Marijuana Legalization, Coram Nobis, and Federal Felonies

Legalized Pot

An interesting question arose for PCR Consultants the other day. With the growing trend the United States these days to legalize pot, what would happen if the federal government actually gave up the Weed branch of its War on Drugs.

Plenty of people believe that locking up citizens in the US for simple Marijuana possession, especially non-violent offenders, is a waste of taxpayer money. Federal felonies can lock up these offenders for decades, given a sufficiently long rap-sheets to justify large sentencing enhancements.

The landscape of Marijuana legalization has changed drastically over the last few years. In 2010, California nearly passed a ballot measure that would have decriminalized normal possession of consumable Cannabis. From SF Weekly writer Chris Roberts:

Buoyed by Oaksterdam University founder Richard Lee’s cash and energy, Proposition 19 — which would have legalized possession of up to an ounce of pot for adults 21 and over, and allowed cultivation of small gardens — lost in November 2010. It garnered a historic 4.6 million votes, or 46.2 percent of ballots cast. Following the loss, Lee declared on election night that legalization was inevitable, and that legalization would return in 2012 “stronger than ever” with a new ballot measure.1

What would happen, then, if pot was legalized? Would non-violent federal felonies for Marijuana crimes be erased, and the offenders relieved of their weed-based criminal record?

Maybe, but then again maybe not.

United States v. Skilling

To explore this issue further, we look at Honest Services Fraud and CEO-turned-convict Jeffrey Skilling. What, you may be wondering, does a high-profile-former-Enron-CEO have to do with weed?

Skilling took his federal felony to the US Supreme Court, who decided that some of what Skilling did was not actually a crime. This was a groundbreaking restriction on the application of Honest Services Fraud, and enough to call into question plenty of felonies that stood upon a broader definition of this type of fraud. In effect, many inmates were incarcerated for what may not be a crime any longer.

One of Illinois’ incarcerated former governors2 seized upon the Skilling decision to try and spring him from federal prison. Crime in the Suites reports on this (unsuccessful) attempt:

The Supreme Court’s June decision in United States v. Skilling doesn’t give former Illinois Gov. George Ryan a “get out of jail free” card, a U.S. district judge has ruled.

Last August, Ryan filed a petition under 28 U.S.C. 2255, which allows a federal prisoner to challenge his conviction and try to have it set aside if it was imposed in violation of law. His lawyers pointed out that Skilling made a substantial change in federal fraud law, rejecting the concept of “honest services” fraud in cases other than “paradigmatic cases of bribes and kickbacks.”

Judge Pallmeyer, in a detailed 59-page opinion, turned aside all of Ryan’s arguments. The “conduct for which [Ryan] was convicted – steering contracts, leases, and other governmental benefits in exchange for private gain – was well-recognized before his conviction as conduct that falls into the ‘solid core’ of honest services fraud,” the judge wrote, noting that this conduct was exactly what the Supreme Court said in Skilling was the “proper target” of the “honest services” law.

Coram Nobis

On the other hand, if what you did falls exactly under Skilling, you have a case. Nicholas Panarella was convicted of exactly the type of crime that the Skilling ruling said was no longer criminal. Matt Mangino reported on that case this way:

U.S. District Judge Mary A. McLaughlin ruled that Nicholas Panarella, Jr., convicted in a political corruption scheme, is entitled to a “writ of error coram nobis” to vacate his conviction based on an honest services wire fraud scheme, according to The Legal Intelligencer.

Judge McLaughlin ruled that Panarella’s conviction is no longer valid in light of the U.S. Supreme Court’s 2010 ruling in Skilling v. Untied States, which significantly narrowed the scope of the honest-services-fraud statute.

“Where a person is convicted and punished for conduct that is not a crime, such circumstances constitute the sort of fundamental error that may warrant coram nobis relief,” McLaughlin wrote.

McLaughlin said there was “no dispute that Panarella was charged solely with the undisclosed self-dealing theory that was invalidated by Skilling”, reported the Intelligencer. As a result, Panarella’s conviction “was predicated solely on conduct that is no longer a crime.”

What it all Means

In one case above, the underlying conduct of former Governor Ryan did not become lawful from the Skilling ruling. In the other, the Writ of Error Coram Nobis was used successfully when the underlying conduct of that person was declared “not illegal”.

So many federal felonies are out there for Marijuana that there is no one-size-fits-all answer to the question posed at the beginning of this article. If Marijuana is de-criminalized at the federal level, a great many federal prisoners could be eligible for having their convictions thrown out

  1. Marijuana Legalization Effort Fails in California, Thanks to Money and the Feds []
  2. and there are two: Ryan and Blagojevich []

How to File for Early Termination of Federal Probation

Federal Probation - Approval StampWe’ve made many posts on our blog about the factors that help or hurt when asking the courts to cut terms of federal probation short. This post specifically addresses how its done, and the most common questions we hear about the process.

Filing A Request for Early Termination of Federal Probation

When filing a motion in court, all parties involved in the case must get a copy of the document. In this case, the document is a motion asking the court to cut a term of probation or supervised release short. Criminal cases have only three parties:

  1. The Court;
  2. The Defendant; and,
  3. The Prosecutor’s office.

So, when a defendant is ready to file, two other parties need copies: the Court and the prosecutor. To file with the court, just address the envelope to the Clerk of the Court and try to find the Clerk’s room number online to get it there easier. For the prosecutor, a specific addressee is good, but sending your motion addressed only the Office of the United States Attorney will normally do the trick. (Locate your United States Attorney’s Office)

Side note: While its not required to submit a copy of the motion to the federal probation office, its a good idea to do so as a courtesy.

Mouse-over here for a pro tip!

 

Filing Fee

Here’s some good news for you. An open criminal case requires no fee to file motions. The government opened the case file, so any documents that come after the initial complaint don’t cost anything.

Envelopes and stamps, however, are another story. These are not provided free of charge by the court. Sorry.

Mouse-over for pro tip #2! 

Certificate of Service

When filing documents in a court case for small claims, county, and state courts, all parties involved must get a copy of the filing being put on the docket. Same goes for federal court. However, there is one big difference.

In a federal probation case, a Sheriff or service doesn’t have to be used to deliver the documents to all parties. There are many reasons for this, but they aren’t really important. The point here is that a defendant can mail all the copies out and not have to pay a service to legally do it for them. To make this work, and document called a “Certificate of Service” must accompany all documents that are intended to be filed.

When a motion to terminate a term of federal probation, the certificate of service goes with each envelope. One to the prosecutor, one to the clerk of the court. If you get in touch, we’ll even e-mail you an example of a Certificate of Service you can use.

Mouse-over for pro tip #3

 

The Motion

There are far too many issues to delve into when it comes to writing a motion like this here, and each motion and issue is personal. Fill-in-the-blank motions aren’t very effective because there are eight laws and nine policy factors that go into a single decision a judge makes about modifying a defendant’s sentence.

Don’t be fooled by the seemingly small nature of this request. Ending a term of federal probation before its natural expiration is, legally, a sentence reduction and judges take those seriously. You can read up on some of our posts regarding what judges look at in these types of motions here, here, and here. Look to the upper right to read all our blog posts regarding federal probation and supervised release, but those three are good to get started.

What We Do

Here at PCR Consultants, we know how to do it all. We do the heavy lifting so you don’t have to become an expert in all the things you just read about. If you choose to file a request to federal court yourself, you now have the tools to do it. That is, assuming, that you crafted a legally sound, well argued, correctly formatted motion that won’t get dismissed for a technical fault (like applying before the one-year point)

Our service is simple. We put together all the paperwork like any other document preparation service, except we don’t do Wills or Divorces. We do Federal Probation and Supervised Release. Get in contact to find out how we can help.