487 F.Supp.2d 536 (M.D.Pa. 2007), 1 06-CR-389, United States v. Kapp

Docket Nº:1 06-CR-389
Citation:487 F.Supp.2d 536
Party Name:United States v. Kapp
Case Date:May 16, 2007
Court:United States District Courts, 3th Circuit, Middle District of Pennsylvania

Page 536

487 F.Supp.2d 536 (M.D.Pa. 2007)



Scott Frederick KAPP, Defendant

United States of America


Elmer Alvin Duncan, Defendant.

Nos. 1:06-CR-389, 1:06-CR-422.

United States District Court, M.D. Pennsylvania.

May 16, 2007

Page 537

Martin C. Carlson, U.S. Attorney's Office, Harrisburg, PA, for United States of America.


KANE, Chief Judge.

Now before the Court are motions to dismiss indictments in two separate criminal actions: United States v. Kapp and United States v. Duncan. Defendants have moved to dismiss indictments for violations of 18 U.S.C. § 2250, and have separately challenged the applicability and constitutionality of that statute on similar bases. For reasons of judicial economy, the Court will address both motions in a single order. For the reasons that follow, Defendants' motions will be granted.


On November 15, 2006, Defendant Scott Frederick Kapp was charged in a three-count Grand Jury Indictment with violations of 18 U.S.C. § 2250(a) and 42 U.S.C. § 14072(i) for failure to register as a sex offender (Counts I and II), and with a violation of 18 U.S.C. § 228 for failure to pay past-due child-support obligations (Count III). On December 13, 2006, Defendant Elmer Alvin Duncan was separately charged with the same three offenses. Both Defendants subsequently entered pleas of not guilty and moved to dismiss Count I of their respective indictments.

In their motions to dismiss, Defendants challenge the application and constitutionality of 18 U.S.C. § 2250. That statute imposes criminal liability on persons who are required to register as sex offenders, knowingly fail to comply with federal registry requirements, and who have been convicted of a sex offense under federal law or travel in interstate commerce. Defendants argue that at the time of their Indictments, the statute had no application to them. Alternatively, they argue that § 2250 is unconstitutional in that it violates the nondelegation doctrine, as well as the Ex Post Facto, Due Process, and Commerce Clauses. Neither this Court nor any court within the Third Circuit has had occasion to interpret § 2250 or to consider challenges to its constitutionality. Indeed, only four district courts have considered the statute, with varying results. 1 The Court will briefly describe the facts alleged in support of the indictments, discuss the statutory background leading up to § 2250, and then turn to Defendants' substantive

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arguments in support of their motions.

A. Factual Background

1. Scott Kapp

On January 20, 1998, Defendant Scott Frederick Kapp appeared before the York County Court of Common Pleas and entered a plea of nolo contendere to sexual assault and aggravated assault, and was sentenced to two to four years incarceration. While in custody on November 9, 2001, and then again on January 17, 2002, Kapp registered as a sex offender with the Pennsylvania State Police pursuant to 42 Pa. Cons.Stat. § 9795.2. After his release from prison, Kapp traveled to Florida in the fall of 2006, where he had accepted employment. The Government alleges that Kapp failed to register as a sex offender in Florida. On November 16, 2006, Kapp was arrested in Fort Lauderdale, Florida, on the within indictment alleging failure to update his sex-offender registration and failure to pay past-due child-support obligations.

2. Elmer Duncan

In 1990, Elmer Alvin Duncan was convicted of rape, statutory rape, indecent assault, and corruption of the morals of a six-year-old girl. On September 10, 1990, Duncan was sentenced to a term of imprisonment of seven-and-one-half to fifteen years. On January 18, 2005, and then upon his release in February 2005, Duncan registered as a sex offender. In January 2006, the Pennsylvania State Police mailed an address verification form to Duncan's reported address. Duncan did not return the form. At some point during the spring or summer of 2006, Duncan traveled to Florida, where he resided for several months. In December 2006, Duncan was arrested in Florida on the within indictment alleging failure to update his sex-offender registration and failure to pay past-due child-support obligations.

B. Statutory Background

The history of the challenged statute, 18 U.S.C. § 2250, is rooted in three legislative acts: (1) the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act ("Jacob Wetterling Act"), Pub.L. 103-322, tit. XVII, 108 Stat. 2038, as amended, 42 U.S.C. § 14071; (2) the Pennsylvania Registration of Sex Offenders Act ("Megan's Law"), 42 Pa. Cons.Stat. § 9791 et seq. ; and (3) the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act"), Pub.L. No. 109-248, 120 Stat. 587 (2006). Defendants' challenge to § 2250 is examined in the context of these statutes.

1. Jacob Wetterling Act

On September 13, 1994, President Clinton signed into law the Jacob Wetterling Act. The Jacob Wetterling Act is a federal funding statute that "condition[ed] certain federal law enforcement funding on the States' adoption of sex offender registration laws and set[] minimum standards for state programs." Smith v. Doe, 538 U.S. 84, 89-90, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). These sex-offender registration laws and state programs are commonly referred to as "Megan's Laws," and have been enacted on a state-by-state basis throughout the country. Id. By appropriating federal funds to states in compliance with minimum federal standards, the Jacob Wetterling Act contemplated primarily state-based enforcement of sex-offender registries. As such, the Jacob Wetterling Act provided that "[a] person required to register under a State program established pursuant to this section who knowingly fails to so register and keep such registration current shall be subject to criminal penalties in any State in which the person has so failed," 42 U.S.C. § 14071(c),

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but did not itself impose independent federal criminal liability for an individual who violated a state's Megan's Law. 2

2. Pennsylvania's Megan's Law

On October 24, 1995, Governor Ridge signed into law Pennsylvania's Megan's Law. Under Pennsylvania's Megan's Law, an individual convicted of an offense enumerated in 42 Pa. Cons.Stat. § 9795.1 3 must register with the Pennsylvania State Police and provide information related to...

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