Christopher Martin Jones appeals from his sentence imposed following his conviction for possessing a firearm as a convicted felon. On appeal, Jones argues that the district court erroneously found that his 1992 conviction by a special court-martial for sodomy, in violation of United States Military Justice (“UCMJ”) Article 125, 10 U.S.C. § 925, constitutes a sex offense that requires registration under the Sex Offender Registration and Notification Act, 42 U.S.C. § 16901 et. seq. (“SORNA”). Accordingly, he argues, the court abused its discretion in ordering that he register as a sex offender under SORNA as a special condition of his supervised release (special condition 5). In addition, Jones also argues that the court abused its discretion in imposing special conditions 2, 3, 4, 6, and 7 of his supervised release, which are targeted toward preventing future sexual misconduct. Relying on 18 U.S.C. § 3583(d), Jones contends that, in light of the fact that his criminal history includes only one conviction for a sex offense, and this offense occurred in 1992, these special conditions are not reasonably related to the sentencing goals set forth in 18 U.S.C. § 3553(a). For the reasons set forth below, we vacate and remand. A federal grand jury indicted Jones for possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Jones ultimately pled guilty to the offense. In preparing the presentence investigation report (“PSI”), the probation officer reported that, in 1992, Jones was convicted by a special court-martial for the military offenses of sodomy and indecent acts. An investigation had revealed that Jones engaged in sexual activity with a 16-year-old girl. At the time that he and the 16-year-old engaged in sexual activity, they were in the presence of a 15-year-old girl. Jones had provided the minor girls with alcohol. Regarding Jones’s conviction for indecent acts, the probation officer reported that military records specified that this conviction was based on the fact that Jones had committed sodomy with a 16-year-old female while in the presence of a 15-year-old female. Here, the district court failed to expressly address the parties’ arguments regarding whether Jones’s sodomy conviction is a military offense that requires SORNA registration. Instead, the court summarily stated that it was “satisfied that [Jones] is required to register as a sex offender,” and did not support this conclusion with factual findings or a legal analysis. As a result, it is impossible to discern the legal and factual basis for the court’s decision to require that Jones register as a sex offender. Moreover, as explained below, the record does not conclusively demonstrate whether the court’s SORNA ruling was correct.

A federal appeals panel says sex offenders convicted in military court but housed by the Bureau of Prisons are not eligible for civil commitment. A three-judge panel of the 4th U.S. Circuit Court of Appeals issued the ruling Monday in the case of former Army officer Benjamin Barnard Joshua, who pleaded guilty in military court to sexually molesting children. He was transferred to a federal penitentiary because of military prison downsizing. Eight days before his scheduled release, the attorney general petitioned for civil commitment under a 2006 law that allows indefinite detention of “sexually dangerous” inmates in the custody of the Bureau of Prisons. The appeals court upheld a judge’s ruling that despite being physically housed by the Bureau of Prisons, Joshua remained in military custody and therefore was not subject to civil commitment.

The statements of the appellant’s civilian defense counsel clearly attempt to minimize the seriousness of the indecent assault charges and assure the appellant that he would not have to register as a sex offender. In his testimony at the DuBay hearing, Mr. NC, the appellant’s civilian defense counsel, repeatedly used such phrases as “fairly innocuous” and “just foolery” to describe the sexual assault offenses. Mr. NC claimed lack of memory on many points but, in response to questions from the military judge, did recall concluding that sex offender registration was “not really a credible concern.” Consistent with this testimony, the appellant testified that when he directly asked Mr. NC if sex offender registration would be required Mr. NC told him: “I don’t see why it would be with the allegations that were brought against you. I don’t see why that would be a registerable offense.”

Bottom line it appears AFCCA believes the defense counsel considered the statements as “affirmative misrepresentations . . . concerning significant collateral consequences.” Slip op. at 5. Rose was tried in 2005.

The effect of Padilla v. Kentucky is that counsel have at least three choices when asked about sex offender registration: say nothing, say “I don’t know, you need to ask a lawyer,” give correct or reasonably correct advice. As I’ve posted before, the various states and federal rules on SOR are differing and complex. However, reference to the DoD regulation may be sufficient. See United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006).

Given the plethora of sexual offender registration laws enacted in each state, it is not necessary for trial defense counsel to become knowledgeable about the sex offender registration statutes of every state. However, we do expect trial defense counsel to be aware of the federal statute addressing mandatory reporting and registration for those who are convicted of offenses within the scope of this statute. 28 Also, we expect counsel to be aware of DoD Instr. 1325.7, which identifies offenses that trigger mandatory sex offender reporting. The operation of this statute and instruction may have an impact on an accused’s decisions both before and at trial, and on an accused’s legal obligations after conviction.

63 M.J. at 459.

It’s a pretty sure reality that a sexual assault allegation is going to be a registration offense – for how long and under what terms is going to vary. I would suspect the brooding omnipresence of registration is what’s driving an increase in NG pleas, contested cases, and potentially a lot more acquittals.

Here is the DoD regulation, DODI 1325.7 — see Enclosure 27.

Here is an excellent article, MAJ Andrew D. Flor, Sex Offender Registration Laws and the Uniform Code of Military Justice: A Primer, 2009 ARMY LAW., 1.

As to Berghuis v. Thompkins, Kent Scheidegger of crimeandconsequences blog says:

The Miranda rule remains intact in that the police must warn suspects of their rights and that an invocation of those rights by the suspect requires the police to stop questioning. Today’s decision involves what is needed to establish whether a suspect invoked or waived his rights. To invoke the right to remain silent such that the police must stop, the suspect must say so expressly and unambiguously. On the other hand, a waiver of rights may be inferred from the facts that the suspect received the warnings, understood his rights, and responded to questions anyway.

The Wall Street Journal Law Blog notes:

The 5-4 ruling fell on predictable lines, with Chief Justice Roberts and Justices Scalia, Alito and Thomas joining Justice Kennedy’s majority opinion. Justice Sotomayor wrote a dissent, which was joined by Justices Ginsburg, Breyer and Stevens.

The opinion effectively aligns the exercise of the two rights – silence and counsel – into an unambiguous request. See Davis v. United States, as to the requirement to unambiguously request counsel.

As to Carr v. United States, SCOTUSBlog summarizes that:

The Sex Offender Registration and Notification Act, a 2007 law that requires sex offenders to register, does not apply to sex offenders whose interstate travel occurred before the Act went into effect.

This case has potential impact for military appellate counsel and their clients whose cases are still on appeal. A SORNA conviction presumably could result in additional court-martial action against an appellant on appellate leave pending completion of appellate review. Also, those whose cases are final but are released on parole or supervised release may be affected.

The Court instead accepts Carr’s interpretation that the statute does not impose liability unless a person, after becoming subject to SORNA’s registration requirements, travelsacross state lines and then fails to register.

Carr, Slip Op. at 1.

You will be interested to know that this morning the U.S. Department of Justice issued proposed supplemental guidelines modifying several requirements for compliance with SORNA. Many address concerns raised by the states and other stakeholders. They do the following: Gives jurisdictions discretion to exempt juvenile offenders from public website posting Provides information concerning the review process for determining that jurisdictions have substantially implemented Gives jurisdictions discretion to modify the retroactive registration requirement to apply to new felony convictions only Provides mechanisms for newly recognized tribes to elect whether to become SORNA registration jurisdictions and to implement SORNA Expands required registration information to include the forms signed by sex offenders acknowledging that they were advised of their registration obligations Requires jurisdictions to exempt sex offenders’ e-mail addresses and other Internet identifiers from public website posting Requires jurisdictions to have sex offenders report international travel 21 days in advance Clarifies mechanism for interjurisdictional information sharing and tracking.

(update) Here is a link to the 14 May 2010 entry in the Federal Register.

On February 5, 2000, Williams pled guilty in a military tribunal to one specification of carnal knowledge under Article 120 of the Uniform Code of Military Justice (“UCMJ”), and one specification of sodomy with a child under the age of 16 in violation of Article 125 of the UCMJ. No law — Missouri, federal, or military — required Williams to register as a sex offender at the time of his convictions.

However, with the passage of SORNA to police went out and required registration. But,

The Missouri Supreme Court subsequently decided Doe v. Blunt, 225 S.W.3d 421 (Mo. banc 2007). Blunt held that SORA violated Missouri’s ban on retrospective laws to the extent that it required persons to register for offenses that occurred before such offenses were added to SORA’s registration requirements. Respondents filed a motion to dismiss Williams’s Petition and argued that federal law, the Sexual Offender Registration and Notification Act (“SORNA”), 42 U.S.C. sections 16911-16917, nonetheless required Williams to register as a sex offender in Missouri. Because Williams qualified as a sex offender under the UCMJ, Respondents asserted that SORNA imposed an independent federal obligation upon Williams to register in the jurisdiction where he resides. Since federal law required Williams to register, Respondents argued that Missouri law, section 589.401.1(5), required him to register as well. SORNA, however, specifically exempts certain conduct from its definition of a sex offense. 42 U.S.C. section 16911(5)(C) states: Offenses involving consensual sexual conduct An offense involving consensual sexual conduct is not a sex offense for the purposes of this subchapter [. . .] if the victim was at least 13 years old and the offender was not more than 4 years older than the victim.

The judgment of the trial court is reversed and remanded. On remand, the trial court is directed to enter its finding that Williams is exempt from registering under SORNA pursuant to 42 U.S.C. section 16911(5)(C). The trial court is further directed to order Respondents to destroy records related to Williams’s sex offender registration.