Robertson v State

10-23-2008 Texas:

Robertson v State
No. 11-07-00098-CR.

The jury convicted Charles William Robertson of the third degree1 felony offense of failure to comply with the sex offender registration requirements, found the enhancement allegations to be true, and assessed punishment at confinement for life. We modify and affirm.

I. Issues
Appellant presents five issues for review. In the first and second issues, he challenges the legal and factual sufficiency of the evidence. In the third issue, he contends that the jury charge on the lesser included offense was fundamentally defective in that it did not contain all of the elements of the offense. In the fourth issue, appellant argues that the trial court erred in admitting State's Exhibit No. 1, a copy of a fax regarding appellant's prior registration as a sex offender. Appellant contends in his final issue that the evidence is insufficient to prove the enhancement allegations.

... ... ...

VI. Holding

The judgment of the trial court is modified to show that appellant was convicted of a third degree felony offense and, as modified, affirmed.

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Appeal denied for sex offender

5-4-2010 Texas:

AUSTIN The highest criminal court in Texas on Wednesday denied an appeal for an Odessa man serving life in prison for failure to register as a sex offender. The Texas Court of Criminal Appeals in Austin denied a writ of habeas corpus to 62-year-old Charles William Robertson.

An Ector County jury convicted Robertson in March 2007 and sentenced him to life in prison, the maximum penalty. District Attorney Bobby Bland at the time said Robertson’s sentence was “the most I’ve ever heard of for failure to comply with sex offender registration.” He added that the sentence underscored a tendency of local juries to be hard on sex offenders.

A few months after the trial, Robertson pleaded guilty to molesting an 11-year-old girl Odessa girl. The girl’s grandmother declined to comment Wednesday on the appeals court decision.

Robertson, who previously had been convicted of rape, had filed his final appeal in March. ..Source.. ODESSA AMERICAN

Judge strikes down Warren County sex offender residence restrictions

4-26-2013 New York:

A state Supreme Court judge has tossed Warren County’s sex offender law, concluding that the restrictions on where convicted sex offenders can live and work ran counter to state law.

The county Board of Supervisors in 2006 passed the local law that banned sex offenders from living within 1,000 feet of playgrounds, schools and public parks for their entire lives.

State law bans sex offenders from living in proximity of places frequented by children only until they’ve completed parole.

Warren County state Supreme Court Justice Robert Muller ruled Wednesday in favor of an unidentified Queensbury man who was told last year he couldn’t move in with his mother in Queensbury.

“While they may be well-intended, statistics show they don’t make anyone safer and they further stigmatize former offenders,” said Kathy Manley, “John Doe’s” Albany-based attorney.

Manley’s client was convicted in 2010 of sexual acts with a minor who was under 16, and he served two years in prison, according to court documents.

Local laws like Warren County’s were adopted over the past decade in places throughout the state and have since repeatedly been struck down when challenged in court, because they are superseded by state law.

Warren County opted to not contest the lawsuit and send it to a lengthy, and potentially costly, court battle because similar local laws had fared poorly in state court.

“The decision is consistent with many court decisions from other counties,” said County Attorney Martin Auffredou. “The decision sort of speaks for itself.”

The laws keep sex offenders from finding work and medical and psychological treatment, essentially subjugating them to poverty and a lack of treatment, Manley said.

Auffredou suspended enforcement of the law in February after “John Doe’s” lawsuit was filed.

The county Board of Supervisors has taken no steps to override the local sex offender law, instead allowing the Supreme Court ruling to uphold or strike down the proximity ban. ..Source. by JON ALEXANDER

Doe v County of Rensselaer

12-22-2009 New York:

Doe v County of Rensselaer
2009 NY Slip Op 51456(U)

In this proceeding, plaintiffs, registered sex offenders, are seeking to enjoin defendant Rensselaer County from enforcing sex offender residency restrictions contained in a local law. Plaintiffs now move for summary judgment pursuant to CPLR 3212. Defendant opposes the motion.

Rensselaer County Local Law 6 of 2006 became effective in July 2006 and it provides for residency restrictions for certain sex offenders. The local law defines the term "sex offender" as "a person who has been convicted of a sexual offense against a minor and has received a level 2 or 3 designation as defined under Article 6-C of the New York State Correction Law." The restriction provided for in the law is that "[a] sex offender as herein defined shall not reside within two thousand feet of the real property comprising a public or nonpublic elementary or secondary school or a child care facility." The following exceptions are provided for within the law:

... ... ...

The Court notes that this issue has been comprehensively addressed and analyzed by courts in Rockland County and Albany County (People v Oberlander, 2009 WL 415558[Sup. Ct. Rockland County January 22, 2009]; People v Blair, 23 Misc3rd 902 [Albany City Ct. February 18, 2009]). The opinions in those cases reference New York's detailed legislative scheme relating to the community management of sex offenders and concluded that the State has impliedly and expressly preempted the regulation and management of sex offenders, including sex offender residency restrictions (see id.). Specifically, New York has the Sex Offender Registration Act (SORA), also known as Megan's Law, the Sex Offender Management and Treatment Act, which created Article 10 of the Mental Hygiene Law, and also has statewide sex offender residency restrictions enforceable as a condition of parole or probation, detailed above.

As noted by plaintiffs, and as cited in the above two opinions, additional compelling proof is found in the Approval Memorandum to Chapter 568 of the Laws of 2008, which enacted changes to the Executive Law and the Social Services Law relating to prior approval by probation departments for sex offender housing. The Approval Memorandum states in relevant part that "the placement of these offenders in the community has been and will continue to be a matter that is properly addressed by the State." After considering New York's comprehensive legislative scheme, this Court concurs with the analysis in the recent court opinions addressing similar local laws.

Based upon the foregoing, this Court finds that sex offender residency restrictions are an area preempted by the State and therefore Rensselaer County Local Law No. 6 of 2006 is preempted and cannot be given effect.

When Can Sex Offender Registration Requirement be Removed?

Note: Pertains ONLY to Arizona as of this date. Always check w/the lawyer if reading this after that date, link to law office below.

4-29-2011 Arizona:

Sex offender registration orders can be either "mandatory" or "discretionary" under Arizona law. Virtually all mandatory registration sex offenses require permanent registration. In very limited circumstances however, mandatory registration requirements can be withdrawn. When registration is discretionary, i.e., the judge had the choice of whether or not to impose a registration requirement, then the court may remove the registration requirement by request at any time.

Offenses for which sex offender registration is mandatory are set forth by list in Arizona Revise Statutes § 13 – 3821. Those offenses include the following:

..Unlawful imprisonment of a minor
..Kidnapping of a minor
..Sexual abuse of a minor
..Sexual conduct with a minor
..Molestation of a child
..Continuous sexual abuse of a child
..Taking a child for the purpose of prostitution
..Child prostitution
..Commercial sexual exploitation of a minor

..Sexual exploitation of a minor
..Luring a minor for sexual exploitation
..Sex trafficking of a minor
..A second violation of indecent exposure to a child under 15

..A second violation of public sexual indecency to a child under 15
..A third violation of indecent exposure to any party
..A third violation of public sexual indecency to any party
..Aggravated luring a minor for sexual exploitation

Discretionary registration offenses include any other offense listed in Chapter 14 of the Arizona Criminal Code or any offense where there is a finding that the offense was motivated by sexual interest. Examples of other chapter 14 offenses that provide for discretionary sex offender registration under Arizona law include sexual abuse of an adult, indecent exposure, and public sexual indecency.

When an offense requires mandatory registration, there are only three limited circumstances in which the registration requirement can be removed. First, the registration requirement may be removed if the offender was under 18 at the time of the offense. Second, if the registration offense was unlawful imprisonment only, the registration requirement can be removed after the passage of a certain period of time. Third, if the offense was kidnapping only, the registration requirement may be removed after a certain period of time. ..Source.. by Law Offices of Joshua S. Davdson

The ERROR in Oregon's STATE v. DEPECHE

4-14-2011 Oregon:

Readers are always hearing me talk about the forms, the forms, well here is a Oregon case that will make most folks mad as heck: STATE v. DEPECHE.

The FACTS: This fellow moves from wherever to a new address, he and his Mother go to the local police to report his address change. Under Oregon's law he has to have proof that he lives at the new address and according to the police -on that day (within time limits for reporting)- he did not have that proof. As a result he was charged and convicted of failure to report his change of address. He then appeals, thats where we are now.

From the case:

Defendant appeals a judgment of conviction for one count of felony failure to report as a sex offender, ORS 181.599 (2005),1 assigning error to the trial court's denial of his motion for a judgment of acquittal. He argues that the evidence is insufficient to prove that he committed the offense because he attempted to make a timely report and was prepared to comply with all of the statutory requirements for reporting, but his report was refused. As explained below, we agree with defendant that his statutory obligation to report was satisfied and, accordingly, reverse.

The relevant facts are few and undisputed. Defendant was required to comply with the sex offender registration statutes as a result of his 1995 conviction for sexual abuse in the second degree, a felony for which he was sentenced to 60 months' probation. Sometime in early May 2007, defendant moved out of his residence in Portland and into a new one. On Monday, May 14, 2007, defendant went with his mother to the Beaverton Police Department to report his change of address, as required by ORS 181.596(4)(b)(A). The police department had no record of defendant's report and was unable to confirm that defendant had visited the department in May. However, the state does not dispute that defendant timely attempted to report his change of address with the Beaverton Police Department on May 14, "but, because he did not have proof of his new address—as is required by that police department—the department did not complete the registration form necessary to fulfill defendant's reporting requirement." He was subsequently charged, in Multnomah County Circuit Court, of one count of felony failure to report as a sex offender based on his failure to report his change of address. ORS 181.599(1)(c).2

Defendant was convicted, following a bench trial, of one count of felony failure to report as a sex offender.3 He now appeals.

On appeal, defendant contends that he satisfied his legal obligation to report because he presented himself in person to the Beaverton Police Department within the required timelines and was fully prepared to comply with the statutory reporting requirements, but was refused.4 The state responds that more is required under the statute than merely attempting to report; rather, according to the state, "defendant has reported only when he has provided sufficient information for an agency or official to complete a sex offender registration form." The address verification requirement, in the state's view, is a "logical" requirement for completing the form, given the purpose of the sex offender registration statutes to facilitate tracking of convicted sex offenders. Because defendant did not provide that verification or, alternatively, report to another law enforcement agency (presumably one that did not require proof of address), the state contends, the evidence was sufficient to convict defendant of the offense.

Now you can read how the case was resolved by the appellate court, yes he was not convicted according to them, but there is another reason, far more relevant that the entire court process missed.

Its obvious that "Mom's Word that he was living at the new address is not proof that sex offender registration laws will accept." Yes, I have seen other cases where Mom's Word was used to convict someone, but to exonerate someone, sorry Charlie, no good!

For now have a great day and a better tomorrow.
eAdvocate

Former Salem man cleared of failing to register

4-27-2013 Massachusetts:

SALEM — A level 3 sex offender who moved out of a Salem rooming house without first telling police last year was found not guilty late Thursday by a Salem District Court jury.

Jason Wallace, 40, formerly of 116 Lafayette St., was convicted of indecent assault and battery in 1992 in Peabody, and was later deemed to be among the sex offenders at highest risk of re-offending by the Sex Offender Registry Board.

Wallace had been registered in Lynn, then moved to Salem in 2011.

He initially told the Salem police where he was living.

But during a visit to the rooming house on an unrelated matter last February, Salem police detective Stephen Bona discovered that Wallace had been evicted.

For several days, until Wallace finally contacted Lynn police, authorities had no idea where he was, prosecutor Lynsey Legier told the jury of six women.

“He knew he had to give (police) 10 days notice prior to any change in address,” Legier argued to the jury. “He knew that ... because he’s done it in the past.”

Wallace’s attorney, Joan McAbee, argued that the sex offender registration statute was vague and confusing, even to her — an admission that later led to a warning to jurors to disregard the lawyer’s personal opinion.

“He tried to do what he was supposed to do,” McAbee argued to the jury.

Courts reporter Julie Manganis can be reached at 978-338-2521, via email at jmanganis@salemnews.com or on Twitter @SNJulieManganis. ..Source.. by JULIE MANGANIS STAFF WRITER

State v Hall

While this is a win on the points raised, the case is remanded for further processing. [4-25-2013: State sex offender act modified ]

12-5-2012 New Mexico:

State v Hall
2013-NMSC-001

Defendant Bruce Hall was convicted of a sex crime in California pursuant to a plea agreement. Hall subsequently moved to New Mexico and was charged with the fourth-degree felony of failing to register as a sex offender in violation of NMSA 1978, Section 29-11A-4(N) (2005).

The New Mexico Sex Offender Registration and Notification Act (SORNA), NMSA 1978, §§ 29-11A-1 to -10 (1995, as amended through 2007), requires a person convicted of any of twelve enumerated sex offenses, or who is convicted of an equivalent offense in any other jurisdiction, to register as a sex offender with the county sheriff for the New Mexico county in which that person resides.

What constitutes an equivalent offense and how a court makes such a determination are the subjects of this opinion. We hold that an offense is "equivalent" to a New Mexico offense, for purposes of SORNA, if the defendant's actual conduct that gave rise to the out-of-state conviction would have constituted one of the twelve enumerated offenses requiring registration pursuant to SORNA.

When the defendant's out-of-state conviction results from a plea agreement, courts may look to the charging documents, the defendant's written plea agreement, and the transcript of the plea hearing to determine the defendant's actual conduct and whether such conduct would have constituted one of the twelve enumerated offenses.

... ... ...

CONCLUSION

To determine whether a foreign sex offense is equivalent to a New Mexico sex offense for purposes of SORNA, and where the two offenses when compared do not share the exact same elements, a court must look beyond the elements of the offense and consider whether the defendant's actual conduct, had it occurred in New Mexico, would have constituted a registrable offense. However, in this case, there is an insufficient factual record on which to determine the defendant's actual conduct. For this reason, we reverse the Court of Appeals and remand to the district court for further proceedings consistent with this opinion, with leave for Hall to withdraw his guilty plea.

IT IS SO ORDERED.

Man failed to register, but he wasn't a sex offender

1-7-2012 Arkansas:

Michael P. Howard's case was an unusual one. Twice in four months he was arrested for failing to register as a sex offender, even though he'd never been convicted of a sexual offense.

This week in Baxter County Circuit Court, Prosecutor Ron Kincade reduced the charges against the 30-year-old Howard to obstruction of governmental operations and agreed to a year's probation.

Kincade told the court that while Howard did have a battery conviction in Missouri, "he has never been convicted of any sex offense."

"There is no criminal history of a sexual offense of any kind," said the prosecutor.

However, Kincade said Missouri has "a crazy rule about battery" — or certain battery offenses — that require the person convicted to register with the state. He told the court that under Arkansas statutes, any offender required to register in another state must register in Arkansas as well, yet the only registration system Arkansas has is for sex offenders.

When local authorities discovered Howard was required to register in Missouri and had not registered when he moved into Baxter County, he was charged with failing to register as a sex offender in November 2010 and again in February 2011, even though he was not a sex offender.

Under the amended charge, Howard, who now lives at Booneville, was placed on one year's probation, and in each case he was fined $500 plus $420 in costs and fees. ..Source.. by THOMAS GARRETT

People v Oberlander

1-22-2009 New York:

People v Oberlander
2009 NY Slip Op 50274(U)

Following a Violation of Probation hearing in this matter, the defendant moved for an Order dismissing the violation. The defendant claimed Local Law No. 1 of 2007 was preempted by New York State Law.

The Violation of Probation alleges that the defendant violated the conditions of probation in that he "moved to a residence within 1,000 feet of a Rockland County pedophile-free child safety zone' in violation of Local Law No. 1 of 2007." Local Law No. 1 of 2007 provides that a sex offender shall not reside, work or loiter within a child safety zone. "The term child safety zone shall mean one thousand feet of the real property comprising a public or private, elementary, middle or high school, child care facility, park playground, public or private youth center or public swimming pool." Id.

The Court previously considered a pre-hearing motion to dismiss based upon the Constitutionality of the local law. In a decision and Order dated June 18, 2008, this Court held that Local Law No. 1 of 2007 was not Unconstitutional on its face or as applied to the defendant.

The defendant's Constitutional challenge was based upon the Free Exercise Clause of the First Amendment. The defendant claimed that because he is an observant orthodox Jew, he must live within walking distance of a Schul or temple. As a result he claims that the statute placed a burden on the practice of his religion. However, this Court held that the statute was facially neutral and did not unduly burden the defendant's practice of his religion. In that prior motion, the Court was not presented with the claim that Local Law No.1 of 2007 was preempted by State legislation.

Sex offender residency restrictions are multiplying throughout New York State, as local legislatures scramble to outmaneuver each other with highly restrictive ordinances designed to banish registered offenders from their communities.

"Not in my backyard" residency restrictions are spreading unchecked through county, town and village ordinance books from Suffolk County to Niagara Falls. More than 80 such laws have recently been enacted in New York. Police and prosecutors are now enforcing them, ordering offenders to move from restricted zones and filing criminal charges for non compliance. Even without vigorous enforcement, the ordinances interfere with parole and probation officers' efforts to find suitable housing for offenders. Alfred O'Connor, State Preemption of Local Sex-Offender Residency Laws N.Y.L.J. November 24, 2008 (hereinafter O'Connor).

... ... ...

"Under [the preemption] doctrine, even in the absence of an express conflict, a local law which regulates subject matter in a field which has been preempted by State legislation is deemed inconsistent with the State's transcendent interest.'" Ba Mar, Inc. v. County of Rockland,164 A.D.2d 605 (2nd Dep't 1991)(quoting Albany Area Builder's Assoc. v. Town of Guilderland,74 N.Y.2d 372 (1989)). "On the other hand, the mere fact that both the State and local governments seek to regulate the same subject matter does not, in and of itself, render the local legislation invalid on preemption grounds.

In order for the preemption doctrine to prohibit local legislation in a particular area there must be an intent on the part of the State to occupy the entire field." Id. "The legislative intent to preempt need not be express. It is enough that the Legislature has impliedly evinced its desire to do so and that desire may be inferred from a declaration of State policy by the Legislature or from the legislative enactment of a comprehensive and detailed regulatory scheme in a particular area." N.Y.S. Club Assoc. v. City of NY,69 N.Y.2d 211, 217 (1987). Additionally, "that intent may be implied from the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme, including the need for State-wide uniformity in a given area." Albany Area Builder's Assoc. v. Town of Guilderland,74 N.Y.2d 372, 400 (1989).

In nearly factually identical circumstances, a New Jersey Appellate Court struck down local legislation imposing housing restrictions of sex offenders holding that State law preempted local legislation (preempting more than 100 local sex offender ordinances). G.H. v. Township of Galloway,401 N.J.Super. 392 (App. Div. 2008). In doing so, that Court held that New Jersey's version of Megan's Law constituted a comprehensive legislative scheme enacted to protect citizens from sex offenders. Id.

... ... ...

According to his probation officer, the defendant submitted fifteen addresses for approval. Each time, the probation officer rejected the address as it fell within a safety zone. The probation officer conceded that no appropriate addresses existed in the Village of Monsey and that it was likely that none existed in the Town of Ramapo.

It is clear that the defendant tried to comply with the law. The defendant, on approximately fifteen occasions was able to find available housing. Each time, the defendant's proposed residence was rejected, not based upon the Probation Department's assessment of suitability, but, solely because it violated Local Law No.1. There was no resource available that would allow the defendant to determine the suitability of housing prospectively. The cumbersome procedure only exacerbates the central problem facing the defendant, namely, the lack of housing in suitable locations.

Accordingly, the defendant's motion is granted and the Violation of Probation is dismissed.

This Decision shall constitute the Order of the Court.

In the Matter of McClain

4-16-2013 North Carolina:

In the Matter of McClain
Nos. COA12-1258.

Petitioner Kevin McClain pled guilty to the felony offense of indecent liberties with a child on 29 January 2001. He was sentenced to fifteen to eighteen months imprisonment, thirty-six months of supervised probation, and was required to register as a sex offender under the North Carolina Sex Offender and Public Protection Registration Program, N.C.G.S. §§ 14-208.7-19A, which he did on 7 August 2001.

After ten years, McClain petitioned the Superior Court of New Hanover County to be removed from the sex offender registry. Petitioner admitted at the subsequent hearing on 13 June 2012 that during the past ten years he was "convicted of a felony for failure to comply with obligations under the sex offender registry law and served a period of imprisonment," and as a result, he did not have a "clean record." The court denied McClain's petition for removal from the registry on the grounds that the requested relief did not comply with federal standards as outlined in N.C.G.S. § 14-208.12A(a1) (2).

On appeal, petitioner McClain contends it was error for the trial court to deny his petition for removal from the sex offender registry on the basis that it did not comply with N.C.G.S. § 14-208.12A(a1) (2), because the incorporation of the Adam Walsh Child Protection and Safety Act of 2006 ("the Adam Walsh Act") and the federal Sex Offender Registration and Notification Act ("SORNA") into N.C.G.S. § 14-208.12A(a1) (2) is an unconstitutional delegation of legislative authority under the North Carolina Constitution.

Although another panel of this Court recently decided In re Hamilton, ___ N.C. App. ___, 725 S.E.2d 393 (2012) (incorporating and applying the requirements of the Adam Walsh Act under N.C.G.S. § 14-208.12A(a1) (2)), both parties agree that the constitutionality of the incorporation of those federal standards was not raised in that case. Therefore, because the instant case presents a question distinct from that at issue in In re Hamilton, we now consider petitioner's constitutional argument. Cf. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36-37 (1989) (holding that a court is bound by the decision of prior panels of the same court on the same issue). After careful consideration, we affirm the trial court's order.

... ... ...

Petitioner first registered pursuant to N.C.G.S. § 14-208.7 on 7 August 2001. He petitioned the trial court for removal on 29 May 2012, more than ten years later. Based on evidence at the hearing, the trial court found that evidence supported that petitioner had satisfied all the requirements for removal except the requirement that the relief he requested complied with the provisions of the federal Jacob Wetterling Act, as amended, and "any other federal standards applicable to the termination of [the] registration requirement," because petitioner admitted at trial that he did not have a "clean record." Based on these findings of fact, the court correctly concluded that petitioner is not entitled to the relief requested, and must continue to maintain registration.

Moreover, we must also note that even if petitioner's argument that the provision incorporating the Adam Walsh Act was unconstitutional as an improper delegation of legislative authority had merit, the trial court could still have exercised its discretion to deny petitioner's request to terminate his registration requirement. See In re Hamilton, ___ N.C. App. at ___, 725 S.E.2d at 399 (holding that "after making findings of fact" the trial court is "free to employ its discretion in reaching its conclusion of law whether [p]etitioner is entitled to the relief he requests" because N.C.G.S. § 14-208.12A(a1) states that the trial court "may" grant petitioner relief if the terms of the statute are met). The trial court's order denying petitioner McClain's petition is affirmed. Affirmed.

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eAdvocate notes:

The NC statute in question:

§ 14‑208.12A. Request for termination of registration requirement. (a1)(2) The requested relief complies with the provisions of the federal Jacob Wetterling Act, as amended, and any other federal standards applicable to the termination of a registration requirement or required to be met as a condition for the receipt of federal funds by the State, and

The more I think about this case, the more I become concerned that the court even mentioned SORNA. Here is why. The NC law basically trys to draw in ANY FEDERAL law which concerns "Petitioning for Removal from the Registry (PGOR)." OK, at the time NC enacted its law (before SORNA was enacted) to permit folks to PGOR, SORNA did not exist, and that can be argued.

Further, SORNA after enactment has NO PGOR provision, so what were NC Lawmakers thinking; no one knows, and the court can only speculate, the statute doesn't mention one word about SORNA. Now, as to "Clean Record," if that were NC lawmaker's thinking, that is not spelled out in the NC law either. Again, at best the court can only speculate, lawmakers were thinking about the, yet to be enacted, SORNA definition.

The entire NC statute is about "Petitioning to get off the registry (PGOR)," and I'm sure lawmakers could spell out what conditions a petitioner has to meet to be granted relief, they didn't and that leaves a court to do one of two things:

• 1) Speculate as to what the NC Legislature meant without facts to support speculation; or,
• 2) Substitute the courts thinking as to what conditions a PGOR petitioner must meet to receive relief, and base that on a retroactive erroneous interpretation of SORNA.

The court in McClain did #2 and that is illegal for it to do; courts cannot substitute its thinking for that of the legislature. I totally disagree with the McClain court decision, but I am but a tiny voice.

Belief here, this can be appealed, hopefully lawyers will take control and do so.

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See also: The Wetterling Finding: Not an Unconstitutional Delegation

The court of appeals recently decided another case on petitions to terminate sex offender registration. Once again, the decision turned on what I have called the “Wetterling finding”—the rule in G.S. 14-208.12A(a1)(2) that a judge may not remove a person from the registry if doing so would not comply with “the federal Jacob Wetterling Act, as amended, and any other federal standards applicable to the termination of a registration requirement or required to be met as a condition for the receipt of federal funds by the State.” That law generates some difficult questions about the interplay between state and federal law, which I discussed here and here. ..continued.. by Jamie Markham

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US v Doyle

4-13-2013 Tennessee:

US v Doyle
No. 12-5516.

After moving to Tennessee, Rashan Doyle was charged with failure to register as a sex offender, in violation of 18 U.S.C. section 2250(a), to which he pleaded guilty without a plea agreement. The district court sentenced Doyle to three years and one month in prison followed by ten years of supervised release, upon which the district court imposed four special conditions, numbered three, four, six and eight.

Doyle appeals the district court's imposition of these four special conditions of supervised release. Because the district court erred procedurally by failing to explain its reasons for imposing the special conditions, and because the record does not otherwise illuminate the reasons for them, we VACATE the district court's imposition of the special conditions of supervised release and REMAND for resentencing proceedings consistent with this opinion.

... ... ...

In conclusion, both the district court's procedural error in failing to explain its reasons for these conditions, and the record's failure to illuminate their appropriateness, require us to vacate special conditions three, four, six and eight, and to remand this case. Because we remand based upon the district court's clear error in failing to explain (or otherwise put on the record) its reasoning for imposing the special conditions of supervised release, we do not reach Doyle's constitutional arguments about the special conditions. See Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 445-46 (1988) ("A fundamental and longstanding principal of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.") (citations omitted).

If, in resentencing Doyle, the district court does apply special conditions of supervised release, we emphasize that "[s]upervised release conditions must be tailored to the specific case before the court." Inman, 666 F.3d at 1005. We also emphasize that, as the Court has held, "Congress intended supervised release to assist individuals in their transition to community life." United States v. Johnson, 529 U.S. 53, 58 (2000). In contrast to prison, "[s]upervised release fulfills rehabilitative ends, distinct from those served by incarceration." Id. (providing see signal for 18 U.S.C.A. § 3553(a)(2)(D)) (rest of citation omitted).

For the foregoing reasons, we VACATE special conditions numbers three, four, six and eight of Doyle's supervised release and we REMAND for resentencing proceedings consistent with this opinion.

US v Kuehl

Re: Non-Delegation Doctrine. In essence, Congress IS NOT permitted to delegate ALL of its powers to someone or a agency, but it is permitted to delegate some of its power -with instructions- to limit the person or agency.

2-19-2013 Arkansas:

US v Kuehl
No. 12-2598.

Tommy Kuehl was indicted for failure to register as a sex offender pursuant to 18 U.S.C. § 2250(a). Kuehl was required to register his address under the Sex Offender Registration and Notification Act (SORNA). Kuehl moved to dismiss the indictment on the ground that section 16913(d) of SORNA violates the nondelegation doctrine of the United States Constitution. The district court1 denied Kuehl's motion to dismiss, and we affirm this denial.

In 1991, Kuehl was convicted of two counts of attempted sexual conduct and sentenced to twelve years' imprisonment. Fifteen years later, in 2006, the United States Congress passed SORNA, which imposed registration requirements on offenders with certain sex convictions.2 Section 16913(d) of SORNA delegated authority to the Attorney General to determine whether SORNA applied retroactively. In 2007, the Attorney General declared that SORNA applied retroactively to offenders convicted before SORNA's effective date. Thus, SORNA's registration requirements applied to Kuehl.

In September 2011, Kuehl was arrested in Iowa for trespassing. The authorities discovered that Kuehl had recently moved to Iowa and failed to register his new address as SORNA required. In November 2011, a grand jury indicted Kuehl for failure to register as a sex offender. Kuehl moved to dismiss the indictment, arguing that Congress improperly delegated legislative authority to the Attorney General to determine whether SORNA applied retroactively. The district court ruled that SORNA was a valid delegation of authority to the Attorney General and denied the motion to dismiss. Kuehl then entered a conditional guilty plea preserving his right to appeal the denial of his motion to dismiss. The district court sentenced Kuehl to 22 and one-half months' imprisonment and five years of supervised release. Kuehl appeals the denial of his motion to dismiss.

Kuehl asserts that SORNA, specifically, 42 U.S.C. § 16913(d) is an unconstitutional delegation of legislative power. Kuehl argues that in section 16913(d), Congress unconstitutionally delegated legislative power to the Attorney General to determine SORNA's retroactivity. Section 16913(d) provides:

The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b) of this section.

42 U.S.C. § 16913(d).

The nondelegation doctrine is rooted in the principle of separation of powers. It is derived from Article I, section I of the United States Constitution: "All legislative Powers herein granted shall be vested in a Congress of the United States... ." U.S. Const. art. I, § I. "Congress manifestly is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested." Panama Ref. Co. v. Ryan, 293 U.S. 388, 421 (1935). However, not all delegations of legislative authority are prohibited. "So long as Congress `shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.'" Mistretta v. United States, 488 U.S. 361, 372 (1989) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)). The Supreme Court has further clarified that Congress provides an intelligible principle "if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority." Am. Power & Light Co. v. Sec. & Exch. Comm'n, 329 U.S. 90, 105 (1946).

We conclude that SORNA provides the Attorney General with an intelligible principle, and is a valid delegation of legislative authority. SORNA contains a "clearly delineat[ed]" policy which guides the Attorney General in the exercise of his delegated authority. Section 16901 sets forth the congressional policy of SORNA, "to protect the public from sex offenders and offenders against children." 42 U.S.C. § 16901. The Supreme Court has found broad policy statements, like that in SORNA, sufficient to provide an intelligible principle for delegation. See, e.g, Yakus v. United States, 321 U.S. 414 (1944) (upholding a delegation of legislative authority based on the general policy to set prices that are "generally fair and equitable"); Nat'l Broad. Co. v. United States, 319 U.S. 190 (1943) (upholding a delegation of legislative authority based on the general policy to regulate in the "public interest").

SORNA also contains boundaries on the authority delegated to the Attorney General. Essentially, section 16913(d) delegates one narrow question to the Attorney General: Do SORNA's requirements apply retroactively to offenders whose convictions predate SORNA's enactment?

The question of retroactivity has a defined, narrow universe of answers. "[T]he Attorney General cannot do much more than simply determine whether or not SORNA applies to [individuals convicted of covered sex offenses prior to SORNA's enactment]." United States v. Guzman, 591 F.3d 83, 93 (2d Cir. 2010). In comparison, the authority delegated in SORNA is more bounded and narrow than other delegations the Supreme Court has upheld. For example, in Mistretta the Supreme Court upheld the delegation of authority to the Sentencing Commission to create the federal sentencing guidelines. Mistretta, 488 U.S. at 374-79.

We agree with our sister Circuits3 that section 16913(d) of SORNA is a valid delegation of authority because Congress provided the Attorney General with an intelligible principle to follow.

Affirmed.

US v Adam Ray Fernandez

2-28-2012 Arkansas:

US v Adam Ray Fernandez
671 F.3d 697 (2012)

Adam Ray Fernandez pleaded guilty to one count of failing to register as a sex offender, in violation of 18 U.S.C. § 2250. The district court sentenced him to 18 months' imprisonment and five years' supervised release. Fernandez appeals the district court's denial of his motion to dismiss the indictment. We affirm in part and reverse in part.

On April 26, 2010, a detective in the Fort Smith Police Department learned that Fernandez was living in Arkansas and had been convicted previously in Oklahoma state court of crimes that required him to register as a sex offender. Fernandez was convicted of forcible sodomy in 1993 and second-degree rape in 1996. Before his release from state prison in 2009, Fernandez signed a notice acknowledging his duty to register as a sex offender. The detective verified that Fernandez had not registered as a sex offender in the State of Arkansas or in the city of Fort Smith, as required by the Sex Offender Registration and Notification Act ("SORNA"), 42 U.S.C. § 16901, et seq.

A grand jury charged Fernandez with knowingly failing to register as a sex offender after traveling in interstate commerce, in violation of 18 U.S.C. § 2250. He moved unsuccessfully to dismiss the indictment, and then entered a conditional guilty plea in which he reserved the right to appeal the district court's ruling on the motion.

Fernandez first argues on appeal that the SORNA violates the "non-delegation doctrine" of the Constitution, because 42 U.S.C. § 16913(d) authorizes the Attorney General to determine the scope of the law. Pursuant to § 16913(d), the Attorney General promulgated rules concerning the applicability of the SORNA, see, e.g., 28 C.F.R. § 72.3 (2011), and Fernandez seeks to challenge his authority to do so.

The district court ruled that under this circuit's decisions in United States v. Hacker, 565 F.3d 522, 527-28 (8th Cir.2009), and United States v. May, 535 F.3d 912, 920-21 (8th Cir.2008), Fernandez lacked standing to bring this challenge. These cases held that the scope of the Attorney General's rulemaking power under § 16913(d) was limited to defendants who were convicted of sex offenses prior to SORNA's enactment, but who were unable to register under § 16913(b). Only those unable to register before the SORNA's enactment, therefore, had standing to challenge § 16913(d) as a violation of the non-delegation doctrine. See May, 535 F.3d at 921. Because Fernandez was able to register upon his release from prison in 2009, the district court ruled he did not have standing to challenge § 16913(d).

May and its progeny, however, have been superseded by the Supreme Court's recent decision in Reynolds v. United States, ___ U.S. ___, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012). Reynolds held that the Attorney General's rulemaking power extends to all "pre-Act (and preimplementation) offenders" and that the "Act's registration requirements do not apply to pre-Act offenders until the Attorney General so specifies." Id. at 984. Because Fernandez committed the underlying sex offenses prior to the SORNA's implementation, he is subject to the Attorney General's authority to make rules under § 16913(d), and has standing to challenge the grant of that authority by Congress. While the district court understandably relied on our circuit precedent, Reynolds establishes that Fernandez has standing to raise his non-delegation claim, and we remand for the district court to consider that claim on the merits.

Fernandez's other challenges to the district court's ruling are foreclosed by circuit precedent. This court in May, 535 F.3d at 921-22, and United States v. Howell, 552 F.3d 709, 713-17 (8th Cir.2009), held that Congress had authority under the Commerce Clause to enact 18 U.S.C. § 2250 and 42 U.S.C. § 16913, respectively.

NOTE: There are many folks whose forms did not say anything about moving to another state and registering, therefore have never received the notification mentioned here!

In May, 535 F.3d at 921, and United States v. Baccam, 562 F.3d 1197, 1198-1200 (8th Cir.2009), this court held that notice to a sex offender of state law requirements that he must register when moving between jurisdictions is sufficient to establish that a prosecution for failure to register under the SORNA is consistent with the Due Process Clause.

Baccam (relied on fact he had signed state forms) also held that a sex offender is subject to prosecution under § 2250(a) even if he has not received notice of the SORNA's registration requirements pursuant to 42 U.S.C. § 16917. The district court thus correctly rejected identical arguments raised by Fernandez.

For these reasons, we affirm in part, reverse in part, and remand for further proceedings.

Salyer v Commonwealth

10-8-2010 Kentucky:

Salyer v Commonwealth
No. 2009-CA-000439-MR.

The Appellant, Ronald Keith Salyer, appeals the February 19, 2009, opinion and order of the Jefferson Circuit Court, wherein the court determined that Salyer was required to register as a sex offender for the remainder of his lifetime pursuant to the version of KRS 17.510 in effect at the time of his release. Following a review of the record, the arguments of the parties, and the applicable law, we affirm in part and reverse in part.

... ... ...

We now turn to Salyer's second basis for appeal, namely, that if we find he is required to register as a sex offender, he is not subject to lifetime registration under KRS 17.520. As noted, the Commonwealth argued below that Salyer was under a lifetime duty to register because he had been twice convicted for crimes against a minor. Salyer asserts that this was an incorrect argument, and notes that while he was convicted of a felony in the current case, he was only convicted of a misdemeanor in the previous case. Salyer notes that the current version of KRS 17.520(2)(a)(4) prescribes lifetime registration for any person convicted of two or more felony offenses against a victim who is a minor. Salyer asserts that as he does not meet those qualifications, he is only required to register as a sex offender for twenty years. He asks this Court for a declaration in that regard. The Commonwealth does not dispute that Salyer has been convicted once for a misdemeanor sexual offense, and once for a felony.

Having reviewed the provision at issue, we note that it provides as follows:

(2) (a) Lifetime registration is required for:
(4) Any person who has been convicted of two (2) or more felony criminal offenses against a victim who is a minor;

Certainly, the statute is very clear as to who qualifies for lifetime registration. It is equally clear from a review of the record that Salyer was charged with distribution of child pornography in 2003, which was amended down to a misdemeanor conviction for possession, as well as the fifteen counts of possession, a felony of which he was convicted in 2005. Thus it is clear that Salyer does not qualify for lifetime registration pursuant to KRS 17.520(2)(a)(4), and is instead subject to the twenty-year registration requirement set forth in KRS 17.520(3). This Court thus declares that his registration term be amended accordingly.

Wherefore, for the foregoing reasons, we hereby affirm the portion of the February 19, 2009, order of the Jefferson Circuit Court requiring Salyer to register as a sex offender, reverse the portion of the order requiring lifetime registration and instead order that Salyer qualifies for twenty-year registration pursuant to KRS 17.520(3).

Cardona v Commonwealth

1-22-2010 Kentucky:

Cardona v Commonwealth
No. 2007-CA-002268-MR.

Thomas Cardona, Jr., entered a conditional guilty plea to a class D felony for failure to register as a sex offender. After our review, we determine that application of the 2006 version of the statute which sets forth the penalty for failing to register as a sex offender is an ex post facto application of the law and we reverse the determination of the trial court.

Cardona was found to be an offender requiring registration in New York in 1994. He first registered there on April 29, 2002. He states that he was advised at that time that failure to register was a class A misdemeanor offense. It also appears he maintained his registration while a resident of New York. He moved to Kentucky in November of 2004 and maintained a current registration until September 21, 2006. He was then indicted for the class D felony offense of failing to register as a sex offender as permitted by KRS 17.510(11), as amended in 2006. He moved to dismiss the indictment as an unconstitutional application of ex post facto law, arguing that at the time of his original conviction for a sex offense and all subsequent registration periods, failure to register was a class A misdemeanor. The trial court overruled the motion but accepted his conditional guilty plea, reserving the question of whether the application of a felony charge is an ex post facto law. Pursuant to that plea, he was sentenced to serve one year, with that sentence probated for a period of five years. This appeal followed.

... ... ...

While there is a rational connection, the punishment for noncompliance is excessive in light of the goal of protecting public safety. Being charged with a felony and having to serve more than a year in jail for failing to update an address, as Appellant did here, seems excessive. A simple mistake or forgetfulness on the part of a sex offender could possibly land him in jail for more than year with another felony on his record.3 This could potentially stall his integration back into society after detainment for the original sex offense, cause him to lose his job, and make it more difficult to get another one when he is released.

Balancing these five factors is a close call. Having a separate punishment for violation of a separate law is not historically a punishment. However, the law does serve the traditional aims of punishment: retribution and deterrence. The law also places some disability or restraint on sex offenders because of the risk of being charged with another crime. There is a rational connection between the law and protecting public safety, but the law is excessive in light of this non-punitive purpose.

We note that the 2006 version of the statute provides that any person required to register "who knowingly violates any of the provisions of this section or prior law is guilty of a Class D felony . . ." KRS 17.510(11)(Emphasis added). It makes no sense that simply including the language, "or prior law" will negate an ex post facto violation. We do not believe that it should be that simple to get around a constitutional guarantee.

For the reasons set forth herein, we reverse and remand for action consistent with this opinion.

Commonwealth v Nash

5-19-2011 Kentucky:

Commonwealth v Nash
No. 2010-SC-000065-DG.

Appellee, Anthony Nash, was convicted, pursuant to a conditional guilty plea, of a first offense violation of Kentucky's Sex Offender Registration Act (a Class D felony), and being a second-degree persistent felony offender. Because Appellee was not required to register as a sex offender, we vacate the opinion of the Court of Appeals, and likewise we vacate the convictions, and remand to the trial court with instructions to dismiss the indictment.

... ... ...

The Court of Appeals reversed Appellee's conviction in 07-CR-00034 in an opinion rendered January 22, 2010, concluding the application of the 2006 SORA amendments (which increased the penalty on those required to register under current or prior law from a Class A misdemeanor to a Class D felony)8 was an ex post facto law as applied to Appellee. On April 22, 2010, this Court rendered Buck v. Commonwealth, 308 S.W.3d 661 (Ky.2010), upholding the constitutionality of the 2006 amendments to SORA. The Commonwealth requested discretionary review, which this Court granted on October 13, 2010. Before this Court, Appellee argues for the first time that he was never required to register for the 1993 conviction under the 1994 SORA or any amendments thereto. Appellee is correct.

... ... ...

Appellee was never required to register under any version of SORA.

ANALYSIS

Appellee entered a conditional guilty plea to the registration violation charge (and PFO II), reserving the right to appeal the trial court's denial of his motion to amend (on ex post facto grounds). His argument that he never had to register was not made below, having first been made to this Court, and hence is not preserved. This Court therefore reviews for manifest injustice. RCr 10.26.

On appeal from a conditional guilty plea, this Court will consider an issue which "involve[s] a claim that the indictment did not charge an offense or the sentence imposed by the trial court was manifestly infirm[.]"31 Appellee was never required to register under any version of SORA. As he was not required to register, he cannot be guilty of the crime of failing to register, and any sentence imposed would be manifestly infirm. Under the facts of this case, the indictment should be dismissed.32 As it stands, the Appellee sits in prison wrongfully convicted.

CONCLUSION

For the foregoing reasons, the opinion of the Court of Appeals is vacated and the judgment of the Fayette Circuit Court is likewise vacated, and the matter remanded directly to the Fayette Circuit Court, with instructions to set aside or vacate the judgment and sentence in the above-styled case, and to dismiss the indictment therein, and to order the release of the Appellee, Anthony Nash, from these charges.

Hawk v Commonwealth

3-15-2013 Kentucky:

Hawk v Commonwealth
No. 2012-CA-000030-MR.

Appellant, Daniel C. Hawk, entered a conditional guilty plea in the Montgomery Circuit Court to failure to register as a sex offender, second offense. He was sentenced to five years' imprisonment probated for a period of five years. He now appeals to this Court. For the reasons set forth herein, we reverse and remand for further proceedings.

On January 14, 2011, Appellant was indicted by a Montgomery County grand jury for failure to register as a sex offender, second offense, which is a Class C felony. Appointed counsel thereafter moved to amend the indictment to failure to register, first offense, which is a Class D felony. Counsel argued that Appellant's prior misdemeanor conviction was under Michigan's Sex Offender Registration statute and could not be used to elevate the failure to register in Kentucky to a second offense. The trial court denied the motion and Appellant thereafter entered a conditional guilty plea. This appeal ensued.

In this Court, Appellant argues that the trial court erred in denying his motion to amend the indictment because the plain language of KRS 17.510(11) mandates that he can only be found guilty of a first offense. The Commonwealth responds that because Michigan's reporting system is similar to that in Kentucky, we should give full faith and credit to the Michigan violations. The Commonwealth posits that to do otherwise, would allow out-of-state sex offenders who previously failed to comply with their registration duties to be given a clean slate upon moving to Kentucky.

KRS 17.510, Kentucky's sex offender reporting statute, sets forth the requirements, procedure and penalties. Subsection (7) provides that a person required to register in another state or that has been convicted of an offense in another state that would require registration if committed in Kentucky must register in Kentucky within five working days of changing residence to Kentucky, or entering the state for employment or school.1 Further, Subsection (11) provides that "[a]ny person required to register under this section who knowingly violates any of the provisions of this section or prior law is guilty of a Class D felony for the first offense and a Class C felony for each subsequent offense." (Emphasis added).

We must agree with Appellant that the plain language of KRS 17.510 requires a prior conviction under the current Kentucky statute, or a prior version of such, to sustain a conviction for failure to register, second offense. If the legislature had intended to punish someone who has a prior offense in a foreign jurisdiction as a second time offender, it would have been so stated in the statute. See KRS 189A.010(4)(e) (DUI statute).

It is the role of the legislature rather than the judiciary to designate the elements of and penalties for criminal conduct. Wilfong v. Commonwealth, 175 S.W.3d 84 (Ky. App. 2004). It is the judiciary's role "to impose sentences within the statutory limits prescribed by the legislature." Id. at 92. While the Commonwealth may wish out-of-state registration offenders from entering Kentucky with a "clean state," such is a matter left to the discretion of the legislature.

Because Appellant does not have a prior conviction in Kentucky for failing to register under KRS 17.510, his conviction for failure to register, second offense must be vacated. This matter is remanded to the Montgomery Circuit Court for further proceedings consistent with this opinion.

McGranahan v Commonwealth

4-5-2013 Kentucky:

McGranahan v Commonwealth

George McGranahan appeals from a judgment and conviction for failure to comply with sex offender registration requirements, second offense, for which he was sentenced to seven and one-half years’ imprisonment. After careful review, we reverse and remand.

... ... ...

The testimony by Sgt. Mullins in this case was that originally McGranahan was a ten-year registrant but that “something happened” between 2004 and 2005 to change his status to that of a lifetime registrant. Simply put, we cannot identify any evidence in the record to support this testimony, and absent the testimony, there is nothing that would indicate that in March 2011, McGranahan had any obligation to register as a sexual offender. The record does not indicate that at the time of the original enactment of SORA, McGranahan was even required to register at all. Thus, it was unreasonable for a jury to find guilt, and it was palpable error for the trial court not to enter a directed verdict in McGranahan’s favor.

For the foregoing reasons, the judgment and conviction of the Boyd Circuit Court is reversed, and this matter is remanded for dismissal of the indictment. ALL CONCUR.

US -v- Robinson

4-9-2013 Illinois:

US -v- Robinson
No. 12-2015

A jury convicted the defendant of possessing child pornography, and the judge sentenced him to 108 months in prison (to be followed by a 10-year term of supervised release) after increasing his base offense level by 15 levels. At issue are two of the 15 levels—a two-level enhancement that the guidelines prescribe if the defendant, though not charged with the separate offense of distributing child pornography, had in fact distributed the pornography that he possessed. U.S.S.G. § 2G2.2(b)(3)(F). This adjustment, which the judge thought applicable to the defendant, raised the defendant's guidelines sentencing range from 108 to 135 months to 135 to 168 months. But as the statutory maximum for the offense of possession was only 120 months at the time of the offense, see 18 U.S.C. § 2252(a)(4)(B) (2011), the judge could not sentence him within the higher range. The sentence of 108 months that the judge imposed was the floor of the lower range. (The judge could have given him an even lower sentence; there is no statutory minimum sentence for possession of child pornography.) If as the defendant argues the two-level increase for distribution was error, he is entitled to be resentenced, because the increase in the guideline range may have influenced the sentence that the judge gave him.

"Distribution" in the guideline is a term of art, because it includes not only what a lay person would describe as "distribution" but also "posting material . . . on a website for public viewing," U.S.S.G. § 2G2.2, application note 1, whether or not anyone actually views it. The defendant admitted in an interview by police to having downloaded quantities of child pornography through two peer-to-peer file-sharing computer programs, FrostWire and LimeWire, but he denies knowing that the files he downloaded could be viewed by other users of the programs.

The government denies that such knowledge is an element of the distribution guideline; it points out that the guideline does not specify that the defendant have acted knowingly. But we agree with the Eighth Circuit's decision in United States v. Durham, 618 F.3d 921, 926-27 (8th Cir. 2010)—and thus disagree with the recent decision by the Tenth Circuit in United States v. Ray, 704 F.3d 1307, 1311-12 (10th Cir. 2013), which, surprisingly, does not cite or mention Durham—that the sentencing judge must find that the defendant either knew, or was reckless in failing to discover, that the files he was downloading could be viewed online by other people. It's true that by making child pornography accessible by other persons, even if unknowingly, a defendant may (if other persons do in fact access his files of child pornography—we don't know whether anyone did in this case) magnify the harm. See United States v. Laraneta, 700 F.3d 983, 991-92 (7th Cir. 2012). But strict liability is disfavored in the criminal context.

We are dealing with a 61-year-old man in very poor health who will receive a stiff prison sentence even if we vacate the current one, and who on release will be at low risk of recidivating because of the restrictions on access to online material that the conditions of supervised release (not challenged by him) impose. The judge told him at sentencing: "I don't think that you will ever do this again because you're not going to have the opportunity to do it again. Even when you get out, you're going to be under supervised release for a considerable period of time in which you will be monitored"—in fact 10 years.

... ... ...


The government has, we conclude, clearly failed as yet to prove that the defendant knowingly made files of child pornography available to other users of LimeWire or FrostWire. The judgment is therefore vacated and the case remanded. At the resentencing hearing the prosecutor will have an opportunity to present evidence as to what the defendant knew or probably knew.

VACATED AND REMANDED.

Informational Post

4-17-2013 UPDATED: Washington DC:

The -United States v. Kebodeaux- is in the U.S. Supreme court and we are awaiting a decision on the questions raised:

See the following Blog Posts for detailed information:

4-17-2013 Oral Argument Transcript

Argument preview: Can Congress punish a former sex offender for failure to register?

Cato Challenges the U.S. Supreme Court to Decide that Congress Doesn’t Have Unlimited Jurisdiction Over Everyone

United States v. Kebodeaux

Sex Offender Rules Will Go Before Supreme Court

Kebodeaux -v- US: USSC 12-418 cert granted (That decision [ 687 F.3d 232 (2012) ] on Leagle is found HERE if folks want to read the full decision)

Supreme Court to review sex offender registration law

From time to time we will update this post.
For now, have a great day and a better tomorrow.
eAdvocate