U.S. v. Mason

• Decision Date: 22 May 2007
• Docket Number: No. 6:07-cr-52-Orl-19JGG.,6:07-cr-52-Orl-19JGG.
• Citation: 510 F.Supp.2d 923
• Parties: UNITED STATES of America v. Derick MASON.
• Court: U.S. District Court — Middle District of Florida

510 F.Supp.2d 923

UNITED STATES of America v. Derick MASON.

No. 6:07-cr-52-Orl-19JGG.

United States District Court, M.D. Florida, Orlando Division.

May 22, 2007.

COPYRIGHT MATERIAL OMITTED

Cynthia A. Hawkins, U.S. Attorney's Office, Orlando, FL, for United States of America.

Stephen J. Langs, Federal Public Defender's Office, Orlando, FL, for Derick Mason.

ORDER

PATRICIA C. FAWSETT, Chief Judge.

This case comes before the. Court on Mr. Mason's Motion to Dismiss Indictment (Doc. No. 40, filed Apr. 30, 2007) and the Government's Response to Defendant's Motion to Dismiss (Doc. No. 41, filed May 2, 2007).

Facts

Defendant Derick Mason is charged with failure to register as a convicted sex offender as required by the Sex Offender Registration and Notification Act ("SORNA")¹ in violation of 18 U.S.C. Section 2250. (Doc. No. 23).

Defendant was convicted of Second Degree Sexual Assault on an eleven year old victim in the State of New York on December 6, 2001. (Doc. No. 1, ¶ 2). After his release, Defendant, a New York resident at the time, was required by New York law to register as a sex offender in New York or any other state in which he later resided. (Id.) Defendant registered as a sex offender with the State of New York in 2003. (Id.) Defendant subsequently moved to Orlando, Florida in November 2006. (Id. at ¶¶ 3, 4). Defendant did not register as a sex offender in Florida at that time. (Id. at ¶ 5). Defendant was indicted for failure to register as a sex offender as required by SORNA in violation of 18 U.S.C. Section 2250(a). (Doc. No. 23).

Defendant moves the Court to dismiss the underlying Indictment alleging that SORNA is unconstitutional on its face and as applied² and the Indictment is premature because the Attorney General has not decided whether the Act applies retroactively to criminal conduct committed before its enactment. (Doc. No. 40, p. 2). The Government opposes Defendant's Motion. (Doc. No. 41).

Relevant Statutory Provisions

SORNA is contained within the Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248, which was enacted on July 27, 2006. SORNA is intended "to protect the public from sex offenders and offenders against children ... [and] establish[] a comprehensive national system for the registration of those offenders."³ 42 U.S.C. § 16901. SORNA requires that every jurisdiction maintain a sex offender registry that conforms to certain statutory requirements. 42 U.S.C. § 16912.

SORNA contains the following requirements on sex offender registration:

(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.

. . . .

(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.

42 U.S.C. § 16913. SORNA requires that all sex offenders update their information, including their residence, within three days of any change. 42 U.S.C. §§ 16913(c), 16914(a)(3). SORNA makes the required information available to the public through the internet. 42 U.S.C. §§ 16918-169120.

SORNA specifically mandates that states impose criminal penalties for violation of its provisions and makes the failure to register a federal crime. 42 U.S.C. § 16913(e); 18 U.S.C. § 2250. Specifically, the statute provides:

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).

Analysis

I. Defendant's Challenges With Respect to the Retroactive Application of SORNA and its Registration Requirements.

Defendant contends that SORNA violates the Non-delegation doctrine, Article I, Section 1, of the United States Constitution, because Congress impermissibly delegated the authority to decide whether the statute applies retroactively to the Attorney General. (Doc. No. 40, p. 8). Alternatively, Defendant argues that the Indictment must be dismissed because the sex offense he committed occurred prior to the enactment of the Act. (Id.). According to Defendant, the Act cannot apply retroactively until the Attorney General passes a regulation to that effect. (Id. citing 42 U.S.C. § 16913(d)). Because the Attorney General has not decided to apply the Act retroactively, Defendant argues that he cannot be prosecuted for violating it. (Id.) Defendant's challenges are not well taken. The Non-delegation doctrine does not prevent Congress from "obtaining the assistance of its coordinate Branches [of government]." Mistretta v. United States, 488 U.S. 361, 372, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Congress can delegate its own legislative power provided that it provides "by legislative act an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform." Id. (internal quotations omitted). The scope of permissible delegation must be governed by "common sense" and "the inherent necessities of the government co-ordination." Id. (internal quotations omitted).

There is no improper delegation of legislative authority in the instant case. The Supreme Court has consistently found delegations of legislative authority constitutionally permissible when "`Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.'" Mistretta, 488 U.S. at 372-73, 109 S.Ct. 647 (quoting Am. Power & Light, Co. v. SEC, 329 U.S. 90, 105, 67 S.Ct. 133, 91 L.Ed. 103 (1946)). Congress has clearly and explicitly set forth the purpose of SORNA in 42 U.S.C. Section 16901. The fact that Congress has delegated the ability to specify the applicability of the registration requirements to sex offenders convicted before the statute's enactment, or its implementation in certain jurisdictions, or granted the Attorney General the power to promulgate regulations to ensure registration of individuals outside the purview of the statutory language, does not allow the Attorney General to decide if the statute will have retroactive application. See 42 U.S.C. § 16913(d). Rather, the statutory language is indicative of a gapfilling provision to insure the statutory purpose is effectuated when sex offenders fall outside the purview of Section 16913(b).

In its history, the Supreme Court has stricken only two statutes as violative of the Non-delegation doctrine, and both instances occurred in 1935. Mistretta v. United States, 488 U.S. 361, 373, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989); see also Whitman v. Am. Trucking Assn;, 531 U.S. 457, 474, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (same); United States v. Madera, 474 F.Supp.2d 1257, 1261 (2007) (same). The two cases in which the Supreme Court held that the statute at issue violated the Non-delegation doctrine are A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935) and Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935). Since 1935, the Supreme Court has consistently upheld delegations of legislative authority. See,. e.g., Mistretta, 488 U.S. at 373-74, 109 S.Ct. 647 (citing cases). The only support for the argument that SORNA violates the Non-delegation doctrine are Defendant's citations to the black letter law and holdings from Schechter Poultry and Panama Refining. (See Doc. No. 40, pp. 8-9). The Court declines to disagree with over seventy years of case law upholding congressional delegations of legislative authority based on such limited support, especially when the law in question serves such a detailed and clearly delineated legislative purpose.

It is unnecessary to address Defendant's alternative arguments with respect to retroactive application in great detail because Defendant is not being punished for conduct that occurred before SORNA was enacted. Even assuming that because Defendant's conviction occurred before SORNA was enacted would remove him from the language in 18 U.S.C. Section 2250(a)(1), the Indictment is sufficient because Defendant clearly was advised that he fell within the purview of 18 U.S.C. Section 2250(a)(2) on the basis of his New York conviction and registration requirement. See United States v. Manning, 2007 WL 624037, *2 (W.D.Ark. Feb.23, 2007) (denying motion to dismiss indictment of sex offender convicted prior to SORNA because failure to update registration as required by the law of the state in which he was convicted was a violation of 18...