U.S. v. Powers

• Decision Date: 18 April 2008
• Docket Number: Case No. 6:07-cr-221-Orl-31KRS.
• Citation: 544 F.Supp.2d 1331
• Parties: UNITED STATES of America v. Robert D. POWERS.
• Court: U.S. District Court — Middle District of Florida

544 F.Supp.2d 1331

UNITED STATES of America v. Robert D. POWERS.

Case No. 6:07-cr-221-Orl-31KRS.

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

April 18, 2008.

Karen L. Gable, U.S. Attorney's Office, Orlando, FL, for United States of America.

ORDER

GREGORY A. PRESNELL, District Judge.

This matter comes before the Court on Defendant's Amended Motion to Dismiss the Indictment (Doc. 37) and the Government's Response thereto (Doc. 30). Oral argument was held on April 14, 2008.

I. The History of the Adam Walsh Act

It is beyond question that sexual victimization, particularly of children, is a major problem in this country. As a result of the significant media attention this problem has received in recent decades, the horrific crimes suffered by children such as Jacob Wetterling, Adam Walsh, Megan Kanka, and Polly Klaas, weigh heavily on America's collective conscience.

In 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act ("the Wetterling Act") to promote the adoption of sex offender registration laws by all states. See Karen S. Schuller, Article, North Carolina v. Bryant: Paving the Way For a Comprehensive National Sex Offender Registry, 30 N.C. Cent. L.Rev. 75, 77 (2007). In 1996 the Wetterling Act was amended by Megan's Law, which made the receipt of federal funding for state law enforcement dependent upon the creation of sex offender registration programs. See id. Every state had enacted some variation of Megan's Law by 1997. See Smith v. Doe, 538 U.S. 84, 90, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003).

On July 27, 2006, Congress enacted the Adam Walsh Child Protection and Safety Act of 2006 ("the Adam Walsh Act"), which included the Sex Offender Registration and Notification Act ("SORNA"). The Adam Walsh Act is applicable to each state, the District of Columbia, Native American tribal territory, and other United States territories. Each jurisdiction is required to substantially implement the requirements of SORNA by July 27, 2009, or risk a reduction in federal grants. See 42 U.S.C. §§ 16294(a)(1) and 16925(a) (2007). In addition to creating a national registry, SORNA imposes registration requirements on individuals who fall under SORNA's definition of a "sex offender" and includes criminal penalties for those who fail to register. SORNA provides, inter alia, that a sex offender convicted under a state statute who fails to register or fails to verify his or her registration and also engages in interstate travel can be prosecuted and is subject to a sentence of up to ten years' imprisonment. 18 U.S.C. § 2250(a) (2007).

II. Factual Background

Defendant Robert Powers is a 43 year-old man with an IQ of 68 and a second-grade reading level. In 1995 he was convicted under South Carolina law of "Assault to Commit Sex Crimes". (Doc. 6 at 1). In compliance with South Carolina law, Mr. Powers registered as a sex offender on November 13, 1995. Mr. Powers moved to Florida in 2007 to live with his mother in Orlando. He failed to register as a sex offender in Florida, as required by Florida Statute § 943.0435(2). On December 4, 2007, Mr. Powers was arrested, while working in the state of Washington, and charged with a violation of SORNA for failing to register in Florida. Mr. Powers then filed the instant Motion to Dismiss, challenging the constitutionality of 18 U.S.C. § 2250(a).

III. Legal Analysis

Defendant is charged with violating 18 U.S.C. § 2250(a) ("§ 2250(a)"), which provides that

Whoever —

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

(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) (2007).

SORNA contains, inter alia, the following registration requirements:

(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) 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.

42 U.S.C. § 16913 (2007).¹

Defendant argues, inter alia, that § 2250(a) is unconstitutional because it is beyond the scope of Congress' power pursuant to the Commerce Clause of the United States Constitution. (Doc. 24 at 8). Specifically, Defendant argues that the registration requirements of SORNA, which are incorporated into § 2250(a)(1), are unconstitutional because "Congress lacks the authority to require individuals convicted of purely local offenses to register as state sex offenders." (Doc. 24 at 8). Furthermore, Defendant argues that § 2250(a)(2)(B) provides an insufficient nexus to interstate commerce to bring this statute within the realm of Congress' powers under the Commerce Clause.

The United States Supreme Court has "identified three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Third, Congress has the power to regulate activities that substantially affect interstate commerce." Gonzales v. Raich, 545 U.S. 1, 16-17, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005)(internal citations omitted).

Here, we are clearly not dealing with the regulation of channels or instrumentalities of commerce. Nor are we dealing with the regulation of persons or things in interstate commerce². This is not a case where the interstate travel is intended to further the crime itself,³ such that a case by case determination can be made as to whether there is a sufficient nexus between the crime and interstate commerce. See United States v. Lopez, 514 U.S. 549, 561, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Indeed, the statute in question here makes no effort to regulate the interstate movement of persons who are sex offenders. Those persons are permitted to travel freely throughout the country without consequence, so long as they remain registered in the state in which they reside, work and/or go to school. Thus, to withstand scrutiny under the Commerce Clause, this statute must regulate activities that substantially affect interstate commerce.

Both parties agree that the relevant line of cases begins with United States v. Lopez, supra, in which the Supreme Court held that "the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A) [("§ 922(q)")], which made it a federal crime to knowingly possess a firearm in a school zone, exceeded Congress' authority under the Commerce Clause." United States v. Morrison, 529 U.S. 598, 609, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). There were four significant considerations supporting that decision.

First was the fact that "§ 922(q) was a criminal statute that by its terms has nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms." Id. at 610, 120 S.Ct. 1740. Second, "the statute contained no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce." Id. at 611, 120 S.Ct. 1740. Third, "neither § 922(q) nor its legislative history contains express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone." Id. at 612, 120 S.Ct. 1740. Finally, the Court rejected the "costs of crime" and "national productivity" arguments and "found that the link between gun possession and a substantial effect on interstate commerce was too attenuated." Id.

In United States v. Morrison, the Supreme Court held that the Commerce Clause did not provide Congress with the power to enact 42 U.S.C. § 13981 ("§ 13981"), which provided a federal civil remedy for victims of gender-motivated violence. See Morrison, 529 U.S. at 602-03, 619, 120 S.Ct. 1740. Just like the statute at issue in Lopez, the Court found that § 13981 did not regulate economic activity and did not contain a "jurisdictional element establishing that the federal cause of action is in pursuance of Congress' power to regulate interstate commerce." Id. at 613, 120 S.Ct. 1740. The Court did note that § 13981 was supported by numerous Congressional findings. However, those findings relied on the same "costs of crime" and "national productivity" arguments that the Court found wanting in Lopez. Morrison, 529 U.S. at 614, 120 S.Ct. 1740. Ultimately, the Court rejected "the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce." Id. at 617, 120 S.Ct. 1740.

Like the statutes at issue in Lopez and Morrison, SORNA has nothing to do with commerce or any form of economic...