Author: Marcus J. Berghahn

SORNA: Sex Offender Registration and Notification Act General Overview

Adam Walsh Child Protection and Safety Act of 2006 42 U.S.C. § 16902, Pub.L. 109-244, Title I, § 103, July 27, 2006, 120 Stat. 591
A.
Basics of the Legislation
1. Signed into law on July 27, 2006
• Congress did not name a precise date on which the sex offender provisions are to be effective, other than to set a deadline for implementation by all jurisdictions: July 27, 2009.
• Just in case you thought this piece of legislation (passed on voice votes and signed by President Bush in a Rose Garden ceremony) wasn’t political theater, note that numerous parts of the Act are named after 17 specific individuals all of whom were victims of violent crimes committed by sex offenders.
— Signed on occasion of 25th anniversary of Adam Walsh’s abduction and murder – his parents (his father, John Walsh is the host of America’s Most Wanted) are formally recognized in § 2 of the Act.
2. http://www .justice.gov/criminal/ceos/Adam%20W alsh.pdf
3. States must come into “substantial compliance” with Adam Walsh Act’s requirements in order to receive federal appropriations for law enforcement purposes (known as Byrne grants which represent 10% of funds under Omnibus Crime Control and Safe Streets Act of 1968).

Marcus J. Berghahn WACDL 2009
II.
4. Supercedes Jacob Wetterling Act (42 U.S.C. §14071) B. What does the Adam Walsh Act do?
1. Created new criminal offenses.
2. Expanded federal jurisdiction over existing offenses.
3. Increased statutory mandatory minimum sentences.
4. Abrogated statute of limitation for most sex crimes.
5. Changed Fed. R. Crim. Pro 16 (relating to discovery) to limit defense access to computer evidence in child porn cases.
6. Expanded government’s ability to get DNA from those who have NOT been convicted of a crime; based solely on an arrest.
7. Created civil commitment as sexually violent person (an analog to WIS. STAT. CH. 980).
8. Created civil causes of action and damages for victims of sexual offenses of up to $150,000.
9. Established requirements for a national sex offender registry.
Sex Offender Registration and Notification Act
A.
Two Parts
1.
Dru Sjodin National Sex Offender Registry • Requires the Attorney General to maintain a website
which shall include relevant information for each sex

Marcus J. Berghahn WACDL 2009
B.
offender and other person listed on a jurisdiction’s Internet site.
• The website is supposed to allow the public “to obtain relevant information for each sex offender by a single query for any given zip code or geographical radius set by the user in a form and with such limitations as may be established by the Attorney General …”
2. Megan Nicole Kanka and Alexandra Nicole Zapp Community Notification Program
• Requires states to notify federal program “immediately after a sex offender registers or updates a registration about that offender.”
• The information is provided to (1) National Sex Offender Registry; (2) appropriate law enforcement agencies; (3) school and public housing in which the individual resides or is an employee; (4) any agency responsible for conducting employment related background checks; (5) social service agencies responsible for protecting minors in the child welfare system; volunteer organizations in which contact with minors or vulnerable individuals might occur; (6) anyone who requests notification.
SORNA – Sex Offender Registration & Notification Act
1.
Effective date of July 27, 2009.
•
Creates federal criminal penalties for failing to register as a sex offender and sets a minimum standard for state operated sex offender registries.

Marcus J. Berghahn WACDL 2009
2. Details delegated to Attorney General to work out. • guidelines
— 28 C.F.R. 72.3 (2007) (addressing retroactivity) — 72 FED. REG. 103 (May 30, 2007)(implementation)
• SORNA registration requirements are retroactive and apply as well to those whose convictions predate SORNA’s enactment.
• A state will be deemed to have “substantially implemented” SORNA with respect to sex offenders whose convictions predate the enactment or implementation of SORNA of the state registers (1) those incarcerated or under supervision for the registration offense or some other offense; (2) those who are already subject to pre-existing sex offender registration requirement; and (3) those who reenter the “jurisdiction’s justice system because of conviction for some other crime. Tier I offenders are to be recaptured within 1 year, Tier II offenders within 6 months and Tier III offenders within 3 months.
• Failure by states to implement SORNA does not relieve individuals subject to act of their obligation to register under SORNA.
3. Constitutional challenges
• Generally, challenges to SORNA raise some (or all) of the following legal issues:
http://www .ojp.usdoj.gov/smart/pdfs/final_sornaguidelines.pdf
Marcus J. Berghahn WACDL 2009

— ex post facto * retroactivity
* travel (1) prior to July 27, 2006, (2) between July 27, 2006 and February 28, 2007, and (3) continuing offense
— commerce clause — due process — non-delegation
— federal government encroaching on state sovereignty in violation of Tenth Amendment to U.S. Constitution
• Decisions on challenges to constitutionality (by federal circuit):
— United States v. Gould, 568 F.3d 459 (4th Cir. 2009)(punishment did not violate ex post facto clause and Congress did not exceed power under commerce clause).
— United States v. Hatcher, 560 F.3d 222 (4th Cir. 2009)(SORNA requirements did not apply to pre- SORNA offender until after Attorney General issued rules specifying application to those offenders).
— United States v. Young, 2009 WL 3192872, __ F.3d __ (5th Cir. 2009), (SORNA did not violation ex post facto clause).

Marcus J. Berghahn WACDL 2009
— United States v. Whaley, 577 F.3d 254 (5th Cir. 2009)(SORNA did not exceed Congress’s authority under commerce clause; due process not violated; not impermissible delegation of autho rity).
— United States v. Cain, 583 F.3d 408 (6th Cir. 2009)(Registration requirement of SORNA does not apply to defendant who traveled prior to promulgation of rules by Attorney General).
— United States v. Dixon, 551 F.3d 578 (7th Cir. 2008)(Congress did not violate separation of powers in enacting SORNA; act does not violate due process and no ex post facto violation).
— United States v. May, 535 F.3d 912 (8th Cir. 2008)(application of SORNA did not violate ex post facto, due process or commerce clause).
— United States v. Hacker, 565 F.3d 522 (8th Cir. 2009)(defendant lacked standing to raise claim of violation of 10th Amendment; SORNA does not violate due process).
— United States v. Zuniga, 579 F.3d 845 (8th Cir. 2009)(SORNA did not violate ex post facto clause or commerce clause or non-delegation doctrine; defendant had no standing to raise claim of violation of 10th Amendment).
— United States v. Juvenile Male, 581 F.3d 977 (9th Cir. 2009)(retroactive application of juvenile registration requirement violated ex post facto clause).

Marcus J. Berghahn WACDL 2009
C.
To whom does SORNA apply?
4.
— United States v. George, 579 F.3d 962 (9th Cir. 2009)(SORNA did not violate commerce clause of ex post facto).
— United States v. Hinckley, 550 F.3d 926 (10th Cir. 2008)(SORNA did not violate commerce clause or ex post facto).
— United States v. Lawrance, 548 F.2d 1329 (10th Cir. 2008)( no ex post facto, commerce clause or due process violation).
— United States v. Ambert, 561 F.3d 1202 (11th Cir. 2009)(no violation of ex post facto, procedural due process, right to travel, Congress’s authority under commerce clause and improper delegation).
— United States v. Brown, 2009 WL 3643477, __ F.3d __ (11th Cir. 2009) (no due process violation when defendant convicted under SORNA even though government did not inform him of duty to register and the state to which he moved had not yet implemented SORNA).
Successful legal challenges to SORNA
• http://www .fd.org/odstb_SelectDismissal.htm
1. 2.
SORNA is more broad that registration requirement under Wisconsin law.
Applies to anyone convicted of certain qualifying offenses prior to July 27, 2006 and since that date.

Marcus J. Berghahn WACDL 2009
• Qualifying offenses: 42 U.S. Code § 16911(1)
— Any state, local, tribal, military or foreign criminal offense, including attempt or conspiracy that
* has an “element involving a sexual act or sexual contact with another” 42 U.S.C. § 16911(5)(A)(I)
* is a “specified offense against a minor,” which is an offense against a minor (i.e., under 18). 42 U.S.C. § 16911(5)(A)(ii), (14):
* involved kidnaping (unless committed by a parent or guardian)
* involved false imprisonment (unless committed by a parent or guardian)
— solicitation to engage in sexual conduct
— use in a sexual performance
— solicitation to practice prostitution
— video voyeurism as described in 18 U.S.C. § 1801
— possession, production or distribution of child pornography
— criminal sexual conduct involving a minor
— use of internet to facilitate or attempt criminal sexual conduct involving a minor
— “[a]ny conduct that by its nature is a sex offense against a minor”

Marcus J. Berghahn WACDL 2009
— is a Federal offense under 18 U.S.C. §§ 1152, 1153, 1591 or chapters 109A (sexual abuse), 110 (sexual exploitation of children, with certain exceptions) or 117 (transportation for illegal sexual activity and related crimes).
3. What if defendant is convicted of these misdemeanor offenses?
• Fourth degree sexual assault (WIS. STAT. § 940.225 (3m)) — Yes, this is a qualifying sex offense.
• Lewd & lascivious conduct (WIS. STAT. § 944.20) • Sexu al gratification (W IS. ST A T. § 944.17) • Public fornication (WIS. STAT. § 944.15)
— No. So long as the acts were consensual and did not involve a minor.
• Sexual intercourse with a child > 16 years of age (WIS. STAT. § 948.09)
— Yes/No. This offense may be a sex offense under SORNA. Whether the offense qualifies depends on the ages of the offender and the victim; if offender is more than 4 years older than victim, registration is required.
4. What about expunged convictions?
•
An expunged conviction involving a sex offense remains subject to SORNA.
— SORNA Guidelines, § IV , A

Marcus J. Berghahn WACDL 2009
D.
What does registration under SORNA entail?
1. Identifying information on the individual, employment and computer use.
• Names, aliases & remote communications identifiers and addresses
• Social security number • Residence, lodging & travel information
— notification requires personal appearance of offender at prescribed intervals
• Employment information • School information • V ehicle information • Da te of b irth
• physical description • Text of registration offense • Criminal history and other criminal justice information • Current photograph, DNA, fingerprints and palm prints • Driver’s license or identification card • Keep the information current
— registration must be kept current in jurisdiction

Marcus J. Berghahn WACDL 2009
E.
where the offender resides, is an employee or is a stud ent.
— if there is a change in residence, employment or student status, offender must appear in at least one of the jurisdictions to notify officials of changes to his status. Such notification must occur within 3 business days.
— Regular verification appearance requirement (§ 116) must be conducted at least annually for tier I, semiannually for tier II and quarterly for tier III; must take current photograph
What about Juvenile delinquency adjudications?
1.
Juvenile delinquency adjudications DO NOT QUALIFY
•
SORNA applies to juvenile adjudication ONLY IF — the juvenile was at least 14 years old at the time of
the offense AND
— the offense was comparable to or more severe than aggravated sexual abuse (18 U.S.C. § 2241) or attempt or conspiracy to commit aggravated sexual abuse. 42 U.S.C. § 16911(8).
— under the final guidelines the definition of a “sexual act” is comparable to aggravated sexual abuse. That is “engaging in a sexual act with another by force or the threat of serious violence; or engaging in a sexual act with another by rendering unconscious or involuntarily drugging the victim.”

Marcus J. Berghahn WACDL 2009
F.
— “Sexual act” is understood to include any degree of genital or anal penetration, and any oral- genital or oral-anal-genital contact.
• according to DOJ, “to meet the minimum standards for substantial compliance, jurisdictions ARE NOT REQUIRED to register juveniles adjudicated delinquent of a SORNA sex offense simply because the offense involves a sex act with a person under the age of 12, without more.
• May premise determination on the elements of the offense and are not required to look to underlying conduct that is not reflected in the offense of conviction.
— See United States v. Juvenile Male, 581 F.3d 977 (9th Cir. 2009)(retroactive application of juvenile registration requirement violated ex post facto clause)
Exceptions to qualifying offenses
1.
2.
Consensual sexual conduct
•
BUT NOT IF: — the victim was an adult under the offender’s
“custodial authority” or
— the victim was at least 13 years old and the offender was more than 4 years older. 42 U.S.C. § 16911(5)(C).
Interpretation of qualifying offenses
• See Amy Baron-Evans and Sara F. Noonan, ADAM WALSH ACT – PART II (Sex Offender Registration and

Marcus J. Berghahn WACDL 2009
Notification Act)(November 20, 2006) available at http://www.fd.org/odstb_AdamWalsh.htm
G. What if the offender was not required to register under state law and has completed his criminal justice sentence?
1. Individual remains subject to SORNA, notwithstanding that he will not be notified by state/federal government of this obligation.
• If he is charged with a new crime, then he will be “recaptured” and notified of his obligation to register.
2. Several compelling arguments in favor of a defendant in such a case can be found at
H. Tier Classification 1. SORNA classifies offenders as Tier I, II or III. Each category
has increasingly onerous requirements and consequences.
• Tier system used to classify offenses and determine length of registration requirements. Also tiers correlate to punishment for failure to register or update information.
2. Tier I
• Sex offense which is punishable by a term of imprisonment of more than one year and
http://www.fd.org/pdf_lib/adam%20walsh%20part%20ii.pdf
—
is comparable to or more severe than the following or an attempt or conspiracy to commit such an offense:
Marcus J. Berghahn WACDL 2009

* aggravated sexual abuse (18 U.S.C. § 2241), sexual abuse (18 U.S.C. § 2242) whether against an adult or minor, abusive sexual contact (18 U.S.C. § 2242) against a minor under the age of 13, or involves “kidnaping of a minor” (unless committed by a parent or guardian), or
* occurred after she/he became a Tier II sex offender.
— Tier I offender must keep registration current and remain posted on local and national websites for 15 years. Length may be reduced by 5 years if individual maintains a “clean record” for 10 years.
— “Clean record” means
* no conviction for an offense punishable by more than one year;
* no conviction for any “sex offense” as defined by 42 U.S.C. § 16911(5) – (8);
* successful completion of “any periods” of supervised release, probation and parole; and
* successful completion of “an appropriate sex offender treatment program” certified by a jurisdiction or the Attorney General.
* See 42 U.S.C. § 16915

Marcus J. Berghahn WACDL 2009
3.
Tier II
• A sex offender, other than a Tier I “sex offender” whose offense.
— The offense is punishable by imprisonment of more than one year and
— is comparable to or more severe than the following or an attempt or conspiracy to commit such an offense:
* sex trafficking (18 U.S.C. § 1591)
* coercion and enticement (18 U.S.C. § 2422(b ))
* transportation with intent to engage in criminal sexual activity (18 U.S.C. § 2423(a))
* abusive sexual contact (18 U.S.C. § 2244) or — “involves”
* use of a minor in a sexual performance
* solicitation of a minor to practice prostitution
* production or distribution of child pornography, or
* occurred after she/he became a Tier I sex offender
— Tier II offender must keep registration current and remain posted on local and national websites

Marcus J. Berghahn WACDL 2009
I.
What happens if an offender does not register under SORNA?
1. The enforcement provision of SORNA provides that if an individual is required to register under the act or is a sex offender (as defined in SORNA) by reason of a conviction under Federal law or travels in interstate or foreign commerce (or enters or leaves, or resides in, Indian country) and 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.
2. It is an affirmative defense that uncontrollable circumstances prevented the individual from complying; the individual did not contribute to the creation of such circumstances in reckless disregard of the requirement to comply; and the individual complied as soon as such circumstances ceased to exist.
4.
for 25 years. — No relief for “clean record.”
Tier III
•
A Tier III “sex offender” is a sex offender other than a Tier I or II “sex offender.”
— Tier III offender must keep registration current and remain posted on local and national websites for life or 25 years if individual maintains a “clean record” for that period and the offense was a juvenile delinquency adjudication.
•
18 U.S.C. § 2250
—
jurisdiction established by proof that the offender engaged in interstate/international travel or travel to “Indian country.”

Marcus J. Berghahn WACDL 2009
III.
* 10 year maximum; 5 year consecutive sentence.
— Consecutive 10 mandatory minimum for failure to register if required to do so and offender is convicted of committing an enumerated felony offense.
Other Noteworthy Changes Resulting from Adam Walsh Act
A .
Discovery
1. The Adam W alsh Act effectively nullifies FED R. CRIM. P. 16 – the federal analog to WIS. STAT. § 971.23(1)(g) – in child pornography cases.
• United States v. Knellinger, 471 F.Supp. 2d 640 (E.D. Va 2007)(restrictions imposed by Adam W alsh Act do not unduly burden defendant’s Fifth and Sixth Amendment rights to due process and fair trial, but government’s failure to provide defendant with “ample opportunity” to examine hard drive required providing copy to defendant).
• United States v. Renshaw, 2007 WL 710239 (S.D. Ohio)(rejecting challenge to constitutionality of statute);
• United States v. Battaglia, 2007 WL 1831108 (N.D. Ohio)(same).
• Ian Friedman and Kristina Walters, How the Adam Walsh Act Restricts Access to Evidence, THE CHAMPION (January/February 2007)(available at www.nacdl.org)

Marcus J. Berghahn WACDL 2009
2.
Wisconsin courts will follow this approach
• State v. Bowser, 2009 WI App 114, 772 N.W.2d 666 (upholding protective order entered by circuit court that allowed defense team access to hard drive allegedly containing child pornography at a state facility and, further, prohibited defense from copying the hard drive).
B. Restitution
1. United States v. Michael Berk, (08CR212)(D. Me 2009)(defendant sentenced for possession of child pornography. “Amy” and “Vicky,” two individuals allegedly depicted in pornographic images that Berk possessed sought restitution under 18 U.S.C. § 2259 in the amount of $3,367,854 (for “Amy’s” mental health expenses, lost income, attorney’s fees and miscellaneous expenses). “Vicky” sought $151,002.91 in restitution for future counseling expenses, miscellaneous expenses and attorney’s fees. The court declined to order the restitution requested).
2. The results of 20 cases where victims have sought restitution have been mixed. In one, a federal court in Florida ordered a defendant to pay “Amy” $3,200,000.
C. Forfeiture
1. The Adam Walsh Act provides that property may be subject to forfeiture including any property constituting or traceable to gross profits from the offense and any property constituting or traceable to the means for committing or promoting the offense. See, e.g., United States v. Leitner, (08CR153)(D. Ky., 2009) (according to government press release defendant was required to forfeit his home after he was sentenced to 188 months imprisonment because of high volume of images and length of time defendant used his home to download and view child pornography).

Marcus J. Berghahn WACDL 2009
[091130]
Marcus J. Berghahn WACDL 2009

Marcus J. Berghahn concentrates his practice on the defense of individuals and corporations accused of criminal misconduct. Marcus is a graduate of the University of Wisconsin Law School and has practiced criminal defense with Hurley, Burish & Stanton, S.C., since 1996. He has co-taught (with Dean Strang) a seminar on constitutional law at the University of Wisconsin Law School for the past three semesters. Marcus’s practice is evenly split between state and federal trial work and appeals. His ability has been recognized in his AV rating by Martindale Hubbell and his being named a “Rising Star” by Milwaukee Magazine.