Article

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.

 

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.

 

Traffic Offense Lawyer Jersey City | Consequences of Driving Without Insurance in NJ

In New Jersey, driving without insurance is an offense leading to serious consequences. The penalties are stated by the NJ Compulsory Motor Vehicle Insurance Law – N.J.S.A. 39:6B-1. Under this law, all cars on the road must have liability insurance. New Jersey’s Statute 39:6B-2 requires the owner to maintain insurance on the vehicle for a minimum of $15,000 to cover injury or death, $30,000 to cover any one accident and $5,000 for property damage.

Penalties for Driving Without Insurance in NJ

First Time Offenders- A first time offender will face license suspension for up to one year, with a minimum fine of $300 and a maximum of $1000. The judge might impose community service.

Second Time Offenders– If a second offense occurs, then mandatory penalties include, jail for 14 days, a fine between $500 and $5,000, 30 days of community service, license suspension for at least two years and a $250 DMV surcharge for three years.

Contact Traffic Offense Lawyer in Jersey City

When you are convicted of driving without car insurance, a traffic offense lawyer in Jersey City can help. Attorney Silberman has extensive experience defending clients accused of traffic violations in New Jersey. Call 201-420-1913 for a consultation.

 

Misdemeanor Drug Possession in New Jersey

In New Jersey, misdemeanor drug possession is charged to a person when he is found under the influence of marijuana or hashish, or has failed to surrender the controlled substance to a nearby police officer. Marijuana possession of less than 50 grams and possession of drug paraphernalia is also classified as a misdemeanor.

If caught with illegal drugs while driving, then your driver’s license can be suspended for 6 months to 2 years. You may also be sentenced to jail for up to six months and face a fine of up to $1,000.

Misdemeanor Drug Possession Charges in New Jersey

Misdemeanor drug charges in NJ include:

  • 6 months to 1 year imprisonment (N.J.S.A. 2C:43-8)
  • A fine of up to $1000 (N.J.S.A. 2C:43-3(c))
  • Loss of public housing (N.J.S.A. 2A:18-61.1)
  • If the accused stays in a rented home, then eviction is possible. (N.J.S.A. 2A:18-61.1)
  • If caught while driving with illegal drugs, then loss of driving privileges for no less than six months and up to two years is possible. (2C:35-16),
  • If caught while driving and marijuana is found in the car, then mandatory loss of driving privileges for two years results. (N.J.S.A. 39:4-49.1)
  • A term of community service (N.J.S.A. 2C:43-2b(5))
  • An obligatory $75 Safe Neighborhoods Services assessment (N.J.S.A. 2C:43-3.2)
  • A compulsory $50 lab fee (2C:35-20)
  • A compulsory $50 Victims of Crime Compensation Board penalty (2C:43-3.1a(2)(a))
  • An obligatory $500 Drug Enforcement Demand Reduction penalty (N.J.S.A. 2C:35-15(e))
  • A period of trial of up to five years (N.J.S.A. 2C:43-2b(2)
  • Using or being under the influence of any drugs not for the purpose of treating a sickness or injury (as legally prescribed by a licensed physician) incurs a fine of up to $50. (N.J. Stat. Ann. §2C:35-10.)

Drug Crime Defense Attorney

If you are charged with a misdemeanor drug offense, then talk to a drug crime lawyer at The Law Offices of Joel Silberman. We serve all areas in New Jersey. You will receive a 24/7 dedicated line to contact. Call us today at 201-420-1913 or email joel@joelsilbermanlaw.com.
 

Is Domestic Violence a Felony?

Domestic violence is a broad term and can usually constitute violence between husband and wife, siblings, parents and children or same-sex partners.

Domestic violence can be considered a felony when:

•             A victim sustains serious injuries as a result of violence

•             Violence results in death of the victim

•             Violence committed on a minor or pregnant woman causes injuries

•             An act of violence or threat is done with use of a weapon

•             An act involves sexual assault or rape or forced sexual abuse

•             There is a history of domestic violence convictions

Contact Domestic Violence Lawyer in New Jersey

If you have been accused of domestic violence, then you should speak with a New Jersey domestic violence attorney at The Law Offices of Joel Silberman, LLC.

To contact The Law Offices of Joel Silberman, LLC, call 201-420-1913 or email joel@joelsilbermanlaw.com.

 

Consequences of Failing to Appear in New Jersey Court

A judge issues bail on condition you should return and attend court proceedings. If you fail to appear in court, then you may face severe consequences. It is advisable to hire a criminal defense attorney.

Possible Consequences of Failing to Appear in Court in New Jersey

  • If you fail to appear at court proceedings after bail in NJ, then you can be charged with ‘bail jumping’ or ‘failure to appear’. This might double the charges against you. A warrant may also be issued for your arrest.
  • If you fail to show up for a fourth degree criminal case, then you can be charged with failure to appear, fourth degree.
  • If you fail to show up for a third degree criminal case, then you can be charged with a failure to appear, third degree.

Criminal Defense Attorney in NJ

If you have been charged with a criminal case, then hire a criminal defense attorney to reduce or dismiss your charges. Attorney Joel Silberman, a criminal defense attorney in NJ is dedicated to fighting for individuals facing Federal, State and Municipal charges. Call 201-420-1913 for a consultation with Attorney Joel Silberman. You can also send an email to joel@joelsilbermanlaw.com.

 

Consequences of Drinking and Driving with Children on Board in New Jersey

In New Jersey, a parent drinking and driving with children on board can face serious consequences. Not only this, they can lose the right to operate a motor vehicle for a maximum of six months and must perform community service for up to five days.

Penalties

Penalties include fines, loss of driving privileges, jail and community service sentences. Severity of penalty depends on the driver’s blood alcohol content.

First Time Offenders

First time offenders whose blood alcohol content exceeds 0.08%, but is under 0.10% may face loss of driving privileges for three months, fines ranging between $250 and $400 with additional fees and 30 days in jail. In addition, the offender needs to attend 12 to 48 hours in an Intoxicated Driver Resource Center (IDRC) sponsored program.

Those whose blood alcohol content exceeds 0.10% will lose driving privileges from seven months to one year with fines between $300 and $500. For drivers whose blood alcohol content is 0.15% or higher, they will possibly have an ignition interlock device installed on their vehicle throughout the period of license suspension and for six months to one year.

Repeated Offenders

In New Jersey, there are strict penalties for repeat offenders. For second time offenders, penalties may range from license suspension for two years and fines between $500 and $1,000 with jail time between 48 hours and 90 days. For third time offenders, penalties include license suspensions for ten years and a fine of $1,000 with jail time of 180 days. The convict may also be required to attend 12 to 48 hours in an IDRC sponsored program. An ignition interlock device may also be installed in their car during their license suspension and for a period of one to three years after.

Contact our 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. Call our Jersey City DUI/DWI attorneys at 201-420-1913 the Law Office of Joel Silberman, LLC for a free consultation. You can also send an email to joel@joelsilbermanlaw.com.

 
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