United States v. Elkins, 11–30135.

Citation2012 Daily Journal D.A.R. 7891,12 Cal. Daily Op. Serv. 6501,683 F.3d 1039
Decision Date14 June 2012
Docket NumberNo. 11–30135.,11–30135.
PartiesUNITED STATES of America, Plaintiff–Appellant, v. Joshua A. ELKINS, Defendant–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

OPINION TEXT STARTS HERE

Michael C. Ormsby, United States Attorney, and Matthew F. Duggan of Spokane, WA, and Lanny A. Breuer, Assistant Attorney General, Greg D. Andres and Scott A.C. Meisler (argued) of Washington, D.C., for the plaintiff-appellant.

Kailey Moran and Matthew Campbell (argued) of Spokane, WA, for the defendant-appellee.

Appeal from the United States District Court for the Eastern District of Washington, Lonny R. Suko, District Judge, Presiding. D.C. No. 2:10–cr–00133–LRS–1.

Before: D.W. NELSON, A. WALLACE TASHIMA, and CONSUELO M. CALLAHAN, Circuit Judges.

OPINION

CALLAHAN, Circuit Judge:

Congress, by enacting the Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. § 16901 et seq., in July 2006, sought to establish “a comprehensive national system for the registration” of sex offenders and offenders against children. 42 U.S.C. § 16901. In October 2010, a single count indictment issued against Joshua A. Elkins in the United States District Court for the Eastern District of Washington, charging him with traveling in interstate commerce and knowingly failing to register under SORNA in violation of 18 U.S.C. § 2250(a). On Elkins's motion, the district court dismissed the indictment on the ground that applying SORNA to Elkins on the basis of his pre-SORNA Washington conviction as a juvenile sex offender was punitive and therefore a violation of the Ex Post Facto Clause of the United States Constitution. The government appealed.

Following the approach set forth by the Supreme Court in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), we conclude that applying SORNA to Elkins based on his state conviction as a juvenile sex offender is not punitive. We further conclude in light of United States v. Crowder, 656 F.3d 870 (9th Cir.2011), that on the present record there is a sufficient basis for a factfinder to determine that Elkins knowingly failed to register in violation of § 2250(a). Accordingly, the district court's dismissal of the indictment must be reversed.

I

On February 10, 1994, when Elkins was fourteen years old, he pled guilty to child molestation in the first degree in the Superior Court of Washington for Skagit County. The Order of Disposition listed Elkins as “a middle offender,” committed him to state care for 80 to 100 weeks, and instructed him to register as a sex offender.1 Elkins first registered with Washington in August 2000.

After being released from state custody on other charges, Elkins failed to register, and was convicted of a state failure-to-register offense in 2009. Elkins subsequently updated his registration in Washington in February, March, and April 2010. The registration forms Elkins signed also described his obligations should he move out of state.2

Sometime after April 2010, Elkins left Washington and traveled to his mother's home in California. He was arrested in California in September 2010 on a Washington warrant issued for a state probation violation. According to the government, Elkins told officers that he had intended to go from California to Florida, where he believed the Washington warrant would not be binding.”

On October 19, 2010, a one-count indictment was returned against Elkins in the Eastern District of Washington. The indictment alleges that Elkins, “a person required to register under the Sex Offender Registration and Notification Act, traveled in interstate commerce and did knowingly fail to register and update a registration, all in violation of 18 U.S.C. § 2250(a).”

In March 2011, Elkins filed a motion to dismiss the indictment, raising three arguments: (1) “the Government failed in performing its duty to inform Mr. Elkins of his responsibilities to register in violation of 42 U.S.C. § 16917 and therefore a conviction under 18 U.S.C. § 2250(a) would be a violation of the due process clause”; (2) prosecution of Mr. Elkins under SORNA is a violation of the ex post facto clause as the conviction that subjects him to registration requirements occurred prior to the enactment or implementation of SORNA”; and (3) “application of SORNA's juvenile provision violates the ex post facto clause.”

Following argument on the motion, the district court made several factual determinations:

(1) “it is factually correct the State of Washington has not done those things that are necessary to comply with SORNA;”

(2) “there is no notice in any of the materials that were supplied to the defendant that he had a duty under federal law to register under SORNA. That is uncontested and appears to be clear in the record;”

(3) [w]hile it may be true that the argument could be made that, since he was aware of the state requirement, he should have made further inquiry concerning the federal requirement. There's nothing in the materials that have been supplied suggesting that the state, at any time, undertook to give him that notice or that he was provided that notice orally or otherwise;” and

(4) “the materials that were supplied to him have no statements in them concerning travel and no warning concerning whether or not there might be a criminal violation if he does not register under federal law.”

The district court then noted that it was influenced by United States v. Juvenile Male, 590 F.3d 924 (9th Cir.2010) (“Juvenile Male I ”), even though that case concerned a federal, not a state, conviction.3 The district court concluded that the application of SORNA to Elkins was punitive, explaining:

[In] this case, the original violation occurred 18 years ago; 1993 with a juvenile finding or conviction in 1994; no violations during the interim, apparently, that relate to this type of conduct, although there's a criminal record, if I've understood correctly.

Nevertheless, SORNA requires a higher classification system of hire [ sic ] risk. It imposes a lifetime—apparently a lifetime registration requirement that the state law does not. It requires posting of a picture. It requires that the defendantmore often appear in person when directed to comply with the statute. It also requires, in the event of a conviction for violation, a far more serious guideline sentence.

Are those [requirements] punitive in nature as applied in this case? I'm going to read from [Juvenile Male I, 590 F.3d at 936]: “Because SORNA's juvenile registration provision, retroactively applied to former juvenile offenders, imposes a serious disability by making public otherwise confidential delinquency records relating to sexual offenses, and because the in-person registration requirement is substantially burdensome, SORNA's juvenile registration provision imposes an onerous ‘affirmative disability or restraint’ on former juvenile offenders,” citing [ Kennedy v.] Mendoza–Martinez, 372 U.S. [144] at 168 [83 S.Ct. 554, 9 L.Ed.2d 644 (1963) ], parallel citation omitted. “As we have already stated, this factor weighs heavily in support of a finding that SORNA's juvenile registration requirement has a punitive effect. Given the severity of its burdens, it would be difficult to reach any other conclusion.”

Now, I'm recognizing that, in the State of Washington, our legislature, at an early date, required registration, potentially, of juvenile offenders. However, that doesn't open the door to allow the federal statute to be applied differently in this state than it would be applied in another state that doesn't have such a liberal, open-door policy concerning juvenile defenders and their records.

Given that fact, it would be my conclusion that the federal law, as applied in this case, would find that this matter should be dismissed; and I'm going to grant the defendant's motion based upon the Juvenile Male decision.

The district court entered its order of dismissal on April 29, 2011, and the government filed a timely notice of appeal.

II

In deciding this appeal, we first consider whether the application of SORNA to Elkins violates the Ex Post Facto Clause of the Constitution.4 We separately consider whether applying SORNA to Elkins is punitive in effect because the registration requirement (1) is based on a pre-SORNA conviction, and (2) is based on Elkins's conviction as a juvenile sex offender. After concluding that there is no constitutional barrier to applying SORNA to Elkins, we briefly address his contention that SORNA cannot be applied to him because the government failed to provide him with adequate notice of SORNA. We conclude that under our precedent, the government is required to prove only that Elkins knew he was required to register as a sex offender. Accordingly, we reverse the district court's dismissal of the indictment and remand the case to the district court for further proceedings.

A. Applying SORNA to Elkins Does Not Violate the Ex Post Facto Clause
1. Requiring an individual to register under SORNA based on a conviction entered prior to SORNA's enactment does not violate the Ex Post Facto Clause.

Elkins argues that the application of SORNA to his pre-SORNA conviction is retroactive and unconstitutional because the requirement that he register is based on a prior conviction and he became subjectto SORNA after its enactment without any further action on his part. He further argues that SORNA is punitive because the failure to register statute exists in the criminal title (18 U.S.C. § 2250(a)), SORNA creates a new federal crime, and it subjects offenders to a potential ten-year prison term.

Article I, Section 10 of the Constitution bars the enactment of any law that “imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” Russell v. Gregoire, 124 F.3d 1079, 1083 (9th Cir.1997) (internal citation and quotation marks omitted...

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