USA -v- Fernandez

1-15-2015 Louisiana:

USA -v- Fernandez

In 2013, Fernando Fernandez was convicted, pursuant to his guilty plea, of failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). He challenges a life-term special condition of supervised release, requiring him to “install [computer] filtering software . . . block[ing]/monitor[ing] access to sexually oriented websites” for “any computer he possesses or uses”.

At issue is whether the court abused its discretion by imposing the software-installation special condition in the light of, inter alia, Fernandez’ neither using a computer nor the Internet in committing either his current offense (failing to register as a sex offender) or his underlying sex offense (sexual assault of a child).

....

In the light of the facts at hand, the district court abused its discretion in imposing the software-installation special condition provision at issue, when, inter alia, neither his failure-to-register offense nor his criminal history has any connection to computer use or the Internet.

Similar to Tang, the special condition imposed in this instance is related neither to the nature and circumstances of Fernandez’ offense (failing to register as a sex offender) nor his criminal history and characteristics.

Along that line, the district court’s reason for justifying the special condition is not sufficiently tied to the facts. As noted, for justifying its imposition, the court stated: “‘Failure to register’ means he’s a sex offender in the past. Ease of access through the Internet”.

In the absence of evidence to the contrary, the court’s general concerns about recidivism or that Fernandez would use a computer to perpetrate future sex-crimes are insufficient to justify the imposition of an otherwise unrelated software-installation special condition.

For the foregoing reasons, the special condition requiring software installation is VACATED; this matter is REMANDED for entry of the corrected judgment.

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

Louisiana sex offender Facebook law: New law requires sex offenders post their criminal status

Besides my note below, and the fact that I think this is ludicrous, lets take a different look at this requirement. Are all social networks capable of storing this extra information, do they ask the questions and provide input fields for sex offenders to input the required information? Further proof lawmakers do not take the time to think about what they are proposing.. (see background posts HERE) As of 1-2014 no one has challenged this.

7-11-2012 Louisiana:

LOUISIANA -- A new Louisiana law requires sex offenders and child predators to state their criminal status on their Facebook or other social networking page, with the law's author saying the bill is the first of its kind in the nation.

State Rep. Jeff Thompson, a Republican from Bossier City, Louisiana, says his new law, effective August 1, will stand up to constitutional challenge because it expands sex offender registration requirements, common in many states, to include a disclosure on the convicted criminal's social networking sites as well.

Thompson, an attorney and a father of a 13-year-old daughter and 9-year-old son, said he hopes other states will follow Louisiana.

Social networking sites such as Facebook and MySpace have been removing sex offenders from their web pages for years, but Thompson said the law is designed to cover any possible lapses by social networking sites.

"I don't want to leave in the hands of social network or Facebook administrators, 'Gee, I hope someone is telling the truth,'" Thompson said Tuesday. "This is another tool for prosecutors."

The new law, signed by Gov. Bobby Jindal earlier this month, builds upon existing sex offender registration laws, in which the offender must notify immediate neighbors and a school district of his or her residency near them, Thompson said.

The law states that sex offenders and child predators "shall includes in his profile for the networking website an indication that he is a sex offender or child predator and shall include notice of the crime for which he was convicted, the jurisdiction of conviction, a description of his physical characteristics... and his residential address."

Several states now require sex offenders and child predators to register with authorities their e-mail accounts, Internet addresses or profile names to social network and other web sites, according to the National Conference of State Legislatures. A few states such as Illinois and Texas even outright prohibit sex offenders, as a condition of parole, from accessing social networking websites, the group said.

The Louisiana law is the latest addition to statutes requiring public notice and registrations by sex offenders, Thompson said.

"It provides the same notice to persons in whose home you are injecting yourself via the Internet," Thompson said. "I challenge you today to walk down the street to see how many people and children are checking Pinterest, Instagram and other social networking sites. If you look at how common it is, that's 24 hour a day, seven days a week for somebody to interact with your children and your grandchildren."

Facebook applauded the new Louisiana law, even though it "will have no direct" effect on its service, the company said in a statement to CNN.

"Our Statement of Rights and Responsibilities already bars registered sex offenders from using Facebook," the firm said. "We take the safety and security of our users, especially the many young people on Facebook, very seriously. We have consistently supported legislation to help strengthen law enforcement's ability to find, prosecute and convict online sexual predators."

Violators of the new law could face imprisonment with hard labor for a term between two and 10 years without parole and a fine up to $1,000. A second conviction carries a maximum penalty of imprisonment with hard labor for a term between five and 20 years without parole and a fine up to $3,000.

Thompson consulted prosecutors and the attorney general in Louisiana when drafting the law because last year, a federal court struck down a Louisiana law that outright banned sex offenders and child predators from using Internet. The court found the law too broad, Thompson said.

Last year, the American Civil Liberties Union of Louisiana sought to block the enforcement of that state law that tried to limits sex offenders' use of the Internet, arguing that it infringes on constitutional rights. The law had targeted registered sex offenders convicted in crimes involving children and prohibited the "using or accessing of social networking websites, chat rooms and peer-to-peer networks," according to the legislation that was signed into law in June 2011.

Louisiana lawmakers, however, have not given up on that stricter law. In fact, a revised version was passed by the Louisiana legislature and signed into law in May, but Thompson is skeptical that latest version can survive a court challenge. The revised, new ban prohibits certain registered sex offenders from intentionally using a social networking website, Gov. Jindal said in a statement.

Said Thompson about that new law: "It may very well fall under scrutiny and attack. That's one of the reasons that I created the bill I did. I'm not trying to create a ban. I'm just trying to create an expansion of the existing notice requirements." ..Source.. by Michael Martinez, CNN

Audrey Doe v Bobby Jindal

3-29-2012 Louisiana:

Audrey Doe v Bobby Jindal
851 F.Supp.2d 995 (2012)

At issue in this case is a first and defining principle of our struggle as a nation that finally resolved in the Fourteenth Amendment to the Constitution: Equal Protection before the Law. As two writers1 have observed:

The idea was to distinguish between legislation for the common benefit and legislation that benefitted or burdened the few.... It was an appeal to notions of reciprocity in governance: law's generality was important, not simply in a formal sense but because it forced lawmakers to stand in the shoes of those they represented. The principle of class legislation was terraced in both directions — it not only aimed to prevent class privilege but also invidious oppression.

Section 1 of the Fourteenth Amendment instructs that "No State shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws."

At the outset, it must be underscored that the issue presented in this case is not about approval or disapproval of sexual beliefs or mores. It is about the mandate of equality that is enshrined in the Constitution.

In Louisiana, the solicitation of oral or anal sex for compensation can be prosecuted under two different statutes: the solicitation for compensation provision of the Prostitution statute, and the Crime Against Nature by Solicitation statute.2 Nine anonymous plaintiffs, all of whom were convicted of violating Louisiana's Crime Against Nature by Solicitation statute based on their agreement to engage in oral sex for compensation prior to August 15, 2011, bring this civil rights suit. They challenge that statute's requirement that, as a result of their conviction, they must register as sex offenders under Louisiana's sex offender registry law. They complain that if, instead, they had been convicted of solicitation of sex for money under the state Prostitution law, they would not have been required to register as sex offenders.3 It is the State's more lenient treatment of those convicted under the solicitation provision of the Prostitution statute, they urge, compared to those convicted under the Crime Against Nature by Solicitation statute, that anchors their civil rights claim in which they advance their constitutional challenge under the Fourteenth Amendment to the U.S. Constitution. They sue several State officials and one municipal official.

... ... ...

For all of these reasons, stripped of all political theater and with a concern solely to fidelity to the simple and clear injunction of the Fourteenth Amendment, the Court finds that the plaintiffs have demonstrated that the record, taken as a whole, leads to no rational basis for what the state legislature has done.30 The record discloses no genuine dispute as to any material fact: the plaintiffs have shown that they are entitled to judgment as a matter of law that they have been deprived of equal protection of the laws in violation of the Fourteenth Amendment to the U.S. Constitution.

Accordingly, the plaintiffs' motion for summary judgment is GRANTED. The plaintiffs shall submit a proposed judgment within five days consistent with this Order and Reasons.

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Hundreds to be stricken from Louisiana sex offender registry after class-action suit's settlement

6-13-2013 Louisiana:


Hundreds of people who were convicted of soliciting oral or anal sex for money under Louisiana's "crime against nature by solicitation" law will have their names removed from the state's sex offender registry following the settlement of a class-action lawsuit.

U.S District Judge Martin Feldman on Tuesday approved the settlement agreement between the New York-based Center for Constitutional Rights and Louisiana Attorney General James "Buddy" Caldwell's office.

Feldman ruled last year that nine plaintiffs who were convicted of the offense must be stricken from the registry. Plaintiffs' lawyers argued the ruling should be applied to roughly 700 others in the same position.

Alexis Agathocleous, one of the lead plaintiffs' lawyers on the case, said the registration requirement for people convicted of violating the law disproportionately punished black women and lesbian, gay, bisexual and transgender people.

"We are gratified that the state has agreed to vindicate the rights of hundreds of people who continued to be unconstitutionally registered as sex offenders," he said in a statement.

The settlement doesn't apply to people convicted of soliciting sex from a minor or anyone who was convicted of another sex offense subject to registration. State officials have up to 30 days to make an initial determination of who is entitled to be removed from the registry.

Feldman ruled last year that state lawmakers had no "rational basis" for requiring people to register as sex offenders if they were convicted of violating the law. The judge said the plaintiffs wouldn't have had to register if instead they had been convicted of soliciting sex for money under the state prostitution law.

The state Legislature amended the 200-year-old law in 2011 so that anyone convicted of a "crime against nature by solicitation" no longer will be required to register. But the legislative change didn't apply to hundreds who already were registered.

During a hearing in December 2012, a lawyer representing Caldwell's office argued that the recent change in state law leaves the potential class members without any valid claims. Feldman refused to dismiss the class-action suit, however, and expressed frustration at the pace of the process for deciding whether people already had a right to have their names removed from the registry

"I am incredulous and very concerned about why this process has been dragged out against the backdrop of politics for so long," the judge said. ..Source.. by MICHAEL KUNZELMAN

State v Overstreet

3-19-2013 Louisiana:

State v Overstreet

This case comes to us on appeal from a district court's ruling that La. R.S. 15:541(7)1 and 15:542,2 laws requiring registration for sex offenders, are unconstitutional as applied to a person who pled and was found not guilty by reason of insanity to a sex offense. Having reviewing the record and the applicable law, we reverse the judgment of the district court because the respondent failed to sufficiently particularize any basis for finding the statutes unconstitutional.

... ... ...

CONCLUSION
The state in the present case contends that respondent has not sufficiently particularized the grounds of his claim that the statutory provision requiring sex offender registration is unconstitutional. The state's contention has merit. This Court has expressed the challenger's burden as a three-step process. First, a party must raise the unconstitutionality in the trial court; second, the unconstitutionality of a statute must be specially pleaded; and third, the grounds outlining the basis of unconstitutionality must be particularized. Further, a district court may not sua sponte rule that a statute is unconstitutional, nor can it declare a statute unconstitutional on grounds other than those asserted by a movant.

At best, respondent merely claimed the law was "arbitrary, capricious and makes no sense" because he was not convicted of a crime, but instead pled not guilty by reason of insanity. He seemed to be claiming an equal protection violation, but never explained the basis of that claimed violation. As a result of this lack of particularization, the state was afforded insufficient opportunity to brief and argue in response.10 In addition, as in Hatton and Bertrand, the trial court's ruling here was based on constitutional grounds not properly raised, and indeed not raised at all, by respondent. Accordingly, we reverse the district court on this basis.

DECREE
For the reasons stated herein, the judgment of the district court, declaring La. R.S. 15:541(7) and La. R.S. 15:542 unconstitutional as applied to a defendant judged not guilty by reason of insanity, is reversed, and the case is remanded to the district court for further proceedings.

REVERSED AND REMANDED.

Doe v Jindal

2-16-2012 Louisiana:

Doe v Jindal
Civil Action No. 11-554-BAJ-SCR.

The court said:
Plaintiffs, John Doe and James Doe, filed suit against Defendants, James D. Caldwell, Jr., James M. Leblanc, Hillar C. Moore, III, and John Phillip Haney, asserting that Louisiana Revised Statute 14:91.5 ("the Act") is unconstitutional, and they seek declaratory and injunctive relief against its enforcement.

The issues presently before the Court are: (1) whether the Plaintiffs have standing to challenge the Act; (2) whether the Act is overbroad and, therefore, violates Plaintiffs' First Amendment rights; (3) whether the Act is void and unenforceable because it is unconstitutionally vague; and (4) if the Court finds that the Act violates Plaintiffs' First Amendment rights, whether the Act's constitutional deficiency is cured by the promulgation of a regulation intended to limit construction and applicability of the legislation (transcript; doc 48, pp. 1-2; doc. 49, p. 2).

CONCLUSION
Although the Act is intended to promote the legitimate and compelling state interest of protecting minors from internet predators, the near total ban on internet access imposed by the Act unreasonably restricts many ordinary activities that have become important to everyday life in today's world.

The sweeping restrictions on the use of the internet for purposes completely unrelated to the activities sought to be banned by the Act impose severe and unwarranted restraints on constitutionally protected speech. More focused restrictions that are narrowly tailored to address the specific conduct sought to be proscribed should be pursued.

For all of the foregoing reasons, the Court concludes that the Act is unconstitutionally overbroad and void for vagueness, and judgment shall issue in favor of Plaintiffs and against Defendants, enjoining enforcement of the Act.

IT IS ORDERED that, within ten days of the issuance of this Opinion, the parties shall submit a joint proposed judgment that accords with this Opinion.

See Articles:
Judge Throws Out Louisiana Facebook Ban On Sex Offenders
Jindal will appeal ruling against sex offender bill
Governor Jindal Blasts Court For Siding With Sex Offenders

State v Young

9-21-2011 Louisiana:

State v Young

Nicholas Loyd Young pled guilty to failure to register as a sex offender, second offense, in violation of La. R.S. 15:542.1.4. He was sentenced to 20 years' hard labor without benefit of probation, parole, or suspension of sentence to run consecutively to any sentence he was serving. Young appeals the constitutional excessiveness of his sentence. We affirm.

There is no doubt in this writer's mind that a 20 year prison sentence for this type of offense is excessive no matter what his other history is, and even for any number of failure to register convictions he has. Weems v US, but who am I, a lay person.

..

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.

Smith -v- Louisiana

1-24-2012 Louisiana:

Smith v Louisiana
(Supreme Court)

Smith v Louisiana
(1 Cir Court of Appeals, 3-26-2010 Unpublished)

Smith v Louisiana
(Trial Court)

From Supreme Court Decision:
This case presents questions of statutory interpretation regarding amendments to Louisiana's sex offender registration statutes, La. Rev. Stat. 15:540 et seq. We granted the State of Louisiana's writ application to determine whether the court of appeal erred in finding that the amendments did not apply to the offender in this case, because application of those amended statutes would violate the prohibition set forth in the ex post facto clause of the state and federal constitutions.

The offender in this case was convicted of two sex offenses prior to the enactment of the amendments to the sex offender registration statutes but before his initial registration period had expired. The amendments at issue here increased the duration an offender is obligated to register and created a new requirement for sex offender designation codes on drivers' licenses and identification cards.

For the reasons set forth below, we reverse the ruling of the court of appeal, which found the 1999 amendment to former La. Rev. Stat. 15:542.1(H), providing for a lifetime requirement to register for multiple offenders, did not apply to persons convicted of a sex offense prior to July 1997, and that the restriction code to be placed on an offender's driver's license or identification card requirements added by the legislature in 2006 also did not apply to the offender in this case.

(LifeTime Registration, RSO Designation on License, Carry Spec. ID Card)

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Judges Overturn Sex Offender Rule

2-2-2011 Louisiana:

An appellate court has ruled that the state cannot require a West Feliciana Parish man to register as a sex offender for the rest of his life or carry a special driver’s license and identification card.

The ruling by a three-judge panel of Louisiana’s 1st Circuit Court of Appeal overturns a District Court judge’s ruling against Jimmy L. Smith, who was convicted of indecent behavior with a juvenile and carnal knowledge of a juvenile when he was 19.

Charles Griffin II, Smith’s attorney, said Smith served his sentence for the 1995 convictions, completed his probation and complied with post-release registration requirements for a 10-year period after he was released from prison.

Smith said authorities told him in 2009 that he would have to register again as a sex offender for the rest of his life because the law had changed after he was convicted.

Smith complied, but challenged the order in 20th Judicial District Court. Unless the state decides to challenge the ruling, Griffin said, Smith will be able to get a driver’s license without “sex offender” written on it in orange letters.

Driver’s licenses for sex offenders must be renewed annually.

The opinion, issued Friday by Judges Vanessa G. Whipple, Jefferson D. Hughes III and Jewel E. “Duke” Welch, says case records show that Smith fulfilled his duty to register as a sex offender for the period of time that was applicable when he was convicted.

The opinion says Louisiana’s version of “Megan’s Law,” has a legitimate civil purpose to alert and protect the public from sex offenders who might offend again.

In Smith’s case, however, the amendments adopted after his conviction are “so punitive in effect as to transform what was intended as a civil remedy into an additional punishment for him.”

The retroactive application of amendments to the law violates the U.S. and Louisiana constitutions, the opinion says. ..Source.. by James Minton