Prisoners are persons whom most of us would rather not think about. Banished from everyday sight, they exist in a shadow world that only dimly enters our awareness. They are members of a "total institution" that controls their daily existence in a way that few of us can imagine. "[P]rison is a complex of physical arrangements and of measures, all wholly governmental, all wholly performed by agents of government, which determine the total existence of certain human beings (except perhaps in the realm of the spirit, and inevitably there as well) from sundown to sundown, sleeping, walking, speaking, silent, working, playing, viewing, eating, voiding, reading, alone, with others. . . ." It is thus easy to think of prisoners as members of a separate netherworld, driven by its own demands, ordered by its own customs, ruled by those whose claim to power rests on raw necessity. -- Justice William Brennan, dissenting in O’Lone v. Estate of Shabazz, 482 U.S. 342, 354-55 (1987).

Monday, August 4, 2008

Early Termination of Supervised Release

As I alluded to in my previous post, June 28 was the one year anniversary of my release from prison which also means I have completed my first year of supervised release (I was sentenced to the maximum 3 years).

By statute, I can appeal to the judge in my case to terminate my supervised release early. According to 18 USC §3583(e)(1):

The court may, after considering the factors set forth in section 3553(a)(1),
(a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) terminate
a term of supervised release and discharge the defendant released at any time
after the expiration of one year of supervised release, pursuant to the
provisions of the Federal Rules of Criminal Procedure relating to the
modification of probation, if it is satisfied that such action is warranted
by the conduct of the defendant released and the interest of justice;

As I continued to study this matter as my one year anniversary approached, I concluded that I could make a solid legal case for early termination. In addition, to this point, the judge had responded positively to every other motion we presented to him so I thought I might have a receptive audience.

However, as I mentioned in the previous post, the US Probation Office in Philadelphia (Eastern District of Pennsylvania) had suggested transferring jurisdiction to Charlotte (Western District of North Carolina) in a May 9th letter (that also included permission from the judge for international travel -- see previous post). Presumably since Charlotte was actively supervising my case, Philadelphia decided she might as well assume complete jurisdiction.

I had discussed with my Probation Officer this issue of requesting a transfer jurisdiction to Charlotte at the beginning of my release last year in the hopes of securing a more favorable environment for possible early termination. However, the policy of the US Probation Office in Charlotte is that a defendant must complete two-thirds of his term before it will recommend early termination and the judges here apparently are sticklers for that rule and rarely grant motions from defendants for early termination prior to that. As it turns out, many districts (including Philadelphia) consider early termination after only one-half of the term is completed. Therefore, we considered it better to keep jurisdiction up there for now.

When jurisdiction is transferred, that means the current judge assigned to the case must agree to give up control of the case and the Senior Judge in the new district must accept the transfer. We had always assumed that Judge Davis would not likely relinquish control of my case even if I had sought a transfer of jurisdiction so it was ironic that the US Probation Office up there brought up the issue of a transfer first.

However, I was not wanting to move so fast because I wanted Judge Davis to consider my motion for early termination on June 28, which was still over 6 weeks away. If jurisdiction were transferred before then, Judge Davis would not be in position to rule on my motion and I would have to present it to a new judge down here who was not familiar with me or my case and might not be as favorably disposed as Judge Davis. At least, that was my thinking.

As the end of June approached (and as I was dealing with travel plans for Europe and obtaining my passport from the Clerk of Court after receiving permission to travel -- see previous post), I began to prepare my motion. I wanted to prepare it myself for two reasons: 1) my lawyer is very expensive and she was preparing for maternity leave (her baby was born June 24) and 2) I wanted the judge to hear the motion directly from me so that he would have to turn me down, not my lawyer.

Filing your own motion is referred to as pro se. It is somewhat risky because when the judge's law clerks receive the motion, they may lump it in the same category as the many frivolous other pro se motions they receive and it may not get the consideration it deserves, regardless of the merits. Nonetheless, I preferred to go forward this way.

You can read my motion here as well as the prosecutor's rather weak opposition motion here.

I had always wondered why the judge sentenced me below the guidelines to only 3 months but gave me the maximum 3 years of supervised release. It was very odd and he did not explain.

Nonetheless, I had (and my lawyers, who read my motion, agreed) a very strong practical and legal case for terminating my supervision early. Without restating the entire motion, which I hope you will read, basically my arguments were:

1. I have complied with all terms of my supervision to date (as could be confirmed by my Probation Officer) and had satisfied all of the relevant concerns identified by the US Probation Office for consideration of early termination (see here).

2. Supervised release has a separate function from incarceration. Whereas incarceration has both a punitive and deterrant function, supervised release is rehabilitative; it is designed to ease the transition back to the community. Supervised release is NOT part of the punishment.

3. The conditions of supervised release, while not onerous, DO prevent me from doing good things such as providing assistance to current and recently released inmates I have befriended. In other words, not only does supervised release no longer accomplish anything positive in my case anymore, it actually prevents me from doing good.

My lawyers considered my motion well-written and persuasive. On the merits I was right. The prosecutor attempted to argue wrongly that supervised release is part of the punishment. I just think he didn't want to bother with a more thoughtful response. Surely he has more important things to do.

My probation officer and my lawyer had learned in early June that the US Probation Office in Philadelphia was opposed to early termination at any time prior to the 3 years. This was very suspicious because they really had no basis on which to judge this, having never actively supervised my case. Their position appeared to be that because I got such a lenient prison sentence, I should have to serve the whole term of supervised release. This is totally silly because one would expect the term of supervised release to be proportional to the term of prison. After all, one would not expect a person such as myself who only spent 3 months in prison, is self-employed and totally financially self-sufficient the day I walked out of prison (my business continued to run successfully while I was incarcerated), would need 3 years to readjust to community life in the same way someone who spent several years in prison. The US Probation Office's position was just a petty attempt to exact punishment on the back end that they were unable to secure on the front end.

Nonetheless, I filed my motion at the end of June and it should have been received by the Probation Office, the US Attorney's Office, and the Judge on June 30. My lawyers figured it would take at least a month, and maybe longer, before the judge ruled. I was scheduled to be in Europe July 9-31 so I was in no hurry.

As it turns out, nothing is ever routine in my case. The day before I was to leave for Europe (July 8), my PO stops by the house to inform me that on June 24 -- 4 days before I could request early termination -- Judge Davis signed a transfer of jurisdiction document. This was very odd. The US Probation Office in Philadelphia knew I was planning on filing for early termination and yet, on the eve of that filing, they recommended to the judge, who did not know I would be filing for early termination, that jurisdiction should be transferred to Charlotte. And he apparently agreed.

Of course, the paranoid interpretation is that the Probation Office in Philadelphia was intentionally attempting to thwart my motion with the Judge, knowing that in the past he had ruled sympathetically in my case. Who knows?

Since jurisdiction is not transferred until a judge in Charlotte accepts the transfer, technically speaking, Judge Davis still had jurisdiction in my case and could rule on my motion, although he must have thought it odd to receive a motion for a case in which he thought he had given up jurisdiction. We weren't sure what was going to happen. He could dismiss the motion as moot. He could attempt to transfer the motion down here. Or, he could simply rule on it.

In any case, the prosecutor in my case, Michael Levy, filed a one page letter in opposition to my motion on July 11. It is not clear that he was even aware of the transfer in process; it is not customary to include the US Attorney's Office in those discussions so he responded as if Judge Davis still had jurisdiction.

On July 29, the last full day of my trip (I was in Barcelona), I received an email from my lawyer indicating that Judge Davis had denied my motion on July 16 in a one-sentence order, without explanation.

I wasn't necessarily surprised that my motion was not granted, although I was a little disappointed that the Judge did not bother to comment on the merits. I think anyone who understands my case and reads my motion would agree that, on the merits, termination of supervised release is not only the legally correct outcome, but the practically and morally right outcome. I expect the US Attorney's Office to disagree; that's their job. (Actually, it's not their job -- their job is to seek justice, not to be adversarial and seek the maximum punishment possible, but that notion seems to have escaped most prosecutors in today's federal system.)

But I am not naive to think that institutional considerations do not play a role in judge's decisions. The US Probation Office is a branch of the court system and therefore works very closely with the judges. Policies exist for a reason. That reason however is expediency and efficiency, not justice. Simply applying a "one-size-fits-all" approach to early termination by requiring that all defendants wait a pre-determined period of time before consideration of early termination makes life easier for the players in the system. Granting an exception to the policy (even if justified by the facts and the law) simply invites other similarly situated defendants to seek exceptions. Too many requested exceptions increases the Court's and the Probation Office's workload.

So where does that leave me?

As of this moment, I do not know if the transfer of jurisdiction has been completed. I have a call into my PO to find out my status. I am assuming that it has unless something else weird happens, which I have learned not to rule out!

In one sense, I suppose it makes it more difficult to seek early termination from a judge in Charlotte, having already been turned down by Judge Davis in Philadelphia. However, my motion was denied without comment on the merits. Perhaps it was simply denied because the judge considered it moot and simply didn't bother to consider the arguments. After all, he did rule rather quickly. He barely would have had time to read the motion, let alone rule on it. Then again, he perhaps considered it frivolous to the point that it didn't require any of his time to deny it.

Who knows?


It's all good. (Another phrase I learned in prison.)

PS After talking with my PO today, it appears that he was given permission to hold up the transfer until Judge Davis had an opportunity to rule on my motion. Now that the motion has been denied, the transfer will be put in motion so I expect soon that I will have a new judge assigned to me in the Western District of NC. Apparently, also, the US Attorney's Office as well as the US Probation Office vigorously opposed my request, which may explain the outcome of my motion, despite its merits (IMHO).

Sunday, August 3, 2008

International Travel and Supervised Release

One of the conditions of supervised release is that all travel outside of your home district must be approved by your probation officer.

In my case, this has always been routine. I simply notify him of my travel plans in advance and he gives me a permission to travel document (see example here). This document isn't really necessary for me to carry but is for my own benefit in case an issue arises while I am traveling and a police officer, if he somehow determines my status as a convicted felon on supervised release, inquires why I am out of my district, I can show him the document. Without the document, I might be detained until he can contact the US Probation Office to confirm my story.

In addition to providing the travel document, the US Probation Office in the district(s) I am traveling to is notified that I will be in their district. Again, this is mostly a formality.

International travel, however, is a different matter. All international travel must be approved directly by the judge.

I notified my PO in January that I had plans for two international trips this year: a 3-week vacation to Greece and Spain with my wife and her sister in July and a 1-week Caribbean wedding cruise for a friend in late October.

One of the complicating factors in my case is that the US Probation Office in Charlotte, NC (Western District of NC) actively supervises my release, however, my case is still under the control of Philadelphia (Eastern District of PA). That means the my probation officer has to go through another district's probation office in order to get approval from the judge. The approval process within this district is usually 7-10 days. However, due to the uncertainty of working with another district, my PO recommended beginning the process early.

I supplied my general travel itinerary in late February and my PO forwarded the request in early March.

Then we waited... and waited... and waited.

Finally May arrives and we still haven't heard anything. Our flights for Greece leave July 9 and I had already gone ahead and purchased tickets for fear that the flights would sell out. I knew this was a risk if the judge ended up turning down my request but in that case we figured my wife would just go with her sister.

It wasn't clear where the hold-up was -- with the US Probation Office in Philadelphia or with the Judge. We simply didn't know where the paperwork was and it is a little bit delicate to push the issue too hard for fear of offending someone and having them delay things further.

Finally, on May 9 we received a letter from the US Probation Officer in Philadelphia who apparently had been assigned my case as a result of this request (since their office did not actively supervise my case, no officer had previously been assigned). This letter included approval from the judge for my trip but interestingly also included a request to transfer jurisdiction to my home district.

For reasons I will explain later, we did not act on their request to transfer jurisdiction but the important thing at the moment was that I had received permission to travel outside the country. The prosecutor apparently had been consulted and he did not object as long as I had been satisfying all my conditions of supervised release.

All's well that ends well... except, the drama was not yet over.

At the end of May, I visited my PO to turn in my monthly report. Normally, I fax my report in but I wanted to complete the final of the 3 required drug tests. In addition, I asked for the return of my passport which I would of course need for my trip overseas. I had turned my passport over to my pre-trial services (PTS) officer in August, 2006 after I was indicted. My PO was not sure where it was now but we ran into the PTS officer in the hall and she indicated that she had forwarded it to Philadelphia.


My PO made a few phone calls to his alter ego in Philadelphia who tracked the passport down in the Clerk of Court's Office. However, he said they could not release it without a court order!


My PO (and, later, my lawyer) explained that we had a document from the judge granting permission to travel. Isn't that good enough? Apparently not. They want an actual court order.

On June 16 (3 weeks prior to my departure!), my lawyer filed a motion to release my passport.

On June 23, the judge signed an order releasing my passport. The order also included, as we requested, permission to keep my passport for the remained of my term of supervised release. This was important because the clerk of court would have expected me to return my passport upon return from my trip and then obtain ANOTHER court order to obtain my passport again for my October cruise that I had also already obtained permission for.


In this district, apparently, my PO could have simply taken the judge's original letter approving the travel over to the clerk's office and they would have released the passport.

In any case, after almost 4 months of jumping through hoops, I had my permission to travel and I had my passport (after my lawyer retrieved it from the clerk's office and fedexed it to me).

I will write separately on my trip.

Now, as to the issue of transferring jurisdiction as well as completing my final drug test.

June 28 represented the one year anniversary of my release from prison and the beginning of my 3 year term of supervised release. By statute, I can request early termination of my supervised release after one year, which I intended to do. By completing my final drug test, my PO could certify that I have complied with all the conditions of my supervised release.

However, if jurisdiction was transferred, then I would have to make that request in this district. The official policy of this district is that early termination is only recommended after 2/3 of the term is completed (in my case, that would be 2 years). In Philadelphia, the policy is 1/2 (in my case, that would be 18 months). Furthermore, Judge Davis had ruled favorably on every issue we presented to him in this case so I was cautiously optimistic that he would likewise give favorable consideration to a request for early termination, especially if well presented. Thus, I was reluctant to have jurisdiction transferred to NC when I felt I had a more favorable environment for my early termination motion in Philadelphia.

For the story on how that turned out, you will have to read my next post :)