Saturday, May 14, 2011

Topic: Nuances, Hooks and Trickery

How the Adam Walsh Act was Named
Who Killed Adam Walsh?

Adam John Walsh (November 14, 1974 – c. July 27, 1981) was an American boy who was abducted from a Sears department store at the Hollywood Mall in Hollywood, Florida, on July 27, 1981, and later found murdered and decapitated. Walsh's death earned national publicity. John Walsh, Adam's father, became an advocate for victims of violent crimes and the host of the television program America's Most Wanted. Convicted serial killer Ottis Toole confessed to the boy's murder, and later recanted, and was never tried for the crime. In 1997, Hollywood Police Chief Rick Stone conducted an exhaustive review of the Adam Walsh case Stone says his review found no evidence to prove "beyond a reasonable doubt" that Toole murdered Adam Walsh. Both Toole and his close friend, convicted mass murderer Henry Lee Lucas, were notorious, Stone noted, for confessing to crimes they did not commit.

In June of 2005 Rep. Sensenbrenner introduced "the Children's Safety Act of 2005" (HR 3132), that bill died in the Senate as they were working on a similar bill. Then in December of 2005 Rep. Sensenbrenner introduced a new bill (HR 4472) with everything found in HR 3132 and more, that bill was sent to the Senate and came out as "Adam Walsh Child Protection and Safety Act of 2006," they changed its name (Click on HR 4472 link above and then "Text of Legislation"). This bill was rushed through Congress (Under a misuse of "Suspension of the Rules" rule) so that President Bush could sign it into law on July 27, 2006 which was the 25th anniversary of the death of Adam Walsh; done to honor the work of John Walsh.

On December 16, 2008, police announced that the Walsh case was now closed as they were satisfied (without evidence) that Toole was the murderer. Toole died of liver failure on September 15, 1996.

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Failure to Register
Applies When Registrants Move Between States
and fail to register or update registration.

It is important to recognize that "travels in interstate or foreign commerce" is the key to trigger the punishment, and our "trickery" comment is because registrants are never told of this in any way that a reasonable person would understand.
§ 2250. Failure to register
(a) IN GENERAL.—Whoever—
(1) is required to register under the Sex Offender Registration and Notification Act (SORNA);
(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.
Registrants are blindsided by this federal law and know nothing about this until they have violated law and have been charged in a federal court. How does this happen? Here goes:

When registrants register under a State law they are given a form to sign, and somewhere on that form (or forms) is a comment that says something like this "If you move to another state you must register."
At the time of registering with the state registrants are not thinking of anything in terms of the future, and do not realize what that comment means or how courts will interpret the comment.

Then when a registrant does move to another state, and fails to register or update their registration, AND GETS CAUGHT, they are charged with violating the above federal law.

We have reviewed a few state forms and none have any explanation of this federal law nor the punishment if the registrant violates it. Even though the STATE COMMENT does not comport with due process requirements, federal courts are interpreting it as shown above.

Now further trickery and of the worst kind: Once convicted in federal court the registrant serves his/her sentence in the Bureau of Prisons (Federal Prison) or federal probation which is under the control of the Bureau of Prisons.

At or near the end of that sentence the registrant is subjected to a civil commitment hearing, and may be committed for the rest of their life. There is no doubt in this writer's mind that the crafter's of this terrible Adam Walsh Act, intended this consequence to be hidden in law as it is, and is meant as a GOTTCHA.

In fact, Sen. Orrin Hatch of Utah, on the Nancy Grace show 7-16-2006, speaking about the Adam Walsh Act which was not yet enacted on that date: SEN. ORRIN HATCH (R), UTAH: Well, the bill really puts the screws to those who are sexual predators, and you know, sexual offenders. You know, we have ... Quoted from: CNN Transcript of Nancy Grace show 7-16-2006. For the rest of the story.
Need any more be said?

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Federal Marshals:
Acting When They Have No Jurisdiction
Wasting Taxpayer Money.

U.S. Marshals Knock on Door: Purpose Address Check
Now we see a problem because U.S. Marshals are not authorized to perform home address checks without local police, except for persons with federal convictions, but are authorized to go after STATE SORNA violators, after they violate the state registration law (See grey area below).

In this article "Authorities checking on sex offenders in Clay County" it seems the Marshals are in violation of the law. But in this article "U.S. Marshals Capture Sex Offender In Guatemala " Marshals would be in compliance with the law.
See the following from the Adam Walsh Act, which no one has questioned yet:


(a) IN GENERAL.—The Attorney General shall use the resources of Federal law enforcement, including the United States Marshals Service, to assist jurisdictions in locating and apprehending sex offenders who violate sex offender registration requirements. For the purposes of section 566(e)(1)(B) of title 28, United States Code, a sex offender who violates a sex offender registration requirement shall be deemed a fugitive.
The law does not permit them to perform address checks, but as we have seen they are joining forces with local police in performing address checks; clearly in violation of federal law.

It seems clear to this writer that Congress intended to use federal forces ONLY WHEN states have reported that a registrant HAS VIOLATED their law. i.e., failed to register or absconded.

To use federal forces otherwise is a complete waste of taxpayer money at a time when taxpayers can least afford such waste. It appears this is some sort of a jobs stimulus program; a complete waste when misused.

At this point it appears they are ABOVE the law and doing what is not permitted, and there is no system of checks and balances to stop these violations. In addition, this has got to be wasting taxpayer funds on a large scale at a time when taxpayers can least afford such waste.

Other than pointing this out, there isn't much more one can say, they are in control and the little guy has no say, until someone like the ACLU gets involved, this is the way it will be.

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Registry Law REQUIRES that
Registrants be notified about laws
Reality, many have never been notified:

The law says:
(a) IN GENERAL.—An appropriate official shall, shortly before release of the sex offender from custody, or, if the sex offender is not in custody, immediately after the sentencing of the sex offender, for the offense giving rise to the duty to register—
(1) inform the sex offender of the duties of a sex offender under this title and explain those duties;

(2) require the sex offender to read and sign a form stating that the duty to register has been explained and that the sex offender understands the registration requirement; and

(3) ensure that the sex offender is registered.
(b) NOTIFICATION OF SEX OFFENDERS WHO CANNOT COMPLY WITH SUBSECTION (a).—The Attorney General shall prescribe rules for the notification of sex offenders who cannot be registered in accordance with subsection (a).
First, the difference between sub-section (a) and (b) is, subsection (a) pertains to folks convicted AFTER the enactment of SORNA (as to states that have not enacted SORNA requirements, I must presume they follow such procedure without the federal government prodding for the sake of this discussion.).

However, subsection (b) pertains to folks convicted BEFORE the enactment of SORNA. For these folks the USAG is required to enact RULES (plural) "rules for the notification of sex offenders who cannot be registered in accordance with subsection (a)" and this is where the problems begin; trickery is used!

We need to look at EXACTLY what the USAG actually did:
On 2-28-2007 the USAG issued a RULE (One Rule), and made the rule effective the same day (2-28-2007), that rule said, that SORNA was applicable to every sex offender convicted BEFORE the enactment of the Adam Walsh Act.
Merely saying that SORNA was applicable to them, in no way notifies them of the law like those in subsection(a) are notified.

Its like a state enacting a law, saying all driver's licenses are no longer any good, then stand on the steps of the capitol and screaming that to the wind, then letting the police arrest anyone driving a car. How would drivers know of the law? This is exactly what has happened to folks convicted BEFORE the enactment of SORNA, they were not notified!
So, folks under subsection (a) received proper notice while those under subsection (b) where not notified at all. Worse yet, the USAG gets away with this manifest injustice!
Any justice in the courts? What have courts done when faced with this question? Good point:
Note: There are two groups of folks convicted BEFORE SORNA was enacted: A) Those convicted of sex offenses in FEDERAL courts; B) Those convicted of sex offenses in STATE courts.
Folks convicted in STATE courts (Group-B) are only charged in FEDERAL courts when they have crossed STATE lines and failed to register or update their registration. However, folks convicted in FEDERAL courts (Group-A) can be charged with any violation of SORNA in FEDERAL court.

Unfortunately most cases like these get sidetracked with lawyers trying other issues rather than stick to the notification issue. Two other issues relevant are:

A) When TRAVEL took Place: An offender who was convicted BEFORE SORNA was enacted, and traveled between states without updating or registering BEFORE SORNA was enacted. Federal courts cannot convict an offender with these circumstances of failure to register under SORNA. But that does not mean they are immune from a state charge for failure to register. See Carr -v- United States a case that went all the way to the U.S. Supreme court.

B) When TRAVEL took Place: An offender who was convicted BEFORE SORNA was enacted, and traveled between states without updating or registering AFTER SORNA was enacted. Federal courts can convict an offender with these circumstances of failure to register under SORNA. ex: Carr -v- United States.

C) Now, the NOTIFICATION issue (CLAIM: States Haven't Enacted SORNA): Some registrants, after moving to another state without registering, and charged in federal court, have claimed, the state had not yet enacted SORNA so how could the registrant know about the federal requirement. Unfortunately, this argument has failed as well:
"Furthermore, the directive found in 42 U.S.C. § 16913(a) applies to sex offenders — not to states. When combined with SORNA's enforcement provision, 18 U.S.C. § 2250(a), an independent and federally enforceable duty is placed on sex offenders to register. New York and Pennsylvania may never implement SORNA, choosing, for whatever reason, to forego a portion of their federal funding. This failure to implement a federal law, however, does not give sex offenders a reason to disregard their federal obligation to update their state registrations. When a sex offender travels in interstate commerce and disobeys the federal command to keep his or her registration current, as required by SORNA, he or she is subject to prosecution. 18 U.S.C. § 2250(a); see also May, 535 F.3d at 921. US v Shenandoah

D) Now, another NOTIFICATION issue (Court Based on Previously Signed Forms, even out of date forms [which improperly explained laws]): This is by far the most egregious way of convicting someone of a criminal offense that I have ever seen. When lawyers have raised the issue that, the registrant HAS NOT been notified of this FEDERAL SORNA requirement (42 USC 16917(b) above) and therefore is not guilty of failure to register as charged in FEDERAL court. Here is what courts are doing:
They are looking to the FORMS used by the State when the person first registered with the state (which could have been 5-10 years ago), they look for wording that goes something like this: "When you move to another state you must register...." or some other context of that short message.
"In fact, Mr. Lawrance admits that he registered in Arizona after his initial conviction in 2002, and that he failed to comply with any state or federal registration requirements after his initial registration, even after signing a written acknowledgment of his duties." US -v- Lawrance 548 F3d 1329 (10th Cir 2008)
Federal courts are then saying, that "State Notification by signing the State form" was sufficient notice of what the registrant was supposed to do when moving to another state. Then that registrant is convicted of failure to register under FEDERAL law (SORNA).

See also US v Mefford:
"Second, Mefford argues that his Fifth Amendment right to due process was violated because, as a matter of law, he could not knowingly fail to register under SORNA without receiving fair notice that it applied to him. Notice of comparable and applicable state laws, he argues, is insufficient. We also have rejected this argument previously. See United States v. May, 535 F.3d 912, 921 (8th Cir. 2008); see also United States v. Baccam, 562 F.3d 1197, 1200 (8th Cir. 2009) ("[I]t would be inconsistent with SORNA's purpose of protecting the public by strengthening the system of sex offender registration not to give effect to state law notifications that relocation requires registration in the new jurisdiction.")."
Devious to the 10th degree, yes trickery, once any state form is signed acknowledging "the state message about moving to another state (no matter how hidden or obscure that message may have been on the form)" the jurisdictional boundaries of states and federal laws disappear, even years later under completely different factual circumstances. The system clearly is a Catch-22 situation and fails to recognize differences between state laws and forms. This, pick this from something years ago, and combine it with that from yesterday, and they get a conviction; constitutional due process has been erased if one has ever been convicted of a sex offense.
Yes, there is no doubt these are confusing issues, but they are ALL based on the circumstances of the individual person's case. i.e., the evidence as to what happened and when it happened. The person charged knows the answer to this, but may not see the legal theory, which is why we have laid it out so carefully here. The only hope a registrant has, is to have a GREAT lawyer, one who knows the ropes otherwise the registrant will be railroaded.

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

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