United States v. Mark Steven Elk Shoulder
2012 U.S. App. LEXIS 20810
| 9th Cir. | 2012Background
- Elk Shoulder, a federal sex offender, was convicted in 1991 (18 U.S.C. § 2241(c)) and later released with ongoing registration duties under federal and state regimes.
- He initially registered in Montana at two points (2003 and 2006) but subsequently moved and did not register in several locations in 2008–2009.
- In 2009 Elk Shoulder was indicted under 18 U.S.C. § 2250(a) for failing to comply with SORNA’s registration requirements (42 U.S.C. § 16913).
- He moved to dismiss the indictment, arguing SORNA violated the Ex Post Facto Clause and that Congress lacked authority to enact SORNA; he also argued retroactive effects harmed him.
- The district court denied the motions, and after a bench trial Elk Shoulder was convicted and sentenced to 30 months imprisonment followed by five years of supervised release.
- The Ninth Circuit affirmed, rejecting Elk Shoulder’s Ex Post Facto, due process, and congressional-authority challenges and upholding SORNA as constitutionally enacted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ex Post Facto applicability to SORNA | Elk Shoulder: SORNA’s registration punishment is punitive for a pre-act offense. | Elk Shoulder: retroactive registration increased punishment for an act completed before enactment. | SORNA’s registration is not punitive; Ex Post Facto challenge rejected. |
| Due process and impossibility of compliance | Elk Shoulder: state registry requirements made registration impossible for him. | Registration duty independent of state implementation; notice satisfied by state-law obligation. | Not impossible to comply; due process not violated. |
| Notice and knowledge requirement under § 2250(a) | Elk Shoulder lacked notice of SORNA-specific penalties. | Knowledge of state-duty to register suffices for due process. | Notice of state registration obligation satisfies due process; no extra SORNA-specific notice required. |
| Congressional authority under Necessary and Proper Clause | Elk Shoulder: Congress lacked authority to extend post-release registration to federal offenders. | SORNA rationally related to public safety; modest, non-sweeping; linked to enumerated powers. | SORNA falls within Necessary and Proper Clause; constitutionally valid. |
Key Cases Cited
- Reynolds v. United States, 132 S. Ct. 975 (2012) (pre-SORNA framework and statutory purpose cited; formulating uniformity in registration systems)
- Smith v. Doe, 538 U.S. 84 (1994) (five-factor test for punitive nature of registration statutes; public-safety focus not punitive)
- United States v. Elkins, 683 F.3d 1039 (9th Cir. 2012) (SORNA not punitive; ex post facto challenge rejected in context of pre-act offenses)
- United States v. Comstock, 130 S. Ct. 1949 (2010) (five-factor framework for Necessary and Proper Clause analysis; rational relation to enumerated powers)
- Carr v. United States, 130 S. Ct. 2229 (2010) (registration and public safety as a federal-state coordination mechanism under enumerated powers)
- NFIB v. Sebelius, 132 S. Ct. 2566 (2012) (enumerated powers, balancing federal authority and state interests in related contexts)