ELONIS v. U.S.: FIRST AMENDMENT PROTECTED SPEECH OR CRIMINAL CONDUCT?

The US Supreme Court on June 1, 2015, issued a ruling reversing and remanding the lower court convictions for transmitting threats via Facebook messages. Elonis, an amusement park employee who was going through separation and custody battle with his wife at the time was charged with transmitting threatening messages under 18 U. S. C. §875(c), which makes it a federal crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.” The lower court conviction was based on jury instructions, which did not require proof of intent to issue threats but only that a reasonable person would have interpreted the statements as treats, a kind of strict liability civil negligence interpretation of the Statute, which the Supreme Court fiercely disagreed with. The Court held as the Statute does not require or specify a mental state (intent) such does not completes the analysis. That is: “mere omission from a criminal enactment of any mention of criminal intent” should not be read “as dispensing with it.” The Court specifically held that the typical criminal mens rea and scienter must also exist and be proven before conviction for threats can sustain. That criminal conduct
Continue Reading

Categories: Criminal Defense.

THE DISTRICT COURT STRIKES DOWN A PROVISION IN THE DC HANDGUN LICENSING REGULATION AS UNCONSTITUTIONAL

The U.S. District Court in Wrenn v. Linear, issued on May 18, 2015, granted the plaintiff’s preliminary injunction to strike the District’s “good reason/proper reason” statutory requirement before issuing license to carry handguns. In response to the District Court’s decision in Palmer v. Dist. of Columbia, allowing carrying pursuant to the Second Amendment for self defense purposes an operable handgun outside the home (blogged on 9/24/2014), the District redrafted the handgun statute consistent with the decision but adding other limiting language subject of this litigation and the current ruling. Specifically the amended language provided (D.C. Code § 22-4506(a)): “The Chief of the Metropolitan Police Department (“Chief”) may, upon the application of any person having a bona fide residence or place of business within the District of Columbia, or of a person having a bona fide residence or place of business within the United States and a license to carry a pistol concealed upon his or her person issued by the lawful authorities of any State or subdivision of the United States, issue a license to such person to carry a pistol concealed upon his or her person within the District of Columbia for not more than 2 years from the
Continue Reading

Categories: Criminal Defense.

COMMUNITY EXCEPTION TO WARRANTLESS SEARCHES — RECENT COURT DECISION

The Court of Appeals in Steven Davis v. U.S., in an opinion issued on February 26, 2015, expounded and analyzed the doctrine of “community exception” to warrantless search and seizure. Davis was convicted for possession of two zip lock bags of cocaine found in plain view and in his vehicle. The issue on appeal was whether the office had entered Davis’ vehicle pursuant to reasonable exercise of community caretaking function rather than pursuant to a criminal investigation. Factually, the police were alerted when a vehicle was found blocking the entrance to a private apartment building lot. Upon responding, the officer found Davis at the driver’s seat unconscious, EMT were contacted and responded, Davis was woken up and was responsive and exited the vehicle. While Davis had exited the vehicle and was being checked over by EMT and reorienting, the officer had entered the vehicle to move it — at which time observed in plain view two zip lock bags on the floorboard. On appeal, Davis essentially argued that the plain-view doctrine required that the officer be lawfully in a viewing position, here the office had no legal basis to enter the vehicle to move it as Davis had regain consciousness
Continue Reading

Categories: Criminal Defense.

PARENTAL FITNESS DEFINED; RECENT COURT OF APPEALS DECISION

The DC Court of Appeals in IN RE PETITION OF S.L.G & S.E.G.; D.A. (No. 14-FS-73) decided on March 5, 2015; once again reiterated and cemented the presumption of parental fitness in a contested adoption proceedings. The case is significant as the Court defined and expanded on the definition of “fitness” and outlined the legal criteria the trial court must use in rendering an opinion. The appellant biological mother contested the adoption petition by the foster family S.E.G. and S.L.G. Evidence established that the child was in the foster home for over two years, well integrated in the home and bonded to the foster parents and family. The foster family also according to testimony met the child’s mental and developmental needs, by all account and petitioner were fit and proper to adopt the child. The biological mother on the other hand exhibited mental health and behavioral issues that raised concerns as to her ability to safely care for the child. The mother also struggled with sobriety and was not compliant with services. She also consistently made poor decisions, which could comprise safety of the child. The appellant challenged the trial court ruling essentially on two grounds: that the court made
Continue Reading

Categories: Family Law.

RECENT COURT OF APPEALS RULING — CRIMINAL SENTENCING LAWS

In Tibbs v. United States (No. 13-CF-1425), decided on January 15, 2015, the Court of Appeals remanded the matter to the trial court for further consideration due to criminal sentencing irregularities. Defendant Tibbs sought to withdraw a guilty plea to assault with a dangerous weapon (“ADW”), conspiracy to commit ADW, two counts of voluntary manslaughter, and carrying a pistol without a license. At sentencing, and several months after the plea — at the commencement of appellant’s sentencing hearing, appellant orally moved to withdraw the plea as factually unsupported. After the government’s proffer to the offenses committed, defendant Tibbs had asserted that he had acted in self-defense, and regardless, the plea process was completed and matter scheduled for sentencing. A defendant may withdraw his guilty plea either by showing that there was a fatal defect in the Rule 11 proceeding at which the guilty plea was taken or that “justice demands withdrawal in the circumstances of the individual case” – commonly known as the fair and just standard. Specifically D.C. SCR-Crim. Rule 11(f) provides: Determining accuracy of plea – notwithstanding the acceptance of a plea of guilty, the Court should not enter a judgment upon such plea without making such inquiry
Continue Reading

Categories: Criminal Defense.

RECENT COURT OF APPEALS REVERSAL —

The Court in Andrade v. U.S., (No. 13-CM-224), an opinion issued on January 8, 2015, reversed the assault conviction based on erroneous admission of testimonial evidence by the trial court. Specifically, appellant Andrade argued his 6th Amendment right to confront the complaining witness was violating in allowing the witness-complainant’s statement to the police office to be admitted as substantive evidence. The relevant facts are as follows: Ms. Reed (the complainant) had called 911 indicating that her boyfriend Danny Andrade had gotten into an argument with her and that Mr. Andrade “been putting his hands on [Ms. Reed].” Ms. Reed, who sounded excited and upset on the 911 recording, asked the dispatcher to send the police, saying that she had locked herself in the bathroom but that Mr. Andrade was about to come into the bathroom. As the 911 call continued, Ms. Reed said that Mr. Andrade left the house, got on a bike, and went down the street. Ms. Reed then said that the police had arrived and that she was going to go speak to them. The police officer at the scene began questioning the complainant to ascertain what had occurred, and the complainant at that point still upset
Continue Reading

Categories: Criminal Defense.

DERIVATIVE EVIDENCE OF ILLEGAL STOP: RECENT COURT OF APPEALS DECISION

The DC Court of Appeals in Ken E. Smith v. U.S., on December 4, 2014, reversed a lower court drug conviction and denial of motion to suppress based on the tainted derivative evidence doctrine, which excludes all evidence — primary and secondary obtained and gathered in violation of the 4th Amendment. Specifically, Smith’s car was stopped due to having an obstructed license plate and subsequently marijuana and drug paraphernalia was found on him and in the car.   An arrest warrant was requested by the Officer and issued based on the affidavit submitted and approximately two weeks later Smith was located, arrested and additional drugs were recovered from him — the second time — justifying second set of charges. At trial, Smith filed a motion to suppress all evidence seized from him arguing that the initial stop was unreasonable, illegal and thus the evidence collected subsequent to the stop, as well as the evidence seized in conjunction with the arrest warrant are both equally tainted and must be suppressed. Defendant Smith argued that the license plate cover frame, which obstructed “taxation without representations” portion of the license did not violate the DMV regulation which requires the identifying information of the license
Continue Reading

Categories: Criminal Defense.

RECENT DC COURT OF APPEALS REVERSAL

The Court of Appeals in IN RE J.W. (DEL-1326-12) decided on October 9, 2014, vacated and reversed J.W.’s conviction for “possession of implements of crime.” J.W. and another juvenile were seen near a Vespa scooter chained to a fence. J.W. was wearing a black ski pants with a black ski mask on top of his head loitering around the scooter while carrying a two foot-long bolt cutter. He was arrested and charged with — a statute that prohibits the possession of “any instrument, tool, or implement for picking locks or pockets, with the intent to use such instrument, tool, or implement to commit a crime” — and   found involved at trial for possessing the implements of crime. The Court of Appeals focused and analyzed the strict statutory language to determine whether J.W. is culpable under the provision. In that, the Court expounded: in examining the statutory language, it is axiomatic that the words of the statute should be construed according to their ordinary sense and with the meaning commonly attributed to them. The Court compared the current language with the former statutory language which was broad and defined implements of crime as any instrument which are usually employed or reasonably
Continue Reading

Categories: Criminal Defense.

D.C. Marijuana Legalization Initiative 71

D.C., Marijuana Legalization, Initiative 71 is on the ballot for the November elections and it is anticipated that it would get enough votes to pass. However the passage of the initiative is not tantamount to legalization. The initiative would need congressional approval, which is very unlikely.   Federal laws still criminalize use and possession of the substance and US Congress would not approve a measure in the Nation’s Capitol no less that is in direct conflict with the Federal laws. The overwhelming approval of the measure by the city voters however will force the city legislative to go beyond the Decriminalization Act (see March 2014 blog) and structure a hybrid bill that partially and incrementally decriminalizes small amount for use and cultivation of Marijuana. The proponents of the measure argue the legalization provides dignity for victims of the racist drug war; prevents bad drug deals/bad and poor quality weed; increases quality at cannabis retailers when they compete with home grow; defunds cartels and puts dealers out of business; etc. The opponents, minority, argue that medical data still points to sustained and severe side effects such: memory loss, impaired thinking, reduced immune system, and overall loss of motivation and focus. Arguments are
Continue Reading

Categories: Criminal Defense.

–BEARING AND CARRYING HANDGUN IN THE DISTRICT —

The District Court Senior Judge Scullin on July 24, 2014, enjoined the District from enforcing both the handgun registration for home-use only provision as well as the statute criminalizing carrying handgun in public. Specifically the court ordered: ORDERS that Defendants, their officers, agents, servants, employees and all persons in active concert or participation with them who receive actual notice of this Memorandum- Decision and Order, are permanently enjoined from enforcing D.C. Code § 7-2502.02(a)(4) to ban registration of handguns to be carried in public for self-defense by law-abiding citizens; and Court further ORDERS that Defendants, their officers, agents, servants, employees, and all persons in active concert or participation with them who receive actual notice of this Memorandum- Decision and Order are permanently enjoined from enforcing D.C. Code § 22-4504(a); and the Court further ORDERS that Defendants, their officers, agents, servants, employees, and all persons in active concert or participation from them who receive actual notice of this Memorandum- Decision and Order from enforcing D.C. Code § 7-2502.02(a)(4) and D.C. Code § 22-4504(a) against individuals based solely on the fact that they are not residents of the District of Columbia. **** D.C. Code § 7- 2502.01(a) provides that “no persons or
Continue Reading

Categories: Criminal Defense.