U.S. v. Smith

• Decision Date: 08 March 2007
• Docket Number: No. 06-20674.,06-20674.
• Citation: 481 F.Supp.2d 846
• Parties: UNITED STATES of America, Plaintiff, v. Bobby SMITH, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

481 F.Supp.2d 846

UNITED STATES of America, Plaintiff, v. Bobby SMITH, Defendant.

No. 06-20674.

United States District Court, E.D. Michigan, Southern Division.

March 8, 2007.

Saima S. Mohsin, U.S. Attorney's Office, Detroit, MI, for Plaintiff.

Federal Defender, James R. Gerometta, Federal Defender Office, Detroit, MI, for Defendant.

OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS COUNT I OF THE FIRST SUPERSEDING INDICTMENT

BORMAN, District Judge.

Before the Court is Defendant's December 28, 2006 Motion to Dismiss Count I of the First Superseding Indictment. (Docket No. 11). The Government filed its Response on January 18, 2007. (Docket No. 17). The Court held a motion hearing on February 22, 2007. Having considered the entire record, and for the reasons that follow, the Court GRANTS Defendant's Motion to Dismiss Count I of the First Superseding Indictment.

I. BACKGROUND

Defendant Bobby Smith ("Defendant") was convicted of first-degree rape and sodomy, in the State of New York on November 13, 1989. Defendant was sentenced in New York for a period of eight (8) to sixteen (16) years. Defendant was released from state prison custody on March 20, 2004.

Prior to his state prison release date, on February 20, 2004, Plaintiff was advised by a corrections counselor of his obligation under New York state law to register as a sex offender. At that time, Defendant was provided with the New York State Sex Offender Registration Form. Defendant understood that he was required (1) to register with the New York Division of Criminal Justice Services ("DCJS") within fifteen (15) days of his release so that the authorities could verify Defendant's residence upon release from custody; (2) to notify DCJS within ten (10) days of establishing another residence; (3) to register as a sex offender if he moved to another state within ten (10) days of establishing a residence; and (4) to register in any state in which he was employed or was a student.

It is undisputed that Defendant did not comply with the New York State sex offender requirements. Indeed, upon his release from custody, Plaintiff provided to New York a false post-release address in Brooklyn, New York. At some point after his release from New York state prison, but by August 2004, Defendant moved to Detroit, Michigan. After the New York authorities learned of Defendant's residence in Detroit, the New York Sex Offender Monitoring Unit sent Defendant a letter on January 3, 2006, reminding him of his New York state registration requirement. Defendant did not respond to that letter, nor did he register as a sex offender in New York or in Michigan, as required under Michigan law. New York authorities have not requested that the State of Michigan extradite Defendant to New York.

The United States Attorney's Office in Detroit secured a One-Count Indictment on December 20, 2006, charging Defendant with a violation of Title 18. U.S.C. § 2250, Failure to Register as a Sex Offender, between April 2004 and December 20, 2006. On December 28, 2006, Defendant filed a Motion to Dismiss the single-count Indictment.

Thereafter, on January 18, 2007, the United States Attorney secured a First Superseding Indictment against Defendant, charging two offenses: Count I (Felony): Failure to Register as a Sex Offender, under 18 U.S.C. § 2250, for the period between July 27, 2006 and December 20, 2006; Count II (Misdemeanor): Failure to Register as a Sex Offender, under 42 U.S.C. § 14072(i) for the period between August 2004 and July 27, 2006. July 27, 2006 was the date of enactment of 18 U.S.C. § 2250, the statute that created a new 10 year felony offense for failure to register. Previous to July 27, 2006, federal prosecution for failure to register was limited to the misdemeanor offense contained in Title 42, which, as evidenced by Count II of the Superseding Indictment, continues to be an available statute for prosecution for failure to register after the July 27, 2006 enactment of the felony offense. Thus, the Government has now charged two different criminal offenses covering the same conduct charged in the initial single-count felony indictment under 18 U.S.C. § 2250.

Title 18 U.S.C. § 2250 provides, in pertinent part, whoever (1) is required to register as a sex offender under SORNA, (2) travels in interstate commerce, and (3) knowingly fails to register as required by SORNA shall be imprisoned not more than 10 years. In the instant case, the second element is at issue: — travels in interstate commerce.

Defendant's Motion to Dismiss argues that the use of the phrase "travels in interstate commerce" in 18 U.S.C. § 2250 is written in forward-looking language, and therefore the law applies only to an individual who travels after the July 27, 2006 implementation of the law. Defendant further contends that the language is clear, no "statutory construction" is required, and that given the "plain meaning" of the statute, to apply § 2250 to his conduct would violate the clear intent of Congress. Defendant further contends that applying § 2250 to him would violate the ex post facto clause of the Constitution.

The Government response argues that, although enacted on July 27, 2006, § 2250 applies retroactively to individuals who traveled in interstate commerce prior to its enactment, if he failed to register after July 27, 2006. The Government contends that (1) the Supreme Court, and the majority of state courts, have held that the retroactive application of sex offender registration requirements, due to their civil and non-punitive natures, do not violate the ex post facto clause whose application is limited to criminal laws; and (2) the Government has met the jurisdictional requirement of the statute by asserting that Defendant traveled from New York to Detroit in 2004.

II. ANALYSIS

A. Adam Walsh Child Protection Act of 2006

In 1994, Congress passed the Violent Crime Control and Law Enforcement Act, which included Title XVII: the Jacob. Wetterling Crimes Against Children and Sexually Violent Offender Registration Act. P.L. 103-322. Title XVII established, inter alia, a requirement that sex offenders register a current address with a state law enforcement agency for a period of ten (10) years after release from prison. If the individual knowingly failed to register under the law, the individual faced up to one year imprisonment; a second-time offender faced up to ten (10) years imprisonment. 42 U.S.C. § 14072(i).

On July 27, 2006, Congress enacted the Adam Walsh Child Protection and Safety Act. P.L. 109-248. The 2006 Act amended the registration requirements for sex offenders, and increased the criminal penalties for individuals who failed to comply with the Act's requirements. According to the legislative history, the Act created "a new Federal crime" where "[s]ex offenders who fail to comply will face felony criminal prosecution." H.R. REP, No. 109-218, at 36 (2005).

The specific provision at issue in the instant case, Section XXX of the 2006 Act, codified in 18 U.S.C. § 2250, provides, in relevant part:

(a) In general. — Whoever —

(1) is required to register under the Sex Offender Registration and Notification Act ("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 Cede 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.

(emphasis added).

The 2006 statute also provided that Attorney General would have the authority to specify how the Act's registration requirements would apply to those individuals convicted before July 27, 2006:

(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(d). The, Attorney General has not, as of March 2, 2007, specified the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006.

Further, this Court notes that the 2006 Act contains language that will, in the future, repeal the misdemeanor offense, 42 U.S.C. § 14072, either (1) three years after July 27, 2006 or (2) one year after the date on which the software described in 42 U.S.C. § 16923 becomes available. P.L. 109-248, Title I, § 129. Thus, the misdemeanor statute relied upon in Count II of the instant indictment continues to apply to Defendant's conduct after July 27, 2006. Defendant's motion does not challenge Count II, applying the misdemeanor statute, 42 U.S.C. § 14072(i).

B. "Travels" versus "Traveled" in Interstate Commerce

Defendant urges the Court to limit the applicability of 18 U.S.C. § 2250 to a sex offender who travels in interstate commerce after the effective date of the Act, July 27, 2006. Defendant argues that the statute's use of the term "travels," rather than "traveled," confirms a forward-looking intent that the law would apply to one who travels in interstate commerce after July 27, 2006, and thereafter fails to register according to the terms of the Act.

1. Statutory Construction

The United States Court of Appeals for the Sixth Circuit has recently summarized the initial analysis for questions of statutory construction; start with the...