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5-3-2007 Texas:
Tyler Man Sentenced For Failure To Register As Sex Offender |
.A 46-year-old Tyler man - the first person to be convicted in Texas under the Adam Walsh Act for failing to register as a sex offender - was sentenced Wednesday to one year in prison. Anthony Michael Mihaley pleaded guilty Feb. 16 for failing to register as a sex offender since December 2005, when he lived in Tyler. He was sentenced by U.S. District Judge Michael Schneider. [[[[SNIP]]]]
On Tuesday, Fredrich Deandrea Gholston, also known as Frederick D. Gholston, pleaded guilty in Tyler federal court to failing to register as a sex offender. The 33-year-old man, convicted of a sex crime in Ohio, failed to register as a sex offender in Titus County from Sept. 1, 2004, through Oct. 25, 2006.
..more..
: by CASEY KNAUPP
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5-4-2007 Texas:
Sex Offender Facing Up To 10 Years After Failing To Register |
.A 33-year-old man convicted of a sex crime in Ohio was one of the first men to be convicted in Texas under the federal Adam Walsh Child Protection and Safety Act for failing to register as a sex offender when he moved to East Texas. Fredrich Deandrea Gholston, also known as Frederick D. Gholston, pleaded guilty in U.S. Magistrate John Love's Tyler court. He faces up to 10 years in prison. [[[[SNIP]]]
Anthony Michael Mihaley, 46, Tyler, was the first person to be convicted in Texas under the Adam Walsh Act for failing to register as a sex offender. He pleaded guilty Feb. 16 for failing to register as a sex offender since December 2005, when he lived in Tyler.
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: by CASEY KNAUPP
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.It looks like the Adam Walsh Act (AWA) is going to be a source for many articles on, how not to create laws!
I have been following AWA cases prosecuted in Federal court when the charge is "Failure to Register" when crossing state lines. Thanks to my readers they have continued to report them and can be found at the bottom of 12-3-06 "Former sex offenders are being illegally prosecuted, in Federal court, for registration issues under the Adam Walsh Act".
Now, a journalist in Texas has reported facts which add a new disturbing light to these cases. He reported two cases, in two articles, on two different days, so it is confusing to separate the cases. From the two original articles on the right, I have pulled the relevant facts for each case for my discussion:
FACTS: Case-1 (C1):
Anthony Michael Mihaley, 46, Tyler, was the first person to be convicted in Texas under the Adam Walsh Act for failing to register as a sex offender. He pleaded guilty Feb. 16 for failing to register as a sex offender since December 2005, when he lived in Tyler.
He had arrest warrants in Washington, Nevada and Colorado for failing to register.
Assistant U.S. Attorney Gregg Marchessault and U.S. Public Defender Ken Hawk, who represented Mihaley, agreed on a one-year sentence.
FACTS: Case-2 (C2):
Fredrich Deandrea Gholston, also known as Frederick D. Gholston, pleaded guilty in U.S. Magistrate John Love's Tyler court. He faces up to 10 years in prison.
Gholston, who was convicted for gross sexual imposition in Butler County, Ohio, in 1998, failed to register as a sex offender in Titus County from Sept. 1, 2004, through Oct. 25, 2006.
The defendant was sentenced for the 1998 conviction to four years in prison and was ordered to fulfill the requirements of a habitual sex offender for 20 years. But when he was released from prison, Gholston failed to register as a sex offender in Ohio. When the sex offender moved to Mount Pleasant, where he lived for about two years, he failed to notify police of his new address.
New facts revealed by the Texas journalist, and never mentioned in any other case of this type prosecuted in federal courts:
"For a failure-to-register case to be federal, the defendant must knowingly fail to register as a sex offender when required to do so and, if convicted on state charges (underlying sex offense), must cross state lines."
Analogy:
Folks on parole or probation are excluded from my comments as they are completely under the control of their state of conviction.
"Knowingly fail to register when required to do so" --- "after crossing state lines," that is where we begin. When a person physically leaves state "A" and enters state "B" the laws of state "A" are no longer applicable to him. A critical fact that I believe has been ignored in these cases.
Continued--
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Continued--
Case-1:
Mihaley left Texas in December of 2005, and moved to another state. Whatever state he moved to, how does he know he has to register in the new state? He doesn't and the law doesn't accept assumptions so there is no reason why he should. Harsh, yes, but true, the law is based on facts.
Congress knew that to be true as well, that is why -in part- they enacted AWA, to overcome movement between states and state laws being jurisdictional. So in Case-1, how did Federal court prove Mihaley -knowingly had to register, after moving to state 'B'-? Now, my guess, when he lived in Texas they had him sign a -broad form- stating he knew what Texas law required him to do as to registration in Texas.
However, even if, Texas laws told Mihaley, he must register if he moves to another state, Texas cannot prosecute him for something he didn't do in another state. Laws are jurisdictional, they cease at the state border!
So, very likely in federal court the prosecutor presented that Texas form, and that ended the "knowingly" question. The Defense attorney saying nothing, and not arguing that the Texas -broad form- is not applicable to any other state, nor in federal court. Technicality? Yes, but that is the law.
Congress is aware of that circumstance, and added a section to AWA to resolve that specific issue. Congress added Sec. 117 "Duty to Notify Sex Offenders of Registration Requirements and to Register." Within that Sec. the USAG is required to A) Notify persons when they are convicted; and, B) Develop a system to notify any former sex offender because they were convicted in the past; and, C) Get a signed form from each registrant stating they know what their duties are (AWA Compliance Form, likened to the Texas form).
Multiple problems now arise:
The USAG has not notified anyone as required by Congress (Due Process), so should Mihaley be convicted of a crime because the USAG has not done his job? NO! In fact, AWA is not applicable to Mihaley until Sec. 117 is complied with by the USAG (Due Process). Mihaley did not know he was supposed to register in the state he moved to. The Federal court has been hoodwinked.
Now, a second reason why Mihaley is not guilty of a federal crime. Mihaley crossed state lines in 2005, AWA was not enacted until 7-27-2006, and was not retroactive until the USAG decided to make it retroactive in February of 2007. How can a man be guilty of a crime when there was no law making his actions criminal when done? A classic ex post facto law and violation!
CALDER v. BULL, 3 U.S. 386 (1798), ex post facto prohibitions, ("I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action , done before the passing of the law, and which was innocent when done, criminal; and punishes such action.")
Finally, Mihaley should be in state court where he would be convicted of failure to register, and there may be a difference in his sentence. But, the main difference is, in federal court under AWA he will wind up under the jurisdiction of the Bureau of Prisons. Then at or near the end of his sentence, he will be subjected to civil commitment proceedings under another section of AWA which he would not face in state courts. That issue is in another Op-Ed of mine.
Case-2:
Gholston's case has a slight twist, apparently he was released from prison (not paroled), and was sentenced in Ohio to "fulfill the requirements of a habitual sex offender for 20 years." Based on the conviction in 1998 and 4-years in prison, he likely was released in 2002 and registered in Ohio, but moved out of Ohio around August - September 2004, because they claim he failed to register from 9-1-2004 to 10-25-2006.
Now Gholston is the same as the Mihaley case, Gholston moved out of state in 2004. Federal court likely, although erroneously, used the Ohio -broad form- to prove "knowingly" as in the Mihaley case and Sec. 117 of AWA is again applicable here with the same result, the USAG did not do his job. In addition, Gholston moved in 2004, there was no law making that a crime, therefore, like Mihaley, Gholston should not be convicted when his actions were innocent. Again, Calder -v- Bull is applicable.
Summarizing:
Again a debacle! The innocent actions of these men are being criminalized violating the ex post facto clauses. Innocent, yes, there was no law making crossing state lines and not registering, a criminal act in the years before 2006 which is when both of these men crossed state lines. However, there were laws in the state which these folks moved to, to criminalize the failure to register, and that is who should be prosecuting these folks.
So to those who ask, what is the difference? The hidden AWA punishment, once under the jurisdiction of the Federal Bureau of Prisons, these folks will be subjected to civil commitment proceedings. In today's climate, that could mean a life sentence without release.
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