Army Times reports:
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.
The AFCCA has issued its opinion in the relook at United States v. Rose. The court comes to the same conclusion that the defense counsel advice to the client about sex offender registration was wrong and IAC. The initial decision at AFCCA is here, and CAAF’s 28 October 2009 journal entry and order is here.
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.
There are two decisions issued today of some relevance to military justice practitioners. One relates to Miranda and another to SORNA.
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.
There’s been lots of litigation about SORNA. But now, courtesy of Sentencing Law & Policy we learn that DOJ has some recommendations for amending SORNA.
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.
The advice to an accused about sexual offender registration is complicated. Cases such as Williams v. Lee and Keathley, No. ED 93827, from the Court of Appeals of Missouri, Eastern District, Division Five, decided May 4, 2010. This is a retroactivity case.
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,
Sad, but not unusual, from The False Rape Society.
My story started last summer when we got back from Iraq. My best friend and I went to a night club and long story short I had sex with a woman. This woman was a female soldier and ended up being late to work the next morning. I was on leave at the time, so I didn’t have to go too work. She accused me of raping her, because she was going to show up to work drunk and late.
. . . the charges are being dropped . . .
Here courtesy of Sentencing Law & Policy:
This weekend’s must-read comes via this link at SSRN to a new piece by Margaret Colgate Love and Gabriel Chin concerning the Supreme Court’s important decision late last month in Padilla v. Kentucky. "Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction." Here is the abstract:
In Padilla v. Kentucky, 559 U.S. (March 31, 2010), the Supreme Court broke new ground in holding in a 7-2 decision that a criminal defense lawyer had failed to provide his noncitizen client effective assistance of counsel when he did not tell him that he was almost certain to be deported if he plead guilty. It is the first time that the Court has applied the 1984 Strickland v. Washington standard to a lawyer’s failure to advise the client about a “collateral” consequence of conviction – something other than imprisonment, fine, probation and the like, that the court imposes at sentencing. While Padilla’s implications for cases involving deportation are clear, it may also require lawyers to consider many other legal implications of the plea.
NMCCA has it’s opinion in United States v. Denedo, the petition for error coram nobis that his been winding its way through the courts, include the United States Supreme Court.
Essentially the court finds that even if there were IAC, petitioner has not established prejudice.
Back to CAAF?
In this case we decide whether Joshua Williams, who pleaded guilty to carnal knowledge of a minor in violation of military law while serving in the Navy, is exempt from registration as a sex offender pursuant to Penal Code sections 290, subdivision (c) and 290.005 (undesignated statutory references are to the Penal Code), and therefore entitled to have his name removed from the Justice Department’s sex offender registry. We conclude that based on Williams’s plea, he was denied equal protection of the law in that persons convicted in California of the equivalent offense of unlawful sexual intercourse in violation of section 261.5 are not required to register. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1206-1207 (Hofsheier).) In reaching this conclusion, we focus on the offense of which Williams was convicted, not a hypothetical offense of which he could have been convicted based on the conduct underlying the charge. (People v. Ranscht (2009) 173 Cal.App.4th 1369, 1374-1375 (Ranscht).) Accordingly, the trial court erred in denying Williams’s request to have his name removed from the registry.
Williams v. Superior Court of San Diego, D055457 (10 March 2010).
Not going too far, how about you?
Meanwhile – – –
A Robins Air Force Base master sergeant was dishonorably discharged and sentenced to 50 years in prison after he was found guilty of engaging in sexual contact with several minors, according to The Robins Rev-Up, the Robins Air Force Base installation newspaper.
Court-Martial Trial Practice Blog