Federal Defense Attorney John Teakell

While the Courts have never brightly defined under the law who actually has a right to own a firearm, the presumption has always been that there is no individual right bestowed upon the citizens of this country.

The Second Amendment to the United States Constitution is currently creating a quite a stir in the federal courts. For those that are not familiar with the Second Amendment, it provides as follows: A well regulated Militia, being necessary to the security of a the right of the people to keep and bear Arms, shall not be infringed.” Experts believe that the Second Amendment creates an unlimited right upon individuals to own guns or other weapons. Others disagree and seem to believe that the Second Amendment allows reasonable regulation of gun ownership, such as licensing and registration.

The United States Supreme Court may be putting this issue to rest soon. The question of whether or not an individual has a constitutional right under federal law to own a firearm is being heard in the case District of Columbia v. Heller, No. 07-290. The court granted certiorari in response to an appeal from Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), which was a decision from the United States Court of Appeals for the District of Columbia Circuit. The D.C. Circuit became the first federal appeals court in the United States to rule that a firearm ban was an unconstitutional infringement of the Second Amendment. The appellate court then took it a step further and held that the Second Amendment does protect an individual’s right to possess firearms for private use.

A victory for Heller will likely inspire acknowledged gun owners in other jurisdictions to challenge restrictive gun laws passed by states and cities. Accordingly, many commentaries believe that the Supreme Court appears poised to rule that the Second Amendment protects a private right to possess and use firearms. Does “bear” literally mean the right to carry a gun with you wherever you go, or is the fact that you can have one in your home enough? Moreover, does “arms” mean you can have absolutely any kind of weapon you want, or does the government have the right to say which arms are permitted and which are not? Hopefully, the United States Supreme Court will soon answer these questions for us.

Is it against the law to be present in a home where illegal drugs have been recovered and someone has been placed under arrest? The answer would depend on whether or not there was knowledge of the illegal activity. In most states juries are instructed that merely being present at the scene of a crime, even with knowledge that an offense is being committed, is not enough to convict a person of the crime. On the other hand, there are principles of criminal liability that can apply to people even though they are not the actual perpetrator of a crime. For example, under federal law one can be charged with misprision of a felony, which applies to a person who has actual knowledge of the commission of a felony and conceals it from the authorities. This offense, however, requires active concealment of a known felony rather than merely failing to report it.

A person may also be held criminally liable as an accessory after the fact if he has knowledge that a crime was committed and assists the offender to hinder his apprehension, or punishment. In addition, a person can also be guilty of aiding and abetting a crime if they help another person in committing an offense, with knowledge of the criminal nature of the act they are committing. However, merely witnessing a crime, without any participation in it and without providing assistance is not a crime.

The police, when deciding whether to charge an individual, usually consider certain factors such as proximity to the illegal substance. For instance, if drugs are located in an individual’s bedroom then this may prove to be very damaging. Other factors such as cooperating witnesses and physical evidence also are taken into account by the police in making a determination whether to charge someone or not. Thus, mounting a successful defense to a charge of accessory after the fact or misprision of a felony requires examining the facts on a case-by-case basis.

Drug charges cover a broad range of offenses, from the less severe, such as simple possession of a small amount of drugs, to the more serious, such as participation in the ongoing manufacturing or distributing of drugs. Even minor drug charges can be frightening and carry the risk of serious penalties upon conviction. The more serious drug charges, of course, can give rise to even graver consequences. In addition to prison time, another significant consequence can be the loss of custody of children in the household.

Issues involving child custody are very complicated especially when one or both of the parents have been charged with a drug offense. Since the issue of child custody is a civil matter, the case will generally be assigned to a family court judge. It is important to note that the case in family court can proceed against a parent even though he/she has not been actually convicted of the drug offense. The standard of proof required in family court is much more relaxed than in criminal court and there is no limitation regarding the information the judge may consider in making a determination on the custody of a child.

If either parent is contesting that the other should not be given custody or visitation then the matter can get even further complicated. When one parent has placed the child in a dangerous situation (this includes exposing the children to illicit drugs) this parent’s right of visitation can be denied and the other parent awarded sole legal and physical custody. In the alternative, the court can also order sanctions such as drug treatment and random tests to insure the safety of child.

Ultimately, the child’s welfare is the court’s paramount consideration. Of course, the fact of the personal relationships or circumstances of the parents are going to be relevant. The court will undoubtedly want to know if the fact that a parent is involved in drug activity is going to impact upon their ability to care for the child. The overall issue the family court will focus on is how the drug offense impacts that parent’s ability to adequately care for the children.

The Fourth Amendment to the United States Constitution is perhaps one of the most frequently litigated constitutional amendments in the courts. The purpose of the Fourth Amendment is to protect “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The right to be free from unreasonable searches and seizures is a right guaranteed to every American citizen. The point of this right is to limit the government from unnecessary intrusions into your rights as a free citizen.

An unreasonable search and seizure issue most often arises when law enforcement searches a car after a traffic stop. The question then becomes whether the officers had reasonable suspicion to stop the car in the first place and/or probable cause to search the vehicle. If the police have seized property obtained through an illegal vehicle search, the seizure of the property is considered unreasonable.

An unreasonable search and seizure can also occur when law enforcement seeks to search a person’s home. In order for a search to be valid, the police must first obtain a warrant, which is supported by probable cause, and describes the place to be searched with particularity. If these requirements are not met, the defendant can petition the court to exclude the evidence at trial. The court will then determine if the police conformed to the requirements of the Fourth Amendment when obtaining the warrant and can order that the evidence not be allowed in trial under the exclusionary rule.

If the police search someone’s property without a warrant, the search is considered unreasonable unless exigent circumstances existed at the time of the search. The burden is then placed on the prosecution to prove that the police believed that there was an imminent danger that required an immediate search. Examples of such danger include, gunshots, a person screaming, or fire emanating from inside a building. Courts have also held that destruction of physical evidence can provide the police justification to search property in order to prevent its destruction. If any of these reasons exist then the Fourth Amendment’s warrant requirement is not violated.

If you believe that you are the victim of an unconstitutional search then it is imperative you contact an attorney.

Of all criminal charges, the most intimidating can be federal charges. This is especially true when one is dealing with a federal conspiracy charge. Some may ask just want exactly is a conspiracy? A conspiracy exists when two or more people form an agreement to do some act or refrain from doing some act. A conspiracy to commit a crime is a crime in and of itself, which means that conspiracy is charged as a separate offense and apart from the crime that the parties to the conspiracy conspired to commit. There are several reasons for a prosecutor to charge someone with conspiracy, and despite the fact that the law defines conspiracy as “agreement” between two or more persons, only one person need intend to commit a crime out of the conspiracy.

Most federal statutes require that the government prove at least one of the co-conspirators committed an overt act during the course and in furtherance of the unlawful agreement. For example, an overt act is required for a conspiracy under 18 U.S.C. §371 (to commit offense against or to defraud the United States), 18 U.S.C. §1117 (to commit murder); 18 U.S.C. §1201 (kidnapping); and 18 U.S.C. §1751 (Presidential assassination). However, an overt act is not required for 18 U.S.C. §241 (violate civil rights); 18 U.S.C. §2385 (advocate overthrow of government); 21 U.S.C. §846 (drugs); and 21 U.S.C. §963 (RICO).

In order to be convicted of a conspiracy the evidence must prove the defendant knew of the conspiracy, purposefully associated themselves with it and affirmatively cooperated in it, or at least agreed to cooperate in the objective of the conspiracy. However, the law is established that mere presence at a location, even with knowledge that a crime is being committed there, is not sufficient to establish that a defendant was a member of the conspiracy.

The punishment for conspiracy laws is generally the same as the punishment for the underlying crime agreed upon by the conspirators. However, many things can actually factor into the punishment. If the government believes that the conspiracy has been ongoing in nature, they may attempt to introduce evidence of all the prior acts of which they have knowledge. This is common in drug conspiracies where the quantities are often times added together to produce a much larger amount than may have actually been seized. Many times the government has obtained this information related to the conspiracy from a cooperating witness.

There are defenses to the crime of conspiracy. Thus, it is important to hire counsel who has experience in this area of the law.

If a defendant has been indicted by the federal government for a violation of the narcotics statute, 21 U.S.C. § 841 (b), and he has a prior conviction for a drug offense, the penalties can become quite severe. The mandatory penalties can double in prison time if a defendant has a previous drug conviction. The statute 21 U.S.C. § 851 , dictates the procedure whereby the government establishes that a defendant has a prior conviction, hence triggering an enhanced statutory sentence under the drug laws.

The discretion whether or not to file the enhancement is entirely up to the prosecution. However, the court can only increase the statutory sentencing range of a drug crime based upon a prior conviction if the government files such notice of the prior conviction pursuant to this statute. 21 U.S.C. § 851 provides that the enhanced penalties set forth in § 841(b) are triggered only if the government files, before trial or the entry of a guilty plea, an information “stating in writing the previous convictions to be relied upon.” This language is mandatory and if the government fails to file an information before trial, or entry of a plea of guilt, then the court lacks jurisdiction to enhance a defendant’s sentence.

Once the Government proves the defendant has a prior conviction, the defendant then has the burden of showing that the convictions are invalid. This may be prove to be somewhat of a heavy burden since certain time requirements would apply that allow a defendant to dispute the previous conviction. 21 U.S.C. § 851(e) prohibits the challenge of a prior conviction which is more than 5 years old. Furthermore, although the United States Sentencing Guidelines exclude certain prior convictions after a certain period of time, under 21 U.S.C. §841(b), it makes no difference how old the priors are.

In short, although the attempt to overcome the use of a prior conviction in a drug offense is a high hurdle to overcome, it is not necessarily an impossible one. Court records will reveal if that prior that the government may want to rely on to enhance the sentence was constitutionally obtained.

Entrapment is the act of a law enforcement agent inducing a person to commit an offense, which the person would not have, or was unlikely to have, otherwise committed. An entrapment defense generally requires the defendant to prove that he never would have committed the crime absent the police trapping him. At the same time, the government will attempt to show that the defendant was predisposed to committing such a crime so as to negate the entrapment defense.

If the government is able to show that the defendant readily and quickly responded to a single invitation, then they may be able to establish that the defendant was inclined to committing the crime on their own. However, even if the defendant was predisposed to committing the crime the government may still be required to prove it was not the law enforcement’s suggestive nature that caused crime to be committed.

As an affirmative defense, a defendant who is claiming that he was entrapped is stating that he did in fact commit the crime for which he is being accused. What the defendant is suggesting is that he should be excused from criminal liability, because absent being lured to the crime or enticement to engage in the criminal activity, he never would have committed the offense. Federal law provides that a defendant can both plead not guilty to the act of the crime and claim an affirmative defense of entrapment. However, both defenses are seldom asserted simultaneously.

Generally, entrapment is most commonly asserted as a defense in sting operations. For example, in the case of a drug sting if the police put pressure upon a person to sell drugs who initially refuses, but is persuaded to do so, then they could be seen as entrapping that individual. In the process of such operations, the police often engage in the same so-called crimes as the target suspect in order to gain the trust of the individual. Sometimes this conduct may be unethical and rise to the level of entrapment.

There are certain limitations, however, on when a defendant may raise an entrapment defense. Serious criminal charges such as homicide or felony murder can never be a defense to entrapment. In addition, if a defendant has a criminal history he may have a difficult time proving an entrapment defense because the government will attempt to introduce evidence of the prior convictions. If the prosecution can demonstrate a previous history of similar crimes then it becomes extremely difficult to prove entrapment.

The circumstances under which an entrapment defense may be employed are fairly specific, but an attorney familiar with an understanding of entrapment defenses may be able to give you more information regarding a particular situation.

In recent years, several decisions by the United States Supreme Court have determined how federal courts now apply the federal guidelines at sentencing. The most notable is United States v. Booker, 543 U.S. 220 (2005), where the Supreme Court transformed the federal sentencing guidelines from mandatory to advisory as a way of curing a defect that rendered the guidelines unconstitutional.

In Booker, the Court directed that sentences meted out under the newly advisory guidelines should be reviewed, if challenged, by the federal courts of appeals to determine whether they are “reasonable.” In response, a number of appellate courts gravitated back to the guidelines. They affirmed as “reasonable” within-guideline range sentences, but vacated as “not reasonable” sentences that fell below the guideline range.

The picture became a little more cloudy last year with the decision Rita v. United States, 128 S. Ct. 19 (2007). There the Supreme Court addressed whether a within-guideline sentence could be “presumed reasonable” and determined that it could. The question of how or whether the presumption applies to sentences below the guideline range was not decided because the petitioner in the companion case, Claiborne v. United States, 127 S. Ct. 2245 (2007), died while it was pending and his case was dismissed.

In the fall of 2007, the Court granted certiorari to the case Gall v. United States, 128 S.Ct. 586 (2007) to answer the question that it was not able to do in Claiborne. On December 11, 2007, the Supreme Court ruled that federal district court judges have greater latitude in imposing a sentence that falls outside the Sentencing Guideline range for a particular sentence. The Court held that district courts need not be required to give “extraordinary reasons” for departing from the Guidelines, as long as they do no abuse their discretion in imposing a particular sentence.

The Court was not finished yet as it had granted another case by the name of Kimbrough v. United States, 128 S. Ct. 558 (2007), certiorari in order to answer additional questions about the use of the guidelines at sentencing. In Kimbrough, the Supreme Court affirmed that district court judges have the discretion to deviate from federal sentencing guidelines and to consider other factors - including disparities in crack and powder cocaine sentences - when issuing sentences to drug offenders. This decision seemed to go hand in hand with the United States Sentencing Commission’s amendment to the guidelines that reduced the crack offender offense levels due to disparity.

Many experts agree that these decisions have given federal district judges back the discretion that was once stripped away from them at sentencing. In the pre-Booker days, the sentencing judge had no choice but to follow the guidelines or else run the risk of being reversed by a government appeal in the appellate court. Finally, these district judges are now free to exercise some long overdue common sense in determining an offender’s sentence.

Eyewitness testimony, which relies on the accuracy of human memory, has an enormous impact on the outcome of a trial. In criminal cases, eyewitnesses frequently play a vital role in uncovering the truth about a crime. The evidence they provide can be critical in identifying, charging, and ultimately convicting suspected criminals. However, eyewitness testimony is not infallible. No evidence seems more convincing upon its first hearing, yet is more unreliable, than eyewitness identification testimony. Even the most honest and objective people can make mistakes in recalling and interpreting a witnessed event. There can be no reasonable doubt that inaccurate eyewitness testimony may be one of the most prejudicial features of a criminal trial.

Time and time again, eyewitness testimony has proven to be unreliable, sometimes resulting in the conviction of innocent persons. In response, the criminal justice system has gradually implemented a variety of procedural protections which include jury instructions, line-ups, the suppression of unreliable identifications, etc. Since jurors tend to put a lot of faith in eyewitness testimony, a mistaken identification defense requires careful planning and execution. A defense attorney’s role is to approach the subject of eyewitness testimony with a critical and skeptical eye. The defense must educate the jury about the possibility, or even probability, of mistakes. Although the eyewitness may make a ”positive” identification of a defendant, it is imperative that the defense attorney be prepared to demonstrate that certainty is no guarantee of accuracy. Therefore, a goal of the defense is to demonstrate to the jury how an eyewitness can be honestly mistaken, by pinpointing the causes and reasons for the error.

Many jurisdictions have a preliminary hearing or probable cause hearing as a first stage proceeding. Although the Confrontation Clause guarantees do not apply at such a stage, nonetheless in many jurisdictions the complainant and/or an eyewitness will be called to testify. One of the purposes of preliminary examination, aside from discovering potential damaging testimony, is to become familiar with the witnesses, their temperaments, character, demeanor while testifying, and any other important mannerisms. This information, sometimes as much as the actual testimony, must be previewed before the witnesses are actually called and examined before the jury at trial.

Even though defense counsel can challenge eyewitness testimony, it will be the judge or the jury who will weigh this testimony against other pieces of the evidence to determine what indeed happened at the time and place in question. There is no denying that eyewitness testimony can be persuasive evidence before a judge or jury, especially in criminal trials. Research has shown, however, that eyewitness testimony can be systematically fallible in ways that undermine the goals of the rules of evidence. This does not necessary mean that eyewitness testimony is always inaccurate - it just means that there are legitimate grounds (and perhaps reasonable doubt) to challenge a case when the only evidence is eyewitness testimony.

Federal law prohibits any person who has ever been “convicted in any court of a crime punishable by imprisonment for a term exceeding one year” to ever or for any reason “possess… any firearm or ammunition.” 18 U.S.C. 922(g) makes it a federal crime for any person who has ever been convicted of any felony to ever possess any firearm regardless if it is inside or outside of the home. This blanket federal ban on all felon gun possession is punishable with up to 10 years of imprisonment.

There are exceptions to this rule in some instances. Federal law contains an explicit statutory exclusion which provides that the federal criminal offense of firearms possession is inapplicable to persons who has had their civil rights restored on the predicate state felony conviction. 18 U.S.C. §921(a)(20) provides:

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly [or implicitly as a matter of state law] provides that the person may not ship, transport, possess, or receive firearms.

Whether a person has had his civil rights restored for a state conviction is a matter determined by state, not federal law. However, for federal law to recognize the state restoration of rights exception, the terms of the restoration must include the right to vote, the right to seek and hold public office, and the right to serve on a jury. If the restoring state includes the three aforementioned rights then federal law contains an additional clause that must be examined. This clause looks to the actual state law to see if there are any restrictions imposed on the right of the convicted felon to possess a weapon. If there is some added firearms restriction under state law, then the federal clause is triggered to make the possession of any firearms unlawful under federal law, despite the state’s restoration of civil rights.

Is there any other way to regain the right to own a gun? In theory, one can submit an application to the Bureau of Alcohol, Tobacco, Firearms, (ATF) under 18 U.S.C. § 925(c) requesting restoration of your gun rights. The application is supposedly granted if “it is established . . . that the circumstances . . . and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.”