Frank Q. Nebeker

This per curiam order in McClary v. United States concerns an unopposed motion for clarification filed by the appellee regarding a prior amendment to the panel opinion. The court granted the motion and specified that the August 18, 2011, order amending the original opinion on rehearing is limited solely to the section entitled “Sufficiency of Allowed Bias Cross-Examination.” The clarification ensures that the amendment does not extend to other portions of the panel's decision.

criminal lawprocedure

The case involved an appeal from criminal convictions in which the trial court restricted the defendant's cross-examination of the victim regarding potential self-interest bias stemming from the victim's juvenile record, probation status, and recent arrest before testifying. The court held that this complete denial of inquiry into an independent area of bias violated the defendant's Sixth Amendment confrontation rights, even though cross-examination on other bias topics like an immunity agreement was permitted. However, the constitutional error was deemed harmless beyond a reasonable doubt because two other witnesses gave independent identifications, additional corroborative evidence existed, and the restricted questioning would not have substantially weakened the victim's already challenged testimony. The convictions were therefore affirmed.

criminal lawprocedure

This case involves reciprocal attorney discipline in the District of Columbia based on a prior order from the Supreme Court of Florida suspending Andrea R. Bateman. The D.C. court imposed a ten-day suspension after Bateman responded to a show-cause order but did not establish any exceptions under D.C. Bar Rule XI, § 11(c). The court noted that she could not relitigate the underlying facts from the Florida proceeding and that her conduct would constitute misconduct in D.C. as well, citing precedents on client neglect and communication failures. The suspension period will not begin until Bateman files the required affidavit under D.C. Bar Rule XI, § 14(g).

procedure

In McClary v. United States, the appellant was convicted by a jury of multiple charges including assault with intent to kill while armed and various firearm offenses after he shot a sixteen-year-old victim multiple times during a confrontation on the street. The court considered claims that the trial judge improperly limited cross-examination of the victim regarding his juvenile record and probation status to show bias, gave an erroneous jury instruction on the attitude and conduct of the jury, and failed to merge certain related charges. The appellate court affirmed the convictions but ruled that the three counts of possession of a firearm during a crime of violence merged into one, and that aggravated assault while armed merged with assault with a dangerous weapon, as they constituted the same offense under the Blockburger test. The court reasoned that the proposed cross-examination did not demonstrate sufficient bias comparable to precedents like Davis v. Alaska, the jury instruction was standard and appropriate, and merger was required to prevent multiple punishments for the same conduct.

criminal lawprocedure

This case involved disciplinary proceedings against attorney Brian D. Geno for his representation of a client seeking political asylum in an immigration matter. Geno failed to notify his client of a scheduled hearing, did not appear at the hearing himself (due in part to going to the wrong location), resulting in an in absentia deportation order, and took inadequate steps to remedy the situation afterward, including demanding extra payment before filing to vacate the order. The Board on Professional Responsibility found violations of D.C. Rules of Professional Conduct 1.3(c) and 1.4(a) regarding diligence and communication. The court adopted the Board's recommendation of public censure rather than an informal admonition, citing the attorney's lack of responsibility for his omissions and the serious potential consequences to the client, while noting the conduct was an isolated incident with no prior disciplinary history. The decision was unopposed by either party.

immigration

The case concerned disciplinary proceedings against attorney Robert W. Johnson, II, who had represented the pre-1994 Rwandan government and accepted $55,000 from its ambassador for lobbying and immigration services, including asylum applications. After the Rwandan Patriotic Front took power and was recognized by the United States, Johnson refused the new government's demands to return unspent funds or cease following instructions from the former ambassador, leading to a federal district court judgment against him for conversion and breach of fiduciary duty that was affirmed on appeal. Bar Counsel and Johnson submitted a petition for negotiated discipline based on those facts. The court approved the petition, finding that Johnson knowingly admitted the misconduct, the facts supported it, and the agreed sanction was justified under D.C. Bar rules governing such dispositions. It therefore imposed a 30-day suspension from practice.

criminal lawprocedureimmigration

This case involved a dispute over the enforcement of a Separation, Custody, Support and Property Settlement Agreement between former spouses following their 2001 divorce, with the ex-husband challenging the validity of the agreement and the trial court's orders requiring payment of substantial child support arrearages plus a surety bond for future obligations. The trial court denied the ex-husband's motion to reduce support payments and granted the ex-wife's motion to enforce the agreement, entering a judgment for over $470,000 plus interest and requiring a $500,000 surety bond. On appeal, the court remanded for concessions made by the ex-wife and to recalculate arrearages based on the agreement's execution date of November 9, 2000, but otherwise affirmed the trial court's orders, relying on the presumption that such negotiated child support agreements are valid and enforceable according to their terms when not incorporated into a divorce decree.

family law

In this case, tenant Ms. Peart prevailed in a rent abatement action against her Section 8 landlord for Housing Code violations, securing an award of over $15,000, but the DCHA intervened to claim the full amount as public funds since it had paid the rent. Ms. Peart conceded DCHA's entitlement to the abatement but sought reimbursement from DCHA for her attorneys' fees and costs under the doctrine of unjust enrichment. The court held that unjust enrichment applies because Ms. Peart conferred a benefit on DCHA by creating the fund through litigation, DCHA retains that benefit, and it would be unjust for DCHA to keep the entire award without compensating her for the costs incurred. The case was remanded to the trial court to determine the appropriate amount of compensation due to Ms. Peart, drawing on principles from the common-fund doctrine.

propertyprocedure

The case involved attorney Ronald M. Cohen, who submitted an affidavit consenting to disbarment from the District of Columbia Bar after pleading guilty to a crime in Virginia and having his Virginia law license revoked. The Board on Professional Responsibility recommended disbarment, and Bar Counsel raised no objections. The court ordered Cohen disbarred by consent effective immediately, with the date for reinstatement purposes set as October 10, 2008, and dismissed the pending petitions for discipline as moot.

criminal lawprocedure

The case involved Rona Wright-Taylor, who was denied unemployment compensation by the D.C. Department of Employment Services and whose appeal to the Office of Administrative Hearings was dismissed as untimely under the ten-day filing deadline. The court reversed the dismissal and remanded for a hearing on the merits. It reasoned that the time limit derived from agency rules rather than statute and thus was not strictly jurisdictional, and that OAH had provided ambiguous notice to the petitioner about the filing process, allowing equitable consideration of her timely mailed submission that was lost in transit.

labor & employmentprocedure

This case involves attorney Sameer A. Damre, who submitted an affidavit consenting to disbarment from the District of Columbia Bar under Rule XI, §12 of the Rules Governing the Bar. The Board on Professional Responsibility reviewed the matter and provided a report and recommendation to the court. The District of Columbia Court of Appeals accepted the consent and ordered Damre disbarred effective June 1, 2009, with the effective date for reinstatement purposes running from the filing of his affidavit under D.C. Bar Rule XI, §14(g). The order also directs publication of the decision while protecting the confidentiality of the affidavit unless otherwise authorized, and notifies the respondent of the rights and obligations applicable to disbarred attorneys under Rules XI, §§14 and 16.

procedure

The case concerned Ruth Berkley's appeal from an Office of Administrative Hearings decision affirming the denial of her unemployment compensation benefits by the D.C. Department of Employment Services after she left her job as a driver's assistant with D.C. Transit. Berkley argued that the ALJ misstated the employer's burden of proof regarding whether she had voluntarily quit without good cause, especially since the employer failed to appear or present evidence at the hearing, and that the record did not support a finding against her on that issue. The court reversed the OAH decision and remanded the matter, holding that the ALJ had improperly shifted the burden to the claimant to prove good cause for leaving and had not correctly analyzed the voluntary-quit exception under applicable regulations. The core reasoning was that when an employer does not appear or offer proof, the employer bears the initial burden to establish that the separation was voluntary without good cause connected to the work.

labor & employmentprocedure

The case involved disciplinary proceedings against attorney Ali D. Jafroodi, who in 1999 pleaded guilty in Florida to a third-degree felony for unlawful distribution of a controlled substance and later faced three Florida Supreme Court disciplinary orders, two related to the conviction and one for practicing while suspended. Jafroodi did not report the conviction or orders to the District of Columbia Bar, leading to his temporary suspension by the D.C. court after Bar Counsel brought the matters to its attention. Under D.C. Code § 11-2503(a), the court must disbar members convicted of crimes involving moral turpitude, and prior D.C. decisions have held that distribution of a controlled substance constitutes such a crime per se. The Board on Professional Responsibility recommended disbarment and dismissal of the related reciprocal discipline matter as moot, and with no exceptions filed by either party, the court ordered Jafroodi disbarred from practicing law in the District of Columbia.

criminal lawprocedure

The case involved disciplinary proceedings against attorney Fredric D. Leffler, who had been convicted after a jury trial in federal district court of six counts of mail fraud and eleven counts of wire fraud, resulting in a sentence of thirty-seven months imprisonment and his consent disbarment in Maryland. The D.C. Court of Appeals addressed both a reciprocal discipline matter from the Maryland disbarment and a separate proceeding based on the federal convictions, which it consolidated. The court decided to disbar Leffler from the practice of law in the District of Columbia and dismissed the reciprocal action as moot. It reasoned that mail fraud is a crime of moral turpitude per se under established precedent, which triggers mandatory disbarment under D.C. Code § 11-2503(a) when a certified copy of the conviction is presented.

criminal law

The case involved reciprocal attorney discipline for Mark Steven Weiss, who had been suspended for five years by a Virginia court after an agreed disposition finding multiple violations of ethical rules, including competence, diligence, communication, and candor, arising from his mishandling of a client's malpractice action. The Office of Bar Counsel filed the Virginia suspension order with the D.C. Court of Appeals, which issued an interim suspension and referred the matter to the Board on Professional Responsibility. The Board recommended identical discipline of a five-year suspension with the same conditions for reinstatement, and neither Bar Counsel nor the respondent opposed the recommendation. The court adopted the recommendation and ordered a five-year suspension nunc pro tunc from February 23, 2006, with reinstatement conditioned on proof of compliance with the Virginia order, relying on the presumption in favor of identical reciprocal discipline when no exceptions apply.

procedure

This case is a reciprocal attorney disciplinary proceeding in the District of Columbia arising from the respondent's one-year suspension (with sixty days actual) by the California Supreme Court. The California discipline was based on the attorney's failure to file a criminal appeal after receiving a $5,000 retainer, failure to return unearned fees, and failure to cooperate with the state bar investigation. After interim suspension in D.C. and review by the Board on Professional Responsibility, which recommended identical discipline with no exceptions filed by either party, the court imposed the same sanction. The court ordered a one-year suspension stayed except for sixty days, subject to California's restitution, probation, and other conditions, plus a potential fitness requirement if the suspension extends longer, citing deference to the Board's recommendation in the absence of mitigating factors.

procedure

John A. Fairman, former CEO of the District of Columbia Health and Hospitals Public Benefit Corporation, sought severance pay after his 2000 termination by arbitrating under his employment contract. The arbitrator awarded him over $662,000 based on 1999 amendments that extended his term and increased severance benefits, but the trial court vacated the award, finding it violated public policy because the amendments lacked required Control Board approval under D.C. law. On appeal, the District conceded the public policy basis was invalid, and the D.C. Court of Appeals concluded that the amendments were unenforceable without approval, so Fairman could recover only under the original 1997 contract's six-month severance provision. The court therefore remanded the case to the trial court to determine the amount owed under the original terms.

labor & employmentbusiness & regulatoryprocedure

The case involved reciprocal attorney discipline proceedings against Steven R. Hook in the District of Columbia Bar, stemming from his 90-day suspension by the Maryland Court of Appeals for violations of professional conduct rules including diligence, communication, supervision of non-lawyers, failure to respond to disciplinary authorities, and conduct prejudicial to justice. After receiving notice of the Maryland suspension and a similar federal court order, the D.C. court imposed an interim suspension and referred the matter to the Board on Professional Responsibility, which recommended identical reciprocal discipline. The court adopted the Board's recommendation to suspend Hook for 90 days, citing the presumption favoring reciprocal sanctions, the absence of any basis to deviate, and consistency with prior cases, but held that the suspension would begin only upon Hook's filing of a compliant D.C. Bar R. XI, § 14(g) affidavit because his prior submission was untimely, technically deficient, and failed to address key requirements such as client notifications. Hook was denied nunc pro tunc treatment effective from the Maryland suspension date due to inadequate reporting of the foreign discipline.

procedure

In Diggs v. United States, codefendants Donnell Diggs and Francisco Kipette were convicted after a jury trial of carjacking, unauthorized use of a vehicle, and first-degree theft following an incident where two men allegedly carjacked a Chevy Tahoe at gunpoint. The defendants appealed, arguing that the trial court violated their Sixth Amendment right to a jury drawn from a fair cross-section of the community due to underrepresentation of African Americans on panels selected on Mondays, and that their motions to suppress the victim's show-up identifications should have been granted. The court affirmed the convictions, concluding there was no error because the defendants failed to present sufficient evidence establishing a prima facie violation of the fair-cross-section requirement, and the denial of the suppression motions was supported by the evidence and consistent with the law.

criminal lawprocedurecivil rights

The case concerned disciplinary proceedings against attorney Randy M. Mott for violating D.C. Rules of Professional Conduct 1.15(a) and 1.17(a) and D.C. Bar Rule XI, § 19(f). The Board on Professional Responsibility found that Mott had failed to deposit client funds in a designated escrow or trust account, failed to safeguard the funds, and failed to keep appropriate records, and it recommended a public censure. No exceptions were filed by Mott or Bar Counsel, and the court adopted the recommendation after determining that the sanction was consistent with dispositions in comparable cases and was not otherwise unwarranted.

procedure