Category: NJ Criminal Defense

Third Circuit Opinion: United States v. Chapman

John Roberts, Esq.
Arseneault & Fassett, LLP

In United States v. Chapman, No. 16-1810 (3d Cir. Aug. 4, 2017), the U.S. Court of Appeals for the Third Circuit held that mailing threatening communications, in violation of 18 U.S.C. §876(c), qualifies as a “crime of violence” for purposes of determining career offender status under the U.S. Sentencing Guidelines. Violations of §876(c) are punishable by up to five years imprisonment generally, or up to ten years if directed against a federal judge or federal law enforcement official. Chapman had been convicted of two prior violations of §876(c), first after he mailed a letter threatening to kill President George W. Bush, and then after mailing a letter which threatened a federal judge and court staff. After violating the terms of his supervised release following his second conviction, Chapman sent another threatening letter to the federal prosecutor who was handling Chapman’s revocation. After pleading guilty, Chapman was deemed a career offender based on his three convictions under §876(c).

Chapman argued that mailing threatening communications was not a crime of violence because it did not require “violent physical force.” The Court applied a categorical approach to the question, comparing only the elements of the statute against the guideline and disregarding the particular facts of Chapman’s offenses. By this method, if the statute has the same element as the guideline, or defines the offense more narrowly, then a violation counts toward career offender status. If the statute defines offense conduct more broadly, then career status is not implicated. The Sentencing Guidelines define the predicate “crime of violence” as including any offense punishable by more than one year imprisonment that has as an element the “threatened use of physical force against another.” The statute prohibits communications “containing [] any threat to injure the person of the addresses or of another.” The Court noted the Supreme Court’s interpretation of “physical force” as “violent force” and reasoned that the common definition of “injure” implicates “physical force.” Therefore, the violations of §876(c) qualify toward career offender status. By its holding, the Court brought the Third Circuit into alignment with the First, Second, Eighth, and D.C. Circuits.

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Trump Administration Sets Strict New Course for Federal Prosecutions

John Roberts, Esq.
Arseneault & Fassett, LLP

The Attorney General of the United States, Jeff Sessions, has issued a memorandum to all federal prosecutors establishing the strict new policy of the Trump Administration’s Department of Justice (DoJ) for charging and sentencing federal offenses. The “Sessions memo” overturns a series of “Holder memos,” issued during the Obama administration, which had urged prosecutors to avoid charging crimes that carry mandatory terms of imprisonment in certain cases.

The Sessions memo outline two broad directives. First, federal prosecutors are to “charge and pursue the most serious, readily provable offenses.” Leaving nothing to the imagination, the memo defines “serious” offenses as “those that carry the most substantial guidelines sentence, including mandatory minimum sentences.” Second, the memo directs prosecutors to disclose to the sentencing court all facts that could impact a judge’s sentencing decision, and to seek sentences within the U.S. Sentencing Commission’s Guidelines. Any Government recommendations for variances or departures from the Guidelines requires the approval of supervisors. Further, prosecutors who wish to deviate from the principles of the memo must justify such with “unusual facts” and must document those special circumstances for the file.

The Sessions memo explicitly rescinds any previous DoJ policies which would be inconsistent with the new one, and it specifically cites the Holder memos issued in 2013 and 2014. The Holder memos had directed prosecutors to avoid seeking mandatory-minimum and enhanced sentences for nonviolent, low-level drug-distribution defendants who were not part of large-scale criminal organizations and did not have significant criminal records. Those relatively lenient policies are now history under the Trump administration.

By requiring front-line prosecutors to pursue the most serious provable charges and disclose all relevant facts to the sentencing court, the new policy seeks to deny them a major avenue of prosecutorial discretion — the ability to be flexible and reasonable in applying the law to the specific circumstances of each defendant to obtain the most just result. In light of these new policies, it is more important than ever in certain cases where a person is under scrutiny by federal law enforcement for an experienced criminal defense attorney to interface with prosecutors as early in the process as possible. In such cases, an early resolution may prove more favorable for the client than would be possible after an investigation has developed to the point where unreasonably serious charges are filed and prosecuted.

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New Law Allows Expungements Sooner

John Roberts, Esq.
Arseneault & Fassett, LLP

In April, people who have been convicted of criminal offenses in New Jersey will be able to apply to have their criminal records expunged sooner than ever before. New legislation takes effect on that date, reducing the waiting periods for eligible indictable offenses and disorderly persons offenses.

Now, people who were convicted of an indictable offense (commonly referred to as a felony) will be eligible to apply for an expungement just five years after they complete their sentence — whether that is being released from incarceration, probation, or parole, or the payment of a fine — whichever occurs last. Under the previous law, the waiting period was ten years.

Under the new law, those who have been convicted of a disorderly persons offense or petty disorderly persons offense (otherwise known as misdemeanors) would become eligible to apply for expungement three years after their sentence has been completed. Under the old law, the waiting period was five years.

These changes represent a great opportunity for those who have been involved in the criminal justice system to get a “fresh start” in life and put their previous mistakes behind them. A criminal record can significantly inhibit a person’s ability to find a job, obtain a loan, get an education, find housing, and so many other important aspects of living a normal life. Expungement gives those people a helping hand.

When a criminal record is expunged, governmental agencies are required by Court Order to “extract and isolate” the petitioner’s criminal records. Any search that is conducted later through a government agency for records of arrest, criminal charges, prosecution, conviction, and so on, will result in “no records found.” If the person whose record has been expunged is later asked — on a job application, for example — whether they have ever been arrested or convicted, they can truthfully answer “no.” According to the law, it is as if the matter never happened.

Expungement can benefit not only people who have been convicted of an offense, but also anyone who has only been arrested, charged, or acquitted, or whose charges were dismissed through the Pre-Trial Intervention (PTI) diversionary program. Many people do not realize that even if they were exonerated or avoided prosecution altogether, a record still exists of their arrest and the charges that were once lodged against them. The new law expands that list of eligible people to include those who have “graduated” from the Drug Court diversionary program.

The expungement petition process has a number of important limitations, such as certain types of offenses which cannot be expunged. And a person who applies for employment with the court system or law enforcement must still disclose their actual criminal history. The expungement petition process itself is complicated and fraught with procedural requirements and deadlines which, if not followed precisely, can result in the petition being denied by the Court.

For all these reasons, it is important that someone considering applying for an expungement consult with a qualified criminal defense attorney who is familiar with the law.

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A.G.’s Office Allows No-Jail Options for Out-of-State Concealed-Carry Holders Visiting N.J.

By: John J. Roberts, Esq. Arseneault & Fassett, LLP

On September 24, 2014, New Jersey’s Office of the Attorney General allowed out-of-state concealed carry permit holders who bring their handguns into New Jersey to be eligible for Pre-Trial Intervention (PTI) to avoid mandatory jail time under New Jersey’s strict gun laws.

The “clarification” was provided in a Directive issued to the Division of Criminal Justice and all 21 county prosecutors in New Jersey by John J. Hoffman, the Acting Attorney General.

The new Directive results from the recent high-profile case of Shaneen Allen, a single mother of two from South Philadelphia.  After twice being the victim of robberies, Allen legally obtained a permit to carry a handgun in her home state of Pennsylvania.  In October 2013, while visiting Atlantic City, New Jersey, Allen was pulled over by police in a routine traffic stop.  Allen informed officers that she was licensed to carry a firearm, and that her handgun was secured in the trunk of her car.  Officers seized the gun and arrested Allen for violating New Jersey gun laws.

New Jersey generally does not permit residents to carry firearms outside their homes, and does not recognize carry permits issued by other states.  Out-of-state visitors therefore violate the law if they bring the firearms that they are licensed to carry in their home states into the state of New Jersey.  Under the Graves Act, even inadvertent violators such as Allen face a mandatory minimum sentence of three and a half years in state prison.

The Directive provides prosecutors with added discretion when considering PTI for otherwise law-abiding persons who inadvertently violate New Jersey’s gun laws.  In fact, it states that “in the absence of case-specific aggravating circumstances, these defendants should not be sentenced to incarceration.”  Instead, prosecutors should offer such defendants either PTI or a plea deal in which the defendant pleads guilty and is sentenced to probation without jail.

PTI allows eligible defendants to have their criminal charges dismissed after a period of supervision, without having to plead guilty and without receiving a conviction.  To be eligible, defendants must be charged with an indictable (felony) offense and must not have a prior criminal conviction or diversion.  PTI generally requires one to three years of supervision, during which time the enrollee must report regularly to a Probation officer and follow other conditions imposed by the Court.

Under New Jersey law, prosecutors determine whether a defendant is eligible for PTI considering a list of factors set forth by statute.  The Directive sets forth additional specific factors relevant to cases such as Allen’s in which the defendant obtained her firearm legally, its possession would have been legal in her home state, and she believed that such possession was legal in New Jersey. Those special factors are:

  • Whether the manner and circumstances of the possession minimized the exposure of the firearm to others, thereby reducing the risk of harm;
  • Whether the defendant is otherwise a law-abiding person;
  • Whether the defendant advised police of the firearm on her own initiative;
  • Whether the defendant presented the unloaded firearm to a hotel clerk for safekeeping overnight;
  • Whether the defendant had been advised beforehand of the limitations of her right to carry a firearm into New Jersey.

In New Jersey, ignorance of the law is still not a defense.  However, prosecutors now have much greater justification for using common sense to ensure that law-abiding visitors who inadvertently violate New Jersey’s no-carry laws do not end up serving time in prison for their mistakes.  Persons charged with such offenses — or any criminal violation — are strongly advised to retain a reputable attorney to represent their interests.



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