Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:07 CR 072-Robert L. Miller, Jr., Chief Judge. Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:07-CR-73-Theresa L. Springmann, Judge.
The opinion of the court was delivered by: Posner, Circuit Judge.
Before EASTERBROOK, Chief Judge, and POSNER and ROVNER, Circuit Judges.
We have consolidated for decision the appeals in two cases that raise overlapping issues, primarily under the ex post facto clause of Article I, section 9, of the Constitution.
Both defendants were convicted-Dixon after a bench trial on stipulated facts, Carr after conditionally pleading guilty-of violating the Sex Offender Registration and Notification Act (part of the Adam Walsh Child Protection and Safety Act of 2006), 18 U.S.C. § 2250. The Act, which went into effect on July 27, 2006, imposes criminal penalties on anyone who, being required by the Act to register, being a convicted sex offender under either federal or state law, and traveling in interstate or foreign commerce, knowingly fails to register as a sex offender, unless he can prove that "uncontrollable circumstances" prevented him from doing so. 18 U.S.C. §§ 2250(a), (b)(1). Congress instructed the Attorney General to "specify the applicability of the requirements of [the Act] to sex offenders convicted before [its enactment] or its implementation in a particular jurisdiction" and to "prescribe rules for the registration of any such sex offenders . . . who are unable to comply with" the requirement, also imposed by the Act, of registering before they are released from prison or, if they do not receive a prison sentence, within three days after being sentenced, and furthermore of re-registering within three days after a change of name, residence, employer, or student status. 42 U.S.C. §§ 16913(b), (c), (d).
The Act creates a continuing offense in the sense of an offense that can be committed over a length of time. If the convicted sex offender does not register by the end of the third day after he changes his residence, he has violated the Act, and the violation continues until he does register, just as a prisoner given a two-week furlough is guilty of escape if he does not appear by the end of the two weeks, and thus can be prosecuted immediately but his violation continues as long as he remains at large.
The Attorney General issued an interim regulation on February 28, 2007, that makes the Sex Offender Registration and Notification Act applicable to persons, such as Dixon and Carr, who were convicted of sex offenses before the Act was passed. 72 Fed. Reg. 8896, 28 C.F.R. § 72.3. They were convicted for failing to register in Indiana-to which they had come before the Act was passed-after the issuance of the regulation.
As the reference to "implementation in a particular jurisdiction" indicates, the sex offender is required only to register with the state in which he is a resident, employee, or student, as well as the jurisdiction of his conviction if different from his residence. 42 U.S.C. § 16913(a). Other provisions of the Act establish a system for pooling the information in the state registries to create in effect a national registry. See 42 U.S.C. §§ 16912, 16918-20, 16923-25. Indiana has yet to establish any procedures or protocols for the collection, maintenance, and dissemination of the detailed information required by the Act, and Dixon argues that therefore he could not comply. But recall that the Act requires the Attorney General to "specify the applicability of [its] requirements . . . to sex offenders convicted before . . . its implementation in a particular jurisdiction," which the Attorney General did in his regulation of February 28, 2007. So Dixon was required by the Act to register with Indiana.
He also argues that he did not violate the Act because he traveled in interstate commerce before the Act was passed. But the statute does not require that the defendant's travel postdate the Act, any more than it requires that the conviction of the sex offense that triggers the registration requirement postdate it. The evil at which it is aimed is that convicted sex offenders registered in one state might move to another state, fail to register there, and thus leave the public unprotected. H.R. Rep. No. 218, 109th Cong., 1st Sess. 23-24, 26 (2005). The concern is as acute in a case in which the offender moved before the Act was passed as in one in which he moved after-ward. There is a close analogy to the federal criminal law (currently codified at 18 U.S.C. § 922(g)(1)) that punishes felons who possess guns that have moved in interstate commerce. The danger posed by such a felon is unaffected by when the gun crossed state lines (as the felon-in-possession statute requires in order to be within Congress's power under the commerce clause), and so it need not have crossed after the statute was passed. Scarborough v. United States, 431 U.S. 563 (1977).
We would have a different case if the convicted sex offender's interstate travel took place before his conviction. Since the statutory aim is to prevent a convicted sex offender from circumventing registration by leaving the state in which he is registered, it can be argued that the travel must postdate the conviction. It did here, so we need not decide whether it must in every case.
After the appeal in our case was argued, the Tenth Circuit held in United States v. Husted, 2008 WL 4792339 (10th Cir. Nov. 5, 2008), that the Act punishes only convicted sex offenders who travel in interstate commerce after the Act was passed. It is the only appellate case we have found that decides the question, although United States v. May, 535 F.3d 912 (8th Cir. 2008), assumes the same answer as Husted. The defendant in United States v. Madera, 528 F.3d 852 (11th Cir. 2008), raised the question and the court mentioned it but went on to reverse his conviction on another ground and decided to leave the question open. See id. at 857, 859 and n. 8.
The only ground that the court in Husted gave for its ruling is that the Act uses the present sense of the word "travel"; the Act applies to a convicted sex offender who "travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country." 18 U.S.C. § 2250(a)(2)(B). The court's interpretation creates an inconsistency. The word "resides" does not describe an action, which begins at a definite time, but a status, which may have existed indefinitely. Since the Act applies to a convicted sex offender who "enters or leaves," as well as one who "resides in," Indian country, it is apparent that old residents, as well as new entrants, are covered. On the Tenth Circuit's logic, a sex offender who has resided in Indian country since long before the Act was passed is subject to the Act but not someone who crossed state lines before the Act was passed. That result makes no sense, and gives force to the Supreme Court's remark in Scarborough, referring to the analogous case of the felon in possession law, that "Congress' choice of tenses is not very revealing," 431 U.S. at 571, and to the remark in Coalition for Clean Air v. Southern California Edison Co., 971 F.2d 219, 225 (9th Cir. 1992), that "the present tense is commonly used to refer to past, present, and future all at the same time."
The reference to "Indian country" is a tip-off that subsection (a)(2)(B) is designed to establish a constitutional predicate for the statute (just as movement in commerce is the constitutional predicate for the felon in possession law) rather than to create a temporal requirement. Congress has plenary authority over Indian reservations. E.g., United States v. Kagama, 118 U.S. 375 (1886).
The Tenth Circuit bolstered its tense-driven interpretation by reference to the policy against interpreting legislation to make it retroactive. But in relation to criminal statutes, that policy is stated in the ex post facto clause, and we shall see that applying the Act to persons ...