U.S. v. Howell

• Citation: 552 F.3d 709
• Decision Date: 13 January 2009
• Docket Number: No. 08-2171.,No. 08-2126.,08-2126.,08-2171.
• Parties: UNITED STATES of America, Appellee, v. David Matthew HOWELL, Appellant. United States of America, Appellee, v. Charles Edward Thomas, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

552 F.3d 709

UNITED STATES of America, Appellee, v. David Matthew HOWELL, Appellant.

United States of America, Appellee, v. Charles Edward Thomas, Appellant.

No. 08-2126.

No. 08-2171.

United States Court of Appeals, Eighth Circuit.

Submitted: September 22, 2008.

Filed: January 13, 2009.

John P. Messina, AFPD, argued, Des Moines, IA, for Appellants

Kandice A. Wilcox, AUSA, argued, Cedar Rapids, IA, for Appellee.

Before RILEY, HANSEN, and MELLOY, Circuit Judges.

RILEY, Circuit Judge.

This consolidated appeal involves two convictions under the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. §§ 16901-16991, and its corresponding criminal offense statute, 18 U.S.C. § 2250. In separate proceedings, David Matthew Howell (Howell) and Charles Edward Thomas (Thomas) each conditionally pled guilty to one count of failure to register as a sex offender after traveling in interstate commerce in violation of § 2250.

In the district court, Howell and Thomas argued § 2250 and the registration requirement of SORNA, 42 U.S.C. § 16913, are unconstitutional because they regulate purely intrastate activity that cannot be reached by Congress's commerce clause power. Howell also claimed the Northern District of Iowa was an improper venue for his prosecution. In each case, the district court¹ found SORNA and § 2250 are permissible exercises of congressional authority. The district court also denied Howell's venue objection.² We affirm.

I. BACKGROUND

A. Howell's SORNA Conviction

In 1987, Howell was convicted in Michigan state court of third degree criminal sexual conduct. After his release from a Michigan prison, Howell did not complete a sex offender registration as required by Michigan law, and was convicted in May 2005 under Michigan's sex offender registration statute. Howell finally registered as a Michigan sex offender on August 9, 2005.

Sometime after registering, Howell left Michigan. Howell then moved to Iowa in 2006 and resurfaced on May 24, 2007, when authorities in Oelwein, Iowa, responded to a call and questioned Howell as a witness to a crime. During the investigation, the Iowa authorities learned Howell had an outstanding Michigan arrest warrant for failure to register as a sex offender, and also noticed Howell had not completed a sex offender registration as required by Iowa law. Howell was arrested.

Howell was released on June 5, 2007, and registered as a sex offender in Iowa. The next day, Howell left Iowa and moved to Texas. Howell failed to notify Iowa of his change in residency and did not register as a sex offender in Texas. On July 13, 2007, Howell was arrested in Texas on a federal warrant and extradited to the Northern District of Iowa. Shortly thereafter, a federal grand jury returned a two-count superseding indictment against Howell for failing to register as a sex offender.

Howell moved to dismiss the indictment arguing (1) SORNA did not apply to his conduct, and (2) SORNA and § 2250 violate the ex post facto clause, the nondelegation doctrine, due process, and the commerce clause. Howell also objected to venue in the Northern District of Iowa. On February 1, 2008, the district court granted Howell's motion to dismiss the first count of his indictment because it violated the ex post facto clause, but rejected Howell's arguments to dismiss the second count. The district court found (1) SORNA and § 2250 are constitutional exercises of Congress's commerce clause power, and (2) Iowa venue is proper. Howell then pled guilty to the second count of the indictment on the condition he could appeal the district court's denial of his motion to dismiss the second count. Howell filed a timely appeal.

B. Thomas's SORNA Conviction

In 2000, Thomas was convicted in Iowa of third degree sexual abuse. After being released from prison in May 2005, Thomas properly registered as a sex offender in Iowa and kept his registration current through 2006. In January 2007, Thomas decided to move from Iowa to Wisconsin. Thomas notified Iowa authorities of his intent to move, and after moving, properly registered as a sex offender in Wisconsin.

Thomas resided in Wisconsin until he was evicted from his apartment on September 13, 2007. Thomas began living in his car in Wisconsin. On October 10, 2007, he relocated to Iowa and continued to live in his car. Thomas failed to notify either the Iowa or Wisconsin sex offender registries of his move back to Iowa. As a result, Thomas was arrested by Iowa authorities on October 24, 2007.

On November 28, 2007, Thomas was indicted on one count of failing to register as a sex offender in violation of § 2250. Thomas moved to dismiss the indictment arguing SORNA and § 2250 are outside Congress's commerce clause power. The district court denied this motion on February 13, 2008, finding (1) § 2250 is authorized by the commerce clause, and (2) although SORNA's registration requirement is not authorized under the commerce clause, it is constitutional under the necessary and proper clause. Thomas then entered a conditional guilty plea. Thomas now appeals.

II. DISCUSSION

These appeals do not involve any factual disputes. Thus, "[w]e review a challenge to the constitutionality of a federal statute de novo." United States v. Betcher, 534 F.3d 820, 823 (8th Cir.2008). We also "review de novo the district court's denial of the motion to dismiss for improper venue, as it involves a matter of law." United States v. Cole, 262 F.3d 704, 709-10 (8th Cir.2001) (footnote omitted).

A. SORNA and Section 2250

SORNA is a portion of the Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248, 120 Stat. 587, passed by Congress in 2006 and codified at 42 U.S.C. §§ 16901-16991. Section 16913 of SORNA provides, in part,

(a) In General

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. For initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence.

....

(c) Keeping the registration current

A sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) of this section and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry. That jurisdiction shall immediately provide that information to all other jurisdictions in which the offender is required to register.

If a sex offender fails to register under § 16913, he or she can be prosecuted under 18 U.S.C. § 2250. Section 2250 states,

(a) In general.—Whoever—

(1) is required to register under [SORNA];

(2)(A) is a sex offender as defined for the purposes of [SORNA] 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 [SORNA];

shall be fined under this title or imprisoned not more than 10 years, or both.

B. Constitutionality of Section 2250

Thomas and Howell first contend § 2250 does not have a sufficient nexus to interstate commerce to be authorized by the commerce clause. This court has previously held § 2250 is constitutional under the commerce clause. See United States v. May, 535 F.3d 912, 921-22 (8th Cir. 2008). Thus, we adhere to that holding. See United States v. Wilson, 315 F.3d 972, 973-74 (2003) ("this Court's precedent ... prohibits any three-judge panel of the Court from overruling a previous panel opinion").

C. Constitutionality of Section 16913

Thomas and Howell next contend their convictions should be reversed because the registration requirement of § 16913 is outside Congress's commerce clause power. They argue § 16913 is unconstitutional because it regulates purely non-economic, intrastate activity by requiring registration of sex offenders who were convicted of state offenses but never cross state lines. Howell and Thomas reason that, if § 16913 is unconstitutional, their prosecutions under § 2250 are invalid because the government must prove they were required to register under § 16913 to satisfy the first element of § 2250.

Our court has not decided whether § 16913 is constitutional under the commerce clause. Although counsel for the government suggested at oral argument May also upheld § 16913 under the commerce clause, we disagree. May only determined the constitutionality of § 2250. Therefore, we are compelled to analyze § 16913 under the commerce clause.³

The Supreme Court explains Congress has the authority to regulate the following three categories of interstate commerce: (1) "the use of 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) "those activities having a substantial relation to interstate commerce." United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).

Congress also has the ability "[t]o make all Laws which shall be necessary and proper" for the accomplishment of its commerce clause power. U.S. Const. art. I, § 8, cl. 18. In the seminal case of McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421, 4 L.Ed. 579 (1819), the Supreme Court elucidated the necessary and proper clause with the following statement: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and...