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Federal Criminal Practice Institute October 17, 18Th and 19Th 2013

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Federal Criminal Practice Institute October 17, 18Th and 19Th 2013 E TUT I FEDERAL CRIMINAL ST PRACTICE INSTITUTE Prepared in connection with a Continuing Legal Education course presented N at New York County Lawyers’ Association, 14 Vesey Street, New York, NY presented on Thursday, Friday and Saturday, October 17, 18 & 19 2013. P ROGR A M C O - S P O N SOR : Federal Bar Council P ROGR A M C O - C H ai RS : Mark B. Rosen, Esq., John Jay College of Criminal Justice, and Richard Albert, Morvillo Abramowitz, Grand, Iason & Anello, P.C P ROGR A M F ac U L T Y : Marc Agnifilo, Brafman and Associates, P.C.; Richard Albert, Morvillo, Abramowitz, Grand, Iason & Anello, P.C.; Robert Anello, Morvillo, Abramowitz, Grand, Iason & Anello, P.C.; Marcus Asner, Arnold & Porter; Michael Bachner, Bachner & Associates, PC; Prof. Anita Bernstein, Brooklyn Law School; Hon. Frederick Block, USDC, EDNY; Steve Bojekian, Ret. Bergen County Sheriff’s Office; Benjamin Brafman, Brafman and Associates, P.C.; Hon. Margo Brodie, EDNY; Susan Brune, Brune & Richard, LLP; Prof. I. Bennett Capers, Brooklyn Law School; Joel Cohen, Stroock; Andrew Donofrio, Cyberology Consultants; Steven J. Hyman, McLaughlin & Stern, LLP; James Glasser, Wiggin and Dana; Hon. John Gleeson, USDC, EDNY; Hon. Steven Gold, USDC, EDNY; Bruce Green, Fordham Law School; Hon. Robert M. Levy, EDNY; Parisa Karaahmet, Fragomen Worldwide; Jonathan Kolodner, Cleary Gottlieb Steen & Hamilton, LLP; Seth Levine, Levine and Lee; Barry Leiwant, Federal Defenders; Glen McGorty, Crowell and Moring, LLP; Marshall Miller, US Attorney, EDNY; James A. Mitchell, Ballard Spahr Stillman & Friedman LLP; Brian Morris, Assistant US Attorney, Deputy Chief, Asset Forfeiture, EDNY; Thomas E. Moseley, Esq.; Marjorie Peerce, Ballard Spahr Stillman & Friedman, LLP; William Pollard, Kornstein, Veisz, Wexler and Pollard; Carolyn Pokorny, US Attorney’s Office, EDNY; Henry Putzel III, Esq.; Peter Quijano, Quijano & Ennis; Anthony S. Ricco, Esq.; Mark Rosen, John Jay College of Criminal Justice; Hon. Richard Sullivan, SDNY; Jeremy Temkin, Morvillo, Abramowitz, Grand, Iason & Anello, P.C.; Jocelyn Strauber, US Attorney’s Office, SDNY; Peter Valentin; Alan Vinegrad, Covington & Burling LLP NYCLA-CLE I 17 TRANSITIONAL & NON-TRANSITIONAL MCLE CREDITS: This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 17 Transitional & Non-Transitional credit hours: 3 Ethics; 6 Skills; 8 PP/LPM This program has been approved by the Board of Continuing Legal Education of the Supreme Court of New Jersey for 17 hours of total CLE credit. Of these, 3 qualify as hours of credit for Ethics/Professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal trial law, workers compensation law and/or matrimonial law. Information Regarding CLE Credits and Certification Federal Criminal Trial Practice Institute October 17, 2013; 6:00 PM to 7:30 PM The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution. i. You must sign-in and note the time of arrival to receive your course materials and receive MCLE credit. The time will be verified by the Program Assistant. ii. You will receive your MCLE certificate as you exit the room at the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium. iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate. iv. Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week. v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week. Thank you for choosing NYCLA as your CLE provider! \ New York County Lawyers’ Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646 2013 Federal Criminal Practice Institute October 17, 18th and 19th 2013 AGENDA Thursday, October 17, 2013 5:30 PM – 6:00PM Registration 6:00 PM – 6:45PM Reception and Social Hour 6:45 PM - 6:55PM Welcome and Introduction Program Co-Chairs: Mark Rosen, Esq., John Jay College of Criminal Justice; Richard F. Albert, Esq., Morvillo Abramowitz Grand Iason & Anello, P.C. 6:55 PM – 7:45PM Representing the Immigration Defendant Post Padilla Parisa Karaahmet, Fragomen Worldwide Thomas E. Moseley, Esq. 7:45 PM- 8:00 PM Questions and Answers Federal Bar Council October 17, 2013 IMMIGRATION RED FLAGS FOR CRIMINAL LAWYERS Parisa Karaahmet, Esq. Thomas E. Moseley, Esq. Fragomen, Del Rey, The law firm of Bernsen & Loewy, LLP Thomas E. Moseley 1 Your Noncitizen Client Has an Arrest: What should you do? Supreme Court Decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), imposes an affirmative duty on criminal counsel The Supreme Court ruled that criminal defense lawyers must warn their clients of immigration consequences of a guilty plea Criminal defense counsel should make it a practice to consult with immigration counsel to obtain a complete analysis of the immigration consequences of the charges 2 Questions to Ask Your Client Are you a U.S. Citizen? If no, request information and documentation regarding client’s status (if any) in the U.S. Criminal Attorney must be aware of the potential for immigration consequences 3 1 Questions to Ask Your Client Are you a U.S. Citizen? If Yes, further analysis may still be required Ask: Were you born in the U.S.? If no, confirm that client is, in fact, a citizen (ask to see U.S. passport or certificate of naturalization) If yes, client is a U.S. Citizen; TIP: Could your client be a citizen and not know it? • Automatic Acquisition of Citizenship after Birth when (1) Under 18; (2) LPR; (3) one parent naturalized 4 Overview of Involved Immigration Agencies Immigration and Customs Enforcement (ICE): ICE is the arm of the Department of Homeland Security (DHS) responsible for the investigation and enforcement of federal immigration laws. ICE’s Office of Detention and Removal is responsible for ensuring that deportable aliens are removed from the country. Customs and Border Protection (CBP) oversees border control. U.S. Citizenship and Immigration Services (USCIS), oversees lawful immigration to the United States. 5 Coming to the Attention of ICE Arrest Imprisonment Airport Entry Application for Immigration Benefits Filed with USCIS 6 2 ICE Detention ICE can arrest an individual for an immigration violation. ICE may detain the individual for up to 48 hours, or longer if “extraordinary circumstances” or an “emergency” permits. See 8 C.F.R. § 287.3(a)-(d). If an individual is arrested by another law enforcement agency, ICE may file an immigration detainer (Form I-247) indicating the intent to assume custody of the individual for removal. See 8 C.F.R. § 287.7. 7 ICE Detention ICE interviews the individual and determines whether to bring removal proceedings. 8 C.F.R. § 287.3(d) Individual may be released on bond or own recognizance provided not subject to mandatory detention for criminal and terrorist related grounds (i.e. crimes of moral turpitude, federal drug offenses, etc.) See 8 C.F.R. § 236.1(c). Immigration bonds are set by DHS. Initial custody and bond determinations (eligibility/lowering) can be challenged. See 8 C.F.R. § 236.1(d). 8 Definition of “Conviction” for Immigration Purposes Consider the potential immigration consequences and determine whether the outcome will constitute a conviction for immigration purposes under INA §101(a)(48)(A) Pursuant to INA § 101(a)(48)(A), the term “conviction” means, with respect to an alien (noncitizen), a formal judgment of guilt of the alien, or: 9 3 Definition of “Conviction” for Immigration Purposes If adjudication has been withheld, where (i) a judge or jury has found the noncitizen guilty or the noncitizen has entered a plea of guilty or nolo contendre (no contest) or has admitted sufficient facts to warrant a finding of guilt; and (ii) the judge has ordered some form of punishment, penalty, or restraint on the noncitizen’s liberty to be imposed. 10 Definition of “Conviction” for Immigration Purposes Some pre-plea or diversionary programs do not amount to a conviction New York’s Adjournment in Contemplation of Dismissal (“ACD”) statute, NYCPL § 170.55, does not meet the definition of “conviction”: No plea is taken on the issue of guilt; No finding or judgment of guilt; and Failure to meet conditions of ACD only means case will proceed as usual. 11 Definition of “Conviction” for Immigration Purposes However, deferred adjudications are “convictions” where statutory definition is met: For example, Defendant pleads guilty and the court orders an imposition upon liberty, such as probation, with dismissal predicated upon satisfactory completion.
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