United States Court of Appeals, Eleventh Circuit.
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN PILATI, Defendant-Appellant.
No. 09-11978 D.C. Docket No. 07-00082-CR-VEH-JEO
Decided: December 17, 2010
The full PUBLIC article is here at https://caselaw.findlaw.com/us-11th-circuit/1548906.html if you want to read the whole court document in full. The below excerpt from the docket made me feel dirty enough to go take a shower.
The supporters, and the individuals that give money to “The Franklin Free Press” should be ashamed of associating and advertising with this sick individual.
Advertising dollars are being used as he goes and photographs your children at school. He might have someone go take them, but it doesn’t take the fact away that he will be in possession of the photos for the rest of his life. Think about it people? Are you all that naive?
I. BACKGROUND
Pilati was charged with five misdemeanor counts of willfully depriving individuals of their right to be free from unreasonable searches by one acting under color of law, in violation of 18 U.S.C. § 242. Specifically, the grand jury charged Pilati, who was employed as the District Attorney in Franklin County, Alabama at the time of the offenses, with the following conduct: (1) Pilati fondled the scrotum and penis of S.T.; (2) Pilati fondled the testicles, penis, and buttocks of J.H.; (3) Pilati forced A.M. to disrobe until he was completely naked and fondled his scrotum and buttocks; (4) Pilati stroked the testicles of A.Y.; and (5) Pilati forced D.M. to disrobe until he was completely naked and touched his genitals. Pilati pleaded not guilty to all counts.
Pursuant to Federal Rule of Criminal Procedure 58(b)(3)(A), Pilati consented to be tried before a magistrate judge and specifically waived trial before a district judge. The magistrate judge conducted a jury trial, and the jury found Pilati guilty on all counts.
The Probation Office prepared a Presentence Investigation Report (PSI). According to the PSI, Pilati conducted drug tests on the individuals named in the indictment, and he fondled their genitalia while administering the tests. At the time of the offenses, one of the victims was under the age of 18. Specifically, the PSI stated that A.Y., the victim in Count Four, was 17 years old when Pilati “strok[ed] A.Y.’s testicles, concentrating on the area between his penis and his testicles,” and “then held A.Y’s penis while he urinated into the cup” for drug testing.
In its written objections to the PSI, the Government asserted that Pilati must be required to register under SORNA as a condition of supervised release. Pilati objected to the recommendation of SORNA registration, asserting that “a violation of 18 U.S.C. § 242 with underlying sexual contact would not trigger any sexual offender registration requirements.” Neither Pilati nor the Government included any written objection to the PSI’s statement that A.Y. was 17 years old at the time of the offense.
At the sentencing hearing, the magistrate judge heard argument regarding whether SORNA registration was required given the fact Pilati was not convicted of a “sex offense.” Pilati asserted that because the jury convicted him of deprivation of civil rights and not a “sex offense,” SORNA registration was not required. He contended that SORNA required a specific finding by the jury that the defendant committed a sexual offense. Pilati’s argument regarding SORNA registration was not based on the age of the victim. The magistrate judge overruled Pilati’s objection that his underlying offense, 18 U.S.C. § 242, did not require registration, concluding that a separate factual finding by the jury of specific intent to commit a sexual offense was not required for sentencing purposes. The magistrate judge made a separate finding that he found “beyond a reasonable doubt that the offense conduct did involve the allegation and abusive sexual conduct as is stated in the [PSI].” The magistrate judge noted that SORNA provided the term “sex offender” included anyone who had committed a specified offense against a minor, which in turn incorporated any conduct that by its nature is a sex offense against a minor. See 42 U.S.C. § 16911. The magistrate judge found that “Count Four, dealing with the minor A.Y.,” was a sex offense against a minor, and thus Pilati was required to register under SORNA. Neither Pilati nor the Government objected to the magistrate judge’s statement that A.Y. was a minor.
The magistrate judge then sentenced Pilati to 42 months’ imprisonment and 1 year of supervised release. As a special condition of supervised release, the magistrate judge ordered Pilati to register as a sex offender within three days of his release. After imposing the sentence, the magistrate judge inquired if there were any objections from any party as to the findings of fact other than those previously stated for the record. Neither Pilati nor the Government had any further objections.
Pilati appealed to the district court, pursuant to 18 U.S.C. § 3402, raising only one issue: “Was it error for the court to order [Pilati] to register as a sex offender under the facts of this case?” Pilati’s argument was twofold, focusing on the victim’s age. He asserted (1) there was no proof that A.Y. was a minor at the time of the offense, and (2) the magistrate judge had not required the jury to make a specific finding that A.Y. was a minor. Pilati asserted that under SORNA, the jury was required to make a finding of the victim’s age.
The district court affirmed the magistrate judge’s sentence. The district court determined that while Pilati had objected to the SORNA registration requirement at sentencing, he did so on the basis he had not been convicted of a sexual offense. Pilati challenged for the first time on appeal to the district court the lack of a specific finding regarding the age of the victim. The district court concluded, inter alia, that Pilati failed to object to the PSI’s statement that A.Y. was a minor, and thus had admitted it for sentencing purposes. Pilati now appeals to this Court.