State Police wrongly arrested man, court says

3-24-2012 West Virginia:

The State Police did not have the right to arrest a Tyler County man for failure to re-register as a sex offender upon his release from jail in 2010, the West Virginia Court of Appeals said Thursday.

Sex offenders are only required to re-register their information following a conviction -- not after an arrest, the Appeals Court ruled.

On Dec. 27, 2010, the Tyler County Circuit Court dismissed a failure to register as a sex offender charge against Timothy John Judge, 30. Tyler County Prosecuting Attorney D. Luke Furbee then appealed the dismissal.

On Sept. 19, 2002, Judge was convicted of a third-degree sexual abuse charge and severed 18 months of probation, according to the opinion.

Judge was in compliance with the sex offender registry and updated his information just weeks before he was arrested on May 7, 2010 for a charge of accessory after the fact to breaking and entering. After a one-night stay in the North Central Regional Jail, Judge returned to his previously registered home, according to the opinion.

Police arrested Judge because he did not complete a new sex offender registration form.

According to the State Police's form, an offender must re-register with three days "of release from an institution."

Furbee said the sex offender law wasn't clear on what is required of an offender after an arrest.

"The interpretation that the State Police was using ... were being advised if they had been committed to jail during a period of registration or any other institution involuntarily, they were to essentially renew their registration within three business day of their release," he said.

The Appeals Court ruled, "the duty to register as a sex offender arises upon a conviction of an offense.

"In this case, it was alleged the defense did not follow those directions and the problem simply was 'did that amount to a criminal violation or not?'" Furbee said.

The state acknowledged "there is an apparent gap or disconnect in the statutory language of [the sex offender law] and the State Police's rule and forms," according to the opinion.

The Appeals Court said all State Police forms that "include language instructing sex offenders of their obligation to re-register upon each release from incarceration should be rewritten to remove such language."

"It was an arguable issue and the court apparently agreed that it was by accepting this appeal for full argument. The court answered that question in the negative," Furbee said. "Now we know the right answer, and we have to have certainty if we're going to be asked to prosecute these cases."

State Police Spokesman Sgt. Michael Baylous declined to comment. ..Source.. by Travis Crum

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Judge Gets 1-5 Years For Registration Violation

10-17-2012

Timothy John Judge, 31, of Box 132, Friendly, was sentenced Tuesday in Wetzel County Circuit Court to one to five years in the West Virginia State Penitentiary for Men.

He had pleaded guilty on Aug. 13 to failing to register as a sex offender or provide a change in information to the West Virginia State Police in Wetzel County by knowingly failing or refusing to report his move to a new address.

Both sides of counsel had their chance to give last words to the Judge Mark A. Karl before he went through with sentencing. Jeremiah Gardner, Judge's defense, reminded Karl of a letter written by Judge's employer in his favor. Gardner also reported that Judge is gainfully employed and is paying child support. Gardner stated that the error made by Judge was a technical one, in that he bought a cell phone and forgot to report his new cell phone number.

Prosecuting Attorney Timothy Haught reminded the court of Judge's history in both Tyler and Pleasants counties, that this was not his first offense of a similar nature.

Judge Karl agreed and thus, sentenced Judge to one to five years. He admonished Judge, telling him, "You've had opportunities; this shouldn't come as a shock to you."

Judge can file a Rule 35 motion for a reduction in sentence after four months in prison. Also, the state previously agreed to drop count two, knowingly failing or refusing to report a new vehicle or change in vehicle, per the terms of Judge's plea agreement. ..Source.. by LAUREN RIGGS

State v. Tippett

3-21-2001 Iowa:

State v. Tippett

Defendant, James Clay Tippett, who was convicted of failure to register as a sex offender in violation of Iowa Code section 692A.7(1) (1997), challenges his conviction on the basis that it was not supported by substantial evidence when the record is considered as a whole.1 After reviewing the record and considering the arguments presented, we agree with defendant's contention and reverse the judgment of the district court.

In 1991 defendant was convicted in Illinois of aggravated sexual abuse involving a minor and sentenced to prison. He was released in 1993. In 1997, while still under parole supervision by Illinois authorities, he attended the University of Iowa in Iowa City. Sometime in 1998 he was brought to the attention of Iowa authorities when a mother complained that defendant was frequenting an area near her home where her young son played and was interacting with her son and other neighborhood children.

After local police asked defendant for identification, a criminal history check revealed his Illinois conviction. The State contends that, as a result of defendant's moving from Illinois to Iowa, he was required to register as a sex offender in Johnson County no later than September 4, 1997.

There are two issues for our decision as a result of the argument defendant presents. These are: (1) must a defendant know of the duty to register as a sex offender in order to be convicted of failure to register; and (2) if the first inquiry is answered in the affirmative, was there sufficient evidence presented at defendant's trial to show that he was aware of a duty to register.

... ... ...

Ill. Pub. Act 89-8 art. 20, § 20-20 (effective January 1, 1996). It appears that, at the time defendant was released from prison in 1993, Illinois correctional officials were not expressly tasked to advise him concerning the duty to register in another state to which he might move.

Irrespective of the requirements of Illinois law, the State's argument based on the probability that defendant would have been advised by Illinois correction authorities of a duty to register in a new state of residence is based on an unsupported presumption. If such advice had been given to defendant, there should have been a source of evidence for the State to produce at trial. The failure to produce such evidence does as much or more to suggest that defendant was not advised of a duty to register in another state than any presumption the State might rely upon does to suggest that he was so advised.

The State's only other contention concerning defendant's awareness of a legal duty to register is a reliance on the fact that he has moved from place to place since his discharge from prison. The State suggests that this was an effort to avoid registration. The State cannot circumstantially prove the existence of a fact by relying on a circumstance that is itself dependent upon the fact's existence. In order to tie defendant's nomadic tendencies to an attempt to avoid registration, the State would have to independently establish that he knew of the registration requirement. Standing alone, defendant's frequent moves from place to place are not indicative of that knowledge. When the record is viewed as a whole, the State's evidence is insufficient to establish that defendant was aware of a duty to register. The verdict should have been directed in his favor.

We have considered all issues presented and conclude that the judgment of the district court must be reversed. The case is returned to that court for entry of judgment of acquittal.

REVERSED.

State v Smith

1-20-2000 Iowa:

State v Smith

Defendant, Antoine D. Smith, who was convicted following a bench trial of failing to register as a sex offender, punishable pursuant to Iowa Code section 692A.7(1) (1997), appeals from the judgment of conviction. Because we find the acts alleged do not constitute a crime, we reverse.

The trial information in the present case alleged as follows:
COMES NOW John Lammers as prosecuting attorney ... and accuses ANTOINE SMITH of FAILING TO REGISTER AS A SEX OFFENDER in violation of Section 692A.3(3)—aggravated misdemeanor ... committed as follows: The said ANTOINE SMITH on or about the [second day of August], 1997, in Black Hawk County, Iowa, did: failed to register any change of address with the sheriff of the county in which he was residing, or had failed to return a verification of address form after being required to do so as a convicted sex offender. Contrary to and in violation of section 692A.3(3) of the Iowa Criminal Code.

(Emphasis added.)

The evidence presented at trial revealed that following a conviction of assault with intent to commit sexual abuse in April 1992, defendant was incarcerated until July 1995. At the time of his release from prison, he registered as a sex offender with the sheriff of Black Hawk County. The registration form listed his address as follows: Community Support Center, 907 Independence Avenue, Waterloo, Iowa. Written on the form was a notation that defendant would be working with persons at a mental health program at that address who would assist him in establishing a permanent residence.

Later, defendant served a one-year jail sentence in the Black Hawk County jail from August 2, 1996, until August 2, 1997. During part of that time, he was committed to the mental health institute at Independence. While in jail on August 8, 1996, defendant completed an annual verification-of-address form for registered sex offenders as provided in Iowa Code section 692A.4.

Following his release from jail on August 2, 1997, defendant resided at a residence in Black Hawk County different from that shown on his most current sex-offender registration as verified by the August 8, 1996 verification-of-address form. He did not advise the Black Hawk County sheriff of this change of address. As a result, a warrant was issued for his arrest. Following his arrest on October 18, 1997, he did file a change-of-address form with the Black Hawk County sheriff on October 24, 1997. The present criminal charge is for his failure to have done so between August 2 and October 24.

The district court found that defendant's failure to advise the sheriff of his latest change of address following his release from jail on August 2, 1997, was a violation of the registration requirements of Iowa Code section 692A.3(2), punishable pursuant to Iowa Code section 692A.7(1).

At the time the district court ruled on defendant's guilt, this court had not issued its decision in State v. Reiter, 601 N.W.2d 372 (Iowa 1999). Nor had the Reiter case been decided when the initial appellant's brief was filed on this appeal. Defendant urged at oral argument and in a supplemental brief filed following oral argument, to which the State has had an opportunity to respond, that, based on the holding in Reiter, a failure to notify the sheriff of a change of address is not punishable under Iowa Code section 692A.7(1), the statutory provision punishing sex offenders who fail to register as required by law.

We agree with that contention. Although Reiter involved that portion of section 692A.3 dealing with registrants who move outside the state and the present case involves a registrant's change of address within a county, the basic premise of Reiter, i.e., that a failure to notify of a change of address is not punishable as a failure to register, is equally applicable to the present situation.

We have considered all issues presented and conclude that the judgment of the district court should be reversed.

REVERSED.

State v Reiter

10-13-1999 Iowa:

State v Reiter

Defendant, Earl John Reiter, appeals from the judgment and sentence entered upon his conviction for failure to comply with the sex offender registry in violation of Iowa Code sections 692A.3 and 692A.7(1) (Supp.1995). He was convicted following a stipulated trial to the court.

He contends the district court erred in interpreting the penalty clause for "willful failure to register" under section 692A.7(1) as including failure to notify the sheriff of a change of address.

We hold the penalty clause in section 692A.7 for "willful failure to register" does not prescribe a penalty for a failure to notify the sheriff of a "change of residence."

We reverse the district court judgment and sentence.

... ... ...

We must reject the State's position and the district court's reasoning. The legislature did not say the duty to notify of a change of address was a part of or was in fact a registration. In enacting section 692A.7, the legislature only gave warning of a penalty for violation of the duty "to register as required." It gave no warning that the failure to give notice of an address change carried a criminal penalty. If the legislature intends to punish a sex offender for a failure to notify of a change of address, it must say so.

For all the reasons stated, we believe section 692A.7(1) does not provide a penalty for defendant's failure to notify the sheriff of Osceola County of his change of address. Therefore, we reverse the defendant's judgment and sentence.

REVERSED.

ARK volunteer taken off sex-offender list

1-10-2013 Florida:

___ — who came to the public’s attention because of his wife’s role at the Animal Rescue Konsortium (ARK) in DeLand — has been removed from the Florida Sexual Offender/Predator Public Registry.

Critics of the ARK shelter, which was raided by the DeLand Police Department Nov. 8, complained that one of the shelter volunteers was a registered sex offender.

Just two weeks before the raid, on Oct. 26, ___ had been arrested by DeLand police and charged with failure to register properly as a sex offender. He had listed himself on police records as a transient, but had stayed at least occasionally at ARK.

He and his wife were homeless, and ARK president Maggi Hall had given them permission to live at the ARK shelter in exchange for caring for the 126 animals on the property.

After the raid, the his situation was dire, as they had few possessions and no home, and had difficulty finding work. His status as a registered sex offender made hard times even harder.

However, then he learned the dates of his conviction on sex charges predated the enactment of the Florida registry.

He was convicted of sexual assault in Michigan in 1996 when he was 22 years old. He said the charges had been brought by a former girlfriend.

Florida’s Public Safety Information Act, which requires sex offenders to be registered and their addresses published on a state website, did not go into effect until 1997.

He consulted with an attorney, who helped him have his name removed from the sex-offender registry. He’s happy to lose the label.

“I can live anywhere I want to,” he said.

Most jurisdictions restrict where registered sex offenders can live. The ARK shelter is among locations in DeLand that are off-limits as a sex offender’s residence.

He now has a good job, and he and his wife have a car and a new place to live in Orange City.

“Things are going good for us,” he said. “I’m happy.”

Depending on exactly where they live, the troubles with his past conviction may not be over.

In 2012, Orange City adopted a residency-restriction ordinance that applies to all sex offenders, whether or not they are listed on the state registry, and whether they were convicted in Florida or another state. ..Source.. by Jen Horton

Doe v Raemisch

1-4-2013 Wisconsin:

Doe v Raemisch
895 F.Supp.2d 897 (2012)
Court Docket

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This decision was overturned on appeal in
Mueller v Raemisch

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Readers need to realize, that this case was NOT a class action, therefore the decision applies ONLY to the two fellows who filed this case. Everyone one else must still pay the fees or file their own action and get a decision, hopefully in their favor.

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Plaintiffs John Doe of Connecticut (Doe I) and John Doe of Florida (Doe II) are each adult males who were previously convicted of sex crimes in Wisconsin and are subject to Wisconsin's sex offender registration and notification statutes, Wis. Stat. §§ 301.45, 301.46 (2009-10)[1]. Plaintiffs filed this action against the Wisconsin Department of Corrections (DOC), its secretary and the director of the DOC's Sex Offender Program, alleging that the application and enforcement of the Wisconsin sex offender registration requirements against them constituted punishment in violate the ex post facto clauses of the United States and Wisconsin constitutions.

Plaintiffs also allege that subjecting them to these laws violated their constitutional rights to equal protection and substantive due process and unconstitutionally impaired their respective plea agreement contracts. Finally, Plaintiffs claim the website that posts their registration violates their right to privacy under Wis. Stat. § 995.50, and that the rule requiring them to disclose their email accounts, internet user names and addresses, and websites violates their First Amendment rights. The parties have filed cross-motions for summary judgment (ECF Nos. 21, 26) and the case is now ripe for resolution. 901*901

For the reasons discussed below, Plaintiffs' motion (ECF No. 26) will be granted in part as to the $100 annual assessment § 301.45(10) imposes. In all other respects, Plaintiffs' motion is denied and Defendants' motion (ECF No. 21) will be granted.

... ... ...

Conclusion

Plaintiffs' affidavits explain in detail the difficulties and embarrassment they and their families have endured as a consequence of complying with these new restrictions, even though their convictions are now almost twenty years in the past and they have led completely law-abiding, if not exemplary, lives in the interim. Their stories raise substantial questions as to the wisdom and fairness of subjecting them and similarly situated individuals to lifetime registration and notification requirements with their attendant obligations and restrictions. But given the previous decisions addressing the issues Plaintiffs raise, I conclude that the relief, if any, must come from the legislative branch. With one limited exception, the fact that the restrictions are difficult and cumbersome is not enough to make them unconstitutional. For the most part, the amendments to the Wisconsin sex offender registry system do not depart in any meaningful way from the systems already found to be constitutional by the Bollig and Smith Courts.

The lone exception I find to this is the $100 fine provision, which I have concluded cannot be constitutionally imposed on them. With this exception, Defendants' motion for summary judgment is GRANTED and Plaintiffs' motion for summary judgment is DENIED. The Clerk is directed to enter judgment declaring that imposition of the $100 annual fee on Plaintiffs pursuant to Wis. Stat. § 301.45(10) constitutes punishment in violation of their rights under the ex post facto clauses of the United States and Wisconsin constitutions and enjoining Defendants from assessing or collecting such amount from Plaintiffs. All other claims against Defendants are dismissed with prejudice.

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Doe v. Raemisch et al - Document 86
Court Description:
DECISION AND ORDER granting 68 Motion for Attorney Fees, signed by Chief Judge William C Griesbach on 03/29/2013. Plaintiffs are awarded attorney fees and costs in the amount of $23,616. See Decision and Order for full detail. (cc: all counsel) (Griesbach, William) ..Source.. (Note: Detail is available at link)

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As the result of the above decision another fellow tried to get a refund on fees he was charged and paid. In essence the court held "It is a state matter not federal." So look to state courts assuming he continued the fight.

Man disputes Megan’s Law registration

9-24-2012 Pennsylvania:

WILKES-BARRE – A man who says he should be excluded from registering under Megan’s Law after pleading guilty to a corruption of minors charge will not have to – for now — a county senior judge said Tuesday.

Traian Jovanov, 28, with a last known address of Pine Street, Hazleton, said in court papers last month that his plea agreement did not include the specification that he needs to register under Megan’s Law while out of prison, and therefore should not have to.

Jovanov is on probation and residing in Luzerne County, according to court papers.

In March 2007, Jovanov was sentenced to 40 to 80 months in prison on an unrelated escape charge and two years house arrest on the corruption of minors charge.

Police said Jovanov had inappropriate contact with a juvenile female in April 2006. He was originally charged with a number of crimes, include rape and indecent assault.

In the escape case, investigators say Jovanov was serving a sentence on drug and receiving stolen property charges at the Luzerne County Correctional Facility in March 2006 and was on work release.

Investigators said Jovanov did not return to the prison after completing a work shift.

Jovanov’s attorney, Tom Marsilio, said in court papers that nothing at the time required his client to register under Megan’s Law, but that now the county probation office is requiring Jovanov to do so.

After a hearing Tuesday, county Senior Judge Chester Muroski said Jovanov’s requirement to register is put on hold until the outcome of an appeal determining those specific issues in the case. ..Source.. by Sheena DeLazio

Sex offender registration rules don't apply on tribal lands.

9-24-2012 Arizona:


Tribal members living on tribal land cannot be prosecuted by the state for failing to register as sex offenders, the Arizona Court of Appeals ruled Monday.

In a unanimous decision, the judges said state registration requirements cannot supersede what is required by federal law. And absent some very specific conditions, the state has no legal authority.

Judge Philip Espinosa, writing for the court, also said it is irrelevant that the defendant was found off the reservation.

Attorney General Tom Horne said he had not had a chance to review the ruling.

Court records show Raymond John was convicted in the late 1980s in federal court of two counts of sexual assault on the reservation.

In 2010 he was arrested by Coconino County sheriff’s deputies outside the reservation and charged with failure to register as a sex offender as required by Arizona law. He pleaded guilty and was placed on probation.

John immediately asked the verdict be set aside, arguing the state had no authority. He said he was a member of the Navajo Nation living on tribal land and had not worked, resided or attended school outside reservation boundaries.

The trial judge refused, leading to the appeal.

Espinosa said under federal law, a sex offender must register. It also requires tribes to implement their own registration system or delegate that authority to other jurisdictions.

Federal law does say a tribe loses its authority if it does not come up with a suitable program. But Espinosa said the power is delegated to someone else only if the U.S. attorney general first determines the tribe has not complied and is likely incapable of doing so in a reasonable time.

That, he said, did not occur here. And that means Arizona cannot impose registration requirements on tribal members living on tribal lands.

The appellate judges also rejected arguments by prosecutors that the state acquired jurisdiction over John “the moment he stepped off the reservation.’’ They said John’s conviction is based entirely on his conduct within Navajo Nation territory, where he lives.

Beyond the issues related specifically to the Navajo Nation, Espinosa said even if tribal members living on the reservation were required by federal law to register with the state, failing to do so would violate only federal law. That still leaves the state powerless to prosecute John in state court under state laws. ..Source.. by Howard Fischer

Courts Applying Padilla to Sex Offender Registration

9-22-2012:

Many state and federal courts have ruled that sex offender registration is a collateral consequence of a plea bargain, and not a "direct" consequence. The major consequences of such rulings can be 1) defendants cannot win an ineffective counsel claim as a result of their defense attorneys not informing them about a registration requirement, and 2) defendants cannot win an ex post facto violation claim if they are required to register retroactively.

Padilla - Direct v Collateral Analysis "Ill-Suited"

Prior to the US Supreme Court's decision in Padilla (2010), deportation was also viewed as a collateral consequence (see Frometa 1989), and therefore an ineffective counsel claim based upon a defendant's not being told that he would be deported was invalid. However the Justices in Padilla decided to abandon the "direct versus collateral" analysis used in Frometa when determining whether Defendant's Sixth Amendment’s guarantee of effective assistance of counsel was violated when his attorney failed to advise him that he would be deported. The Court stated that it was “uniquely difficult to classify [deportation] as either a direct or a collateral consequence” because it is a “particularly severe penalty,” and one which was “intimately related to the criminal process.” Resultantly, the Court decided that the "direct versus collateral consequences analysis” was "ill-suited" in this case.

Padilla Applied to Sex Offender Registration

Post-Padilla, the question became whether other consequences deemed "collateral" such as sex offender registration would someday be analyzed via Padilla instead of via the "direct versus collateral consequences analysis”.

In People v. Fonville, 804 N.W.2d 878 (2011), the Court of Appeals of Michigan expanded the rationale used in Padilla while deciding that "…defense counsel's failure to inform Fonville that his plea would require registration as a sex offender affected whether his plea was knowingly made. This failure, therefore, prejudiced Fonville to the extent that, but for counsel's error, the result of the proceeding would have been different." Based upon this legal basis, Defendant was entitled to withdraw his plea. In their analysis, the Court stated:

"Like the consequence of deportation, sex offender registration is not a criminal sanction, but it is a particularly severe penalty. In addition to the typical stigma that convicted criminals are subject to upon release from imprisonment, sexual offenders are subject to unique ramifications, including, for example, residency-reporting requirements and place-of-domicile restrictions. Moreover, sex offender registration is 'intimately related to the criminal process.' The 'automatic result' of sex offender registration for certain defendants makes it difficult 'to divorce the penalty from the conviction ….'."

More recently, in United States v. Riley, 72 M.J. 115 (2013), the United States Court of Appeals for the Armed Forces concluded that a military judge abused his discretion when he accepted Defendant's guilty plea without questioning defense counsel in order to ensure Defendant knew of the sex offender registration consequences of her guilty plea. The Court stated that the military judge bears the burden of assuring the accused's guilty plea is knowing and voluntary. The Court agreed with the reasoning used in Padilla and Fonville, and additionally, went a step further by stating:

"we hold that in the context of a guilty plea inquiry, sex offender registration consequences can no longer be deemed a collateral consequence of the plea."

Padilla Applied to Plea Agreements

The Court's finding in Riley that registration can no longer be considered a collateral consequence is of great significance, and could be a great stepping stone if referenced by other courts. The above cases analyze sex offender registration in the context of ineffective counsel. However, a closely related issue is whether retroactive registration requirements violate ex post facto clauses in cases where plea agreements were contingent upon NO registration requirement. It would be illogical for courts to provide relief to those whose attorneys failed to inform them about registration requirements that were "automatic", while NOT providing relief to those whose plea agreement, having been accepted by the court, was conditioned upon not having to register. The broad issue that was generally addressed in Padilla, and specifically addressed in Fonville and Riley, is that a plea agreement cannot be knowing and voluntary if the defendant does not know he or she will have to register as a sex offender.

Some state courts such as Maryland and Oklahoma have ruled that retroactive registration requirements violate their respective State's constitutional ban against ex post facto laws, and have done so without applying the rationale used in Padilla. In other states, such as Pennsylvania, sex offender registration is currently considered a "collateral consequence" by the courts (Commonwealth v. Leidig, 598 Pa. 211 (2008)); therefore, claims of ex post facto violations, ineffective counsel, and "non-knowing and voluntary" pleas are currently invalid. However, two potential legal arguments are ripe:

1) the 2012 changes to Megan's Law based upon SORNA have transformed sex offender registration requirements from collateral to punitive, and therefore retroactive application of these requirements violates the State's ex post facto clause; and

2) the direct versus collateral analysis is ill-suited in determining whether retroactive sex offender registration requirements violate PA's constitutional ban against ex post facto laws, and instead, the rationale used in Padilla should be applied.

Conclusion

It will be interesting to see if and how the Padilla rationale is used by other courts with regard to sex offender registration requirements. We will keep you posted on any important cases related to this issue. If you are aware of other cases that have applied this rationale, please post. ..Source.. by B Free

USA v Bahr

9-16-2013 Oregon:

USA v Bahr

Vacating a sentence and remanding, the panel held that the district court’s consideration, at sentencing, of compelled statements made by the defendant in the course of sex offender treatment during an earlier period of post-prison supervision violated his Fifth Amendment privilege against self-incrimination. The panel left to the district court on remand the determination whether the defendant’s mother’s testimony was admissible.

In 2003, Bahr was convicted of third degree rape under Oregon state law. Upon his release to supervision, Bahr was required to complete an approved sex offender treatment program. The terms of his supervision required adherence to all rules and conditions of the program and noted that the program could include polygraph testing. Bahr was indeed required to take a “full disclosure” polygraph test regarding his sexual history. During the test, he revealed that, as a minor, he had sexual contact with six other minors. He also revealed that, as an adult, he had sexual contact with seven different minors. And he revealed that he had eight to ten sexual encounters with fifteen- or sixteen-year-old girls while he was between eighteen and twenty years old. In another portion of the treatment program, Bahr admitted in a workbook that he had sexually abused eighteen children.

When the government prepared the pre-sentence report (“PSR”) in this case, it included Bahr’s admissions made during the polygraph disclosure and in the workbook exercise (“treatment disclosures”). Bahr moved to suppress the treatment disclosures. The district court denied the motion.1 During the sentencing hearing, the prosecution also called as a witness Sandra Brown, Bahr’s mother, who testified regarding statements Bahr made to her concerning his past sexual misconduct.

The use of the compulsory treatment disclosures at sentencing violated Bahr’s Fifth Amendment privilege against self-incrimination. United States v. Antelope, 395 F.3d 1128, 1133 (9th Cir. 2005). In order to establish a violation, a person must show “(1) that the testimony desired by the government carried the risk of incrimination . . . and (2) that the penalty he suffered amounted to compulsion.” Antelope, 395 F.3d at 1134. Potential violations of the Fifth Amendment are legal questions reviewed de novo. Id. at 1133.

We make clear now that the use of unconstitutionally compelled statements to determine a sentence in a later, unrelated criminal proceeding is unconstitutional. The Supreme Court has recognized that the Fifth Amendment’s protections extend to the sentencing phase of a criminal case. Mitchell v. United States, 526 U.S. 314, 327–28 (1999). We have recognized that those protections also extend to separate criminal proceedings. United States v. Saechao, 418 F.3d 1073, 1081 (9th Cir. 2005). Thus, in accord with this court’s precedent, we hold that the district court’s consideration of the treatment disclosures violated Bahr’s Fifth Amendment rights.

... ... ...

Because the district court erred in considering Bahr’s compelled statements obtained in violation of Bahr’s Fifth Amendment privilege against self-incrimination, we remand for re-sentencing. We leave the issue of the admissibility of Brown’s testimony for the district court on remand, and we decline to reassign this case, as Bahr urges. If any revisions or redactions to the PSR must be made in light of our ruling, the district court should have the first opportunity to address those alterations. SENTENCE VACATED AND REMANDED.

Arkansas Doctor Challenges Law Barring Sex Offenders From Receiving Medicaid Money

UPDATE 11-13-13: Judge refuses to block law denying Medicaid payments to sex offenders (Full article following this one) and then in December: Judge dismisses lawsuit filed by Medicaid doctor convicted of child porn (No reason given)

9-16-2012 Arkansas:

A southwestern Arkansas physician who is a convicted sex offender has filed a federal lawsuit challenging a new state law that prohibits registered sex offenders from providing Medicaid-funded services in the state.

Dr. Lonnie Joseph Parker argues in the lawsuit filed Friday that the new law, which took effect Aug. 16, violates his constitutional rights.

Parker, who practices in Hope, said in the lawsuit that he provides emergency and general family medical services — including family planning — to rural poor in the state and is a registered provider under the Arkansas Medicaid Program. More than 75 percent of his patients are Medicaid beneficiaries, he said.

Parker was joined in the lawsuit by patients who want him to continue being their family primary care doctor, including Tonya Witherspoon, a mother of five and a Medicaid recipient, and Paula Sunderman and her daughter, Sara.

The law seeks a preliminary injunction to halt enforcement of the law pending the outcome of the lawsuit.

Heard v Addison

9-4-2013 Oklahoma:

Heard v Addison

David Glen Heard pled guilty to two counts of “knowingly and intentionally . . .[l]ook[ing] upon . . . the body or private parts of [a] child under sixteen . . . in [a] lewd and lascivious manner,” in violation of Oklahoma’s lewd molestation statute, Okla. Stat. tit. 21, § 1123(A)(2). In pleading guilty, Heard admitted that he positioned himself in a Tulsa Wal-Mart store so as to be able to “look under [their] clothes at [their] bod[ies] and at [their] undergarments.” Aplt. App. Supp. Vol. I at 12, 15. Pursuant to the terms of the plea agreement, the prosecutor recommended that Heard receive concurrent twenty-fiveyear prison terms, and the court sentenced Heard accordingly.

Soon after he was sentenced, Heard discovered an unpublished case out of the Oklahoma Court of Criminal Appeals (“OCCA”), Robinson v. State, No. F-98-724 (Okla.Crim. App. July 29, 1999), which cast doubt upon whether Heard’s conduct fell within the ambit of § 1123(A)(2). We agree with Heard that his attorney provided ineffective assistance in failing to advise him of viable defenses to the charges against him, and the record is clear that, but for counsel’s deficient performance, Heard would not have pled guilty to these offenses. Therefore, having jurisdiction under 28 U.S.C. §§ 1291 and 2253(a),

we REVERSE the district court’s denial of Heard’s habeas petition and REMAND for further proceedings consistent with this opinion.

Convicted sex offender gets new child pornography charges thrown out

8-31-2013 New Hampshire:

NASHUA – Years ago, Roger Chadwick convicted Thomas Richards on child pornography charges. This week, he helped Richards defeat new child porn charges.

A judge tossed out evidence that Richards, 52, a convicted sexual offender, possessed child pornography and ruled that police conducted an illegal search based on online tips.

Chadwick, Richards’ defense attorney, was the assistant county attorney who convicted Richards on eight counts of child pornography in 2005.

On Friday, Hillsborough County Superior Court Judge Diane Nicolosi suppressed evidence police seized during a search of Richards’ home, including two computers containing suspected images of child pornography. She ruled that police did not have probable cause to search the home because they included only “vague generalities” regarding the images in a search warrant affidavit.

In all likelihood, the ruling kills the state’s case. Hillsborough County Attorney Patricia LaFrance said her office will review the decision but isn’t likely to appeal.

“Moving forward, we use this as a learning experience, and unfortunately, it comes at the expense of this case,” she said. “It is unfortunate, but not every case is perfect.”

In a hearing earlier this week, Chadwick argued police were only led to Richards’ home in Milford by uncorroborated tips submitted anonymously online.

The tips reported to police indicated someone at a certain IP address appeared to be trading child pornography. Police got what is known as a subscriber warrant to determine to whom the IP address belonged. But unconfirmed tips from unknown people, who were in Australia and Maryland, aren’t enough to establish probable cause, Chadwick argued Monday.

“Somebody has to do that independent analysis,” he said. “Someone has to take a look.”

Assistant Hillsborough County Attorney Nicole Thorspecken said police were right to take the anonymous tips seriously because, for one thing, they came in at the same time from two independent sources with no connection to Richards.

Once police used the subscriber warrant to determine the IP address belonged to Richards, the names of some of the files, along with his history and other factors, were enough to establish probable cause to search his home, Thorspecken said.

“Making sense is enough to reach probable cause because probable cause is an adjustable concept,” she said.

Nicolosi ruled police had enough probable cause for the subscriber warrant, but that the names of the images – including 6YO and 10YO – aren’t enough to establish probable cause for the search warrant because even if the numbers do refer to children, they do not establish that the children are engaged in sexual acts and police never viewed the images.

Instead, they “relied on vague descriptions and generalities provided by the untrained eye of a tipster, who admittedly did not observe any of the pictures himself in any detail,” Nicolosi said.

The state’s sex offender registry shows Richards was convicted of eight counts of child pornography on Feb. 28, 2005, in Hillsborough County Superior Court in Nashua, as well as duty to report on Jan. 11, 2011. ..Source.. by JOSEPH G. COTE, Staff Writer