Questions Answered by Robert Donald Gifford II

Q: I’m pending chapter , however my ets date is coming up can I still ets ? I was told I can’t but my leadership I feel lie

1 Answer | Asked in Employment Law and Military Law for Kentucky on
Answered on Jan 15, 2019
Robert Donald Gifford II's answer
You are likely "flagged" and will be prevented from ETS'ing normally until your chapter paperwork is processed.

Q: What is a motion to excel?

1 Answer | Asked in Criminal Law for Oklahoma on
Answered on Oct 24, 2018
Robert Donald Gifford II's answer
It's a "motion to accelerate" - which is to move a deferred sentence to a suspended sentence. The latter is a conviction, while the former is not. A judge can choose not to accelerate, however it is recommended you have counsel with you to protect yourself.

Q: I need to find out how zip-its is drug paraphernalia and what is the amount that makes methamphetamine a felony

1 Answer | Asked in Criminal Law for Oklahoma on
Answered on Aug 22, 2018
Robert Donald Gifford II's answer
If the zip-its were found with other narcotics (or had evidence of residue in them) they are considered paraphernalia as they are often associated with illegal drug sales/possession. Having them by themselves (with no residue) is not paraphernalia in of itself.

Q: I was recently discharged from the army after a failed urinalysis with a honorable discharge. I was told by my previous

1 Answer | Asked in Military Law for Virginia on
Answered on Aug 22, 2018
Robert Donald Gifford II's answer
You may want to consider petitioning that service's board of records review. For example, if you were Army you may want to petition the Army Discharge Review Board and/or the Army Board of Corrections of Military Records.

See: http://arba.army.pentagon.mil/adrb-faq.html

and

http://arba.army.pentagon.mil/abcmr-overview.html

Q: If a charge was dismissed in a federal magistrate court, could a person go to special court martial for the same thing?

1 Answer | Asked in Military Law for California on
Answered on Aug 22, 2018
Robert Donald Gifford II's answer
If it was dismissed "with prejudice" in the federal court, then there is an argument that the courts-martial may be bound by that dismissal. It depends on the reason and grounds it was dimissed. If the dismissal is silent, it's likely "without prejudice" and still subject to UCMJ action.

Q: How can a DUI affect your chances for promotion?

1 Answer | Asked in Military Law for California on
Answered on Aug 22, 2018
Robert Donald Gifford II's answer
Absolutely. It is pretty much a military career killer. The only "exception" is when the service member is a junior enlisted. The military leadership recognizes that a young soldier (or marine, etc.) will make mistakes. If that junior enlisted member is an otherwise good troop, a commander will work to rehabilitate him/her and keep them "in the fight."

Q: Can I leave my current apartment lease with official orders to ship to Naval RTC?

1 Answer | Asked in Military Law for Washington on
Answered on May 7, 2018
Robert Donald Gifford II's answer
You need to put it writing to your landlord and request to terminate the lease, and include a copy of your orders. If you think there is going to be a legal fight, send it certified mail and keep a copy. If you have an email address or fax number, I'd be that thorough. The earliest termination date will be 30 days after the date on which the next regularly scheduled rent is due.

Q: Does violation of a punitive article of the UCMJ *require* a court-martial?

1 Answer | Asked in Criminal Law and Military Law for Colorado on
Answered on Apr 29, 2018
Robert Donald Gifford II's answer
It does not. The military is a "command driven system," in that the commander (with the advice of his legal advisor/Judge Advocate) can use the other tools in his tool box for punishment and correction (non-judicial punishment, counseling, letter of reprimand, administrative separation, etc.).

Q: Is prostitues related to white collar crime ? Is it yes then how ?

1 Answer | Asked in White Collar Crime on
Answered on Apr 13, 2018
Robert Donald Gifford II's answer
If there are charges for "wire fraud," "bank fraud," false statements to investigators, etc. Those are generally "white collar" type of charges that could be involved with human trafficking types of charges.

Q: Is it possible for a defendant to face charges in both federal and state court?

1 Answer | Asked in White Collar Crime for California on
Answered on Apr 13, 2018
Robert Donald Gifford II's answer
Generally it is, but there are some exceptions to it. Bottom line is the because both are separate sovereigns, thus the double jeopardy clause does not apply. Most jurisdictions try to avoid doing this as it complicates trial dates and availability of witnesses.

Q: Can someone go to jail for making false statements during a federal investigation?

1 Answer | Asked in White Collar Crime for New York on
Answered on Apr 13, 2018
Robert Donald Gifford II's answer
It is possible. 18 USC 1001 makes it a federal felony to make a false material statement to federal law enforcement during a federal investigation. Key things are that the statement was "material," and that the investigation is federal.

Q: What happens if my husband got a DUI on the base?

1 Answer | Asked in Military Law for Texas on
Answered on Apr 13, 2018
Robert Donald Gifford II's answer
Generally, assuming the DUIs happen in the "exclusive federal jurisdiction" areas of a base, most bases (and posts) usually let the federal court handle all of the DUIs (regardless if the person is a service member or not). The cases are usually prosecuted by a Judge Advocate who is appointed as a Special Assistant U.S. Attorney and are normally just misdemeanors. Some bases will handle DUIs of service members thru the chain of command (UCMJ or administrative punishment). Some Air bases have...

Q: Can a civilian be tried in military court?

1 Answer | Asked in Military Law for California on
Answered on Apr 13, 2018
Robert Donald Gifford II's answer
The answer is generally no. No jurisdiction over civilians, with a few rare exceptions. The exceptions are generally if it is a civilian accompanying a force onto a battlefield (like a contractor).

Q: What is the summary of okla jurisdiction law

1 Answer | Asked in Criminal Law for Oklahoma on
Answered on Apr 7, 2018
Robert Donald Gifford II's answer
Your question is a bit vague, but if a crime occurs in Oklahoma - or affects the jurisdiction of Oklahoma (i.e. by means of computer, internet, wire, phone, etc.)

Q: So could police officers get into trouble pulling a citizen over in a unmarked car?

1 Answer | Asked in Civil Rights and Criminal Law for Oklahoma on
Answered on Apr 7, 2018
Robert Donald Gifford II's answer
Not really, unless they were using the vehicle without authorization. Law enforcement uses unmarked vehicles on a regular basis.

Q: While I was in a relationship we shared a computer,separate profiles & passwords. Is the info. on my profile protected?

1 Answer | Asked in Criminal Law, Personal Injury, Domestic Violence, Federal Crimes and Communications Law for Oklahoma on
Answered on Apr 7, 2018
Robert Donald Gifford II's answer
It is not, however you should contact the other party to advise they have no consent to access your private accounts. You should also seek to protect those accounts. Should those accounts be accessed, it can constitute an illegal “hacking,” and you should file a police report immediately.

Q: Contraband by inmate Oklahoma Delaware county jail. Found while booking in. What's the procedure as far

1 Answer | Asked in Criminal Law for Oklahoma on
Answered on Apr 7, 2018
Robert Donald Gifford II's answer
Generally, an individual has no right to privacy while being booked into a jail and can be asked administrative questions (identity, health, medicines, next of kin). If the questions become an interrogation regarding the alleged crime, government officials are required to advise of Miranda rights.

Q: I have a question about a close friend currently serving in prison for armed robbery of a business with a firearm.

1 Answer | Asked in Criminal Law for Oklahoma on
Answered on Apr 7, 2018
Robert Donald Gifford II's answer
While there could be a variety of things that could looked at, a commutation of the sentence is a possibility. They are not easy to obtain, so if one is pursued it is recommended to ensure it is done carefully.

Q: In Oklahoma does a drug felony result in deportation even if your a green card holder?

2 Answers | Asked in Criminal Law and Immigration Law for Oklahoma on
Answered on Apr 4, 2018
Robert Donald Gifford II's answer
It is very likely. A drug trafficking offense is one that will get you deported, however, and assuming he pleaded guilty rather than taking it to trial, the United States Supreme Court stated in Padilla v. Kentucky that a plea is not a knowing and voluntary one if he was not advised of the collateral consequences of the plea (that he could be deported).

Q: Drive Time and SCRA

1 Answer | Asked in Contracts, Banking and Military Law for North Carolina on
Answered on Feb 4, 2018
Robert Donald Gifford II's answer
You need to put it in writing. Here is some suggested language:

Dear Sir or Ma’am:

Pursuant to the Servicemembers’ Civil Relief Act (“SCRA”) 50 U.S.C. App. Section 527,

this letter is my formal written request to reduce the rate of interest to six percent (6.0%) for the

above referenced account.

I am currently serving on active duty with the Branch of Armed Forces. I entered active

duty on Date, which was after after the time I incurred...

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