U.S. v. Gillette

• Decision Date: 07 April 2008
• Docket Number: Crim. No. 2007-0050.
• Citation: 553 F.Supp.2d 524
• Parties: UNITED STATES of America, Plaintiff, v. Ronald Edward GILLETTE aka Gary Lee Brown, Defendant.
• Court: U.S. District Court — Virgin Islands

553 F.Supp.2d 524

UNITED STATES of America, Plaintiff, v. Ronald Edward GILLETTE aka Gary Lee Brown, Defendant.

Crim. No. 2007-0050.

District Court, Virgin Islands, D. St. Croix.

April 7, 2008.

COPYRIGHT MATERIAL OMITTED

MEMORANDUM

FINCH, District Judge.

THIS MATTER comes before the Court on Defendant Ronald Gillette's Motion for Judgment of Acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. Count 1 of the Superseding Indictment charges Gillette with failing to register under the Sex Offender Registration Notification Act in violation of 18 U.S.C. § 2250(a). Gillette claims that prosecuting him under this law would violate the Ex Post Facto Clause.

I. THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

The Sex Offender Registration and Notification Act, (SORNA), Title I of the Adam Walsh Child Protection and Safety Act of 2006, (the Walsh Act), Pub.L. 109-248, 120 Stat. 587 (2006), created a national system for registration of sex offenders. To implement this system, SORNA requires every sex offender to register and keep the registration current in each jurisdiction in which he lives, works, or is a student. See 42 U.S.C. § 16913(a). Pursuant to SORNA, a sex offender who is required to register under SORNA, who travels in interstate commerce, and knowingly fails to register or update a registration as required under SORNA may be imprisoned for up to ten years.¹ 18 U.S.C. § 2250(a). Upon signing the Walsh Act, President George Bush stated that "these improvements will help prevent sex offenders from evading detection by moving from one state to the next." 2006 U.S.C.C.A.N. S35, S36 (2006).

Between 1994 and July 27, 2006, the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, Pub.L. 103-322, tit. XVII, 108 Stat. 2038, (1994), made a sex offender's first offense a misdemeanor, reserving the maximum 10-year sentence for second and subsequent offenses. 42 U.S.C. § 14072(g)(3), (i). With the enactment of the Walsh Act, the maximum penalty for a sex offender's first offense for failure to register was increased to ten years imprisonment. 18 U.S.C. § 2250(a).

II. FACTS

On November 10, 1983, Gillette was convicted in New Mexico of child molestation offenses related to sexual activity with a 12 year old boy. He was sentenced to 27 years imprisonment and served 18 years. In 2003, Gillette took up residence in St. Croix, Virgin Islands. According to Gillette, he has not relocated from St. Croix, Virgin Islands since then. The Government has failed to prove otherwise; it has presented no evidence to suggest that Gillette traveled in interstate commerce subsequent to July 27, 2006.

III. DISCUSSION

A. 18 U.S.C. § 2250 is Punitive and Onerous, Barring its Retrospective Application

Article 1, § 9 of the U.S. Constitution states that "[n]o Bill of Attainder or ex post facto Law shall be passed." "Since the enactment of the Constitution, the purpose of the Ex Post Facto Clause has been to prevent government from enacting statutes with `manifestly unjust and oppressive' retroactive effects." United States v. Madera, 474 F.Supp.2d 1257, 1262 (M.D.Fla.2007) (quoting Colder v. Bull, 3 U.S. (3 Dall.) 386, 391, 1 L.Ed. 648 (1798) (Chase, J.)). Therefore, "the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them." Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). "[A] statute will not violate the ex post facto clause if it is designed to be nonpunitive and regulatory and the plaintiff cannot establish by the clearest proof that the state's choice was excessive in relation to its legitimate regulatory purpose." United States v. Carr, 2007 WL 3256600, at *2 (N.D.Ind. Nov.2, 2007). "As a consequence, the legal analysis properly begins with a consideration of whether the statute is criminal or civil." United States v. Kent, 2008 WL 360624, at *3 (S.D.Ala. Feb.8, 2008).

The Government encourages the Court to find, as other district courts have found, that retrospective application of SORNA does not violate the Ex Post Facto Clause because SORNA is civil in nature and nonpunitive. The district courts that have found that retrospective prosecution under SORNA does not violate the Ex Post Facto Clause have misconstrued the Supreme Court's decision in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). See, e.g., Carr, 2007 WL 3256600; United States v. Hulen, 2007 WL 2343885 (W.D.Ark. Aug.15, 2007); United States v. Manning, 2007 WL 624037 (W.D.Ark. Feb.23, 2007); United States v. Templeton, 2007 WL 445481 (W.D.Okla. Feb.7, 2007); Madera, 474 F.Supp.2d 1257. "Smith is not comparable to the instant case." United States v. Smith, 481 F.Supp.2d 846, 852 (E.D.Mich.2007).

In Smith, involving a § 1983 action, the Supreme Court was asked to "decide whether the registration requirement is a retroactive punishment prohibited by the Ex Post Facto Clause." Smith, 538 U.S. at 89, 123 S.Ct. 1140. In fact, "[t]he only issue before the court was whether the registration and notification scheme, by itself, violated ex post facto." Kent, 2008 WL 360624, at *4. "Nothing in the Smith case indicates that the respondents were facing criminal prosecutions or jail time for failing to comply with the registration and notification scheme." Id. at *4.

The Alaska Sex Offender Registration Act, (ASORA), analyzed in Smith, contains two components: a registration requirement and a notification system. Smith, 538 U.S. at 89, 123 S.Ct. 1140. A sex offender who knowingly fails to comply with ASORA is subject to criminal punishment. Id. The Supreme Court noted that ASORA, itself, however, "imposes no physical restraint, and so does not resemble the punishment of imprisonment which is the paradigmatic affirmative disability or restraint." Id. at 100, 123 S.Ct. 1140. Indeed, ASORA "does not restrain activities sex offenders may pursue but leaves them free to change jobs or residences." Id. "Smith referenced two statutes that provide criminal penalties for failing to register under [ASORA] ... [but] did not address what impact, if any either of those two statutes had on its analysis." Kent, 2008 WL 360624, at *3.

The Supreme Court observed that the registration requirement is related only to the sex offender's past offenses. "The regulatory scheme applies only to past conduct.... The obligations the statute imposes are the responsibility of registration, a duty not predicated upon some present or repeated violation." Smith, 538 U.S. at 105, 123 S.Ct. 1140.

In contrast, prosecution for failure to register, in the Supreme Court's eyes, is a separate and distinct offense: "A sex offender who fails to comply with the reporting requirement may be subjected to a criminal prosecution for that failure, but any prosecution is a proceeding separate from the individual's offense." Id. at 101-102, 123 S.Ct. 1140.

Smith precludes any ex post facto attack upon SORNA's registration and notification requirements. United States v. Pitts, 2008 WL 474244, at *3 (M.D.La. Feb.14, 2008). However, the Supreme Court never touched on whether punishing a sex offender for failing to comply with registration requirements established subsequent to the sex offender's failure to register under some previous regime would violate the Ex Post Facto Clause. The Supreme Court ruled only that it did not violate the Ex Post Facto Clause to require a sex offender to comply with ASORA's registration requirements, in that such compliance did not constitute punishment. United States v. Deese, 2007 WL 2778362, at *4, n. 7 (W.D.Okla. Sept.21, 2007) (recognizing that "[a]t issue in Smith was whether the registration itself —and the resulting publication of that information—constituted punishment"). Thus, Smith does not even remotely stand for the proposition that retrospective punishment for failure to register, under ASORA or SORNA, is permissible under the Ex Post Facto Clause. United States v. Sallee, 2007 WL 3283739, at *3, n. 7 (W.D.Okla. Aug.13, 2007) (noting that Smith did not address criminal penalties associated with failure to register as sex offender, but only whether registration, itself, constitutes punishment); Deese, 2007 WL 2778362 at *4, n. 7 (same).

Unlike ASORA, 18 U.S.C. § 2250 is neither civil in nature nor nonpunitive; it imposes a possible ten year sentence. United State v. Bonner, 2007 WL 4372887, at *2 (S.D.Ala. Dec. 11, 2007). Even if the Walsh Act, as a whole, may be considered a civil regulatory scheme, there is no justification for viewing § 2250 in the context of the complete statutory regime, since the other provisions of the Walsh Act do not alter the fact that § 2250 is both "punitive and more onerous than its predecessor." Kent, 2008 WL 360624, at *4-5. "The Government's attempt to hide the enhanced penalties in § 2250 under the greater `civil' purpose of SORNA runs afoul of the longstanding rule that `the ex post facto effect of a law cannot be evaded by giving a civil form to that which is essentially criminal.'" Smith, 481 F.Supp.2d at 853 (quoting Burgess v. Salmon, 97 U.S. 381, 385, 24 L.Ed. 1104 (1878)). Moreover, the structure of the Walsh Act, unlike ASORA, "tends to show that Congress intended for portions of the Act to be civil and for others to be criminal." Kent, 2008 WL 360624, at *5. Indeed, Congress selected "criminal" for failure to register by including "the felony failure to register violation in Title 18 of the Federal Code: Crimes and Criminal Procedure." Smith, 481 F.Supp.2d at 852-53.

"§ 2250 is clearly a criminal, punitive statute." Kent, 2008 WL 360624, at *3. "Therefore, 18 U.S.C. § 2250 is subject to an ex post facto analysis." Bonner, 2007 WL 4372887, at *2.

A law violates the Ex Post Facto Clause if it (1) punishes as a crime an act that was not criminal when it was committed; (2) makes a crime's punishment greater than when the crime was committed; or (3) dep...