Articles Posted in Collateral Consequences

As many of you know, when CID/NCIS/OSI/CGIS starts an investigation into you they make a record.  The subject line is your name plus other information.  This is what is know as being “Titled.”

That information is submitted to NCIC as the equivalent of an arrest – even though you were not arrested, told you were arrested, or placed in custody.  The Titling, plus the taking of fingerprints and photographs gets you into the database, and you aren’t getting out for 40 years.

Here is a 2000 DoDIG report.

The military SVC programs have been ongoing for a little while.  So some signs of the good and bad are starting to show.  It is too early to tell if the issues are start-up issues or long term fixes, or cavitations or super-cavitations.  One aspect to be expected and not wholly rejected is alleged victims having more of a say in what happens in a case.  But how far can a victim and the SVC go in dictating what happens.

My good friend Dew_Process brought an Indiana professional discipline case to my attention and it is worth noting.  The issue for the prosecutor In re Flatt-Moore, No. 30S00-0911-DI-535 (Ind. January 12, 2012), was an allegation that she surrendered her discretion as a prosecutor during pretrial negotiations, to the victims money demands. The chief prosecutor had an established policy that they would not agree to a pretrial agreement unless both the police and victims agreed.

During a disciplinary hearing the IO found that the policy did not require or give the victim the right to dictate any restitution amount.  The IO found that the prosecutor had engaged in conduct prejudicial to the administration of justice.  That is found in Rule 8.4(d) of the Indiana rules of professionalism. The military Services follow the ABA Model Rules of professionalism, as published in Service regulations.  The ABA rule 8.4(d) is the same as that in Indiana. The Indiana court found the prosecutor had erred and violated the rule, and the issued a public opinion.

Thanks to Prof. Berman TG, here is a resource for collateral consequences of a conviction.

Unfortunately there are only nine state jurisdictions and federal filled in – a ways to go on a useful project.

Another place to look is SentencingProject.org.  (Note, it will be necessary to “sherardize.”) , or

On 20 March 2012, NMCCA decided United States v. Jones; and in doing so they have answered a question that was not unexpected, but took a little while to come.

In United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006), CAAF decided prospectively that defense counsel must advise a client about the DoD sexual offender registration requirements when negotiating a PTA.

The question is how detailed must the advice be and what about additional state law requirements.  There any number of offenses not listed in the current version of DODI 1325.7 where states now require registration.

A reader on Military.com asks this question:

Q: I’m 18 years active duty with the US Navy. I was an E-6 from 2000–2009 but got busted for UCMJ violation to E-5. I fall under the High-3 plan for retirement and a lot of my friends are saying that when I retire, I will get the E-6 retirement pay, but then again, some of my friends are saying I will not — which is true?

The answer given is:

And here is an Air Force Times report:

When Rohan Coombs joined the Marine Corps, he never thought one day he would be locked up in an immigration detention center and facing deportation from the country he had vowed to defend. . . .

The estimates are of about 8000 non-U.S. citizens enlisting to serve in the U.S. armed forces in any given year.

Danger Will Robinson.

United States v. Parker and Woodruff

In these consolidated appeals, the Government challenged the district court’s orders dismissing its 18 U.S.C. § 4248 (2006) petitions for civil commitment of Lonnie Parker and James Woodruff, who were both convicted of various sex offenses and sentenced in military court-martial proceedings, but are currently housed within a Bureau of Prisons facility. The district court dismissed the Government’s petitions because it found that "§ 4248 does not apply to military prisoners [since] they are not `in the custody of the Bureau of Prisons’ pursuant to 18 U.S.C. § 4248(a)." In so holding, the district court relied on its order in a related case, United States v. Joshua, No. 5:09-hc-02035-BR (E.D.N.C. Jan. 13, 2010), which was recently affirmed by this court. See United States v. Joshua, 607 F.3d 379 (4th Cir. 2010) (holding that an individual convicted and sentenced by United States Army court-martial but housed within a facility operated by the Bureau of Prisons is not "in the custody of the Bureau of Prisons" under § 4248(a)). The Government concedes that these appeals present the same issue addressed in, and that the disposition of the appeals is controlled by Joshua.

Lot here today.  Catching up after a contested trial at Fort Bragg.  I’ll update the Lakin page after today’s “events.”

Kate Wiltrout reports the retrial of Richard Mott at NOB, NorVA.

Almost two years after a Navy judge found Seaman Richard Mott guilty of attempted premeditated murder and sentenced him to 12 years in prison, he got a second chance this week to plead his case before a new judge and a military jury.

Here is a piece from Kitsap Sun:

A doctor who is being expelled from the Navy was charged by Kitsap County prosecutors Thursday with failing to register as a sex offender, according to attorneys familiar with the case.

State law requires people convicted of certain sex crimes to register as sex offenders within three days of arriving in a new state.

Thanks (again) to CAAFLog for finding a case relating to collateral consequences — Moutrie v. Secretary of the Army, __ F. Supp. 2d __, No. CV 09-4456-SVC (RC) (C.D. Cal. July 7, 2010).

Up until, oh I don’t remember the date now, but quite a number of years ago, a military prisoner who reached his minimum release date (MRD) was released without any restrictions on liberty post release.  That lead to a bit of gamesmanship before the clemency and parole boards.  If a prisoner was up for parole consideration and he had less than a year to go for his MRD the prisoner would usually waive parole consideration.  They were willing to serve the months rather than be paroled.  That was because a paroled prisoner would waive all of their good time.  But more importantly be subject to many onerous conditions of parole.

(Note to trial practitioners.  Before advising your client about post-trial matters I would recommend you consult and you review with the client DODI 1325.7.  This regulation has a number of important rules you can educate your client about (including, yes, sex offenders).  Although it does not contain Rule No. 1 for obtaining parole: that you “have taken responsibility for your confining offenses.”  Words to that effect must show up somewhere in confinement evaluations and recommendations.  That works pretty well in a GP case.  If you are a defense counsel and have NG but found guilty case give me a call, all is not lost.  [Having sat as a voting member of the Navy C&PB, albeit some years ago, I’d venture that no other rule is as important to parole than Rule No. 1.  You may have good scores on the points based classification system and good reports and no discipline reports, but . . .  you clearly haven’t learned any lessons.]  Anyway.  Upon entry to confinement the facility calculates the full term date (FTD), that’s day for day service of sentence, minus credit for pretrial confinement or an Article 13, UCMJ, violation, or effect of a PTA.  Then they calculate automatic good time credit based on the length of approved sentence, which becomes the minimum release date (MRD).  Absent loss of good-time or clemency or parole that’s when the prisoner can normally expect to be released.)