Wednesday, July 28, 2010

July 21---Amish Tobacco



Just catching up a little. :) Thanks, AFPDs, for your summaries!

CHRISTOPHER SUTTON (08-6420) and RENNIE TURNER, (09-5049)

Direct Appeals

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0447n-06.pdf

Defendant Christopher L. Sutton appealed his conviction for conspiracy to structure currency transactions to avoid reporting requirements (in violation of 31 U.S.C. § 5324(a)(3)), and Sutton and his co-defendant Rennie Turner appealed their sentences. Rennie Turner pleaded guilty prior to trial and appealed the reasonableness of his sentence. Sutton went to trial and was convicted before a jury with two other co-defendants. On appeal, he argued that 1) the government presented insufficient evidence on several key elements of the structuring statute, 2) his right to confront his accusers was violated, and 3) the district court violated his ex post facto clause rights by using the wrong Sentencing Guidelines edition. Court affirmed Sutton’s conviction and both defendants' sentences.

The convictions in this case arose from an expansive scheme to illegally traffic in tobacco from 1998 to 2003.

The conspirators had sought to profit from sales of "excess tobacco." The plan included selling tobacco grown on another farm with a card as if it were grown on the designated farm, selling above a quota amount, and falsely designating tobacco. The conspirators made cash purchases of tobacco in Pennsylvania, a non-quota state, of Pennsylvania-type tobacco, mainly from Amish and Mennonite farmers. This tobacco was shipped to Tennessee and Kentucky and passed off as burley tobacco that had been grown in compliance with the burley-tobacco allotment program (in some years, non-quota tobacco from Pennsylvania and Maryland was identical or almost identical to Kentucky and Tennessee quota tobacco).

To get the funds necessary for this operation, the co-conspirators structured financial transactions. Sutton and Robert D. Oldham were the leaders, and Sutton generally provided the funds to be structured.

Most of the defendants, including Rennie Turner, decided to plead guilty.

The jury found Sutton and Ron Bowen guilty; it found Joey Bowen not guilty. The district court sentenced Sutton to 60 months, the statutory max. The district court also awarded the government a forfeiture amount of $4,500,000, to be paid by Sutton. The court sentenced Rennie Turner to 51 months.

Turner appealed the reasonableness of his sentence of 51 months. He did not appeal the calculation of his offense level as 24 or his criminal history category as I. Rather, he argued that the district court failed to adequately consider mitigating circumstances and considered an impermissible factor.

As to Sutton, the evidence was found to be sufficient.

The evidence presented did not violate the defendant’s right to confront the witnesses against him. Neither the tape recordings nor a co-defendant’s statement violated the confrontation clause. The tapes were not testimonial and the co-defendant testified at trial and therefore the trial court’s failure to ask defense counsel if he wanted to cross-ex the witness was not error where counsel failed to object to the opportunity.

The trial court used the correct guideline version in sentencing the defendant by using the most current edition, even though some of the offense conduct predated the version of the guidelines used. Regardless, the Court found that the advisory range would have been the same.

Turner’s within-guidelines sentence was reasonable even though he was denied acceptance of responsibility and the court did not grant a variance from that range. The record supported both decisions.

July 21---No Suprise on CO Seeking Crack Reduction

JEFFREY L. BASS

Crack resentencing

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0444n-06.pdf

The district court denied the defendant a reduction in sentence because he had been sentenced as a career offender. He was thus ineligible for a reduction. Affirmed.

Tuesday, July 20, 2010

Pre-Hearing Sentencing Opinion?



Here's what I've got for today. I want to thank this office's AFPDs for their analysis. I also want to thank the readers. We've gotten some good feedback lately, and that's really nice and we appreciate it!

LASHAWN WILSON

Direct Appeal

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0208p-06.pdf

Defendant pleaded guilty to a single count of mail fraud (in violation of 18 U.S.C. § 1341) and was sentenced to 48 months of imprisonment. She appealed her sentence, arguing that the district court committed plain error by selecting her sentence based on the clearly erroneous premise that she had stolen one thousand money orders and five hundred cashier's checks. Appellate court agreed and vacated the sentence and remanded for resentencing.

Finding the trial court relied on erroneous factual predicates, and finding plain error by the trial court in doing so, the appellate court reversed the sentence and remanded the case. Both the lead opinion and a strongly worded concurring opinion disagreed with the district court, which, the opinions note, seemingly determined its sentence prior to the sentencing hearing by bringing its sentencing decision to the courtroom already prepared and merely asking for comments on it.

Good Fast-Track Issue



ISIDRO CAMACHO-ARELLANO

Direct Appeal

Published


http://www.ca6.uscourts.gov/opinions.pdf/10a0206p-06.pdf

The defendant, a Mexican citizen, pleaded guilty to unlawful reentry into the United States after deportation and was sentenced to fifty-seven months of incarceration. He sought a remand for the district judge to consider whether to impose a lower sentence based on the disparities created by the existence of "fast-track" early-disposition programs for illegal-reentry cases in other jurisdictions. He also argued that the district judge’s reliance on incorrect information about the prevalence of fast-track programs rendered the sentence procedurally unreasonable. Because the defendant was sentenced before Kimbrough v. United States, 552 U.S. 85 (2007), and because Kimbrough permits district court judges to impose a variance based on disagreement with the policy underlying a given guideline (e.g., the fast-track disparity), the appellate court vacated the sentence and remanded the case for resentencing.

Two arguments for relief from the sentence, both based on procedural unreasonableness: 1) the district judge mistakenly believed that he could not consider the disparity created by the existence of fast-track programs in some jurisdictions and not others; and 2) in rejecting the disparity argument, the district court relied on erroneous information about which districts employed fast-track programs.

Defendant did not point out the second error at sentencing, but because the district judge did not ask the Bostic question (he asked defense counsel only if there was "anything else"), plain-error review did not apply. Review was for reasonableness. Court looked to United States v. Gapinski, 561 F.3d 467, 473–74 (6th Cir. 2009), which held that, under United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), the question of "anything else for the record?" was insufficient to trigger plain-error review when objections were not made below.

The Court found:

"To the extent that Gaines and our other cases suggest that sentencing judges may not reduce sentences based on the fast-track disparity, we agree with Camacho-Arellano that any such rule does not survive the Supreme Court’s decision in Kimbrough..."

This published decision seems to put the issue of a variance based upon a disparity due to fast-track programs elsewhere in the country into every illegal re-entry case.

A policy disagreement, even with Congress, not just the USSC, is grounds for a variance.

*******

Restitution



MARTIN T.WILLIAMS

Direct Appeal

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0204p-06.pdf

A jury convicted the defendant on five counts of fraudulently overbilling Medicare, Medicaid, and several private insurance companies as an employee of a psychiatric medical practice. The district court sentenced the defendant to 12 months of probation and ordered him to pay restitution in the amount of $822,459.21. The defendant appealed his conviction, as well as the amount of restitution that he was ordered to pay. He also brought a claim of ineffective assistance of trial counsel. Appellate court affirmed the portion of the district court’s judgment relating to the conviction, but dismissed without prejudice the ineffective-assistance-of-counsel claim, vacated the portion of the district court’s judgment that concerned restitution, and remanded the restitution issue for further consideration.

The Court issued a fairly lengthy opinion, which included a long recitation of a complicated procedural history. Ultimately, it was decided that the ‘deliberate ignorance’ instruction did not conflict with the ‘specific intent’ instruction on the conspiracy charge.

The Court declined to consider the defendant’s ineffective-assistance-of-counsel argument as not ripe. The Court found that the restitution issue had its own complicated procedural history with much blame going to the government’s actions in this regard. It ruled, however, that the doctrine of equitable estoppel could not overcome the mandatory nature of the statute on restitution ’requiring’ the Court to order restitution in the proper amount. The Court also ruled that the district court had failed to comply with Rule 32 by not specifically addressing the defendant’s restitution objections.

*******

Nukes II

DAVID GEISEN

Direct Appeal

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0203p-06.pdf

Co-defendant of Siemaszko’s from the case below. Mostly similar issues with one additional evidentiary issue regarding the court’s exclusion of the defendant’s rejection of an immunity offer. The Circuit Court upheld the convictions and denied the evidentiary appellate issue.

******

Nuclear Regs, False Statements, and Boric Acid Corrosion



ANDREW SIEMASZKO

Direct Appeal

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0202p-06.pdf

The defendant appealed his conviction on three counts of concealing material facts and making false statements to the Nuclear Regulatory Commission (NRC) (in violation of 18 U.S.C. §§ 1001 and 2). He argued that there was insufficient evidence to support his convictions and that the government’s presentation of evidence and an improper jury instruction constructively amended the indictment. Appellate court found that there was sufficient evidence to support each of the convictions and that the defendant had failed to establish that a constructive amendment of the indictment occurred. Court affirmed.

Case arose out of an incident in 2001 at the Davis-Besse Nuclear Power Station, which is located on the shores of Lake Erie, near Toledo, Ohio, and is owned and operated by FirstEnergy Nuclear Operating Company. Defendant began work at the plant in 1999 as the systems engineer in charge of reactor coolant systems. A safety incident at a similar plant prompted the NRC to require inspections at all like plants by the end of 2001, but FirstEnergy successfully petitioned the NRC to permit Davis-Besse to operate without interruption and thus delay inspection until a scheduled refueling shutdown in spring 2002. The defendant’s involvement in preparing the documents that Davis-Besse submitted to the NRC in furtherance of the delayed inspection gave rise to his indictment on and subsequent conviction of three counts of concealing a material fact and making false statements to a United States agency.

During the delayed inspection, Davis-Besse found five cracked nozzle heads, as well as a football-sized cavity caused by boric acid erosion in the head of the reactor. These findings prompted NRC investigations into previous plant inspections and, ultimately, the prosecution of the defendant.

The appellate court painstakingly reviewed the factual record of the reports submitted to the NRC in the first ten pages of the opinion. It then stated the trial issue:

"Siemaszko’s trial subsequently was severed from that of Geisen and Cook. At the trial, which followed Geisen’s and Cook’s, the key issue was whether Siemaszko had the requisite intent to be criminally liable under § 1001." (Footnote omitted.)

The jury convicted the defendant on counts 1, 2, and 5. The district court denied the defense's motion for acquittal and for a new trial, citing certain witness testimony as particularly "damning." The district court sentenced the defendant to three years of probation for each count, to run concurrently, assessed a $4,500 fine, and prohibited the defendant from working in the nuclear industry during his probation without the approval of his probation officer.

The appellate court found:

"A rational juror, therefore, could infer that Siemaszko willfully and knowingly concealed or caused to be concealed material facts in SL 2731 regarding the prior impediments to complete inspections, that he reviewed the final document sent to the NRC after editing, was aware of the changes made, and did not object to them. Therefore, the evidence presented at trial sustains Siemaszko’s conviction for count 1 based on the first allegation in the indictment."

The defendant had also argued that any inaccuracies in his draft submissions were caused by the lack of skills and guidance necessary to complete the table and not because of improper intent. He asserted that incompetence or negligence are not sufficient to convict under § 1001 and that statements made innocently/inadvertently are not false statements under § 1001. But the government submitted evidence to the jury that the defendant was aware of the inaccuracies and had a motive to portray prior inspections as complete in order to keep the plant running until RFO13.

There was ample circumstantial evidence of the defendant's direct and indirect participation in drafting the serial letter submissions, including the false statements and material omissions alleged in count 1 of the indictment. There was sufficient evidence for a rational juror to find the defendant guilty of count 1. Court affirmed that conviction.

The appellate court's discussion of the evidence presented with respect to the allegations in count 1 reviewed the sufficiency of the evidence to support several of the allegations of false statements made in count 2. So, the court determined that the government presented sufficient evidence for a rational juror to find that the defendant knowingly and falsely stated or caused to be stated that RFO10 included an inspection of the "entire head" and that the RFO10 video did not contain head orientation narration.

A rational juror could attribute the false statement that there was a "whole head visual inspection" in compliance with BACCP in 1996, 1998, and 2000 to the defendant. The defendant admitted that those three inspections were not in compliance with BACCP, but he argued that he did not make the false statement regarding BACCP in SL 2735 because it merely was copied from SL 2731. This argument failed because the defendant was the origin of that language in SL 2731 and a jury could determine that he caused it to be included in SL 2735.

A rational juror could conclude that the defendant made/caused to be made this false statement in violation of §§ 1001 and 2. Court affirmed on this ground without addressing the remaining allegations in count 2.

As to Count 5:

"Thus, although Siemaszko’s involvement in preparing SL 2745 was considerably less direct than his involvement in formulating the statements and documents made in counts 1 and 2, there is sufficient evidence for a reasonable jury to find him guilty of count 5 beyond a reasonable doubt. We therefore affirm his conviction on this count."

The appellate court also found that there was no constructive amendment of the indictment.

*******

Fraud



Thanks to our AFPDs here! Here's a fraud-case summary.

MARK D. LAY

Direct Appeal

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0201p-06.pdf

Defendant appealed his fraud convictions related to a hedge fund investment by the Ohio Bureau of Workers’ Compensation. The defendant argued that the jury instructions were improper and that insufficient evidence supported the jury’s verdict because, as a hedge fund adviser, the defendant had a fiduciary relationship only with the hedge fund---not with its investors. The defendant also sought a new trial based on three of the district court’s evidentiary rulings and its restitution and forfeiture determinations.

Because a hedge fund adviser can, in certain circumstances, have a fiduciary relationship with an investor, the jury instructions were correct. Sufficient evidence supported the defendant's conviction. The appellate court rejected the challenges to the district court’s evidentiary rulings and its restitution and forfeiture determinations.

Basically, the case involved fraud allegations related to hedge fund investments by the State of Ohio. The defendant was convicted of all the various counts brought against him. The majority opinion spends a great deal of effort reviewing the factual background to the defendant’s dealings with the state and the investment vehicles that caused a more than $200 million dollar loss to the state.

The most well turned phrase of the opinion is found in the dissent:

"But my point, in closing, remains a practical one: The government would make its task easier in mail- and wire-fraud cases if it would choose, as its charged communication, a blood relative of the fraud, rather than a second cousin by marriage. Reasonable jurists can disagree as to the outcome in cases like this one. But one wonders why they should have to."

*******

Tuesday, July 13, 2010

New Posts


OK, I was trying to catch up on our AFPDs' summaries, but I don't have as much time as I thought. So, stay tuned and I'll try to get more up in the next few days. Below is just a start.

Hope everyone's enjoying the summer!

July 2---Crack Resentencing

RASHEED J. SEWELL

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0398n-06.pdf

Defendant appealed district court’s denial of his motion to reduce sentence under 18 U.S.C. § 3582(c)(2). Because the career-offender guidelines and not the crack-cocaine guidelines controlled the original sentence, the district court correctly concluded that the defendant was not eligible for a sentence reduction. Court affirmed the denial of the motion.

The defendant’s arguments that his case could be distinguished from Dillon and its 6th Circuit predecessors were rejected.

July 8---Confessions



VERNELL D.WILLIAMS

Direct Appeal

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0194p-06.pdf

Defendant challenged his jury conviction for conspiracy to distribute cocaine. Court found claims "meritless" and affirmed.

Defendant argued that his 2005 confession to state police was involuntary and should not have been admitted at his federal trial. The voluntariness of a confession turns on a number of circumstances, including the length of the interrogation, its location, its continuity, the defendant’s maturity, education, physical condition, and mental health, and whether the police advised the defendant of his Miranda rights, and whether the record contains evidence of police coercion.

The circumstances of the defendant's confession did not show involuntariness.

Defendant also invoked a federal statute concerning confessions and delayed presentments: 18 U.S.C. § 3501(c). Defendant claimed the district court had no right to admit his confession. Theory involved two steps: (1) The statutory provision says that "a confession" "shall not be inadmissible solely because" federal agents delay presentment to "a magistrate judge or other officer empowered to commit persons charged with" federal crimes if the confession "was made . . . within six hours immediately following . . . arrest"; and (2) confessions like this, which are made more than six hours after arrest and prior to presentment before a magistrate, must be involuntary.

Court rejected this two-step contention, finding at least three flaws. First, the statute creates a safe harbor for admitting, not excluding, confessions. Second, the statute regulates federal prosecutions and confessions, not confessions made in state custody. Defendant confessed while he was held by the state police for potential state charges. Third, the statute was designed to limit the requirement that federal agents promptly present a suspect to a federal magistrate, which has nothing to do (whether as a matter of state or federal custody) with this interrogation/confession.

Defendant went on to argue that, even if his confession was voluntary, the district court violated Rule 404(b) of the Rules of Evidence in admitting it. Rule 404(b) prohibits courts from admitting evidence of "other crimes," except for certain exceptions. The defendant's confession (detailing his ongoing drug sales, discussing how he obtained his drug supply, and admitting that he had been caught with five kilograms of cocaine in his car) was not evidence of other crimes. It was evidence of this, the charged, crime. While conspiracies may entail many acts, many of which may themselves be criminal, that does not make them "other crimes" presumptively barred from admission under 404(b).

The defendant argued that the evidence did not support the verdict. But the Court found that he had waived this argument by not renewing his pre-verdict motion for judgment of acquittal at the conclusion of the evidence. The Court had only to determine whether the trial resulted in a "manifest miscarriage of justice." The Court found that it did not.

Thursday, July 01, 2010

June 22 to 29: Summaries of Published Opinions



Here are our AFPDs' summaries from June 22 to June 29, 2010. (The pic is to bring to the blog the warmth of summer and the good times I hope we'll all enjoy this holiday weekend!)

TONY DAVIS

State Habeas

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0183p-06.pdf

Petitioner-Appellant appealed the judgment of the district court denying his petition for a writ of habeas corpus. After a jury trial, a Michigan state court convicted him of carjacking and receiving and concealing stolen property (over a value of $20,000.00). The Michigan Court of Appeals denied his application for leave to appeal for lack of merit. The Michigan Supreme Court likewise denied his application for leave to appeal. Upon his filing a petition for habeas relief, the district court concluded that the state court correctly applied clearly established federal law in finding the evidence presented was sufficient to establish guilt beyond a reasonable doubt. And the performance of trial counsel in refusing to call an exculpatory witness was not constitutionally deficient.

The Court of Appeal reversed the decision of the district court and remanded the case to the district court with instructions to grant a conditional writ of habeas corpus, which was to give the State of Michigan 120 days within which to provide the petitioner with a new trial or, failing that, to release him.

The Court did not reach the ineffective assistance of counsel claim, finding that the evidence failed to support a conviction on the hijacking count even under an aider-and-abettor theory.

*******

JOHNNY ROBINSON

Appeal of Crack Resentencing Request

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0185p-06.pdf

The Court applied Dillon.

Judge Merritt concurred in the result only, but questioned the reasoning of the Supreme Court’s decision in light of 18 U.S.C. 3661 (no limit on sentencing info).

*******

RANDY WAYNE SPRINGER

Direct Appeal

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0188p-06.pdf

Defendant was in the Army and took a live rocket home from Fort Campbell and kept it beside the central vacuuming unit in his garage for over four years. He conceded that he did not have the authority to do so.

After his then-wife alerted the police, he was convicted of possessing an unregistered firearm, in violation of 26 U.S.C. §§ 5861(d) and 5871. He appealed, arguing that the evidence presented at trial was insufficient to support a finding of guilt. The crux of the argument was that, because he was a soldier, the rocket was always in the possession and under the control of the United States. This contention failed and the Court affirmed.

The Circuit Court found that the defendant’s claimed exception to the statute failed because his "possession" of the rocket in question was unauthorized by the government in any way since no one knew he had it.

*******

Seventh Cir Issues Interesting SORNA Opinion---Commerce Clause Analysis



Today, the Seventh Circuit issued an opinion dealing with SORNA and the Commerce Clause. United States v. Vasquez, No. 09-2411 (7th Cir. July 1, 2010). Panel of Judges Bauer, Manion, and Tinder (Judge Manion dissented).

Defendant appealed his conviction under SORNA, 18 U.S.C. 2250(a). Court affirmed the conviction. Court joined the Fourth, Fifth, Eighth, and Eleventh Circuits (and echoed its reasoning in Cox), and held that "SORNA merely requires that a defendant have knowledge that he was required by law to register as a sex offender. The government need not prove that, in addition to being required to register under state law, a defendant must also know that registration is mandated by a federal statute." Court found that Flores-Figueroa did not overrule the cases that have defined the term “knowingly,” when used in a criminal statute, as meaning a defendant realized what he or she was doing and was aware of the nature of his or her conduct . . . that the defendant did not act through ignorance, mistake, or accident.

Basically, a defendant can be convicted under SORNA if the government can prove that he or she knew he or she was required to register as a sex offender. Period.

In terms of the Commerce Clause, the defendant argued that 42 U.S.C. § 16913, SORNA’s registration provision requiring every sex offender to register regardless of whether the offender traveled across state lines, is unconstitutional. He contended that Congress does not have the power to impose registration requirements on individual citizens convicted of purely intrastate offenses. He also argued that § 2250(a), SORNA’s criminal penalty for failing to register, is unconstitutional because the statute makes it a federal crime for a sex offender who travels in interstate commerce to knowingly fail to register, even when the interstate travel has no connection to the failure to register.

Court saw no reason to disagree with other circuits. Found that the statutory aim of SORNA is to prevent a convicted sex offender from circumventing registration by leaving the state in which he or she is registered. Court concluded that 2250 only criminalizes a knowing failure to register when the defendant is either required to register under federal law or travels in interstate or foreign commerce. So, the Court reasoned, a sequential reading of the statute helps to assure that there is a nexus between a defendant’s interstate travel and his or her failure to register as a sex offender. Court looked to Carr.

Court concludes that interstate travel inherently involves the use of the channels of interstate commerce and is a proper subject of congressional control under the Commerce Clause. Court finds that Lopez explicitly acknowledged Congress’s power to regulate persons traveling in interstate commerce.

So, 2250 is a permissible exercise of congressional power under the Commerce Clause because of the use of the channels and instrumentalities of interstate commerce---this use is a necessary part of the commission of the targeted offense.

A rational basis exists under the Commerce Clause to support Congress's enactment of § 2250. And § 16913 is a logical way to help the government be more effective in tracking sex offenders when they cross state lines. Court concludes that, to the extent that § 16913 regulates solely intrastate activity, the regulatory means chosen are reasonably adapted to reaching a legitimate end under the commerce power.

Judge Manion dissented. Admonishes: "In reading the court’s opinion and the recent Supreme Court case Carr v. United States, this fact cannot be lost: there are seemingly two statutes at issue here. There is § 2250 as we interpreted it in United States v. Dixon, and as the court continues to interpret it, and then there is § 2250 as the Supreme Court interpreted it in Carr."

He has two principal disagreements with the majority’s opinion. First, it gives Carr too limited a reading. Second, its interpretation of § 2250 renders the statute constitutionally defective.

He points out that from the stipulated record the defendant’s only duty to register as a sex offender arose in Illinois, where he failed to register. He did not have a duty to register in California, and under the sparse record, one cannot tell how long he was there or whether he had changed his residence or any status that would compel him to register in California. So, his interstate travel did not culminate in his failure to register, nor was it in any way connected to such a failure. The travel was not part of the harm that Congress was addressing, but a mere jurisdictional hook for making the offense a federal one.

Judge Manion takes issue with the majority's treatment of Carr. He feels that it should be clear that the Supreme Court views § 2250 as requiring that some purpose to avoid, evade, or elude registration attach to a defendant’s travel. It is not enough that the defendant traveled across state lines to run an errand or visit a friend.

Because there is no proof concerning why the defendant traveled to California, his conviction should be overturned.

Against the backdrop of the traditional boundaries that have marked Congress’s power under the Commerce Clause and the courts' interpretation of Lopez, Judge Manion feels that it is clear that § 2250 is not a legitimate exercise of congressional power. In an effort to uphold the statute, the majority endorses a significant expansion of congressional power.

The dissent notes that in contrast to the statutes that properly regulate a person’s travel across the channels of interstate commerce under § 2250 the majority separates the defendant’s travel from the crime of failing to register. This separation renders the statute constitutionally problematic. The Supreme Court may have tacitly recognized the problem in Carr when the High Court noted that under § 2250 Congress subjected offenders to federal criminal liability only when they use the channels of interstate commerce in evading a state’s reach. Under Carr, the focus is and should be on the sex offender’s misuse of the channels of interstate commerce (i.e. using them to evade registration). Unless courts interpret the statute as the Carr Court did, § 2250 is not a permissible use of congressional power.

The dissent finds that the majority interpreted the issue to mean that, because a person travels across state lines, he or she is then a person in interstate commerce, so Congress can regulate the person thereafter. This expansive interpretation of the second Lopez category is contrary to the circuit’s precedent.

The dissent points out that none of the other circuits has directly relied on Scarborough and its minimal nexus test to uphold § 2250 as the statute applies to persons who have traveled interstate. By so doing, the majority here is recognizing a power Congress has never had, and it is doing so without giving deference to the reasoning in Carr.

The test may work when applied to things (e.g., guns and cars), but there are problems with extending the minimal/limited nexus rationale to persons. Persons are different: persons are not inherently commercial; they cannot be bought or sold; and their participation in commerce is limited to their decision to engage in it. With this distinction in mind, in the felon-in-possession context, it is the gun that has crossed state lines. It is insufficient hat the felon has crossed state lines and then possesses a firearm that has remained intrastate.

Expanding Scarborough would obliterate the limits between what is local and what is national. Congress could take over the monitoring and control of local crime by making an element of the offense that the person has traveled interstate at some point. This approach, however, stands in complete contradiction to Morrsion.

When § 2250 is applied in the way it was applied in Dixon and as it is applied by the majority, the dissent points out, there is a need to apply Carr’s "considered dicta" to the statute and a showing that the defendant’s travel was done with an illicit intent (to evade, elude, or avoid registering) is required. The dissent warns that "[t]he alternative is an unconstitutional statute."

The dissent's final point is that this offense is a specific-intent crime. Such is true applying the statute either as the court did in Dixon or as the Supreme Court did in Carr. If the court were to follow Carr’s reasoning and the purpose of the travel is vital to the statute, the government is forced to prove that the defendant had an elevated intent. It is not enough to travel and negligently/ignorantly fail to register.

The statute does not proscribe inherently unlawful conduct. Rather, it requires a defendant to register. He or she has an affirmative, administrative duty that he or she must perform or be imprisoned. It is reasonable that a defendant would have to know about this duty before being held accountable. Nothing suggests that Congress intended to hold a person responsible for knowingly failing to do something without any evidence that the person knew what they were supposed to do.

The majority’s position that the court can transfer knowledge between a state-imposed duty and a federal duty is difficult to reconcile with the fundamental concepts of justice (and with precedent).