Prosecutors Need Not Prove Actual Notice of Sex Offender Registration Requirement – U.S. v. Crowder

September 7, 2011 by David S. Seltzer

As a south Florida sex crimes criminal defense attorney, I work with clients who are subject to sex offender registration laws, or will be if convicted. When I handle sex cases, in fact, I work hard to avoid sex offender registration requirements when possible, because they are a heavy burden to carry and last for the rest of the defendant’s life. In fact, thanks to the federal Sex Offender Registration and Notification Act, defendants are required to register in every state and to notify officials promptly if they move between states. And as the Ninth U.S. Circuit Court of Appeals reminded us in United States v. Crowder, there are heavy consequences for ignoring these registration laws. In this case, Kevin Leroy Crowder moved from the state of Washington to Montana about a year after finishing a prison sentence for child molestation. The court ruled that he can be prosecuted for failing to register when he moved despite no “actual knowledge” of the requirement.

Crowder signed a form disclosing the notice and registration requirements when he started his prison sentence, and another with similar disclosures when he registered on release from prison. Despite the registration requirement and a sentence of three to four years of probation, he moved from Washington to Montana about a year after his release, notifying neither state. He camped for a few months in a national forest but was arrested in a convenience store in Bozeman. At a bench trial, he pleaded not guilty to violating SORNA and unsuccessfully argued that he did not receive “actual notice” of the requirement. In essence, he said the statute requires not only that he knowingly fail to register — a fact he did not dispute — but that he know that SORNA requires registration. He was convicted and appealed.

The Ninth Circuit declined to overturn the conviction. In general, it said, the Supreme Court reads “knowingly” in a way that does not criminalize innocent conduct. However, it found that failure to register is not innocent conduct. Registrable sex offenders know or should know about their registration requirements “Because state registration schemes have been around for years in all 50 states[.]” Because that failing to register is already illegal at the state level, prosecutors need not show defendants knew about the exact statute they were violating; it is enough that they knew or reasonably should have known that the conduct was illegal. Nor did Congress show any intent to have the statute interpreted otherwise, the Ninth said. It also rejected Crowder’s argument that the law requires actual notice, through provisions asking the U.S. Attorney General to design notification for offenders not notified in other ways. This language does not suggest a requirement for the government to prove the offender knew about SORNA. In so ruling, the Ninth joined nearly every other circuit court in finding no notice requirement.

As a Fort Lauderdale sex offender registration defense lawyer, I am disappointed but not surprised by this ruling. Sex offender registration is generally quite strict, and courts are not inclined to show lenience to people who violate them unless there is a mitigating factor like genuinely trying to register and being unable to. Nonetheless, I believe this decision, and others like it, does a disservice to offenders who have been given bad information from their local police agencies and are not in a position to discover more. Sex offenders frequently live on the margins of society, in part because it’s tough for them to find jobs and in part because residency restrictions make it tough to find living space (which in turn contributes to the job problem). Someone who has never been out of Florida before may not realize that other states even have registration requirements, which would undermine the Ninth Circuit’s reasoning. As a Miami registration violations attorney, I would like to be able to defend my clients by pointing to this kind of actual ignorance.

Based in Miami, Seltzer Law, P.A., represents clients throughout Florida who are charged with all types of serious crimes. And because we know criminal charges don’t just happen from 9 to 5, we answer our calls 24 hours a day and seven days a week. To learn more or set up a free consultation, send us a message online or call 1-888-THE-DEFENSE (1-888-843-3333).

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