The Seventh Circuit had two new opinions in criminal cases this week. The first, United States v. Sims (No. 07-3798), presented a routine Fourth Amendment issue, with the court upholding a challenged search warrant over the defendant’s objection that police officers failed to disclose important information when they obtained the warrant.
The more notable case of the two was United States v. Dixon (No. 08-1438), which considered the sex offender registration provisions of the Adam Walsh Act. Passed in 2006, the Walsh Act did not invent sex offender registration (which was first done at the state level), but it did substantially increase federal regulation in the area. Among the most controversial (and heavily litigated) features of the Walsh Act has been its creation of a new federal crime for sex offenders who cross state lines and fail to register in the new state. Concerns focus on the retroactive reach of the new law, with some cases indicating that offenders can be punished on the basis of interstate travel that occurred prior to the statute’s enactment.
In Dixon, the Seventh Circuit took its turn grappling with the retroactivity issues.
The Walsh Act instructed the Attorney General to determine the applicability of its registration requirements to people who were convicted of sex offenses before the statute was passed. Dixon was in this category (as was Carr, whose case was consolidated with Dixon’s for decision by the Seventh Circuit). The Attorney General issued a regulation on February 28, 2007, making the registration requirements applicable to those convicted of pre-Act offenses. Dixon and Carr were both charged shortly thereafter for failing to register following interstate travel.
Following their convictions, they raised a number of retroactivity issues on appeal. First, Dixon argued that the law did not cover people who traveled before the Walsh Act’s passage. The Tenth Circuit recently adopted this interpretation of the statute in United States v. Husted, 2008 WL 4792339. However, the Seventh Circuit (per Judge Posner) was surprisingly dismissive of the Tenth Circuit’s opinion, expressly creating an intercircuit conflict — Supreme Court (and student authors looking for good comment material) take note! The Seventh Circuit reasoned:
The evil at which [the statute] is aimed is that convicted sex offenders registered in one state might move to another state, fail to register there, and thus leave the public unprotected. The concern is as acute in a case in which the offender moved before the Act was passed as in one in which he moved afterward.
“As acute”? Possibly, although there are also countervailing fairness concerns with interpreting a statute such that it punishes people based on conduct performed prior to the statute’s passage — concerns embodied in the principle that, when in doubt, statutes should be interpreted so as to minimize their retroactive effect. Although the Tenth Circuit relied on this principle of statutory construction in Husted, the Seventh Circuit indicated that it provided no greater protection than the constitutional prohibition on ex post facto laws (discussed below).
The Seventh Circuit was even more dismissive of Dixon’s argument that the failure-to-register crime exceeded Congress’s power under the Commerce Clause. Despite the court’s analysis, there actually are some difficult Commerce Clause questions here, which are nicely explored by Professor Corey Rayburn Yung of John Marshall in a forthcoming article. (This article is part of a new issue of the Federal Sentencing Reporter that I am currently editing. The whole issue is devoted to recent developments in punishing and regulating sex offenders, with a particular focus on the Walsh Act. Look for it in February!)
Finally, we get to the ex post facto analysis. The court stated the test this way:
If all the acts required for punishment are committed before the criminal statute punishing the acts takes effect, there is nothing the actor can do to avoid violating the statute, and [the Ex Post Facto Clause is violated]. But by the same token as long as at least one of the acts took place later, the clause does not apply.
The failure-to-register law punishes the combination of three acts: (1) the underlying sex offense, (2) interstate travel, and (3) failure to register after the interstate travel. (Query whether #3 is truly an “act” — but the Seventh Circuit assumed as much without discussion.) For Dixon and Carr, the first and second acts occurred before passage of the Walsh Act. So, the only real question was whether their failure to register occurred after the effective date of the law (which, for them, was February 28, 2007, when the Attorney General first made the law applicable to them). The court noted, though, that it would not be permissible to deem their failure to register to have occurred on February 28 itself; rather, there must be a “reasonable time” given for registering.
So, as happens so often in the law, we are left to decide what it means to be “reasonable.” The court declined to provide any bright-line test, but did hold that Dixon must be acquitted, while letting Carr’s conviction stand. The difference? Dixon was charged with failing to register “from on or about February 28, 2007 to on or about April 5, 2007.” Carr, on the other hand, admitted that he had still failed to register “on or about July, 2007” — about five months after the Attorney General’s regulation was issued. “Five months is a sufficient grace period. . . . Carr had a reasonable time within which he could have registered. . . . [H]is rights under the ex post facto clause were not violated.” Thus, while the Seventh Circuit has limited the reach of the Walsh Act a bit in Dixon, there is a clear outer bound: sex offenders must have registered within five months of the law’s effective date (and, as future cases may decide, perhaps even sooner).