COURT OF APPEALS REVERSAL: PRIVATE V. PUBLIC: DC UNLAWFUL ENTRY STATUTE

The Court of Appeals in an opinion issued in JACQUELINE FREY v. UNITED STATES, compared and analyzed the legal difference between unlawful entry upon a “private” property versus a “public” property. In reversing the defendant’s conviction for unlawful entry on May 5, 2016 – the Court held that she had entered a public section of the Library of Congress and thus was entitled to a jury trial warranting reversal. The District of Columbia unlawful entry statute makes a legal distinction between entry upon a private v. public property. Specifically, subsection (a) of the code prohibits unlawful entry into “any private dwelling, building, or other property, or part of such dwelling, building, or other property.” [D.C. Code § 22-3302 (a)(1)]. Violations of subsection (a) are punishable by a fine, imprisonment for not more than 180 days, or both. Subsection (b) however prohibits unlawful entry into “any public building, or other property, or part of such building, or other property.” [D.C. Code § 22-3302 (b)]. Violations of subsection (b) are punishable by a fine, imprisonment for not more than six months, or both. Here, the defendant was charged with entry upon a private property, which is punishable by more than 180 days
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Categories: Criminal Defense.

DC CHILD ABUSE AND NEGLECT LAWS

This blog focuses on the DC child 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 at the 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 ASSAULT LAWS/PENALTIES

This blog outlines and analyzes the statutory language of the three main DC assault provisions: simple assault, aggravated assault and assault on a police officer. The simple assault statute includes both elements and penalties for assault and stalking as they are consolidated under the same statutory language specifically that a person commits a misdemeanor assault punishable by not more than 180 days imprisonment and/or a $1000.00 fine — if he/she unlawfully assaults or threatens another in a menacing fashion. The felony assault which raises the penalties to 3 years and/or $3000.00 in fines has all the elements of the simple assault but requires a second prong of: intentionally knowingly or recklessly causing “significant bodily injury.” The term significant bodily injury means an injury that would need an immediate medical attention. Aggravated assault is generally defined as causing “serious bodily injury” by any means to another person knowingly and purposely. Specifically, engaging in a conduct “manifesting extreme indifference to human life” – which both creates a grave risk of serious injury and also causes serious bodily injury. Aggravated assault carries penalties of: 10 years and/or $10,000.00 in fines. The attempted aggravated assault carries half the penalties. Assault on a police officer
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Categories: Criminal Defense.

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.