Fordham Law


Switch to federal jurisdiction for Bernie Fine investigation could mean stiffer penalties, no chance for plea bargain

James Cohen in Syracuse.com, December 01, 2011

Media Source

Syracuse, NY -- When federal authorities took control of the sexual molestation investigation of Bernie Fine last week, the case took an extremely serious turn for Fine, legal experts say.

Federal laws involving the types of crimes alleged against Fine generally carry significantly greater punishments than state laws. The federal laws also have more liberal statutes of limitations, allowing accusers more time to bring their allegations to court. And federal authorities have access to far greater resources and expertise than local prosecutors.

Experts also say the feds have wide latitude in how they can present a case in court — along with an aversion to bargaining down charges or sentences. “We switch to a whole other universe when we start to look at federal law,” said Cynthia Bowman, a professor at Cornell University Law School.

“You ought to be very nervous when the feds come in,” Fordham Law School Professor James Cohen said. “They bring a very big gun.”

Three men have alleged that Fine, who was fired Sunday as Syracuse University’s associate head basketball coach, molested them. Although both the federal and state statutes of limitations appear to have run out for two of the men, the allegations involving the third, Zach Tomaselli, appear to be clearly within the federal statute. No charges have been filed against Fine, and he has strongly denied the allegations.

Onondaga County District Attorney William Fitzpatrick was ready to take the lead on the Fine case when the U.S. Attorney’s Office stepped in. Given the allegations that have come to light, that’s potentially bad news for Fine.

Under New York law, “forcible touching” and second- and third-degree sexual abuse of adolescents are misdemeanors with jail sentences of up to a year. If the child is younger than 13, some sex crimes against children that fall short of rape or other penetration can rise to Class D felony status, where prison sentences can run from two to seven years.

Under federal law, a person convicted of transporting children across state lines with the intent to engage in sexual activity would face a mandatory minimum sentence of 10 years. Depending on the circumstances, a sentence could be far longer than that — with a potential maximum of life in prison.

“The disparities are, in some situations, shocking between the state and federal,” Syracuse attorney Emil Rossi said.

In addition, the federal statute of limitations allows prosecutions much further beyond the date of the crime than New York’s does. In New York, the statute in most cases is two years for a misdemeanor and five years for a felony, with the clock starting when the victim reaches age 18.

The federal statute, which was strengthened by Congress in 2003, allows a case involving sexual abuse to be brought at any time during the victim’s lifetime. In practice, however, federal authorities don’t prosecute cases in which the old statute of limitations already had run out before 2003.

The previous statute allowed prosecutors to bring cases until the victim reached age 25. Because Fine accusers Bobby Davis and Michael Lang were both well older than 25 when they notified police of their alleged abuse, they will likely not get their day in court.

In the case of Tomaselli, however, the switch to federal prosecution appears to allow him to go forward. Under New York state law Tomaselli, who turned 23 on June 13, would likely not have been able to pursue his case.

Tomaselli’s allegations could be pursued under Pennsylvania law. He alleges he was abused by Fine in a Pittsburgh hotel room in 2002. Pennsylvania’s statute of limitations is far more liberal than New York’s, allowing victims of sexual abuse to bring charges until they reach age 50.

Tomaselli said he spoke on the phone to a Pittsburgh police sergeant about his allegations for about 15 minutes Wednesday. Pittsburgh police said they plan to contact the U.S. Attorney’s Office while deciding whether to initiate an investigation of their own.

Federal authorities in Syracuse searched Fine’s Fayetteville home last week and his SU offices Tuesday. Depending on the specifics in the affidavit federal authorities presented to the judge to get the search warrant, the search could include examination of Fine’s computers, telephone records, credit card statements and various other “containers” of information.

The U.S. Secret Service, which has special expertise in computers, was part of the search. If evidence of wrongdoing were found in Fine’s computer, the U.S. Attorney’s Office could claim federal jurisdiction simply by proving that the computer was manufactured out of state.

Here again, the federal hammer in child pornography cases generally comes down harder than the state, experts say. If it can be shown that a suspect created the pornography, such as taking photos and putting them on his computer, things get even worse. “Federal court is a far more dangerous place for a person to be prosecuted in terms of the consequences and the outcomes that are possible,” Syracuse attorney Robert Wells said.

And it’s a much harder place to get a break, attorneys and legal scholars say. In state court, for instance, defense attorneys are often encouraged to take part in a pretrial conference to discuss the possible range of sentencing that could be imposed. In federal court, such “sentence bargaining” is prohibited.

“There is a lot more risk and uncertainty in a federal plea than there is in a state plea, no question about it,” Rossi said.