U.S. v. Santana

• Decision Date: 31 October 2008
• Docket Number: No. EP-08-CR-978-DB.,EP-08-CR-978-DB.
• Citation: 584 F.Supp.2d 941
• Parties: UNITED STATES of America v. Steven SANTANA aka Steven Santana Smith.
• Court: U.S. District Court — Western District of Texas

584 F.Supp.2d 941

UNITED STATES of America v. Steven SANTANA aka Steven Santana Smith.

No. EP-08-CR-978-DB.

United States District Court, W.D. Texas, El Paso Division.

October 31, 2008.

COPYRIGHT MATERIAL OMITTED

J. Brandy Gardes, Assistant U.S. Attorney, El Paso, TX, for Plaintiff.

MEMORANDUM OPINION AND ORDER

DAVID BRIONES, District Judge.

On this day, the Court considered Defendant Steven Santana Smith's "Motion To Dismiss Indictment," filed in the above-captioned cause on May 21, 2008. On June 9, 2008, the United States of America ("the Government") filed a "Response To Defendant's Motion To Dismiss Indictment" ("Response"), to which Defendant filed a Reply on June 20, 2008. On July 14, 2008, and August 13, 2008, respectively, the Government filed a "Supplemental Response To Defendant's Motion To Dismiss Indictment" and a "Second Supplemental Response To Defendant's Motion To Dismiss Indictment." After due consideration, the Court is of the opinion that Defendant's Motion should be denied.

BACKGROUND

On April 2, 2008, the grand jury sitting in El Paso returned a single-count Indictment against Defendant, charging that, from October 12, 2007, to March 13, 2008, Defendant failed to register as a sex offender as required under the Sex Offender Registration and Notification Act ("SONA"), in violation of 18 U.S.C. § 2250(a)(2)-(3). The Government expects the evidence at trial to show the following.

On January 5, 2007, Defendant was convicted of Carnal Knowledge in violation of United States Code of Military Justice ("UCMJ"), Article 120, and of Sodomy of a Child under 16 in violation of UCMJ, Article 125. Defendant received an eighteen-month sentence and a bad conduct discharge. On October 12, 2007, prior to his release from prison but after SORNA's enactment, Defendant signed and initialed DD Form 2791, a Notice of Release/Acknowledgment of Convicted Sex Offender Registration Requirements. Specifically, Defendant initialed Section 8, which stated that Defendant would reside in El Paso, Texas, when released on October 19, 2007. On this form, Defendant further acknowledged that he was subject to registration requirements as a sex offender in any State or U.S. Territory in which he resided, worked, or was a student.

Upon his release from military confinement, Defendant failed to report to the El Paso Police Department as instructed. Neither the Texas Sex Offender Registration database nor the Department of Justice's National Sex Offender Public Registry reflected that, at any time, Defendant had so reported and registered as a sex offender. Rather, on March 13, 2008, Defendant was located in Denver, Colorado, where he had resided since November 2, 2007.

SORNA'S STATUTORY SCHEME

On July 26, 2006, President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act").¹ SORNA is found in Title I of the Adam Walsh Act. 42 U.S.C.A. § 16901 (West Supp.2007).² SORNA acted to close the gaps and loopholes present in previous laws governing sex offender registration and was viewed as a means by which the nationwide network of sex offender registration and notification programs could be strengthened. The National Guidelines for SORNA, 72 Fed.Reg. 30210, 30211 (proposed May 30, 2007). As such, with federal funding as an incentive,³ SORNA directs the fifty (50) states to maintain sex offender registries that conform to SORNA's requirements and to enact laws penalizing a sex offender's failure to so register. 42 U.S.C.A. §§ 16912, 16913(e). Further, SORNA itself created a new federal offense for failing to register as a sex offender. In relevant part, title 18, section 2250 of the United States Code states that

whoever ... 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) ... [and] 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. 18 U.S.C.A. § 2250(a)(2)(A), (3) (West Supp.2008).

To be in compliance with SORNA, sex offenders must maintain registration "in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student." 42 U.S.C.A. § 16913(a). On February 28, 2007, the Attorney General issued an Interim Rule clarifying that "[t]he requirements of [SORNA] apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act." 28 C.F.R. § 72.3 (2007). In addressing the Interim Rule, the Attorney General clearly indicated that SORNA is "not limited to sex offenders whose predicate sex offense convictions occur following a jurisdiction's implementation of a conforming registration program." The National Guidelines for SORNA, 72 Fed.Reg. at 30212.

DISCUSSION

Through the instant Motion, Defendant contends that SORNA is unconstitutional in various respects. Specifically, Defendant argues that SORNA violates the Commerce Clause, the Due Process Clause, the Ex Post Facto Clause, the Non-Delegation Doctrine, and the Tenth Amendment. Further, Defendant argues that SORNA violates the Administrative Procedures Act, and that the Indictment in the instant case is insufficiently pleaded.⁴ The Government contends that SORNA is constitutional in all respects, that the Administrative Procedures Act is not violated, and that the instant Indictment is sufficiently pleaded. The Court addresses each argument below.

Before turning to Defendant's arguments, however, the Court notes that it is unclear whether Defendant raises facial or "as applied" challenges to SORNA. Due to the United States Supreme Court's ("Supreme Court") clear preference for "as applied" attacks, United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960), defendants raising facial challenges shoulder a heavy burden. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Indeed, outside the context of the First Amendment, a defendant raising a facial attack "must establish that no set of circumstances exists under which the Act would be valid." Id. Conversely, then, if a provision operates constitutionally in one case, a facial challenge must necessarily fail. See United States v. Robinson, 119 F.3d 1205, 1214 (5th Cir.1997). Consequently, to the extent possible, the Court construes Defendant's arguments as "as applied" challenges. Nevertheless, Defendant rarely applies the raised arguments to his own particular case. As such, in the absence of any clear application to his own case, the Court will consider Defendant's arguments as facial challenges.

Regardless of the nature of the constitutional attack, Defendant must still have standing to raise particular arguments. To have standing, one "must have suffered an `injury in fact'"—that is, an injury which is both concrete and particular. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Second, a causal connection must exist between the "injury in fact" and the conduct complained of, and, third, redress of the injury must be likely rather than speculative. Id. at 560-61, 112 S.Ct. 2130. The burden of establishing these elements falls squarely on the defendant. See id. at 561, 112 S.Ct. 2130. Throughout the instant Motion, Defendant raises several arguments that he patently lacks standing to make, as discussed more fully below.

A. Commerce Clause

In his first constitutional attack, Defendant contends that SORNA purports to regulate activities that substantially affect interstate commerce.⁵ As such, Defendant argues that SORNA violates the Commerce Clause in that SORNA regulates purely intrastate activity that does not substantially affect interstate commerce. Further, Defendant contends that SORNA lacks a jurisdictional element creating a link between Defendant's failure to register and interstate commerce, and, finally, Defendant argues that Congress made no findings that suggest a link to interstate commerce. The Government counters that, as Defendant was convicted under the UCMJ and is indicted under § 2250(a)(2)(A), his federal conviction does not require a Commerce Clause nexus. The Court agrees with the Government.

The United States Constitution ("Constitution") states that Congress shall "make Rules for the Government and Regulation of the land and naval Forces." U.S. CONST. art. I, § 8, cl. 14. Based on the Constitution, therefore, Congress has the exclusive authority to draft laws affecting the military. Id. The Uniform Code of Military Justice represents this law. Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 247, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960). Further, SORNA provides that sex offenders convicted under federal law, including the UCMJ, are required to register or face criminal penalties. 18 U.S.C.A. § 2250(a)(2)(A). As such, defendants indicted under § 2250(a)(2)(A) are held accountable for violations of federal—not state—law, which falls squarely within Congress' exclusive jurisdiction. As state laws are not implicated, Congress' Commerce Clause authority, granting Congress the power "to regulate Commerce with foreign Nations, and among the several States" does not represent the underlying principle through which Congress drafted § 2250(a)(2)(A). U.S. CONST. art. I, § 8, cl. 3.

Here, Defendant allegedly violated § 2250(a)(2)(A) in that he was convicted under the UCMJ and, thereafter, failed to register. Consequently, Defendant allegedly violated that portion of SORNA premised on a federal—not state—law conviction. As a result, Congress' Commerce Clause authority is not implicated in the instant case and an analysis of that authority is not warranted. In short, Defendant does not have standing to raise an attack on Commerce Clause grounds as he was convicted under federal law. Se...