United States v. Joshua Elkins , 683 F.3d 1039 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 11-30135
Plaintiff-Appellant, D.C. No.
v.  2:10-cr-00133-
JOSHUA A. ELKINS, LRS-1
Defendant-Appellee.
 OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Argued and Submitted
April 10, 2012—Seattle, Washington
Filed June 14, 2012
Before: Dorothy W. Nelson, A. Wallace Tashima, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
6795
UNITED STATES v. ELKINS 6797
COUNSEL
Michael C. Ormsby, United States Attorney, and Matthew F.
Duggan of Spokane, Washington, and Lanny A. Breuer,
Assistant Attorney General, Greg D. Andres and Scott A.C.
Meisler (argued) of Washington, D.C., for the plaintiff-
appellant.
Kailey Moran and Matthew Campbell (argued) of Spokane,
Washington, for the defendant-appellee.
6798 UNITED STATES v. ELKINS
OPINION
CALLAHAN, Circuit Judge:
Congress, by enacting the Sex Offender Registration and
Notification Act (“SORNA”), 42 U.S.C. § 16901 et seq., in
July 2006, sought to establish “a comprehensive national sys-
tem for the registration” of sex offenders and offenders
against children. 42 U.S.C. § 16901. In October 2010, a single
count indictment issued against Joshua A. Elkins in the
United States District Court for the Eastern District of Wash-
ington, charging him with traveling in interstate commerce
and knowingly failing to register under SORNA in violation
of 18 U.S.C. § 2250(a). On Elkins’s motion, the district court
dismissed the indictment on the ground that applying SORNA
to Elkins on the basis of his pre-SORNA Washington convic-
tion as a juvenile sex offender was punitive and therefore a
violation of the Ex Post Facto Clause of the United States
Constitution. The government appealed.
Following the approach set forth by the Supreme Court in
Smith v. Doe, 538 U.S. 84 (2003), we conclude that applying
SORNA to Elkins based on his state conviction as a juvenile
sex offender is not punitive. We further conclude in light of
United States v. Crowder, 656 F.3d 870 (9th Cir. 2011), that
on the present record there is a sufficient basis for a factfinder
to determine that Elkins knowingly failed to register in viola-
tion of § 2250(a). Accordingly, the district court’s dismissal
of the indictment must be reversed.
I
On February 10, 1994, when Elkins was fourteen years old,
he pled guilty to child molestation in the first degree in the
Superior Court of Washington for Skagit County. The Order
of Disposition listed Elkins as “a middle offender,” commit-
ted him to state care for 80 to 100 weeks, and instructed him
UNITED STATES v. ELKINS 6799
to register as a sex offender.1 Elkins first registered with
Washington in August 2000.
After being released from state custody on other charges,
Elkins failed to register, and was convicted of a state failure-
1
The Sex Offender Registration section reads:
As a person residing in Washington who has been found to have
committed or been convicted of a sex offense, YOU MUST REG-
ISTER IMMEDIATELY WITH THE COUNTY SHERIFF for the
county of your residence, unless you are now in confinement. If
you are now in confinement, you must register within 24 hours
of your release from confinement. When you register, you must
provide the sheriff with the following information:
a) your name;
b) your address;
c) date and place of birth;
d) your place of employment;
e) the crime for which you were convicted;
f) the date and place of conviction;
g) any aliases used;
h) your social security number;
i) your fingerprints and photograph.
If you must register, you must also send written notice of any
change of address to the county sheriff where registered within
10 days of establishing a new residence. If your new residence is
in a different county, you must also register with the county sher-
iff of the county of your new residence within 10 days.
Failure to register when required is a Class C felony or gross
misdemeanor, depending upon the charge you were convicted of.
Conviction of a sexual offense will count as criminal history if
you are convicted of any offense as an adult.
IT IS FURTHER ORDERED that this order shall remain in full
force and effect until further order of the Court, or until the same
is revoked, modified, or changed, or the period of community
supervision is terminated by an order of this Court, as provided
by law.
6800 UNITED STATES v. ELKINS
to-register offense in 2009. Elkins subsequently updated his
registration in Washington in February, March, and April
2010. The registration forms Elkins signed also described his
obligations should he move out of state.2
Sometime after April 2010, Elkins left Washington and
traveled to his mother’s home in California. He was arrested
in California in September 2010 on a Washington warrant
issued for a state probation violation. According to the gov-
ernment, Elkins told officers that “he had intended to go from
California to Florida, where he believed the Washington war-
rant would not be binding.”
On October 19, 2010, a one-count indictment was returned
against Elkins in the Eastern District of Washington. The
indictment alleges that Elkins, “a person required to register
under the Sex Offender Registration and Notification Act,
traveled in interstate commerce and did knowingly fail to reg-
ister and update a registration, all in violation of 18 U.S.C.
§ 2250(a).”
In March 2011, Elkins filed a motion to dismiss the indict-
ment, raising three arguments: (1) “the Government failed in
performing its duty to inform Mr. Elkins of his responsibili-
ties to register in violation of 42 U.S.C. § 16917 and therefore
a conviction under 18 U.S.C. § 2250(a) would be a violation
of the due process clause”; (2) “prosecution of Mr. Elkins
under SORNA is a violation of the ex post facto clause as the
conviction that subjects him to registration requirements
2
The form Elkins signed in April 2010 advised:
If you move out of this state, you must send written notice to
the county sheriff with whom you last registered within 10 days
of moving. You are hereby also on notice that the state to which
you intend to move may also have sex/kidnap offender registra-
tion requirements which apply to you. If the state you are moving
to required registration for your offense, you must do so within
10 days or you can be charged in this state for failure to maintain
your registration.
UNITED STATES v. ELKINS 6801
occurred prior to the enactment or implementation of
SORNA”; and (3) “application of SORNA’s juvenile provi-
sion violates the ex post facto clause.”
Following argument on the motion, the district court made
several factual determinations:
(1) “it is factually correct the State of Washington
has not done those things that are necessary to com-
ply with SORNA;”
(2) “there is no notice in any of the materials that
were supplied to the defendant that he had a duty
under federal law to register under SORNA. That is
uncontested and appears to be clear in the record;”
(3) “[w]hile it may be true that the argument could
be made that, since he was aware of the state
requirement, he should have made further inquiry
concerning the federal requirement. There’s nothing
in the materials that have been supplied suggesting
that the state, at any time, undertook to give him that
notice or that he was provided that notice orally or
otherwise;” and
(4) “the materials that were supplied to him have no
statements in them concerning travel and no warning
concerning whether or not there might be a criminal
violation if he does not register under federal law.”
The district court then noted that it was influenced by
United States v. Juvenile Male, 590 F.3d 924 (9th Cir. 2010)
(“Juvenile Male I”), even though that case concerned a fed-
eral, not a state, conviction.3 The district court concluded that
the application of SORNA to Elkins was punitive, explaining:
3
Juvenile Male I was subsequently vacated by the Supreme Court in
United States v. Juvenile Male, 131 S. Ct. 2860 (2011).
6802 UNITED STATES v. ELKINS
[In] this case, the original violation occurred 18
years ago; 1993 with a juvenile finding or conviction
in 1994; no violations during the interim, apparently,
that relate to this type of conduct, although there’s a
criminal record, if I’ve understood correctly.
Nevertheless, SORNA requires a higher classifica-
tion system of hire [sic] risk. It imposes a lifetime —
apparently a lifetime registration requirement that
the state law does not. It requires posting of a pic-
ture. It requires that the defendant more often appear
in person when directed to comply with the statute.
It also requires, in the event of a conviction for vio-
lation, a far more serious guideline sentence.
Are those [requirements] punitive in nature as
applied in this case? I’m going to read from [Juve-
nile Male I, 590 F.3d at 936]: “Because SORNA’s
juvenile registration provision, retroactively applied
to former juvenile offenders, imposes a serious dis-
ability by making public otherwise confidential
delinquency records relating to sexual offenses, and
because the in-person registration requirement is
substantially burdensome, SORNA’s juvenile regis-
tration provision imposes an onerous ‘affirmative
disability or restraint’ on former juvenile offenders,”
citing Mendoza-Martinez, 372 U.S. at 168, parallel
citation omitted. “As we have already stated, this
factor weighs heavily in support of a finding that
SORNA’s juvenile registration requirement has a
punitive effect. Given the severity of its burdens, it
would be difficult to reach any other conclusion.”
Now, I’m recognizing that, in the State of Washing-
ton, our legislature, at an early date, required regis-
tration, potentially, of juvenile offenders. However,
that doesn’t open the door to allow the federal statute
to be applied differently in this state than it would be
UNITED STATES v. ELKINS 6803
applied in another state that doesn’t have such a lib-
eral, open-door policy concerning juvenile defenders
and their records.
Given that fact, it would be my conclusion that the
federal law, as applied in this case, would find that
this matter should be dismissed; and I’m going to
grant the defendant’s motion based upon the Juve-
nile Male decision.
The district court entered its order of dismissal on April 29,
2011, and the government filed a timely notice of appeal.
II
In deciding this appeal, we first consider whether the appli-
cation of SORNA to Elkins violates the Ex Post Facto Clause
of the Constitution.4 We separately consider whether applying
SORNA to Elkins is punitive in effect because the registration
requirement (1) is based on a pre-SORNA conviction, and (2)
is based on Elkins’s conviction as a juvenile sex offender.
After concluding that there is no constitutional barrier to
applying SORNA to Elkins, we briefly address his contention
that SORNA cannot be applied to him because the govern-
ment failed to provide him with adequate notice of SORNA.
We conclude that under our precedent, the government is
required to prove only that Elkins knew he was required to
register as a sex offender. Accordingly, we reverse the district
court’s dismissal of the indictment and remand the case to the
district court for further proceedings.
4
We review the dismissal of an indictment on the basis of statutory
interpretation or constitutional law de novo. United States v. Begay, 622
F.3d 1187, 1193 (9th Cir. 2010). We also review an alleged ex post facto
violation de novo. United States v. Arzate-Nunez, 18 F.3d 730, 733 (9th
Cir. 1994).
6804 UNITED STATES v. ELKINS
A. Applying SORNA to Elkins Does Not Violate
the Ex Post Facto Clause
1. Requiring an individual to register under SORNA
based on a conviction entered prior to SORNA’s enact-
ment does not violate the Ex Post Facto Clause.
Elkins argues that the application of SORNA to his pre-
SORNA conviction is retroactive and unconstitutional
because the requirement that he register is based on a prior
conviction and he became subject to SORNA after its enact-
ment without any further action on his part. He further argues
that SORNA is punitive because the failure to register statute
exists in the criminal title (18 U.S.C. § 2250(a)), SORNA
creates a new federal crime, and it subjects offenders to a
potential ten-year prison term.
[1] Article I, Section 10 of the Constitution bars the enact-
ment of any law that “imposes a punishment for an act which
was not punishable at the time it was committed; or imposes
additional punishment to that then prescribed.” Russell v. Gre-
goire, 124 F.3d 1079, 1083 (9th Cir. 1997) (internal citation
and quotation marks omitted).
In Smith v. Doe, 538 U.S. 84 (2003), the Supreme Court set
forth the standard for evaluating whether a sex offender regis-
tration program violates the Ex Post Facto Clause. The Ninth
Circuit had found that the Alaska legislature intended the
Alaska Sex Offender Registration Act (the “Alaska Act”) to
be a nonpunitive civil regulatory scheme, but nonetheless held
that its effects were punitive. Id. at 91-92. The Supreme Court
reversed and upheld the Act’s retroactive application to indi-
viduals whose convictions predated the Act.
[2] The Supreme Court held that the first inquiry is
whether the legislature meant to impose punishment or enact
a regulatory scheme. Id. at 92. If the intent behind a sex
offender registration program “was to enact a regulatory
UNITED STATES v. ELKINS 6805
scheme that is civil and nonpunitive,” a court must then “ex-
amine whether the statutory scheme is so punitive either in
purpose or effect as to negate [the legislature’s] intention to
deem it civil.” Id. (internal quotation marks and citation omit-
ted). The Supreme Court further held that “[b]ecause we ordi-
narily defer to the legislature’s stated intent, only the clearest
proof will suffice to override legislative intent and transform
what has been denominated a civil remedy into a criminal
penalty.” Id. (internal citation and quotation marks omitted).
[3] Elkins does not question that Congress, in enacting
SORNA, intended to create a regulatory scheme, and we rec-
ognize that SORNA was created for the purpose of establish-
ing a national system for the registration of sex offenders.
This conclusion is implicit in the Supreme Court’s opinion in
Reynolds v. United States, 132 S. Ct. 975 (2012).5 Moreover,
in Juvenile Male I, 590 F.3d at 930, we noted that “S.E. has
properly not disputed that in enacting SORNA, Congress
intended to establish a civil regulatory scheme rather than a
criminal one.” Indeed, it appears that all of the circuit courts
that have considered this issue agree that SORNA was
enacted to create a national system for the registration of sex
offenders.6 Accordingly, the application of SORNA to Elkins
5
The Court commented:
The new federal Act reflects Congress’ awareness that pre-Act
registration law consisted of a patchwork of federal and 50 indi-
vidual state registration systems. See 73 Fed. Reg. 38045 (2008).
The Act seeks to make those systems more uniform and effective.
It does so by repealing several earlier federal laws that also (but
less effectively) sought uniformity; by setting forth comprehen-
sive registration-system standards; by making federal funding
contingent on States’ bringing their systems into compliance with
those standards; by requiring both state and federal sex offenders
to register with relevant jurisdictions (and to keep registration
information current); and by creating federal criminal sanctions
applicable to those who violate the Act’s registration require-
ments.
Id. at 978.
6
See United States v. Guzman, 591 F.3d 83, 91 (2d Cir. 2010) (“[W]ith
SORNA, Congress’s goal was not simply to require sex offenders to regis-
6806 UNITED STATES v. ELKINS
will only violate the Ex Post Facto Clause if it is “so punitive
either in purpose or effect as to negate” Congress’s intent. See
Smith, 538 U.S. at 92.
[4] Elkins correctly asserts that SORNA is backward look-
ing insofar as it looks to a prior-in-time conviction as a basis
for requiring registration. However, the courts of appeals have
consistently rejected Elkins’s contention that this renders
SORNA punitive. In United States v. George, 625 F.3d 1124,
1131 (9th Cir. 2011), we held that SORNA could be applied
based on a prior conviction because failure to register is a
continuing offense. We subsequently vacated our opinion in
George on other grounds. United States v. George, 672 F.3d
1126 (9th Cir. 2012). However, in United States v. Clements,
655 F.3d 1028, 1029 (9th Cir. 2011), we reiterated that
“[f]ailure to register pursuant to SORNA, or to keep one’s
ter or to penalize the failure to do so, but rather to establish[ ] a compre-
hensive national system for the registration of those offenders.”) (internal
quotation marks and citation omitted); United States v. Shenandoah, 595
F.3d 151, 154 (3d Cir. 2010) (“SORNA creates a national sex offender
registry with the goal of eliminating inconsistencies among state laws.”),
abrogated on other grounds by Reynolds, 132 S. Ct. 975; United States v.
Gould, 568 F.3d 459, 464 (4th Cir. 2009) (“SORNA’s purpose [is] to
strengthen and increase the effectiveness of preexisting sex offender regis-
tration and notification”); United States v. Young, 585 F.3d 199, 204 (5th
Cir. 2009) (“[W]e now hold — in line with all of our sister Circuits to
have considered the issue — that SORNA is a civil regulation and, thus,
does not run afoul of the Constitution’s ex post facto prohibitions.”);
United States v. Utesch, 596 F.3d 302, 306 (6th Cir. 2010) (“Congress
enacted SORNA to create a national system for the registration of sex
offenders.”); United States v. May, 535 F.3d 912, 920 (8th Cir. 2008)
(“SORNA’s registration requirement demonstrates no congressional intent
to punish sex offenders. Congress described SORNA as a public safety
measure.”), abrogated on other grounds by Reynolds, 132 S. Ct. 975;
United States v. Lawrance, 548 F.3d 1329, 1333 (10th Cir. 2008)
(“SORNA is both civil in its stated intent and nonpunitive in its purpose”);
United States v. Brown, 586 F.3d 1342, 1347 (11th Cir. 2009) (“SORNA
created a comprehensive national system for registering sex offenders in
order to track their interstate movement.”).
UNITED STATES v. ELKINS 6807
registration current, is a continuing offense.” In United States
v. Felts, 674 F.3d 599, 605-06 (6th Cir. 2012), the Sixth Cir-
cuit addressed the same argument that Elkins makes here:
Felts also argues that retroactive application of
SORNA violates the Constitution’s Ex Post Facto
Clause, as it increases the punishments for Felts’s
earlier crimes. This argument has been consistently
rejected. In Smith v. Doe, the Supreme Court upheld
Alaska’s sex-offender-registration statute, finding
that it was not punitive, but civil in nature, and not
in violation of the Ex Post Facto Clause. 538 U.S. 84. . . (2003). . . . Felts attempts — to little avail — to
distinguish SORNA from the Alaska statute in ques-
tion, but fails to address the unanimous consensus
among the circuits that SORNA does not violate the
Ex Post Facto Clause. SORNA provides for a con-
viction for failing to register; it does not increase the
punishment for the past conviction.
674 F.3d at 605-06. We agree and join our sister circuits in
holding that requiring a person to register under SORNA
based on a conviction entered prior to SORNA’s enactment
does not violate the Ex Post Facto Clause.7
7
In support of its claim of consensus on the part of the circuit courts,
the Sixth Circuit noted:
Relying on Smith, circuit courts have consistently held that
SORNA does not violate the Ex Post Facto Clause. See, e.g.,
United States v. DiTomasso, 621 F.3d 17, 25 (1st Cir. 2010);
Guzman, 591 F.3d at 94 (2d Cir. 2010); Shenandoah, 595 F.3d
at 158-59; George, 625 F.3d at 1131; Gould, 568 F.3d at 466;
United States v. Young, 585 F.3d 199, 203-06 (5th Cir. 2009);
United States v. Ambert, 561 F.3d 1202, 1207 (11th Cir. 2009);
United States v. May, 535 F.3d 912, 919-20 (8th Cir. 2008),
abrogated on other grounds by Reynolds v. United States, . . .
132 S. Ct. 975 . . . (2012); [United States v.] Hinckley, 550 F.3d
[926] at 936 (10th Cir. 2008).
Felts, 674 F.3d at 606.
6808 UNITED STATES v. ELKINS
2. Federal prosecution under SORNA is not conditioned
on a state’s implementation of the administrative provi-
sions of SORNA.
[5] A related argument raised in George, and arguably
inherent in Elkins’s challenge to SORNA, is that SORNA
cannot be applied to an individual if the state in which he
resides has not implemented SORNA. We noted, however,
that the defendant in George “misconstrues the scope and
effect of SORNA’s implementation provision,” and that the
fact that states had until July 2009 to implement the adminis-
trative portions of SORNA “does not preclude federal prose-
cution for George’s failure to register under SORNA.”8
George, 625 F.3d at 1128. We held that “[w]ithout regard to
whether SORNA is implemented by Washington or any other
state, registration under it is required.” Id. Although, as noted,
we subsequently vacated our opinion on other grounds,
George, 672 F.3d 1126, we continue to hold that the federal
government’s prosecution of an alleged violation of SORNA
is not dependent on the individual state’s implementation of
the administrative portion of SORNA. As noted by the Sixth
Circuit, the circuit courts are in accord on this issue.9 Felts,
674 F.3d at 603.
8
We cited 72 Fed. Reg. at 8,895, which states: “In contrast to SORNA’s
provision of a three-year grace period for jurisdictions to implement its
requirements, SORNA’s direct federal law registration requirements for
sex offenders are not subject to any deferral of effectiveness.” George,
625 F.3d at 1128.
9
The Sixth Circuit commented:
The duty to register in a state registry is independent of a state’s
degree of implementation of SORNA. United States v. Guzman,
591 F.3d 83, 93 (2d Cir. 2010) (“SORNA creates a federal duty
to register with the relevant existing state registries regardless of
state implementation of the specific additional requirements of
SORNA.”) . . . ; United States v. Shenandoah, 595 F.3d 151, 157
(3d Cir. 2010), abrogated on other grounds by Reynolds v.
United States, . . . 132 S. Ct. 975 . . . (2012); United States v.
Brown, 586 F.3d 1342, 1349 (11th Cir. 2009) (“SORNA was not
UNITED STATES v. ELKINS 6809
3. Applying SORNA to Elkins based on his juvenile con-
viction is not barred by the Ex Post Facto Clause.
The argument that Elkins advanced successfully in the dis-
trict court was that applying SORNA based on the Washing-
ton state sex offender determination made when he was
fourteen years old is punitive and accordingly violates the Ex
Post Facto Clause.10 Relying on the opinion in Juvenile Male
I, 590 F.3d 924, the district court reasoned that Elkins’s “prior
conviction, a juvenile adjudication, has special significance in
considering the issue of the Ex Post Facto Clause.” The dis-
enacted in a vacuum. To the contrary, every state and the District
of Columbia had a sex offender registration law prior to 2006. An
individual may therefore comply with SORNA’s registration
requirements by registering through the state’s sex offender regis-
try, even if that jurisdiction has not implemented SORNA’s
administrative procedures.”) (citations omitted); United States v.
Gould, 568 F.3d 459, 465-66 (4th Cir. 2009) (“We conclude that
the requirement imposed on individuals to register is independent
of the requirement imposed on the States to implement the
enhanced registration and notification standards of SORNA.
Accordingly, SORNA’s requirement that a sex offender register
applies whether registration would be accomplished through pre-
SORNA registration facilities or under SORNA-compliant pro-
grams.”); United States v. Hinckley, 550 F.3d 926, 939 (10th Cir.
2008), abrogated on other grounds by Reynolds v. United States,
. . . 132 S. Ct. 975 . . . (2012) (finding that defendant had “knowl-
edge of his duty to register under similar state and federal provi-
sions”).
Felts, 674 F.3d at 603-04.
10
SORNA’s definition of sex offender includes the following provision:
The term “convicted” or a variant thereof, used with respect to a
sex offense, includes adjudicated delinquent as a juvenile for that
offense, but only if the offender is 14 years of age or older at the
time of the offense and the offense adjudicated was comparable
to or more severe than aggravated sexual abuse (as described in
section 2241 of Title 18), or was an attempt or conspiracy to
commit such an offense.
42 U.S.C. § 16911(8).
6810 UNITED STATES v. ELKINS
trict court dismissed the indictment citing the statement in
Juvenile Male I, 590 F.3d at 941-42, that “[i]n some instances,
the retroactive implementation of SORNA’s provisions will
most certainly wreak havoc upon the lives of those whose
conduct as juveniles offended the fundamental values of our
society but who, we hope, have been rehabilitated.”
The district court’s approach is legally questionable and is
not factually supported by the record. First, as noted, the opin-
ion in Juvenile Male I, 590 F.3d 924, has been vacated by the
Supreme Court as having become moot. United States v.
Juvenile Male, 131 S. Ct. 2860 (2011). Second, a subsequent
opinion in United States v. Juvenile Male, 670 F.3d 999 (9th
Cir. 2012) (“Juvenile Male II”), qualifies the concerns
expressed in Juvenile Male I.
In Juvenile Male I, the court recognized that “an essential
aspect of the juvenile justice system has been to maintain the
privacy of the young offender and, contrary to our criminal
law system, to shield him from the dissemination of truthful
information and transparency that characterizes the punitive
system in which we try adults.” 590 F.3d at 926 (internal quo-
tation marks omitted). The opinion reviewed the Federal
Juvenile Delinquency Act, 18 U.S.C. § 5031 et seq.,
(“FJDA”) and determined that its confidentiality provisions,
such as prohibiting the public release of the name or picture
of the juvenile, were “quite essential to the Act’s statutory
scheme and overarching rehabilitative purpose.” Id. at 929(quoting United States v. Three Juveniles, 61 F.3d 86, 88 (1st
Cir. 1995)). The court distinguished the application of
SORNA to juveniles from its application to adults, explaining
that the former “does not merely provide for further public
access to information already available; it makes public infor-
mation about sex offenders that would otherwise permanently
remain confidential and exposes persons who were adjudi-
cated delinquent years before to public humiliation and igno-
miny for the first time.” Id. at 935. The court expressed
concern that SORNA’s juvenile registration provision makes
UNITED STATES v. ELKINS 6811
“public otherwise confidential delinquency records relating to
sexual offenses” and imposes on a person the burden of in-
person registration. Id. at 936. The opinion concluded “that
the retroactive application of SORNA’s juvenile registration
and reporting requirement violates the Ex Post Facto Clause
of the United States Constitution” because “[i]n some
instances, the retroactive implementation of SORNA’s provi-
sions will most certainly wreak havoc upon the lives of those
whose conduct as juveniles offended the fundamental values
of our society but who, we hope, have been rehabilitated.” Id.
at 941-42.
In Juvenile Male II, 670 F.3d 999, we again recognized that
SORNA conflicted with the FJDA. “Because it is clear that
the government’s public release of juvenile records authorized
by SORNA would have been prohibited under the FJDA prior
to the passage of SORNA, we find that the two statutes con-
flict.” Id. at 1008. However, the court concluded that because
SORNA was the later-enacted, more specific provision,11 and
Congress was aware of and intended SORNA’s modification
of the FJDA,12 “the district court properly applied SORNA’s
11
The court noted:
SORNA unambiguously directs juveniles over the age of 14 con-
victed of certain aggravated sex crimes to register, and thus
carves out a narrow category of juvenile delinquents who must
disclose their juvenile crimes by registering as a sex offender. For
all other juvenile delinquents, the FJDA’s confidentiality provi-
sions remain in force.
670 F.3d at 1008.
12
The court explained:
The relationship between SORNA and the FJDA is further clari-
fied by Congress’s clearly stated intent to limit confidentiality in
the case of certain juvenile sex offenders. See H.R. Rep. 109-218,
pt. 1, at 25 (2005) (“While the Committee recognizes that States
typically protect the identity of a juvenile who commits criminal
acts, in the case of sexual offenses, the balance needs to change;
no longer should the rights of the juvenile offender outweigh the
6812 UNITED STATES v. ELKINS
registration requirements to the juvenile defendants in these
cases.” Id. at 1008. Thus, Juvenile Male II holds that not all
applications of SORNA to individuals based on juvenile sex
offender determinations are sufficiently punitive to violate the
Ex Post Facto Clause.
We need not further reconcile Juvenile Male I with Juve-
nile Male II because in this case the record shows that the fac-
tual predicates underlying the concerns expressed in Juvenile
Male I are not present. Here, Washington law, not SORNA,
first mandated the dissemination of information about
Elkins’s juvenile sex offender determination and imposed on
Elkins the burden of registration. The state court’s 1994 Order
of Disposition required Elkins to register immediately with
the county sheriff. It further required that Elkins provide the
sheriff considerable information, including his fingerprints
and photograph. In addition, the Order (a) required that Elkins
provide written notice to the sheriff any time that he estab-
lished a new residence, (b) stated that failure to do so is a
“Class C felony or gross misdemeanor,” and (c) provided that
the order was to remain in effect until modified or revoked.
Moreover, the Washington registration form that Elkins
signed in February 2010 required that he register every three
months for life or until he is “relieved of the duty to register
by court order.”
rights of the community and victims to be free from additional
sexual crimes. . . . H.R. 3132 strikes the balance in favor of pro-
tecting victims, rather than protecting the identity of juvenile sex
offenders.”); 152 Cong. Rec. S8012, S8023 (daily ed. July 20,
2006) (statement of Sen. Kennedy) (“This compromise allows
some offenders over 14 to be included on registries, but only if
they have been convicted of very serious offenses.”). Thus, Con-
gress was aware that it was limiting protections under the FJDA
by applying SORNA to certain juvenile delinquents, and intended
to do so.
670 F.3d at 1008.
UNITED STATES v. ELKINS 6813
[6] The district court noted several differences between the
registration requirements under Washington law and SORNA,
but these differences are minor and do not amount to proof of
punitive effect. Under both Washington and federal law,
Elkins essentially is required to register for life. Under Wash-
ington law, the registration requirement is “indefinite.” Wash.
Rev. Code § 9A.44.140(1). Elkins may apply to be relieved of
the obligation to register upon a showing “by a preponderance
of the evidence that [he] is sufficiently rehabilitated to war-
rant removal from the central registry of sex offenders.”
Wash. Rev. Code § 9A.44.143(2)(c). However, he also must
show that he “has not been adjudicated or convicted of a vio-
lation of RCW 9A.44.132 (failure to register) during the sixty
months prior to filing the petition.” Wash. Rev. Code
9A.44.143(2)(b). Under federal law, Elkins’s registration
requirement could be reduced to 25 years if he maintained a
clean record. See 42 U.S.C. §§ 16915(a)(3), (b)(2)(B).
Similarly, it appears that under both state and federal law,
Elkins is required to report in person every three months. The
forms Elkins signed when he registered in February, March,
and April 2010 contain registration requirements that are sim-
ilar to the provisions of 42 U.S.C. § 16916(3). Also, both
Washington law and SORNA require the posting of a picture.
Elkins’s 1994 Order of Disposition required that he provide
his “fingerprints and photograph.” Thus, whatever minor dif-
ferences there may be in the reporting requirements, they are
not sufficient to render SORNA punitive when applied to
Elkins.
[7] In sum, even under the rationale of Juvenile Male I, the
application of SORNA to Elkins is not punitive because such
application did not make “public otherwise confidential delin-
quency records relating to sexual offenses,” 590 F.3d at 936,
and did not substantially change Elkins’s obligation to register
as a sexual offender. Elkins has not presented the clear proof
required to transform the application of SORNA to him into
a criminal penalty prohibited by the Ex Post Facto Clause. See
6814 UNITED STATES v. ELKINS
Smith, 538 U.S. at 92. Accordingly, we hold that the district
court erred when it dismissed the indictment.
B. There Is Sufficient Evidence That Elkins Had
Knowledge Of His Obligation To Register To Proceed
To Trial.
Elkins argues that he cannot be convicted of knowingly
failing to register under SORNA because the district court
found that he had no actual notice that he was required to reg-
ister under SORNA. He cites Lambert v. California, 355 U.S.
225, 228-303 (1957), for the proposition that notice is
required where a penalty might be imposed for a mere failure
to act. The government counters that Lambert is inapplicable
because convicted sex offenders are generally subject to regis-
tration requirements in all fifty states, and Elkins was aware
that he was obligated to register as a sex offender.
In United States v. Crowder, 656 F.3d 870, we agreed with
the government. Crowder argued that he could not be con-
victed under SORNA because “the government failed to plead
and prove beyond a reasonable doubt that he knew registra-
tion was required by SORNA.” Id. at 873. We noted that
Crowder “urges us to read the language of § 2250(a)(3) (that
the defendant ‘knowingly fails to register or update a registra-
tion as required by [SORNA]’) as requiring the government
to plead and prove that the defendant knew that he had failed
to register and also knew that such registration was required
by SORNA.” Id.
[8] We, however, held that “knowingly” in 18 U.S.C.
§ 2250(a)(3) applies only to the “fails to register or update a
registration” provision and not to the phrase “as required by
[SORNA].”13 Id. at 875. We observed that “a convicted sex
13
The opinion noted:
Because state registration schemes have been around for years in
all 50 states, see Smith v. Doe, 538 U.S. 84, 89-90 (2003), and
UNITED STATES v. ELKINS 6815
offender who knowingly fails to register would ordinarily be
committing a crime, regardless whether that individual knows
such failure also violates SORNA.” Id. at 876. We concluded:
[W]e interpret § 2250(a)(3) as requiring the govern-
ment to prove that a convicted sex offender knew of
a registration requirement and knowingly failed “to
register or update a registration.” It does not require
the government to prove that the sex offender also
knew that the failure to register violates SORNA.
This interpretation is consistent with the Supreme
Court’s rule that generally “the term ‘knowingly’
merely requires proof of knowledge of the facts that
constitute the offense,” Bryan [v. United States], 524
U.S. [184] at 193 [(1998)], . . . while also ensuring
that the defendant cannot be convicted of apparently
innocent conduct.
656 F.3d at 876-77.
[9] Our opinion in Crowder is controlling.14 The one-count
indictment charges Elkins with violating 18 U.S.C. § 2250(a).
In addition, the record indicates that a factfinder could deter-
mine that Elkins knew, or should have known, of his obliga-
tion to register under Washington law because of his travel to
California. Accordingly, following Crowder, Elkins’s alleged
lack of knowledge of SORNA does not support the dismissal
of the indictment. Elkins may raise as a defense that he did
not know, and it was not reasonable to expect him to know,
convicted sex offenders know (or should know) of their own state
registration requirements, a convicted sex offender who “know-
ingly fails to register or update a registration” is on notice or
chargeable with notice of the facts constituting the offense.
656 F.3d at 875.
14
See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc)
(noting that “a three-judge panel may not overrule a prior decision of the
court”).
6816 UNITED STATES v. ELKINS
that his travel to California triggered a reporting requirement
under Washington law. However, under Ninth Circuit prece-
dent, and consistent with the opinions of our sister circuits, to
the extent that Elkins “knowingly” violated his obligation to
register under Washington law, he had the requisite intent to
support a conviction under SORNA.15 Crowder, 656 F.3d at
876.
III
In enacting SORNA, Congress sought to establish a com-
prehensive national system for the registration of sex offend-
ers and offenders against children. 42 U.S.C. § 16901. In
Smith, the Supreme Court held that where the legislature in
enacting a sex offender registration program intended a civil
remedy, clear proof is required to show that the “statutory
scheme is so punitive either in purpose or effect as to negate
[the legislature’s] intention to deem it civil.” 538 U.S. at 92(internal quotation marks omitted). We reaffirm our agree-
ment with our sister circuits that SORNA is not punitive
merely because its registration requirement can be based on
a pre-SORNA conviction. We further hold that the application
15
In Crowder, we noted that:
[W]e join our sister circuits, all of which have read the word
“knowingly” in § 2250(a)(3) as not applying to the “as required
by [SORNA]” clause. See United States v. Stevens, 640 F.3d 48,
51-52 (1st Cir. 2011); United States v. Fuller, 627 F.3d 499, 507-
08 (2d Cir. 2010); United States v. Vasquez, 611 F.3d 325, 328-
29 (7th Cir. 2010), cert. denied, ___ U.S. ___, 131 S. Ct. 2930(2011); United States v. Shenandoah, 595 F.3d 151, 159 (3d
Cir.), cert. denied, ___ U.S. ___, 130 S. Ct. 3433 (2010); United
States v. Griffey, 589 F.3d 1363, 1367 (11th Cir. 2009) (per
curiam), cert. denied, ___ U.S. ___, 130 S. Ct. 3290 (2010);
United States v. Whaley, 577 F.3d 254, 262 n. 6 (5th Cir. 2009);
United States v. Gould, 568 F.3d 459, 468 (4th Cir. 2009), cert.
denied, ___ U.S.___, 130 S. Ct. 1686 (2010); Baccam, 562 F.3d
at 1199-1200.
656 F.3d at 877 (parallel L. Ed. 2d cites omitted).
UNITED STATES v. ELKINS 6817
of SORNA to Elkins based on his Washington juvenile sex
offender conviction is not punitive because Washington law,
not SORNA, first required Elkins to disclose information and
to register as a sex offender. Finally, pursuant to our opinion
in Crowder, 656 F.3d 870, we determine that there is suffi-
cient evidence that Elkins knew of his obligation to register
in Washington as a result of his travel to California to allow
this matter to proceed to trial. The district court’s dismissal of
the indictment is REVERSED and the case is REMANDED
to the district court.