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United States v. Lopez

United States District Court, D. Oregon

January 29, 2019

UNITED STATES OF AMERICA,
v.
JAMES KODY-LEE LOPEZ, Defendant.

          Billy J. Williams, United States Attorney, and Seth D. Uram, Assistant United States Attorney, United States Attorney's Office, Of Attorneys for United States of America.

          Francesca Freccero, Assistant Federal Public Defendant, Office of the Federal Public Defender, Of Attorneys for Defendant.

          OPINION AND ORDER

          Michael H. Simon, United States District Judge

         James Kody-Lee Lopez brings this motion, seeking an order lifting the bar on his employment as a union organizer under 29 U.S.C. § 504. Because Mr. Lopez has been convicted of a qualifying offense (in this case, a violation of federal narcotics laws), he is prohibited under the Labor Management Reporting and Disclosure Act (“LMRDA”) from serving in certain leadership positions within a union for a period of thirteen years after the end of his term of imprisonment. Mr. Lopez seeks an exemption from this statutory thirteen-year bar in order to pursue a position as a union organizer for the Pacific Northwest Regional Council of Carpenters (“PNRCC”), an affiliate of the United Brotherhood of Carpenters (“UBC”). The United States opposes Mr. Lopez's motion, arguing that he has not clearly demonstrated that he has been fully rehabilitated and that his union position would be contrary to the purposes of the LMRDA. Mr. Lopez's U.S. Probation Officer, however, reports that Mr. Lopez “has matured over the past few years and appears to have left criminality behind.” For the reasons that follow, the Court GRANTS the pending motion.

         BACKGROUND

         In March of 2009, special agents from the Drug Enforcement Administration observed Mr. Lopez attempting to sell ten thousand pills that he claimed contained oxycodone to a confidential informant. Mr. Lopez was arrested, and the pills tested positive for heroin. Shortly thereafter, the U.S. Attorney's Office for the Western District of Washington filed a criminal complaint charging Mr. Lopez with possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Mr. Lopez was indicted on the same charge on May 14, 2009, and pled guilty one week later.[1]

         The United States District Court for the Western District of Washington sentenced Mr. Lopez to 60 months' imprisonment followed by four years of supervised release. Mr. Lopez finished serving his term of imprisonment and began his term of supervised release on August 1, 2014. His case was transferred to Oregon for the remainder of his supervised release. Because Mr. Lopez was convicted of a narcotics offense, 29 U.S.C. § 504(a) disqualifies him from serving as an officer, advisor, consultant, or similar position in a labor-related organization for thirteen years after the end of his imprisonment. The statutory disqualification expires on August 1, 2027.

         In February of 2015, six months after he began his supervised release, Beaverton Police arrested Mr. Lopez for participating in a bar fight. He was convicted of fourth-degree assault in Washington County Circuit Court and sentenced to ten days in jail and 36 months of probation. The United States District Court for the District of Oregon held a hearing and determined that Mr. Lopez had violated the conditions of his supervised release by using alcohol and committing fourth-degree assault. The Court continued Mr. Lopez's supervised release but imposed several additional conditions, including alcohol monitoring and testing, anger-management counseling, and participation in a residential reentry center.

         During his period of incarceration and supervised release, Mr. Lopez took advantage of various educational and job-training programs. While incarcerated, Mr. Lopez participated in several vocational training programs in horticulture, plumbing, welding, and heating and air conditioning. Upon his release from prison, he began an apprenticeship program with the UBC. The apprenticeship normally requires four years to complete, but Mr. Lopez successfully finished it in three years. He later rose to work as a journeyman and as a foreman. In May of 2017, Mr. Lopez was elected by his peers in Local 1503 as a delegate for the PNRCC and as trustee for Local 1503. Union leadership then encouraged him to apply for a position as a union organizer for the PNRCC, which he did. It was only during the background check for the union organizer position that the PNRCC realized that Mr. Lopez's prior criminal conviction prevented him from serving in a leadership role in his union. He subsequently resigned from his two elected posts. He now brings this motion requesting an exemption from the statutory prohibition on a holding union leadership position under 29 U.S.C. § 504(a), seeking to pursue a position as a union organizer for the PNRCC. Mr. Lopez is 35 years old, has been clean and sober since February 2015, and no longer associates with the drug traffickers with whom he associated in 2009.

         DISCUSSION

         Section 504(a) of the LMRDA prohibits persons convicted of certain specified crimes from holding a position of authority in a labor union for a period of thirteen years after the conviction of the crime or after the end of imprisonment, whichever is later. 29 U.S.C. § 504(a). The purpose of this thirteen-year bar is to “secure high standards of responsibility and ethical conduct in labor organizations by locking out . . . those people who demonstrate an inability to abide by such standards.” United States v. Cullison, 422 F.Supp.2d 65, 68 (D.D.C. 2006). This statutory provision is not inflexible, and the statute recognizes that there are “rare occasions where a [thirteen] year ban might be considered too harsh.” United States v. Peters, 938 F.Supp.2d 296, 298 (N.D.N.Y 2013) (citation omitted). Thus, a person otherwise barred who wishes to enter union leadership may seek relief in three alternative ways. First, the person may petition the sentencing court to reduce the duration of the disability. Id. Second, the person may obtain a full restoration of his citizenship rights. Id. And third, the person may “petition the sentencing court for an exemption based on the court's determination that petitioner's service in a prohibited capacity does not violate the purpose of the LMRDA.” Id; see also 29 U.S.C. § 504(a) (“if the offense is a Federal offense, the sentencing judge . . . determines that such person's service in any capacity referred to in clauses (1) through (5) would not be contrary to the purposes of this chapter”).[2]

         Mr. Lopez seeks the third avenue of relief by asking this Court for an exemption from the thirteen-year bar. He argues that his service as a union organizer would not violate the purpose of the LMRDA because he is fully rehabilitated, more than four years have passed since his incarceration has ended, and his crime of conviction was unrelated to any union activities. The United States opposes Mr. Lopez's motion on the merits. The United States argues that Mr. Lopez has failed to demonstrate that he has been rehabilitated or is sufficiently trustworthy to hold a leadership position that would, among other things, involve managing union assets.

         A. Standards

         The LMRDA itself does not provide a standard or a framework for courts to assess when a defendant has been sufficiently rehabilitated that his union leadership would not violate the purpose of the Act. The United States Sentencing Guidelines (“Guidelines”), however, discusses “Relief from Disability Pertaining to Convicted Persons Prohibited from Holding ...


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