A helpful reader forwarded this to me and it provides another example of the act being applied retroactively:
The case against Sawn resulted from the interagency cooperation that Pike, Fallon and Burnett say has been the key to new efforts against sex offenders.
Stakeouts and chases are part of the picture, but much of the effort has been more routine -- building communication links, setting up new procedures to run checks on people brought into custody to see if they're supposed to be registered as sex offenders.
In January, federal investigators say, Sawn left New York and moved to Lynchburg. New York police, who were alerted when he didn't make his scheduled update to his sex offender registration, tracked him to an apartment, but he had already moved on. He had not contacted Virginia authorities to register as a sex offender.
Sawn's capture came after a Virginia game warden found him fishing on private property, according to court filings. Sawn was searched, and a bag of marijuana was found. He gave a false name and fled.
But just over a week later, on April 7, four game wardens tracked him down at the Timberlake Motel in Campbell County. Court filings say Sawn told the wardens he had run because he was wanted in New York for failing to update his registry information.
In May, he was convicted in Bedford County of possessing marijuana, falsely identifying himself and obstructing justice. His registration issues were left to federal authorities.
Critics of the Adam Walsh Act say it should be up to states to prosecute sex offenders who don't meet registration requirements.
Like others around the country, Sawn's case falls into an apparent gray area in the act, which is its requirements for offenders who, like Sawn, committed a sex offense before the act was approved.
Larry Shelton, the federal public defender who is representing Sawn, argued in a motion to dismiss the case that the Adam Walsh Act didn't apply to Sawn at the January date when he is accused of moving and not registering. Shelton's argument is that the act assigns the U.S. attorney general to issue regulations about how the Walsh Act would be applied to this group of offenders, and the attorney general did not do this until the end of February.
Assistant U.S. Attorney Craig Jacobsen has a different interpretation of the attorney general's role, saying in his response to Shelton's filing that the act gave a much narrower direction to create procedures only for offenders whose crimes had not previously required them to register.
In June, a federal judge in West Virginia was convinced by an argument like Shelton's and dismissed an Adam Walsh Act case.
But last month, Judge Norman Moon rejected a similar argument in the case of another man charged under the Adam Walsh Act. He was following the lead of the senior federal judge for the Western District of Virginia, who was not convinced when the argument was made in Hinen's case.
All three judges are part of the federal 4th Circuit, and the appellate court may eventually resolve the discrepancy.
Similar inconsistencies are cropping up across the country, Noonan said, although none has yet reached the federal appellate courts, much less the U.S. Supreme Court. Other issues that defense attorneys have tried to raise with the Adam Walsh Act include whether the federal government properly has jurisdiction over sex offender registry issues, or whether the act unconstitutionally adds retroactive criminal penalties.
Sawn's jury trial has already been removed from the docket. Tuesday's court date, originally a session for the judge to hear arguments about whether to dismiss the case, now has a schedule note that a conditional guilty plea may follow.
Given that the regulations by the Attorney General weren't available to Sawn on the date he moved, it is a pretty hard sell that he should have known the Act would be applied retroactively (even though an expert in the area would have seen it coming). The burdens being put on sex offenders to figure out a complex area of law are pretty unique under the AWA. And it seems as though these growing court splits will require Circuit court resolutions, and possibly intervention by the United States Supreme Court.
In the next month, I hope to do a major update on my Adam Walsh Act resources as I hope to get going on my article on the subject. So, if any practitioners out there (or other interested parties) want to see anything in particular regarding the Act on this site, please email me.
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