US v Thompson

1-13-15 7th Cir.:

US v Thompson

We have consolidated for decision four appeals, heard on the same day, that present issues relating to supervised release. In a recent opinion, United States v. Siegel, 753 F.3d 705 (7th Cir.2014), the court expressed concern with how the district courts of our circuit are administering supervised release.

To recapitulate briefly the fuller discussion in the Siegel opinion, the Sentencing Reform Act of 1984 replaced parole for federal crimes with supervised release (to take effect in 1987). 18 U.S.C. § 3583.

Parole of federal convicts is granted (though nowadays only in a very limited class of cases, see United States Parole Commission, Wikipedia, http:// en.wikipedia.org/wiki/United_States_Parole _Commission (visited Jan. 11, 2014, as was the other website cited in this opinion)) by an administrative agency after a convicted defendant begins serving his sentence.

An inmate granted parole is thus released from prison before the expiration of his term, but becomes subject to restrictions imposed by the agency on his conduct between his release and when, had he not been paroled, he would have been released upon the expiration of his prison sentence. The restrictions are intended to reduce the likelihood of his committing crimes in the future.

Leonard Swanagan

8-14-2012 Georgia:

In July 2008, sheriff’s deputies in Cobb County, Georgia arrested 54-year-old Leonard Swanagan on charges of failing to register as a convicted sex offender and living within 1,000 feet of a public swimming pool.

Swanagan contended that he was not required to register, but in July 2011, he was convicted in Cobb County Superior Court after the prosecution produced records showing he had been convicted of a misdemeanor sex offense in Ohio in 1994. The records also showed that when he moved to Illinois in 1996, he had registered as a sex offender there. Swanagan was sentenced to 10 years in prison, but all but a year was suspended.

In 2012, Swanagan reached out to the media, and Jeff Chirico, a reporter for CBS television news in Atlanta, began investigating the case. Chirico discovered that under existing sex offender registry laws, Swanagan’s name should have been removed from sex offender registry lists in 2004.

After the news report aired, the prosecution investigated the claim and determined that Swanagan was not required to register as a sex offender in Georgia. Swanagan obtained a new defense attorney who filed a motion to vacate the conviction and to dismiss the case.

On August 6, 2012, Swanagan was released from custody and on August 14, at the request of the defense and the prosecution, his conviction was vacated and the charges were dismissed.

In 2014, Swanagan filed a federal civil rights lawsuit in Atlanta. ..Source.. by Maurice Possley

Corey Eason

10-25-2005 Illinois:

When 23-year-old Corey Eason, a small-time central Illinois drug dealer, was paroled from prison for a cocaine dealing conviction in 2002, he was mistakenly classified as a sex offender even though he had never been accused, arrested or convicted of any sex-related offense. As a result, Eason (who was unaware of this error) was listed on Illinois’ sex offender registry, and had his picture posted on the Internet.

Three years later, in March 2005, when Eason was arrested in Bloomington and charged with assault and possession of a controlled substance, his name was found on the sex offender registry. As a result, he was charged with three counts of failing to report a change of address as required by the Illinois Sex Offender Registration Act, and convicted at a bench trial.

In September 2005, at the request of Eason’s attorney, the McLean County Probation Department contacted the Illinois State Police, who maintain the sex offender website, and they looked into Eason’s case. They could not explain why Eason was prosecuted since it was evident from his criminal record, which was available to both prosecutors and defense counsel, that he had never been convicted of a sex offense.

The McLean County prosecutors were also notified of the mistake, and, at a hearing on October 25, 2005, they acknowledged the error. McLean County Circuit Court Judge Ronald Dozier vacated the convictions, saying, “I’m glad we got this straightened out before it got too much further down the line.” Eason received probation on the assault and drug possession charges for which he had been arrested in March, 2005.

Eason’s plan to pursue a civil suit over his ordeal never materialized. In April 2011, he was charged with possession of cocaine with intent to distribute. ..Source.. by Center on Wrongful Convictions

Longino Acero

March 2006 California:

In July 1978, Longino Acero entered a no contest plea to a charge of lewd conduct with an adult woman, which did not require registration as a sex offender.

But because of a clerical error, Acero’s conviction was recorded as child molestation, a crime that did require registration.

From 1994 until 2004, Acero was arrested three separate times and sentenced to prison terms ranging from four months to more than two years, each time on a charge of failing to register as a sex offender. He was publicly listed as a high-risk sex offender.

Although on each occasion Acero told his attorneys that he had never committed a crime against a minor, the attorneys failed to check the court file, and repeatedly advised him to plead guilty.

In September 2005, Acero received a letter from the San Jose Police Department informing him that his original misdemeanor conviction had been recorded incorrectly and he should never have been required to register as a sex offender.

After retaining a new attorney, Acero petitioned the Santa Clara County Superior Court to overturn his convictions for failure to register.

The court granted his petition in March 2006, his guilty pleas were withdrawn, and the charges were dismissed. Acero filed a claim for compensation from the state of California, but it was denied. ..Source.. by Maurice Possley

Simon Angel Rivera

1-26-2005 Texas:

In 1992, Simon Angel Rivera was convicted as a juvenile of sexually assaulting a child when he was a 14 years old. On September 15, 2002, Rivera, 24, was arrested in Austin, Texas on charges of failing to register as a sex offender. On December 16, 2002, Rivera pleaded guilty in Travis County Criminal District Court and was sentenced to two years in prison.

After he was released on February 20, 2004, he filed a state petition for a writ of habeas corpus seeking to set aside his conviction, contending that his attorney had provided inadequate legal defense.

Rivera argued that his lawyer had advised him to plead guilty based on an incorrect understanding of the facts and law applicable to his case. Rivera claimed that at the time when he was charged with failing to register as a sex offender he was no longer required to do so because his juvenile status at the time of his conviction. The law did not require defendants convicted as juveniles to register after the age of 21.

After a hearing in the trial court, the prosecution agreed that Rivera was correct and recommended the writ be granted, and it was.

On January 26, 2005, the Texas Court of Criminal Appeals upheld the granting of the writ and vacated Rivera’s conviction. The charges were dismissed by the Travis County District Attorney’s Office on March 11, 2005.

In September 2007, the state of Texas awarded Rivera $40,000 in compensation for his wrongful imprisonment. ..Source.. by Maurice Possley

Darrell Wayne Bivens, J

3-27-2013 Texas:

In 1994, when Darrell Wayne Bivens, Jr. was 16, he was charged with committing an indecent act with a child in Collin County, Texas. He was charged as an adult and after a period of deferred adjudication, was sentenced to two years in prison.

On April 19, 2012, Bivens was arrested in Collin County on a charge of failing to register as a sex offender. He pled guilty on January 10, 2013, and was sentenced to three years in prison.

Not long after, the Collin County District Attorney’s office discovered that because Bivens was under the age of 17 at the time of the original sex offense, his crime was not considered a sexually violent offense and, therefore, his duty to register as a sex offender had expired in 2008. Bivens had been charged with failing to register because he was misclassified as an adult.

On February 13, 2013, about a month after Bivens had pled guilty and had been sentenced, the Collin County District Attorney’s Office went back to court to seek to vacate the guilty plea and dismiss the case. A judge vacated the conviction and the case was sent to the Texas Court of Criminal Appeals. Bivens was released on bond.

On March 27, 2013, the Texas Court of Criminal Appeals agreed with the lower court and vacated the conviction. That same day, the prosecution dismissed the case. ..Source.. by Maurice Possley

Glen Nobles

2-27-2015 Texas:

On March 8, 2013, 52-year-old Glen Nobles was accused of failing to register as a sex offender based on a 1989 conviction for attempted sexual assault. On the advice of his defense attorney, Nobles pled guilty and was sentenced to 10 years in prison.

In 1989, Nobles had been convicted of attempted sexual assault and sentenced to probation. In 1995, he was found to have violated that probation and was sent to prison for four years. He was released but soon sent back to prison on another probation violation. Ultimately, he was released on November 24, 2001.

While in prison after pleading guilty in 2013, Nobles began investigating the sex offender registry laws in Texas and learned that the obligation to register lasts for 10 years and that in view of his history of probation violations and imprisonments, his obligation to register expired in November 2011—15 months before he was accused of failing to register as a sex offender.

In April 2014, Nobles filed a state-court petition for a writ of habeas corpus seeking to vacate his guilty plea. The Sabine County District Attorney’s Office investigated and agreed that in March 2013, when was he was charged with failing to register, Nobles was no longer required to do so.

The prosecution joined with Nobles’ defense attorney in requesting that the conviction be vacated. After the trial court recommended the conviction be set aside, the Texas Court of Criminal Appeals, on January 14, 2015, vacated Nobles’ conviction saying that “the period during which (Nobles) was required to register as a sex-offender expired on November 24, 2011. (Nobles) was no longer required to register as a sex offender after this date.”

On February 27, 2015, a Sabine County Criminal District Judge signed an order presented by the prosecution dismissing the charge. ..Source.. by Maurice Possley

USA v Medina

3-4-2015 Puerto Rico:

USA v Medina

Moisés Medina failed to register as a sex offender when he moved to Puerto Rico in May of 2012, even though he had been convicted of a state sex offense four years earlier. As a result, Medina was arrested for violating the Sex Offender Notification and Registration Act, also known as SORNA, 18 U.S.C. § 2250. He then pled guilty and was sentenced to a thirty month prison term, to be followed by a twenty-year term of supervised release.

The supervised release portion of the sentence included various conditions that Medina must follow or face returning to prison. Medina now challenges two of those conditions as well the
length of the supervised release term. One of the two conditions restricts Medina from accessing or possessing a wide range of sexually stimulating material. The other requires Medina to submit to penile plethysmograph testing -- a particularly intrusive procedure -- if the sex offender treatment program in which he must participate as a condition of his supervised release chooses to use such testing.

We hold that the District Court erred in setting the length of the supervised release term. We further hold that the District Court inadequately justified the imposition of the supervised release conditions that Medina challenges. We therefore vacate Medina's supervised release sentence term and the conditions challenged on this appeal, and remand for re-sentencing.

United States v Rojas

Make absolutely certain EVERTHING is written into a plea agreement before giving up right to appeal!

3-11-2015 Puerto Rico:

United States v Rojas

Pursuant to a plea agreement, Defendant pleaded guilty to failing to register as a sex offender, as required by the Sex Offender Registration and Notification Act. The district court sentenced Defendant to one year in prison.

The court also sentenced Defendant to ten years of supervised release and imposed several conditions of supervised release. Defendant appealed, challenging three of those conditions.

The First Circuit dismissed the appeal without reaching the substance of the appeal because Defendant agreed knowingly and voluntarily to accept the the “waiver of appeal” provision in his plea agreement, and this appeal fell within the scope of that waiver.

People v Rebulloza

3-2-15 California:

People v Rebulloza

Defendant Juan Jose Rebulloza pleaded no contest to one count of indecent exposure for exposing himself on a street corner in San José. The trial court granted a three-year term of probation to include one year in county jail as a condition of probation.

Among other conditions, the court ordered defendant to complete a sex offender management program as mandated by Penal Code section 1203.067. Under subdivisions (b)(3) and (b)(4) of that statute, the court ordered defendant to “waive any privilege against self-incrimination and participate in polygraph examinations which shall be part of the sex offender management program” and “waive any psychotherapist/patient privilege to enable communication between the sex offender management professional and the probation officer.”

Defendant challenges the constitutionality of these two waivers.1

First, we hold that the condition requiring a waiver of the privilege against self-incrimination is prohibited by the Fifth Amendment under Minnesota v. Murphy (1984) 465 U.S. 420 (Murphy).

Second, we construe the waiver of the psychotherapist-patient privilege as requiring waiver only insofar as necessary to enable communication between the probation officer and the psychotherapist.

We hold that the waiver of the psychotherapist-patient privilege as construed in this fashion is not overbroad in violation of defendant’s constitutional right to privacy.

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