[00:00] Introduction: Welcome to Registry Matters, an independent production. Our opinions are our own, and we’re grateful for your support. You make what we do here possible. Together, we’re making a difference. And always remember, FYP.
[00:23] Andy: Recording live from FYP Studios East and West. Transmitting across the internet, this is episode 379 of Registry Matters. Larry, what’s up? How are you on this fine Saturday evening?
[Larry]: Nice and toasty. I bet it’s toasty over there.
[Andy]: It’s hot as… My uncle calls me from Baltimore, just outside of Baltimore. He said it was like upper, upper 90s in the last couple days. So those of you going to the conference here, it’s going to be a scorcher.
[Larry]: That’s good for him. We’ll find out if the air conditioning works in Baltimore.
[00:55] Andy: That’s not a punch in the nose from anything in the recent past, is it? No. You would never do that? Never.
Please, thumbs up, like, subscribes, you know, all that jazz. Subscribe in your favorite podcast app. That’s my preferred way, because then it downloads to your phone. It’s just fabulous. You’re out there cutting the grass. You’re not trying to stream. You don’t have to use any of your data. And you get it right there, just searching your favorite podcast app for Registry Matters. If you need help, I got links all over the redesigned RegistryMatters.co website to find everything that you need to look for.
And, yeah, that’s all I got there. So what are we doing tonight?
[01:36] Larry: Well, we have a case from the U.S. Supreme Court. Oh, Supreme Court, huh? Yes, the Supreme Court. It’s not a victory, per se, for the PFR community at this stage, but it’s a nice victory for the rule of law and the Constitution.
Also, we’re going to discuss which state can modify a sentence when an offender has been transferred through the Interstate Compact for Adult Affairs. So we’re going to talk about the difference between an offender’s supervision and explain the difference in serving one sentence versus registration, because I get probably, NARSOL gets one, two letters a month, if not more, asking that question.
They want to move to a state so that they can get better, they can get off supervision early if they go to another state. Right. So this case from the United States Supreme Court. I have no idea how to pronounce the last name. Did you have any luck?
[02:30] Andy: didn’t even go look, to be honest with you. I didn’t even go look. It’ll be fine. We’ll figure it out on the fly as we go through. Maybe your version versus my version, and we will land on some version.
[02:44] Larry: Well, I can agree that the first name is Ahmad.
[02:49] Andy: Yeah, I think that one is pretty easy to figure out on that part of it. Yes.
[03:05] Larry: At $10,000 a minute for airtime here with no commercials to plug in, we’re just letting time flutter away, and FYP is losing gobs of money.
[03:17] Andy: That is exactly how that’s going. And now it’s working, so you can stop your fussing at me. Let’s look at this case that you put in here. It’s the Supreme Court case, Ahmad Abuamo versus the United States. The name is Abuamo, A-B-O-U-A-M-M-O. We could say it’s Ammo at the end and Abuamo. So Abuamo—what do you think? That’ll do, but I don’t know if I can pronounce it. Yeah, we’re probably going to drift over the show. So Ahmad Abuamo versus the United States. And I got to ask up front, Larry, what does a Twitter spy’s fake invoice venue case have anything to do with this? Anything at all in your crazy little mind? What does that have to do with the registry?
[04:05] Larry: It has the potential to be something useful for the PFR community in the longer term downstream.
[04:12] Andy: All right. And how so?
[04:14] Larry: Well, the question presented to the high court concerns the proper venue for trying an alleged violation. The statute in question here makes it a crime to knowingly falsify a document with the intent to obstruct a federal investigation.
[04:30] Andy: Now, why is the venue so important for something like this?
[04:35] Larry: Venue is a big thing for me and should be for all people who are in this business. Venue and criminal cases matter to the nation’s founders. Prior to the revolution, the English parliament enacted measures to try allegedly treasonous colonists, taking them back to England rather than in their home colonies. The legislation was so despised that it made its way into the Declaration of Independence, among the injuries and usurpations listed: the practice of transporting us from the US overseas beyond the seas to be tried for pretended offenses. And that still holds true today. This United States is a very vast nation, and it can be very expensive to go from Maine to Kodiak Island, Alaska. We’ve got to try you where you can get a jury of your peers.
[05:35] Andy: I was going to say, and then if they put you in a transport van and take you on a trip via Florida back to Vermont, then over down to Texas. Then maybe you go up to Wisconsin and over to Los Angeles, and then you go to Alaska. That would make it really expensive.
[05:54] Larry: Does that make any sense so far? So far so good. Yes, I do see that. Well, beyond that, even after the revolution, the founders retained strong feelings about the unfairness and hardship involved when an accused is prosecuted in a remote place. As a result, the Constitution not once but twice safeguards the defendant’s venue right. Article three instructs that trial on all crimes shall be held in the state where the crime was committed. And the Sixth Amendment reinforces that command, entitling criminal defendants to a jury of the state and district where the crime was committed. It’s pretty straightforward: we don’t get to haul people across the country and put them on trial somewhere else; we have to try them where they committed the offense or before they were alleged to have committed the offense.
[06:42] Andy: Well, you’ve gone through that intro, and I’m still kind of confused. Is this case related to the registry? And if it isn’t, how does it relate to our mission here at FYP education?
[06:53] Larry: Well, it has absolutely nothing to do with the registry, but if you’ll stick with me, it can relate to it eventually. Because it’s story time with Larry tonight. Oh, okay. We can actually get some background music or something. No, please go on. Well, let me say plainly right at the top: nobody gets giddy about this ruling for Mr. Obama, a bowel memo or whatever his name is. It doesn’t directly affect anyone we cover here. It’s not a win or loss for the PRR community. We’re comparing apples and oranges, but it’s an interesting case. This is a teaching case. So let’s go through it.
[07:16] Larry: Well, tell me what happened. Here’s the human absurdity: A fellow worked at Twitter in San Francisco who handled confidential information handed that information to a Saudi official and pocketed $300,000. Later, he relocated to Seattle from San Francisco. The FBI came back to interview him in Seattle. While the agents were there, Mr. Ahmad created a phony invoice and emailed it to them. Then the agents went back home to San Francisco, dug into the metadata, and discovered the document was fake.
[08:17] Andy: Well, the metadata would be behind the scenes of the PDF or the invoice. There’s a bunch of stuff back there like tags, creation date, software used—things like that. If it shows the document was created five minutes ago by Mr. Ahmad’s watch while the agents were waiting, they probably have a fairly decent idea he just made up the invoice.
[08:50] Larry: So he made it up while they waited and hit send right away. I got to keep that in mind because I try to do well at what I do. So I need to create these invoices in advance and anticipate that I might need them. Would that be good?
[09:05] Andy: So do you remember the PDF that you had me mock up when we redacted the person’s name? Last week. Yes. Okay. So I had it go through some software to do it and was like, do you want me to update the metadata also? Because behind the scenes, the actual text may be in there. So I had it strip all that out as well, in case somebody did get ahold of that PDF. That way, it wasn’t non-redacted in the actual document either.
[09:34] Larry: Well, nonetheless, he got charged under United States 18 United States code section 1519, which is knowingly falsifying a record with the intent to impede or obstruct a federal investigation. And here’s the legal question: Where exactly is the crime committed when the only thing you did was create a phony document? And that’s how we eventually tie this back to the PFR community because where the crimes are committed are very important. Okay, and then also where they tried him. Yes, they tried him in the Northern district of California in San Francisco. He was convicted by a jury. He challenged venue, and the district court denied the challenge, finding that venue was proper where the FBI investigation was located. That liberal bunch of do-gooders in the Ninth Circuit affirmed the conviction on this theory of contemplated effects, reasoning that he intended to obstruct an investigation that lived in San Francisco. So you can try him there. He went up on appeal to the Supreme Court. They granted cert. And what did the court decide? Well, they had a unanimous opinion. Justice Kagan wrote that they reversed and remanded. The principle is one that every defendant should tattoo somewhere: You get tried where you did the deed, not where the G men keep their desk. The only conduct in section 1519 actually prescribes is falsification of the document. That’s it. So the venue must be where the falsification occurred, not where it’s convenient for the prosecution or law enforcement. He falsified the document with them sitting in his residence and he sent the falsification there. So they need to get their story straight because they could have possibly had venue, but he falsified it in Seattle.
[11:24] Andy: Right. So, yeah, I was just going to say that he falsified that in Seattle. And that’s where that particular infraction would have been tried. That is correct.
[11:32] Larry: The falsification occurred in Seattle and the crime is complete when he had sinned with a requisite intent to obstruct the federal investigation. The court is emphatic about this. Once you falsify the document with that intent, you need to do nothing more to violate the law. No transmission was even required. No use required. No actual obstruction required. You could falsify the thing and stick it in a drawer and you’ve already committed the offense.
[12:04] Andy: Well, then why did the government think they could try him wherever the investigation happened to sit?
[12:12] Larry: Well, that’s the part that gets me. Of course, I have my theory. My theory is because it was convenient, but their theory leaned on the intent element, intent to obstruct an investigation that was based in San Francisco. And the Supreme Court said, no. The Supreme Court never looked at the statute’s mens rea elements in considering venue, and it wouldn’t make sense to do so. Intent never bears on venue. Venue follows the conduct of the statute, the conduct that’s actually forbidden and prescribed in the statute. The act of prosecution has to prove not the effects that the defendant intended but the gravity of the offense here as creation.
[13:02] Andy: So guess what? You get to go try him there. Remind me what mens rea means again, please.
[13:09] Larry: Intent and knowledge. You’re intending to commit the crime, and you have knowledge of what you’re doing.
[13:17] Andy: Okay. Didn’t the government also charge some kind of inchoate offense? This word we’ve been batting around. I-N-C-H-O-A-T-E.
[13:32] Larry: Yes, I’ve always heard that it’s “inchoate,” but I’m not going to argue about it because I’m not a lawyer, and they did. And the courts swatted that theory down with a basic dictionary definition. The government wanted to call it an inchoate offense, like conspiracy, where you can find venue based on the object of the crime or an overt act somewhere, but the Supreme Court pointed out Section 1519 as a standalone crime. There’s no object crime. As the government itself conceded, you can falsify the document, stick it in a drawer, never use it to obstruct anything, and you’ve already broken the law. So the “inchoate” label is just result-oriented reaching, a way to drag the man to the courthouse that the prosecutors prefer.
[14:19] Andy: And you think that’s what this was about? Picking the friendly courthouse, even though you’re talking about the pointy-headed people in the Ninth Circuit?
[14:29] Larry: Well, it’s my theory that it’s convenient for all the officers involved, and I’m suspicious of that. But it makes sense if all the investigation is based there; they’ve got to pack up and get lodging and go to Seattle. And if I’m a defendant, I’m going to force you to spend a whole bunch of money if I can get you in the right venue. So if I’m in Ahmad’s position, I’m going to say, well, boys, if you want to try me, come on up. The water’s fine here. So they pick San Francisco home court, I think, for convenience. And notice, to tidy the secrets, agents didn’t have to fly to Seattle, set up an interview to discover the falsification by metadata once they’re back home. That’s a convenient way to claim venue where you wanted it all along. This court decision reminds everybody that the Constitution safeguards the defendant’s venue right, not once, but twice. The founders feared being hauled beyond the seas to be tried somewhere else. So they decided to go to Seattle, which is a more remote and fear maps right out onto an ordinary defendant dragged clear across the country to face a jury in the prosecutor’s preferred district. Now, I don’t know if Seattle would be any more favorable to him. They’re both liberal pointy-headed cities. So and there’s something that we need to understand about liberal pointy heads. They’re not soft on all crime. They’re hard on monetary crimes because they resent people having wealth. So it may not be much better for him to be tried in Seattle, but at least he makes them work for the conviction.
[15:58] Andy: Now, I guess what you’re really describing is that this is a win for venue protections.
[16:03] Larry: Yes, as far as Section 1590
[16:05] Larry: It’s very solid, but here’s where I manage your expectations. In footnote number four, they hand Congress basically the eraser. The court says the conduct elements test applies where Congress hasn’t specified its own venue rule. Section 1519 happens to have no venue provision attached. But other obstruction statutes do, like Section 1512 I, which has a venue provision. And the court flatly said, “We decide today touches on a statutorily created venue scheme.” In other words, Congress can write its own venue clause and we’ll respect it. It’s kind of like when you read a statute that says obscene telephone calls can be prosecuted where the call was made or received. But without specification, there’s no assumption you get to drag people across the country. How durable is this? For Section 1519, it’s fine for now but narrow and easily sidestepped. Prosecutors will pressure Congress to make modifications similar to 1512 with a built-in clause. Then the relief evaporates. But this ruling is certainly good for the moment and fragile by design.
[17:56] Andy: Now, what about for our listeners? Like you often try to figure out ways of one or two degrees of separation, how something might apply to our people. How does this impact our listeners?
[18:09] Larry: Not directly yet. The court itself called this holding discreet and narrow based on the nature of a specific crime that doesn’t touch Smith versus Doe and it doesn’t touch ex post facto. It doesn’t touch the registry at all—at least not yet. If you’re hoping this signals movement on the punishment doctrine, you’ll be disappointed. But there’s one lesson worth carrying away: the government will stretch any theory to drag you into its favorite courthouse. So if you have a venue issue, fight it early. That’s the takeaway for Mr. Ahmad. But down below, I’m going to explain how this might actually help the PFR community. But I’m trying to diminish expectations that this is not the cure-all end up.
[18:54] Andy: Well, you just did that. You kind of couched all of the positive expectations. So this doesn’t touch Smith versus Doe. It doesn’t touch ex post facto. And then you said not. But then you said not yet. Are you seeing some kind of silver lining somewhere? A glimmer of hope?
[19:03] Larry: Over the preceding decade, there’s been a dramatic expansion of the jurisdiction of the United States District Courts. And we need to keep in mind that the federal courts are courts of limited
[19:22] Andy: jurisdiction. Now, explain that, though, please. I’ve always considered that federal courts are over the state courts. That’s
[19:31] Larry: Not true. All federal courts are courts of limited jurisdiction. Federal courts only have the power to hear cases that arise under federal law or meet the requirements for diversity jurisdiction, which is when a case involves parties from different states. There are also special courts within the federal court system that handle specific types of cases like tax court and bankruptcy court. Federal circuit courts can only hear appeals from federal district courts or specialized courts I just mentioned. And the U.S. Supreme Court can only hear cases on appeal from circuit courts or state courts if they involve a federal question. The federal courts are not all-powerful; they were designed by the founders to have very limited power.
[20:18] Andy: Well, then explain where the power actually rests when it comes to the court system. It rests in the court system. State courts.
[20:25] Larry: State courts are courts of general jurisdiction, unlike federal courts, which are limited jurisdiction. They can hear almost any state or federal claim with a few exceptions. However, there are also some state courts that are designated as courts of limited jurisdiction. The names of those courts vary from state to state, such as municipal court, county court, justice of the peace court. Here in New Mexico, we call it metropolitan magistrate court, but these courts handle various subject matters like family, probate, traffic, juvenile, and small claims cases. But my personal belief is that federal courts have extremely limited jurisdiction over PFR registration matters, and that’s where I want to see this go.
[21:06] Andy: Now you’re going to have to dig into that and explain what you mean there.
[21:09] Larry: Since there’s no federal registry, it seems to me that a sound legal theory is that there’s no subject matter jurisdiction in the federal court system except in extremely limited circumstances. My personal belief is that there’s no independent duty to registration under federal law, since there’s no federal registry. The matter of jurisdiction is entirely up to the individual states. Now, having said that, I do recognize that there’s probably valid jurisdiction when a PFR travels between the states and does not comply with the state requirements of the state he or she has traveled to and is now in. But I believe that the federal government, along with lawyers out there in my profession, have allowed subject matter jurisdiction to go unchallenged. They’ve pretended that jurisdiction exists where it doesn’t.
[22:00] Andy: Now, you see this as a potential case to argue that the federal government lacks jurisdiction in some PFR prosecutions? I do see us having some potential
[22:09] Larry: I see persuasive value going forward. I do admit that I’m stretching a bit and blending two separate issues into one. This case was narrowly focused on venue for the accused. I’m focusing on both venue and the steady expansion of the federal court’s subject matter jurisdiction. This case didn’t even touch on subject matter jurisdiction; it was entirely about where the crime was committed or venue. But I’m hoping to expand that reasoning a bit. If a person leaves the state of Texas after being convicted of a sexual offense, whether state or federal, and has never left Texas, I see no subject matter jurisdiction for the federal court to prosecute that individual. The Fifth Circuit upheld a prosecution for a PFR who had never left Texas but didn’t register updates within required time frames. If he hadn’t left Texas at all, I would argue there’s no federal jurisdiction.
[23:23] Andy: Now, what you’re ultimately describing is that any good news from this would take years before we’d see any value from it.
[23:31] Larry: Yes. If we see any value, it’s going to require creativity. And it was a unanimous decision. It’s hard to get unanimity from this court. Therefore, the ruling was very narrowly focused. I’m hoping that if I wasn’t this age, somebody younger than me can figure out how to expand the usage of this beyond this case, particularly for PFRs. There are many PFRs getting prosecuted for stuff they didn’t do, especially federally from these internet crimes. They’re often accused of soliciting a minor,
[24:10] Andy: and because their traffic went around the internet and ended up going through Arkansas when they’re in Texas, then it looks like a federal crime.
[24:20] Larry: That’s the theory. And I don’t know if I can shoot that down. But if you look at all the stuff that goes on the internet, what happens if the internet never leaves Texas? I mean, theoretically, the internet is supposed to leave Texas. But if you stay in Texas the entire time, should they be able to come from Seattle and haul you to Seattle for contemplating having sex with a minor online?
[24:50] Andy: I certainly don’t know the answer to that one. It seems kind of insane to me that your traffic could end up overseas easily. So would Interpol come snatch you? That’s the troubling thing. This is all over my head. But
[25:03] Larry: I know that the federal courts have dramatically expanded their subject matter jurisdiction by their own design. Congress has passed laws, and the judges will be happy to interpret them broadly. If you’re truly conservative, like you claim you are, you would want the courts in the federal system to be very limited. Because the states know best, right?
[25:25] Andy: That’s the theory there, too, huh? That’s what I’ve always heard.
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[26:19] Larry: 5K prosecuting criminal behavior, we only want the feds involved when it’s something beyond the reach of state sovereignty. If the state can’t handle it, kind of like the PFR registry. When a person leaves one state and goes to another, before we had the AWA there was no real way for a state to enforce a law because they didn’t know you were gone; they didn’t know where you were, and the state you’d gone to didn’t know you were there. So I can grudgingly see that to bring that person back into compliance, you need federal assistance. But I think we could do the same thing we did with interstate flight to avoid prosecution. That’s a federal crime but it’s seldom prosecuted to conclusion. They charge a person with that to invoke the jurisdiction of the massive federal apparatus, they find the offender that’s on the run, they transfer that offender back to Georgia and then Georgia takes care of the prosecution. You know, the federal prosecution goes away for interstate flight.
[27:18] Andy: Right, I get you. So very well interesting. I do see more or less how you’re applying this to PFRs. It is a bit of a stretch maybe, but it’s not like six degrees of Kevin Bacon—you probably don’t know that expression. We’ll talk about it another time. Let’s talk about something we haven’t talked about in quite some time and that would be transferring using the interstate compact system. And we’ve done it—what we haven’t done is discuss this particular topic in a while, do you mind if we circle back to this on this episode? No, I actually love talking about the Interstate Compact for Adult Offender Supervision because you know the whole acronym of ICOTS is what it is.
[28:08] Larry: I see. AOS is the name of the compact, okay.
[28:12] Andy: Now, this issue is related to you in the form of a question for the legal quarter of the NARSAL newsletter. The writer asked how New Mexico ignores its own laws when New Mexico law mandates a review after five years to determine if supervision should continue. He was transferred to New Mexico from Colorado, and New Mexico refuses to provide him a review hearing. I’ve heard you say that PFRS in New Mexico are entitled to a review after five years of supervision. They are, but only when they’re convicted there. He wasn’t convicted there; he was not. And he stated, “They never reviewed me while I was there. If they had, I would have gotten off before they caught me with an unauthorized electronic device—a backup phone.” Does he have a point? Yes, he does.
[29:01] Larry: He should not have been in possession of an unauthorized phone.
[29:04] Andy: That’s probably right.
[29:05] Larry: Sure.
[29:06] Andy: But
[29:07] Larry: He does not have a legal point regarding the release from supervision hearing that people in New Mexico get after five years of lifetime supervision imposed by the state of Colorado. That’s beyond our jurisdiction.
[29:22] Andy: Well, we really do need to do a deep dive regarding the powers each state has over an offender who is supervised pursuant to the interstate compact for adult offender supervision. This continues to confuse me, and that’s why I am here. It takes me forever to figure it out.
[29:47] Introduction: I agree with you entirely. That is why I am here.
[29:52] Larry: So what do you want to know? Registration versus supervision requirements can be confusing because they’re two completely separate and distinctly different in terms of which state controls them.
[30:04] Andy: Don’t care which one you cover, just make it simple.
[30:08] Larry: Well, a person who’s been sentenced for criminal conduct is paying his or her debt to the people of the state where the conviction occurred. Does that make sense so far? So far, so good. Just to clarify, it’s the people who make the laws in this case—the people of Colorado’s laws he broke—that means only the state of Colorado can reduce or eliminate the remainder of his lifetime supervision.
[30:33] Andy: But New Mexico does have a law that PFRs are entitled to a review after five years. Does New Mexico get to ignore their own law? No, they do not.
[30:46] Larry: This person is not entitled to a hearing because New Mexico did not convict him and impose the sentence. Wouldn’t it be great if a person could extinguish their penalty for the commission of a crime by simply moving to another state? Wouldn’t we have a fabulous nation if you could do that, but
[31:03] Andy: This becomes confusing because the receiving state, which in this case is New Mexico, imposed some special conditions that were not originally imposed by the state of Colorado. So it seems like they’re having their cake and eating it too. I did say that the state of conviction controls the sentence.
[31:20] Larry: A number of times nonetheless, an offender who requests to be transferred through ICAPs is obligated to abide by the special conditions imposed by the receiving state. That power is specifically in the compact and is intended to eliminate inconsistent supervision of offenders with similar convictions. But that’s not changing the sentence; it’s just really changing the terms of reporting. They may tell you, “You’re reporting every three months, we’re going to require you to come in every month.” You know, but that’s not enlarging the sentence. They tell you, “You have a curfew here,” and where you didn’t have one in Colorado, but that’s not enlarging the sentence.
[31:56] Andy: Okay, so just because I feel like I have a massive case of the dumbs, you’re doing a lot of typical attorney doublespeak. Which state is in control of the sentence?
[32:10] Larry: The state of conviction will always be in control of the sentence when we’re dealing with state crimes. Only the state of Colorado can reduce any aspect of the punishment in this situation. The receiving state, which is New Mexico, can add special conditions to supervision, but that doesn’t enlarge the sentence. However, the caveat in the compact is that these special conditions must be ones that would have been imposed had that person been convicted of a similar offense in this state. Special conditions do not alter the sentence itself. If you got a $5,000 fine when you came from Colorado, you’ve got a $5,000 fine here. We can’t change that. If you’ve got $100,000 in restitution, you’ve got $100,000 in restitution when you get here. If you’ve got lifetime supervision when you came here, you’ve got lifetime supervision here unless the state that imposed it removes it.
[33:05] Andy: Isn’t it reasonable to believe that if New Mexico can change your conditions of supervision, they can also modify or terminate your supervision?
[33:14] Larry: I guess I could admit it’s somewhat reasonable. It doesn’t seem reasonable to me because I know the answer to it, but they don’t really get to modify may not be the right term. They can add conditions, but they must respect the conditions that were imposed by the sending state. If they cannot enforce those conditions, they have to communicate that to the sending state that they cannot enforce the conditions. Like say New Mexico had a Supreme Court ruling, for example, said you could not subject an offender, hypothetically, to a search without any probable cause. Well, if the Colorado conditions of probation supervision said that you would subject yourself to a search at any time at the request of the PO, New Mexico might tell Colorado, sorry, we can’t enforce this. Or GPS was a great example back when that was new and every state didn’t have it. If Colorado said he will be on GPS and New Mexico wasn’t using GPS, they would tell them we can’t enforce that stipulation here. You either have to remove it or we can’t accept them. But no state can increase or decrease your term of punishment or levy additional fines or restitution. This would be usurpation of the sending state’s powers, and the receiving state does not have that authority. Modification of the length of an offender’s sentence is exclusively within the domain of the state of conviction. A receiving state can, and sometimes they do recommend that supervision be terminated or converted to unsupervised status. Unfortunately for the PFRs, that seldom occurs due to the perceived potential recidivism, however high or low it might be. No state wants to be blamed for recommending an early termination only to have the person re-offend.
[35:01] Larry: Clarify what is considered punishment? Sure, the term of imprisonment would be punishment. Any post-prison supervision would clearly be punishment. Even if you had probation that was unsupervised, that would be subject to revocation. That’s part of your punishment. You can’t revoke the registry. I mean, you can get found in violation and be sentenced to prison, but that’s a brand new offense. Your probation, supervised or unsupervised, can be revoked. Any fines levied, restitution would all be considered part of your punishment. The receiving state cannot alter those aspects of the sentence. You’ve got to take that request back to the state that imposed it.
[35:49] Larry: Well, let’s talk about money. What about supervision fees? Well, that’s interesting because the receiving state does control supervision fees because they’re providing that specific service to the offender. However, the supervision fees one would have paid in the state of conviction do not apply any longer when the person is on interstate contact, so you don’t get the double dip. So if Colorado relinquished supervision, if they were charging him $75 a month and he gets here and we’re charging him $35 a month, too bad, so sad. You don’t get the difference.
[36:14] Andy: What about the actual PFR registration stuff, your annual visit to the man, the popo? Now,
[36:21] Larry: registration obligations are determined and controlled by the state one is residing in or, in some cases, working, employed in, rather than the state of conviction. This means that New Mexico would have and does have the final say regarding the duration and frequency of registration while this offender was supervised here. Ha, ha, ha. What about now? Well, now that he’s no longer in New Mexico, he must comply with Colorado’s registration laws upon his release unless he’s transferred back here again.
[36:54] Andy: You said he plans to return? Will New Mexico accept him again?
[36:59] Larry: They will do everything they can to deny him. But beyond that, he would be foolish to return here. They will target him for revocation again if he does manage to get back, if they find no justifiable reason to deny him. He will have a big target on him, so don’t come back here.
[37:15] Andy: You’ve pontificated that at the time of conviction, the court must apprise the person of their duty to register. And here’s where it gets very muddy in my mind. Since he was informed of his duty to register, can the failure to comply with registration result in a violation of his supervision and a new criminal charge? Damn, you must have gone to law school, because it absolutely
[37:36] Larry: can. It definitely can. I went to the law school of Larry. This person who was transferred out of a near-state compact, he or she can be sent back to be revoked by Colorado for failure to comply with supervision. And that is a legitimate violation of supervision. But before we hand him off to Colorado, we can say, you committed a fourth-degree felony here. We’re going to send you to the maximum of 18 months. And before you get to go back and spend your revocation in Colorado— You owe us 18 months, which is ultimately nine, if you don’t forfeit your good time. But he absolutely could be prosecuted here.
[38:16] Andy: and there. Wow, as we’re wrapping this up, can you provide a simple explanation of the difference?
[38:27] Larry: Well, you must want me to get attacked the week before.
[38:31] Larry: My birthday. Absolutely. That’s my whole goal here is to have everyone, rabid and not, come after you.
[38:38] Andy: Registration of sexual offenders is a civil regulatory scheme and not considered as part of the person’s actual punishment, even though the penalties for failure to comply are often very harsh, including lifetime incarceration in some extreme cases. FYP recognizes, despite the civil non-punitive label, the process of registration and maintaining compliance with many restrictions is akin to punishment. And we also recognize some states have registration requirements that impose more restrictions than the person had while serving their court-imposed sentence. But it is not a sentence. It’s merely an admonishment that you must comply with this condition. Or while you’re supervised, you may find yourself cooling out with us in one of our state institutions.
[39:24] Andy: This means that the sending state is not in control of PFR registration unless the person does not comply with the receiving state’s law?
[39:34] Larry: That would be correct. The violation can be punished in both states. In conclusion, the person’s actual punishment, such as probation or parole, remains forever in the hands of the sentencing state. Registration is controlled by the state where the person is living or working at any given time. The crossover is that failing to comply with registration requirements can trigger revocation in the sending state and a criminal charge in the receiving state. So if you go out and get transferred on compact, just remember, you can end up in trouble in both states for failing to comply with registration. You better take that obligation very seriously.
[40:14] Andy: Now, I have two questions that have come from chat along the way. The first one is about receiving states like Florida and its registration restrictions and obligations not imposed in the origin state, such as South Dakota.
[40:30] Larry: Let me make sure we sharpen this question down. Are the registration requirements in Florida imposed under the registration law or by probation authorities? Because both are binding. But which one are we talking about? Who imposed those requirements?
[40:51] Andy: Well, I can’t ask. He’s going to type for 10 hours before he answers that question.
[40:56] Larry: I can answer it while he’s typing. Once you left South Dakota, which is the state we’re talking about, you gave up all the benefits. So if you want the benefits of South Dakota’s registry rules, stay there. But when you go to Florida, you’re subject to Florida’s registration requirements. Kind of like if I take my jalopy from Albuquerque up to New Jersey, where they have strict emissions laws and old vehicles may not pass inspection. If you don’t comply with Florida’s regulations while in Florida, it constitutes a violation of supervision. The receiving state is obligated to treat any non-compliance with the same gravity as South Dakota would. So even though South Dakota didn’t impose those conditions, if Florida notifies them that he’s non-compliant, it’s a significant violation of probation. And they can force him to be taken back or supervised by South Dakota if he won’t comply with their requirements.
[42:21] Andy: Gotcha. He adds that he only got in trouble for failing to register a vehicle owned in Florida before ever getting a license there. Why didn’t South Dakota prosecute as well? Because they don’t impose that restriction. Well, South Dakota couldn’t prosecute because it didn’t happen there. But he didn’t do vehicle registration in South Dakota either.
[42:43] Larry: But when he got to Florida, he failed to register a vehicle properly under their laws, correct? That’s what I understand it to be. Yes, if Florida charged him with that and considered it a significant violation of probation supervision, I haven’t read the compact in a while, but I think they made it a little bit narrower. I think it used to have to be more than one substantial violation, but if he has enough substantial violations, they can force them even though South Dakota didn’t make that law themselves about the vehicles. Uh, they didn’t have to; he didn’t have to do vehicle registration in South Dakota. If Florida considers it a significant violation and refuses to comply, they can ship him back, forcing South Dakota to take him back absolutely.
[43:29] Andy: Now just to really run this home, Larry. Off probation since coming to Florida, so none of this really applies because he wasn’t part of the interstate transfer thing right? Because that’s only for people on supervision. Correct, that is correct. Well, and then if he has no attachment to South Dakota, they don’t have anything to say about his registration anymore. That’s what I was thinking because this only applies when you are under active supervision. That is correct. And every state handles it in their own little way where Georgia has their split things with probation and parole and whatnot, but not everybody does it quite that way. But you actively have people coming to your house saying, “Hey, how are you doing this month?” That sort of thing, right?
[44:09] Larry: They do the same thing; they go knock at your door. In some cases, they insist on coming in. Matter of fact, we’re about to litigate a case where they demand to see your phones, but they can’t do that because
[44:23] Andy: While you’re under supervision, this is going to specifically target that you have less Fourth Amendment protections. However, after you’re off of supervision, would you go back to being quote-unquote “normal” and having your full Fourth Amendment protection generally speaking? Now, some of the
[44:39] Larry: states mandate home visits, but not very many of them require that they do home visits. But still, that doesn’t require you to let them look at your computer or your phone or anything else. Right, they can come validate that you live there if that’s in the statutory scheme, but otherwise, you can tell them no. I know a guy in New Mexico who did that and they didn’t like him very much now.
[45:03] Andy: Now, the next question, Larry—I hope you’re ready for this—since it’s your birthday, are we still using the Gregorian calendar for that?
[45:11] Larry: Well, that’s my 190th. Does that calendar go high enough?
[45:15] Andy: I think it suffices because wasn’t the Gregorian calendar made somewhere in Roman times? I don’t remember how that one works—it’s like the 1500s, he says—so I don’t think that one exactly applies to you. So, very interesting. Yeah, anything else before we uh, wrap this up?
[45:36] Larry: It’s very unlikely we’ll record next week because it is my birthday and I’m thinking about taking a short trip, so we may be off the air unless somebody agrees to stand in for me next weekend.
[45:47] Andy: So would that be a short trip off a long pier or a long trip off of a short pier? Either one works well. Very good, head over to registrymatters.co for show notes and all the links everywhere you need to go from there. Please send any emails to registrymatterscast at gmail.com. Leave an old-fashioned voicemail message at 747-227-4477. And thank you so much, very much, for patrons. That is patreon.com/slash/registrymatters. And Larry, have a great trip. I will talk to you because that’ll be leading up to the conference and I will certainly be overwhelmed and all that getting ready and trying to shut down work for a week and all that. So yeah, sounds good that we won’t record next week.
[46:35] Larry: But it sounds good to me because I’m old and tired. But there were some good comments I think posted on YouTube this past week on the episode, and I didn’t put them together but maybe when we record again we can go into those comments. I think you responded to a couple of them yourself.
[46:50] Andy: I do that from time to time when I actually remember to go press on that button that says “comments.” Almost every week or at least once a month, someone’s like, “What does FYP mean?” I’m like, “Come on man, you can figure it out. You could go back and listen and find it in our archive and figure out what it means.”
[47:07] Larry: So, the people we appreciate the comments. I just don’t have the energy anymore to sit down and dialogue with folks, but if there’s something good in there, we try to bring it up later.
[47:18] Andy: Very well, we’ll stay out of trouble and we will see you in a few weeks. Have a good night, Larry, take care.
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