FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 11-30135

Plaintiff-Appellant, D.C. No.

v.  2:10-cr-00133-

LRS-1 JOSHUA A. ELKINS,

Defendant-Appellee. OPINION 

Appeal from the United States District Court

for the Eastern District of Washington

Lonny R. Suko, District Judge, Presiding

Argued and Submitted

April 10, 2012—Seattle, Washington

Filed June 14, 2012

Before: Dorothy W. Nelson, A. Wallace Tashima, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan

6795
COUNSEL

Michael C. Ormsby, United States Attorney, and Matthew F.

Duggan of Spokane, Washington, and Lanny A. Breuer,

Assistant Attorney General, Greg D. Andres and Scott A.C.

Meisler (argued) of Washington, D.C., for the plaintiffappellant.

Kailey Moran and Matthew Campbell (argued) of Spokane,

Washington, for the defendant-appellee. 

UNITED STATES v. ELKINS 6797
OPINION

CALLAHAN, Circuit Judge:

Congress, by enacting the Sex Offender Registration and

Notification Act (“SORNA”), 42 U.S.C. § 16901 et seq., in

July 2006, sought to establish “a comprehensive national system for the registration” of sex offenders and offenders

against children. 42 U.S.C. § 16901. In October 2010, a single

count indictment issued against Joshua A. Elkins in the

United States District Court for the Eastern District of Washington, charging him with traveling in interstate commerce

and knowingly failing to register under SORNA in violation

of 18 U.S.C. § 2250(a). On Elkins’s motion, the district court

dismissed the indictment on the ground that applying SORNA

to Elkins on the basis of his pre-SORNA Washington conviction as a juvenile sex offender was punitive and therefore a

violation of the Ex Post Facto Clause of the United States

Constitution. The government appealed. 

Following the approach set forth by the Supreme Court in

Smith v. Doe, 538 U.S. 84 (2003), we conclude that applying

SORNA to Elkins based on his state conviction as a juvenile

sex offender is not punitive. We further conclude in light of

United States v. Crowder, 656 F.3d 870 (9th Cir. 2011), that

on the present record there is a sufficient basis for a factfinder

to determine that Elkins knowingly failed to register in violation of § 2250(a). Accordingly, the district court’s dismissal

of the indictment must be reversed.

I

On February 10, 1994, when Elkins was fourteen years old,

he pled guilty to child molestation in the first degree in the

Superior Court of Washington for Skagit County. The Order

of Disposition listed Elkins as “a middle offender,” committed him to state care for 80 to 100 weeks, and instructed him

6798 UNITED STATES v. ELKINS
to register as a sex offender.1

 Elkins first registered with

Washington in August 2000. 

After being released from state custody on other charges,

Elkins failed to register, and was convicted of a state failure1The Sex Offender Registration section reads: 

As a person residing in Washington who has been found to have

committed or been convicted of a sex offense, YOU MUST REGISTER IMMEDIATELY WITH THE COUNTY SHERIFF for the

county of your residence, unless you are now in confinement. If

you are now in confinement, you must register within 24 hours

of your release from confinement. When you register, you must

provide the sheriff with the following information: 

a) your name; 

b) your address; 

c) date and place of birth; 

d) your place of employment; 

e) the crime for which you were convicted; 

f) the date and place of conviction; 

g) any aliases used; 

h) your social security number; 

i) your fingerprints and photograph. 

If you must register, you must also send written notice of any

change of address to the county sheriff where registered within

10 days of establishing a new residence. If your new residence is

in a different county, you must also register with the county sheriff of the county of your new residence within 10 days. 

Failure to register when required is a Class C felony or gross

misdemeanor, depending upon the charge you were convicted of.

Conviction of a sexual offense will count as criminal history if

you are convicted of any offense as an adult. 

IT IS FURTHER ORDERED that this order shall remain in full

force and effect until further order of the Court, or until the same

is revoked, modified, or changed, or the period of community

supervision is terminated by an order of this Court, as provided

by law. 

UNITED STATES v. ELKINS 6799
to-register offense in 2009. Elkins subsequently updated his

registration in Washington in February, March, and April

2010. The registration forms Elkins signed also described his

obligations should he move out of state.2

Sometime after April 2010, Elkins left Washington and

traveled to his mother’s home in California. He was arrested

in California in September 2010 on a Washington warrant

issued for a state probation violation. According to the government, Elkins told officers that “he had intended to go from

California to Florida, where he believed the Washington warrant would not be binding.”

On October 19, 2010, a one-count indictment was returned

against Elkins in the Eastern District of Washington. The

indictment alleges that Elkins, “a person required to register

under the Sex Offender Registration and Notification Act,

traveled in interstate commerce and did knowingly fail to register and update a registration, all in violation of 18 U.S.C.

§ 2250(a).”

In March 2011, Elkins filed a motion to dismiss the indictment, raising three arguments: (1) “the Government failed in

performing its duty to inform Mr. Elkins of his responsibilities to register in violation of 42 U.S.C. § 16917 and therefore

a conviction under 18 U.S.C. § 2250(a) would be a violation

of the due process clause”; (2) “prosecution of Mr. Elkins

under SORNA is a violation of the ex post facto clause as the

conviction that subjects him to registration requirements

2The form Elkins signed in April 2010 advised: 

If you move out of this state, you must send written notice to

the county sheriff with whom you last registered within 10 days

of moving. You are hereby also on notice that the state to which

you intend to move may also have sex/kidnap offender registration requirements which apply to you. If the state you are moving

to required registration for your offense, you must do so within

10 days or you can be charged in this state for failure to maintain

your registration. 

6800 UNITED STATES v. ELKINS
occurred prior to the enactment or implementation of

SORNA”; and (3) “application of SORNA’s juvenile provision violates the ex post facto clause.”

Following argument on the motion, the district court made

several factual determinations:

(1) “it is factually correct the State of Washington

has not done those things that are necessary to comply with SORNA;”

(2) “there is no notice in any of the materials that

were supplied to the defendant that he had a duty

under federal law to register under SORNA. That is

uncontested and appears to be clear in the record;”

(3) “[w]hile it may be true that the argument could

be made that, since he was aware of the state

requirement, he should have made further inquiry

concerning the federal requirement. There’s nothing

in the materials that have been supplied suggesting

that the state, at any time, undertook to give him that

notice or that he was provided that notice orally or

otherwise;” and

(4) “the materials that were supplied to him have no

statements in them concerning travel and no warning

concerning whether or not there might be a criminal

violation if he does not register under federal law.”

The district court then noted that it was influenced by

United States v. Juvenile Male, 590 F.3d 924 (9th Cir. 2010)

(“Juvenile Male I”), even though that case concerned a federal, not a state, conviction.3

 The district court concluded that

the application of SORNA to Elkins was punitive, explaining:

3

Juvenile Male I was subsequently vacated by the Supreme Court in

United States v. Juvenile Male, 131 S. Ct. 2860 (2011). 

UNITED STATES v. ELKINS 6801
[In] this case, the original violation occurred 18

years ago; 1993 with a juvenile finding or conviction

in 1994; no violations during the interim, apparently,

that relate to this type of conduct, although there’s a

criminal record, if I’ve understood correctly.

Nevertheless, SORNA requires a higher classification system of hire [sic] risk. It imposes a lifetime —

apparently a lifetime registration requirement that

the state law does not. It requires posting of a picture. It requires that the defendant more often appear

in person when directed to comply with the statute.

It also requires, in the event of a conviction for violation, a far more serious guideline sentence.

Are those [requirements] punitive in nature as

applied in this case? I’m going to read from [Juvenile Male I, 590 F.3d at 936]: “Because SORNA’s

juvenile registration provision, retroactively applied

to former juvenile offenders, imposes a serious disability by making public otherwise confidential

delinquency records relating to sexual offenses, and

because the in-person registration requirement is

substantially burdensome, SORNA’s juvenile registration provision imposes an onerous ‘affirmative

disability or restraint’ on former juvenile offenders,”

citing Mendoza-Martinez, 372 U.S. at 168, parallel

citation omitted. “As we have already stated, this

factor weighs heavily in support of a finding that

SORNA’s juvenile registration requirement has a

punitive effect. Given the severity of its burdens, it

would be difficult to reach any other conclusion.”

Now, I’m recognizing that, in the State of Washington, our legislature, at an early date, required registration, potentially, of juvenile offenders. However,

that doesn’t open the door to allow the federal statute

to be applied differently in this state than it would be

6802 UNITED STATES v. ELKINS
applied in another state that doesn’t have such a liberal, open-door policy concerning juvenile defenders

and their records.

Given that fact, it would be my conclusion that the

federal law, as applied in this case, would find that

this matter should be dismissed; and I’m going to

grant the defendant’s motion based upon the Juvenile Male decision.

The district court entered its order of dismissal on April 29,

2011, and the government filed a timely notice of appeal.

II

In deciding this appeal, we first consider whether the application of SORNA to Elkins violates the Ex Post Facto Clause

of the Constitution.4 We separately consider whether applying

SORNA to Elkins is punitive in effect because the registration

requirement (1) is based on a pre-SORNA conviction, and (2)

is based on Elkins’s conviction as a juvenile sex offender.

After concluding that there is no constitutional barrier to

applying SORNA to Elkins, we briefly address his contention

that SORNA cannot be applied to him because the government failed to provide him with adequate notice of SORNA.

We conclude that under our precedent, the government is

required to prove only that Elkins knew he was required to

register as a sex offender. Accordingly, we reverse the district

court’s dismissal of the indictment and remand the case to the

district court for further proceedings.

4We review the dismissal of an indictment on the basis of statutory

interpretation or constitutional law de novo. United States v. Begay, 622

F.3d 1187, 1193 (9th Cir. 2010). We also review an alleged ex post facto

violation de novo. United States v. Arzate-Nunez, 18 F.3d 730, 733 (9th

Cir. 1994). 

UNITED STATES v. ELKINS 6803
A. Applying SORNA to Elkins Does Not Violate

the Ex Post Facto Clause

1. Requiring an individual to register under SORNA

based on a conviction entered prior to SORNA’s enactment does not violate the Ex Post Facto Clause.

Elkins argues that the application of SORNA to his preSORNA conviction is retroactive and unconstitutional

because the requirement that he register is based on a prior

conviction and he became subject to SORNA after its enactment without any further action on his part. He further argues

that SORNA is punitive because the failure to register statute

exists in the criminal title (18 U.S.C. § 2250(a)), SORNA

creates a new federal crime, and it subjects offenders to a

potential ten-year prison term.

[1] Article I, Section 10 of the Constitution bars the enactment of any law that “imposes a punishment for an act which

was not punishable at the time it was committed; or imposes

additional punishment to that then prescribed.” Russell v. Gregoire, 124 F.3d 1079, 1083 (9th Cir. 1997) (internal citation

and quotation marks omitted).

In Smith v. Doe, 538 U.S. 84 (2003), the Supreme Court set

forth the standard for evaluating whether a sex offender registration program violates the Ex Post Facto Clause. The Ninth

Circuit had found that the Alaska legislature intended the

Alaska Sex Offender Registration Act (the “Alaska Act”) to

be a nonpunitive civil regulatory scheme, but nonetheless held

that its effects were punitive. Id. at 91-92. The Supreme Court

reversed and upheld the Act’s retroactive application to individuals whose convictions predated the Act.

[2] The Supreme Court held that the first inquiry is

whether the legislature meant to impose punishment or enact

a regulatory scheme. Id. at 92. If the intent behind a sex

offender registration program “was to enact a regulatory

6804 UNITED STATES v. ELKINS
scheme that is civil and nonpunitive,” a court must then “examine whether the statutory scheme is so punitive either in

purpose or effect as to negate [the legislature’s] intention to

deem it civil.” Id. (internal quotation marks and citation omitted). The Supreme Court further held that “[b]ecause we ordinarily defer to the legislature’s stated intent, only the clearest

proof will suffice to override legislative intent and transform

what has been denominated a civil remedy into a criminal

penalty.” Id. (internal citation and quotation marks omitted).

[3] Elkins does not question that Congress, in enacting

SORNA, intended to create a regulatory scheme, and we recognize that SORNA was created for the purpose of establishing a national system for the registration of sex offenders.

This conclusion is implicit in the Supreme Court’s opinion in

Reynolds v. United States, 132 S. Ct. 975 (2012).5 Moreover,

in Juvenile Male I, 590 F.3d at 930, we noted that “S.E. has

properly not disputed that in enacting SORNA, Congress

intended to establish a civil regulatory scheme rather than a

criminal one.” Indeed, it appears that all of the circuit courts

that have considered this issue agree that SORNA was

enacted to create a national system for the registration of sex

offenders.6 Accordingly, the application of SORNA to Elkins

5The Court commented: 

The new federal Act reflects Congress’ awareness that pre-Act

registration law consisted of a patchwork of federal and 50 individual state registration systems. See 73 Fed. Reg. 38045 (2008).

The Act seeks to make those systems more uniform and effective.

It does so by repealing several earlier federal laws that also (but

less effectively) sought uniformity; by setting forth comprehensive registration-system standards; by making federal funding

contingent on States’ bringing their systems into compliance with

those standards; by requiring both state and federal sex offenders

to register with relevant jurisdictions (and to keep registration

information current); and by creating federal criminal sanctions

applicable to those who violate the Act’s registration requirements. 

Id. at 978. 

6

See United States v. Guzman, 591 F.3d 83, 91 (2d Cir. 2010) (“[W]ith

SORNA, Congress’s goal was not simply to require sex offenders to regisUNITED STATES v. ELKINS 6805
will only violate the Ex Post Facto Clause if it is “so punitive

either in purpose or effect as to negate” Congress’s intent. See

Smith, 538 U.S. at 92.

[4] Elkins correctly asserts that SORNA is backward looking insofar as it looks to a prior-in-time conviction as a basis

for requiring registration. However, the courts of appeals have

consistently rejected Elkins’s contention that this renders

SORNA punitive. In United States v. George, 625 F.3d 1124,

1131 (9th Cir. 2011), we held that SORNA could be applied

based on a prior conviction because failure to register is a

continuing offense. We subsequently vacated our opinion in

George on other grounds. United States v. George, 672 F.3d

1126 (9th Cir. 2012). However, in United States v. Clements,

655 F.3d 1028, 1029 (9th Cir. 2011), we reiterated that

“[f]ailure to register pursuant to SORNA, or to keep one’s

ter or to penalize the failure to do so, but rather to establish[ ] a comprehensive national system for the registration of those offenders.”) (internal

quotation marks and citation omitted); United States v. Shenandoah, 595

F.3d 151, 154 (3d Cir. 2010) (“SORNA creates a national sex offender

registry with the goal of eliminating inconsistencies among state laws.”),

abrogated on other grounds by Reynolds, 132 S. Ct. 975; United States v.

Gould, 568 F.3d 459, 464 (4th Cir. 2009) (“SORNA’s purpose [is] to

strengthen and increase the effectiveness of preexisting sex offender registration and notification”); United States v. Young, 585 F.3d 199, 204 (5th

Cir. 2009) (“[W]e now hold — in line with all of our sister Circuits to

have considered the issue — that SORNA is a civil regulation and, thus,

does not run afoul of the Constitution’s ex post facto prohibitions.”);

United States v. Utesch, 596 F.3d 302, 306 (6th Cir. 2010) (“Congress

enacted SORNA to create a national system for the registration of sex

offenders.”); United States v. May, 535 F.3d 912, 920 (8th Cir. 2008)

(“SORNA’s registration requirement demonstrates no congressional intent

to punish sex offenders. Congress described SORNA as a public safety

measure.”), abrogated on other grounds by Reynolds, 132 S. Ct. 975;

United States v. Lawrance, 548 F.3d 1329, 1333 (10th Cir. 2008)

(“SORNA is both civil in its stated intent and nonpunitive in its purpose”);

United States v. Brown, 586 F.3d 1342, 1347 (11th Cir. 2009) (“SORNA

created a comprehensive national system for registering sex offenders in

order to track their interstate movement.”). 

6806 UNITED STATES v. ELKINS
registration current, is a continuing offense.” In United States

v. Felts, 674 F.3d 599, 605-06 (6th Cir. 2012), the Sixth Circuit addressed the same argument that Elkins makes here:

Felts also argues that retroactive application of

SORNA violates the Constitution’s Ex Post Facto

Clause, as it increases the punishments for Felts’s

earlier crimes. This argument has been consistently

rejected. In Smith v. Doe, the Supreme Court upheld

Alaska’s sex-offender-registration statute, finding

that it was not punitive, but civil in nature, and not

in violation of the Ex Post Facto Clause. 538 U.S. 84

. . . (2003). . . . Felts attempts — to little avail — to

distinguish SORNA from the Alaska statute in question, but fails to address the unanimous consensus

among the circuits that SORNA does not violate the

Ex Post Facto Clause. SORNA provides for a conviction for failing to register; it does not increase the

punishment for the past conviction. 

674 F.3d at 605-06. We agree and join our sister circuits in

holding that requiring a person to register under SORNA

based on a conviction entered prior to SORNA’s enactment

does not violate the Ex Post Facto Clause.7

7

In support of its claim of consensus on the part of the circuit courts,

the Sixth Circuit noted: 

Relying on Smith, circuit courts have consistently held that

SORNA does not violate the Ex Post Facto Clause. See, e.g.,

United States v. DiTomasso, 621 F.3d 17, 25 (1st Cir. 2010);

Guzman, 591 F.3d at 94 (2d Cir. 2010); Shenandoah, 595 F.3d

at 158-59; George, 625 F.3d at 1131; Gould, 568 F.3d at 466;

United States v. Young, 585 F.3d 199, 203-06 (5th Cir. 2009);

United States v. Ambert, 561 F.3d 1202, 1207 (11th Cir. 2009);

United States v. May, 535 F.3d 912, 919-20 (8th Cir. 2008),

abrogated on other grounds by Reynolds v. United States, . . .

132 S. Ct. 975 . . . (2012); [United States v.] Hinckley, 550 F.3d

[926] at 936 (10th Cir. 2008). 

Felts, 674 F.3d at 606. 

UNITED STATES v. ELKINS 6807
2. Federal prosecution under SORNA is not conditioned

on a state’s implementation of the administrative provisions of SORNA.

[5] A related argument raised in George, and arguably

inherent in Elkins’s challenge to SORNA, is that SORNA

cannot be applied to an individual if the state in which he

resides has not implemented SORNA. We noted, however,

that the defendant in George “misconstrues the scope and

effect of SORNA’s implementation provision,” and that the

fact that states had until July 2009 to implement the administrative portions of SORNA “does not preclude federal prosecution for George’s failure to register under SORNA.”

8

George, 625 F.3d at 1128. We held that “[w]ithout regard to

whether SORNA is implemented by Washington or any other

state, registration under it is required.” Id. Although, as noted,

we subsequently vacated our opinion on other grounds,

George, 672 F.3d 1126, we continue to hold that the federal

government’s prosecution of an alleged violation of SORNA

is not dependent on the individual state’s implementation of

the administrative portion of SORNA. As noted by the Sixth

Circuit, the circuit courts are in accord on this issue.9 Felts,

674 F.3d at 603. 

8We cited 72 Fed. Reg. at 8,895, which states: “In contrast to SORNA’s

provision of a three-year grace period for jurisdictions to implement its

requirements, SORNA’s direct federal law registration requirements for

sex offenders are not subject to any deferral of effectiveness.” George,

625 F.3d at 1128. 

9The Sixth Circuit commented: 

The duty to register in a state registry is independent of a state’s

degree of implementation of SORNA. United States v. Guzman,

591 F.3d 83, 93 (2d Cir. 2010) (“SORNA creates a federal duty

to register with the relevant existing state registries regardless of

state implementation of the specific additional requirements of

SORNA.”) . . . ; United States v. Shenandoah, 595 F.3d 151, 157

(3d Cir. 2010), abrogated on other grounds by Reynolds v.

United States, . . . 132 S. Ct. 975 . . . (2012); United States v.

Brown, 586 F.3d 1342, 1349 (11th Cir. 2009) (“SORNA was not

6808 UNITED STATES v. ELKINS
3. Applying SORNA to Elkins based on his juvenile conviction is not barred by the Ex Post Facto Clause. 

The argument that Elkins advanced successfully in the district court was that applying SORNA based on the Washington state sex offender determination made when he was

fourteen years old is punitive and accordingly violates the Ex

Post Facto Clause.10 Relying on the opinion in Juvenile Male

I, 590 F.3d 924, the district court reasoned that Elkins’s “prior

conviction, a juvenile adjudication, has special significance in

considering the issue of the Ex Post Facto Clause.” The disenacted in a vacuum. To the contrary, every state and the District

of Columbia had a sex offender registration law prior to 2006. An

individual may therefore comply with SORNA’s registration

requirements by registering through the state’s sex offender registry, even if that jurisdiction has not implemented SORNA’s

administrative procedures.”) (citations omitted); United States v.

Gould, 568 F.3d 459, 465-66 (4th Cir. 2009) (“We conclude that

the requirement imposed on individuals to register is independent

of the requirement imposed on the States to implement the

enhanced registration and notification standards of SORNA.

Accordingly, SORNA’s requirement that a sex offender register

applies whether registration would be accomplished through preSORNA registration facilities or under SORNA-compliant programs.”); United States v. Hinckley, 550 F.3d 926, 939 (10th Cir.

2008), abrogated on other grounds by Reynolds v. United States,

. . . 132 S. Ct. 975 . . . (2012) (finding that defendant had “knowledge of his duty to register under similar state and federal provisions”). 

Felts, 674 F.3d at 603-04. 

10SORNA’s definition of sex offender includes the following provision:

The term “convicted” or a variant thereof, used with respect to a

sex offense, includes adjudicated delinquent as a juvenile for that

offense, but only if the offender is 14 years of age or older at the

time of the offense and the offense adjudicated was comparable

to or more severe than aggravated sexual abuse (as described in

section 2241 of Title 18), or was an attempt or conspiracy to

commit such an offense. 

42 U.S.C. § 16911(8). 

UNITED STATES v. ELKINS 6809
trict court dismissed the indictment citing the statement in

Juvenile Male I, 590 F.3d at 941-42, that “[i]n some instances,

the retroactive implementation of SORNA’s provisions will

most certainly wreak havoc upon the lives of those whose

conduct as juveniles offended the fundamental values of our

society but who, we hope, have been rehabilitated.”

The district court’s approach is legally questionable and is

not factually supported by the record. First, as noted, the opinion in Juvenile Male I, 590 F.3d 924, has been vacated by the

Supreme Court as having become moot. United States v.

Juvenile Male, 131 S. Ct. 2860 (2011). Second, a subsequent

opinion in United States v. Juvenile Male, 670 F.3d 999 (9th

Cir. 2012) (“Juvenile Male II”), qualifies the concerns

expressed in Juvenile Male I.

In Juvenile Male I, the court recognized that “an essential

aspect of the juvenile justice system has been to maintain the

privacy of the young offender and, contrary to our criminal

law system, to shield him from the dissemination of truthful

information and transparency that characterizes the punitive

system in which we try adults.” 590 F.3d at 926 (internal quotation marks omitted). The opinion reviewed the Federal

Juvenile Delinquency Act, 18 U.S.C. § 5031 et seq.,

(“FJDA”) and determined that its confidentiality provisions,

such as prohibiting the public release of the name or picture

of the juvenile, were “quite essential to the Act’s statutory

scheme and overarching rehabilitative purpose.” Id. at 929

(quoting United States v. Three Juveniles, 61 F.3d 86, 88 (1st

Cir. 1995)). The court distinguished the application of

SORNA to juveniles from its application to adults, explaining

that the former “does not merely provide for further public

access to information already available; it makes public information about sex offenders that would otherwise permanently

remain confidential and exposes persons who were adjudicated delinquent years before to public humiliation and ignominy for the first time.” Id. at 935. The court expressed

concern that SORNA’s juvenile registration provision makes

6810 UNITED STATES v. ELKINS
“public otherwise confidential delinquency records relating to

sexual offenses” and imposes on a person the burden of inperson registration. Id. at 936. The opinion concluded “that

the retroactive application of SORNA’s juvenile registration

and reporting requirement violates the Ex Post Facto Clause

of the United States Constitution” because “[i]n some

instances, the retroactive implementation of SORNA’s provisions will most certainly wreak havoc upon the lives of those

whose conduct as juveniles offended the fundamental values

of our society but who, we hope, have been rehabilitated.” Id.

at 941-42.

In Juvenile Male II, 670 F.3d 999, we again recognized that

SORNA conflicted with the FJDA. “Because it is clear that

the government’s public release of juvenile records authorized

by SORNA would have been prohibited under the FJDA prior

to the passage of SORNA, we find that the two statutes conflict.” Id. at 1008. However, the court concluded that because

SORNA was the later-enacted, more specific provision,11 and

Congress was aware of and intended SORNA’s modification

of the FJDA,12 “the district court properly applied SORNA’s

11The court noted: 

SORNA unambiguously directs juveniles over the age of 14 convicted of certain aggravated sex crimes to register, and thus

carves out a narrow category of juvenile delinquents who must

disclose their juvenile crimes by registering as a sex offender. For

all other juvenile delinquents, the FJDA’s confidentiality provisions remain in force. 

670 F.3d at 1008. 

12The court explained: 

The relationship between SORNA and the FJDA is further clarified by Congress’s clearly stated intent to limit confidentiality in

the case of certain juvenile sex offenders. See H.R. Rep. 109-218,

pt. 1, at 25 (2005) (“While the Committee recognizes that States

typically protect the identity of a juvenile who commits criminal

acts, in the case of sexual offenses, the balance needs to change;

no longer should the rights of the juvenile offender outweigh the

UNITED STATES v. ELKINS 6811
registration requirements to the juvenile defendants in these

cases.” Id. at 1008. Thus, Juvenile Male II holds that not all

applications of SORNA to individuals based on juvenile sex

offender determinations are sufficiently punitive to violate the

Ex Post Facto Clause.

We need not further reconcile Juvenile Male I with Juvenile Male II because in this case the record shows that the factual predicates underlying the concerns expressed in Juvenile

Male I are not present. Here, Washington law, not SORNA,

first mandated the dissemination of information about

Elkins’s juvenile sex offender determination and imposed on

Elkins the burden of registration. The state court’s 1994 Order

of Disposition required Elkins to register immediately with

the county sheriff. It further required that Elkins provide the

sheriff considerable information, including his fingerprints

and photograph. In addition, the Order (a) required that Elkins

provide written notice to the sheriff any time that he established a new residence, (b) stated that failure to do so is a

“Class C felony or gross misdemeanor,” and (c) provided that

the order was to remain in effect until modified or revoked.

Moreover, the Washington registration form that Elkins

signed in February 2010 required that he register every three

months for life or until he is “relieved of the duty to register

by court order.”

rights of the community and victims to be free from additional

sexual crimes. . . . H.R. 3132 strikes the balance in favor of protecting victims, rather than protecting the identity of juvenile sex

offenders.”); 152 Cong. Rec. S8012, S8023 (daily ed. July 20,

2006) (statement of Sen. Kennedy) (“This compromise allows

some offenders over 14 to be included on registries, but only if

they have been convicted of very serious offenses.”). Thus, Congress was aware that it was limiting protections under the FJDA

by applying SORNA to certain juvenile delinquents, and intended

to do so. 

670 F.3d at 1008. 

6812 UNITED STATES v. ELKINS
[6] The district court noted several differences between the

registration requirements under Washington law and SORNA,

but these differences are minor and do not amount to proof of

punitive effect. Under both Washington and federal law,

Elkins essentially is required to register for life. Under Washington law, the registration requirement is “indefinite.” Wash.

Rev. Code § 9A.44.140(1). Elkins may apply to be relieved of

the obligation to register upon a showing “by a preponderance

of the evidence that [he] is sufficiently rehabilitated to warrant removal from the central registry of sex offenders.”

Wash. Rev. Code § 9A.44.143(2)(c). However, he also must

show that he “has not been adjudicated or convicted of a violation of RCW 9A.44.132 (failure to register) during the sixty

months prior to filing the petition.” Wash. Rev. Code

9A.44.143(2)(b). Under federal law, Elkins’s registration

requirement could be reduced to 25 years if he maintained a

clean record. See 42 U.S.C. §§ 16915(a)(3), (b)(2)(B).

Similarly, it appears that under both state and federal law,

Elkins is required to report in person every three months. The

forms Elkins signed when he registered in February, March,

and April 2010 contain registration requirements that are similar to the provisions of 42 U.S.C. § 16916(3). Also, both

Washington law and SORNA require the posting of a picture.

Elkins’s 1994 Order of Disposition required that he provide

his “fingerprints and photograph.” Thus, whatever minor differences there may be in the reporting requirements, they are

not sufficient to render SORNA punitive when applied to

Elkins.

[7] In sum, even under the rationale of Juvenile Male I, the

application of SORNA to Elkins is not punitive because such

application did not make “public otherwise confidential delinquency records relating to sexual offenses,” 590 F.3d at 936,

and did not substantially change Elkins’s obligation to register

as a sexual offender. Elkins has not presented the clear proof

required to transform the application of SORNA to him into

a criminal penalty prohibited by the Ex Post Facto Clause. See

UNITED STATES v. ELKINS 6813
Smith, 538 U.S. at 92. Accordingly, we hold that the district

court erred when it dismissed the indictment.

B. There Is Sufficient Evidence That Elkins Had

Knowledge Of His Obligation To Register To Proceed

To Trial.

Elkins argues that he cannot be convicted of knowingly

failing to register under SORNA because the district court

found that he had no actual notice that he was required to register under SORNA. He cites Lambert v. California, 355 U.S.

225, 228-303 (1957), for the proposition that notice is

required where a penalty might be imposed for a mere failure

to act. The government counters that Lambert is inapplicable

because convicted sex offenders are generally subject to registration requirements in all fifty states, and Elkins was aware

that he was obligated to register as a sex offender.

In United States v. Crowder, 656 F.3d 870, we agreed with

the government. Crowder argued that he could not be convicted under SORNA because “the government failed to plead

and prove beyond a reasonable doubt that he knew registration was required by SORNA.” Id. at 873. We noted that

Crowder “urges us to read the language of § 2250(a)(3) (that

the defendant ‘knowingly fails to register or update a registration as required by [SORNA]’) as requiring the government

to plead and prove that the defendant knew that he had failed

to register and also knew that such registration was required

by SORNA.” Id.

[8] We, however, held that “knowingly” in 18 U.S.C.

§ 2250(a)(3) applies only to the “fails to register or update a

registration” provision and not to the phrase “as required by

[SORNA].”

13 Id. at 875. We observed that “a convicted sex

13The opinion noted: 

Because state registration schemes have been around for years in

all 50 states, see Smith v. Doe, 538 U.S. 84, 89-90 (2003), and

6814 UNITED STATES v. ELKINS
offender who knowingly fails to register would ordinarily be

committing a crime, regardless whether that individual knows

such failure also violates SORNA.” Id. at 876. We concluded:

[W]e interpret § 2250(a)(3) as requiring the government to prove that a convicted sex offender knew of

a registration requirement and knowingly failed “to

register or update a registration.” It does not require

the government to prove that the sex offender also

knew that the failure to register violates SORNA.

This interpretation is consistent with the Supreme

Court’s rule that generally “the term ‘knowingly’

merely requires proof of knowledge of the facts that

constitute the offense,” Bryan [v. United States], 524

U.S. [184] at 193 [(1998)], . . . while also ensuring

that the defendant cannot be convicted of apparently

innocent conduct.

656 F.3d at 876-77.

[9] Our opinion in Crowder is controlling.14 The one-count

indictment charges Elkins with violating 18 U.S.C. § 2250(a).

In addition, the record indicates that a factfinder could determine that Elkins knew, or should have known, of his obligation to register under Washington law because of his travel to

California. Accordingly, following Crowder, Elkins’s alleged

lack of knowledge of SORNA does not support the dismissal

of the indictment. Elkins may raise as a defense that he did

not know, and it was not reasonable to expect him to know,

convicted sex offenders know (or should know) of their own state

registration requirements, a convicted sex offender who “knowingly fails to register or update a registration” is on notice or

chargeable with notice of the facts constituting the offense. 

656 F.3d at 875. 

14See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc)

(noting that “a three-judge panel may not overrule a prior decision of the

court”). 

UNITED STATES v. ELKINS 6815
that his travel to California triggered a reporting requirement

under Washington law. However, under Ninth Circuit precedent, and consistent with the opinions of our sister circuits, to

the extent that Elkins “knowingly” violated his obligation to

register under Washington law, he had the requisite intent to

support a conviction under SORNA.15 Crowder, 656 F.3d at

876.

III

In enacting SORNA, Congress sought to establish a comprehensive national system for the registration of sex offenders and offenders against children. 42 U.S.C. § 16901. In

Smith, the Supreme Court held that where the legislature in

enacting a sex offender registration program intended a civil

remedy, clear proof is required to show that the “statutory

scheme is so punitive either in purpose or effect as to negate

[the legislature’s] intention to deem it civil.” 538 U.S. at 92

(internal quotation marks omitted). We reaffirm our agreement with our sister circuits that SORNA is not punitive

merely because its registration requirement can be based on

a pre-SORNA conviction. We further hold that the application

15In Crowder, we noted that: 

[W]e join our sister circuits, all of which have read the word

“knowingly” in § 2250(a)(3) as not applying to the “as required

by [SORNA]” clause. See United States v. Stevens, 640 F.3d 48,

51-52 (1st Cir. 2011); United States v. Fuller, 627 F.3d 499, 507-

08 (2d Cir. 2010); United States v. Vasquez, 611 F.3d 325, 328-

29 (7th Cir. 2010), cert. denied, ___ U.S. ___, 131 S. Ct. 2930

(2011); United States v. Shenandoah, 595 F.3d 151, 159 (3d

Cir.), cert. denied, ___ U.S. ___, 130 S. Ct. 3433 (2010); United

States v. Griffey, 589 F.3d 1363, 1367 (11th Cir. 2009) (per

curiam), cert. denied, ___ U.S. ___, 130 S. Ct. 3290 (2010);

United States v. Whaley, 577 F.3d 254, 262 n. 6 (5th Cir. 2009);

United States v. Gould, 568 F.3d 459, 468 (4th Cir. 2009), cert.

denied, ___ U.S.___, 130 S. Ct. 1686 (2010); Baccam, 562 F.3d

at 1199-1200. 

656 F.3d at 877 (parallel L. Ed. 2d cites omitted). 

6816 UNITED STATES v. ELKINS
of SORNA to Elkins based on his Washington juvenile sex

offender conviction is not punitive because Washington law,

not SORNA, first required Elkins to disclose information and

to register as a sex offender. Finally, pursuant to our opinion

in Crowder, 656 F.3d 870, we determine that there is sufficient evidence that Elkins knew of his obligation to register

in Washington as a result of his travel to California to allow

this matter to proceed to trial. The district court’s dismissal of

the indictment is REVERSED and the case is REMANDED

to the district court.

UNITED STATES v. ELKINS 6817