U.S. v. Hardeman, CR 08-0847 WHA.

• Decision Date: 23 January 2009
• Docket Number: No. CR 08-0847 WHA.,CR 08-0847 WHA.
• Citation: 598 F.Supp.2d 1040
• Parties: UNITED STATES of America, Plaintiff, v. Gary HARDEMAN, Defendant.
• Court: U.S. District Court — Northern District of California

598 F.Supp.2d 1040

UNITED STATES of America, Plaintiff, v. Gary HARDEMAN, Defendant.

No. CR 08-0847 WHA.

United States District Court, N.D. California.

January 23, 2009.

Denise Marie Barton, United States Attorney's Office, San Francisco, CA, for Plaintiff.

Daniel Paul Blank, Federal Public Defender's Office, San Francisco, CA, for Defendant.

ORDER DENYING MOTION TO DISMISS INDICTMENT

WILLIAM ALSUP, District Judge.

INTRODUCTION

In this federal prosecution for failure to register as a sex offender under the Sex Offender Registration and Notification Act, defendant moves to dismiss the indictment on the grounds that the Act violates the Commerce Clause and that he was not in fact required to register as a sex offender under the Act. For the reasons stated below, defendant's motion to dismiss the indictment is DENIED.

STATEMENT

In November 2008, defendant Gary Hardeman was indicted on one count of failure to register as a sex offender between October 23, 2007, and February 21, 2008. The indictment alleges that defendant was required to register under the Sex Offender Registration and Notification Act, 18 U.S.C. 2250(a), traveled in interstate commerce (to Mexico) and thereafter failed to register.

The criminal complaint explains that in April 1980, defendant was convicted under California Penal Code Section 288 for lewd and lascivious acts upon a child, and that in October 1986, defendant was convicted under California Penal Code 647a for annoying and molesting children.

The complaint alleges that, as a result of these convictions, defendant was required by California law and SORNA to register as a sex offender. Defendant was contacted by San Francisco Police Detective Jim Serna in September 2007 regarding defendant's failure to register; defendant explained that the criminal convictions had been expunged, and he therefore believed that he was not required to register. Detective Serna informed him that, notwithstanding the expungement of his criminal convictions, California law nevertheless required him to register. Defendant signed a Notice of Sex Offender Registration Requirement acknowledging his lifelong responsibility to register as a sex offender and to update his registration at specified times.

The complaint indicates that defendant has traveled to Mexico during the winter each of the past seven years, most recently, departing for Mexico City on October 23, 2007, and returning February 18, 2008. As of November 3, 2008, defendant had failed to register as a sex offender. Defendant was indicted soon thereafter.

ANALYSIS

Congress enacted the Sex Offender Registration and Notification Act ("SORNA" or "Act") in July 2006. The Act's stated purpose is as follows: "to protect the public from sex offenders and offenders against children . . . Congress in this chapter establishes a comprehensive national system for the registration of those offenders." 42 U.S.C. 16901. It mandated that each state maintain a sex offender registry and provided certain minimum requirements for the states' registration systems. Id. at §§ 16911-16918. SORNA supplemented earlier sex offender legislation promulgated in the Jacob Wetterling Act, which had provided incentives for states to enact sex offender registration laws. By 1996, every state and the District of Columbia had enacted such laws.

SORNA contained a registration requirement, 42 U.S.C. 16913, and created criminal penalties for failing to register in accordance with those requirements. 18 U.S.C. 2250(a). Section 16913 required that "[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." According to this provision, therefore, federal law required offenders to register under the appropriate state's existing registration system. The term "sex offender" was defined as "an individual who was convicted" of certain enumerated categories of crimes. § 16911(1), (5). Section 16913 also prescribed, inter alia, requirements for the timing for initial registration and for keeping the registration current.

Section 2250(a), in turn, created the crime of failure to register, which subjects the following persons to criminal penalties:

Whoever—

(1) is required to register under the Sex Offender Registration and Notification Act;

(2)(A) is a sex offender ... by reason of a conviction under Federal law . . .; 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;

18 U.S.C. 2250(a) (emphasis added).

Defendant moves to dismiss the indictment on the grounds (1) that SORNA violates the Commerce Clause in multiple respects, and (2) that at all events he was not a "sex offender" (and thus required to register) within the meaning of the Act because the alleged predicate convictions had been dismissed, and contrary interpretation of the Act would result in a prosecution that contravenes his constitutional rights under Apprendi.

1. COMMERCE CLAUSE.

Defendant contends that both SORNA's criminal-enforcement provision, 18 U.S.C. 2250(a), and its registration requirement, 42 U.S.C. 16913, violate the Commerce Clause. The government responds that both are a valid exercise of Congress' authority under the Commerce Clause, and that Section 16913 is also justified under the Necessary and Proper Clause as a means to execute a congressional purpose otherwise justified under the Commerce Clause.

The Supreme Court has "identified three broad categories of activity that Congress may regulate under its commerce power": (1) "the channels of interstate commerce;" (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities; and (3) "activities that substantially affect interstate commerce." United States v. Lopez, 514 U.S. 549, 558, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). The government contends that SORNA is valid under the first two Lopez prongs. It stated in its briefing, and confirmed at the hearing, that it does not defend the constitutionality of SORNA under the third Lopez prong.

A. Section 2250(a).

Defendant alleges that Section 2250(a) cannot be sustained as a regulation of the channels of interstate commerce, nor of the instrumentalities of commerce or persons or things in interstate commerce, because the criminal provision requires no nexus whatsoever between the jurisdictional interstate travel requirement and the crime or actus reus itself, i.e., failure to register when required to do so. The government responds that Section 2250(a) falls within the Commerce Clause power because it contains a jurisdictional element linking its reach to the use or movement of people in the channels of interstate commerce—the statutory requirement that a defendant have traveled "in interstate or foreign commerce."

Two district judges have found SORNA unconstitutional (at least in part) as unjustified under the first two Lopez prongs. United States v. Myers, 591 F.Supp.2d 1312 (S.D.Fla.2008) ("The jurisdictional element of 'interstate travel' is an indefinite requirement that only requires a person to have traveled in interstate commerce. The purpose attached to the travel is left unstated and is utterly divorced from the activity being regulated: knowingly failing to register as a sex offender"); United States v. Powers, 544 F.Supp.2d 1331, 1333-34 (M.D.Fla.2008) ("we are clearly not dealing with the regulation of channels or instrumentalities of commerce. Nor are we dealing with the regulation of persons or things in interstate commerce. This is not a case where the interstate travel is intended to further the crime itself").

Numerous decisions, however, have sustained the Act under the first two Lopez prongs. See, e.g., United States v. May, 535 F.3d 912 (8th Cir.2008); United States v. Lawrance, 548 F.3d 1329 (10th Cir. 2008); United States v. Beasley, 2007 WL 3489999, *9 (N.D.Ga.2007).

It is true that the statute requires no nexus between the travel requirement and the proscribed conduct. The Eighth Circuit upheld SORNA under the first two Lopez prongs, explaining that:

Congress may forbid or punish use of interstate commerce "as an agency to promote immorality, dishonesty or the spread of any evil or harm to the people of other states from the state of origin". . . . Congressional regulation of the channels of interstate commerce has also been upheld when the punishment "was intended to prevent the use of interstate commerce to facilitate ... forms of immorality."

May, 535 F.3d at 921-22 (quoting Brooks v. United States, 267 U.S. 432, 436, 45 S.Ct. 345, 69 L.Ed. 699 (1925)). See also United States v. Lawrance, 548 F.3d 1329 (10th Cir.2008) (similar). SORNA, however, may well reach situations where interstate commerce was neither used as an agency to promote immorality nor to spread evil or harm to other states—for example, if a defendant traveled across state lines only prior to committing a sex offense and being required to register. See United States v. Myers, 591 F.Supp.2d 1312 (S.D.Fla.2008) (analyzing Section 2250(a)'s potentially expansive reach under each Lopez prong).¹

The closest analogy may be found in Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977). That decision upheld a gun control statute reaching anyone who "receives" or "possesses" a firearm "in commerce or affecting commerce," explaining that the decision "[saw] no indication that Congress intended to require any more than the minimal nexus that the firearm have been, at some time, in interstate commerce." Id. at 575, 97 S.Ct. 1963. This holding has been termed the "minimal nexus" requirement. The continuing viability of Scarborough has been questioned given the Supreme Court's...