Thursday, April 16, 2015

Motions in Limine -- an example

Although there are multiple uses for motions in limine, the most basic form is to (1) exclude testimony from certain witnesses, and (2) to exclude evidence on the grounds of (a) undue prejudice, (b) lacks authenticity, (c) lacks foundations, (d) lacks relevance, or (c) is cumulative and therefore unnecessary. Occasionally, a proponent will file a motion in limine as a backhanded form of summary judgment; asking the court to deny a party the right to present an argument or facts based on the law stipulating such argument cannot be had. However, while perfectly permissible, the Courts usually frown on waiting until just before trial to make a summary argument, and are much more inclined to find a question of fact requiring the trier to hear.

I've included a recent filing in a multi-million dollar shareholder/fiduciary claim case. In this instance, note the abridged nature of the summary, the inclusion of a chart characterizing the over 400 pages of evidence, and the argument against their witness. The rule that governs motions in limine is Federal Rules of Civil Procedure 402 and 403, which gives the Court jurisdiction to include (402) and exclude (403) any evidence. Remember -- a motion in limine is an argument based on the rules of evidence. Most of the time, your motion will be heard at the pre-trial conference, but must be filed according to the scheduling order.

One last note -- be sure to provide an alternative remedy of "caution". This lays the foundation for attacking and seeking sanctions if your opponent engages in improper evidence submission during trial, after having been cautioned not to do so via your motion in limine.



Do you have a question about Court procedure, motions in limine, or pre-trial strategy? Call us! WE CAN HELP! 703-402-2723 or 1-800-579-8864.

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.

Wednesday, April 15, 2015

Difference between JOINT filing and CONSENT filing

As a practitioner in both Federal and State jurisdictions, I am often consulted on matters that cross between both types of Courts. A recent question posted to the American Immigration Lawyers Association (AILA) is a good example. In this case, a practitioner new to immigration law (Federal) was asking the difference between a joint filing with the opposing counsel, and a consent filing with the DHS attorney. Her question, in part, read:

I used to file "consent" motions in state criminal court when I had consulted with the prosecutor and they agreed on whatever I was asking for. I didn't have them [prosecutors] actually sign the motion...

I've been looking at a sample "joint" motion to admin close an immigration case, and there's a space for the DHS attorney to sign. Is that just a best option, or is it actually necessary for me to get OCC's (Office of Chief Counsel -- immigration equivalent of the "district attorney" for a particular court) signature on a joint motion?

Does it make a difference if I title my motion "consent" vs. "joint"?

A discussion on JOINT MOTIONS vs. CONSENT MOTIONS:


A consent motion is one that the opposing parties agrees to allow you to file – consent = no opposition. The other party consents to your filing, but takes no position on the matter.

A joint motion is one where you and another party (together) are requesting the Court take some action. A joint motion is much stronger than a consent motion. In a joint motion, all parties are arguing that the Court should grant the requested relief, and the facts alleged are true. The opposition has moved from merely agreeing to allow you to file, to actually arguing for the relief to be granted. To make an argument to the Court, counsel must sign the motion. Hence for a joint filing, all parties filing in joint must sign.

When the petitioner AND the government both file in joint (a joint motion -- in the example above, OCC and the petitioner), the government is actually obligated to argue on behalf of the motion, just as you are obligated to argue on behalf of the motion. The Court is obligated to view the requested relief as beneficial to the government (or other joint filing party) when factoring whether to grant the same, or not.

Oddly, I just had a joint motion for bond redetermination denied by the Superior Court in DC (client had a 3rd DUI and was being held on a show cause for probation violation). That is exceptionally rare, and despite my impassioned plea, and rather luke-warm, tepid support by the government, the judge did her own thing. Just goes to show no matter how strong a joint motion is, the final arbitor is always the judge!(laughing). Those of you who have had favorable plea agreements nixed by the Court are too aware of the odd quirks that a judge can take despite the agreement of all parties on how the case should move forward.

Do you have a procedural question or concern in Federal or State Court? Call us! We can help -- 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.

Saturday, April 11, 2015

How can a non-profit organization engage in for profit work?

I was recently asked the following question on an online legal website:

I am a member of a Church Vestry in Virginia. The church is a 501(c)(3), and it owns a piece of retail property. If we lease the retail property to generate income, are we subject to an unrelated business income tax or would we fall within the exception for rental income?

This question is best answered by providing the rule-of-thumb regarding IRS tax consideration of non-profit activities: if the activity is designed to generate money that is not re-invested into the business, but rather creates a profit or loss for the owners (or "insiders"), then the organization engaging in the activity risks losing tax exempt status.

In the example above, the tax exempt organization should create a separate corporation apart from the church.

The risk here is that the IRS will determine that the profit you generate from the commercial enterprise represents a "for-profit" engagement designed to benefit the vestry of the church (insiders) -- and thereby revoke the tax exempt status for the entire 501(c)(3) organization. Generally, churches are fairly bullet proof (501(c)(3) organizations can engage in most conduct except most campaigning and legislative lobbying), but commercial real-estate is rarely ever a non-profit mission. As such, the proper recommendation in this instance -- create a separate corporation that handles for-profit aspects of the business, and leave the church and church activities as tax-exempt.

For more information on f 501(c)(3) organizations and permissible activities, see:


Do you have a tax questions? Give us a ring! We've helped small and medium businesses throughout the country overcome tax and management challenges. 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.

Sunday, March 22, 2015

Expungement and Letter of Good Conduct -- DC Rehabilitation Actions

A client came to our office on Friday, and asked the following question regarding expungement in DC:
I was accused of breaking and entering in Washington, DC in 2006. I pled out to a misdemeanor with no jail time. I long ago completed my probation -- is there something I can do to get this off my record? I heard that DC has a program to remove arrests, and was hoping you could help.

Good news! DC does have such a program. In fact, as far as rehabilitation goes, DC is by far one of, if not the most, liberal jurisdictions in the country. So what should you do to get a conviction off your record?

There are three methods for addressing criminal convictions on your record (this is really jurisdiction independent):
  • Expunge your conviction: Two components to this --
    1. remove public access to the charge, disposition, and court record, and possibly;
    2. remove the arrest and police records from public access.
  • Seek a Pardon: This removes all aspect of your case from the system (both arrest and court records), and erases the event itself.
  • Partial Pardon/Letter of Good Standing (or Rehabilitation): This is a middle-of-the-road approach offered in some jurisdictions that permit the governor or mayor to indicate a convicted individual has rehabilitated. This can be cited when applying to jobs, etc.

Getting an Expungement in DC

In DC, the first determination is whether the convicted offense falls within an "expungeable" group, or is barred from any form of relief. That can be found ins DC Code 16-801 (definitions). The following are excluded from expungement in DC:
(9) "Ineligible misdemeanor" means:
(A) Interpersonal violence as defined in § 16‑1001(6)(B), intimate partner violence as defined in § 16‑1001(7), and intrafamily violence as defined in § 16‑1001(9).

(B) Driving while intoxicated, driving under the influence, and operating while impaired (§ 50‑2201.05);

(C) A misdemeanor offense for which sex offender registration is required pursuant to Chapter 40 of Title 22, whether or not the registration period has expired;

(D) Criminal abuse of a vulnerable adult (§ 22‑936(a));

(E) Interfering with access to a medical facility (§ 22‑1314.02);

(F) Possession of a pistol by a convicted felon (§ 22‑4503(a)(2) [see now § 22‑4503(a)(1)]);

(G) Failure to report child abuse (§ 4‑1321.07);

(H) Refusal or neglect of guardian to provide for child under 14 years of age (§ 22‑1102);

(I) Disorderly conduct (peeping tom) (§ 22‑1321);

(J) Misdemeanor sexual abuse (§ 22‑3006);

(K) Violating the Sex Offender Registration Act (§ 22‑4015);

(L) Violating child labor laws (§§ 32‑201 through 32‑224);

(M) Election/Petition fraud (§ 1‑1001.08);

(N) Public assistance fraud (§§ 4‑218.01 through 4‑218.05);

(O) Trademark counterfeiting (§ 22‑902(b)(1));

(P) Attempted trademark counterfeiting (§§ 22‑1803, 22‑902);

(Q) Fraud in the second degree (§ 22‑3222(b)(2));

(R) Attempted fraud (§§ 22‑1803, 22‑3222);

(S) Credit card fraud (§ 22‑3223(d)(2));

(T) Attempted credit card fraud (§ 22‑1803, 22-223) [§§ 22‑1803, 22‑3223];

(U) Misdemeanor insurance fraud (§ 22‑3225.03a);

(V) Attempted insurance fraud (§§ 22‑1803, 22‑3225.02, 22‑3225.03);

(W) Telephone fraud (§§ 22‑3226.06, 22‑3226.10(3));

(X) Attempted telephone fraud (§§ 22‑1803, 22‑3226.06, 22‑3226.10);

(Y) Identity theft, second degree (§§ 22‑3227.02, 22‑3227.03(b));

(Z) Attempted identify theft (§§ 22‑1803, 22‑3227.02, 22‑3227.03);

(AA) Fraudulent statements or failure to make statements to employee (§ 47‑4104);

(BB) Fraudulent withholding information or failure to supply information to employer (§ 47‑4105);

(CC) Fraud and false statements (§ 47‑4106);

(DD) False statement/dealer certificate (§ 50‑1501.04(a)(3));

(EE) False information/registration (§ 50‑1501.04(a)(3));

(FF) No school bus driver's license (18 DCMR § 1305.1);

(GG) False statement on Department of Motor Vehicles document (18 DCMR § 1104.1);

(HH) No permit - 2nd or greater offense (§ 50‑1401.01(d));

(II) Altered title (18 DCMR § 1104.3);

(JJ) Altered registration (18 DCMR § 1104.4);

(KK) No commercial driver's license (§ 50‑405);

(LL) A violation of building and housing code regulations;

(MM) A violation of the Public Utility Commission regulations; and

(NN) Attempt or conspiracy to commit any of the foregoing offenses (§§ 22‑1803, 22‑1805a).

Generally, all felonies are excluded from expungement.

Once you determine that the conviction can be expunged (i.e. is not in the list above), the following code sections control:

§ 16–802. Sealing of criminal records on grounds of actual innocence.
§ 16–803. Sealing of public criminal records in other cases.
§ 16–803.01. Sealing of arrest records of fugitives from justice.
§ 16–804. Motion to seal.
§ 16–805. Review by Court.
§ 16–806. Availability of sealed records.
§ 16–807. Savings provision.

Distilled, the code stipulates that a defendant must wait 2 years to seal and information related to qualifying misdemeanors/charges (those not on the list above). The petitioner (called a "movant") must wait 5 years from date of conviction for misdemeanors on the list above (called disqualifying convictions), and 10 years from the date of a felony conviction, to petition for sealing the record. There are provisions for early expungement for not-guilty, noll-prosequi, and deferred sentencing agreements. The code relevant code states:
(from DC Code 16-803)

(2) (A) If a period of at least 5 years has elapsed since the completion of the movant's sentence for a disqualifying misdemeanor conviction in the District of Columbia or for a conviction in any jurisdiction for an offense that involved conduct that would constitute a disqualifying misdemeanor conviction if committed in the District, the conviction shall not disqualify the movant from filing a motion to seal an arrest and related court proceedings under this subsection for a case that was terminated without conviction before or after the disqualifying misdemeanor conviction, except when the case terminated without a conviction as a result of the successful completion of a deferred sentencing agreement.

(B) If a period of at least 10 years has elapsed since the completion of the movant's sentence for a disqualifying felony conviction in the District of Columbia or for a conviction in any jurisdiction for an offense that involved conduct that would constitute a disqualifying felony conviction if committed in the District, the conviction shall not disqualify the movant from filing a motion to seal an arrest and related court proceedings under this subsection for a case that was terminated without conviction before or after the disqualifying felony conviction, except when the case terminated without conviction as the result of the successful completion of a deferred sentencing agreement.

A letter of good conduct/rehabilitation is also available in DC, regardless of the length of time since serving the last conviction. These are complicated, however, and you should speak to us about the steps to obtain such a letter in DC. Additionally, DC has strict guidelines that protect employers that hire individuals with prior criminal records. This is designed to encourage employers to reintegrate released men and women into the workforce. See DC Council amendments favoring employment of released individuals.

Do you need help handling a criminal conviction? Both post conviction relief and expungement related activity ar best done through an attorney. Contact us at 703-402-2723 or 1-800-579-9864. If you're eligible, we can help!.



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.

Wednesday, March 11, 2015

When the judge becomes a recalcitrant -- how to protect your client

While speaking with several great colleagues on the AILA (American Immigration Lawyers Association) discussion boards, I had a chance to share my experiences working with judges who would not allow testimony in the immigration court context. I was asked how I handled such judges -- specifically regarding asylum matters -- and I thought I would share my answer here:

I have run into this -- even the judge not wanting fact witnesses to testify. Let me explain an example regarding immigration and asylum law. In each instance, though, you need to find the underlying law that supports the right of your client to be heard. When that is lacking -- do not fear! Press on with an equity argument and use the same language. The key is putting your concern on the record, as you will see below.

State for the record that your expert's testimony is critical to the foundation and credibility of your case. Further, state that the judge is obligated to hear all facts that bear on the risk of abuse or harm.

“Unlike asylum, withholding of removal is not discretionary. The Attorney General is not permitted to deport an alien to a country where his life or freedom would be threatened on account of one of the protected grounds . . . .” Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001); INA 241(b)(3)(A).

If the judge refuses to hear from the expert (or fact witness), object on the record. Then continue. I have won more than one appeal on this objection. Note, though, you MUST note the purpose of the expert (or fact witness) and then object when the judge does not permit it. Also note that if the judge only allows a cursory examination of the fact witness or expert, then that can also qualify for grounds for appeal if you object on the record.

Examples of how to note your objection on the record:

you must introduce the witness or expert and explain what testimony he/she will provide and why it is critical to your case. If the judge does not give you a chance to do this, state, "Your Honor, may I be heard on this matter?" If the judge still refuses, then you must state: "You Honor, for the record, I must state that your refusal to permit XXX to testify prevents you from having a full and complete picture of Mr. XXXX withholding and asylum petition. I object to this."

If the judge allows you to proffer what the witness or expert will testify (that means make a statement on the record indicating what facts will be discussed), and then refuses to permit the testimony, you must state: "You Honor, I understand your ruling on this matter. However, for the record, I must object as I believe it is not possible to have a full and complete hearing on Mr. XXX withholding and asylum petition without this information."
That's it! You've preserved the record for appeal, and stand a good chance of reversing the holding.

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, March 9, 2015

Prostitution And Entrapment -- An Argument for the Defense

I recently had a chance to speak with a potential client about solicitation, prostitution, and entrapment. Can a police officer actually have sex with an escort and still threaten that same escort with solicitation and prostitution charges in DC? That answer is a solid maybe. Let's review the facts of this example:

I stay in Washington, DC area. I have been escorting for months off of the website called backpage. I always ask every client to send me two face pics of themselves......ok so let me get into my story. Last month I met a guy from offline. He came over and we had sex and he paid me. I saved all his info in my phone. I never delete text messages. So yesterday this guy calls me to hookup, and as soon as he walks in he identifies himself as a police officer. Mind you, we had sex before and I have his picture in my phone. He shows me a arrest warrant (no other officer enters but him). I hear other officer talking speaking to him on his radio. He also searched my place and then tells me that another officer will call me to give me a citation. So once he leaves an hour later, he calls me and tells me that he spoke to his supervisor and they will not be arresting me. This cop took my phone and deleted evidence of himself to not incriminate himself. And also had sex with me prior to this incident. I feel violated. Can a cop legally do this?


The question asked is whether the police officer engaged in illegal conduct by paying for sex and then trying to charge the escort with prostitution. The governing rule here is entrapment. Entrapment occurs when, an otherwise non-inclined individual is enticed into breaking the law by the actions of the police (or other government agency). The degree of "non-inclined" is a hotly debated topic in defense circles, and there is no clear standard. The Supreme Court has opined in Jacobson v. United States, 503 U.S. 540, 548-49 (1992). Government failed to prove that the defendant was predisposed to purchase child pornography, even though he had become so predisposed following solicitation through an undercover "sting" operation. The holding states that where there is no predisposition to the alleged offense, and the defendant is induced by the actions of the government, the affirmative defense of entrapment shall be available.

A different approach has been discussed by the Supreme Court and varied between acceptance and rejection over the years. This objective approach looks to the conduct of government agents and not the predisposition of the defendant. If the government creates a substantial risk that the person solicited will engage in the proscribed conduct, the defense would be available. Sorrells v. United States, 287 U.S. 435, 458-59 (1932) (separate opinion of Justice Roberts); Sherman v. United States, 356 U.S. 369, 383 (1958) (Justice Frankfurter concurring); United States v. Russell, 411 U.S. 423, 441 (1973) (Justice Stewart dissenting); Hampton v. United States, 425 U.S. 484, 496-97 (1976) (Justice Brennan dissenting).

Those last cases, and more information on entrapment and a review of additional court cases, see Justia 14th Amendment and Entrapment.

In the instant example, most likely this would not constitute entrapment. Because the woman in question was previously engaged in illegal activity, and has indicated a predisposition for this conduct, the police officer would not be engaged in entrapment. Misconduct? Probably. But conduct allowing the defense of entrapment -- not likely. The defense is narrowly tailored and limited -- however, it should always be raised whenever government conduct leads to the charge.

If you have questions about criminal law, entrapment, or sexual crimes, contact us! We specialize in serious criminal matters, family law, and immigration. Let us help you -- 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, 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.