|Sex Offenses News
|In a case with potentially far reaching consequences, Chief Judge James E.
Shadid of the Central District of Illinois granted a motion to suppress,
which has implications for any case where the KFF Child Pornography Filter
is used when electronic media are examined by agents using FTK Software.
FTK Software is used by government agents to categorize and organize
electronic files on seized electronic data storage devices. When running
this application, agents may choose to run the KFF Child Pornography
filter, which compares hash values for files on the device being searched
to a known database of child pornography hash values. If a match occurs,
the filter creates an alert for child pornography.
In this case, the agents
obtained a warrant to search for evidence of passport fraud, identity
theft, and harboring an alien. After computers and other electronic storage
devices were seized from an apartment, agents began to examine the devices
using FTK Software. Although the offense did not involve allegations
related to child pornography, the agent enabled the KFF Child Pornography
Alert when running the FTK Software. When the software alerted to files of
suspected child pornography, the agent opened the alerted files, confirmed
they contained child pornography, and then sought a new search warrant.
Chief Judge Shadid first held that the use of the KFF Child Pornography
filter in this case unconstitutionally expanded the scope of the warrant.
Where there is no allegation of child pornography, the use of the filter
constitutes a deliberate expansion of the scope of the warrant. Secondly,
after the child pornography files were identified by the KFF Filter, the
agent knew or should have known that those files would be outside the scope
of the warrant to search for evidence of passport fraud or identity theft;
therefore, he should have at a minimum sought a new search warrant before
opening the files. Finally, the court rejected the government's argument
that the files were in "plain view" or would have been "inevitably
discovered." Regarding plain view, the court noted that the plain view
doctrine requires an officer to be where he has right to be when he
observes the evidence in plain view and the discovery must be inadvertent.
Here, the agent's affirmative act of enabling the KFF Child Pornography
filter precluded a finding of inadvertence. Regarding inevitable discovery,
the court noted that although a manual search of all the files might have
been theoretically possible, such manual searches are impractical in the
average case. Here, the agent testified that a manual search would have
been impossible to perform within the constraints of the Speedy Trial Act
with the manpower available. Accordingly, the court suppressed the evidence
of child pornography, finding that the use of the KFF Filter
unconstitutionally exceeded the scope of the warrant.
|The en banc Fifth Circuit (11-5) invalidated a conviction under 18 USC 2250(a)(2)(A) where defendant completed his sentence (for consensual sex with a 15-year-old) seven years earlier (before SORNA was enacted) and failed to update his registration when he moved from one city to another in Texas. Congress has no power under the Necessary and Proper Clause or the Commerce Clause to require a person to update a registration under these circumtances.
"Absent some jurisdictional hook not present here, Congress has no Article I power to require a former federal sex offender to register an intrastate change of address after he has served his sentence and has already been unconditionally released from prison and the military. . . . This finding of unconstitutionality . . . does not affect the registration requirements for (1) any federal sex offender who was in prison or on supervised release when the statute was enacted in 2006 or (2) any federal sex offender convicted since then. Instead, it applies only to those federal sex offenders whom the government deemed capable of being unconditionally released from its jurisdiction before SORNA's passage in 2006."
The opinion includes lots of discussion of Comstock, some discussion of Carr, and brief mention of Reynolds.
Congratulations to Carolyn Fuentes!
|AO Assistant General Counsel's position on restitution in child pornography cases.
Attached is a memo prepared by AO Assistant General Counsel Joe Gergits
regarding the restitution issue in child pornography possession cases. 8/2009
|Updated Deconstruction of Child Porn Guideline & great ABA Journal article
A new version of Troy Stabenow’s paper is posted here. http://www.fd.org/pdf_lib/child%20porn%20july%20revision.pdf. The Table of Amendments is included in the paper and also available as a separate link here. http://www.fd.org/pdf_lib/child%20porn%20amendment%20table.pdf.
See this ABA journal article, which does a good job discussing the issues around the child porn guideline, and features Troy Stabenow and several judges. http://www.abajournal.com/magazine/a_reluctant_rebellion/
Civil Commitment Win on the Merits
See attached opinion, in US v. Carta, after a bench trial in D. Mass. “After considering the testimony at trial, the evidentiary record, and Parties’ submissions, this court concludes that the Government has failed to establish by clear and convincing evidence that Respondent currently suffers from a serious mental illness, abnormality, or disorder as required by the Act.” Congratulations to Page Kelley, Ian Gold, Tamara Fisher.
AG Holder has issued a one-year extension to all jurisdictions for the implementation of the Adam Walsh Act’s Sex Offender Registration and Notification Act (SORNA). For a copy of the Order go to: http://www.ojp.usdoj.gov/smart/pdfs/sornaorder.pdf.
|Attached are three studies by Richard Wollert, Ph.D. Here's his website: http://www.richardwollert.com/.
1) The first is a paper that debunks the 2000 version of the Butner Study. This paper is unpublished at the moment; it will be updated and published but it will take time. Nonetheless, Dr. Wollert gave me permission to distribute it.
"The following results were obtained from the treatment and offense histories of a cohort of 41 men who participated in a federally-funded outpatient treatment program after they were charged with or convicted of PCP. They show that Hernandez’ conclusions are unjustified and are probably attributable to an artifact known as 'researcher demand characteristics.'”
"[O]ne out of 41 subjects was taken into custody for possession of child pornography. None of the subjects on active supervision were taken into custody for the commission of a contact sex offence and none of the subjects who had successfully completed their supervision were charged with a contact sex offense. Only one subject who successfully completed two years of supervision subsequently violated his supervision conditions."
2) The second study deals with the issue of age and sexual recidivism.
3) The third study deals with the issue of the poor reliability of most paraphilic diagnoses.
|District of Massachusetts Judge finds federal SDP civil commitments statute unconstutional. OPINION AND ORDER February 27, 2009
|White House Memorandum in regards to Regulatory Review.
|United States District Court Eastern District of California United States of America.
Plaintiff, v. Order Mark Anthony Valverde, Defendant.
|In the United States Court of Appeals for the Eleventh Circuit United States of America
Appellant, v. Jones, Appellee
|SORNA updates 2/2009
I thought everyone might like to know that the Fourth Circuit ruled today in our 18 USC 4248 case. In a unanimous panel decision released today, the Fourth Circuit Court of Appeals struck down 18 U.S.C. 4248, which authorized the indefinite civil commitment of individuals whom the BOP deemed "sexually dangerous." Specifically, the Fourth Circuit, relying heavily on United States v. Morrison and United States v. Lopez, upheld the district court ruling which stated that Congress lacked the enumerated power to encroach on the general mental health and police powers reserved to the states. This opinion represents the first circuit opinion to rule on the Constitutionality of 18 U.S.C. 4248, an issue which has thus far divided the district courts that have addressed it.
Special praise goes to our team of AFPD Jane Pearce who argued the case in the Fourth Circuit and Research and Writing Attorneys Eric Brignac and Lauren Brennan who helped Jane write our brief, and AFPDs Alan DuBois and Joseph Ross and a bunch of other staff members who participated in moots, etc. This is our office's biggest appellate victory since I have been the Defender. The opinion is attached.
Tom McNamara 1/2009
|Attached is a very brief (seven paragraphs - you can do it) summary of a new email series SRC is going to be sending out. The bottom line is that once you've deconstructed your guideline, you need to have something take it's place - a sentence justified by something else. The summary below explains the something else. (Big thanks to Sara Noonan who has become quite facile with this enormous body of literature.) 9/2008
|AFPD Vionnette Johnson just got a decision in US v. Farley from Judge Martin, ND GA, holding that the 30-year mand min under 2241(c) violated the 8th amdmt in this case, where the D was convicted of crossing state lines with intent to engage in a sex act with a (fictitious, as usual) minor.
The judge also analyzed the leg history, and thinks Congress probably intended the 30-year mand min only for sex acts with children.
Attached is the really excellent decision, and Vionnette's excellent motion and a 50-state chart of punishments for sexual abuse and attempted sexual abuse. 9/2008
|Law Review Article on SORNA. Professor Corey Yung, who runs the sex crimes blog (god love him), has posted a draft article about SORNA to SSRN, available here http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1193871 8/2008
|Attached is an order from a judge in Georgia indicating that she thinks the 30-year mand min for traveling across state lines with intent to engage in a sexual act with a person under 12, may violate the 8th amendment, and also that Congress may not have intended for this to apply to this part of 2241(c), but only to actual child sexual abuse. On the 8th amendment issue, the judge points out that the stat max for crossing state lines with intent to commit murder is 10 years.
Vionnette Johnson is litigating the case. 7/2008
|Attached is an order from Judge Cardone, W.D. Texas, holding that the Adam Walsh Amendments mandating pretrial release conditions for defendants charged with certain sex offenses, including failure to register, violate the (1) Due Process Clause of Fifth Amendment (facial challenge), and (2) Excessive Bail Clause of Eighth Amendment (as applied). 7/2008
|The Final Guidelines for SORNA have been released by DOJ's SMART Office. These are the guidelines that states, territories, and tribes that opt out of state systems are supposed to use in passing and implementing SORNA compliance legislation by July 2009.
The link to the Final Guidelines is: The National Guidelines for Sex Offender Registration and Notification - Final Guidelines, July 2008
Other related documents released by the SMART Office are:
Significant Changes to the SORNA Guidelines
Juvenile Offenders Required to Register Under SORNA: A Fact Sheet
The SMART Office held a Q and A session about the Final Guidelines in D.C. last week and will do the same at their upcoming Symposium in Baltimore on July 30 - August 1. Registration for the symposium is now closed, but if you'd like to see more about it, go to: http://www.ojp.usdoj.gov/smart/symposium.htm.
Most states and jurisdictions are still grappling with whether or not to implement the SORNA. There are currently about eight states that have passed SORNA compliance legislation, none have yet received "substantial compliance" certification from the SMART Office, some have been turned down, and many are considering challenging or not implementing.
There have been successful legal challenges to aspects of SORNA implementation, e.g. in Ohio, Nevada, and Montana. 7/2008
|Attached is a great memo put together by Ali and others in Hawaii, where they scraped together everything they could find on the leg history of the civl commitment part of Adam Walsh, to show that Congress had in mind really really dangerous a violent people, of which there probably aren't that many. 7/2/2008
The SMART Office, today, finally released the final Sex Offender Registration and Notification ACT (SORNA) Guidelines. These are the guidelines that explicate the Adam Walsh Act's sex offender registration and notification provisions. They can be found at:
|The District of Montana became the second court (after M.D. Fla.) to find that SORNA exceeds Congress's authority under the Commerce Clause. Congratulations to John Rhodes on this great victory!
|The attached chart is very important because it shows that SORNA has not been "implemented" -- meaning both enacted by the state and approved by DOJ's SMART office -- in any state (and also that it is more costly to implement than not to, so states are considering declining).
This means that no one can be prosecuted for failure to register under 18 USC 2250 at the moment. They can only be prosecuted (if required under existing state law) for a misdemeanor under the Wetterling Act.
Attached is a brief by Paresh Patel that does a very good job making this argument. It's a winner, or should be. 4/2008
|AFPD Stellio Sinnis in D Mass reports that the government has agreed to withdraw the "sexually dangerous person" certification it filed against Stellio's client. Stellio had been pushing the government to withdraw the certification since the Dowell decision came down. US v. Dowell was the nation's first federal "sexually dangerous person" trial and a great victory for AFPD Julia Summers out of the WD of Okla (see pleadings posted on the Adam Walsh resources page at www.fd.org). Stellio pointed out that his client fit nicely into the facts of that case in that the client's sex offenses were old (the most recent one was in 1984), he had spent considerable time on the street since then without committing new sex offenses, and his release violations had all been for minor parole violations. As a result of Stellio's excellent arguments (and tenacity), he finally convinced the government not to wait for the inevitable loss at trial, and the BOP will be releasing his client tomorrow.
The fact that the government even tried to have this person civilly committed should remind us of the dangerous overbreadth of the statute. Congratulations, Stellio -- well done!!!
|Another fail to register win for Ian Lewis, AFPD, Western District of Missouri. Nugent Order Granting Acquittal. 4/2008
|Adam Walsh Discovery Win. District Court declared Section 3509(m) in violation of Due Process Clause & Sixth Amendment. Attached. 3/2008
|AFPD Pete Kenney, MD Fla., just won a dismissal of a Failure to Register complaint by carefully checking the statute and the records of the prior offense.
The client was adjudicated delinquent when he was 14 for sexually abusing a young child, but Pete learned the offense was committed when the client was 13. Under 42 USC 16911(8), a juvenile adjudication does not count if the defendant was under the age of 14 when the offense was committed (or if the offense was not "comparable or more severe than aggravated sexual abuse" as described in 18 U.S.C. § 2241).
Attached is the criminal complaint and the government's motion to dismiss which was immediately granted. 11/2007
|Another SORNA win. AFPDs Shannon O'Connor and Dina Abel in D. Nebraska just won another failure to register case, decided by Chief Judge Bataillon. Attachment 11/2007
|New Sex Offender Study
This study by Human Rights Watch, No Easy Answers, Sex Offender Laws in the US , http://hrw.org/reports/2007/us0907/ , focuses mainly on registration requirements but should prove useful to arguments about all aspects of Adam Walsh. 9/2007
|New Adam Walsh materials. 9/2007
On http://www.fd.org/odstb_AdamWalsh.htm you will find a newly very well-organized collection of materials, thanks to Defender Services.
|Congratulations to AFPD Ed Weiss who scored a dismissal of a failure to register prosecution brought under SORNA in the S.D. of W.Va!
Ed argued (among other things) that SORNA did not apply to his client, who had been convicted of state sex offenses in 1995, released in 2005, and indicted for failing to register under SORNA on Nov. 26, 2006. The district court agreed and made a couple of important points that will be useful in other SORNA prosecutions:
1. The court found that the plain language of the statute required the AG to issue regulations before SORNA could be applied retroactively to people convicted of sex offenses before July 27, 2006. Those regulations were not issued until Feb. 28, 2007. Accordingly, the court found that the statute could not be enforced as a matter of law against people (like Ed's client) who were convicted before July 27, 2006 and charged with failing to register before Feb. 28, 2007.
2. The court found that under the plain language of the statute, defendants convicted of sex offenses before SORNA must have specific notice of their obligations to register under SORNA . It is not enough to show knowledge of some other registration obligation. As support for this reading, the court pointed to section IX of the DOJ's newly proposed guidelines, which were published for comment on May 30, 2007, see 72 Fed. Reg. 30210-01. Section IX acknowledges the statute's express notice obligations and gives some examples of how those obligations would be met in cases involving retroactive application of SORNA, including the following (with emphasis added):
Example 2: A sex offender is required to register for life by a jurisdiction based on a rape conviction in 1995 for which he was released from imprisonment in 2005. The sex offender was initially registered prior to his release from imprisonment on the basis of the jurisdiction's existing law, but the information concerning registration duties he was given at the time of release did not include telling him that he would have to appear periodically in person to verify and update the registration information (as required by SORNA § 116), because the jurisdiction did not have such a requirement at the time. So the sex offender will have to be required to appear periodically for verification and will have to be given new instructions about that as part of the jurisdiction's implementation of SORNA.
The court found that because there was no way to notify or register the defendant as required by SORNA at the time alleged in the indictment, the defendant "could not have knowingly violated SORNA, as SORNA did not apply to him. His registration under West Virginia's laws was not sufficient to notify him of any requirement to comply with SORNA."
NOTE that no jurisdiction has yet implemented SORNA (except maybe Ohio). Anyone with a client facing a SORNA prosecution should use this case and its reasoning to support their argument that SORNA cannot be applied to anyone who did not recieve specific notice under SORNA of their registration obligations.
Judge Goodwin's opinion is attached to this email. Congratulations again, Ed!
Sara E. Noonan
Research & Writing Specialist
Sentencing Resource Counsel
Federal Public and Community Defenders
408 Atlantic Avenue 3d floor
Boston, MA 02110
(617) 790-2252 (direct)
(617) 223-8061 (main)
(617) 223-8090 (fax)
|Another failure to register win.
Order Granting Dismissal 5/2007
|If anyone is interested, check out the excellent blog of Corey Rayburn Yung, an Assistant Professor of Law at John Marshall Law School in Chicago. You can find it at:
Of particular interest is the incredible list of resources that he has compiled about the Adam Walsh Act -- the best concentration of resources I have found anywhere. Below, I have included the blog's text about the Adam Walsh Act. Unless the links get erased via this email process, you should be able from this email to click on the resources that Yung has cited. If the links aren't active, just hop on over to the blog itself (URL as above) and explore. A very useful resource for those of you who want more information and resources about the AWA. 4/07
|Attached are the lengthy comments we submitted to the Sentencing Commission on the new Proposed Sex Amendments as a result of Adam Walsh. Our Sentencing Resource Counsels, Amy Baron-Evans and Anne Blanchard, together with R&W Jennifer Coffin and Sarah Noonan, did their usual brilliant analysis and drafting. Amy and Sarah deserve special kudos, together with FPD Steve McCue, for doing the spade work with Adam Walsh and understanding just how bad it is. Sex offense amend comments 3/07
|Judge Borman, E.D. Mich., dismissed a failure to register indictment on the grounds that 1)
defendant did not travel after the effective date of the act, and 2) it violates the ex post facto clause. Order attached. 3/07
Congratulations, Jim Gerometta, AFPD, Detroit.
|Adam Walsh Challenge Succeeds
Victory under the discovery restriction provision of the Adam Walsh Act (18 USC 3509(m)): On January 25, 2007, in US v. Knellinger, Judge Payne, ED Va, found, based on extensive expert testimony, that a reasonable computer expert would not agree to take a case in which s/he was required to examine the hard drive on government premises because of the expense and difficulty of moving their equipment to a government facility and the inability to provide adequate assistance under those conditions. Thus, the court held, because "ample opportunity" for inspection was not available at a government facility, a mirror image had to be provided to the expert. Reading the statute in this way allowed the court to avoid the constitutional question presented if it were read otherwise. Opinion 1/25/2007
|This (lengthy) memo covers the new sex offender registry law, new offenses directed at persons required to register, including failure to register, defenses and legal challenges you might be able to use in these cases. Adam Walsh Part II (SOR) 11/20/2006
|This memo covers everything in Adam Walsh (at least briefly), except for the sex offender registry provisions and sex offender registry-related crimes, which will be in Adam Walsh-Part II and distributed soon, we hope. Adam Walsh Part 1 10/19/2006
|Attached is the Guidelines Committee response to the Sentencing Commission regarding how the Com'n should deal with the congressional directives and changes in sentences in the recent Adam Walsh Sex Offenses legislation.
Sex offense letter 10/16/2006
|Here are the new mandatory minimum sentences in the new Sex Crime Bill, 4472. They are shockingly severe. There are new minimums for violent crimes committed against minors (under 18), which will affect our Indian cases. There is also a 30 year mandatory minimum for agg sex with a child under 12 OR if the child is under 16 and the defendant is older than 4 years and uses force or threat (hence a 20 year old having sex with a 15 year old could face a 30 year MM).
There are many computer sex crimes changes.
|Here is the new sex bill from the House that is on a fast-track. The Senate has already passed one. This one has such noticeable features as a federals ex registry, new offenses for failure to register, abolishing statute of limitations for sex offenses, mandatory minimums for sex offenses (one I heard was 30 years for agg sex abuse with a minor), and nondisclosure to defense counsel of evidence of child pornography so long as reasonable access is available. Child Protection and Safety Act 7.27.2006
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