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November 27, 2023: Plea Agreement Accepted over Government's Objection. Today, on remand from the Second Circuit in United States v. Molina (see June 9, 2023, entry below), the Hon. Nelson S. Román, SDNY, issued an Opinion & Order accepting our client's plea under 18 U.S.C. § 371, entered pursuant to a plea agreement, and rejecting the Government's argument that the Court reject the plea and its (purportedly withdrawn) plea agreement. The Court initially rejected our client's plea because it disbelieved the client's allocution to the extent he said the weapon he possessed during two cellphone store robberies was a pellet gun and not a "firearm," but adjourned the case for briefing regarding the Court's discretion to reject the plea under these circumstances. The government then purported to withdraw the plea agreement. We then filed a memorandum and reply memorandum, arguing that the Court should accept the plea and plea agreement. The Court's decision doing so, and rejecting the Government's contrary arguments, can we viewed here. Mr. Molina was represented by Levitt & Kaizer partners Richard Levitt and Zach Segal.
August 7, 2023: Grant of Compassionate Release Application in SDNY: Today, the Hon. J. Paul Oetken, S.D.N.Y., granted our application on behalf of Levitt & Kaizer client Michael Danilovich for compassionate release, reducing Mr. Danilovich's sentence from 25 years to 15 years. Judge Oetken's decision may be reviewed here. Mr. Danilovich was represented by Levitt & Kaizer partners Zach Segal and Richard Levitt.
August 2, 2023: Victory in the Second Circuit. Today, the Second Circuit remanded to the district court the case of our client, Doe 107, after concluding it could not confidently determine that the district court did not err when it ordered the unsealing of documents the release of which our client maintained would put her in physical danger. You can read the Second Circuit's decision here. Doe 107 was represented by Levitt & Kaizer partner Richard Levitt.
July 25, 2023: Today, Levitt & Kaizer partner Richard Levitt presented oral argument in the Second Circuit in the appeal Giuffre v. Doe 107, an outgrowth of the Jeffrey Epstein debacle, in which we represent Doe 107, who seeks to keep sealed documents that would expose her identity to the public at great personal peril. You can hear Richard's oral argument here by selecting "archive of audio oral arguments."
July 12, 2023: Success in Brooklyn Supreme. Today, after we uncovered a possible Brady violation in our client's case, People v. Thompson, and in consideration of his rehabilitation, the People agreed to reduce our client's sentence from 25 years to 18 years, which will result in his release within the next two years. Mr. Thomas was represented by Levitt & Kaizer partners Zach Segal and Richard Levitt.
June 9, 2023: Victory in the Second Circuit. Today, the Second Circuit, in an opinion by Judge Reena Raggi, vacated our client's two § 924(c) firearms convictions for a faulty jury instruction and remanded for a Franks hearing upon the remaining counts, holding the district court erred in finding that critical evidence, seized pursuant to an illegal warrant riddled with inaccuracies, would inevitably have been discovered. Judge Raggi's opinion, United States v. Molina, which was joined by judges Leval and Pérez, may be viewed here. Mr. Molina is represented by Levitt & Kaizer partners Richard Levitt and Zach Segal.
June 7, 2023: Sentence reduction in the EDNY. Today, the Hon. Edward R. Korman reduced the sentence of our client, Harry Lee Napper, from 421 months to 228 months pursuant to a resentencing occasioned by the Supreme Court's decisions in United States v. Davis, 139 S. Ct. 2319, 2336 (2019), and United States v. Taylor, 142 S.Ct. 2015 (2022). Mr. Napper was represented by Levitt & Kaizer partners Richard Levitt and Zach Segal.
May 25, 2023: Today, Levitt & Kaizer partner Richard Levitt gave his annual Second Circuit lecture on behalf of the New York Criminal Bar Association at the Southern District of New York Courthouse. A copy of Richard's Second Circuit Criminal Law Update may be downloaded here.
May 1, 2023: Sentence reduction in the SDNY. Today, the Hon. Katherine Polk Failla (SDNY) granted our client Roman Kitroser an 18-month sentencing reduction pursuant to our compassionate release motion under 18 U.S.C. § 3582(c). In granting our motion Judge Failla cited both Mr. Kitroser's many medical condition as well as the severe conditions under which he has been incarcerated during the COVID-19 pandemic. The court explained: "Here, using the metrics of his mental and physical health, Mr. Kitroser has experienced harsher conditions of confinement than could have been anticipated, and the Court finds that the length and totality of these conditions amount to extraordinary and compelling circumstances under § 3582(c)(1)(A)(i)." Judge Failla's decision may be reviewed here. Mr. Kitroser is represented by Levitt & Kaizer partners Zach Segal and Richard Levitt.
February 17, 2023: Sentence reduction in the EDNY. Today, the Hon. Edward R. Korman, EDNY, reduced the sentence of our client Lorenzo Nichols, upon his 1992 conviction racketeering murder conviction. Relying on the First Step Act, 18 U.S.C. § 3582(c), Judge Korman explained that, if Nichols were sentenced today he would have been permitted to -- and in fact would have -- credited Nichols with four years of presentence custody Nichols had served in a related state matter. Such is now possible pursuant to U.S.S.G. 5G1.3(b)(1), which allows a sentencing judge to “adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment [resulting from a related offense] if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons.” Nichols was represented by Levitt & Kaizer partners Richard Levitt and Zach Segal.
February 7, 2023: Our representation continues of Levitt & Kaizer client Livingstone Broomes, who was exonerated after being wrongly convicted and imprisoned for several years. We filed actions for relief in the Court of Claims, Supreme Court New York County, and the Eastern District of New York. In the Court of Claims we reached a settlement that, from our research, was the second highest per annum settlement of any actual innocence claim in the Court of Claims. Our litigation in Supreme, New York and the EDNY is ongoing.
February 3, 2023: Leave to Appeal Granted. Today, the Appellate Division, Second Department, issued one of its rare leave to appeal grants from an order denying our motion under CPL 440.10 to vacate our client Jesus Arevalo's assault and weapons-related convictions because we learned that at the time of trial his trial counsel was facing an assault prosecution in the same District Attorney's Office that was prosecuting Mr. Arevalo as well as a disciplinary proceeding. Levitt & Kaizer partners Richard Levitt and Zach Segal represent Mr. Arevalo.
December 22, 2022: Article Published. Today, Levitt & Kaizer partner Zach Segal, along with Covington & Burling partner Alan Vinegrad published an article in the New York Law Journal titled 'From Booker to Brooker: A Return to Judicial Discretion in Sentencing.' Zach and Alan's article may be accessed here.
December 7, 2022: Sentence Reduction in the EDNY. Today, Hon. Edward R. Korman reduced our client Fabrizio DeFrancisci's sentence pursuant to Section 404 of the First Step Act, from 36 to 30 years, and we are hopeful he will soon be released. Mr. DeFrancisci is represented by Levitt & Kaizer partners Richard Levitt and Zach Segal
December 5, 2022: Today, a Levitt & Kaizer client in the Eastern District of New York, charged with conspiracy to possess and distribute 1500 kilograms of marijuana, was sentenced to Probation in the Eastern District of New York (Ross, J.). The court cited several factors, including defendant's first time offender status, his medical conditions, and the fact that the marijuana guidelines substantially overstate the seriousness of the conduct of conviction. The court agreed with the defense that, for couriers such as our client, using weight to drive the guidelines does not accurately reflect the defendant's moral culpability, and that the numerous acknowledged medical uses of marijuana undermine its placement in Schedule I with that Schedule's severe sentences.
November 10, 2022: Today, Mr. Levitt argued in the Second Circuit the appeal of Levitt & Kaizer client Anthony Molina. You can hear the oral argument here.
October 6, 2022: Today, Mr. Levitt argued in the Second Circuit the appeal of Levitt & Kaizer client Joshua Stegemann. You can hear the oral argument here.
March 16, 2022: Victory in the Second Department. Today, the Second Department vacated our client's sentence and remanded for a new sentencing proceeding because the sentencing judge failed to make a youthful defender determination, providing the defendant not only an opportunity to argue for YO treatment but also to argue, in any event, for a lower sentence than initially imposed. The decision in People v. Thompson can be reviewed here.
March 11, 2022: Grant of compassionate release application in EDNY. Today, the Hon. Nina Gershon (EDNY) granted our compassionate release application filed on behalf of our client Richard Lugo, reducing his life sentence to 25 years. Mr. Lugo has been imprisoned for approximately 19 years and will be eligible next year for transfer to a residential re-entry facility. Mr. Lugo's motion was filed by Levitt & Kaizer associate Zach Segal and partner Richard Levitt. Judge Gerson's decision can be reviewed here.
Wednesday, December 8, 2021: Charges dropped in attempted murder case. Today, the Hon. Debra Young of Rennselaer County Court granted the motion of Chief ADA Matt Hauf to dismiss all charges against our client whose attempted murder conviction and related convictions were reversed last year by the Appellate Division, Third Department. In moving to dismiss, ADA Hauf told the court it was the job of a prosecutor to “seek justice, not convictions in criminal courtrooms.” See the Times Union article here.
October 30, 2021: Second largest per diem settlement in Court of Claims exoneration case. Today, we executed settlement papers in a Court of Claims action we brought on behalf of our exonerated client, who had been wrongly convicted for having sex with a person incapable of consent by reason of mental incapacity. Our client, who had similar incapacities as the alleged victim, was railroaded by his Legal Aid lawyer to enter an involuntary plea to four years' imprisonment, and served his entire sentence. His excellent appellate counsel at Appellate Advocates recognized the injustice and filed a 440 motion for a new trial. The Brooklyn District Attorney's Office's Conviction Review Unit also reviewed the case and joined the 440 motion, which was granted, and our client was exonerated. Our client was incarcerated for 1242 days, 914 days of which were post-plea. Our research suggests the settlement was the second largest per diem settlement agreed to in an action brought on behalf of an exoneree in the NY Court of Claims. We are currently pursuing additional remedies on our client's behalf.
October 30, 2021: Grant of compassionate release application in SDNY. Today, in U.S. v. Rengifo, Hon. Jed Rakoff, SDNY, granted our compassionate release motion filed on behalf of Alejandro Rengifo. Mr. Rengifo was a child abductee of the FARC, and in his early twenties was required to guard an American citizen who had been abducted and held for ransom. Rengifo eventually fled the organization and was in a reintegration facility when he was arrested and extradited to the U.S. He was convicted at a bench trial and sentenced to 14 years' imprisonment. In prison, Mr. Rengifo learned English, helped numerous inmates, found expression for his religious beliefs and earned the respect of inmates and staff alike. Judge Rakoff cited all these factors, and others, including that his FARC commander avoided imprisonment, by waiting to turn himself in until after the FARC and Colombia signed a peace treaty which -- with the blessing of the U.S. government -- forbade extradition of former FARC members to the U.S. You can read Judge Rakoff's comprehensive and engaging decision here. Levitt & Kaizer associate Zach Segal was substantially responsible for Mr. Rengifo's representation. Our application for compassionate release on Mr. Rengifo's behalf can be reviewed here.
October 1, 2021: Today, in the face of our objections on behalf of our U.S. corporate client, the IRS withdrew summonses to three banks with which our client supposedly did business. Our client was not the target of the inquiry; rather the Russian government had sought cooperation from the IRS, pursuant to Art. 25 of the U.S. - Russia Income Tax Convention, to gather information allegedly relevant to a tax investigation of a Russian company. We moved to intervene and quash the bank subpoenas arguing, inter alia, that the Russian government is notorious for seizing or otherwise undermining private companies on the pretense of conducting tax or other investigations, and that our government should decline to be a tool of any such malicious efforts. We are gratified that the IRS -- for whatever reason -- has withdrawn the summonses.
August 18, 2021: Today the Second Circuit issued one of its rare Certificates of Appealability to our client Joshua Stegemann, agreeing to address several significant Fourth and Sixth Amendment issues. Our application for a COA in U.S. v. Stegemann can be found here, and the Court's grant can be found here. The COA was filed by Levitt & Kaizer partner Richard Levitt and associate Zach Segal.
August 2021: Richard's review of Federal Defender Douglas Morris's superb book Legal Sabotage: Ernst Frankel in Hitler's Germany, was published in this month's Champion, the magazine of the National Association of Criminal Defense Lawyers. You can read Richard's review here.
August 2021: Levitt & Kaizer associate Zach Segal and Richard Levitt are privileged to be working with the Aleph Institute, one of the country's premiere criminal justice reform organizations, to identify and champion the nominations of judicial and non-judicial appointees to the Sentencing Guidelines Commission, which has lacked a quorum for several years. It is our hope that a re-constituted Commission will successfully address the many inequities in the current sentencing regime not only through Guidelines amendments but also through the Commission's educational and research functions. Feel free to contact us with any insights or questions you may have.
May 13, 2021: Nicholas Kaizer, along with tax counsel Scott Ahroini, presented via Zoom, a lecture to the Suffolk County Bar Association: Taxation Law Committee, regarding how to effectively represent clients during a civil audit so that it does not devolve into a criminal prosecution. Mr. Kaizer, along with counsel Scott Ahroni, gave a similar lecture in March, 2021 to 250 New York-area accountants. He offered advice on how best to represent clients undergoing a traditional civil audit so that the auditors do not make a referral to prosecutors, where badges of fraud are present such as unreported income, unsubstantiated deductions and unexplained wealth.
July 20, 2020: Nicholas Kaizer delivered via Zoom a presentation to approximately 200 defense attorneys, hosted by the New York Criminal Bar Association and Marino Continuing Legal Services, discussing federal pretrial disposition: cooperation. Mr. Kaizer addressed the nuts and bolts of providing cooperation in a federal criminal case, including the procedure, the benefits, the costs and the pitfalls of providing cooperation. Mr. Kaizer offered insights into maximizing the benefit to be obtained by the client who is often facing cataclysmic exposure in sentencing.
June 22, 2021: Sentence reduction granted under the First Step Act. Today, Hon. Dora L. Irizarry, EDNY, granted our motion to reduce the sentence of our client Ramel Fisher pursuant to the First Step Act, making retroactive the amendments to the minimum mandatory sentences enacted under the Fair Sentencing Act. As a result, Mr. Fisher's 240-month sentence was reduced to 120 months, foreshadowing his imminent release. Judge Irizarry's decision can be read here.
May 13, 2021: Today, Richard delivered via Zoom his annual Second Circuit lecture to approximately 175 participants. You can access Richard's 2021 case supplement here and pdfs of his presentation here.
February 18, 2021: Today, the Appellate Division, Third Department, vacated the attempted murder conviction of our client, Shateek Lanier, who has been incarcerated nearly nine years. The court found that Mr. Lanier had been denied effective assistance of his appointed trial counsel. The Third Department's decision can be read here.
January 19, 2021: Today, the Hon. Allyne Ross, EDNY, granted our motion to reconsider a previous order that our client relinquish, as restitution, more than $16,500 he had been provided by friends and family while he was incarcerated, but which he had used to repay a loan, instead requiring him to pay restitution equal to 10% of his monthly income.
August 19, 2020: Today, the Hon. Sterling Johnson granted compassionate release to our client, James Dowtin, over the Government's objection, releasing him from his 15-year sentence for a narcotics racketeering conspiracy and discharging a firearm during the courts thereof. The court recognized that Mr. Dowtin suffered from various COVID-19 risk factors and that he had substantially turned his life around while incarcerated, explaining: "At sentencing, this Court encouraged Dowtin to make the most of his time in prison for himself and for his family. By all accounts it appears he has done so. Levitt & Kaizer associate Zach Segal assisted in the preparation of Mr. Dowtin's motion papers.has done so.
December 2019-January 2020: Richard just returned from the People's Republic of China, which he visited as part of a workshop sponsored by the New York University Law School U.S.-Asia Law Institute (Ira Belkin, Executive Director), exchanging views and experiences with criminal defense lawyers, prosecutors and judges regarding plea bargaining in our respective countries. A wonderful trip and provided an opportunity to become re-acquainted with many Chinese colleagues from our last trip and to meet many new ones.
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