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.

 

How Often Does Your Federal Probation Officer Visit?

How often your federal probation officer visits is an important question for all persons under the supervision of the United States Probation Office (USPO). This small piece of information is very helpful when considering a request for early release from federal probation (or federal supervised release).1

Levels of Supervision

Each federal district has a large amount of discretion over local USPO policy. For this reason, the treatment of probationers and supervisees can vary widely. However, because of the policy set forth in Monograph 109 (available here), much of how those under federal supervision are treated remains similar everywhere.

Generally, when an inmate of the federal Bureau of Prisons (BOP) is released from custody, that inmate goes to a halfway house. Once their time in the halfway house is finished, a term of supervised release begins. Initially the level of supervision on the outset is the highest it will be for the supervisee. This includes residential visits from the PO to approve housing, and a visit or two to the supervisee’s job site to verify employment.

Monthly in-person visits from a PO are common in the first months of supervision. After a year or so (maybe even sooner) those visits become more infrequent. This signifies a change in “Supervision Intensity” or some such phrase as used by the local USPO. A supervisee will rarely hear of the internal policy or paperwork involved in the levels of supervision, but the intensity by which the supervision occurs can be easily observed.

Different districts have different names and levels of supervision, but this observation is important! Read on to find out why…

Why You Should Care

There are a lot of reasons to want to get off of federal supervision as fast as possible, and those will be covered in a later post. How often you see your probation officer is discussed above and illuminates information that is important to this cause. Why, you ask?

This descending intensity of supervision is an indicator that the USPO is less interested in a supervisee. Less interest means they believe that there is less of a threat to society posed by the supervisee. That means the USPO is much less likely to stand in the way of a bid to get off of supervision early. If the USPO isn’t standing in the way, the judge is much more likely to grant the request.

This is a great thing! Paying attention to the amount of attention you are getting from your federal probation officer makes you better informed for your request for early termination. Early termination is freedom, and freedom is priceless!

  1. There is little difference between federal supervised release and federal probation. In short, if a federal defendant is sentenced to prison, they will enter a term of supervised release upon completion of that sentence. Conversely, if the defendant was sentenced to no prison time, they will be considered on probation. The supervising officers are the same for both and there is almost no difference, legally, between the two. []

Opportunity After Federal Prison

The United States Attorney for the District of New Jersey had some interesting comments about community release after incarceration. Normally, the American standard of criminal justice involves putting away the bad guys. After that, the narrative seems to stop.

Unfortunately for that narrative, and fortunately for defendants and inmates, nearly everybody that goes to prison gets release. What happens then? Most don’t know.

In early July, 2014 the United States Sentencing Commission released and confirmed their new drug guidelines that will not only make drug sentences shorter, but apply them retroactively (eventually)1.

Below is an excerpt from an opinion article written by the above-mentioned US Attorney regarding opportunities for inmates after they get released, but the entire piece entitled “Ex offenders get time, now they need opportunity” is worth a full read.

Every year, my office prosecutes several hundred defendants who have violated criminal laws passed by Congress. For most of those defendants, a term in federal prison is warranted. Whether they are public officials who betray their oaths, predators who threaten the safety of our neighborhoods and our children, or thieves who cheat the health care system, investors or the government — incarceration is the appropriate punishment.

But prison is usually not meant to last forever. More than 95 percent of federal prisoners will be released after serving their sentences. Altogether, 700,000 federal and state prisoners are released every year, along with millions more who stream through local jails.

Most return to their communities, trying to put their lives back together and avoid the pitfalls that got them in trouble. Bearing the stain of their convictions, they compete for jobs, look for housing and seek educational opportunities.

A staggering number don’t succeed. Nationally, two-thirds of people released from state prisons are arrested again; half of those will end up back inside. Forty percent of federal prisoners return to jail in the first three years.

This level of recidivism is unacceptable. Offenders, their families and their communities are devastated by it. Public safety suffers for it. And with more than $74 billion spent annually on federal, state and local corrections, we can’t afford it.

Prison alone isn’t enough. Any smart law enforcement model prevents crime by supporting ex-offenders. That is why my U.S. Attorney’s Office — along with federal judges, the federal public defender, and the U.S. Probation Office — began the “ReNew” program, a federal re-entry court in Newark. Those leaving federal prison at serious risk of reoffending are invited to participate.

They are closely supervised, meeting biweekly with federal Magistrate Judge Madeline Cox Arleo, our office, and the federal defenders, and more regularly with probation officers. And they are supported in obtaining housing, jobs, education, counseling and legal assistance. My office provides services to the team and participants and supervises research into the program’s efficacy.

This week, the judge will preside over the first graduation ceremony for those who have successfully completed 52 weeks in the program. It is a hugely inspiring milestone for everyone involved, but especially for the graduates reimagining their lives despite great adversity….

Recently, my office launched the New Jersey Re-entry Council, a partnership with acting New Jersey Attorney General John Hoffman, other federal and state agencies, and NGO community members to share resources and ideas.

But there is one more partner we need: you. Finding a job after release is the most important key to success. In a recovering economy, securing a job after prison can be especially difficult. If you have a company that can train or hire our participants, or if you have access to housing, we need to hear from you….

One of every 100 adults in the United States is behind bars. Most will come home. They will have paid their debt and need a chance to support themselves, their families and their communities. We can look at ex-offenders returning to our communities as a risk, or we can help give them that chance. The potential rewards for their lives, for the economy and for our safety are incalculable.

  1. The Sentencing Commission is using a phased and delayed approach to actually releasing inmates early from federal prison []

Support for Early Termination of Supervised Release

When asking a sentencing court to terminate a defendant’s supervision early, scoring points with objective facts is important. Many judges don’t see early termination as routine, and only grant these requests in exceptional cases.

What can change their mind? In part, convince judges that keeping you on supervision is expensive and dangerous. Sound impossible? Read on…

Protect the Public

Early Termination of Supervised Release

The US Courts puts out the Federal Probation Journal 3 times a year. This past fall, the Journal posted findings of a study comparing those on probation versus those on supervised release. It also compared those who were terminated early from supervised release to those who went full term. The results were pretty startling.

The article gets started this way:

UNDER 18 U.S.C. §§ 3564(c) and 3583(e)(1), the court may terminate terms of probation in misdemeanor cases at any time and terms of supervised release or probation in felony cases after the expiration of one year of supervision, if satisfied that such action is warranted by the conduct of an offender and is in the interest of justice. As such, early termination is a practice that holds promise as a positive incentive for persons under supervision and as a measure to contain costs in the judiciary without compromising the mission of public safety.

Those released early from supervision (regardless if that supervision was probation or supervised release) had half the re-arrest rate in the years after their early termination than those with natural expiration.

…almost 15 percent (14.7) of all cases in the study cohort had a new arrest and offenders who served their entire supervision term had a rate nearly twice that of the offenders who received early termination (19.2 percent to 10.2 percent, respectively). Similarly, the rearrest rates for both study groups for major offenses only were tabulated (see Table 6). When minor offenses are excluded, the recidivism rates for both early-term and full-term offenders are considerably lower, but the proportion of rearrests between the two groups is consistent. Only 5.9 percent of early-term offenders were rearrested for a major offense following their release from supervision compared to 12.2 percent of full-term offenders.

This isn’t a magic bullet, but it certainly furthers any argument toward gaining release from federal oversight.

Appeal Waivers and Supervised Release

Federal Plea Agreements

The Devil is in the Details

Over 95% of federal defendants plead guilty, according the the Bureau of Justice Statistics. Because of Bill Otis, Law Professor and contributor to Crime and Consequences, most plea agreements now come with appeal waivers: a waiver of the defendant’s right to appeal.

On the surface, at least to this blogger, the waiver of appeal would bar any appeal of conviction and sentence (except for maybe the habeas writ from 18 U.S.C. §2255). What about the imposed terms or conditions of Supervised Release? Are you barred from appealing or moving to change these?

This is one of those times that it really matters where you are convicted.

The Fifth Circuit – Out of Luck

From US. v. Scallon and Findlaw’s 5th Circuit Blog:

Unlike Cooley v. United States, in which the Fifth Circuit ruled that a waiver of appeal didn’t bar a defendant from appealing if he was “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” there were no altered guidelines for supervised release in Scallon’s case.

Signing a plea agreement and waiver of appeal may get your client out of jail faster — or help him avoid jail altogether — but it also means he waives his right to appeal. Make sure your plea-bargaining clients understand that “waiver of appeal” is more than just terminology; in the Fifth Circuit Court of Appeals, it’s binding on both the sentence and the supervised release terms.

The Third Circuit – Have at It

From U.S. v. Wilson and Findlaw’s 3rd Circuit Blog we get the opposite answer:

When a criminal defendant waives his right to appeal, the courts take him at his word that he is, in fact, waiving appeals.

A lot of the defendants don’t think that “waiving appeal” means what the courts think it means (Inconceivable!) and they appeal anyway. It usually doesn’t work. But a Third Circuit concluded this week that a waiver of appeal did not bar an appeal of an order modifying the terms and conditions of supervised release.

So there it is, a circuit split that helps some but not others. If you’re surprised at the 5th Circuit’s conservative reading of appeal waivers, then you must be new to the game. Anybody willing to take bets on the 9th?

Hilarity in a Federal Probation Revocation Hearing

“After violating the terms of his supervised release, Appellant was sentenced to prison and an additional period of supervised release, including special conditions. The Fifth Circuit found that the district court abused its discretion by imposing the special condition without demonstrating that the condition was reasonably related to statutory factors.”

The above quote comes from a federal probation revocation hearing, published online over at the Federal Criminal Appeals Blog, and is part of a larger (sometimes humorous) story of a man named Sammy Salazar (US v. Salazar, 5th Cir 2014). Mr. Salazar was serving a 10-year suspended sentence for third degree sexual abuse when he failed to register as a sex offender and earned himself a new felony.

Time served, plus fifteen (15) years of supervised release with a bunch of special conditions on his supervision. He appealed those special conditions and got a bunch removed.1

Later, Mr. Salazar assaulted somebody in his family2 and got his supervision revoked: prison for 12 months and 14 years of supervision.  Again along with a bunch of special conditions of supervision.

Defense attorney objected, and led to the funniest written exchange between judge and lawyer I’ve seen in a long time:

Judge : Counsel, I’m aware that this is what went up on appeal because they weren’t written at the time of the sentence. This is not the original sentence. This is a new sentence on revocation. I am adding these conditions. I may do so under the terms of the supervised release and a revocation. So these are additional conditions that I am imposing on the revocation.

Saad: Then Your Honor, we would object and make a new objection that they’re overly burdensome and …

Jude: Overruled, counselor.

Saad: …and…

Judge: Overruled.

Saad: Thank you, Your Honor.

Judge: Overruled.

The defense attorney pissed the judge off to the point where defense’s GRATITUDE was overruled. Well done counselor.

  1. Removal of these special conditions wasn’t because Salazar didn’t need them, or deserve them, it was simply because the judge ordered only a few of these special conditions out loud in court. The rest of the conditions were snuck in outside of oral orders and were thrown out by the Appeals Court. []
  2. without a doubt, Mr. Salazar isn’t a man I want to get to know. Most times, important decisions are made and important precedents are set because of very unlikeable characters such as Salazar []

Shadow Sentencing: The Imposition of Supervised Release

A paper posted to SSRN back a few weeks ago takes a close look at the imposition and issues surrounding federal supervised release. Nearly all visitors to PCR Consultants are supervised by the United States Probation Office (USPO) and want to know more. Want to find relief. We offer services that help former offenders get early release from supervision, but our goal is also to create some community.

After completing post incarceration supervision, there isn’t much a former offender hasn’t experienced with the criminal justice system. The entire paper is worth a read, but below is how it gets started:

More than 95 percent of people sentenced to a term of imprisonment in the federal system are also sentenced to a term of supervised release. Since it was first established in the late 1980s, nearly one million people have been sentenced to federal supervised release. The human and fiscal costs of this widespread imposition are significant. Supervised release substantially restricts an individual’s liberty and people on supervised release receive diminished legal and constitutional protections. The fiscal costs of supervised release are also high, particularly when almost one third of people on supervised release will have their supervision revoked and will return to prison.

Despite the importance of supervised release, little is known about how and why sentencing judges impose supervised release and what purpose it is supposed to serve in the federal criminal justice system. In most cases, supervised release is not mandatory and yet judges consistently fail to exercise their discretion in this area and impose supervised release in virtually all cases. Based on an empirical study of sentencing decisions in the Eastern District of New York, this article uncovers previously unidentified features of supervised release. It finds that judges widely impose supervised release without any apparent consideration of the purpose served by the sentence. This article argues that supervised release is over-used and proposes a new framework for its imposition to ensure that courts only impose supervised release on people who need it.

You can download and read the entire 51 page piece by clicking this link.

Read more about supervision on this site by visiting our page dedicated to federal supervision.

Obama Clemency Plans for Hundreds of Drug Offenders

The title of this post comes from this Yahoo News article today. A new plan for Obama clemency policy is going to be official. Below is how the article gets started:

 

Barbara Scrivner’s long quest for mercy tests a president’s will — and her own faith

DUBLIN, Calif—Scrawled on the inside of Barbara Scrivner’s left arm is a primitive prison tattoo that says “Time Flies.”

If only that were the case.

For Scrivner, time has crawled, it’s dawdled, and on bad days, it’s felt like it’s stood completely still. She was 27 years old when she started serving a 30-year sentence in federal prison for selling a few ounces of methamphetamine. Now, 20 years later, she feels like she’s still living in the early ’90s—she’s never seen or touched a cellphone, she still listens to her favorite band, the Scorpions, and she carefully coats her eyelids in electric blue eye shadow in the morning.

It’s out there, outside of prison, where time flies.

On a sunny afternoon at a federal prison outside San Francisco last month, Scrivner nervously clutched a manila envelope full of photos of herself and her daughter that she keeps in her cell. As she displays the pictures, Scrivner’s daughter Alannah, who was just 2 years old when her mom was put away, changes from a redheaded, freckled young kid to a sullen teen to a struggling young mom. Scrivner changes in the photos, too. At first she’s a plump-cheeked beauty with chestnut-brown hair, then she’s a bleached-blonde woman in her early 30s, before becoming increasingly gaunt as the years grind on.

Today, she most resembles a 40-something high school volleyball coach, in her grey sweatshirt and neatly brushed-out dark bangs. But instead of a whistle around her neck, Barbara wears a large silver crucifix — though she describes her relationship with God as “complicated.”

“I believe in God,” Scrivner says. “I’m really mad with him.”

Her faith has helped her to try to make sense of what feels like an arbitrarily, even cruelly long sentence for her minor role helping her drug dealer husband. But 20 years behind bars has also tested that faith, and even caused her to question whether her life has any meaning or is worth living.

Read the rest of this great article.

A Good Week For Federal Probation Termination

The Feeling of Freedom after federal probation termination

Here at PCR Consultants we periodically like to share our success stories with readers and future clients. Since the launch of our Federal Supervision Release services, we have seen a large increase in the number of visitors seeking federal probation termination (that’s the official term for early release from federal probation) and a lot of their successes are coming in.

In the week of March 11-17th, 2013 two such success stories came to us back-to-back. Their release dates are over three weeks apart, but we heard the news last week. With the permission of the clients, we’ve published one testimonial and both of their release orders below. (Names and case numbers are redacted per client request).

Successes

These are just the first few:

Our first client was one of the first to sign up and use our online document services to prepare his Motion to Terminate Supervised Release. His motion was filed on 12/3/12, termination order was issued on 1/18/13. That is 46 days from filing to early termination of federal supervised release.

For those that keep track, he served just over 23 out of 48 months on supervision. Its great news when we see clients release before even serving half their term! Take a look at his release order.

Our second client success story of the week petitioned outside of her supervisory district because court oversight was never transferred to where she lived and was supervised. She served 41 months out of 48, and was released on 2/13/13 (docketed filing date not specified on record). Take a look at her release order.

She even supplied a testimonial, which she has allowed us to publish as well:

“My name is [withheld] & I am writing to say thanks for your assistance on my Motion for Early Termination of Supervised Release. I talked to & worked a lot with Eric prior to obtaining PCR’s assistance as well as after hiring the company. I am pleased to inform you that the motion for Early Termination of Supervised Release was granted and I am no longer under supervision or in care of the federal government or a probation officer. Originally, I had wanted to file in Colorado Springs rather than the state I was convicted in (NE) & for good reasons but unbelievably NE granted the termination & I have the papers to prove it, lol. Thank You (everyone involved) for all your help! I will be letting others know and referring your business to those who, like myself, are just a waste of time and taxpayers money. Sincerely,
[withheld]”

Thank you for those kind words!