FFOA treatment should be available for multiple counts of qualifying offenses so long as the convictions occurred simultaneously, since the defendant would then have no prior disqualifying convictions.[33]  Under this language, it may be possible to obtain a Lujan-safe expungement of two simple or more qualifying convictions if (1) at the time of commission of the offense, the defendant had not yet been convicted of the first, or the first conviction is not yet final, and (2) both convictions are expunged at the same time. 

 

There is no numerical limitation on the number of current qualifying offenses of which the defendant was found guilty for which the FFOA will provide rehabilitative relief.  Thus, if a defendant is “found guilty” of two simple possession offenses in the same proceeding, s/he remains eligible for FFOA treatment since s/he has no prior conviction and no prior FFOA grant.  The FFOA thus on its face allows relief even for multiple qualifying convictions in the same proceeding, since there is no prior incident to disqualify the defendant.  Each of the offenses must qualify.  In a state proceeding, therefore, if the defendant is found guilty simultaneously of one simple possession offense, one possession of paraphernalia offense, and one “under the influence” offense, and receives state rehabilitative relief for those offenses, the immigration effects of all three convictions have been eliminated in the Ninth Circuit.

 

            A noncitizen who pleads guilty to more than one qualifying offense is eligible for FFOA treatment provided s/he is not disqualified under the FFOA by a prior drug conviction or by a prior grant of FFOA treatment to eliminate a prior conviction. 18 U.S.C. § 3607(a) does not disqualify a defendant under the FFOA if the defendant has more than a "single offense."  Instead, the statute states that Federal First Offender treatment is available to a person found guilty of "an offense" described in section 404 of the Controlled Substances Act provided that prior to the commission of such offense the person has not been convicted of a law related to controlled substances and has not previously been the subject of the FFOA.

 

            The plain and unambiguous words of the statute do not exclude from FFOA treatment a defendant convicted of two or more offenses at the same time provided the other conditions apply. Giving the words of the statute their ordinary and plain meaning the respondent qualifies for FFOA treatment. The Supreme Court has stated:  "In construing a statute, we assume the legislative purpose is expressed by the ordinary meaning of the words used. [Citation omitted] Absent a clear expressed legislative intention to contrary, the plain language of the statute is ordinarily conclusive."[34]

 

            If Congress intended to limit the applicability of the FFOA to the first time a person was prosecuted for a controlled substance violation, it would have stated that a disposition under the FFOA was only available to a person found guilty of only "one" offense, or "one count," or "the first time the person committed any offense," or to "a single offense."

 

            The words "an offense" are not the same as "one offense."  The word "an" is an indefinite article which is used as the equivalent of the word "a" before a vowel.[35]  To exclude more than one offense, there would have to be an appropriate adjective to describe the noun, such as "one" offense or a "single" offense.  For the FFOA to exclude a person convicted of two or more offenses with no prior controlled substance convictions and no prior FFOA treatment, the Act would have to express this by an adjective modifying the word "offense."  The same purpose is not served by an indefinite article.  For example, the government may contend that the words of the statute "an offense" excludes "two offenses."  But the word "two" is an adjective which describes or limits the word "offense."  The word "one" is also an adjective, but that word is not used in the Act to describe or limit the word "offense."  "Had Congress intended the narrow construction [urged upon it by one of the parties] it could have expressly so provided.  It did not, and it would be improper for us to introduce an additional requirement on our own."[36]

 

            If the court believes that the language of the Act is somehow ambiguous, then the court can look at legislative intent of this section which was enacted in the Drug Control Act of 1970. The House Report states:

 

In the case of a first prosecution for the offense of possession, the bill provides that if the defendant is found guilty or pleads guilty, the judge may, in lieu of entering a judgment of guilty place the accused person upon probation.[37]

 

Clearly, there is a difference between "first prosecution" and "one offense."  The legislative history suggests that the first time the defendant comes before the criminal justice system for a controlled substance offense, the person is eligible to receive FFOA treatment.  Since this is a remedial statute, it is to be interpreted liberally.[38]  The evident intent of Congress in providing a chance for FFOA treatment for the first time offender would be frustrated if a defendant charged with two counts with no prior convictions and no prior treatment under the Act was disqualified from eligibility for the remedial effects of the statute on account of the offender’s first encounter with the criminal justice system.

 

 In addition, if the words of the statute are deemed ambiguous, the court must interpret the words of the statute in accordance with The Dictionary Act.[39]  This section provides, in pertinent part, that "[i]n determining the meaning of any Act of Congress unless the context indicates otherwise[,] words importing the singular include and apply to several persons, parties, or things . . . ."[40]  Thus, the word "offense" in 18 U.S.C. § 3607(a) can be read in the plural as "offenses."  Read this way, there is no confusion at all in the statute.      

 

            Finally, this reading of the statute is consistent with other parts of the Federal Controlled Substances Act.  Conviction of two or more offenses for violation of the Controlled Substances Act in the same proceeding is only a misdemeanor, rather than a felony under 21 U.S.C. § 844(a), provided there were no prior convictions for any Controlled Substances violations.  However, conviction of a possession offense after a prior controlled substance conviction is a felony. A felony is defined as any offense punishable with a maximum of more than one year in prison.[41]  The section denoting the punishment for possession of a controlled substance provides, in relevant part:

 

Any person who violates this subsection may be sentenced to a term of imprisonment of not more than 1 year, . . . except that if he commits such offense after a prior conviction . . . he shall be sentenced to a term of imprisonment for not less than 15 days but not more than 2 years . . . .[42]

 

            It would be anomalous to read the FFOA differently or more strictly than the section on punishment for controlled substance violations. In both sections, Congress was concerned with "prior convictions" and did not specify any limitation on the number of offenses in the first prosecution and conviction.[43]

[33] 18 U.S.C. § 3607(a)(2).

[34] American Tobacco v. Patterson, 456 U.S. 63, 68 (1982).

[35] The American Heritage Dictionary of the English Language (4th ed. 2000).

[36] United States v. Hunter, 101 F3d 82, 85 (1996); Smith v. United States, 508 U.S. 223 (1993).

[37] 3 U.S. Cong. & Admin. News 1970-1972 (emphasis added).

[38] Logan v. Davis, 233 U.S. 613, 628 (1914); Riggs v. Government Employees Fin. Corp., 623 F.2d 68, 70 (1980).

[39] 1 U.S.C. § 1 et. seq.

[40] 1 U.S.C. § 1 (West 1997)(emphasis added).

[41] 18 U.S.C. § 3159.

[42] 21 U.S.C. § 844(a).

[43] Thanks to Michael Mehr for this argument.

Ninth Circuit

STATE REHABILITATIVE RELIEF " DISMISSAL FOR SUCCESSFUL COMPLETION OF PROPOSITION 36 PROGRAM EFFECTIVELY ELIMINATED SIMULTANEOUS CONVICTIONS OF TWO QUALIFYING OFFENSES
Nunez-Reyes v. Holder, ___ F.3d ___, 2010 WL 1630897 (9th Cir. April 23, 2010)(per curiam)(California court order dismissing under Penal Code 1210.1 a felony conviction for possession of methamphetamine, under Health & Safety Code 11377(a), and misdemeanor conviction of being under the influence of methamphetamine, under Health & Safety Code 11550(a), effectively eliminated both convictions for immigration purposes, so they no longer constituted controlled substances convictions creating a bar to cancellation of removal).

STATE REHABILITATIVE RELIEF " DISMISSAL FOR SUCCESSFUL COMPLETION OF PROPOSITION 36 PROGRAM EFFECTIVELY ELIMINATED SIMULTANEOUS CONVICTIONS OF TWO QUALIFYING OFFENSES
Nunez-Reyes v. Holder, 602 F.3d 1102, 2010 WL 1630897 (9th Cir. April 23, 2010)(per curiam)(California court order dismissing under Penal Code 1210.1 a felony conviction for possession of methamphetamine, under Health & Safety Code 11377(a), and misdemeanor conviction of being under the influence of methamphetamine, under Health & Safety Code 11550(a), effectively eliminated both convictions for immigration purposes, so they no longer constituted controlled substances convictions creating a bar to cancellation of removal).