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 []

Learn from the Small Cases

In a new article from The Crime Report, taken from a NY Times article, small cases involving first-time offenders give big lessons to learn. The article is long, but has some great tidbits that all American’s can learn from. It get started this way:

Anthony, a 28 year-old African-American school bus driver with no criminal record, is in the passenger seat of a friend’s car when the police pull it over for a burned-out brake light. The cops search the car, and they find a pipe with marijuana residue in the console. In New York, simple possession of marijuana leads only to a civil violation, but the police describe this pipe as being “open to public view”— so they arrest both men and bump the charges up to misdemeanors.

Because of that charge, Anthony is automatically and immediately suspended from the job he has held for seven years, pending the disposition of the case.

And later it goes on to discuss why the prosecutor maintained the criminal charge, versus deflating it to a civil penalty. One year free and clear of crime was the first offer the prosecutor put forward in order to drop the misdemeanor charge. Anthony balked, and that was taken down to 90 days. That’s still three months without a paycheck. Anthony balked again and the case was rescheduled for hearing in another month. Anthony is unemployed until then.

The article continues:

We tend to think that the job of a conscientious justice professional is to protect a presumptively safe system from dishonest, lazy, or incompetent fellow humans. But in Anthony’s case none of the humans violated the rules. No one likes the outcome, but everyone did his or her individual job as they’d been taught to do it.

Does that mean no one is responsible? Safety experts in aviation, medicine, and other fields would say everyone is responsible.

The cops made the stop and wrote the “public view” application; the prosecutors “papered” the case and refused to throw out the misdemeanor; the defense failed to find a way to make the questionable basis for the charge count for something; the judge took the path of least resistance and gave the thing a new date.

All the while Anthony is out of a job, on the unemployment lines, and absorbing resources from the system rather than adding to them. First-time offenders often don’t do what is required to make situations like this better for them because the system just rolls over them in a cacophony of lethargy and apathy. Learn how to avoid mistakes first timers make to avoid looking at the unemployment line or worse.

Visit the First-Time-Offender website and read up on protecting yourself from becoming just another story.

Marijuana Users and Their Gun Rights

Weed, Guns, and the Second Amendment

This issue has roots in a criminal code which says that it is a crime for any person “who is an unlawful user of or addicted to any controlled substance” to possess a firearm. 18 U.S.C. §922(g)(3). Translation? A citizen with no criminal record can still have their gun rights stripped

So aside from felons, and certain domestic violence misdemeanor offenders, any individual who the government can prove is a user of marijuana (and there are 17.4 million of them)1 is guilty of a federal firearms felony.

Since its conception, the Second Amendment to the United States Constitution has been consistently restricted. Only recently, in the Supreme Court case District of Columbia v. Heller, did the Second Amendment come out ahead2.

United States v. Carter

The Fourth Circuit Court of Appeals recently reversed a case like this (weed, gun rights, and a federal felony conviction), as reported by this article by the Federal Criminal Appeals Blog. Here is an excerpt from that article:

Like many Americans, Benjamin Carter liked to smoke marijuana. He also lived in a bad neighborhood, and worried about being the victim of crime.

When the government found out about his guns and his marijuana habit, they charged him violating section 922(g)(3).

He challenged whether section 922(g)(3) can lawfully apply to someone like himself. The district court did not accept his challenge to the statute.

He pled guilty and went to the Fourth Circuit. Today, in United States v. Carter, the Fourth Circuit remanded the case, saying that the government has to do more work to show that it can constitutionally prevent potheads from possessing a gun.

[T]he court of appeals noted that

“the government still bears the burden of showing that § 922(g)(3)’s limited imposition on Second Amendment rights proportionately advances the goal of preventing gun violence. And we conclude that in this case, the record it made is insufficient. Without pointing to any study, empirical data, or legislative findings, it merely argued to the district court that the fit was a matter of common sense.”

This appeal to common sense, the Fourth Circuit determined, was not sufficient.

The court remanded so that the government could develop a record in the district court to justify section 922(g)(3).

One suspects that things won’t be much different on remand, but, at least, the Fourth Circuit is taking the Second Amendment seriously.

  1. According to a 2011 national survey conducted by the Substance Abuse and Mental Health Services Administration (SAMHSA) []
  2. “In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment , as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.” District of Columbia v. Heller, 554 U.S. 570 (2008) []