US v Dixon

12-22-2008 Indiana:

US v Dixon
551 F.3d 578 (2008)

Our post and tags, is ONLY about Dixon case, Carr went on and appealed this court's decision and won in the US Supreme court.

The court said:
We have consolidated for decision the appeals in two cases that raise overlapping issues, primarily under the ex post facto clause of Article I, section 9, of the Constitution.

Both defendants were convicted—Dixon after a bench trial on stipulated facts, Carr after conditionally pleading guilty—of violating the Sex Offender Registration and Notification Act (part of the Adam Walsh Child Protection and Safety Act of 2006), 18 U.S.C. § 2250. The Act, which went into effect on July 27, 2006, imposes criminal penalties on anyone who, being required by the Act to register, being a convicted sex offender under either federal or state law, and traveling in interstate or foreign commerce, knowingly fails to register as a sex offender, unless he can prove that "uncontrollable circumstances" prevented him from doing so. 18 U.S.C. §§ 2250(a), (b)(1).

Congress instructed the Attorney General to "specify the applicability of the requirements of [the Act] to sex offenders convicted before [its enactment] or its implementation in a particular jurisdiction" and to "prescribe rules for the registration of any such sex offenders. . . who are unable to comply with" the requirement, also imposed by the Act, of registering before they are released from prison or, if they do not receive a prison sentence, within three days after being sentenced, and furthermore of re-registering within three days after a change of name, residence, employer, or student status. 42 U.S.C. §§ 16913(b), (c), (d).

We should never forget that, although the AG prescribed a rule to make SORNA retroactive, the AG NEVER prescribed any rules to notify those previously convicted or how they should proceed to register. Courts have continually ignored this fact.

The Attorney General issued an interim regulation on February 28, 2007, that makes the Sex Offender Registration and Notification Act applicable to persons, such as Dixon and Carr, who were convicted of sex offenses before the Act was passed. 72 Fed.Reg. 8896, 28 C.F.R. § 72.3. They were convicted of violating the Act because they did not register in Indiana—to which they had come before the Act was passed—after the issuance of the regulation.

As the reference to "implementation in a particular jurisdiction" indicates, the sex offender is required only to register with the state in which he is a resident, employee, or student, as well as the jurisdiction of his conviction if different from his residence. 42 U.S.C. § 16913(a). Other provisions of the Act establish a system for pooling the information in the state registries to create in effect a national registry. See 42 U.S.C. §§ 16912, 16918-20, 16923-25. Indiana has yet to establish any procedures or protocols for the collection, maintenance, and dissemination of the detailed information required by the Act, and Dixon argues that therefore he could not comply. But recall that the Act requires the Attorney General to "specify the applicability of [its] requirements . . . to sex offenders convicted before . . . its implementation in a particular jurisdiction," which the Attorney General did in his regulation of February 28, 2007. So Dixon was required by the Act to register with Indiana.

.... .... ...

An alternative analysis, which brings us to the same point however, harks back to our earlier discussion of fair notice. Concern with due process gives rise to the question "how a legislature must go about advising its citizens of actions that must be taken to avoid a valid rule of law," and "the answer to this question is no different from that posed for any legislative enactment affecting substantial rights. Generally, a legislature need do nothing more than enact and publish the law, and afford the citizenry a reasonable opportunity to familiarize itself with its terms and to comply." Texaco, Inc. v. Short, supra, 454 U.S. at 531-32, 102 S.Ct. 781; see Jones v. United States,121 F.3d 1327, 1328-30 (9th Cir.1997).

The close relation between the concern with providing that opportunity and the concern that animates the ex post facto clause was remarked by Justice Stevens in a concurring opinion in Hodel v. Irving,481 U.S. 704, 733 n. 18, 107 S.Ct. 2076, 95 L.Ed.2d 668 (1987): "A statute which denies the affected party a reasonable opportunity to avoid the consequences of noncompliance may work an injustice similar to that of invalid retroactive legislation." Whatever the minimum grace period required to be given a person who faces criminal punishment for failing to register as a convicted sex offender is, it must be greater than zero. An analogy can be drawn to Bouie v. City of Columbia,378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), where the Supreme Court held that "an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law." Id. at 353, 84 S.Ct. 1697.

Carr's case, to which we now turn, is simpler than Dixon's. Although his interstate travel like Dixon's preceded the application of the Sex Offender Registration and Notification Act to him, and although he assumes (as Dixon argues) that the Act requires that the travel postdate that application, the only ground of his appeal is that his conviction violated the ex post facto clause. But he does not and cannot complain that he was not given enough time to register in Indiana in order to avoid violating the Act, because he admits that he had still failed to do so "on or about July, 2007," almost five months after the Attorney General's regulation was issued that made the statute applicable to him. Five months is a sufficient grace period.

Remember that on our interpretation of the statute as filled out by the regulation, the duty to register does not come into force on the day the Act becomes applicable to a person, or on the next day or next week, but within a reasonable time; and Carr had a reasonable time within which he could have registered. Had he done so, he could not have been convicted of violating the Act. Since his violation was not complete when the Act became applicable to him, his rights under the ex post facto clause were not violated.

The judgment in Dixon's case is reversed with directions to acquit; the judgment in Carr's case is affirmed.

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Sex offender challenges registry law

10-25-2008 Indiana:

A Michigan City man who is challenging the constitutionality of the federal sex offender registry brought his case to the 7th Circuit Court in Chicago on Friday.

The case is the first challenge to the federal sex offender registry in the 7th Circuit, which sets case law for most of the Midwest.

Marcus Dixon was convicted in the Northern District's South Bend court in 2007 for failing to register with state authorities after he was released from a South Carolina prison, removed his electronic ankle bracelet and moved to Indiana in 2006.

Dixon's attorney, Bryan Truitt, argued the U.S. Constitution does not give the federal government jurisidiction over the crime, and that stiffer sentences imposed by federal law in 2007, which elevated the crime to a felony, should not apply to Dixon because he crossed state lines before the law changed.

"This is an issue that is purely for the states to decided, and all states have had laws on the books addressing this for 20 years," Truitt said.

Judges Frank H. Easterbrook, Richard Posner and Ilana Rovner mostly questioned Truitt about issues related to the changes to the mandatory federal sentences, Truitt said.

Dixon was arrested at a Michigan City apartment complex in April 2007. Dixon was 16 in 2001 when he was convicted of "sexual penetration of a minor under 16 years of age," a 14-year-old, court records state.

He registered as a sex offender in South Carolina upon his release, but had been living in Michigan City for several months when he was arrested. ..News Source.. by Andy Grimm Post-Tribune staff writer