Archive for the ‘Sex Offender Registration’ Category

Neither 18 U.S.C. § 2250(a) nor SORNA exceed Congress’ Commerce Clause power.

Wednesday, November 25th, 2009

U.S. v. MYERS, —F.3d—2009 WL 3270005 (11th Cir. October 13, 2009)

The district court recently held that a defendant’s charge of §2250 (traveling in interstate commerce) and failure to adhere to SORNA’s sex offender registration requirements under 42 U.S.C. §16913 exceeded Congress’ authority and dismissed the government’s indictment. However, on appeal, the Eleventh Circuit held that the Ambert case, 561 F.3d 1202 (11th Cir. 2009) is still good law (upholding 18 U.S.C. § 2250(a) and 42 U.S.C. §16913 to a Commerce Clause challenge).

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Congress has power to regulate internet and prohibit use for harmful or immoral purposes regardless of whether purpose has primarily intrastate impact.

Wednesday, November 25th, 2009

U.S. v. Faris, 583 F.3d 756 (11th Cir. September 23, 2009)

The defendant appealed his conviction for using a facility of interstate commerce to entice a minor to engage in sexual activity and his 292-month sentence, arguing that 18 U.S.C. Section 2242(b), which prohibits using any means of interstate commerce to entice, or coerce a minor to engage in “any sexual activity for which any person can be charged with a criminal offense,” violates both the Commerce Clause and the Necessary and Proper Clause of the Constitution. The defendant contended that his internet connections, telephone calls, emails, and travel routes were confined within Florida state lines and did not affect interstate commerce.
The Eleventh Circuit dismissed this argument as “meritless” stating that “Congress has the power to regulate the internet” which is “an instrumentality of interstate commerce.” Further, the defendant argued that since the Tenth Amendment delegates to the states responsibility to regulate wholly intrastate activity, it is not necessary and proper for Congress to do so. The district court also applied a two-level enhancement for “undue influence,” which the defendant challenged, but the appellate court affirmed, because the defendant utilized his knowledge of the internet and computers to make contact with another whom he believed would supply minors for sex.

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Posted in Computer Sex Crimes, Sentencing Guidelines, Sex Offender Registration, kiddie porn, sentence enhancement | No Comments »

The defendant was not entitled to notice of District Court’s intention to impose special conditions of supervised release.

Tuesday, July 14th, 2009

United States v. Moran, 2009 WL 1874374 (C.A.11 (Fla.))

The defendant appeals his conviction of being a felon in possession of a firearm.  The court was not required to notify the defendant before it imposed special conditions to address his proclivity for sexual misconduct. Said conduct was detailed in the PSI and knew the court would likely consider his criminal history in determining his sentence.

The District court did not abuse its discretion by imposing special conditions of supervised release.

The defendant’s history and characteristics support the imposition of mental health treatment as treatment could deter future misconduct and protect the public. He was also required to register as a sex offender, limit contact with minors, restrict his access to certain media including the internet, and submit to reasonable searches. Based on defendant’s past violation of his terms of supervised release, the District court was not improper to impose special conditions

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Defendant’s conviction for sending obscene nude photos of himself to persons he believed to be young girls did not require sex offender registration as a condition of supervised release.

Monday, May 4th, 2009

UNITED STATES V. DODGE,  08-10802, (January 14, 2009.)

The defendant pled to a violation of 18 U.S.C. § 1470 for transferring obscene material to a person he believed to be a minor. Over the period of a year, the defendant interacted on internet chat-rooms with persons he took to be young girls aged 13-14 years old. On at least three occasions, Dodge either emailed photographs of himself totally nude and/or masturbating or provided a link to such photos. As part of his 18 month sentence, the district court ordered a three year supervised release and ordered Dodge to register as a sex offender “for up to life” pursuant to 42 U.S.C. § 16911(7)(I).

The Eleventh Circuit reversed the district court’s sex offender registration requirement finding that under the facts of the offense, this was not “by its nature a sex offense against a minor.” While Dodge’s actions may have been “offensive and deplorable” they lacked “any element of an unwanted sexual assault, offense, or other violation that contacts or opposes a minor’s rights.”

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No Ex Post Facto violation where statute criminalizes failure to register and not prior travel.

Monday, April 27th, 2009

U.S. v. AMBERT, 2009 WL 564977 (March 6, 2009)

The defendant was indicted for failing to register as required by the Sex Offender Registration and Notification Act. (SORNA) The Court rejected the defendant’s argument that his travel in interstate commerce occurred before the Attorney General determined that the SORNA’s registration requirements applied on February 28, 2007 to previously convicted sex offenders and therefore did not subject him to criminal liability for failing to register. The Court found the defendant traveled after February 28 and his violation was a failure to register which in his case occurred after February 28.

The Court also denied other Constitutional challenges.

The Court rejected a substantive due process challenge to the SORNA statute finding that strict scrutiny did not apply because the right of a person convicted of sex offenses to refuse registration was not deeply rooted in the nation’s history and applying the rational basis scrutiny, the registration requirement was reasonably related to the goal of protecting the public from recidivist sex offenders.

The Court also found that the registration requirement falls within the jurisdiction of the Commerce Clause. The Court found that when a sex offender travels from one state to another he is an instrumentality of interstate commerce.

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