08-1438 & 08-2008 U.S. v. Dixon

Listen to this article

Sex Offender registration
Interstate travel

The Sex Offender Registration and Notification Act applies to sex offenders who traveled in interstate commerce before the Act was passed.

"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)."

Affirmed in part, and Reversed in part.

08-1438 & 08-2008 U.S. v. Dixon

Appeals from the United States District Court for the Northern District of Indiana, Miller, Springmann, JJ., Posner, J.

Full Text