RETURN FOR REWARD DEFENSE; NEW COURT OF APPEALS RULING

The Court of Appeals on a second remand on August 20, 2015, in LIHLAKHA v. U.S., clarifies further the return for reward defense for receiving stolen property (RSP) conviction. Lihlakha was convicted at trial for RSP and her defense and arguments on appeal focused on return for reward defense. The Court on the first review outlined for the first time the elements needed to successfully assert the defense: Specifically, the defense will be satisfied if the evidence shows that: “(1) The reward had been announced, or was believed to have been announced, before the property was possessed or agreed to be possessed; (2) the person claiming the reward had nothing to do with the theft; (3) the possessor returned the property without unreasonable delay to the rightful owner or to a law enforcement officer; and (4) the possessor imposed no condition on return of the property.” The Court on the most current review of the case focused more closely on the burden of showing by the defense on these defensive elements as well as the burden on the government to disprove the defense elements asserted. Specifically, because the return for reward defense relates to the defendant’s intent, an element of
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Categories: Criminal Defense.

DC ASSAULT; RELEVANT STATUTE AND RECENT CASE LAW

The Court of Appeals in IN RE D.P., APPELLANT, decided on August 13, 2015, reversed D.P.’s conviction for aggravated assault and felonious assault (assault with significant bodily injury). The charges stemmed from an assault by a group of three teenagers on a metro bus on M.G., another student. Thus the government charged M.P., I.C. and D.P. with aggravated assault and assault with significant bodily injury. M.P. pled out to simple assault, the case against I.C. was dropped and D.P. proceeded to trial and was convicted on the two counts. Before the Court reversed D.P.’s convictions, the Court outlined the three levels of assaultive conduct under the DC Statute: –The District has a three-tiered classification system of assault. Simple assault is the lowest-level offense. A misdemeanor, it does not require that any actual injury be incurred and requires only general intent to perform the assaultive act. Assault with significant bodily injury, commonly referred to as “felony assault,” is the intermediate crime. As its name suggests, it requires the defendant to cause significant bodily injury and to do so “intentionally, knowingly, or recklessly.” Aggravated assault is the highest-level assault crime recognized in the District. To obtain a conviction for aggravated assault, the
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Categories: Criminal Defense.

Deferred Prosecution v. Deferred Sentencing Agreements and the Arrest Record – solicitation cases and other misdemeanors in the District of Columbia:

With the serge of recent arrests in the District of Columbia (DC) for sexual solicitation and the undergoing sting operations with undercover police offices it is important to understand the elements of the crime as well as some of defenses available as discussed in depth: http://www.familylawdc.com/dc-prostitution-solicitation-lawyer/ However, this post addresses some of the diversionary options available short of trial and possible consequence on the arrest record, which ideally should be expunged right after the completion of the prosecution particularly for the possible negative inferences they may draw for the current and future employers, among others, as arrest records are public and readily searchable. The deferred prosecution agreement (DPA) is the most ideal scenario if offered. With this agreement, generally the government requires 32 hours of community service and few consecutive negative drug test results within a four-month period after which the cases will be formally dismissed in court. With the deferred sentencing agreement (DSA), the agreement requires a guilty plea up front and a period of time to return back for sentencing – in which if all conditions satisfied – the government would not object to the guilty plea being withdrawn and sentencing vacated and case dismissed. As far as
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Categories: Criminal Defense.

OHIO v. CLARK — RECENT SUPREME COURT RULING ON CHILD TESTIMONY

The U.S. Supreme Court in Ohio v. Clark decided on June 18, 2015, addressed admissibility of the non-testimonial statements in the context of child abuse investigation. Clark was trusted with care of his two children L.P., age 3 and A.T. eighteen months while their mother was engaged in prostitution at the direction of Clark. L.P. was observed at school with a black eye, belt marks on his back and stomach, and bruises all over his body. A.T. after further investigation had two black eyes, a swollen hand, and a large burn on her cheek, and two pigtails had been ripped out at the roots of her hair. Clark was convicted of several criminal counts at the trial based on the statement of L.P. to his teacher inquiring as to how the child had received the injuries. The Supreme Court in delivering the opinion carefully reviewed all current cases decided and relating to out of court testimonial v. non-testimonial statements. The Confrontation Clause prohibits the introduction of “testimonial” statements by a non-testifying witness, unless the witness is “unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” However, a statement qualifies as testimonial if the primary purpose of
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Categories: Criminal Defense and Family Law.

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
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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
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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
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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
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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
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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
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Categories: Criminal Defense.