Shepard v Houston

11-7-2014 Nebraska:

Shepard v Houston

Nature of Case:
Neb.Rev.Stat. § 29-4106(2) (Cum.Supp. 2012) provides for retroactive application of its requirement that all inmates convicted of a felony sex offense or other specified offense submit a DNA sample before being discharged from confinement.

Section 29-4106(2) also specifically provides that those inmates convicted before the passage of § 29-4106 "shall not be released prior to the expiration of his or her maximum term of confinement or revocation or discharge from his or her probation unless and until a DNA sample has been collected." In effect, § 29-4106(2) provides that an inmate will forfeit his or her past and future good time credit if the inmate refuses to submit a DNA sample.

The issue is whether § 29-4106(2), as applied to an inmate who was convicted before its passage, violated the Ex Post Facto Clauses of U.S. Const. art. I, § 10, and Neb. Const. art. I, § 16.

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In conclusion, we agree with the district court that insomuch as § 29-4106(2) forfeits Shepard's past and future good time and recalculates his parole eligibility and mandatory discharge dates without regard to any good time, it violates the constitutional prohibitions against ex post facto laws.

Shepard, at the time of his crimes, expected to automatically incur good time simply through good conduct, and he expected to have his mandatory discharge date calculated upon his maximum sentence minus good time. Section 29-4106(2), by allowing for forfeiture of more good time than could have been forfeited before and by allowing for forfeiture based on conduct that is something less than flagrant and serious misconduct — indeed, conduct not even contemplated at the time of Shepard's crimes — substantially altered the punitive consequences attached to his crimes.

VI. CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court.

Child pornography victim loses restitution appeal

3-11-2013 Nebraska:

A child pornography victim seeking nearly $1 million in restitution from a Lincoln man caught with pictures of her on his computer in 2010 lost an appeal Monday of the judge's $3,333 award.

In November 2010, a search of Robert Fast's Lincoln address turned up 26 digital images and 23 videos on his computer after Lincoln police investigators discovered them using file-sharing software.

Among them were images of "Vicky," the pseudonym for a woman whose father sexually abused her and filmed the acts when she was a child.

Since then, she has documented $1.2 million in losses from the abuse and distribution of the images, has filed for restitution in more than 200 federal criminal cases across the country, and has collected nearly $272,000 so far, according to Monday's order.

In the Nebraska case, she sought the difference, $952,759.81.

The court ordered Fast to pay $19,863.84, after finding he didn't have to be the one who caused the loss to be liable for them.

But Fast appealed, and the Eighth Circuit found he did have to be the proximate cause and found him liable for Vicky's losses after June 25, 2010, when he began committing the crime.

When Fast's case came back to Lincoln for him to be re-sentenced, the judge reduced the restitution to $3,333 -- $2,500 for medical and psychiatric care and occupational therapy, plus $833 for legal fees and costs.

This time, Vicky appealed.

The government and the defense both argued that, because she wasn't a party to the case, she didn't have standing to appeal.

On Monday, in a split decision, a three-judge appellate court panel agreed and dismissed her appeal.

"Fast did not possess any images of her until June 25, 2010. But she suffered losses before then. … As the district court found, Fast could not have caused -- and thus could not be liable for -- losses before that date," wrote Eighth Circuit Judge Duane Benton of Missouri.

Judge Bobby E. Shepherd of Arkansas, who wrote the dissenting opinion, said he would have remanded the case for the district court to enter a restitution order that reflected the full amount of her losses.

He said each defendant who viewed the images was a cause to the harm because, if no one viewed them, the victim arguably would not have suffered the psychological problems that came with knowing they'd been seen by numerous unknown people.

To date, about 300 defendants have been convicted of possessing images of Vicky, according to a Sixth Circuit order Feb. 27. ..Source.. by LORI PILGER

Doe v Nebraska

Nebraska Case:

MEMORANDUM AND ORDER 12-21-2012
(Nos. 8:09CV456, 4:10CV3266, 4:10CV3005)

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM AND ORDER 0-17-2012
(Nos. 8:09CV456, 4:10CV3266, 4:10CV3005)

ORDER 7-23-2012
(No. 8:09CV456.)

ORDER 7-13-2012
(No. 8:09CV456.)

MEMORANDUM AND ORDER 6-29-2012
(No. 8:09CV456.)

MEMORANDUM AND ORDER 6-29-2012
(Nos. 8:09CV456, 4:09CV3266, 4:10CV3005)

MEMORANDUM AND ORDER 6-1-2012
(Nos. 8:09CV456, 4:09CV3266, 4:10CV3005)

MEMORANDUM AND ORDER 5-14-2012
Nos. 8:09CV456, 4:09CV3266, 4:10CV3005

ORDER 2-27-2012
No. 8:09CV456.

ORDER 1-10-2012
No. 8:09CV456.

MEMORANDUM AND ORDER 9-19-2011
Nos. 8:09CV456, 4:09CV3266, 4:10CV3005

MEMORANDUM AND ORDER 6-15-2011
(Nos. 8:09CV456, 4:09CV3266, 4:10CV3005)

MEMORANDUM AND ORDER 6-20-2011
(Nos. 8:09CV456, 4:09CV3266, 4:10CV3005)

ORDER 4-25-2011
(No. 8:09CV456.)

MEMORANDUM AND ORDER 4-19-2011
Nos. 8:09CV456, 4:09CV3266, 4:10CV3005.

MEMORANDUM AND ORDER 8-16-2010
734 F.Supp.2d 882 (2010)
(Nos. 8:09CV456, 4:09CV3266, 4:10CV3004, 4:10CV3005.)

MEMORANDUM AND ORDER 1-27-2011
(Nos. 8:09CV456, 4:09CV3266, 4:10CV3005)

Doe v Nebraska 12-30-2009
(No. 8:09CV456.)

This is a very complicated case with many issues, read it if you wish. Accordingly I am posting only what is relevant in this 12-30-2009 decision:

The specific statutes that are challenged by Plaintiffs, and an abbreviated summary of the reasons for the challenge, are set forth below:

Neb. Rev. Stat. §§ 29-4001.01 through 4006, and 4009 through 40131 amount to the ex post facto imposition of punishment;

Neb. Rev. Stat. § 29-4006 provides for unreasonable searches and seizures;

Neb. Rev. Stat. §§ 29-4009 and 4013 unreasonably eliminate individual assessments to determine the level of community notification and unreasonably impose website notification for all registrants;

Neb. Rev. Stat. § 29-4001.01 employs vague definitions, making the laws susceptible to arbitrary enforcement and inadvertent noncompliance;

Neb. Rev. Stat. § 28-322.05 2 creates a new crime and wrongly criminalizes certain types of speech and infringes upon the right of association; and

Neb. Rev. Stat. §§ 29-4001.01 through 4006, and 4009 through 4013 improperly and retroactively modify the terms and conditions of plea agreements and violate separation of powers doctrine.
(See Filing 1, Complaint at CM/ECF p. 4 n.1.)

IT IS ORDERED that the motion for a preliminary injunction (filing 4) is denied except as provided below:

1. Defendants are preliminarily enjoined from enforcing the following statutes against persons who have been convicted of sex offenses but who have completed their criminal sentences and who are not on probation, parole, or court-ordered supervision, to wit: (1) Neb. Rev. Stat. § 29-4006(2) (West, Operative January 1, 2010) (requiring consent to search and installation of monitoring hardware and software) and (2) Neb. Rev. Stat. § 28-322.05 (West, Operative January 1, 2010) (making it a crime to use Internet social networking sites accessible by minors by a person required to register under the Sex Offender Registration Act).

However, Nebraska went much further and added a "consent to search" and "monitoring" requirement, to wit:

When the person provides any information under subdivision (1)(k) or (s) of this section, the registrant shall sign a consent form, provided by the law enforcement agency receiving this information, authorizing the:

(a) Search of all the computers or electronic communication devices possessed by the person; and

(b) Installation of hardware or software to monitor the person's Internet usage on all the computers or electronic communication devices possessed by the person.

Neb. Rev. Stat. § 29-4006(2) (West, Operative January 1, 2010).

In addition to the "consent to search" and "monitoring" requirement, Nebraska—and, again, unlike SORNA—has now made it a crime for certain offenders who must register to access certain Internet sites. That is:

(1) Any person required to register under the Sex Offender Registration Act who is required to register because of a conviction for one or more of the following offenses, including any substantially equivalent offense committed in another state, territory, commonwealth, or other jurisdiction of the United States, and who knowingly and intentionally uses a social networking web site, instant messaging, or chat room service that allows a person who is less than eighteen years of age to access or use its social networking web site, instant messaging, or chat room service, commits the offense of unlawful use of the Internet by a prohibited sex offender:

...(Crime codes omitted)...

(2) Unlawful use of the Internet by a prohibited sex offender is a Class I misdemeanor for a first offense. Any second or subsequent conviction under this section is a Class IIIA felony.

Neb. Rev. Stat. § 28-322.05 (West, Operative January 1, 2010).
Thus, for offenders who must register, but who have served their sentences and are no longer on probation, parole, or court-ordered supervision at the time these new laws become effective, they face onerous new restrictions on their daily lives. They are burdened with the obligation to consent to the search of any computer they possess; they are required to allow the installation of software and hardware monitoring equipment on computers they possess; and many of them are prohibited, upon pain of an additional prison sentence, from using social networking websites, instant messaging services, or chat room service. When these restrictions are coupled with the fact that all registrants are also required to report in person, sometimes more frequently than once a year, it is likely that Nebraska's registration scheme, when applied retroactively to citizens who have completed their criminal sentences and who are no longer on probation, parole, or court-ordered supervision, violates the Ex Post Facto Clause of the Constitution. SeeSmith v. Doe, 538 U.S. at 101 (holding that Alaska registration scheme did not violate Ex Post Facto Clause because registrant was "free to . . . live . . . as other citizens, with no supervision") (emphasis added). Put more simply, Nebraska has now retroactively imposed a probation-like regimen that is nearly identical to the supervised release orders I enter on a daily basis for federal criminal defendants who have committed "kiddie porn" crimes. In either context, those restrictions are clearly "punishment."


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Earlier Filings:

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MEMORANDUM AND ORDER 12-22-2009
MEMORANDUM AND ORDER 12-21-2009
MEMORANDUM AND ORDER 12-18-2009
MEMORANDUM AND ORDER 12-17-2009

There is more on this case HERE

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PDF 12-30-2009