U.S. v. Ditomasso

• Decision Date: 08 May 2008
• Docket Number: No. CR 07-132ML.,CR 07-132ML.
• Citation: 552 F.Supp.2d 233
• Parties: UNITED STATES of America v. Michael DITOMASSO.
• Court: U.S. District Court — District of Rhode Island

552 F.Supp.2d 233

UNITED STATES of America v. Michael DITOMASSO.

No. CR 07-132ML.

United States District Court, D. Rhode Island.

May 8, 2008.

COPYRIGHT MATERIAL OMITTED

Milind M. Shah, U.S. Attorney's Office, Providence, RI, for United States of America.

Kevin J. Fitzgerald, Federal Defender's Office Providence, RI, for Michael Ditomasso.

MEMORANDUM AND ORDER

MARY M. LISI, District Judge.

Defendant Michael DiTomasso ("Defendant") moves to dismiss the indictment for failure to register as a sex offender pursuant to 18 U.S.C. § 2250. Defendant sets forth a battery of constitutional arguments against the indictment: violation of the Due Process Clause, the Ex Post Facto Clause, the Commerce Clause, the right to travel, the Tenth Amendment, and the separation of powers doctrine. Additionally, Defendant argues that the Attorney General's interim rule issued on February 27, 2007 violates the Administrative Procedure Act, and that the government has not established a prima facie case because Defendant was not properly notified under section 2250. For. the reasons set forth below, Defendant's motion is DENIED.

I. Legal Background

This dispute centers on the constitutionality of the Sex Offender Registration and Notification Act ("SORNA") and its applicability in Rhode Island, a state which has not yet implemented all its provisions. A brief discussion of the history and scope of the Act is necessary to preface this opinion.

SORNA is essentially an effort by Congress to close the loopholes in previous sex offender registration legislation and to standardize registration across the states. See 152 Cong. Rec. S8012, 8013 (daily ed. July 20, 2006) (statement of Sen. Hatch) ("Laws regarding registration for sex offenders have not been consistent from State to State [sic] now all States will lock arms and present a unified front in the battle to protect children.").¹ The prior major federal legislation on sex offender registration is the Jacob Wetterling Act, passed by Congress in 1994. 42 U.S.C. § 14071. The Jacob Wetterling Act ("Megan's Laws") required that all states register sex offenders or lose some federal funding. 42 U.S.C. § 14071(g)(2). By 1996, all states had enacted Megan's Laws in some form. Smith v. Doe, 538 U.S. 84, 90, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). Under Rhode Island law. a sex offender is required to register "his or her current address with the local law enforcement agency having jurisdiction over the city or town in which the person having the duty to register resides...." R.I. Gen. Laws § ll-37.1-3(a).

SORNA, which is part of the Adam Walsh Child Protection and Safety Act of 2006, was enacted on July 27, 2006. Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248, 120 Stat. 587 (codified primarily in 42 U.S.C. §§ 16901-16962). SORNA can be roughly divided into two components, the state component and the component applying to individuals. With regard to the former, SORNA requires states' to implement sex offender registries which comply with SORNA requirements in 2009 or lose part of their federal funding. 42 U.S.C. §§ 16924(a), 16925(a). The new registries must include standard information and be compatible with a national electronic database. 42 U.S.C. §§ 16912, 16918, 16919. Rhode Island has not yet fully complied with these requirements.

The individual component of SORNA establishes a federal crime for failing to register:

(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. The law also stipulates how to keep registration current, when to register, and other related details. 42 U.S.C. §§ 16913-16916. SORNA's criminal statute differs from state registration criminal laws primarily in its jurisdictional element. To fall within the registration requirement of SORNA, a sex offender must either be convicted for a sex offense under a federal law or have traveled in interstate commerce. See 18 U.S.C. § 2250.

SORNA reserved some matters to be further regulated by the Attorney General, including the initial registration of sex offenders. See, e.g., 42 U.S.C. §§ 16912, 16913(d), 16917. The Attorney General addressed this matter in an interim rule promulgated on February 28, 2007: "The requirements of [SORNA] apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act." Applicability of the Sex Offender Registration and Notification Act, 72 Fed. Reg. 8,894, 8,897 (Feb. 28, 2007) (to be codified at 28 C.F.R. § 72.3).²

II. Factual Background

The government has alleged the following facts.³ In 1995, Defendant pleaded guilty to one count of rape and abuse of a child under 16 and two counts of indecent assault and battery of a child under 14 under Massachusetts law. (Affidavit ¶¶ 11, 14.) In 2003, Defendant was residing in Massachusetts. At that time, the Massachusetts Sex Offender Registry Board wrote Defendant at his address in Milford, Massachusetts informing him that he must register as a sex offender. (Id. ¶17.) Defendant then registered in 2004, 2005, and 2006 with the Milford Police Department. (Id.) Each time Defendant registered, he signed that he had read and understood the following statement:

You are further advised that you are required to immediately contact and advise of your presence, the appropriate authority in any other state in which you locate yourself for the purpose of residence, employment, or attendance at an institution of higher learning. Failing to do so may subject you to criminal prosecution. (Id.) ¶18.

In about the first week of March 2007, Defendant moved from Massachusetts to Woonsocket, Rhode Island. (Id. ¶¶ 19, 20.) A Woonsocket police officer, William Coupe, advised Defendant in person on March 27, 2007 that he must register as a sex offender at the Woonsocket police station within a week. (Id. ¶22.) Eight days later, on April 4, 2007, Officer Coupe arrested Defendant for failing to register. (Id. ¶23.) At that point, Defendant had still not registered in Rhode Island, nor had he updated his previous registration to reflect his new address. (Id.)

III.Analysis

A motion to dismiss an indictment is not a device for a summary trial of the evidence, but rather is directed only toward the sufficiency of the indictment to charge an offense. See United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962). "[T]he issue in judging the sufficiency of the indictment is whether the indictment adequately alleges the elements of the offense and fairly informs the defendant of the charge, not whether the Government can prove its case." United States v. Buckley, 689 F.2d 893, 897 (9th Cir.1982). Thus, the allegations of the indictment must be taken as true for the purposes of deciding a motion to dismiss. Boyce Motor Lines v. United States, 342 U.S. 337, 343 n. 16, 72 S.Ct. 329, 96 L.Ed. 367 (1952). When the pretrial motion raises questions of fact which are intertwined with issues involving the merits, a determination of that matter must be deferred until trial. See United States v. Knox, 396 U.S. 77, 83 n. 7, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969).

A. Due Process Clause

Defendant argues that charging him with violating SORNA violates the guarantee of fundamental fairness under the Due Process Clause because it was impossible for him to comply with SORNA. See United States v. Dalton, 960 F.2d 121, 124 (10th Cir.1992) ("Because the crimes of which [the defendant] was convicted thus have as an essential element his failure to do an act that he is incapable of performing, his fundamental fairness argument is persuasive."). Rhode Island had not yet implemented SORNA, Defendant contends, therefore, he could not register under SORNA in Rhode Island.

At first blush, the language of the criminal statute appears to support Defendant's contention. Subsection (3) of 18 U.S.C. § 2250(a) provides that one of the elements of the crime of not registering is that the defendant "knowingly fails to register or update a registration as required by [SORNA]." The language "as required by [SORNA]" would seem to indicate that a sex offender is required to register under SORNA, not the applicable state law. By that logic, unless a state had fully implemented SORNA, including the additional registration requirements demanded by SORNA, a sex offender registering in that state would be registering under the state's sex offender law, not under the federal law.

The language "as required by [SONA]," however, begs the question of what SORNA "require[s]" of a sex offender. See 18 U.S.C. § 2250. The section of SORNA entitled "[r]egistry requirements for sex offenders" answers that question by stating: "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." 42 U.S.C. § 16913(a). This 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. The language "as required by [SORNA]" requires a sex offender to register —...