In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1438
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARCUS D IXON,
Defendant-Appellant.
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.
No. 08-2008
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
T HOMAS C ARR,
Defendant-Appellant.
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.
A RGUED O CTOBER 24, 2008—D ECIDED D ECEMBER 22, 2008
2 Nos. 08-1438, 08-2008
Before E ASTERBROOK, Chief Judge, and P OSNER and
R OVNER, Circuit Judges.
P OSNER, Circuit Judge. We have consolidated for deci-
sion 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 Protec-
tion 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 offend-
ers 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).
Nos. 08-1438, 08-2008 3
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 Registra-
tion 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, em-
ployee, or student, as well as the jurisdiction of his con-
viction 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 dissemina-
tion 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
4 Nos. 08-1438, 08-2008
“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 defen-
dant’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-posses-
sion 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
Nos. 08-1438, 08-2008 5
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 con-
victed 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
6 Nos. 08-1438, 08-2008
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 sub-
section (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. Con-
gress has plenary authority over Indian reservations. E.g.,
United States v. Kagama, 118 U.S. 375 (1886).
The Tenth Circuit bolstered its tense-driven interpreta-
tion by reference to the policy against interpreting legisla-
tion 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
who crossed state lines before its enactment does not
violate the clause.
We therefore disagree with the Tenth Circuit’s inter-
pretation. Because this ruling creates an intercircuit
conflict, we have circulated our opinion to the full court
before issuing it, as required by Circuit Rule 40(e). There
were no votes to hear the case en banc.
The remaining arguments made by Dixon (other than
a frivolous argument based on the Administrative Pro-
cedure Act) are based on the Constitution. Most of them
have no merit, such as his contention (made only at oral
argument) that the movement of a person as distinct from
Nos. 08-1438, 08-2008 7
a thing across state lines is not “commerce” within the
meaning of the Constitution’s commerce clause. Dixon’s
lawyer must in the heat of argument have forgotten the
Mann Act, 18 U.S.C. §§ 2421 et seq. Likewise without
merit is his argument that for Congress to delegate to an
official of the executive branch the authority to fill out
the contours of a statute violates the separation of pow-
ers. It is commonplace and constitutional for Congress to
delegate to executive agencies the fleshing out of criminal
statutes by means of regulations. See, e.g., Touby v. United
States, 500 U.S. 160, 165-69 (1991); United States v. Arch
Trading Co., 987 F.2d 1087, 1093-94 (4th Cir. 1993).
Nor did punishing Dixon deny due process of law
because he did not receive personal notice of the enact-
ment of the Sex Offender Registration and Notification
Act, let alone of the requirements—still not fully
specified by the Attorney General—under it. The second
half of the argument is just a reprise of Dixon’s first
statutory argument. The first half runs afoul of cases like
United States v. Wilson, 159 F.3d 280, 288-89 (7th Cir. 1998),
which explain that it is not a defense to a criminal prose-
cution that the defendant had never heard of the statute
under which he is being prosecuted. See also United
States v. Mitchell, 209 F.3d 319, 322-24 (4th Cir. 2000); United
States v. Reddick, 203 F.3d 767, 769-71 (10th Cir. 2000). Dixon
cites Lambert v. California, 355 U.S. 225 (1957), which held
(a holding the authority of which is undermined, however,
by the Court’s remarks in Texaco, Inc. v. Short, 454 U.S. 516,
537-38 n. 33 (1982)) that a city ordinance which required
felons to register was a denial of due process because the
“violation of its provisions is unaccompanied by any
8 Nos. 08-1438, 08-2008
activity whatever, mere presence in the city being the
test. Moreover, circumstances which might move one to
inquire as to the necessity of registration are completely lack-
ing.” 325 U.S. at 229 (emphasis added). In our case those
circumstances are present. Dixon had had to register as a
sex offender in South Carolina and would have known
that he would have to do the same in Indiana; for each
time he registered in South Carolina, he signed a form that
said he “must send written notice of a change of address
to a new state to the Sheriff of the county where [he]
formerly resided and must register with the appropriate
official in the new state.”
Dixon has one good argument, however, and that is that
his conviction for failing to register violated the Constitu-
tion’s ex post facto clause. This is part of the original
Constitution, not the Bill of Rights, and is foundational
of liberty. Marks v. United States, 430 U.S. 188, 191-92
(1977). It both enforces the principle that legislation is
prospective, whereas punishment—the job assigned by
the Constitution to the judicial branch—is retrospective,
and gives people a minimal sense of control over their
lives by guaranteeing that as long as they avoid an act in
the future they can avoid punishment for something
they did in the past, which cannot be altered.
Dixon does not, and in light of Smith v. Doe, 538 U.S. 84
(2003), could not successfully, challenge the registration
requirement itself as an ex post facto law. The requirement
is regulatory rather than punitive. His argument is that
all the conduct for which he was punished, not merely the
sex crimes and the travel and the change of residence,
Nos. 08-1438, 08-2008 9
occurred before the Sex Offender Registration and Noti-
fication Act was made applicable to him by the Attorney
General’s regulation.
If all the acts required for punishment are committed
before the criminal statute punishing the acts takes effect,
there is nothing the actor can do to avoid violating the
statute, and the twin purposes of the ex post facto
clause are engaged. But by the same token as long as at
least one of the acts took place later, the clause does not
apply. United States v. Campanale, 518 F.2d 352, 364-65 (9th
Cir. 1975); United States v. Brown, 555 F.2d 407, 416-17 (5th
Cir. 1977). For in that case the defendant cannot be pun-
ished without a judicial determination that he com-
mitted an act after the statute under which he is being
prosecuted was passed, and by not committing that act
(provided of course that it is a voluntary act and so can
be avoided by an exercise of volition) he would have
avoided violating the new law.
Laws increasing the punishment for repeating an
offense (or punishing the continuation of conduct begun
before the law was passed) illustrate our point. They do
not violate the ex post facto clause because even if the
law was passed after the defendant committed his first
offense and increases the punishment for a repeat offense,
the defendant can avoid the increased punishment by not
repeating (and so not being determined by a court to have
repeated) the offense. McDonald v. Massachusetts, 180
U.S. 311, 312-13 (1901); Gryger v. Burke, 334 U.S. 728, 732
(1948); United States v. Washington, 109 F.3d 335, 337-38 (7th
Cir. 1997); United States v. Rasco, 123 F.3d 222, 227 (5th Cir.
10 Nos. 08-1438, 08-2008
1997); United States v. Brady, 26 F.3d 282, 290-91 (2d Cir.
1994). Thus the fact that elements of Dixon’s crime oc-
curred before the Sex Offender Registration and Notifica-
tion Act was made applicable to him does not make the
application of the Act to his failure to register violate the
ex post facto clause. The critical question concerns the
third element of a violation of the Act, the failure to
register.
The Act was made applicable to persons in Dixon’s
situation—persons convicted of sex offenses before the
Act went into effect—by the regulation issued by the
Attorney General on February 28, 2007. The regulation
just says that such persons have to register. It doesn’t
say by when. By analogy to contract offers that do not
specify a deadline for acceptance, we can assume that
they would have to register within a reasonable time,
Burton v. United States, 202 U.S. 344, 384-86 (1906)
(applying the contract principle in a criminal case); see,
e.g., Chicago Tribune Co. v. NLRB, 965 F.2d 244, 248-249 (7th
Cir. 1992); Vogel v. Melish, 203 N.E.2d 411, 413 (Ill. 1964);
Family Video Movie Club, Inc. v. Home Folks, Inc., 827 N.E.2d
582, 586 (Ind. App. 2005); E. Allan Farnsworth, Contracts
§ 3.19, p. 157 (4th ed. 2004), unless the defendant could
prove that uncontrollable circumstances prevented him
from registering—for example if he were in a coma when
the otherwise reasonable time for registering expired.
The indictment charges Dixon with having failed to
register “from on or about February 28, 2007 to on or about
April 5, 2007.” There is nothing in the trial transcript or
elsewhere in the record to indicate precisely when he
Nos. 08-1438, 08-2008 11
failed to register. The natural reading of the indictment
is that he didn’t register before April 5 or thereabouts, at
the earliest, but that is just the charge and there is no
evidence. It would hardly be reasonable to require that
he have registered no later than February 28, since that
was the day on which the interim regulation, subjecting
him to the Act, was issued. So far as the record reveals, not
only his conviction of a sex offense and his travel in
interstate commerce, but his failure to register as well,
occurred before the Act took effect with respect to the
class of offenders to which he belongs, if as we believe
the Act requires registration not on the day the Act went
into effect or a regulation by the Attorney General
made the Act applicable to a defendant, but within a
reasonable time after that.
It is true that Indiana law required Dixon to register as a
sex offender when he moved to Indiana. Ind. Code. §§ 11-8-
8-7(a)-(e), (g), § 11-8-8-17(a). So in a sense (though a
loose one, because the federal Act requires more than the
Indiana one—with the sections of that Act just cited,
compare 42 U.S.C. § 16913), the federal Act just ordered
him to do what he was required to do anyway. But it did
more: it created a federal criminal penalty on top of the
state criminal penalty for failure to register. The ex post
facto clause is violated when the government rather than
creating a new crime increases the penalty for an existing
one. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798); Dobbert v.
Florida, 432 U.S. 282, 292-93 (1977); Prater v. U.S. Parole
Commission, 802 F.2d 948, 952-53 (7th Cir. 1986); United
States v. Terzado-Madruga, 897 F.2d 1099, 1124 (11th Cir.
1990).
12 Nos. 08-1438, 08-2008
An alternative analysis, which brings us to the same
point however, harks back to our earlier discussion of
fair notice. Concern with due process gives rise to the
question “how a legislature must go about advising its
citizens of actions that must be taken to avoid a valid
rule of law,” and “the answer to this question is no differ-
ent from that posed for any legislative enactment
affecting substantial rights. Generally, a legislature need
do nothing more than enact and publish the law, and
afford the citizenry a reasonable opportunity to famil-
iarize itself with its terms and to comply.” Texaco, Inc. v.
Short, supra, 454 U.S. at 531-32; see Jones v. United States,
121 F.3d 1327, 1328-30 (9th Cir. 1997). The close relation
between the concern with providing that opportunity
and the concern that animates the ex post facto clause
was remarked by Justice Stevens in a concurring opinion
in Hodel v. Irving, 481 U.S. 704, 733 n. 18 (1987): “A statute
which denies the affected party a reasonable oppor-
tunity to avoid the consequences of noncompliance
may work an injustice similar to that of invalid retroactive
legislation.” Whatever the minimum grace period re-
quired to be given a person who faces criminal punishment
for failing to register as a convicted sex offender is, it
must be greater than zero. An analogy can be drawn to
Bonie v. City of Columbia, 378 U.S. 347 (1964), where the
Supreme Court held that “an unforeseeable judicial
enlargement of a criminal statute, applied retroactively,
operates precisely like an ex post facto law.” Id. at 353.
Carr’s case, to which we now turn, is simpler than
Dixon’s. Although his interstate travel like Dixon’s pre-
ceded the application of the Sex Offender Registration
Nos. 08-1438, 08-2008 13
and Notification Act to him, and although he assumes (as
Dixon argues) that the Act requires that the travel postdate
that application, the only ground of his appeal is that
his conviction violated the ex post facto clause. But he does
not and cannot complain that he was not given enough
time to register in Indiana in order to avoid violating
the Act, because he admits that he had still failed to do so
“on or about July, 2007,” almost five months after the
Attorney General’s regulation was issued that made the
statute applicable to him. Five months is a sufficient
grace period. Remember that on our interpretation of the
statute as filled out by the regulation, the duty to register
does not come into force on the day the Act becomes
applicable to a person, or on the next day or next week,
but within a reasonable time; and Carr had a reasonable
time within which he could have registered. Had he
done so, he could not have been convicted of violating
the Act. Since his violation was not complete when the
Act became applicable to him, his rights under the ex post
facto clause were not violated.
The judgment in Dixon’s case is reversed with direc-
tions to acquit; the judgment in Carr’s case is affirmed.
12-22-08