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Saturday, July 23, 2016

Someone threatens to show your nude pictures...what do you do?

A great question was asked about how to handle a threatening letter involving pictures. I answered the question, and thought I would share the results here. The question was:
if I find naked pictures of me in an envelope and an anonymous note threatening to show these to my boss what can I do?

Absolutely there are things that can be done. First, you have to decide if you want to take this a civil route, or a criminal route. Although it does not appear there was a demand associated with the threat, generally when you are threatened with an "impending" action, the suggestion is that there is something you can do to avoid the event (i.e. the pictures being revealed). You've heard the term "blackmail" -- well your envelope and the implicit demand are where the term "black mail" comes from.

If you pursue this criminally, you will file a police report and demand action under VA Code 18.2-372-376. I cite VA code because the individual asking the question mentioned she was in VA - obviously, each state has a similar statute or statutes. This code section deals with criminally obscene materially (in this case, an attempt to publish nude and lascivious photographs for the purpose of profit). If you pursue this under a civil action, you will seek a restraining order to prohibit any act by the wrong-doer. Once awarded a restraining order, you will then sue under violation of privacy and intentional infliction of emotional distress theories, citing to the protective order to avoid summary judgment.

Both of these actions should be taken under the guidance of an attorney. DO NOT let yourself be bullied. Give us a call and we can help. 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864
admin@hanoverlawpc.com

Friday, July 22, 2016

When is a DUI an aggravated felony? When it involves a child.

I subscribe to an immigration lawyer group, and a great question was asked about DUI's. I thought I would share this. The question dealt with whether a DUI was a CIMT. Oh, and the person was also convicted of child endangerment. My answer follows:

I’m not a CA attorney, of course, but in terms of CIMT issues, the hallmark is “willful” conduct. This is not always determinative, but it is a good place to start your inquiry. Looks like “willful” is an element of CA penal code 273a(a) which reads:
Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.

The term has meaning beyond mere intent. Willful means knowing of the risk or impact before-hand, and choosing to pursue it regardless ( “purposefully doing wrongful acts with knowledge or appreciation of the likelihood of resulting injury” Tighe v. Diamond, 80 N.E.2d 122 (1948)). Willfulness in the criminal context is almost always considered a moral breach, making a crime with this element a CIMT. I also believe this is a felony?

If the DUI included placing the child in danger, that is definitely a CIMT.

The question of whether child endangerment is a CIMT when in conjunction with a DUI is answered in Hernandez-Perez v. Holder, 569 F.3d 345 (8th Cir. 2009). “While Hernandez–Perez is correct that a “simple operating a motor vehicle while intoxicated” conviction would not qualify as a crime involving moral turpitude, the aggravating factor here is present in the child endangerment statute's requirement of a conscious disregard of a substantial risk to a child in his care.” Id at 348.

Again, you see the willful component. That’s the kicker.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864
admin@hanoverlawpc.com

Tuesday, July 19, 2016

DOD Security Clearance -- or EEO Violation? What happens when you are denied a job because you don't get a clearance?

A potential client contacted us with a very frustrating problem. He was a retired disabled veteran looking to get a federal job. He received an offer letter, but could not be placed until his clearance came through. His clearance ended up being lost in "limbo" and the job offer was revoked. He was angry and sought to sue the government for discriminating against him. Our answer:

Unfortunately, however, you are in a bit of a pickle. The government designates certain positions as requiring a clearance. The level of clearance, and the nature of the clearance, are strictly up to the government. However, your ability to pass a background investigation is always a contingency requirement of employment in such a cleared position. The Service cannot control whether you pass or do not pass your background investigation. Their termination of your job offer is entirely in line with both the law and precedent. You won’t get any traction there. Quite literally the Service has no control on your clearance process, and has no choice but to let you go when you can't get a clearance.

You have a little more clout with the clearance process itself. There is a vehicle to appeal a denial, or seek information on the status of your clearance, and that would be the first area you should concentrate on. However, working with DOHA -- Defense Office of Hearings and Appeals – is a tricky and complicated process. They handle all DOD related security matters – including those such as yours which usually end up with a SOR – Statement of Reasons – for why they are not moving forward.

You could petition DOHA for a review of your clearance, and if approved, re-apply for the position. However, that is the only legal avenue you have open in this case. Additionally, such an appeal may be denied outright, as you no longer have a reason to hold a clearance, and such appeals are expensive – starting at around $4500.

We have considerable experience with EEO cases -- and also with clearance cases! Do you have questions about Directive 5220.6, Guidelines/Mitigation factors, or Statement of Reasons? We can help! Don't be caught without a lawyer where you job, and credibility, are on the line. Call us immediately at 1-800-579-9864.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864
admin@hanoverlawpc.com