Petitioner Padilla was a lawful permanent resident of the United States for over 40 years and honorably served in the U.S. Armed Forces in Vietnam.  Padilla pled guilty to a felony charge of transporting a large amount of marijuana in Kentucky.  His immigration attorney told him that he would not be deported because he had been in the country for so long.  However, the non-citizen removal statutes clearly state that any conviction for a drug trafficking offense will (not may, WILL) result in deportation.  Padilla claimed that he would have proceeded to trial had his immigration lawyer properly advised him that he would face deportation if convicted.

The lower courts, including the Kentucky State Supreme Court, held that a failure to advise on immigration issues and even wrong advice on immigration issues were merely a “collateral consequence” to his conviction thus his attorney’s erroneous advice was not a violation of his Sixth Amendment right to effective assistance of counsel.  Generally the court was saying that since the immigration issues were not a result of punishment by the criminal courts in direct response to his guilty plea, the Sixth Amendment did not apply.  An example of a collateral consequence would be a person losing their job because they pled guilty to a felony.  Although that is foreseeable and unfortunate, it is not a punishment doled out by the court and thus is a “collateral consequence”.

The United States Supreme Court disagreed with the Kentucky State Supreme Court.  Instead, the U.S. Supreme Court decided that immigration consequences are an integral part of the penalties associated with criminal proceedings for non-citizens because those consequences are often as severe, if not more so, than the actual criminal punishment.

The Court recognized that immigration law is a complex area of practice, but due to the severity of the consequence of a criminal conviction, criminal defense attorneys still have some duties to the clients with regard to immigration.

The Court held that if the immigration consequences were clear, as they were with Padilla, then an attorney has a duty to advise the client of those consequences prior to letting them enter a guilty plea.  In Padilla’s case, if the attorney had read merely the removal statute, she would have seen that his plea would automatically result in deportation because all drug trafficking offenses result in deportation.  If the consequences are not clear, the attorney then has a duty to advise the client that there will be immigration consequences including potential deportation but the attorney does not have to be more specific.

"It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana," said Attorney General Eric Holder. "But we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal," Holder added.

The memo intends to help clarify confusion surrounding medical marijuana laws in the following 14 states: Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Mexico, Maryland, Oregon, Rhode Island, Vermont and Washington.

Marijuana Arrests in California

Clarification is particularly significant in the state of California where there has been a lot of confusion and uncertainty surrounding medical marijuana sales. Medical marijuana dispensaries in California have been getting a lot of grief from the government. In fact, Los Angeles County District Attorney Steve Colley announced earlier this month that he is going to crack down on marijuana dispensaries for over-the-counter sales.

According to Cooley, the roughly 800 marijuana dispensaries in Los Angeles are violating the 1996 Compassionate Use Act, a voter initiative legalizing marijuana for medical purposes and a 2003 state law that permits collective cultivation. He argues that by profiting from the sales, the dispensaries are breaking the law.

Cooley’s statement, which was released Oct. 8, sparked public debate from medical marijuana advocates who argue that if they do crack down on dispensaries they will be preventing thousands of seriously ill people from getting the medicine they need.

Clarifying Policies Surrounding Marijuana Arrests

Although some medical marijuana advocates declared victory, the Justice Department sees it differently. Whitehouse spokesman, Robert Gibbs, said the memo simply added guidelines to a decision that has been administration policy since January.

The department’s guidance said it plans to continue to pursue illegal trafficking of drugs, including marijuana, but does not want to waste federal resources on going after "individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law."

For more information about drug trafficking laws in your state, contact Imhoff & Associates.

It is common knowledge that defendants in the United States have the right to a trial by jury, as is clearly stated in the Sixth Amendment of the United States Constitution: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed. However, what many defendants dont realize is that there is the possibility of waiving the right to a jury and having a trial that is only before a judge. Although perhaps not intuitive, this type of trial, known as a bench trial, can in some situations be preferable to a trial by jury.

In July of 2005, Richard Hawkins, a former executive facing fraud charges in San Francisco, saw the benefits of waiving his right to a jury when U.S. District Judge Martin Jenkins acquitted him of all charges. Amid the growing public resentment of white-collar criminals, Mr. Hawkins may not have fared so well had he been tried by a jury of his peers.

What is a Bench Trial?

A bench trial is a trial before a judge instead of an entire jury. The general provisions for a trial by bench are laid out in the Federal Rules of Criminal Procedure: In a case tried without a jury, the court must find the defendant guilty or not guilty. If a party requests before the finding of guilty or not guilty, the court must state its specific findings of fact in open court or in a written decision or opinion. (Fed. R. Crim. P. 23(c)). In a bench trial, a judge must determine all questions of law and be the trier of fact, whereas in a jury trial the judge is responsible for questions of law and the jury is the trier of fact.

In general, bench trials are governed by the same rules as jury trialsthe rules of evidence and procedural methods are the same in both. Specific procedure is determined by the applicable state code. New York State Consolidated Law specifies, for example: The provisions governing motion practice and general procedure with respect to a jury trial are, wherever appropriate, applicable to a non-jury trial. (N.Y.C.L. 320.10).

Despite similar procedural guidelines, however, bench trials are often less formal that jury trials. For example, the court may allow the admission of provisional evidence in a bench trial, as this evidence could always be struck in the future without fear of misleading a jury. Additionally, bench trials can often be faster than jury trials, as time is not spent selecting, sequestering, and instructing a jury.

Who Is Eligible for Bench Trials?

Under the rules of Federal Criminal Procedure: If the defendant is entitled to a jury trial, the trial must be by jury unless: (1) the defendant waives a jury trial in writing; (2) the government consents; and (3) the court approves. (Fed. R. Crim. P. 23(b)). Although this is the general rule, specific criminal procedure varies by state. In New York, for instance, Except where the indictment charges the crime of murder in the first degree, the defendant may at any time before trial waive a jury trial. (N.Y.C.L. 320.10).

Even if a defendant is eligible for a bench trial, it is important to recognize that both the defendant and the prosecution have the right to present the case to a jury . Therefore, the prosecutor assigned to the case must approve the waiver of the jury trial. Thus, a defendant going before a judge who is known to be more likely to acquit may not receive the prosecutions approval of a bench trial, if the prosecution thinks that the judge would be inclined to rule in a defendants favor.

Finally, it should be noted that in certain situations, such where the charge is for a petty offense (such as an infraction in California, or any crime where the maximum sentence is less than six months in a federal prosecution), or the defendant is a juvenile, the right to a trial by jury may not apply, and the defendant will be subject to a mandatory bench trial. Persons accused of violating probation in most jurisdictions are entitled only to a court trial. In the event that the probation violation is also charged as a new criminal offense, the court may, on the prosecutors motion, simultaneously hear a bench trial on the probation violation while the jury hears the evidence and delivers a verdict on the new charge. Thus, even if the jury acquits the defendant of the charge, the judge may be convinced that the defendant violated her probation, and impose punishment for that violation. In general, however, defendants charged with offenses for which they face significant jail or prison time may have the opportunity to choose whether or not to waive the right to be tried before a jury, making it important to seek the advice of a trained, legal professional when considering ones options.

What Are the Advantages/Disadvantages of Bench Trials?

An experienced attorney will weigh the pros and cons of a trial by bench with a client to determine if this type of trial would be to a clients advantage. Generally, defense attorneys view juries as the safer option. This is in part due to the fact in the event the jury cannot reach a verdict, the defendant may be let free, or offered a highly advantageous plea bargain if the prosecutor does not wish to retry the case, and at the very least, will have a chance to fight the case again. Out of a jury of 12, it is more likely to find at least one sympathetic ear than when going before a single judge. Furthermore, unlike judges, jurors do not see hundreds of identical cases in any given year and are may be more sensitive to the particular circumstances of a defendants case than a judge might be. In some jurisdictions and in some cases, however, a jury may be composed of less than 12 people, and not all jurisdictions require a unanimous verdict from a jury. For example, Colorados Constitution, Article 2, Section 23, provides that The right of trial by jury shall remain inviolate in criminal cases; but in criminal cases in courts not of record, may consist of less than twelve persons, as may be prescribed by law. Floridas Rules of Criminal Procedure only guarantee a 12-member jury in capital casesother cases may have as few as six jurors

In certain instances, however, a bench trial could prove to be to a defendants advantage. This type of situation might arise if the legal question in the case is based on technical arguments requiring the type of legal distinctions that only a judge is likely to understand. Also, a defendant who faces a weak case, but has an extensive prior record, may fear that if he testifies, a jury would tune out the facts of the case and focus on the prior record.

In some jurisdictions, bench trials are common, and judges appear more willing to truly weigh the evidence and acquit a defendant in the event the prosecutor cannot prove the case beyond a reasonable doubt. In other jurisdictions, bench trials are quite rare, and it is possible that judges are not entirely used to the ramifications of acquitting a defendant. In the local slang of some courthouses, a bench trial is known as a slow plea, meaning that the local culture understands that the purpose of a bench trial is to find the defendant guilty, and present details of the case to the judge for purposes of sentencing. In such a jurisdiction, a defendant who believes in her innocence would be ill-advised to waive a jury.

Even if you ultimately choose the more common option of invoking your right to trial by jury, it is important to know your right to request that the prosecution consent to a trial by bench, and to work with an attorney who can advise you on the nuances of your particular situation to ensure the best possible outcome.

Current Sentencing for Cocaine Crimes

Currently, the sentencing guidelines for Federal drug charges such as possession of cocaine for sale is based on the weight of the controlled substance. For more than 20 years, as an example: possession of 5 grams of crack would earn the same mandatory 5 year sentence as possession of 500 grams of powder cocaine.

The inherent flaw in this type of sentencing is that is has long been established that among the poorer African American drug offenders crack cocaine is often the drug of choice over powder cocaine. Much of this is due to the unavailability of powder cocaine in the poorer neighborhoods. This sentencing guideline in effect has made “possession of cocaine” by many African Americans hold a significantly longer prison sentence than that of others who simple possess powder cocaine.

Push To End Cocaine Sentencing Disparity

The National Association of Criminal Defense Lawyers has urged Congress to adjust the federal sentencing guidelines to match the current position taken by the Obama administration and the Department of Justice in order to completely end the disparity in sentencing between crack and powder cocaine offenses.

Charged with a Cocaine Crime?

At Imhoff & Associates we have a proven record of helping our clients achieve superior case results through our outstanding trial work as well as our commitment to keeping up to date on the most current changes is our legal system. Staying on top of an ever changing legal system gives our clients advantages many other firms may have missed.

Call 800-887-0000, or contact a criminal attorney for a free consultation.

Free from Unreasonable Searches?

For over 25 years citizens have felt like they have given up the right to be free from unreasonable searches simply because they happen to be on a public road or a passenger in a motor vehicle. This feeling was based on old case law allowing police to search a car incident to a lawful arrest (New York v. Belton, 1981). This sometimes included arrests for traffic offenses and outstanding traffic warrants.

In Arizona v. Gant, the U.S. Supreme Court agreed with the Arizona state supreme court who threw out a drug conviction in the case of an individual who was arrested for driving on a suspended driver’s license. Gant was handcuffed and placed in the backseat of a police car. The police proceeded to search his vehicle and found cocaine in a jacket pocket in the back seat.

The police had Gant in custody in a police car. This would have prevented him from accessing anything inside of his vehicle (no officer safety issue at this point) and searching the car was not going to prevent him from destroying any evidence in support of his arrest for driving on a suspended driver’s license (there wouldn’t have been any).

Criminal Cases May Be Dismissed Due to Unreasonable Searches

State courts have treated the authority and justification to search citizens and their cars incident to arrest of the recent occupant as a police entitlement rather than applying the exclusionary rules to determine the searches validity. By using the latest U.S. Supreme Court decision to test these types of searches, many pending criminal cases that were born of “police entitlement” may end up being dismissed because the evidence obtained may be thrown out.

Contact a Criminal Attorney at Imhoff & Associates

Our highly skilled attorneys will fight to protect your rights. Understanding and using the latest case law in your defense can mean the difference between getting your case dismissed and spending years in prison.

Call 800-887-0000 for a free consultation.

Couple Allegedly Routinely Shot Kids with BB Gun

Officers say that the children of Jessica Pack, 31, were shot with a BB gun dozens of times over a period of three months by both her and her live-in boyfriend, 23-year-old Jackie Nanney.

• Pack has been accused of shooting only one of her children, pulling the trigger at least once
• Nanney has been accused of shooting all three kids

Mother Claims She Tried to Prevent Shootings

Pack insists that she tried to prevent Nanney from shooting her kids, ages 4, 5, and 7. During her first court appearance she explained, “I tried to stop him, but he still wouldn’t.”

Officer Chris Reynolds countered her claim by saying Pack should be held responsible because she failed to contact authorities.

Boyfriend Denies Criminal Charges

Nanney denied the accusations against him, “We’ll shoot cans. That’s all we shoot. I don’t shoot no kids.  No shooting anybody’s going on. We’re just out there having fun.”

Officers point out that the welts and bruises all over the children’s bodies are evidence that cans were not the only targets being shot at.

Others Disgusted by Child Abuse, Assault

The stepmother of Pack’s 13-year-old son, who was not one of the victims, expressed her disgust. “I wouldn’t imagine somebody touching a youngen, especially not shooting a BB gun at them,” said Mendy Payne.

Kids Shot For the Fun of It

Police said that the most disturbing thing about the situation was the fact that it appeared that the kids had been shot because Pack and Nanney thought it was amusing. ”Looks to be he was doing it for the fun of it,” said Reynolds. “It just became what appeared to be a pleasure for him of shooting individuals.”

He added, “They were hit in the bathroom, in the bathtub, outside playing and riding their bike.  It was like fun and games for him.”

(Source:  Gaston Gazette)

Have been accused of domestic violence or assault? Contact Imhoff & Associates today to consult with one of our seasoned criminal defense attorneys FREE of charge. We will work vigorously to ensure that your legal rights are protected and that you are not excessively or unduly punished.

Burress Accidentally Shot Himself with Illegal Firearm

On Nov. 8, 2008 Burress unintentionally shot himself in the leg while attending a Manhattan night club. After a subsequent trip to the hospital, local police caught up with him and found that he had no proof of legal ownership for the gun he had shot himself with.

Police Seize Additional Firearms

When police searched Burress’ New Jersey home last week they seized the following items:

• 9mm handgun
• .30-06-caliber rifle
• a clip for a .45 gun
• ammunition
• Sneakers worn by Burress during the accidental shooting

Burress was not present during the search but his wife and attorney were.

Police Yet to Determine Legal Ownership of Firearms

Police investigators are trying to determine whether the weapons are registered, so it is unclear whether Burress will face additional charges.

Police detective Dennis Blakely, who lead the search commented, “He’s not around, we don’t have any paperwork for the weapons, so we’ll have to find out.”

Burress Faces Lengthy Prison Term

Burress currently faces two counts of second degree criminal possession of a gun.  If convicted of both charges he would face a:

• Minimum 3-and-a-half year prison term
• Maximum 15 year prison term

Burress Suspended and Scrutinized

In addition to criminal charges, Burress was suspended for the remainder of the NFL season and has faced a large amount of public scrutiny. The incident has also sparked a gun law debate by many who feel that while Burress obviously displayed very poor judgment, the punishment he faces is unjustified.

(Source: CNN)

Have you been charged with a crime? If so, contact us today to talk to an experienced criminal law attorney who will provide you with the legal support you need to get your charges reduced, if not dropped altogether.

While the jury in her first trial deadlocked 10 to 2 (in favor of conviction) back in 2007, Prentice’s most recent trial, which culminated two weeks ago, again ended in mistrial, with 11 to 1 jurors in favor of acquittal on the indictment of second-degree murder.

On the lesser count of involuntary manslaughter, the second jury deadlocked 7 to 5 in favor of convicting Prentice.

Details of Michelle’s Disappearance, Prentice’s Alleged Crimes

In 1969, Michelle vanished after Richard Jr., one of Prentice’s sons, witnessed his mother taking Michelle out of his room. According to Richard Jr., who was 6-years old at the time, Michelle appeared to be scared and had come into his room to hide.

Sometime between this incident and the following morning Michelle vanished.

Two days after Michelle’s disappearance, Prentice and her boyfriend at the time, James Kent, moved with their two sons to Illinois. Richard Jr. has stated that Prentice told the boys that they were leaving Michelle behind because there wasn’t enough room in the car to take her. However, the family’s pet cats and dogs were taken in the move.

No Criminal Investigation for Decades

Prentice, who had sole custody of Michelle, never filed a missing person’s report with authorities. Consequently, no investigation was conducted immediately after Michelle’s disappearance.

During the next few decades, Michelle’s father, Richard Pulsifer Sr., tried incessantly to get Prentice to disclose the location of his daughter. Eventually, in 2001, Richard Sr.’s sister hired a private detective to locate Michelle.

When the investigator failed to find any evidence of Michelle past 1969, he turned the case over to authorities.

Prentice’s Defense

Prentice has contended that she:

• Gave Michelle to Kent’s mother in 1969
• Never tried to locate Michelle when Kent’s mother died in 1972
• Had been afraid to look for Michelle after divorcing Kent, as he was abusive and she feared for her life if she tried to locate her daughter

While Kent, who was also brought up on charges of killing Michelle, died in custody in 2005, Prentice will not face another trial for her alleged crimes, as the judge ruled that there wasn’t enough evidence to support the charges against Prentice.

(Source: LA Times)

Are you in need of a criminal defense attorney? If so, contact us today to schedule a private consultation with an experienced criminal law lawyer who will fight to protect your legal rights.

$50 Billion Ponzi Scheme

For decades, Madoff maintained a reputation of reliability on Wall Street. In 1960 he founded Bernard L. Madoff Investment Securities LLC and had since earned the trust of the global financial community.

His good reputation made it all the more shocking when it was discovered that Madoff had been arrested and charged with allegedly running a “Ponzi scheme” disguised as a legitimate hedge fund.

Investors from around the globe who were caught up in the scam suddenly had to cope with the realization that they had lost millions and in some cases billions of dollars. The combined losses to investors are approximated to be about $50 billion.

What is a “Ponzi Scheme”?

A Ponzi scheme is a fraudulent investment operation that involves paying disproportionately high returns to investors out of money paid in by subsequent investors, rather than from the profit made from real business dealings.

With the promise of large returns as bait:

• The fraudster recruits an initial group of investors who are conned into thinking they are putting their money into a real business or investment.
• The fraudster creates and maintains an artificial cycle of returns by recruiting new investors and using their money  to pay off the earlier investors
• The cycle continues until no more new recruits can be found and the whole scheme collapses, with the newest investors losing everything.

Criminal and Civil Charges filed against Madoff

When FBI agents arrived at Madoff’s $7 million Manhattan apartment to arrest him for fraud, he admitted to agents that, “There is no innocent explanation,” and that he, “paid investors with money that wasn’t there.”

U.S. prosecutors have charged Madoff with a single count of securities fraud.  He faces up to:

• 20 years in prison
• A fine of up to $5 million

The Securities and Exchange Commission filed separate civil charges against Madoff.

A Large and Growing List of Fraud Victims

The list of those affected by Madoff’s $50 billion con-job is rapidly growing.  Every day since his arrest a new investment firm, bank, charity, or celebrity add themselves to the list of those who’ve been deceived.  Some of the more notable fraud victims include:

• Mortimer Zuckerman—Real estate magnate
• Sen. Frank Lautenberg—Politician
• Steven Spielberg—Hollywood producer
• The JEHT Foundation—Charity
• Royal Bank of Scotland Group PLC—Scottish bank
• Nomura Holdings—International investment bank
• Chais Family Foundation—Charity
• Grupo Santander SA—Spain’s largest bank
• Ascot Partners LLC—Private equity investor
• Eric Roth—Film writer who wrote Forest Gump
• Jeffrey Katzenberg—Hollywood producer

(Source: Yahoo News, Reuters)

Have you been charged with a crime? If so, contact us today to talk to an experienced criminal law attorney who will provide you with the legal support you need to get your charges reduced, if not dropped altogether.

Defendant Admits to Drunk Driving Hours Later

On Dec. 6, 2008, Schuh had been at a gathering where, as he admits, he drank eight alcoholic beverages. At about 11 p.m. that evening, Schuh was headed home in his minivan when he hit and killed Skrzypkowski, who was walking across the street at the time of the accident.

After hitting Skrzypkowski, Schuh continued home and then called the police, claiming that someone had vandalized his car. Shortly after, however, Schuh admitted to hitting Skrzypkowski.

When Schuh was taken into custody four hours later, his blood alcohol content (BAC) was 0.063, which is below the legal limit of 0.08. If convicted of all counts, Schuh could face up to a 9-year prison sentence and over $7,000 in restitution fees.

A DUI Charge Despite a BAC Lower than the Legal Limit

In most cases of DUI, a person has to have a BAC of at least 0.08 to be charged and convicted of driving under the influence. However, Illinois prosecutors are able to charge Schuh with aggravated DUI for a few reasons:

• Prosecutors can legally charge someone with a DUI, regardless of their age, if an injury (or death) occurred and they can prove, in some way, that the individual driving had been drinking prior to operating his vehicle.
• Individuals at the party Schuh attended have stated that Schuh was too drunk to be driving that night.
• Schuh admitted to drinking eight alcoholic drinks before driving home that night.
• Schuh is under the legal drinking age and, therefore, is subject to Illinois’ “zero tolerance” law, which allows authorities to bring DUI charges on any underage individual who has alcohol in his system when driving.

A trial date has yet to be set for this case.

(Source: Chicago Tribune)

Have you been charged with a crime? If so, contact us today to talk to an experienced criminal defense attorney who will provide you with the legal support you need to get your charges reduced, if not dropped altogether.