Sex Crimes

Justice Department's SMART Case Law Update #29

As previously noted, the Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) occasionally posts updates on case law developments in the sex offender realm. You can view the latest update here. Here are some of the cases from Update #29:

U.S. v. Moran, 573 F.3d 1132 (11th Cir. 2009)

Moran had been convicted of a state-level sex offense against a 4 year-old girl in 1994. He was convicted of being a felon in possession of a firearm, and properly ordered to register as a sex offender as a condition of supervised release.

U.S. v. Pendleton, 2009 U.S. Dist. LEXIS 85347 (D. Del. Sept. 18, 2009)

Pendleton was convicted of two sex offenses: one in New Jersey in 1992, and one in Germany in 2006. He was deported to the United States as a result of his conviction in Germany and transferred his probation supervision to the State of Delaware, where he listed a particular ‘mail drop’ address as his resident address. He did not live at that address. With an interesting discussion of the authority of the SORNA final guidelines, the court held that “where a defendant uses an address as a mail drop and repeatedly holds that address out as his legal address, the defendant ‘resides’ at that address for the purposes of 42 U.S.C. §16913(a).”

Ex Parte Harbin, 2009 Tex. Crim. App. LEXIS 1206 (Sept. 16, 2009)

Harbin was convicted of four sex offenses in California, in 1988, 1994, 1995 and 1996. The Texas court held his two convictions for annoying or molesting a child (1994 & 1996) do not require registration in Texas. His other two convictions (lewd and lascivious acts with a child and sexual battery) will require registration.

Kansas v. Coman, 2009 Kan. App. LEXIS 823 (Aug. 28, 2009) (previously discussed here)

Even though bestiality was not an offense specifically listed as requiring registration, it was properly captured under Kansas’ catch-all provision as a “sexually motivated” offense requiring registration.

People v. Luansing, 176 Cal. App. 4th 676 (Aug. 11, 2009)

Where Luansing was convicted of oral copulation with a minor, it was a denial of equal protection to mandate sex offender registration, based on the decision in People v. Hofsheier, 129 P.3d 29 (2006).

People v. Nichols, 176 Cal. App. 4th 428 (2009)

Nichols was required to register as a sex offender and failed to update his resident address information, absconded from parole supervision, and his whereabouts were unknown for 8 months. He was appropriately sentenced to a three-strikes sentence, and it did not violate the 8th Amendment of the U.S. Constitution.

Polanski Loses First Bid For Release

Roman Polanski lost his first bid for release from a Swiss jail while he awaits a formal request for extradition by U.S. authorities. The Wall Street Journal has more. From the WSJ Law Blog:

Polanski on Tuesday lost his first appeal to be released from a Swiss jail while the U.S. prepares its formal request for extradition. (How long does it take to prepare a formal extradition request, anyway?) 

The ruling was prompted by a request last week by Polanski’s lawyers to allow him to be held under house arrest while the situation developed. Polanski’s house arrest isn’t, as you might imagine, the house arrest of your average Swiss commoner — Polanski had requested to chill out at his ski chalet in Gstaad, a tony Swiss resort town.

In any event, the Swiss Justice Ministry rejected the request on fears that Polanski might flee — as, mais bien sur, he’s done before.

According to the WSJ, Polanski has one more chance to secure his release while his fate is decided. Last week, his lawyers filed an appeal with a Swiss federal criminal court to release him.

NYT: Why Arrest Roman Polanski Now?

With the recent arrest of fugitive film director Roman Polanski, the New York Times has an article asking: why now?  Polanski, who resides in France, was arrested in Switzerland where he owns a home and frequently visited. From the article:

The sudden move by Swiss authorities to arrest Roman Polanski for possible extradition to the United States after 31 years as a fugitive — and countless visits to Switzerland in the interim — has roused diplomats, offended supporters of the filmmaker and left more than a few onlookers asking themselves the same question: Why now?

Law enforcement officials here have said it was a simple matter of opportunity. 

But supporters of Mr. Polanski have said that this has been true many times since he fled the United States in 1978 to escape sentencing in a sex-crimes case involving a 13-year-old girl.

Piqued by claims that it had not pursued Mr. Polanski in the past, the district attorney’s office circulated a list of actions and queries by which it had monitored his travels in at least 10 countries, including what appeared to be a near miss, when officials relayed a request for information from Israel about a visit in 2007. “Polanski had left Israel and was not arrested,” by the time the information arrived, said the advisory.

Mr. Polanski’s lawyers, in an appellate court filing in August, said the district attorney’s office had avoided attempts at extradition, which might have resulted in hearings at which judicial misconduct would have been raised as an issue.

Side Effects From The Philip Garrido Case

The AP has an interesting new article discussing the impact the Philip Garrido case is having on California's sex offender policy. The Huffington Post has more. From the article:

After being locked away for 25 years for sex crimes, Donald Robinson moved to a little block of unassuming homes in this city on the San Francisco Peninsula on Aug. 27.

The timing couldn't have been worse. It was the day after Philip Garrido was arrested just 40 miles away on charges that he kidnapped 11-year-old Jaycee Lee Dugard and held her captive for 18 years despite his long criminal record as a sex offender.

Robinson's case underscores just how hard it is for the government to move sex offenders back into society, especially at a time there is widespread outrage over the Garrido case and the missed opportunities to catch him.

H/T: Sentencing Law & Policy.

Girl Held Captive Since 1991, Had Two Kids with Captor

CNN has a tragic story of a young girl who was kidnapped and had two children with her alleged kidnapper in a secret backyard shed. The accused man is also a registered sex offender. From CNN:

The 18-year mystery of what happened to Jaycee Dugard ended this week when a sex offender admitted to corrections authorities that he abducted her.

Jaycee was abducted from South Lake Tahoe in June 1991, said Fred Kollar, undersheriff of El Dorado County. The case began to unfold when the sex offender, Phillip Garrido, 58, was stopped and questioned by campus police at the University of California at Berkeley.

With him were two children and a woman identified only as Alissa, who DNA tests later revealed was Dugard, now 29. The children were later determined to be Garrido's and Dugard's, Kollar said.

During questioning by a parole officer, Garrido admitted to having abducted Dugard and said the two children were his, said Scott Kernan, undersecretary for the California Department of Corrections and Rehabilitation. VideoWatch police talk about why they arrested Garrido »

Garrido and and his wife, Nancy, were taken into custody and held at the jail in Concord, California. An officer at the jail said the two had been booked and were ordered held on $1 million bail. They are now being held in El Dorado County, according to public records.

Justice Department's SMART Case Law Update #27

As previously noted, the Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) occasionally posts updates on case law developments in the sex offender realm. You can view the latest update here. Here are some of the cases from Update #27:

Doe v. Keathley, 2009 Mo. LEXIS 131 (June 16, 2009)

Petitioners were all convicted of sex offenses prior to any sex offender registration requirement for said convictions.  The court held that 42 U.S.C. §16913(d) applies directly to these state-convicted petitioners (and at least one military-convicted offender) and directly imposes a registration requirement on them.  Because of this direct application of federal law, the court held that there are no State Constitutional concerns, and that the petitioners were required to register.  A previous decision from the Missouri Supreme Court, Doe v. Phillips, 194 S.W.3d 833 (Mo. 2006), had prohibited registration for anyone convicted for conduct prior to the enactment of Missouri’s sex offender registration scheme based on Missouri’s Constitution.
 
Doe v. Massachusetts, 2009 Mass. App. LEXIS 724 (June 5, 2009)
 
Doe was convicted of two sex offenses in 1984 and was incarcerated for a year.  In 2005 he was classified as a level two sex offender based exclusively on those two convictions.  The court held that he was entitled to a hearing as to his level of current dangerousness, so as to determine if he should be required to register as a sex offender.
 
State v. Germane, 2009 R.I. LEXIS 68 (June 2, 2009)
 
In rejecting Germane’s challenges (due process, separation of powers, and ex post facto) to the registration and notification law, the Rhode Island Supreme Court engaged in a lengthy and helpful discussion of the legal issues at hand, including how the state utilizes the STATIC-99.

State v. Durrett, 2009 Wash. App. LEXIS 1285 (June 1, 2009)

Durrett was a homeless sex offender who was required to report weekly to the sheriff’s office for registration purposes.  There were two separate weeks where he failed to register.  He could only be prosecuted for one count of failure to register, as they constituted only one unit of prosecution.
 
White v. Dexter, 2009 U.S. Dist. LEXIS 46360 (May 20, 2009)

Making some factual distinction between this petitioner in this case and the one in Gonzalez v. Duncan, 551 F.3d 875 (9th Cir. 2008) (holding an imposition of a “third-strike” sentence as cruel and unusual punishment for a failure to register conviction), the court denied White’s Habeas petition.

People v. Ranscht, 173 Cal. App. 4th 1369 (May 15, 2009)
 
Ranscht was convicted of one count of sexually penetrating a minor.  Because he was similarly situated to an offender convicted of unlawful sexual intercourse—the only distinguishing factor between the offenses being the nature of the intent which must be proven—it was a denial of equal protection to require him to register as a sex offender.  An ‘unlawful sexual intercourse’ conviction in California makes the requirement to register discretionary, rather than mandatory.
 
State v. Payan, 765 N.W.2d 192 (Neb. 2009)

Nebraska has a procedure by which a person can be deemed to have committed an “aggravated offense”, which requires lifetime registration.  That determination is one that is made by the trial court judge.  The court held that the Court’s determination is sufficient for making a determination regarding registration, as that is civil in nature.  However, relying on the Apprendi case (Apprendi v. N.J., 530 U.S. 466 (2000)), the court held that the determination regarding community notification was punitive in nature and required a jury determination that an offender, in fact, committed an “aggravated offense.”

Justice Department's SMART Case Law Update #26

As previously noted, the Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) occasionally posts updates on case law developments in the sex offender realm. You can view the latest update here. Here are some of the cases from Update #26:

Delaware v. Fletcher, 2009 Del. LEXIS 250 (May 27, 2009)

The two petitioners in this consolidated case had been ordered to register based on juvenile adjudications for sex offenses.  Each successfully completed their periods of probation, and asked for an expungement of their convictions, and a termination of their juvenile registration requirement.  The Court held that their convictions could be expunged even though they had been required to register as sex offenders, and that once those convictions were expunged, they were no longer required to maintain their sex offender registration.
 
Tobar v. Kentucky, 2009 Ky. LEXIS 81 (May 21, 2009)
 
Petitioner had properly registered as a sex offender through a series of moves, but failed to notify Kentucky when he left a shelter and became homeless.  He was properly convicted of failure to comply with his sex offender registration requirements.
 
Doe v. California Department of Justice, 173 Cal. App. 4th 1095 (May 7, 2009)
 
Petitioners had successfully had their names removed from California’s public sex offender registry website via a special statutory procedure in 2005.  In 2006, the law was changed to require that they be posted on that public web site.  Their civil suit claiming equitable estoppel and ex post facto violations was dismissed.
 
U.S. v. Pomani, 2009 U.S. Dist. 44503 (D. S.D. March 11, 2009)

Pomani was adjudicated delinquent in federal court of an offense which occurred on tribal lands, namely, an offense similar to abusive sexual conduct (per the opinion, 18 U.S.C. 2241(c)).  The court held that juveniles adjudicated of this offense are required to register by SORNA, failing to take in to account that SORNA’s Final guidelines removed the registration Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) Office U.S. Department of Justice/Office of Justice Programs requirement for juveniles adjudicated delinquent of 2241(c).  Having held that Pomani was required to register, the court affirmed his conviction.  
 
Miller v. McCormick, 605 F. Supp.2d 296 (D. Me. 2009)
 
Where petitioner had been admitted to the section 8 home ownership program, he could not be thereafter terminated because he was a lifetime registered sex offender.  There is a ban in place for admission to the program for such offenders, but should an offender somehow avoid the ban, they cannot be terminated.  

Justice Department's SMART Case Law Update #23

As previously noted, the Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) occasionally posts updates on case law developments in the sex offender realm. You can view the latest update here. Here are some of the cases from Update #23:

Hansen v. Marr, 2009 U.S. Dist. LEXIS 5239 (D. Neb. January 26, 2009)

Petitioner filed a Habeas Petition, claiming that he was “in custody” for Habeas purposes because he was required to register as a sex offender.  The court disagreed, stating that “where sex offender registration statutes are remedial, rather than punitive, the registration requirements…do not satisfy the ‘in custody’ requirements” for a Habeas Petition.

Ward v. Tennessee, 2009 Tenn. Crim. App. LEXIS 43 (Jan. 14, 2009)

In this Habeas petition, the court found that the requirement to register as a sex offender is a collateral consequence of the underlying criminal conviction. The trial court did not commit plain error by failing to advise him of the requirement.

People v. Mosley, 168 Cal. App. 4th 512 (Nov. 19, 2008)

Mosley was convicted by a jury of assault, but acquitted at trial of committing a sex offense against a minor.  The trial court, based on its own fact-finding, ordered him to register as a sex offender, and thus submitting him to the residency restrictions in place in California.  The Court of Appeals held that the residency restriction is punitive (per Mendoza-Martinez) and, therefore, Apprendi requires a hearing where facts supporting the imposition of the residency requirement are proven beyond a reasonable doubt to a jury.

Scaring Johns Straight

Police in Los Angeles are testing an interesting new program designed to reduce the solicitation of prostitutes. The program allows first-timers to avoid a conviction for soliciting prostitutes, if they take are willing to be yelled at and lectured for eight hours. Sentencing Law & Policy has more.

It's not jail, to be sure, but john school is no joke. For eight hours, the men are yelled at, pleaded with and lectured. One weary-looking john, who says he has come straight from a night shift at work, receives a firm shake from Margolis every time he nods off and eventually is told to stand up to stay awake. Each presentation is aimed at either scaring them straight with all the terrible things that can be inflicted upon a john or opening their eyes to the ugly realities of the sex-for-money industry. It's not meant as a feel-good therapy session or an opportunity to explain away bad decisions, so there is no give-and-take in the class. The johns are not allowed to ask questions or speak. They sit and listen.

U.S. v. Valverde Roundup

Last week, I blogged about U.S. v. Valverde, the Eastern District of California decision that dismissed a SORNA indictment on Commerce Clause grounds. Afterward, the Sacramento Bee published an article about the opinion. Unfortunately, it misstates the legal landscape concerning Commerce Clause challenges:

In only the third such ruling in the nation, a Sacramento judge has found to be unconstitutional a statute that makes it a federal crime for someone to fail to register as a sex offender and relocate from one state to another.

That's the first sentence of the article and it is completely wrong. As I mentioned in my previous post, there are seven such opinions. The article continues:

At least 18 district judges have upheld SORNA, while only two others have found it is at cross-purposes with the commerce clause. Of the 12 federal appellate circuits, only two – the 8th and 10th – have addressed the issue, and both upheld the statute.

Thus, the article repeats the error of the first sentence. While it included the "[a]t least" language, the number 18 far understates the opinions that have found SORNA to be justified under the Commerce Clause. As noted in last draft of my article, at least eighty-eight courts have rejected all constitutional challenges to SORNA prosecutions and most of those considered Commerce Clause claims.

In response to the article, both Sentencing Law & Policy and The Faculty Lounge had posts about the case.

My colleague, Steve Schwinn at ConstitutionalLawProf, also recently covered the SORNA and Commerce Clause issues.