United States v Rojas

Make absolutely certain EVERTHING is written into a plea agreement before giving up right to appeal!

3-11-2015 Puerto Rico:

United States v Rojas

Pursuant to a plea agreement, Defendant pleaded guilty to failing to register as a sex offender, as required by the Sex Offender Registration and Notification Act. The district court sentenced Defendant to one year in prison.

The court also sentenced Defendant to ten years of supervised release and imposed several conditions of supervised release. Defendant appealed, challenging three of those conditions.

The First Circuit dismissed the appeal without reaching the substance of the appeal because Defendant agreed knowingly and voluntarily to accept the the “waiver of appeal” provision in his plea agreement, and this appeal fell within the scope of that waiver.

Benton Harbor man to remain on sex offender list

2-24-2015 Michigan:

A Benton Harbor man convicted of having sex with an underage girl has lost an appeal of a lower court's decision requiring him to remain on the state sex offender registry.

Evans Costner III was more than four years older than the victim in the 2009 case, and therefore not entitled to have his name removed from the registry, the state Court of Appeals said.

A provision in state law allows offenders in so-called "Romeo and Juliet" cases, where young people engage in sex by consent, to petition a court for removal from the registry.

For the petition to be granted, the victim must be at least 13 and under 16, and the offender not more than four years older than the victim.

Costner was 18 at the time of the offense, four years and 23 days older than the 14-year-old girl, according to an appeals court opinion released Feb. 19.

In affirming a Berrien County Trial Court decision denying Costner's petition, the appeals court also said that requiring him to register as a sex offender is not cruel and unusual punishment.

Sex Offender Registry Spat Bends to Public Access

10-29-2014 Michigan:

People v Temelkoski

A sex offender who no longer has a conviction on his record after successfully completing probation must still abide by registry requirements, a Michigan appeals court ruled.

Boban Temelkoski was 19 in 1994 when he was charged with second-degree criminal sexual conduct related to his kissing and groping of a 12-year-old girl.

Temelkoski pleaded guilty and served three years of probation under the Holmes Youthful Trainee Act (HYTA), at which point the case against him was dismissed.

Though Temelkoski does not have a conviction on his record, Michigan law still requires him to register as a sex offender for life under the Sex Offender Registration Act (SORA).

He sought removal from the sex-offender registry in 2012 based on the purported "cruel or unusual" nature of punishing him of something not memorialized by a conviction.

Since SORA now contains a "consent exception" for youthful offenders in a so-called "Romeo and Juliet relationship," Temelkoski also characterized the sexual encounter between him and the 12-year-old as consensual.

Wallace v. State

9-26-2014 New York:

Wallace -v- State

In this case ("Wallace"),1 nine individuals ("Plaintiffs") claim that New York State sex offender registration requirements and residency restrictions punish them retroactively for offenses they already committed and, thus, violate the Ex Post Facto Clause of the Constitution (Article I, Section 9, Clause 3); and that similar residency restrictions under County and Town laws are not only unconstitutional, but preempted by state law. (Dkt. No. 5 ("Am. Compl.") ¶¶ 1-3.)

Plaintiffs also claim that, as a result of the County residency restrictions, they are, or have been, homeless and relegated to County-run trailers, subject to living conditions that infringe upon their Fourteenth Amendment right to equal protection under the law. (Id. ¶¶ 45-46.)

Defendants—the State of New York (the "State")2; the County of Suffolk (the "County") and Susan Westergaard, in her official capacity on behalf of the Suffolk County Department of Social Services3 (the "County DSS") (collectively, the "County Defendants")4; Mark Epley, in his official capacity as Mayor on behalf of the Town of Southampton5 (the "Town")6; and Alexander Roberts, in his official capacity as Executive Director of Community Housing Innovations, Inc. ("CHI")—move the Court to dismiss the claims against them in the Wallace Complaint. (Dkt. Nos. 68-70; 79.)

For the reasons set forth below, the Court grants Defendants' motions in their entirety and dismisses the Wallace Complaint with prejudice, except Plaintiffs' state law preemption claims as to which the Court declines to exercise supplemental jurisdiction and dismisses without prejudice.

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See also: Judge Rejects Sex Offenders' Challenge to Residency Laws....NY Law Journal

Sex offender's 3-year prison term for failing to register not excessive, appeals court finds

7-3-2014 Louisiana:

A state appeals court has upheld the three-year prison sentence that a Jefferson Parish judge gave a Port Sulphur man for failing to complete his sex offender registration. Carlo Muth, 39, said the punishment is excessive, because he tried to register when he moved to Jefferson Parish but could not afford the $628.75 fee that the Sheriff's Office charged him.

Muth was given the sentence in September by Judge Lee Faulkner of the 24th Judicial District Court. A jury had convicted Muth for failing to register as a sex offender when he moved to Jefferson in 2012.

He was required to register because of his 2005 guilty plea in Plaquemines Parish's 25th Judicial District Court to to molestation of a juvenile. He admitted having sex with a 14-year-old girl, when he was 29.

When he moved to Jefferson, he notified the Sheriff's Office and registered as a sex offender. He was given 21 days to notify the community, a requirement of state law. But he told the Sheriff's Office he could not afford the community notification fee, court records show. Lt. Luis Munguia, in charge of the sex offender registry, gave him an extension through January 2013. Muth still did not register, leading Munguia to seek his arrest.

Muth moved back to Plaquemines in March 2013 and was trying to register as a sex offender there when he was arrested on the Munguia's warrant. Police say he admitted he had been paid at his job but that he still made no attempt to pay the Jefferson fee.

After Muth was convicted, Faulkner sentenced him to three years in prison with no benefit of probation, parole or suspended sentence. His trial attorney's argument that the sentence was excessive was unheeded.

Muth appealed to the 5th Circuit Court of Appeal in Gretna. A three-judge panel sided with Faulkner in finding that the trial judge did not abuse his discretion in handing down the punishment.

The punishment range for failing to register is two years to 10 years in prison, the appellate court noted. Another Jefferson Parish judge had previously handed down a five-year sentence in an unrelated case, the appellate court found.

"In the instant case, although (Muth) has only one prior felony conviction and his instant conviction appears to stem from financial difficulty, we find that these mitigating factors are reflected in his sentence that is less than midrange and illegally lenient," Judge Jude Gravois wrote in the June 24 opinion, for Susan Chehardy and Robert Murphy.

"Accordingly, we concluded that the trial court did not abuse its discretion in sentencing (Muth) to three years imprisonment at hard labor without benefits. ..Source.. by

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.

Carriere man gets life without parole in sex-offender registry case

4-17-2014 Mississippi:

Donald Caves prosecuted as habitual offender

A Carriere man has been sentenced to life without parole for conviction of failing to register as a sex offender, District Attorney Hal Kittrell said Tuesday.

Donald Allen Caves, 45, was found guilty April 9. Judge Anthony Mozingo deferred sentencing for a pre-sentence investigation.

Kittrell said a Pearl River County jury believed testimony that Caves changed his address and failed to notify authorities.

He was convicted of touching a child for lustful purposes in 1990, accessory after the fact to auto burglary in 1998 and felon in possession of a weapon in 2005.

His latest felony investigated by the Pearl River County Sheriff's Office and prosecuted by Assistant District Attorneys Kim Harlin and Lauren Harless.

"Repeat offenders such as Donald Caves pose a threat to the safety of our community and should be sentenced to life without the possibility of parole," Kittrell said in a news release. ..Source.. by ROBIN FITZGERALD

Seales v State

2-28-2014 Indiana:

Seales v State

Kenneth Seales appeals the denial of his motion to remove him from the sex offender registry and his motion to correct error. As the additional registration requirements imposed on him after a 2006 change in the law do not amount to an impermissible ex post facto law, we affirm.

Seales pled guilty in October 1998 to Class B felony child molesting1 for an offense committed in 1996, and the court imposed a twenty-year sentence, with ten years suspended and six years on probation. When Seales committed the offense, the Indiana Sex Offender Registration Act required an offender to register for ten years from the date he was placed on probation. Ind. Code § 5-2-12-5 (1996).

In 2011, Seales brought a Verified Motion to Determine Sex Offender Registration Requirements and Remove Defendant from Registry. In that motion, Seales noted that, at the time of his conviction, the statute required him to register as a sex offender for ten years, but in 2006 the law was changed to require lifetime registration. That change, he asserted, was an impermissible ex post facto law.

He asked the trial court to direct the State to remove him from the sex offender registry and to issue an order that he was not required to register. The trial court determined Seales must continue to register as a sexually violent predator for the rest of his life pursuant to Ind. Code § 11-8-8-19, denied his motion to be removed from the registry, and subsequently denied his motion to correct error.

... ... ...

Conclusion:
As Seales, like Jensen, has available to him avenues of relief related to his future dangerousness “in relation to the alternative purpose assigned, protection of the public,” id. at 321, we find the seventh factor weighs in favor of treating the lifetime registration requirement as non-punitive, and we therefore cannot say it was error for the trial court to deny Seales’ petition to be removed from the sex offender registry.

Affirmed.

Supreme Court says DuPage man must register as sex offender

Article continues below, first the unfair appellate court decision (See Rule 606(c) Appeal motion dismissed, not as untimely just dismissed). This lower appellate court decision was upheld by the Illinois Supreme court HERE:

12-12-2012 Illinois:

People v Bailey

On March 14, 2007, defendant, Christopher B. Bailey, entered an open guilty plea to the offense of criminal sexual abuse, and the trial court sentenced him to 300 days, with credit for time served. On October 7, 2010, defendant filed a motion to vacate his plea and sentence as being void. The State filed a response, arguing against the motion, but it did not challenge the timeliness of the motion. The trial court denied the motion on January 28, 2011.

Defendant filed a notice of appeal on February 25, 2011, appealing the denial of his motion to vacate his plea and sentence. He raises the following issues:

• (1) whether the trial court had jurisdiction (and therefore this court has jurisdiction) to rule on his untimely motion to vacate, pursuant to the revestment doctrine, and
• (2) whether the cause must be remanded for further proceedings on his motion because his trial counsel failed to file a certificate of compliance with Illinois Supreme Court Rule 604(d) (eff. July 1, 2006).

The State responds that the trial court was not revested with jurisdiction and thus this court lacks jurisdiction.
We agree with the State and dismiss the appeal.

BACKGROUND

¶ 3 The offense to which defendant pled guilty arose from consensual sex between the 17–year–old defendant and his 16–year–old girlfriend. See 720 ILCS 5/12–15(c) (West 2006). The State requested, among other things, that the trial court sentence defendant to two years of sex offender probation and order defendant to undergo a sex offender evaluation, to register as a sex offender, and to submit to HIV and STD testing.

After the trial court sentenced defendant, an unidentified speaker, presumably either defense counsel or the prosecutor, asked: “Judge, is there any sentence regarding [sex offender] registration?” The judge replied: “No[,] * * * I think my sentence was fair and appropriate based upon what's going on.

He's going to be on mandatory supervised release on the parole anyway.” The court then determined that defendant had been incarcerated since September 2006 and stated, “we have plenty of time to * * * handle this another way.” Defendant acknowledged that he had read a notice of his appeal rights, discussed those rights in great detail with his counsel, understood them, and had no questions about them. Defendant did not file any timely postjudgment motions following sentencing.

... ... ...

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Continuation of Article date 2-6-2014
A DuPage County man has to remain on the state sex offender registry after his bid to remove himself was rejected by the Illinois Supreme Court Thursday.

Christopher Bailey of Clarendon Hills pleaded guilty in 2007 to sexual assault involving his 16-year-old girlfriend when he was 17.

Bailey, now 25, argued the judge in the original case told him he didn't have to register as a sex offender. But when he was forced to do so in 2010, Bailey asked that his original sentence be tossed out.

The Supreme Court Thursday voted unanimously to reject that request, calling it "untimely." The court ruled that too much time had passed between Bailey's sentencing and his bid to overturn it.

"We're pleased that the court's decision clarifies a specific area of Illinois law" concerning the timeliness of cases like this one, said Maura Possley, a spokeswoman for Attorney General Lisa Madigan's office.

Bailey is being held in DuPage County Jail, having been charged with failing to register as a sex offender. His attorney, Jaime Montgomery, said Bailey doesn't have further options for appeal. ..Source.. by Marty Hobe

Metadata Is Fair Game to Track Child Pornography

2-4-2014 Texas:

The FBI lawfully seized hidden iPhone photo data to locate a man accused of uploading child pornography, a federal judge ruled.

The U.S. government charged Donald John Post Sr. with sexual exploitation of children and distribution and possession of child pornography in August 2013. Because of Post's status as a registered sex offender, he also faces penalties for committing a felony offense involving a minor.

In a six-page complaint made public upon Post's arrest, Special Agent Richard Rennison described the investigation that led the FBI to the sex offender's door.

Rennsion said a sexually explicit photo taken with an iPhone 4 was posted on a website "primarily dedicated to the advertisement and distribution of child pornography and the discussion of matters pertinent to incest and pedophilia."

In the explicit photo, its young subject is sleeping on a leather couch.

According to Rennison's affidavit, the FBI investigators were able to glean embedded information, or metadata, from the image, including the make of the photographic device and the GPS coordinates where the photo was taken.

Law-enforcement officials first stopped at the home of Post's neighbors who, as it turned out, did not have a similar leather couch or an iPhone 4, the affidavit states.

Realizing that the GPS coordinates could be off, Rennison said investigators took a closer look at other residents in the area. Their search turned up Post's conviction for aggravated sexual assault of a child.

Post ultimately let Rennison and a fellow task force officer enter his house where they found a similar couch, the affidavit states. Post later admitted to taking the picture, and several others, of a 4-year-old girl in his home.

The sex offender argued in court that the FBI violated his Fourth Amendment right to be free from unreasonable searches and seizures when it obtained the hidden data.

U.S. District Judge Gregg Costa nevertheless declined last week to suppress the evidence.

"Post's attempt to carve out the metadata from his public release of the image finds no support in the text of the Fourth Amendment or the case law applying it," the 10-page order states

Judge Costa found that Post "gave up his right to privacy in that image once he uploaded it to the Internet, and that thing he publicly disclosed contained the GPS coordinates that led agents to his home."

"There is no basis for divvying up the image Post uploaded into portions that are now public and portions in which he retains a privacy interest," Costa concluded. ..Source.. by BONNIE BARRON

7th Circuit upholds $100 annual sex offender registry fee

1-24-2014 Wisconsin:

Mueller v Raemisch
740 F.3d 1128
Court Docket

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This decision overturns
Doe v Raemisch

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Personally I find this decision disgusting, the judge fails to recognize one "having a choice to use a service (passports)" -vs- "being forced against one's will into and pay for a public governmental system (registries).

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The $100 that Wisconsin sex offenders must pay every year for being listed on a registry is not an unlawful fine, a federal appeals court has ruled. But the court did not address other lifetime conditions of Wisconsin sex offender registration because it found the challengers lacked standing.

The decision by the 7th U.S. Circuit Court of Appeals reversed a ruling by a Green Bay federal judge, and also thwarted the plaintiffs' request to proceed as unnamed. Instead, the court added their names to the case.

U.S. District Judge William Griesbach had ruled the $100 fee amounted to a fine and therefore was an unlawful "ex post facto" punishment for the two plaintiffs, who had been convicted before Wisconsin adopted the sex offender monitoring law.

Tobin Mueller and Gregory Deangelis remain subject to not only the annual $100 fee, but also many other lifetime requirements and restrictions of the sex offender registry, even though they now live in Connecticut and Florida, respectively, and never intend to return to Wisconsin.

Mueller was convicted in 1993 and served four years in prison plus six years of probation. Deangelis was convicted in 1985 and served five years, then again in 1993 and served one year. Each is now subject to lifetime registry in Wisconsin.

But if that's true, the court wrote, they would likely never face any real consequence of violating those restrictions, such as changing their name, or photographing children, or not reporting a change of address, because Wisconsin admits it has never tried to enforce completely out-of-state violations of the restrictions.

Mueller and Deangelis do have standing to complain about the annual re-registration and fee, but the court said those aspects of the law are not punitive, and therefore not prohibited "ex post facto" law. Judge Richard Posner wrote the opinion for a panel that included Judge Diane Sykes and Judge Frank Easterbrook.

"The fee is intended to compensate the state for the expense of maintaining the sex offender registry," Posner wrote. "The offenders are responsible for the expense, so there is nothing 'punitive' about making them pay for it, any more than it is 'punitive' to charge a fee for a passport."

On the issue of the plaintiffs' request for anonymity, the court noted that while the plaintiffs contend they've been subjected to shunning and harassment for being on the offender registry, which is public, the court generally opposes secrecy. In this case, judges didn't see how any additional harm from being named as plaintiffs could outweigh the disruption to their personal lives they say they already have suffered. ..Source.. by Bruce Vielmetti

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Pennsylvania Supreme Court reinstates child porn charges in Lehigh County sexting case

1-25-2014 Pennsylvania:

Top state court says county judge erred in dismissing porn charges against girl.

A video of a teenage girl and boy engaged in a sex act circulated among Allentown youths for at least a year before another girl was charged with possession and distribution of child pornography for posting it on Facebook.

Although a Lehigh County judge agreed with the girl's attorneys that the charges were "an overreaction by law enforcement" and dismissed them in 2012, the state Supreme Court on Thursday reversed his decision.

The girl, identified in court papers only as C.S., must return to Lehigh County juvenile court to face felony charges in a case that raises new questions about where poor judgment by sexting teens ends and criminal exploitation by child pornographers begins.

Lehigh County Assistant District Attorney Heather Gallagher said police and prosecutors do not believe what C.S. did was sexting, the term used to describe the practice of sending sexually explicit photos, videos or messages using cellphones or computers.

Appeals court reinstates indictment against McKeesport man who failed to register as sex offender

1-15-2014 Pennsylvania:

USA V Blake Brown Jr

When it comes to an exemption in the federal sex offender registration law, “not more than four years” means no more than 1,461 days, a federal appeals court ruled Wednesday in a precedential ruling.

A three-judge panel of the U.S. District Court of Appeals ordered U.S. District Judge Joy Flowers Conti to reinstate the indictment of Blake Brown, 28, of McKeesport, who is charged with failing to register after he moved to Pennsylvania from New York. He was arrested in 2011 during a regional sweep by law enforcement of unregistered sex offenders.

Brown was convicted in 2003 in Florida for lewd molestation of a 13 year old when he was 17 years old, the ruling says. The registration law exempts people convicted of consensual acts when the victim was at least 13 and they were “not more than four years older.”

Brown was four years and four months older than his victim. Conti ruled that the federal law was ambiguous about whether the calculation should include only whole years or include months or days. The appeals court said anything past 1,461 days is more than four years. ..Source.. by Tribune-Review

Federal reinstates child porn conviction

1-14-2014 Mississippi:

JACKSON, Miss. — The 5th U.S. Circuit Court of Appeals (USA v James William Smith) has reinstated the conviction of a Tupelo, Miss., man on federal child pornography charges.

A three-judge panel of the 5th Circuit issued the decision Tuesday and returned the case to Mississippi for sentencing.

In 2012, James William Smith sought a new trial in a child pornography case arguing that the court made numerous errors. Instead, U.S. District Judge Sharion Aycock in Aberdeen, Miss., threw out the conviction and acquitted Smith of the charges.

Smith had been convicted of one count of possessing child pornography. The indictment in the case said Smith had movies of child porn on his work computer in Tupelo in 2011.

Aycock said the government failed to prove Smith knew the images were on the computer.

The government failed to prove beyond a reasonable doubt that Smith knowingly possessed the illegal materials found on his computer, Aycock said, adding it is just as likely that the other person downloaded the child pornography onto the computer, as Smith did.

Smith faced up to 10 years in prison upon conviction.

The 5th Circuit panel said the evidence supported the Mississippi jury's guilty verdict.

"We conclude that the prosecution presented sufficient evidence such that the jury could find, beyond a reasonable doubt, that Smith downloaded the files and knew what he was downloading. Given that the nature of the files and the interstate transport are not in dispute, the evidence is thus sufficient to sustain a conviction of knowing possession of child pornography," the panel said.

The panel said courts have found that even when a computer is shared and illegal files are found a jury could reasonably conclude that the owner and possessor of the computer would be aware of at least some of the images on his computer. ..Source.. by SunHerald.com

Butler v Jones

12-17-2013 Oklahoma:

Butler v Jones

On June 28, 2000, Petitioner/Appellee, Jerry Dale Butler (hereinafter "Butler") pled guilty to two counts of "Sexual Abuse of a Minor Child" pursuant to 10 O.S., § 7115 in Sequoyah County, Oklahoma and received two five-year deferred sentences which ran consecutively.1 Sometime thereafter, Butler began registration under the Sex Offenders Registration Act, 57 O.S., § 581 et seq. (hereinafter "SORA").2

On April 1, 2010, the district court in Sequoyah County issued an order expunging Butler's plea from the record in accordance with 22 O.S., § 991c, thereby deleting all references to his name from the docket sheet, deleting the public index of the filing of the charge, and providing no information concerning the confidential file shall be revealed or released without order of a judge or district court.

On June 18, 2010, Butler filed a Petition for Injunction to permanently enjoin the Respondent/Appellant, Justin Jones ex rel., State of Oklahoma ex rel., Oklahoma Department of Corrections (hereinafter "Department") from requiring him to continue registering under SORA.

He argued requiring him to register violates his rights to equal protection of the laws and to due process of law "under the Constitutions of the United States, Amendments V and XIV, and of the State of Oklahoma, Art. 2, §§ 2 and 7, and Article 5, § 59."

His main and most developed argument is his equal protection challenge. He alleged 57 O.S., § 582 (E) violates his right to equal protection because it treats persons with expunged records in Oklahoma differently from persons whose records were expunged in other states. Subsection E of § 582 was added in 2009 and provided:

E. The provisions of the Sex Offenders Registration Act shall not apply to any such person who has received a criminal history records expungement for a conviction in another state for a crime or attempted crime which, if committed or attempted in this state, would be a crime or an attempt to commit a crime provided for in any said laws listed in subsection A of this section. 2009 Okla. Sess. Laws c. 404, § 2 (eff. Nov. 1, 2009).

Butler also asserted § 582 (E) offended Article 5, § 59 of the Oklahoma Constitution which concerns special laws and he is being denied due process of the law available to persons whose criminal history records were expunged in other states. He asserted there is no legitimate state purpose for denying Oklahoma defendants in deferred sentence cases the same privilege as that accorded to citizens of Oklahoma whose criminal history records were expunged in any of the other states.

... ... ...

CONCLUSION

¶ 17 We find the district court gave deference to an unlawful expungement over valid law requiring Butler to register under SORA for his lifetime. The district court reached an erroneous conclusion that Butler's case presented an "unusual and narrow circumstance" which justified it ignoring valid and existing law.

We also find the provisions of 57 O.S., § 582 (E) do not deny Butler equal protection of the law. At the time of Butler's plea, the law required a person who received any probationary term for a crime provided for in 10 O.S., § 7115, if the offense involved sexual abuse, to be designated an "aggravated" sex offender and to register under SORA for life. Requiring Butler to register under SORA based upon the law in effect at the time of his plea is consistent with our recent holding in Cerniglia v. Oklahoma Dept. of Corrections, 2013 OK 81, ___ P.3d ___.

We reverse the district court's order granting a permanent injunction against the Department and require the district court to order Butler's registration under SORA be reinstated for his lifetime because of his "aggravated" sex offender status.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION

25 to life for failing to reregister as sex offender

12-18-2013 California:

Vance Rider was a 41-year-old man with a long criminal record and a low IQ when he left Oakland in late 1999 and bedded down at a homeless shelter in San Mateo. Police found him there in March 2000 and discovered he had failed to reregister as a sex offender as required by law — once a year, within five days of his birthday, and within five days of a change of address.

After a San Mateo County judge barred a psychologist from testifying about Rider’s low mental capacity, a jury convicted him of violating the registration law. With multiple felony convictions on his record — three robberies in 1978, and forcible oral copulation of a minor and attempted manslaughter in 1983 –he was sentenced to 25 years to life in prison under California’s three-strikes law.

Rider has remained in prison during lengthy and unsuccessful appeals in the state courts, and on Wednesday he lost again, this time in the Ninth U.S. Circuit Court of Appeals.

One defense argument was that the trial judge should have allowed the jury to hear a psychologist who said Rider had an IQ of 69 and that such people have difficulty with their memory and ability to make plans. The judge said the defense could offer evidence that Rider was unaware of his duty to register, or lacked the ability to comply, but that state law barred testimony that he suffered from a mental defect that affected his capacity to follow the law.

Man with sex offense on record must serve time despite change in law

The essence of this case is, that the man is being held illegally, and that calls for a Habeas corpus filing. We must remember that Starkey RELIEF was applied retroactively to remove certain folks (this man for one) from the registry. That should be argued by a qualified lawyer and appealed if necessary, which I doubt. It is clear the judge incorrectly decided this case and believe it will be overturned on appeal; will watch case.

12-13-2013 Oklahoma:

A district court judge has ruled a Comanche County man currently incarcerated for sex offender registry violations committed after his required registration period had expired will remain in jail for the remainder of his term.

Comanche County District Court Judge Mark Smith filed an order Tuesday denying Edward D. Turner's application for post-conviction relief, filed in October after he received a letter from the Department of Corrections stating he had been removed from the state's sex offender registry.

DOC reviews thousands of cases

DOC officials began reviewing every name on the list individually after the Supreme Court ruled in June some convicts in Oklahoma were being kept on the registry past their lapse dates when changes to registry laws were retroactively applied.

In October, when Turner filed his motion asking to withdraw his previous guilty plea, the DOC had reviewed just over 1,300 of the over 7,000 offenders on the state's registry and removed 679 offenders who were no longer subject to registry requirements. Turner was one of those offenders who was removed from the list in early October.

According to Turner, his registry period should have ended June 17, 2009, which was 10 years after his release from custody, following a 1997 indecent act with a child case in Kiowa County. The DOC kept him on the sex offender registry, so when he didn't notify police of a move in April 2012, LPD officers arrested him for failing to notify of an address change. Turner was arrested, charged, pleaded guilty and was sentenced to 10 years with five suspended.

Argues charge not applicable

"I was illegally charged with a felony for not complying with Oklahoma Sex Offender Registration Act where none applied pursuant to new Oklahoma Supreme Court decision of Starkey v. Oklahoma Department of Corrections," he wrote in his motion. ..Continued.. by Malinda Rust

Brown v City of Michigan City, Indiana

9-5-2006 Indiana:

Brown v City of Michigan City, Indiana ...
462 F.3d 720 (2006)

On August 1, 2002, Robert Brown was banned from all properties or programs operated by the Michigan City Department of Parks and Recreation. On August 13, 2002, he filed this suit against the City of Michigan City, Indiana ("City"); he alleged that the ban violated his rights to procedural and substantive due process guaranteed by the Fourteenth Amendment.

On September 19, 2005, the United States District Court for the Northern District of Indiana granted summary judgment in favor of the City. Mr. Brown now appeals. For the reasons set forth in this opinion, we affirm the judgment of the district court.

... ... ...

Mr. Brown responds that, because Michigan City has not chosen to ban all child molesters from its parks, only Mr. Brown, its actions are "fundamentally irrational." Appellant's Br. at 34. But the City's means need not be "narrowly tailored" to its goals; rather, they need only be "reasonably related to [those] goal[s]." City of Chicago v. Shalala, 189 F.3d 598, 607 (7th Cir.1999). Unlike other persons previously convicted of child molestation, Mr. Brown was witnessed repeatedly in Washington Park watching patrons through binoculars; there is no indication that park officials had seen other sex offenders on City property, engaged in activity similar to Mr. Brown's. Further, as we concluded in Doe, "[t]here is certainly nothing in the record to suggest the City would act differently when faced with a similar case." Doe, 377 F.3d at 773 n. 14.[9]

Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the district court.

AFFIRMED