USA v. Begay

Decision Date20 September 2010
Docket NumberNos. 09-10249, 09-10258.,s. 09-10249, 09-10258.
Citation622 F.3d 1187
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Brandon Dineshu BEGAY, aka Brandon Begay, aka Brandon Dineshe Begay, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Ozzy Carl Watchman, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

OPINION TEXT STARTS HERE

Milagros A. Cisneros, Assistant Federal Public Defender, Phoenix, AZ, for the defendants-appellants.

Joan G. Ruffennach, Assistant U.S. Attorney, Phoenix, AZ, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona, David G. Campbell, District Judge, Presiding. D.C. Nos. 3:08-cr-01203-DGC-1, 3:08-CR-01202-DGC-1.

Before: MARY M. SCHROEDER and JAY S. BYBEE, Circuit Judges, and IRMA E. GONZALEZ, Chief District Judge. *

OPINION

BYBEE, Circuit Judge:

Defendants-Appellants Brandon Dineshu Begay and Ozzy Carl Watchman (collectively, Defendants 1 ) are convicted sex offenders. They initially registered as sex offenders with the State of Arizona pursuant to the Sex Offender Registration and Notification Act (“SORNA”), but did not update their registration information when they moved to a different Arizona address within the territory of the Navajo Nation, a federally recognized Indian tribe. Defendants were indicted for failing to update their registration, in violation of 18 U.S.C. § 2250(a) and 42 U.S.C. §§ 16911 and 16913, and they moved to dismiss their indictments. The district court denied their motions, and Defendants now appeal that decision.

Defendants argue that SORNA did not require them to update their registration with the State of Arizona while they were residing in the Navajo Nation, and that they could not update their registration with the Navajo Nation because it had not yet established a sex offender registry. Based on these premises, they invoke SORNA's affirmative defense, which applies when “uncontrollable circumstances prevent[ ] the individual from complying” with SORNA. 18 U.S.C. § 2250(b)(1). Alternatively, they argue that if SORNA did require them to update their registration with Arizona, SORNA violates the Due Process Clause of the Fifth Amendment and the Ex Post Facto Clause.

We hold that SORNA required Defendants to update their registration with Arizona, and because nothing prevented them from doing so, no “uncontrollable circumstances prevented [them] from complying” with SORNA. Moreover, we hold that this application of SORNA violates neither the Due Process Clause nor the Ex Post Facto Clause. Thus, we affirm the district court's denial of Defendants' motions to dismiss their indictments.

I

We begin with the relevant background information: SORNA's history and framework, the Navajo Nation's experience with SORNA, and the facts and proceedings in each of the Defendants' cases.

a

In 1994, Congress enacted the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program (“Wetterling Act). 42 U.S.C. §§ 14071-73. Under the Wetterling Act, states were given three years to establish a sex offender registration program in compliance with the Act or forfeit 10 percent of federal funding for a state and local law enforcement assistance program. Id. § 14071(g). The Wetterling Act required convicted sex offenders to register their addresses with states, which would then relay this information to the FBI, establishing a national database of sex offender data. See id. § 14071(b)(2). The Wetterling Act also required states, pursuant to a 1996 amendment known as “Megan's Law,” to “release relevant information that is necessary to protect the public concerning a specific person required to register under this section, ... includ[ing] maintenance of an Internet site containing such information that is available to the public.” Id. § 14071(e)(2). As a result of the Wetterling Act, by 2000, all fifty states and the District of Columbia had both sex offender registration systems and community notification programs. However, Congress neglected to address Indian tribes in any way in the Jacob Wetterling Act or Megan's Law.” Virginia Davis & Kevin Washburn, Sex Offender Registration in Indian Country, 6 OHIO ST. J. CRIM. L. 3, 8 (2008).

On July 27, 2006, Congress enacted the Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act). Pub.L. No. 109-248, §§ 1-155, 120 Stat. 587, 590-611 (2006). Title I of the Adam Walsh Act established SORNA, the declared purpose of which was “to protect the public from sex offenders and offenders against children ... [by] establish[-ing] a comprehensive national system for the registration of those offenders.” 42 U.S.C. § 16901. SORNA was enacted to succeed and enhance the registration requirements of the Wetterling Act by expanding the offenses for which registration is required, requiring more information from registrants, increasing the frequency and duration of reporting, and imposing stricter penalties for failure to report. See id. § 16911 et seq.

The basic requirement under SORNA is that [a] sex offender[ 2 ] shall register, and keep the registration current, in each jurisdiction where the offender resides,[ 3 ] where the offender is an employee, and where the offender is a student.” Id. § 16913(a). SORNA further specifies the process by which a sex offender must [k]eep[ ] the registration current”:

A sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to [§ 16913(a) ] and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry. That jurisdiction shall immediately provide that information to all other jurisdictions in which the offender is required to register.

Id. § 16913(c).

SORNA imposes criminal penalties on sex offenders who fail to abide by its requirements, providing that [w]hoever ... knowingly fails to register or update a registration as required by [SORNA] shall be fined under this title or imprisoned not more than 10 years, or both.” 18 U.S.C. § 2250(a)(3). However, SORNA provides an affirmative defense for failure to register if (1) uncontrollable circumstances prevented the individual from complying; (2) the individual did not contribute to the creation of such circumstances in reckless disregard of the requirement to comply; and (3) the individual complied as soon as such circumstances ceased to exist.” Id. § 2250(b).

SORNA also expanded the jurisdictions included in the registration program, defining “jurisdiction” under § 16913(a) to include all fifty states, the District of Columbia, Puerto Rico, Guam, American Samoa, the Northern Mariana Islands, the Virgin Islands, and, [t]o the extent provided and subject to the requirements of section [16927] of this title, a federally recognized Indian tribe.” 42 U.S.C. § 16911(10). Section 16927 of Title 42, in turn, permits federally recognized Indian tribes to either (A) elect to carry out [SORNA] as a jurisdiction subject to its provisions; or (B) elect to delegate its functions under [SORNA] to another jurisdiction or jurisdictions within which the territory of the tribe is located.” Id. § 16927(a)(1).

Jurisdictions covered under SORNA were given three years-until July 27, 2009-to comply with its requirements, id. § 16924(a)(1), or face a reduction of federal funding, id. § 16925(a)(4). However, the statute gave the Attorney General the authority to “authorize up to two 1-year extensions of th[is] deadline.” Id. § 16924(b). On May 26, 2009, the Attorney General authorized a one-year extension of the deadline for jurisdictions to implement SORNA, until July 27, 2010. See Att'y Gen. Order No. 3081-2009 (May 26, 2009).

Unlike the state's obligation to implement SORNA, SORNA's registration requirements applied immediately and retroactively to all sex offenders regardless of when they were convicted. See 72 Fed.Reg. 8894, 8895 (Feb. 28, 2007) (“In contrast to SORNA's provision of a three-year grace period for jurisdictions to implement its requirements, SORNA's direct federal law registration requirements for sex offenders are not subject to any deferral of effectiveness. They took effect when SORNA was enacted on July 27, 2006, and currently apply to all offenders in the categories for which SORNA requires registration.” (emphasis added)); id. at 8896 (“SORNA requires all sex offenders who were convicted of sex offenses in its registration categories to register in relevant jurisdictions, with no exception for sex offenders whose convictions predate the enactment of SORNA.”). Thus, a sex offender's obligations to register and update his registration under SORNA are generally independent of a jurisdiction's implementation of SORNA's requirements. See United States v. George, 579 F.3d 962, 965 (9th Cir.2009) (“While states have until July 2009 to implement the administrative components of [SORNA], the statute became effective July 27, 2006, and registration under it became a requirement of federal law at that time.”); United States v. Brown, 586 F.3d 1342, 1348, 1349 (11th Cir.2009) (noting “the distinction between a jurisdiction's duty to implement SORNA”-on which that jurisdiction's federal funding is conditioned-“and a sex offender's duty to register,” and “agree [ing] with [its] sister circuits that a sex offender is not exempt from SORNA's registration requirements merely because the jurisdiction in which he is required to register has not yet implemented SORNA”).

B

In proceedings before the district court, Defendants submitted an affidavit prepared by Kathleen Bowman, the Public Defender for the Navajo Nation. This declaration states that, before the enactment of the Adam Walsh Act, the Navajo Nation Council (“Council”) passed a resolution enacting the Navajo Nation Sex Offenders Registration Act of 2005, which does not comply with...

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