United States v. Lara
Lara pled guilty to one specification of attempt to view CP and one specification of willful dereliction of duty for failing to refrain from storing, processing, displaying, and transmitting pornography, sexually explicit material, or sexually oriented material while on duty.
The military judge sentenced him to 12 months and a BCD.
Prior to trial and while discussing the PTA, his ADC advised him he would not have to register for the attempted CP viewing. During providency, the MJ also advised him he would not have to register. So, off to the Brig.
The court finds the GP improvident and sets aside the findings and sentence and allows a rehearing.
When Appellant was released from confinement, he received a document entitled, “United States Probation System Offender Notice and Acknowledgment of Duty to Register as a Sex Offender.” This document indicated Appellant had to register as a sex offender under the federal requirements, pursuant to the Sex Offender Registration and Notification Act of 2006 (SORNA) codified at 34 U.S.C. § 20901, and he had to register as a sex offender in any state in which he resided.
The court explains that
There are three different, but interrelated, aspects of sex offense registration pertinent to this case: (1) the federal statute (34 U.S.C. § 20901, et seq.) which requires mandatory sex offender registration for those who are convicted of offenses within the statute’s scope; (2) DoDI 1325.7 which identifies offenses that trigger mandatory sex offender reporting; and (3) state laws concerning registration for qualified sex offenses. See United States v. Miller, 63 M.J. 452, 459 (C.A.A.F. 2006)[.] Additionally, trial “defense counsel must be aware of the federal statute that requires mandatory reporting and registration for those who are convicted of offenses within the statute’s scope, as well as DoDI 1325.7, which identifies offenses that trigger mandatory sex offender reporting.” Trial defense counsel should also state on the record of the court-martial that counsel has complied with this advice requirement.” "While failure to so advise an accused is not per se ineffective assistance of counsel, it will be one circumstance [an appellate c]ourt will carefully consider in evaluating allegations of ineffective assistance of counsel.” However, “[g]iven the plethora of sexual offender registration laws enacted in each state, it is not necessary for trial defense counsel to become knowledgeable about the sex offender registration statutes of every state.”
The court finds the SORNA required registration here. Because Appellant was misadvised the GP is improvident and set aside, and there can be a rehearing.
Consider visiting SMART operated by DOJ and viewing the National Guidelines and 34 U.S.C. 20911(7)(G). 20911 lists possession, production, and distribution but not viewing. Attempt to do is listed elsewhere. Certainly SORNA is meant to be expansive.
Query, is an attempt to view a registration offense under SORNA? Is there actually some ambiguity. We'd be happy to hear from those more informed.
Viewing CP is not listed as a registerable offense under DoDI 1325.7. Because this was a military-specific offense, in order to be covered under 34 U.S.C. §20911, the "sex offense" must be specified by SECDEF as requiring registration, as provided under (5)(A)(iv).
From a long-time lay follower, and Retired Army Officer: I am somewhat intrigued in charging Dereliction of Duty for not refraining from distribution, et al., as opposed to just charging with distribution. Given the above comment, was the charge of dereliction offered as a technique to avoid SO registration, thinking that
The dereliction of duty was related to his use of a government computer to watch adult porn, not CP.
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