RECENT COURT OF APPEALS DECISION: CONSTRUCTIVE POSSESSION REVERSAL

In VINCENT PANNELL v. UNITED STATES, decided on April 7, 2016, the Court of Appeals reversed a Possession of Control Substance (PCP) conviction and remanded for the conviction to be vacated as there was insufficient evidence to convict based on the theory of constructive possession. Here, the undercover Officer had pulled over a vehicle with two front seat occupants. Two PCP cigarettes were found in the middle console closer to the passenger side seat than the driver. Assuming based on that proximity that the cigarettes belonged to Pannell, he was arrested and charged while the driver without being searched was given a traffic ticket for going through a stop-sign. In order to prove constructive possession the government must show by clear and convincing evidence that the appellant knew that the PCP cigarettes were present in the car and that he had both the ability as well as the intent to exercise dominion or control over it. Constructive possession can be proven by direct or circumstantial evidence. The appellant argued on appeal that there is no dispute that Pannell knew the cigarettes were there – however there is no evidence to suggest or hint in anyway that he intended to use
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Categories: Criminal Defense.

DC DIVORCE LAWS: HIGHLIGHTS

A divorce decree cannot be granted in the District unless the following separation criteria have been met: Parties have “mutually and voluntarily” lived separate and apart from one another without cohabitation for a period of six months prior to commencing of an action or that; parties have lived separate and apart without cohabitation for a period of one year prior to commencing the action. In the second category most likely the separation has been court ordered as it would not have been “mutually and voluntary.” Thus the statute requires a legal separation before issuing a divorce decree and the legal separation is either “mutual and voluntary” for a period of 6 months or for one year if not mutual and voluntary. Parties may reside in the same household/under the same roof and deemed to be legally separated as long as they have pursued separate lives, not shared the same bed or board. Thus the statutory 6 months or the one year period legally required may be satisfied when parties reside in the same household. This arrangement however is neither practical nor advisable in a contested divorce action. It creates more problems than offer solutions and most likely take an undue
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Categories: Family Law.

BAIL REFORM ACT CONVICTION REVERSED — RECENT COURT OF APPEALS

The Court of Appeals in STERLING P. EVANS v. UNITED STATES, decided on March 17, 2016, reversed a Bail Reform Act violation conviction and remanded the matter for further consideration by the trial court. Evans was arrested and charged with possession and failed to appear for his hearing because he did not correctly remember or recollect the date of his scheduled court appearance. He believed he was due in court two days after the actual day due in court. Bench warrant was issued he was picked up on BRA charge and conviction subject of this appeal. Specifically, Evans testified and acknowledged that he signed a notice-to-return instructing him to return to court on April 2. He testified thought that he genuinely believed that he was due back in court of the 4th instead. That he had financial issues, was being evicted, and lost the notice but that he remembered the return date to be on the 4th. The BRA Statute in part states “[w]hoever . . . willfully fails to appear before any court or judicial officer as required”. The Court of Appeals held that given Evans testimony it was inconclusive whether his failure to appear was willful. The trial
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Categories: Criminal Defense.

DC PROSTITUTION-SOLICITATION LAWS

This blog expands and highlights some of the statutory penalties as well as definitions relating to prostitution, solicitation, procuring and pandering for prostitution. Prostitution is generally defined as exchange of sexual act or contact in return for money. The elements of the crime require meeting of minds. That is there must be some basic agreement offering money for sex. Often times the solicitation or prostitution charges are brought via under cover sting operation. In these operations, the decoy (police officer) entices solicitation and as soon as an agreement in principle is made to exchange money for sex, the back up team moves in for an arrest. However, often times the transaction is not legally complete, or the exchange is not sufficiently concrete meeting the elements of the crime. These arrests are nevertheless made, and charges brought. The courtroom aspect of the case can also be complicated as the complaining witness is generally the police office. There are no other witnesses to collaborate either testimony. So the trial by judge would be basically a credibility contest between the police officer and the defendant (“john”). Thus these cases require particularly higher levels of litigation skills and painstaking attention to details and a
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Categories: Criminal Defense.

DC CHILD ABUSE AND NEGLECT LAWS

This blog focuses on the DC child neglect and abuse laws and some of the procedural aspect of a court involved case. Generally a child neglect and abuse case commences with reporting of some kind to the CFSA (“Child and Family Services”). There are those who are according to the DC Neglect Statute are mandatory reporters. The school and all those involved and have contact with the child at school setting, doctor’s offices, social workers, hospitals, police officers, etc. Regardless, when a report to hotline has been made, an investigative social worker is assigned to conduct a preliminary investigation. That would involve meeting the reporter in person and discussing some of the specifics, visiting the child at the school setting to investigate child’s environment, and finally to meet with the parents and visits the home. Often times in cases when there is allegation of physical abuse, the social worker may have the child medically screened or even evaluated and Children’s hospital or other clinics or medical facilities. If the social worker determines that there is enough direct and supporting evidence to support the claim of child neglect and abuse, a court petition is drafted and filed and an initial hearing
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Categories: Family Law.

DC CHILD SUPPORT LAWS — HIGHLIGHTS

This blog highlights some of the basic DC Child Support Guidelines and the related child support calculation and obligation. Along with divorce, separation, and filing of child custody papers, invariably and eventually the child support aspect of separation has to be addressed. If the matter is court involved, that is – parties have not reached a global agreement addressing divorce, alimony, custody and support – then the court will most likely apply the Child Support Guidelines (hereafter “guidelines”) to determine each parent’s portion of support. The guidelines enumerate and provide an equitable formula to calculate support for each parent principally proportionate to income and time spent caring for the child. The guidelines allow taking into consideration factors other than income and physical custody. Such factors such as other children in care of each parent, medical/insurance expenses covered by each parent, extraordinary medical expenses, school/daycare expenses, to name a few. The court may also allow departure from the guidelines in cases where compared incomes are grossly disproportionate, there is a property settlement award enriching one parent, other dependent children in the household, extraordinary debt obligations, other child support payments received for other children, extreme hardship, etc. The court may impute income
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Categories: Family Law.

RECENT COURT OF APPEALS DECISION: REVERSAL OF BURGLARY CHARGE

The Court of Appeals in SYDNOR v. UNITED STATES decided on January 14, 2016, reversed the lower court’s burglary conviction and issued an order for the trial court to enter a judgment for unlawful entry instead. The evidence revealed that the appellant had entered a fenced construction site and had removed steal pipes from the yard. The burglary statute in part states: “whoever shall, either in the night or in the daytime, break and enter, or enter without breaking, . . . any yard where any lumber, coal, or other goods or chattels are deposited and kept for the purpose of trade, with intent to break and carry away any part thereof or any fixture or other thing attached to or connected with the same, or to commit any criminal offense, shall be guilty of burglary in the second degree.” At trial, the defense argued that because the construction material stored in the yard were not for the purpose of “trade” as they were not for sale, thus factually the evidence did not support a burglary charge and that a judgment of acquittal should be entered. The trial court disagreed holding that the phrase “goods . . . kept for
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Categories: Criminal Defense.

DC CHILD CUSTODY LITIGATION: WHAT IS THE BEST INTEREST CRITERIA

This blog highlights specifically the legal definition of the “best interest of the child” as relates to DC child custody litigation: All cases involving and relating to the children in family matters; termination of parental rights/adoption, guardianship and child custody and neglect – all invariably use the “best interest of the child” criteria as a paramount factor in the reaching the final order and the legal analysis substantiating that order. The court looks at different but similar legal elements in each family matter to define the “best interest of the child” criteria. For the DC child custody litigation in awarding physical and legal custody to one parent or jointly or shared in some fashion – – the court defines the relevant factors as such: 1)The child’s bond with each parent and the child’s desire and preference when applicable as to where he/she wants to reside. In the District the age of consent is generally 14, and thus, at that age or above the court will require and factor in heavily the child’s preference. 2) Each parent’s position/desire will be balanced as to both physical and legal custody arrangement.   Parents willingness to work with each other, conflict resolution, outcome of mediation
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Categories: Family Law.

RECENT COURT OF APPEALS DECISION: DISCLOSURE OF JENCKS/DISCOVERY

In Hernandez v. U.S. decided on January 14, 2016, the DC Court of Appeals affirmed the assault charge but remanded for further review by the trial court on the issue of non-disclosure of the Jencks material and whether a new trial would be warranted. Factually, Hernandez was charged with domestic violence assault against his girlfriend. Although she had technically denied the assault, due to some language barriers and other significant independent evidence — the trial court’s findings were affirmed on that issue alone. Specifically, an independent witness had seen the defendant choke Ms. Argueta-Avila/the complainant and then saw her fall to the ground. The Officer at the scene described the complainant frantic, shaken and crying with scratches on her chin and arms. Moreover, the record contained testimony from the complainant that every time he drinks he does this, meaning puts his hands on her. The trial court credited the complainant’s testimony that the defendant grabbed her shirt and pushed her. The trial court recognized that when she had told the police that Mr. Hernandez did not assault her — she meant that he had not hit her, but that legally there was sufficient evidence of assault. However, the Court of Appeals
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Categories: Uncategorized.

DC ADOPTION LAWS: LEGAL PARAMETERS

DC adoptions can be categorized as Child and Family Services (“CFSA”) involved or private adoptions. The legal paradigm remains the same. However CFSA involvement could and generally does complicate the process as there are additional requirements to make the child eligible for the federal subsidy. Such requirements are adoption licensing, home study/visits, Interstate Compact (“ICPC”) when applicable, adoption final report, adoption subsidy agreement, federal and state police as well as Child Protection Registry (“CPS” ) clearances just to name a few. Once the CFSA procedural requirements are met, there still remains the legal threshold to completing the adoption and entering of the final order and decree. This blog however will focus on these legal requirements and the legal elements that must be established by clear and convincing evidence. After filing an adoption petition content of which is strictly confidential, the court will issue a show cause order to the biological parents with a court date for service to be completed. At the show cause hearing, assuming the parents are properly served with the show cause order, the court may move forward with the hearing. The parents may either enter a written consent, or contest the adoption. If contested, the court
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Categories: Family Law.