U.S. v. Gagnon

• Decision Date: 11 August 2008
• Docket Number: No. 08-cr-52-P-S.,08-cr-52-P-S.
• Citation: 574 F.Supp.2d 172
• Parties: UNITED STATES of America, v. Bruce GAGNON, Defendant.
• Court: U.S. District Court — District of Maine

574 F.Supp.2d 172

UNITED STATES of America, v. Bruce GAGNON, Defendant.

No. 08-cr-52-P-S.

United States District Court, D. Maine.

August 11, 2008.

Halsey B. Frank, U.S. Attorney's Office, Portland, ME, for United States of America.

Eric A. Vos, Federal Defender's Office, Portland, ME, for Defendant.

ORDER ON MOTION TO DISMISS INDICTMENT

GEORGE Z. SINGAL, Chief Judge.

Before the Court is Defendant's Motion to Dismiss Indictment (Docket # 21) and Defendant's Supplemental Motion to Dismiss Indictment (Docket # 26). These Motions present multiple challenges to the Sex Offender Registration and Notification Act ("SORNA"), 42 U.S.C. §§ 16901 et seq. As explained herein, the Court ultimately concludes that none of these challenges have merit and, therefore, DENIES the Motions.

I. FACTUAL BACKGROUND

Defendant Bruce Gagnon was indicted on March 12, 2008. The Indictment alleges that on or about February 2, 2007 Gagnon was "a person required to register under the Sex Offender Registration and Notification Act, traveled in interstate commerce and did knowingly fail to register" thereby violating 18 U.S.C. § 2250(a). (Indictment (Docket # 1).) As Defendant himself acknowledges in connection with the pending motion, the Government's claim that Gagnon was required to register as a sex offender arises out of Gagnon's conviction for aggravated felonious sexual assault in New Hampshire. Gagnon was convicted of this felony on December 4, 2000 as the result of a guilty plea.¹ Under the plea deal's terms, Gagnon, who had spent almost a year in pretrial detention, essentially received "time served" plus three years probation. Following this conviction, Gagnon was immediately required to register as a sex offender under the then-applicable New Hampshire statute. As part of the New Hampshire Offender Registration Information Form that Gagnon filled out on December 4, 2000, Gagnon acknowledged and signed the following statement:

I am registering as a convicted sex offender ... pursuant to RSA 651-B:4 through 651-B:6. I understand that I must register with the local law enforcement agency having jurisdiction over my place of residence every year, within 30 days of my registration anniversary date, which is ... 07/20/76.

In addition to registering with the local enforcement agency which has jurisdiction over my place of residence, I understand that if I work or am a student in a state other than New Hampshire, or move out of New Hampshire I should contact the appropriate out-of-state law enforcement agency to determine if I must register in that state as well. I understand that failure to comply with the registration requirements of RSA 651-B may result in criminal charges.

If I change my name or address I must notify the local law enforcement agency with which I last registered within 10 days of such change of name or address, and also register with the local law enforcement agency which has jurisdiction over my new residence within 30 days.

(Gov't Ex. 3 (Docket # 23-4).)

From December 2000 through July 2005, Gagnon diligently complied with the New Hampshire registration requirements, filing updated registration forms with the New Hampshire authorities on December 11, 2000, December 26, 2000, January 6, 2001, June 11, 2003,² July 20, 2003, November 19, 2003, December 17, 2003, February 27, 2004, July 22, 2004, August 23, 2004, April 12, 2005, May 4, 2005, and July 26, 2005. (See Gov't Exs. 4-6 (Docket # s 23-5-23-7), Gov't Ex. 10 (Docket #s 23-11), Gov't Exs. 12-21 (Docket # 23-13-23-22).) In July 2006, Gagnon was due to file an annual update of his New Hampshire sex offender registration. After he failed to do so, a complaint was filed in New Hampshire state court and Gagnon was arrested on September 13, 2006. (See Ex. 22 (Docket # 23-23).) The judge ordered him to update his registration by September 18, 2006 and Gagnon complied by filing an updated registration form by that deadline. (See Ex. 24 (Docket # 23-25).) Approximately two months later, Defendant was again charged with failure to update his New Hampshire sex offender registration after he apparently moved from the address listed in the September 18, 2006 registration form. (See Ex. 25 (Docket # 23-26).) He ultimately pled guilty to this charge on December 22, 2006 and was released on December 24, 2006. Prior to his guilty plea and while he was in pretrial detention, Gagnon did file an updated sex offender registration form dated December 4, 2006. This is apparently the last sex offender registration form filed by Gagnon.

Some time after his release on December 24, 2006, Gagnon moved to Maine and signed a lease for an apartment beginning on February 2, 2007. However, he did not notify the New Hampshire authorities of this new Maine address. As of February 29, 2007, Gagnon had not registered with the Maine Sex Offender Registry. (See Ex. 29 (Docket # 23-30).)

Pursuant to Maine law, there is no doubt that Gagnon was required to register as a sex offender upon moving to Maine. See 34-A M.R.S.A. §§ 11202(2) & 11203(7) & (8). By the time Gagnon moved to Maine, the federal government had also enacted SORNA.

II. SORNA BACKGROUND

SORNA was enacted on July 27, 2006 as part of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587. Building on earlier federal legislation that encouraged states to set up statewide sex offender registries, SORNA's aim is to establish a nationwide network of sex offender registration and notification programs as well as improve the enforcement of sex offender registration requirements.

SORNA applies broadly to a defined class of "sex offenders," which includes persons convicted of child pornography offenses as well as almost all offenses involving sexual conduct. See 42 U.S.C. § 16911. SORNA lays out the following requirements for initial registration and updated registration by sex offenders:

(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.

(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 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.

(e) State penalty for failure to comply

Each jurisdiction, other than a Federally recognized Indian tribe, shall provide a criminal penalty that includes a maximum term of imprisonment that is greater than 1 year for the failure of a sex offender to comply with the requirements of this subchapter.

42 U.S.C. § 16913.

SORNA also provides a federal penalty for anyone required to register who knowingly fails to register or update a registration and "travels in interstate or foreign commerce." 18 U.S.C. § 2250(a).

Responding to the directive contained in § 16913(d), the Attorney General initially announced an interim rule that became effective on February 28, 2007. See 72 Fed. Reg. 8894 (Feb. 28, 2007). Pursuant to this rule, the Attorney General declared that SORNA's requirements applied "to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of [SORNA]." 28 C.F.R. § 72.3 (2007). The Attorney General then followed up with more detailed proposed guidelines that were subject to notice and comment. See 72 Fed. Reg. 30210 (May 30, 2007). The Attorney General's final regulations on the interpretation and implementation of SONA became effective on July 2, 2008, after the pending Motion to Dismiss was filed.³ See 73 Fed. Reg. 38030 (July 2, 2008).

III. DISCUSSION

A. SORNA's Applicability to the Allegations Here

Given the timeline laid out above, the Court begins its discussion with some clarification of the SORNA provisions applicable to this case. First, the Court does not believe that the allegations here, if true, create a record of Gagnon failing to comply with the initial registration requirements discussed in 42 U.S.C. § 16913(b) & (d). Because Gagnon was already a registered sex offender when SORNA was enacted, SORNA only required him to keep his registration current on and after July 26, 2006. To the extent that Defendant argues that the passage of SORNA should be construed to mean that all registered sex offenders were once again required to initially register pursuant to § 16913(b) & (d), the Court simply does not believe that such a reading of the statute is warranted by the statutory language or common sense. While subsections (b) and (d) when read together seem to contemplate the need for clarification as to "initial registrations" by...