Posted On: October 19, 2009

United States Court of Appeals Holds Registration and Reporting Requirements of SORNA Unconstitutional As Applied to Adjudicated Juveniles

The Sex Offenders Registration and Notification Act, otherwise known as SORNA, was enacted by Congress in 2006 as part of the Adam Walsh Child Protection and Safety Act; legislation enacted “in order to protect the public from sex offenders and offenders against children”. SORNA establishes a national database of sex offenders, requiring anyone convicted of certain sex offenses to register as an offender and report to law enforcement authorities every ninety (90) days for twenty-five (25) years. The Attorney General was given the authority by Congress, and accordingly chose to apply the registration and reporting requirements of SORNA retroactively to those with prior convictions of certain sex crimes. The Attorney General further applied the SORNA requirements to those convicted as juveniles, regardless of whether they had been adjudicated.

The Federal Juvenile Delinquency Act has long been in place in our justice system. It was created with the intention of removing juveniles from the ordinary criminal justice system in hopes of rehabilitation and to assist troubled youths in becoming productive adult members of society. As part of the Act, juvenile offenders generally do not have their names or a picture released to the public when charged with most criminal offenses and further safeguards the record of juvenile proceedings from unauthorized disclosure.

The Constitution of the United States also provides protection against Ex Post Facto laws, or laws which retroactively change the legal consequences of a person’s actions. The Constitution shields citizens from being punished for acts previously committed which did not carry consequence at the time they were committed. However, consequences must be deemed punitive in order for the Constitution’s clause to apply; regulatory or civil application, such as adult registration in a sex offender database, is not considered a violation of the Ex Post Facto clause.

A juvenile who was adjudicated for a sex offenses which he committed between the ages of thirteen (13) and fifteen (15), was required to register in the national sex offender database as per SORNA’s requirements. The juvenile’s offenses constituted aggravated sexual assault due to the young age of the victim. The Juvenile was adjudicated delinquent and sentenced to two (2) years detention in a juvenile facility, to be followed by supervised release; the adjudication occurred one (1) year prior to the passage of SORNA. As per the FJDA, the juvenile’s record was sealed.

On appeal from the District Court’s imposition of the SORNA requirement upon the juvenile, following his adjudication for delinquency, the United States Court of Appeals for the Ninth Circuit held that applying the SORNA requirements to the appellant violated the Ex Post Facto clause of the Constitution. The Court discussed the difference between applying SORNA retroactively to adults versus adjudicated juveniles. The FJDA seals a juvenile’s criminal record upon adjudication, allowing only authorized personnel to view juvenile offenses of an individual. The FJDA provides this protection in hopes of rehabilitating juveniles so they can become productive adults, rather than burden their early adult lives with a criminal record which would affect employment, credit, home rental and purchase, etc. Contrarily, an adult criminal record is open to the public upon search.

Based upon this analysis, the Court held application of SORNA’s registration and reporting requirements unconstitutional as applied to adjudicated juveniles, as the effect would be punitive rather than merely regulatory. The Court also mentioned that an opposite finding could require juvenile offenders, adjudicated decades ago, to register; potentially ruining families, businesses, and the lives of those who have been successfully rehabilitated.

Sexual Crimes

Sexual Crimes are serious matters in the Commonwealth of Pennsylvania, as well as throughout the United States. These crimes carry harsh penalties. In addition to prison sentence, a convicted offender may be subject to “Megan’s Law”, which is intended by the Pennsylvania General Assembly to “protect the safety and general welfare of the people of this Commonwealth by providing for registration and community notification regarding sexually violent predators who are about to be released from custody and will live in or near their neighborhood”. Further, offenders may also be subject to a national sex offender registration database under the Federal SORNA Act.

Sexual offenses in Pennsylvania are serious crimes which carry many substantial penalties if you are convicted. An experienced Pennsylvania Criminal Defense Attorney can defend you against these charges.

Posted On: October 16, 2009

Downward Departure from Sentencing Guidelines Must Result in Final Sentence Below the Original Guideline

A recent precedential case, decided by the United States Court of Appeals for the Third Circuit, held that a downward departure from the sentencing guidelines must result in a final sentence, less than the minimum provided by the guideline. The case of U.S. v. Vazquez-Lebron involved a Defendant who had pled guilty to conspiracy to possess and intent to distribute cocaine. For his cooperation and substantial assistance in the prosecution of others involved, the Prosecution agreed to grant Vazquez a downward departure from the sentencing guidelines which suggested forty-six (46) to fifty-seven (57) months imprisonment. This downward departure was intended to lower Vazquez’s offense level by one point, changing the applicable sentencing guideline to forty-one (41) to fifty-one (51) months. At sentencing, the District Court imposed a sentence of forty-eight (48) months for Vazquez, within the range of the downward departure but overlapping with the original sentencing guidelines.

Vazquez appealed the sentence for plain error, arguing he was not given any benefit of the downward departure the Prosecution had agreed upon. The Third Circuit cited to U.S. v. Floyd, quoting “the sentence reached after granting a departure motion must be less than the bottom of the otherwise applicable Guidelines range.” The Court further explained the only way Vazquez could have been sentenced to a greater term than allowed by the downward departure is if the new sentence failed to reflect the seriousness of the crime committed. The Court found the error to be plain and prejudicial, therefore vacating the sentence and remanding the case with instruction for re-sentencing.


A sentencing hearing is held following a plea of guilt or a finding of guilty at trial. The purpose of the hearing is to highlight both mitigating and aggravating factors, which may affect the length of a defendant’s sentence. Some crimes carry mandatory minimum sentences, while others use guidelines which are advisory. Often times, a defendant can lower the level of his offense through mitigation; for example, cooperating with and assisting Police in an on-going investigation. There are other mitigating factors which are used to reduce a defendant’s sentence as well. An experienced criminal defense attorney is well versed in these mitigating factors, and can assist the defendant in reducing a potential sentence. If you have been charged with, or believe you are under investigation for a crime, please do not hesitate to contact the Law Offices of Marc Neff for a confidential consultation.

Posted On: October 15, 2009

Sixth Circuit US Court of Appeals Holds Inevitable Discovery Doctrine Does Not Allow for Circumvention of Warrant Requirement

The United States Court of Appeals for the Sixth Circuit recently reversed a District Court decision which denied a motion to suppress evidence seized without a warrant. The case, U.S. v. Quinney, involved a U.S. Secret Service investigation for the counterfeiting of American currency. Agents from the Secret Service arrived at the Defendant’s residence and obtained consent to search the Defendant’s bedroom. Agents discovered a printer which they believe was used for counterfeiting. The Defendant, however, admitted to passing phony currency, but not actually manufacturing counterfeit dollars.

After later interviewing two witnesses who claimed the Defendant actually had manufactured counterfeit money, the agents returned to the Defendant’s residence without a search warrant. The Defendant was not home at the time. The man’s stepfather, who was home when the agents arrived, claims the agents did not request his permission, but rather announced their presence and that they were seizing the printer.

In support of denying the Defense’s motion to suppress, the Prosecution argued the “Inevitable Discovery” doctrine applied, making the warrantless search and seizure legal. The Inevitable Discovery doctrine states “if the Prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means..., then the deterrence rational has so little basis that the evidence should be received.” In U.S. v. Alexander, the doctrine was applied where police, with a proper search warrant, arrested the defendant in his home and obtained an admission from the defendant of where contraband had been hidden, prior to reading the defendant his Miranda rights. The defense moved to suppress the evidence on the basis of an illegally obtained confession leading to the discovery of evidence, as fruit of the poisonous tree. The Court in Alexander held that because the police had a proper search warrant, they would have inevitably discovered the contraband when exercising the warrant, regardless of whether the confession had been given.

In Quinney, the agents failed to obtain a proper search warrant despite having probable cause to do so. The Court therefore held the Inevitable Discovery doctrine did not apply, as the agents were instead trying to circumvent the warrant requirement for whatever reason. The Court cautioned that a finding in the contrary could lead to an elimination of search warrant protections. The evidence was therefore suppressed and the case remanded for trial accordingly.

Suppression of Evidence

In a criminal trial, the burden is on the prosecution to prove guilt beyond all reasonable doubt. The prosecution builds their case with evidence; some evidence stronger than other. There are rules regarding evidence, both State and Federal, which govern what evidence is admissible and what is not. Often, some or all of the evidence the prosecution wishes to use was obtained illegally, either by police or third party. An experienced criminal defense attorney is an expert in the field of evidence. Upon reviewing a defendant’s case, a criminal defense attorney will determine if some of the evidence can and should be suppressed, and will take the appropriate actions to do so.

If you have been charged with a criminal offense, contact the Law Offices of Marc Neff via phone at (215) 563-9800 or e-mail for a confidential consultation.

Posted On: October 13, 2009

Superior Court of New Jersey Denies Motion for Summary Judgment, Finds Employer could be Liable for Employee’s Use of Work Computer to Send and View Child Pornography

In a recent appeal, challenging a motion for summary judgment which had initially been granted, the Superior Court of New Jersey reversed the motion finding an employer can potentially be held liable where an employee uses a work computer for child pornography purposes. The employee in question had photographed and videotaped his ten-year old step-daughter nude, subsequently posting the material on a child pornography site via his workplace computer. The employer has a policy in place, which all employees must agree to as part of their employment agreement, stating e-mails are the property of the employer and not the employees, employees are subject to the monitoring of their work computers, and employees must report any unacceptable workplace activity witnessed on a co-workers computer. The employee in question had been reported numerous times to superiors for allegedly viewing pornographic material on his computer during work hours. Twice, supervisors inspected the employee’s computer, examining the list of recently visited websites and observing that some were pornographic in nature. Although the sites were never opened by supervisors, the name of at least one site indicated it was potentially child pornography. Although the employer’s policy allowed for the dismissal of an employee in breach of the agreement, the employee in question was merely reprimanded on both occasions.

A lawsuit was filed by the victim’s mother, alleging negligence of the employer due to its failure to adequately monitor the employee’s computer. To be found liable for negligence, the Plaintiff must prove a duty exists on the part of the employer to monitor the employee’s computer, that duty was breached, and that breach of duty caused the Plaintiff’s injuries. In the motion for summary judgment filed by the employer and initially granted, the Court held the final element of negligence could not be met because the sexual abuse of the victim would have occurred regardless of whether the employer had monitored the computer. On appeal, however, the Superior Court reversed the motion and remanded the case for trial. The Court found the employer had both the ability and the right to monitor the employee’s work computer. The employer had knowledge of the employee’s past access of pornographic websites, giving rise to a duty to prevent the possible harm to others. Although the employee potentially could have used another computer had he not been able to post the pornography via his workspace, the Court held the issue of cause as one for a jury to decide and remanded the case accordingly. The Court’s ruling illustrates an employer’s potential liability for an employee’s criminal acts, within the scope of business.

Child Pornography

Federal Law defines child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photograph, film, video, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where it a) depicts a minor engaging in sexually explicit conduct and is obscene, or b) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value.” Possessing, Making, and Distributing child pornography is illegal in all 50 states, including Pennsylvania, and it is an offense which carries serious legal penalties.

If you have been arrested and charged with owning, making, or distributing child pornography, the Law Offices of Marc Neff can help. There are defenses which are available to you, so do not hesitate to contact the Law Offices of Marc Neff immediately.