U.S. v. Hernandez

• Decision Date: 18 May 2009
• Docket Number: No. 08-CR-20534-DT.,08-CR-20534-DT.
• Citation: 615 F.Supp.2d 601
• Parties: UNITED STATES of America, Plaintiff, v. Jose HERNANDEZ, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

615 F.Supp.2d 601

UNITED STATES of America, Plaintiff, v. Jose HERNANDEZ, Defendant.

No. 08-CR-20534-DT.

United States District Court, E.D. Michigan, Southern Division.

May 18, 2009.

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Jeanine Jones, U.S. Attorney's Office, Detroit, MI, for Plaintiff.

Loren E. Gross-Khogali, Miriam L. Siefer, Federal Defender, Federal Defender Office, Detroit, MI, for Defendant.

OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS INDICTMENT

GERALD E. ROSEN, Chief Judge.

I. INTRODUCTION

Defendant, Jose Hernandez, is charged in a one-count indictment for failure to update his registration as a sex offender under the Sex Offender Registration and Notification Act ("SORNA"), in violation of 18 U.S.C. § 2250. On January 6, 2009, Defendant filed the instant Motion to Dismiss Indictment. The Government responded to Defendant's Motion. The Court heard the oral arguments of counsel on this matter on March 23, 2009 and, at the close of the hearing, ordered the parties to submit supplemental briefs by March 31, 2009. Counsel have complied with the Court's order.

Having reviewed and considered the parties briefs, the oral arguments of counsel, and the Court's entire record of this matter, the Court is now prepared to rule on Defendant's Motion. For the reasons set forth below, Defendant's Motion to Dismiss his Indictment will be denied.

II. FACTUAL BACKGROUND

In 1999, Defendant Jose Hernandez was convicted under Ohio law of Corruption of a Minor in violation of Ohio Revised Code, § 2907.04. The conviction arose from a sexual relationship between Hernandez, who was at the time 19 years old, and his then 13-year-old girlfriend,¹ that resulted in pregnancy and the birth of their child on February 5, 1999. When Hernandez attempted to sign the child's birth certificate, the hospital notified children's services, and charges were filed against him.

On May 12, 1999, Hernandez pled guilty to, and was convicted of, corruption of a minor, a misdemeanor in the first degree, in the Lucas County, Ohio Court of Common Pleas. He was sentenced to two years of probation. As an additional consequence of his conviction, Hernandez was classified as a "Sexually Oriented Offender," pursuant to Ohio law, and ordered to register as a sex offender under state law for a period of ten years. As part of being a registered sex offender, Hernandez was required to regularly verify his address with the Lucas County, Ohio Sheriff's Department.

Defendant initially registered as a sex offender in Lucas County, Ohio, in 1999. However, he failed to register and/or verify his address in 2000, 2001, 2002, 2004, 2006, and 2008. Moreover, Defendant was prosecuted twice in Ohio—in 2004 and 2006—for failure to verify his address, which resulted in terms of imprisonment of 60 days and eight months, respectively.

The present indictment for failure to register as a sex offender in violation of 18 U.S.C. § 2250(a), stems from Defendant's failure to register or verify his address after he moved to Michigan from Ohio in August 2007.²

18 U.S.C. § 2250(a) provides:

(a) In general.—Whoever—

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

(2)(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; 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; shall be fined under this title or imprisoned not more than 10 years, or both.

Defendant now moves to dismiss the Indictment raising a number of theories. Specifically, Hernandez argues that

(1) he was not required to register as a sex offender under the SORNA;

(2) prosecuting him under 18 U.S.C. § 2250 violates the Ex Post Facto Clause;

(3) Congress' delegation of authority to the Attorney General violates the Separation of Powers;

(4) the Attorney General's Interim Rule violates the Administrative Procedures Act;

(5) 18 U.S.C. § 2250 violates the Commerce Clause;

(6) the failure of SORNA to provide a mechanism to challenge a person's designation or registration as a sex offender violates due process;

(7) Hernandez has no duty to register because no jurisdiction has implemented SORNA;

(8) SORNA violates the Tenth Amendment of the Constitution.

III. DISCUSSION

A. THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

On July 27, 2006, President Bush signed into law the Adam Walsh Act Child Protection and Safety Act of 2006 (the "AWA"). Title I of the AWA, entitled the Sex Offender Registration and Notification Act ("SORNA"), created a national sex offender registration law. 42 U.S.C. § 16901-62. In relevant part, SORNA requires persons who are "sex offenders," as defined under the Act, to register and maintain current information in each jurisdiction (a) where the offender was convicted, (b) where the offender resides, (c) where the offender is employed and/or attends school, and (d) requires that the offender register prior to his release from prison, or no later than three business days after any change in residence, employment or student status. 42 U.S.C. §§ 16911, 16913(a)-(c). The SORNA also requires that each state establish an internet website, publishing information about sex offenders registered in its jurisdiction. Id. § 16918.

The SORNA also establishes a "National Sex Offender Public Website" to be maintained by the Attorney General, which shall include "relevant information for each sex offender and other person listed on a jurisdiction's website," and make "relevant information" publicly accessible. Id. § 16920. It also requires that each state include in the design of its own website all field search capabilities needed for full participation in the national website. Id. § 16918.

Finally, the AWA created a new federal crime for persons who are required to register under the SORNA but fail to do so. 18 U.S.C. § 2250. With regard to the new crime, Congress delegated to the Attorney General the authority to determine whether the SORNA is applicable to persons convicted of qualifying offenses before July 27, 2006, the date of the statute's enactment, as well as to those who were convicted "before ... its implementation in a particular jurisdiction." 42 U.S.C. § 16913(d). Congress also delegated to the Attorney General the authority to promulgate regulations to ensure that those persons, and anyone who cannot receive notice of their SORNA registration duties (because they already served their incarceration terms), be notified of their duties and are registered. Id. §§ 16913(b), (d), 16917(a), (b). The SORNA requires all states, the District of Columbia, and several federally recognized jurisdictions to "substantially implement" the SORNA requirements by July 27, 2009. Id. §§ 16924(a)(1), 16925(a).

On February 28, 2007, the Attorney General promulgated an interim rule which was given immediate effect, applying the SORNA to all persons convicted of a qualifying sex offense at any time, including offenders whose convictions occurred prior to the enactment of the statute. 28 C.F.R. § 72.3.

B. DEFENDANT'S ARGUMENTS FOR DISMISSAL OF THE INDICTMENT

1. Applicability of SORNA to Defendant.

Defendant's first argument for the dismissal of the indictment is that he was not legally required to register as a sex offender under SORNA between October 2006 and 2008. He claims that, absent the promulgation of regulations by the Attorney General providing him with notice of his duties to register and specifying the means for doing so, he was not required to register under SORNA. Defendant further argues that the Interim Rule promulgated by the Attorney General in February 2007 does not provide a mechanism nor any procedures for state jurisdictions to inform those convicted pre-SORNA with notice of their SORNA registration obligations. He further argues that even the recently released Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking ("SMART") Guidelines fail to provide the means and mechanisms to give persons in Defendant's position notice of their SORNA registration obligations. Moreover, Defendant argues that no states have "substantially implemented" SORNA. (Defendant's Motion to Dismiss Indictment at ¶ 8). Therefore, Defendant argues that SORNA's registration requirements should not apply to him because there are no procedures in place to notify him of his registration obligation, and neither Michigan nor Ohio had substantially implemented SORNA at the time he is alleged to have committed the charged violation of § 2250(a).

With regard to his arguments, Defendant cites the following excerpt from the SMART Guidelines:

With respect to sex offenders with pre-SORNA or pre-SORNA-implementation convictions who remain in the prisoner, supervision, or registered sex offender populations at the time of implementation ... jurisdictions should endeavor to register them in conformity with SORNA as quickly as possible, including fully instructing them about the SORNA requirements, obtaining signed acknowledgment of such instructions, and obtaining and entering into the registry all information about them required under SORNA. But this may entail newly registering or re-registering a large number of sex offenders in the existing sex offender population, and it may not be feasible for a jurisdiction to do so immediately. Jurisdictions are accordingly authorized to phase in SORNA registration for such sex offenders in conformity with the appearance schedule of SORNA § 116. In other words, sex offenders in these existing sex offender populations who cannot be registered within the...