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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.