US v Baccam

4-28-2009 Arkansas:

US v Baccam
(562 F.3d 1197 (2009)

Phasung Lu Baccam was convicted under 18 U.S.C. § 2250 for failing to register as a sex offender after he moved to Arkansas from California where he had been convicted of a sex offense under state law. The district court1 denied his motion to dismiss the indictment on the ground that he had not received notice of the federal sex offender registration law. Baccam appeals, and we affirm.

In 1996 Baccam was convicted in California of sexual contact with a minor female. Under California law this conviction required him to maintain registration as a sex offender throughout his lifetime.

Cal.Penal Code § 290(b) (Deering 2009). Two "Notice of Sex Offender Registration Requirement" forms that Baccam signed on February 8, 1999 and November 10, 2003 not only detailed his registration requirements within California, but also notified him that if he moved to another state he would need to register in that state within ten days and notify the law enforcement agency with which he was last registered of his change of residence. After Baccam was arrested in California for failure to update his registration he signed another form on September 19, 2005. That form required him to initial his acknowledgment that he was required to register as a sex offender in any state to which he might relocate.

In the summer of 2007 Baccam moved to Arkansas but did not register as a sex offender. When he was arrested in September 2007 for traffic violations, officials discovered that he had not registered as a sex offender in their state as required by California, Arkansas, and federal law. He was later indicted under the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250, for his failure to register. ....

Baccam moved to dismiss the indictment charging him under § 2250(a). After the district court denied the motion, Baccam entered a conditional guilty plea and was sentenced to twenty four months. We review de novo the denial of a motion to dismiss an indictment. See United States v. Cvijanovich,556 F.3d 857, 862 (8th Cir.2009).

Baccam contends that he could not, as a matter of law, knowingly fail to register under SORNA because he was never told of his specific registration obligations under that law. A provision in SORNA entitled "Duty to notify sex offenders of registration requirements and to register" states that "[a]n appropriate official shall... inform the sex offender of the duties of a sex offender under this title and explain those duties." 42 U.S.C. § 16917(a).

Baccam contends that because there is no evidence that he was ever informed about his duties under SORNA, which had been enacted in 2006 after he had signed the California forms informing him of his duty to register if he moved to a different state, the government cannot prove an element of the offense and the indictment should have been dismissed.

The government argues that the scienter requirement in § 2250(a) does not require that Baccam specifically knew he was violating SORNA, but only that he knew he was violating a legal registration requirement upon relocating. It urges that Baccam knew he was required to register in a new state because of the information provided him on the California forms he had signed in 1999, 2003, and 2005. .....

We conclude that it would be inconsistent with SORNA's purpose of protecting the public by strengthening the system of sex offender registration not to give effect to state law notifications that relocation requires registration in the new jurisdiction. There is no reason to believe that the SORNA notice provision in § 16917 was intended to dilute the effect of state notice requirements, given the stated congressional intent to protect the public by establishing a comprehensive national system for registration of sex offenders. 42 U.S.C. § 16901.

We conclude that Baccam had adequate notice of his registration obligations based on the information provided him in the California registration forms, even if that notice did not explain that failure to register would be a violation of federal law as well as state law. Baccam does not deny that he knew that he needed to register in Arkansas. Had he done so, he would have received notification of SORNA's requirements, and would have been in compliance with federal law.3

Accordingly, we affirm the judgment of the district court.

FR v ST Charles County Sherrifs Dept

1-12-2010 Missouri:

This post will only address the Halloween Restrictions Issue
FR v ST Charles County Sheriffs Dept -AND-
State of Missouri v Charles A. Raynor
(301 S.W.3d 56 (2010))

In the first of these cases, F.R., a convicted sex offender, challenges the constitutional validity of section 566.1471, Missouri's "School Residency Law," which prohibits convicted sex offenders from residing within 1,000 feet of any school or child-care facility. Because F.R. was convicted and sentenced before the "school residency law" was enacted, section 566.147, as applied to F.R., is unconstitutionally retrospective in its operation.

The circuit court entered judgment against F.R. The judgment is reversed.

In the second case, Charles Raynor, a convicted sex offender, challenges the constitutional validity of section 589.426, which prohibits convicted sex offenders from going outdoors, turning on their outdoor lights and handing out candy on Halloween, and which requires them to post a sign stating "no candy or treats at this residence." Because Raynor was convicted and sentenced before section 589.426 was enacted, section 589.426, as applied to Raynor, is unconstitutionally retrospective in its operation.

The circuit court entered judgment for Raynor. The judgment is affirmed.

...

Facts and Procedural History of Raynor v. State

Charles Raynor is a registered sex offender in Audrain County pursuant to section 589.400(7) and 42 U.S.C. section 16913 due to a 1990 conviction in the state of Washington for indecent liberties with a child younger than 14 years old. Missouri's legislature enacted section 589.426,7 effective in August 2008, imposing certain restrictions on registered sex offenders' conduct on Halloween night.

On Halloween, October 31, 2008, Mexico public safety officers checked registered sex offenders' residences for compliance with section 589.426. When an officer arrived at Raynor's registered address, the officer observed a woman passing out candy to children. She informed the officer that Raynor was inside the house, but that they both believed he was in compliance with the statute because he was not handing out candy. No sign was posted at the residence stating "No candy or treats at this address." Raynor was charged with a class A misdemeanor for failure to comply with section 589.426.

Raynor moved to dismiss the charges against him as being unconstitutionally retrospective in violation of article I, section 13 of the Missouri Constitution. The circuit court sustained his motion to dismiss and held that the statute unconstitutionally created new obligations on Raynor with respect to his past actions. The state appeals.

....

Conclusion

The new obligations and duties imposed on F.R. and Raynor are solely the result of their past criminal acts, and the failure to perform these new duties and obligations carries a criminal penalty. The obligations and duties, imposed after the fact of their criminal convictions and based solely on those prior convictions, violate F.R.'s and Raynor's rights under article I, section 13. (State Constitution)

As applied to F.R., the school residency requirement of section 566.147 is unconstitutional. The judgment of the trial court is reversed.

As applied to Raynor, the Halloween requirements of section 589.426 are unconstitutional. The judgment of the trial court is affirmed.

See Article: Is the recent Missouri Supreme court decision -as to Halloween restrictions- correct for all Missouri sex offenders?

USA v Mattix

9-17-2012 Oregon:

USA v Mattix
(694 F.3d 1082 (2012)

Kenneth Theodore Mattix appeals his conviction for failure to register as a sex offender in violation of 18 U.S.C. § 2250(a). We affirm the conviction and clarify that the outcome of this case is controlled by United States v. Valverde, 628 F.3d 1159 (9th Cir. 2010).

For the foregoing reasons, we AFFIRM the district court's denial of Mattix's motion to dismiss the indictment and AFFIRM Mattix's conviction. The judgment of the district court is AFFIRMED.

State -v- Letalein

This decision ONLY applies to CERTAIN Maine registrants (See highlights below)

12-22-2009 Maine:

State -v- Letalein
(985 A.2d 4 (2009))

The State of Maine appeals from a judgment dismissing a criminal complaint charging Eric S. Letalien with failure to comply with the Sex Offender Registration and Notification Act of 1999 (SORNA of 1999) (Class D), 34-A M.R.S. § 11227(1) (2008). The District Court (Lewiston, Stanfill, J.) concluded that the retroactive application of SORNA of 1999, as applied to Letalien, violates the prohibition against ex post facto laws contained in both the United States and Maine Constitutions.

The State asserts, among other things, that the trial court erred in conducting its ex post facto analysis of SORNA of 1999 on an as-applied basis and that a proper facial examination of SORNA of 1999 demonstrates that because the statute is civil in intent and effect, it may be applied retroactively without violating ex post facto principles.

We agree that the determination of the constitutionality of the retroactive application of SORNA of 1999 depends on a facial examination of the statute, and not on an as-applied analysis as we previously suggested in Doe v. District Attorney, 2007 ME 139, 932 A.2d 552.

We conclude that the statute imposes an ex post facto punishment as to offenders sentenced in the years before the effective date of SORNA of 1999 for whom registration was a required part of their sentence and who were subsequently made subject to the more burdensome requirements of SORNA of 1999 after its effective date of September 18, 1999. We therefore affirm the judgment.

Note: It appears that Maine allows its judges to -sentence- a defendant to the registry. This is rather unique!

US -v- Kebodeaux

7-6-2012 Texas:

US -v- Kebodeaux
(687 F.3d 232 (2012)

UPDATE: This Fed Ct of Appeals decision was reversed by the US Sup court. See that decision HERE

The Fed Ct of Appeals held:

Anthony Kebodeaux, a federal sex offender, was convicted, under the Sex Offender Registration and Notification Act ("SORNA"), of failing to update his change of address when he moved intrastate. A panel of this court affirmed. United States v. Kebodeaux, 647 F.3d 137 (5th Cir. 2011). The panel majority rejected Kebodeaux's argument that Congress does not have the power to criminalize his failure to register because it cannot constitutionally reassert jurisdiction over his intrastate activities after his unconditional release from federal custody. Judge Dennis concurred in the judgment and assigned lengthy reasons, urging that SORNA is authorized by the Commerce Clause. The panel opinion was vacated by our decision to rehear the case en banc. United States v. Kebodeaux, 647 F.3d 605 (5th Cir. 2011). Because we agree with Kebodeaux that, under the specific and limited facts of this case, his commission of a federal crime is an insufficient basis for Congress to assert unending criminal authority over him, we reverse and render a judgment of dismissal.

.......

In summary, and for the reasons discussed in parts II and III, 42 U.S.C. § 16913's registration requirements and § 2250(a)(2)(A)'s criminal penalties for failing to register after intrastate relocation are unconstitutional solely as they apply to former federal sex offenders who had been unconditionally released from federal custody before SORNA's passage in 2006. Every federal sex offender subject to federal custody or supervision when SORNA was enacted, or who was convicted since then, is unaffected. Moreover, those who had been unconditionally released before SORNA's passage need not go unmonitored; they could still be regulated just as state sex offenders currently are under federal law, and they remain subject to state authority.

The statute is an unlawful expansion of federal power at the expense of the traditional and well-recognized police power of the state.59 The conviction is REVERSED, and a judgment of dismissal is RENDERED.

---

See also: Failure to Register as a Sex Offender: A Legal Analysis of 18 U.S.C. 2250

ACLU of New Mexico v City of Albuquerque

This is a OLD decision from 2006. It is being posted to show the history behind the Albuquerque City Sex Offender Registry. Since this decision the city has rewritten the registry ordinance to resolve the unconstitutional rulings of this decision. So, read this decision in its proper context.

5-18-2006 New Mexico:

ACLU of New Mexico v City of Albuquerque

Here the court held:

We consolidate the appeals of two cases brought by the American Civil Liberties Union (ACLU) and John Does, challenging the City of Albuquerque's sex offender ordinances on the grounds that the ordinances violate the New Mexico and Federal Constitutions. We decline to address the issues raised in the older of the cases involving the City's Sex Offender Alert Program (SOAP) because they are moot following the passage of a new state law. In the second case, we affirm the district court's decision finding various provisions of the Albuquerque Sex Offender Registration and Notification Act (ASORNA) unconstitutional and upholding the remainder of the ordinance. We hold additional registration provisions not specifically addressed by the district court to be unconstitutional.

To understand what parts of the city sex offender ordinance was declared unconstitutional you must read the entire court decision, it is VERY LONG!

Doe v City of Albuquerque

1-20-2012 New Mexico:

Doe v City of Albuquerque
(667 F.3d 1111 (2012)
From Google Scholar

This appeal presents us with a difficult issue of first impression. John Doe, a registered sex offender, brought a facial challenge under the First and Fourteenth Amendments to a ban enacted by the City of Albuquerque that prohibited registered sex offenders from entering the City's public libraries. The district court denied a motion to dismiss brought by the City and ultimately granted summary judgment in favor of Doe. The court concluded that the ban burdened Doe's fundamental right to receive information under the First Amendment and that the City failed sufficiently to controvert Doe's contention on summary judgment that the ban did not satisfy the time, place, or manner test applicable to restrictions in a designated public forum. The City appeals both the denial of its motion to dismiss and the grant of Doe's summary judgment motion.

Complicating our inquiry is the fact that the City, relying on a mistaken interpretation of case law regarding facial challenges, erroneously contended that it had no burden to do anything in response to Doe's summary judgment motion. Consequently, the City failed to present any evidence as to the reasons or justification for its ban, whether the ban was narrowly tailored to address the interest sought to be served, or whether the ban left open alternative channels for receiving information. Had the City done so, it is not difficult to imagine that the ban might have survived Doe's challenge, for we recognize the City's significant interest in providing a safe environment for its library patrons, especially children. As an appellate court, however, we are bound by the record and the law. And in this case they require us to affirm the district court.

...

We note that our decision does not signal the death knell of the City's efforts, if it wishes to pursue them, to restrict access of registered sex offenders to the City's public libraries. We can imagine such an effort succeeding through a revised ordinance where it is shown that the restriction satisfies the three-prong time, place and manner Ward test. Like the Supreme Court, we "generally will not strike down a governmental action" for failure to leave open adequate alternative channels of communication "unless the government enactment will foreclose an entire medium of public expression across the landscape of a particular community or setting." Citizens for Peace in Space, 477 F.3d at 1225 (internal quotation marks omitted).

However, this evidence is not before us in this case, and therefore we must AFFIRM.

---

10th Circuit rejects library ban on sex offenders

January 26, 2012

An Albuquerque, N.M., ban on registered sex offenders’ visiting public libraries violates the First Amendment, a federal appeals court has ruled.

The 10th U.S. Circuit Court of Appeals panel emphasized that the city had failed to show that its ban was narrowly tailored and that it left other avenues for sex offenders to receive information and ideas from the library.

In March 2008, the city issued a one-paragraph “administrative instruction” that began: “Registered sex offenders are not allowed in public libraries in the City of Albuquerque.” The city wanted to protect children in the libraries from a group of offenders that the city feared may reoffend.

In October 2008, a sex offender using the pseudonym “John Doe” sued in New Mexico state court. The lawsuit moved to federal court and in September 2009, a federal district court denied the city’s motion to dismiss it. In the meantime, Doe filed a motion for summary judgment, contending that the ban violated his First Amendment right to receive information and ideas.

The district court granted Doe’s motion for summary judgment in March 2010. Albuquerque did not show that the ban was narrowly tailored, the district court said. Examples of a narrower ban would include limiting when sex offenders could go to the library or confining them to a certain room. The city also failed to show that sex offenders would have ample other ways to receive information from libraries, the court said.

On appeal, a three-judge panel of the 10th Circuit affirmed the lower court in its Jan. 20 decision in Doe v. City of Albuquerque. The appeals court affirmed both the denial of the city’s motion to dismiss and the granting of Doe’s summary-judgment motion by the lower court.

The appeals panel noted that “the right to receive information and ideas has been recognized in numerous contexts other than censorship cases.” It then examined the constitutionality of the ban. It said a public library was a designated public forum in part because it was a “forum for all of the City’s residents to engage in the receipt of information.”

In a designated public forum, a government can impose such restrictions if they are content-neutral, serve a significant government interest, are narrowly tailored and leave open ample alternative means of communication.

The city contended there was “no burden upon the City to prove anything” because Doe had challenged the ban as unconstitutional on its face and that he had to show there was no set of circumstances under which the ban would be constitutional.

The 10th Circuit criticized this litigation strategy and ruled that the city indeed did have the burden of proof to justify its restriction on First Amendment freedoms. Proceeding to the test, the panel agreed that the city did have a substantial government interest in protecting children. However, the city “did not present any evidence that its ban was narrowly tailored to serve its interest in providing a safe environment for library patrons.”

The appellate panel noted that the city could have considered less-restrictive alternatives, such as “establishing designated hours during which sex offenders are permitted to use the libraries, requiring sex offenders to check into the libraries, or designating certain areas of the libraries for use by registered sex offenders.” The city also did not show how sex offenders could receive information from libraries in light of the ban.

“While we are perplexed by the City’s strategic decision here, it binds our hands in this case,” the appeals court concluded. “We note that our decision does not signal the death knell of the City’s efforts, if it wishes to pursue them, to restrict access of registered sex offenders to the City’s public libraries.”

The appeals court said that a less restrictive alternative to a flat ban might pass constitutional muster. by David L. Hudson Jr., First Amendment Scholar

Schepers v. Commissioner of DOC

This decision has contains discussion worth reading in full.

8-28-2012 Indiana:

Schepers v. Commissioner of DOC
(691 F.3d 909 (2012)

Indiana, like many states, maintains a public database of persons convicted of sex offenses. Its database is called the "Sex and Violent Offender Registry" and is accessible via the Internet. People visiting the registry's website find, on each registrant's page, a recent photograph, home address, information about the registrant's height, weight, age, race, and sex, and information about the particular offenses that required placement on the registry. Some registrants' pages may additionally carry the label of "sexually violent predator," if they have committed certain serious offenses or have had multiple previous convictions for specified sex and violent offenses. The public can search the database by a variety of fields (such as offender name or county of residence), and can generate a map showing the location of all registered offenders living near any address (such as one's home or school).

The status of being a "sexually violent predator" carries with it extra burdens. In addition to their obligation to register more frequently, sexually violent predators are regulated in other ways: they cannot live, work, or volunteer within 1,000 feet of a school, public park, or youth program center. To do so is a felony. In addition, if a sexually violent predator plans to be absent from her home for more than 72 hours, she must inform local law enforcement in both the county where she lives and the county she plans to visit of her travel plans.

Schepers must register because he was convicted of two counts of child exploitation in 2006. If one were to visit Schepers's registry profile today, she would see those two counts along with the designation "Offender Against Children." But for some time in the past, Schepers was erroneously designated as a "Sexually Violent Predator" and thus was subject to the more burdensome requirements and restrictions that apply to that group. (There is no dispute that Schepers is not a Sexually Violent Predator under Indiana law.)

He tried to correct this error, but he found that the DOC provided no official channel or administrative mechanism allowing him to do so. He turned to informal channels, telephoning officials in the DOC in an attempt to get the label removed. When that proved unsuccessful, he brought suit against the DOC under 42 U.S.C. § 1983 on behalf of a class of registrants, arguing that the DOC's failure to provide any mechanism to correct registry errors violated due process and seeking injunctive relief to establish such a procedure.

A class of persons required to register brought this suit against the Indiana Department of Correction (DOC), alleging that the DOC's failure to provide any procedure to correct errors in the registry violates due process. In response, the DOC created a new policy to give notice to current prisoners about their pending registry listings and an opportunity to challenge the information. The district court granted summary judgment on the ground that the new policy was sufficient to comply with due process. But the DOC's new procedures still fail to provide any process at all for an entire class of registrants—those who are not incarcerated. We thus reverse the district court's grant of summary judgment and remand for further proceedings.

We conclude with the observation that providing additional procedures to correct registry errors may wind up benefitting the state as well as registrants. Erroneously labeling an offender a sexually violent predator imposes unnecessary monitoring costs on state law enforcement and reduces the efficacy of the registry in providing accurate information to the public. See Indiana Sex Offender Registry Full of Inaccuracies, EVANSVILLE COURIER & PRESS, Apr. 21, 2012, available at http://www. courierpress.com/news/2012/apr/21/indiana-sex-offender-registry-full-inaccuracies/ (quoting the "director of legislative affairs at the National Center for Missing & Exploited Children" calling the errors "troubling" because "[t]he value of the public registry as a child protection tool is that the information is accurate"). Reducing these errors is in the interest of the state as well as the plaintiffs.

On remand, we encourage the parties to work together to come to an agreement that fits within the boundaries outlined above. As it stands, the DOC's process is constitutionally insufficient. We thus REVERSE the district court's grant of summary judgment and REMAND for further proceedings consistent with this opinion.

See article: Indiana sex offender list violates due process: court