Unlawful Entry, Bench Warrants and the Dilemma of a Foreign Defendant
by Jamison Koehler on May 13, 2010
My client is in town on a business trip. He goes out to dinner with some colleagues and, even though he is not accustomed to alcohol, he has a few drinks. The next thing he remembers is waking up in a jail cell. After being charged with unlawful entry and released from custody, my client returns home to the Middle East. When he first contacts me, he still has no idea what happened.
I get a copy of the police report, which alleges that my client went into the public area of an establishment and was “disruptive.” The manager asked him to leave. When he refused, the police came and arrested him.
If true, the allegations make out the criminal offense of unlawful entry in D.C.. Burglary is the entering of a building or dwelling with the intent to commit a crime. Unlawful entry encompasses just about every other form of trespass, including remaining within a property “without lawful authority” and against the will of the lawful occupant. Unlike burglary, which is a felony, unlawful entry is a misdemeanor punishable by a maximum fine of $1000 and up to 180 days of imprisonment.
Assuming the government decides to proceed with the prosecution, a first-time offender such as my client should be able to qualify for a diversion program or, at worst, a deferred sentencing agreement. In other words, if he can complete a set of agreed upon conditions – in this case, possibly restitution, a fine, some community service and an alcohol awareness programs – he should be able to come out of the whole unfortunate incident without a conviction on his record.
My client’s greatest concern at this point, however, is not a conviction. It is avoiding a bench warrant. A bench warrant is a court order directing that the subject of the warrant be arrested and brought back before the court. It is typically issued for contempt, after issuance of an indictment, for disobeying a subpoena, or for failing to appear for a hearing or trial.
The problem is, my client has another court date in a week. But he is back in his home country in the Middle East and won’t be able to get a visa to return to the U.S. for many months if at all. It takes 6 weeks just to get an appointment at the U.S. Embassy. Processing of the visa takes even longer, and that’s assuming the visa is eventually approved for someone with an open criminal charge.
The judge allowed me to accept service for the client at the first listing yesterday but she was reluctant to do this (“Where is your client? Why isn’t he here?”) and she is completely unsympathetic to his dilemma. She provides me with just an extra week to try to work things out. If I can’t, she will issue a bench warrant for his arrest for failing to appear.
The State Department is a nightmare. I go through one list of menu options after another. When I am finally able to secure a live voice on the line, I am shuttled back and forth between multiple offices until I end up back at the beginning of the menu options.
The U.S. consulate office in my client’s home country is no more help. I get a return email informing me that they will not be able to answer my questions without knowing my client’s full name and passport number.
While my client sits at home fretting, I wait for the government to assign a prosecutor to handle his case. At least there will be someone in a position of authority at that point for me to talk to. And I am cautiously optimistic. I have found the overwhelming majority of prosecutors here in D.C. to be fair and open-minded individuals. I am thinking a prosecutor will look at the facts of this case and see it roughly the same way that I do.
Yes, assuming the allegations contained in the police report are true, the government should be able to make out the elements of unlawful entry. But this is not a felony. No one was hurt, just inconvenienced. My client is in his thirties and has never been arrested before. Having spent the night in prison and forking out mega-bucks to hire me, he has already been punished whether or not he actually committed any crime. It will cost him thousands of dollars more to fly back to the U.S. to fight these charges. My client has a Ph.D from a university in the West, and he has studied in the U.S. His job requires him to come to the U.S. If he is unable to do so, he will lose his job.
My client would like to come back to the U.S. to face the charges. Alternatively, he might decide to apologize to the court, to the police, and to the owners of the establishment he allegedly inconvenienced. But he can’t do any of this if he is not allowed back into the country. .
For the time being, my client and I sit and wait. Our only hope is that the prosecutor will see things the same way we do.