Congratulations to AFPD Ed Weiss who scored a dismissal of a failure to register prosecution brought under SORNA in the S.D. of W.Va!

Congratulations to AFPD Ed Weiss who scored a dismissal of a failure to register prosecution brought under SORNA in the S.D. of W.Va!

Ed argued (among other things) that SORNA did not apply to his client, who had been convicted of state sex offenses in 1995, released in 2005, and indicted for failing to register under SORNA on Nov. 26, 2006. The district court agreed and made a couple of important points that will be useful in other SORNA prosecutions:

1. The court found that the plain language of the statute required the AG to issue regulations before SORNA could be applied retroactively to people convicted of sex offenses before July 27, 2006. Those regulations were not issued until Feb. 28, 2007. Accordingly, the court found that the statute could not be enforced as a matter of law against people (like Ed's client) who were convicted before July 27, 2006 and charged with failing to register before Feb. 28, 2007.

2. The court found that under the plain language of the statute, defendants convicted of sex offenses before SORNA must have specific notice of their obligations to register under SORNA . It is not enough to show knowledge of some other registration obligation. As support for this reading, the court pointed to section IX of the DOJ's newly proposed guidelines, which were published for comment on May 30, 2007, see 72 Fed. Reg. 30210-01. Section IX acknowledges the statute's express notice obligations and gives some examples of how those obligations would be met in cases involving retroactive application of SORNA, including the following (with emphasis added):

Example 2: A sex offender is required to register for life by a jurisdiction based on a rape conviction in 1995 for which he was released from imprisonment in 2005. The sex offender was initially registered prior to his release from imprisonment on the basis of the jurisdiction's existing law, but the information concerning registration duties he was given at the time of release did not include telling him that he would have to appear periodically in person to verify and update the registration information (as required by SORNA § 116), because the jurisdiction did not have such a requirement at the time. So the sex offender will have to be required to appear periodically for verification and will have to be given new instructions about that as part of the jurisdiction's implementation of SORNA.
The court found that because there was no way to notify or register the defendant as required by SORNA at the time alleged in the indictment, the defendant "could not have knowingly violated SORNA, as SORNA did not apply to him. His registration under West Virginia's laws was not sufficient to notify him of any requirement to comply with SORNA."

NOTE that no jurisdiction has yet implemented SORNA (except maybe Ohio). Anyone with a client facing a SORNA prosecution should use this case and its reasoning to support their argument that SORNA cannot be applied to anyone who did not recieve specific notice under SORNA of their registration obligations. ..more.. Judge's Decision by Sara E. Noonan, Research & Writing Specialist, Sentencing Resource Counsel, Federal Public and Community Defenders, 408 Atlantic Avenue 3d floor, Boston, MA 02110