DEFENDING
A SORNA
PROSECUTION
PRESENTATION
OVERVIEW

Historical Background
3 min

SORNA Legislation
15 min

Pre-Conviction Strategies
30 min

Sentencing Strategies
7 min
SORNA
HISTORICAL
BACKGROUND
HISTORICAL BACKGROUND
ORIGIN :
Fear of Anonymous Felons
HISTORICAL
BACKGROUND
1930s:
Los Angeles First Legislative
Body in America to Require
Registration.
Concerned that Gangsters
were Relocating From East
Coast and Midwest.
HISTORICAL BACKGROUND
1947:
California enacted the
first statewide sex
offender registration law.
HISTORICAL BACKGROUND
Lambert v. California (U.S. 1957):
Requiring an individual with no
prior notice to register violates
due process.
HISTORICAL BACKGROUND
1990s:
Proliferation of State Sex
Offender Registration and
Notification Systems

1989:
12 States Had Registration Systems

1996:
All 50 states had a Registration System
HISTORICAL BACKGROUND
High Profile Sexual Abuse Cases:

Megan Kanka:
Megan’s Law in New Jersey
(1994)

Jacob Wetterling:
Federal Jacob Wetterling
Crimes Against Children and
Sexually Violent Offender
Registration Act (1994)
HISTORICAL BACKGROUND
Adopted a Wetterling Act
compliant registration
system effective
January 1, 2006
HISTORICAL BACKGROUND
Supreme Court Review of Pre-SORNA State
Systems:

Smith v. Doe (2003):
Did
Facto

DPS v. Doe (2003):
Court held Alaska Registration
System’s Application to PreEnactment Convictions
Not Violate Ex Post
Clause.
Court held Covered Individuals
Had No Due Process Right to a
Hearing Before Being Required
to Register.
SORNA
THE SEX OFFENDER
REGISTRATION AND
NOTIFICATION ACT
OF 2006
SEX OFFENDER REGISTRATION AND NOTIFICATION
ACT
Sponsors Mark Foley and
others urged Congress to
pass the Sex Offender
Registration and
Notification Act (“SORNA”).
President George W. Bush
signed into law on July 27,
2006.
SEX OFFENDER REGISTRATION AND
NOTIFICATION ACT
Purpose
42 U.S.C. § 16901

To protect the public from sex offenders and
offenders against children; and

To establish a comprehensive national system for
the registration of sex offenders and offenders
against children.
Legislative History

Concern sex offenders under Wetterling Act
systems were going missing.
SEX OFFENDER REGISTRATION AND NOTIFICATION
ACT
Criminal Provision (18 U.S.C. § 2250(a))

Defendant Required to Register under SORNA

Defendant either:


Has a prior federal conviction, or

Traveled in Interstate Commerce; and
Defendant knowingly failed to register as
required by SORNA
SEX OFFENDER REGISTRATION AND
NOTIFICATION ACT
Affirmative Defense



uncontrollable circumstances prevented the
individual from complying;
the individual did not contribute to the
creation of such circumstances in reckless
disregard of the requirement to comply; and
the individual complied as soon as such
circumstance ceased to exist.
SEX OFFENDER REGISTRATION AND
NOTIFICATION ACT
Registration Requirement
Who Must Register:

42 U.S.C. § 16911(a)(1):
A person who has been convicted
of a “sex offense.”
SEX OFFENDER REGISTRATION AND
NOTIFICATION ACT
Registration Requirement
What is a Sex Offense:
42 U.S.C. § 16911(a)(5):



A criminal offense that has an element
involving a sexual act or sexual contact with
another;
A criminal offense that is a specified offense
against a minor;

A specified Federal offense

A specified violation of the UCMJ

An Attempt or conspiracy to commit one of the
above
SEX OFFENDER REGISTRATION AND NOTIFICATION
ACT
Registration Requirement
What is a Specified Offense Against a Minor:
42 U.S.C. § 16911(a)(7): an offense against a minor that involves:

kidnapping;

false imprisonment;

Use in a sexual performance;

Solicitation to practice prostitution;

Video voyeurism as described in 18 U.S.C. 1801;

Child Pornography offenses;

Criminal sexual conduct involving a minor,

Any conduct that by its nature is a sex offense against
a minor.
SEX OFFENDER REGISTRATION AND
NOTIFICATION ACT
Registration Requirement
Consensual Sex Exception

42 U.S.C. § 16911(5)(c):

An offense involving “consensual sexual
conduct” is not a sex offense if:
 The
victim was an adult (unless adult was under
custodial authority of the offender); or
 The
victim was at least 13 years old and the
offender was not more than 4 years older than the
victim.
SEX OFFENDER REGISTRATION AND NOTIFICATION
ACT
Registration Requirement
Categories of Sex Offenders:

42 U.S.C. § 16911(a):
Three Tiers (I through III)
SEX OFFENDER REGISTRATION AND
NOTIFICATION ACT
Registration Requirement
Categories of Sex Offenders:
42 U.S.C. § 16911(a):




Tier III:
Defendant convicted of a prior contact
offense,
kidnapping, or committed an offense
after becoming a Tier II offender
Tier II: Defendant convicted of a child pornography
offense, sex trafficking, enticement,
transportation of a minor, solicitation of a minor to
practice
prostitution, or “abusive sexual
contact” with an
individual over 12 years old.
Tier I: Any conviction that does not fall in Tiers II or
III.
SEX OFFENDER REGISTRATION AND
NOTIFICATION ACT
Registration Requirement
General Requirement
42 U.S.C. § 16913(a):



A sex offender must keep registration
current in each jurisdiction where he resides,
is employed, and attends school.
Must also initially register in state of
conviction.
SEX OFFENDER REGISTRATION AND
NOTIFICATION ACT
Registration Requirement
Initial Registration
42 U.S.C. § 16913(b):



Register prior to completing a prison
sentence; or
No later than 3 business days after being
sentenced if not sentence to imprisonment.
SEX OFFENDER REGISTRATION AND
NOTIFICATION ACT
Registration Requirement
Keeping the Registration Current
42 U.S.C. § 16913(c):


Must appear in one jurisdiction referenced in
subsection (a) not later than 3 business days
after each change of:
 Name
 Residence
 Employment
 Student status
And provide information required in the
registry.
SEX OFFENDER REGISTRATION AND
NOTIFICATION ACT
Registration Requirement
Information Required in the Registry
42 U.S.C. § 16914(a):


Sex Offenders must provide the following
information:
Name (including any alias used)
 Social Security number
 Address of each residence at which the sex
offender resides or will reside
 Name and address of employment
 Name and address of school
 Vehicle information
 Any other information required by the AG

SEX OFFENDER REGISTRATION AND
NOTIFICATION ACT
Registration Requirement
Delegation to the Attorney General
42 U.S.C. § 16913(d):


The Attorney General has the authority to
specify the applicability of the requirements of
SORNA to sex offenders convicted before:


SORNA’s enactment on July 27, 2006; and
SORNA’s implementation in a particular
jurisdiction
Interim Rule on February 28, 2007
Final Rule effective January 18, 2011
SEX OFFENDER REGISTRATION AND
NOTIFICATION ACT
Registration Requirement
Delegation to the Attorney General
42 U.S.C. § 16912(b):


Congress delegated authority to the Attorney
General to issues guidelines and regulations to
interpret and implement this title.


Final Guidelines effective August 1, 2008
Supplemental Guidelines effective February
10, 2011
SEX OFFENDER REGISTRATION AND
NOTIFICATION ACT
Registration Requirement
Length of Registration Requirement and Frequency of
In Person Verification:
42 U.S.C. §§ 16915, 16916:


Tier III:
Life registration
In person verification every 3 months

Tier II:
25-year registration
In person verification every 6 months

Tier I:
15-year registration
In person verification each year
SEX OFFENDER REGISTRATION AND
NOTIFICATION ACT
Registration Requirement
Early Termination:
42 U.S.C. § 16915(a)(2)-(3):

Tier III:
adjudicated
clean period
Applies to juveniles
delinquent 25-year

Tier II:
Not Applicable

Tier I:

Applies to every individual
10-year clean period
SEX OFFENDER REGISTRATION AND
NOTIFICATION ACT
Registration Requirement
Duty to Notify Sex Offenders of SORNA
42 U.S.C. § 16917:



Congress required an “appropriate official” to
notify a sex offender of his duty to register
under SORNA prior to his release, and have the
sex offender read and sign a form stating that
he understands the requirement.
The Attorney General issued an Interim Rule
on February 28, 2007 making SORNA
applicable to all sex offender.
SEX OFFENDER REGISTRATION AND
NOTIFICATION ACT
Registration Requirement
Attorney General Regulations

Interim Rule (February 27, 2007)

Final Guidelines (effective August 1, 2008)

Final Rule (effective January 18, 2011)

Supplemental Guidelines (effective February 10, 2012)
SEX OFFENDER REGISTRATION AND
NOTIFICATION ACT
16 States and 3 Territories Have Implemented SORNA



















Alabama
Commonwealth of the Northern Mariana Islands
Delaware
Florida
Guam
Kansas
Louisiana
Maryland
Michigan
Mississippi
Missouri
Nevada
Ohio
Pennsylvania
South Carolina
South Dakota
Tennessee
U.S. Virgin Islands
Wyoming
SEX OFFENDER REGISTRATION AND
NOTIFICATION ACT
Supreme Court Review
Carr v. United States (2010):
 The enforcement provision of Section 2250 does not
apply to covered individuals whose travel predates
the enactment of SORNA.
 Section 2250 requires proof that the elements were
committed in a sequential order.
Reynolds v. United States (2012):
 Congress delegated authority to the Attorney
General to determine whether SORNA applies to
individuals with pre-enactment convictions.
 Did not address whether the Interim Rule of
February 28, 2007 was a valid rule
SEX OFFENDER REGISTRATION AND
NOTIFICATION ACT
Supreme Court Review
United States v. Kebodeaux (2013):


(1) Whether pre-SORNA federal law obligated an
individual with a prior military conviction to register
as a sex offender; and
(2) whether Congress has authority to provide for
criminal penalties under 18 U.S.C. § 2250(a)(2)(A), as
applied to a person who was convicted of a sex offense
under federal law and completed his criminal
sentence before SORNA was enacted.
SEX OFFENDER REGISTRATION AND
NOTIFICATION ACT
Fourth Circuit Review
United States v. Gould (2009):
Found SORNA Constitutional under challenges brought
under:
 Commerce Clause
 Due Process Clause
 Ex Post Facto Clause
Also found Attorney General had good cause to avoid
notice and comment period requirement of APA and
Government not required to prove notice under 16917
or knowledge of SORNA requirement.
SORNA
PRE-CONVICTION
DEFENSE
STRATEGIES
PRE-CONVICTION DEFENSE STRATEGIES
Prior Conviction is Not an Offense Requiring
Registration

Request Bill of Particulars

Obtain Records from Prior Conviction

Categorical Approach

Who Determines Jury or Judge
PRE-CONVICTION DEFENSE STRATEGIES
The Prior Conviction Was Invalid


Prior Conviction Was Expunged or
Overturned
Foreign Conviction Obtained Without
Safeguards for Fundamental Fairness
42 U.S.C. § 16911(5)(B)
PRE-CONVICTION DEFENSE STRATEGIES
Defendant’s Registration Period Expired


Period Runs from the Date of Sentence if
Not Sentenced to Prison or Date of Release
from Prison
Based on Tier Classification and Clean
Record
42 U.S.C. § 16915
73 Fed.Reg. 38030 at 38068 (2008)
PRE-CONVICTION DEFENSE STRATEGIES
Prior Conviction Involves Consensual Conduct
Congress exempted individuals from registering with
prior convictions involving consensual conduct
where:


the victim is an adult who was not under the
defendant’s custodial authority; and
the victim was at least 13 and the defendant was
not more than 4 years older.
42 U.S.C. § 16911(5)(C)
Due Process / Rule of Lenity
PRE-CONVICTION DEFENSE STRATEGIES
Defendant Was Not Given Notice of SORNA
Congress required an “appropriate official” to
notify the defendant of the requirement to
register and have the defendant read and sign a
form acknowledging his understanding.
42 U.S.C. § 16917
Due Process
PRE-CONVICTION DEFENSE STRATEGIES
Defendant Never Established a Residence /
The Term Residence is Void as Applied



Registration requirement triggered upon
establishing a new residence
Residence based on term “resides,” which is defined
as “the location of the individual’s home or other
place where the individual habitually lives.
Transient defendant may not have a home or other
place where he habitually lives
42 U.S.C. §§ 16911(13), 16913
Due Process
PRE-CONVICTION DEFENSE STRATEGIES
Attorney General’s Rule Violates the APA
Congress Delegated Authority to the Attorney General to
Determine Whether SORNA applies to individuals with
convictions predating SORNA’s enactment or its
implementation in a particular jurisdiction
Attorney General’s regulations:

the Interim Rule on February 28, 2007;

the Final Guidelines on August 1, 2008;

the Final Rule on December 29, 2010; and

the Supplemental Guidelines for Sex Offender
Registration and Notification on January 11, 2011
42 U.S.C. § 16913(d)
Due Process
Administrative Procedures Act
PRE-CONVICTION DEFENSE STRATEGIES
The defendant traveled before SORNA
was applicable to him


Certainly applies for travel prior to
February 28, 2007
Validity of Argument for postFebruary 28, 2007 travel depends on
when the Attorney
General issued a
valid rule.
18 U.S.C. 2250, Carr v. United States
Due Process
Administrative Procedures Act
PRE-CONVICTION DEFENSE STRATEGIES
The defendant was unable to comply with
SORNA because it has not been
implemented in relevant state(s)


Only 16 States have implemented
SORNA
If Defendant prosecuted in a state
that has not implemented, argue that
prosecution violates Due Process
Clause and Ex Post Facto Clause
because defendant could not have
complied
PRE-CONVICTION DEFENSE STRATEGIES
Constitutional Challenges
Commerce Clause


Registration Requirements of 16913 purport
to regulate purely local activity
Lack of mens rea requirement in travel
element leaves insufficient nexus between
travel and failure to register
PRE-CONVICTION DEFENSE STRATEGIES
Constitutional Challenges
Non-Delegation Doctrine


Congress impermissibly granted the
Attorney General the authority to legislate
the reach of SORNA’s retrospective reach.
Attorney General has authority to determine
how far back SORNA reaches and who may
be exempted from registration.
PRE-CONVICTION DEFENSE STRATEGIES
Constitutional
Challenges
Ex Post Facto Clause


The registration obligations create a
greater collected disabilities, restraints,
and
obligations than the previous state
or federal registration requirements in
effect
at the time of a defendant’s
conviction.
Term of imprisonment and supervised
release for violating SORNA is greater
PRE-CONVICTION DEFENSE STRATEGIES
Constitutional
Challenges
Venue

When defendant is prosecuted in State A
after traveling from State A to State B
and failing to register in State B.
PRE-CONVICTION DEFENSE STRATEGIES
Constitutional
Challenges
Tenth Amendment

Congress lacks authority to compel local
law enforcement to accept registrations
from federally mandated sex offender
programs.
PRE-CONVICTION DEFENSE STRATEGIES
The Indictment is
Duplicitous

Raise if Defendant is charged in one count
with
failing to register in State A and in
another count with traveling to State B and
failing to register
their.
PRE-CONVICTION DEFENSE STRATEGIES
Entrapment by Estoppel

Raise if Defendant was informed
by law enforcement that he did not
have to register.
PRE-CONVICTION DEFENSE STRATEGIES
Statutory Affirmative
Defense
GOOD LUCK !
PRE-CONVICTION DEFENSE STRATEGIES
HYPOTHETICALS
PRE-CONVICTION DEFENSE STRATEGIES
HYPOTHETICALS
Number 1:
Steven Orlando was convicted in Florida of Lewd
Molestation of a Minor in 2004. The victim of the
offense was 13 years old and he was 17. The
conduct was consensual. He began registering in
Florida upon his release from imprisonment in
2005. In 2012, he bought a new car in Florida but
did not register that fact. He moved to North
Carolina two months later and began registering.
He began a new job one month after that, but failed
to register his new employment. He was charged in
North Carolina under 18 U.S.C. 2250 with failing to
register.
PRE-CONVICTION DEFENSE STRATEGIES
HYPOTHETICALS
Number 1:
Lewd Molestation of a Minor (Fla. Stat. 800.04(5)):
A person who intentionally touches in a lewd or lascivious
manner the breasts, genitals, genital area, or buttocks, or the
clothing covering them, of a person less than 16 years of age, or
forces or entices a person under 16 years of age to so touch the
perpetrator, commits lewd or lascivious molestation.
For purposes of the statute on lewd and lascivious molestation,
“lewd and lascivious conduct” generally denotes unlawful
indulgence of lust, gross indecency with respect to sexual
relations, or wicked, lustful, unchaste, licentious, or sensual
conduct.
PRE-CONVICTION DEFENSE STRATEGIES
HYPOTHETICALS
Issues:
Was he Convicted of a Sex Offense? Does it matter how he committed the offense?
Does his Offense Fall Within the Consensual Sex Exception? Was He More than 4
Years Older than the Victim
Did he have to Register His New Vehicle in Florida? Does it Matter that Florida
has implemented SORNA?
Did he Violate SORNA by Failing to Register his Vehicle in Florida?
Did He Violate SORNA by Failing to Register his Employment in North Carolina?
Broad Constitutional Issues:
Commerce Clause
Non-Delegation Doctrine
Tenth Amendment
Ex Post Facto
PRE-CONVICTION DEFENSE STRATEGIES
HYPOTHETICALS
Number 2:
Brian Burlington was convicted in Vermont of
Lewd and Lascivious Conduct in 2010. He began
registering as a sex offender following his release
from prison in January 2012. In May 2012, he
traveled to North Carolina to visit an old girlfriend
for a week. After a few days, they hit it off and
Brian thought he might stay longer. Ten days after
entering North Carolina, his girlfriend was pulled
over for a busted light and the police officer
discovered that Brian was a sex offender. Not
wanting to offend his girlfriend, he told the officer
that he was thinking of staying in North Carolina
permanently. He later informed the officer that his
belongings remained in his house in Vermont. He
was prosecuted in North Carolina for failing to
register.
PRE-CONVICTION DEFENSE STRATEGIES
HYPOTHETICALS
Number 2:
Lewd and Lascivious Conduct (13 V.S.A. 2601):
A person guilty of open and gross lewdness and
lascivious behavior shall be imprisoned not more
than five years or fined not more than $300.00, or
both.
Term lewd and lascivious not defined by statute;
left to common sense.
PRE-CONVICTION DEFENSE STRATEGIES
HYPOTHETICALS
Issues:
Was he Convicted of a Sex Offense?
Did he have to Register the Fact that He Left the State for a Vacation?
Does it matter how long he planned to stay? Does it matter that the
Attorney General has issued a guideline pursuant to 16914 stating that
an offender has to inform the registry of his plans to visit a given area
for 7 days?
Did he have to register in North Carolina? Does it matter what the
State law requires?
Broad Constitutional Issues:
Commerce Clause
Non-Delegation Doctrine
Tenth Amendment
Ex Post Facto
PRE-CONVICTION DEFENSE STRATEGIES
HYPOTHETICALS
Number 3:
Samuel Otisco was convicted in New York of
Incest in the Third Degree. He was informed of
his requirement to register in New York and had
done so since his conviction and sentence in
February 1997. After getting in an argument
with his girlfriend in May 2008, he decided to
leave her and go on a trip and eventually wound
up in North Carolina. He never registered while
living in North Carolina. His girlfriend wanted to
get back at him so decided to report him to the
authorities in New York. He was arrested in
March 2012 and charged in the North Carolina
with one count of failing to register.
PRE-CONVICTION DEFENSE STRATEGIES
HYPOTHETICALS
Number 3:
Incest in the third degree (N.Y. Penal Law 255.25):
A person is guilty of incest in the third degree when he
or she marries or engages in sexual intercourse, oral
sexual conduct or anal sexual conduct with a person
whom he or she knows to be related to him or her,
whether through marriage or not, as an ancestor,
descendant, brother or sister of either the whole or the
halfblood, uncle, aunt, nephew or niece.
PRE-CONVICTION DEFENSE STRATEGIES
HYPOTHETICALS
Issues:
Was he Convicted of a Sex Offense?
Does his Offense Fall Within the Consensual Sex Exception?
Has His Term of Registration Expired? Does that Depend on Whether He Has
Maintained a Clean Record? Does it Also Depend on the Date of His Alleged
Failure to Register?
When did he travel? Was it prior to a valid rule making SORNA applicable to him?
Broad Constitutional Issues:
Commerce Clause
Non-Delegation Doctrine
Tenth Amendment
Ex Post Facto
Venue
PRE-CONVICTION DEFENSE STRATEGIES
HYPOTHETICALS
Number 4:
Sean Olin was convicted in 2010 in North Carolina
of Taking Indecent Liberties with a Child and
began registering following his release from prison.
In 2012, he notified law enforcement officials that
he planned to move to New York but informed them
he was uncertain as to where he would eventually
live. Upon arriving in New York, he decided to
sleep on a friend’s couch at night in New York City.
He kept his personal belongings in his car. He
planned to stay for one week in New York City
before moving to Buffalo to live and start a new job.
On the sixth day, however, he was arrested by
police for public intoxication and it was discovered
that he did not register in New York. He was
prosecuted in North Carolina for failing to register
in New York.
PRE-CONVICTION DEFENSE STRATEGIES
HYPOTHETICALS
Issues:
Did He Fail to Register in North Carolina?
Has he established a residence in New York?
Did He Have to Register the Fact that He Had a New Job? Does it Matter When he
Learned of his New Job, i.e., before traveling or after?
Did he have to register his reside
Does His Offense Fall Within the Consensual Sex Exception?
Broad Constitutional Issues:
Commerce Clause
Non-Delegation Doctrine
Tenth Amendment
Ex Post Facto
Venue
SORNA
SENTENCING
STRATEGIES
SENTENCING STRATEGIES
U.S.S.G § 2A1.3
(a) Base Offense Level (apply the greatest):
(1)
16, if the defendant was required to register
as a Tier III offender;
(2)
14, if the defendant was required to register
as a Tier II offender; or
(3)
12, if the defendant was required to register
as a Tier I offender.
SENTENCING STRATEGIES
U.S.S.G § 2A1.3
(b) Specific Offense Characteristics
(1) (Apply the greatest): If, while in a failure to register
status, the defendant committed—
(A) a sex offense against someone other than a
minor increase by 6 levels;
(B) a felony offense against a minor not otherwise
covered by subdivision (C), increase by 6 levels; or
(C) a sex offense against a minor, increase by 8 levels.
SENTENCING STRATEGIES
U.S.S.G § 2A1.3
Specific Offender Characteristics, continued
(2)
If the defendant voluntarily (A) corrected
the failure to register; or (B) attempted to
register but was prevented from
registering by uncontrollable
circumstances and the defendant did not
contribute to the creation of those
circumstances, decrease by 3 levels
SENTENCING STRATEGIES
Problems with the Guideline




SOC May Apply Even Without Conviction
Commission uses much broader definition of a
minor that Congress in SORNA
Not all offenses within each Tier are equal
Only three level reduction for almost meeting
affirmative defense
SENTENCING STRATEGIES
Supervised Release


Guard against PSR recommendation for life
supervised release
Guard against over restrictive conditions that
are not supported including prohibitions
against alcohol, computer use, or adult
pornography