NEW: (# Failure to Register Technicality
NEW: Failure to Register a Sex Offense???
CAUTION: SORNA EFFECTIVE even if state has not enacted it
Plea Bargains: Santabello v New York
Forced to Carry Gov't Message Issue: See HERE
Blog also contains "Unfavorable" and "Informational" decisions and relevant news articles. All can be useful in framing arguments for new court actions. (i.e., avoid pitfalls or inform courts.) Or refuting charges, check facts of cases v yours.
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CAUTION: Decisions are meant to be educational.
For "Personal Life Decisions" consult with a lawyer.

USA v James Mozie

5-22-2014 Florida:

USA v James Mozie

James Mozie hosted “parties” at his house six days a week, every day but Sunday. With the help of his family members, including his teenage sons, he sold food, alcohol, and drugs to his party guests. He also sold sex, providing young girls who would strip for tips and have sex for money. Many of them were teenagers and one was only thirteen. For them Mozie’s home was a den of degradation.

Mozie found the teenage girls he used by posing as a benevolent businessman who ran a modeling agency. He was anything but benevolent and no respectable business would have been named, as his was, “Pretty Pink Pussy Enterprises.” Mozie preyed on vulnerable girls, many of whom were teenage runaways with no money and no shelter. In return for alcohol, drugs, and a place to stay, the young girls became what he called his “merchandise.”

Mozie’s brothel business led to a ten-count indictment charging him with eight counts of child sex trafficking, one count of conspiring to commit child sex trafficking, and another count of producing child pornography. He was convicted on all ten counts and sentenced to life imprisonment. This is Mozie’s appeal in which he raises three challenges to his convictions and two challenges to his sentence.

I. The Facts as the Victims Knew Them

Because there are sufficiency of the evidence challenges, we set out the facts in some detail. The story of James Mozie and his house of ill repute, known by reputation as “the Boom Boom Room,” is best told by the teenage victims he recruited to work there. Seven of the eight who were identified in the indictment testified against Mozie at trial. This is their story with the facts taken largely from their testimony:

... ... ... ...

Mozie's claim that his punishment is disproportionate because he did not use coercion, violence, or the threat of violence stands on flawed factual and legal grounds. Factually, the evidence at trial showed that Mozie did employ some coercion and violence to run his brothel.

He struck and choked M.J. when she did not follow his commands, and he essentially kidnapped C.C. and B.C. to bring them to his house. Legally, even if Mozie had not used any violence or coercion, the "absence of violence in the crimes being punished [is] not determinative of the disproportionality issue because `the presence or absence of violence does not always affect the strength of society's interest in deterring a particular crime or in punishing a particular criminal.'" Farley, 607 F.3d at 1337 (quoting Rummel v. Estelle, 445 U.S. 263, 275, 100 S.Ct. 1133, 1140 (1980)).

Society has a strong interest in deterring individuals from sexually exploiting children and in punishing those who do. Given the seriousness of his crimes, Mozie's sentence was not grossly disproportionate to his crimes and it does not violate the Eighth Amendment.6

AFFIRMED.

US v Burdulis

5-23-2014 Massachusetts:

US v Burdulis

Paul Burdulis was convicted of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) after the police found such pornography on a thumb drive (a kind of data storage device) in his home. To show that the pornography was "produced using materials which have been . . . shipped or transported" in interstate commerce, as required by the statute, the prosecution relied solely on an inscription on the thumb drive stating, "Made in China."

We agree with the district court that copying pornography onto a thumb drive is "produc[ing]" pornography under the statute, and we reject Burdulis's challenge to the admission of the drive's inscription.

We also reject Burdulis's claim that our interpretation of the law puts it beyond Congress's authority to regulate interstate commerce. After discussing these issues, along with Burdulis's objections to the warrant used to search the thumb drive, we affirm his conviction in all respects.

USA v Roberson

5-21-2014:

USA v Roberson

This case addresses an important question of interpretation of first impression in the federal courts of appeals. Defendant James Roberson appeals from a district court denial of his motion to dismiss and from his criminal conviction for his failure to register as a sex offender under SORNA, the Sex Offender Registration and Notification Act. 18 U.S.C. § 2250.

At the time of his federal indictment in July 2012, Roberson stood convicted, in 1998, of the Massachusetts crime of indecent assault and battery on a child under the age of 14. Mass. Gen. Laws ch. 265, § 13B. He did not appeal from that conviction; nor did he ever register as a sex offender at any time between 2010 and 2012, though he had been notified of his obligation to do so.

Four months after his federal SORNA indictment, on November 16, Roberson moved to withdraw his guilty plea to the sex crime in the state court. Roberson did not and does not allege that he was innocent of the indecent assault. But he did allege that his guilty plea had entered after a constitutionally defective procedure. The local prosecutor did not oppose the motion because the plea judge had utilized incomplete and inadequate plea-colloquy procedures before June 16, 2000 and there was no independent evidence that the proper plea procedures were followed during Roberson's March 4, 1998 plea hearing.1 The local state district court allowed the unopposed motion on January 11, 2013. We assume arguendo that Roberson's plea colloquy was constitutionally defective.

On February 15, 2013, Roberson moved to dismiss his federal charges on the basis that he no longer had a predicate sex offense to support a SORNA violation. More specifically, he argued that because of the constitutional defect, he was never "validly" convicted. He argued that his case is governed by Burgett v. Texas, 389 U.S. 109 (1967), and not by Lewis v. United States, 445 U.S. 55 (1980).

Agreeing with the district court, we hold that SORNA's registration requirement applied to Roberson as a person who "was convicted" of a sex offense, 42 U.S.C. § 16911(1), enforced by 18 U.S.C. § 2250, regardless of whether that conviction is later vacated, when federal charges have been brought for conduct before the vacation of conviction. We also reject Roberson's additional challenges.

Massachusetts: Order Relieving Sex Offender of Registration Not Vacated Upon Probation Violation

5-17-2013 Massachusetts:

The Massachusetts Supreme Judicial Court has held that once a judge relieves a sex offender of the requirement to register, a different judge lacks the authority to order the offender to register following a probation violation.

Douglas Ventura pleaded guilty to one count of possession of child pornography. After being sentenced to probation, pursuant to state law he moved to be relieved of the statutory requirement to register as a sex offender. The sentencing judge found that Ventura had demonstrated he did not pose a risk of re-offense or a danger to the public, and relieved him of the registration requirement.

About two-and-a-half years later, in September 2010, Ventura was charged with accosting and annoying a person of the opposite sex. At his probation revocation hearing, it was established that Ventura had watched two of his daughters’ friends through a hole in the shower wall of his home’s guest bathroom, which they used when they stayed at his house during overnight visits.

Ventura’s probation was revoked and he was sentenced to one year in prison and three years of probation on the new charge. As part of the sentence, the judge ordered him to register as a sex offender.

Ban on Sex Offenders from Nursing Homes Unconstitutional

8-6-2011 Massachusetts:

The Supreme Judicial Court (“SJC”) issues a narrow, yet potentially sweeping ruling on Friday. In John Doe v. Police Commissioner of Boston, the SJC found that a registered sex offender, regardless of level, cannot be summarily denied the ability to live in a nursing home without an individual finding that he poses some danger.

The ruling took aim at a law enacted in 2006 that barred all Level 3 offenders from going to a “long-term care facility.” The law infringed on an individual’s constitutionally protected right to travel and freedom to choose where they live. This law was particularly pernicious in that it took aim at a particularly powerless, infirm, and likely indigent population. For someone who required the assistance of a long-term facility, there are no alternatives.

The law also seems to try and protect from a perceived danger that is no danger at all. There is no single scientific study or piece of evidence that shows sex offenders of any kind pose any different or heightened risk in a long-term care facility. Indeed, the plaintiff in this case, John Doe, had been living at this facility prior to, and during, the duration of this lawsuit. He was very ill and never posed a risk or danger to anyone. At the time of the decision, the Court noted his health had deteriorated significantly. Had he been unable to live at the facility, one wonders where he could have gone.

While the case technically applies to just this one plaintiff, its language seems to sweep much more broadly. It likely spells the end for municipal laws prohibiting sex offenders from living in their towns. It may even curtail the use of residency restrictions (i.e. prohibiting persons from living within a certain distance from schools), at least not unless there is an individual finding that such a restriction is necessary. ..Source.. by Eric Tennen

Sex offender's conviction reversed by appellate court

5-9-2014 Ohio:

State v Hines

The Sixth District Court of Appeals is reversing the sentence of a Vermilion man who was involved in a string of sexual contact with a relative.

Charlie Hines, 54, was sentenced to five years in prison after he pleaded guilty in June 2013 to two counts of sexual battery. Both counts were 30 months and were ordered to be served consecutively.

According to the appeals court’s entry, Hines was indicted July 11, 2012. He was charged with one count each of rape and gross sexual imposition and nine counts of sexual battery.

Hines initially pleaded not guilty and asked the court to suppress an audio recording that was obtained at the police station during police questioning, but his motion was denied.

According to the entry, Hines entered into plea negotiations with the state and an agreement was made in which Hines agreed to plead guilty to two counts of sexual battery in exchange for the state’s dismissal of the other charges. In the plea agreement, he also should be classified as a tier III sex offender. The state had put in the agreement that there will be no community notification requested or found to be applicable.

Appeals court strikes lifetime GPS monitoring for sex offender

5-9-2014 North Carolina:

A Graham man serving 18 years for molesting a child won’t be subject to lifetime monitoring as a sex offender when he’s released from prison, the N.C. Court of Appeals ruled this week.

Jonathan Donald Thompson
, 24, formerly of Graham, was convicted in April of last year of first-degree sex offense with a child and taking indecent liberties with a child. The offenses occurred in September 2011.

The appellate court found that Superior Court Judge James E. Hardin Jr. of Durham County, the judge in the trial, shouldn’t have sentenced Thompson to lifetime satellite-based monitoring. Only a conviction of aggravated offenses allows a judge to impose lifetime monitoring. Neither first-degree sex offense with a child nor taking indecent liberties with a child are aggravated offenses under state sentencing laws.

Thompson will still have to register as a sex offender.

Otherwise, the appellate court found no error in Thompson’s trial. The unpublished opinion was written by Judge Linda McGee and was filed Tuesday. Judges Sam J. Ervin IV and Sanford L. Steelman Jr. concurred.

THOMPSON WAS appealing his conviction based on claims that Hardin should have excluded testimony by a pediatrician at CrossRoads Sexual Assault Response and Resource Center, and should have intervened in statements by Alamance County Assistant District Attorney Paul Soderberg during closing arguments.

Notes about Decisions

May 2014:

Some of the decisions in this blog are Unpublished, and courts have special rules about them. It doesn't mean you cannot use them, you just have to know how and when. Check the rules for the state / federal court you intend to use them. See:

NC Unpublished Opinions:
An unpublished decision of the North Carolina Court of Appeals does not constitute controlling legal authority. Accordingly, citation of unpublished opinions in briefs, memoranda, and oral arguments in the trial and appellate divisions is disfavored, except for the purpose of establishing claim preclusion, issue preclusion, or the law of the case. If a party believes, nevertheless, that an unpublished opinion has precedential value to a material issue in the case and that there is no published opinion that would serve as well, the party may cite the unpublished opinion if that party serves a copy thereof on all other parties in the case and on the court to which the citation is offered. This service may be accomplished by including the copy of the unpublished opinion in an addendum to a brief or memorandum. A party who cites an unpublished opinion for the first time at a hearing or oral argument must attach a copy of the unpublished opinion relied upon pursuant to the requirements of Rule 28(g). When citing an unpublished opinion, a party must indicate the opinion’s unpublished status. Source: North Carolina Rules

Sex offender seeks $215K for time served in Calif. prisons

5-10-2014 Rhode Island, California:

SACRAMENTO - A state hearing officer is recommending a convicted sex offender be paid $215,200 for the nearly seven years he spent in California prisons for failing to register after he moved from his native Rhode Island.

Charles Herbert Holmes, 50, doesn't deny sexually assaulting a 7-year-old girl in Providence in 1991, but claims the Rhode Island conviction for second-degree child molestation did not require him to register as a sex offender when he moved to California.

Holmes has a criminal history dating back to 1982, including convictions for burglary, fraud, counterfeiting, drug possession and resisting arrest.

He served three years of a ten-year sentence for the sexual assault on the child.

In 2005, Holmes was a transient in San Diego County coming off a four-year prison stretch for burglary when he was arrested for failure to register as a sex offender. Facing 25 years to life in prison as a two-striker, Holmes pleaded guilty to the registration charge and received a sentence of nine years.

Court hammers operator of Internet intimidation sites

4-5-2014 Arizona, National:

A Valley man accused of running an Internet extortion racket was dealt a blow last month when a judge found he posted information on websites suggesting a decorated combat veteran with no criminal record was a child molester.

Maricopa County Superior Court Judge Katherine Cooper imposed several sanctions against Charles "Chuck" Rodrick, saying evidence showed he controlled websites where operators demanded money from sex offenders and harassed those who complained.

In a seven-page ruling March 26, Cooper found Rodrick controlled the websites, owned the domain names and violated court orders to remove posts involving three people he sued for defamation after they publicly decried the websites, including his ex-wife and her boyfriend and a convicted sex offender from Washington.

"He is the administrator for these websites and, in that capacity, is the only person capable of adding or removing information from these websites," Cooper wrote.
Cooper also sanctioned Rodrick's girlfriend, Traci Heisig, a court reporter and owner of Desert Hills Reporting in Phoenix. In a separate ruling, Cooper said Heisig, who joined Rodrick in defamation lawsuits, willfully refused to comply with court orders by repeatedly failing to show up for depositions.

Rodrick responded last week with a motion seeking to have Cooper removed from the case. He accused her of having a conflict of interest because of her past relationship with lawyers in the case, and he said the judge is biased against people who represent themselves in court.

"Rodrick has initiated an independent query into Judge Cooper's record in matters involving pro per litigants," he wrote. "It is believed the results show an extreme prejudice against him and pro per litigants in general."

For more than a year, Rodrick, 52, of Cave Creek, has denied ownership or control of the websites.