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Monday, December 22, 2008

Ind. Decisions - 7th Circuit decides two Indiana cases today, in one opinion

In U.S. v. Macrus Dixon (ND Ind., CJ Miller), and U.S. v. Thomas Carr (ND Ind., Judge Springmann), a 13-page opinion, Judge Posner writes:

We have consolidated for decision the appeals in two cases that raise overlapping issues, primarily under the ex post facto clause of Article I, section 9, of the Constitution.

Both defendants were convicted—Dixon after a bench trial on stipulated facts, Carr after conditionally pleading guilty—of violating the Sex Offender Registration and Notification Act (part of the Adam Walsh Child Protection and Safety Act of 2006), 18 U.S.C. § 2250. The Act, which went into effect on July 27, 2006, imposes criminal penalties on anyone who, being required by the Act to register, being a convicted sex offender under either federal or state law, and traveling in interstate or foreign commerce, knowingly fails to register as a sex offender, unless he can prove that “uncontrollable circumstances” prevented him from doing so. 18 U.S.C. §§ 2250(a), (b)(1). Congress instructed the Attorney General to “specify the applicability of the requirements of [the Act] to sex offend- ers convicted before [its enactment] or its implementation in a particular jurisdiction” and to “prescribe rules for the registration of any such sex offenders . . . who are unable to comply with” the requirement, also imposed by the Act, of registering before they are released from prison or, if they do not receive a prison sentence, within three days after being sentenced, and furthermore of re- registering within three days after a change of name, residence, employer, or student status. 42 U.S.C. §§ 16913(b), (c), (d). * * *

The Attorney General issued an interim regulation on February 28, 2007, that makes the Sex Offender Registration and Notification Act applicable to persons, such as Dixon and Carr, who were convicted of sex offenses before the Act was passed. 72 Fed. Reg. 8896, 28 C.F.R. § 72.3. They were convicted for failing to register in Indiana—to which they had come before the Act was passed—after the issuance of the regulation.

In Dixon's case, the Court writes:
Whatever the minimum grace period required to be given a person who faces criminal punishment for failing to register as a convicted sex offender is, it must be greater than zero.
In Carr's case, the Court writes:
Carr’s case, to which we now turn, is simpler than Dixon’s. Although his interstate travel like Dixon’s preceded the application of the Sex Offender Registration and Notification Act to him, and although he assumes (as Dixon argues) that the Act requires that the travel postdate that application, the only ground of his appeal is that his conviction violated the ex post facto clause. But he does not and cannot complain that he was not given enough time to register in Indiana in order to avoid violating the Act, because he admits that he had still failed to do so “on or about July, 2007,” almost five months after the Attorney General’s regulation was issued that made the statute applicable to him. Five months is a sufficient grace period. Remember that on our interpretation of the statute as filled out by the regulation, the duty to register does not come into force on the day the Act becomes applicable to a person, or on the next day or next week, but within a reasonable time; and Carr had a reasonable time within which he could have registered. Had he done so, he could not have been convicted of violating the Act. Since his violation was not complete when the Act became applicable to him, his rights under the ex post facto clause were not violated.

The judgment in Dixon’s case is reversed with directions to acquit; the judgment in Carr’s case is affirmed.

Posted by Marcia Oddi on December 22, 2008 12:03 PM
Posted to Ind. (7th Cir.) Decisions