U.S. v. Kapp, No. 1:06-CR-389.

CourtUnited States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
Writing for the CourtKane
Citation487 F.Supp.2d 536
PartiesUNITED STATES of America v. Scott Frederick KAPP, Defendant United States, of America v. Elmer Alvin Duncan, Defendant.
Decision Date16 May 2007
Docket NumberNo. 1:06-CR-422.,No. 1:06-CR-389.
487 F.Supp.2d 536
UNITED STATES of America
v.
Scott Frederick KAPP, Defendant
United States, of America
v.
Elmer Alvin Duncan, Defendant.
No. 1:06-CR-389.
No. 1:06-CR-422.
United States District Court, M.D. Pennsylvania.
May 16, 2007.

Page 537

Martin C. Carlson, U.S. Attorney's Office, Harrisburg, PA, for United States of America.

MEMORANDUM

KANE, Chief Judge.


Now before the Court are motions to dismiss indictments in two separate criminal actions: United States v. Kapp and United States v. Duncan. Defendants have moved to dismiss indictments for violations of 18 U.S.C. § 2250, and have separately challenged the applicability and constitutionality of that statute on similar bases. For reasons of judicial economy, the Court will address both motions in a single order. For the reasons that follow, Defendants' motions will be granted.

I. BACKGROUND

On November 15, 2006, Defendant Scott Frederick Kapp was charged in a three-count Grand Jury Indictment with violations of 18 U.S.C. § 2250(a) and 42 U.S.C. § 14072(i) for failure to register as a sex offender (Counts I and II), and with a violation of 18 U.S.C. § 228 for failure to pay past-due child-support obligations (Count III). On December 13, 2006, Defendant Elmer Alvin Duncan was separately charged with the same three offenses. Both Defendants subsequently entered pleas of not guilty and moved to dismiss Count I of their respective indictments.

In their motions to dismiss, Defendants challenge the application and constitutionality of 18 U.S.C. § 2250. That statute imposes criminal liability on persons who are required to register as sex offenders, knowingly fail to comply with federal registry requirements, and who have been convicted of a sex offense under federal law or travel in interstate commerce. Defendants argue that at the time of their. Indictments, the statute had no application to them. Alternatively, they argue that § 2250 is unconstitutional in that it violates the nondelegation doctrine, as well as the Ex Post Facto, Due Process, and Commerce Clauses. Neither this Court nor any court within the Third Circuit has had occasion to interpret § 2250 or to consider challenges to its constitutionality. Indeed, only four district courts have considered the statute, with varying results.1 The Court will briefly describe the facts alleged in support of the indictments, discuss the statutory background leading up to § 2250, and then turn to Defendants' substantive

Page 538

arguments in support of their motions.

A. Factual Background

1. Scott Kapp

On January 20, 1998, Defendant Scott Frederick Kapp appeared before the York County Court of Common Pleas and entered a plea of nolo contendere to sexual assault and aggravated assault, and was sentenced to two to four years incarceration. While in custody on November 9, 2001, and then again on January 17, 2002, Kapp registered as a sex offender with the Pennsylvania State Police pursuant to 42 Pa. Cons.Stat. § 9795.2. After his release from prison, Kapp traveled to Florida in the fall of 2006, where he had accepted employment. The Government alleges that Kapp failed to register as a sex offender in Florida. On November 16, 2006, Kapp was arrested in Fort Lauderdale, Florida, on, the within indictment alleging failure to update his sex-offender registration and failure to pay past-due child-support obligations.

2. Elmer Duncan

In 1990, Elmer Alvin Duncan was convicted of rape, statutory rape, indecent assault, and corruption of the morals of a six-year-old girl. On September 10, 1990, Duncan was sentenced to a term of imprisonment of seven-and-one-half to fifteen years. On January 18, 2005, and then upon his release in February 2005, Duncan registered as a sex offender. In January 2006, the Pennsylvania State Police mailed an address verification form to Duncan's reported address. Duncan did not return the form. At some point during the spring or summer of 2006, Duncan traveled to Florida, where he resided for several months. In December 2006, Duncan was arrested, in Florida on the within indictment alleging failure to update his sex-offender registration and failure to pay past-due child-support obligations.

B. Statutory Background

The history of the challenged statute, 18 U.S.C. § 2250, is rooted in three legislative acts: (1) the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act ("Jacob Wetterling Act"), Pub.L. 103-322, tit. XVII, 108 Stat. 2038, as amended, 42 U.S.C. § 14071; (2) the Pennsylvania Registration of Sex Offenders Act ("Megan's Law"), 42 Pa. Cons.Stat. § 9791 et seq.; and (3) the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act"), Pub.L. No. 109-248, 120 Stat. 587 (2006). Defendants' challenge to § 2250 is examined in the context of these statutes.

1. Jacob Wetterling Act

On September 13, 1994, President Clinton signed into law the Jacob Wetterling Act. The Jacob Wetterling Act is a federal funding statute that "condition[ed] certain federal law enforcement funding on the States' adoption of sex offender registration laws and set[ ] minimum standards for state programs." Smith v. Doe, 538 U.S. 84, 89-90, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). These sex-offender registration laws and state programs are commonly referred to as "Megan's Laws," and have been enacted on a state-by-state basis throughout the country. Id. By appropriating federal funds to states in compliance with minimum federal standards, the Jacob Wetterling Act contemplated primarily state-based enforcement of sex-offender registries. As such, the Jacob Wetterling Act provided that "[a] person required to register under a State program established pursuant to this section who knowingly fails to so register and keep such registration current shall be subject to criminal penalties in any State in which the person has so failed," 42 U.S.C.

Page 539

§ 14071(c), but did not itself impose independent federal criminal liability for an individual who violated a state's Megan's Law.2

2. Pennsylvania's Megan's Law

On October 24, 1995, Governor Ridge signed into law Pennsylvania's Megan's Law. Under Pennsylvania's Megan's Law, an individual convicted of an offense enumerated in 42 Pa. Cons.Stat. § 9795.13 must register with the Pennsylvania State Police and provide information related to his current or intended residence, employment, and educational enrollment upon the release from incarceration, parole from a correctional institution, or commencement of an intermediate punishment or probation. 42 Pa. Cons.Stat. § 9795.2(a)(1). Additionally, the individual must inform the state police within 48 hours of any changes related the individual's residence, employment, or educational enrollment. Id. § 9795.2(a)(2). Finally, the individual must register within 48 hours with a new law enforcement agency after establishing residence in another state. Id. § 9795.2(a)(2.1). Should the individual fail to comply with these registration requirements, 18 Pa. Cons.Stat. § 4915 imposes criminal penalties with minimum penalties of at least two years depending on the offense.

3. Adam Walsh Act

On July 27, 2006, President Bush signed into law the Adam Walsh Act. Title I of the Act, which is at the core of this case, is referred to as the Sex Offender Registration and Notification Act ("SORNA"). At the time of signing, President Bush noted that SORNA "will greatly expand the National Sex Offender Registry by integrating the information in state sex offender registry systems and ensuring that law enforcement has access to the same information across the United States." President George W. Bush, Statement upon Signing H.R. 4472 (July 27, 2006), as reprinted in 2006 U.S.C.C.A.N. S35, S36. Like the Jacob Wetterling Act, SORNA conditions federal funds upon States' enforcement of sex-offender-registration programs. Unlike the Jacob Wetterling Act, though, SORNA creates an independent federal obligation on individuals convicted of a "sex offense" to register with a sex offender registry.4 Of particular relevance to this case, § 141(a) of SORNA, codified at 18 U.S.C. § 2250(a), imposes criminal penalties of up to ten years imprisonment on individuals required to register under SORNA, who travel in interstate commerce, and knowingly fail to register or update their registration.5

Page 540

II. DISCUSSION

Both Kapp and Duncan have been indicted under § 141(a) of SORNA, 18 U.S.C. § 2250, and they now argue that the indictment must be dismissed. Specifically, they contend that at the time of their indictment, they were under no federal obligation to register under SORNA's registration statute, § 113 of SORNA, codified at 42 U.S.C. § 16913.6 The Court agrees.

Generally, § 113(a) requires that a sex offender "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." On its face, § 113(a) establishes the general rule that sex offenders, as defined by SORNA,7 must register and update that registration. Thus, by the statute's terms, § 113(a) requires all sex offenders to both register and update their registration.

Defendants do not take issue with the scope of § 113(a). However, Defendants argue that SORNA's registration requirement should be construed to apply only prospectively to those sex...

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18 practice notes
  • U.S. v. Benevento, No. 2:07-cr-00136-RCJ-PAL.
    • United States
    • U.S. District Court — District of Nevada
    • April 21, 2009
    ...interim rule on February 28, 2007. See, e.g., United States v. Smith, 528 F.Supp.2d 615, 618 (S.D.W.Va. 2007); United States v. Kapp, 487 F.Supp.2d 536, 542...
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    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
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    ...arrested and convicted after promulgation of the Interim Rule. In Madera, the court relied on the reasoning in United States v. Kapp, 487 F.Supp.2d 536 (M.D.Pa.2007), and concluded that subsection (d) comprises two separate clauses. "The first gives the Attorney General authority to determi......
  • U.S. v. Lawrance, No. 08-6034.
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    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 8, 2008
    ...(finding the statute inapplicable to past offenders prior to the promulgation of the Interim Rule); United States v. Kapp, 487 F.Supp.2d 536 (M.D.Pa.2007) (declining to impose SORNA liability on two defendants indicted prior to promulgation of the Interim Rule); United States v. Bobby Smith......
  • U.S. v. Shenandoah, Criminal No. 1:07-CR-0500.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • August 20, 2008
    ...of the offense for which registration is required prior to [SORNA's] enactment." See 28 C.F.R. § 72.3; see also United States v. Kapp, 487 F.Supp.2d 536, 541 (M.D.Pa.2007) (stating that the interim rule' made it "indisputably clear that SORNA applies to sex offenders ... regardless of when ......
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18 cases
  • U.S. v. Benevento, No. 2:07-cr-00136-RCJ-PAL.
    • United States
    • U.S. District Court — District of Nevada
    • April 21, 2009
    ...interim rule on February 28, 2007. See, e.g., United States v. Smith, 528 F.Supp.2d 615, 618 (S.D.W.Va. 2007); United States v. Kapp, 487 F.Supp.2d 536, 542...
  • U.S. v. Hinckley, No. 07-7107.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 9, 2008
    ...arrested and convicted after promulgation of the Interim Rule. In Madera, the court relied on the reasoning in United States v. Kapp, 487 F.Supp.2d 536 (M.D.Pa.2007), and concluded that subsection (d) comprises two separate clauses. "The first gives the Attorney General authority to determi......
  • U.S. v. Lawrance, No. 08-6034.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 8, 2008
    ...(finding the statute inapplicable to past offenders prior to the promulgation of the Interim Rule); United States v. Kapp, 487 F.Supp.2d 536 (M.D.Pa.2007) (declining to impose SORNA liability on two defendants indicted prior to promulgation of the Interim Rule); United States v. Bobby Smith......
  • U.S. v. Shenandoah, Criminal No. 1:07-CR-0500.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • August 20, 2008
    ...of the offense for which registration is required prior to [SORNA's] enactment." See 28 C.F.R. § 72.3; see also United States v. Kapp, 487 F.Supp.2d 536, 541 (M.D.Pa.2007) (stating that the interim rule' made it "indisputably clear that SORNA applies to sex offenders ... regardless of when ......
  • Request a trial to view additional results

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