Articles Posted in Collateral Consequences

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.)

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.

On Wednesday, ACCA will hear oral argument in United States v. Vargaspuentas, No. ARMY 20091096, on these three interesting issues:

I.  WHETHER APPELLANT’S TRIAL DEFENSE COUNSEL INFORMED HIM HIS GUILTY PLEA MIGHT RESULT IN DEPORTATION.

II.  WHETHER COUNSEL’S ADVICE REGARDING DEPORTATION WAS INEFFECTIVE. SEE PADILLA V. KENTUCKY, 08-651 (2010); STRICKLAND V. WASHINGTON, 466 U.S. 668 (1984); HILL V. LOCKHART, 474 U.S. 52 (1985).

What are the collateral consequences, if any, of being involuntarily separated by the Air Force on a persons ability to run for, and if elected, be seated in Congress – and add a second involuntary discharge from the Army.

Time reports that:

A week ago in the living room of South Carolina’s Democratic nominee for the U.S. Senate, I asked Alvin Greene if there was anything that had not yet been written about by the press that he wanted to get out. “Bring the Air Force discharge up,” Greene replied. “Y’all go and get that.” . . .

Here is an unpublished opinion in United States v. Jones, No. 09-15005 (11th Cir. 17 June 2010).  I’ve commented before about how nuanced sex offender registration issues can get.

Christopher Martin Jones appeals from his sentence imposed following his conviction for possessing a firearm as a convicted felon. On appeal, Jones argues that the district court erroneously found that his 1992 conviction by a special court-martial for sodomy, in violation of United States Military Justice ("UCMJ") Article 125, 10 U.S.C. § 925, constitutes a sex offense that requires registration under the Sex Offender Registration and Notification Act, 42 U.S.C. § 16901 et. seq. ("SORNA"). Accordingly, he argues, the court abused its discretion in ordering that he register as a sex offender under SORNA as a special condition of his supervised release (special condition 5). In addition, Jones also argues that the court abused its discretion in imposing special conditions 2, 3, 4, 6, and 7 of his supervised release, which are targeted toward preventing future sexual misconduct. Relying on 18 U.S.C. § 3583(d), Jones contends that, in light of the fact that his criminal history includes only one conviction for a sex offense, and this offense occurred in 1992, these special conditions are not reasonably related to the sentencing goals set forth in 18 U.S.C. § 3553(a).

For the reasons set forth below, we vacate and remand.

The U.S. Supreme Court decided City of Ontario v. Quon today.  Quon is a case about searching pagers and cellphones.

Our clients convicted of child pornography offenses and certain other offenses in which the internet is case related are restricted in computer access post-release.  I mention Quon because of an interesting comment at Sentencing Law & Policy. 

I recently had to deal with the Federal Probation Service and the Air Force Clemency & Parole Board about a former now paroled client alleged to have improperly used computers to search for employment.  Employment is necessary for parole, and most state funded employment offices, and many employers require applicants to use computers to search for a job or to apply for a job.  We resolved the case in the client’s favor and parole was not revoked.  The parole and FPS rules do allow computer use in limited circumstances related to seeking employment.  The rules are bureaucratic and subject to misunderstanding.  Basically the rules require a new “permission” to use a computer each time.  So going to Home Depot in the AM and Lowes in the PM requires two permissions.  So, here is the SL&P comment on an aspect of Quon.

Army Times reports:

A federal appeals panel says sex offenders convicted in military court but housed by the Bureau of Prisons are not eligible for civil commitment.

A three-judge panel of the 4th U.S. Circuit Court of Appeals issued the ruling Monday in the case of former Army officer Benjamin Barnard Joshua, who pleaded guilty in military court to sexually molesting children. He was transferred to a federal penitentiary because of military prison downsizing.

The AFCCA has issued its opinion in the relook at United States v. Rose.  The court comes to the same conclusion that the defense counsel advice to the client about sex offender registration was wrong and IAC.  The initial decision at AFCCA is here, and CAAF’s 28 October 2009 journal entry and order is here.

The statements of the appellant’s civilian defense counsel clearly attempt to minimize the seriousness of the indecent assault charges and assure the appellant that he would not have to register as a sex offender. In his testimony at the DuBay hearing, Mr. NC, the appellant’s civilian defense counsel, repeatedly used such phrases as “fairly innocuous” and “just foolery” to describe the sexual assault offenses. Mr. NC claimed lack of memory on many points but, in response to questions from the military judge, did recall concluding that sex offender registration was “not really a credible concern.” Consistent with this testimony, the appellant testified that when he directly asked Mr. NC if sex offender registration would be required Mr. NC told him: “I don’t see why it would be with the allegations that were brought against you. I don’t see why that would be a registerable offense.”

Bottom line it appears AFCCA believes the defense counsel considered the statements as “affirmative misrepresentations . . . concerning significant collateral consequences.”  Slip op. at 5.  Rose was tried in 2005.

Military.com reports that:

Both the Montgomery and Post 9/11 GI Bills are worth over $49,000. This money is not a loan and will help you cover the costs of getting a degree. Full-time students receive up to $1,368 a month no matter how much tuition costs. The Post 9/11 GI Bill may even give you a monthly housing stipend of $1,200.