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DEFENDING A SORNA PROSECUTION. PRESENTATION OVERVIEW  Historical Background 3 min  SORNA Legislation15 min  Pre-Conviction Strategies30 min  Sentencing.

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Presentation on theme: "DEFENDING A SORNA PROSECUTION. PRESENTATION OVERVIEW  Historical Background 3 min  SORNA Legislation15 min  Pre-Conviction Strategies30 min  Sentencing."— Presentation transcript:

1 DEFENDING A SORNA PROSECUTION

2 PRESENTATION OVERVIEW  Historical Background 3 min  SORNA Legislation15 min  Pre-Conviction Strategies30 min  Sentencing Strategies7 min

3 SORNA HISTORICAL BACKGROUND

4 HISTORICAL BACKGROUND ORIGIN : Fear of Anonymous Felons

5 HISTORICAL BACKGROUND 1930s: Los Angeles First Legislative Body in America to Require Registration. Concerned that Gangsters were Relocating From East Coast and Midwest.

6 HISTORICAL BACKGROUND 1947: California enacted the first statewide sex offender registration law.

7 Lambert v. California (U.S. 1957): Requiring an individual with no prior notice to register violates due process. HISTORICAL BACKGROUND

8 1990s: Proliferation of State Sex Offender Registration and Notification Systems  1989:12 States Had Registration Systems  1996:All 50 states had a Registration System HISTORICAL BACKGROUND

9 High Profile Sexual Abuse Cases:  Megan Kanka: Megan’s Law in New Jersey (1994)  Jacob Wetterling:Federal Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (1994)

10 HISTORICAL BACKGROUND Adopted a Wetterling Act compliant registration system effective January 1, 2006

11 HISTORICAL BACKGROUND Supreme Court Review of Pre-SORNA State Systems:  Smith v. Doe (2003):Court held Alaska Registration System’s Application to Pre- Enactment Convictions Did Not Violate Ex Post Facto Clause.  DPS v. Doe (2003):Court held Covered Individuals Had No Due Process Right to a Hearing Before Being Required to Register.

12 SORNA THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT OF 2006

13 SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Sponsors Mark Foley and others urged Congress to pass the Sex Offender Registration and Notification Act (“SORNA”). President George W. Bush signed into law on July 27, 2006.

14 SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Purpose 42 U.S.C. §  To protect the public from sex offenders and offenders against children; and  To establish a comprehensive national system for the registration of sex offenders and offenders against children. Legislative History  Concern sex offenders under Wetterling Act systems were going missing.

15 Criminal Provision (18 U.S.C. § 2250(a))  Defendant Required to Register under SORNA  Defendant either:  Has a prior federal conviction, or  Traveled in Interstate Commerce; and  Defendant knowingly failed to register as required by SORNA SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

16 Affirmative Defense  uncontrollable circumstances prevented the individual from complying;  the individual did not contribute to the creation of such circumstances in reckless disregard of the requirement to comply; and  the individual complied as soon as such circumstance ceased to exist. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

17 Registration Requirement Who Must Register:  42 U.S.C. § 16911(a)(1) : A person who has been convicted of a “sex offense.” SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

18 Registration Requirement What is a Sex Offense:  42 U.S.C. § 16911(a)(5) :  A criminal offense that has an element involving a sexual act or sexual contact with another;  A criminal offense that is a specified offense against a minor;  A specified Federal offense  A specified violation of the UCMJ  An Attempt or conspiracy to commit one of the above SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

19 Registration Requirement What is a Specified Offense Against a Minor: 42 U.S.C. § 16911(a)(7): an offense against a minor that involves:  kidnapping;  false imprisonment;  Use in a sexual performance;  Solicitation to practice prostitution;  Video voyeurism as described in 18 U.S.C. 1801;  Child Pornography offenses;  Criminal sexual conduct involving a minor,  Any conduct that by its nature is a sex offense against a minor. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

20 Registration Requirement Consensual Sex Exception  42 U.S.C. § 16911(5)(c):  An offense involving “consensual sexual conduct” is not a sex offense if:  The victim was an adult (unless adult was under custodial authority of the offender); or  The victim was at least 13 years old and the offender was not more than 4 years older than the victim. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

21 Registration Requirement Categories of Sex Offenders:  42 U.S.C. § 16911(a): Three Tiers (I through III) SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

22 Registration Requirement Categories of Sex Offenders:  42 U.S.C. § 16911(a):  Tier III: Defendant convicted of a prior contact offense, kidnapping, or committed an offense after becoming a Tier II offender  Tier II: Defendant convicted of a child pornography offense, sex trafficking, enticement, transportation of a minor, solicitation of a minor to practice prostitution, or “abusive sexual contact” with an individual over 12 years old.  Tier I: Any conviction that does not fall in Tiers II or III. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

23 Registration Requirement General Requirement  42 U.S.C. § 16913(a) :  A sex offender must keep registration current in each jurisdiction where he resides, is employed, and attends school.  Must also initially register in state of conviction. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

24 Registration Requirement Initial Registration  42 U.S.C. § 16913(b) :  Register prior to completing a prison sentence; or  No later than 3 business days after being sentenced if not sentence to imprisonment. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

25 Registration Requirement Keeping the Registration Current  42 U.S.C. § 16913(c) :  Must appear in one jurisdiction referenced in subsection (a) not later than 3 business days after each change of:  Name  Residence  Employment  Student status And provide information required in the registry. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

26 Registration Requirement Information Required in the Registry  42 U.S.C. § 16914(a):  Sex Offenders must provide the following information:  Name (including any alias used)  Social Security number  Address of each residence at which the sex offender resides or will reside  Name and address of employment  Name and address of school  Vehicle information  Any other information required by the AG SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

27 Registration Requirement Delegation to the Attorney General  42 U.S.C. § 16913(d):  The Attorney General has the authority to specify the applicability of the requirements of SORNA to sex offenders convicted before:  SORNA’s enactment on July 27, 2006; and  SORNA’s implementation in a particular jurisdiction Interim Rule on February 28, 2007 Final Rule effective January 18, 2011 SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

28 Registration Requirement Delegation to the Attorney General  42 U.S.C. § 16912(b):  Congress delegated authority to the Attorney General to issues guidelines and regulations to interpret and implement this title.  Final Guidelines effective August 1, 2008  Supplemental Guidelines effective February 10, 2011 SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

29 Registration Requirement Length of Registration Requirement and Frequency of In Person Verification:  42 U.S.C. §§ 16915, 16916:  Tier III: Life registration In person verification every 3 months  Tier II: 25-year registration In person verification every 6 months  Tier I: 15-year registration In person verification each year SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

30 Registration Requirement Early Termination:  42 U.S.C. § 16915(a)(2)-(3):  Tier III: Applies to juveniles adjudicated delinquent 25-year clean period  Tier II: Not Applicable  Tier I: Applies to every individual 10-year clean period SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

31 Registration Requirement Duty to Notify Sex Offenders of SORNA  42 U.S.C. § 16917:  Congress required an “appropriate official” to notify a sex offender of his duty to register under SORNA prior to his release, and have the sex offender read and sign a form stating that he understands the requirement.  The Attorney General issued an Interim Rule on February 28, 2007 making SORNA applicable to all sex offender. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

32 Registration Requirement Attorney General Regulations  Interim Rule (February 27, 2007)  Final Guidelines (effective August 1, 2008)  Final Rule (effective January 18, 2011)  Supplemental Guidelines (effective February 10, 2012) SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

33 16 States and 3 Territories Have Implemented SORNA Alabama Commonwealth of the Northern Mariana Islands Delaware Florida Guam Kansas Louisiana Maryland Michigan Mississippi Missouri Nevada Ohio Pennsylvania South Carolina South Dakota Tennessee U.S. Virgin Islands Wyoming SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

34 Supreme Court Review Carr v. United States (2010):  The enforcement provision of Section 2250 does not apply to covered individuals whose travel predates the enactment of SORNA.  Section 2250 requires proof that the elements were committed in a sequential order. Reynolds v. United States (2012):  Congress delegated authority to the Attorney General to determine whether SORNA applies to individuals with pre-enactment convictions.  Did not address whether the Interim Rule of February 28, 2007 was a valid rule SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

35 Supreme Court Review United States v. Kebodeaux (2013):  (1) Whether pre-SORNA federal law obligated an individual with a prior military conviction to register as a sex offender; and  (2) whether Congress has authority to provide for criminal penalties under 18 U.S.C. § 2250(a)(2)(A), as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

36 Fourth Circuit Review United States v. Gould (2009): Found SORNA Constitutional under challenges brought under:  Commerce Clause  Due Process Clause  Ex Post Facto Clause Also found Attorney General had good cause to avoid notice and comment period requirement of APA and Government not required to prove notice under or knowledge of SORNA requirement. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

37 SORNA PRE-CONVICTION DEFENSE STRATEGIES

38 Prior Conviction is Not an Offense Requiring Registration  Request Bill of Particulars  Obtain Records from Prior Conviction  Categorical Approach  Who Determines Jury or Judge PRE-CONVICTION DEFENSE STRATEGIES

39 The Prior Conviction Was Invalid  Prior Conviction Was Expunged or Overturned  Foreign Conviction Obtained Without Safeguards for Fundamental Fairness 42 U.S.C. § 16911(5)(B) PRE-CONVICTION DEFENSE STRATEGIES

40 Defendant’s Registration Period Expired  Period Runs from the Date of Sentence if Not Sentenced to Prison or Date of Release from Prison  Based on Tier Classification and Clean Record 42 U.S.C. § Fed.Reg at (2008) PRE-CONVICTION DEFENSE STRATEGIES

41 Prior Conviction Involves Consensual Conduct Congress exempted individuals from registering with prior convictions involving consensual conduct where:  the victim is an adult who was not under the defendant’s custodial authority; and  the victim was at least 13 and the defendant was not more than 4 years older. 42 U.S.C. § 16911(5)(C) Due Process / Rule of Lenity PRE-CONVICTION DEFENSE STRATEGIES

42 Defendant Was Not Given Notice of SORNA Congress required an “appropriate official” to notify the defendant of the requirement to register and have the defendant read and sign a form acknowledging his understanding. 42 U.S.C. § Due Process PRE-CONVICTION DEFENSE STRATEGIES

43 Defendant Never Established a Residence / The Term Residence is Void as Applied  Registration requirement triggered upon establishing a new residence  Residence based on term “resides,” which is defined as “the location of the individual’s home or other place where the individual habitually lives.  Transient defendant may not have a home or other place where he habitually lives 42 U.S.C. §§ 16911(13), Due Process PRE-CONVICTION DEFENSE STRATEGIES

44 Attorney General’s Rule Violates the APA Congress Delegated Authority to the Attorney General to Determine Whether SORNA applies to individuals with convictions predating SORNA’s enactment or its implementation in a particular jurisdiction Attorney General’s regulations :  the Interim Rule on February 28, 2007;  the Final Guidelines on August 1, 2008;  the Final Rule on December 29, 2010; and  the Supplemental Guidelines for Sex Offender Registration and Notification on January 11, U.S.C. § 16913(d) Due Process Administrative Procedures Act PRE-CONVICTION DEFENSE STRATEGIES

45 The defendant traveled before SORNA was applicable to him  Certainly applies for travel prior to February 28, 2007  Validity of Argument for post- February 28, 2007 travel depends on when the Attorney General issued a valid rule. 18 U.S.C. 2250, Carr v. United States Due Process Administrative Procedures Act PRE-CONVICTION DEFENSE STRATEGIES

46 The defendant was unable to comply with SORNA because it has not been implemented in relevant state(s)  Only 16 States have implemented SORNA  If Defendant prosecuted in a state that has not implemented, argue that prosecution violates Due Process Clause and Ex Post Facto Clause because defendant could not have complied PRE-CONVICTION DEFENSE STRATEGIES

47 Constitutional Challenges Commerce Clause  Registration Requirements of purport to regulate purely local activity  Lack of mens rea requirement in travel element leaves insufficient nexus between travel and failure to register PRE-CONVICTION DEFENSE STRATEGIES

48 Constitutional Challenges Non-Delegation Doctrine  Congress impermissibly granted the Attorney General the authority to legislate the reach of SORNA’s retrospective reach.  Attorney General has authority to determine how far back SORNA reaches and who may be exempted from registration. PRE-CONVICTION DEFENSE STRATEGIES

49 Constitutional Challenges Ex Post Facto Clause  The registration obligations create a greater collected disabilities, restraints, and obligations than the previous state or federal registration requirements in effect at the time of a defendant’s conviction.  Term of imprisonment and supervised release for violating SORNA is greater than previous state or federal registration enforcement provisions. PRE-CONVICTION DEFENSE STRATEGIES

50 Constitutional Challenges Venue  When defendant is prosecuted in State A after traveling from State A to State B and failing to register in State B. PRE-CONVICTION DEFENSE STRATEGIES

51 Constitutional Challenges Tenth Amendment  Congress lacks authority to compel local law enforcement to accept registrations from federally mandated sex offender programs. PRE-CONVICTION DEFENSE STRATEGIES

52 The Indictment is Duplicitous  Raise if Defendant is charged in one count with failing to register in State A and in another count with traveling to State B and failing to register their. PRE-CONVICTION DEFENSE STRATEGIES

53 Entrapment by Estoppel  Raise if Defendant was informed by law enforcement that he did not have to register. PRE-CONVICTION DEFENSE STRATEGIES

54 Statutory Affirmative Defense GOOD LUCK ! PRE-CONVICTION DEFENSE STRATEGIES

55 HYPOTHETICALS PRE-CONVICTION DEFENSE STRATEGIES

56 HYPOTHETICALS Number 1: Steven Orlando was convicted in Florida of Lewd Molestation of a Minor in The victim of the offense was 13 years old and he was 17. The conduct was consensual. He began registering in Florida upon his release from imprisonment in In 2012, he bought a new car in Florida but did not register that fact. He moved to North Carolina two months later and began registering. He began a new job one month after that, but failed to register his new employment. He was charged in North Carolina under 18 U.S.C with failing to register. PRE-CONVICTION DEFENSE STRATEGIES

57 HYPOTHETICALS Number 1: Lewd Molestation of a Minor (Fla. Stat (5)): A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation. For purposes of the statute on lewd and lascivious molestation, “lewd and lascivious conduct” generally denotes unlawful indulgence of lust, gross indecency with respect to sexual relations, or wicked, lustful, unchaste, licentious, or sensual conduct. PRE-CONVICTION DEFENSE STRATEGIES

58 HYPOTHETICALS Issues: Was he Convicted of a Sex Offense? Does it matter how he committed the offense? Does his Offense Fall Within the Consensual Sex Exception? Was He More than 4 Years Older than the Victim Did he have to Register His New Vehicle in Florida? Does it Matter that Florida has implemented SORNA? Did he Violate SORNA by Failing to Register his Vehicle in Florida? Did He Violate SORNA by Failing to Register his Employment in North Carolina? Broad Constitutional Issues: Commerce Clause Non-Delegation Doctrine Tenth Amendment Ex Post Facto PRE-CONVICTION DEFENSE STRATEGIES

59 HYPOTHETICALS Number 2: Brian Burlington was convicted in Vermont of Lewd and Lascivious Conduct in He began registering as a sex offender following his release from prison in January In May 2012, he traveled to North Carolina to visit an old girlfriend for a week. After a few days, they hit it off and Brian thought he might stay longer. Ten days after entering North Carolina, his girlfriend was pulled over for a busted light and the police officer discovered that Brian was a sex offender. Not wanting to offend his girlfriend, he told the officer that he was thinking of staying in North Carolina permanently. He later informed the officer that his belongings remained in his house in Vermont. He was prosecuted in North Carolina for failing to register. PRE-CONVICTION DEFENSE STRATEGIES

60 HYPOTHETICALS Number 2: Lewd and Lascivious Conduct (13 V.S.A. 2601): A person guilty of open and gross lewdness and lascivious behavior shall be imprisoned not more than five years or fined not more than $300.00, or both. Term lewd and lascivious not defined by statute; left to common sense. PRE-CONVICTION DEFENSE STRATEGIES

61 HYPOTHETICALS Issues: Was he Convicted of a Sex Offense? Did he have to Register the Fact that He Left the State for a Vacation? Does it matter how long he planned to stay? Does it matter that the Attorney General has issued a guideline pursuant to stating that an offender has to inform the registry of his plans to visit a given area for 7 days? Did he have to register in North Carolina? Does it matter what the State law requires? Broad Constitutional Issues: Commerce Clause Non-Delegation Doctrine Tenth Amendment Ex Post Facto PRE-CONVICTION DEFENSE STRATEGIES

62 HYPOTHETICALS Number 3: Samuel Otisco was convicted in New York of Incest in the Third Degree. He was informed of his requirement to register in New York and had done so since his conviction and sentence in February After getting in an argument with his girlfriend in May 2008, he decided to leave her and go on a trip and eventually wound up in North Carolina. He never registered while living in North Carolina. His girlfriend wanted to get back at him so decided to report him to the authorities in New York. He was arrested in March 2012 and charged in the North Carolina with one count of failing to register. PRE-CONVICTION DEFENSE STRATEGIES

63 HYPOTHETICALS Number 3: Incest in the third degree (N.Y. Penal Law ): A person is guilty of incest in the third degree when he or she marries or engages in sexual intercourse, oral sexual conduct or anal sexual conduct with a person whom he or she knows to be related to him or her, whether through marriage or not, as an ancestor, descendant, brother or sister of either the whole or the halfblood, uncle, aunt, nephew or niece. PRE-CONVICTION DEFENSE STRATEGIES

64 HYPOTHETICALS Issues: Was he Convicted of a Sex Offense? Does his Offense Fall Within the Consensual Sex Exception? Has His Term of Registration Expired? Does that Depend on Whether He Has Maintained a Clean Record? Does it Also Depend on the Date of His Alleged Failure to Register? When did he travel? Was it prior to a valid rule making SORNA applicable to him? Broad Constitutional Issues: Commerce Clause Non-Delegation Doctrine Tenth Amendment Ex Post Facto Venue PRE-CONVICTION DEFENSE STRATEGIES

65 HYPOTHETICALS Number 4: Sean Olin was convicted in 2010 in North Carolina of Taking Indecent Liberties with a Child and began registering following his release from prison. In 2012, he notified law enforcement officials that he planned to move to New York but informed them he was uncertain as to where he would eventually live. Upon arriving in New York, he decided to sleep on a friend’s couch at night in New York City. He kept his personal belongings in his car. He planned to stay for one week in New York City before moving to Buffalo to live and start a new job. On the sixth day, however, he was arrested by police for public intoxication and it was discovered that he did not register in New York. He was prosecuted in North Carolina for failing to register in New York. PRE-CONVICTION DEFENSE STRATEGIES

66 HYPOTHETICALS Issues: Did He Fail to Register in North Carolina? Has he established a residence in New York? Did He Have to Register the Fact that He Had a New Job? Does it Matter When he Learned of his New Job, i.e., before traveling or after? Did he have to register his reside Does His Offense Fall Within the Consensual Sex Exception? Broad Constitutional Issues: Commerce Clause Non-Delegation Doctrine Tenth Amendment Ex Post Facto Venue PRE-CONVICTION DEFENSE STRATEGIES

67 SORNA SENTENCING STRATEGIES

68 U.S.S.G § 2A1.3 (a) Base Offense Level (apply the greatest): (1) 16, if the defendant was required to register as a Tier III offender; (2) 14, if the defendant was required to register as a Tier II offender; or (3) 12, if the defendant was required to register as a Tier I offender. SENTENCING STRATEGIES

69 U.S.S.G § 2A1.3 (b) Specific Offense Characteristics (1) (Apply the greatest): If, while in a failure to register status, the defendant committed— (A) a sex offense against someone other than a minor increase by 6 levels; (B) a felony offense against a minor not otherwise covered by subdivision (C), increase by 6 levels; or (C) a sex offense against a minor, increase by 8 levels. SENTENCING STRATEGIES

70 U.S.S.G § 2A1.3 Specific Offender Characteristics, continued (2) If the defendant voluntarily (A) corrected the failure to register; or (B) attempted to register but was prevented from registering by uncontrollable circumstances and the defendant did not contribute to the creation of those circumstances, decrease by 3 levels SENTENCING STRATEGIES

71 Problems with the Guideline  SOC May Apply Even Without Conviction  Commission uses much broader definition of a minor that Congress in SORNA  Not all offenses within each Tier are equal  Only three level reduction for almost meeting affirmative defense SENTENCING STRATEGIES

72 Supervised Release  Guard against PSR recommendation for life supervised release  Guard against over restrictive conditions that are not supported including prohibitions against alcohol, computer use, or adult pornography SENTENCING STRATEGIES


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