                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


 UNITED STATES OF AMERICA,

      v.
                                                      Criminal Action No. 11-129-09 (CKK)
 JOSEPH TOLBERT, III,

           Defendant.



                         MEMORANDUM OPINION AND ORDER
                                (December 31, 2019)

       Pending before this Court is pro se Defendant Joseph Tolbert’s [1030] Motion to Reduce

Length of Disability, filed pursuant to Section 504 of the Labor-Management Reporting and

Disclosure Act of 1959 (“LMRDA”), 29 U.S.C. Section 504, and the United States’ [1049]

Response to Defendant’s Motion (“Govt’s Resp.”). The United States (“Government”) does not

oppose Defendant’s request for reduction “[i]n light of the unique facts presented here, the

investigation conducted by the Department of Labor, and the entire record herein[.]” See Govt’s

Resp., ECF No. 1049, at 1. Accordingly, for the reasons explained herein, Defendant’s Motion

shall be HELD IN ABEYANCE pending a hearing.

       I. Background and Applicable Standard

       Mr. Tolbert was sentenced to a term of sixty (60) months of incarceration, followed by

sixty (60) months of supervised release on one count of Conspiracy to Distribute and Possess with

the Intent to Distribute 500 Grams or More of Cocaine, after he pleaded guilty to the charge.

Defendant was released to a halfway house on May 5, 2015, and his term of supervised release —

which commenced on October 29, 2015 — was terminated early by this Court upon an unopposed

motion by Defendant. See June 13, 2019 Mem. Op. and Order, ECF No. 1026.


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        Defendant’s Motion to Reduce Length of Disability (“Def.’s Mot.”), ECF No. 1030,

indicates that he is currently employed and serves as a shop steward for his union, UNITE HERE

Local 25, but he wishes “to become an organizer for Local 25.” Def.’s Motion, ECF No. 1030, at

1. Mr. Tolbert seeks relief from the employment disability imposed by Section 504, which

prohibits him from serving as a union employee or representative for thirteen years after the date

of his conviction or release from prison, whichever is later. In this case, Mr. Tolbert is prohibited

under Section 504 of the LMRDA from serving as a union employee or representative for thirteen

years after the date of his conviction or release from prison, whichever is later.1 Accordingly, if

this Court denies Defendant the relief sought, Mr. Tolbert’s employment disability remains in

effect until May 5, 2028, which is thirteen years from his release from prison.

        The employment disability imposed by Section 504(a) may be lifted in one of two ways

applicable in this case. First, the defendant may petition the United States District Court for the

district in which the offense was committed for an “exemption” allowing the defendant to serve in

a particular prohibited capacity. In granting an exemption, the Court must determine that the

defendant’s service in a particular prohibited capacity ‘”would not be contrary to the purposes” of

the LMRDA. 29 U.S.C. Section 504(a)(B). The defendant bears the burden to demonstrate his

rehabilitation. Cullison, 422 F. Supp. 2d at 69-70. Prior to making any determination on an

exemption petition, the Court “shall hold a hearing and shall give notice of such proceeding by

certified mail to the Secretary of Labor and to . . . Federal prosecuting officials in this jurisdiction”

in which the defendant was convicted. 29 U.S.C. § 504(a)(B).




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         The Government notes that “defendant’s current position as a shop steward is also
subject to employment disability [and] [i]f relief is granted, such relief should include the
position of shop steward, to the extent that defendant continues to serve I that position.” Govt’s
Resp., ECF No. 1049, at 3.
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       Second, the defendant may seek relief by moving the sentencing court to “reduce” the

length of employment disability as to all prohibited positions to a period of no less than three years.

See 29 U.S.C. Section 504(a). There is no standard of review expressly provided with regard to

motions for reduction and no apparent controlling precedent. Accordingly, the Government

submits that “[c]ourts generally may apply the same standard that governs exemption petitions.”

Govt’s Resp, ECF No. 1049, at 5; see United States v. Cullison, 422 F. Supp. 2d 65, 71 (D.D.C.

2006) (noting that “there is merit to the Government’s position that the standard of review for

granting a reduction . . . should be at least as high as that for granting an exemption because

granting a reduction . . . has the same effect as granting a mass exemption for all five areas of

disqualified employment under § 504(a)”). In the instant case, this Court — which was the federal

sentencing court — may grant either an exemption or a reduction if Mr. Tolbert shows sufficient

rehabilitation. 29 U.S.C. §504(a)(B); U.S.C. § 504. In this case, Mr. Tolbert appears to seek a

reduction in the length of the employment disability, which lifts the employment bar as to all

prohibited positions and constitutes a blanket exemption to serve in any capacity prohibited by

Section 504(a). Accordingly, Mr. Tolbert must demonstrate that granting relief would “not be

contrary to the purposes” of the LMRDA, and he must make a “clear demonstration” that he has

been rehabilitated for purposes of any position prohibited by Section 504(a). See 29 U.S.C. §

504(a); U.S.S.G. § 5J1.1.

       II. Factors for this Court to Consider

       In considering requests for reduction, courts generally analyze the following three factors

(which were the focus of a Department of Labor investigation in this case): “(i) the character and

gravity of the offense and its nexus to union activities; (ii) the nature of the position sought; and

(iii) the extent that the defendant is rehabilitated so as to adhere to the highest standards of



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responsibility and ethical conduct under the LMRDA.” See Govt’s Resp., ECF No. 1049, at 7,

citing Carollo, 84 F. Supp. 2d at 378 n.3; Cullison, 422 F. Supp. 2d at 70-73.

        A. Character and Gravity of the Offense

        The first factor to be analyzed by the Court is the character and gravity of Defendant’s

offense. Mr. Tolbert pleaded guilty to and was sentenced for a narcotics offense. The Government

notes that while this type of serious crime has been deemed “incompatible with involvement in

labor organizations,” 29 U.S.C. § 401, Mr. Tolbert’s offense did not involve labors unions or

organized labor. Govt’s Resp., ECF No. 1049, at 7. Furthermore, Mr. Tolbert’s involvement in

Local 25 postdates his commission of an offense and serving of his sentence. Accordingly, this

case does not involve “precisely the type of illegal and unethical conduct Congress intended to

root out of labor organizations” by enacting the LMRDA. See, e.g., Cullison, 422 F. Supp. 2d at

72 (denying relief where the defendant was convicted of extorting and unsealing ballots in a union

election).

        B. The Nature of the Position Sought

        The second factor to be analyzed by the Court is the nature of the position sought by

Defendant, which includes its duties, and the potential for influencing others. The Government

explains that the “Department of Labor investigation established that defendant has served as a

volunteer shop steward for Local 25 for the last two years, helping members with grievances,

distributing news to members, and canvassing for legislation.” Govt’s Resp., ECF No. 1049, at 8;

see also Ex. A [Declaration of Brian Pifer] ¶ 7; Ex. C [Report of Interview of John Boardman] at

1. While Defendant’s shop steward position is covered by a Section 504 disability, there is no

evidence that Defendant or Local 25 willfully sought to circumvent that Section. See Ex. A ¶ 7.

The position sought now by Mr. Tolbert is that of a paid union organizer for Local 25, id. ¶ 6, and



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his duties would include, inter alia, discussing union membership with workers at existing and

new worksites. See Ex. C at 1. Defendant would be reimbursed for his mileage incurred in

conducting union business, but he would not receive a union credit card, per diem, or cellphone

allowance. See id at 1-2.

       C. Clear Demonstration of Rehabilitation

       The third factor to be analyzed by the Court is the requirement that Defendant make a

“clear demonstration” that he has been rehabilitated. The applicable standards to guide courts

were developed by the United States Parole Commission, which originally had jurisdiction to

decide petitions for exemption pursuant to Section 504(a). See 28 C.F.R. §§ 4.3, 4.4, 4.5 ; Carollo,

84 F. Supp. 2d at 377 (noting that Parole Commission’s regulations are instructive in determining

procedures for relief under Section 504). Despite his disqualifying conviction, Mr. Tolbert must

demonstrate that he has conducted himself in a manner that indicates trustworthiness with the

effect that his service in an otherwise prohibited position would not endanger the organization or

be contrary to the purposes of the LMRDA. See U.S.S.G. § 5J1.1.

       The Government notes that Mr. Tolbert has “accepted full responsibility for his conduct[,]

and [he] pleaded guilty early in the process.” Govt’s Resp., ECF No. 1049, at 9. At sentencing,

the Government sought the statutory mandatory minimum sentence, which was thereafter imposed

by this Court. Additionally, Mr. Tolbert was credited as a minor participant in the offense, and

the Presentence Report did not indicate participation in any violence in the course of the

conspiracy. Defendant completed his term of incarceration, and his motion for early termination

was without objection by the Government or the Probation Office. The Government notes further

that when Mr. Tolbert was interviewed by the Department of Labor during its investigation, he

“did not contest the validity of his conviction and made no excuses for his conduct.” Govt. Resp.,



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ECF No. 1049, at 9; see Ex. B [Report of Interview of Joseph Tolbert, III]; Ex. C.

       After his release from prison, Mr. Tolbert completed a culinary training program and was

hired as a cook at DC Central Kitchen, and he recently joined its Board of Directors. Ex. A ¶ 8;

Ex. B at 1; Ex. J [Report of Interview of Joseph Tolbert]. Mr. Tolbert joined the banquets

department of the Washington Hilton Hotel, and he became of member of Local 25, which is aware

of his conviction and supports his request for relief . See Ex. A ¶8; Ex. C at 1-3. Defendant’s

community activities include helping other individuals with criminal convictions reintegrate into

society, and he intends to start a mentoring program at a high school. See Ex. A ¶ 8; Ex. B at 1;

Ex. C at 1-2. Six letters of recommendation from Defendant’s colleagues were received by the

Department of Labor. See Ex. A ¶ 9.

       The Government indicates that the Department of Labor does not oppose a reduction of

Defendant’s employment disability in this case. Furthermore, while the Government views the

Defendant’s conviction as serious and recognizes the importance of the employment disability

imposed pursuant to Section 504, in light of the Department of Labor’s investigation and the record

in this case, the Government is “satisfied that defendant has met his burden to show that granting

reduction relief in this case ‘would not be contrary’ to the purposes of the LMRDA, and [Defendant

has] ma[de] a ‘clear demonstration’ that he has been rehabilitated.” Govt’s Resp., ECF No. 1049,

at 10. Prior to this Court reducing the length of Defendant’s employment disability, however, the

Court shall hold a hearing. A hearing is required by statute for an exemption, see 29 U.S.C. §

504(a)(B), and should also be held for a reduction. See Cullison, 422 F. Supp. 2d at 71. The

United States indicates that it defers to the Court regarding appointment of counsel to represent

Mr. Tolbert.

       Accordingly, it is hereby this 31st day of December, 2019,



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       ORDERED that a hearing on Mr. Tolbert’s [1030] Motion to Reduce Length of Disability

shall be held on January 22, 2020, at 10:00 a.m. in Courtroom 28A. In light of the fact that the

Government does not oppose Mr. Tolbert’s [1030] Motion, the Court finds that Mr. Tolbert may

appear pro se.    As discussed in this Memorandum Opinion and Order, Mr. Tolbert will

demonstrate that granting relief would “not be contrary to the purposes” of the LMRDA, and he

must make a “clear demonstration” that he has been rehabilitated for purposes of any position

prohibited by Section 504(a). Notice of the hearing will be provided to the Secretary of Labor and

to counsel for the Government in accordance with 29 U.S.C. Section 504 (a), and notice will be

provided to Mr. Tolbert via overnight mail.



                                                    ______________/s/________________
                                                    COLLEEN KOLLAR-KOTELLY
                                                    UNITED STATES DISTRICT JUDGE




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