1. SEXUAL OFFENDER AND REGISTRATION AND NOTIFICATION ACT “SORNA” STATUTORY AND CONSTITUTIONAL DEFENSES PARESH S. PATEL FEDERAL PUBLIC DEFENDER, DISTRICT OF MARYLAND APRIL 6, 2012

2. Relevant Authority and Dates ■SORNA Registration Provisions (42 U.S.C. § 16901-962) Signed into law on July 27, 2006 ■Criminal Failure to Register Provision (18 U.S.C. § 2250) Signed into law on July 27, 2006 ■SMART Guidelines: Final Guidelines (73 Fed. Reg. 38030) - Issued July 2, 2008 (Effective August 1, 2008 after notice and comm.) Suppl. Guidelines (76 Fed. Reg. 1630)- Issued Jan. 11, 2011 ■28 C.F.R. § 72.3 (Attorney General Reg. Making SORNA retroactive to pre- enactment and pre-implementation offenders) Interim Reg: Feb. 28, 2007; Final Reg: Jan. 28, 2011

3. SORNA Registration Provisions (42 U.S.C. § 16901-962)

4. SORNA REGISTRATION REQUIREMENTS ■SORNA Replaces Wetterling Act (42 U.S.C. § 14071-73) ■SORNA much more onerous: - includes tribes and territories - expands definition of sex offenses - requires automatic registration w/o hearing on risk or classification as sex offender or classification as sex offender - requires internet posting for most offenders - increases duration of registration for some offenders - increases criminal penalties for failure to register

5. SORNA Registration: Dual Obligations ■Local Jurisdictions’ (States, Terr., Indian Tribes) Obligation: Must implement SORNA or lose money ■Sex Offenders’ Obligation: Individual duty to register within local jurisdictions, regardless of state’s choice to implement SORNA.

6. Pre-Implementation Challenge Rejected United States v. Gould, 568 F.3d 459 (4 th Cir. 2009) ■Defendant argued that SORNA does not apply in states which have not yet implemented SORNA: based on 42 U.S.C. § 16913(d) and SMART Guidelines (73 Fed. Reg. 38064) ■Fourth Circuit as well as every other Circuit to have decided issue has rejected argument: holding that SORNA imposes individual duty to register separate and apart from state’s obligations.

7. SORNA REGISTRATION REQUIREMENT BASICS ■Initial Registration: Each jurisdiction where sex offender resides, works, goes to school, & was convicted (if different from where resides) Before completing term of imprisonment OR within 3 days of receiving non-prison sentence. 42 U.S.C. § 16913(a)

8. SORNA REGISTRATION REQUIREMENT BASICS ■Update Registration: Within 3 days of any change to name, residence, employment or student status Only need to update in one of the required jurisdictions, but must be in person 42 U.S.C. § 1963(b)

9. SORNA REGISTRATION REQUIREMENT; BASICS ■Verify Registration: –In-person at each jurisdiction where required to register –every year (Tier I) –every 6 months (Tier II) –every 3 months (Tier III) 42 U.S.C. § 16916

10. FAILURE TO REGISTER 18 U.S.C. § 2250(a)(2)(B) (State Sex Offenses) Elements: 1) Required to register under SORNA; 2) Travels in interstate commerce, and 3) Thereafter, knowingly fails to register or update as required by SORNA update as required by SORNA 10 year maximum penalty

11. FAILURE TO REGISTER 18 U.S.C. § 2250(a)(2)(A) (Federal, Territorial, and Tribal Sex Offenses) Elements: 1) Required to register under SORNA; and 2) Thereafter knowingly fails to register or update as required by SORNA update as required by SORNA 10 year maximum penalty

12. SORNA AND FAILURE TO REGISTER: POSSIBLE STATUTORY AND CONSTITUTIONAL DEFENSES

13. DEFENSE 1: No “sex offense”

14. WHAT CONSTITUTES A “SEX OFFENSE” ? ■criminal offense that “has an element involving a sexual act or sexual contact with another” ■specified offense against a minor ■certain listed federal, military, and foreign offenses ■attempts or conspiracies ■juvenile adj. for juveniles age 14 or older who commit offense comparable to or > severe than aggrav. sexual abuse under 18 U.S.C. 2241 or attempt or conspiracy to commit such crime. ■certain consensual sexual acts 42 U.S.C. § 16911

15. CATEGORICAL APPROACH AND “SEX OFFENSE” ■ Only elements - not underlying conduct - can qualify prior crime as “sex offense” under SORNA. See Shepard v. United States, 544 U.S. 13 (2005); Taylor v. United States, 495 U.S. 575 (1990) ■ Attorney General has suggested categorical approach should apply with everything except for age of victim - SMART Guidelines: 73 Fed. Reg. 38031.

16. CATEGORICAL APPROACH “SEXUAL ACT OR SEXUAL CONTACT WITH ANOTHER” ■Requires “element involving a sexual act or sexual contact with another.” 42 U.S.C. § 16911 ■Clause covers “all sexual offenses whose elements involve any type or degree of genital, oral, or anal penetration, or any sexual touching of or contact with a person’s body, either directly or through the clothing.” 73 Fed. Reg. 39051.

17. CATEGORICAL APPROACH: “SPECIFIED OFFENSES AGAINST A MINOR” 42 U.S.C. § 16911 - Non-parental kidnapping or false imprisonment of a minor - Solicitation of a minor to engage in sexual conduct - Use of a minor in a sexual performance - Solicitation of a minor to practice prostitution - Video voyeurism involving a minor - Possession, production, or distribution of child pornography - Criminal sexual conduct involving a minor and related internet activities - Any conduct that, by its nature, is a sex offense against a minor, including convictions for child molestation, sexual activity w/ underage persons and child prostitution.

18. Categorical Approach: “Specified offenses against a minor” ■ “criminal sexual conduct involving a minor” = “sexual offenses whose elements involve physical contact with the victim” or “offenses whose elements involve using others persons in prostitution” 72 Fed. Reg. 38052 ■“conduct, that, by its nature, is a sex offense against a minor” = - “status of the victim as a minor” must be element of prior offense. 73 Fed. Reg. 38052 -“by its nature” language calls for categorical approach – See Cain v. State, 872 A.2d 682 (Md. 2005); State v. Chun, 76 P.3d 935 (Haw. 2003) Beware of United States v. Dodge, 597 F.3d 1347 (11 th Cir. 2010) ■analogize to categorical approach used in ACCA/career offender “otherwise” clause which includes “involving conduct” language. ■SORNA only applies to those convicted of a sex offense – not merely those who committed sex offense. 42 U.S.C. §16911 (1)

19. Enumerated “sex offenses” ■Use Model Penal Code to determine generic definition of offense. See United States v. Peterson, 629 F.3d 432 (4 th Cir. 2011).

20. SMART GUIDELINES: RE-DEFINING OF “SEX OFFENSES” Beware of Attorney General’s expansion and addition of sex offenses beyond that specified by Congress in SORNA. - Plain language of SORNA does not allow Attorney General to add new offenses and broaden SORNA’s def. of “sex offenses.” -Attorney General not authorized to add new offenses; to read SORNA otherwise violates non-delegation doctrine. See Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). -Constitutional Avoidance. See Clark v. Martinez, 543 U.S. 371 (2005). Examples: ■“Attempt” and “Conspiracy” – broadened by SMART Guidelines to include “assault with intent to rape” 73 Fed. Reg. 38051. ■“Solicitation to engage in sexual conduct” redefined by SMART Guidelines to include “any direction, request, enticement, persuasion, or encouragement of a minor to engage in sexual conduct.” 73 Fed. Reg. 38051

21. DEFENSE 2: Is Prior Offense a Valid Conviction?

22. Valid Conviction 1) Must be conviction (42 U.S.C. § 16911) 2) Convictions that are set aside, expunged, or vacated do not count (SMART Guidelines: 73 Fed. Reg. 38050) 3) Foreign conviction obtained without sufficient safeguards for due process is invalid – 42 U.S.C. § 16911 and 73 Fed. Reg. 38050 – See U.S. State Dept. Country Reports on Human Rights Practices 4) Argue that any conviction is invalid if obtained without proper waiver of counsel – U.S. v. Custis, 511 U.S. 485 (1994) 5) Argue tribal convictions invalid if no right to counsel. – Sentencing Commission does not count them, U.S.S.G. § 4A1.2

23. DEFENSE 3: Duration of reg. term expired?

24. DURATION OF REGISTRATION: DURATION OF REGISTRATION: ■ Depends on Tier Level Determined by Type of Sex Offense and Prior Criminal History under 42 U.S.C. § 16911. 42 U.S.C. § 16915. 42 U.S.C. § 16915.

25. DURATION OF REGISTRATION DURATION OF REGISTRATION ■ Tier I: 15 years (or 10 years if “clean record”) Clean record: - No convictions for offenses punishable by more than one year; and - No sex offense convictions; and -No revocation of supervised release, parole, or probation; and -successful completion of cert. sex offender treatment program

26. DURATION OF REGISTRATION ■ Tier II: 25 years – No clean record break ■Tier III: Life (or 25 years with clean record) 16 U.S.C. § 16915

27. DURATION OF REGISTRATION ■Registration period begins to run 1)upon release from custody of an offender who has been incarcerated; 2)at time of sentencing, for an offender who receives non-prison sentence. ■Permit, but do not require jurisdictions to toll registration while offender is incarcerated. SMART Guidelines: 73 Fed. Reg. 38068.

28. DURATION OF REGISTRATON CLASSES OF SEX OFFENDERS ( Tier I, II, and III) Use categorical approach in determining tier except with respect to age of victim. SMART Guidelines: 73 Fed. Reg. 38053.

29. DEFENSE 4: Has the offender established a “RESIDENCE”?

30. Residence - Must register or update registration within 3 business days after sex offender establishes new “residence.” 42 U.S.C. § 16913 - Resides: “location of the individual’s home or other place where the individual habitually lives.” 42 U.S.C. § 16911. One “habitually lives” in a place if he stays there for 30 days. SMART Guidelines: 73 Fed. Reg. 38062. - Thus, if sex offender intends to live in place for 30 days, it is a residence, and he must register within three days of moving there. 73 Fed. Reg. 38062.

31. Residence: Transients - Beware of United States v. Bruffy, 2012 WL 503808 (4 th Cir. 2012) 4 th Cir. found that defendant who moved from Florida established residence at a specific location in Va., even though he lived in his car most of the 23-day period in question and 4 th Cir. found that defendant who moved from Florida established residence at a specific location in Va., even though he lived in his car most of the 23-day period in question and intended to get an apartment in Maryland after he found a job there. Because he failed to report this change of so called residence, he was convicted of failure to update registration in Florida and failing to register in Virginia. See dissent – J. Gregory believes that defendant’s living situation was too transient and unstable that it was not “habitual” and therefore not “residence”

32. Residence: Transients Even if offender does not have fixed abodes, must register with detailed information as possible of where one habitually lives (residence): i.e., part of city that is habitual locale – park or spot on street (or number of such places) where the sex offender stations himself during day or sleeps at night, shelters, and buildings frequented) SMART Guidelines: 73 Fed. Reg. 38055

33. Residence: Transients 1) Sex offender must update registration when he terminates residence (leaves with no intention to return), even if he has no fixed future place of residence. SMART Guidelines: 73 Fed. Reg. 38066; See also United States v. Van Buren, 599 F.3d 170 (2d Cir. 2010); United States v. Voice, 622 F.3d 870 (8 th Cir. 2010); United States v. Murphy, 664 F.3d 798 (10 th Cir. 2011); United States v. Bruffy, 2012 WL 503808 (4 th Cir. 2012). But see dissent in Murphy, 664 F.3d 798 (No duty to update in former jurisdiction of residence because lang. in SORNA statute only requires reg. in jurisdiction in which one resides – not where he formerly resided)

34. Residence: Transients Void for Vagueness United States v. Bruffy, 2012 WL 503808 (4 th Cir. 2012): Rejected defense’s argument that the term “reside” in SORNA is unconstitutionally vague as applied to transient offenders who have vacated one residence, but have not yet established a fixed place to live in another state. Defense argued that SORNA fails to provide fair notice of the point in time when presence in a new jurisdiction triggers the registration requirement.

35. DEFENSE 5: Pre-Implementation and Pre- Enactment Offenders

36. Pre-Implementation and Pre-Enactment Offenders Pre-Implementation and Pre-Enactment Offenders AG has the “authority” to decide if SORNA retroactive to pre-implementation and pre- enactment offenders and prescribe rules for their registration. 42 USC 16913(d)

37. INTERIM REG. OF ATTORNEY GENERAL, 28 C.F.R. § 72.3 ■Effective Feb. 28, 2007 ■Makes SORNA applicable to pre-enactment and pre-imp. sex off. ■Enacted pursuant to Congress’ directive – 42 U.S.C. § 16913(d) ■ No pre-enactment offender can be prosecuted under Failure to Register statute unless he traveled in interstate commerce and failed to register after Feb. 28, 2007. United States v. Hatcher, 560 F.3d 222 (4 th Cir. 2009) ■ Argue no pre-implementation offender can be prosecuted under Failure to Register statute unless he traveled in interstate commerce and failed to register after Feb. 28, 2007. United States v. Trent, 654 F.3d 574 (6 th Cir. 2011)

38. Interim Regulation: APA Challenge ■No notice and comment under Administrative Procedure Act before interim regulation, 28 C.F.R. § 72.3 ■United States v. Gould, 568 F.3d 459 (4 th Cir. 2009) No APA violation because good cause to excuse notice and comment ■See J. Michael dissent in Gould ■Split in the Circuits – Preserve for S.C. review Finding APA violation: United States v. Cain, 583 F.3d 408 (6 th Cir. 2009); United States v. Utesch, 596 F.3d 302 (6 th Cir. 2010); United States v. Valverde, 628 F.3d 1159 (9 th Cir. 2010) No APA violation: United States v. Dean, 604 F.3d 1275 (11 th Cir. 2010); United States v. Johnson, 632 F.3d 912 (5 th Cir. 2011) (found APA violation harmless); United States v. Dixon, 551 F.3d 578 (7 th Cir. 2008) (assumed w/o deciding that reg. was valid).

39. Interim Regulation: Standing of pre-enactment and pre-implementation offenders to make APA challenge to interim regulation ■Reynolds v. United States, 132 S. Ct. 975 (2012): Confirmed that pre-enactment offenders having standing to make APA challenge to interim regulation because the interim regulation – not Congress -- made SORNA applicable to pre-enactment offenders. ■Under rationale of Reynolds, pre-implementation offenders also have standing to make APA challenge to interim regulation.

40. Interim Regulation, 28 C.F.R. § 72.3: Finalized ■Effective January 28, 2011; 75 Fed. Reg. 81849 ■Issued after notice and comment ■No viable APA challenge for failure to register and interstate travel after January 28, 2011 Beware of cases holding that any APA violation was cured by August 1,2008, eff. date of Final SMART Guidelines: United States v. Stevenson, __ F.3d __, 2012 WL 573326 (6 th Cir. 2012); United States v. Utesch, 596 F.3d 302 (6 th Cir. 2010); United States v. Valverde, 628 F.3d 1159 (9 th Cir. 2010).

41. DEFENSE 6: Non-Delegation Doctrine

42. Non-Delegation Doctrine United States v. Burns, 2011 WL 970644 (4 th Cir. 2011) ■Def. argued Congress unlawfully delegated legislative authority to Attorney General to determine retroactivity of SORNA to pre- enactment offenders. ■4 th Circuit rejects argument: holds that Attorney’s authority bounded by policies and requirements set forth in SORNA. ■But unpublished decision; preserve for S.C. review even though no split in the Circuits. S.C. might take up issue along with APA challenge to interim regulation. See dissent in Reynolds

43. DEFENSE 7: Date of Travel after United States v. Carr

44. Interstate Travel must occur after passage of SORNA ■United States v. Carr, 130 S. Ct. 2229 (2010) Under statutory terms of the Failure to Register statute, a sex offender can only be prosecuted if he traveled in interstate commerce after the enactment of SORNA on July 27, 2006. ■But in Fourth Circuit under Hatcher, 560 F.2d 222, travel for pre-enactment and pre-imp. offenders must be not only after July 27, 2006, but also after February 28, 2007– date of interim regulation applying SORNA to pre-enactment and pre-imp. offenders. ■But remember to preserve argument that travel for pre- enactment and pre-imp offenders must be after Jan. 28, 2011 – only then did AG issue valid reg. after n and c.

45. DEFENSE 8: Group of Offenders Unable to Comply with SORNA

46. SORNA REGISTRATION REQUIREMENT: Unable to Comply with SORNA AG must prescribe rules for registration of people unable to comply with SORNA’s initial registration requirements. 42 USC §16913(d); 42 USC §16913(b)

47. Group of Offenders Unable to Comply with SORNA ■Gould, 568 F.3d 459 - Def. argued that he was unable to initially register under 42 U.S.C. § 16913(b) because he was released from prison on underlying sex offense before SORNA was enacted. -Fourth Circuit rejected argument: held sex offender is able to comply with SORNA if required to register under state law. ■Kennedy v. Allera, 612 F.3d 261 (2010) (Gets even worse) - Def. argued that he was unable to initially register because he was not required to register under state law. - In conflict with Gould, Court held that a sex offender is able to comply with SORNA as long as a state sex offender registry exists – even if he is not required to register under state law.

48. Group of Offenders Unable to Comply with SORNA ■See SMART Guidelines Examples: 38 Fed. Reg. 38063 Make plain that sex offenders are unable to comply with SORNA if not required to register under state law. ■Make constitutional avoidance argument: if not required to register, will get no notice required under due process.

49. DEFENSE 9: No Notice of Duty to Register

50. Duty to Notify and Ensure Registration, 42 USC 16917(a) An appropriate official shall, shortly before release of the sex offender from custody, or, if the sex offender is not in custody, immediately after the sentencing of the sex offender, for the offense giving rise to the duty to register-- (1) inform the sex offender of the duties of a sex offender under this title and explain those duties; (2) require the sex offender to read and sign a form stating that the duty to register has been explained and that the sex offender understands the registration requirement; and (3) ensure that the sex offender is registered.

51. Notice – Statutory Requirement Gould, 568 F.3d 459 ■Statutory argument: Def. argued that he could not be punished for “knowingly” failing to register because SORNA has affirmative notice provision under 42 U.S.C. § 16917. Fourth Circuit rejected: held that Failure to Register general intent crime; knowledge of facts constituting crime required- not knowledge of law itself. However, in Reynolds oral argument, the Solicitor General said the following: SORNA “require[s] that any failure to register, in order to be subject to prevailing sanctions, that it be a knowing failure to register. In other words, that the offender know he has a registration requirement and know that he is complying with that requirement.” See also dissent in United States v. Vasquez, 611 F.3d 325 (7 th Cir. 2010)

52. Notice – Constitutional Due Process Gould, 568 F.3d 459 ■Constitutional Due Process: Def. argued that passive activity of failing to register cannot be punished without notice under Lambert v. California, 355U.S.255 (1957). Fourth Circuit rejected: held that as long as one has notice of duty to register under state law, no additional notice of SORNA required; he knows he is engaging is some wrongdoing. Other Circuits have held the same. ■If defendant did not have notice of duty to register under state law or SORNA, then you have good due process argument.

53. DEFENSE 10: Commerce Clause

54. Commerce Clause Gould, 568 F.3d 459, Defendant argued: ■SORNA reg. provision (42 U.S.C. 16913) violates Commerce Clause because - No Interstate Commerce Element; - No Substantial Effect on Interstate Commerce – No Economic Activity ■Failure to Register Statute (18 USC 2250(a)(2)(B)) violates Commerce Clause - No Nexus Required Between Interstate Travel and Failure to Register - No Substantial Effect on Commerce – No Economic Activity Fourth Circuit rejected both arguments: -Substantial effect on commerce because SORNA is part of larger comprehensive interstate national problem; SORNA enacted to preclude avoidance of registration thru flight across state lines: -No nexus required between travel and harm regulated. But See great dissent: United States v. Vasquez, 611 F.3d 325 (7 th Cir. 2010)

55. Commerce Clause Failure to Register Statute (18 USC 2250(a)(2)(A)) – For federal offenses: No travel requirement, yet courts thus far have upheld under Necessary and Proper Clause either: 1) because it is necessary and proper to carry out Congress’ supervisory power over federal offenders, or 2) because it is necessary and proper to effectuate Congress’ Commerce Clause power. United States v. George, 625 F.3d 1124 (9 th Cir. 2010) (pending en banc); United States v. Kebodeaux, 647 F.3d 137 (5 th Cir. 2011); United States v. Carel, __F.3d__, 2011 WL 6880674 (10 th Cir. 2011); United States v. Yelloweagle, 643 F.3d 1275 (10 th Cir. 2011)

56. DEFENSE 11: Tenth Amendment

57. Tenth Amendment: Commandeering Kennedy v. Allera, 612 F.3d 261 ■Defendant argued that by requiring him to register in a state in which he was not required to do so under state law, feds were forcing state to comply with federal law – SORNA. ■Fourth Circuit rejected argument: feds did not put demand on state to register defendant; state’s choice to reject defendant’s registration

58. DEFENSE 12: Ex Post Facto

59. Ex Post Facto (Generally) United States v. Burns, 2011 WL 970644 (4 th Cir. 2011) ■ Def. argued that requiring pre-enactment sex offenders to register results in ex post facto punishment; SORNA is punitive ■Fourth Circuit did not decide issue. Continue to preserve although no love from other Circuits.

60. Ex Post Facto - Juveniles United States v. Juvenile Male, 590 F.3d 924 (9 th Cir. 2010) ■Retroactive application of SORNA to a juvenile adjudicated delinquent prior to SORNA – ex post facto violation. Disclosure of juvenile info (historically shielded from public) is punitive – severely damaging to economic, social, psychological, and physical well being of juveniles. Beware: Supreme Court dismissed case for mootness because sex offender registration condition ended with def.’s 21 st bday, 131 S. Ct. 2860 (2011) - Still use rationale. See also United States v. W.B.H., 664 F.3d 848 (11 th Cir. 2011) (No ex post facto viol. for Youthful Offender Act conviction).

61. DEFENSE 13: Venue

62. Venue ■ United States v. Burns, 2011 WL 970644, - Def. argued that because client failed to register in Ca., Va. was improper venue for Failure to Register prosecution. - Fourth Circuit rejected arg. because travel started in Va. – travel part of offense conduct. ■ United States v. Pietrantonio, __ F.3d __, 2011 WL 869477 (8 th Cir. 2011) -Improper venue if neither travel or failure to register connected to federal district of prosecution.

63. DEFENSE 14: Dupliticious Indictment

64. Duplicitous Indictment United States v. Pietrantonio, 637 F.3d 865 (8 th Cir. 2011) - Two separate and distinct failure to register allegations cannot be charged in one count of an indictment.

65. DEFENSE 15: Affirmative Defense

66. Affirmative Defense: 18 U.S.C. § 2250 - Uncontrollable Circumstances prevented defendant from complying with SORNA; - He did not contribute to the creation of such circumstances in reckless disregard of requirement to comply; and - Complied as soon as circumstances ceased to exist.

67. DEFENSE 16: Supervised Release Conditions

68. Supervised Release Conditions Under 18 U.S.C. § 3583(d), conditions 1)must be reasonably related to goals of sentencing; 2)must involve no greater dep. of liberty than necessary to deter criminal conduct, protect the public, and provide for def.’s educ., vocational, medical, and corr. needs; vocational, medical, and corr. needs; 3)must be individualized

69. Supervised Release Conditions Conditions continued 4)must not delegate unbridled discretion to the probation officer; and 5)must not impinge on First Amendment rights.

70. Supervised Release Conditions - Conditions invalidated by courts: - Movement restrictions – no coming within 500 feet of schools, yards, parks, arcades, etc. United States v. Smith, 655 F.3d 839 (8 th Cir. 2011) - Possessing pornography in any form – United States v. Curry, 627 F.3d 312 (8 th Cir. 2010) - Possessing any material, legal or illegal, that contains nudity or that depicts or alludes to sexual activity - United States v. Simons, 614 F.3d 475 (8 th Cir. 2010) United States v. Simons, 614 F.3d 475 (8 th Cir. 2010)

71. Supervised Release Conditions - Polygraph testing ok if incriminating statements not compelled in violation of Fifth Amendment. See United States v. Talada, 2010 WL 2182204 (4 th Cir. 2010)

72. RESOURCES www.fd.org Paresh_patel@fd.org Christine_lee@fd.org Candace_Cain@fd.org (brief bank on SORNA issues)

73. GOOD SUMMARY: SMART GUIDELINES Summary of Final National Guidelines for Sex Offender Registration and Notification For Implementation of SORNA, National Conference of State Legislatures, Jan. 2009. Supplemental SORNA Guidelines, National Conference of State Legislatures, May 2010. http://www.ncsl.org