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The 1st U.S. Circuit Court of Appeals has affirmed a defendant’s conviction, ruling that registration requirements under the Sex Offender Registration and Notification Act (SORNA) took effect when the bill was signed, rather than when the U.S. attorney general issued an interim rule. The 1st Circuit’s Sept. 22 ruling in U.S. v. DiTomasso, authored by Senior Judge Bruce Selya with a concurring opinion by Judge Michael Boudin, deepens a circuit split on the law’s effective date. The 4th, 7th, 6th and 11th circuits have ruled that SORNA’s registration requirements didn’t apply to people convicted of sex offenses until the attorney general’s interim regulation set up rules for that group of offenders. The 3rd, 8th and 10th circuits — like the 1st Circuit — have ruled that SORNA’s registration requirements applied to prior offenders as soon as SORNA was enacted. SORNA was signed into law on July 27, 2006, and the U.S. attorney general issued the interim rule on Feb. 28, 2007. Michael DiTomasso was convicted of sex offenses in Massachusetts in 1995 and last registered in that state in 2006. He traveled to Rhode Island before the attorney general issued the February 2007 interim rule. In October 2007, he was charged with failing to register as a sex offender. He pleaded guilty in June 2008, but reserved his right to appeal the denial of his dismissal motion. He was sentenced to 30 months in prison in December 2008. Selya wrote that without clear congressional direction stating otherwise, “a law takes effect on the date of its enactment.” “For purposes of the case at hand, this holding gets the grease from the goose,” he wrote. “It teaches that the general rules requiring updates to sex offender registration took effect when SORNA was signed into law. Those requirements were thus in full force when, in February of 2007, the defendant traveled to a new state. When he failed to register there, he violated federal law.” The opinion also rejected DiTomasso’s two other claims. DiTomasso argued that Congress lacked the authority under the commerce clause, which prohibits states from placing unnecessary burdens on interstate commerce, to enact sex offender registration requirements. Selya wrote that “SORNA, as applied here, explicitly regulates the use of the channels of, and persons in, interstate commerce. Interstate travel is, after all, an express element of the SORNA violation with which the defendant was charged and of which he stands convicted.” DiTomasso furrhter claimed that the conviction violated his due process rights because Rhode Island had yet to implement SORNA when he traveled interstate. Selya wrote that SORNA’s registration requirements “are neither conditioned on nor harnessed to state implementation of SORNA’s state-directed mandates.” Boudin wrote in his concurring opinion that he wanted to underscore two additional points. He wrote, “the statute’s design leans against the narrow reading adopted by several other circuits and … Congress’ purpose supports the broader one that we adopt today.” “What is important to the case before us is that Congress intended the enforcement provisions to apply of their own force to those who had previously been convicted and not just to newly convicted offenders,” Boudin wrote. DiTomasso’s lawyer, Kevin Fitzgerald of the Federal Public Defender’s office in Rhode Island, did not return a call for comment. The Rhode Island U.S. Attorney’s oOffice, which represented the government in the case, declined to comment, said spokesman Jim Martin. The 1st Circuit heard DiTomasso and a similar District of Maine case, U.S. v. Gagnon, on July 27, but it has yet to issue a ruling in Gagnon. Bruce Gagnon was convicted on a sexual assault charge in New Hampshire in 2000. He registered as a sex offender in New Hampshire from 2000 through 2005 and moved to Maine in December 2006. He was charged in February 2007 with failure to register as a sex offender. His September 2008 guilty plea was conditioned on reserving the right to appeal the judge’s denial of his motion to dismiss. He was sentenced to 12 months and one day in prison, plus three years of supervised release in January 2009. The DiTomasso ruling “makes it very unlikely that Mr. Gagnon will prevail,” said J. Hilary Billings, Gagnon’s lawyer on appeal and an assistant federal defender for the District of Maine. DiTomasso and Gagnon made the same three legal arguments, Billings said. “I’d be shocked if there was any difference in [the Gagnon] opinion.”

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