Albuquerque Criminal Lawyer Blog

It is not unusual for a person to be arrested but never charged. It is also not unusual to be arrested and charged, but not convicted. When either of these situations arises, among the first concerns is the effect that the arrest will have on future employment.

The case-law and the EEOC make clear that with few exceptions employers are prohibited from blanket discrimination on the basis of arrests records alone. Such discrimination would constitute a violation of Title VII of the Civil Rights Act of 1964. The reasoning behind this is clear.

It is has been well established that arrest records alone are not a reliable indicator that the person has actually committed a crime. In addition, and related to the first, it is clear also that discrimination based upon arrest records alone has a highly discriminatory impact on minorities, particularly blacks and Hispanics. As such, these practices are highly discouraged.

There are some exceptions to this prohibition. However, the exceptions are fairly narrow and the burdens are on the employer to prove a legitimate basis for using an arrest record to justify a hiring or other employment decision. The EEOC sets forth the business justification exception with a thorough discussion in its report, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964."

Though business justifications may justify consideration of arrests records in hiring or other employment decisions, the burden is on the employer to show that the practice is necessary for its business operations. The employer must both show that the arrest indicates culpability and that the basis for the arrest has some rational relationship to the employment position at issue. If either is missing, then an arrest alone cannot form the basis of an adverse employment decision.

In New Mexico, the second criterion is perhaps the most problematic since many jobs here require certain levels of security clearance. However, other jobs might pose problems as well such as cashiering, banking, bookkeeping, accounting or other such jobs where the arrest was for theft or other crimes of dishonesty. There are certainly many other situations where the arrest if indicative of guilt would fall within the second prong of the business justification exceptions.

Though consideration of arrest in employment decisions may fall within the exception, there remain limitations. First, and foremost, there cannot be a blanket policy of excluding employment for anyone with an arrest record. This would most certainly violate the law. Instead, the employer must make additional inquiries into the circumstances of the arrest. The employer must then determine that the arrest in fact indicates guilt and that guilt of such an offense has some bearing on job performance. The burden is on the employer to prove both these elements.

All this being said (i.e. employers cannot have a blanket policy against hiring those with arrest records, the burden is on the employer, the burden is high and so on) the problem for employees in this position is that it may be hard to prove. More to the point, it may be very expensive to prove which may make obtaining an attorney quite difficult in the absence of some very compelling circumstances.

Collins & Collins, P.C.
Albuquerque Attorneys

The 10th Circuit Court of Appeals ruled that a common drug supplier does not make a conspiracy. In U.S. v. Caldwell, Michael Caldwell was convicted for conspiracy to distribute marijuana with two other individuals based upon the mere presence of a common supplier to Caldwell and another party. The jury determined that the three men had entered into a single a three party conspiracy to distribute at least 100 kilograms of marijuana over a two-year period.

The defendant admitted to a conspiracy with his supplier but denied the conspiracy with respect to the third party. It may sound like an inconsequential rhetorical argument but the finding of the tri-party conspiracy had significant consequences for Caldwell's sentencing. Because of the jury's erroneous finding of a three party conspiracy, the quantity of marijuana involved in the alleged conspiracy pushed Caldwell into a higher sentencing category.

The facts are pretty straightforward. Caldwell had purchased marijuana from Herrera. Caldwell then sold the marijuana to other users. A friend of Caldwell's, Anderson, source had dried up. Caldwell introduced therefore introduced Anderson to Herrera. Anderson then began buying his marijuana from Herrera. Caldwell received no economic benefit for the introduction nor was he involved in the exchanges between Herrera and Anderson other than the initial introduction.

The 5th Circuit Court of Appeals found that no single tri-party conspiracy existed. Instead, the government had shown only the existence of multiple conspiracies. The court stated that it is often difficult to distinguish between a single large conspiracy and several small conspiracies. However, the Court stated that it would not uphold the finding of large scale conspiracy by "piling inference upon inference...The evidence supporting the conviction must be substantial and do more than raise a suspicion of guilt."

Citing United States v. Sells (10th Cir. 2007), the Court set forth the following requirements for a finding of a conspiracy:

(1) two or more persons agreed to violate the law, (2) the defendant was aware of the essential objectives of the conspiracy, (3) the defendant knowingly and voluntarily became a part of the conspiracy, and (4) the alleged co-conspirators were interdependent.

The pivotal question according to the court was the existence of interdependence of the parties which is present only where the co-conspirators intended to act in concert for their shared and mutual benefit. Citing U.S. v. Evans (10th Cir.1992).

The court boiled the issue down to the question of whether "the mere introduction of a common supplier, made by one drug dealer to another, is sufficient to create a single conspiracy among all the dealers?" The court concluded that it was not.

The finding of a single large scale conspiracy created an erroneous factual basis for Caldwell's sentence. The court should not have included quantities sold by Herrera to Anderson. The case was therefore remanded to district court for resentencing based purely upon the transactions established at trial between Caldwell and Herrera.

www.CollinsAttorneys.com