop and make available forms to facilitate the comprehensive conflicts inquiry reporting process.”

“Based on the information in the comprehensive conflicts inquiry report, and any such
additional information as the Director may require the Prosecutor to provide, the Director shall determine whether the interests of justice would best be served by superseding the investigation, assigning the investigation to another County Prosecutor’s Office, ordering the recusal of any person or persons from the investigation, or taking such other actions as may be needed to ensure the
impartiality and independence of the investigation. When the investigation is conducted by the Division of Criminal Justice, the Deputy Director responsible for overseeing the Attorney General Shooting Response Team, or other Assistant Attorney General designated by the Director, shall undertake the comprehensive conflicts inquiry,
and shall report thereon to the Director. The Director shall determine whether any actions are needed to ensure the impartiality and independence of the investigation.”

For individuals with civil rights claims or who are facing federal criminal prosecution or sentencing in the United States District Court for the District of New Jersey, or state criminal prosecution or sentencing in the criminal courts of New Jersey, it is critical to have an experienced New Jersey civil rights attorney and federal and state New Jersey criminal defense attorney represent you. The experienced civil rights attorneys and criminal defense lawyers of Schwartz & Posnock appear in all Federal Courts of New Jersey, as well as the State and Municipal criminal courts in New Jersey, and have convenient locations in Monmouth County (Eatontown), Essex County (Livingston), Union County (Linden), and Middlesex County (East Brunswick). Call us at 732-544-1460 or email us at info@schwartzposnock.com to schedule an appointment. You may visit our website at www.schwartzposnock.com.

NJ Juvenile Delinquency Law: Change Is on the Way

Posted by Leslie Posnock on August 14, 2015  |   No Comments »

New NJ Juvenile justice legislation, signed by the Governor on August 10, 2015, will go into effect in seven months. The new law will greatly expand the rights of juveniles charged with criminal offenses, and will, hopefully, assist in their rehabilitation.

Under the new law, 14 year olds can no longer be prosecuted in the adult courts, and children 15 and above can only be transferred to the adult courts for the most serious crimes. The law would, in most cases, prohibit the jailing of juveniles in adult facilities until they are at least 18, instead of the current 16. Some juveniles who have been convicted as adults could be allowed to remain in juvenile facilities until the age of 21.

The measure will allow juveniles jailed on adult charges prior to trial to be detained in juvenile, rather than adult facilities.

Prosecutors, who previously had 30 days to decide whether to apply for transfer of a juvenile’s case to adult court, will now have 60 days to make that determination, and must, prior to that application, provide the court with a written analysis of their reasons for seeking waiver. The State is also required to explain why treatment as an adult is appropriate. The Court has the right to deny the application after analyzing the request. This is a significant improvement over the current law.

The new law also significantly limits the circumstances under which a juvenile may be held in solitary confinement. No juvenile can be placed in solitary confinement unless he or she poses an immediate threat to others or to the security of the facility. Other restrictive measures must first be utilized. Further, every case where solitary confinement is imposed must be strictly documented, and the time a juvenile can be so held is limited.

This bill was created with the input of retired judges, juvenile justice experts, county prosecutors, the Attorney General’s Office and the New Jersey State Bar Association.

If your child faces juvenile prosecution or sentencing in the Family or Municipal Courts of New Jersey, or if the State seeks to have your child’s case transferred to the adult criminal courts, it is critical to have an experienced New Jersey juvenile court attorney represent you. The experienced juvenile delinquency lawyers of Schwartz & Posnock appear in all State and Municipal criminal courts in New Jersey, and have convenient locations in Monmouth County (Eatontown), Essex County (Livingston), Union County (Linden), and Middlesex County (East Brunswick). Call us at 732-544-1460 or email us at info@schwartzposnock.com to schedule an appointment.

Contacted by the Police? Call an Experienced NJ Criminal Lawyer

Posted by Leslie Posnock on July 2, 2015  |   No Comments »

As criminal defense attorneys, our first call from a prospective client often occurs after he or she has been contacted by a detective. When an individual is called by a detective or law enforcement investigator to come down to the police department, it typically signals that that individual is going to be charged with a crime. Detectives are usually very good at downplaying the true state of affairs in order to lure an individual to the station and provide a statement. In 99 times out of 100, an individual who gives a statement ends up being charged and arrested while at the police department, after the statement is signed and placed in the investigator’s evidence folder.

It is extremely rare for an individual to talk a detective or an investigator out of charging him with a crime when he has been asked to go to a police station to “give his side of the story.” In virtually every case, the police have already decided to charge that individual and do so as soon as they are done taking the statement.

Our firm recommends to all potential clients and existing clients that they forgo any voluntary appearance at a police station to provide information to a law enforcement officer. It does not matter if any potential statement is signed, tape recorded, video taped or verbal (in which case the police officer will make file notes capsulizing what was said). Providing this information is unnecessary and almost never serves to protect the individual’s rights. It may, instead, provide that last bit of information required to bring a criminal charge.

Instead of meeting with the authorities on your own, we recommend that you allow our lawyers to contact the detective to discuss the parameter of the investigations and to determine what the detective wants to know and whether or not he or she is considering bringing charges against you. We can then advise you as to the best course of action to take.

If we learn that you will be charged with an offense, we will make arrangements for you to voluntarily surrender – with a lawyer at your side – after negotiating the terms of such release. We will also reaffirm to the police that you will invoke your Miranda and Fifth Amendment rights to remain silent and will make no statement.

For individuals who are facing state criminal prosecution or sentencing in the criminal courts of New Jersey, federal criminal prosecution or sentencing in the United States District Court for the District of New Jersey, or who are appealing their criminal matters before the New Jersey Appellate Division, the Supreme Court of New Jersey, or the United States Court of Appeals for the Third Circuit, it is critical to have an experienced state and federal New Jersey criminal defense attorney represent you. The experienced criminal defense lawyers of Schwartz & Posnock appear in all State and Municipal criminal courts in New Jersey, as well as in the New Jersey Federal Courts, and have convenient locations in Monmouth County (Eatontown), Essex County (Livingston), Union County (Linden), and Middlesex County (East Brunswick). Call us at 732-544-1460 or email us at info@schwartzposnock.com to schedule an appointment.

Federal Criminal Law Update: Should I Proffer Evidence to Federal Prosecutors in a NJ Federal Criminal Case?

Posted by Leslie Posnock on March 30, 2015  |   No Comments »

Many of our clients who are investigated for or charged with a federal criminal offense want to know whether they should attend a proffer session in a federal criminal case. In particular, they want to know whether, by providing the United States Attorney’s Office with information about criminal activity, they can avoid being criminally charged, reduce the severity of any charges, or face a lesser sentence if charged with a NJ federal criminal offense. Additionally, our clients ask whether they are protected from future prosecution based on information they provide in the proffer session.

Whether you attend a proffer session in a federal criminal case is a decision which should be made by you and your criminal defense attorney after careful consideration of the potential risks and rewards of giving a proffer.

If by proffering you convince the government that you either have not committed an offense or that the proof is insufficient to convict you, a proffer session may have been the wisest choice to be made in the case. On the other hand, the risks of proffering are real. A proffer agreement provides very little protection for you. We would be happy to discuss all of the risks and rewards of participating in a proffer session should you unfortunately find yourself uder federal criminal investigation.

For more detailed information on whether a proffer agreement is right for you, click below to see our articles entitled:

Proffer Letter Example  

A Primer On Whether to Proffer in a Federal Criminal Case

The experienced federal criminal defense lawyers of Schwartz & Posnock appear in all Federal Courts of New Jersey, as well as the State and Municipal criminal courts in New Jersey, and have convenient locations in Monmouth County (Eatontown), Essex County (Livingston), Union County (Linden), and Middlesex County (East Brunswick). Call us at 732-544-1460 or email us at info@schwartzposnock.com to schedule an appointment. We look forward to obtaining a positive outcome of your case.

NJ FEDERAL COURT SENTENCING: THIRD CIRCUIT COURT OF APPEALS RULES THAT ENFORCEMENT OF PLEA AGREEMENTS SUBJECT TO BASIC CONTRACT PRINCIPLES; DECISION IS APPLICABLE TO UNITED STATES DISTRICT COURTS FOR THE DISTRICT OF NEW JERSEY

Posted by Leslie Posnock on February 23, 2015  |   No Comments »

United States v. Davenport, a recent federal sentencing decision by the United States Court of Appeals for the Third Circuit, held that the Government did not breach the terms of a defendant’s plea agreement by arguing for a two-level enhancement under the United States Sentencing Guidelines. The Court analyzed the facts of the case using basic contract principles. This ruling applies to all United States District Courts in New Jersey.

In Davenport, the defendant entered a guilty plea in the United States District Court to Conspiracy to Distribute Narcotics. At sentencing, the U.S. Attorney’s Office argued that United States Sentencing Guideline (USSG) § 2D1.1(b)(1), for possessing a firearm in connection with the underlying offense, was applicable. The defendant objected to the application of this federal criminal sentencing Guideline, since, during the plea negotiations, the clause “and the defendant possessed a firearm” was stricken from the plea agreement. The defendant argued that the stricken provision precluded the Government from pursuing a gun enhancement at sentencing.

The Court decided upon a three-step analysis to determine whether there has been a breach of a federal criminal plea agreement. First, it must identify the terms of the agreement and the government’s alleged improper conduct. Second, the court must determine whether the government has violated its obligations under that agreement. And if it has, they must fashion the proper remedy.

The Court stated: “At the outset, we determine “whether the government’s conduct is inconsistent with what was reasonably understood by the defendant when entering the plea of guilty.” “Reasonably understood” is a “purely objective” standard governed by the common law of contract. Specifically, we look to the plain meaning of the plea agreement and eschew a “rigidly literal” interpretation of it. And we give the benefit of any doubt to the defendant, given the government’s “tremendous bargaining power” in negotiating such plea agreements.”

“Once the plea agreement has been made, the government does not have to endorse its terms “enthusiastically,” but it is expected to “adhere strictly to the terms of the bargain it strikes,” and we will hold the government to that bargain.”

In rejecting the defendant’s argument and affirming the judgment of the United States District Court, the Third Circuit Court of Appeals held that removal of the gun enhancement meant simply that the parties no longer jointly agreed on that specific recommendation. It did not, as the defendant claimed, mean that the parties had jointly agreed that the Government would be barred from bringing the gun enhancement to the Court’s attention at sentencing. “Davenport’s argument ignores the other provisions of the plea agreement that explicitly permit the Government to do just that.”

For individuals who are facing federal criminal prosecution or sentencing in the United States District Court for the District of New Jersey, or state criminal prosecution or sentencing in the criminal courts of New Jersey, or who are appealing their criminal matters before the United States Court of Appeals for the Third Circuit, the New Jersey Appellate Division, or the Supreme Court of New Jersey, it is critical to have an experienced federal and state New Jersey criminal defense attorney represent you. The experienced criminal defense lawyers of Schwartz & Posnock appear in all Federal Courts of New Jersey, as well as the State and Municipal criminal courts in New Jersey, and have convenient locations in Monmouth County (Eatontown), Essex County (Livingston), Union County (Linden), and Middlesex County (East Brunswick). Call us at 732-544-1460 or email us at info@schwartzposnock.com to schedule an appointment.

NJ False Confessions: State and Federal Criminal Litigation

Posted by Leslie Posnock on December 15, 2014  |   No Comments »

With the recent release of the U.S. Senate Intelligence Committee report on the use of coercive techniques in interrogation, false confessions are again in the news. The experienced criminal defense attorneys of Schwartz & Posnock have successfully defended individuals who falsely confessed to crimes they did not commit.

Research has demonstrated that false confessions are far more common than previously known. Many of the problems related to false confessions arise due to outdated and shoddy questioning by federal and state law enforcement officers.

An Iowa State University psychology professor is leading an international research team developing new interrogation methods designed to reduce false confessions and more effectively gather intelligence critical to national security. This research team’s work is critical to furthering the science of false confessions and may be very useful in litigating false confession evidence in New Jersey criminal cases.

According to the team leader, Professor Christian Meissner, the team’s mission is to leverage research and theory to improve interrogation practices. Civil rights advocates and lawmakers, among others, have criticized law enforcement investigators for using harsh interrogation tactics. Despite the criticism, few have offered solutions or proposed changes to how investigators question suspects – until now.

“This research is having an impact. There’s a real need for evidence-based methods at all levels of law enforcement,” Meissner said. “Our objective is to improve the reliability and the amount of information that investigators can collect from subjects or anyone that they interview.”

The research is funded by the High-Value Detainee Interrogation Group or HIG, which includes personnel from the FBI, CIA, and Department of Defense. The HIG was established in 2010 to question terrorism suspects. Now, in the final year of a five-year study, the research team has created an online brochure to share the results of the more than 60 published studies that examine everything from the dynamics of an interrogation, to assessing the truthfulness of a subject, to the impact of culture and language.

The research shows that several of the tried and true methods investigators have used over the years are not always productive or in some cases lead to false confessions. Meissner says many interrogators now recognize that their methods sometimes resulted in false confessions and that change is needed. Researchers have developed new methods that they continue to test in the field, Meissner said, and the information is relevant for law enforcement and intelligence agencies at the federal as well as local level.

“Our aim is to develop methods that are diagnostic, that reduce the likelihood of producing a false confession, but increase the likelihood of eliciting a true statement,” Meissner said. “The methods we’re teaching now focus on letting the subject tell the story, eliciting a narrative and using subtle nudges to encourage the subject to discuss topics they may be uncomfortable talking about, all while developing empathy and rapport with the subject.”

For individuals who are facing prosecution or sentencing in the State or Federal criminal courts of New Jersey, or who are appealing their matters before the New Jersey Appellate Division, the Supreme Court of New Jersey, or the United States Court of Appeals for the Third Circuit, it is critical to have an experienced New Jersey State and Federal criminal defense attorney represent you. The experienced criminal defense lawyers of Schwartz & Posnock appear in all State and Federal criminal courts in New Jersey, and have convenient locations in Monmouth County (Eatontown), Essex County (Livingston), Union County (Linden), and Middlesex County (East Brunswick). Call us at 732-544-1460 or email us at info@schwartzposnock.com to schedule an appointment.

Federal Criminal Defense Study Exposes Failure of US Prosecutors to Disclose Evidence Favorable to Criminal Defendants

Posted by Leslie Posnock on December 15, 2014  |   No Comments »

Recently, the National Association of Criminal Defense Lawyers (“NACDL”) released their latest report, “Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases,” written in conjunction with the VERITAS Initiative at Santa Clara Law School.

This study illustrates a significant problem facing both state and federal criminal prosecutions; i.e., the endemic failure to ensure that information favorable to a criminal defendant is provided by prosecutors in an open and timely manner, resulting in a denial of a fair trial.

In 1963, in Brady v. Maryland, the United States Supreme Court declared that failure to disclose favorable information violates the constitution when that information is material to a criminal prosecution. However, this guarantee is frequently ignored by prosecutors. Across the country, criminal defendants in both state and federal criminal prosecutions are found guilty without seeing information that may have aided their defense. This violations occurs on a frequent basis, and leads to convictions of innocent individuals. Brady violations and their role in wrongful convictions caused this joint study of Brady claims heard in the United States courts over five years. The study concluded that the federal courts were preventing full and fair disclosure of favorable information to those charged with crimes. In doing so, they encouraged United States Attorneys to withhold information.

The study’s findings are troubling. For example, the interpretation by the courts of the ”materiality” requirement of the Brady decision resulted in random enforcement which substantially favored the prosecution. Even in cases where prosecutors failed to disclose Brady material, the government won 86% of the time, with the court concluding that the information was not material.

Courts rarely find Brady violations when favorable information is disclosed late. Only one of 65 court decisions where late submission was studied resulted in a finding that a Brady violation had occurred. This is particularly true in death penalty cases, where favorable information was either not disclosed or disclosed late in 53% of the cases (compared to 34% in all of the decisions reviewed).

Despite clear correlations between withholding evidence and wrongful conviction, the study found that courts persist in tolerating prosecutors’ failure to timely disclose favorable information. Further, the study found that judges’ indifference toward late disclosure resulted in non-compliance with disclosure obligations, leading to the conclusion that late disclosure was a prosecution trial tactic rather than an allowance for exceptional circumstances.

The report suggests reform proposals to increase disclosure of Brady material in criminal prosecutions. First, defense attorneys should request, and judges should grant, orders for the prosecution to disclose all favorable information in accord with American Bar Association Model Rule 3.8(d). Second, judicial rules and policies should be amended to require fair disclosure of information. Finally, legislation should be adopted to codify fair disclosure in criminal cases.

For individuals who are facing prosecution or sentencing in the United States District Courts of New Jersey, or appealing their matters before the United States Court of Appeals for the Third Circuit, it is critical to have an experienced federal criminal defense attorney represent you. The experienced federal criminal defense lawyers of Schwartz & Posnock appear in the United States District Courts in Newark, Trenton and Camden, and have convenient locations in Monmouth County (Eatontown), Essex County (Livingston), Union County (Linden), and Middlesex County (East Brunswick). Call us at 732-544-1460 or email us at info@schwartzposnock.com to schedule an appointment.

The Financial Crimes Enforcement Network Issues an Important Ruling for Currency Transporters

Posted by Leslie Posnock on October 30, 2014  |   No Comments »

The Financial Crimes Enforcement Network (“FinCEN”) has issued an administrative ruling to clarify the application of the FinCEN regulations to certain persons involved in transporting currency. The upshot of the Ruling is that “Currency Transporters” who engage in transactions that are not covered by an exemption from money transactions have the same regulatory obligations as other money transmitters.

In general terms, and subject to certain conditions and exceptions, the CT Ruling on the obligations of currency transporters under FinCEN regulations can be summarized as follows:

• Where a Federal Reserve Bank or a certain type of financial institution subject to a Federal function regulator contracts for and directs the physical transportation of value by the currency transporter, the currency transporter is exempted from money transmitter status under FinCEN’s regulations exclusively with respect to such physical transportation of value.

• Where a currency transporter, without the intervention of any third party such as a subcontractor and/or transhipper, picks up value from a person (or from a shipper acting at the direction of that person) and physically delivers the same value to the same person at another location, or to an account of that person at a Bank Secrecy Act (“BSA”) regulated financial institution, such activity alone will not result in the currency transporter being a money transmitter under FinCEN’s regulations.

• In all other scenarios (among them, where there exists transshipment – moving the same shipment form one currency transporter to another – or subcontracting; or where the currency transporter delivers value to a person different than the person from whom it picked up the value; or where the currency transporter takes more than custodial interests in the value transported), the currency transporter will be deemed a money transmitter under FinCEN’s regulations.

Any person or business that is involved in currency transportation or who makes bank deposits or who conducts currency transactions must be aware of their obligations under federal law with regard to filing currency transaction reports (CTRs). Money laundering and so-called “structuring offenses” are the by-product of failing to report otherwise lawful transactions that may generate a “suspicious activity report (SAR).

For individuals who are facing prosecution or sentencing in the United States District Courts of New Jersey, or appealing their matters before the United States Court of Appeals for the Third Circuit, it is critical to have an experienced New Jersey federal  criminal lawyer represent you. The experienced New Jersey federal criminal defense attorneys of Schwartz & Posnock appear in the United States District Courts in Newark, Trenton and Camden, and have convenient locations in Monmouth County (Eatontown), Essex County (Livingston), Union County (Linden), and Middlesex County (East Brunswick). Call us at 732-544-1460 or email us at info@schwartzposnock.com to schedule an appointment.

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