California transplant wins appeal in sex registry case

3-10-2012 New Mexico:

SANTA FE — Does a convicted sex offender in California have to register with the government if he moves to New Mexico?

The New Mexico Court of Appeals said one such man did not, setting the stage for another courtroom confrontation this month.

Bruce D. Hall, about to turn 65 years old, is the defendant in the middle of this storm over laws and protection of children. Hall is a marked man as a sex offender in California but, so far, not in New Mexico.

Court records show that Hall in 1999 was convicted in California of "annoying or molesting children," a misdemeanor. An assistant attorney general in New Mexico stated in a brief that Hall touched the genitals of three young boys.

Hall moved to Las Cruces, but did not register as a sex offender. This led to his indictment in 2008 for violating New Mexico's Sex Offender Registration and Notification Act.

Hall said that, despite his criminal record, he was not obligated to register as a sex offender. What he did in California was not a sex offense in New Mexico, he argued.

He said he could not be subjected to the registration law and asked that the charge against him be dismissed.

District Judge Douglas Driggers of Doña Ana County rejected Hall's motion. Hall entered a conditional guilty plea, but preserved his right to appeal.

Rosin v Monken

3-17-2010 New York, Illinois:

Rosin v Monken

After he was required to register as a sex offender in Illinois, Mitchell Rosin brought suit under 42 U.S.C. § 1983, alleging that the defendants failed to give full faith and credit to the March 27, 2003 judgment of a New York court. In that order, the court accepted a plea agreement that did not require Rosin to register as a sex offender in New York.

He contends that Illinois is constitutionally required to give effect to the New York judgment and thus cannot, on the basis of that order, force him to register as a sex offender within its jurisdiction. The district court granted defendants' motion to dismiss, finding that the registration requirement in the New York order was merely stricken, which left the order silent on the subject.

Since the plea agreement did not purport to prevent any state other than New York from registering Rosin as a sex offender, and because any such provision would have been ineffective even if it had been included, we affirm.

---

The purpose of the Full Faith and Credit Clause "was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin." Baker v. General Motors Corp., 522 U.S. 222, 232, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998) (quoting Milwaukee County v. M.E. White Co., 296 U.S. 268, 277, 56 S.Ct. 229, 80 L.Ed. 220 (1935)). By virtue of its "exacting" operation with respect to judgments, the Full Faith and Credit Clause results in "the judgment of the rendering State [gaining] nationwide force." Id. at 233, 118 S.Ct. 657. The primary operational effect of the Clause's application is "for claim and issue preclusion (res judicata) purposes." Id. at 233, 118 S.Ct. 657.

COURT: Sex offender doesn't have to register

9-22-2014 Indiana:

Paille -v- Indiana

MUNCIE – A Muncie man convicted of sex crimes in Florida does not have to register locally as a sex offender, the Indiana Court of Appeals has ruled.

In a 3-0 ruling, the appeals court also ordered local authorities to dismiss two criminal charges pending against 44-year-old Michael Troy Paille that stemmed from his failure to register with the Delaware County Sheriff's Office.

In this month's decision, Judge Cale Bradford acknowledged that when Paille most recently was released from a Florida prison, in 2011, he was "required to register in Florida as a sex offender for at least 25 years."

However, because Paille's Florida crimes and convictions predated the 1994 enactment of Indiana's Sex Offender Registry Act, he is not required to register here, Bradford wrote. He noted a 2009 ruling by the Indiana Supreme Court that "the application of INSORA to crimes committed before INSORA's 1994 enactment was unconstitutional."

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.

US v Cooper

4-10-2014 Delaware:

US v Cooper

Keith Allen Cooper (“Cooper”) is a sex offender who was convicted of rape in Oklahoma and paroled prior to the enactment of the Sex Offender Registration and Notification Act (“SORNA” or the “Act”), Pub.L. No. 109–248, 120 Stat. 587, 590–611 (2006) (codified primarily at 18 U.S.C. § 2250 & 42 U.S.C. § 16901 et seq .). After Congress enacted SORNA, Cooper was convicted of failing to comply with the sex offender registration requirements set forth in SORNA. In bringing this appeal, Cooper invokes the nondelegation doctrine, challenging the constitutionality of the provision of SORNA in which Congress delegated to the Attorney General the authority to determine the applicability of the Act's registration requirements to pre-SORNA sex offenders.

We conclude that SORNA does not violate the nondelegation doctrine. Accordingly, we will affirm Cooper's conviction.

In 1999, Cooper was convicted in Oklahoma state court on three counts of rape in the first degree. Cooper was paroled in January 2006. As required by pre-SORNA law, he registered as a sex offender in Oklahoma on or around January 20, 2006.

In July 2006, Congress enacted SORNA, which requires sex offenders to comply with specific registration requirements and to update registration information in the event of a change of name, address, employment, or student status. Pursuant to the promulgation of an administrative rule on February 28, 2007, and subsequent issuance of a final rule, the Attorney General made SORNA's registration requirements applicable to individuals (such as Cooper) who were convicted of sex offenses prior to the enactment of SORNA.

In or around early 2011, Cooper moved from Oklahoma to Delaware. Although SORNA required Cooper to notify authorities of this change in residence, Cooper did not provide either Oklahoma or Delaware authorities with his updated residence information, nor did he separately register as a sex offender in Delaware after moving there.

In 2012, Cooper was arrested and charged with one count of failure to register as a sex offender, in violation of 18 U.S.C. § 2250(a), in the United States District Court for the District of Delaware. On November 2, 2012, Cooper moved to dismiss the indictment on the basis that, inter alia, SORNA's delegation of authority to the Attorney General to determine the applicability of the Act's registration requirements to pre-SORNA sex offenders violates the nondelegation doctrine and thus is unconstitutional. The District Court denied Cooper's motion to dismiss.

... ... ...

Relevant to this appeal, SORNA makes it a federal crime for any person who is required to register, and who travels in interstate or foreign commerce, to knowingly fail to register or to update registration. 18 U.S.C. § 2250(a).1 Once a sex offender is subject to SORNA's registration requirements, that offender can be convicted under § 2250 if he thereafter engages in interstate or foreign travel and then fails to register. See Carr v. United States, 560 U.S. 438, 447, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010).

... ... ...

It may well be, as Justice Scalia has written, that in delegating this responsibility to the Attorney General, Congress “sail[ed] close to the wind with regard to the principle that legislative powers are nondelegable.” Reynolds v. United States, ––– U.S. ––––, ––––, 132 S.Ct. 975, 986, 181 L.Ed.2d 935 (2012) (Scalia, J., dissenting). Indeed, we are puzzled as to why Congress decided to delegate to the Attorney General the authority to determine the applicability of SORNA's registration requirements to pre-SORNA offenders. The decision to make SORNA's registration requirements applicable to pre-Act offenders is a weighty one—particularly for the class of pre-SORNA offenders affected by that decision. Although we find Congress' delegation of this important decision curious at best, we hold that it does not amount to an unconstitutional abdication.

Under controlling nondelegation doctrine jurisprudence, the hurdle for the government in this case is not high.6 Applying the precedential authority on the nondelegation doctrine, we conclude that SORNA's delegation to the Attorney General in 42 U.S.C. § 16913(d) does not violate the nondelegation doctrine. Accordingly, we will affirm.

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 Hall

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

12-5-2012 New Mexico:

State v Hall
2013-NMSC-001

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

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

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

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

... ... ...

CONCLUSION

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

IT IS SO ORDERED.

US v Doshak

12-29-2009 Ohio:

US v Doshak
No. 08-3141.

Charles A. Doshak appeals his conviction for failing to register pursuant to the Sex Offender Registration and Notification Act ("SORNA"), 18 U.S.C. § 2250. He argues that SORNA's provisions do not apply to him. He also claims that SORNA violates the Ex Post Facto Clause, the Due Process Clause, and the Spending Clause, and is an impermissible delegation of authority to the Attorney General. Finally, he argues that the Attorney General's interim rule on retroactivity violates the Administrative Procedures Act and principles of federalism.

Because SORNA does not apply to Doshak, we VACATE and REMAND. Consequently, we need not address Doshak's other arguments.

I. Factual Background
In 1993, Doshak was convicted of one count of corruption of a minor, pursuant to Ohio Revised Code § 2907.04, a third-degree felony. Several years later, in 1997, Ohio's sexual classification and registration statute went into effect. Although Doshak was given notice of his duty to register under this law, he failed to do so. Consequently, he was convicted by an Ohio court in 2002 for failure to register.

On July 27, 2006, SORNA became effective. In October of that same year, Doshak finally signed a registration form indicating that his residence was in Akron, Ohio. The following month, he left the state to live with his girlfriend in Arizona. He did not inform Ohio officials of his move or register as a sex offender in Arizona.

On February 28, 2007, the United States Attorney General promulgated an emergency regulation that purportedly applied SORNA's registration requirements to persons convicted before July 27, 2006. See 28 C.F.R. § 72.3. The regulation sought to make SORNA's registration requirements immediately effective against persons who, like Doshak, were convicted of sex crimes prior to SORNA's effective date.

On March 20, 2007, Doshak was arrested in Arizona and subsequently indicted by a federal grand jury. Specifically, the indictment alleged that he violated 18 U.S.C. § 2250 by, "on or about October 26, 2006, through on or about March 20, 2007," traveling in interstate commerce and knowingly failing to register and update his registration. After the district court denied his motion to dismiss, he entered a conditional plea agreement, expressly reserving his right to appeal the order. He was sentenced to twenty-seven months' imprisonment and five years' supervised release.

... ... ...

Thus, the only issue before this court is whether Doshak was subject to SORNA's requirements during the period covered by his indictment. His indictment charged failure to register from October 26, 2006, through March 20, 2007. In Cain, we held that the Attorney General's regulation was not effective against Cain, because his indictment covered a period ending on March 28, 2007, "less than thirty days after promulgation of the regulation, and a month before the close of the comment period." Cain, 583 F.3d at 420. Similarly, Doshak's indictment covered a period ending March 20, 2007. Thus, Doshak was not subject to SORNA's criminal sanctions during the period alleged in the indictment. His conviction, therefore, must be vacated.1

VACATED and REMANDED.

US v Felts

3-12-2012 Tennessee:

US v Felts
No. 11-5237.

David Wayne Felts was convicted for failing to register under the Sex Offender Registration Notification Act ("SORNA") in Tennessee.

Felts's appeal presents a case of first impression for this Circuit—can an offender be convicted for failure to register under SORNA if his home state, Tennessee, has not yet completely implemented the act?

Felts challenges the district court's denial of his motion to dismiss the indictment. In concert with six other circuits, we hold that SORNA is effective in a state, even prior to its complete implementation. Felts's alternate constitutional arguments—that SORNA violates the Ex Post Facto Clause, the nondelegation doctrine, and the Tenth Amendment—are without merit.

I
Felts served fifteen years of imprisonment for a 1994 conviction for rape of a child (a twelve-year-old female) on November 3, 1993 and aggravated sexual battery (a different twelve-year-old victim) on October 26, 1993. After his release, Felts, along with his girlfriend and her six-year-old daughter, moved to Florida, and then to San Juan, Puerto Rico, without notifying the registration authorities in his home state of Tennessee. Felts was indicted on one count of failing to register under SORNA, in violation of 18 U.S.C. § 2250(a). The district court denied Felts's motion to dismiss, after which Felts pleaded guilty. Felts was sentenced to 24 months of imprisonment. Felts now appeals the denial of the motion to dismiss.

... ... ...

Unlike the situation with the Brady Handgun Violence Prevention Act in Printz, Congress through SORNA has not commandeered Tennessee, nor compelled the state to comply with its requirements. Congress has simply placed conditions on the receipt of federal funds. A state is free to keep its existing sex-offender registry system in place (and risk losing funding) or adhere to SORNA's requirements (and maintain funding). Since Felts's conviction, Tennessee has come into substantial compliance with SORNA. The choice is that of the state.

SORNA does not violate the rights of Tennessee, or those of Felts as an individual, under the Tenth Amendment of the Constitution.

The judgment of the district court is AFFIRMED.

Burton v Indiana

11-8-2012 Indiana:

Burton v Indiana
No. 45A03-1201-CR-6.

STATEMENT OF THE CASE
In this interlocutory appeal, Jerome Michael Burton challenges the trial court's denial of his motion to dismiss the charge of failure to register as a sex offender.
We reverse and remand.

ISSUE
The issue is whether it is a violation of the ex post facto provision of the Indiana Constitution to require Burton to register under the Indiana Sex Offender Registration Act ("SORA") as one who is required to register in another state, Illinois, when the statutes requiring him to register in Illinois and in Indiana were enacted after he had been convicted of the qualifying offense in Illinois.

FACTS AND PROCEDURAL HISTORY
In 1987, Burton was convicted in Illinois of aggravated criminal sexual assault and sentenced to six years. At that time in Illinois, Burton was under no requirement to register. In 1996, Illinois amended its SORA to require persons who had committed crimes such as Burton's to register for a period of ten years.

Thereafter, he was convicted in Illinois in 2003 and in 2007 for sex offender registration violations. Burton then moved to Indiana and, in 2009, was convicted in Indiana of failure to register as a sex or violent offender and was sentenced to one year pursuant to our SORA. See Ind. Code §§ 11-8-8-1 to -22. The version of our SORA under which Burton is required to register first became effective in 2006. See Ind. Code §§ 11-8-8-5(b)(1) (stating that the term "sex offender" includes a person who is required to register as a sex offender in any jurisdiction), -7(1) (stating that a sex offender who resides in Indiana must register).

Following his release, Burton registered as a sex offender from June through October 2009; however, he failed thereafter to register. In April 2011, he was charged with two Class C felony counts of failure to register pursuant to Indiana Code section 11-8-8-17 (2007). Burton filed a motion to dismiss these charges on the ground that the requirement that he register violates the ex post facto provision of the Indiana Constitution. The trial court, following a hearing, denied Burton's motion, and the case comes to us on interlocutory appeal of that denial.

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

CONCLUSION
For the reasons stated, we reverse the trial court and remand with instructions to grant Burton's motion to dismiss. Reversed and remanded with instructions.

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Court: Some out-of-state sex offenders don't have to register

11-9-2012 Indiana:

INDIANAPOLIS | A Hammond man convicted in 1987 of a sex crime in Illinois is not required to register as a sex offender in Indiana, because his Illinois conviction came before Indiana enacted its sex offender registration law in 1994, the state Court of Appeals ruled Thursday.

Jerome Burton, 46, is awaiting trial in Lake County on two felony counts of failure to register as a sex offender. Burton asked the appeals court to dismiss those charges as unconstitutionally retroactive, also known as ex post facto.

In 1987, Burton was convicted of aggravated criminal sexual assault and sentenced to six years in prison. A 1996 Illinois law required certain sex offenders, including Burton, to register for 10 years.

According to court records, Burton was convicted in Illinois for failing to register in 2003 and 2007, and the 10-year registration requirement was reset.

Indiana prosecutors argued that extension means Burton was required to register in Indiana upon moving to Hammond, under a 2006 law that mandates sex offenders living in Indiana that are required to register in any other state also must register in Indiana.

But in a 3-0 decision, the appeals court ruled Burton cannot be required to register in Indiana because his original 1987 conviction predates Indiana's 1994 sex offender registration law, and the Indiana Supreme Court has ruled that requiring pre-1994 Hoosier sex offenders to register is constitutionally prohibited.

The appeals court said Indiana owes no deference to Illinois' registration extensions, and so long as Burton lives in Indiana his rights are protected by the Indiana Constitution's prohibition on retroactive punishment.

"The underlying purpose of the ex post facto clause is to give effect to the fundamental principle that persons have a right to fair warning of the type of conduct that will give rise to criminal penalties," said Senior Judge John Sharpnack.

The appeals court ordered Burton's pending failure to register charges be dismissed, though that decision can still be appealed to the Indiana Supreme Court. ..Source.. by Dan Carden

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.

USA v Paul Shenandoah

2-9-2010:

USA v Paul Shenandoah
(595 F.3d 151 (2010)

See also lower US Dist court case:
572 F.Supp.2d 566 (2008)

Paul Shenandoah (was on 10 most wanted list) was indicted in December of 2007 for failing to register as a sex offender in violation of the Sex Offender Registration and Notification Act (SORNA), [ 595 F.3d 154 ] 18 U.S.C. § 2250(1) and (2) and 42 U.S.C. § 14072(i)(1). He was also charged with two counts of knowingly and willfully providing false information to law enforcement officials regarding his federal sex offender registration offenses, in violation of 18 U.S.C. §§ 1001 and 1512(b)(3).

He pleaded not guilty and asked the District Court to dismiss the indictment, arguing that SORNA violated the Non-Delegation Doctrine, the Administrative Procedure Act, the Ex Post Facto Clause, the Due Process Clause, the Commerce Clause, the Tenth Amendment and his right to travel. The District Court denied the motion. United States v. Shenandoah, 572 F.Supp.2d 566 (M.D.Pa.2008). Shenandoah then pleaded guilty to failing to register as a sex offender under SORNA, but reserved his right to appeal the order refusing to dismiss the indictment. See FED.R.CRIM.P. 11(a)(2); United States v. Zudick, 523 F.2d 848, 852 (3d Cir.1975).
I.
The factual and procedural background of this appeal is straightforward and undisputed. An abbreviated recitation will suffice. Shenandoah, a New York resident, was convicted of third degree rape in February of 1996.1 He executed a New York state sexual offender registration form when he was paroled in February of 2002. This form requires, among other things, that he apprise New York of any changes in his home address and place of employment. Some time in August of 2007, Shenandoah's employment as an iron worker required that he travel to, and relocate in, York County, Pennsylvania. He failed, however, either to register as a sex offender in Pennsylvania, or to modify his New York registration to reflect his change of residence and employment, leading to his indictment.

KEY STATEMENT:
Furthermore, the directive found in 42 U.S.C. § 16913(a) applies to sex offenders — not to states. When combined with SORNA’s enforcement provision, 18 U.S.C. § 2250(a), an independent and federally enforceable duty is placed on sex offenders to register. New York and Pennsylvania may never implement SORNA, choosing, for whatever reason, to forego a portion of their federal funding. This failure to implement a federal law, however, does not give sex offenders a reason to disregard their federal obligation to update their state registrations. When a sex offender travels in interstate commerce and disobeys the federal command to keep his or her registration current, as required by SORNA, he or she is subject to prosecution. 18 U.S.C. § 2250(a); see also May, 535 F.3d at 921.

The judgment of the District Court will be affirmed.

---

Courts continually ignore that there is no way for folks to know about the federal requirements:

See: US v Heth 2-4-2010

In the Matter of Mitchell Borden

11-1-2011 North Carolina:

In the Matter of Mitchell Borden

The State of North Carolina (“the State”) appeals from an order terminating Mitchell Borden’s (“Petitioner”) sex offender registration requirement pursuant to N.C. Gen. Stat. § 14-208.12A (2009). We must determine whether the term “initial county registration” as provided in N.C. Gen. Stat. § 14-208.12A(a) means the date of initial county registration in North Carolina or in any jurisdiction. Because “initial county registration” means the date of initial county registration in North Carolina, and Petitioner has not been registered as a sex offender in North Carolina for at least ten years, we reverse the trial court’s order.

In this case, the trial court incorrectly interpreted “initial county registration” to mean “initial county registration in any jurisdiction.” While Petitioner had been registered as a sex offender in Kentucky for at least ten years, the record shows he was not registered in North Carolina for at least ten years.4 Thus, the trial court erred when it terminated Petitioner’s sex offender registration requirement. Accordingly, we reverse the trial court’s order. REVERSED. Judges GEER and STROUD concur.

Article: Raising Full Faith and Credit Clause question: Sex offenders and stun guns

Stallworth v Dept of Public Safety

5-22-2008 Mississippi:

STALLWORTH v. DEPT. OF PUBLIC SAFETY
(986 So.2d 259 (2008)

(NOTE: No longer req. to register in Maryland, then, moved to Mississippi and failed to register)

In early 2002, Jeffery A. Stallworth ("Stallworth"), a resident of Mississippi, was indicted on five separate sex offenses in Prince George's County, Maryland. The indictment charged Stallworth with one count of second-degree rape, one count of second-degree sex offense, one count of second-degree assault, and two counts of fourth-degree sex offense. The victim was an adult resident of Maryland.

On March 4, 2002, Stallworth appeared before the Maryland circuit court and pleaded guilty to one count of fourth-degree sex offense. The other counts on which Stallworth was indicted were nolle prossed. The offense to which Stallworth pleaded guilty is codified in Maryland Code Annotated, Criminal Law Section 3-308(b)(1). Under section 3-308(b)(1), a person is guilty of sexual offense in the fourth degree if that person engages in "sexual contact with another without the consent of the other." Under Maryland law, a fourth-degree sex offense is a misdemeanor and does not require registration as a sex offender.

On May 3, 2002, Stallworth again appeared before the Maryland circuit court and was sentenced by the trial judge to serve one year in prison, but that sentence of incarceration was suspended and Stallworth was placed on supervised probation for two years. It was further authorized by the Maryland court that Stallworth's probation could be transferred to Mississippi.

After being sentenced by the Maryland court, Stallworth returned to Mississippi, whereupon the Mississippi Department of Public Safety ("MDPS") required him to register as a sex offender pursuant to the Mississippi Sex Offender Registration Laws beginning with Mississippi Code Annotated Section 45-33-21 (Rev.2004). Stallworth registered with MDPS on November 18, 2002, and as required by Mississippi Code Annotated Section 45-33-31, Stallworth was required to re-register every ninety days. There is no claim that Stallworth failed to re-register per Mississippi Code Annotated Section 45-33-31.

On October 19, 2005, Stallworth filed a Complaint for Declaratory Judgment in the Circuit Court of the First Judicial District of Hinds County. In his complaint, Stallworth averred MDPS had "illegally required him to register." Stallworth stated a fourth-degree sexual offense in Maryland is not a registerable offense in the State of Mississippi and that he should not be required to continue registration as a sex offender in this state.

Requiring Jeffery Stallworth to register fulfills the spirit and intent of the Legislature in creating the Mississippi Sex Offender Registration Laws. To do otherwise would be an affront to and an intrusion upon the rights of the general public, whom the law seeks to protect.

It is not the duty or within the power of this Court to divine the State of Maryland's intent in allowing Stallworth to plead guilty to a non-registerable offense in Maryland after being charged with multiple sexual offenses. It is our calling to interpret the laws of this state passed by our Legislature to protect the citizens of this state. The Mississippi Sex Offender Registration Laws are designed to warn the public of persons who commit sex offenses.

The facts surrounding Stallworth's conduct and crime prove that he has committed a registerable offense. Stallworth has not satisfied the requirements, nor has he met the burden of proof which would relieve him of his continuing duty to register. For the reasons stated herein, we affirm the ruling of the trial court and Stallworth shall not be relieved of his duty to register. Article: Court: Pastor stays on registry

US v Springston

8-18-2011 Arkansas:

U.S. v. Springston
(650 F.3d 1153 (2011)

Bobby Lynn Springston entered a conditional guilty plea 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 36 months' imprisonment and 10 years' supervised release. Springston appeals the district court's denial of his motion to dismiss the indictment, and three special conditions of supervised release imposed by the district court. We affirm Springston's conviction, vacate the challenged special conditions of supervised release, and remand for further proceedings.

Springston also renews challenges to three of the special conditions of his supervised release: special condition 2, which prohibits him from having unsupervised contact with minors; special condition 3, which provides that he may not access the Internet without prior approval from the probation office and may not have Internet access at his residence; and special condition 6, which requires that he submit to mental health testing or treatment with an emphasis on sex offender treatment, as deemed necessary and directed by a probation officer. We review the special conditions for abuse of discretion. United States v. Durham, 618 F.3d 921, 933 (8th Cir. 2010).

Springston argues that the district court abused its discretion by imposing special conditions 2, 3, and 6, because they do not comply with any of the requirements in § 3583 and are not supported by particularized findings. The government concedes that the district court erred by imposing special condition 3, and we agree. The record, as the government describes it, is "devoid of evidence that [Springston] has ever used a computer for any purpose." We therefore vacate special condition 3.

We likewise conclude that the district court abused its discretion by imposing special conditions 2 and 6 without adequate explanation. The court's only statement regarding the need for those special conditions came in response to Springston's objections at the sentencing hearing. At that point, the court said that "Mr. Springston's history as a sex offender justifies all of those conditions."

Our cases say that a court may impose a special condition on the ground that it is related to a defendant's prior offense, see United States v. Smart, 472 F.3d 556, 559 (8th Cir. 2006), but that a court "may not impose a special condition on all those found guilty of a particular offense." Davis, 452 F.3d at 995. The court must "conduct an inquiry `on an individualized basis,' looking at the specific facts of the defendant's criminal history and his particular offenses," and make "a particularized showing of the need for the condition in each case." United States v. Kelly, 625 F.3d 516, 520 (8th Cir. 2010) (quoting Davis, 452 F.3d at 995). We applied this proposition in United States v. Bender, 566 F.3d 748 (8th Cir. 2009), where the district court explained that it imposed a special condition barring the defendant from possessing sexually stimulating material because "sex offenders need to have a very tight rein," and because "a sex offender doesn't have any business looking at Playboy magazine." Id. at 752. This court held that because the district court considered the defendant as "part of a class" of persons convicted of sex offenses, its findings in support of the special condition were "not sufficiently particularized to the defendant." Id.

At some point, there must be a limit to the need for an individualized inquiry, because certain characteristics may justify corresponding conditions for virtually all offenders with such characteristics, but the court's discussion here was insufficient. The court said during the sentencing hearing that there was "no indication" that Springston will "get into any further sex-related offenses," and then made no findings particular to Springston regarding the need for the conditions. Springston's prior offense did not involve a minor, and there was nothing in the record suggesting that Springston was a risk to reoffend against adults. The court simply did not explain why it believed that Springston's twenty-five-year-old conviction justified the conditions. See United States v. Scott, 270 F.3d 632, 634, 636 (8th Cir. 2001). It may be that similar special conditions could be justified in a case involving failure to register as a sex offender, such as when there is reason to believe that the failure to register evidences recalcitrance and an ongoing proclivity to commit sexual crimes, but the district court expressly stated that this is not such a case. We therefore vacate special conditions 2 and 6.

We affirm the judgment of conviction, vacate special conditions 2, 3, and 6, and remand for further proceedings consistent with this opinion.

USA v Nam Van Hoang

2-23-2011 Louisiana:

USA v Nam Van Hoang

Appellant Nam Van Hoang (“Hoang”) appeals from his conviction for failure to register pursuant to the Sex Offender Registration and Notification Act (“SORNA”). Hoang was convicted of a sex offense and registered as a sex offender under state law prior to the enactment of SORNA, which requires a sex offender to register in each jurisdiction where he resides and to keep his registration current. Section 2250 of Title 18 prohibits sex offenders who are required to register under SORNA from traveling in interstate commerce and knowingly failing to register.

Hoang’s interstate travel took place after SORNA’s enactment but before the Attorney General issued an Interim Rule declaring SORNA applicable to all sex offenders whose underlying sex-offense convictions predate SORNA’s enactment.

There is a split of authority among the courts of appeals as to whether SORNA’s registration requirements became effective to already-registered, pre-SORNA sex offenders (1) on the date SORNA was enacted, or (2) when the Attorney General issued the Interim Rule declaring SORNA retroactive. We hold that Hoang did not become subject to SORNA’s registration requirements until the Attorney General issued the Interim Rule. We reverse the judgment of the district court and remand for entry of an order of dismissal.

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.