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January 18, 2007

First(?) test of the new federal crime for failing to register as a sex offender

A helpful reporter has sent me a copy of a recent district court opinion, US v. Madera, No. 6:06-cr-202-Orl-1SKRS (M.D. Fla. Jan. 16, 2007) (download below), which is the first ruling I have seen addressing constitutional challenges to certain provisions of the the Adam Walsh Child Protection and Safety Act enacted by Congress last summer.

The ruling in Madera covers a lot of constitutional ground in the course of rejecting a motion to dismiss brought by a defendant "charged in an indictmcnt with one count of failing to register as a sex offender in violation of 18 U.S.C. 2250(a) and the Walsh Act."  Based on my quick read, I am not convinced the Madera opinion properly unpacks all the complicated issues raised here, and it seems inevitable that many courts may have to struggle with these issues before long.

Download Madera.pdf

UPDATE: Sex Crimes now has this discussion of Madera that zeroes in on the defendant's Commerce Clause challenge, with I see as just one of a dozen complicated aspects of the ruling.

January 18, 2007 at 07:28 AM | Permalink


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» Court Reviews Adam Walsh Child Protection and Safety Act from Sex Crimes
Sentencing Law and Policy has a copy of the opinion in US v. Madera, a case out of the Middle District of Florida. Madera was charged with failing to register as a sex offender in violation of 18 U.S.C. 2250(a) [Read More]

Tracked on Jan 18, 2007 11:31:39 AM


There was a U.S. magistrate opinion from the Western part of New York, perhaps Buffalo, in early December 2006 that was very pro-defense regarding the Adam Walsh Act. Wish I remembered more information perhaps one of our readers will be of assistance.

Posted by: David B. Chontos | Jan 18, 2007 3:06:13 PM

After reading Madera, I see the commerce clause anaylsis very weak. Jsut yesterday, I filed a Rule 35(a) motion regaridng the DNA Act and used the dissenting opinion in United States v. Reynard, 2007 U.S. App. LEXIS 665 (9th Cir. Jan. 12, 2007) to support my view. Judge Pregerson's dissent on the Commerce Clause has applciation here. Here is a snippet from my motion :

After identifying the “ ‘three general categories of regulation in which Congress is authorized to engage under its commerce power:’ (1) ‘the channels of interstate commerce;’ (2) ‘the instrumentalities of interstate commerce, and persons or things in interstate commerce;’ and (3) ‘activities that substantially affect interstate commerce’” Judge Pregerson zeroed in on the applicable authority.

“The first and third categories of Congressional authority to regulate instate commerce are not implicated by the facts of this case. Thus,
there is a need to determine whether the passage of the DNA Act is grounded on a valid exercise of Congressional authority to regulate interstate commerce under the second category.” Id., at *42.

In reaching his conclusion that Congress did not have proper authority, Judge Pregerson rationalized his result this way.

In contrast, by passing the DNA Act, Congress is attempting to regulate something that it -- and nobody else -- has put into the stream of commerce. Reynard's DNA -- while housed in his body –
is not a ‘thing’ in interstate commerce until the government, under the DNA Act, compels the DNA's extraction by drawing blood from a parolee and places the DNA in the stream of commerce for analysis. Congress may not bootstrap its authority to regulate purely local activity under the Commerce Clause. If the government is allowed to regulate anything that it puts into the stream of commerce, its powers under the Commerce Clause would be without limit. ‘To be sure, 'the power to regulate commerce, though broad indeed, has limits.' " Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 58, 123 S. Ct. 2037, 156 L. Ed. 2d 46 (2003) (quoting Maryland v. Wirtz, 392 U.S. 183, 196, 88 S. Ct. 2017, 20 L. Ed. 2d 1020 (1968)). By arguing that Condon authorizes Congress to regulate Reynard's DNA only after the government has placed it in interstate commerce, the government puts the proverbial cart before the proverbial horse.

Id., at *45-46.

Posted by: David B. Chontos | Jan 18, 2007 3:20:00 PM

David the case you are referring to is from Western District Of New York.

USA -v- Crowell, Swiat, Bremer

Link: http://www.nynd-fpd.org/news/wdny%20adam%20walsh%20bail%20order.pdf

Posted by: wavemix | Jan 22, 2007 3:05:03 PM

My concern is that a lot of defendants involving sex offenses in California plea their cases under of People v. West (1970) 3 Cal.3d 595. West is the seminal case discussing the legality of plea bargaining in California, and is cited for many, many legal propositions. However, a "West plea" is most likely to stand for a plea which "does not constitute an express admission of guilt but only a consent to be punished as if guilty." (People v. Bradford (1997) 15 Cal.4th 1229, 1334.) Typically, the defendant stipulates to a factual basis for the plea. (See, e.g., People v. Westbrook (1996) 43 Cal.App.4th 220, 223 [factual basis from grand jury transcripts].) Most of those case, the defendant also pleas no (People v. Harvey (1979) 25 Cal.3d 754) Absent a waiver by defendant, a sentencing court is not permitted to rely upon information relating to counts dismissed in accordance with a plea bargain.

Importantly, such defendants plea nolo contendre. Of course, as a matter of criminal law, nolo contendre standing on its own means "guilty." However, pleading West with no Harvey waiver, gives that nolo contendre a different legal dimension. Defendant pleading under West consciously, willingly and knowingly acknowledges no guilty “but a consent to be punished as if guilty.” So, when a defendant involving non-forcible/violent sex offenses, plea under West of sodomy and copulation with a minor over the age of 15 years old, and that plea with its expressed limitations and structure of the plea under West with no Harvey waiver, should be given substance, when new laws are enacted that fail to take in consideration the substance, process and agreement reached by the People with the Defendant, when classifying such a defendant under either Megan law, Jessica Law or the Adams Welsh Act.

However, clearly neither the Justice Department nor the Legislature have taken time to look into the substance as to whether a non-forcible/violent first time sex offender, without no prior criminal sexual convictions or otherwise, pleading under the protection and provision of West with no Harvey waiver falls outside the literal interpretation of “actual offense”. Especially, when one pleads with the understanding, acknowledge, approval and order of the trial Court that the defendant presumption of “innocence” continue to attach even after sentencing. In one case, the Deputy District Attorney altered the plea agreement, forged some of the defendant’s initials to include registration, when in fact, registration was not included as a condition of the plea. However, the trial Judge ruled on the Motion to Withdraw the Plea, that the Office of the District Attorney can unilaterally change the agreement, because according to the trial Judge the “plea agreement” is the “work-product” of the District Attorney. This defendant continues to fight to overturn his illegal conviction, in pro se, and to date the Court have shut both ears to his plea.

Now, the U.S. Government has added that if a sex offender convicted or adjudicated delinquent in state court is required to register under SORNA, and knowingly fails to register or update a registration as required, and the sex offender engages in interstate or international travel or enter or leaves or resides in Indian country, then the offender can be prosecuted under 18 U.S.C. 2250, the federal failure-to-register offense. The time for such offense is approximately 10 years. However, the above defendant only received 18 months, and that there was no 18 U.S.C. 2250 in existence. However, is this law not expo facto, when it increases the time a defendant who served his time, can spend on a civil violation of not registering?

Why is it that the State or Federal Public Defenders’ Offices and defense counsels are at bay, nothing vigorously challenging this injustice. If a person commits a crime governed only by State law, why are we allowing the Federal Government to added a new statute to further punish, under pretext and color of law, this group of individuals? Can someone explain it to me like I am a three year old.

Posted by: caswar | Oct 17, 2007 6:12:46 PM

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