Articles Posted in Collateral Consequences

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.

Interesting . . . The court agreed that there is largely unfettered discretion between the parties to negotiate an agreement so long as it does not violate the law, in not unconstitutional, and is truly voluntary.  And the court found that the agreement reached in the particular case was not unlawful and was approved. The issue was – for the prosecutor – that they gave all the power and negotiating decisions to the victim.  So how does that translate to a military sexual assault prosecution? You and your military defense lawyer are free to negotiate a pretrial agreement for just about anything.  The Supreme Court itself has stated that an accused can waive fundamental constitutional requirements of a trial.  United States v. Mezzaatto, 513 U.S. 196 (1995).

There are some matters that cannot be bargained away and the military appellate courts have been alert to unconscionable terms in a pretrial agreement.  For example, by executive order the President has declared that certain matters may not be bargained away.  R.C.M. 705(c)(1)(B).  An acceptable term is restitution.  As a military defense lawyer representing clients prosecuted under the UCMJ, I have negotiated such terms, including in sexual offense cases.

There is no “punishment” of restitution in the current UCMJ or Manual for Courts-Martial.  That doesn’t preclude creative lawyering.

The Indiana Supreme Court agreed that crime victims have and should have substantial input into the pretrial negotiation process, but they don’t and shouldn’t have is a veto.  To allow a veto usurps the prosecutor’s discretion to act on behalf of the state and the people. So if you and your military defense counsel are trying to negotiate a pretrial agreement and the prosecutor tells you that the CA would be willing but the victim says no, and they are bound by that no, mention this case to them. The interesting issue is whether you can make a pretrial motion on the issue – not sure about that.  Or do you take a deal and then bring it up with the military judge when she is doing the on the record inquiry as to the voluntariness of the deal.  For samples of prior appellate cases dealing with pretrial agreements, check here at the Court of Appeals for the Armed Forces (CAAF), or talk with your military defense lawyer.  It is far better to enter negotiations informed, rather than have a potential problem on appeal.

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

A Practitioner’s Guide to Collateral Consequences of Conviction, or

The Office of (Federal) Defenders, for Padilla related information.

And here is an item on the National Conference of Commissioners on Uniform State Laws, model legislation for the Uniform Collateral Consequences of Conviction Act.

As always, one of the questions to ask the client is where they intend going/living upon release from active duty or confinement.  Most states now have some sort of central resource through the AG’s office, typically related to pardons, expungement, or claw-backs.  (And no, the military does not have expungement – a frequent question.)

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.

In Jones the defense counsel submitted an affidavit admitting less than detailed advice on Alabama registration requirements.  There was plenty of advice about SOR all over the record.  But,

However, the appellant did not have an in depth understanding, specific to Alabama law, which begets additional analysis to ensure the providency of the plea.  See generally United States v. Inabinette, 66 M.J. 320 (C.A.A.F. 2008). 

NMCCA at least for the moment will not extend Miller to require specific detailed advice about a particular state SOR law.

The record reveals that the appellant was properly advised per Miller.  When he made more specific inquiries regarding his intended future state of residence, he was advised to consult local counsel.  This point was captured in his pretrial agreement and twice discussed at his court-martial, where the  appellant proceeded with his plea and expressed satisfaction with counsel and their advice.

Keep in mind that if you decide to advise about Alabama, or any other state, it better be right.

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:

A: Okay, so here’s the deal: your retirement under the high-three plan is cal­culated by multiplying 2.5% by the number of years served and then taking that number and multiplying it by the aver age of the highest 36 months of active duty pay received. Rank, doesn’t actually factor into the calculation. So, depending on when you retire, your years as an E-6 may be included in the calculation. Get promoted again and you can make sure it is!

Is this a correct answer.  [I think answer is partly correct.]  The answer is partly correct if in fact the person successfully gets promoted back to E-6.  But otherwise I think the answer is not correct.  That depends on how you apply the facts above to the applicable statute.

10 U. S. Code 1407(f).

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.

Most immigrants serve with distinction. The Center for Naval Analyses, a federally funded research and development center for the Navy and the Marine Corps, found that non-citizens are far more likely to complete their enlistment obligations successfully than their U.S.-born counterparts.

Coombs was one who did not make the grade.

He spent 10 months in the Persian Gulf and lost friends to combat, he said. After the war, he felt depressed and anxious. His family was far away in New York, and he said "whining" to fellow Marines didn’t seem an option.

Instead, he got involved with drugs, and he got caught.

In 1992, he was court-martialed for possession of cocaine and marijuana with the intent to distribute, and was given 18 months of confinement and a dishonorable discharge.

He continued to struggle with drugs.

And he’s awaiting deportation proceedings.  The article sets out a push to get non-U.S. citizens who have served a special status which would limit their deportability.

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.

Because we agree that Joshua controls the outcome of these appeals, we affirm the district court’s orders dismissing the Government’s petitions.

Long term prisoners at the USDB can end up in a federal prison near their family.  There are various ways this can happen, sometimes at the prisoners request.  See Para. 6.15, DODI 1325.7, Adminstration of Military Correctional Facilities and Clemency and Parole Authority.

Prisoners with approved sentences to confinement may be transferred to Federal Bureau of Prisons (FBOP) facilities with the concurrence or by direction of the appropriate Secretary of a Military Department or designee. Authority to transfer prisoners to the FBOP confers no right on prisoners to request transfer.

6.15.3. A prisoner’s desire to be or not to be transferred to a Federal institution need not be considered in making the transfer decision.

However, the above case illustrates a potential issue if the person is a sex offender.  Right now the Fourth Circuit holds that military prisoners in federal prisons are not subject to civil commitment based on United States v. Joshua.  That could change, and that holding is only applicable so far within the Fourth Circuit.

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.

Like last time, Mott’s lawyers argued that he should not be held criminally responsible for attacking a fellow sailor because he was suffering from paranoid delusions at the time of the attack.

Here is a link to United States v. Mott, NMCCA 200900115 (N-M.C. Ct. Crim. App. 24 November 2009).

Kitsap Sun reports that:

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.

Here is a piece by the Island Packet which follows up on the two MCAS Beaufort Marines pending civilian charges.

Air station officials are awaiting the case’s outcome before proceeding with possible military charges against the Marines, who have been under barracks restriction since the incident.

Seems like the R.C.M. 707 clock is running, and perhaps the Article 13, UCMJ consideration?  Remember, Liberty Risk programs do not apply in CONUS, they are an overseas practice only.

Fort Scott Tribune has this reminder about falling asleep on post.

To fall asleep on guard duty in a combat zone could be FATAL for the soldier and or his comrades in arms, especially if the area is known to be SWARMING WITH ENEMY GUERRILLAS!

A little more about the moss growing on Rolling Stone from AP.

The U.S. Army inspector general is investigating whether aides to former Afghanistan commander Gen. Stanley McChrystal were insubordinate when they made a series of derogatory comments about top civilian leaders to a Rolling Stone reporter, McClatchy Newspapers has learned.

I also heard on my drive back from Fort Bragg last night that the reporter has had his 101st ABN embed revoked based on a lack of trust and concern he will not follow pre-established ground rules.

Air Force Times reports that:

The former top enlisted airman at Air Force Materiel Command will defend himself against 19 charges that include adultery and misuse of his government position at a December court-martial.

Here’s another piece (in military.com) on the reinstatement move for MajGen Lavelle:

In an Aug. 4 statement, the Pentagon said that President Obama had posthumously nominated Maj. Gen. John D. Lavelle to the rank of general after the Air Force Board for the Correction of Military Records found the former commander of the 7th Air Force had rightfully executed his orders and had not participated in falsifying records.  "In 2007, newly released and declassified information resulted in evidence that Lavelle was authorized by President Richard Nixon to conduct the bombing missions," the Pentagon release stated.

When Soldiers Become Killers is a piece in Gulf News.

"I came over here because I wanted to kill people."

-Private First Class Steven Green, US Army; interview given to Washington Post reporter Andrew Tilghman; Iraq, February 2006

"I am truly sorry for what I did in Iraq and I am sorry for the pain my actions, and the actions of my co-defendants, have caused you and your family … I helped to destroy a family and end the lives of four of my fellow human beings …"

-Steven Green, ex-US Army; addressing the Al Janabi family in US Court, 2009.

The Hook reports that:

Citizenship and Immigration Canada has advised immigration officers that military deserters seeking permanent residence should be treated as "high profile, contentious and sensitive cases," and kicked upstairs for resolution.

I posted the other day about Fricke, here is some more reporting on his death:

Michael FrickeThe Virginia Pilot reports that:

Former Navy Lt. Cmdr. Michael Fricke, 54, was about a month away from being released for the crime when he died Thursday after being beaten with a baseball bat in a fight.

The high-profile case went on for about 15 years, starting with the investigation of the murder and wending its way through military and civilian courts.

Who is that phantom Justice Thomas (Ledger-Enquirer)?

On July 20, Taitz posted a motion requesting that she be allowed to verify that it is, in fact, Thomas’ signature on the denial of her application. She’s also sent her request for stay to Justice Samuel Alito, though she said a clerk told her it had been returned because of a small technical issue.

There are some things even a bank won’t do:

As he sits in the Bell County Jail, accused in the Nov. 5 Fort Hood shootings that left 13 dead, Maj. Nidal Hasan continues to receive his monthly U.S. Army paycheck; based on his rank and experience, it is probably more than $6,000.

But Hasan, who is charged with 13 counts of murder in the attack, is not a standard defendant. And he’s having a hard time finding a bank to take his money.

According to his civilian attorney John Galligan, Bank of America notified Hasan last month that it was closing his account and no area bank has agreed to open an account for the Army psychiatrist.

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.

But Velasquez, who arrived in Kitsap County in early July, was convicted in a court martial at Yokosuka Naval Base in Japan and it was unclear at first if his conviction required registration, lawyers involved in the case say.

The lieutenant commander pleaded guilty to two counts of wrongful sexual contact with patients and two counts of conduct unbecoming an officer in May, serving seven days in a Yokosuka brig, according to Stars and Stripes newspaper. He was sentenced to two years in prison, a $28,000 fine and forfeiture of all pay and allowances, but those punishments will be waived if he doesn’t commit a crime in the next year, the publication said.

Methinks he is in danger of some part of his confinement being vacated?  This is a case which gained some notoriety because of the sentence and publically upset victims.  Here is a link to my earlier post on this court-martial in May 2010.

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.)

Once the rule changed it no longer matters much about release on MSR or parole because of mandatory supervised release conditions.  These conditions can be as onerous as parole conditions administered by the federal probation and parole personnel.  In particular mandated sex offender or other counseling, no computer access, etc.

As Dwight points out that rule was challenged in United States v. Pena, 61 M.J. 776 (A.F. Ct. Crim. App. 2005), aff’d, 64 M.J. 259 (C.A.A.F. 2007).  The petitioner in Pena was unsuccessful.

The district court judge in Moultrie denied the petition.  So now several courts have independently ruled against a petitioner wanted a ruling against application of MSR, as well as CAAF.  It would seem that the issue doesn’t really become ripe until such time as the prisoner is about to be or is released on MSR?

The results are consistent with Supreme Court jurisprudence as those ordered into supervision by state or federal civilian courts.  No federal circuit court has ruled on this issue yet.  But Dwight points to the one case from the federal jurisdiction in which the USDB sits — Huschak v. Gray, 642 F. Supp. 2d 1268 (D. Kan 2009).  It was assumed that all MSR’s would have to be litigated in Kansas.  But if Moultrie is followed, a MSR’ee can seek relief in the federal district court-house building in which (usually) his probation officer has her office.  A similar type of petition has been denied in Clayton v. United States Army, 20091119, 0000827 (W.D. Ky. November 19, 2009).

Here is a link to the U.S. Sentencing Commission report on Federal Offenders Sentenced to Supervised Release, July 2010.

In United States v. Eyster, decided by the 3rd Cir. on 14 July 2010, the appellant claimed he was improperly sentenced because the court considered a 1988 court-martial conviction for rape.

On appeal, Eyster argues that the District Court erred by increasing his criminal history from Category II to Category V, because his 1988 conviction under the UCMJ was not a qualifying prior "sex offense conviction" as defined by § 4B1.5.. . .

The Government concedes, and we agree, that Eyster’s 1988 conviction under the UCMJ was not a qualifying "sex offense conviction" for purposes of § 4B1.5. Therefore, Eyster’s advisory Guidelines range should have been calculated using criminal history Category II, not Category V. This was error[.]As explained, however, the applicable Guidelines range was the same—360 to 840 months—under either criminal history Category. Because this mistake did not result in the calculation of an incorrect Guidelines range, we conclude that it did not affect Eyster’s substantial rights.

It appears this would be related to United States v. Eyster, NMCM 88 1339, 1988 CMR LEXIS 761 (N-M C.M.R. October 27, 1988).   The court affirmed the conviction in a straight-legal review.  There does not appear to have been a petition to CAAF.