Office of Justice - SMART - Case Law Updates - Sept 2009 Update (PDF)
State v. Atcitty, 2009 N.M. App. LEXIS 112 (June 4, 2009)
• Indian Country
The State of New Mexico had no authority to impose a duty to register on enrolled tribal members, living in Indian country, convicted of federal sex offenses. This was a case involving members of the Navajo Nation who had been charged with state-level failure to register offenses.
Commonwealth v. Wilgus, 975 A.2d 1183 (Pa. Super. 2009)
• Homeless Sex Offender
Because of the way in which Pennsylvania’s laws were written, a homeless and transient person did not have a ‘residence’ to register and, therefore, could not be convicted of failure to register.
U.S. v. Stinson, 507 F. Supp.2d 560 (S.D. W.Va. 2007)
Dismissed defendant’s conviction on ex post facto grounds. Defendant was convicted in 1993 in Michigan, paroled and notified of his sex offender registration obligation in 1996 (his registration obligation was for 25 years). In 2005 he relocated to West Virginia and failed to register as a sex offender. He was charged on March 8, 2007, but the indictment date only covered February of 2007. Following Sallee, the court found that failure to register as a sex offender was not a continuing offense, and that prosecution of this case would constitute an ex post facto violation.
U.S. v. Waybright, 561 F. Supp. 2d 1154 (D. Mont. 2008)
Concluded that the statute which the Government argued required registration, 42 U.S.C. §16913, was not a valid exercise of Congress’ Commerce Clause authority.
U.S. v. Barnes, 2007 U.S. Dist. LEXIS 53245 (S.D.N.Y. July 23, 2007)
Like Heriot and Muzio, found that defendant’s indictment under 18 USC §2250 ought to be dismissed where D traveled prior to the retroactivity guidelines issued on February 28, 2007. Took a different approach to the reasoning, however, finding a Fifth Amendment Due Process violation of defendant’s right to adequate notice and fair warning, citing Lambert v. California, 355 U.S. 225 (1958).
U.S. v. Muzio, 2007 U.S. Dist. LEXIS 54330 (E.D. Mo. July 26, 2007)
Dismissed Defendant’s indictment under 18 USC §2250 because SORNA did not apply to him at the time of his travel (late 2006). Like in Heriot, there was no federal obligation to register until February 28, 2007. Here, though, the court found an ex post facto violation as well.
U.S. v. Mantia, 2008 U.S. Dist. LEXIS 2928 (W.D. La., Jan 15, 2008)
In an opinion with no stated facts, dismissed defendant’s indictment under 18 USC §2250 because of an ex post facto violation.
U.S. v. Aldrich, 2008 U.S. Dist. LEXIS 11411 (D. Neb. Feb. 14, 2008)
Defendant was convicted in 2002 (state court) and 2003 (tribal court) of offenses requiring registration. He failed to register from 2003-2007. His registry address (and actual address, next door) was in Indian Country. He was charged with a violation of §2250 based on living in Indian Country. The court held that failure to register is not a continuing offense, and that his violation of §2250 involved “wholly passive conduct”, and that the ex post facto clause precluded prosecution. The court also found a due process ‘notice’ violation, as well.
