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This Isn’t “Law & Order”

CPSB criminal defense lawyer Bradley Bannon blogs for the North Carolina Advocates for Justice about the difference between criminal justice on television and in the real world.

 

Separation Agreements

A Separation Agreement is a contract between spouses.  It is enforceable under contract principles of law.  It differs from a Court Order because a Separation Agreement is modifiable only if the parties mutually agree, whereas a court can modify an Order over the objection of a party.  We will advise you whether your interest is best served by the execution of a Separation Agreement rather than a Court Order, or whether it is best for you to have both.

Separation Agreements can cover a multitude of topics, like:

A Separation Agreement, more completely known as a “Separation Agreement and Property Settlement Agreement,” is an alternative to litigation.  However, litigation is often initiated and thereafter settled with the execution of a Separation Agreement.

The negotiation of a Separation Agreement is not easy.  It may be time consuming and complex, depending on the nature and extent of marital and separate assets.  Most of the time, neither party succeeds in getting every single term he or she wants.  Each side must compromise, and compromise is hard.  But first, you need to be educated about what North Carolina law allows and what your options are so you can make informed choices.

For more information on separation agreements in North Carolina, contact a Raleigh divorce mediation attorney at Cheshire, Parker, Schneider & Bryan today.

 

 

Raleigh criminal defense lawyer blogs about cell phone tracking

Raleigh criminal defense lawyer Elliot Abrams authored an article for the North Carolina Advocates for Justice regarding cell phone tracking by police.  The full text is provided below:

Your Right to Privacy in the Digital Age

In 1976, the United States Supreme Court created a rule that, if strictly applied today, would destroy privacy as we know it.  The 1976 case was Miller v. United States, in which the Court held that people have no Fourth Amendment right to privacy in their bank records because those records were disclosed to a third party (the bank).  This rule, known as the third party doctrine, essentially established that constitutional privacy rights depend on absolute secrecy of information.  Any information disclosed to a third party, regardless of the purpose of the disclosure, is not protected by the Fourth Amendment.

Think: every gmail you draft is disclosed to google, so even your private thoughts, your drafts, your rants that you never even dreamed of sending are not “secret” and thus not private under the third party doctrine.  Every television show you watch, every website you visit or search term you enter, and virtually every place you visit while carrying your cell phone, since your phone’s location is logged somewhere on the internet and/or by your cell phone service provider—all of that information is disclosed to a third party and thus is entitled to no Fourth Amendment protection under a strict application of the third party doctrine.

Fortunately, courts have begun to recognize that, as Justice Sotomayor wrote, “[t]his approach is ill-suited to the digital age[.]”   Even at the time of its creation Justice Marshall refused to buy in, saying that he “would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”

The North Carolina Court of Appeals had an opportunity earlier this year to bolster privacy protections in the digital age in State v. Perry.  Unfortunately, in writing for the majority, Judge Tyson went back to 1976, holding that a person has no reasonable expectation of privacy in their cell phone’s location information once that information has been obtained by the cell phone service provider—a belief that would startle most cell phone users.

As we increasingly interpose technology into our daily routines—wearing fitness bands and Apple watches, for example—the law will need to adapt to “assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”  That is, after all, the underlying principle of Fourth Amendment jurisprudence.  Hopefully the North Carolina Supreme Court will look toward the future, rather than 50 years in the past, in considering whether to uphold or reverse Judge Tyson’s decision.

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Elliot S. Abrams is a Raleigh criminal defense lawyer with the law firm Cheshire Parker Schneider & Bryan, PLLC.  Elliot represents people charged with federal and state criminal offenses, public officials targeted by government ethics investigations, and licensed professionals facing professional discipline. Elliot cares deeply about his clients and stands up for them in and out of court.  If you or a loved one are in need of legal help, feel free to call him at 919-833-3114.

 

 

Ex-law clerk pleads guilty in major insider trading case

A former clerk of an international law firm pled guilty to insider trading last week.  According to Justice.gov the clerk obtained confidential insider information (also known as “material nonpublic information”) related to mergers, acquisitions and stock purchases and used it to profit on his personal transactions.  He is also alleged to have passed this insider information to bankers who personally profited from this information as well.

The ex-law clerk was not involved with the transactions on behalf of the firm.  Rather, he apparently accessed the information through the firm’s computer network by performing organic searches on topics such as “merger agreement,” “bid letter,” “engagement letter,” and “due diligence.”

According to the FBI by October 2013, the clerk made profits of about $168,000 on 13 planned corporate transactions.  In March he was charged with security fraud and conspiracy.  In September he rejected a previous plea offer.  He now faces the possibility of 20 years in prison and a $5 million fine for the security fraud charge, along with an additional five years in prison and a $250,000 fine for the conspiracy charge.

The other two conspirators are awaiting sentencing after pleading guilty, one of whom has been ordered to pay back bonuses he received of close to $3 million.

Although there has been a great deal of discussion about insider trading law recently due to a new case out of the Second Circuit, nbsp; link, it appears that those issues were not present in this case.

At Cheshire Parker Schneider & Bryan our Raleigh federal criminal defense attorneys represent anyone charged with insider trading or other fraud offenses.  If you or a loved one are facing such charges, call us for a free consultation today.

(Source:  Law360)

 

 

Parental Alienation in Child Custody Cases

Even the use of the word “alienation” sparks controversy amongst parents, lawyers, mental health professionals and child custody “experts.”  The phrase “parental alienation” is used very broadly to define an estranged relationship between a child and one parent.  After a separation, there are often multiple allegations and counter-allegations that may include accusations that one parent is intentionally poisoning a child against the other parent.

It is uncommon that there is just one dynamic contributing to a child’s rejection of a parent.  There are complex, multi-factored, interactions that cause children to reject a parent, including abuse, poor parenting, family conflict and domestic violence, among others.

Get Legal Help Early

When there is evidence of a child resisting visitation, it is worth a pound of legal and mental health intervention before these problems become deep-rooted.  Parent coordination is almost always a necessary tool for managing cases where there is evidence of alienation because the Family Court is not able to intensely manage the needs of the family.  Court intervention is necessary — even critical — because coercive court authority is needed to support compliance with treatment and custody orders.

The favored parent and child are rarely motivated to comply with court orders that support reunification or access to the other parent, so a court order enforced by contempt of court or sanctions is often necessary for progress to occur.

Distinguishing Conduct From Patterns of Behavior

After a separation, most parents will make a few angry and inappropriate statements, and most children will find a way to ignore these occasional outbursts.  It is important to examine parental behavior to evaluate whether these angry and inappropriate statements are situationally-isolated incidents or whether they are a pattern of ongoing behavior.  Alienating behaviors can range from mild belittling and hostile comments about the other parent to intense and active campaigns to paint the other parent as evil.

When the idea of separation and divorce is new to a parent, a parent may make some disparaging remarks to a child about the other parent.  Although this is not acceptable behavior, it is understandable when the wounds are fresh and the pain is raw.

When called out on the offending statements, if the parent immediately takes corrective action (and means it), these are most likely isolated acts that will not cause a child or the parent-child relationship permanent harm.  On the other hand, when a parent vindictively continues a pattern of persistent attacks, even subtle ones, legal and therapeutic steps must be taken.

Overt and malicious behaviors are obvious to most everyone.  Some behaviors, while subtle, are just as damaging and traumatic to a child and to parent-child relationships as obvious actions.

Consider this: Let’s say we have a dad who expresses support about the mother, along with confusion and dismay about the child’s rejection of the mother. However, dad “accidently” leaves court papers out in the open and anxiously says goodbye with frantic hugs and kisses, saying, “Don’t worry baby, I’m sure you’ll be ok with mommy, but text me as soon as you get scared.” Dad might also make fabulous plans during times when the child is supposed to leave for his or her custody time with mommy. Such actions could be viewed as a pattern of behavior that will likely contribute to damaging the parent-child relationship.

It May Not Be Just One Parent

In most cases, it is not just one parent that is contributing to the estrangement between the child and a parent.  Actions taken by each parent have an impact.  Take the dad’s actions outlined above, and add to the mix how the child may feel when mom says, “You’re acting just like your dad,” and when mom screams “get out, get out, get out – this is my time. You’re ruining my life,” when dad walks into the room.

Legal and mental health interventions must occur where there is alienation or estrangement.  A detailed, clear and specific custody order is critical.  An experienced mental health professional is essential and a Parent Coordinator is necessary.

For more information on this complex subject, contact a Raleigh child custody attorney at Cheshire Parker Schneider & Bryan.

 

Premarital Agreement Mediation

Negotiating a premarital agreement can be very touchy.  Typically, the process begins with one spouse-to-be creating a draft of a document that protects that party, seemingly to the exclusion of the other.  The “moneyed spouse” proposes initially that very little (or none) of the money or assets are to be shared with the other spouse except under the control of the moneyed spouse.  And, there is no guarantee or minimum amount of money or assets paid to the less-moneyed spouse, either at separation or death (even if the marriage is intact), and there are iron-clad provisions dictating who gets what if the parties separate.  You can imagine the ire of the other spouse when this kind of one-sided draft is first read.

Negotiating a Premarital Agreement in the “traditional” way – spouses-to-be standing with lawyers taking adversarial positions like the marriage is a business transaction – can create destructive emotions that are carried over into the fledgling marital relationship. The transactional business deal approach can be bruising and destructive, and can lead to an inadequate document. The quality and terms of the Premarital Agreement can be poor since it was not tailored to the real needs and aims of the future spouses.  There is a better way to negotiate Premarital Agreements than the “traditional” type of negotiation.

Premarital Agreement Mediation!

ADVANTAGES OF MEDIATING THE PREMARITAL AGREEMENT

Mediation is an excellent way for people to discuss tricky issues that provoke hot emotions.  The emotions will still provoke hard conversation, but the mediation setting can lower the heat.  The first difference is that rather than begin with a document that one side has become attached to, a Premarital Mediation can begin with balance since no one has become cemented in his or her proposals.  Prior to Premarital Mediation, each spouse-to-be is offered a checklist of discussion items.  The idea of the Premarital Checklist is for the couple to consider his and her individual approach to the 4 pillars: family, finances, faith, and fun.  Ideally, the couple will discuss approaches and goals prior to mediation.  The Premarital Checklist includes issues like: money and asset accumulation and management; who makes money decisions; who handles the checkbook; savings; money styles; long-term goals; credit and debt; religion;  employment; children; relocation; extended family; post-separation spousal support; business ownership and participation; marital fault; and more.

In Premarital Agreement mediation, the couple can formulate the terms of the Agreement face-to-face, with the assistance of the mediator, lawyers, and the Premarital Agreement Checklist of each party in the background. Rather than trade term sheets back and forth, the spouses are communicating and collaborating toward a mutual understanding and respect while coming to terms of the Agreement.  This give-and-take at the outset of the marriage is an achievement that starts the marriage off successfully.

BALANCE, INFORMED CHOICES, ENFORCEABLE TERMS

A Premarital Agreement must not be coercive. Each party must freely and voluntarily agree to the terms.  A Premarital Agreement must be enforceable. The danger in a “traditional” Premarital Agreement negotiation is that one side is perceived to be a bully, arm-twisting for favorable terms under the threat of backing out of the pending nuptials.  If the agreement is not coercive, the parties will likely stand behind it if there is an initiating event that causes it to come into play.  The Premarital Agreement mediation process creates more balanced terms, informed choices, and an enforceable document.

In mediation, the discussion can be rational and productive. Ideas about to how to fairly and accurately balance and accommodate the parties’ concerns can be processed.  The parties may also learn about ideas and solutions they would not have been aware of without the collaborative input of the mediator and lawyers.  Having a spouse-to-be bring along an independent lawyer is not adversarial – in the context of the mediation, the goal of all participants is to craft an Agreement that is reflective of the needs, desires, and concerns of each spouse-to-be.

There is no better way to come to a true meeting of the minds that takes into account the interests and goals of each spouse-to-be than to do it face-to-face in mediation sessions with a mediator.

At Cheshire Parker Schneider & Bryan, our Raleigh Family Law attorneys represent anyone who is about to be married and who is considering entering into a Premarital Agreement. For more information regarding premarital agreement mediation, contact a CPSB lawyer today.

 

Drunk Driving Sentences

Driving drunk has a wide variety of consequences, depending on where you were, how old you are, how much you have had to drink and what you were doing when you were caught. DUI/DWI charges are determined by any number of factors and drivers who have been accused of driving under the influence should be aware of what goes into the decision to charge individuals, as well as what impact a specific charge will have on potential penalties and sentencing requirements.

Generally, a judge weighs three sets of factors in sentencing a drunk driver: mitigating factors, aggravating factors and grossly aggravating factors. These factors play a role in the severity of a person’s sentence.

Mitigating Factors

A mitigating factor is one that works in the defendant’s favor. This can be anything that lessens the seriousness of a drunk driving incident, including:

• Having a history of safe driving, meaning that the driver has no offenses that were at least 4 points or higher in the last five years
• Voluntarily submitting to a DWI-alcohol assessment
• Fully participating in any recommended treatment
• Driving safely and lawfully at the time of the incident
• Having a prescription for the drug that caused the intoxication

Aggravating Factors

Aggravating factors are those that work against the defendant or make the incident more serious. Although these factors are typically less serious than grossly aggravating factors, they could still lead to increased penalties and sentencing timeframes. These factors include:

• Having two or more convictions of a driving offense that resulted in at least 3 points on your license in the last 5 years. It’s worse if these offenses are for reckless or dangerous driving.
• Having a DWI more than 7 years before the current incident
• Being convicted for passing a stopped school bus
• Being convicted of speeding from the police of law enforcement officials
• Having gross impairment levels of .16 or higher

Grossly Aggravating Factors

Grossly aggravating factors are the ones that lead to the most serious penalties. Anything that falls under the category of grossly aggravating factors carries with it the automatic stipulation that the driver will be sentenced at a level 2, level 1, or aggravated level 1 for DUI/DWI. These include:

• Having a prior conviction of driving on a revoked license while the license was revoked for drunk driving
• Having a prior conviction for DWI within the last 7 years
• Having a child under the age of 18 in the car at the time of the incident

Levels of Sentencing

A Level 5 sentence is the least severe and occurs when there are no grossly aggravating factors and the mitigating factors outweigh the aggravating ones. This carries a fine of up to $200 and potential jail time between 1 and 60 days.

At Level 4, no grossly aggravating factors are present and the mitigating factors are balanced by the aggravating factors. Offenders may be sentenced to a fine of up to $500 and face imprisonment between 2 and 120 days.

Level 3 applies when there are no grossly aggravating factors and the aggravating factors outweigh the mitigating factors. Fines can be up to $1,000 and jail time is between three days and six months.

At Level 2, one grossly aggravating factor is present and the defendant can be fined up to $2,000 and sentenced from 7 days to 12 months in jail.

Level 1 applies when two grossly aggravating factors are present, as well as any DWI cases from December 1, 2011, in which a child under 18 is in the car. Offenders can be sentenced up to $4,000 in fines and 30 days to 24 months of jail time.

At Cheshire, Parker, Schneider & Bryan, we represent anyone who has been charged with a drunk driving offense. To discuss your case, contact our Raleigh DUI/DWI attorneys for a consultation today.

 

Stop in the Name of the Law

Earlier this year, the North Carolina Supreme Court issued a ruling that has changed the way law enforcement officials interact with drivers whom they suspect of breaking the law. The issue in the case was this: When a cop mistakenly believes something to be against the law and initiates a traffic stop based on that mistake, is evidence of criminal activity obtained during that stop illegal or should it be allowed in court?

What Happened?

In the original case, defendants Maynor Javier Vasquez and Nicholas Heien were driving on Interstate 77 in North Carolina. An officer saw the car drive by and began following them because he thought Vasquez, who was driving at the time, looked nervous. When Vasquez hit the brakes, the officer saw that the right rear brake light was out and pulled the car over.

The officer believed it was against state laws to drive a car with a broken brake light and told Vasquez and Heien that that was the reason for pulling them over. During the traffic stop, the officer began to suspect the men of carrying drugs and asked to search the car. Heien agreed to the search and the officer found cocaine. Both men were charged with attempted drug trafficking.

On appeal, the court found that North Carolina’s laws require only one working brake light in the car. Because Heien’s left brake light was functional, the officer should not have initiated a traffic stop. The Court of Appeals ruled that the “officer’s mistaken belief that a defendant has committed a traffic violation is not an objectively reasonable justification for a traffic stop,” and that the stop was in violation of Heien’s Fourth Amendment rights.

The Fourth Amendment gives U.S. citizens the right to privacy, which includes protection from unreasonable search and seizure. In this case, Heien had an expectation of privacy in his car, which was violated by an unreasonable traffic stop since he was not breaking the law. The appellate court’s decision upheld this interpretation of the officer’s actions.

The Case in Supreme Court

The state brought the N.C. Court of Appeals’ decision to the state Supreme Court and challenged the ruling that an officer’s mistaken belief of the law negated any reasonable justification to pull a driver over. In the state Supreme Court’s decision, the justices ruled that an officer of the law can make a mistake on state procedures and requirements and still reasonably enact a traffic stop based on that mistake. In other words, the officer who stopped Heien because of his broken brake light was not in the wrong, even though the state’s laws require only one working brake light.

In these cases, evidence obtained unlawfully, but in good faith, can be used to build a case against a driver or passenger. The drug trafficking charges for Heien and Velasquez were valid based on the cocaine found in their vehicle.

At Cheshire, Parker, Schneider, & Bryan, we represent anyone who has been charged with criminal activity following a traffic stop. For more information on this case and the Supreme Court’s decision, contact a Raleigh DUI lawyer at CPSB today.

 

Raleigh Criminal Defense Attorneys Take a Closer Look at Johnson v. United States

This summer, the United States Supreme Court made some important decisions that will change the future of federal law for the country. Some of these decisions, including the ruling that banning gay marriage is unconstitutional, were covered extensively media outlets across the country, while others, like the decision in Johnson v. United States, went relatively unnoticed by the general public. However, the Johnson decision may greatly impact past and future sentences for people convicted of crimes in federal court across the country.

The ACCA Residual Clause

In Johnson v. United States, the Court was asked to determine whether the residual clause of the Armed Career Criminal Act is constitutional. The Armed Career Criminal Act, or ACCA, is a federal criminal law that dramatically increases a person’s sentence for possession of a firearm by a felon (which is a federal crime) when the defendant has three or more previous convictions for a “violent felony.”  Under ACCA, such defendants must receive at least a mandatory minimum 15 year sentence and can receive up to life in prison.

The question before the Court was whether the term “violent felony” was defined with enough specificity.  Under the Due Process Clause of the United States Constitution, criminal laws must “give ordinary people fair notice of the conduct it punishes” and must not be “so standardless that it invites arbitrary enforcement.”  Laws that fail this test are deemed unconstitutionally “vague.”

The law defined the term “violent felony” to include, among other things, “burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious risk of physical injury to another.”  The Court focused on the last clause (the italicized portion), which has become known as the “residual clause” of ACCA.  And it ultimately held that this residual clause was too vague to satisfy the requirements of due process.

Johnson and the Residual Clause

The defendant, Samuel Johnson, had been accused of planning to attack the Mexican consulate in Minnesota as well as progressive bookstores in the area.  Johnson had several felony convictions on his record, and he ultimately pleaded guilty to being a felon in possession of a firearm.

The Government then requested an enhanced sentence under ACCA, arguing that three of Johnson’s prior convictions—including unlawful possession of a short-barrel shotgun—qualified as “violent felonies.”  The Government argued that possession of a shot-barrel shotgun constituted “conduct that presents a serious risk of physical injury to another,” and therefore fell under the residual clause of ACCA.

Johnson argued both that mere possession of a short-barrel shotgun was not inherently dangerous and that the residual clause was unconstitutionally vague.  After detailing the Court’s many attempts to interpret the residual clause in past cases and finding that these rules simply do not provide any clear guidelines, the Court agreed with Johnson’s vagueness argument and struck down the residual clause of ACCA.

Impacts of Johnson

This is an important ruling for criminal defendants and criminal defense lawyers.

First, limiting ACCA’s requirement of a 15 year mandatory minimum sentence (and up to life) to clearly-defined situations is important for defendants to know what sentence they may receive if they plead guilty to being a felon in possession of a firearm.

Second, the Court’s discussion of vagueness and the corresponding requirements of the Due Process Clause that laws must give “fair notice” of what conduct applies to cases involving allegations of fraud and other so-called white collar crimes as well as allegations of bribery and other political or public corruption offenses.

For example, the Seventh Circuit recently overturned a few convictions of former Illinois Governor Rod Blagojevich because he may have been convicted for “logrolling,” (trading one political act for another).  Invoking the vagueness concept, the Seventh Circuit noted, “It would be more than a little surprising to Members of Congress if the Judiciary found . . . everyday politics criminal.”  Thus, the Supreme Court’s analysis in Johnson may help Raleigh white collar defense lawyers defend their clients.

Contact Your Attorney

At Cheshire, Parker, Schneider & Bryan, we represent anyone who has been charged with criminal activity, including persons who have been charged for possessing a firearm with a felony record. To discuss your case and your legal options for defense, contact a Raleigh criminal defense lawyer at CPSB today.

 

Federal Appeals Court Overturns Federal Bribery Conviction

The aptly labeled crime 18 U.S.C. § 666 creates a federal crime out of certain acts of state government bribery (as well as embezzlement from certain state government and non-profit entities).

The distinguishing characteristic of the offense that allows it to be charged as a federal crime is that the crime must involve an entity that received “benefits in excess of $10,000” within one year of the offense conduct.

Due to the pervasive involvement, through grants and other spending, of the federal government in the financing of state and local governments, courts have long struggled with the coverage of § 666. For example, the Supreme Court has dealt with this issue on at least three occasions: Salinas v. United States, 522 U.S. 52, 57 (1997); Fischer v. United States, 529 U.S. 667 (2000); and Sabri v. United States, 541 U.S. 600, 606 (2004).

Last week, the Eleventh Circuit Court of Appeals weighed in, overturning a federal bribery conviction under § 666 of a city councilman in Florida who was caught accepting bribes because the government did not prove that the city received benefits in excess of $10,000. Full opinion US v. McLean -11th Circuit 2014 – Full Text.

At the outset, the court was “mindful that the Supreme Court recently cautioned against federal criminal statutes being read too expansively.” (Citing Yates v. United States, 135 S. Ct. 1074 (2015) (concluding the term “tangible object” defined within the Sarbanes-Oxley Act of 2002, legislation designed to restore confidence in financial markets, did not apply to the undersized red grouper that a commercial fishing vessel’s captain threw overboard)).

The court then applied a test fashioned from a prior case that required the government to provide sufficient detail about the particular local government program that the federal government allegedly funded in excess of $10,000 to allow the court to determine whether the program constituted a federal benefit.

The court found that the government’s evidence did not provide sufficient detail regarding the alleged federal benefits received by the city and therefore overturned the city councilman’s conviction.

The overarching concern the judges appeared to have been federal involvement in state crimes, particularly because (contrary to current practice) there is no generalized federal police power.  The Supreme Court shares this concern, as exemplified in US v. Bond, decided in 2014, which overturned a woman’s conviction for utilizing a “chemical weapon” when she surreptitiously placed mildly toxic chemicals on a romantic rival’s door handle causing a minor rash.  The Court specifically determined that it “can insist on a clear indication that Congress meant to reach purely local crimes, before interpreting the statute’s expansive language in a way that intrudes on the police power of the States.”

These cases, McLean and Bond, both show an attempt to curb the expansion of federal policing into state and local offenses in response to the over-federalization of law enforcement in this country, a topic wonderfully covered by lawyer Harvey Silvergate in his book Three Felonies a Day.

For Raleigh federal criminal defense attorneys, these rulings are important to be aware of since they suggest that courts will be less willing to endorse the expansion of the federal police power.

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At Cheshire Parker we represent people under investigation or charged with federal crimes.  To discuss your case and your legal options for defense, contact one of our Raleigh federal criminal defense attorneys at CPSB today.

 


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