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United States v. Terwilliger

January 2, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
GLEN W. TERWILLIGER, DEFENDANT.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER RE: MOTION TO DISMISS

INDICTMENT

In August 1991, Defendant was convicted of unlawful sexual contact among other crimes in the state of Colorado. Defendant was released from custody on October 7, 2001. Defendant initially registered as a sex offender in Denver, Colorado but failed to keep his registration current. An arrest warrant was issued in Colorado for Defendant on or around May 30, 2003.

Defendant apparently moved to Nevada sometime after his release from prison and initial registration in Colorado. On August 16, 2006, Defendant was convicted of failing to register as a sex offender in Clark County, Nevada and sentenced to probation. He was ordered to update his Nevada registration with any changes of address and resolve his Colorado arrest warrant. Defendant failed to do comply with either order. On November 3, 2006, a Nevada arrest warrant was issued for Defendant for violation of probation.

Defendant arrived in San Diego, California in January 2007. On May 11, 2007, Defendant was arrested by the U.S. Marshall's Service at his residence. As of the date of his arrest, Defendant had not updated his Colorado or Nevada registration and had not registered as a sex offender in California.*fn1

The government's indictment charges Defendant with having traveled in interstate commerce and knowingly failed to register and update his registration between August 20, 2006 and May 11, 2007. Defendant has moved to dismiss this indictment on several grounds including that SORNA, as applied to the facts of his case, violates the ex post facto clause of the Constitution.

DISCUSSION

The Adam Walsh Child Protection and Safety Act of 2006, which was signed into law on July 27, 2006, requires a person convicted of a sex offense to register, and keep the registration current, in each jurisdiction where the offender resides, works, or is a student.

42 U.S.C. § 16913(a). Section 141 of the Adam Walsh Act contains the Sex Offender Registration and Notification Act (SORNA) , 18 U.S.C. § 2250, provides criminal penalties of up to ten years imprisonment for anyone who

(1) is required to register under the Sex Offender Registration and Notification Act;

(2)(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or (B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and

(3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act.

SORNA further provides that the "Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply" with the initial registration requirements set forth. 42 U.S.C. § 16913(d).

On February 28, 2007, the Attorney General issued an interim rule effective February 28, 2007 announcing that "[t]he requirements of the Sex Offender Registration and Notification Act apply to all sex offenders, including sex offenders convicted of the offense for which ...


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