U.S. v. Fuller

• Decision Date: 30 November 2010
• Docket Number: Docket No. 09-1437-cr
• Citation: 627 F.3d 499
• Parties: UNITED STATES of America, Appellee, v. Ross A. FULLER, III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

627 F.3d 499

UNITED STATES of America, Appellee,

v.Ross A. FULLER, III, Defendant-Appellant.

Docket No. 09-1437-cr.

United States Court of Appeals,Second Circuit.

Argued: May 26, 2010.

Decided: Nov. 30, 2010.

Brenda K. Sannes, Assistant United States Attorney (Richard S. Hartunian, United States Attorney for the Northern District of New York; Lisa M. Fletcher, Assistant United States Attorney), United States Attorney's Office for the Northern District of New York, Syracuse, NY, for Appellee.

James P. Egan (Alexander Bunin, Federal Public Defender; Lisa A. Peebles, First Assistant Federal Public Defender), Federal Public Defenders Office, Syracuse, New York, for Defendant-Appellant.

Before: McLAUGHLIN, STRAUB, RAGGI, Circuit Judges.

McLAUGHLIN, Circuit Judge:

Defendant-Appellant Ross A. Fuller, III, ("Fuller") appeals from an April 2, 2009, judgment of conviction entered in the United States District Court for the Northern District of New York (Scullin, J.), following a conditional guilty plea to a violation of 18 U.S.C. § 2250, the criminal enforcement provision of the federal Sex Offender Registration and Notification Act ("SORNA" or the "Act"), 42 U.S.C. § 16901 et seq. This provision "established a federal criminal offense covering, inter alia, any person who (1) 'is required to register under [SORNA],' (2) 'travels in interstate or foreign commerce,' and (3) 'knowingly fails to register or update a registration.' " Carr v. United States, --- U.S. ----, 130 S.Ct. 2229, 2232, 176 L.Ed.2d 1152 (2010) (quoting 18 U.S.C. § 2250). Fuller, who was previously convicted of a sex offense under Missouri state law and subsequently moved to New York, was arrested, indicted, and later pled guilty to failing to register as a sex offender and keep his registration current in accordance with SORNA's requirements. See 42 U.S.C. § 16913(a), (c).

Fuller's relevant interstate travel occurred in the period between SORNA's enactment on July 27, 2006, and the issuance of an interim ruling by the Attorney General on February 28, 2007, affirming SORNA's applicability to sex offenders whose predicate sex offense convictions occurred prior to SORNA's enactment (the "Interim Ruling"). See 72 Fed.Reg. 8894, 8896 (Feb. 28, 2007) (codified at 28 C.F.R. § 72.3 (2007)). The question before us, then, is whether SORNA applied to sex offenders in Fuller's circumstances upon its enactment or only upon issuance of the Interim Ruling. This is a question of first impression in this Circuit, and, as the Supreme Court noted in Carr while expressly declining to reach the matter, our sister Circuits are divided as to the answer. See Carr, 130 S.Ct. at 2234 n. 2. Today, we hold that SORNA applied upon enactment to sex offenders, like Fuller, whose predicate sex offense convictions predate SORNA.

Fuller also argues that a conviction under SORNA requires a showing of specific intent to violate the Act's requirements. We disagree, and hold that violation of SORNA's criminal enforcement provision is a general intent crime.

Therefore, the judgment of the district court is AFFIRMED.

BACKGROUND

On April 26, 2004, Fuller pled guilty to statutory sodomy in the second degree in Missouri. In August 2004, following his release, Fuller signed a Missouri Offender Registration Notification form, acknowledging his status as a sex offender and his continuing obligations under state law to (1) provide periodic address verifications, (2) inform law enforcement of any change of address, (3) notify law enforcement if he moved to another state, and (4) comply with the sex offender registration requirements of any state to which he moved.

From November 2004 through June 2006, Fuller complied with his address verification requirement, reporting that he resided in St. Louis, Missouri. After June 2006, however, Missouri authorities stopped receiving notice from Fuller. A warrant was thereafter issued for his arrest.

In September 2007, U.S. Marshals learned that Fuller was living in New York. Fuller was arrested on October 19, 2007, at which time he had failed to register as a sex offender in New York or update his registration in Missouri. He was charged in the Northern District of New York as "an individual required to register under [SORNA]" who "travel[ed] in interstate commerce and knowingly fail[ed] to register or update his registration as required by [SORNA]."

On November 21, 2007, Fuller moved to dismiss the indictment, arguing, inter alia, that (1) he was not subject to SORNA because his relevant interstate travel occurred prior to the Interim Ruling; and (2) prosecuting him under SORNA would violate the Ex Post Facto Clause. The district court denied Fuller's motion. See United States v. Fuller, No. 5:07-CR-462, 2008 WL 5600709 (N.D.N.Y. Mar. 27, 2008).

Thereafter, Fuller asked the district court to instruct the jury, in the event he went to trial, that, in order to find him guilty, it had to find that he had specific intent to violate SORNA's requirements. The district court denied the requested charge, and, instead, indicated that the jury would be given a general intent instruction, and would not be required to find that Fuller sought specifically to violate federal law.

Following the denial of his requested jury charge, Fuller pled guilty pursuant to a conditional plea agreement, which preserved his right to appeal the district court's rulings. Fuller was then sentenced to time served (532 days), 10 years' supervised release, and a $100 special assessment.

DISCUSSION

On appeal, Fuller principally asserts that his conviction under SORNA is improper because his predicate sex offense conviction occurred prior to SORNA's enactment and his relevant interstate travel and failure to register occurred before SORNA became applicable to him as a result of the Attorney General's Interim Ruling. Fuller also argues that his conviction required a showing of specific intent to violate the Act's requirements, which the Government failed to present. These are questions of first impression in this Circuit.

I. SORNA's Statutory Provisions

SORNA was enacted on July 27, 2006, to "protect the public from sex offenders" and to "establish[ ] a comprehensive national system for the registration of those offenders." 42 U.S.C. § 16901. A "sex offender" is defined as an "individual who was convicted of a sex offense," without limitation as to the time of conviction. 42 U.S.C. § 16911(1). SORNA provides criminal liability for "any person who (1) 'is required to register under [SORNA],' (2) 'travels in interstate or foreign commerce,' and (3) 'knowingly fails to register or update a registration.' " Carr, 130 S.Ct. at 2232 (quoting 18 U.S.C. § 2250).

SORNA's registration requirements are as follows:

(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(a)-(c).

Section 16913 also grants the Attorney General certain authority with respect to sex offender registration:

(d) Initial registration of sex offenders unable to comply with subsection (b) of this section

The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before [theenactment of SORNA on] 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.

Id. § 16913(d). Pursuant to this section, on February 28, 2007, the Attorney General issued an Interim Ruling concerning "whether SORNA is applicable where the conviction for the predicate sex offense occurred prior to the enactment of SORNA." 72 Fed.Reg. at 8896. The Interim Ruling stated that

SORNA's direct federal law registration requirements for sex offenders are not subject to any deferral of effectiveness. They took effect when SORNA was enacted on July 27, 2006, and currently apply to all offenders in the categories for which SORNA requires registration.

Id. at 8895. The Attorney General made plain that the Interim Ruling was issued, not because SORNA failed to make its registration rules applicable to pre-SORNA sex offenders, but rather "to specify th[e] scope of application for SORNA, regardless of whether SORNA would apply with such scope absent th[e] rule." Id. at 8896. Thus, the Interim Ruling "foreclose[d] ... claims [that SORNA did not apply upon enactment to pre-SORNA sex offenders] by making it indisputably clear that SORNA applies to all sex offenders ... regardless of when they were convicted." Id.

In Carr, the Supreme Court recently held that criminal liability under SORNA "cannot be predicated on pre-SORNA travel," 130 S.Ct. at 2233, and went on to explain that "[o]nce a person becomes subject to SORNA's registration requirements, which can occur only afte...