U.S. v. Madera

Decision Date16 January 2007
Docket NumberNo. 6:06CR202 ORL18KRS.,6:06CR202 ORL18KRS.
Citation474 F.Supp.2d 1257
PartiesUNITED STATES of America v. Wilfredo G. MADERA
CourtU.S. District Court — Middle District of Florida

Clarence William Counts, Jr., Federal Public Defender's Office, Orlando, FL, for Wilfredo G. Madera.

ORDER

G. KENDALL SHARP, Senior District Judge.

This cause came before the Court upon Defendant's Motion to Dismiss Indictment and Memorandum of Law in Support Thereof (Doc. 29, filed January 5, 2007), to which the Government responded in opposition. (Doc. 32, filed January 10, 2007.) Oral argument was held before the Court on January 11, 2007. Defendant Wilfredo G. Madera ("Defendant") is charged in an indictment with one count of failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a) and the Walsh Act. After reviewing the motions and memoranda provided by both the Defendant and the Government, and listening to oral argument on both sides, the Court DENIES the Motion to Dismiss.

I. BACKGROUND OF THE WALSH ACT

The Adam Walsh Child Protection and Safety Act of 2006 ("the Act"), Pub.L. No. 109-248, was enacted on July 27, 2006. Title I of the Act, entitled the Sex Offender Registration and Notification Act ("SORNA"), creates a national sex offender registry law. SORNA, in addition to defining the term "sex offender" and addressing the various tiers of sex offender status, see 42 U.S.C. § 16911, also requires every jurisdiction to maintain a sex offender registry conforming to the requirements of SORNA. See 42 U.S.C. § 16912. The information to be provided by the sex offender for the registry, at a minimum, includes: name and aliases: Social Security number: residence: place of employment and/or school; and vehicle information. 42 U.S.C. § 16914(a)(1)-(7). Furthermore, the jurisdiction must ensure that, again, at a minimum, the following information is included in the registry for the sex offender: physical description; criminal history, including the text of the particular law for which the registration is required; current photograph; fingerprints and palm prints; DNA sample; and a photocopy of a driver's license or identification card. 42 U.S.C. § 16914(b)(1)-(5). Certain information about the sex offender is also mandated to be published on an internet website (exempting some items, such as the sex offender's Social Security number). See 42 U.S.C. § 16018. Each jurisdiction's website is also required to include "all field search capabilities needed for full participation in the Dru Sjodin National Sex Offender Public Website," a website that shall be maintained by the Attorney General. See 42 U.S.C. §§ 16918. 16920.

Most pertinent to this case, SORNA also delineates when and how a sex offender should register under the Act:

(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.

(b) Initial registration

The sex offender shall initially register —

(1) before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement; or

(2) not later than 3 business days after being sentenced for that offense, if the sex offender is not sentenced to a term of imprisonment.

(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.

(d) Initial registration of sex offenders unable to comply with subsection (b) of this section

The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006 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) of this section.

(e) State penalty for failure to comply Each jurisdiction, other than a Federally recognized. Indian tribe, shall provide a criminal penalty that includes a maximum term of imprisonment that is greater than I year for the failure of a sex offender to comply with the requirements of this title.

42 U.S.C. § 16913.

Additionally, SORNA creates new federal crimes for those individuals who, among other things, fail to register despite being required to do so:

(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.

18 U.S.C. § 2250(a).

As of the date of this order, the Attorney General has not exercised the authority delegated to him by Congress "to specify the applicability of the requirements of this [the Act] to sex offenders convicted before July 27, 2006." 42 U.S.C. § 16913(d).

II. DEFENDANT'S BACKGROUND AND ARREST

According to the criminal complaint, Defendant was convicted in the State of New York on November 17, 2005, of sexual abuse in the second degree, a misdemeanor, under New York Penal Code § 130.60. (Compl.¶ 3.) Defendant was sentenced to six years' probation for this conviction, but was not incarcerated. (Id. ¶ 4.) Defendant signed a sexual offender registration form from New York, dated May 1, 2006, stating: "If you move to another state you must register as a sex offender within 10 days of establishing residence." (Id. ¶ 4.) Upon moving to Florida, Defendant, on June 6, 2006, was issued a Florida driver's license with an address in West Palm Beach, Florida. (Id. ¶ 5.) Defendant was arrested on October 23, 2006, for failing to register as a sex offender in violation of 18 U.S.C. § 2250, (Doc. 29 at 2.) Thereafter, Defendant was indicted by a grand jury on November 1, 2006 for "knowingly and unlawfully fail[ing] to register and update a registration as required by [SORNA]," in violation of 18 U.S.C. § 2250. (Doc. 13 at 2.)

III. DISCUSSION

Defendant alleges that SORNA's registration requirements, as well as 18 U.S.C. § 2250, are unconstitutional under the following provisions of the United States Constitution: (1) the Non-Delegation Doctrine, Art. I, § 1; (2) the Ex Post Facto Clause, Art I, § 9, cl. 3; (3) the Due Process Clause of the Fifth Amendment; and (4) the Commerce Clause, Art. I, § 8, cl. 3. This is a matter of first impression before a United States District Court. For the reasons outlined below, the Court finds that the Act is constitutional, and that it is retroactive as of the day it was enacted on July 27, 2006.

A. The Act Does Not Violate the Non-delegation Doctrine

Defendant argues that Congress impermissibly delegated the decision of whether the Act should be applied retroactively to the Attorney General. See 42 U.S.C. § 16913(d). In the alternative, Defendant also argues that if the retroactivity decision were properly delegated to, the Attorney General, the Attorney General has still not decided whether the application of the Act is retroactive, and therefore the prosecution of Defendant under the Act is premature.

The Constitution provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States." U.S. Const., Art. I. § 1. This "nondelegation doctrine" is an integral part of the separation of powers of our system of government. However, the Supreme Court has stated that "the separation-of-powers principle, and the non-delegation doctrine in particular, do not prevent Congress from obtaining the assistance of its coordinate Branches." Mistretta v. United States, 488 U.S. 361, 372, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). The rationale behind this approach was first explained in an opinion by Chief Justice Taft: "In determining what [Congress] may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination." J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406, 48 S.Ct. 348, 72 L.Ed. 624 (1928). Therefore, "[s]o long as Congress `shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.'" Mistretta, 488 U.S. at 372, 109 S.Ct. 647 (quoting J.W. Hampton, Jr. & Co., 276 U.S. at 409, 48 S.Ct. 348).

In the history of the Supreme Court, only twice has the requisite "intelligible principle" been found to be lacking in challenged statutes, and both occurred in the same year: Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935) and A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935...

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