Saturday, February 21, 2015

Police action on a Backpage Escort Ad

I recently answered a questions about solicitation and entrapment on a local legal board. I thought the question was interesting enough to repost on my blog:

(summary) I am a escort on Backpage. I have been posting online for months. My ad states that anyone that wants to meet me must send a pic and picture of their penis. Can a cop do this? Or do they try to avoid sending those types of pics since they are trying to be undercover?


A couple of interesting points.

First, you have to be careful how you ask your question. Essentially, you could just be asking for someone to help you break the law regarding solicitation for sex. That's a problem for everyone, including yourself. The most obvious answer is -- don't break the law. If the jurisdiction where you "practice" outlaws prostitution (or advertising online), don't do it.

Now, having said that, your question about what the police may or may not do in an undercover operation can be answered without directly advising you on how to break the law. The government is free to pose and act (even in an illegal manner) in order to "catch" someone in the process of breaking the law. Examples include "paying" for drugs, and setting up child-sex meetings by posing as a child online. These are common examples most people would be familiar with. However, other more subtle examples exist. Take for instance the "informant" that infiltrates a conspiracy to sell cigarettes across state lines without paying taxes, or a "runner" who delivers messages between smugglers. You get the idea. In summary, a police detective or officer could absolutely pose or send you pictures in order to get you to incriminate yourself.

What the officer cannot do is initiate the illegal activity him/herself. For example, the police officer could not approach you and say, "hey, you wanna have sex for money?" That's called entrapment. While there are some exceptions to this (for ongoing investigations where an underlying warrant or probable cause already exists for the conduct), as a general rule, the cop can only respond to what you do, not initiate.

Do you have criminal law questions? Just try to stump us! We may be reached 703-402-2723 or email seanhanover@hanoverlawpc.com. We're one of the top ten criminal defense firms in the DC metro area, and have considerable experience defending and advising individuals on criminal matters.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

Thursday, February 19, 2015

Enhanced DUI charges in DC -- and how to fight them

DUI Defense in DC -- how to beat an enhancement charge.


We recently had a jury trial in DC concerning a 2nd DUI. At the sentencing, our firm presented that enhancements should not apply. Essentially, our client obtained his first DUI in VA. DC Code specifies the DUI's only count towards "enhanced" penalty if the offenses occurred in DC. Because our client's first DUI was not in DC, it should not count against the total number of DUI's he has received. That would reduce his sentence from a mandatory jail sentence to no jail required. A significant change. The specific code section can be found at DC Code § 50-2206.11, § 50-2206.12, or § 50-2206.14, which in summary states:

[DC Code 50-2206.11]

No person shall operate or be in physical control of any vehicle in the District:
(1) While the person is intoxicated; or
(2) While the person is under the influence of alcohol or any drug or any combination thereof.



The Supreme Court has held that the plain language of a statute must control. This is not without its challenges, however. The definition section of 50-2206 seems suggest that prior offenses should include other jurisdictions.

For our Firm, Mr. Stephen Salwierak, senior attorney, is presenting the argument and supervising the brief. Ms. Abby Archer, associate attorney, is on the brief and responsible for initial drafting. The argument will be heard in Judge Broderick's courtroom in DC Superior Court on 12 March 2014, prior to sentencing. A copy of the brief will be posted once it has been submitted to the Court.

Do you have a DUI case or question in DC, or Virginia? Contact us! We are trial attorneys well versed in criminal law, and jury trials. We can and do make a difference in the lives of our clients. Contact us at 703-402-2723.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

Monday, February 2, 2015

Immigration Asylum -- the 1 year clock (and other questions)

Recent questions posted on AILA about the one year clock and exceptional circumstances.


I recently answered two questions on thee AILA member board, and thought I would share both the questions and the answers here. Although these were aimed at practitioners, the answers may also be helpful to folks desiring more information on the law and how to find answers.

1) Can anyone recommend a resource for learning about standards or cases involving changed circumstances or extraordinary circumstances for late filing of asylum applications?

Answer:
Your best friend is Google and the AILA document repository. If you don’t belong to the AILA-NET/LINK whatever that is (alludes me at the moment), ask another member to run a search for you and see if there is a hit. Regardless, anything worth knowing lives on Google, and as you get more experience, you’ll post information on Google, too. Regardless, in answer to your 1st question, is it depends. Haha. Right, it depends on the circuit in which you find yourself. Your question is one of last resort – meaning that the controlling doctrine will be issued by the appeals court in the area you practice. In mine, for example, it’s the 4th circuit. Go to Lexis and look up 4th circuit cases dealing with asylum and changed country conditions. Ditto for Google. Do not be fooled by BIA – BIA is not controlling in cases of last resort. They are bound by the appeals court, too. If and only if you can find no controlling holding on an appeals case, then you go to search BIA decisions. Fortunately, BIA decisions are also on Lexis (and West, too), and many are on Google. Moral of the story --- search for controlling cases in your jurisdiction (federal appeals level).

2) If a person is in lawful immigration status when they apply for asylum then does the one year filing deadline still apply?
Answer:
Yup. One year deadline is not predicated on status. It is predicated on the clock. The asylum clock is a nasty beast, and there is extensive literature on when the clock starts and stops. You may have heard of the term “lodging an asylum application.” This refers to sneaking a package into the clerk when a defensive asylum is at risk of crossing the 1 year mark. Worse still, if the matter is not heard before the judge before the 1 year mark, it is considered late when the trial occurs (i.e. outside the filing window), and the judge will have to permit it to move forward and waive the 1 year window. Be prepared to file a motion too advance your hearing, on grounds of the 1 year window, before that happens. If you do, and the judge does not so advance, you have an excellent argument for waiving the 1 year window requirement when you are finally heard. I realize that was not the genesis of your question – but if you’ve not faced that before (1 year window while in court), file it away for a rainy day. Can save a lot of embarrassment. Back to your original question – the clock starts the moment you arrive, and only stops on certain specific events (usually delineated in the code, or placed on the record by the judge). These reasons are far between (for example, an appeal of a specific action in the asylum matter will often “stop the clock”), so you can pretty much assume, if you’ve passed the 1 year mark from the date of arrival, you’re out of the window.

For additional information on the one year clock (there was some debate on this within the AILA group), see: http://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/AOBTC%20Lesson%20Plans/One-Year-Filing-Deadline-31aug10.pdf. This is a training manual for DHS/ICE and the immigration court staff on how to handle asylum applications. Specifically, the discussion on page 4 is instructive:

From the Asylum Training Manual:
Any asylum applicant who applied for asylum on or after April 1,1998 (or April 16, 1998, for those applying affirmatively), must establish that he or she filed for asylum within one year from the date of last arrival or establish that he or she is eligible for an exception to the one-year filing requirement. If an applicant fails to establish either timely filing of the application or that an exception applies, the application must be referred to the Immigration Court. Only an asylum officer, immigration judge or the Board of Immigration Appeals (BIA) is authorized to make this determination. The determination may be made only after an interview with an asylum officer or hearing before an Immigration Judge.

Do you need help with an asylum question (either affirmative or defense) or attempting to prove exceptional circumstances for a late asylum filing? Contact us! We can help and have had great success. 703-402-2723.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

Saturday, January 31, 2015

New Supreme Court case allows officers to make a mistake of law -- but still have a valid stop.

Is the Supreme Court decision in HEIEN v. NORTH CAROLINA (574 U.S. ___ (2014), Case 13-604) really new law?


There has been a recent flurry of debate regarding the Supreme Court decision in Heien. This case dealt with two men who were stopped by a police officer while driving in North Carolina. Heien was the owner of the car. The officer stopped the vehicle because it had a burned out taillight. The officer issued a warning only, but was suspicious of the two men's conduct. He asked, and received permission, to search the car. Therein he found cocaine. The two were convicted to transporting cocaine across state lines. While this seems to be a relatively straight forward case, the rub comes in the North Carolinian law. On the books, the law does not require a driver to have two taillights working. In fact, the warning issued by the officer was incorrect, and he should not have stopped the vehicle for this "defect." The appeal to the Supreme Court asked whether an arrest stemming from an officer's stop based on an incorrect understanding of the law may still be considered valid. The Court said, "Yes."

Folks, this is not new law. While the Court made a point of indicating no similar cases had been so decided, in a landslide ruling (8 justices sided with the majority opinion), the Court reaffirmed the common-law principal of "reasonably articulable suspicion." According to Cornell Law School, reasonable articulable suspicion is defined as:
Reasonable [articulable] suspicion is sufficient to justify brief stops and detentions, but not enough to justify a full search. When determining reasonable suspicion, courts consider the events leading up to the brief stop and a decide whether these facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion.

Usually, this is the standard used by beat cops and officers on patrol; it is not a common concept in traffic offenses. However, it appears the Supreme Court extended the concept to cars. Essentially, the police officer only needs to have a reasonable belief that something untoward is happening. In this instant case, the officer believed the vehicle was unsafe based on the burned out light. A stop, under the mere guise of safety, would be appropriate, and certainly, his suspicion can be stated clearly.

However, there is an interesting corollary that defense attorneys should explore. If the Supreme Court found that a mistake of law was not grounds to disqualify a stop; could you use mistake of law (understanding thereof) as a defense to intent? It would seem what is good for the goose should be good for the gander.

Do you have a question about criminal, immigration, or other law? Give us a call! We'd be glad to help. You may reach us at 703-402-2723 or 1-800-579-9864.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

Friday, January 16, 2015

President Obama's Executive Action...illegal? I think not!

In an interesting twist to the ongoing debate about immigration, a Federal Court in PA held that President's Obama's executive action on immigration -- namely, shifting enforcement priorities and granting defacto status to illegal aliens -- including work authorization -- is illegal.
3. Conclusion
President Obama's unilateral legislative action violates the separation of powers provided for in the United States Constitution as well as the Take Care Clause, and therefore, is unconstitutional. (Case: 14-0180, Western District PA, Judge Arthur Schwab, 16 December 2014).

I tend to think this is a rather dim and narrow view of the President's ability to direct his agencies in the prosecution of their duties. However, it is an interesting case. See: PA Court challenges the President's immigration reform.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.
Leigh Wells, Esq.

Setting up the jury -- jury operations in DC, and tactics at the Bar

Jury Management = Trial Success


Beyond closing arguments, my trial experience has taught me that jury instructions and voire dire are probably the most important aspect of civil and criminal trials in state and federal courts. This stems from the simple fact that, the more complex a case, the less likely a jury member will be to remember the information presented. However, the more inclined a juror is to listen to one side or the other, the more likely that juror will be to vote in favor of the preferenced party.

How do you manage the voire dire process? This article is specific to the District of Columbia Court system. It is based on voire dire from the Bench - that is, the judge asks the jury "yes/no" questions based on a predefined set of questions. Prior to trial, it is the duty of the defense (plaintiff and prosecutor, too!) to submit proposed jury questions to the judge for consideration. Generally, the question must fit within the frame work of the general questions asked in Superior Court.

Sample Superior Court Civil Jury Instructions (DC)

  • 1. Do you know or recognize any of the lawyers, the parties, the witnesses, the judge, or court staff?
  • 2. Do you know anything about this particular case?
  • 3. Do you or any immediate family member live or work near or have any special familiarity with the Dunkin Donuts at 1101 4th Street NW or the immediate area where this case is alleged to have occurred?
  • 4. Do you know any other member of the jury panel?
  • 5. Have you ever previously served on a jury in any type of case?
  • 6. Have you ever been a party to or involved in a lawsuit?
  • 7. Have you ever testified as a witness in any trial?
  • 8. Have you or any immediate family member ever studied or been employed in the legal field?
  • 9. Have you or any immediate family member ever been trained or employed in any type of health care services?
  • 10. Have you or any immediate family member ever worked in the area of claims adjustment?
  • 11. Have you or any immediate family member ever witnessed, been involved in, or sustained personal injuries in a slip and fall?
  • 12. Have you or an immediate family member ever served on a corporate board?
  • 13. Have you or any immediate family member ever made a claim for personal injuries; OR filed, defended, or been a witness in a lawsuit involving a claim for personal injuries?
  • 14. Do you have strong feelings about personal injury cases and lawsuits in general that might affect your judgment in this case?
  • 15. Do you hold any convictions or beliefs concerning lawyers, judges, or the legal system that would impair your ability to fairly decide this case?
  • 16. Would you be unable to follow the Court’s instructions or render judgment in this case due to religious, moral, political, or philosophical beliefs?
  • 17. Do you have any type of personal health problem or are you taking medication that would make it difficult to serve on the jury?
  • 18. This trial will take approximately 4 days plus deliberations. Do you have important and/or pressing time commitments/conflicts that would make it difficulHave you or anyone in your family ever been “labeled” in an unpopular way?t for you to serve on this jury?
  • 19. Is there any other reason you could not be fair and impartial?

Other common jury instructions I use in civil trials:

Contract
(NOTE: I do not submit these questions in advance, as DC does not allow open ended jury questions. Instead, ask these when you are standing at the bench and the judge asks if there is anything else you would like inquire about)
  • Tell me a little about the neighborhood you live in.
  • What type of work do you do?
  • Do you supervise other people? How many” How do you feel about supervising other people?
  • Does anyone have current work related projects that are going to occupy your mind to the extent that you wouldn’t be able to concentrate on the evidence that will be presented in this trial?
  • Does your spouse work outside the home?
  • How much TV do you watch? What are your favorite shows?
  • Have you or anyone in your family ever been “labeled” in an unpopular way?

Vary the questions above based on whether the juror answered "yes" to any of the generic questions proposed by the judge. If the juror answered "yes" to none, you must ask further questions to ensure you can form an opinion about the juror!

Remember, in DC, there are no jury questionnaires. Although, you may ask for an exception to this rule in felony or capital cases. See Rule 24 of the Criminal Rules of the District of Columbia.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.
Leigh Wells, Esq.

Wednesday, December 3, 2014

IMMIGRATION WEBINAR: 18 December 2014 at 1pm (FREE!)

Entry into the United States -- whether as a visitor for a short duration, or an immigrant with an intent to stay -- is a complicated area of law. Learn how to advise your clients -- and how to help yourself! -- while navigating the changing landscape of US immigration law.

This workshop will cover three topics -- family immigration, business immigration, and visas. It is not meant to be exhaustive. Rather, as a topical overview, you will leave the webinar with a greater understanding of how the US system works, the timeframes involved, the steps required for the most common forms of immigration and visa applications, and what to watch out for in terms of triggers and immigration pit-falls. More importantly, the new immigration reforms by President Obama will also be discussed.

Everyone is welcome to take part. Please invite any you feel might benefit from learning more about US immigration law. Let's get the right information out to those that can benefit from immigration reform!

Sean R. Hanover, Esq., principal attorney of Hanover Law -- an immigration and criminal/family law practice based in Washington, DC -- will be hosting the event.

The entire presentation will be streamed live, 18 December 2014 at 1pm (Eastern US time). It will last approximately 90 minutes and is absolutely free. If you are in the Washington, DC area, you are welcome to attend in person (this will be produced in our Fairfax offices).

To register, contact admin@hanoverlawpc.com. Please indicate your name, and occupation. We will send you the link and syllabus. There are no prerequisites to attending -- and we will answer questions at the conclusion of the presentation.