Tooby's California Post-Conviction Relief for Immigrants

If a defendant had previously been convicted of a state drug offense, but had received state rehabilitative relief to eliminate that conviction under state law, that person technically would not be disqualified from receiving the benefits of the FFOA for a later federal possession conviction, since that person would not have “previously been the subject of a disposition under this subsection . . . .”[44]  The person would have received first-offender treatment not under the federal FFOA, but under an analogous state rehabilitative statute.  If this legislation is interpreted strictly in favor of the defendant, and all reasonable doubts are construed in favor of the defendant,[45] then this defendant could indeed, in strict compliance with the wording of the statute, receive FFOA treatment a for this second conviction if the first time was under state, not federal, law.  On the other hand, the immigration authorities could argue with some plausibility that prior FFOA and prior state rehabilitative treatment should be treated as equivalent for this purpose, even though the statute does not so provide in so many words.  Therefore, it would not be wise to place too much confidence in this interpretation of the statute.

[44] 18 U.S.C. § 3607(a)(2) [emphasis supplied].

[45] The right against conviction except on proof beyond a reasonable doubt is protected by the due process clause of the Fourteenth Amendment of the United States Constitution against state interference.  Mullaney v. Wilbur, 421 U.S. 684 (1975); Cool v. United States, 409 U.S. 100, 104  (1972) (“The Constitution requires proof beyond a reasonable doubt.”); In re Winship, 397 U.S. 358 (1970).  If this principle is weakened, “the presumption of innocence, secured only after centuries of struggle, would lose its meaning.”  Stack v. Boyle, 342 U.S. 1, 4  (1951).