U.S. v. Pavulak

Decision Date30 November 2009
Docket NumberCrim. No. 09-43-SLR.
Citation672 F.Supp.2d 622
PartiesUNITED STATES of America, Plaintiff, v. Paul E. PAVULAK, Defendant.
CourtU.S. District Court — District of Delaware

SUE L. ROBINSON, District Judge.


On April 16, 2009, a federal grand jury charged defendant Paul E. Pavulak with: (1) failure to register and update a registration as a sex offender, in violation of 18 U.S.C. § 2250(a); (2) possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2) and 2256(8)(A); (3) attempted production of child pornography, in violation of 18 U.S.C. § 2251(a) and (e); and (4) enticement and coercion of a minor, in violation of 18 U.S.C. § 2422(b). (D.I. 13) Defendant entered a plea of not guilty and, subsequently, moved to dismiss count one of the indictment. (D.I. 21) Contemporaneously, defendant moved to suppress evidence obtained as a result of two state court search warrants. (D.I. 20) The matter is fully briefed. (D.I. 22, 23, 25, 26, 28) The court has jurisdiction pursuant to 18 U.S.C. § 3231. For the reasons that follow, defendant's motions will be denied.

A. Background

Count one of the indictment alleges that defendant had a duty to register as a sex offender based on two Delaware sex offense convictions, that he traveled in interstate or foreign commerce and that he failed to register or update his registration as mandated by the Sex Offender Registration and Notification Act, 18 U.S.C. § 2250(a). Defendant argues that both the civil registration statute, 42 U.S.C. § 16913, and the criminal statute, 18 U.S.C. § 2250(a), exceed Congressional authority under the Commerce Clause.1

B. Standard of Review

A motion to dismiss an indictment should be directed only toward the sufficiency of the evidence to prove the indictment's charges. United States v. DeLaurentis, 230 F.3d 659, 661 (3d Cir.2000). In making this determination, the court must assume all the allegations in the indictment are true. United States v. Besmajian, 910 F.2d 1153, 1154 (3d Cir.1990). An indictment will be deemed sufficient where the "elements of the offense intended to be charged, sufficiently apprises the defendant of what he must be prepared to meet and allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution." United States v. Kemp, 500 F.3d 257, 280 (3d Cir.2007) (citations and internal quotation omitted).

Federal statutes are presumed constitutional and will only be invalidated on a "plain showing" that Congress exceeded its authority under the United States Constitution. United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000); United States v. Pendleton, 2009 WL 330965, at *3 (D.Del. Feb. 11, 2009). An "action based on an invalid statute must be dismissed." United States v. Clayton, 2009 WL 1033664, at *5 (W.D.Pa. Apr. 16, 2009). Moreover, "the Third Circuit [has] explained that where Congress acts under its commerce authority, statutes are entitled to a presumption of validity." Id. (Third Circuit applies a rational basis test in the context of the Commerce Clause).

C. Legislative Background

On July 27, 2006, Congress enacted the Sex Offender Registration and Notification Act ("SORNA") as a component of The Adam Walsh Child Protection and Safety Act of 2006 ("the Act"). United States v. Howell, 552 F.3d 709, 713 (8th Cir.2009). The Act was created to "protect children from sexual exploitation and violent crime, to prevent child abuse and child pornography, to promote Internet safety, and to honor the memory of . . . child crime victims." Clayton, 2009 WL 1033664, at *2 (quotations omitted).

SORNA was enacted to "protect the public from sex offenders and offenders against children by establishing a national system for registration of sex offenders." 42 U.S.C. § 16901. It was also designed to "close the gaps inherent in a network of independent state systems" that did not prevent sex offenders from moving between states in order to evade registration requirements. United States v. Gould, 568 F.3d 459, 463 (4th Cir.2009); see also 152 Cong. Rec. S8012, 8013 (July 20, 2006). A House Judiciary Committee report described the problem as follows:

There is a wide disparity among State registration requirements and notification obligations for sex offenders. This lack of uniformity has been exploited by child sexual offenders with tragic consequences. Given the transient nature of sex offenders and the inability of the States to track these offenders, it is conservatively estimated that approximately 20 percent of 400,000 sex offenders are lost under State sex offender registry programs.

Howell, 552 F.3d at 716 (quoting H.R.Rep. No. 109-218, at 23 (2005)).

To effectuate these goals, Congress created a comprehensive national sex offender registration system designed to track the interstate movement of sex offenders and to prevent sex offenders from evading detection by moving from one State to the next. United States v. Ambert, 561 F.3d 1202, 1205 (11th Cir.2009); Howell, 552 F.3d at 716. In so doing, Congress also recognized that "sex offenders constitute a unique class of criminal insofar as members of that class are considered to have higher rates of recidivism than other offenders." Gould, 568 F.3d at 472.

SORNA's registration requirements provide:

(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.

42 U.S.C. § 16913(a). The sex offender is also required to register within a specific time period and to keep the registration current. Id. § 16913(b)-(c).

SORNA establishes a new federal crime for persons who are required to register under § 16913, but fail to do so. United States v. Whaley, 577 F.3d 254, 257 (5th Cir.2009). Section 2250(a) provides:

(a) In general.-Whoever-

(1) is required to register under SORNA;

(2)(A) is a sex offender as defined for the purposes of the 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. SORNA directs the United States Attorney General to "maintain a national database . . . for each offender." 42 U.S.C. § 16919(a).

With respect to the obligations placed on the States, Congress conditions the receipt of federal law enforcement funds on States' compliance with the standards set for sex offender registration and enforcement. Id. § 16925 (any State failing to timely comply with SORNA for sex offender registration will not receive 10% of the funds that would be allocated for local law enforcement and justice assistance). SORNA also requires that: (1) each State establish an Internet website including information about sex offenders within its jurisdiction, id. § 16918; (2) States include all sex offenders on their registration roles, id. § 16912; (3) States substantially implement the standards by July 2009, id. § 16924; and (4) States establish standards for prosecuting State law violations of the registration act, id. § 16913(a).

D. Discussion
1. 18 U.S.C. § 2250(a)

Defendant argues that 18 U.S.C. § 2250(a) ("the criminal statute") exceeds Congressional authority to regulate interstate commerce. Specifically, defendant asserts that the jurisdictional element is insufficient to bring the statute within one of the three permissible categories of commerce regulation recognized by the Supreme Court in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). The government counters that the overwhelming majority of courts have found the criminal statute within Congress' authority under the Commerce Clause.

"Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution." United States v. Morrison, 529 U.S. at 606, 120 S.Ct. 1740. The United States Constitution delegates to Congress the power "[t]o regulate Commerce with foreign Nations, and among the several States, and the Indian Tribes." U.S. Const, art. I. § 8, cl. 3. Congress' "power to regulate purely local activities that are part of an economic `class of activities' that have a substantial effect on interstate commerce has been firmly established." Gonzales v. Raich, 545 U.S. 1, 17, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005).

The Supreme Court has identified three expansive categories of activity that Congress may regulate under its commerce power. United States v. Lopez, 514 U.S. at 558, 115 S.Ct. 1624. First, Congress has authority to regulate the use of the channels of interstate commerce ("the channels"). Id. In so doing, Congress has the power to keep the channels of interstate commerce free from immoral and injurious uses. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256, 85 S.Ct. 348, 13...

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