Monday, February 14, 2011

AVVO Questions Answered

Recent Questions Answered on AVVO

Attorney Kevin Barron

1. A federal criminal case can be dismissed before trial if it is shown conclusively or the government admits that it cannot prove a part of its case. For example, the the gun found in the hands of a felony in possession had not moved in commerce. What you're talking about, though, is not really a question of jurisdiction, as that term is meant in the technical legal sense. The federal government pretty much always has jurisdiction, but there are instances where a prosecutor might not have evidence to proceed for want of evidence of some statutory element of the crime.

2. Remember, this is public discussion of current events and not lawyer client advice. Consult your own lawyer. If you qualify as unable to pay for your own counsel, you will get a CJA Panel attorney or an Federal Defender, both usually having more training and expertise than retained counsel.

Feel free to contact me

3. You need to file an answer in the divorce action and oppose. Without knowing more, you could deny the existence of irreconcilable differences and oppose further court action. There are circumstances under which the Family and Probate Court can order an evaluation, but bear in mind that civil commitment has a high legal hurdle. I sympathize with you problem.

I Conduct a Divorce Practice As Well

4. The defendant needs to pursue direct appeals and seek collateral review. If defendant was tried as an adult, as your question suggests, the he gets an automatic or "unitary" collateral review in the Supreme Judicial Court, however, defendant may make motions of his own under Rule 30 to attack the judgment of conviction. Often defendants go through the system without sufficient investigative resources devoted to uncovering exculpatory evidence, though I would remark that the Commonwealth here is considered as a nationwide example for indigent legal services. Massachusetts has a unique rule (to my knowledge) allowing a defendant to attack the lawfulness of his conviction at any time where as the great majority of jurisdictions and the federal courts allow only a short limitations period after the judgment becomes final (usually once appeals are exhausted). A collateral attack on a murder conviction is serious business. Many defendants are disadvantaged in that the are appointed a lawyer too later in the proceedings.

Habeas Corpus Practice

5. You would need answer the divorce complaint and move for enforcement of the automatic order restraining the parties from transferring assets. You should do this immediately because money, investments and other personal property are often impossible to get back.

My site

6. Of course I can't give real legal advice here on an open forum etc., etc, but if I were you, I wouldn't give an inch. Do not accept any disposition that requires you to make an admission of criminal conduct. You have to be willing to go the distance, but you have a clean record and should fight to keep it. Don't give in.

7. The basic crime w/o aggravating factors carries a 0 - 20 penalty. If defendant puts anyone's life in jeopardy or commits assault in the course of the robbery, the penalty is 0 - 25. If the defendant commits kidnapping or causes death, 10 - life or death. There's also an additional consecutive sentence for conduct with firearms where applicable.

There's not much glamor or excitement in bank robbery. The great majority of bank robberies are committed by addicts passing a note to the teller claiming to have a gun. A great many of these are caught within hours passing dye-marked notes to buy narcotics. Most people who commit a bank robbery in those circumstances end up with about 12 - 15 years because they have priors and qualify as career offenders.

If the defendant is armed and has a record, he's usually looking at a 20 - 30 year sentence.

8. Emails are also governed by the Electronic Communications Privacy Act (ECPA) and the Patriot Act. Although the ECPA originally set up protections (such as a warrant requirement) to protect email, those protections have been weakened in many instances by the Patriot Act. Even where the protections remain under the ECPA, emails lose their status as a protected communication in 180 days, which means a warrant is no longer necessary and your emails can be accessed by a simple subpoena. Be sure to clear your mail server after 90 days.

9. There is no expungement of a federal conviction. A defendant may institute a collateral attack under 28 USC 2255, but any such claims, if they existed, would very likely be time barred under AEDPA's one-year statute of limitations. The only circumstances that might allow a collateral attack at this point (if there ever was such claim), would probably be newly-discovered evidence of innocence. If you are represented by an Assistant Federal Public Defender or a Criminal Justice Act Panel attorney, you should contact him. AFPD's and CJA lawyers tend to be experts in Federal Criminal Practice and almost always have greater knowledge and ability than retained counsel.

10. The state and federal courts have different statutory mandates. Much conduct that is a violation of state law is also a violation of federal law. Embezzling from the bank may be state-law theft or embezzlement but it is usually also bank and mail fraud, depending on how the crime is accomplished. Drug distribution crimes are an area of total over lap. Practically every state-law drug distribution crime is a violation of the Controlled Substances Act.

11. You ask whether there one can get tried for the same offense in state and federal court and the technical answer is no. The state-law offense and the federal offenses are different offenses. As a constitutional matter, the state and the government are "independent sovereigns" and each is entitled to enforce its criminal law. A good example of this was the prosecution of the police in the Rodney King case where the government convicted the officers of civil rights crimes after the California aggravated assault prosecutions ended in acquittal.

12. Making the following assumptions in this answer:

You're in federal court;

The Judge will apply the FSA (as most are doing);

You possessed 28+ grams of cocaine base with intent to distribute;

You possessed the gun in connection with the drug offense;

You did not brandish or discharge the gun;

You would be exposed to five years for the cocaine and another five years consecutive for the gun, maybe more depending on whether you possessed armor piercing ammunition in violation of the NFA.

This response is merely part of public debate on current issues in the law and not lawyer client advice. You need (and probably already have) a lawyer. If you have access to a computer, then you on on some form of bail. If you are charged federally, you will have to fight hard for supervised release.