U.S. v. Samuels

• Decision Date: 17 January 2008
• Docket Number: Criminal Action No. 07-62-DLB.
• Citation: 543 F.Supp.2d 669
• Parties: UNITED STATES of America, Plaintiff v. Tanz Reinaldo SAMUELS, Defendant.
• Court: U.S. District Court — Eastern District of Kentucky

Page 669

543 F.Supp.2d 669

UNITED STATES of America, Plaintiff v. Tanz Reinaldo SAMUELS, Defendant.

Criminal Action No. 07-62-DLB.

United States District Court, E.D. Kentucky, Northern Division, at Covington.

January 17, 2008.

Jon Alig, Vincent, Alig & Nageleisen, Covington, KY, for Defendant.

Anthony J. Bracke, U.S. Attorney's Office, Covington, KY, for Plaintiff.

MEMORANDUM OPINION AND ORDER

DAVID L. BUNNING, District Judge.

I. Introduction

This matter is before the Court on Defendant's Motion to Dismiss the Indictment. (Doc. # 15). After the government filed its initial response (Doc. # 18), the Court heard argument on the motion during a pretrial conference held on October 31, 2007. (Doc. # 20). Based on the arguments raised during the conference, the Court ordered further briefing. (Id.) Defendant has now filed his reply brief (Doc. # 21) to which the government has responded. (Doc. # 22). On November 29, 2007, the parties were provided the opportunity to make further oral argument on the motion. At the conclusion of that hearing, the motion was submitted for decision. For the following reasons, the motion to dismiss is denied.

II. Procedural History and Factual Background

The pertinent facts are essentially undisputed. Defendant Samuels, a native of Trinidad, was convicted in New York state court of Second Degree Rape on December 22, 1999. The offense date was November 30, 1998. Defendant was sentenced to four months imprisonment to be followed by a five year term of probation. Based on that conviction, New York law in effect at the time required that Defendant be designated as a sex offender and register as a sex offender for ten years. Defendant registered as a sex offender in New York on December 22, 1999.

Defendant's conditions of probation indicated that he was permitted to reside in Miami, Florida, as long as he remained enrolled in St. Thomas University In Florida. Defendant indicated on his initial registration form on December 22, 1999, that he would be residing at 219 N.E. 141 Street, in Miami, Florida. On the signed New York state registration form, it provides that if Samuels moves his residence to another state, he may be required to register as a sex offender in that state within 10 days of establishing a residence there. A copy of the New York state registration form has been made part of the record as Joint Exhibit 1. (Doc. # 19).¹ The conditions of probation also reflected that Defendant was determined to be a sex offender with a risk level of one and must comply with the provisions of the Sex Offender Registration Act. (Doc. # 25 at Joint Exhibit 2).

On December 30, 1999, Defendant filed a "Sex Offender Change of Address Form" indicating that his new address was 361 17th Street, # 2, Brooklyn, NY. 11215.² According to defense counsel, Defendant was scheduled to enroll at Iona University in New York. Other than this initial change of address form, Defendant has never filed any additional change of address forms with the registration authority in New York. Nor has he registered as a sex offender in Florida or Kentucky. His last registered address as a sex offender with any jurisdiction was the Brooklyn address on the December 30, 1999, form.

During the October 31, 2007, pretrial conference, Defendant acknowledged that he moved to Kentucky in December 2006. According to the criminal complaint which preceded the filing of the Indictment, Defendant was issued a Kentucky Drivers License on February 22, 2007. (Doc. # 1). Defendant provided a Burlington, Kentucky, address to obtain the license. Over the next several months, Defendant registered a car and motorcycle listing that same Burlington address. (Id.) On July 20, 2007, law enforcement officials confirmed that Defendant was residing in Burlington and was working at Auto Zone in Dry Ridge, Kentucky. At no time did Defendant ever register as a sex offender in Kentucky.

On September 13, 2007, the federal grand jury returned a one count indictment against the Defendant charging him with failing to register as a sex offender in violation of 18 U.S.C. § 2250(a). More specifically, the grand jury charged that —

On or about February 2007 and continuing through on or about August 27, 2007, in Boone County, in the Eastern District of Kentucky, Tanz Reinaldo Samuels, a person required to register under the Sex Offender Registration and Notification Act, and a sex offender by reason of a conviction under the law of New York, and having traveled in interstate commerce, did knowingly fail to register and update a registration, all in violation of 18 U.S.C. § 2250(a) (emphasis added).

III. Issues raised in Defendant's Motion to Dismiss

In his motion to dismiss, Defendant challenges the Indictment on four separate grounds. First, he argues that SORNA violates his constitutional right to due process. Second, because his interstate travel to Kentucky predated the effective date of the Attorney General's interim rule (February 28, 2007), he is not subject to prosecution under SORNA. Third, application of SORNA to his individual situation violates the ex post facto clause of the Constitution. Finally, SORNA constitutes an unlawful delegation of Congressional authority to the Attorney General.³ Each of the issues will be addressed seriatim.

IV. Analysis

A. Statutory Provisions

On July 27, 2006, President Bush approved Title I of the Adam Walsh Child Protection and Safety Act of 2006, including the Sex Offender Registration and Notification Act, commonly referred to as SORNA. SORNA creates a federally mandated, national sex offender registry law. See 42 U.S.C. §§ 16901-16962. The delineated purpose of SORNA is "to protect the public from sex offenders and offenders against children" and to establish "a comprehensive national system for the registration of those offenders." 42 U.S.C. § 16901. SORNA generally requires the states to conform their sex offender registration laws to the SORNA requirements at the risk of losing federal funding. SORNA also imposes registration requirements on sex offenders who are subject to federal jurisdiction and makes failure to register as a sex offender subject to a maximum penalty of ten years imprisonment.⁴

Subtitle (A) of SORNA establishes the programs, definitions, and registration requirements. SORNA defines the term "sex offender" as "an individual who was convicted of a sex offense" and classifies all sex offenders into three different categories. 42 U.S.C. § 16911(1)-(4). SORNA requires that every jurisdiction maintain a sex offender registry that conforms to certain statutory requirements, 42 U.S.C. § 16912, specifies when a sex offender must initially register, and sets forth the sex offender's continuing obligation to keep the registration current in 42 U.S.C. § 16913. The statute states in pertinent part:

(a) In general

A sex offender shall register, and keep 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, (emphasis added).

42 U.S.C. § 16913.

Subtitle (B) of SORNA is entitled "Improving Federal Criminal Law Enforcement To Ensure Sex Offender Compliance With Registration and Notification Requirements and Protection of Children From Violent Predators." This section of the Act amends Title 18 of the United States Code and creates a new federal crime for failure to register as a sex offender. See 18 U.S.C. § 2250(a). This 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 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). Thus, the essential elements for a § 2250(a) offense are that a defendant:

(1) was a sex offender as defined under SORNA and, therefore, required to register under SORNA;

(2) traveled in interstate commerce; and

(3) knowingly failed to...