Saturday, May 7, 2011

Topic: Failure to Register - Really?


Failed to Register - So they say, but have you?

Failure To Register:
You've Been Charged, But, Are You Guilty?

Before we get to tips to check, lets say this, if you are a person who has blatantly ignored the registry laws of your state, then I doubt any of the tips that follow with help you, but miracles do occur. I think!

Many say there is no defense to this charge, lawyers included, but there are defenses, many. However, all of them are dependent your circumstances at the point you supposedly violated the law.
In addition, if you read below carefully, you can apply situations in a "What If?" scenario and maybe create new nuances. Good luck and make sure you check the case law way down below.

The Adam Walsh Act (AWA):
What it says.

First, if you are being charged in Federal or State Court for violations of AWA, within AWA it shows possible "Affirmative Defenses" to a Failure to Register (FTR) charge, so if any of these fit your circumstances -at the point of the alleged violation- then you might not be guilty.

Study what is highlighted below closely including how AWA is being construed by the USAG in the Guidelines, also shown below, to decide if anything fits your circumstances. Never rely ONLY on a lawyer saying, nothing fits, do your own review, you know best how things were at the point of the charge, maybe you forgot to tell the lawyer something.
§ 2250. Failure to register
(a) IN GENERAL.—Whoever—
(1) is required to register under the Sex Offender Registration and Notification Act (SORNA);
(2)
(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian Tribal law, or the law of any territory or possession of the United States; or
(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and
(3) knowingly fails to register or update a registration as required
shall be fined under this title or imprisoned not more than 10 years, or both.

(b) AFFIRMATIVE DEFENSE.—In a prosecution for a violation under subsection (a), it is an affirmative defense that—
(1) uncontrollable circumstances prevented the individual from complying;
(2) the individual did not contribute to the creation of such circumstances in reckless disregard of the requirement to comply; and
(3) the individual complied as soon as such circumstances ceased to exist.


Within the Guidelines (Under Substantial Compliance page-38048 Federal Register version) that State Legislatures are to follow, the following is found:
For example, section 116 of SORNA requires periodic inperson appearances by sex offenders to verify their registration information. But in some cases this will be impossible, either temporarily (e.g., in the case of a sex offender hospitalized and unconscious because of an injury at the time of the scheduled appearance) or permanently (e.g., in the case of a sex offender who is in a persistent vegetative state).

In other cases, the appearance may not be literally impossible, but there may be reasons to allow some relaxation of the requirement in light of the sex offender’s personal circumstances. For example, a sex offender may unexpectedly need to deal with a family emergency at the time of a scheduled appearance, where failure to make the appearance will mean not verifying the registration information within the exact time frame specified by SORNA § 116.

A jurisdiction may wish to authorize rescheduling of the appearance in such cases. Doing so would not necessarily undermine substantially the objectives of the SORNA verification requirements, so long as the jurisdiction’s rules or procedures require that the sex offender notify the official responsible for monitoring the sex offender of the difficulty, and that the appearance promptly be carried out once the interfering circumstance is resolved.
Odd Example of Non Compliance: In one case a registrant reported that they were not home when police performed their "Address Checks" and a warrant was issued. The registrant was in the hospital having a procedure performed and there was no way the registrant could have known "Address Checks" were going to be done. About a month later after returning home (no notice was left on door, or was taken by someone), he was stopped in a traffic check, Bingo, he was arrested. Of course he worked his way out of this circumstance, but he still was detained in the meantime.

Notice that the local police construed "inperson" as meaning -at home- during a address check. Whether or not such nuance is correct or not, is not important, this is one case where a law was being construed in such a way that was detrimental to the registrant. Lawyers need to take the time to review ALL CIRCUMSTANCES before simply allowing the registrant to plead guilty for expedience, and a short sentence. Situations like these can occur and folks always need to think ahead, and construe for themselves.
The Adam Walsh Act (AWA):
Sec 2250 is a Punitive Statute.

This is an excellent case which explains how someone cannot be prosecuted under SORNA's 2250 for travel BEFORE SORNA was enacted. The court held such prosecution would violate the ex post facto clauses.

However, Lavoid Macio Kent can still be prosecuted for FTR but state must use statute enacted BEFORE SORNA which only has a misdemeanor punishment, rather than SORNA's 10 year felony.

This matter is before the court on defendant, Lavoid Macio Kent’s FED. R. CRIM. P. 29 motion for judgment of acquittal, the government’s response to the motion, Kent’s supplemental authority in support of the motion, and a joint stipulation of facts. (Docs. 29, 30, 33, and 34). The court heard oral argument on Thursday, November 1, 2007. For the reasons more fully set forth below, the court GRANTS the motion based on Kent’s argument that applying the statute under which he is charged in this case would run afoul of the Constitution’s prohibition of ex post facto laws.

.....

CONCLUSION
For the foregoing reasons, Kent’s motion is GRANTED. A judgment of ACQUITTAL is hereby entered, and the defendant is ORDERED RELEASED from custody. DONE and ORDERED this 8th day of February, 2008. USA v Lavoid Macio Kent 2-8-2008

State Registry Laws:
What do they say?

Now State laws are tricky because they rarely point out ways that someone MAY NOT be guilty of a charge of FTR. Notice what AWA says above:

A jurisdiction may wish to authorize rescheduling of the appearance in such cases. Doing so would not necessarily undermine substantially the objectives of the SORNA verification requirements, so long as the jurisdiction’s rules or procedures require that the sex offender notify the official responsible for monitoring the sex offender of the difficulty, and that the appearance promptly be carried out once the interfering circumstance is resolved.
How many state laws do you know that spell out their "Rules and Procedures" like AWA does above in the law? Unfortunately, many of the State laws are written in a way that it requires a lawyer to interpret. Registrants must seek the subtle nuances, or have a lawyer do it for them, or suffer a new charge.

AWA does [for the most part], and States should, recognize ALL the frailties of human beings, but there are many disabilities which are not recognized by registry laws, for these registrants and lawyers too, need to look to the Americans with Disability Act and a few other Federal laws (A section is coming on those laws); it is critcal to learn how they can be helpful in certain situations not spelled out in registry laws.

Failure to Register & Other Registry Charges:
Case Law. Yes there is plenty..

We have spent untold hours capturing cases that MAY MAY MAY be helpful to folks who have been charged with various types of registry charges, not just FTR (failure to register).

What you need to do to search our data base is to jump over to our Sex Offender Court decisions blog. Take time to note the various ways we have to find cases, by state, issues, years, etc. Enjoy searching and if we have missed a case you know of, PLEASE let us know.


.......More Coming.....


Please e-mail eAdvocate@gmail.com


For now, have a great day and a better tomorrow.
eAdvocate (BACK to the Top Page)

No comments: