U.S. v. Talada

• Decision Date: 05 June 2009
• Docket Number: Criminal Action No. 5:08-cr-00269.
• Citation: 631 F.Supp.2d 797
• Parties: UNITED STATES of America, Plaintiff, v. Chad TALADA, Defendant.
• Court: U.S. District Court — Southern District of West Virginia

631 F.Supp.2d 797

UNITED STATES of America, Plaintiff, v. Chad TALADA, Defendant.

Criminal Action No. 5:08-cr-00269.

United States District Court, S.D. West Virginia, Beckley Division.

June 5, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Edward H. Weis, George H. Lancaster, Jr., Federal Public Defender's Office, Charleston, WV, for Defendant.

Blaire L. Malkin, U.S. Attorney's Office, Charleston, WV, for Plaintiff.

MEMORANDUM OPINION AND ORDER

THOMAS E. JOHNSTON, District Judge.

Before the Court is Defendant's Motion to Dismiss Indictment [Docket 24]. By Order entered February 25, 2009, this matter was referred to United States Magistrate Judge R. Clarke VanDervort for submission of proposed findings and a recommendation (PF & R). Magistrate Judge VanDervort filed his PF & R on April 17, 2009, 2009 WL 1625709 [Docket 31]. In that filing, the magistrate judge recommended that this Court deny Defendant's motion to dismiss the indictment. Objections to Magistrate Judge VanDervort's PF & R were due by May 4, 2009, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R.Civ.P. 72(b). Plaintiff timely filed objections on April 30, 2009.

I. BACKGROUND

The underlying facts of this case are uncontested. On May 17, 2002, Defendant Chad Talada was convicted of attempted sexual abuse in the first degree. On May 21, 2004, Defendant was convicted of possessing a sexual performance by a child less than sixteen years of age. Both were felony convictions in Chemung County, New York. Defendant was required to register as a sex offender and did so in the State of New York following each of his convictions.

In April of 2007, Defendant moved from New York to Beckley, West Virginia. Defendant did not register as a sex offender in West Virginia until he was arrested by local law enforcement officers on June 26, 2008. On December 10, 2008, a federal grand jury charged Defendant with failure to register as a sex offender in violation of 18 U.S.C. § 2250. Defendant filed a motion to dismiss the indictment, challenging the constitutional and legal validity of the Sex Offender Registration and Notification Act (SORNA or the Act), 42 U.S.C. §§ 16901, et seq., 18 U.S.C. § 2250, and regulations promulgated pursuant to SORNA.

The PF & R provides a detailed description of the background and legislative history of SORNA. In short, SORNA is Title I of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (2006), which was signed into law on July 27, 2006. SORNA "establishes a comprehensive national system for the registration of [sex] offenders."¹ 42 U.S.C. § 16901. Section 141(a) of SORNA, 18 U.S.C. § 2250(a), imposes a sentence of up to ten years of imprisonment for anyone who is required to register under SORNA, travels in interstate commerce, and knowingly fails to register as a sex offender in the new jurisdiction or update a registration as required by SORNA.² Pursuant to Section 113, 42 U.S.C. § 16913,³ SORNA's registration provision, a sex offender is required to register in any state where the offender resides, is an employee, or is a student, as well as the jurisdiction of his conviction if different from his residence.

Congress did not determine whether SORNA would apply to offenders convicted prior to SORNA's effective date of July 27, 2006. Rather, in Section 113(d), Congress assigned this determination to the Attorney General and authorized the Attorney General to promulgate regulations pertaining to the registration of sex offenders under SORNA. On February 28 2007, the Attorney General issued an interim rule stating: "The requirements of the Sex Offender Registration and Notification Act 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 (emphasis added). Therefore, at the time of Defendant's indictment, sex offenders were required to comply with SORNA even if their convictions for sexual offenses occurred prior to the enactment of SORNA. See United States v. Hatcher, 560 F.3d 222, 229 (4th Cir.2009) (holding that SORNA's registration requirements did not apply to pre-SORNA offenders until after the Attorney General issued the interim rule specifying the applicability of SORNA's registration requirements to those offenders); see also United States v. Smith, 528 F.Supp.2d 615, 620 (S.D.W.Va. 2007) (Goodwin, C.J.).⁴

Since the enactment of SORNA, the constitutionality of the Act has been considered by various district courts and courts of appeal. In the vast majority of courts, SORNA has withstood constitutional challenges. However, neither the United States Supreme Court nor the Fourth Circuit has had occasion to provide guidance on the constitutional questions presented here. See Hatcher, 560 F.3d at 223-24 (because SORNA's requirements did not apply to appellants at the time they failed to register under SORNA, the Fourth Circuit determined that it did not need to reach the constitutional questions presented by the appellants).⁵

II. STANDARD OF REVIEW

This Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C). However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

III. OBJECTIONS

Defendant makes six objections to the PF & R, each of which is addressed below.⁶

A. Objection to Finding that SORNA's Requirements Apply before Comprehensive Regulatory System is in Effect

Defendant "objects to the legal conclusion that Congress may require sex offender registration of state sex offenders and punish those who cross state lines and fail to register before the comprehensive regulatory system is in effect." (Docket 32 at 1 (emphasis in original).) Defendant points out that as of the date of his indictment, neither West Virginia nor any other state was in compliance with SORNA's requirements. The magistrate judge found that Defendant could be charged under SORNA even though West Virginia has not fully implemented all SORNA standards.

As stated above, SORNA provides a "comprehensive set of minimum standards for sex offender registration and notification in the United States." The National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 38030-01, 38044 (July 2, 2008) (SMART guidelines).⁷ "Among other things, SORNA requires every state to maintain a sex offender registry conforming to SORNA's requirements; requires certain persons to register as sex offenders in each state where they reside, where they are employed, and where they are a student; and requires those persons to keep their registrations current." Hatcher, 560 F.3d at 230 (citations omitted). Section 124 of SORNA, 42 U.S.C. § 16924(a), sets a general time frame of three years for implementation, running from the date of the enactment of SORNA, July 27, 2006, and authorizes the Attorney General to provide up to two one-year extensions of this deadline. As set forth in Section 125 of SORNA, 42 U.S.C. § 16925, "For any fiscal year after the end of the period for implementation, a jurisdiction that fails, as determined by the Attorney General, to substantially implement this subchapter shall not receive 10 percent of the funds that would otherwise be allocated for that fiscal year to the jurisdiction under [42 U.S.C. § 3750, et seq.]."⁸ However, nothing in SORNA or its guidelines indicates that a jurisdiction's failure to comply with SORNA relieves offenders of the obligation to register in that jurisdiction.

Instead, Congress instructed the Attorney General to "specify the applicability of the requirements of [the Act] to sex offenders convicted before [its enactment] or its implementation in a particular jurisdiction." 42 U.S.C. § 16913(d) (emphasis added). Thus, by this language Congress delegated two important decisions to the Attorney General. First, the Attorney General was to determine whether SORNA would apply to individuals whose sex offense convictions predated SORNA's enactment on July 27, 2006. Second, the Attorney General was to specify whether SORNA would apply to those convicted of sex offenses after SORNA's enactment but before its implementation in a particular state.

By stating that "[t]he requirements of the Sex Offender Registration and Notification Act apply to all sex offenders," 28 C.F.R. § 72.3 (emphasis added), the Attorney General announced that offenders are required to register in jurisdictions where SORNA has not been implemented.⁹ See United States v. Dixon, 551 F.3d 578, 582 (7th Cir.2008).

Other courts agree that SORNA's registration requirements apply even when a jurisdiction has not implemented all requirements under SORNA. See United States v. Stevens, 578 F.Supp.2d 172, 181 (D.Me.2008) (holding that SORNA imposes a general obligation to register regardless of whether the state implements the additional registration requirements of SORNA); see also United States v. Waybright, 561 F.Supp.2d 1154, 1172 (D.Mont.2008). For example, the court in United States v. Gould held that Maryland's failure to implement SORNA did not preclude a defendant's prosecution for failing to register as a sex offender under SORNA. 526 F.Supp.2d 538, 542 (D.Md.2007). In Gould, the defendant "highlight[ed] the differences between SORNA and existing Maryland sex offender registration requirements and contend[ed] that Maryland did not have the infrastructure available for Gould to comply with SORNA." Id. In addition, the defendant asserted that "his failure to register under Maryland law had no...