Articles Posted in Collateral Consequences

Here is a link to the Bond Amendment.  The amendment replaced what was known as the Smith Amendment.  There were good and bad changes.  Good was the change to “served” rather than “sentenced” to more than one year; bad is that all agencies and all types of clearance are covered.

Now, just because the client may not be barred by the Bond Amendment, they can still lose or have revoked their clearance based on the underlying conduct for which court-martialed.

It’s been a while since this issue has come up, and it does come up every now and again in military cases – DoD has approximately 50,000 foreign nationals on active duty.

Some more fallout from the U.S. Supreme Court’s decision in Medellin v. Texas fell today from the California Supreme Court. The case is In re Martinez, S141480.
In its Avena decision, the International Court of Justice said that all that was required was a judicial determination of whether the defendant had suffered any prejudice from failure to notify the consulate upon arrest. Very few have, I believe. CJLF
argued to the U.S. Supreme Court that Medellin had already received a (negative) judicial determination of prejudice, although the state court decision on that point was less than crystal clear. The Supreme Court decided not to rule on that basis, but noted the issue in a footnote.
In the California case, it is clear.  Martinez raised the Vienna Convention claim in his first state habeas petition, and that petition was unambiguously denied on the merits, not procedural default. He has already received the determination the Avena decision says he should receive. President Bush’s memorandum saying the state courts should implement Avena would entitle him to no more, even if it were binding on the states, and Medellin holds it is not. Game over, says Cal. Supreme, in a unanimous decision by Justice Moreno.

/tip Crime&Consequences.

The CAAF daily journal for today is not updated, but knowing where he sits, we take CAAFLog’s observation that the AF TJAG has certified the following issues as accurate.

I. Whether the Air Force Court of Criminal Appeals erred in denying the United States’ request that the court order an affidavit from Appellee’s original military defense counsel.

II. Whether an "impression" left by civilian defense counsel that Appellee may not have to register as a sex offender amounted to an affirmative misrepresentation and led to Appellee receiving ineffective assistance of counsel.

United States v. Hayes, __ U.S. ___ , No. 07–608, decided 24 February 2009.  The Supreme Court has resolved a issue relating to qualifying convictions for firearm possession prohibitions post-conviction.

The federal Gun Control Act of 1968, 18 U. S. C. §921 et seq., has long prohibited possession of a firearm by any person convicted of a felony. In 1996, Congress extended the prohibition to include persons convicted of “a misdemeanor crime of domestic violence.” §922(g)(9). The definition of “misdemeanor crime of domestic violence,” contained in §921(a)(33)(A), is at issue in this case. Does that term cover a misdemeanor battery whenever the battered victim was in fact the offender’s spouse (or other relation specified in §921(a)(33)(A))? Or, to trigger the possession ban, must the predicate misdemeanor identify as an element of the crime a domestic relationship between aggressor and victim?

I am in the middle of final preparations for trial this week on a domestic assault SPCM, so I was particularly drawn to this new opinion.  The client is charged with assaulting "Mrs. X."  But what if he'd been charged with assaulting "X."  Even though the surnames are the same?  What if the spouse in my case retained her unmarried name so client X was accused of assaulting Y?

The Supreme Court will soon hear oral argument in United States v. Denedo.  There has been plenty of discussion on this case.  See CAAFLog.  The underlying issue for trial defense counsel relates to claims of IAC in regard to immigration status advice upon conviction.  The issue at the Supreme Court is an important one regarding CAAF's authority and jurisdiction to issue writs of coram nobis.

 In 2008, there were roughly 37,000 non-U.S. citizens currently serving in the military, according to U.S. Congress statistics.  See Defense Link, 14 April 2008.  In 2008, Secretary of Defense "Gates noted that nearly 43,000 men and women in uniform have become U.S. citizens since Sept. 11, 2001."  See Defense Link, 23 October 2008.  Here is a potential resource for the future.  

The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers Second Edition, By Robert James McWhirter

Internal Exile:  Collateral Consequences of Conviction in Federal Laws and Regulations, A Collaboration of the American Bar Association Commission on Effective Criminal Sanctions and the Public Defender Service for the District of Columbia, January 2009.  The Introduction says:

This study collects and describes the collateral consequences of a criminal conviction that arise under federal statutes and regulations. A joint project of the ABA Commission on Effective Criminal Sanctions (Commission) and the Public Defender Service for the District of Columbia (PDS), it is an outgrowth of both entities’ work on the effect of a criminal record on the availability of a wide range of benefits and opportunities, which in turn determines a person’s likely ability to rebuild his or her life after a criminal conviction. While the study is first and foremost a compilation, and its presentation primarily descriptive rather than analytical, we hope that it will serve as a useful tool for criminal justice practitioners (including defenders, judges, and prosecutors); for persons seeking information about the legal rights and responsibilities of people who have a conviction record; and for advocates, legislators, and policymakers in determining which collateral consequences are reasonable and appropriate responses to public safety concerns, and which are not and what can or should be done to avoid or mitigate them.

The study is almost 250 pages long so I've not had a chance to read it all yet.  However, it does appear to be responsive to many of the questions a military client would have who is facing court-martial, or who has been convicted.

What happens if any enlisted person is reduced at court-martial, or an officer who faces a grade-determination consideration, for conduct as far back as late 2000, and later retires?

10 U. S. Code 1407 sets it out for us.

(f) Exception for Enlisted Members Reduced in Grade and Officers Who Do Not Serve Satisfactorily in Highest Grade Held.—

I'm blogging about the presentation given yesterday at the 39th (VA) Annual Criminal Law Seminar.  The most important point I learned is that military justice practitioners, myself included, are not necessarily competent to advise a client properly on immigration consequences of a conviction.  This of course doesn't matter too much if it's a not guilty plea case all the way.  The potential consequences do become relevant in a guilty plea case.  Why should military lawyers care, other than a professional need and requirement to give good advice.  Two C.A.A.F cases:  United States v. Miller and Denedo, and the recent AFCCA decision in United States v. Rose.


While the appellant in Miller didn't get any relief, the burden has been placed on trial defense counsel and the military judge to ensure an accused is properly informed of sex offender issues when pleading guilty.  See United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006).  Besides raising IAC against his appellate counsel, Miller raised a Grosty issue post-NMCCA decision that his guilty plea was involuntary for IAC, because his trial defense counsel failed to tell him about sex offender registration.

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