11th Circuit Issues a Puzzling SORNA Opinion

There has been a lot of federal appellate court action in relation to SORNA lately (I'll be covering the 8th Circuit's notable Howell opinion later today). Normally, the cases go in favor the government. However, when the defendant wins at the district court level, the basis is usually the lack of federal jurisdiction or an Ex Post Facto Clause issue. The 11th Circuit, in a split decision, in U.S. v. Dodge, issued an opinion in favor of the defendant that I can't make much sense of. From the opinion:

After pleading guilty to a violation of 18 U.S.C. § 1470, for transferring obscene material to a minor,1 Matthew Mason Dodge (“Dodge”) appeals from the part of the district court’s judgment that requires him to register as a Tier I Sex Offender under the Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. § 16911. We reverse. Although Dodge transmitted obscene material to persons he believed to be minors, he did not engage in conduct that constitutes a “sex offense against a minor,” 42 U.S.C. § 16911(7)(I)(emphasis added), as we understand that phrase. Although we do not adopt Dodge’s construction of SORNA, we conclude that we are unable to distinguish Dodge’s behavior from other behavior, involving distributing obscene material, that would support a conviction under 18 U.S.C. § 1470, but would not require Dodge to register as a sex offender. Accordingly, Dodge also cannot be required to register.... Additionally, reading “other criminal offenses” to include federal offenses, such as 18 U.S.C. § 1470, as suggested by the government, would turn the language “State, local, tribal, foreign, or [specified] military offense” into meaningless surplusage thereby further complicating an attempt to provide a correct and coherent interpretation of the provision. For reasons given below, however, we do not need to decide this issue of statutory interpretation because, even if we assume that non-enumerated federal offenses, including violations of 18 U.S.C. § 1470, may qualify as “other criminal offenses,” Dodge still is not required to register.... The government, on the other hand, encourages us to reject a categorical approach here, noting that the language in subsection (7)(I) calls for determining the “conduct” of the defendant in question, not the “conviction,” as was the case in Shepard. Id. Such a non-categorical approach was recently used by the 9th Circuit in United States v. Byum, 539 F.3d 982, 992 (9th Cir. 2008),9 where that Court concluded that, “the best reading of the statutory structure and language is that Congress contemplated a non-categorical approach...." Nonetheless, we do not have to decide whether or not to take a categorical approach to reading the statute. This is because even if we do not adopt a categorical approach requiring all violations of 18 U.S.C. § 1470 to be sex offenses against a minor in order to require registration, we still must be able to articulate a principled statutory basis for requiring registration for some violations of 18 U.S.C. § 1470 but not for others. Here, even if we agree with the government, and examine Dodge’s underlying conduct in this case, we are unable to distinguish Dodge’s conduct from conduct that would also support a conviction under 18 U.S.C. § 1470 but which would not require registration under SORNA because such conduct is not “by its nature a sex offense against a minor,” as required by subsection (7)(I).

I apologize for the long block quote, but I wanted to give a fair sampling of the opinion since I am critical of it. I don't know how the 11th Circuit can say it is not deciding the categorical approach issue if it doesn't evaluate the specifics of the crime to determine if it is a "sex offense against a minor." In Byun (which is the proper spelling according to my records) the 9th Circuit case cited by the 11th Circuit as Byum, the court determined a person convicted of the importation of a person for prostitution should have the registration obligations evaluated on a non-categorical basis. Based upon the facts of that case, the crime was considered to be against a minor because juveniles were involved. In deciding this case, the 11th Circuit seems to have adopted a categorical approach without explicitly stating so.

Even beyond that initial decision, I'm not sure I follow the court's reasoning that the defendant's acts would not be a crime against a minor. Most of the attempted federal sex crimes cases these days involve stings where there is no "real" child involved. Yet, I would be amazed if persons convicted of those crimes were not intended to be subject to the registration requirements of SORNA. I think the dissent has the much better argument in this case:

Importantly, the Ninth Circuit concluded that SORNA permitted a noncategorical approach with regard to the age of the victim as applied to a “specified offense against a minor.” 539 F.3d at 991. In doing so, the court contrasted the language of § 16911(5)(A)(i), which defines a sex offense as having “an element involving a sexual act or sexual contact with another,” with the language of § 16911(5)(A)(ii), which definition of “specified offense against a minor” contains no reference to the crime’s elements. Most critically, one statutory definition of “specified offense against a minor” is “[a]ny conduct that by its nature is a sex offense against a minor.” 42 U.S.C. § 16911(7)(I) (emphasis added). Thus, the court concluded that for SORNA purposes, it is the underlying conduct that matters and not the elements of the conviction statute. Although it noted that the statute creates a “modicum of ambiguity” given the use of the word “convicted” at the outset (as opposed to the term “conduct”), the court determined that the “best reading of the statutory structure and language is that Congress contemplated a non-categorical approach as to the age of the victim in determining whether a particular conviction is for a ‘specified offense against a minor.’” Byun, 539 F.3d at 992. The court also noted that SORNA’s legislative history “fully support[ed] this conclusion.” Id. at 992-93.... Like the Byun circumstances, Dodge’s plea reveals the underlying facts supporting his conviction. Dodge transmitted nude photos of himself, including some of him masturbating, to girls he thought were 13 years old. Dodge also used a web camera to broadcast himself masturbating. In my view, a 34-year-old man using a web camera to broadcast sex acts to a 13-year old girl clearly constitutes “criminal sexual conduct involving a minor” or “conduct that by its nature is a sex offense against a minor.” 5 Thus, the non-categorical approach requires the registration of Dodge’s crime as a “sex offense” under SORNA even if other conduct chargeable under 18 U.S.C. § 1470 would fall outside SORNA’s reach.

This case seems like a good candidate for en banc rehearing. The 11th Circuit needs to take a clearer stance on whether it is taking a categorical approach to crimes under SORNA and it needs to clean up the reasoning of the panel decision.

Comments

[Daniel]

What a think the court is trying to say (as I read it) is that while a person does not have to be a real minor in determining whether or not a crime was committed, a person has to be a real minor in terms of registration. If one accepts a distinction between law and conduct, then it would seem that for the same underlying conduct a fake minor would be enough for the predicate offense but not for the registration requirement.

I'm not sure I buying that logically because if it's good enough for the original offense on what basis is the court saying its not good enough for the registration requirement. The same minor is fake one place but not the other? It's an interesting twist of logic. It might be right, but it certainly is counterintuitive.

[Daniel]

Corey. You might wish to read Byun again. The discussion was whether or not to take a categorical approach in regards to the question of whether or not the sex crime happened to a *minor*. It never addressed the issue of whether or not a non-categorical approach was necessary for the other criterion listed under 42 U.S.C. § 16911(7)(I). The reason the court did not address the issue of category and sex crime in Byun is because, “We conclude this offense was a “specified offense against a minor,” and thus qualifies as a sex offense under § 16911(5)(A)(ii). Because we hold Byun committed a sex offense under §16911(5)(A)(ii), we do not address whether Byun’s crime qualifies as a sex offense under §16911(5)(A)(i) (“a criminal offense that has an element involving a sexual act or sexual contact with another”)” Because of this, the dissent in Dodge reliance on Byun is misplaced. It treats the holding there to be much broader in scope than it actually is. And because of that misreading, it misunderstand the logic of the majority opinion.

Under 42 U.S.C. § 16911(7)(I) there must have been a “sex offense against a minor.” Thus, the majority reasons, for the registration requirement to attach three criterion must be met: (1) The person much have committed a sex offense; (2) that sex offense must have involved a minor, and further (3) that sex crime must have been against a minor. (note: Byun only addressed (2) in this series). The court need not address the issue of whether or not a categorical or non-categorical approach need be taken in regards to “sex crime” or “minor” because the court holds that the conviction at hand wasn’t *against* a minor. "Dodge’s actions, offensive and deplorable though they may be, lack any element of an unwanted sexual assault, offense, or other violation that contacts or opposes a minor’s rights." Thus, even if the majority were to accept the dissent’s reasoning and conclude that as a matter of conduct a sex offense involving a minor took place, it still wasn’t against a minor.

As a matter of legal philosophy, I don’t agree with the majority. But it is logical. And it shows the dangers of taking an non-categorical approach. Because if one is going to claim that there needs to be a non-categorical approach to “sex offense” and a non-categorical approach to “minor” then there is, as the majority notes, no “principled statutory basis” for not treating the word “against” in a non-categorical way as well. And when you look at the underlying conduct, it’s difficult to argue that it was “against” a minor even if the law treats it as such.