U.S. v. Barner

• Decision Date: 27 March 2009
• Docket Number: No. 1:09-CR-005 (NAM).,1:09-CR-005 (NAM).
• Citation: 635 F.Supp.2d 138
• Parties: UNITED STATES of America, v. Jeffrey BARNER, Defendant.
• Court: U.S. District Court — Northern District of New York

635 F.Supp.2d 138

UNITED STATES of America, v. Jeffrey BARNER, Defendant.

No. 1:09-CR-005 (NAM).

United States District Court, N.D. New York.

March 27, 2009.

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Andrew T. Baxter, Acting United States Attorney, Northern District of New York, Richard D. Belliss, Esq., Assistant U.S. Attorney, of Counsel, Albany, NY.

Alexander Bunin, Federal Public Defender, Gene Primono, Esq., Assistant Federal Public Defender, of Counsel, Albany, NY, for Defendant.

MEMORANDUM DECISION AND ORDER

NORMAN A. MORDUE, Chief Judge.

I. INTRODUCTION

Defendant Jeffrey Barner is charged in a one-count indictment with violating 18 U.S.C. § 2250(a). To wit, the government charged defendant, an individual required to register under the Sex Offender Registration and Notification Act ("SORNA"), with knowingly traveling in interstate commerce from the State of Indiana to the Northern District of New York, and knowingly failing to register as a sex offender in the State of Indiana and knowingly failing to update his registration in the State of New York.

Presently before the Court is defendant's motion to dismiss the indictment on the following grounds: (1) SORNA is not applicable to defendant because New York and Indiana have not yet implemented the law; (2) to punish defendant for a law that did not yet apply to him would violate the Ex Post Facto Clause of the United States Constitution; (3) to punish defendant for violating a law with which he was unable to comply would violate the Due Process Clause of the United States Constitution; (4) the criminal provisions of SORNA (18 U.S.C. § 2290) and the registration requirements of SORNA (42 U.S.C. § 16913) violate the Commerce Clause; (5) the registration requirements of SORNA violate the Tenth Amendment; and (6) SORNA violates the non-delegation doctrine. (Dkt. No. 9) The government opposes defendant's motion. (Dkt. No. 10).

II. FACTS¹

On September 28, 1987, defendant was convicted of Attempted Rape in the First Degree with Forcible Compulsion, in violation of N.Y. Penal Law § 135.30(1). On November 10, 1987, defendant was sentenced to 3½ years to 7 years incarceration in the New York State Department of Corrections. Under New York Law, defendant was required to register as a Level 3 Sex Offender. On February 6, 1996, defendant registered as a sex offender by completing and filing a New York State Sex Offender Registration Form.² Defendant listed his address as 385 Mosill St Buffalo, New York 14211. On May 27, 1999, defendant completed a NYS Sex Offender Change of Address Form and listed his former address as 14 Genesee, Buffalo, New York and his new address as 72 Vernon Place, Buffalo, New York. On February 14, 2003, defendant completed a second NYS Sex Offender Change of Address Form and listed his former address as 72 Vernon Place and his new address as 37 Vernon Place, Buffalo, New York.³

On August 29, 2008, defendant was arrested in Speedway, Indiana for Theft. Investigator Mattison stated that the address listed on the arrest report was "5901 W. 25 [Street], Indianapolis Indiana".⁴ On October 6, 2008, investigators from the U.S. Marshals Service appeared at the Indiana address and were advised by defendant's landlord that defendant had been living there since August 12, 2007 but moved out a week earlier. On October 29, 2008, defendant was arrested at Knights Inn in Colonie, New York by the Colonie, New York Police Department and charged with Forgery of a Public Record, and Criminal Impersonation with Intent in violation of N.Y. Penal Law § 170.10(2). According to Investigator Mattison, the arrest report listed defendant's address as Knights Inn, 1517 Central Avenue, Colonie, New York.⁵

The indictment charges defendant with failing to register as a sex offender in the State of Indiana and failing to update his registration in the State of New York on or between September 2008 and October 29, 2008.

III. LEGISLATIVE BACKGROUND

Title I of The Adam Walsh Child Protection and Safety Act ("Walsh Act") is comprised of the Sex Offender Registration and Notification Act ("SORNA"). Pub.L. No. 109-248, §§ 1-155, 120 Stat. 587, 590-611 (2006), codified at 42 U.S.C. §§ 16901-16991. SORNA was enacted in July 2006 to "protect the public from sex offenders and offenders against children by establishing a comprehensive national system for the registration of sex offenders". 42 U.S.C. § 16901. SORNA established registry requirements for sex offenders and provides, in pertinent part:

(a) In general

A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student. For initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence.

(b) Initial registration

The sex offender shall initially register—

(1) before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement; or

(2) not later than 3 business days after being sentenced for that offense, if the sex offender is not sentenced to a term of imprisonment.

(c) Keeping the registration current

A sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) of this section and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry. That jurisdiction shall immediately provide that information to all other jurisdictions in which the offender is required to register.

42 U.S.C. § 16913.

Subsection (d) of 42 U.S.C. § 16913 vested the Attorney General with, "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 any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b) of this section". 42 U.S.C. § 16913(d). The Attorney General was further directed to develop software to enable jurisdictions to establish and operate uniform sex offender registries. 42 U.S.C. § 16923. Each jurisdiction was directed to implement SORNA before the later of July 27, 2009 or one year after the software was made available. See 42 U.S.C. § 16924.

On February 28, 2007, the Attorney General enacted an Interim Rule which applied the requirements of SORNA to, "all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act". 28 C.F.R § 72.3.

SORNA also created criminal penalties for individuals who failed to register. The criminal provisions of SORNA were codified at 18 U.S.C. § 2250 and provide, in pertinent part:

(a) In general. Whoever

(1) is required to register under the Sex Offender Registration and Notification Act;

(2) (A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or (B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and

(3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act; shall be fined under this title or imprisoned not more than 10 years, or both.

18 U.S.C. § 2250(a).

IV. DISCUSSION

Based upon the above statutory language, the court now examines defendant's arguments for dismissal.

A. SORNA's Applicability to Defendant

Defendant argues that SORNA is not applicable because New York and Indiana have not yet implemented the law. Defendant claims that the Attorney General has not yet issued a regulation declaring that SORNA applies to those convicted before the Act is implemented in a particular state. Defendant further claims that New York and Indiana have no system in place to carry out SORNA's registration and notification requirements and therefore, defendant cannot be subject to SORNA's constraints. The government contends that under a plain reading of the statute, defendant was clearly a person required to register under SORNA. Further, the government argues that defendant was able to comply with SORNA in both New York and Indiana since both states have sex offender statutes.

"SORNA's language makes clear that sex offenders have a general obligation to register in their jurisdiction. There is no mention anywhere in SORNA that the registration obligation does not become effective until the state implements the additional registration requirements of SORNA". U.S. v. Contreras, 2008 WL 5272491, at *6 (W.D.Tex.2008) (internal citations omitted). Compliance with the registration requirements of SORNA is possible in states that have yet to implement SORNA by registering through the state's sex offender registry. See U.S. v. Van Buren, 2008 WL 3414012, at *6 (N.D.N.Y.2008) (internal citations omitted). In accordance with the relevant state statutes, a convicted sex offender could appear at the relevant law enforcement agency and submit the required information to fulfill his duties under SORNA and avoid criminal action. See U.S. v. Fuller, 2008 WL 2437869, at *2 (N.D.N.Y. 2008) (holding that the defendant presented no evidence that he was impeded from appearing at the relevant law enforcement agency to submit the required information to fulfill his duties under SORNA).

Several courts in this district have rejected the same argument that defendant attempts to advance in this regard. Specifically, courts have held that, "the fact that states have not yet...