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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.