US v Wolf Child

10-23-2012 Montana:

US v Wolf Child
699 F.3d 1082 (2012)

Timothy Eric Wolf Child, a Native American, appeals a special condition of supervised release imposed by the district court after he pleaded guilty to attempted sexual abuse. The special condition, condition 9, prohibited Wolf Child from residing with or being in the company of any child under the age of 18, including his own daughters, and from socializing with or dating anybody with children under the age of 18, including his fiancée, in both cases unless he had prior written approval from his probation officer.

The district court imposed the special condition without first making any specific findings regarding the necessity of restricting Wolf Child's ability to have contact with his children and his fiancée. It did so on the basis of a record devoid of evidence supporting the need for such a restriction with respect to his intimate family members.

We hold that the fundamental right to familial association, implicated by the parts of the special condition prohibiting Wolf Child from residing with or being in the company of his own daughters and socializing with his fiancée, is a "particularly significant liberty interest." The district court was therefore required to follow an enhanced procedural requirement to make special findings on the record supported by evidence in the record, that the condition is necessary for deterrence, protection of the public, or rehabilitation, and that it involves no greater deprivation of liberty than reasonably necessary.

Because the district court made no such findings regarding the imposition of the special condition, and it conducted no individualized examination of Wolf Child's relationship with the affected family members, it committed procedural error with regard to these specific individuals.

Moreover, because of the absence of any evidence in the record that would support the limitations on the fundamental liberty interests at issue, we hold that special condition 9, as applied to restrict Wolf Child's ability to reside or socialize with his own children and with his fiancée is substantively unreasonable.

... ... ...

VACATED AND REMANDED.

US v Juvenile Male

US Sup ct held case was moot. Decisions within blog: SCOTUS Blog Holding: The Ninth Circuit lacked authority to hold that the requirements of the Sex Offender Registration and Notification Act (SORNA) violate the Constitution's Ex Post Facto Clause when applied to a juvenile who was adjudicated delinquent under the Federal Juvenile Delinquency Act before SORNA's enactment. At the time of the Ninth Circuit's decision, respondent's challenge was moot because the district court's order of juvenile supervision had expired, and respondent was no longer subject to the sex-offender-registration provisions that he challenged on appeal. Holding: The Ninth Circuit lacked authority to hold that the requirements of the Sex Offender Registration and Notification Act (SORNA) violate the Constitution's Ex Post Facto Clause when applied to a juvenile who was adjudicated delinquent under the Federal Juvenile Delinquency Act before SORNA's enactment. At the time of the Ninth Circuit's decision, respondent's challenge was moot because the district court's order of juvenile supervision had expired, and respondent was no longer subject to the sex-offender-registration provisions that he challenged on appeal.

9-10-2009 Montana:

US v Juvenile Male
581 F.3d 977 (2009)

See Amended 1-5-2010
US v Juvenile Male
590 F.3d 924 (2010)

As a society, we generally refuse to punish our nation's youth as harshly as we do our fellow adults, or to hold them to the same level of culpability as people who are older, wiser, and more mature. The avowed priority of our juvenile justice system (in theory if not always in practice) has, historically, been rehabilitation rather than retribution. Juvenile proceedings by and large take place away from the public eye, and delinquency adjudications do not become part of a young person's permanent criminal record. Rather, young offenders, except those whose conduct a court deems deserving of treatment as adults, are classified as juvenile delinquents and placed in juvenile detention centers. Historically, an essential aspect of the juvenile justice system has been to maintain the privacy of the young offender and, contrary to our criminal law system, to shield him from the "dissemination of truthful information" and "[t]ransparency" that characterizes the punitive system in which we try adults. Compare 18 U.S.C. § 5038(e) ("[N]either the name nor picture of any juvenile shall be made public in connection with a juvenile delinquency proceeding.") with Smith v. Doe,538 U.S. 84, 99, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) ("[O]ur criminal law tradition insists on public indictment, public trial, and public imposition of sentence.").

In a surge of national concern, however, over the commission of sex offenses, particularly those against children, Congress in 2006 enacted the Sex Offender Registration and Notification Act ("SORNA" or "the Act") and applied its registration and reporting requirements not only to adults but also to juveniles who commit certain serious sex offenses at the age of fourteen years or older. The Attorney General, exercising authority delegated by Congress, determined that SORNA would apply retroactively to all sex offenders convicted of qualifying offenses before its enactment, including juvenile delinquents. 28 C.F.R. § 72.3 (2007).

The retroactive application of SORNA's juvenile registration provision affects people of all ages—not only juveniles. As we are still close in time to SORNA's passage, some, like S.E., were adjudicated delinquent relatively recently and are still minors or young adults. The vast majority of persons affected, however, were adjudicated delinquent years or even decades before SORNA's enactment and quite obviously are no longer juveniles. Indeed, the brunt of SORNA's retroactive application to juvenile offenders is felt mainly by adults who committed offenses long ago as teenagers—many of whom have built families, homes, and careers notwithstanding their history of juvenile delinquency, which before SORNA's enactment was not a matter of public record. For these adults, sex offender registration and reporting threatens to disrupt the stability of their lives and to ostracize them from their communities by drawing attention to decades-old sex offenses committed as juveniles that have, until now, remained sealed. Although from this point forward no new individuals will be affected by the retroactivity provision, its effects will be felt by numerous individuals for the rest of their adult lives.1

We must decide as a matter of first impression—in our court and in any other circuit court—whether the retroactive application of SORNA's provision covering individuals who were adjudicated juvenile delinquents because of the commission of certain sex offenses before SORNA's passage violates the Ex Post Facto Clause of the United States Constitution. In light of the pervasive and severe new and additional disadvantages that result from the mandatory registration of former juvenile offenders and from the requirement that such former offenders report in person to law enforcement authorities every 90 days for 25 years, and in light of the confidentiality that has historically attached to juvenile proceedings, we conclude that the retroactive application of SORNA's provisions to former juvenile offenders is punitive and, therefore, unconstitutional.2

US v Waybright

NOTE: Both Waybright (below) and US v. Powers,544 F.Supp.2d 1331, 1333-36 (M.D.Fla.2008) are in agreement, that, 42 USC 16913 is unconstitutional, and both, have dismissed charges brought against defendants. Neither case has been appealed, but, all other courts simply say "we disagree with Waybright and Powers" and decide otherwise. i.e., that 42 USC 16913 is constitutional. See one explanation in US v Vardaro 575 F.Supp.2d 1179 (2008). So be aware of these circumstances.

6-11-2008 Montana:

US v Waybright
561 F.Supp.2d 1154 (2008)

Bernard Lenwood Waybright was charged in a two-count indictment with failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). Section 2250(a) is part of the Sex Offender Registration and Notification Act ("SORNA" or the "Act"). The section makes it a federal crime for a sex offender who is required to register under SORNA to travel in interstate commerce and then fail to register. Waybright was convicted of a crime in West Virginia that obligated him to register under SORNA. He traveled to Montana, and did not register with local law enforcement authorities in Montana.

Waybright filed three motions to dismiss the indictment, asserting seven different legal grounds for dismissal. He contends:

• (1) Congress exceeded its power under the Commerce Clause in enacting SORNA's registration requirements and making it a federal crime to fail to register;
• (2) SORNA violates the Tenth Amendment because it requires state officials to accept federally-mandated sex offender registrations before any state chooses to implement SORNA;
• (3) SORNA violates the right to travel because it subjects sex offenders who move to another state to stiffer registration requirements and penalties than those that remain in a single state;
• (4) Congress violated the non-delegation doctrine by authorizing the Attorney General to determine whether SORNA applied retroactively;
• (5) regulations issued by the Attorney General pursuant to SORNA violate the Administrative Procedure Act because they were promulgated without notice and comment;
• (6) Waybright cannot be convicted of violating 18 U.S.C. § 2250(a) because Montana has not implemented SORNA; and
• (7) Waybright's conviction would violate due process of law because Waybright was not notified of his obligation to register under SORNA. Oral argument on Waybright's motions took place on June 4, 2008.

No court of appeals has addressed Waybright's arguments. It is evident that the same or similar arguments have been raised in district courts around the country. These courts have mostly rejected such challenges for varying reasons.

In my view, those district courts have it right for the most part. I conclude that all of Waybright's arguments, except one, lack merit. I agree with Waybright's claim that enactment of 42 U.S.C. § 16913, which requires all sex offenders to register regardless of whether they travel in interstate commerce, is not a valid exercise of Congress' power under the Constitution.

I therefore declare 42 U.S.C. § 16913 unconstitutional. Moreover, because Waybright cannot be convicted of failing to register under § 2250(a) unless the government proves he was required to register under § 16913, the Indictment against Waybright must be dismissed without prejudice.

... ... ...

IV. Conclusion
For the reasons set forth above,

IT IS HEREBY ORDERED that Defendant Waybright's Motion to Dismiss Based Upon APA, Tenth Amendment, and Right to Travel Violations (dkt # 13) is DENIED.

IT IS FURTHER ORDERED that Defendant Waybright's Motion to Dismiss Based Upon Montana's Failure to Implement SORNA, Due Process Violation, and Violation of the Non-Delegation Doctrine (dkt # 15) is DENIED.

IT IS FURTHER ORDERED that Defendant Waybright's Motion to Dismiss Based Upon Commerce Clause Violations (dkt # 11) is GRANTED IN PART and DENIED IN PART. The motion is DENIED with respect to 18 U.S.C. § 2250(a) because Congress did not exceed its power under the Commerce Clause in enacting this provision. The motion is GRANTED with respect to 42 U.S.C. § 16913. Congress exceeded is power in enacting 42 U.S.C. § 16913, and thus, the provision is unconstitutional.

IT IS FURTHER ORDERED that the Indictment against Defendant Waybright is DISMISSED WITHOUT PREJUDICE.

Article: Molloy: Sex offender registry rule unconstitutional

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.