Archives for Criminal Defense

INTENT TO ASSAULT STATUTE DECONSTRUCTED: DC COURT OF APPEALS DECISION

The Court of Appeals in Powell v. U.S., decided on October 1, 2020, deconstructed the intent-to-frighten assault statute in reversing the appellant’s conviction. Factually, the appellant has kicked a moving police car and had approached the police officer generally in a menacing manner. The trial court held: the appellant displayed kind of intimidating approach, had a hostile look to her as she approached the Officers and while the defendant was not an exaggerated threat — under the totality of the circumstances she was reasonably threatening and the Officers were reasonably afraid under all those circumstances. In order to prove intent-to-frighten
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POSSESSION OF LESS THAN TWO OUNCES NOT PWID: RECENT DC COURT OF APPEALS DECISION

The DC Court of Appeals in Kornegay v. U.S., decided on September 3, 2020, clarified whether possession of 2 ounces or less of marijuana can qualify as Possession With Intent to Distribute (“PWID”), which still remains illegal. Appellant was pulled over during a routine traffic stop and the Park Policer Officers had seized few zip lock bags, a scale, and size-able amount of cash from him with total weight of marijuana at 1.73 ounces.  He was charged with PWID and at trial a Metropolitan Police Department (“MPD”) officer testified as an expert in the “packaging, distribution, and sale of marijuana
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RECENT DC COURT OF APPEALS: RULE 16 VIOLATION: DC ASSAULT

The Court of Askew v. U.S., decided on July 2, 2020, addressed to what extent the government must preserve criminal evidence for discovery purposes. Askew was convicted on four counts of assault of police officers and on appeal challenged the government’s lack of both preserving and producing material evidence. Specifically, Askew argued that the trial court erred when it declined to sanction the government for violating Rule 16 by failing to preserve and produce: Surveillance footage from the rotating MPD-operated video camera located near where he was arrested, Footage from any video cameras located inside the police station where Mr.
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RECENT COURT OF APPEALS DECISION: 4TH AMENDMENT VIOLATION | SEARCH & SEIZURE

The Court of Appeals in U.S. v. Bumphaus, decided on May 21, 2020, affirmed the trial court in suppressing the evidence obtained through illegal search and seizure. Based on confidential tip that the defendant possessed illegal weapons, his car was stopped and before the officers had a chance to search the vehicle Bumphus locked the car and released keys to another individual who left the scene. Thus, the officers towed the vehicle in order to obtain a search warrant to break into the car and search for weapons.  The search warrant for the car however was not issued until four
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SUBPOENA AGAINST FACEBOOK ENFORCEABLE: RECENT DC COURT OF APPEALS DECISION

The Court of Appeal in Facebook v. Pepe, decided on April 15, 2020, decided whether a criminal defendant may subpoena exculpatory electronic records and under what circumstances. Defendant Pepe alleging self-defense in an aggravated assault charge sought at trial to seek evidence of communication transmitted by the complainant shortly before the shooting supporting his claim of self-defense. Specifically, Pepe asked the Superior Court Judge to authorize an ex parte subpoena to Facebook under Rule 17, which permits disclosure of certain personal or confidential information about a victim namely here communications via Facebook around the time of the shooting. The trial
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SEALING OF THE ARREST RECORD STATUTE DECONSTRUCTED: RECENT COURT OF APPEALS CASE

The Court of Appeals in Washington v. U.S., decided recently addressed and interpreted the implications of “interest of Justice” in connection with sealing of the arrest records. DC Code 16-803.02 provides in pertinent parts: (a) person arrested for, charged with, or convicted of a criminal offense pursuant to the District of Columbia Official Code or the District of Columbia Municipal Regulations that was decriminalized or legalized after the date of the arrest, charge, or conviction may file a motion to seal the record of the arrest, charge, conviction, and related Superior Court proceedings at any time, and (A) In cases
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DISCOVERY UNDER THE JENCKS ACT, LEGAL ELEMENTS OF UNLAWFUL ENTRY STATUTE

The Court of Appeals recently in Rahman v. U.S., addressed the legal elements of the unlawful entry statute as well as addressing the appellant’s discovery requests pursuant to the Jencks act. Factually, appellant was told to leave the premises at a Mcdonald’s location by a special police officer (“SPO”) as it appeared that he was loitering or panhandling at the location. Appellant initially refused to leave but eventually left the premises and returned few minutes later at which time he was arrested for unlawful entry by a police officer. On appeal, the appellant essentially argued that he could not have
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ILLEGAL STOP AND ARREST VALID: RECENT COURT OF APPEALS DECISION

The Court of Appeals in Campbell v. U.S. decided on January 30, 2020, in essence affirmed the trial court’s ruling and convictions denying the ineffective assistance of counsel claim. Factually, Campbell was approached by a police officer in a middle of a night sitting in a stolen car, visibly drinking from an open container of alcohol (vodka bottle).  The critical factual element being that the car was parked in a private church parking lot. Campbell was arrested for POCA (Possession of Open Container of Alcohol), and the ensuing search revealed that the car was stolen and thus was charged with
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SEALING OF AN ARREST RECORD & THE “INTEREST OF JUSTICE” STANDARD: DC COURT OF APPEALS

The Court of Appeals recently in Larracuente v. U.S., determined and defined more precisely application of “Interest of Justice” provision of the sealing of the arrest record Statute. Appellant moved pursuant to D.C. Code § 16-803.02 to seal his records where he had pled guilty to possession with intent to distribute (PWID) marijuana.  The trial court concluded that the government had shown by a preponderance of the evidence that appellant possessed an amount of marijuana that exceeded the amount decriminalized, that is more than two ounces and moreover sealing of the record was not available nor discretionary under the “interest
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4TH AMENDMENT VIOLATION: RECENT COURT OF APPEALS DECISION

The Court of Appeals in Dozier v. U.S., decided on December 5, 2019, reversed and remanded conviction for Possession with Intent to Distribute (PWID) due to constitutional violations. Appellant was observed in a high crime area and at night emerging from a dark ally, four Officers in a cruiser entered the ally and two approached asking if they could speak to the appellant, as appellant walked away ignoring the question, the officers persisted asking him if he had any weapons on him which he replied no and whether he would lift his shirt for a visual inspection which the appellant
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