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January 7, 2010

Two notable (and notably different) Second Circuit reversals on sex offender issues

The Second Circuit has two notable rulings in sex offender cases today.  Here are the basics, with summaries drawn from the rulings:

US v. Guzman, No. 08-5561 (2d Cir. Jan. 7, 2010) (available here):

Appeals from orders of the United States District Court for the Northern District of New York (Hurd, J.), entered on (1) September 23, 2008, dismissing the indictment in United States v. Hall; (2) October 17, 2008, dismissing the superseding indictment in United States v. Guzman; and (3) December 4, 2008, denying the government’s motion for reconsideration in United States v. Hall. The basis for each order was that the requirement of the Sex Offender Registration and Notification Act that Appellees register as convicted sex offenders and keep their registrations up to date, 42 U.S.C. § 16913, exceeds congressional power under the Commerce Clause. The district court rejected all of Appellees’ other arguments in support of dismissal. REVERSED and REMANDED.

US v. Reeves , No. 08-2966 (2d Cir. Jan. 7, 2010) (available here):

Appeal from a sentence imposing a condition of supervised release requiring Defendant to notify the Probation Department upon his entry into a significant romantic relationship and to inform the other party of his offense of conviction. We conclude that the release condition is unduly vague and not reasonably related to the goals of sentencing. VACATED and REMANDED.

I found this paragraph from the Reevesruling especially astute and amusing:

We easily conclude that people of common intelligence (or, for that matter, of high intelligence) would find it impossible to agree on the proper application of a release condition triggered by entry into a “significant romantic relationship.” What makes a relationship “romantic,” let alone “significant” in its romantic depth, can be the subject of endless debate that varies across generations, regions, and genders. For some, it would involve the exchange of gifts such as flowers or chocolates; for others, it would depend on acts of physical intimacy; and for still others, all of these elements could be present yet the relationship, without a promise of exclusivity, would not be “significant.” The history of romance is replete with precisely these blurred lines and misunderstandings. See, e.g., Wolfgang Amadeus Mozart, The Marriage of Figaro (1786); Jane Austen, Mansfield Park (Thomas Egerton, 1814); When Harry Met Sally (Columbia Pictures 1989); He’s Just Not That Into You (Flower Films 2009).

I will leave it to others with more refined historic artistic sensibilities to decide whether Mozart and Austen would be aghast or pleased to now appear in a string cite with He’s Just Not That Into You.

January 7, 2010 at 10:42 AM | Permalink


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Further evidence that judges prefer recent authority from lower jurisdictions to old cases from the highest tribunals.

Posted by: Matthew G. | Jan 7, 2010 11:52:49 AM

Surely, Mozart would be delighted, while Austen might declare the author of Reeves a "nefarious creature."

Posted by: dch | Jan 7, 2010 11:58:38 AM

What is particularly bothersome in Reeves is that the Court imposed a condition that: (A) Is not normally seen in cases like this; (B) Was not requested by either party; (C) Was not briefed or subjected to adversary testing.

I have long believed that sentencing courts should not have the authority to impose a penalty or condition that is beyond what the government had requested. But if courts have that authority, they should at least be compelled to give notice to both parties, so that the issue can be properly briefed and argued.

Posted by: Marc Shepherd | Jan 7, 2010 12:50:52 PM

When I was a law clerk, I remember hoping I'd have an opportunity for a cheeky citation like that. Now I am glad it did not come up, because I generally think it is very hard to pull off this kind of winking, ironic reference (look at me! I'm citing a Drew Barrymore movie! And it's going in the F-Third!) without appearing to show a lack of respect for the parties, especially in a criminal case.

(As you may have guessed, I don't think the court here pulled off that difficult trick.)

Furthermore, I tend to assume this kind of thing is clerk-driven, with the judge aquiescing out of a sort of "you've worked so hard all year, I guess I owe you a little bit of fun" attitude. That may not always be the case, but that nagging feeling also bothers me. Again, treating lines in opinions as cheap rewards for staff is not giving sufficient respect to the parties. (The clerk spends the rest of his career telling everyone how cool the judge is because she let him cite The Clash in an order, while the litigant is left to ponder how the lyrics to "Should I Stay or Should I Go" explain why he will be spending an extra 3 years in prison.)

Posted by: Observer | Jan 7, 2010 4:33:24 PM

While I could imagine situations where citations to popular culture would be problematic or disrespectful, I don’t see how that’s the case here. There’s clearly no disrespect to the defendant, who is getting exactly what he wants, and the examples chosen admirably illustrate the exact point that the court wishes to make.

Posted by: Marc Shepherd | Jan 7, 2010 4:53:52 PM

Guzman is fascinating in one respect. Could registration under state law fulfill all the obligations of federal registration if the state requirements are not as comprehensive? How could fair notice of the federal requirement coincide with the state requirement when the state requirement cannot fulfill the federal requirement, which is much more detailed and broader on information that must be provided? In other words, how can one know that the partial state requirements will fulfill the more comprehensive federal requirements when the states had not adopted SORNA yet?

It's like owing a $1 fine to the state, and $5 to the federal government, only the state didn't adopt the federal $5 fine yet and paying the $1 fine could never be enough to satisfy the federal requirement.

Posted by: Anon | Jan 7, 2010 5:32:10 PM

I'm inclined to agree with Marc, and to disagree with Observer's conclusion even though I agree with his/her premise that it's a "difficult trick" to pull off. I am generally against humor in opinions, and especially so in criminal cases, but in this case, it's actually an excellent illustration.

On the rare case that humor is well used in an opinion, it's generally to illustrate a patent absurdity. As I have no difficulty saying that the condition of supervised release at issue in Reeves was patently absurd, I thought this citation made the point better than a case cite could have.

Posted by: Matthew | Jan 8, 2010 12:18:13 PM

I'd let the these clerks get whatever jollies they can since their prospects at the white shoe firm trough have dried up recently. Nowadays former clerks have to actually *work* for a living when their tenure is up. Perish the thought!

Posted by: Ferris Bueller | Jan 8, 2010 12:39:03 PM

regarding Reeves, the probation condtion doesn't even really make that much sense - especially when you consider that with the sex offender registry being readily available its not like Reeves icky perv status will be obscure. actually, the warning potential romantic partners provision makes more sense for the fraud conviction since that info isn't as readily available as the sex offender registry.

regarding the cite, considering that Mozart's operas and all comic operas in general were mass entertainment at the time - they would have been the 19th century equivilent of a Hollywood movie. if Mozart would be aghast at anything, it would be that his music somehow became considered elitist and highbrow. its not like the court cited Richard Wagner.

Posted by: virginia | Jan 8, 2010 3:40:51 PM

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