Terrance -v- City of Geneva

8-31-2011 New York:

Terrance -v- City of Geneva
799 F.Supp.2d 250 (2011)

Plaintiff Danny Terrance (“Terrance”) has filed a complaint against Defendant City of Geneva, New York (“the City”), requesting a declaration that the City of Geneva Municipal Code, Part II, General Legislation, Chapter 285 (“Chapter 285") is unconstitutional. Terrance also seeks an injunction against the City’s enforcement of Chapter 285. The City has filed a pre-answer motion to dismiss under Fed. R. Civ. P. 12(b)(6).

Conclusion: The Court agrees with the cogent and thorough opinions of the New York State courts discussed above that the State's legislative pronouncements to date establish that the regulation and management of sex offenders (including sex offender residency restrictions) is the exclusive province of the State. Thus, for the reasons discussed above, the Chapter 285 (City of Geneva Municipal Code, Part II, General Legislation, Chapter 285) is preempted by New York State Law and will not be given effect.

Accordingly, judgment in favor of Plaintiff is granted to the extent that Chapter 285 is declared invalid and will not be given effect. Because of this disposition, the Court need not rule on Plaintiff’s Federal constitutional claims. Defendant’s motion to dismiss is hereby dismissed as moot. SO ORDERED. Article: Geneva can't pre-empt state SORA residency laws, says U.S. District

Fourth Amendment Remedies and Development of the Law: A Comment on Camreta v. Greene and Davis v. United States

August 2011:

Abstract:
This essay considers how the Supreme Court's recent limits on remedies for Fourth Amendment violations threatens the future development of Fourth Amendment law. It focuses on two decisions from the October 2010 Supreme Court Term: Camreta v. Greene, 131 S. Ct. 2020 (2011), and Davis v. United States, 131 S.Ct. 2419 (2011). Both Camreta and Davis reflect an optimistic view that Fourth Amendment remedies can be limited without substantially inhibiting the proper development of the law. The essay suggest that development of Fourth Amendment law requires more robust remedies to create cases and controversies and provide incentives to litigate claims. It concludes by considering how the Supreme Court might best foster law-development in a regime of limited Fourth Amendment remedies.

..Source.. by Orin S. Kerr, George Washington University - Law School

Doe v State of Alaska

7-25-2008 Alaska:

Doe v State of Alaska
(189 P.3d 999 (2008))

This is 5 years after the U.S. Supreme court Alaska case of Smith v Doe. Given the state supreme court now feels ASORA is unconstitutional is proof that registration is now further punishment, given it is coupled with many other newer laws affecting registrants.

The Alaska statute known as the Alaska Sex Offender Registration Act (ASORA) requires persons convicted of sex offenses to register and periodically re-register with the Alaska Department of Corrections, the Alaska State Troopers, or local police, and disclose detailed personal information, some of which is not otherwise public. Most of the disclosed information is publicly disseminated and is published by the state on the internet.1

Does applying ASORA to "John Doe," who committed his crime and was convicted and sentenced before ASORA was enacted, violate the ex post facto clause of the Alaska Constitution? We conclude that it does because ASORA imposes burdens that have the effect of adding punishment beyond what could be imposed when the crime was committed.

We therefore hold that ASORA's registration requirement does not apply to persons who committed their crimes before ASORA became effective, and reverse the superior court order granting final judgment in favor of the state and against Doe.

Article: Offender won't have to register

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PDF Here

USA -v- Smith

6-13-2007 West Virginia:

USA -v- Smith
528 F.Supp.2d 615 (2007)


On November 16, 1995, Mr. Smith was convicted of three counts of second degree sexual assault in violation of section 61-8B-4 of the West Virginia Code. On July 31, 1996, he was sentenced to three concurrent terms of not less than ten nor more than twenty-five years imprisonment. At the time of his release on parole on August 8, 2005, he was given notice of his obligation to register as a sex offender under West Virginia law.

The defendant traveled to Florida in July 2006. On July 27, 2006 President Bush signed into law the Adam Walsh Child Protection and Safety Act, which contains the Sex Offender Registration and Notification Act ("SORNA"). Later, the defendant traveled to Illinois. Sometime prior to November 6, 2006, the defendant returned to Florida. He did not register as a sex offender in Illinois or Florida, in violation of West Virginia law. He was arrested in Florida as a fugitive on November 24, 2006. The underlying charges were violations of his state parole and the West Virginia offense of failing to register as a sex offender. On April 24, 2007, a federal grand jury sitting in Huntington, West Virginia, returned a one-count indictment charging the defendant with a violation of 18 U.S.C. § 2250 on November 24, 2006 by "knowingly fail [ing] to register and update his registration as required by the Sex Offender Registration and Notification Act." On May 24, 2007, the defendant filed a motion in this court to dismiss the indictment.

In his motion to dismiss, the defendant challenges the application and constitutionality of 18 U.S.C. § 2250. He argues that SORNA was not applicable to him at the time the indictment alleges he failed to register as a sex offender. Alternatively, he argues that the statute is unconstitutional in that it violates the nondelegation doctrine, the due process clause, and the commerce clause.

I FIND that the statute as enacted in July 2006 was not retroactive on its face. I further FIND that Congress assigned the question of retroactivity under the statute to the Attorney General. The Attorney General did not promulgate any regulations with respect to retroactivity until February 2007. The statute, the Attorney General’s interim rule, and the Guidelines all support my conclusion that defendant was not obligated to register under the statute as enacted in July 2006. Accordingly, I GRANT the defendant’s motion to dismiss. I find it unnecessary to address the constitutional questions raised by the defendant. Article: Congratulations to AFPD Ed Weiss who scored a dismissal of a failure to register prosecution brought under SORNA in the S.D. of W.Va!

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State v Reid

1-22-2007 New Jersey:

State v Reid (Interesting, ISP herein had nothing to do w/FSO)

The State appeals, pursuant to leave granted, from an order suppressing evidence obtained from Comcast Internet Service, the internet service provider (ISP) for defendant Shirley Reid. The evidence consisted of information on file with Comcast that identified defendant as the user of a coded screen name.1 Addressing an issue of first impression, we conclude that defendant had an expectation of privacy under our State Constitution with respect to this identifying information that permitted her to challenge the manner in which it was obtained by the police. Since we also conclude that the method used by the police was unlawful, we affirm the order of suppression. Article: Supreme Court rules Internet user has right to privacy

Hyle v Porter

2-20-2008 Ohio:

Hyle v Porter

Hyle v Porter: Because R.C. 2950.031 was not expressly made retrospective, it does not apply to an offender who bought his home and committed his offense before the effective date of the statute.

The First District Court of Appeals found its judgment in this case to be in conflict with the judgment of the Second District Court of Appeals in Nasal v. Dover, 169 Ohio App.3d 262, 2006-Ohio-5584, 862 N.E.2d 571, and certified the record to this court for review and final determination. We determined that a conflict exists on the following issue: “Whether R.C. 2950.031—Ohio’s residency-restriction statute prohibiting certain sexually oriented offenders from living within 1,000 feet of a school—can be applied to an offender who had bought his home and committed his offense before July 31, 2003 (the effective date of the statute).” 112 Ohio St.3d 1487, 2007-Ohio-724, 862 N.E.2d 115.

Doe No:8725 v Sex Offender Registry Bd

3-14-2008 Massachusetts:

Doe No:8725 v Sex Offender Registry Bd

On September 13, 1979, the plaintiff, John Doe, then twenty-two years of age, tendered an Alford plea, see North Carolina v. Alford,400 U.S. 25 (1970), to a charge of rape. G. L. c. 265, § 22.1 He was sentenced to a two-year term of probation which he completed without incident on September 9, 1981. Twenty-two years later, on November 10, 2003, the Sex Offender Registry Board (board) notified Doe that pursuant to G. L. c. 6, §§ 178C-178Q, the sex offender registration law (registration law),2 it was reviewing his case to make a recommendation regarding his duty to register with the board and his classification level. See G. L. c. 6, § 178L (1); 803 Code Mass. Regs. § 1.01 (2002).

Doe was given thirty days to submit documentary evidence "relative to his risk of reoffense, the degree of dangerousness posed to the public and his duty to register." 803 Code Mass. Regs. § 1.05(1) (2002). Doe submitted documentary evidence to the board to the effect that he had established a stable life in the community, with a strong network of family and friends, and that he had been married for twenty-one years, had raised three accomplished children, and had maintained steady employment with increasing levels of responsibility over the years. Doe had not been convicted of any crime since his 1981 discharge from probation.

On December 31, 2003, the board recommended that Doe be required to register as a level one sex offender. A level one classification is the classification given to sex offenders whose risk of reoffense is low.3 Doe was informed of his right to request an evidentiary hearing to challenge his classification and registration obligation. See G. L. c. 6, § 178L (1); 803 Code Mass. Regs. §§ 1.06(1), 1.07(1) (2002). On January 11, 2004, Doe requested a hearing, and the matter was assigned to a hearing examiner.

Conclusion. When considering the retroactive application of civil statutes, we balance "opposing considerations." Leibovich v. Antonellis, supra at 577, quoting American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., supra at 189-190. Here, the requirements the registration law would impose on Doe are extensive and permanent. Moreover, if Doe can establish that he poses neither a risk of reoffense nor a danger to the communities the law was intended to protect, the imposition of the registration law's requirements on him would not further the law's substantial and important purposes.

Consequently, the retroactive imposition of the registration requirement without an opportunity to overcome the conclusive presumption of dangerousness that flows solely from Doe's conviction, violates his right to due process under the Massachusetts Constitution. Doe must be granted the hearing he has requested, in accordance with the procedure set forth in G. L. c. 6, § 178L, where he will have the opportunity to demonstrate that he neither poses a risk of reoffense nor is a current danger to vulnerable members of our communities. The Superior Court decision is vacated. The case is remanded to the board for an evidentiary hearing. Article: SJC says low-level sex offenders have right to hearing

Doe v Prosecutor, Marion CountyDoe v Prosecutor, Marion County

6-24-2008 Indiana:

Doe v Prosecutor, Marion County
566 F.Supp.2d 862 (2008)

In 2008 the Indiana General Assembly enacted Public Law 119, which amended many of the requirements imposed upon those persons who must register with the state as sex offenders and violent offenders. This case presents a challenge to one of the new requirements as it would apply to those who have completed their sentences and are no longer on parole, probation, or any other form of court supervision. Under the new statute, set to take effect on July 1, 2008, all those who must register must also consent to the search of their personal computers or devices with internet capability at any time, and they must consent to installation on the same devices, at their expense, of hardware or software to monitor their internet use. Ind. P.L. 119-2008 § 6 (2008) (SEA 258), to be codified in Ind. Code § 11-8-8-8(b) (effective July 1, 2008). Failure to “consent” to these measures is itself a felony.

Pursuant to the parties’ stipulation, the court certified a plaintiff class under Rule 23(b)(2) of the Federal Rules of Civil Procedure. Plaintiffs are a class of “all persons, current and future, who are required to register as sex or violent offenders pursuant to Indiana law and who are not currently on parole or probation or court supervision.” Plaintiffs allege that the new law violates their rights under the Fourth Amendment to the United States Constitution prohibiting unreasonable searches and requiring probable cause for issuance of a warrant. Plaintiffs seek a declaration that the new consent-to-search requirements are unconstitutional and an injunction against their enforcement. The court heard argument on a stipulated factual record on May 30, 2008, and now states its findings of fact and conclusions of law pursuant to Rules 52 and 65 of the Federal Rules of Civil Procedure. Substance shall govern whether an item is deemed a finding of fact or conclusion of law.

Section 8(b), however well intentioned, seeks to achieve law enforcement goals with means that violate the Fourth Amendment, at least as applied to the plaintiff class, offenders who have completed their criminal sentences and who are no longer under any form of parole, probation, or other court supervision. These plaintiffs have rights under the Fourth Amendment. The State may not force them to waive those rights under threat of criminal prosecution for failing or refusing to do so. Final declaratory relief should be sufficient here, in a case brought as a Rule 23(b)(2) class action against all prosecuting attorneys in Indiana, to protect the plaintiffs’ Fourth Amendment rights. The court does not see a need at this time for the somewhat more intrusive relief of a permanent injunction. See generally Dickinson v. Indiana State Election Bd., 933 F.2d 497, 503 (7th Cir. 1991) (comparing declaratory and injunctive relief); see also 28 U.S.C. § 2202 (authorizing further “necessary or proper relief” based on declaratory judgment); Pro-Eco, Inc. v. Board of Commissioners of Jay County, 57 F.3d 505 (7th Cir. 1995) (affirming denial of damages for plaintiff after original declaratory judgment had sufficed to prevent enforcement of invalid ordinance). The court will enter a final declaratory judgment stating that the newly enacted Indiana Code § 11-8-8-8(b) may not be applied to members of the plaintiff class.

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Federal court sides with ACLU in sex offender consent-to-search case

6-24-2008 Indiana:

INDIANAPOLIS - A federal judge has ruled that a recently-passed state law to monitor the computer habits of sex offenders long after they have served their sentences is unconstitutional.

U.S. District Court Judge David Hamilton in Indianapolis ruled Tuesday in favor of the plaintiffs in the class-action lawsuit that was brought April 3 by the American Civil Liberties Union of Indiana.

The ACLU had challenged as unconstitutional a law the Legislature passed this year, Senate Enrolled Act 258. It was supposed to take effect July 1 and would have required convicted sex offenders, who already have to sign the state's sex-offender registry, to also provide authorities with their email addresses and Internet usernames.

Offenders also would have had to sign a consent form allowing police to search their computers or other Web-ready devices at any time, and to install software that monitored such activity, the law said.

The ACLU sued on behalf of two convicted sex offenders, one in Marion County and one in Scott County. It named all 92 county prosecutors as defendants.

In a 52-page ruling issued late today, federal judge Hamilton ruled that the new statute, as written, is unconstitutional.

"The new law forces an unconstitutional choice upon these plaintiffs. They must choose now between committing a new crime by refusing to consent and giving up their Fourth Amendment rights to privacy and security in their homes, their 'papers,' and their effects," Hamilton wrote. "The unprecedented new law, however well-intentioned it may be, violates the Fourth Amendment rights of the plaintiff class, who have completed their sentences and are no longer on probation, parole, or any other kind of court supervision."

Hamilton issued a declaratory judgment stating the consent to search requirements may not be applied to convicted sex offenders.

The state could appeal the ruling to the U.S. 7th Circuit Court of Appeals. ...News Source... by Courier-Press Staff Reports


Attorney General Steve Carter says Appeal not Prudent
on a Law Recently Declared Unconstitutional by a Federal District Court
(INDIANAPOLIS, IN) - Attorney General Steve Carter will not appeal a federal district court’s ruling that a new law requiring registered sex offenders to consent to the unlimited search of their computers is unconstitutional.

"The court found the statute's authorization of unlimited searches of home computers without a warrant or probable cause to be unconstitutionally broad,” said Carter. “As we strive to create a safer online environment for our kids, we must identify more targeted investigative approaches and the attorney general’s office will work with legislators to do so in the session that convenes in November. We are all dedicated to protecting children from predators, but we must do so within the constitution.”

Additionally, Carter cites the need to balance the cost to taxpayers of an appeal. At this point in the controversy, taxpayers are responsible for thousands of dollars of attorney fees that will have to be paid to the American Civil Liberties Union.

“If we take the matter to the Court of Appeals and lose, that amount could approach $100,000 and the case would not be resolved when the legislature convenes in November. Legislators still would not have any further judicial guidance on how to modify the language that has been struck down” added Carter. “The better course is for the Attorney General’s Office to consult with legislators over the next few months to develop safeguards against predators that pass constitutional muster.”

Last month, United States District Court Judge David Hamilton issued an opinion stating that the new law, set to become effective July 1 was unconstitutional. In the Opinion he writes, “The unprecedented new law, however well-intentioned it may be, violates the Fourth Amendment rights of the plaintiff class, who have completed their sentences and are no longer on probation, parole, or any other kind of court supervision.”

Carter praised the other provisions of the new law enacted by the legislature that remain in effect. Those include the requirement for registered sex offenders to provide email addresses and Internet usernames to the Registry. Another provision makes Indiana the first state in the nation to ban registered offenders from using the same social networking sites that children use. The new statute makes it a felony if an offender is found using such sites. ..Source.. By Indiana AG Office

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PDF Here

Smith -v- Idaho

zzzzzzzzzzzzzzzzzzzzzzzzzzzzzz

USA v Valverde

12-27-2010 California:

USA v Valverde

UPDATE: Valverde has been appealed to the US Sup ct and they have denied the appeal, therefore this is a good decision to rely on as to the effective date of SORNA

The Government appeals a decision of the district court dismissing the indictment of Mark Anthony Valverde (“Valverde”) under the Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. § 16901 et seq., on the ground that the registration and penalty provisions of the statute under which Valverde was charged, 42 U.S.C. § 16913; 18 U.S.C. § 2250(a)(2)(B), are invalid exercises of congressional power under the Commerce Clause. U.S. Const. art. I, § 8, cl. 3. We stayed this matter pending a decision on that issue in United States v. George, ___ F.3d ___, No. 08-30339, 2010 WL 4291497 (9th Cir. 2010). Valverde contends in addition that no valid statute or properly promulgated rule made SORNA’s registration requirements applicable to him as of the time that he is charged with failing to register, specifically in January 2008.

We lift the stay issued pending the panel’s decision in George and reject Valverde’s Commerce Clause argument in light of that decision. We AFFIRM, however, the district court’s dismissal of the indictment. We do so on the separate ground that the Attorney General’s interim regulation of February 28, 2007 — applying SORNA’s registration requirements retroactively to sex offenders, such as Valverde, who were convicted before the statute’s enactment — did not comply with the notice and comment procedures of the Administrative Procedure Act (“APA”), and did not qualify for the “good cause” exemption under 5 U.S.C. § 553(d)(3). As a result, the retroactivity provision did not become effective until August 1, 2008 —30 days after its publication in the final SMART guidelines along with the Attorney General’s response to related public comments. Article: Sex Offender Registration Act Not Fully Retroactive

Doe -v- Shurtleff

10-26-2010 Utah:

Doe -v- Shurtleff
No. 09-4162.

10-26-2010 ORDER -and- 12-1-2010 ORDER

District Ct Order 8-20-2009

District Ct Decision 9-25-2008

In this case John Doe, a registered sex offender living in the state of Utah, appeals the district court's decision to allow enforcement of a Utah statute requiring all sex offenders living in Utah to register their "internet identifiers" and the corresponding websites with the state. We now uphold that decision based on our conclusion that the statute does not violate the First or Fourth Amendments or the Ex-Post Facto Clause of the United States Constitution, made applicable to Utah through the Fourteenth Amendment.

BACKGROUND
Appellant, proceeding anonymously as Mr. John Doe, was convicted by the United States military court system of sex offenses involving a minor and sentenced to eighteen months' imprisonment. After serving thirteen months of this sentence, Mr. Doe was released without being placed on probation or supervised release. However, as a resident of Utah and a convicted sex offender, Mr. Doe was still required to register with the Utah Department of Corrections, pursuant to Utah Code Ann. § 77-27-21.5 (West 2008). Among its many provisions, this registry law required Mr. Doe to provide all "Internet identifiers1 and the addresses [he] uses for routing or self-identification in Internet communications or postings." Id. § 77-27-21.5(14)(i).2 The statute also required that Mr. Doe provide "all online identifiers and passwords used to access" websites where he was using an online identifier, with the exception of identifiers used for employment or financial accounts. Id. § 77-27-21.5(12)(j) & (29).

Believing that these requirements violated his First and Fourth Amendment rights as well as the Ex Post Facto Clause of the United States Constitution, Mr. Doe refused to provide the requested information and brought a lawsuit challenging the law. Upon Mr. Doe's motion for summary judgment, the district court invalidated the statute based on its conclusion that the statute, which provided "no restrictions on how the [State] c[ould] use or disseminate registrants' internet information," improperly infringed on Mr. Doe's First Amendment right to anonymous speech. (Appellant's App. at 208.) Shortly after this ruling, the Utah legislature amended the statute. First, the legislature removed any requirement that offenders disclose their passwords, and second, it placed some limits on how a state official can use identifiers provided by an offender. Specifically, the statute now3 provides that

... ... ... ...

( Doe v Shurtleff at. el., 2010 WL 4188248 (U.S. Dist Court, the District of Utah 2008) (C.A.10 (Dec. 1, 2010), decision was appealed to the United States Supreme Court (SCOTUS). SCOTUS denied the Pet. for Cert. on March 7, 2011.

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Article: The 10th Cir Court of Appeals issues decision on "Internet anonymous free speech" of Utah's sex offenders

UPDATE 3-10-2011: Many thanks to the reader for this important update: "The Doe v Shurtleff at. el., 2010 WL 4188248 (C.A.10 (Dec. 1, 2010), decision was appealed to the United States Supreme Court (SCOTUS). SCOTUS denied the Pet. for Cert. on March 7, 2011. This does not mean that SCOTUS did agreed with the Tenth Circuit, it just means they will not hear the case. They are well aware that the White v. Baker decision out of Georgia says it is unconstitutional. There is a preliminary injunction in Doe v. Nebraska as well on this issue. A new lawsuit was filed in Feb. 2011 against New York's E-STOP as well."

From Wikipedia: Doe v. Shurtleff

From Jonathan D. Frieden: Law Requiring Convicted Sex Offender to Disclose All Internet Identities is Constitutional (Excellent Explanation by Lawyer)

See Also: Six Myths Why We Can't Manage Sex Offender's Computer/Internet Use

White -v- Baker

3-3-2010 Georgia:

White -v- Baker
696 F.Supp.2d 1289 (2010)

CONCLUSION: Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion for Preliminary Injunction [28] is GRANTED and the enforcement of O.C.G.A. § 42-1-12(a)(16) against Terrence J. White is ENJOINED

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PDF Here

Lemmon v Harris

6-28-2011 Indiana:

Lemmon v Harris (Need to read facts of case in decision)

A sex offender who committed his crimes before the Legislature created the status of "sexually violent predator" challenges that status being subsequently imposed upon him "by operation of law." We conclude that his status has in fact changed by operation of law and that this change does not violate Indiana‘s prohibition on ex post facto laws or doctrine of separation of powers.

People v Dowdy

7-11-2011 Michigan:

People v Dowdy (Not Favorable)

We granted leave to appeal in this case to determine whether homeless sex offenders are obligated to comply with the registration requirement imposed by the Sex Offenders Registration Act (SORA).1 Specifically, we consider whether homeless sex offenders have a "residence" or "domicile" such that they can comply with the statute's registration requirements.

We hold that homelessness is not a bar to compliance with SORA because homelessness does not preclude an offender from entering a police station and reporting to a law enforcement agency regarding the offender's residence or domicile. The Legislature intended SORA to be a comprehensive system that requires all sex offenders to register, whether homeless or otherwise. Therefore, we reverse the Court of Appeals' judgment and remand this case for trial.

Fross v. County Of Allegheny

5-25-2011 Pennsylvania:

Fross v. County Of Allegheny
20 A.3d 1193 (2011)
(Good decision, eliminates local residency laws. Only affects folks on parole or probation though)

Lower court decision 2009:
Fross v. County Of Allegheny
Civil Action No. 08-1405.

Upon certification by the U.S. Court of Appeals for the Third Circuit, we accepted for review the issue of whether Allegheny County Ordinance No. 39-07-OR (the "Ordinance"), which imposes residency restrictions on certain offenders, is preempted by the Pennsylvania Prisons and Parole Code, 61 Pa.C.S. § 101 et seq., ("Parole Code") and/or by the Pennsylvania Sentencing Code, 42 Pa.C.S. § 9701 et seq. ("Sentencing Code").

The Ordinance applies to offenders subject to the registration requirements of those provisions of the Sentencing Code collectively known as Megan's Law. See 42 Pa.C.S. §§ 9791-9792; 9795.1-9799.4; 9979.4-9979.9.1 For the reasons that follow, we hold that the Ordinance impedes the accomplishment of the full objectives of the General Assembly, as expressed in the Sentencing and Parole Codes, and is, therefore, invalid pursuant to our conflict preemption doctrine.

Vida -v- Indiana

5-6-2011 Indiana:

Vida -v- Indiana

Jamie L. Vida appeals from the denial of his verified petition for removal from the Indiana Sex Offender Registry (“the Registry”). Vida asserts, and the State properly concedes, that the Indiana Sex Offender Registration Act (“the Act”) as applied to him violates the ex post facto clause of the Indiana Constitution because he committed the sex offenses at issue before the Act became effective. Therefore, we reverse and remand with instructions to grant Vida‟s petition.

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Convicted Elkhart rapist doesn't have to register for sex offender list

5-11-2011 Indiana:

GOSHEN -- A convicted Elkhart rapist doesn't have to be registered as a sex offender, an appeals court ruled Friday in overturning a local judge's ruling.

____., should be taken off the Indiana Sex and Violent Offender Registry, the Indiana Court of Appeals ruled.

Mann -v- Commonwealth

3-24-2011 Kentucky:

Mann -v- Commonwealth (Very odd case)

Appellant, John Mann, appeals as a matter of right1 from a judgment entered upon a jury verdict convicting him of first-degree rape, first-degree sodomy, first-degree robbery, and of being a first degree persistent felony offender. For these crimes he was sentenced to a total of forty years' imprisonment.

Appellant now raises three issues in this appeal: (1) that a mistrial should have been granted when, in violation of the trial court's rulings, a police officer testified that Appellant's accomplice, in an out-of-court interview, identified Appellant as a participant in the crimes; (2) that the trial court's imposition of a post-incarceration, five-year period of conditional discharge pursuant to KRS 532.043 violates ex post facto principles; and (3) that the trial court's imposition of sex offender residency restrictions pursuant to KRS 17.545 violates ex post facto principles. The Commonwealth concedes that Appellant is entitled to relief with respect to imposition of post-incarceration conditional discharge and residency restrictions.

For the reason set forth below, we affirm Appellant's conviction, but agree that ex post facto considerations do not permit the imposition of a fiveyear period of conditional discharge or the imposition of the current sex offender residency restrictions. We accordingly remand for entry of a new judgment excluding these terms and conditions.

Supreme Ex post facto clause violated two ways: A) Imposition of 5-yr period of conditional discharge (before a certain date was not allowed); B) Residency law requirements also (before a certain date was not allowed).

Evans -v- Ohio

2008 Ohio:

Evans -v- Ohio [ Evans ]

SB 10 violates retroactivity clause of Ohio Constitution and ex post facto clause of U.S. Constitution; sexual predator laws are classic forms of punishment, residency restrictions operate as a disability, sexual predator laws further traditional notions of punishment, AWA not tailored to meet non-punitive purpose

Wallace v State

4-30-2009 Indiana:

Wallace v State
(905 N.E.2d 371 (2009))

The statutes collectively referred to as the Indiana Sex Offender Registration Act ("Act") require defendants convicted of sex and certain other offenses to register with local law enforcement agencies and to disclose detailed personal information, some of which is not otherwise public. In this case we consider a claim that the Act constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution because it applies to a defendant who committed his offense before the statutes were enacted. We conclude that as applied in this case the Act violates the constitutional provision.

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The Indiana Supreme Ct - under certain circumstances- Declares Sex Offender Registration an Ex Post Facto Violation

4-30-2009 Indiana:

In Wallace -v- Indiana (No. 49S02-0803-CR-138) 54-30-2009 the high court held:

Richard Wallace was charged, convicted, and served the sentence for his crime before the statutes collectively referred to as the Indiana Sex Offender Registration Act were enacted. We conclude that as applied to Wallace, the Act violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed. We therefore reverse the judgment of the trial court.

The major difference between this holding and so many others. including those of other states is, that THIS TIME the Indiana Supreme court reviewed the state's sex offender registration laws INCLUDING ALL OF TODAY'S INDIANA'S COLLATERAL ATTACHMENTS, where so man other courts merely followed the holding of other earlier courts which DID NOT review sex offender registration laws IN A PRESENT DAY'S LIGHT.

Facts and Procedural History
In 1988, Richard Wallace was charged with one count of child molesting as a Class B felony and one count of child molesting as a Class C felony. Under terms of a plea agreement Wallace pleaded guilty to the Class C felony count on February 15, 1989. The trial court imposed a five-year suspended sentence with various conditions of probation. Wallace completed probation in 1992. Two years later the Indiana Legislature passed the Act that, among other things, required probationers and parolees convicted of child molesting on or after June 30, 1994 to register as sex offenders. In 2001 the Act was amended to require all offenders convicted of certain sex offenses to register as sex offenders regardless of conviction date.

In 2003, Wallace.s ex-wife notified authorities that Wallace had been convicted of a sex offense but had never registered as an offender. The Sex Offender Registration Coordinator for the Indianapolis Police Department investigated the matter, concluded Wallace was required to register, and sent Wallace a letter to that effect. Wallace responded to the Coordinator on December 31, 2003, and insisted that he did not have to register as a sex offender because the plea agreement executed in 1989 did not require him to do so.

After Wallace did not register, he was charged with failing to register as a sex offender as a Class D felony. Wallace subsequently filed a motion to dismiss, which the trial court denied. Following a trial by jury on January 31, 2007, he was found guilty as charged. The trial court sentenced Wallace to 545 days of incarceration, all suspended to probation. He appealed raising three claims: (1) the plea agreement foreclosed the State.s ability to prosecute him for failing to register as a sex offender, (2) the evidence was insufficient to support the conviction, and (3) the Act violates the ex post facto provisions of both the Indiana and federal Constitutions. The Court of Appeals affirmed the judgment of the trial court. Wallace v. State, 878 N.E.2d 1269, 1277 (Ind. Ct. App. 2008).

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Rulings affect sex offender state registry

5-2-2009 Indiana:

Court decision might remove names

A pair of rulings by the Indiana Supreme Court might bring dramatic changes to who is listed on Indiana’s Sex and Violent Offender Registry.

One ruling deals with sex offenders who committed their crimes and were sentenced before the state’s sex offender registry laws existed. The other ruling, involving an Allen County case, deals with whether sex offenders’ listings on the registry are subject to further changes to the registry.

There are 753 people on Allen County’s sex and violent offender registry.

In the first ruling, the state’s highest court overturned Richard P. Wallace’s 2000 conviction for failing to register as a sex offender.

Wallace was convicted of Class C felony child molesting in 1989, five years before Indiana passed its version of the Sex Offender Registration Act, known as Zachary’s Law.

In 2001, the state legislature amended the law to include all people convicted of certain sex offenses regardless of their conviction date. And in 2003, Wallace’s ex-wife told authorities that Wallace never registered as a sex offender.

Wallace was convicted, but he appealed, arguing in part that the changes to the registry violated the state’s Constitution by creating an “after the fact” punishment.

And the state’s high court agreed.

“Wallace was charged, convicted and served the sentence for his crime before the statutes collectively referred to as the Indiana Sex Offender Registration Act were enacted,” Justice Robert D. Rucker wrote.

The changes to the act violated the state’s Constitution by imposing burdens on Wallace that added punishment beyond what could have been imposed when his crime was committed, Rucker wrote.

In the second case, the court upheld a ruling by Allen Superior Court Judge Fran Gull involving Allen County resident Todd Jensen.

Gull had ruled that Jensen must register for life as a sexually violent predator even though the provision in the law that created that designation did not exist when he was convicted.

Jensen qualified as a “sexually violent predator” because of his conviction for vicarious sexual gratification, one of the crimes included under the designation by the state legislature in a 2006 change to the registry law.

He objected to the requirement and asked Gull to consider his case. She ruled he was a sexually violent predator and as such was subject to the changes in the registry. The 2006 changes contained no limitation on the date of conviction, according to court documents.

Jensen appealed, using in part arguments similar to the ones Wallace used, that the requirement created a punishment after the fact. In a split decision, the appellate court agreed and sent the case back to Gull to limit Jensen’s registration requirement to 10 years.

But in a 3-2 decision, the state Supreme Court upheld Gull’s ruling that Jensen should have to register as a sexually violent predator for life.

Gull on Friday said she could not comment on either ruling because she doesn’t have a certified copy of them and there are matters that could be further appealed.

Looking ahead

For now, those tasked with monitoring the registry will wait to see what effect the rulings will have on how the registry is handled. But they are sure it will lead to some changes.

“It’s going to create a lot of work in the next few weeks because we’ll have to go through each file and see what box these offenders are going to fit into,” said Allen County Cpl. Jeff Shimkus, who handles the registry for Allen County.

He will wait to see how the Indiana Department of Correction interprets the ruling and wants to put it into practice. Shimkus also expects a meeting with the Allen County Prosecutor’s Office.

“As police officers, we’re the gatekeepers of the criminal justice system,” Shimkus said. “We enforce the law the way it’s written.”

The Indiana Department of Correction will comply with the changes, but officials there are still trying to figure out what it all means.

“We don’t know yet how many offenders this will affect,” said Doug Garrison, DOC spokesman. “If it means taking offenders off the registry, then that’s what we’ll do.” ..News Source.. by Rebecca S. Green, The Journal Gazette

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Molester registry change on trial


5-16-2008 Indiana:

INDIANAPOLIS – Attorneys for two convicted child molesters argued before the Indiana Supreme Court on Thursday that legislators violated the Indiana Constitution when they retroactively broadened a law regarding sex offender-registry requirements.

Todd Jensen pleaded guilty in 2000 in Allen Superior Court to one count of vicarious sexual gratification and one count of child molesting.

He served his three-year prison term and completed another three years of probation. He was also required under a separate state law at the time to register as a sex offender for 10 years.

But in 2006, he was notified by the Allen County Sheriff’s Department that he was now considered a sexually violent predator and would have to register for life. This includes checking in with the department every 90 days and submitting to house visits by authorities several times a year.

Jensen has not been convicted of any new crime, but the legislature decided in 2006 to change the definition of sexually violent predator. A judge is no longer required to have expert evaluations to make that determination. Instead, anyone convicted of a specified list of sexual offenses was automatically shifted to the status of sexually violent predator and the lifetime registry.

“The state says the registry is civil in nature,” attorney Randy Fisher of Fort Wayne said. But he noted that each year the legislature adds or changes requirements of the registry. “There has to be a threshold. It is clearly punitive.”

Fisher represents Jensen, who in 2006 asked for a determination from a local judge on his registration status and was found under the new law to be a sexually violent predator. But the Indiana Court of Appeals ruled in December that the law violated ex post facto prohibitions in the state and federal constitutions.

Specifically, the court found that the new law retroactively changed the elements or facts required to find Jensen a sexually violent predator.

The Indiana Supreme Court vacated that decision (Todd Jensen) and took the case up Thursday along with a similar one (Richard Wallace) out of Marion County.

The case is the latest battle over whether lawmakers have been too aggressive in their desire to monitor convicted sex offenders.

On Tuesday, the Indiana Court of Appeals ruled (in Anthony Pollard) that the state cannot force convicted sex offenders who live near schools or other places frequented by children to move if they owned their homes before passage of a state law restricting their residency.

The court said Tuesday that the 2006 law – that prohibits convicted sex offenders from living within 1,000 feet of a school, public park or youth program center – was an unconstitutional ex post facto law in that it punishes sex offenders for behavior that wasn’t illegal when it was committed.

The crux of Thursday’s argument was whether the state’s sex offender registry is punitive in nature or increases punishment for old crimes.

“The intent isn’t to attach additional punishment,” said J.T. Whitehead, who appeared on behalf of the Attorney General’s Office. “It is to put the rest of us on notice and make it easier for police to track these offenders.”

But Fisher said the registry requires those convicted to take affirmative steps – sign up, provide information, pay fees and carry ID at all times – and if they don’t they can be charged with a criminal violation.

“They are like additional conditions of probation and sentence, and it never ends,” said Kathleen Sweeney, an attorney representing the defendant in the Marion County case.

At one point, Justice Theodore Boehm asked Whitehead whether it is unfairly burdensome to require someone who has had no contact with the criminal justice system for years to suddenly fall under new requirements as a result of a decades-old conviction.

“What about basic fairness,” Boehm asked. “Isn’t there something wrong with that picture?”

Whitehead responded, “How the process feels isn’t important” under previous U.S. Supreme Court rulings.

Sen. Tom Wyss, R-Fort Wayne, who authored the sexually violent predator change in 2006, said lawyers at the time told legislators the law would not be unconstitutional.

“I consider that an absolute standard of assuring parents and children that we know who this person is and where they are, not necessarily punishment,” he said.

“You can look at it as going back on somebody and making something retroactive, but when someone commits that abhorrent of an act then I really have no sympathy for them.” ..more.. by Niki Kelly

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PDF Here

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Hevner v Indiana

1-6-2010 Indiana:

Hevner v Indiana
919 N.E.2d 109 (2010)

We consider a claim that the Indiana Sex Offender Registration Act (“the Act”) constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution because it requires the defendant to register as a sex offender, when the Act contained no such requirement at the time the defendant committed the triggering offense.

We reverse that portion of the trial court‟s sentencing order directing Hevner to register as a sex offender. This cause is remanded for further proceedings.

... ... ...

Because of the ex post facto provisions of the Indiana Constitution, the trial court may not order Hevner to register as a sex offender. And for the same reasons we discussed in State v. Pollard, Hevner is not subject to prosecution for violation of Ind.Code § 35-42-4-11, the residency restriction statute. Pollard,908 N.E.2d 1145, 1154 (Ind.2009) (noting that the defendant was charged and convicted for a crime qualifying him as an offender against children before the residency restriction statute was enacted and thus as applied violated the prohibition of the ex post facto laws contained in the Indiana Constitution).

However, having been convicted of possession of child pornography, a sex offense at the time Hevner committed his crime, he is subject to conditions of probation that "have a reasonable relationship to the treatment of the accused and the protection of the public." Hale v. State,888 N.E.2d 314, 319 (Ind.Ct.App. 2008), trans. denied. We cannot conclude that prohibiting Hevner from residing within 1,000 feet of school property is an unreasonable condition.

Conclusion
We reverse that portion of the trial court's sentencing order directing Hevner to register as a sex offender. This cause is remanded for further proceedings.

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1-7-2010 Indiana:

In Gary M. Hevner v. State, filed late this afternoon, a 6-page, 5-0 opinion, the Supreme Court concludes: "Because of the ex post facto provisions of the Indiana Constitution, the trial court may not order Hevner to register as a sex offender," reversing the trial court decision, which had been affirmed by this March 31, 2009 NFP Court of Appeals opinion.

We consider a claim that the Indiana Sex Offender Registration Act (“the Act”) constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution because it requires the defendant to register as a sex offender, when the Act contained no such requirement at the time the defendant committed the triggering offense. ***

At the time Hevner committed his crime, a person convicted for the first time of possessing child pornography was not considered a sex offender and thus was not required to register as such. * * * While Hevner was awaiting trial in 2006, the Legislature repealed Ind. Code § 5-2-12-4 and recodified the statute at Ind. Code § 11-8-8-4.5. See Pub. L. No. 140-2006, §§ 13, 41. Effective July 1, 2007 – before Hevner was convicted but after he was charged – the legislature amended the statute to require anyone convicted of possession of child pornography to register as a sex offender regardless of whether the person had accumulated a prior unrelated conviction. * * * Thus, at the time of his conviction, Hevner was required to register as a sex offender. * * *

As a general rule, a court must sentence a defendant under the statute in effect on the date the defendant committed the offense. Biddinger v. State, 868 N.E.2d 407, 411 n.6 (Ind. 2007). Between October and November of 2005, when Hevner committed the crime of possession of child pornography, only persons convicted of a prior possession offense were required to register as sex offenders under the Act. By the time of Hevner‟s trial and sentencing the Legislature had amended the Act making it applicable to first time offenders. As applied to Hevner the Act violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when the crime was committed. * * *

Because of the ex post facto provisions of the Indiana Constitution, the trial court may not order Hevner to register as a sex offender. And for the same reasons we discussed in State v. Pollard, Hevner is not subject to prosecution for violation of Ind. Code § 35-42-4-11, the residency restriction statute. * * *

However, having been convicted of possession of child pornography, a sex offense at the time Hevner committed his crime, he is subject to conditions of probation that “have a reasonable relationship to the treatment of the accused and the protection of the public.” Hale v. State, 888 N.E.2d 314, 319 (Ind. Ct. App. 2008), trans. denied. We cannot conclude that prohibiting Hevner from residing within 1,000 feet of school property is an unreasonable condition.

We reverse that portion of the trial court‟s sentencing order directing Hevner to register as a sex offender. This cause is remanded for further proceedings. ..Source.. by Marcia Oddi of the Indiana Law Blog

Indiana v Pollard

5-13-2008 Indiana:

Indiana v Pollard

The State of Indiana appeals Blackford Superior Court’s dismissal of the charge of Class D felony sex offender residency offense against Anthony Pollard (“Pollard”). The State argues that the trial court erred when it found that Indiana Code section 35-42-4-11, as applied to Pollard, violated Article 1, Section 24 of the Indiana Constitution. We affirm.

For all these reasons, we conclude that the trial court did not err when it found that Indiana Code section 35-42-4-11 violated Article 1, section 24 of the Indiana Constitution, as applied to Pollard. Therefore, we affirm the trial court’s dismissal of the Class D felony charge filed against Pollard pursuant to that statute. Article: Muddying state's sex registry law

Kentucky v Baker

11-2-2009 Kentucky:

Kentucky v Baker (U.S. Sup Court (Cert Denied))

The question of law to be answered is whether KRS 17.545, which restricts where registered sex offenders may live, may be applied to those who committed their offenses prior to July 12, 2006, the effective date of the statute. We hold that it may not. Even though the General Assembly did not intend the statute to be punitive, the residency restrictions are so punitive in effect as to negate any intention to deem them civil. Therefore, the retroactive application of KRS 17 .545 is an ex post facto punishment, which violates Article 1, Section 10 of the United States Constitution, and Section 19(1) of the Kentucky Constitution .

Article: State to appeal ruling limiting sex-offender law

Oklahoma v Timothy Lynn Smith

10-28-2010 Oklahoma:

Oklahoma v Timothy Lynn Smith

Appellee, Timothy Lynn Smith, was charged by Information February, 18, 2009, in the District Court of Roger Mills County, Case No. CF-2009-4, with Failure To Register As Sex Offender (57 O.S. 583 (2008)). At preliminary hearing, held October 14, 2009, the magistrate refused to bind Appellee over, finding that the State had presented insufficient evidence to support the charge. The magistrate also found that, at the time that Appellee entered his plea and received a deferred sentence, the Sex Offender Registration Act (57 O.S. 582 / 57 O.S. 583 (1998)) did not require Appellee to register. Alternatively, the magistrate found that if the current statutes, requiring registration, were applied to Appellee such application would violate the constitutional prohibitions against ex post facto laws and bills of attainder.

In the present case, the amendments to the statutes are substantive. The amendments do no simply alter or clarify the procedure or method of registration. If the amendments were given retroactive effect they would create an obligation that Appellee register. As retroactive application of the amended statutes would alter Appellee's obligations, the amendments are substantive and, without a clear expression from the Legislature that the amendments were to be given retroactive effect, must only be applied prospectively.

The amendments to the Sex Offenders Registration Act which became effective after Appellee's plea and the order deferring sentence are not applicable to him. Because the amendments are not applicable to Appellee, we do not decide the issues of whether the Sex Offender Registration Act is punitive in violation of the Ex Post Facto Clause or the prohibition against bills of attainder as applied to Appellee.

Therefore, finding the District Court properly determined that the amendments to the Sex Offender Registration Act which went into effect after Appellee's plea and the order deferring sentence did not apply to Appellee, the State's appeal is denied and the matter is remanded to the District Court for further proceedings consistent with this Opinion.

Smith -v- Louisiana

1-24-2012 Louisiana:

Smith v Louisiana
(Supreme Court)

Smith v Louisiana
(1 Cir Court of Appeals, 3-26-2010 Unpublished)

Smith v Louisiana
(Trial Court)

From Supreme Court Decision:
This case presents questions of statutory interpretation regarding amendments to Louisiana's sex offender registration statutes, La. Rev. Stat. 15:540 et seq. We granted the State of Louisiana's writ application to determine whether the court of appeal erred in finding that the amendments did not apply to the offender in this case, because application of those amended statutes would violate the prohibition set forth in the ex post facto clause of the state and federal constitutions.

The offender in this case was convicted of two sex offenses prior to the enactment of the amendments to the sex offender registration statutes but before his initial registration period had expired. The amendments at issue here increased the duration an offender is obligated to register and created a new requirement for sex offender designation codes on drivers' licenses and identification cards.

For the reasons set forth below, we reverse the ruling of the court of appeal, which found the 1999 amendment to former La. Rev. Stat. 15:542.1(H), providing for a lifetime requirement to register for multiple offenders, did not apply to persons convicted of a sex offense prior to July 1997, and that the restriction code to be placed on an offender's driver's license or identification card requirements added by the legislature in 2006 also did not apply to the offender in this case.

(LifeTime Registration, RSO Designation on License, Carry Spec. ID Card)

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Judges Overturn Sex Offender Rule

2-2-2011 Louisiana:

An appellate court has ruled that the state cannot require a West Feliciana Parish man to register as a sex offender for the rest of his life or carry a special driver’s license and identification card.

The ruling by a three-judge panel of Louisiana’s 1st Circuit Court of Appeal overturns a District Court judge’s ruling against Jimmy L. Smith, who was convicted of indecent behavior with a juvenile and carnal knowledge of a juvenile when he was 19.

Charles Griffin II, Smith’s attorney, said Smith served his sentence for the 1995 convictions, completed his probation and complied with post-release registration requirements for a 10-year period after he was released from prison.

Smith said authorities told him in 2009 that he would have to register again as a sex offender for the rest of his life because the law had changed after he was convicted.

Smith complied, but challenged the order in 20th Judicial District Court. Unless the state decides to challenge the ruling, Griffin said, Smith will be able to get a driver’s license without “sex offender” written on it in orange letters.

Driver’s licenses for sex offenders must be renewed annually.

The opinion, issued Friday by Judges Vanessa G. Whipple, Jefferson D. Hughes III and Jewel E. “Duke” Welch, says case records show that Smith fulfilled his duty to register as a sex offender for the period of time that was applicable when he was convicted.

The opinion says Louisiana’s version of “Megan’s Law,” has a legitimate civil purpose to alert and protect the public from sex offenders who might offend again.

In Smith’s case, however, the amendments adopted after his conviction are “so punitive in effect as to transform what was intended as a civil remedy into an additional punishment for him.”

The retroactive application of amendments to the law violates the U.S. and Louisiana constitutions, the opinion says. ..Source.. by James Minton

Ohio -v- Santiago

8-11-2011 Ohio:

Ohio -v- Santiago [ Williams ]

Defendant-appellant Wilson Santiago (“defendant”) appeals the trial court’sclassifying him as a Tier III sex offender under Ohio’s Adam Walsh Child Protection and Safety Act of 2006 (“ the AWA”), arguing that the retroactive application of this law is unconstitutional. After reviewing the facts of the case and pertinent law, we reverse. (Most unusual, even someone in prison for life, is entitled to reversal on classification level)

US -v- Clements

8-24-2011 Oregon:

U.S. v. CLEMENTS
(655 F.3d 1028 (2011)

Christopher Matthew Clements appeals his conviction for failing to register as a sex offender. 18 U.S.C. § 2250. On July 27, 2006, Congress enacted the Adam Walsh Child Protection and Safety Act of 2006. Pub. L. No. 109-248, §§ 1-155, 120 Stat. 587, 590-611 (2006). Title I of the Adam Walsh Act established the Sex Offender Registration and Notification Act ("SORNA"). 42 U.S.C. §§ 16911, 16913. SORNA basically requires that sex offenders register their whereabouts within three business days after their release from imprisonment, and keep their registrations current by updating their registrations within three business days of moving to a new residence, gaining new employment, or entering a new school. Id. Failure to register pursuant to SORNA, or to keep one's registration current, is a continuing offense. See United States v. George, 625 F.3d 1124, 1131 (9th Cir. 2010).

The criminal penalties for failing to register pursuant to SORNA in 18 U.S.C. § 2250(a) do "not apply to sex offenders whose interstate travel occurred prior to SORNA's effective date." United States v. Begay, 622 F.3d 1187, 1195 (9th Cir. 2010) (citation omitted).

Clements was convicted of two counts of unlawful sexual penetration with a foreign object, in violation of Oregon Revised Statute § 163.411, in Oregon state court on June 3, 1998. SORNA was not enacted until July 27, 2006. On February 28, 2007, the Attorney General promulgated an interim regulation that applied the registration requirements of SORNA to defendants convicted of certain sexual offenses prior to the enactment of SORNA, thus making SORNA retroactive. 72 Fed. Reg. 8894. The superseding indictment charged that Clements failed to comply with the requirements of SORNA on or about February 15, 2008, when he "knowingly failed to register and update a registration" as a sex offender within three business days of relocating and traveling in interstate commerce to Arizona on or about October 5, 2007. Clements challenges the legality of the Attorney General's interim regulation for failure to comply with the Administrative Procedure Act (the "APA").

[1] In United States v. Valverde, 628 F.3d 1159, 1168-69 (9th Cir. 2010), we held that for persons such as Clements, who were convicted of sex offenses prior to SORNA's enactment, SORNA's registration requirements did not become effective until August 1, 2008,1 because the Attorney General's interim regulation did not comply with the APA.

[2] Accordingly, we reverse and remand this case for dismissal of the indictment. Upon his release from imprisonment, Clements will be subject to the provisions of SORNA and will then need to register. In light of our disposition, we need not reach Clements's other challenges to his conviction.
REVERSED AND REMANDED.