Stogner v California

6-26-2003 California:

Stogner v California
539 U.S. 607 (2003)

California has brought a criminal prosecution after expiration of the time periods set forth in previously applicable statutes of limitations. California has done so under the authority of a new law that (1) permits resurrection of otherwise time-barred criminal prosecutions, and (2) was itself enacted after pre-existing limitations periods had expired. We conclude that the Constitution's Ex Post Facto Clause, Art. I, § 10, cl. 1, bars application of this new law to the present case.

I
In 1993, California enacted a new criminal statute of limitations governing sex-related child abuse crimes. The new statute permits prosecution for those crimes where "[t]he limitation period specified in [prior statutes of limitations] has expired"—provided that (1) a victim has reported an allegation of abuse to the police, (2) "there is independent evidence that clearly and convincingly corroborates the victim's allegation," and (3) the prosecution is begun within one year of the victim's report. 1993 Cal. Stats. ch. 390, § 1 (codified as amended at Cal. Penal Code Ann. § 803(g) (West Supp. 2003)). A related provision, added to the statute in 1996, makes clear that a prosecution satisfying these three conditions "shall revive any cause of action barred by [prior statutes of limitations]." 1996 Cal. Stats. ch. 130, § 1 (codified at Cal. Penal Code Ann. § 803(g)(3)(A) (West Supp. 2003)). The statute thus authorizes prosecution for criminal acts committed many years beforehand—and where the original limitations period has expired—as long as prosecution begins within a year of a victim's first complaint to the police.

In 1998, a California grand jury indicted Marion Stogner, the petitioner, charging him with sex-related child abuse committed decades earlier—between 1955 and 1973. Without the new statute allowing revival of the State's cause of action, California could not have prosecuted Stogner. The statute of limitations governing prosecutions at the time the crimes were allegedly committed had set forth a 3-year limitations period. And that period had run 22 years or more before the present prosecution was brought.

Stogner moved for the complaint's dismissal. He argued that the Federal Constitution's Ex Post Facto Clause, Art. I, § 10, cl. 1, forbids revival of a previously time-barred prosecution. The trial court agreed that such a revival is unconstitutional. But the California Court of Appeal reversed, citing a recent, contrary decision by the California Supreme Court, People v. Frazer,21 Cal.4th 737, 982 P.2d 180 (1999), cert. denied, 529 U.S. 1108 (2000). Stogner then moved to dismiss his indictment, arguing that his prosecution is unconstitutional under both the Ex Post Facto Clause and the Due Process Clause, Amdt. 14, § 1. The trial court denied Stogner's motion, and the Court of Appeal upheld that denial. Stogner v. Superior Court,93 Cal.App.4th 1229, 114 Cal.Rptr.2d 37 (2001). We granted certiorari to consider Stogner's constitutional claims. 537 U.S. 1043 (2002).

... ... ...

In sum, California's law subjects an individual such as Stogner to prosecution long after the State has, in effect, granted an amnesty, telling him that he is "at liberty to return to his country... and that from henceforth he may cease to preserve the proofs of his innocence," Wharton, Criminal Pleading and Practice § 316, at 210. See also Moore, 43 N. J. L., at 223-224. It retroactively withdraws a complete defense to prosecution after it has already attached, and it does so in a manner that allows the State to withdraw this defense at will and with respect to individuals already identified. See supra, at 611. "Unfair" seems to us a fair characterization.

IV
The statute before us is unfairly retroactive as applied to Stogner. A long line of judicial authority supports characterization of this law as ex post facto. For the reasons stated, we believe the law falls within Justice Chase's second category of ex post facto laws.

We conclude that a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution. The California court's judgment to the contrary is Reversed.

Wisconsin v Smith

3-19-2010 Wisconsin:

Wisconsin v Smith
780 N.W.2d 90 (2010)

This is a review of a published decision of the court of appeals,1 which affirmed the decision of the Brown County Circuit Court, Richard J. Dietz, Judge. The circuit court concluded that Wis. Stat. § 301.45 (2005-06),2 Wisconsin's sex offender registration statute, was constitutional as applied to Smith and denied Smith's motion to dismiss the charge of failure to comply with sex offender registration. Smith appealed and the court of appeals affirmed the circuit court's decision. Smith petitioned this court for review, which we accepted. We affirm the court of appeals' decision.

¶ 2 This case requires us to decide whether Wis. Stat. § 301.45, Wisconsin's sex offender registration statute, is unconstitutional as applied to Smith on the grounds that it violates his substantive due process and equal protection rights. We conclude that Wis. Stat. § 301.45 is constitutional as applied to Smith because requiring Smith to register under § 301.45 is rationally related to a legitimate governmental interest. Smith has failed to prove that the registration requirements of § 301.45 as applied to him are unconstitutional beyond a reasonable doubt.

On March 12, 2001, Smith pled guilty to the charge of false imprisonment in violation of Wis. Stat. § 940.30 (1999-2000).3

According to the criminal complaint, Smith and others forced a minor to ride around with them in a vehicle in order to collect a drug debt from the minor's friend. Even though the complaint alleges that Smith and at least one other person physically threatened the minor in order to force him to assist in the search, there is no allegation that the false imprisonment entailed anything sexual.

However, under the unambiguous language of Wis. Stat. § 301.45, Smith is required to register as a sex offender because he was convicted of false imprisonment of a minor.4 Because he failed to so register, Smith was charged on December 14, 2005, with violating Wis. Stat. § 301.45(2)(g).5

People v Mosley

This decision was overturned on 3-2-15 in the appeal People v Mosley. (pg-35 --- Conclusion: The judgment of the Court of Appeal is reversed insofar as it modified defendant‘s conviction by striking the sex offender registration requirement, and is otherwise affirmed.)

9-29-2010 California:
People v Mosley(REVERSED on Appeal)
116 Cal. Rptr. 3d 321q

We revisit defendant Steven Lloyd Mosley, who a jury acquitted of any sexual offense. The jury found him guilty only of misdemeanor assault. Yet the court ordered defendant to register as a sex offender based upon its own factual findings about his motivations—facts not proved beyond a reasonable doubt to the jury.

In a prior opinion, we held the facts supporting imposition of discretionary sex offender registration must be found beyond a reasonable doubt by a jury. Defendant has the right to a jury trial on any facts (other than a prior conviction) that increase his offense's penalty beyond the statutory maximum.

(Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi).) The court's imposition of sex offender registration for misdemeanor assault effectively increased the penalty beyond the statutory maximum because of Jessica's Law, The Sexual Predator Punishment and Control Act, approved in 2006 as Proposition 83. Jessica's Law contains a residency restriction that bars registered sex offenders from residing within 2,000 feet of a school or park where children gather. This residency restriction constitutes punishment due to its overwhelmingly punitive effect.

The California Supreme Court directed that we reconsider the matter in light of In re E.J. (2010) 47 Cal.4th 1258 [104 Cal.Rptr.3d 165, 223 P.3d 31] (E.J.), which addressed the imposition of the residency restriction as a parole condition. The Supreme Court held the residency restriction applied prospectively to four registered sex offenders paroled after passage of Jessica's Law. When imposed as a new parole condition on a person who already registered as a sex offender, the residency restriction "does not additionally punish for the [underlying] sex offense conviction . . . ." (47 Cal.4th at p. 1280.) But the Supreme Court had "no occasion . . . to address whether the 2,000-foot residency limit might apply . . . to the thousands of persons subject to sex offender registration who, for whatever reason, are not currently on parole." (Id. at p. 1285 (conc. opn. of Werdegar, J.), citations omitted.) Thus, it did not consider whether the residency restriction constitutes increased punishment for an offense when a trial court imposes discretionary sex offender registration as part of the sentence on that offense.

(1) We leave the substance of the sex offender registration scheme untouched. Courts may impose discretionary sex offender registration; registered sex offenders may be subject to the residency restriction. We hold only that imposing the residency restriction through discretionary sex offender registration as part of the sentencing on the underlying offense increases the penalty for that offense beyond the statutory maximum. Accordingly, the facts supporting the imposition of the registration requirement must be found true by a jury beyond a reasonable doubt. That was not done here, so we modify the judgment by striking the sex offender registration requirement, and affirm.

See Also: Recent Changes in the Law Potentially Beneficial for Clients

State v LeMasters

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Gibbs v Indiana

12-31-2008 Indiana:

Gibbs v Indiana
898 N.E.2d 1240 (2008)

As a result of an online sting operation, Randy Gibbs was convicted of Class B felony attempted sexual misconduct with a minor, Class C felony child solicitation, and Class D felony attempted dissemination of matter harmful to minors.

We hold that pursuant to Aplin v. State,889 N.E.2d 882 (Ind.Ct.App.2008), reh'g denied, trans. denied, Gibbs cannot be convicted of attempted sexual misconduct with a minor and attempted dissemination of matter harmful to minors because the intended victim was not actually a minor and therefore reverse those convictions.

Finding no error in Gibbs' other argument and concluding that he has failed to persuade us that the sentence for his remaining conviction is inappropriate, we affirm in part and reverse in part.

... ... ...

As to his character, Gibbs notes he has no criminal record. He served in the Navy, has been regularly employed, and has supported a family. He completed the Basic Seminar of the Institute in Basic Life Principles.11 At the sentencing hearing, Gibbs stated he "made a bad judgment" and has "changed different ways in my life," which includes attending church and giving to charity. Tr. p. 534. His mother testified he helps her by taking her to the grocery store and doctor appointments and by buying her medications when she cannot afford them.

The trial court did not give great weight to Gibbs' remorse because it could not determine whether Gibbs was "sorry because you're really sorry over what you did or ... because you've been doing what you've wanted to do on the computer and you happen to get caught and now everyone knows?" Id. at 551. The trial court acknowledged Gibbs' lack of criminal history was a significant mitigating circumstance. For the child solicitation conviction, the trial court sentenced Gibbs to the advisory term of four years and suspended two years. We believe this sentence appropriately, takes into account Gibbs' lack of criminal history and his demonstrated potential to engage in predatory behavior, and we therefore affirm it.

Affirmed in part, reversed in part.

---

Rulings target Internet sex stings

1-4-2009 Indiana:

Appeals court says there must be an actual victim

The Internet stings police consider key to protecting minors from sexual predators may lose some of their power after two recent Court of Appeals rulings.

The use of undercover investigators as bait in Internet chats has become routine in Central Indiana. But the attraction for law enforcement -- the lack of an actual victim -- also became the basis for the reversal of two convictions against a Shelbyville man Wednesday by the Indiana Court of Appeals. That leaves in place a third related conviction.

The reversal could mean new cases lead to lighter sentences. The decision and a similar ruling in July targeted the most serious charge usually leveled against suspects nabbed in online stings.

The court ruled 2-1 that attempted sexual misconduct with a minor, a Class B felony, requires that the victim be a minor; an undercover officer doesn't count. It also used the same reasoning to reverse Randy Gibbs' onviction of dissemination of matter harmful to a minor, leaving only a child solicitation conviction intact.

Gibbs, now 48, was arrested after he showed up at an Indianapolis apartment in 2006 with rope and condoms in his pockets following explicit online chats with an investigator posing as 15-year-old "Samantha."

Appeals Judge Melissa S. May dissented, arguing all charges should stand against Gibbs.

"He did all he believed was necessary to complete the offense of sexual misconduct of a minor," May wrote, "and he failed to complete the offense only because it was not possible under the circumstances."

Mario Massillamany, the Marion County prosecutor's spokesman, said the office had stopped using the attempted sexual misconduct charge in online sting cases after the July decision, which a different Court of Appeals panel issued in a Hamilton County case.

"We are always looking to protect children, " Massillamany said.

Now prosecutors must rely on charges of child solicitation, a Class C felony charge that applies under Indiana law as long as the defendant merely believes the intended victim is at least 14 and younger than 16.

The Class C felony carries a potential sentence of two to eight years in prison, far short of the maximum 20-year penalty for attempted sexual misconduct.

Hamilton County Prosecutor Sonia Leerkamp said she may lobby the General Assembly to broaden the sexual misconduct statute along the same lines as child solicitation. Until then, she said, her office will review how it charges online sting cases to conform to the rulings.

Leerkamp had hoped the Indiana Supreme Court would take up the Hamilton County case. Matthew Jachin Aplin, then 27, was arrested in 2006 after he chatted online with an investigator posing as a 15-year girl and showed up to a meeting inside a Fishers SuperTarget store.

But last month, the state Supreme Court declined to review the Court of Appeals' reversal of Aplin's attempted sexual misconduct conviction.

Prosecutors argue that online stings protect teenagers by snaring likely perpetrators, though judges often give reduced sentences or even probation -- as Aplin received -- because there are no actual victims.

No such luck for Gibbs, a Navy veteran with a clean record who expressed regret for bad judgment after a jury convicted him. Marion Superior Court Judge Sheila A. Carlisle gave him seven years in prison, including two years for child solicitation, with the possibility of spending the last four years in community corrections programs.

"I have serious concerns," Carlisle told him in October 2007, "about your ability to refrain from this conduct in the future." ..Source.. by Jon Murray

Buss v Harris

5-17-2010 Indiana:

Buss v Harris
No. 52A02-0911-CV-1088.

Edwin G. Buss ("Buss"), Commissioner of the Indiana Department of Correction ("the DOC"), appeals from the trial court's order in an action for declaratory and injunctive relief brought by Michael L. Harris ("Harris"), a former inmate at the Miami Correctional Facility in Miami County, Indiana, requiring the DOC to update the sex offender registry to remove the term "SEX PREDATOR" and the statement "Lifetime Notification" from Harris's offender detail and type on the Indiana Sheriffs' Sex and Violent Offender Registry web site, and determining that Harris's reporting obligation should be for ten years following the date of his release from incarceration.

Buss raises the following consolidated and restated issue for our review: Whether the trial court erred by finding and concluding that Harris should not be listed on the sex offender registry as a sexually violent predator and that Harris's reporting obligation was limited to ten years following the date of his release from incarceration.

We affirm.

... ... ...

If we were to adopt the State's construction of the statutory provisions, an offender could, in theory, have completed his sentence and reporting requirement, yet without notice to him be in violation of lifetime reporting requirements by operation of law due to subsequent amendments to SORA. Nothing before us indicates that the legislature intended such a result.

The State argues that Buss and the DOC were not making the determination that Harris was a sexually violent predator with a lifelong reporting obligation, but were merely notifying Harris of his status and post-release reporting obligations. The State also notes that Indiana Code section 35-38-1-7.5(f)(2) requires the trial court to send notice to the DOC if a person is a sexually violent predator and uses that language to support its contention that it is not claiming authority to make the status and reporting determinations. Yet, the State does not offer a citation to the record establishing that Buss and the DOC received notification from the trial court indicating a change to Harris's status, thus triggering their duty to notify Harris.

We hold that the trial court did not err by finding and concluding that the DOC and Buss were not authorized by statute to make a determination of and change to Harris's status on the sex offender registry. We also reject the State's argument that Harris's status was changed by operation of law under Indiana Code section 35-38-1-7.5(b) and note that the Supreme Court's decision in Jones supports our conclusion. We also hold that the trial court correctly determined that Harris's reporting obligation was for ten years and not a lifelong reporting obligation, as the change to the duration of Harris's reporting obligation would have occurred only by a finding and conclusion that his status had changed. Again, Jones is helpful in reaching that conclusion.

Affirmed.

Utah v Briggs

12-12-2008 Utah:

Utah v Briggs
199 P.3d 935 (2008)

Steven Arthur Briggs was convicted for failure to register as a sex offender in violation of Utah Code section 77-27-21.5 ("registration statute" or "statute").1 Briggs challenges the constitutionality of the statute and the sufficiency of the evidence supporting his conviction.

--First, Briggs argues that the statute violates the non-delegation doctrine of the Utah Constitution because it delegates legislative power to the Department of Corrections ("DOC"), an executive agency.

--Second, Briggs argues that the evidence presented at trial was insufficient to support a conviction that he "knowingly" failed to register.

--Finally, Briggs argues that the statute violates his right to procedural due process because it designates him as a currently dangerous sex offender without notice and an opportunity to be heard on the validity of that designation.

We conclude that Briggs's non-delegation and insufficiency of the evidence claims are without merit.

As to Briggs's procedural due process argument, we hold that the provisions of the registration statute requiring him to register and requiring the DOC to publish information related to his prior convictions, current address, appearance, and other similar information do not violate his right to procedural due process. Thus, we affirm his conviction for failure to register as a sex offender.

However, we hold that the provision in the registration statute that requires the DOC to publish his primary and secondary targets, implying that he is currently dangerous, violates his right to procedural due process unless the DOC provides him with notice and an opportunity to be heard as to whether he is currently dangerous.

Accordingly, the DOC may not publish information implying that Briggs is currently dangerous unless it proves as much at a hearing where Briggs has notice and an opportunity to be heard on the validity of that designation.

Sipple v US

6-8-2010 Ohio:

Sipple v US
726 F.Supp.2d 813 (2010)

This matter is before the Court on Petitioner Lawrence Sipple's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. No. 22). For the reasons that follow, Petitioner's motion is well-taken and is GRANTED.

... ... ...

Waucaush also establishes that Petitioner's guilty plea in this case was not knowing and intelligent and that, therefore, his conviction and sentence should be vacated. In Waucaush, the Court determined that the petitioner's guilty plea was not intelligently given because he pled guilty to a set of facts which did not constitute a crime. Id. at 260. The Court, therefore, concluded that Waucaush's plea was not intelligent and vacated his conviction. Id. at 263.

Similarly, in this case, new case law from the Sixth Circuit changed the legal significance of the facts to which Petitioner pled guilty, namely, that they no longer constituted a violation of SORNA. Therefore, Petitioner's guilty plea to the indictment was not intelligent and must be vacated. See id.

Accordingly, for the reasons stated, Petitioner's motion to vacate, set aside or correct sentence is well-taken and is GRANTED. Petitioner's conviction and sentence on Count 1 of the indictment are VACATED. Additionally, because the indictment is based on conduct occurring before the effective date of the SMART regulations, Petitioner's motion to dismiss the indictment is well-taken and is GRANTED. See Utesch, 596 F.3d at 312-13; Cain, 583 F.3d at 424.
IT IS SO ORDERED.

US v Cain

10-13-2009 Ohio:

US v Cain
583 F.3d 408 (2009)

This appeal requires us to determine when the registration requirements of the federal Sexual Offenders Registration and Notification Act (SORNA) became effective with respect to a defendant who had been convicted of a sexual offense before passage of SORNA.

The Government indicted defendant Cain under 18 U.S.C. § 2250 for traveling from Ohio to Georgia sometime between October 16, 2006, and March 28, 2007, and failing to update his sex offender registration as required by state and federal law.

The circuits are split on whether defendants with pre-SORNA convictions had to comply with SORNA before the Attorney General issued an implementing regulation.

Because SORNA explicitly required the Attorney General to specify the applicability of the Act to persons convicted prior to the effective date of SORNA, and because the Attorney General did not promulgate a regulation making that determination in compliance with the Administrative Procedure Act, Cain was not subject to SORNA's requirements during the period indicated in the indictment.

Reversal is therefore required.

People v Carmony

6-29-2005 California:

People v Carmony
26 Cal.Rptr.3d 365 (2005)
127 Cal.App.4th 1066

This case raises the question whether there is an offense so minor that it cannot trigger the imposition of a recidivist penalty without violating the cruel and/or unusual punishment prohibitions of the United States and California Constitutions.

Although defendant had registered his correct address as a sex offender with the police one month before his birthday, as required by law (former Pen.Code, § 290, subd. (a)(1)(A))1, he failed to "update" his registration with the same information within five working days of his birthday as also required by law. (Former Pen.Code, § 290, subd. (a)(1)(C).) Defendant's parole agent was aware defendant's registration information had not changed and in fact arrested defendant at the address where he was registered.

Defendant pled guilty to the charge of failing to register within five days of his birthday and admitted he had suffered three prior serious or violent felony convictions (Pen.Code, §§ 667.5, subd. (c) and 1192.7, subd. (c))2 and had served a prior prison term. (§ 667.5, subd. (b).) The trial court sentenced him under the "Three Strikes" law to a prison term of 25-years-to-life (§§ 667, subds. (b)-(i), 1170.12) plus a one-year consecutive term for the prior prison term. (§ 667.5, subd. (b).)

In an earlier opinion we held the trial court abused its discretion in refusing to strike two of defendant's three prior convictions. The Supreme Court reversed the decision and remanded the case for our consideration of the constitutional issues not reached in our prior decision.

On appeal, defendant claims the application of the Three Strikes law to the offense of failing to duplicate his registration as a sex offender violates the state and federal prohibitions against cruel and/or unusual punishment, double jeopardy and ex post facto laws, and his federal right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296, 301-302, 124 S.Ct. 2531, 2536, 159 L.Ed.2d 403, 412 (Blakely.)

It is a rare case that violates the prohibition against cruel and/or unusual punishment. However, there must be a bottom to that well. If the constitutional prohibition is to have a meaningful application it must prohibit the imposition of a recidivist penalty based on an offense that is no more than a harmless technical violation of a regulatory law.

The state and federal prohibitions against cruel and/or unusual punishment require that the sentence be proportionate to the crime. Accordingly, the current offense must bear the weight of the recidivist penalty imposed. Although the Legislature may impose increased penalties on repeat offenders, recidivism remains a factor in aggravation and may not serve as the reason for imposing increased punishment where the predicate offense serves no rational purpose of the state.

The purpose of the sex offender registration law is to require that the offender identify his present address to law enforcement authorities so that he or she is readily available for police surveillance. In this case the defendant did so one month prior to his birthday and was in fact present at his registered address when the arrest for the present violation was made. The stated purpose of the birthday registration requirement was (and still is) to "update" the existing registration information. (Former § 290, subd. (a)(1)(C).)

Here, there was no new information to update and the state was aware of that fact. Accordingly, the requirement that defendant re-register within five days of his birthday served no stated or rational purpose of the registration law and posed no danger or harm to anyone (Subtle Odd Law Fact).

Because a 25-year recidivist sentence imposed solely for failure to provide duplicate registration information is grossly disproportionate to the offense, shocks the conscience of the court and offends notions of human dignity, it constitutes cruel and unusual punishment under both the state and federal Constitutions. We shall remand the matter to the trial court for resentencing.3

US v Juvenile Male

US Sup ct held case was moot. Decisions within blog: SCOTUS Blog Holding: The Ninth Circuit lacked authority to hold that the requirements of the Sex Offender Registration and Notification Act (SORNA) violate the Constitution's Ex Post Facto Clause when applied to a juvenile who was adjudicated delinquent under the Federal Juvenile Delinquency Act before SORNA's enactment. At the time of the Ninth Circuit's decision, respondent's challenge was moot because the district court's order of juvenile supervision had expired, and respondent was no longer subject to the sex-offender-registration provisions that he challenged on appeal. Holding: The Ninth Circuit lacked authority to hold that the requirements of the Sex Offender Registration and Notification Act (SORNA) violate the Constitution's Ex Post Facto Clause when applied to a juvenile who was adjudicated delinquent under the Federal Juvenile Delinquency Act before SORNA's enactment. At the time of the Ninth Circuit's decision, respondent's challenge was moot because the district court's order of juvenile supervision had expired, and respondent was no longer subject to the sex-offender-registration provisions that he challenged on appeal.

9-10-2009 Montana:

US v Juvenile Male
581 F.3d 977 (2009)

See Amended 1-5-2010
US v Juvenile Male
590 F.3d 924 (2010)

As a society, we generally refuse to punish our nation's youth as harshly as we do our fellow adults, or to hold them to the same level of culpability as people who are older, wiser, and more mature. The avowed priority of our juvenile justice system (in theory if not always in practice) has, historically, been rehabilitation rather than retribution. Juvenile proceedings by and large take place away from the public eye, and delinquency adjudications do not become part of a young person's permanent criminal record. Rather, young offenders, except those whose conduct a court deems deserving of treatment as adults, are classified as juvenile delinquents and placed in juvenile detention centers. Historically, an essential aspect of the juvenile justice system has been to maintain the privacy of the young offender and, contrary to our criminal law system, to shield him from the "dissemination of truthful information" and "[t]ransparency" that characterizes the punitive system in which we try adults. Compare 18 U.S.C. § 5038(e) ("[N]either the name nor picture of any juvenile shall be made public in connection with a juvenile delinquency proceeding.") with Smith v. Doe,538 U.S. 84, 99, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) ("[O]ur criminal law tradition insists on public indictment, public trial, and public imposition of sentence.").

In a surge of national concern, however, over the commission of sex offenses, particularly those against children, Congress in 2006 enacted the Sex Offender Registration and Notification Act ("SORNA" or "the Act") and applied its registration and reporting requirements not only to adults but also to juveniles who commit certain serious sex offenses at the age of fourteen years or older. The Attorney General, exercising authority delegated by Congress, determined that SORNA would apply retroactively to all sex offenders convicted of qualifying offenses before its enactment, including juvenile delinquents. 28 C.F.R. § 72.3 (2007).

The retroactive application of SORNA's juvenile registration provision affects people of all ages—not only juveniles. As we are still close in time to SORNA's passage, some, like S.E., were adjudicated delinquent relatively recently and are still minors or young adults. The vast majority of persons affected, however, were adjudicated delinquent years or even decades before SORNA's enactment and quite obviously are no longer juveniles. Indeed, the brunt of SORNA's retroactive application to juvenile offenders is felt mainly by adults who committed offenses long ago as teenagers—many of whom have built families, homes, and careers notwithstanding their history of juvenile delinquency, which before SORNA's enactment was not a matter of public record. For these adults, sex offender registration and reporting threatens to disrupt the stability of their lives and to ostracize them from their communities by drawing attention to decades-old sex offenses committed as juveniles that have, until now, remained sealed. Although from this point forward no new individuals will be affected by the retroactivity provision, its effects will be felt by numerous individuals for the rest of their adult lives.1

We must decide as a matter of first impression—in our court and in any other circuit court—whether the retroactive application of SORNA's provision covering individuals who were adjudicated juvenile delinquents because of the commission of certain sex offenses before SORNA's passage violates the Ex Post Facto Clause of the United States Constitution. In light of the pervasive and severe new and additional disadvantages that result from the mandatory registration of former juvenile offenders and from the requirement that such former offenders report in person to law enforcement authorities every 90 days for 25 years, and in light of the confidentiality that has historically attached to juvenile proceedings, we conclude that the retroactive application of SORNA's provisions to former juvenile offenders is punitive and, therefore, unconstitutional.2

US v Russell

4-2-2010 Dist of Columbia:

US v Russell
600 F.3d 631 (2010)

Defendant Mark Russell pleaded guilty to one count of travel with intent to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b) (2006). The district court sentenced him to 46 months of imprisonment and 30 years of supervised release.

A special condition of his supervised release specifies that Russell may not "possess or use a computer for any reason." Russell challenges the duration of his supervised release and the computer restriction, arguing that each is substantively unreasonable. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We affirm the length of the supervised release, but vacate the computer restriction and remand for resentencing.

---

One judge writing separately commented about recidivism:

WILLIAMS, Senior Circuit Judge, concurring:
I write separately to elaborate on two issues: the scope of review and the probability of recidivism.

... ... ...

Risk of recidivism. At sentencing Russell argued that he was unlikely to repeat his offense, pointing to Department of Justice data on the recidivism rates for various types of offenders, including child molesters. The data, which Russell never mentioned in his appellate briefs, are quite interesting and seem to place child molesters at the low end of the distribution. One report, U.S. Department of Justice: Bureau of Justice Statistics, Recidivism of Prisoners Released in 1994 Table 10 (June 2002), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/rpr94.pdf, provides the percentage of approximately 272,111 inmates released in 1994 in 15 states who were rearrested within three years of release for the type of crime for which he/she was imprisoned, namely, homicide, rape, robbery, assault, burglary, larceny/theft, motor vehicle theft, fraud, drug offenses, and public order offenses. The numbers for those categories are, respectively, 1.2, 2.5, 13.4, 22.0, 23.4, 33.9, 11.5, 19.0, 41.2 and 31.2 percent.

But another report, Bureau of Justice Statistics, Recidivism of Sex Offenders Released from Prison in 1994 Table 22 (Nov.2003), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/rsorp94.pdf, shows the analogous rates of recidivism for child molesters to be lower than all but two categories of that set of offenders, and radically lower than most. It reports that of the 4,295 inmates convicted of child molestation who were released in 1994, only 5.1 percent were rearrested for any sex crime within three years.

The DOJ statistics also have implications for Russell's age and his lack of prior offenses. The rearrest rate for child molesters with no arrests prior to the one leading to their imprisonment was about half that for those with a prior arrest for any crime. See id. at Table 28 (Page 33). And the rearrest rate for persons 45 or over was only about 60 percent of the average rate. See id. at Table 25 (page 31).

Note: Unfortunately the latest versions of Adobe Reader do not allow -linking directly to a specific page- so we have shown the pages (33 and 31) where those tables are and you will have to scroll down to them.

US v Waybright

NOTE: Both Waybright (below) and US v. Powers,544 F.Supp.2d 1331, 1333-36 (M.D.Fla.2008) are in agreement, that, 42 USC 16913 is unconstitutional, and both, have dismissed charges brought against defendants. Neither case has been appealed, but, all other courts simply say "we disagree with Waybright and Powers" and decide otherwise. i.e., that 42 USC 16913 is constitutional. See one explanation in US v Vardaro 575 F.Supp.2d 1179 (2008). So be aware of these circumstances.

6-11-2008 Montana:

US v Waybright
561 F.Supp.2d 1154 (2008)

Bernard Lenwood Waybright was charged in a two-count indictment with failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). Section 2250(a) is part of the Sex Offender Registration and Notification Act ("SORNA" or the "Act"). The section makes it a federal crime for a sex offender who is required to register under SORNA to travel in interstate commerce and then fail to register. Waybright was convicted of a crime in West Virginia that obligated him to register under SORNA. He traveled to Montana, and did not register with local law enforcement authorities in Montana.

Waybright filed three motions to dismiss the indictment, asserting seven different legal grounds for dismissal. He contends:

• (1) Congress exceeded its power under the Commerce Clause in enacting SORNA's registration requirements and making it a federal crime to fail to register;
• (2) SORNA violates the Tenth Amendment because it requires state officials to accept federally-mandated sex offender registrations before any state chooses to implement SORNA;
• (3) SORNA violates the right to travel because it subjects sex offenders who move to another state to stiffer registration requirements and penalties than those that remain in a single state;
• (4) Congress violated the non-delegation doctrine by authorizing the Attorney General to determine whether SORNA applied retroactively;
• (5) regulations issued by the Attorney General pursuant to SORNA violate the Administrative Procedure Act because they were promulgated without notice and comment;
• (6) Waybright cannot be convicted of violating 18 U.S.C. § 2250(a) because Montana has not implemented SORNA; and
• (7) Waybright's conviction would violate due process of law because Waybright was not notified of his obligation to register under SORNA. Oral argument on Waybright's motions took place on June 4, 2008.

No court of appeals has addressed Waybright's arguments. It is evident that the same or similar arguments have been raised in district courts around the country. These courts have mostly rejected such challenges for varying reasons.

In my view, those district courts have it right for the most part. I conclude that all of Waybright's arguments, except one, lack merit. I agree with Waybright's claim that enactment of 42 U.S.C. § 16913, which requires all sex offenders to register regardless of whether they travel in interstate commerce, is not a valid exercise of Congress' power under the Constitution.

I therefore declare 42 U.S.C. § 16913 unconstitutional. Moreover, because Waybright cannot be convicted of failing to register under § 2250(a) unless the government proves he was required to register under § 16913, the Indictment against Waybright must be dismissed without prejudice.

... ... ...

IV. Conclusion
For the reasons set forth above,

IT IS HEREBY ORDERED that Defendant Waybright's Motion to Dismiss Based Upon APA, Tenth Amendment, and Right to Travel Violations (dkt # 13) is DENIED.

IT IS FURTHER ORDERED that Defendant Waybright's Motion to Dismiss Based Upon Montana's Failure to Implement SORNA, Due Process Violation, and Violation of the Non-Delegation Doctrine (dkt # 15) is DENIED.

IT IS FURTHER ORDERED that Defendant Waybright's Motion to Dismiss Based Upon Commerce Clause Violations (dkt # 11) is GRANTED IN PART and DENIED IN PART. The motion is DENIED with respect to 18 U.S.C. § 2250(a) because Congress did not exceed its power under the Commerce Clause in enacting this provision. The motion is GRANTED with respect to 42 U.S.C. § 16913. Congress exceeded is power in enacting 42 U.S.C. § 16913, and thus, the provision is unconstitutional.

IT IS FURTHER ORDERED that the Indictment against Defendant Waybright is DISMISSED WITHOUT PREJUDICE.

Article: Molloy: Sex offender registry rule unconstitutional

Miller v Skumanick

3-30-2009 Pennsylvania:

Miller v Skumanick
605 F.Supp.2d 634 (2009)

Before the court is plaintiffs' motion for a temporary restraining order (TRO). Having been briefed and a hearing having been held, the matter is ripe for disposition.

Background
At issue in this case is the practice of "sexting," which has become popular among teenagers in recent years. (Complaint (Doc. 1) (hereinafter "Complt.") at ¶ 7). According to the plaintiffs, this is "the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the Internet." (Id.). Typically, the subject takes a picture of him- or herself with a digital camera or cell phone camera, or asks someone else to take that picture. (Id. at ¶ 8). That picture is stored as a digitized image and then sent via the text-message or photo-send function on a cell phone, transmitted by computer through electronic mail, or posted to an internet website like Facebook or MySpace. (Id. ¶ 9). This practice is widespread among American teenagers; studies show approximately 20% of Americans age 13-19 have done it. (Id. ¶ 10).

Images and Threatened Prosecutions
In October 2008, Tunkhannock, Pennsylvania School District officials confiscated several students' cell phones, examined them and discovered photographs of "scantily clad, semi-nude and nude teenage girls." (Id. at ¶ 12). Many of these girls were enrolled in the district. (Id.). The School District reported that male students had been trading these images over their cell phones. (Id. at ¶ 13).

The School District turned the phones over to Defendant Skumanick, the District Attorney of Wyoming County, Pennsylvania. (Id. at ¶ 13). Skumanick began a criminal investigation. (Id.). In November 2008, Skumanick stated publically to local newspaper reporters and a district assembly at Tunkhannock High School that students who possess inappropriate images of minors could be prosecuted under Pennsylvania law for possessing or distributing child pornography, 18 PENN. STAT. § 6312, or criminal use of a communication facility, 18 PENN. STAT. § 7512. (Id. at ¶ 15). Skumanick pointed out that these charges were felonies that could result in long prison terms and would give even juveniles a permanent record. (Id. at ¶ 16). Defendant contends that if found guilty of these crimes, the three minor plaintiffs would probably be subject to registration as sex offenders under Pennsylvania's Registration of Sexual Offenders Act ("Meghan's Law"), 42 P.S. § 9791, for at least ten years and have their names and pictures displayed on the state's sex-offender website. (Id. at ¶ 17).

... ... ...

The court agrees with the plaintiffs that the public interest would be served by issuing a TRO in this matter as the public interest is on the side of protecting constitutional rights. This factor too supports issuing a TRO.

Conclusion
Upon balancing the TRO factors, we find that each factor weighs in favor of granting the TRO. Accordingly, we will grant the plaintiffs' motion for a temporary restraining order. An appropriate order follows.

ORDER
AND NOW, to wit, this 30th day of March 2009, the plaintiffs' motion for a temporary restraining order (Doc. 2) is hereby GRANTED. The defendant, Wyoming County District Attorney George Skumanick, and his officials, employees, agents and assigns, are hereby ENJOINED from initiating criminal charges against plaintiffs Marissa Miller, Grace Kelly and Nancy Doe for the two photographs at issue. This order shall be effective immediately.

A hearing on plaintiffs' request for a Preliminary Injunction will be held on June 2, 2009. A scheduling order will follow.

Plaintiffs' motion for leave to file the original complaint and proceed under pseudonyms and for a protective order (Doc. 3) is hereby GRANTED.

Plaintiffs' motion to compel the defendant to produce the photographs in question (Doc. 4) is hereby DENIED as moot. The defendant has supplied plaintiffs with the photographs.

Article: 3rd Circuit Panel Mulls if Teen 'Sexting' Is Child Pornography

US v Miller

2-5-2010 Pennsylvania:

US v Miller
594 F.3d 172 (2010)

Appellant Donald R. Miller was sentenced to thirty months' imprisonment and a lifetime term of supervised release following his conviction for possession of child pornography and possession of marijuana. The District Court imposed eight special conditions of supervised release, including a restriction on internet access, mandatory computer monitoring, and a limitation on association with minors. On appeal, Miller challenges the duration of his term of supervised release and four of the eight special conditions.

We agree with Miller that the lifetime limitation on internet use is a greater restraint of liberty than is reasonably necessary and that the restriction on his association with minors is overbroad. Accordingly, we will vacate and remand to the District Court for further proceedings consistent with this opinion.

US v Heckman

1-11-2010 Pennsylvania:

US v Heckman
592 F.3d 400 (2010)

Arthur William Heckman was indicted and pled guilty to one count of transporting child pornography, in violation of 18 U.S.C. § 2252(a)(1).1 He was sentenced to 180 months' imprisonment, followed by a lifetime term of supervised release. On appeal, Heckman challenges three "Special Conditions of Supervision" imposed by the District Court for the remainder of Heckman's life:

• 1) an unconditional ban on Internet access;
• 2) a requirement that he participate in a mental health program; and
• 3) a restriction on any interaction with minors.

While we affirm the mental health condition, we vacate the other challenged conditions and remand for resentencing consistent with this opinion.

... ... ...

Cases involving child pornography are among the most troubling we encounter. The victims are innocent and defenseless, the materials illicit and timeless.16 Heckman emailed 18 images of children engaging in sexually explicit conduct to a stranger in an Internet chat room. This was only the latest offense by a lifelong sexual predator, and it was appropriate for the District Court to sentence him to 15 years' imprisonment and a lifetime term of supervised release.

Yet the Court's discretion in these matters (though justifiably broad) is not unlimited. When imposing special conditions of supervised release, it is limited to those conditions that "involve[] no greater deprivation of liberty than is reasonably necessary." 18 U.S.C. § 3583(d)(2). Furthermore, the Court may not delegate to a probation officer the authority to "decide the nature or extent of the punishment imposed upon a probationer." Pruden, 398 F.3d at 250. In vacating certain of the District Court's special conditions in this case, we do not mean to question the need for release supervision responsive to Heckman's specific offense and his lifetime of misdeeds. To do so, however, requires a balancing of considerations that affect not only this case, but those that follow.

For these reasons, we affirm the mental health condition imposed by the District Court as one of the conditions of supervised release. However, we vacate the special conditions pertaining to Internet access and interaction with minors. Thus we remand for resentencing consistent with this opinion.

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US v Utesch

3-2-2010 Tennessee:

US v Utesch
596 F.3d 302 (2010)

John F. Utesch ("Utesch") appeals the district court's denial of his motion to dismiss his indictment for violating the Adam Walsh Sex Offender Registration and Notification Act of 2006 ("SORNA" or "the Act"), Pub.L. 109-248. Utesch pleaded guilty after reserving his right to challenge the Act and its application to him on constitutional and other grounds. The district court sentenced him to three months of incarceration and ten years of supervised release.

On appeal, Utesch argues that

• (1) SORNA cannot apply to him without violating the Ex Post Facto and Due Process Clauses because the three states among which he moved have not implemented the Act;
• (2) his conviction violates due process because the government failed to notify him of his obligation to register under the Act;
• (3) SORNA's grant of authority to the Attorney General to make the Act retroactive violates the nondelegation doctrine;
• (4) the Attorney General's regulation making SORNA retroactive violated the Administrative Procedure Act ("APA");
• (5) SORNA's application under 18 U.S.C. § 2250(a)(2)(A) violates the Commerce Clause;
• (6) SORNA's application under 18 U.S.C. § 2250(a)(2)(B) violates the Commerce Clause and Ex Post Facto Clause; and
• (7) SORNA violates the Tenth Amendment by requiring states to implement its provisions.

Utesch also challenges the district court's imposition of certain special conditions of supervised release on the grounds that they are not reasonably related to the 18 U.S.C. § 3553(a) sentencing factors, they involve greater deprivation than necessary to achieve the purposes of sentencing, and they are inconsistent with policy statements of the U.S. Sentencing Commission.

As explained below, we REVERSE the district court's order based on the failure of the Attorney General's retroactivity regulation to conform to the requirements of the APA. Accordingly, we do not reach Utesch's constitutional challenges, and we need not address his conditions of release.

... ... ...


III. CONCLUSION

Because the first properly promulgated regulation making SORNA retroactive became effective eight-and-a-half months after the final date covered by Utesch's indictment, the district court should have dismissed the indictment.

Accordingly, we REVERSE the district court's denial of Utesch's motion to dismiss the indictment, and we VACATE his conviction and sentence.

We therefore do not reach Utesch's constitutional challenges to SORNA or his objections to the special conditions of release imposed by the district court.

US v Doshak

12-29-2009 Ohio:

US v Doshak
No. 08-3141.

Charles A. Doshak appeals his conviction for failing to register pursuant to the Sex Offender Registration and Notification Act ("SORNA"), 18 U.S.C. § 2250. He argues that SORNA's provisions do not apply to him. He also claims that SORNA violates the Ex Post Facto Clause, the Due Process Clause, and the Spending Clause, and is an impermissible delegation of authority to the Attorney General. Finally, he argues that the Attorney General's interim rule on retroactivity violates the Administrative Procedures Act and principles of federalism.

Because SORNA does not apply to Doshak, we VACATE and REMAND. Consequently, we need not address Doshak's other arguments.

I. Factual Background
In 1993, Doshak was convicted of one count of corruption of a minor, pursuant to Ohio Revised Code § 2907.04, a third-degree felony. Several years later, in 1997, Ohio's sexual classification and registration statute went into effect. Although Doshak was given notice of his duty to register under this law, he failed to do so. Consequently, he was convicted by an Ohio court in 2002 for failure to register.

On July 27, 2006, SORNA became effective. In October of that same year, Doshak finally signed a registration form indicating that his residence was in Akron, Ohio. The following month, he left the state to live with his girlfriend in Arizona. He did not inform Ohio officials of his move or register as a sex offender in Arizona.

On February 28, 2007, the United States Attorney General promulgated an emergency regulation that purportedly applied SORNA's registration requirements to persons convicted before July 27, 2006. See 28 C.F.R. § 72.3. The regulation sought to make SORNA's registration requirements immediately effective against persons who, like Doshak, were convicted of sex crimes prior to SORNA's effective date.

On March 20, 2007, Doshak was arrested in Arizona and subsequently indicted by a federal grand jury. Specifically, the indictment alleged that he violated 18 U.S.C. § 2250 by, "on or about October 26, 2006, through on or about March 20, 2007," traveling in interstate commerce and knowingly failing to register and update his registration. After the district court denied his motion to dismiss, he entered a conditional plea agreement, expressly reserving his right to appeal the order. He was sentenced to twenty-seven months' imprisonment and five years' supervised release.

... ... ...

Thus, the only issue before this court is whether Doshak was subject to SORNA's requirements during the period covered by his indictment. His indictment charged failure to register from October 26, 2006, through March 20, 2007. In Cain, we held that the Attorney General's regulation was not effective against Cain, because his indictment covered a period ending on March 28, 2007, "less than thirty days after promulgation of the regulation, and a month before the close of the comment period." Cain, 583 F.3d at 420. Similarly, Doshak's indictment covered a period ending March 20, 2007. Thus, Doshak was not subject to SORNA's criminal sanctions during the period alleged in the indictment. His conviction, therefore, must be vacated.1

VACATED and REMANDED.

Reynolds v US

11-2-2009 Pennsylvania:

Reynolds v US
132 S.Ct. 975 (2012)
181 L. Ed. 2d 935

Third Circuit Decision Appealed From:
US v Reynolds

On Remand from the US Sup court see below where it says ON REMAND:

The federal Sex Offender Registration and Notification Act (Act), 120 Stat. 590, 42 U.S.C. § 16901 et seq. (2006 ed. and Supp. III), requires those convicted of certain sex crimes to provide state governments with (and to update) information, such as names and current addresses, for inclusion on state and federal sex offender registries. §§ 16912(a), 16913-16914, 16919(a) (2006 ed.). The Act makes it a crime for a person who is "required to register" under the Act and who "travels in interstate or foreign commerce" knowingly to "fai[l] to register or update a registration...." 18 U.S.C. § 2250(a). The question before us concerns the date on which this federal registration requirement took effect with respect to sex offenders convicted before the Act became law.

The Act defines the term "sex offender" as including these pre-Act offenders. 42 U.S.C. § 16911(1); see Carr v. United States, 560 U.S. ___, ___, 130 S.Ct. 2229, 2235-2236, 176 L.Ed.2d 1152 (2010). It says that "[a] sex offender shall register." § 16913(a). And it further says that "[t]he Attorney General shall have the authority to specify the applicability of the [registration] requirements ... to sex offenders convicted before the enactment of this chapter...." § 16913(d) (emphasis added). In our view, these provisions, read together, mean that the Act's registration requirements do not apply to pre-Act offenders until the Attorney General specifies that they do apply. We reverse a Court of Appeals determination that, in effect, holds the contrary.

... ... ...

Finally, we note that some lower courts have read the Attorney General's specification authority as applying only to those pre-Act sex offenders unable to comply with the statute's "initial registration" requirements. See 42 U.S.C. § 16913(b). That, however, is not what the statute says. Rather, its Fourth Statement, § 16913(d), says that the Attorney General has the authority (1) to specify the applicability of the registration requirements to pre-Act (and preimplementation) offenders, "and" (2) to prescribe rules for their registration, "and" (3) to prescribe registration rules for other categories of sex offenders who are unable to comply with the initial registration requirements. See supra, at 979. The word "and" means that the Attorney General's authority extends beyond those pre-Act "sex offenders who are unable to comply" with the initial registration requirements.

III
For these reasons, we conclude that the Act's registration requirements do not apply to pre-Act offenders until the Attorney General so specifies. Whether the Attorney General's Interim Rule sets forth a valid specification consequently matters in the case before us. And we reverse the Third Circuit's judgment to the contrary.

We remand the case for further proceedings consistent with this opinion.
So ordered.

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From here down is on remand from the US Sup Court:
This case returns to us after the Supreme Court's review in Reynolds v. United States, 132 S.Ct. 975 (2012). Remand requires that we reach the merits of Reynolds's claim that the regulatory rule upon which his indictment was based was promulgated in violation of the Administrative Procedure Act ("APA"). This claim gives rise to three questions: (1) What is the appropriate standard of review of an agency's assertion of good cause in waiving the APA's notice and comment requirements? (2) Did the Attorney General have good cause to waive these requirements in promulgating a rule governing the retroactivity of the Sex Offender and Registration Notification Act's ("SORNA") registration requirements? (3) If the Attorney General lacked good cause to waive the requirements, was Reynolds prejudiced by the failure to comply with the APA's notice and comment requirements?

The courts of appeals are divided on each of these questions. On the first question, the Fifth and Eleventh Circuits have determined that the arbitrary and capricious standard is the appropriate standard for reviewing the Attorney General's actions, the Fourth and Sixth Circuits have not stated a standard but appear to use de novo review, and the Ninth Circuit has explicitly avoided the question.1 On the second question, the Fourth and Eleventh Circuits have held that the Attorney General had good cause to waive notice and comment, while the Fifth, Sixth, and Ninth Circuits have held that he did not.2 On the final question, the Fifth Circuit has held that the Attorney General's lack of good cause does not prejudice defendants, while the Sixth Circuit has held that it is prejudicial.3

We conclude that we need not decide the appropriate standard of review today because the Attorney General's assertion of good cause cannot withstand review even under the most deferential standard available. We also conclude that the Attorney General's lack of good cause is prejudicial to Reynolds. Accordingly, we will vacate Reynolds' conviction.

US v Felts

3-12-2012 Tennessee:

US v Felts
No. 11-5237.

David Wayne Felts was convicted for failing to register under the Sex Offender Registration Notification Act ("SORNA") in Tennessee.

Felts's appeal presents a case of first impression for this Circuit—can an offender be convicted for failure to register under SORNA if his home state, Tennessee, has not yet completely implemented the act?

Felts challenges the district court's denial of his motion to dismiss the indictment. In concert with six other circuits, we hold that SORNA is effective in a state, even prior to its complete implementation. Felts's alternate constitutional arguments—that SORNA violates the Ex Post Facto Clause, the nondelegation doctrine, and the Tenth Amendment—are without merit.

I
Felts served fifteen years of imprisonment for a 1994 conviction for rape of a child (a twelve-year-old female) on November 3, 1993 and aggravated sexual battery (a different twelve-year-old victim) on October 26, 1993. After his release, Felts, along with his girlfriend and her six-year-old daughter, moved to Florida, and then to San Juan, Puerto Rico, without notifying the registration authorities in his home state of Tennessee. Felts was indicted on one count of failing to register under SORNA, in violation of 18 U.S.C. § 2250(a). The district court denied Felts's motion to dismiss, after which Felts pleaded guilty. Felts was sentenced to 24 months of imprisonment. Felts now appeals the denial of the motion to dismiss.

... ... ...

Unlike the situation with the Brady Handgun Violence Prevention Act in Printz, Congress through SORNA has not commandeered Tennessee, nor compelled the state to comply with its requirements. Congress has simply placed conditions on the receipt of federal funds. A state is free to keep its existing sex-offender registry system in place (and risk losing funding) or adhere to SORNA's requirements (and maintain funding). Since Felts's conviction, Tennessee has come into substantial compliance with SORNA. The choice is that of the state.

SORNA does not violate the rights of Tennessee, or those of Felts as an individual, under the Tenth Amendment of the Constitution.

The judgment of the district court is AFFIRMED.

ACLU of Nevada v Cortex Masto

UPDATE 2-1-2014: This case is NOT OVER see what is happening now in 2014.

UPDATE 9-15-2012: According to a Sep't 2012 ACLU Memo, this 2008 Injunction has been overturned, so we are keeping this here for documentation of what has happened. See ACLU 2012 Memo for more info(also copied below).

10-7-2008 Nevada:

ACLU of Nevada v Cortex Masto
719 F.Supp.2d 1258 (2008)

On September 10, 2008, a hearing was held before Hon. Judge James C. Mahan on Plaintiffs' Motion for Summary Judgment. Appearing for plaintiffs the American Civil Liberties Union and Does 1 through 8 were Margaret McLetchie and Allen Lichtenstein. Robert Langford appeared for Plaintiffs Does A through S. Binu Palal and Kimberly Buchanan appeared for defendants.

Plaintiffs filed their complaint on June 24, 2008, requesting that this court declare A.B. 579 and S.B. 471 unconstitutional and to issue an injunction prohibiting the enforcement of changes to various N.R.S. provisions to be modified by the implementation of A.B. 579 and S.B. 471. Plaintiffs stated several causes of action, including that the laws violated:

(1) Procedural Due Process under the U.S. Constitution;

(2) the Ex Post Facto Clause under the U.S. Constitution;

(3) the Double Jeopardy Clause under the U.S. Constitution;

(4) the Contracts Clause under the U.S. and Nevada Constitutions;

(5) the Separation of Powers under the Nevada Constitution; and

(6) the prohibition against Vague and Ambiguous laws under the U.S. Constitution.

... ... ...

In July of 2007, the Nevada Legislature passed A.B. 579 which mandated that its restrictions, notification provisions, and potential criminal penalties apply retroactively, not just to pedophiles, but to anyone who has committed any offense that involves "any sexual act or sexual conduct with another"—no matter how minor the sexual offense was—and to offenses committed as long ago as July 1, 1956. In July of 2007, the Nevada Legislature also passed S.B. 471, which imposed G.P.S. monitoring and movement and residency restrictions on certain sex offenders. Plaintiffs submitted declarations, uncontroverted by the defendants, making clear that the Parole and Probation Department was applying S.B. 471's provisions retroactively.

Together, A.B. 579 and S.B. 471 redefine who is considered a "sex offender," the way in which sex offenders are classified and monitored, and what restrictions apply to which sex offenders. Prior to the enactment of these laws, sex offenders had been individually assessed and classified based on psychological assessments focusing on whether the offenders pose a risk to society and are likely to re-offend. The statutes mandated that sex offenders would henceforth be automatically classified based on one factor, the crime committed. Because of the changed standards, numerous people: (1) whose crimes were committed in the distant past; (2) who have been determined by the state of Nevada to be unlikely to re-offend; and (3) who have complied with the law, attended counseling, and who have not committed additional crimes would be thrown back into the system or be subject to more onerous monitoring and residency requirements.

A.B. 579 and S.B. 471 do not provide any procedural due process protections, leaving even people who believe that they have been miscategorized as sex offenders with no means to challenge the application of A.B. 579 and S.B. 471.
The application of these laws retroactively is the equivalent a new punishment tacked on to the original sentence—sometimes years after the fact—in violation of the Ex Post Facto and Double Jeopardy Clauses of the U.S. Constitution, as well as the Contracts clauses of the U.S. and Nevada Constitutions. Moreover, because they do not provide any procedural protections from their retroactive application, A.B. 579 and S.B. 471 violate the Due Process Clause of the U.S. Constitution.

For these reasons, the Court hereby grants Plaintiffs' Motion for Summary Judgment, making the June 30, 2008 Preliminary Injunction enjoining the enforcement of A.B. 579 and S.B. 471 a Permanent Injunction.

IT IS SO ORDERED.

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ACLU Letter (to preserve):

Ninth Circuit Rules on Nevada's Sex Offender Laws

September 10, 2012

The battle over the changing face of laws concerning sex offenders in Nevada seems to have come to an end. The ACLU of Nevada has been working on protecting the rights of convicted offenders since the passage of Assembly Bill 579 and Senate Bill 471 during the 2007 legislative session.

A.B. 579 and S.B. 471 drastically changed how Nevada deals with sex offenders. A.B. 579 retroactively changed the categorization of sex offenders, so regardless of the crime, offenders who committed misdemeanors with any sexual element since July 1, 1956 would fall within the purview of registration and some notification requirements. Many rehabilitated, low risk offenders whom the state of Nevada determined were unlikely to re-offend could be retroactively classified as "high risk" offenders based solely on their conviction. Prior to the enactment of these laws, sex offenders had been individually assessed and classified based on psychological evaluations focusing on whether the offenders pose a risk to society and are likely to re-offend. S.B. 471 prohibited some offenders from “knowingly being” within 500 feet of certain locations, and was also being applied retroactively.

In 2008, the ACLU of Nevada filed suit against the implementation of these laws, and in April 2012, the Ninth Circuit Court of Appeals issued a ruling in the case. The Ninth Circuit upheld A.B. 579 as constitutional, including its retroactive application. The permanent injunction issued by the District Court in 2008 was lifted and A.B. 579 has gone into effect. However, the Ninth Circuit stated that the laws concerning certain residency requirements cannot be applied retroactively, and has upheld the injunction against S.B. 471.

This case was fundamentally about the limits on the power of government to impose sweeping retroactive punishment. The ACLU was concerned that if the Nevada legislature was allowed to impose laws retroactively in this context, it could pass other laws that take effect retroactively, violating the Constitution.

The ACLU continues to monitor and fight against the imposition of laws like these. Even though the outcome of this important case was not completely what we had hoped, it is encouraging to know that our efforts do not go unnoticed and the mission of the ACLU of protecting the rights of all Nevadans continues to be successful.

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US v Davis

6-19-2012 5th Circuit:

US v Davis

Robert A. Davis, III, pleaded guilty, pursuant to a conditional guilty plea, to failure to register as a convicted sex offender in violation of the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a), reserving his right to appeal the challenges to SORNA made in his motion to dismiss the indictment. The district court sentenced Davis to 37 months in prison to be followed by a life term of supervised release.

On appeal, Davis argues that,

• (1) he was never advised of the registration requirements of SORNA, as required by 42 U.S.C. § 16917, in violation of the Due Process Clause;
• (2) the retroactive application of SORNA violates the Ex Post Facto Clause;
• (3) SORNA violates the Tenth Amendment by requiring state officials to administer federal law;
• (4) Congress violated the non-delegation doctrine by giving the Attorney General the power to decide whether SORNA applied retroactively;
• (5) SORNA's registration requirement violates the Commerce Clause by making failure to register a federal crime;
• (6) regulations issued by the Attorney General were given without notice and comment in violation of the Administrative Procedures Act (APA); and
• (7) SORNA does not apply to him because Mississippi has not yet adopted it.

Davis's complaints as to the notice and APA deficiencies, as well as his reliance on the holding in Reynolds v. United States, 132 S.Ct. 975 (2012), are unavailing as he traveled in interstate commerce after the final regulations were issued, which were published with proper notice and comment rulemaking. See 73 Fed. Reg. 38031-01.

His remaining claims are foreclosed by our opinion in United States v. Johnson, 632 F.3d 912 (5th Cir.), cert. denied, 132 S.Ct. 135 (2011). Davis asks us to reconsider the rulings in Johnson, and alternatively, he presents these issues to preserve them for further appellate review. This panel may not reconsider the court's precedent absent an overriding Supreme Court decision, a change in statutory law, or en banc consideration. See United States v. Zuniga-Salinas, 952 F.2d 876, 877 (5th Cir. 1992) (en banc).

Accordingly, the judgment of the district court is AFFIRMED.