Conviction of an alien unlawfully present in the United States for unlawful firearms possession

In case of Rehaif who entered the United States on a student visa and later lost his immigration status, the Supreme Court held that the Government therefore must prove both that the defendant knew he possessed a firearm and also that he knew he belonged to the relevant category of persons barred from possessing a firearm, and reversed Rehaif’s conviction

What was the charge against Mr. Rehaif?

Rehaif entered the United States on a student visa. When the university to which he was admitted dismissed him for poor performance, it advised him that he would lose his immigration status unless he enrolled elsewhere, which he did not do. He went to a shooting range where he purchased ammunition and practiced using the ranges firearms. The ammunition he bought came from out-of-state and the firearms he used were from Austria.

What law says?

Federal law declares it unlawful for an individual, unlawfully present in the United States, to possess a firearm or ammunition that has been transported or shipped in interstate or foreign commerce. A second statute makes it a federal crime to knowingly engage in such unlawful possession.

District court held him guilty without proving his unlawful present in the United States

At his trial, the U.S. district court advised the jury that the government did not have to prove that Rehaif knew that he was in the U.S. unlawfully. The jury convicted Rehaif, and the court sentenced him to prison for 18 months.

The U.S. Court of Appeals affirmed Rehaif’s conviction

The U.S. Court of Appeals for the Eleventh Circuit (Eleventh Circuit) affirmed Rehaif’s conviction on several grounds. The Eleventh Circuit noted that conviction requires proof of three elements:

  • The defendant falls within one of the categories [of disqualified possessors] (the status element);
  • The defendant possessed a firearm or ammunition (the possession element); and
  • The possession was in or affecting [interstate or foreign] commerce [(the jurisdictional element)]. With regard to the status element, binding Eleventh Circuit case law dispensed with a mens rea requirement (sometimes referred to as scienter, state of mind, or knowledge requirement).

The Supreme Court reversed Rehaif’s conviction

The Supreme Court held that the Government therefore must prove both that the defendant knew he possessed a firearm and also that he knew he belonged to the relevant category of persons barred from possessing a firearm, and reversed Rehaif’s conviction. Speaking for a majority of the Court, Justice Breyer pointed out that mens rea questions are first and foremost a matter of congressional intent. He noted that the longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding each of the statutory elements that criminalize otherwise innocent conduct. Nevertheless, he explained that the presumption does not necessarily apply to all of a crime elements.

If you have been charged in a criminal case

If you are facing criminal charges, you need a legal defense from an attorney like New Jersey Criminal Defense Attorney Joel Silberman. He is dedicated to fighting for individuals that are facing Federal, State and Municipal charges.

At the Law Offices of Joel Silberman, no case is too big or too small. Whether you have been issued a summons for Municipal Court or been charged with a First Degree offense, you will receive the same aggressive and hard-hitting representation.

Call (201)-420-1913 today to schedule an appointment.

Remedy against prosecutorial misconduct or a racially biased jury

Recently, in Flowers v. Mississippi, 139 S. Ct. 2228 (2019), the U.S. Supreme Court again reversed and returned the case to the Mississippi courts where the prosecutions repeated, racially motivated misconduct during the defendants six trials for the same murders precluded a creditable Batson finding that the prosecutors challenge of an African-American prospective juror was based on race-neutral factors.

Background of the case

State authorities prosecuted Flowers six times for an offense in which a furniture store owner and three employees were shot to death. The state supreme court reversed Flowers first and second convictions due to numerous instances of prosecutorial misconduct. The state supreme court overturned Flowers third conviction on the grounds of discriminatory jury selection. The fourth and fifth trials ended in hung juries. A sixth jury convicted Flowers of murder and sentenced him to death. Flowers argued that the prosecutor in his sixth trial used peremptory challenges in a racially discriminatory manner. (Read full details at https://fas.org/sgp/crs/misc/R46105.pdf)

What did the Supreme Court say?

Supreme Court: The U.S. Supreme Court again reversed and returned the case to the Mississippi courts. The Court, speaking through Justice Kavanaugh, declared [f]our critical facts, taken together, require reversal:

  • First, in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck.
  • FSecond, in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors.
  • FThird, at the sixth trial, in an apparent attempt to find pretextual reasons to strike black prospective jurors, the State engaged in dramatically disparate questioning of black and white prospective jurors.
  • FFourth, the State then struck at least one black prospective juror, Carolyn Wright, who was similarly situated to white prospective jurors who were not struck by the State.

What is a peremptory challenge?

Peremptory challenges allow prosecutors to have prospective jurors dismissed without having to explain the reason for the challenge. A prosecutor may not exercise peremptory challenges in a racially discriminatory manner.

Batson v. Kentucky case and peremptory challenge

The Supreme Court in Batson v. Kentucky established a three-part test to assess claims of racially discriminatory use of peremptory challenges. First, the accused must make prima facie showing that the challenge was made for discriminatory reasons. Second, the prosecutor has the burden of proving a race-neutral justification for the challenge. Third, the trial court must determine whether the prosecutor has satisfied his burden.

We will protect your right to justice

For years Joel Silberman served as an Assistant Prosecutor with the Hudson County Prosecutor’s Office. During this time Joel litigated hundreds of felony and juvenile cases and appeared before the Superior Court of New Jersey, Appellate Division on multiple occasions. He knows what prosecutors can do and cannot do. If you are a victim of prosecutorial misconduct or a racially biased jury, he will appeal against the adverse verdict you have got to get you justice you deserve.
Call (201)-420-1913 today to schedule an appointment.

DWI Lawyer in New Jersey

After a DWI conviction, you can still protect your rights. DWI attorneys at the law office of Joel Silberman have been serving clients in New Jersey for more than a decade.

We provide an aggressive and diligent criminal defense for DUI/DWI cases. We will work to protect your rights, and fight on your behalf to avoid a serious criminal conviction.

DWI Lawyer

Classification of Drugs in New Jersey

Illegal possession of drugs is a crime in New Jersey. Drugs are classified into several categories based on their likelihood to lead to negative activities or bad health.

Classification of Drugs

Schedule I: Drugs that are not used in the medical field fall under Schedule I. Drugs like heroin, marijuana, mescaline and peyote come under this category.

Schedule II: Any drug that is an opiate or contains coca is Schedule II. Use of these drugs can lead to mental problems and addiction.

Schedule III: Schedule III drugs can be used for medical purposes, but excess use of these drugs can lead to mental and physical dependency. Drugs like amphetamine and ketamine are in this category.

Schedule IV: Even excessive use of some medical drugs may lead to low level dependency. Such drugs, such as Barbital, fall under Schedule IV.

Schedule V: Schedule V drugs have medical uses and limited danger of physical dependence when compared to other categories. Codeine is a Schedule V drug.

Drug Offense Attorney in New Jersey

If you are involved in a drug offense, then you need to contact a drug offense attorney. Attorney Joel Silberman can handle a wide range of drug-related offenses. He will defend your rights and fight to dismiss or reduce your charges. Call 201-420-1913 for a consultation with Attorney Joel Silberman.

 

Safeguarding the rights of accused of crime during emergencies like Covid19 pandemic

All locations of the Court are generally physically closed to the public during the ongoing Covid19 pandemic, endangering the liberty of the accused of crime. As courthouses will be open for limited purposes such as jury selection and the conduct of some trials, as well as additional purposes as may be indicated in the Court’s emergency Local Rules, the delay in hearing could cause loss of liberty to the many accused

Fair Trial Right under the U.S. Constitution

The courts should ensure that in cases going to trial, there is a full, unhindered, continuously serving jury venire and seated jury in every case, which is central to the sound administration of justice.

The U.S. Constitution Bill of Rights (under the Sixth Amendment) guarantees the right to a speedy trial with an impartial jury for criminal defendants in federal courts.

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, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

The restrictions are necessary

The compelling public health and safety issues have forced courts to take measures that ensures the ends of justice served by taking such action materially outweigh the best interests of the public and the parties in a speedy trial. The measures are necessary to avoid spread of pandemic by reducing physical contact. These measures were also necessary in order to address the reasonably anticipated difficulties in defense counsel communicating or visiting with clients (including those detained in locales and facilities under a declared state of emergency).

Safeguarding against loss of liberty

All criminal defendants are innocent until proven guilty. Therefore, the courts have a duty to ensure that the rights of defendants are met. To ensure these rights are met, courts frame rules specifying mode and time periods for holding certain hearings. However, a delay in defendant’s constitutional rights cannot be fully avoided.

What has been done during Covid19 pandemic to safeguard these rights?

The courts have taken several steps to deliver justice during this period. Some of the measure taken are:

  • Virtual Court Hearings – use video conferencing and when not available telephonic when video conferencing is not available under a various criminal case events.
  • Waiving certain appearance requirements
  • Extending filing or hearing deadlines and delaying the start of trial in certain cases

Contact a criminal defense attorney to ensure your rights are defended

An experienced criminal defence attorney shall protect your rights and can help you staying out of jail or get you out of it. For years Joel Silberman served as an Assistant Prosecutor with the Hudson County Prosecutor’s Office. During this time Joel litigated hundreds of felony and juvenile cases and appeared before the Superior Court of New Jersey, Appellate Division on multiple occasions. He will give you best representation to protect your constitutional rights.

Around the Clock Representation

Call (201)-420-1913 for a free consultation immediately and highly qualified and devoted legal representation. Law enforcement never rests and neither do we. Immediately after retaining Joel Silberman you will receive a 24/7 dedicated line to contact him on.

Failure to Register as a Sex Offender

In response to Megan’s Law, the Sex Offender Internet Registry Law, also known as Sex Offender Registration and Notification Act (SORNA), was enacted which requires certain sex offenders to register. This law was formed with the motive to create awareness of sex offenders by making their information public. Failure to register is a crime.

A person who has been convicted, or found not guilty by reason of insanity for commission of a sex offense shall register as a sex offender.

A person who fails to register as required under this act shall be guilty of a crime of the third degree.

Registration Requirements

An individual who has been convicted of the following sex crime is required to register as a sex offender:

  • Sexual conduct with a minor
  • Sexual assault
  • Sexual assault of spouse
  • Molestation of a child or continuous sexual abuse of a child
  • Infamous crimes against nature
  • Lewd and lascivious acts
  • Indecent exposure and public sexual indecency
  • Taking a child for the purpose of prostitution
  • Sexual exploitation of a minor
  • Incest
  • Kidnapping, aggravated assault, murder, unlawful imprisonment, and burglary (when the offense includes evidence of sexual motivation)
  • Failure to register as a sex offender
  • Violation of Sex Offender Registration statutes

Penalty for Failure to Register as Sex Offender: Third Degree Crime

Failure to register as sex offender is a third degree crime. If convicted, then the offender is liable for 3 to 5 years imprisonment.

Sex Crime Offense Defense Lawyer

If have been charged with failure to register as sex offender, then contact our experienced sex crime defense lawyer. The Law Office of Joel Silberman, LLC works to help you. Call us today at 201-420-1913 and see what we can do for you.

We serve in Jersey City and Newark in New Jersey.

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