U.S. v. Benevento, No. 2:07-cr-00136-RCJ-PAL.
| Decision Date | 21 April 2009 |
| Docket Number | No. 2:07-cr-00136-RCJ-PAL. |
| Citation | 633 F.Supp.2d 1170 |
| Parties | UNITED STATES of America, Plaintiff, v. Darian BENEVENTO, Defendant. |
| Court | U.S. District Court — District of Nevada |
Nancy J. Koppe, U.S. Attorney's Office, Las Vegas, NV, for Plaintiff.
Before the Court is Defendant's Objections to Magistrate Judge's Report of Findings and Recommendation Re Motion to Dismiss Count II(# 74). In his Motion to Dismiss Count II of his Indictment and his objection to the Magistrate Judge's Report and Recommendation, Defendant challenges the constitutionality of the Sex Offender Registration and Notification Act ("SORNA") on nine separate grounds, both facially, and in its application to him. (#23, #74). The Court has considered the pleadings and oral argument on behalf of the Defendant and the Magistrate Judge's Report and Recommendation. IT IS HEREBY ORDERED that the Court affirms the Magistrate Judge's Report and Recommendation, effectuating the denial of Defendant's Motion to Dismiss Count II.(# 68).
I. Facts
The following facts are undisputed. Defendant Darian Benevento was convicted of a sex offense in the State of California in 2003 and released from prison on parole in February of 2005. Upon his release, he was registered as a sex offender in California. The government asserts and defense does not dispute that Defendant signed a California form notifying him of his obligation to register as a sex offender and update this registration when he changed his address or once a year if his address did not change. The form also notified him of his lifelong obligation to know and understand all changes in the law regarding sex offense registration. The government alleges that after his initial registration in California, he absconded supervision and was a fugitive between April 2005 and his arrest in Ontario, California in April 2007.
Defendant was brought into this district on a federal writ on July 20, 2007, which was brought pursuant to an indictment alleging two counts against him. The grand jury indicted him with the charges of transportation of a minor for prostitution in violation of 18 U.S.C. § 2423(a) and failure to register as a sex offender in violation of 18 U.S.C. § 2250(a).
Defendant brought a motion to dismiss Count II of the Indictment and argued that the Sex Offender Registration and Notification Act was unconstitutional on its face and as applied to him in violation of the following rights: Due Process; the Commerce Clause; Ex Post Facto Clause; Article I, §§ 1, 8 of the Constitution; Administrative Procedure Act; Tenth Amendment; and the right to travel in interstate commerce.
In his opposition, Defendant raises the same arguments as his Motion to Dismiss Count II.(# 74). However, he regroups his argument as to the unconstitutionality of the Act and asserts seven grounds instead of nine. He argues that (1) his due process rights were violated; (2) Congress lacked the power to enact the SORNA registration requirements under the Commerce Clause; (3) SORNA's registration requirements violate the Ex Post Facto clause of the Constitution; (4) Congress impermissible delegated legislative authority to the Attorney General; (5) the Attorney General failed to comply with the notice and comment provisions of the Administrative Procedure Act; (6) Section 2250(a) violates the Tenth Amendment; and (7) SORNA infringes on Defendant's constitutional right to travel in interstate commerce. (# 74 at 4).
The duties of a district court in connection with a Magistrate Judge's Report and Recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). Where the parties object to a Report and Recommendation, "[a] judge of the district court shall make a de novo determination of those portions of the [Report and Recommendation] to which objection is made." 28 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). When no objections are filed, the District Court need not review de novo the Report and Recommendation. See Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir.2003) (en banc). A district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).
Count II of the Indictment alleges Benevento violated 18 U.S.C. § 2250(a). The essential elements for a § 2250(a) offense require the government to prove: (i) the defendant is a sex offender as defined by SORNA and, therefore, required to register under SORNA, 18 U.S.C. § 2250(a)(1); (ii) federal jurisdiction exists either because the defendant was convicted as a sex offender under federal law or because the defendant traveled in interstate or foreign commerce, 18 U.S.C. § 2250(a)(2)(A) and (2)(B); and (iii) the defendant knowingly failed to register or update his sex offender registration as required, 18 U.S.C. § 2250(a)(3), United States v. Hinen, 487 F.Supp.2d 747, 750 (W.D.Va.2007); United States v. Samuels, 543 F.Supp.2d 669, 673 (E.D.Ky.2008).
Count II of the Indictment alleges that between an unknown date in autumn 2006 to March 7, 2007 in the State and Federal District of Nevada, Benevento: (1) was a person who was required to register under SORNA, (2) traveled in interstate commerce, and (3) knowingly failed to register and update a registration as required by SORNA in violation of § 2250(a). Benevento's motion indicates he understands from the discovery produced that the government's theory in this case is that he traveled from another state to Las Vegas, Nevada, between late 2006 and March 2007 and failed to register in Nevada as required by SORNA. The indictment in this case alleges the essential elements of the crime of failing to register as required under SORNA and provides adequate detail to inform Benevento of the charge to enable him to plead double jeopardy. It is, therefore, sufficient. However, Benevento challenges the constitutionality of the statute on its face and as applied to him. The Magistrate Judge issued her Report and Recommendation (# 68). Benevento filed an objection to it (# 74), and accordingly, the Court reviews his objections de novo.
The parties agree that Benevento was convicted of a sex offense in California in 2003, sentenced to a term of imprisonment, and that when he was released from prison, he registered as a sex offender as required under California Penal Code § 290. California Penal Code § 290 imposes a lifelong obligation on a sex offender to register with local law enforcement within thirty days of coming into a local jurisdiction, and update the registration with any change of information within ten days or once a year if there are no changes. A person convicted of a felony sex offense who fails to register under § 290 is guilty of a felony punishable by imprisonment in the state prison for sixteen months, or two or three years. Section 290.018(b).
In Nevada, Chapter 179D of the Nevada Revised Statutes ("N.R.S.") governs the registration of sex offenders and offenders convicted of a crime against a child. Until July 1, 2008, individuals convicted of a crime against a child as defined by N.R.S. 179D.210 were required to register with a local law enforcement agency and with the Division of Parole and Probation of the Department of Motor Vehicles and Public Safety ("Division") if the offender resided in or was present for forty-eight hours or more in the jurisdiction of a local law enforcement agency. See N.R.S. § 179D.240. N.R.S. 179D.250 required a sex offender to notify the Division of any change in address and provide updated information within forty-eight hours after changing an address, and N.R.S. 179D.270 required a sex offender convicted of a crime against a child to comply with these registration provisions for at least fifteen consecutive years. Violation of the offender registration provisions for an offender convicted of a crime against a child was a Category D felony punishable by a term of imprisonment for a minimum term of not less than one year and a maximum term of four years and/or a fine of not more than $10,000. See N.R.S. 179D.290 and N.R.S. 193.130(2)(d).
N.R.S. 179D.460 required sex offenders convicted of a sexual offense as defined by N.R.S. 179D.410 to register with local law enforcement agencies and the Division within forty-eight hours after arriving or establishing residence in Nevada. It also required sex offenders to notify the Division of any change of address and update registration information, for at least fifteen consecutive years after conviction. Violation of the provisions of N.R.S. 179D.350 to 179D.550 was also a Category D felony punishable from one to four years in prison and/or a fine of not more than $10,000.
In 2007, the Nevada legislature repealed, revised, and expanded the provisions of Chapter 179D to conform to the provisions of the Federal Adam Walsh Child Protection and Safety Act of 2006 (the "Walsh Act"), P.L. 109-248, 120 Stat. 587 (codified primarily in 42 U.S.C. §§ 16901-16962). The Nevada enactments were set to become effective July 1, 2008. However, two lawsuits were filed challenging certain of the new registration and community notification provisions passed by the Nevada legislature to conform to the provisions of the Walsh Act. On June 26, 2008, Nevada State District Court Judge David Wall found that the registration and community notification requirements of Assembly Bill 579 would result in significant and irreparable harm to the plaintiffs and other similarly situated in Clark County, Nevada, and he granted a preliminary injunction restraining and enjoining enforcement of...
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