Articles Tagged with USAO

black-and-white-gun-1409524-mLast year, in Palmer v. District of Columbia, a federal judge in the United States District Court for the District of Columbia held that the District of Columbia’s carrying a pistol statute was facially unconstitutional. In a lawsuit that had been pending for several years, the judge granted the plaintiffs’ request for an injunction. The judge enjoined the city from enforcing provisions of the D.C. Code that imposed an absolute bar on carrying pistol in the District of Columbia.

The Court also held that the Court could not categorically bar out of state residents from possessing a firearm in the District of Columbia solely on the basis that they are out of state residents. The consequences of this ruling were far reaching and the full effect of this decision has yet to be seen.

After a few days, the judge in the Palmer case, the judge granted the government’s request for a stay so that the District could come up with a licensing scheme that complied with the court order. The practical result was that hundreds of people charged with felony carrying a pistol in DC Superior Court had their charges dropped by the United States Attorney’s Office for the District of Columbia. Folks charged with felon in possession were not affected by Palmer.

The Attorney General’s Office for the District of Columbia (“OAG”) re-filed misdemeanor charges against most of the people who’s carrying a pistol charge was dismissed. The OAG has jurisdiction over mostly traffic crimes—like DC DUIs and DC hit and runs. However, OAG also has jurisdiction over two misdemeanor gun charges—unregistered firearm (“UF”) and unregistered ammunition (“UA”).

It appeared that the USAO acknowledged that it could no longer prosecute individuals for carrying a pistol under a statute that a federal judge found unconstitutional. The OAG took the position that Palmer did not impact the registration crimes—UA and UF. So, while many people were fortunate to have their felony charges dropped, they still face prosecution for two serious misdemeanors. Litigation is ongoing in DC Superior Court as to the impact, if any, Palmer has on the registration crime.

At Scrofano Law PC, we are aggressively challenging the constitutionality of the UF and UA charges as applied to out-of-state residents who have lawfully registered their firearms in their home state. The main takeaway from Palmer is that the Second Amendment guarantees the right to keep and bear arms for self-defense. Palmer thus recognized a right to carry as part of the Second Amendment. The District’s registration scheme makes it impossible to exercise that right for nonresidents who cross into the District.

In addition, the District passed a new carrying a pistol without a license law in October of 2014 to theoretically comply with the judge’s decision in Palmer. However, the plaintiffs in Palmer have challenged that new law and moved for contempt against the District arguing that the new law is just as restrictive as the old law.  That litigation is ongoing.

In reality, if the government simply took a reasonable approach to offering diversion for law-abiding, nonresidents who happen to get arrested for possessing a firearm in the District, they would avoid many of these challenges. The OAG and USAO will almost categorically refuse to offer folks in this situation some type of deal that involves community service in exchange for a dismissal. For whatever policy justification, the powers that be seem to think it benefits society to have law-abiding first offenders who did not know how strict the District’s gun laws convicted of crimes.

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This post is the third and final in a three part series that addresses what diversion is in DC criminal law.  The first part discussed deferred prosecution agreements.  Part two discussed deferred sentencing agreements.  This part will discuss the DC Superior Court’s problem solving court options that include Mental Health Court and the Superior Court Drug Intervention Program or “Drug Court.”  These options are available to people charged by the United States Attorney’s Office and if successfully completed can result in the dismissal of one’s case.gavel

In both courts, the central focus is treatment rather than incarceration.  In Drug Court, the focus is exclusively on the person charged getting drug treatment.  In Mental Health Court, the focus is typically on both drug treatment and mental health treatment, which typically go hand in hand where someone suffers from both a mental health illness and a drug addiction.  If someone completes either court successfully, the government will usually dismiss that person’s criminal case.  Not everyone can enter these programs.  For both problem solving courts, the person must be approved by both either the United States Attorney’s Office (“USAO”) or the Pretrial Services Agency or both.  So, it is important, if you are interested in resolving your criminal case through a problem solving court, to have a DC criminal defense lawyer who will advocate on your behalf to help get you into the court that most fits your situation.

The government has the power to veto someone’s entrance into Mental Health Court.  Accordingly, the USAO has specific eligibility requirements before it lets someone into this problem solving court.  Individuals with certain disqualifying convictions on their record may not be eligible.  In addition, if the person has received the benefit of the program in the past, then the government may bar entry.  If the government approves the person for Mental Health Court, the person still may not be eligible.  The Pretrial Services Agency must also screen the individual.  The individual must have a verified mental health illness, be eligible to be supervised by the Specialized Supervision Unit, and be linked to a mental health services provider.  If both the government and Pretrial Services approve the individual for Mental Health Court, then the person will be admitted into the program.

For Drug Court, the government no longer has veto power over an individual’s entrance into Drug Court.  However, Pretrial Services must approve the person.  For entrance into Drug Court, certain violent past convictions may disqualify someone.  In addition, the person must have a drug problem beyond marijuana use.  A typical pretrial condition for someone arrested in DC is to drug test weekly.  If the person’s drug tests come back consistently positive and they meet other requirements, Pretrial Services may approve the individual for Drug Court.  Before entry into Drug Court, the person must complete an Addiction Severity Index or “ASI.”  For an ASI, a Pretrial Services representative will conduct an interview about the person’s drug usage.  The results of which may dictate whether the person gets into Drug Court and what treatment recommendation Pretrial Services will make to the judge.

For both problem solving courts, successful completion requires the person to test negative for drugs, complete any drug treatment options recommended, come to court when scheduled, and (for Mental Health Court) keep up with mental health services.  Supervision is extensive and both programs are relatively rigorous.  However, for individuals in need of services, it is a way to address underlying problems and hopefully get a criminal case dismissed.

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This entry is part two of a three part series explaining what diversion is in the District of Columbia.  The first part discussed the Deferred Prosecution Agreement or “DPA.”  Part II discusses a Deferred Sentencing Agreement or “DSA.”  A DSA is similar to a DPA in that the government will require the person accused of a crime to jump through a series of hoops in exchange for ultimately dropping the charges.  Both the US Attorney’s Office for the District of Columbia or USAO and the DC Office of the Attorney General or OAG offer DSA as a pretrial diversion option in limited circumstances.

file0001722308752For the DC crimes charged by the USAO, the criteria for a DSA is very similar to its criteria for a DPA.  A person must drug test negative to qualify for a DSA.  If the person’s first drug test is negative, then that will satisfy the requirement.  However, if the first test is positive, then the person must drug test until he or she gets two consecutive negative tests.  Usually, a prosecutor will offer a DSA instead of a DPA for somewhat arbitrary reasons.  It could be a prior conviction in the person’s background or something related to a complaining witness in the case.  A DSA is still a good deal in most cases.  However, it requires the person plead guilty where a DPA does not.

A person who enters a DSA must plead guilty to the charged offenses.  The Court will then defer sentencing for six months.  During that six months, the person must complete 48 hours of community service, not get rearrested, and sometimes comply with other conditions like pay restitution or stay away from a person or area.  If the person completes all the requirements in the DSA, at the sentencing, the government will not oppose the person from withdrawing their guilty plea.  Once the guilty plea is withdrawn, the government will dismiss the case.

For traffic related offenses, the OAG offers DSA’s on certain crimes but they have much stricter criteria.  In addition, their requirements are often more rigorous to complete.  For a DUI, the OAG will offer a DSA only if the following conditions are met: no accident can occur, the person must not refuse to take a chemical test, the results of the chemical test must not exceed .10 for blood or breath scores, and the person must not be on probation.  Even if all that criteria is met, the prosecutor may find some other reason to refuse to offer a DSA.

For OAG DSA’s, the person must plead guilty to the offense and the Court usually defers sentencing for six months to a year.  During that six months, the person must pay significant fines, complete a series of alcohol and traffic related classes that cost money to attend, complete community service, not get rearrested, and not commit any traffic offenses.  If the person completes those requirements, at sentencing, the government will not oppose the withdrawal of the guilty plea, and then ultimately dismiss the case.

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In DC criminal law, people often ask what diversion is.  This post is the first part in a three part series that answers that question.  Diversion is a program offered by the prosecution where when an individual meets certain conditions, the government will dismiss the charges against that person.  Several types of diversion programs exist in DC.  Having a criminal defense lawyer who can explain the diversion options is important when you are charged with a crime in DC.  Before understanding what type of diversion options exist, its important to know the difference between the two government agencies in DC that prosecute crimes.

As previously mentioned, the DC Office of the Attorney General (OAG) prosecutes only traffic misdemeanors.  The United States Attorney’s Office for the District of Columbia (USAO) prosecutes all other misdemeanors and felony crimes.  Felonies are crimes that carry a maximum penalty of more than one year in jail.  That difference is important in and deserves further discussion in a future post.  The United States Attorney’s Office has more flexibility in diversion programs and also has more options with more reasonable requirements.  So, the first couple of posts on this topic will discuss diversion options the USAO offers.  I will discuss the OAG’s diversion police in a later post for those primarily concerned with options when they get a DC DUI.

My favorite option is a deferred prosecution agreement or DPA.  In a DPA, the accused does not have to plead guilty or admit responsibility.  The government and the accused sign a contract that basically says the person will not get rearrested and will complete 32 hours community service.  In exchange the government will postpone the prosecution of the case for four months.  If the person comes back to court in the four months and complies with the agreement, the government will dismiss the case.  During the four months period, the accused is not supervised by any government agency (like Pretrial Services or Probation).  Whether to offer a DPA is solely in the government’s discretion.  Any DC criminal lawyer who promises a guaranteed DPA is not being candid with his or her client.

It is a major benefit for an individual to enter into a DPA as a way to get their case dismissed.  As I mentioned, the person does not have to plead guilty to get the benefit of a DPA.  There can be a lot of bad consequences for pleading guilty to a charge even if that charge is later dismissed.  With a DPA, there is no guilty plea, which is an important difference between a deferred sentencing agreement (to be discussed in Part II of this post).  Finally, the government requires that an individual test negative for drugs and have a very limited criminal record to get a DPA.  Also, certain offenses are not DPA eligible.  If the person’s first drug test is negative, then that satisfies the drug test requirement.  If the first drug test is positive, the person must drug test until he or she gets two consecutive negative drug tests.

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In the Washington, DC criminal defense world, a common scenario occurs where an individual gets pulled over by the police, arrested for DUI, and charged with two cases.  This scenario occurs when someone gets pulled over, the officer arrests the person for DUI, and later finds drugs in the vehicle—regardless of whether the drugs actually belong to the person arrested.

In most jurisdictions, that person would get charged for two crimes: drug possession and DUI.  In DC, however, the person will not only get two charges but have two criminal cases against them.  Two separate law enforcement agencies will prosecute each case.  The DC Office of the Attorney General will prosecute the DUI, and the United States Attorneys’ Office for the District of Columbia will prosecute the drug possession charge.  It is common for one set of facts to lead to a prosecution for two separate charges.  But DC criminal law is unique that the same set of facts can lead to prosecution for two separate cases.

That means a local prosecutor will handle the DUI and a federal prosecutor will handle the drug charge.  In most jurisdictions, the same prosecutor would handle both charges which would likely lead to a plea offer for a “one for one” where the client pleads to one charge and the government dismisses the other.  However, because of DC’s unique status as neither a state nor county, people who get arrested in this situation find themselves dealing with two different prosecuting agencies, each with its own sets of policies, rules, and, frankly, agenda.  Without an experienced DC criminal defense lawyer, someone in this situation could find themselves convicted of both crimes in both cases.  They could lose their license, lose their job, be put on probation, or even go to jail.

MarijuanaThe DC Office of the Attorney General is a local agency funded by the DC City Council.  DC criminal law is written in such a way that this office only has jurisdiction over traffic crimes.  In fact, DUI and DWI crimes are the most serious crimes that this office can prosecute.  I have a joke that I like to tell that the DC Office of the Attorney General treats DUI and DWI cases like murder cases because it’s the most serious crime they have jurisdiction over.  As a result, there are very limited options other than plea or go to trial.  The United States Attorney’s Office for the District of Columbia is a federal agency and part of the Department of Justice.  The good news is that it has relaxed its requirements for pretrial diversion (programs where defendants complete community service and other requirements in exchange for dismissals of their case).  However, it is extremely rare in this scenario that one prosecutor will dismiss one case even if the accused pleads in another case.  Therefore, its important to hire a tough, smart DC criminal defense lawyer who is not afraid to try cases.

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