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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.

 

Federal Judge Enhances Cell Phone Privacy

A federal District Court Judge in Pennsylvania applied the doctrine known as “Act of Production Immunity” to prohibit the U.S. Securities and Exchange Commission (SEC) from forcing defendants accused of insider trading to disclose the passcodes necessary for the government to access their phones.

Act of Production Immunity is an outgrowth of the Fifth Amendment right against self-incrimination.  Under it, a defendant cannot be required to disclose the contents of their mind, even if doing so is not by itself incriminating, but may lead to the government discovering incriminating evidence.

Importantly, the court found that the passcodes were not corporate records, even though the smartphones themselves were property of the defendants’ employer.

The full opinion from SEC v. Huang et al is available here: US v. Huang et al – Opinion.

This opinion is another win for privacy in the technological age.  The 11th Circuit Court of Appeals in 2012 prohibited the government from forcing a defendant to decrypt his computer hard drive.  In both that case and Huang, the court determined that the government did not have particularized knowledge of the contents of the encrypted device to be able to access the device under the “foregone conclusion” exception to Act of Production Immunity.

Under the foregone conclusion case law, the act of providing access to a certain device (or safe or other private space) is not “testimonial” under the Fifth Amendment if the government can show with “reasonable particularity,” “at the time it sought to compel the act of production, it already knew of the materials” being sought, which would make any testimonial aspect of providing access to the device a “foregone conclusion.”  This exception has the potential to swallow the rule, so privacy advocates should take heart that judges have required the government to have specific knowledge of the item(s) it seeks access to in order to avail itself of the foregone conclusion exception.

The Fourth Circuit also recently enhanced the protections of individual privacy in its opinion US v. Graham – Opinion.  In that case, the court determined that the government must obtain a warrant before reviewing historical cell-site location records (records that show approximately where a cell phone has been), at least when reviewing the records for an “extensive” 221 day period.  (See Orin Kerr’s discussion of the case at WaPo: Fourth Circuit adopts mosaic theory, holds that obtaining “extended” cell-site records requires a warrant.)

Each of these cases show courts attempting to apply the Constitution to new technologies, and each of the rulings have important implications for Raleigh criminal defense attorneys in their attempts to protect the privacy of their clients.  If you are being asked to disclose your computer password or cell phone passcode to police, call a criminal defense attorney.

 

PreMarital Agreements and Social Media

As you and your significant other begin to discuss marriage, you may not have thought much about your social media presence beyond the relationship status update on your Facebook page or the name change on your Twitter account.

If you and your partner-to-be are negotiating a Premarital Agreement, you may not have discussed whether social media accounts and online sharing should be included in your Premarital Agreement but it’s a topic that you should consider.

Social networking clauses are becoming increasingly popular in premarital agreements as more and more couples try to protect their online reputation and right to privacy. One partner may be a “share everything” type of person, while the other is more private. In some cases, a spouse’s career may be jeopardized because of careless or provocative pictures, tweets, or posts. It is important that you consider how using social media will intersect with sharing your life with someone.

What Can You Limit?
A social media clause can include limitations about images and information that each spouse can post online about the other. Prohibited actions may include limits about online photos of the children; images of the couple at parties; or images of a spouse smoking.

Provisions in the Premarital Agreement could include rules for tagging the other spouse, or requirements that all settings be at the highest privacy setting, or requirements for access by invitation only.

The restrictions on social media use must be as detailed as possible and should include references to the harm that is intended to be prevented. Without the detail and connection to potential harm, these clauses run the risk of being violations of free speech, contrary to public policy, and unenforceable.

The penalties for violation can vary depending on how the couple wants to handle a breach. Penalties can also vary depending on whether the violation occurred during the marriage or after separation.

Social Media and Divorce
If you and your spouse separate, you should be wary of what you post online regardless of whether there is a social media clause in your Premarital Agreement or regardless of whether you have a Premarital Agreement. Online pictures, videos, blogs, chats, and posts can be used against you and you may find yourself eating your very words.

A social media clause in a Premarital Agreement can cause a spouse to have second thoughts before uploading a bevy of images or making a careless post or comment that has unintended but real harm. You can help protect your own reputation, professional interests, and personal relationships though discussions with your soon-to-be-spouse about the boundaries of social media use and use of a Premarital Agreement to clarify the rules.

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 social media and online protection, contact a CPSB lawyer today.

 

Child Support and Pregnancy Laws

Parents have a legal responsibility to provide financial support to their children until they turn 18 and are considered legal adults. In a stable, two-parent home environment, both parents have the opportunity to contribute to that support from the moment of conception, no matter what the family situation is or who the breadwinner may be. For divorced families, North Carolina has established child support laws to regulate how this financial support is divided.

But in some cases, parents may have divorced before their child was born, or they may not have been married in the first place. Both scenarios leave parents facing situations where one of them (usually the mother) is shouldering the financial responsibilities during pregnancy. In such cases, should the mother be receiving child support during her pregnancy and before the child is born? Here, the child support laws get a little more complex.

Paternity Laws
In some states, the laws have provided for such scenarios, making it a requirement that both parents must support their unborn child. A father can be made to provide child support to a pregnant mother throughout the pregnancy. However, in order to mandate child support obligations, the court must have proof of paternity.

The paternity can be established by presumption in a likely scenario (husband and wife, for example), court order, a paternity test, or even a father’s acknowledgement, but these methods can be disputed in court, dragging out the process of establishing financial responsibility. Paternity tests also pose a problem because they may present a threat to an unborn baby’s health.

If paternity is not established, a mother cannot receive child support throughout her pregnancy and must wait until the child is born. Then, paternity can be established through testing and the courts can make a determination on child support responsibilities for both parents.

North Carolina Laws
The state of North Carolina does not require fathers to pay child support until the child is born; so throughout a mother’s pregnancy, she is responsible for all financial burdens including medical care and expenses related to childbirth. The father does not have a legal obligation to provide any financial contribution, unless he wants to do so.

North Carolina does provide a way for a mother to receive reimbursement for some of the medical expenses related to child birth. This is done through a legal claim, and it is important for the mother to keep detailed records of all expenses, bills and receipts so the other parent can contribute. However, a reimbursement claim cannot include any expenses for the mother’s prenatal care.

Call a Lawyer Today
At Cheshire, Parker, Schneider, and Bryan, a North Carolina law firm, we help parents determine how they will handle care of their children, especially if they are divorced or separated. We offer legal counsel on custody and child support issues. For more information regarding North Carolina’s laws and requirements, contact one of the Raleigh family attorneys at CPSB for a consultation today.

 

Cracking Down on Drunk Driving

One of the biggest contributors to drunk driving is the fact that each individual driver makes the determination on whether he or she feels sober enough to get behind the wheel, and often after a few drinks, impaired judgment has a hand in making that call.

So many times, a driver thinks he is “not that drunk” or has “only had a couple beers” and will be fine to make it the short distance home. All too often, he or she is making such decisions while drunk or tipsy. Not only does this choice put the driver and others on the road at risk for potential accidents, but it could also land the driver in serious legal trouble.

Because drunk driving is such a problem and such a common crime with high potential for disaster, law enforcement officers and legislators are constantly on the lookout for ways to deter drivers from getting behind the wheel when they are too drunk to safely drive. In North Carolina, legislators have enacted some of the toughest drunk driving laws in the country and most are aimed specifically at repeat offenders with histories of drunk driving.

Laura’s Law and What’s Next for NC
In 2011, the state’s lawmakers passed “Laura’s Law,” which redefined habitual drunk driving offenders and increased penalty options for those who fell into the new definition. Laura’s Law stipulates that anyone who has had four or more DUI/DWI convictions on his or her record is considered a repeat offender. Repeat offenders who were charged with a fourth or subsequent drunk driving offense would be subject to increased penalties, including higher fines, harsher criminal charges and longer prison sentences.

Now, the state’s legislators are hoping to amend these statutes even further. Earlier this year, two bills sponsored by Democratic Representative Darren Jackson of Wake County were introduced and both parties showed significant support. In his introduction, Jackson cited traffic statistics from 2013, which demonstrate that nearly one-third of all traffic and car-accident related fatalities in North Carolina involved drunk drivers.

The first measure, House Bill 31, deals with convicted drunk drivers and sets restrictions on those who have had their licenses suspended as a result. These offenders are typically on their first drunk driving charge and would be prohibited from driving with any amount of alcohol in their systems.

House Bill 32 is the second part of the initiative. The measure plans to set further limitations on the criteria for labeling a driver as a “habitual” DUI offender. Although under Laura’s Law, the habitual drunk driving label is assigned after four convictions within a ten-year period, House Bill 32 wants to lower this to three convictions within the same 10 years.

Habitual drunk driving will be treated as a felony offense. Convicted persons would be required to spend a minimum of one year in jail and complete a substance abuse program either during the jail sentence or after as part of their paroles.

At Cheshire, Parker, Schneider & Bryan, we represent anyone who has been charged with drunk driving in North Carolina. To discuss these new measures, and how they may affect your case, contact a Raleigh DWI lawyer at the firm for a consultation today.

 

CPSB Partner Co-Authors NCBA Family Law History

Last year, the North Carolina Bar Association (NCBA) published a complete history of the NCBA’s Family Law Section from 1980 to 2013. This publication was a joint effort between Tharrington Smith attorney Lynn P. Burleson, and our own team member, Amy L. Britt. Ms. Britt, a partner with CPSB, provided the history for the decade spanning from 2003 to 2013, while Mr. Burleson worked on the earlier years.

The History of the Family Law Section of the NCBA provides a look into the Section’s influence on the development of North Carolina’s family law legislation over time. The history describes the Section’s position on specific legislation, and how the efforts of Section members have impacted the state’s current family law statutes. The History also provides a membership report, a list of continuing legal education seminars sponsored by the Section, and a list of officers and council members.

Family Law Section
The NCBA Family Law Section is a professional membership association for family lawyers who work in North Carolina. The Section’s efforts lie in promoting improvements to existing state laws and programs for family law through pro bono legal services, legal education, practice guides, mentoring programs, and legislative changes. The Family Law Section provides continuing education programs for lawyers, with seminars on child custody, child support, alimony and equitable distribution. The Section also publishes the NCBA “Family Forum” newsletter for its members and helps mold the legislative agenda for presentation to the General Assembly.

Amy Britt
Ms. Britt was admitted to the North Carolina Bar in August 2005, and since then, she has dedicated herself exclusively to the practice of family law in Wake County and Raleigh. She has successfully worked with clients who are going through the process of divorce and separation, and she has considerable experience in handling child custody, support, alimony, and equitable distribution cases. Ms. Britt also handles domestic violence cases, and prepares premarital agreements, property settlement agreements, and domestic relations orders for parties.

Ms. Britt is licensed to practice law in the U.S. District Court in the Eastern District of North Carolina, and she has lived and worked in Raleigh since 2005, giving her unique insight into the local court systems.

The attorneys at Cheshire, Parker, Schneider & Bryan are proud of Ms. Britt’s efforts and dedication to this project and the important work she did in providing the state with an updated History of the Family Law Section of the NCBA. Like Ms. Britt, all of our team members strive to involve themselves in efforts that will help the legal community and the local community. CPSB is a leading law firm in Raleigh, NC, and our Raleigh family lawyers are dedicated to providing high-quality legal services to clients.

 

Driving on a Suspended License

If your license has been suspended, legally, you are required (and expected) not to drive until that suspension has been lifted. Still, as most of us know, just because an individual’s license is suspended, it does not physically prevent him or her from driving if the individual chooses to ignore the suspension period. Keep in mind though — when you ignore a license suspension, you risk increased penalties that could aggravate existing traffic or criminal charges against you.

What Happens When Your License Gets Suspended?
Typically, a person’s license is suspended because he or she has been caught engaging in unsafe driving practices or breaking the state’s traffic laws. Common reasons for having your North Carolina driver’s license revoked include:

• Unpaid court fees and costs
• Failure to show up for a scheduled court date in any county within the state
• Driving under the influence of drugs or alcohol
• Accumulating 2 speeding tickets over 55 mph in the same year
• Accumulating 12 DMV points in 3 years
• Accumulating three DMV points in three years with a license suspension on your record

As you can see from the list above, points on your license can be stacked over a lengthy period to create a more severe penalty. You may be thinking that one or two speeding tickets and a minor traffic violation, like running a red light, may be small transgressions, but when the points start adding up, your license could be revoked for up to a year as a result.

What Happens When You Get Caught?
If your license has been suspended and you are still driving, you are risking heavy fines and penalties, not to mention an even longer suspension period. Pleading guilty to driving on a suspended license will earn you an extra year of suspension.

Thanks to changes in North Carolina legislature in December of 2013, driving on a suspended license is now considered a Class 3 misdemeanor and can be penalized with up to 20 days in jail, as per N.C.G.S. 20-28(a). Prior to December 2013, this was considered a Class 1 misdemeanor, so the laws have been bent a little to reduce sentencing.

However, this change occurred in conjunction with the introduction of a new offense — driving while your license is revoked or suspended due to a DUI/DWI charge. This is considered a Class 1 misdemeanor and you could be penalized with up to 120 days in jail, extended revocation or suspension periods, and it could be extremely difficult to obtain a valid license once your suspension period has expired.

Similar to the complications of a combination DUI/suspended license charge are any situations where you have a pending criminal charge and you have been caught with a suspended license. Depending on the type of charges you are facing, you could be looking at increased penalties, additional suspension timeframes or more.

At the North Carolina law firm of Cheshire, Parker, Schneider & Bryan, we represent anyone who has been charged with criminal activity, including driving on a suspended license. If you are facing license suspension, or if you have been caught driving with an invalid license, you may be able to have your charges reduced or dismissed depending on the circumstances of your case. For more information, contact a Raleigh traffic offense lawyer at the firm for a consultation today.

 

First Recipient of Cheshire Schneider Scholarship Announced

Here’s a reprint of a post from Campbell Law School – LINK.

Nelson to receive Cheshire Schneider Advocacy Scholarship

RALEIGH, N.C. – Incoming first-year student Terrie Nelson has been selected to receive the Cheshire Schneider Advocacy Scholarship from Campbell Law School. The award is one of three highly prestigious, full-tuition awards.

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In keeping with Campbell Law’s mission to educate and develop vigorous advocates for championing and defending individual liberties and justice for all, Campbell Law annually offers the Cheshire Schneider Advocacy Scholarship to one incoming law student who has achieved demonstrable success in advocacy programs such as debate or mock trial during high school and/or college experiences. Initially established as the Excellence in Advocacy Scholarship, the award was re-named in honor of prominent Raleigh attorneys Joseph Cheshire, V and Alan Schneider of Cheshire Parker Schneider & Bryan in December 2014 following an anonymous $100,000 gift to the law school in their honor.

“I fully recognize that not everyone has the privilege to attend law school, but everyone should have the opportunity to be fairly and fervently represented in our court system,” said Nelson. “I am honored to receive the Cheshire Schneider Advocacy Scholarship and to have been selected to attend one of the most prestigious law schools in the state, and with the opportunity that has been afforded to me, it is my aim to become a skilled advocate so that I may better serve others.”

A native of Hampton, Virginia, Nelson holds undergraduate and master’s degrees from the University of North Carolina – Wilmington (UNCW). As an undergraduate student she received the Rachel Freeman Service Leadership Award and the Senior Medallion Award. During her graduate studies Nelson served terms as president and vice president of the UNCW Conflict Management & Resolution Graduate Student Association, and as treasurer of the UNCW Graduate Student Association. Nelson has worked as a victim witness legal assistant in the New Hanover and Pender County district attorney’s office, and has volunteered in the community at Pender County Christian Services and with Pender County Teen Court.

An internal search committee comprised of advocacy experience from within the Campbell Law community interviewed an impressive slate of finalists and ultimately selected Nelson for the award. Campbell Law Assistant Professor of Law and Director of Advocacy Dan Tilly steered the committee alongside namesakes Cheshire and Schneider.

“It would be difficult to find a better person to receive the first Cheshire Schneider Advocacy Scholarship,” said Cheshire. “Terri’s entire life has been one of hard work and personal accomplishment while using advocacy and personal dedication to positively affect other people’s lives. She embodies what this scholarship is supposed to nurture and I could not be happier that she will be its first recipient.”

ABOUT CAMPBELL LAW:
Since its founding in 1976, Campbell Law School has developed lawyers who possess moral conviction, social compassion and professional competence, and who view the law as a calling to serve others. The school has been recognized by the American Bar Association (ABA) as having the nation’s top Professionalism Program and by the American Academy of Trial Lawyers for having the nation’s best Trial Advocacy Program. Campbell Law boasts more than 3,650 alumni, including more than 2,500 who reside and work in North Carolina. In September 2009, Campbell Law relocated to a state-of-the-art building in downtown Raleigh. For more

 

Amy Britt Updates the NCBA’s Family Law Section History

In 2014, the North Carolina Bar Association published an updated History of the Family Law Section spanning from 1980 to 2013. Co-authoring the history was one of Cheshire Parker’s Raleigh family law attorneys, Amy Britt. Attorney Lynn Burleson of Tharrington Smith provided the original history spanning the years from 1980 to 2003, while Ms. Britt provided the data and narratives for the following decade. The report includes a history of section membership, officers and council members as well as the range of services and legal education seminars the NCBA has provided to family law attorneys across the state. This collaborative document exemplifies the changes that have taken place in matrimonial law in the last 35 years.

You can view the History of the Family Law Section online at the North Carolina Bar Association’s website here with an NCBA membership login: https://www.ncbar.org/media/444946/history-of-the-family-law-section-with-alb-additions-1162015.pdf

The Family Law Section of the North Carolina Bar Association promotes improvements in family law practice and jurisprudence by legislative changes, legal education, practice guides, pro bono legal services and mentoring programs. The Family Law Section provides information on legal and policy developments relating to children and families. The section also sponsors CLE programs on equitable distribution and an intensive seminar in family law in alternate years, thereby furthering the knowledge of its members in all matters relating to family law. The section provides members with a substantive newsletter and helps mold the association’s legislative agenda for presentation to the General Assembly.

 

 

Laura’s Law

In North Carolina, drunk driving charges are ranked in severity according to grossly aggravating factors, aggravating factors and mitigating factors. Before 2011 and Laura’s Law, any drunk driving instance was subject to five different levels of sentencing, the highest of which was a Level 1.

A Level 1 offense consisted of two grossly aggravating factors or the single aggravating factor of carrying a passenger under the age of 18 in the car at the time of the DUI offense. At Level 1, a DUI charge would carry a minimum of 30 days in jail and a maximum sentence of 2 years.

In 2011, North Carolina’s General Assembly passed Laura’s Law, an ordinance that has changed how drunk driving is categorized and sentenced throughout the state. The statute was named for Laura Fortenberry, a 17-year-old from Gaston County who was killed after a drunk driver collided with the car in which she was a passenger in the summer of 2010.

The driver at fault had been cited and sentenced for several drunk driving instances before and was heavily intoxicated at the time of the accident. To cut down on repeat offenders driving drunk and to more heavily penalize drivers who have multiple DUIs in their history, the state enhanced their drunk driving sentencing process.

Aggravated Level 1
Under Laura’s Law, the state has added a sixth level of sentencing designed specifically to penalize repeat drunk drivers. The Aggravated Level 1, or Level A1, involves any case where three or more grossly aggravating factors have been found. Level A1 sentences can only be applied to drunk driving charges that occurred after December 1, 2011, when the law took effect. These charges can be penalized more severely with a maximum term of three years in jail and a minimum sentence of one year — longer than the state’s penalties for certain felony crimes.

A driver who has been convicted of a DWI at the A1 level cannot reduce or shorten the active jail sentence by choosing alternative penalties such as inpatient treatment, rehabilitation or driver’s education courses. The set amount of time in jail is predetermined and cannot be adjusted.

The only exception for this is in cases where the driver who has been charged agrees to use a Secure Continuous Remote Alcohol Monitoring (SCRAM) bracelet. The SCRAM bracelets, worn at the ankle, are designed to act as on-the-go breathalyzers and monitor the wearer’s blood alcohol content by collecting samples from the air around the body.

If the person has consumed any alcohol, the SCRAM will be able to detect the change in blood alcohol content through the person’s sweat glands. The device collects samples at designated times, usually once or twice an hour, to keep the wearer in check.

At Cheshire, Parker, Schneider, and Bryan, we represent people charged with a drunk driving offense, including those charged at aggravated levels under Laura’s Law. If you have questions regarding your charges, or need legal representation, contact a Raleigh DWI lawyer at our firm today.

 


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