Sunday, March 21, 2010

Sex Offender Goes South, As Does His Defense

United States v. Van Buren, No. 08-6262-cr (2d Cir. March 17, 2010) (Walker, Straub, Livingston, CJJ)

A jury convicted Van Buren of failing to comply with the registration requirements of SORNA after he moved from his hotel in Binghamton, New York, to his mother’s house in North Carolina without updating his New York registration or registering in North Carolina.

On appeal, he first raised a host of constitutional challenges, all of which were foreclosed by United States v. Guzman, an intervening decision. See Moving Violations, posted January 7, 2010.

He also claimed that the district court erred in its jury instructions about the scope of SORNA's registration requirements. The statutory scheme requires a convicted sex offender to register, and keep the registration current - including providing the address of his residence - in each jurisdiction where he resides, is employed or is a student. In addition, within three business days after each “change” of residence, the offender must appear in person at an “appropriate office” and inform it of all changes in his information.

In the district court, Van Buren claimed that his termination of his hotel residence in New York was not a “change” in residence because he did not establish a new residence elsewhere. The government countered that leaving the hotel was by itself a sufficient “change” to trigger SORNA. The district court agreed that terminating a residence with no intention of returning requires a sex offender to update his information, and instructed the jury accordingly.

Van Buren pursued this claim on appeal, without success. The circuit held that Van Buren’s terminating his residence in New York to travel to North Carolina with no intention of returning qualified as a “change” in residence under any definition of the word “change.” It was a “change” in the sense of going from “something to nothing” and it was also a change in the sense of “going from something to something else.”

Moreover, regardless of the semantics, the circuit held that it was clear that SORNA covered Van Buren’s conduct. Indeed, its legislative history specifically notes that sex offenders’ moving from one state to another presents the “most significant enforcement issue in the sex offender program.” The statute is therefore not ambiguous such that the rule of lenity would apply.

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Blogger x684867 said...

As we begin seeing states (such as Georgia) increasingly use sex offender registries to register persons NOT convicted of sex offenses, I find myself asking you the citizen "Papers, please?" in my best mock Russian voice.

We are increasingly giving away our civil liberties without even requiring some factual justification. For example, we are told sex offender recidivism is 'high.' However, in reality data suggests this is not the case. But when confronted on this fact, one Texas lawmaker actually told me recently that 'you can't really use statistics.'

Hmmm...you can't use statistics? But isn't that implied in the presumptive statement that recidivism (a statistic) has a 'high' value? Yet, we discard other contrary statistics based on ACTUAL data...and thus we create retroactive laws such as SORNA.

Many people say sex offenders cannot be rehabilitated. However, the Texas State Auditor in 2007 released a report showing that sex offenders who completed the Texas Sex Offender Treatment Program (SOTP) were 61% LESS LIKELY to commit a new crime. That seems to show promise. (See “An Audit Report on Selected Rehabilitation Programs at the Department of Criminal Justice.” Texas State Auditor. March 2007. Report No. 07-026. Retrieved Oct 20, 2009. http://www.sao.state.tx.us/reports/main/07-026.html.)

After all, in 2002, the US Dept. of Justice reported that only 5% of sex offenders released in 1994 returned to prison for a new sex crime. (See US Dept of Justice Report on Sex Offender Recidivism http://www.ojp.usdoj.gov/bjs/pub/pdf/rsorp94.pdf.)

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