U.S. v. Gill

• Decision Date: 15 October 2007
• Docket Number: No. 2:06-CR-00725 PGC.,2:06-CR-00725 PGC.
• Citation: 520 F.Supp.2d 1341
• Parties: UNITED STATES of America, Plaintiff, v. John Henry GILL, Defendant.
• Court: U.S. District Court — District of Utah

Page 1341

520 F.Supp.2d 1341

UNITED STATES of America, Plaintiff, v. John Henry GILL, Defendant.

No. 2:06-CR-00725 PGC.

United States District Court, D. Utah, Central Division.

October 15, 2007.

Karin Fojtik, Salt Lake City, UT, for Plaintiff.

L. Clark Donaldson, Salt Lake City, UT, for Defendant.

MEMORANDUM DECISION GRANTING MOTION TO DISMISS

PAUL G. CASSELL, District Judge.

Defendant John Henry Gill, convicted of a sex offense in 2003, moves this court for an order to dismiss the indictment charging him with failing to register as a sex offender during September and October 2006 — as required by 18 U.S.C. § 2250(a) of the recently enacted Sex Offender Registration Notification Act (SORNA).¹ Mr. Gill alleges that, at least as applied to him, SORNA violates the Ex Post Facto Clause of the Constitution.² Mr. Gill raises two ex post facto challenges. He first argues that the Ex Post Facto Clause blocks any registration requirement for previously convicted offenders. He also argues that, even if SORNA could constitutionally be applied to him, it did not in fact apply to him; he failed to register before the Attorney General had promulgated Interim Rules making SORNA's criminal provision applicable to persons convicted before its effective date. The court agrees with Mr. Gill's second, narrow submission. Because SORNA did not apply to Mr. Gill until the Attorney General issued the Interim Rule in February 2007, and because his alleged failure to register predates the promulgation of that Rule, his indictment violates the Ex Post Facto Clause. Therefore, the court grants Mr. Gill's motion to dismiss.

BACKGROUND

In considering a motion to dismiss, the court views all allegations, and draws reasonable inferences therefrom, in the light most favorable to the government.³ Viewed in that light, the record shows that Mr. Gill was convicted in Idaho of a sex offense (possession of sexually exploitative material) in 2003.⁴ After serving prison time, Mr. Gill was released in March 2006. Before his release, however, Mr. Gill signed a form regarding the Idaho Sex Offender Registry Notification and Registration. Section IV of this form states, "if you move to another state, you must provide written notice of the new address to the Idaho State Police within five (5) days of the move. You must register in the other state within the time period that its statutes require, but not to exceed ten (10) days...." Later that March, Mr. Gill registered as a sex offender in Idaho.

After that, Mr. Gill moved to Utah, but did not register as a sex offender in Utah. In the meantime, on July 27, 2006, President George W. Bush signed into law the Adam Walsh Child Protection Safety Act (AWA),⁵ which (among other things) increased the federal punishment for failing to register as a sex offender from a misdemeanor to a felony.⁶

Mr. Gill was arrested in Utah and, on October 18, 2006, was arraigned on a one-count indictment charging him with violating 18 U.S.C. § 2250(a) for failure to register as a sex offender. In a superseding indictment, the government clarified that Mr. Gill's failure to register occurred between September 19, 2006 and October 2006.

Well after Mr. Gill's indictment — on February 28, 2007 — Attorney General Alberto R. Gonzales promulgated the Interim Rule, specifying that "[t]he 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."⁷ In the pending motion to dismiss, Mr. Gill argues (among other constitutional challenges) that he could not be required to register consistent with the Ex Post Facto Clause. And, he argues that, in any event, he was not in fact required to register until the Attorney General issued the interim rule. The court agrees with his second, narrow submission.

DISCUSSION

At the outset, a bit of statutory background is relevant here. Mr. Gill was indicted under 18 U.S.C. § 2250(a), part of the Adam Walsh Act, for failing to register as a sex offender. On July 27, 2006, President George W. Bush signed the Adam Walsh Act into law. This Act contains SORNA and the Federal Failure to Register as a Sex Offender statute, 18 U.S.C. § 2250(a)(FFR) — the criminal provision at issue here. Under the FFR, any sex offender who (i) is required to register under SORNA,⁸ (ii) travels in interstate commerce, and (iii) "knowingly fails to register or update a registration as required by [SORNA]" is subject to a fine or imprisonment for up to ten years.⁹

The purpose of AWA is to "strengthen and increase the effectiveness of sex offender registration and notification for the protection of the public."¹⁰ Among other things, AWA imposes an independent federal obligation on individuals convicted of a "sex offense" to register with a sex offender registry where they live, go to work, or go to school.¹¹ AWA supersedes the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, which was signed into law in 1994.¹² The Jacob Wetterling Act subjected Mr. Gill to a maximum punishment of one-year imprisonment for a first offense.¹³ In contrast, SORNA, through the FFR, has increased the maximum penalty to ten years imprisonment.¹⁴

SORNA delegates to the Attorney General the authority to specify "the applicability" of SORNA's requirements to sex offenders convicted before the Act took effect. Based on this authority,¹⁵ on February 28, 2007, Attorney General Alberto R. Gonzales specified that "[t]he 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."¹⁶ The Attorney General explained that the Interim Rule makes "it indisputably clear that SORNA applies to all sex offenders regardless of when they were convicted," and that it forecloses all claims that it does not apply to sex offenders "because a rule confirming SORNA's applicability has not been issued.¹⁷

Mr. Gill raises two Ex Post Facto Clause issues. He first contends that the Ex Post Facto Clause does not permit Congress to obligate him, in 18 U.S.C. § 2250(a), to register in the federal registry as a sex offender after he committed his initial sex offense in 2003. In the alternative, Mr. Gill contends that the Attorney General's regulations effectively created criminal penalties for his failure to register after the dates alleged in the indictment, thereby violating the Ex Post Facto Clause. This court has neither interpreted 18 U.S.C. § 2250(a) nor considered any challenges to its constitutionality.¹⁸ The court will address Mr. Gill's two claims in turn, finding the first one meritless and the second one meritorious.

New Registration Requirement

In response to Mr. Gill's first contention that the new registration requirement cannot be applied to him, the government responds that the Supreme Court's decision in Smith v. Doe¹⁹ is controlling. In Smith v. Doe, respondents challenged Alaska's Sex Offender Registration Act (SORA) that required them to register as sex offenders, even though they had been convicted before the Act's enactment.²⁰ The Supreme Court held that the retroactive application of Alaska's Sex Offender Registration Act did not violate the Ex Post Facto Clause because the Act did not impose punishment, the only retroactive action forbidden by the Clause.²¹ Instead, the Act merely provided the public with information about registered sex offenders "so members of the public can take the precautions they deem necessary before dealing with the registrant."²² "The purpose and principal effect of notification," the Court explained, "are to inform the public for its own safety, not to humiliate" or otherwise punish the offender.²³

Smith's interpretation of the Ex Post Facto Clause is controlling here. SORNA's registration requirement is functionally indistinguishable from the Alaskan requirement at issue in Smith.²⁴ Its purpose is not to punish sex offenders like Gill, but instead to inform the public about a registrant's background. Therefore, SORNA's retroactive application to sex offenders convicted before its enactment does not in itself violate the Ex Post Facto Clause, as other courts have concluded.²⁵

Retroactive Interim Rule

Mr. Gill, however, raises a second and more focused challenge to SORNA. He argues that, even if the registration requirements of the Act can be retroactively applied, they did not in fact apply to him in September and October 2006 (the non-registration dates charged in the indictment). Instead, he contends, the Act's requirements — and its criminal penalties — did not become applicable to him until the Attorney General took action several months later (in February 2007) to make them retroactively applicable. The government, on the other hand, responds that SORNA does not violate the Ex' Post Facto Clause for reasons already Set out in Smith v. Doe. For support, the government correctly notes that several other district courts have concluded that SORNA does not violate the Ex Post. Facto Clause when applied to defendants similarly situated to Mr. Gill.²⁶ The government's arguments, however, are not persuasive to this court — just as they have been unpersuasive to many other courts.²⁷

With regard to the Supreme Court's decision in Smith v. Doe, it is enough to observe that the Court had before it only the question of whether constitutionally the legislature could create a new registration requirement applicable to sex offenders who had already committed an offense. The Court did not decide that new criminal penalties could be attached to conduct that had already occurred — the situation before this court.

Perhaps recognizing the weakness of this position, the government alternatively claims that the Interim Rule was not necessary to reach Mr. Gill, as SORNA already applied to him when it took effect on July 27, 2006. If correct, this argument would succeed in...