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February 24, 2014

State v. Cabinatan - Burglary Conviction Vacated for Witness Identification Error

In criminal cases, eyewitness identification is notoriously prone to error, especially when the authorities overseeing the process fail to follow basic procedures to ensure that witnesses aren't improperly influenced.
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One scenario that should always prompt an aggressive challenge from D.C. criminal defense attorneys is that of a "field show-up." This is a situation in which, immediately subsequent to an alleged crime, a witness is brought to the scene where the suspect has been detained and asked, "Is this the guy?"

The problem is that if the suspect is handcuffed and/or in the back of a squad car at the time of this encounter, this creates the suggestion of guilt. This can be particularly problematic if the witness has yet to provide a full description of the suspect to the officers prior to that encounter. It's also considered an issue if only one possible suspect is presented to a witness, again, creating a higher suggestion of guilt.

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June 14, 2012

D.C. Burglary of Supreme Court Justice's Home

It might have been one thing if Supreme Court Justice Stephen Breyer had been burglarized on one occasion. thumbprint.jpg

But as D.C. criminal defense lawyers understand, the justice has been the target of a string of property crimes over the last several months - the most recent of which was the Georgetown burglary of his residence.

Burglary, as defined in D.C. Criminal Code 22-801, is essentially the incidence of a person entering a residence for the purpose of committing some crime. If someone is inside at the time, it's considered a first-degree burglary. In these cases, it would be punishable by between five and 30 years. If there is no one inside at the time, you're still facing somewhere in the neighborhood of two to 15 years if convicted.

If there is ample evidence that you entered the residence unlawfully, one tactic a D.C. criminal defense lawyer may take is that you are only guilty of the lesser unlawful entry of a property. This would mean that you entered when you weren't supposed to, but you had no criminal intent. The statute for this is found in D.C. Criminal Code 22-3302, and you would face a maximum of 180 days in jail and a $1,000 fine - much less steep than the alternative. This could be particularly effective if you are a first-time offender and the evidence is slight as to whether you actually took anything or did any other harm besides entering.

In the incident involving Breyer's home, the 73-year-old Justice was not at the residence at the time it was hit. The incident reportedly happened the first week of May and was discovered by a housekeeper.

A spokeswoman for the court indicated there were no court-related documents that were taken or compromised.

A police report indicates that the individual appeared to have entered by busting a glass pane near the front door. Missing items included a $500 pair of silver candlesticks and 100-piece silver set valued at more than $2,000.

This incident follows an armed robbery that occurred at Breyer's vacation home on the island of Nevis in the West Indies, off the coast of Puerto Rico. That was back in February, and he, his wife and a guest were reportedly robbed inside their home by a man who entered wielding a machete.

The man reportedly took about $1,000 in cash and subsequently fled. A 28-year-old gardener reportedly turned himself into police for the alleged crime. If he's convicted there, he faces potential corporal punishment, such as lashings with a whip.

Punishment for the D.C. burglary won't include that, but in addition to burglary charges, he or she will likely face charges for the theft as well. Under D.C.'s criminal code, stealing more than $1,000 is punishable by up to 10 years in prison and a $5,000 find. If the individual has two or more convictions for prior theft incidents, there would be a minimum mandatory of one year behind bars.

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January 12, 2012

Washington D.C. Residential Burglaries On the Rise, Report Says

A recent increase in residential burglaries in the Washington D.C. and Maryland areas has put local police and residents on alert, the Chevy Chase Patch is reporting.

A Washington D.C. burglary can be a terrifying situation for a homeowner who comes home to find their possessions gone, home invaded and life turned upside down. A person who gets wrapped up in a burglary charge faces an equally terrifying situation.
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Our Washington D.C. criminal defense lawyers have seen many examples of people arrested for a residential burglary simply for being at the wrong place at the wrong time.

One common way law enforcement officers try to identify the person responsible for a house break-in is through eyewitness testimony or through the testimony of a co-defendant. Studies have shown that people are inherently unreliable when it comes to accurately identifying what a person looks like. And a snitch will say anything. New Jersey court officials recently put restrictions on eyewitness testimony because they reversed so many convictions based on testimony that was flawed or later found to be wrong.

So, this often leads to a person who happened to be walking nearby being considered a suspect. In sloppy police cases, a person may be arrested simply for being around a victim's house at the wrong time.

In other situations, friends may pile in a car and go for a joyride or out to have some fun when the car gets pulled over. Perhaps the driver had committed a burglary hours earlier and didn't tell the friends. If witnesses said several people were in the burglarized house, all of a sudden, the police have a car-full of suspects. This type of situation has happened more than you might think.

Let's hope police investigating the recent string of burglaries in the Bethesda, Chevy Chase and North Bethesda area don't make the same mistakes. The Patch reports that 24 burglaries were reported in the second district in December and January, through January 5.

Potomac reports that there have also been a higher number of burglaries there than expected, as residents have decided to form a public safety coalition to help. View this as a whole gaggle of potentially unreliable witnesses that are teaming up. Washington D.C. Metropolitan Police have jurisdiction over several recent Western Avenue burglaries in the last month as well.

Among the second district crimes, police say two men knocked on several doors before trying to go in through a side window. In one case, the men were scared off by a person inside. A few hours later, nearby, police believe the same men unsuccessfully tried to burglarize another house.

In another incident, police say a man was driving a blue Chevrolet near a house that was burglarized and in two other incidents a navy blue car was described.

In a Bethesda burglary, a man was trying to get into a white car that was parked in the driveway of the victim's home. The same car was said to be seen in other recent burglary attempts.

In all three incidents, witnesses provided very weak descriptions of the alleged suspects and white cars and blue cars are very common throughout the area. Police should have better evidence than a shade of color on a car and a 20-year age range in suspects before making arrests for these serious charges.

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July 26, 2011

Washington, DC Police Officer Sentenced to 7 Months in Jail on Attempted Burglary Charge: On Conspiracy Charges

tape_recorder.jpgAs discussed in a previous post of this blog, Washington, DC police officer Jennifer Green was arrested on burglary charges. Green pleaded guilty to meeting a police informant at the Macombo Lounge where the two talked about an apartment that contained large amounts of drugs and money. Green told the confidential informant (CI) that she would take the money, and he could take the drugs. The following night, the CI called Green and asked her if she "was still trying to do that." She responded, "Yeah, man, you got what you need to do that?" and asked for the address of the apartment. Later than night, the informant met Green at her apartment, and they drove to the area where the apartment was located. Green used her police radio to monitor 4D police traffic in the area. The CI then pulled out a crowbar and went into the apartment. He returned with $1050 in marked bills and a plastic bag containing counterfeit crack cocaine. Green counted the money and told the CI that the total was a "G 50," and that she would keep $600 and give him the rest. Green was arrested outside her apartment. According to a related article in the Washington Post, 18 DC police officers have been arrested this year on charges that include receiving stolen property (RSP) and even murder.

As a Washington, DC criminal defense lawyer who handles burglary charges, I have discussed this issue before. However, one area that I would like to focus on for this post is a conspiracy charge. If the government can establish that a conspiracy existed, the statements by the co-conspirators can be used against all defendants who were engaged in the conspiracy. The police may also be able to charge all defendants with any crimes committed by fellow conspirators.

One major issue that arises and needs to be addressed by your DC conspiracy charges lawyer is whether there was a confidential informant. In order to have a conspiracy, all people involved must have intent to engage in a criminal activity. If you talked to a confidential informant, that CI does not have the intent to engage in a crime. He or she has the intent of helping the police arrest you. An attorney who is familiar of the law can attempt to use previous legal decisions to show that you cannot conspire with the police or their agent, so the informant's statements should not be used against you. This is complex area of criminal defense that you should discuss with your attorney as soon as possible.

April 27, 2011

Washington, DC Police Officer Pleads Guilty on Burglary Charges: On Confidential Informants

hidden_microphone.jpgIn a previous post, I wrote about the arrest of a DC police officer. Following up on this story, the Washington Post is now reporting that DC Metropolitan Police (MPD) Officer, Jennifer N. Green, has agreed to plead guilty to charges of attempted second-degree burglary. According to reports, the Internal Affairs unit set up a meeting between Green and an informant at the Macombo Lounge. The two planned a burglary at a DC residence that was supposed to contain a lot of cash and drugs. Green supposedly said that she didn't want the drugs, but could use the money. Using her police issued radio to monitor law enforcement activity in the area, Green and the informant pulled up to the apartment and the informant took a crowbar and went into the apartment. He returned with $1,050 in marked bills, and counterfeit crack cocaine. Green took $600 from the informant. She drove back to her apartment where she was arrested.

As a Washington, DC criminal defense lawyer, one of the common things I discuss with my clients is whether the police had a confidential informant (CI), or were just very lucky. Sometimes the police will put the existence of the CI in the police report, and other times they will strongly deny it no matter how obvious it may be.

While this can be used as part a good defense to a DC felony charge, the plain truth is that anyone can be a police informant, and according to the law, you assume the risk that the person you are talking to is working for the police. This is especially true once you have been arrested. Police cruisers may have microphones in them to record all conversations. A person at the district station, Central Cell Block (CCB), or DC Jail may be an informant. Your phone may be tapped. It is for this reason that I tell all of my clients not to discuss their case with anyone except me. It is best not take any chances with your constitutional rights.

April 12, 2011

Two Female College Students in Washington, DC Report Male Suspects in their Dorm Rooms: Is This a College Prank Gone Wrong or a Burglary/Assault Charge in the Making?

College Campus.jpgAccording to a recent story in the Washington Post, two female students at Georgetown University in Washington, DC have reported being awoken to find a male intruder in their respective dorm rooms according to campus police. The suspects were described by witnesses. These police do not know if it is the same person involved in both incidents, or whether there are two separate individuals. At this point, it is unclear whether either of these break-ins were intended to be burglaries and possible sex abuse crimes, or if this was just another example of a college student drinking too much and getting in trouble.

As a Washington, DC lawyer who represents college and university students charged with crimes, or facing expulsion or suspension from school, I want to stress how serious some of these incidents can become. In the Georgetown University case, if the suspect is caught and arrested by DC police, he will likely be charged with burglary, and potentially other crimes such as attempted sexual abuse. Both of these crimes are DC felonies. Under the DC Criminal Code, burglary involves the breaking and entering of a building, apartment, other structure, or vehicle with the intent to commit a crime. This was a dorm room where somebody was sleeping so it could be considered a first degree burglary. A conviction for first degree burglary in Washington, DC may result a sentence of 5 to 30 years in prison. If the suspect was also charged with attempted sexual abuse, the charge could involve serious prison time and a being placed on the sex offender registry.

While both of these crimes are very serious, and most students would not engage in such conduct, it is a lot more common to be arrested for underage drinking, simple assault, DUI, or even misdemeanor sexual abuse. These DC charges may be less severe than burglary or rape, but they could still have a lasting effect on your life and chance of continuing your studies.

March 31, 2011

Violent Crime Rates Decrease in Washington, DC as Theft Charges Increase

DC_forced_entry.jpgAccording to an in-depth feature by Allison Klein of the Washington Post, the District of Columbia has experienced a major increase in burglaries and thefts while there been a reduction in incidents of violent crimes such as robbery, and guns or weapons offenses. Specifically, DC Metropolitan Police (MPD) is reporting a 20 percent increase in burglaries and a 23 percent increase in theft in Washington, DC. In Dupont Circle, burglaries are up threefold compared to last year at this time.

Many of the thefts involve personal property such as cell phones, iPads, and laptops being stolen right off the table at coffee shops and restaurants in the Washington, DC area. The burglaries generally involve thieves smashing in back windows or doors, running in, grabbing anything they can sell and running out. They are not exactly an elaborate and well-planned heists.

As a Washington, DC theft charges lawyer, I often talk to with prospective clients who do not realize how serious the consequences may be for what many consider a minor theft charge. With respect to the criminal penalties, if the stolen property is under $1,000 in value, DC law defines the crime as a misdemeanor theft or "second degree theft" punishable by a maximum of 180 days in jail and a $1,000 fine. If the value of the property is $1,000 or greater, it is a first degree felony theft charge punishable by a maximum of 10 years in prison and a $5,000 fine.

In addition to the criminal penalties for theft under Washington, DC criminal law, theft is considered a "crime of moral turpitude." In other words, it's a crime that can make you look like a dishonest person. A conviction for a moral turpitude offense can make it very difficult to get a job, especially one that involves handling money. If you have a theft conviction, you may want to look into having your Washington, DC criminal record expunged/sealed.

March 8, 2011

Washington, DC Metropolitan Police Officer Charged with Burglary

MPD Car.jpgAccording to a breaking story by Paul Duggan of the Washington Post, a DC MPD officer was arrested on burglary and receiving stolen property charges. Officer Jennifer Green has been on the job for two years, and she was assigned to the Fourth District. The Fourth District station is located on George Avenue NW.

Jones was arrested at approximately 9 o'clock on the evening of Saturday March 5, 2011. At the time of the arrest, Jones was allegedly in what she believed to a private home. According to police, Jones was "the target of a confidential criminal investigation," and had been an active participant in the crime. She was charged with receiving stolen property and burglary.

As a DC criminal defense lawyer, I thought it would be interesting to discuss the concept of "factual impossibility." This case involved burglary charges, and receiving stolen property. While we do not know all the facts, we can assume that the police may have been the lawful owner of the property, or at the very least, the lawful owner gave the DC MDP permission to use it during the sting operation. The point is that the property was not technically "stolen." Defendants have tried to use this in court by saying that they can't be guilty of receiving stolen property if the property wasn't stolen. While this may seem like a clever argument, it is generally not a valid defense because you can be charged with or convicted of the offense of attempted receiving of stolen property which requires the defendant to have the specific mental intent to commit the crime (desire to obtain the stolen property), and take a substantial step towards committing the crime. This may be as simple as calling the seller on the phone and agreeing to meet with him. For that reason, impossibility of facts in generally not a valid defense to a Washington, DC criminal charge.

February 23, 2011

Washington, DC Facebook Burglar Pleaded Guilty to Two Charges

Face Book.jpgAs discussed in a previous entry, a Washington Post editor reported that this home was broken into by a man who took the time to post a picture of himself on the owner's Facebook page wearing a jacket and holding cash he stole from the house. He also stole the laptop he used make the post, as well as a second computer. Within weeks, DC police identified Rodney Knight Jr., as the burglar. When the police approached him in Southeast DC, they saw him holding his waistband and running. He was in possession of pistol with one round in the chamber. He was charged with the burglary and carrying a pistol without a license (CPWL). He pleaded guilty to these offenses and is scheduled to be sentenced on March 4, 2011.

In Washington, DC, burglary involves breaking and entering (or simply entering) a home or other structure with the intent to commit a crime. If nobody is home at the time of the crime, or the structure is not a home or apartment, then the crime is generally charged as second degree burglary, which is a felony punishable by a minimum of two years and a maximum of 15. If someone is present, it may be charged as first degree burglary. If you have been charged with a burglary crime, your Washington, DC criminal defense attorney will be able to explain these elements to you in relation to the actual facts.

Carrying a Pistol Without a License (CPWL) is one of the most serious gun charges in the District of Columbia. If you are convicted, the maximum penalty is five years in prison and a $10,000 fine. There is basically no way to obtain a carry permit unless you are a law enforcement officer or active duty military, so this charge applies to anyone carrying a handgun that is not registered, locked, and has the ammo locked in a separate container

February 16, 2011

Two Men Killed by Police and Third is Arrested on Assault and Burglary Charges in Washington, DC

Silver Pistol.jpgAs reported in the Washington Post, Akeem J. Cayo, Davon Sealy, and Steffan Fields broke into a house in the 1000 block of Irving Street NE Washington, DC. The house was occupied by six roommates and four guests. The residents and two of the guests were eight current or former Catholic University Students. The three suspects allegedly robbed the occupants and threatened to kill them. One of the students was hiding in the house when he called 911. When the police arrived, one of the suspects is said to have peered out a window before all three of them fled the house while shooting at the police. Cayo was shot and died at the scene. Sealy was also shot and died at the hospital. Fields was apprehended and charged with first degree burglary while armed and assault of a police officer while armed. Both are serious felony charges in Washington, DC.

According to police statements, Fields told detectives that he had been to the house before to buy marijuana from the "weed man." It is for this reason that MPD is considering this a targeted incident and not an act of random violence. The police are still processing the crime scene but have already recovered three handguns and an assault rifle believed to have been used by the alleged burglars.

In Washington DC, first degree burglary while armed may result in a prison sentence of 30 years. An aggravated assault while armed (AAWA) may result in up to 15 years, depending on the defendant's prior record if convicted. If you have been charged with an assault or burglary charge in the District of Columbia, your criminal defense attorney will be able to explain the maximum sentence possible given the facts and law pertaining to your case.

December 20, 2010

Anything You Tweet Can Be Used Against You in a Court of Law: How Social Media like Twitter and Facebook Are Affecting Criminal Defense

985516___network__.jpgIt seems like everyone is on Facebook, Twitter, Foursquare, blogs, or other similar social media applications these days. It's a great way to connect with old friends and stay in touch. It's also becoming a great tool for prosecutors in criminal cases. This may come as a surprise, but people like to brag about their criminal activities on these sites. In the old days, prosecutors had to send investigators in hopes of finding out if a suspect was in a gang and who his fellow gang members were. Now, it's common for gangs (known as "Street Crews" in Washington, DC) to post tagged photos on the Internet. This is making the government's job much easier.

Another trend is the use of applications like Foursquare or Places on smart phones to announce your location. Some stores have a program where you get a discount for using Foursquare. This explains the many posts announcing why people "have arrived at Starbucks on 14th and K streets in NW Washington, DC." While people seem to like this application, the US Attorney's Office seems to love it. Here is a recent example:

Prosecutor: Mr. Jones, you testified that you were with the defendant at the AMC theatre in Silver Spring, MD at 9:30pm on November 15, 2009, correct?

Mr. Jones: Yes.

Prosecutor: You own an iphone, correct?

Mr. Jones: Yes.

Prosecutor: And you sometimes use the Foursquare program to announce your current location, correct?

Mr. Jones: Yes.

Prosecutor: And, at 9:15pm on November 15, 2009, you used Foursquare to announce you were at the Caps game at the Verizon Center correct?

Mr. Jones: Uh.

While Twitter and these location applications can be used to destroy an alibi defense, there's a lot more they can do to a criminal case. According to a recent story in the Washington Post, a DWI/DUI defendant involved in an accident was going to be offered a lighter sentence until the prosecutor found his Facebook posts about him drinking and discussing the fun he was having. If this isn't enough reason to think before you post, I have saved the best (or worst) for last. A suspect allegedly broke into a home in Washington, DC and before stealing a laptop, used it to take his own picture holding the owner's money and clothes, and posted on the owner's Facebook wall. I don't think this will look good to a jury.

In light of all this new technology, as a Washington, DC criminal defense lawyer, I now have to ask all my clients if they have a Facebook or Twitter account when I do the initial interview. You can't remove the posts because they are always in an archive, but at least there won't be any surprises.

November 3, 2010

Lesser Included Offenses and the Art of the Plea Bargain

60534_abandoned_building.jpgSometimes winning a case means a not guilty verdict. Other times winning a case involves getting the charges reduced to something the client can accept--like getting a felony reduced to a misdemeanor.

A few years ago I represented a client charged with burglary. He was recently released from prison and didn't have any place to live. He tried to find work but because of his criminal record and the economy, he didn't have much luck. He met a friend who was staying in a vacant house. After the housing market collapsed, there were many old houses throughout the country that were bought with the intent to renovate and sell for a profit. Many of these old homes now sit vacant with renovation efforts abandoned.

This particular home was vacant and in foreclosure. The bank hired an investigator to check on the condition of the property and make sure there weren't any squatters. He discovered my client and his friend sleeping on lawn chairs in what used to be the living room of this partially gutted building. The investigator called a burglary detective he knew and both men were placed under arrest for burglary.

After reading the police report, I couldn't understand why this was charged as a major felony (burglary) and not a misdemeanor (trespassing). The detective stated in his police report that this was a home or apartment, so the higher charge was justified. My client was willing to admit he was trespassing in a vacant structure but had no intention of committing any other crime. He only wanted a dry place to stay. He was squatting, not a burglar. What really bothered me was the reason this was a major felony was because the officer claimed this was a "home." While it is true that it was once a home, it was not occupied and was in a state of disrepair. The reason breaking into a home carried such a high sentence is because it involves violating the place one feels most secure and safe. This was not a home in the sense that the legislature had in mind when creating this law.

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