Archives for dc divorce lawyer

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
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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
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SCIENTIFIC EVIDENCE AND EYEWITNESS IDENTIFICATION: RECENT DECISION: DC CRIMINAL LAWYER

The DC Court of Appeals recently in IN RE L.C., (10-FS-709) vacated the conviction for carjacking and assault with intent to commit robbery and remanded the case to the trial court for determination as to the admissibility of the expert testimony.  According to the proffered evidence at trial, L.C. and another companion attacked the complaining witness and attempted to steal her car.  Struggled ensued and the assailants escaped on foot and based on the look out given were stopped shortly thereafter in the vicinity and indentified by the complaining witness and charged. L.C.’s defense at trial was essentially one of
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RETURN FOR REWARD DEFENSE IN RECEIVING STOLEN PROPERTY CASES

The DC Court of Appeals in LIHLAKHAV.  U.S, issued recently on April 24, 2014, was presented for the first time with a case with a factual background to consider and analyze a “return for reward defense” in connection with a receiving stolen property conviction.  The defendant here was convicted of both receiving stolen property and unlawful entry.  On the stolen property — a laptop– reward was offered by the owner for the return of the property. The D.C. Code enumerates the following elements requisite to prove a stolen property conviction:  A person commits the offense of receiving [1] stolen property
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RECENT COURT OF APPEALS REVERSAL ON INSUFFICIENCY OF EVIDENCE

The Court of Appeals in a recent decision issued on December 19, 2013, James M. Schools v. US (12-CM-1448) reversed the conviction for unlawful possession of firearm and ammunition. Specifically, the jury had convicted the appellant Schools of unlawful possession of a firearm by a felon, possession of an unregistered firearm, and unlawful possession of ammunition. Factually, the defendant was found in the back room of a two bedroom apartment during a search warrant. The apartment was occupied by other individuals, and although the defendant was found in control and possession of the narcotics found, the weapon and ammunition was
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RECENT COURT OF APPEALS REMAND ON THE DOCTRINE OF COLLATERAL ESTOPPEL

The recent Court of Appeals decision in Thomas v. United States on October 24, 2013, reiterates the doctrine of collateral estoppel.  The issue in the case was whether a retrial on certain counts was barred due to collateral estoppel.  Thomas was charged initially with five counts.  The first trial resulted in the jury acquitting Thomas of ADW (assault with deadly weapon) and PFCV (possession of firearm during crime of violence), but hung on CPWL (carrying a pistol without a license) and UA (unlawful possession of ammunition). The trial court declared a mistrial on those counts as well as the fifth
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RECENT DC COURT OF APPEALS CASE DEFINING “WEIGHTY CONSIDERATION”

The recent Court of Appeals case on a competing adoption petition litigation issued on August 22, 2013 (citation below) defined with more specificity the meaning of “weighty consideration” given to parents’ choice of a fit custodian.  Here the parents whom have been adjudicated as having neglected their children consented to E.A., the great aunt’s adoption petition competing against W.s the foster parents.   The attachment study that was conducted did not factor or involved the children’s attachment to E.A.  In short, it was one sided attachment evaluation.  The study clearly established though a secure attachment to W.s – the foster parents.  
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DC COURT OF APPEALS REVERSES FINDING OF NEGLECT

The Court of Appeals on July 25, 2013 in IN RE ANG.P. & AND.P.; (Nos. 11-FS-1584 & 11-FS-1585), reversed the lower court finding of neglect against a biological mother who was charged with neglecting her children by leaving them without proper parenting, care and control. The legal standard specifically provides: a child is neglected if he or she “is without proper parental care or control, subsistence, education as required by law, or other care necessary for his or her physical, mental or emotional health, and the deprivation is not due to the lack of financial means of his or her
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DC COURT OF APPEALS REVERSES CONVICTION DUE TO UNCORROBORATED CONFESSION:

The Court of Appeals recently in IN RE KA (No. 10-FS-1614, Feb. 2013) reversed K.A.’s weapons possession charges focusing on the governing legal principles of convictions based on confessions alone and the necessary corroboration in support thereof. The Court reiterated the long established Supreme Court legal principle, which requires confession to be corroborated in order to “forestall convictions based on extrajudicial confessions the reliability of which is a matter of suspicion.” Essentially in cases were conviction is based solely on a confession, self made statement, the government is required to introduce substantial independent evidence which would tend to establish the
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THIRD PARTY CUSTODY: LEGAL STANDARD – RECENT DC COURT OF APPEALS CASE

There is rebuttable presumption that custody with a parent is in the best interests of the child unless proven otherwise by clear and convincing evidence.  In another word, there is a parental presumption of fitness that can only be overcome by clear and convincing evidence to the contrary.  This is also a constitutionally rooted and protected principle. In the District, a third party may file for custody of a minor child – however, the legal standard used – similar to adoption and termination of parental rights – is as stated: by clear and convincing evidence. Thus with the third party
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