Federal Defense Attorney John Teakell

The Adam Walsh Child Protection and Safety Act enacted by Congress in 2006, has recently been declared to be unconstitutional by one federal court.  On June 11, 2008, United States District Judge Donald W. Molloy found that Congress cannot federally criminalize a sex offender’s failure to register in a state-run database. In a lengthy opinion, Molloy found that Congress exceeded its authority by making it a federal crime for a sex offender to travel to another state and fail to re-register in that jurisdiction. Molly also held that a provision of the National Sexual Offender Registration and Notification Act is unconstitutional and dismissed a federal indictment accusing one sex offender of failing to register in Montana.

25 Years Later the Bill Becomes Law

The Adam Walsh Child Protection and Safety Act became law on the 25th anniversary of the abduction and murder of Adam Walsh on July 27, 1981, in Hollywood, Florida. Adam Walsh’s body was found 16 days after his abduction, and the perpetrator of the crime has yet to be found. John Walsh, Adam’s father, is the host of the television series America’s Most Wanted. John Walsh, along with the National Center for Missing and Exploited mounted an aggressive campaign for several years to get the bill passed into law.

Under the terms of the Act, failure to register and update information is made a felony under the law. It also creates a national sex offender registry and instructs each state and territory to apply identical criteria for posting offender data on the Internet such as the offender’s name, address, date of birth, place of employment, photograph, etc.

The Court’s Decision may have an Impact on Similar Cases

The case which declared the law unconstitutional was United States v. Waybright, No. CR 08-16-M-DWM (Dist. Mont. June 11, 2008). Bernard L. Waybright, 58, was convicted of a misdemeanor sex crime in a West Virginia state court in 2004. As part of his sentence, he was required to register under the federal Sexual Offender Registration and Notification Act, which keeps track of where sex offenders reside. However, Waybright ignored these rules when he traveled to Montana on several occasions and did not re-register with local law enforcement authorities, as required by federal law.

In the Court’s order for dismissal, Molloy dismissed the indictment finding that the enactment of a particular provision requiring all sex offenders to register, regardless of whether they travel in interstate commerce, is not a valid exercise of Congress’ power under the United States Constitution. Molloy therefore declared the provision unconstitutional. “This would allow Congress to federalize nearly any local criminal offense simply by making it a crime for someone who committed the offense to travel in interstate commerce at some point in his life,” Molloy wrote in the opinion.  The Judge also found his decision could potentially clear the way for other similar indictments to be dismissed on the same grounds.

According to United States Department of Justice Statistics, more than 90% of defendants that are indicted and charged in federal court avoid trial and accept a guilty plea. A defendant that chooses to plead guilty to a federal charge does so in accordance with the Rule 11 of the Federal Rules of Criminal Procedure. Under Rule 11 a plea agreement may specify that an attorney for the federal government will:

(A) not bring, or will move to dismiss, other charges;

(B) recommend, or agree not to oppose the defendant’s request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request does not bind the court); or

(C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).

Benefits of Pleading Guilty

For most federal defendants, the most obvious benefit of plea bargaining is receiving a lighter sentence than what may result from taking the case to trial and losing. Under the United States Sentencing Guidelines Chapter §3E1.1 a defendant may receive a reduction of two levels from the overall offense level if he demonstrates an acceptance of responsibility. If the offense level is higher than 16, and the defendant demonstrates an acceptance of responsibility in a timely manner that enables the government to avoid preparation for trial, then the defendant may receive a reduction of three levels.

Appellate Waivers

The United States Department of Justice has recently implemented a policy that encourages Assistant United States Attorneys to place a waiver of all appeal rights in plea agreements. This can have a significant impact on the resulting sentence since most pleas are taken without the court being bound by the terms of the agreement. If the defendant agrees to a plea containing such a wavier and then is sentenced to more time than expected, he will not be allowed to appeal the resulting sentence unless the court upward departs from the guidelines.

The Impact of Prior Convictions

Prior convictions can have an enormous impact on plea negotiations. Many times if a defendant has a prior drug conviction an enhancement under 21 U.S.C. § 851 can become a significant bargaining chip for prosecutors. The use of an 851 enhancement can result in basically doubling the potential sentence a defendant faces. If a defendant has prior convictions, it is vital when negotiating a plea to have the correct language in the agreement that the government will not seek the enhancement.

Upward and Downward Departures

Finally, one of the most important aspects of negotiating a federal plea is the defendant’s agreement with the government not to seek upward departures or object to the defendant’s request for a downward departure. Again the language of the plea agreement is critical concerning departures. Considering the fact that most guilty pleas do not bind the court it is essential that the defendant at least binds the government to the terms of the plea.

If you or a loved one needs a defense attorney in Dallas contact John Teakell.

With many states relaxing the penalties for possessing marijuana, one federal law maker believes that the federal government should do the same. Representative Barney Frank (D-Mass.), introduced the bill H.R.5843 Act to Remove Federal Penalties Marijuana Use which would eliminate federal penalties for the possession or not-for-profit transfer of small amounts of marijuana. The bill would remove federal penalties at the federal level only for: (1) possession of up to 100 grams of marijuana and (2) the not-for-profit transfer of one ounce (28.3 grams) of marijuana. Additionally, the legislation would decriminalize the public use of marijuana and call for a civil penalty of $100 instead.

Proponents Praise the Bill

NORML, a recognized organization on legalizing marijuana, said the bill is a common sense approach that will refocus law enforcement resources on fighting violent and more serious crimes. NORML founder and Legal Director Keith Stroup noted that according to recent media polls, marijuana decriminalization currently enjoys support from the majority of Americans. “If passed by Congress, this legislation would legalize the possession, use, and non-profit transfer of marijuana by adults for the first time since 1937,” Stroup said.

Not Everyone is Thrilled with the Idea

Critics of the bill argue that the potency of marijuana has risen consistently over the past decades and higher potency translates into serious health consequences for users. They stated that some studies show that higher potency marijuana may be contributing to an increase in the number of American teens seeking treatment for marijuana dependence. Critics also noted that the use of marijuana leads to harder drugs and can have a drastic impact on society from individuals committing crimes seeking to support that drug use.

Proof that the Law will Work

Currently, twelve states have enacted various versions of marijuana decriminalization, eliminating criminal penalties for minor violations. Similar statewide legislation is pending in New Hampshire and Vermont. Additionally, Massachusetts voters will decide on a statewide decriminalization measure this November. According to federal data, passage of these laws has not subsequently led to increased marijuana use. Rep Frank strongly stands behind the bill, “It’s time for the politicians to catch up with the public on this [issue],” Frank said. “The notion that you lock people up for smoking marijuana is pretty silly.”

The bill has been referred to the Subcommittee on Health and is currently awaiting a vote.

If you or a loved one is facing a drug possession charge, contact John Teakell, Dallas drug possession defense attorney.

In an effort to combat internet piracy theft, federal law makers in the House of Representatives recently approved legislation that would give federal law enforcement officials new tools to combat the theft of U.S.-owned intellectual property (IP), including copyrighted materials. The bill formally known as H.R. 4279, Prioritizing Resources and Organization for Intellectual Property Act of 2008 would significantly increase criminal and civil penalties for piracy and counterfeiting copyrighted materials.

If passed into law, the bill would establish an Intellectual Property Enforcement Division within the office of the United States Deputy Attorney General. The bill would also allow federal authorities to seize computers and hardware that has even one illegal file stored on it which authorities believe may have been downloaded from places such person to person file exchange sites. The bill is now slated for approval by the Senate.

Changes are Proposed

In addition to establishing an IP Enforcement Division, the bill also seeks to amend 18 U.S.C. §2320 by making the following changes:

(a) In General- Section 2320 of title 18, United States Code, is amended–

(1) in subsection (a)–

(A) by striking `Whoever’ and inserting `Offense-

`(1) IN GENERAL- Whoever’;

(B) by moving the remaining text 2 ems to the right; and

(C) by adding at the end the following:

`(2) SERIOUS BODILY HARM OR DEATH-

`(A) SERIOUS BODILY HARM- If the offender knowingly or recklessly causes or attempts to cause serious bodily injury from conduct in violation of paragraph (1), the penalty shall be a fine under this title or imprisonment for not more than 20 years, or both.

`(B) DEATH- If the offender knowingly or recklessly causes or attempts to cause death from conduct in violation of paragraph (1), the penalty shall be a fine under this title or imprisonment for any term of years or for life, or both.’

If passed, the bill also instructs that the United States Sentencing Commission shall amend the Federal sentencing guidelines and policy statements applicable in any case sentenced under section 2B5.3.

Lawmaker’s Goals are more Prosecutions

According to statistics cited by lawmakers, counterfeiting and piracy have already cost Americans approximately 750,000 jobs and deprive U.S. businesses of almost $250 billion in revenue each year. Lawmakers hope to curb this trend by seeking more prosecutions of IP theft. The bill “is a step in the right direction for IP enforcement and the economy,” added Rep. Lamar Smith (R-Texas), a cosponsor of the legislation. Smith said the Department of Justice filed only 217 cases for IP violations in the last fiscal year, less than 1% of the total number of criminal cases filed in fiscal 2007 “The more cases brought, the greater the deterrent effect and the stronger the economy will be,” he remarked.

If you have been accused of piracy or another white collar crime, contact piracy charges attorney in Dallas John Teakell.