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News & Noteworthy © ---
Special Report 5-12-07 |
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Another Adam Walsh Act Debacle!
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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.
..more..
: 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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News & Noteworthy © ---
Special Report 5-1-07 |
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Why the Madera case must be appealed!
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5-1-2007 Florida:
Sex-offender sentence tests Adam Walsh law |
.With no precedent to rely on, an Orlando federal judge on Wednesday declined to send a New York sex offender to prison under a tough new law that punishes those who fail to register when they move across state lines. Following through on comments he made at Wilfredo Madera's plea hearing three months ago, Senior U.S. District Judge G. Kendall Sharp sentenced him to four years of probation and fined him $500. At a Jan. 11 hearing before Madera pleaded guilty as part of a deal with prosecutors, Sharp said he was inclined to dismiss the case or give Madera no prison time.
Sharp, at the time, criticized the government's case and told Madera he would throw out the case if the felon registered the next day. But an exasperated prosecutor reminded Sharp that he had "no legal standing" to do that and the judge reversed himself, acknowledging his error. He then called the law "constitutional" as written and denied a defense request to dismiss the case. Madera, who was arrested in October as part of a nationwide crackdown on sex offenders by the U.S. Marshals Service, was the first person in the nation to be convicted under the Adam Walsh Child Protection Act.
On Wednesday, he became the first to be sentenced under that law. Assistant U.S. Attorney Cynthia Hawkins immediately protested Sharp's sentence and said her office will likely take the case to the 11th Circuit Court of Appeals in Atlanta. "The government will object to the sentence imposed as being unreasonable and not taking into account the seriousness of the offense and specifically the defendant's past criminal history," Hawkins told Sharp. [[[[SNIP]]]]
According to an affidavit by Deputy U.S. Marshal Laura Sofia, Madera and his family moved to West Palm Beach in June [2006] and two months later relocated to Orlando. Once in Florida, Madera had up to 10 days to register as a sex offender.
..more..
: by Pedro Ruz Gutierrez
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.In my 12-3-06 Op-Ed "Former sex offenders are being illegally prosecuted, in Federal court, for registration issues under the Adam Walsh Act" I explained why some Failure to Register cases were being illegally prosecuted in federal courts. I still stand by my reasoning there, but there is another reason in the Madera case.
Manifest Injustice: Cases of first impression often lack presentation of all possible avenues of relief and instead focus on one issue. Here in the Madera case his lawyers missed some very fundamental requirements which if presented would have led to a dismissal of the federal charges and a remand to state court. The judge almost caught the error but then said he misspoke when in fact he should have looked closer at the evidence. The prosecutor, in my opinion, bamboozled the judge resulting in a miscarriage of justice.
Facts:
A) The affidavit filed in federal court shows Madera moved from New York to Florida in June of 2006. The exact date in June is unknown.
B) President Bush signed the Adam Walsh Act (AWA) on July 27, 2006 in memory of the death of John Walsh's son.
Analogy:
Think about this, prior to the AWA there was no federal law prohibiting moving from one state (New York) to another (Florida) without registering. Remember, even if New York's registration law says, when you move to another state you must register, that doesn't give New York jurisdiction to prosecute someone if they don't follow that suggestion.
Now, it is also true that Florida, if they are somehow notified that Madera moved into their state and didn't register when Madera should have under the laws of Florida, yes Florida can prosecute Madera if they can find him. Madera would be subject to the penalty stated in Florida registration laws for failure to register.
There was no federal law in -June 2006-, when Madera moved between states, to prohibit Madera from moving between states. Hence, federal court did not have jurisdiction! Further, Madera was convicted (January 2007, by pleading guity, not by a review of the evidence. Madera was somehow mislead or scared into taking a plea!) even before the USAG made AWA retroactive in February of 2007.
Now, on July 27, 2006 along comes AWA, and on February 28, 2007 the USAG interim rule makes AWA retroactive, retroactive to the beginning of time. Also included in AWA is a NEW law prohibiting movement between states without registering. Remember, a new law, meaning it didn't exist before those dates, but which date?
It doesn't matter because Madera moved before both dates! Federal court does not have jurisdiction.
Now, in October 2006 the US Marshall's office arrests Madera in Florida now, who moved from New York in June of 2006, for crossing state lines and failing to register in Florida. Next, in federal court he is prosecuted under AWA and convicted BECAUSE he accepted a plea.....i.e., he pled guilty (right he was improperly informed by his attorney.)
Remember, he pled guilty, now the judge is faced with multiple legal questions, but NONE raised by the attorneys in the case. The judge is BARRED from raising NEW issues [issues not raised by the parties or their attorneys] because he will be seen as defending one side or the other. The judges hands are tied.
So, the judge, at sentencing time, knows this case should be appealed, and I also believe the judge also knows he messed up in the first hearing, so what does he do, he makes SURE it will be appealed, he sentences Madera to a sentence not permitted by AWA.
Hence, this case will be appealed...for multiple reasons which were not apparent in the beginning of the case.
As to the federal court action: CALDER v. BULL, 3 U.S. 386 (1798), ex post facto prohibitions, prohibits Madera's prosecution ("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.")
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News & Noteworthy © ---
Special Report 12-3-06 |
Former sex offenders are being illegally prosecuted, in Federal court,
for registration issues under the Adam Walsh Act!
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Early 2006 AWA Violations
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11-17-2006 Pennsylvania:
Sex offender runs afoul of new law |
.A former York County man is the first person from central Pennsylvania to be charged under a new federal law that requires convicted sex offenders to register with authorities if they move to another state, U.S. Marshal Michael R. Regan announced yesterday. Scott F. Kapp, 43, formerly of Lower Windsor Twp., was arrested yesterday in Fort Lauderdale, Fla.
He had been indicted Wednesday in U.S. Middle District Court and charged under the sex offender registration and notification act, also known as the Adam Walsh Child Protection and Safety Act. President Bush signed the act into law July 27. Kapp pled guilty to sexual assault on Jan. 20, 1998, in York County Court.
He was released from prison in November 2001 and registered as a sex offender and listed his address in Lower Windsor Twp., Regan said. In January 2003, Kapp failed to renew his registration as required by law, Regan said. If convicted, he faces up to 10 years in federal prison.
..more..
: by IRVIN KITTRELL III
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11-14-2006 Arkansas:
New law helps to track sex offenders |
.The U. S. attorney’s office and the U. S. Marshals Service in western Arkansas are working with local law enforcement to crack down on convicted sex offenders who come from other states but fail to register. The Marshals Service arrested one man last month and issued a warrant Thursday on a second man for failing to register in Fort Smith as sex offenders. The cases were aided by provisions in the federal Adam Walsh Child Protection and Safety Act of 2006, Chief Deputy Marshal Mike Blevins said Monday.
Deputy marshal Dave Cook said Dustin Markel, 64, was arrested Thursday in Orlando, Fla., on a warrant issued in Fort Smith. Cook said Markel, who has had a string of sex-offense convictions since the 1960 s, failed to register as a sex offender when he moved from California to Arkansas. Markel was supposed to go before a magistrate Monday in Orlando to determine his identity and the validity of the warrant in preparation for being returned to Arkansas, Blevins said. The Marshals Service issued the warrant for Markel under the new federal law that President Bush signed in July.
Among other things, it allows for federal prosecution of sex offenders who cross state lines and fail to register in their new residence. The law “closed a huge loophole in sex-offender management,” Fort Smith Detective Wendall Sampson said. Sampson, who heads the department’s sex-offender section, said the law extends local law enforcement’s reach in reeling in offenders who have moved to other parts of the country. Also, he said, the sentence for failing to register as a sex offender is stiffer for a federal conviction — 10 years — than the state penalty, which is four years.
People at Creekmore Park in Fort Smith became suspi- cious Sept. 26 when they saw Markel sitting on a park bench watching young girls at play, Sampson said. They called police. When the responding officer checked Markel’s criminal history, he found Markel had been designated in Florida as a mentally disordered sex offender. Cook said Markel also had been convicted of sex crimes in Arkansas, Missouri, Oklahoma, California and Ohio.
Sampson was unable to locate and arrest Markel after establishing probable cause, so he turned to the Marshals Service for help. Cook said he was able to track down Markel, and federal authorities arrested him in Orlando on Cook’s warrant. Officials wouldn’t say how long Markel had been living in Arkansas or what he was doing in Florida. In the other case, Fort Smith police learned last month that Eugene Manning, 52, had been living in Fort Smith since January and failed to register as a sex offender from a 1996 conviction in Delaware. Manning is charged in Sebastian County Circuit Court with failing to register, but Cook said the federal government may take over the prosecution under the Adam Walsh Act.
..more..
: by DAVE HUGHES
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10-29-2006 Utah:
Federal marshals, police step-up effort to nab sex offenders |
.Squads of federal marshals and police rounded up hundreds of sexual predators and gang members in the eastern half of the United States as part of a nationwide manhunt that included 26 arrests in the city of Pittsburgh on Wednesday. Deferring to the U.S. Justice Department, Pittsburgh police said they couldn't discuss the charges or provide any details. But some of those caught here were sex offenders; others were fugitives with warrants for a variety of other felonies.
Attorney General Alberto Gonzalez will announce the national results on Thursday in Washington, D.C., and locally U.S. Attorney Mary Beth Buchanan plans a news conference to detail the arrests in the 25-county Western Pennsylvania district. The roundup is the second part of a national effort to hunt down sex offenders. The first phase was in April, when the marshals arrested 1,102 fugitives on various sex offense charges in 27 states west of the Mississippi River.
A similar operation last year, which targeted mostly violent repeat offenders, netted 10,340 fugitives across the United States, the largest fugitive apprehension in history. In this region, more than 100 were captured. This time the marshals and local police concentrated heavily on Megan's Law violators and other sexual predators, including those who have failed to register as sex offenders or are not living at the addresses where their Megan's Law form says they should be.
Keeping track of sex offenders has long been a headache for police who are often overburdened with other duties. But this year a new law has designated the marshals service as the lead agency to hunt them down across the U.S. The law, the Adam Walsh Child Protection and Safety Act, was signed by President Bush on July 27, the 25th anniversary of the abduction and murder of 6-year-old Adam Walsh in Florida. Adam's father, John Walsh, is the host of "America's Most Wanted." He and his wife, Reve, attended the signing in the White House Rose Garden.
Under the law, convicted sex offenders who fail to register with local authorities will be charged with a felony in the U.S. District Courts. Previously, each state dealt with failure to register differently. The first man in the country to be charged with the new federal crime of failure to register is John Henry Gill, 47, who was indicted last week in Salt Lake City. The marshals' new initiative has parallels with the Justice Department crackdown on illegal guns under Project Safe Neighborhoods, in which the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives is the designated agency for pursuing ex-cons caught carrying weapons, a federal crime.
The marshals will assume a similar role for convicted sex offenders. Although he was not among those caught last week, one local example of the kind of fugitive the marshals will pursue is Larry M. Williams, 33, of Lincoln-Lemington, who was arrested at a North Side mosque this summer. In addition to being wanted on federal weapons charges, he was also wanted for failure to register as a sex offender following his rape conviction in the state of Washington. Since the Adam Walsh law went into affect, deputy marshals have been training with the National Center for Missing and Exploited Children to get up to speed on Megan's Law registry and child predator issues.
..more..
: by Torsten Ove, Pittsburgh Post-Gazette
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.We have found cases (see sidebar: Pennsylvania, Arkansas, Utah), and our readers have found more (See panel below, several), that indicate former offenders are being ILLEGALLY PROSECUTED in Federal court under the Adam Walsh Act (AWA).
While Federal court does have jurisdiction to prosecute offenders for registration issues under AWA! It would be unconstitutional to do so when offenders have not been notified as Congress wanted. This does not mean that an appropriate state court cannot prosecute these offenders for registration issues under their existing state registration laws.
In an apparent effort to seize headlines the USAG has jumped the gun. AWA requires the US Attorney General to perform certain acts and notifications before anyone can be held accountable under AWA.
The US AG has not performed those acts or notifications, hence these offenders are being denied due process and being subjected to punishments in excess of what they would receive under their individual state laws for the acts charged, -OR- in a case of a person who had served a federal prison sentence, whatever the punishment was under the law BEFORE AWA (ex; Wynne, Ark. below).
AWA mandates that the US AG shall issue guidelines and regulations to interpret AWA. 42 USC 16912. As of today, these guidelines and regulations have not yet been issued, and no state can enact AWA provisions until they get these rules and guidelines!
Further, 42 USC 16917 (Duty to notify sex offenders of registration requirements and to register)
(a) indicates that offenders shall be notified before release from custody or immediately after sentencing. (In addition, a form is required to be signed by the offender. That is prospective notification to new offenders. (Offenders convicted after AWA was enacted)).
(b) states, the USAG "shall prescribe rules" to notify sex offenders who cannot be notified under subsection (a). (Subsection (b) pertains to ALL former offenders! Offenders convicted before AWA was enacted.)
No such notification has yet taken place, the USAG has simply ignored the law. The news articles indicate these former offenders failed to register, or moved, BEFORE AWA was even signed by the President. There is no way former offenders would know of AWA provisions, especially if they failed to register (or update their registration) before AWA became law.
In addition to the above USAG errors, the USAG has yet to decide whether or not AWA is to be applied retroactively, a discretionary decision (42 USC 16913(d)) but under 42 USC 16917(b) he is required to make. Further, the USAG in conjunction with each state's Attorney General must decide if any state legal principles would be violated by applying AWA retroactively. 42 USC 16913(d), 16925(b).
Within the issues raised above are several other sub-issues which are likely to be raised if lawyers will get to know AWA.
Today these Federal charges should be dismissed with prejudice and allow the respective states to prosecute under their individual state laws, -OR- in a federal case the old registration law.
Note: No state has yet to amend their laws to conform with AWA. Remember, no state has yet received the AWA guidelines so they know how to conform their state registration laws to AWA because the USAG has not issued them.
eAdvocate
Adam Walsh Act Mandates USAG To:
(42 USC 16912) SEC. 112. REGISTRY REQUIREMENTS FOR JURISDICTIONS.
(a) Jurisdiction To Maintain a Registry- Each jurisdiction shall maintain a jurisdiction-wide sex offender registry conforming to the requirements of this title.
(b) Guidelines and Regulations- The Attorney General (USAG) shall issue guidelines and regulations to interpret and implement this title (AWA).
(42 USC 16917) SEC. 117. DUTY TO NOTIFY SEX OFFENDERS OF REGISTRATION REQUIREMENTS AND TO REGISTER.
(a) In General- An appropriate official shall, shortly before release of the sex offender from custody, or, if the sex offender is not in custody, immediately after the sentencing of the sex offender, for the offense giving rise to the duty to register--
(1) inform the sex offender of the duties of a sex offender under this title (AWA) and explain those duties;
(2) require the sex offender to read and sign a form stating that the duty to register has been explained and that the sex offender understands the registration requirement; and
(3) ensure that the sex offender is registered.
(b) Notification of Sex Offenders Who Cannot Comply With Subsection (a)- The Attorney General (USAG) shall prescribe rules for the notification of sex offenders who cannot be registered in accordance with subsection (a).
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UPDATE: Readers continue to find cases (violations):
(All because the USAG does not do his job)
5-15-07: In a Florida news article ("Unregistered Sexual Predator Arrested" by Florida Emerald Coast.com):
A convicted sexual predator living in Panama City, but never registered as a Florida resident, will be the first defendent to be prosecuted federally under the Adam Walsh Act in the Northern District of Florida. John Guadalupe Gonzales, 55, was arrested Wednesday by U.S. Marshals Violent Fugitive Task Force members and officers with the Florida Department of Law Enforcement after a brief surveillance in a local park. He was taken into custody without incident after the Task Force stopped his car on West Collegiate Drive in the city.
3-27-07: In a Louisiana news article ("Outlaw Sex Offender Darrel Sanchez Update" by KLFY TV 10):
The US Marshall's Office is officially charging Darrell Sanchez with failing to register as a sex offender under the new Adam Walsh Act. Investigators say Sanchez is a convicted sex offender from Nevada who was staying in Port Barre. Port Barre Police identified the suspect during a routine traffic stop. Officials with the US Marshal's Office say Sanchez is now being held in federal custody.
4-19-2007 UPDATE: New Child Predator Law Put To Test by KATC.com
An out-of-state sex offender, now in the St. Martin Parish jail, is one of the first to be arrested and prosecuted under a new federal law. The Adam Walsh Law, which President Bush signed last year, prevents sex offenders from moving state-to-state without being detected.
During a traffic stop in Port Barre, police discovered Darrell Sanchez, a convicted sex offender moved from Nevada to Louisiana and didn't register here. Sanchez was convicted in California then moved to and registered in Nevada.
Deputy U.S. Marshal Eddie Langlinais, in the Lafayette office, says Sanchez was living in Port Barre about a couple of months without notifying authorities. Guidelines are more stringent under federal law. Sex offenders have three days to register. Since Sanchez moved from Nevada to Louisiana, and stayed under the radar, Langlinais says he'll be the second person to be prosecuted under the Adam Walsh Law.
Sanchez' attorney, Lester Gauthier, says he has filed for a motion to dismiss the case against Sanchez. Gauthier says his client was not obligated to register as a sex offender in California.
3-23-07: In a Texas news article ("Sex offender indicted under new law" by MySA.com):
Federal prosecutors on Friday announced the first indictment in Central and West Texas of a man accused of violating a new law that targets sex offenders who fail to register with authorities. A federal grand jury in Waco indicted Ricky Dean Lucas of Lorena under the Adam Walsh Act, which makes not registering a federal crime punishable by up to 10 years in prison. Lucas was released from a Texas prison on Oct. 13, 2004, after a five-year term for crimes related to indecency with a child. He moved to Kansas and failed to check in with authorities in either state, U.S. Attorney Johnny Sutton said in a news release.
3-23-07: In a Kansas news article ("Law Allows Prosecutors New Charge for Sex Offenders" by WIBW.com):
A new law is making it possible for federal prosecutors to charge sex offenders for failing to register. Armando Beltran-Gonzalez, 43, is the state's first case under the "Adam Walsh Child Protection Act." .... Beltran-Gonzalez was indicted Wednesday by a grand jury for failing to register as a sex offender and one count of unlawfully re-entering the U.S. after being convicted of an aggravated felony and being deported. .... Beltran-Gonzalez will be arraigned next week in federal court in Wichita on charges of failing to register as a sex offender.
3-19-07: In a Oklahoma news article ("Sallisaw man arraigned in federal court" by Sequoya County Times):
A Sallisaw man was arraigned in federal court on charges of failure to register as a sex offender. Sheldon J. Sperling, U.S. attorney for the Eastern District of Oklahoma, announced Friday that the charges against Shawn Lloyd Hinckley, 27, arose from an investigation by the U.S. Marshal Service. "Hinckley, who is allegedly a convicted sex offender from the State of Washington, was indicted by a federal grand jury earlier this week for allegedly failing to register as a sex offender after relocating to Oklahoma," Sperling said. "Hinckley is the first person charged in the United States District Court for the Eastern District of Oklahoma with this crime. ....
3-9-07: In a West Virginia news article ("U.S. Marshals arrest sex offender who did not register" by The Charleston Gazette):
The first person charged with the federal offense of failing to register as a sex offender in the Southern District of West Virginia was arrested Thursday in Huntington, according to the U.S. Marshals Service. Robert L. Stinson Jr. was convicted of first-degree criminal sexual conduct with a person younger than 13 in Detroit in 1993, according to a news release. Stinson did not register as a sex offender with the State Police when he moved to West Virginia, according to the release.
2-18-07: In a Arizona news article ("Authorities round up sex offenders who failed to register" by KVOA TV):
"Police, U.S. Marshals! Martin, open the door." .... Officers weren't able to locate him, but when they do, he'll be charged as this man, Dennis Tudor of Colorado, was under the Adam Walsh Act. A federal crime where he faces up to 10 years in prison simply for moving to our community from another state and failing to register as a sex offender. ...
1-30-07: In a South Carolina news article ("Convicted sex offender arrested in Horry County" by WPDE ABC TV News):
A convicted sex offender is in custody in Horry County. He's the first in South Carolina charged under the federal Adam Walsh Act. On Friday, US Marshals arrested Jesse Merle Keffer of Conway for failing to register as a sex offender. President Bush signed the Adam Walsh Child Protection and Safety Act last July to track and arrest convicted sex offenders who disappear after their release from prison.
People we talked with say they're happy Keffer is in jail and hope he doesn't come back to their neighborhood. But as far as his being the first arrest in South Carolina for this offense, neighbors say it didn't happen soon enough. The people living on Lee Hucks Lane in Conway say they've always thought of it as a safe area. "This is so peaceful and you know, we've never had any problems," said Elvire Placid.
That's how they felt before they found out a convicted sex offender was living in their neighborhood, but never registered under the law. Jesse Keffer was arrested by US Marshals on Friday as part of the Adam Walsh Act. The law makes it a federal felony for convicted sex offenders to not register their address with local authorities. ...
Keffer was in federal court in Florence Monday. According to the Pennsylvania Sex Offender Registry, he was convicted in 1999 of indecent assault. And according to their website registry, he has a Pennsylvania address. If convicted of failing to register as a sex offender, Keffer could face up to 10 years in prison.
1-15-07: In a Arizona news article ("Toughened penalties loom for 2 sex offenders" by Arizona Daily Star):
Two convicted sex offenders who escaped from local halfway houses last year were indicted last week under a stringent new law passed in July. The men — Lee Benedict Segundo, 44, and Davis F. Eleando, 39 — were indicted on charges of failure to register as convicted sex offenders and escaping from custody in two separate incidents, according to a news release from the U.S. District Attorney's Office in Arizona.
The men were staying in the halfway houses as a condition of supervised release when they absconded in September and October, the release said. They did not update their registration within three days, as required under the Adam Walsh Child Protection and Safety Act of 2006, which expanded the definition of a sex offense and increases the penalty for offenders who fail to comply with registration requirements.
12-26-06: In a Pennsylvania news article ("Sexual offender is indicted" by Michele Canty) indicating the man was captured in Florida:
A former York County (Pennsylvania) man and sexual offender is charged under a new federal law, accused of moving out of state and not properly registering his address with authorities. Elmer Alvin Duncan, 40, formerly of Wrightsville, was indicted Dec. 13 on federal charges that he violated the Adam Walsh Child Protection and Safety Act, according to a news release from the U.S. Marshals Service branch in Harrisburg. [snip] Authorities found Duncan Dec. 19 in Ocala, Fla. Duncan struggled when officers tried to put him in handcuffs but was taken into custody, the Marshals Service said.
12-15-06: In Tyler Texas ("FIVE FEDERAL INDICTMENTS IN TYLER INCLUDE DRUG POSSESSION CHARGE" by Casey Knaupp), (Note: This case has several issues in it in addition to the failure to register one)
Fredrich Deandrea Gholston, also known as Frederick D. Gholston, 32, was indicted for failing to register as a sex offender in Titus County from Sept. 1, 2004, through Oct. 25, 2006. He faces up to 10 years in prison. Gholston, who was convicted for gross sexual imposition in Butler County, Ohio, in 1998, was arrested by U.S. deputy marshals and Mount Pleasant police on Oct. 23, according to a prepared statement from the U.S. Marshals Service in Tyler. 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. The failure to register is now a federal crime under the Adam Walsh Child Protection and Safety Act, which was passed by Congress in July. Gholston is currently in custody in Ohio on unrelated charges. The federal grand jury in Tyler returned the indictments on Wednesday, as well as four indictments that remain sealed.
12-9-06: In WYNNE, Ark. a very unique case because this is a federal prisoner case.
An Arkansas man has been arrested for reportedly failing to register as a sex offender, the first such arrest after the federal Adam Walsh Act was signed into law last summer. Steven Trent Tucker, 45, was ordered on Friday to return to Washington, D.C., to answer the charge. Tucker was arrested Wednesday in Wynne for knowingly failing to register or update a registration as required by federal law.
Jim Hays, supervisory deputy U.S. marshal in Little Rock, said Tucker was convicted in February 1999, in Washington, D. C., of interstate travel to engage in a sexual act with a minor. Tucker was sentenced to 15 months in federal prison followed by two years' probation. U.S. Magistrate Judge Jerry Cavaneau on Friday ordered Tucker detained and returned to Washington, D.C., on the warrant issued by a federal magistrate judge there.
11-15-06: In a Tennessee news article ("Roundup nets 22 Fayette County fugitives" by Bill Short) they explain the proper handling of matters when the offender DOES NOT CROSS STATE LINES:
"Under the Adam Walsh Child Protection and Safety Act, which was signed into law on July 27 by President George W. Bush, it is a federal felony, punishable by up to 10 years in prison, for a convicted sex offender to travel across state lines without properly registering, giving notice or reporting.
But Dunavant said it is a state charge when those offenders are in violation of Tennessee’s registry law without crossing the state line. “My job is to prosecute state charges in my district, including Fayette County,” he said. “And I’ll be indicting those people, probably at the end of this month, in the Fayette County grand jury.”"
However, the article is unclear as to any that would be prosecuted in Federal court for crossing state lines.
11-8-06: A Florida news article ("Marshals, Cops Run Largest Fugitive Round-Up in U.S. History" by Jim Kouri) reports an offender arrested there for sex charges out of Alabama, but also indicates "The US Marshals Service in North Florida is also in the process of seeking additional federal charges against Bryant under the new Adam Walsh Act." which would be improper, if for failure to register.
11-3-06: A Florida news article "Feds' sweep for fugitives nets 38 Central Florida arrests" by Pedro Ruz Gutierrez (pruz@orlandosentinel.com)
1-24-07: Local case tests tough law on sex offenders by by Pedro Ruz Gutierrez
The veteran federal judge wanted to let the child molester go. A seasoned prosecutor challenged him and won. But the case of Orange County resident Wilfredo Madera is far from settled as federal authorities grapple with a tough new law that penalizes sex offenders for failing to register when they move out of state. [snip]
Madera's guilty plea followed an animated exchange between Senior U.S. District Court Judge G. Kendall Sharp and Assistant U.S. Attorney Cynthia Hawkins -- one that could be repeated in federal courtrooms across the country. Though he upheld the law as constitutional and found it could be used retroactively, Sharp, during a Jan. 11 hearing, wanted to dismiss the case and said he was inclined to spare Madera prison time. [snip]
"I was just thinking out loud. It was a mistake. I backed off from that," Sharp said of his initial move for dismissal. "I don't oppose punishment. I want to look at each case individually."
Sharp's initial leniency has outraged critics, especially John Walsh, father of the law's namesake, Adam. His son was 6 when he was raped and killed after being abducted from a South Florida mall in 1981. "Come on, let us start enforcing the law," said Walsh, host of TV's America's Most Wanted and founder of the National Center for Missing and Exploited Children. "Should there be punishment? Yes. Damn right. You should be punished."
NOTE: John Walsh's son was obviously murdered in that all they have found of him is his head, but no one can say he was raped, that is speculation on the part of the reporter.
Walsh's comment is interesting, he expects RSOs to follow the law, BUT, the USAG does not have to follow the same law. The USAG has not told these defendant's about AWA as Congress required of him (42 USC 16917)).
1-22-07: Orlando Sex Offender Faces Sentencing Under Federal Law by WESH.com
An Orlando sex offender is the first in the nation to face sentencing under the new Adam Walsh Child Protection Act. Wilfredo Madera, 41, failed to register his address when relocating from New York, WESH 2 News reported.
Failing to register was law in Florida before the federal Adam Walsh legislation, but state law enforcement officials said they had been frustrated with the slap on the wrist many sex offenders received as sentences when they failed to register. The Adam Walsh law makes it a federal crime to move across state lines without telling the proper authorities.
1-12-07: "Orlando Sex Offender Wilfredo Madera Pleads Guilty to Failure To Register" by Marshal's Service
ORLANDO SEX OFFENDER PLEADS GUILTY TO FAILURE TO REGISTER: Guilty Plea is First Under Adam Walsh Act
Orlando, Florida - The United States Attorney’s Office for the Middle District of Florida and the United States Marshals Service announced that Wilfredo Madera, a 41-year-old resident of Orlando, Florida, has pleaded guilty to failure to register as a sex offender under the Adam Walsh Act, which was enacted on July 27, 2006. ...
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... Wilfredo Madera, a New York sex offender, was sentenced to six years of probation last year and moved to Florida in June. Because Madera failed to register with state authorities here, he now faces up to 10 years in prison under a new federal law that penalizes sex offenders who fail to register when they move across state lines.
Madera -- the first person in the nation charged under the Adam Walsh Child Protection and Safety Act -- was part of a countrywide roundup by the U.S. Marshals Service that netted nearly 11,000 fugitives in one week. In Central Florida, deputy marshals and their state and local counterparts arrested 38 people between Oct. 22 and Saturday.
Operation Falcon III focused on sex offenders and gang members, although fugitives wanted in homicides, drug offenses and organized crime also were nabbed. ... [snip]
Federal Public Defender R. Fletcher Peacock, whose office represents Madera, said he could not comment on the case but said the new law is unfair because there are similar state laws. "The failure to register is already a crime in most states," said Peacock, who supervises more than 25 assistant public defenders from Fort Myers to Jacksonville.
The federal law -- signed into law in July, 25 years after the abduction and murder of Adam Walsh -- gives the marshals service the lead role in coordinating the national effort to track and arrest sex offenders. [snip] According to an affidavit by Deputy U.S. Marshal Laura Sofia, Madera and his family moved to West Palm Beach in June and two months later relocated to Orlando. Once in Florida, Madera had up to 10 days to register as a sex offender.
Possible Violations:
12-16-06: In California ("Task force has sex offenders in sights" by Bay City News),
The U.S. Marshals Service announced this week that it has teamed up with fellow state and local law enforcement officials in Northern California forming a task force that will round up fugitive sex-offenders this holiday season. The holiday-inspired effort, dubbed "Operation Safe Holidays," is part of the newly passed Adam Walsh Child Safety Act of 2006. The act is designed to target sex offenders who violate sex offender registration requirements, the U.S. Marshals Service reported. According to U.S. Marshal Federico Rocha of the Northern District of California, the new legislation has significantly enhanced the ability of the U.S. Marshals Service to assist state and local law enforcement authorities in locating, apprehending and prosecuting sex offenders.
The new legislation makes some forms of non-compliance with sex offender registration requirements a federal crime punishable by up to 10 years in prison, Rocha said. Rocha warned that individuals who are required to register as convicted sex offenders but fail to comply may soon find U.S. Marshals Service deputies knocking on their door in order to ensure the safety of the local community. Northern California U.S. Marshals report the operation has resulted in the arrest of 14 improperly registered state and local sex offenders and/or fugitives wanted for sex offense. The Northern California task force is made up of Deputy U.S. Marshals, California Department of Corrections and Rehabilitation agents, San Francisco police officers, and deputies from the San Mateo County Sheriff's Office and San Francisco Sheriff's Department.
In this article it is not possible to tell where the RSOs will be prosecuted therefore we cannot say it is a violation at this point!
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News & Noteworthy © ---
Special Report 5-9-2007 |
Why is the USAG prosecuting those who fail to register, and cross state lines,
in Federal court rather than State courts?
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.In December of 2006, in my "Former sex offenders are being illegally prosecuted, in Federal court,
for registration issues under the Adam Walsh Act!" I explained why I felt these cases were being improperly prosecuted. Madera was the first case in the nation.
Then on May 1 2007, when the judge in that case gave Madera an unusually low sentence, in fact in violation of what is prescribed by the Adam Walsh Act, I reported "Why the Madera case must be appealed." Both of those reports can be found here.
After those two reports there was still a few things that didn't make sense, the first being, why are state prosecutors not complaining that they are losing convictions, and why would a judge want his decision appealed? There is no doubt in my mind that, the Madera judge wants that case appealed.
Now I am sure I have found the answers. Anyone who is prosecuted in federal court will be forced to go through a civil commitment proceeding and very likely will be committed for the rest of their lives.
Within the Adam Walsh Act (AWA) is Section 302 "Jimmy Ryce Civil Commitment Program." This is a very subtle and evil section, in that, it permits the Director of the Bureau of Prisons and the USAG, on a whim, to force anyone serving a federal sentence to go through a civil commitment proceeding. Such will very likely cause that person to be civilly committed for the rest of their lives.
How can this happen? AWA made certain changes to existing laws, and added a new section 4248 (cunning and egregious), see this document as they are far too technical to explain here. Remember, when someone is prosecuted in federal court and is then sentenced, they are then under the jurisdiction of the Bureau of Prisons.
Now, whatever the sentence is, even if it is probation or supervised release, Section 4248 kicks in at or near the end of the sentence. Within Section 4248(a) it states:
4248(a) Institution of Proceedings- In relation to a person who is in the custody of the Bureau of Prisons, or who has been committed to the custody of the Attorney General pursuant to section 4241(d), or against whom all criminal charges have been dismissed solely for reasons relating to the mental condition of the person, the Attorney General or any individual authorized by the Attorney General or the Director of the Bureau of Prisons may certify that the person is a sexually dangerous person, and transmit the certificate to the clerk of the court for the district in which the person is confined. The clerk shall send a copy of the certificate to the person, and to the attorney for the Government, and, if the person was committed pursuant to section 4241(d), to the clerk of the court that ordered the commitment. The court shall order a hearing to determine whether the person is a sexually dangerous person. A certificate filed under this subsection shall stay the release of the person pending completion of procedures contained in this section.
Of course it is always possible that the court will not declare the person a "sexually dangerous person." In today's climate, of zero tolerances, how many of these will there be? Wait, it gets worse!
4248(d) Determination and Disposition- If, after the hearing, the court finds by clear and convincing evidence that the person is a sexually dangerous person, the court shall commit the person to the custody of the Attorney General. The Attorney General shall release the person to the appropriate official of the State in which the person is domiciled or was tried if such State will assume responsibility for his custody, care, and treatment. The Attorney General shall make all reasonable efforts to cause such a State to assume such responsibility. If, notwithstanding such efforts, neither such State will assume such responsibility, the Attorney General shall place the person for treatment in a suitable facility, until--
(1) such a State will assume such responsibility; or
(2) the person's condition is such that he is no longer sexually dangerous to others, or will not be sexually dangerous to others if released under a prescribed regimen of medical, psychiatric, or psychological care or treatment;
whichever is earlier.
OH, not every state has a civil commitment center to take responsibility. Then I guess there will be a federal "Internment Camp." Opps, a proper federal treatment center, but where?
The Adam Walsh Act is available for those who wish to read the rest of what takes place.
Now, is there any question why federal courts are being used to prosecute sex offenders?
I forgot to mention, this will also apply to juveniles, no matter what their underlying crime -if they fail to register and cross state lines-!
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