US v Adam Ray Fernandez

2-28-2012 Arkansas:

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

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

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

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

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

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

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

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

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

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

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

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

US v Madera

5-23-2008 Florida:

US v Madera
528 F.3d 852 (2008)

Wilfredo G. Madera ("Madera") appeals from the district court's denial of his motion to dismiss the indictment against him for failing to register as a sex offender in violation of 18 U.S.C. § 2250(a) and the Adam Walsh Child Protection and Safety Act of 2006 ("Walsh Act"). On appeal, Madera argues that the Walsh Act is unconstitutional because it violates the following provisions of the United States Constitution: 1) the Non-Delegation Doctrine, Art. I, § 1; 2) the ex post facto clause, Art. I, § 9, cl. 3; 3) both the procedural and substantive due process clauses of the Fifth Amendment; and 4) the Commerce Clause, Art. I, § 8, cl. 3. The district court denied Madera's motion to dismiss, holding as a matter of law that the Walsh Act was both retroactive and constitutional. We reverse.

Factual Background

Madera was convicted in New York in November 2005 of sexual abuse in the second degree, a misdemeanor under New York Penal Code § 130.60. He was sentenced to six years of probation for this conviction, but was not incarcerated. Madera signed a sexual offender registration form in New York, dated May 1, 2006, which stated, "If you move to another state you must register as a sex offender within 10 days of establishing residence."

Madera subsequently moved to Florida, and was issued a driver's license on June 1, 2006 with an address in West Palm Beach, Florida. He was arrested on October 23, 2006 for failure to register as a sex offender in violation of 18 U.S.C. § 2250, and was thereafter indicted by a grand jury for "knowingly and unlawfully fail[ing] to register and update a registration as required by [the Walsh Act]."

After the district court denied Madera's motion to dismiss, Madera entered a conditional plea of guilty to the failure to register charge, permitting him to appeal that motion. The district court then sentenced Madera to time served, four years of probation, and a $500 fine. As of March 8, 2007, Madera has been registered with the State of Florida Sexual Offender Registration database. This appeal followed.

... ... ...

Given our finding that the Attorney General had sole discretion to determine whether or not SORNA was to be retroactively applied to sex offenders convicted before its enactment date, it only stands to reason that SORNA's scope was undefined prior to that determination.7 Because Madera's indictment concerns his failure to register during the gap period between SORNA's enactment and the Attorney General's retroactivity determination, he cannot be prosecuted for violating SORNA during that time. Thus, his indictment is due to be dismissed, and the judgment of the district court is reversed.8

Having decided the case on this basis, we need not reach the important constitutional questions raised in Madera's appeal. See Slack v. McDaniel,529 U.S. 473, 485, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (recognizing "[c]ourts will not pass upon a constitutional question although properly presented in the record, if there is also present some other ground upon which the case may be disposed of") (citing Ashwander v. TVA,297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring)).

The judgment of the district court is REVERSED.

US v Baccam

4-28-2009 Arkansas:

US v Baccam
(562 F.3d 1197 (2009)

Phasung Lu Baccam was convicted under 18 U.S.C. § 2250 for failing to register as a sex offender after he moved to Arkansas from California where he had been convicted of a sex offense under state law. The district court1 denied his motion to dismiss the indictment on the ground that he had not received notice of the federal sex offender registration law. Baccam appeals, and we affirm.

In 1996 Baccam was convicted in California of sexual contact with a minor female. Under California law this conviction required him to maintain registration as a sex offender throughout his lifetime.

Cal.Penal Code § 290(b) (Deering 2009). Two "Notice of Sex Offender Registration Requirement" forms that Baccam signed on February 8, 1999 and November 10, 2003 not only detailed his registration requirements within California, but also notified him that if he moved to another state he would need to register in that state within ten days and notify the law enforcement agency with which he was last registered of his change of residence. After Baccam was arrested in California for failure to update his registration he signed another form on September 19, 2005. That form required him to initial his acknowledgment that he was required to register as a sex offender in any state to which he might relocate.

In the summer of 2007 Baccam moved to Arkansas but did not register as a sex offender. When he was arrested in September 2007 for traffic violations, officials discovered that he had not registered as a sex offender in their state as required by California, Arkansas, and federal law. He was later indicted under the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250, for his failure to register. ....

Baccam moved to dismiss the indictment charging him under § 2250(a). After the district court denied the motion, Baccam entered a conditional guilty plea and was sentenced to twenty four months. We review de novo the denial of a motion to dismiss an indictment. See United States v. Cvijanovich,556 F.3d 857, 862 (8th Cir.2009).

Baccam contends that he could not, as a matter of law, knowingly fail to register under SORNA because he was never told of his specific registration obligations under that law. A provision in SORNA entitled "Duty to notify sex offenders of registration requirements and to register" states that "[a]n appropriate official shall... inform the sex offender of the duties of a sex offender under this title and explain those duties." 42 U.S.C. § 16917(a).

Baccam contends that because there is no evidence that he was ever informed about his duties under SORNA, which had been enacted in 2006 after he had signed the California forms informing him of his duty to register if he moved to a different state, the government cannot prove an element of the offense and the indictment should have been dismissed.

The government argues that the scienter requirement in § 2250(a) does not require that Baccam specifically knew he was violating SORNA, but only that he knew he was violating a legal registration requirement upon relocating. It urges that Baccam knew he was required to register in a new state because of the information provided him on the California forms he had signed in 1999, 2003, and 2005. .....

We conclude that it would be inconsistent with SORNA's purpose of protecting the public by strengthening the system of sex offender registration not to give effect to state law notifications that relocation requires registration in the new jurisdiction. There is no reason to believe that the SORNA notice provision in § 16917 was intended to dilute the effect of state notice requirements, given the stated congressional intent to protect the public by establishing a comprehensive national system for registration of sex offenders. 42 U.S.C. § 16901.

We conclude that Baccam had adequate notice of his registration obligations based on the information provided him in the California registration forms, even if that notice did not explain that failure to register would be a violation of federal law as well as state law. Baccam does not deny that he knew that he needed to register in Arkansas. Had he done so, he would have received notification of SORNA's requirements, and would have been in compliance with federal law.3

Accordingly, we affirm the judgment of the district court.

State v Herrick

9-20-2011 Washington:

State v. Herrick

In the 1980s, Herrick was convicted of three counts of indecent liberties, which required him to register as a sex offender under former RCW 9A.44.130. Herrick registered several times in King County prior to 2000.

On June 13, 2000, Herrick registered as a sex offender with the Pierce County Sheriff's Department. At the time, he registered his address as "3315 164th Ave. E, Sumner, Pierce County, Washington." Clerk's Papers (CP) at 10. Herrick also received a copy of the statutory requirements for registration and signed a form stating that he understood Washington State's sex offender registration laws. Herrick never again registered as a sex offender with the Pierce County Sheriff's Department.

In 2004, Herrick moved from Pierce County to King County to live with his then-fiancé, Priscilla Hennemann. Herrick's driver's license, issued on March 2, 2006, listed his address as "1814 27th Street Southeast, Auburn, Washington." Report of Proceedings at 50.

On December 21, 2009, Pierce County Sheriff's Department Detective Keith Barnes conducted a sex offender verification check at Herrick's registered address in Sumner, Washington. Barnes discovered that Herrick no longer resided at his listed Sumner address.

On January 20, 2010, the King County Sheriff's Department notified the Pierce County Sheriff's Department that Herrick had moved from Sumner to Auburn. The same day, the State charged Herrick with failing to register as a sex offender in violation of former RCW 9A.44.130.

Facts to notice: 1) That a form signed in 2000 was still used by the state in 2011; 2) That there is no question that, the form clearly explained what the law said in 2000 versus 2011 when he was charged. 3) The state uses the statute in court and there is no proof, what the statute said was on the form signed in 2000. Generally those forms merely state something like "understands the law" and registrants are never given a copy of the law itself, but the court uses that law in court.

Following a bench trial, a trial court convicted James Herrick of failure to register as a sex offender under former RCW 9A.44.130 (2006). On appeal, Herrick challenges the sufficiency of the evidence supporting the trial court's finding that he knowingly failed to register. We affirm.

US v Crowder

9-1-2011 Washington:

US v Crowder
(656 F.3d 870 (2011)

In June 2007, Kevin Leroy Crowder was convicted of child molestation in Washington state court and sentenced to two years confinement, followed by three to four years community custody (i.e., probation). On June 22, 2007, he received and signed a certified copy of his judgment and sentence form, which informed him that as a sex offender, he was "required to register with the sheriff of the county of the state of Washington" where he resides, and that if he moved "out of Washington State," he had to "send written notice within 10 days of moving to the county sheriff with whom [he] last registered in Washington State," and then "register a new address, fingerprints, and photograph with the new state within 10 days."

Upon his release from prison, on May 28, 2008, Crowder completed a Washington state sexual offender registration form, registering at the King County Sheriff's Office. The registration form stated that if Crowder "move[d] out of Washington State," he had to "send signed written notice within ten days of moving to the new state or foreign country, to the county sheriff with whom [he] last registered." And if he "knowingly fail[ed] to comply with these registration requirements, [he would be] guilty of a . . . felony." One week later, he filed a change of address form.

In March or April 2009, Crowder left Washington for Montana without advising either state to that effect. After a short stay with a woman he met at a bus stop, Crowder set up a campsite in a national forest. He was arrested on September 29, 2009, at a convenience store in Bozeman.

In October 2009, a federal grand jury indicted Crowder for failure to register as a sex offender, in violation of 18 U.S.C. § 2250(a). The indictment stated: "KEVIN LEROY CROWDER, a sex offender by reason of a conviction under Washington law for Child Molestation in the Second Degree, a Felony, and a person required to register under [SORNA], traveled in interstate commerce to Montana, and did knowingly fail to register and/or update a registration, in violation of 18 U.S.C. § 2250(a)."

He entered a not guilty plea and opted for a bench trial. The district court rejected Crowder's argument that he did not receive "actual notice" of the federal sex registration requirements, relying on the Eighth Circuit's decision in United States v. Baccam, 562 F.3d 1197 (8th Cir.), cert. denied, 130 S.Ct. 432 (2009), and found him guilty. Crowder timely appeals. We have jurisdiction under 28 U.S.C. § 1291.

Most important to note here is, that once a registrant signs ANY state form, which indicates that if they move to another state they must register there, ALL Courts (State and Federal) ignore the boundaries between state and federal law.

Here federal law (SORNA) commands that the USAG use a form to notify registrants of their registration requirements (Sec. 117(a) 42 USC 16917(a)) and to prescribe RULES to notify registrants convicted before SORNA of their registration requirements (Sec 117(b) 42 USC 16917(b)).

However, the USAG has FAILED to prescribe any RULE for the notification of registrants convicted before SORNA of their registration requirements. Courts are IGNORING that federal mandate (42 USC 16917(b)), if their is a signed state form which says something similar, and the registrant has signed the state form. In this writer's opinion that is clear trickery, and does not satisfy due process, but I am one person and not a lawyer or a court. It is what it is, be forewarned!

In Crowder's case all his dates are after SORNA was enacted, so this note is not applicable to him, except to show how the SIGNED FORMS are used years after they were signed. (Someday I'll find a case showing how courts are convicting some quite illegally)

We now apply this interpretation of § 2250 to Crowder's case. Although Crowder did not receive notice of the requirement to register under SORNA, the government did not have to prove that Crowder knew of this requirement in order to convict him of an offense under § 2250.

Crowder was required by the terms of his judgment to register in Washington as well as in any new state to which he moved. Indeed, his registration form advised him that he needed to update his registration in Washington before he moved to another state.

In short, there was ample evidence on which the district court could base its determination that Crowder knew that he was required to register and failed to do so. See Jackson v. Virginia, 443 U.S. 307 (1979). Accordingly, we reject Crowder's sufficiency of the evidence challenge.