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Client Freed from Illegal Sentence

October 30, 2018

Happy November!   We are thankful to share with you how we were able to save taxpayers thousands of dollars and bring justice to our client, who was severely wronged by the court on 4 counts.     In 2007, in the United States District Court for the District of Columbia (D.D.C), long before we were her attorneys, a Middle Eastern woman, pleaded guilty to seven felony counts of conspiracy to smuggle aliens into the United States.  She was sentenced by a federal judge to 10 years’ prison with an additional 10 years of supervised release.   Our client’s attorney at the time and the prosecution both agreed to this plea deal while the judge imposed the sentence.  Somehow, neither the defense lawyer, prosecution, judge, nor probation officer realized the glaring oversight in this agreement: the statute for which our client was charged declares that the maximum period of supervised release is only three years, seven years less than the period our client was given.  As a result, our client was expected to sacrifice seven years of her freedom to promote the carelessness of a skewed justice system.   While she was in prison, our client filed multiple pro se (without counsel) motions under 28 U.S.C. § 2255 to be released based upon the ground that her sentence was imposed in violation of her Constitutional rights.  In her motions, our client argued that she should be released because her counsel was ineffective and deficient, her sentence was greater than necessary, and that she was never even shown the plea deal.  Each motion was denied.   She solicited several attorneys, none of whom would take her concerns seriously. Then, when she was just out of prison, she came to us. Our client wanted someone who was not afraid to challenge the government. Based on our reputation, she knew she came to the right place.   What our client did not know at the time was that her sentence was not only unreasonable, but it was also illegal. Our task, then, was to determine how best to remedy her situation. We determined three potential options: 1) file a successive motion under 28 USC § 2255; 2) seek a habeas writ under 28 USC § 2241(c); or 3) seek a writ of coram nobis.   Because our client had already filed at least two motions under § 2255, we were procedurally blocked from filing another 2255 motion. We could have argued that the motion was timely because the illegality of the sentence was only recently discovered, but the Court was extremely unlikely to accept this premise. The same was true of seeking a writ of habeas corpus. Our best option was thus to seek a writ of coram nobis.  A writ of coram nobis allows the federal judge who imposed the original sentence to set aside the existing conviction and sentence which, for a valid reason, should never have been entered.     In order to seek a writ of coram nobis, one must satisfy four conditions, the last of which is proving that there exists an error of “fundamental character” with the original conviction or sentence. The error for our client was clear–her sentence exceeded the maximum term of supervised release authorized by law, however, we […]

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Cleared in Cybercrime Probe, Innocent Granddad Sees First Grandkid Born

Cleared in Cybercrime Probe, Innocent Granddad Sees First Grandkid Born

April 23, 2018

  We are thrilled to announce that the Department of Justice’s National Security and Cyber Crime Section has agreed to discontinue their investigation of our client. This welcome news came just in time for the birth of his first grandchild! After a year of our client enduring the constant threat of arrest and being unable to visit his children in India, we convinced the DOJ to drop their investigation altogether. Background 70-year-old Indian-American scientist fired after his company accused him of stealing trade secrets —  the FBI then executed a search warrant on his home Our client, who we shall call “Dr. Patel” is a 70-year-old American, of Indian origin, with heart issues whose family had been begging him to retire for years. At the time of the investigation, Dr. Patel had dedicated over 40 years of his life to science. He is a PhD scientist who has authored over 50 research publications. Dr. Patel loved his work, but wanted to retire with his family and explore more personal projects related to energy, technology, and other humanitarian interests including converting solid waste into electricity. He had planned to return to India where his extended family lived, and where, as a poor child, he studied under street lights at night to gain admission to the the top universities. With only a few months left before his retirement, Dr. Patel was abruptly fired by his employer who accused him of stealing their technology and trying to flee the country with it.  The company primarily did business in China, but had been unprofitable for the past few years.  Dr. Patel, who owned a significant number of the company’s shares, wanted to explore expanding the company’s operations to India.  The company’s CEO disagreed with Dr. Patel’s India expansion idea and then complained to the FBI that he was trying to steal their trade secrets. The FBI subsequently showed up at 6 am on a Friday morning banging on Dr. Patel’s door.  Dr. Patel who was sipping his morning chai with his wife, opened the door and allowed the agents inside.  The FBI questioned our client and his wife while they were in pajamas.  They took all of his personal computers and mobile devices, and those belonging to his wife, who never worked at the company.  The FBI also seized their passports. At this point, Dr. Patel was not only deprived of his personal belongings and restricted from traveling, but he also had to cope with the crippling stress of potential criminal charges for a crime he didn’t commit. Dr. Patel endured several panic attacks over the course of the year due to the anxiety of the investigation. Throughout his entire life, his integrity had never been questioned. Dr. Patel, like other innocent people accused, couldn’t understand why the government or anyone would believe he would commit such a crime. THE CASE AGAINST OUR CLIENT Queen for a Day Fiasco The government did not believe Dr. Patel planned to retire in India. They thought instead that he wanted to set up his own operations in India using the “stolen” trade secret to profit from the technology he, himself, created in the United States. The government believed Dr. Patel saw the […]

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When Cheating is Legal

When Cheating is Legal

March 26, 2018

New York State’s “Blindfold Law” is legalized cheating for the DA.  New York’s discovery rules allow prosecutors to withhold discovery and potentially exculpatory evidence for the defendant—evidence that could clear the defendant—until the eve of trial.  This means a defendant (and his attorney) can enter trial unaware of the evidence that may be used against him by the government and without evidence that may be integral to his defense, including the simple fact of his accuser’s identity. Simply put, the defense is blindfolded.   How, you might ask, can someone defend themselves against supposed “evidence” if they don’t even know what that evidence is? Well, for the most part, they don’t, because the prosecution uses this blindfold tactic to pressure defendants into taking guilty pleas. As reported by the New York Division of Criminal Justice Services, an astounding 98% of felony convictions are the result of plea deals. And that is not, I can assure you, because 98% of those defendants are guilty beyond a reasonable doubt (the standard of proof at trial), but instead because they feel the pressure of a system stacked against them and see no other way out than to accept a higher deal than they may deserve. Even if the government’s evidence is weak, the mere fact that they are not obligated to disclose it to the defendant means they can easily fool him into believing that what they have is stronger than it is. This “blindfold law” enables the government to intimidate vulnerable defendants into signing a plea, securing themselves a conviction that may not have resulted if the case had gone to trial. Furthermore, when a case does go to trial, what often ensues is a trial-by-ambush. For perspective, let me tell you about a trial we had in 2015 in New York County. After months of litigation, the day before trial, the prosecutors sent over a stack of discovery documents that would rival the page count of Tolsoy’s War and Peace—not a quick one-night-ready-for-trial-read. We asked the Judge for time to review the documents—a reasonable request seeing that reviewing discovery is necessary to properly defend any client. Our request was denied, the trial proceeded, and the government presented evidence we hardly had time to review, let alone to counter. This was a trial that haunts me to this day because it is a trial we should have won. Had the government sent the discovery documents in the ample time they had to do so, we could have. This ambush would never happen in civil court, where each side is required to comply with the standard of complete transparency. Before either side even steps foot in the civil courtroom for trial, they have each reviewed every document and piece of evidence gathered by the other side and have had the opportunity to depose every witness. A civil lawyer would never dream of settling a suit or taking it to trial without having done so. In fact, if an attorney tried to withhold discovery in civil court, both the receiving attorney and the Judge would be up in arms because it would be considered outrageous, yet this is the norm of criminal court, […]

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The Most Dangerous Man In America

The Most Dangerous Man In America

March 7, 2018

The most dangerous man in America doesn’t sit atop the FBI’s Most Wanted list, but instead runs arguably the most powerful institution of our federal government—the Department of Justice.  Jeff Sessions, as United States Attorney General, has virtually unchecked power to cater the policies of the DOJ to fit his own agenda, and these policies affect everyone. The Attorney General is answerable only to the laws passed by Congress and to the President, who has the sole authority to hire or fire him. While the President’s tweeting habits may indicate he is tightening Sessions’ leash, for all of Sessions’ activity that doesn’t pertain to Mueller’s Russia investigation, the President has largely turned a blind eye. This tacit disinterest leaves Sessions with free reign over the DOJ, able to interpret the law however he sees fit. This power, in the hands of Jeff Sessions, is lethal to the last century of our country’s progress. Sessions wishes to reinstate antiquated policies mirroring those in place before the Civil Rights movement and in the heyday of the War on Drugs. History can tell us why this is a bad idea. To do so, despite his purported conservative “small government” policies, Sessions has been quietly, yet significantly, expanding the reach of the federal government, against the wishes of most American citizens. His dogged and irrational pursuit of marijuana-related crime disproportionately targets African-American neighborhoods for criminal activity and increases medical reliance across America on prescription opioids for those who would alternatively utilize the much safer and less addictive medical marijuana for pain management. His emphasis on “violent crime” diverts necessary attention from the prosecution of other prolific criminal arenas such as white-collar and cybercrimes that can and do have devastating consequences on American lives, as well as our democratic system. On top of all of this, his enthusiasm for debtor’s prisons and his call for reduced oversight of police departments, despite repeated documented police shootings and abuses of power by police officers, will lead to an assured curtailment of citizens’ civil rights. Because the American people overwhelmingly disapprove of harsher marijuana restrictions and expanding federal overreach, Sessions’ policies have received inevitable bipartisan condemnation, with criticism spouting from even the notoriously conservative Koch brothers. Recently, a bipartisan group of 54 lawmakers in Congress sent President Trump a letter urging him to direct Sessions to reinstate an Obama-era policy that gave states leeway in allowing marijuana for recreational purposes.  Despite Sessions’ claim that by pursuing strict enforcement of federal marijuana laws he aims to “enforce the laws that were enacted by Congress,” his policies are clearly not in line with the desires of Congress, who, short of changing the law, has little say in how the criminal statutes written by its predecessors are construed. In his Department Charging and Sentencing Policy memo for all federal prosecutors released in May of 2017, Sessions called on prosecutors to “charge and pursue the most serious, readily provable offense.” His primary objective seemed to be that of reversing the directives of his predecessor, former AG Eric Holder, who urged prosecutors to apply discretion when considering what charges to bring against a defendant to avoid unnecessarily harsh sentences disproportionate to the crime committed. Holder recognized a disparity between those offenders who may have made a wrong decision, or were simply in the wrong place at the wrong time, as opposed […]

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Vinoo Varghese's Reflections on NY Times Op-Ed: "Aziz Ansari Is Guilty. Of Not Being a Mind Reader."

Vinoo Varghese’s Reflections on NY Times Op-Ed: “Aziz Ansari Is Guilty. Of Not Being a Mind Reader.”

January 29, 2018

The writer of this op-ed, Bari Weiss, highlights a critical problem with the #metoo movement: “the insidious attempt by some women to criminalize awkward, gross and entitled sex takes women back to the days of smelling salts and fainting couches.” Boom. As a criminal defense attorney, I see a bigger problem with the attempt by some women like Aziz’s accuser to criminalize that which isn’t—the loss of the presumption of innocence. The presumption of innocence is a nice concept in theory, but not for those ACCUSED of a sexual assault. Then it’s you’re guilty and you should just die. In nearly 20 years of practice, I have seen too many innocent men suffer tremendous damage to their reputation, livelihood, and sanity by false accusations. And, as in this “case” against Aziz, I have seen too many accusers who have embraced the blame culture for their buyer’s remorse instead of holding themselves personally responsible for poor choices. I thought America was the land of the free, but not when you have a bad date. Here’s the link: https://www.nytimes.com/2018/01/15/opinion/aziz-ansari-babe-sexual-harassment.html

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Terrorists Should Be Read Their Miranda Rights, Too

Terrorists Should Be Read Their Miranda Rights, Too

November 16, 2017

Terrorists who commit crimes on American soil are not foreign soldiers.  To treat them as soldiers is to dignify them in a way they don’t deserve—as part of something larger—a nation state at war with American ideals and America itself.  Instead, they are criminals deserving the same and no more respect than that afforded by the Constitution.  To treat them as soldiers reinforces the false notion that Islam and America are at war, perpetuates rifts that plague our society, and further incentivizes radicals.  We must not buy into the rhetoric of a global religious war—us against them—and sacrifice the very principles and ideals that serve as the very foundation of our nation—including the right to remain silent and the right to counsel in a criminal case.  If we abandon these—our values, our commitment to freedom and fairness—then we might as well give up and let these terrorists win. In the wake of the TriBeCa car attack on October 31st, Senators Lindsey Graham and John McCain, along with Press Secretary Sarah Huckabee Sanders, called for Sayfullo Saipov to be labeled and held as an “enemy combatant.”  To their disappointment the Trump administration didn’t take such action and the Acting U.S. Attorney in Manhattan instead formally charged Saipov under federal criminal law.  When someone is held as an enemy combatant, he is not afforded the same rights as everyone else charged under the federal criminal code, and he may never be formally charged and Mirandized.  Advocates of enemy combatant labeling believe that reading a suspected terrorist Miranda rights, and have him potentially invoke his right to an attorney and remain silent, will impede the United States from properly interrogating him and gathering beneficial information on others.  While there is always the risk of lawyering up, there is  strong evidence to suggest that torture doesn’t work as an interrogation tool. The Bush Administration, after 9/11, held suspected terrorists as enemy combatants as part of the “war on terror” against al Qaeda.  With this policy, President Bush stretched the definition of “war” and manipulated it to suit a dubious agenda that included torture and having White House lawyers attempt to justify it, as well as conducting warrantless searches on Americans, despite having the opportunity to use a secret court, FISA, set up specifically for obtaining warrants without opposition.  By labeling the hostility with al Qaeda as a “war” within the larger context of the “War on Terror,” Bush then claimed that domestic criminal law would not suffice for proper prosecution of al Qaeda’s agents, aka “terrorists.”  President Bush also claimed that the “war” with al Qaeda was a special type of war and therefore adherence to the rules set by the Geneva Convention of 1949, which contain rules limiting the barbarity of war, was unnecessary. The legality of holding suspected terrorists claiming ISIS affiliation, like Saipov, as “enemy combatants” is further questionable because ISIS, unlike al Qaeda, isn’t covered by the 2001 Authorization of the Use of Military Force, which Congress authorized to be carried out exclusively against those involved with the 9/11 attacks and any “associated forces.”  ISIS was not associated with al-Qaeda and had no part in the 9/11 attack, as it didn’t exist in 2001.  The policy of holding suspected terrorists as enemy combatants, however, […]

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Kevin Spacey is Clarence Darrow: What We Can Learn From the "Attorney for the Damned"

Kevin Spacey is Clarence Darrow: What We Can Learn From the “Attorney for the Damned”

June 27, 2017

  To be an effective criminal defense counsel, an attorney must be prepared to be demanding, outrageous, irreverent, blasphemous, a rogue, a renegade, and a hated, isolated, and lonely person – few love a spokesman for the despised and the damned. These words of Clarence Darrow (1857 – 1938), America’s most famous trial lawyer, transcend time.  The challenges Darrow confronted in and outside the courtroom over 100 years ago are the same for criminal defense attorneys today. Dubbed the “attorney for the damned,” Darrow represented the innocent and the depraved, the wealthy and the penniless, all the way defending each the same because he believed that every human life was worth saving.  His efforts helped spare 102 defendants the death penalty.  Darrow pleaded with judges and jurors that only by overcoming hate with love and by employing logic and reason instead of contempt and prejudice, could we hope to progress as a society and fulfill our human potential for greatness. Darrow did not claim to be righteous or wise; he was aware of his own misgivings, believing he, like all men, were capable of doing both well and ill.  He was agnostic, believing the fallibility of human knowledge prevented the certainty of God’s existence.  That said, his firm belief in human mortality and the indivisible nature of the human spirit fueled his relentless efforts to bring civilization to a higher level and distinguished his place in American history as a formidable champion for life. Just over a week ago, our team at Varghese & Associates had the privilege of experiencing Kevin Spacey bring Darrow’s story to life in a one-man show performed in Arthur Ashe Stadium at the US Tennis Center in Queens.  For 90 minutes, Spacey breathtakingly recounted some of Darrow’s most renowned cases and delivered bits from the great speeches Darrow used to win over the hearts and minds of juries, judges, and the public. Spacey first walked us through Darrow’s representation of Eugene V. Debs, arrested on conspiracy charges for organizing the American Railway Union strike in 1893.  Darrow delivered a pointed, principled description of the restrictive, oppressive nature of the conspiracy statute that unfortunately still holds true today: Conspiracy from the days of tyranny in England down to the day the railroads use it as a club, has been the favorite weapon of every tyrant. It is an effort to punish the crime of thought. If there are still any citizens interested in protecting human liberty, let them study the conspiracy laws of the United States which have grown until today no one’s liberty is safe…This is not the first time that evil men—men who are themselves criminals—have conspired to use the law for the purpose of bringing righteous ones to death or jail! Darrow said Debs’ case would be an historic one, serving as a reminder that the law, simply because it is written, is not necessarily just.  Darrow believed that citizens needed to fight to preserve liberty against those who would infringe upon it. Fighting to preserve liberty is the work of a criminal defense lawyer and so is the necessity of sometimes defending […]

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When the Villain Has a Badge

When the Villain Has a Badge

June 13, 2017

In the 1980s and 1990s, Louis Scarcella was the best homicide detective in New York City.  In an era demanding law enforcement to be tough on crime, Scarcella, well-dressed and charismatic, made a name for himself by solving some of the most high-profile murders.  Scarcella charmed witnesses and juries and easily secured confessions and convictions.  Scarcella was said to be able to get things the other detectives couldn’t.  In 1990, one of these investigations led Scarcella to David Ranta, who was convicted for shooting holocaust survivor and Hasidic rabbi, Chaskel Werzberger—Mr. Ranta got a life sentence.  At the time, no one stopped to consider whether his investigations were too good to be true.  After all, the Brooklyn DA’s office needed to demonstrate they were doing something about crime and Scarcella was serving them murderer after murderer on a shiny silver platter.  With each conviction, the DA was one step closer to appeasing the public panic brought about by the crack epidemic plaguing the streets of New York.   Twenty years later, public attitude has somewhat shifted as there has been some focus on wrongful convictions and a push to reform the criminal justice system.  In response, in 2011, the Brooklyn District Attorney’s office under Charles Hynes established its “Conviction Integrity Unit” (CIU) to review potentially problematic cases.  Many questions had surfaced surrounding several of Scarcella’s cases and the DA’s office announced it would review over fifty cases in which Scarcella played a chief role in the conviction.  So far, seven of these convictions have been overturned.  Scarcella manipulated the investigations to fit his narrative and send his suspects to prison, guilty or not. In 2013, David Ranta, after 23 years in prison, became the first of the Scarcella defendants freed.  The Brooklyn DA’s office concluded that Scarcella’s investigation did not add up, that Ranta did not belong behind bars, and asked a judge to release him.  Multiple convictions were then overturned.  As it turned out, Scarcella coerced or falsified confessions, and bribed or blackmailed witnesses to lie on the stand.  Some of these defendants said Scarcella beat them until they signed a confession, others that he manufactured it altogether.  Witnesses reported they were threatened with perjury, jail, and even losing their children, if they did not say what Scarcella told them to say.  Notably, Scarcella also relied on the testimony of one crack-riddled prostitute, Teresa Gomez, as his star witness in at least four different murder trials. Mr. Ranta was convicted despite a lack of physical evidence connecting him to the murder; his conviction stemmed instead from witness accounts and a confession, all of which since appear to have been coerced or plainly falsified by Scarcella.  An eyewitness testified that he was told by a detective—Scarcella was the lead detective on the case—to pick the man with “the big nose” out of a lineup, with Ranta being the only one fitting that description.  Two other witnesses admitted to explicitly lying in exchange for clemency in their own unrelated cases, and said that Scarcella had even accommodated them by having them leave jail to smoke crack and have sex with prostitutes in exchange for their testimony.  Mr. Ranta himself steadfastly maintained that Scarcella […]

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Bill O'Reilly, Bill Cosby, and the Endangered Species Known as Men

Bill O’Reilly, Bill Cosby, and the Endangered Species Known as Men

May 23, 2017

Happy May! With the recent firing of Bill O’Reilly, the sordid tales of Bill Cosby and the “punishment” of the Stanford swimmer, the media has drawn massive attention to those accused of sexual misconduct and painted a terrible picture of these men, perhaps justifiably.  We here at Varghese & Associates wish, however, to highlight the plight of the many men whose lives have been devastated by false allegations of sexual misconduct.  Unless they have us defending them, these men are at risk of becoming an endangered species.  We highlight the problems men face by telling you about how we recently prevented the arrest of a client accused of sexual assault who we shall call “John.”  As you read this, remember that John could be your son, your brother, or your friend.  John is a successful, single man in his early 30’s.  John met a young woman about his age through his participation in a ballroom dancing league here in the City and they began a three-night sexual relationship in December.  Despite never calling her his “girlfriend,” the woman began texting John at all hours of the night.  One night, she showed up at his apartment unannounced at 3 am. John shared the apartment with two female roommates. After the woman woke everyone up by repeatedly ringing the bell, John’s roommates told her to leave John alone or they would call the police.  After that episode, he made it clear to the woman that he never wanted to see her again. Despite ending their “relationship,” the woman continued to text him telling John of her unyielding affection for him.  When they would run into each other at ballroom dancing events, she made it extremely uncomfortable for him.  At one event, she bumped into him, spilling wine all over his shirt.  At another one, she followed John into the men’s room screaming at him over how he had broken her heart. At a third, when John wanted to leave after seeing her, she followed him for several blocks until he eluded her by running into a subway station. Finally, John, despite loving ballroom dancing, stopped attending these events. The woman then took to disparaging him on Facebook, including on their group ballroom dancing page.  On her personal Facebook page, she started tagging John and linking him to articles about rape, including a New York Times article called “When a Rapist’s Weapon is a Drug.” After he didn’t respond, she sought a restraining order in New York County Family Court against him.  In her petition, she claimed that John had raped her multiple times and listed dates of these alleged rapes.  On Facebook, she posted pictures of her inside the Family Court along with a photo of her petition. You may ask why Family Court?  Several years ago, New York State legislators expanded the jurisdiction of the Family Court to allow those who had been in an “intimate relationship” to file for orders of protection aka restraining orders.Despite our client’s innocence, his reputation suffered due to her Facebook posts, and her public berating of him at the ballroom dancing events. John was forced into social isolation.  His word was no match for […]

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A Christmas Story: Our American Client Freed From Brazilian Prison

A Christmas Story: Our American Client Freed From Brazilian Prison

December 21, 2016

Happy Holidays! We are thrilled to announce that we were able to help free our client — just in time for Christmas and the New Year! After serving over three brutal years in prison, mostly in Brazil awaiting extradition to the United States, we were able to show a Manhattan federal judge why she should give him time served. Our client, an American citizen, had been living and working in Brazil for some time with his wife. While there, the United States Attorney’s Office for the Southern District of New York obtained through the State Department an extradition warrant for him to face financial crimes charges. While awaiting extradition, the Brazilian federal police incarcerated him, and the Brazilian court system held him for nearly three years. Our client wasn’t fighting extradition, but instead was left in diplomatic limbo as the American government squabbled with the Brazilian government over the extradition of our client. Vinoo Varghese, our principal, visited our client at the São Paulo Polícia Federal Jail and met with him to prepare for his defense in New York federal court. While waiting to be extradited, our client endured horrifying living conditions such as freezing temperatures in his cell, solitary confinement 23/24 hours a day, spoiled food, and fierce intimidation by both prison staff and gangs. He suffered severe insomnia, drastic weight loss and lived in constant fear of death. Weekly visits from his loving wife were his only solace. Our client returned to the United States a shell of his previous self, emaciated, and timid. Yet, the battle wasn’t over. He still faced up to another 17 years in jail, but we believed that he shouldn’t be incarcerated another day. So, we put together a sentencing mitigation package that the federal prosecutor said was the best he had ever seen. This package contained letters from numerous friends, colleagues, family members, and others including a Naval Officer, who came and spoke on our client’s behalf at the sentencing hearing. We also submitted reports from Human Rights Watch and The Economist about the deplorable conditions of Brazilian prisons. We were able to convince the judge that our client had suffered enough and she ordered him released and sentenced him to time served. A short while later, he was finally reunited with his wife, just in time for Christmas and the New Year. We are elated that our client is now able to resume his life with his wife as a free man. Our client embracing his wife as a newly freed man! Jailhouse in São Paulo, Brazil where Vinoo visited our client From the Team.

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