If you are convicted of a misdemeanor and are still on probation, you may request early release from probation and file a petition to have the conviction dismissed.  If you are convicted of a misdemeanor and you successfully completed court-ordered probation, you may file a petition to have the conviction dismissed.

If you are convicted of a felony and are on probation, you may request early release from probation and file a petition to have the conviction reduced to a misdemeanor and dismissed.    If you are convicted of a felony and complete probation and/or a county jail time, you may file a petition to have the conviction reduced and dismissed. If you are convicted of a felony and the court did not order probation and the court sentenced you to county jail, you may file a petition to have the felony reduced to a misdemeanor and file the petition to have the conviction dismissed.  If you are convicted of a felony and sentenced to state prison, you may file a petition for Certificate of Rehabilitation and Pardon.  If the court sentenced you to prison or under the authority of the California Department of Corrections and Rehabilitation, you are not eligible for dismissal.  However, you may be eligible for a Certificate of Rehabilitation, which is a lengthy process.

If you are eligible for dismissal of your conviction, the court will dismiss your conviction if you received probation for that conviction and successfully completed probation or obtained early release; paid all fines, restitution, and reimbursements the court ordered as part of your sentence; you are not currently serving another sentence or on probation for another crime; and you are not currently charged with another crime.  Similarly, you are eligible for dismissal of the conviction and the court will dismiss your conviction if you never received probation and were convicted of a misdemeanor; it has been more than one year since you are convicted; you have complied with the sentence; you are not currently serving another sentence; you are not currently charged with another crime; and you have obeyed the law and lived an honest and upright life since the time of the conviction.

You are eligible for a dismissal and the court has the choice to grant you a dismissal if you received probation but did not get an early release, did not fulfill all the conditions of probation, or were convicted of any crime listed in California Vehicle Code §12810 (a)-(e) if you have paid all fines, restitution, and reimbursements which are part of your sentence and you are not currently charged with, on probation for, were serving a sentence on any other offense.  The court has the discretion to decide whether it should dismiss your conviction.

Federal defendants are not so lucky.  There is no statute permitting dismissal or expungement of federal convictions.  Federal defendants are generally restricted to three choices:

• Seeking a Presidential pardon.  Pardons are purely discretionary.  Their success rate varies among presidents, but is generally low, and pardons are highly disfavored sooner than five years after a conviction, and while a defendant is still on any sort of supervised release or probation.
• Attacking the conviction with a motion to vacate under 28 U.S.C. section 2255.  Such motions require the defendant to identify a material flaw in his or her conviction or sentencing, are rarely granted, and are restricted by a strict one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996.
• Attacking the conviction with a writ of coram nobis. A defendant may file a writ of coram nobis years after a conviction, without the one-year statute applicable under the AEDPA to Section 2255 motions.  However, the applicable standard is a challenging one:  the defendant must demonstrate an error in his or her conviction, and that (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of a fundamental character.  United States v. Monreal, 301 F.3d 1127, 1132 (9^th Cir. 2002).

These methods are often not practical.  Many defendants wish to expunge a conviction not because it was legally flawed, but because they have paid their debt to society and seek to remove the legal impediments that criminal convictions impose.  Convictions often prevent individuals from obtaining gainful employment.

The best hope for federal defendants may be a bill like H.R. 5492, the Fresh Start Act of 2010, which was proposed late in the lame-duck session of the last Congress.   This bill would have created a procedure for expungement of certain non-violent federal convictions.  Though it wasn’t put up for a vote, there’s still hope that legislators will re-introduce it in this session of Congress.

Shaun Martin at the California Appellate Report points out a particularly egregious case, People v. Wilkins.  Wilkins snuck onto a construction site, stole some building materials (including a stove), loaded them into his truck, and drove away.  He didn’t tie them down well, and hours later and 60 miles away, in a different county, the stove falls out of his truck and caused an accident leading to the death of the victim.  Under the felony murder rule, Wilkins gets 25 to life.

The California Court of Appeal affirmed, finding that Wilkins’ transportation of the stolen goods was still part of the same continuous transaction, and therefore rejected his argument that his burglary had ended because he had reached a temporary place of safety:

When the felony-murder rule is invoked by the prosecution, the issue of whether the homicide occurred “in the perpetration of” the underlying felony often arises.  “First degree felony murder does not require a strict causal relation between the felony and the killing.  The only nexus required is that both are part of one continuous transaction.  [Citations.]” (People v. Johnson (1992) 5 Cal.App.4th 552, 561.)  The continuous transaction doctrine was adopted “„for the protection of the community and its residents.‟” [TB1] (Cavitt, supra, 33 Cal.4th at p. 207.)

As the Wilkins court notes, the rule reflects the Legislature’s judgment that “[o]nce a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration, but will be deemed guilty of first degree murder for any homicide committed in the course thereof.”

In United States v. Doss, ___ F.3d ___ (9^th Cir. 2011), the Ninth Circuit resolved a split involving section 1512(b)(1) in the term “corruptly persuades” in the witness tampering statute.  Section 1512(b) provides in pertinent part:

(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—

(1) influence, delay, or prevent the testimony of any person in an official proceeding;

(2) cause or induce any person to—

(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding; . . . .

(Italics added.)  The court took sides in a circuit split over the type of conduct that falls within the phrase, “corruptly persuades.”  After considering some relevant dicta in the Supreme Court’s decision in Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), the court sided with the Third Circuit and held that there must be something more inherently wrongful about the persuasion, such as bribery or encouraging someone to testify falsely, to fall within “corruptly persuades.”  (United States v. Farrell, 126 F.3d 484, 488 (3d Cir. 1997); Ct. United States v. Thompson, 76 F.3d 442, 452 (2d Cir. 1996), and United States v. Shotts, 145 F.3d 1289, 1300-01 (11th Cir. 1998) (requiring the lower scienter requirement of only persuasion with an “improper purpose,” such as self-interest in impeding an investigation).)  In reviewing the sufficiency of the evidence of a conviction, the court found that the evidence at trial established only that Doss appealed to his wife to exercise her marital privilege not to testify against him, and without more, was insufficient to establish “corrupt” as opposed to innocent persuasion, and reversed the conviction on that count.

Defense attorneys have another arrow in their quiver to challenge an indictment charging witness intimidation.  However, it is not often that the witness will possess a privilege that will enable them to refrain from testifying.  The key for defendants is to make sure they use all of their persuasive powers to convince their privilege-holding witness not to testify based on those privileges alone, and to avoid such wrongful conduct as intimidation, coercion and bribery.

There are, however, legal limits to conspiracy charges.  It’s good to see the United States Court of Appeals for the Fifth Circuit remind federal prosecutors of those limits.  On January 19, 2011, the Fifth Circuit published its opinion in United States v. Maria Aide Delgado, reversing Delgado’s conviction for possession of marijuana with intent to distribute and for conspiracy to commit that crime, and dismissing the conspiracy count, precluding retrial.

The Fifth Circuit ruled that the government’s evidence of conspiracy was insufficient as a matter of law because (1) Delgado could not conspire with an undercover agent to distribute marijuana because an absence of a meeting of the minds means that one cannot conspire with an undercover agent who is merely pretending to agree to engage in a crime, and (2) the evidence was only sufficient to show that Delgado had a buyer-seller relationship with her supplier, and a buyer-seller relationship does not support a conspiracy charge.  The court reversed the substantive count because of government misconduct in argument.

The case is particularly notable because the Fifth Circuit considered the conspiracy issue sua sponte. This is a lesson to both trial lawyers and appellate attorneys – scrutinize the sufficiency of evidence of conspiracy carefully.  Prosecutors use it as an all-purpose tool, and assume that it is not rule-bound, but it has well defined boundaries.

But to the California Supreme Court, they’re comparable to a pack of cigarettes.

This week, in People v. Diaz, the court upheld a drug conviction that resulted from a police officer’s search of the defendant’s cell phone following his arrest.  The officer paged through the defendant’s text messages, found an incriminating text, confronted the defendant with it, and secured a confession.  The court held that the search of the cell phone was a search incident to arrest – even though it took place more than 90 minutes after arrest and therefore did not require a warrant.  In doing so, the court analogized searching the cell phone’s digital contents to searching a pack of cigarettes or clothes, two categories previously upheld by prior courts.  (United States v. Robinson, 414 U.S. 218, 224 (1973).)

But a cell phone is not like an innocuous and static item like a pack of cigarettes.  Moreover, manipulating a cell phone to search through data on it is not like looking through clothes, or a container, for obvious contraband or incriminating activity.  As Justice Werdergar puts it in dissent:

The United States Supreme Court’s holdings on clothing and small spatial containers were not made with mobile phones, smartphones and handheld computers — none of which existed at the time — in mind. Electronic devices “contain” information in a manner very different from the way the crumpled cigarette package in Robinson contained capsules of heroin. (See Robinson, supra, 414 U.S. at p. 223.)  Electronic devices, indeed, are not even “containers” within the meaning of the high court’s search decisions.

As the dissent points out, the majority’s logic suggests that police could read a diary carried by an arrestee, or even turn on and search a laptop computer.  It’s a disturbing development – and a reason to tell our clients not to use a cell phone to send any information they don’t want read.