U.S. v. Dean
| Decision Date | 06 March 2009 |
| Docket Number | Case No. 2:08-CR-50-WKW [WO]. |
| Citation | 606 F.Supp.2d 1340 |
| Parties | UNITED STATES of America v. Christopher DEAN. |
| Court | U.S. District Court — Middle District of Alabama |
Jerusha Tatiana Adams, United States Attorney's Office, Montgomery, AL, for Plaintiff.
On January 9, 2009, the Magistrate Judge filed a Report and Recommendation ("Recommendation") in this case. (Doc. #29.) Defendant Christopher C. Dean ("Dean") objected to the Recommendation. (Doc. # 31.) The portions of a recommendation to which a defendant objects are reviewed de novo. 28 U.S.C. § 636(b)(1).
A de novo review of the record and law confirms that the recommendation to deny Mr. Dean's Motion to Dismiss Indictment (Doc. #20) should be adopted.1 Therefore, it is ORDERED that:
1. Mr. Dean's objections (Doc. # 31) are OVERRULED;
2. The Recommendation of the Magistrate Judge (Doc. #29) that Mr. Dean's Motion to Dismiss Indictment (Doc. # 20) be denied is ADOPTED; and 3. Mr. Dean's Motion to Dismiss Indictment (Doc. # 20) is DENIED.2
On 28 July 2008, Christopher C. Dean ("Dean") filed a Motion to Dismiss the indictment in this case. (Doc. # 20). Dean is charged with failing to register under the Sex Offender Registration and Notification Act (SORNA) in violation of 18 U.S.C. § 2250. The motion asserts several grounds for dismissal: (1) SORNA is not applicable to Dean because he is unable to initially register under § 16913(b); (2) the Attorney General has not promulgated regulations making the Act retroactive to persons convicted before its implementation in a particular state; (3) SORNA's provisions violate the Ex Post Facto Clause; (4) to punish Dean would violate the Due Process Clause; (5) Dean did not receive proper notice; (6) the unconstitutionality of SORNA as an improper delegation of legislative power by Congress to the Executive branch; (7) the improper administrative implementation of SORNA by the Department of Justice; and (8) the unconstitutionality of SORNA due to Congress's improper exercise of power under the Commerce Clause. (Doc. #20). On 14 October 2008, the Government filed a Response. (Doc. #25). On 13 November 2008, the District Court referred this matter to the undersigned for disposition. (Doc. #28). For the reasons which follow, the Court concludes that the Motion to Dismiss should be DENIED.
On or about 18 January 1994, in the State of Minnesota, County of Scott, District Court for the First Judicial District (Case Number 93-12289), Dean was convicted of Criminal Sexual Conduct Third Degree. On 11 March 1994, Dean was sentenced to forty-eight (48) months of imprisonment with the Commissioner of Minnesota Corrections. Dean was released from custody for that offense on 14 September 1996. On 18 July 1996, prior to Dean's release from custody, Dean registered as a sex offender in Minnesota and signed a document acknowledging that he was subject to registration as a sex offender. Thereafter, Dean relocated to Montana and, on 27 March 2003, registered as a sex offender in Montana. In those registration documents, Dean acknowledged that: (1) as a convicted sex offender, he was required to register for the rest of his life; (2) if he moved to another state, he must register in that state within ten (10) days of his arrival and inform the last registering agency in Montana in writing to keep his Montana registration current; and (3) if he failed to register or to keep his registration current and accurate, he could be convicted of a separate felony offense.
At some point, Dean relocated to Georgia. On 25 October 2005, Dean registered in Georgia and provided notice to Montana of his change in residence. In his Georgia registration documents, Dean acknowledged that he understood that: (1) he must notify the sheriff of the county if he changes his residence address, employment address, vocation address, or school address; (2) if he moved to another county in Georgia, he was required, within ten (10) days of his address change, to register in person with the sheriff of the new county and the sheriff of the previous county of residence; (3) if he moved to another state, he was required to report in person to the sheriff's office in which he last registered in Georgia and the designated law enforcement agency in his new state of residence; and (4) failure to register with the sheriff, initially or annually, could result in felony conviction. On 30 May 2006, Dean updated his Georgia registration by providing a new Georgia address and employment information. On 17 July 2006, Dean updated his Minnesota registry and provided a Georgia address. In these registration documents, Dean acknowledged that: (1) he understood that it is his duty to register as a predatory offender; (2) he understood that he must register all changes to his primary address, including moving to another state, at least five (5) days prior to moving; (3) he understood that if he moved to another state, that he must provide written notification to the registration agency in the new state; and (4) he understood that failure to comply with the registration requirements set forth in the documents could result in felony charges.
On 1 August 2007, Prattville Police Department received information that Dean, an unregistered sex offender, was living and working in Prattville, Alabama. On 6 August 2007, Dean was interviewed by law enforcement at the Prattville Police Department. After being advised of his rights, Dean waived them and agreed to be interviewed by law enforcement. In the interview, Dean admitted that he was currently living in Prattville with his sister and had been doing so for about three (3) weeks. Dean further admitted his Minnesota conviction and relocation from Minnesota to Montana to Georgia. Consequently, Dean was arrested for failure to register as a sex offender in the State of Alabama by the Prattville Police Department. On March 14, 2008, a federal grand jury returned a one-count indictment against Dean for violation of 18 U.S.C. § 2250. (Doc. # 1).
Enacted as Title I of the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act"),2 Congress enacted SORNA to establish a comprehensive national system for the registration of sex offenders and offenders against children. 42 U.S.C. § 16901. The Act defines "sex offender" as "an individual who was convicted of a sex offense," places offenders in three tiers according to the underlying conduct of their offense (42 U.S.C. § 16911(1)-(4)), and mandates that all states and United States territories maintain a sex offender registry with specified information concerning each offender (42 U.S.C. § § 16912(a), 16914). SORNA requires each state to maintain a jurisdiction-wide sex offender registry, and directs the Attorney General to "issue guidelines and regulations to interpret and implement" its provisions. 42 U.S.C. §§ 16912(b). SORNA directs jurisdictions to completely implement SORNA before 27 July 2009, or one year from the date statutorily mandated software is available, whichever is later. 42 U.S.C. § 16924.
The substantive registration requirement in § 16913 provides "[a] sex offender shall register, and keep the registration current, in each jurisdiction where the offender" resides, is employed, or is a student. 42 U.S.C. § 16913(a). Initial registration is required "before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement," or "not later than 3 business days after being sentenced for that offense, if the sex offender is not sentenced to a term of imprisonment." 42 U.S.C. § 16913(b). Offenders must appear in person to report any changes in their registration information not later than 3 business days after each change of name, residence, employment, or student status. The jurisdiction receiving the updated information must immediately provide the information to all other jurisdictions in which the offender must register. 42 U.S.C. § 16913(c).
SORNA specifically vests in the Attorney General "the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction, and to prescribe rules for the registration" of sex offenders who are unable to comply with the initial registration requirements (emphasis added). See 42 U.S.C. § 16913(d) (). The statute sets forth the information to be collected by jurisdictions, the duration of registration for the three tiers of offenders, and the schedules for in-person verification. 42 U.S.C. §§ 16914-16916. Section 16917 imposes a duty on an "appropriate official" to notify sex offenders of registration requirements upon their release from custody or upon sentencing, and instructs the Attorney General to "prescribe rules for the notification of sex offenders who cannot register in accordance with subsection (a)." In this way, § 16917 parallels § 16913 by entrusting the Attorney General with the task of determining how to implement SORNA for previously convicted sex offenders who have completed their sentences for the SORNA-qualifying offense. States which fail to substantially implement SORNA in any fiscal year after the implementation deadline shall not receive ten percent of the federal funds which would otherwise be allocated for projects falling under the federal/state Drug Control and System Improvement Grant Program (Title 42, subchapter V, Part A). 42 U.S.C. § 16925(a).
The Attorney General met his SORNAassigned rulemaking duties in three publications: (1) an Interim Rule on the...
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