Federal Defense Attorney John Teakell

A man that is responsible for granting offenders parole, may soon find himself behind bars. Chris Ortloff, a New York State parole board commissioner, was arrested on October 13, 2008, for allegedly arranging to have sex with two girls “he believed to be 11 and 12 year old minors,” according to the criminal complaint.

Ironically, Ortloff once pushed for the toughening of Megan’s Law, the law that created the New York’s sex offender registry. “Our government” Ortloff told the Plattsburgh Press-Republican in an interview in 2006, “must do more to keep dangerous, sexually violent predators away from children and women.”

Ongoing Investigation

According to federal prosecutors, Ortloff had been communicating with an undercover cop over the internet almost daily since June, believing the cop to be a parent of the girls. After months of online conversations with investigators posing as his would-be victims, Ortloff arranged to meet what he believed to be the two minors at an upstate New York hotel. After he showed up at the hotel with condoms, lubricants, sex toys and a camera police stormed the room and placed Ortloff under arrest.

Defenses Attorneys Complain of Entrapment

Ortloff’s attorney Andrew Safranko, told news reporters that he still needed to review the case but believes that a possible defense could be that his client did not know the “girls” were underage. He also suggested that this could lead to an entrapment defense pointing to comments made by Assistant United States Attorney Thomas Spina who said, “This was an undercover operation, there were no real minors.”

United States Magistrate Judge Randolph Treece ordered Ortloff detained while the government gathers evidence that it will present in a bail hearing later this week. If convicted, Ortloff faces a mandatory minimum of 10 years and up to a maximum of life in prison.

The Adam Walsh Child Protection and Safety Act enacted by Congress in 2006, has recently been declared to be unconstitutional by one federal court.  On June 11, 2008, United States District Judge Donald W. Molloy found that Congress cannot federally criminalize a sex offender’s failure to register in a state-run database. In a lengthy opinion, Molloy found that Congress exceeded its authority by making it a federal crime for a sex offender to travel to another state and fail to re-register in that jurisdiction. Molly also held that a provision of the National Sexual Offender Registration and Notification Act is unconstitutional and dismissed a federal indictment accusing one sex offender of failing to register in Montana.

25 Years Later the Bill Becomes Law

The Adam Walsh Child Protection and Safety Act became law on the 25th anniversary of the abduction and murder of Adam Walsh on July 27, 1981, in Hollywood, Florida. Adam Walsh’s body was found 16 days after his abduction, and the perpetrator of the crime has yet to be found. John Walsh, Adam’s father, is the host of the television series America’s Most Wanted. John Walsh, along with the National Center for Missing and Exploited mounted an aggressive campaign for several years to get the bill passed into law.

Under the terms of the Act, failure to register and update information is made a felony under the law. It also creates a national sex offender registry and instructs each state and territory to apply identical criteria for posting offender data on the Internet such as the offender’s name, address, date of birth, place of employment, photograph, etc.

The Court’s Decision may have an Impact on Similar Cases

The case which declared the law unconstitutional was United States v. Waybright, No. CR 08-16-M-DWM (Dist. Mont. June 11, 2008). Bernard L. Waybright, 58, was convicted of a misdemeanor sex crime in a West Virginia state court in 2004. As part of his sentence, he was required to register under the federal Sexual Offender Registration and Notification Act, which keeps track of where sex offenders reside. However, Waybright ignored these rules when he traveled to Montana on several occasions and did not re-register with local law enforcement authorities, as required by federal law.

In the Court’s order for dismissal, Molloy dismissed the indictment finding that the enactment of a particular provision requiring all sex offenders to register, regardless of whether they travel in interstate commerce, is not a valid exercise of Congress’ power under the United States Constitution. Molloy therefore declared the provision unconstitutional. “This would allow Congress to federalize nearly any local criminal offense simply by making it a crime for someone who committed the offense to travel in interstate commerce at some point in his life,” Molloy wrote in the opinion.  The Judge also found his decision could potentially clear the way for other similar indictments to be dismissed on the same grounds.