U.S. v. Hinen

• Decision Date: 12 May 2007
• Docket Number: No. 2:07CR00005.,2:07CR00005.
• Citation: 487 F.Supp.2d 747
• Parties: UNITED STATES of America v. Richard Dean HINEN, Defendant.
• Court: U.S. District Court — Western District of Virginia

487 F.Supp.2d 747

UNITED STATES of America v. Richard Dean HINEN, Defendant.

No. 2:07CR00005.

United States District Court, W.D. Virginia, Big Stone Gap Division.

May 12, 2007.

COPYRIGHT MATERIAL OMITTED

Zachary T. Lee, Special Assistant United States Attorney, Abingdon, VA, for United States.

Nancy Dickenson, Assistant Federal Public Defender, and Christine Madeleine Spurell, Research and Writing Attorney, Office of the Federal Public Defender, Abingdon, VA, for Defendant.

OPINION AND ORDER

JONES, Chief United States District Judge.

The defendant, charged with failing to register as a sex offender under the new Sex Offender Registration and Notification Act, has moved to dismiss the indictment on constitutional and procedural grounds. For the reasons set forth, the motion will be denied.

I

By indictment returned March 6, 2007, it was charged that between August 1, 2006, and February 17, 2007, the defendant Richard Dean Hinen, while being a person required to register pursuant to the Sex Offender Registration and Notification Act, traveled in interstate commerce and failed to register or update his sex offender registration, in violation of 18 U.S.C.A. § 2250 (West Supp.2007). The defendant was convicted in a Virginia state court on July 19, 2001, of taking indecent liberties with a child. On September 10, 2001, he registered as a sex offender as required under Virginia law. See Va.Code Ann. §§ 9.1-900 to 9.1-921, (2006). He served a term of probation that ended on July 26, 2006. The government contends that he moved his residence to Tennessee in August of 2006 but did not thereafter register or update his registration.¹

In his Motion to Dismiss the Indictment, the defendant contends that he was not required to register as alleged in the indictment, because the Attorney General had not adopted a rule construing the relevant statute by the dates charged. He also asserts that the statute is unconstitutional. Finally, he argues that venue in this district is improper. These arguments will be considered seriatim.

II

Title I of the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act") encompasses the Sex Offender Registration and Notification Act ("SORNA") Pub.L. 109-248, §§ 1-155, 120 Stat. 587, 590-611 (2006). The Adam Walsh Act, including SORNA, was approved by the President on July 27, 2006. SORNA created a new federal offense of failing to register as a sex offender ("FFR"), with a maximum penalty of ten years imprisonment. See 18 U.S.C.A. § 2250.² The elements of the crime as applicable to the present case are that the defendant (1) was required to register under SORNA; (2) traveled in interstate commerce; and (3) knowingly failed to register or update a registration as required by SORNA. Id. at § 2250(a). SORNA requires a person convicted of a sex offense to register, and keep the registration current, in each jurisdiction where the offender resides. 42 U.S.C.A. § 16913 (West Supp.2007).

In addition to this new federal crime, SORNA revised the national standards for sex offender registration and notification and requires the states to incorporate these new standards in their own laws or face a reduction in federal funding. See id. § 16925(a). The states are given three years to comply with the new standards, with possible extensions. Id. § 16924.

SORNA provides that a sex offender must initially register before completing a sentence of imprisonment or not later than three days after being sentenced, if not sentenced to imprisonment. Id. at 16913(b). Thereafter, a sex offender must appear in person in at least one jurisdiction in which he is required to register and inform it of changes in information, such as change of residence. Id. at 16913(c). SORNA delegates to the Attorney General the authority

to specify the applicability of the requirements of [SORNA] to sex offenders convicted before the enactment of this Act 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).

Id. at 16913(d).

On February 28, 2007, the Attorney General issued an interim rule providing that "[t]he requirements of the Sex Offender Registration and Notification Act apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of the Act." 28 C.F.R. § 72.3 (2007).

The defendant argues that he was not required to register under SORNA because the Attorney General had not adopted the rule delegated in § 16913(d) until after the dates alleged in the indictment. I disagree.

The plain language of SORNA requires an offender to register, without regard to any construction of the statute by the Attorney General. The delegation provision of the statute refers to persons who, prior to the enactment of SORNA's revised standards, were not required to register by their state's registration law. See United States v. Templeton, No. CR-06-291-M, 2007 WL 445481, at *4 (W.D.Okla. Feb.7, 2007) (holding that § 16913(d) only applies to individuals who were unable to initially register and not to a defendant who was able to register under his state's pre-SORNA law); see also United States v. Manning, No. 06-20055, 2007 WL 624037, at *2 (W.D.Ark. Feb.23, 2007) ("A defendant can violate the law by failing to register or update a SORNA imposed registration obligation or a registration obligation imposed by another law."). Thus the Attorney General's rule makes no difference as to the present case, as long as the government can prove that the defendant was required to register or update his registration under the existing state law of his residence.³

III

The defendant raises numerous arguments regarding the constitutionality of SORNA. He claims it is both unconstitutional on its face and as applied to sex offenders convicted before the date of its enactment. A facial challenge asserts that the statute is unconstitutional in all situations while an as-applied challenge attacks the statute's application only to the party before the court. Giarratano v. Johnson, 456 F.Supp.2d 747, 750 (W.D.Va.2006).

The defendant first argues that as applied to him — a sex offender convicted before July 27, 2006 — SORNA is unconstitutional because the statute's grant of authority to the Attorney General under 42 U.S.C.A. § 16913(d) violates the nondelegation doctrine of the Constitution. This argument is premised on the defendant's interpretation that § 16913(d) gives the Attorney General the exclusive authority to decide whether all sex offenders convicted prior to July 27, 2006, should be subject to the registration requirements imposed by SORNA and how they should comply with the terms of the statute. The defendant argues that by passing SORNA Congress has given the "Attorney General the authority to decide what the law is, to whom it applies, and how it should be complied with." (Def.'s Br. at 12.)

If Congress has abdicated part of its core constitutional functions to another branch of government, as the defendant claims, this would raise serious constitutional questions. See Touby v. United States, 500 U.S. 160, 165, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991) ("Congress may not constitutionally delegate its legislative power to another branch of Government."). It is deeply rooted in the landscape of our constitutional law that one branch of government many not cede functions exclusively granted to it by the Constitution to another branch. See Marshall Field & Co. v. Clark, 143 U.S. 649, 692, 12 S.Ct. 495, 36 L.Ed. 294 (1892) ("That congress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the constitution.").

However, as explained above, a plain reading of the statute shows that Congress has only delegated authority to the Attorney General to issue a rule covering the limited instance where a person who is classified as a sex offender under SORNA is unable to currently register as such in a jurisdiction where he resides, works, or is a student. Such an inability may be rare, but possible, considering that Congress has classified a number of offenses as sex crimes for which some states have traditionally not required registration. See 42 U.S.C.A. § 16911 (West Supp.2007). Furthermore, Congress has determined that all persons guilty of certain enumerated offenses are "sex offenders" regardless of the date of their conviction. Some states exempt certain offenders from registering depending on the dates of their convictions or remove their names from the registry after a certain number of years of good behavior. See, e.g., Va.Code Ann. § 9.1-901(A) (requiring only those convicted of sex offenses after July 1, 1994, to register); Tenn.Code Ann. § 40-39-207 (2006) (allowing removal of sex offenders from registry after ten years of compliance). Although classified as sex offenders under SORNA, such persons would have been unable to initially register because existing state registries do not provide a means for them to do so.

These are the persons that Congress envisioned would be unable to register and for whom the Attorney General is required to promulgate regulations regarding applicability and procedures for registering.⁴ Therefore, under SORNA, the Attorney General has only been given the power to promulgate regulations under the most limited of circumstances. The delegation of such authority is not so broad as to be violative of the non-delegation doctrine. See Touby, 500 U.S. at 169, 111 S.Ct. 1752; Mistretta v. United States, 488 U.S. 361, 412, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989).

This interpretation is bolstered by Congress's intent to apply SORNA to the large number of persons falling within the definition of sex offender but who were convicted prior to SORNA's enactment. Congress's...