[00:00:00] Speaker 03: This is number fifteen thirty one twenty six clinton versus Department of Justice Mr. Garza. [00:00:06] Speaker 05: May it please the court. [00:00:07] Speaker 05: Good morning. [00:00:08] Speaker 05: My name is Robert from the law firm. [00:00:12] Speaker 05: I'll see clinton today. [00:00:14] Speaker 04: Mr. Garza the DOJ claims that you don't contest your client doesn't that he pled guilty to a felony under Virginia law or that a Virginia criminal court entered a finding of guilt. [00:00:27] Speaker 04: You agree with that. [00:00:29] Speaker 05: No, we definitely contest that. [00:00:30] Speaker 05: That's one of our main points. [00:00:32] Speaker 05: And in fact, the original plea here is not in the record. [00:00:35] Speaker 05: So we don't know exactly what it said. [00:00:38] Speaker 05: And later, the revised plea is not a conviction either. [00:00:41] Speaker 05: And the revised plea was not a guilty plea. [00:00:43] Speaker 05: Indeed, if the court takes a look at it, it very clearly states that it's a no-contest plea. [00:00:49] Speaker 03: Yeah, that's the revised one. [00:00:51] Speaker 05: Yes. [00:00:52] Speaker 03: Go back. [00:00:52] Speaker 03: Well, why wouldn't a no-contest plea be the equivalent of a guilty plea? [00:00:56] Speaker 03: I mean, I thought [00:00:59] Speaker 03: Dickerson, for example, and the Supreme Court made clear that a no contest plea could be the equivalent of a guilty plea. [00:01:07] Speaker 05: Well, in this case, if Dickerson applies and federal law does control it, which we assert that Virginia law controls. [00:01:13] Speaker 05: But even under federal law, it would not be the equivalent because it's withdrawalable. [00:01:17] Speaker 05: In Dickerson and footnote seven, the court distinguished withdrawalable pleas and cited the lot. [00:01:22] Speaker 05: And under lot, the Supreme Court explained that a plea that is withdrawalable [00:01:27] Speaker 05: even a guilty plea, a nolo contendere plea, which would equate to a guilty plea, that it is not a conviction. [00:01:34] Speaker 05: It is not the final determination of guilt. [00:01:37] Speaker 05: And that for a conviction to exist on federal law, if the plea is withdrawable, there has to be a judgment of conviction and sentencing. [00:01:45] Speaker 03: Let's assume that federal law applies for the moment. [00:01:47] Speaker 03: I know you argue that it doesn't. [00:01:50] Speaker 03: But in terms of the November [00:01:53] Speaker 05: plea why isn't that sufficient uh... if federal laws we've got a federal law the november plea the revised plea is not a conviction because number one it's still withdrawal and under a lot that's the if it's withdrawal is not final until it's a judgment conviction and number two the november plea does not admit guilt and in dickerson they specifically identified that there was and there had to be a fine of guilt the plea agreement [00:02:24] Speaker 04: provides a summary of the state's evidence and according to the government indicates that the Brunswick County Sheriff's Office executed a search warrant on his property discovered a plot of marijuana directly behind the garage in the yard and another plot of marijuana behind a chicken coop and all 36 marijuana plants were seized along with firearms which are relevant in [00:02:53] Speaker 04: Might not be otherwise, but are relevant when you're seizing drugs. [00:02:57] Speaker 04: And then it says the plea agreement also would show that he made a statement to a federal employee at the prison that he used marijuana and cocaine. [00:03:11] Speaker 04: Do you contest any of that? [00:03:13] Speaker 05: Well, the statement about cocaine was specifically edited in the plea, Your Honor. [00:03:19] Speaker 05: But that would be the evidence. [00:03:21] Speaker 05: There's a special caveat to that plea, which is the immiscibility of that evidence. [00:03:26] Speaker 05: And that evidence was not found on Mr. Cleeton. [00:03:28] Speaker 05: It was found on his property, a property that he shares with other adults. [00:03:32] Speaker 04: In exchange for... You know, you mentioned in the blue brief, I saw that you mentioned his son, his adult son lived there. [00:03:41] Speaker 04: And if it was a plastic bag with a half ounce of marijuana in it they found while searching the house, [00:03:50] Speaker 04: I could sure understand that. [00:03:52] Speaker 04: But 36 plants growing in his yard? [00:03:56] Speaker 05: Again, there is the miscibility of that evidence against Mr. Cleeton. [00:04:00] Speaker 05: He agreed not to challenge it. [00:04:02] Speaker 05: And we do believe that there would have been an excellent case to challenge the miscibility of that evidence against him personally. [00:04:08] Speaker 05: But that is one of them. [00:04:09] Speaker 05: But that didn't happen. [00:04:10] Speaker 05: It did not because of the agreement itself. [00:04:13] Speaker 05: And he specifically agreed not to challenge the miscibility because of the deferred disposition. [00:04:19] Speaker 04: Can you think of... Go ahead. [00:04:23] Speaker 04: The deferred disposition is later. [00:04:26] Speaker 04: What about the first time around? [00:04:28] Speaker 05: We don't know what that plea says, Your Honor. [00:04:30] Speaker 05: It's not on the record. [00:04:33] Speaker 05: So to address your point, Judge Dyke, the revised plea, that even under federal law would still not be a conviction because, number one, it is still withdrawal under Virginia law, so law would apply. [00:04:45] Speaker 05: Number two, it's not an admission of guilt. [00:04:48] Speaker 05: But we do know under Virginia law that when an individual is under deferred disposition. [00:04:53] Speaker 02: It's not an admission of guilt. [00:04:54] Speaker 02: It looks like it. [00:04:57] Speaker 02: It refers to a plea of guilty. [00:05:01] Speaker 05: The order itself does refer to a plea of guilty. [00:05:05] Speaker 05: But before that, the court specifically says that he pled no contest. [00:05:09] Speaker 03: But I don't see the difference between no contest and a plea of guilty. [00:05:12] Speaker 03: Am I missing something? [00:05:14] Speaker 05: Well, a no-contest plea in this case would be an Alford plea, where there is no admitted guilt, just that the evidence is sufficient to convict. [00:05:21] Speaker 05: And indeed, that evidence is only sufficient to convict because Mr. Cleaton agreed not to challenge it. [00:05:25] Speaker 03: Well, why is it a no-contest plea or a guilty plea? [00:05:27] Speaker 03: What difference does that make in terms of whether it's a conviction? [00:05:31] Speaker 05: Well, it goes to the underlying fact of whether or not there is actually guilt or innocence here. [00:05:35] Speaker 05: And there is no admitted guilt here under the revised plea. [00:05:39] Speaker 05: And under Dickerson, the court specifically said that there had to be a finding of guilty. [00:05:43] Speaker 05: in that case, because he was placed on probation. [00:05:46] Speaker 04: Mr. Geyersen, I'm looking at A4061, which I presume, based on what you're telling me, is the revised pay agreement. [00:05:56] Speaker 04: Yes. [00:05:56] Speaker 04: Is that correct? [00:05:58] Speaker 04: Okay. [00:05:58] Speaker 04: And in it, it says, those things I read, plus in the garage, a shoe box full of buds, some marijuana buds, along with a gallon zip lock. [00:06:12] Speaker 04: bag full of buzzers seized. [00:06:15] Speaker 04: The defendant admitted to sharing some of the marijuana with a friend. [00:06:20] Speaker 04: And that says the legality of the search would have been an issue if the matter had gone to trial. [00:06:27] Speaker 04: And then it says it has the marijuana and cocaine and then written in as the defendant denies he even used, I think it says used cocaine. [00:06:40] Speaker 04: I believe that's correct. [00:06:42] Speaker 04: Your position is that because you have the legality of the search would have been an issue that you're not admitting the facts here? [00:06:57] Speaker 05: Well, what the admission was is that was the evidence would potentially show, not that it was actually true. [00:07:04] Speaker 05: Mr. Cleeton did not admit his guilt and that those acts took place. [00:07:08] Speaker 05: He admitted that that's what the evidence would show. [00:07:13] Speaker 05: But the most important aspect of that plea is that it's still withdrawable. [00:07:17] Speaker 05: And under lot, it can't be a conviction if it withdraws. [00:07:20] Speaker 03: I'm not sure that that aspect of lot applies here, given Dickerson, which seems to say it does distinguish lot in part on that ground. [00:07:33] Speaker 03: But I'm not sure that Dickerson says that the withdrawability of the plea prevents it from being a conviction. [00:07:43] Speaker 03: and distinguishes cases in which the language of the statute is different and refers to a final conviction. [00:07:49] Speaker 03: I mean, is that what this case turns on if we say that federal law applies, whether the plea was withdrawable or not? [00:07:57] Speaker 05: The revised plea, Your Honor? [00:07:59] Speaker 03: Yeah. [00:07:59] Speaker 05: That would be one aspect that the court would have to decide. [00:08:02] Speaker 03: What other ground do you have for saying that the November plea doesn't constitute a conviction under the statute? [00:08:08] Speaker 05: Well, if this court finds that it does constitute a conviction, then there would be nothing left for the court to decide. [00:08:13] Speaker 03: No, I understand. [00:08:14] Speaker 03: But you say it doesn't constitute a conviction because the plea was withdrawable. [00:08:18] Speaker 03: And what I'm trying to find out is, is there any other reason, in your view, if federal law applies, why this isn't a conviction? [00:08:25] Speaker 05: Well, under Dickerson, it's not just that it was withdrawable, but that there was no admission of guilt in the plea itself. [00:08:31] Speaker 05: And as we know, under Virginia law, where you have a plea that's entered with deferred disposition, [00:08:36] Speaker 05: the Supreme Court of Virginia has specifically stated and held in measure. [00:08:41] Speaker 01: Well, that's what I was going to ask you about and I'm interested in. [00:08:45] Speaker 01: I mean, this is not a criminal statute. [00:08:48] Speaker 01: This isn't dealing with criminal consequences. [00:08:50] Speaker 01: This is a federal employment statute where Congress decided that LEO officers should be removed from their employment if they were convicted of a felony. [00:09:03] Speaker 01: Regardless of [00:09:04] Speaker 01: whether that conviction could be expunged through probation or the like, or anything like that. [00:09:10] Speaker 01: So why should we make any distinction based upon the varying regimes in various states about how you can plead guilty or not, and whether your conviction gets expunged or gets taken off the books or gets termed some other thing, rather than look at this as a federal employment statute and the purpose of it, which was if somebody did [00:09:33] Speaker 01: acts that constitute a felony and agrees that they did them, that that's sufficient under this personnel statute for removal. [00:09:41] Speaker 05: Well the personnel statute itself 7371 specifically references state law and says that the conviction has to be entered. [00:09:48] Speaker 05: So we do believe that Congress understood that the entry of conviction had to be pursuant to state law and therefore the conviction had to exist under state law. [00:09:55] Speaker 05: And here Mr. Cleeton is not convicted or acquitted. [00:09:59] Speaker 01: Isn't that better read as it just has to be [00:10:02] Speaker 01: It can be a felony under either state law or federal law. [00:10:05] Speaker 01: I mean, they didn't want to limit this to people charged in federal courts because most criminal proceedings are in state courts. [00:10:12] Speaker 01: But it doesn't mean that it had to be final for purposes of state law for this statute to apply. [00:10:20] Speaker 01: They just wanted to sweep in all state and federal felonies. [00:10:24] Speaker 05: Well, I agree that it could apply to either state or federal felonies. [00:10:29] Speaker 05: But the entry of the actual conviction itself [00:10:32] Speaker 05: has to be by state law. [00:10:33] Speaker 05: Why does it have to be by state law? [00:10:37] Speaker 03: It's true that the statute contemplates that you look to state law or federal law to see whether it's a felony, but I'm not sure that I understand why you would look to state law to figure out whether it's a conviction, where you have Dickerson and other cases that say that federal law governments, including our [00:11:00] Speaker 03: uh, earlier case under the veteran's statute. [00:11:03] Speaker 05: Because it produces absurd results otherwise, Your Honor. [00:11:06] Speaker 05: What's absurd about it? [00:11:08] Speaker 05: In, in this case, Mr. Cleeton could withdraw his plea that he's currently under, go to trial, get fully acquitted by jury, and yet under the board's interpretation of the statute, he would not get his job back and he'd be properly removable. [00:11:21] Speaker 01: And Congress could not... But you can observe the results the other way though. [00:11:24] Speaker 01: If you have a, uh, a system in place in one state, [00:11:28] Speaker 01: where the only way you can get probation is to plead guilty, and then you serve your probation, and then the conviction gets expunged, the statute would apply. [00:11:38] Speaker 01: But if you have another state where you can plead no contest, go through probation, and then get the arrest and everything erased, it wouldn't. [00:11:47] Speaker 01: Even though you committed the same set of acts, you agreed that you did the same set of acts, [00:11:56] Speaker 01: And it's only the differences in the way the states have set up their sentencing and probation schemes that made a difference. [00:12:02] Speaker 01: Why would Congress ever want somebody fired in one state and not in the other state just based upon state criminal and sentencing laws? [00:12:10] Speaker 05: Well, that is the way that it operates now. [00:12:14] Speaker 05: Every state, you could have the same act committed in one state versus the other, and it'd be a misdemeanor that's punishable by only six months in one state, but a felony punishable by more than one year in the other. [00:12:24] Speaker 05: That type of individualized treatment of those acts is already present. [00:12:29] Speaker 05: But here, it is absurd results because the Virginia Supreme Court has expressly said that an individual like Mr. Cleaton, who has deferred disposition, is neither acquitted nor convicted, and he only stands indicted. [00:12:41] Speaker 05: And that's clear binding cases. [00:12:43] Speaker 03: I don't see that that's the case with the November plea. [00:12:47] Speaker 03: It says the court accepted said agreement and defendant's plea of guilty. [00:12:51] Speaker 03: So the court accepted his plea of guilty. [00:12:54] Speaker 05: Well, in the paragraph before that, the court describes it as a plea of no contest. [00:13:00] Speaker 05: Even if you're talking about a binary world where it was a guilty plea and that you either have a plea of innocent or a plea of no contest and guilty, it still does not admit the underlying facts. [00:13:11] Speaker 04: Isn't the underlying purpose of the statute to keep prison guards who sell drugs or use drugs from [00:13:22] Speaker 04: operating in the federal prison system. [00:13:25] Speaker 05: I believe the purpose of the statute is broader than that, Your Honor, to keep anyone who's actually convicted of a crime to mandate their removal. [00:13:34] Speaker 05: But here, he was not convicted. [00:13:36] Speaker 05: Under Virginia law, it's very clear that he is only indicted. [00:13:40] Speaker 05: And it's not the case as if there would be for expungement. [00:13:42] Speaker 04: The court, having heard the evidence, this is from May, the first one, accepted defendant's plea of guilty and found him guilty of possessed [00:13:52] Speaker 04: marijuana with intent, the intent being to distribute. [00:13:58] Speaker 05: Yes, and if you don't agree that that's withdrawable and therefore not a conviction, I believe that Virginia law makes it very clear, and the government did not contest this point, that the court would be without power to enter a revised plea if that was indeed a conviction and a final adjudication of guilt. [00:14:16] Speaker 05: And in the revised plea, when it was entered in November, the court specifically said, [00:14:21] Speaker 05: that it was deferring adjudication of guilt. [00:14:24] Speaker 05: There is no final adjudication of guilt here. [00:14:27] Speaker 05: Mr. Cleeton, as he stands now under binding Virginia Supreme Court... So hang on, hang on. [00:14:33] Speaker 04: So he comes in, in the November hearing. [00:14:38] Speaker 04: He admits that he possessed the marijuana and enters the plea. [00:14:46] Speaker 04: And because he can withdraw it and because [00:14:49] Speaker 04: Eventually, if he fulfills the conditions, it'll be expunged. [00:14:54] Speaker 04: He can just continue working. [00:14:58] Speaker 05: I believe there's other remedial actions at the court that the agency could take in order to ensure, if they did have a true concern about him, in order to ensure an efficient operation of the government. [00:15:08] Speaker 05: But in that revised plea, he does not admit guilt. [00:15:11] Speaker 05: He admits that the evidence itself is sufficient. [00:15:13] Speaker 05: It's an Alfred plea. [00:15:15] Speaker 01: How is this case different? [00:15:17] Speaker 01: from Canava that we decided earlier this week, where an employee entered some kind of conditional plea, was put on probation. [00:15:27] Speaker 01: And if he completes the probation, his sentence can be reduced to a misdemeanor, which would no longer qualify under this statute. [00:15:36] Speaker 01: I see that my time has expired. [00:15:38] Speaker 03: No, go ahead. [00:15:39] Speaker 03: We'll tell you when to sit down. [00:15:42] Speaker 05: And Knavo, Your Honor, I don't believe is the same type of situation we have here. [00:15:47] Speaker 05: In Knavo, there was no dispute that the plea was a conviction. [00:15:51] Speaker 01: I mean, sorry. [00:15:53] Speaker 01: I mean, I anticipate that's your answer. [00:15:55] Speaker 01: But this is the problem I have is that that's the system they have in Arizona for deferring prosecution and allowing somebody to complete probation and then having a sentence, a conviction of a felony no longer on their record. [00:16:10] Speaker 01: They don't have a system like Virginia. [00:16:12] Speaker 01: And so why should that employee be treated more harshly under this federal personnel statute that applies nationwide than an employee in Virginia, which may have a different and more lenient sentencing regime? [00:16:28] Speaker 05: Well, Your Honor, the obvious answer is that it's because they committed that crime in Arizona. [00:16:33] Speaker 01: But the crimes are the same. [00:16:35] Speaker 01: Let's just take that. [00:16:36] Speaker 01: The crimes are exactly the same, let's assume. [00:16:39] Speaker 01: It's the sentencing regimes that are different. [00:16:42] Speaker 01: And in order to get the probation instead of going through trial in Arizona, you have to plead guilty. [00:16:49] Speaker 01: But that later on, that can be changed to a misdemeanor conviction, or maybe even expunged altogether. [00:16:57] Speaker 01: Whereas in Virginia, you don't have to make that same kind of plea. [00:17:03] Speaker 01: And ultimately, you will get the same result, that you no longer have a felony conviction on your record. [00:17:08] Speaker 01: I believe that it's inherent in the statute itself. [00:17:10] Speaker 01: Do you think Congress intended to incorporate the various different sentencing regimes and treat federal employees different based upon that? [00:17:19] Speaker 05: To an extent. [00:17:20] Speaker 05: I believe that Congress specifically said that state felonies count. [00:17:24] Speaker 05: And because they said state felonies count, they incorporated all the regimes from the state. [00:17:28] Speaker 05: Indeed, one act of one state could be treated as a felony. [00:17:32] Speaker 05: In another state, it could be a misdemeanor. [00:17:34] Speaker 03: Yeah, but you're conflating two different [00:17:36] Speaker 03: One is whether the offense is a misdemeanor or a felony, which it appears as though state law ought to apply, and I'm not sure the government is contending otherwise. [00:17:47] Speaker 03: But the question is, what's a conviction? [00:17:51] Speaker 03: Under Dickerson and other cases, it's a matter of federal law. [00:17:56] Speaker 03: And so if federal law applies, you have to explain why this wasn't a conviction. [00:18:04] Speaker 03: You know, I'm not sure that the fact that it was a no contest plea makes a difference, particularly when it's characterized as a plea of guilty here. [00:18:16] Speaker 03: And I'm not sure that the ability to withdraw the plea as a matter of Virginia law should create a different result under federal law. [00:18:26] Speaker 05: Well, you're under a lot that was the reasoning that the court had. [00:18:30] Speaker 05: The withdrawability of the plea made [00:18:32] Speaker 05: The plea itself, an entry of the plea. [00:18:34] Speaker 03: Yeah, but that was a question of appeal. [00:18:36] Speaker 03: That was a question of appealability. [00:18:40] Speaker 05: The logic, though, holds because otherwise you do produce absurd results. [00:18:44] Speaker 05: You have an individual here who could withdraw the plea, go to trial, and be acquitted. [00:18:49] Speaker 05: And under the current interpretation of the statute, he would not get his job back. [00:18:53] Speaker 05: Even though he's been declared innocent, that can't be what Congress intended. [00:18:58] Speaker 01: That is a patently absurd result that an individual who is... Well, doesn't that mean that we would have to consider that part of the statute that allows for people to be reinstated if their convictions are overturned on appeal, if that necessarily includes not just a direct appeal, but some other kind of instance where they've been declared innocent because it's been overturned either through a trial or a request to the district court or the like? [00:19:28] Speaker 01: But that's not rendering the conviction not final now. [00:19:35] Speaker 01: It's waiting to see if other events transpire in the case that makes it not final. [00:19:40] Speaker 01: So it could be on appeal. [00:19:42] Speaker 01: Perhaps, I suspect the government doesn't like this side of argument, but I think it's a question we're going to have to face. [00:19:46] Speaker 01: It could be that the district court may look at it. [00:19:50] Speaker 01: You might get some kind of motion to say, oh, this was based on incorrect facts. [00:19:54] Speaker 01: We're going to vacate that. [00:19:55] Speaker 01: And we'll have to determine then [00:19:57] Speaker 01: what it constitutes to be overturned on appeal. [00:19:59] Speaker 01: But the fact that it may be overturned on appeal doesn't make it not final for purposes of conviction. [00:20:05] Speaker 05: Well, under Virginia law, the way that it would be overturned would be a dismissal. [00:20:09] Speaker 05: And here, that is implicit in the agreement. [00:20:12] Speaker 05: But second, it's not just that it's going to be overturned on appeal. [00:20:15] Speaker 05: There is no conviction here because he stands indicted under Virginia law. [00:20:20] Speaker 03: Well, but wait a second. [00:20:22] Speaker 03: Tell me why, looking at this November plea, [00:20:25] Speaker 03: which says he shall be placed on supervised probation. [00:20:28] Speaker 03: Why is it that under Virginia law, the plea could be withdrawn? [00:20:32] Speaker 05: It's under section 19.2, that's 296, Your Honor, that it is literally withdrawable until there is either a final sentencing or deferred sentencing itself. [00:20:44] Speaker 03: And the case said we should... So placing him on probation is not a sentence? [00:20:48] Speaker 05: Right. [00:20:48] Speaker 03: No, it's a part of an agreement, a part of the contract that with the state... What Virginia case says that's not a sentence? [00:20:55] Speaker 03: means that the plea can't be withdrawn. [00:20:57] Speaker 05: The major case is directly on point, Your Honor. [00:20:59] Speaker 05: In the major case that was cited in stars in footnote one and in a response to a 28-J letter by the government, it expressly says that an individual who is on deferred disposition and on probation is neither convicted nor acquitted. [00:21:15] Speaker 04: What if he violates the terms of this probation? [00:21:17] Speaker 04: Does he then go back and have a new trial? [00:21:20] Speaker 05: Under the terms of this agreement, he would be sentenced under the original. [00:21:23] Speaker 05: court, and then he would be found guilty based on the admitted fact. [00:21:28] Speaker 04: But that would simply be a contract to go to jail? [00:21:31] Speaker 05: It would be a contract, but I believe that the Star's opinion of the Virginia Supreme Court is very clear that even if you have that guilty plea in that case, the court can still convict of a lesser crime, hear new evidence, or defer disposition as it did here. [00:21:45] Speaker 05: But if he does violate it, then it would be a contract. [00:21:48] Speaker 05: But Virginia law is very clear here that Mr. Cleedon is not convicted. [00:21:52] Speaker 05: He is indicted [00:21:53] Speaker 05: and he stays indicted. [00:21:54] Speaker 03: He's not convicted because he wasn't sentenced? [00:21:58] Speaker 05: Under Virginia law, he's not convicted because there was no adjudication of his guilt. [00:22:03] Speaker 05: There was no final adjudication of his guilt. [00:22:05] Speaker 05: There was no judgment of guilt. [00:22:06] Speaker 04: So if he violates probation and goes to jail and he's going to jail, but he's not guilty? [00:22:10] Speaker 05: Well, I believe that there would be two different crimes. [00:22:13] Speaker 05: One would be the violation of probation and the agreement itself. [00:22:16] Speaker 05: The other would be the underlying act. [00:22:18] Speaker 05: And I believe that they would be cumulative. [00:22:21] Speaker 05: But here, [00:22:21] Speaker 05: It's not a conviction because there was no judgment of conviction. [00:22:25] Speaker 04: Probation violation is not necessarily a crime. [00:22:28] Speaker 04: If part of the probation requirement is that he takes a urine test every month, failure of a citizen to take a urine test is not a crime, is it? [00:22:37] Speaker 05: It would depend on the terms of the probation and the terms that are imposed under Virginia law, Your Honor. [00:22:41] Speaker 05: I'm not exactly sure if it is, but I'm just conceding that it could be. [00:22:45] Speaker 03: But we keep mixing two things up here. [00:22:47] Speaker 03: I mean, if federal law applies, we look to federal law to see whether it's a conviction. [00:22:51] Speaker 03: We don't care whether Virginia would characterize it as a conviction. [00:22:55] Speaker 03: But you're arguing that the mere fact that under Virginia law, you say he could withdraw the plea means that under federal law, it's not a conviction. [00:23:04] Speaker 03: Am I understanding that correctly? [00:23:06] Speaker 03: I believe that's one of the foundations of the argument, yes. [00:23:09] Speaker 05: And the withdrawability of the plea itself, because it can be withdrawn, shows that it's not a final adjudication of guilt, which Dickerson said there was. [00:23:18] Speaker 05: And that's why they dropped the footnote seven too lot and said, this is not the case for the Iowa expungement statute. [00:23:24] Speaker 05: There's no indication that it's withdrawable. [00:23:26] Speaker 05: And there was an adjudication of guilt. [00:23:28] Speaker 05: Even though there was a deferred aspect of that judgment in Dickerson, there was a finding of guilt that was final for the case. [00:23:36] Speaker 05: A withdrawal plea is not. [00:23:38] Speaker 03: Okay, we're way over time here. [00:23:39] Speaker 03: We'll give you two minutes to rebuttal. [00:23:42] Speaker 03: Mr. Singley. [00:23:49] Speaker 00: May it please the court. [00:23:50] Speaker 03: So why is it that the government doesn't argue that the November order qualifies as a conviction under the statute? [00:24:00] Speaker 00: The reason, Your Honor, is that this is a two-step statute. [00:24:04] Speaker 00: The November [00:24:06] Speaker 00: conviction, and it was a conviction, is irrelevant to the question of whether the agency made the right decision that it was required to make by this law by the end of the pay period following judge Lee's order. [00:24:17] Speaker 03: I don't understand that answer. [00:24:18] Speaker 03: Why are you not arguing in the alternative that the November order qualifies? [00:24:24] Speaker 00: Your Honor, because if the agency didn't remove him within [00:24:33] Speaker 00: 30 days of getting that original order on May 6 where he was found guilty. [00:24:37] Speaker 00: And that's something that's missing from Mr. Cleaton's argument. [00:24:41] Speaker 00: He was found guilty. [00:24:42] Speaker 00: It wasn't just an entry of a plea on May 6. [00:24:47] Speaker 00: But if the agency did anything other than remove him, it would have violated the law. [00:24:50] Speaker 00: So the only question after he was removed is whether there was a subsequent event that would justify it. [00:24:57] Speaker 03: That really doesn't answer my question. [00:24:59] Speaker 03: Let's assume that we [00:25:01] Speaker 03: were to conclude hypothetically that the May order doesn't qualify as a conviction. [00:25:06] Speaker 03: Why don't you argue that the November order does? [00:25:10] Speaker 00: Well, I do argue, Your Honor. [00:25:11] Speaker 00: I mean, I'm going to argue here that it does qualify, because a probation is a sentence. [00:25:16] Speaker 00: And you don't get probation. [00:25:17] Speaker 00: The Supreme Court said in Dickerson, you do not get a probationary sentence unless the court finds you guilty of a crime. [00:25:24] Speaker 00: And he received probation here, so that is... Does that affect the date of his removal? [00:25:28] Speaker 03: if we were to rely on the November order rather than the May order? [00:25:33] Speaker 00: Your Honor, if you did rely on the November order, then it could potentially affect his date of removal. [00:25:41] Speaker 00: However, he was convicted on May 6th. [00:25:44] Speaker 03: There's absolutely no basis to... I understand, but I'm asking you to assume for me for the moment that he wasn't convicted on May 6th. [00:25:50] Speaker 03: I'm asking what difference it makes. [00:25:52] Speaker 03: Are you saying that he would be [00:25:54] Speaker 03: entitled to back pay, that the removal would be effective on a different date if we relied on the November order? [00:26:03] Speaker 00: No, Your Honor. [00:26:04] Speaker 00: I mean, well, there's only one place in the statute that... What date was he removed? [00:26:08] Speaker 00: He was removed on May 31st, Your Honor. [00:26:10] Speaker 03: So if he wasn't convicted until November, he couldn't be removed until November, right? [00:26:17] Speaker 00: That's correct, Your Honor. [00:26:19] Speaker 03: So he'd be entitled to some back pay. [00:26:21] Speaker 00: The statute only allows back pay if your conviction is overturned on appeal. [00:26:26] Speaker 00: No, no, no, no. [00:26:28] Speaker 03: You're not going with my hypothetical. [00:26:29] Speaker 03: I'm saying the May order is not a conviction. [00:26:33] Speaker 03: The November order is. [00:26:34] Speaker 03: He'd be entitled to back pay between May and November if we relied on the November order. [00:26:40] Speaker 00: All I'm saying, Your Honor, is I don't see. [00:26:42] Speaker 03: Yes or no? [00:26:46] Speaker 00: Possibly, Your Honor. [00:26:47] Speaker 00: Yes, possibly. [00:26:48] Speaker 04: Let me change the hypothetical. [00:26:51] Speaker 04: Rolling in May, the court simply said, well, we'll bump this over to November. [00:26:57] Speaker 04: And then convicted him in November. [00:27:00] Speaker 00: I'm sorry. [00:27:01] Speaker 04: You couldn't have removed him until November, right? [00:27:05] Speaker 00: If the court said what? [00:27:06] Speaker 04: If the court had said, we're just going to kick this over until November. [00:27:08] Speaker 04: I'm busy right now. [00:27:10] Speaker 00: Well, it depends on what the court said when it kicked it to November. [00:27:13] Speaker 04: Because here- It said, I don't have time to do this. [00:27:17] Speaker 04: I'm going to hear it in November. [00:27:19] Speaker 04: So nothing's going to happen until November. [00:27:21] Speaker 04: You couldn't have fired him until November, right? [00:27:24] Speaker 00: I guess it depends on what the court said when it kicked it. [00:27:29] Speaker 00: Was it the sentence or the finding of guilt? [00:27:31] Speaker 04: No, no. [00:27:32] Speaker 04: It just said, I don't want to hear any of this. [00:27:34] Speaker 00: So in that situation, he didn't enter the plea or anything? [00:27:37] Speaker 00: He didn't do anything. [00:27:38] Speaker 00: Correct, Your Honor. [00:27:39] Speaker 00: Then the agency could not remove until the judge finds him guilty. [00:27:44] Speaker 04: But you did remove him in that, hypothetically. [00:27:48] Speaker 04: But you still removed him in May. [00:27:51] Speaker 04: Would you have to pay in back pay from November to back to May? [00:27:59] Speaker 00: Your Honor, that's possible. [00:28:01] Speaker 00: Again, the reason I'm saying no is because the statute provides a narrow set of situations where you could be entitled to back pay. [00:28:09] Speaker 04: I'm not arguing with what the court said in May. [00:28:12] Speaker 01: I mean, you were in a situation in May where you got notice that there was a guilty plea to a crime, so you had to follow the statute. [00:28:20] Speaker 01: And the fact that at some point that guilty plea was replaced with another November plea, in your view, didn't change the fact that you had to do it. [00:28:29] Speaker 01: It didn't wipe it out. [00:28:31] Speaker 01: That's correct, Your Honor. [00:28:32] Speaker 01: I mean, if in November his conviction had been overturned on appeal, assuming something could ever happen that quickly, then you would have had to give him back pay. [00:28:43] Speaker 00: That's correct, Your Honor. [00:28:43] Speaker 01: You think the fact that there was a new, let's call it a guilty plea. [00:28:47] Speaker 01: I know your friend disagrees with it. [00:28:49] Speaker 01: a new guilty plea in November, doesn't erase the former May plea. [00:28:54] Speaker 01: It just replaces it. [00:28:57] Speaker 00: That's correct, Your Honor. [00:28:58] Speaker 00: And there's one point of clarification there. [00:28:59] Speaker 00: It was not just an entry of a plea in May. [00:29:02] Speaker 00: It was a finding of guilt. [00:29:03] Speaker 04: The court said, I find him guilty. [00:29:05] Speaker 00: That's correct, Your Honor. [00:29:06] Speaker 00: It was a finding of guilt. [00:29:07] Speaker 00: And the cases that they rely on under Virginia law are very different. [00:29:11] Speaker 00: In those cases, the judge withholds a finding of guilt. [00:29:14] Speaker 00: And here you have a finding of guilt. [00:29:16] Speaker 00: And the decision was never nullified, that decision. [00:29:19] Speaker 00: There's nothing in the record saying that that decision was overturned. [00:29:23] Speaker 00: The fact that he negotiated a plea down the road in November negotiated a lighter sentence. [00:29:28] Speaker 00: In fact, that's all that happened here. [00:29:29] Speaker 00: He negotiated a lighter sentence. [00:29:32] Speaker 00: And conviction is a procedural term. [00:29:35] Speaker 00: As you pointed out, Your Honor, defining the term for felony and defining conviction are two categorically different exercises. [00:29:42] Speaker 03: Well, let's assume [00:29:43] Speaker 03: as you argued, the federal law applies. [00:29:47] Speaker 03: The problem with the May order is that it doesn't sentence him, right? [00:29:53] Speaker 03: And if you read Dickerson as saying that there's no conviction until there's a sentence, then there wasn't a conviction in May, right? [00:30:07] Speaker 00: Your Honor, I don't read Dickerson to say that. [00:30:09] Speaker 03: No, no, I understand. [00:30:12] Speaker 03: As a matter of Virginia law, he wasn't sentenced in May. [00:30:18] Speaker 00: That's correct, Your Honor. [00:30:19] Speaker 00: But under Virginia law. [00:30:21] Speaker 03: But under Virginia law, he could have withdrawn his plea until he was sentenced. [00:30:29] Speaker 00: I'm not convinced, Your Honor, that he was. [00:30:30] Speaker 03: No, no, no. [00:30:31] Speaker 03: Answer the question. [00:30:33] Speaker 00: I think the answer is no, Your Honor, that he could not withdraw that plea. [00:30:38] Speaker 00: without the judge nullifying his finding of guilt and nullifying his acceptance. [00:30:43] Speaker 03: I thought it was pretty clear under Virginia law that you could withdraw a plea until there was a sentence. [00:30:50] Speaker 00: Your Honor, but you have to file a motion to withdraw a plea. [00:30:53] Speaker 00: The judge has to find that there was some kind of mistake or error in the plea and that was never found here. [00:30:59] Speaker 03: Okay, I understand that, but the question is what's a conviction? [00:31:03] Speaker 03: They're arguing that Dickerson says that [00:31:07] Speaker 03: There's no conviction under federal law until you arrive at a situation where the plea could not be withdrawn. [00:31:15] Speaker 03: And they're saying that until a sentence is imposed under Virginia law, you can withdraw the plea. [00:31:21] Speaker 03: That seems to me a bit of a problem with the May order. [00:31:25] Speaker 00: Your Honor, that's not a correct understanding of federal law, even. [00:31:29] Speaker 00: I mean, you have all of these cases that we cited, Woods, US v. Rivera Rodriguez, Cuevas, and the United States sentencing guidelines. [00:31:37] Speaker 00: All of them define conviction as a finding of guilt, not a finding of guilt plus sentencing. [00:31:42] Speaker 03: Yeah, but I think you're missing the point. [00:31:44] Speaker 03: The point is not whether under federal law you have to have a sentence for a conviction. [00:31:48] Speaker 03: The point is they argue that under federal law you have to have a situation in which the plea can't be withdrawn in order for there to be a conviction, and that under Virginia law the plea can be withdrawn until sentence. [00:32:05] Speaker 00: Your Honor, that still doesn't change the outcome of this case, because the federal definition of conviction should control. [00:32:15] Speaker 00: And the whole point of this statute is to avoid that specific problem that you're raising, that maybe in a particular state, a finding of guilt could be overturned by some technicality down the road. [00:32:31] Speaker 00: And the whole point is to immediately remove somebody upon that finding of guilt. [00:32:36] Speaker 00: And there's only one basis to reinstate somebody. [00:32:40] Speaker 00: And that's if the finding of guilt is overturned on appeal. [00:32:43] Speaker 04: Does it make any difference to your argument that in the May hearing, Mr. Cleeton provided no response at all? [00:32:54] Speaker 00: No, Your Honor, because the significant triggering event is the judge's finding. [00:32:59] Speaker 00: So we don't know exactly what the content of his plea was, but we know what the judge did with it. [00:33:03] Speaker 00: The judge said that there was sufficient evidence for finding a guilt of a felony, and he found him guilty. [00:33:08] Speaker 00: So it's the judge's determination. [00:33:10] Speaker 04: But what I'm saying is Mr. Cleaton didn't raise to the deciding official that he might be trying to change anything. [00:33:18] Speaker 04: He did not respond. [00:33:21] Speaker 00: Oh, I'm sorry, Your Honor. [00:33:23] Speaker 00: To which deciding official? [00:33:26] Speaker 00: You're talking about the agency? [00:33:27] Speaker 04: Let's see his name. [00:33:30] Speaker 04: Mr. Wilson, the warden. [00:33:33] Speaker 00: I'm sorry, I don't understand your question. [00:33:34] Speaker 04: Well, I'm reading from the Red Brief. [00:33:36] Speaker 04: Mr. Cleeton did not provide a written oral response to his proposed removal. [00:33:42] Speaker 04: That's correct, Your Honor. [00:33:43] Speaker 04: And I'm asking if that makes any difference to your argument, since he didn't raise the possibility of setting it aside in any fashion. [00:33:50] Speaker 00: Well, again, that goes to the perspective of the agency here. [00:33:54] Speaker 00: The agency is required by law to remove him as soon as they get notice. [00:33:59] Speaker 00: He has three options to contest that removal. [00:34:02] Speaker 00: He can say he was not convicted. [00:34:04] Speaker 00: And he can argue that he wasn't a law enforcement officer or that he didn't commit a felony. [00:34:09] Speaker 00: And he didn't say he wasn't. [00:34:10] Speaker 00: He didn't raise any of those arguments. [00:34:11] Speaker 00: And so the agency was absolutely correct. [00:34:14] Speaker 00: And it would have violated the law if they hadn't removed him. [00:34:17] Speaker 00: Then go forward to what he argued at the administrative hearing judge at the MSPB. [00:34:22] Speaker 00: He argued that he hadn't been convicted, and he presented one document. [00:34:25] Speaker 00: And that document said that he was scheduled for a sentencing hearing on another charge, completely unrelated. [00:34:30] Speaker 00: So at that point, the MSPB has no basis to believe that he wasn't convicted. [00:34:35] Speaker 00: And the same thing happened at the panel, where he argued not that he had entered a plea of nullic contendere, but that the court had found him not guilty. [00:34:42] Speaker 00: That's absolutely incorrect. [00:34:44] Speaker 00: The court not only did not find him not guilty, they sentenced him to probation for a crime. [00:34:52] Speaker 00: That's my point. [00:34:56] Speaker 00: So absolutely, the agency made the right decision as of May 31st. [00:35:02] Speaker 00: And then the only question is whether or not there's a subsequent event that justifies reinstating him. [00:35:08] Speaker 00: And this statute is very clear that these events do not qualify. [00:35:15] Speaker 00: His conviction was not overturned on an appeal. [00:35:20] Speaker 03: How did you read footnote seven in Dickerson as to whether the ability to withdraw the plea is a significant factor or not? [00:35:31] Speaker 00: Your Honor, that would be a significant factor, but even in November, after he gets a probationary sentence, he's not able to withdraw his plea. [00:35:46] Speaker 00: So maybe I'm not understanding [00:35:49] Speaker 03: Well, they argue the contrary. [00:35:50] Speaker 03: They argue that under Virginia law, even though he was sentenced to probation, that he could still withdraw his plea. [00:35:56] Speaker 03: What's your authority that he couldn't? [00:36:00] Speaker 00: I don't see any of their cases saying that he can, under Virginia law, withdraw his plea after he's already been sentenced to probation. [00:36:09] Speaker 00: He can withdraw a plea after he enters it. [00:36:12] Speaker 00: But once the judge finds guilt, in fact, the Starr's case that they cite [00:36:16] Speaker 00: Supreme Court of Virginia case says it would be a violation of separation of powers for a judge. [00:36:21] Speaker 00: Once the judge finds you guilty, to then not sentence you according to the legislative intent. [00:36:28] Speaker 00: And the judge here found him guilty twice. [00:36:32] Speaker 00: And once that sentence has been entered, those courts, those decisions, those Virginia court decisions that they're talking about say that there's not a right to judicially pardon somebody. [00:36:44] Speaker 00: has to enter the sentence at that point. [00:36:46] Speaker 00: So yeah, he can withdraw a plea. [00:36:48] Speaker 00: And a jury verdict, and you've got to distinguish verdict and plea in those cases that they cite as well, can be set aside by the judge prior to deciding guilt. [00:36:58] Speaker 00: But once the judge decides guilt, there's no basis under Virginia law to withdraw that plea. [00:37:06] Speaker 00: And the Supreme Court has been very clear that, again, the court does not give probation unless you're guilty of a crime. [00:37:13] Speaker 00: And all that is beside the point, because absolutely the federal law should control here, because as you pointed out, the purpose of this statute, the broad remedial purpose, is to eliminate people who are untrustworthy from positions of law enforcement authority. [00:37:31] Speaker 00: It's an employment statute. [00:37:32] Speaker 00: It's not a criminal statute. [00:37:35] Speaker 00: And so if... Can a person on probation carry a firearm? [00:37:42] Speaker 00: Your Honor, that's going to depend on, I believe it depends on the state. [00:37:47] Speaker 04: The state has to... They said it individually. [00:37:52] Speaker 00: I believe so, Your Honor, that if a state, because looking at these other statutes... I mean this state, the state of Virginia. [00:37:57] Speaker 00: For the state of Virginia, under his original plea, the agency identified that he specifically could not carry a weapon. [00:38:06] Speaker 04: I know under the original one, I saw it in the decision by the warden, [00:38:11] Speaker 04: What I'm asking is, as a probationer under Virginia law, could he carry a firearm? [00:38:17] Speaker 04: And you don't know the answer. [00:38:19] Speaker 03: I don't know, Your Honor. [00:38:22] Speaker 03: OK. [00:38:22] Speaker 03: Thank you, Mr. Singer. [00:38:25] Speaker 03: Mr. Guyers, you have two minutes. [00:38:30] Speaker 04: Mr. Guyers, is the notice to Mr. Clayton in the record that he originally received saying you have [00:38:40] Speaker 04: so many days to appeal this, and this is what you can raise. [00:38:43] Speaker 05: The notice that he was going to be removed? [00:38:45] Speaker 04: Yeah. [00:38:46] Speaker 05: I believe it was a letter dated May 9th. [00:38:49] Speaker 04: I know the date, but I couldn't find it in the record. [00:38:51] Speaker 05: I believe it is in the record. [00:38:56] Speaker 04: And while you're looking, the reason I'm asking that question is the same thing I asked the government. [00:39:06] Speaker 04: That is, he didn't raise anything according to your [00:39:10] Speaker 04: red brief. [00:39:12] Speaker 04: He didn't provide an oral or written response to his proposed removal. [00:39:17] Speaker 05: He did not. [00:39:17] Speaker 05: And it's my understanding, I don't know if it's 100% accurate, but it's my understanding that he was operating under advice of counsel. [00:39:24] Speaker 04: Okay. [00:39:24] Speaker 04: So they have a notice saying he's been found guilty and he's able to say, they say that we have three grounds for removal and one of them is you've been convicted. [00:39:36] Speaker 04: And he doesn't come back and say, no, no, I haven't. [00:39:38] Speaker 05: There's no affirmative obligation for him to do that though. [00:39:40] Speaker 05: He could appeal that to the board and that's exactly what he did. [00:39:43] Speaker 05: There's no affirmative obligation to respond to the letters from the agency itself. [00:39:48] Speaker 05: But I do want to make one thing crystal clear is that the probation that Mr. Cleeton is on is not a sentence. [00:39:53] Speaker 05: He doesn't have to raise it with the deciding official. [00:39:56] Speaker 04: The probation? [00:39:59] Speaker 04: Your client doesn't have to raise it with the deciding official at the first level. [00:40:04] Speaker 04: in order to appeal that. [00:40:05] Speaker 01: The legal argument that it doesn't constitute a conviction, I don't believe that he would have to raise that. [00:40:09] Speaker 01: So what was the agency supposed to do in May, then, though? [00:40:12] Speaker 01: They get this notice of a guilty plea, which makes them. [00:40:16] Speaker 01: I mean, that statute's not discretionary. [00:40:19] Speaker 01: It's mandatory. [00:40:20] Speaker 01: So they have to remove him. [00:40:22] Speaker 05: They do, but that does not create the legal argument. [00:40:25] Speaker 05: That doesn't affect the legal argument and the legality of it itself, and the burden to prove on the agency to prove that he's convicted under the statute. [00:40:32] Speaker 01: You're not challenging, I take it, then, the correctness of the May action. [00:40:39] Speaker 01: You're saying that the November action altered the character of that May action. [00:40:43] Speaker 05: Well, I believe that the May action also is not a conviction. [00:40:47] Speaker 05: The guilty plea is not a conviction in there. [00:40:49] Speaker 05: But to go back to the point that was discussed with the opposing counsel, sentencing here has not occurred. [00:40:55] Speaker 05: Probation that's being imposed is the equivalent of being out on bail. [00:41:00] Speaker 05: And Virginia law is very clear. [00:41:01] Speaker 05: Under 19.2... Could he carry a firearm? [00:41:04] Speaker 05: That I'm not sure of. [00:41:05] Speaker 05: Under 19.2.298, it's clear that there has to be a finding of guilt. [00:41:11] Speaker 05: And in the November order, the court specifically said there's sufficient evidence for a finding of guilt, but will be withheld for a period of two years. [00:41:21] Speaker 05: There is no finding of guilt to justify a sentence under Virginia law. [00:41:27] Speaker 05: And because there's no finding of guilt, it is the classic case that the Supreme Court described in Major, the Supreme Court of Virginia, that he's out on deferred disposition, he remains indicted, even if he's on probation. [00:41:38] Speaker 05: The individual in Major was on probation, supervised release, that he's only indicted. [00:41:42] Speaker 05: He is not convicted, he is not acquitted, but he's still indicted, as the court and the prosecutor in this plea agreement acknowledged. [00:41:49] Speaker 05: So that probationary sentence is not a sentence at all. [00:41:53] Speaker 05: It's just a condition [00:41:55] Speaker 05: of the individual plea agreement to dismiss the charges because it was withdrawable, Mr. Cleaton could go back, be acquitted right now by a jury, and yet under the government and the binding precedent of the board's opinion in this case, that would not relieve him of this ability and allow him to get his job back. [00:42:13] Speaker 05: And that's an absurd result that cannot be true. [00:42:16] Speaker 03: Okay. [00:42:16] Speaker 03: Thank you. [00:42:16] Speaker 03: We're out of time. [00:42:18] Speaker 03: I thank both counsel and the cases submitted.