Skip to main content
Vito R. De La Cruz

Vito De La Cruz’s Answers

28 total

  • Obtaining the right to own a firearm in Washington State with a criminal history in California.

    I have a misdemeanor burglary in California, which was reduced after finishing a sentence. I applied for a concealed carry permit in Washington and was denied, due to the finding on the background check. Washington views the burglary as a felony e...

    Vito’s Answer

    I agree with my colleagues answers but write separately to recommend David Mason for this issue. He is very knowledgeable in this area of the law and is located in Bellevue. Look him up.

    See question 
  • Gun rights after a deferred sentence for an DV Assault 4

    Several years ago I had a deferred sentence for an DV Assault 4. I completed the conditions of the deferment. I was never asked to surrender my firearms. Never notified verbally or in writing that I had lost my gun rights. Can I apply for a concea...

    Vito’s Answer

    Mr. Stimmel has it right. I'm writing only to emphasize that federal law is different than state law and you risk being prosecuted under federal law if you acquire a weapon before having your rights restored by the state. Good luck.

    See question 
  • The federal prosecutor is telling me I will not get safety valve until I rat everyone I know out. Is that true?

    The federal prosecutor is telling me I will not get safety valve until I rat everyone I know out. Is that true?

    Vito’s Answer

    Mr. Lowther's answer is spot on but I want to add one additional bit of advice also given by other writers. Do not communicate with the prosecutor without your attorney and fully discuss with your lawyer the facts in your case so that jointly you come up with a strategic plan to address the prosecutor's demand and position.
    Good luck.

    See question 
  • Credibility Of A Felon

    In a court of law how creditable is the word of a felon(thats currently on parole) saying you sold prescription drugs to him but police has no proof that you sold it to him. Only evidence is the prescription bottle with your name on it and the fel...

    Vito’s Answer

    Under the federal rules of evidence most felonies can be used to attack the credibility of a witness and in some cases even misdemeanors that involve dishonesty can be utilized for the same purpose. If the conviction occurred more than 10 years from the date the conviction is sought to be used it is often excluded with some exceptions. Ultimately, as many of the attorneys responding to this question have said, if the conviction is used at a jury or bench trial, the weight to be given to it is left to the fact-finder--the jury or the trial judge.

    See question 
  • If your miranda rights were never read or mentioned at all during informal questioning, can they be used against you?

    If you were questioned without your miranda rights being read, any statements you make are inadmissable right? As far as I know, they only have one witness, and my informal statement of guilt. If any charges are brought against me, will they end u...

    Vito’s Answer

    Miranda rights are "read" to an individual who is in custody or under the indicia of custody and who is subject to questioning. The Miranda rights are meant to advise the person in custody that he or she has certain rights including the right to remain silent and to have an attorney present during any questioning. If the person is not in actual or de facto custody and subject to interrogation/questioning, the Miranda warning are often not read. Before you get farther down this road, I would consult with a seasoned criminal defense lawyer in your area.

    See question 
  • On what legal grounds can a police department refuse to let the defence or D.A review witness statements that may support the

    defence?

    Vito’s Answer

    If a person is charged with a crime, generally that person's lawyer generally receives all the discovery in the case. There are some limited exceptions which vary from jurisdiction to jurisdiction. The best thing to do is to make sure you communicate with a competent criminal defense attorney and insist that he or she makes every appropriate motion/request for discovery. Refusing to turn over discovery relevant tothe charge, a defense, or a sentencing issue may be sanctionable by the court on a motion by the defense.

    See question 
  • Can an ongoing Indian Child Welfare CHIPS petition be removed from Tribal court to Federal Court?

    Case in with a Wisconsin Chippewa Tribal court. I do not believe the Court has jurisdiction over the child. The child is 12 with the court failing to recognize his wishes as to who he can reside with. There was also an agreement between the mot...

    Vito’s Answer

    If the child is enrolled or eligible for enrollment in the tribe, the tribal court will have jurisdiction. I agree with my colleague with regard to the absence of an apparent basis to remove to federal court.

    See question 
  • HOW DO YOU KNOW IF YOU ARE BEING CHARGED FEDERALLY ? AND DO I GO AHEAD AND PLEA OUT IN STATE COURT

    CLASS B TRAFFICING 2ND DEGREE AND POSSESION

    Vito’s Answer

    I agree with my colleague Mr. Mascagni that you need to conslut with a qualified attorney in your area. If you are tempted to plead guilty in state court believing that the feds will be barred from prosecuting you, please don't. The Double Jeodpardy clause will not protect you since it only bars successive prosecutions by the same sovereign. Without getting into a whole lot of analysis here, it is best to consult with someone who is well-versed in the local practice/policies of the AUSA and the state prosecutors to assist you.

    See question 
  • How pure does a drug need to be to be charged with trafficking?

    just curious as to how pure the drug needs to be when being charged with a trafficking charge. for instance it takes 28 grams of cocaine to be trafficking. what if it has been "cut" numerous amounts of times then theoretically it wouldnt be a whol...

    Vito’s Answer

    In federal court, purity doesn't matter. Most of the statutes (21 USC 841/846, etc.) as well as the guidelines state that a mixture or substance containing a detectable amount of whatever drug you are dealinng with is enough to trigger a certain level of severity in sentencing. However, I've seen purity levels used to differentiate between role enhancements in determining the presumptive guidelines once there has been a conviction for possession with intent to distribute or for the federral drug conspiracy.

    See question 
  • How can I prompt DA be to file a promised 5k1 filing for downward departure for reduction of a 5-year sentence? Been 2 years.

    My husband plea bargained for a financial crime he did not commit, to save other innocent people from similar charges. He was given 5 years. At sentencing hearing, judge asked DA if he would be filing for a reduction due to my husband's cooperat...

    Vito’s Answer

    I would start by contacting the attorney who represented your husband at the sentencing hearing. If there was a plea bargain between your husband and the prosecutor that required the prosecutor to file the 5K motion, the plea agreement will likely spell out when the 5 K motion was to be filed. Typically, 5K motions must be brought before sentencing so that the judge can consider its merits before making the applicable determinations and findings of fact under the guidelines that affect sentencing. If the prosecutor agreed to file a motion for reduction of the sentence after the imposition of the sentence, the plea agreement is likely to set out the timing of that motion. Under any scenario, if the prosecutor has violated the plea agreement, there may be basis for some post-sentencing motion. The person who would be in the best position to know is your husband, if he still has the agreement. This is unlikey because fedeal prisoners typically do not want to have 5K agreements with them while incarcerated. If he remembers the terms of his agreement, he may be able to steer you in the right direction. The next best person is your husband's lawyer. If you get no action there, then you really should consider hiring someone experienced in federal criminal law to assist. I wish you well.

    See question