U.S. v. Thompson

• Decision Date: 29 January 2009
• Docket Number: No. CR-08-205-B-W.,CR-08-205-B-W.
• Parties: UNITED STATES of America v. Kenneth THOMPSON.
• Court: U.S. District Court — District of Maine

595 F.Supp.2d 143

UNITED STATES of America v. Kenneth THOMPSON.

No. CR-08-205-B-W.

United States District Court, D. Maine.

January 29, 2009.

Gail Fisk Malone, Office of the U.S. Attorney, District of Maine, Bangor, ME, for United States of America.

Virginia G. Villa, Federal Defender's Office, Bangor, ME, for Kenneth Thompson.

ORDER DENYING MOTION TO DISMISS

JOHN A. WOODCOCK, JR., Chief Judge.

Charged with violating the Sex Offender Registration and Notification Act (SONA), Kenneth Thompson moves to dismiss the Indictment; the Court denies the motion. It concludes that SORNA does not violate the non-delegation doctrine, the Commerce Clause, the freedom to travel, the Due Process Clause, the Ex Post Facto Clause, and that venue is proper in the District of Maine.

I. BACKGROUND

On November 12, 2008, a federal grand jury indicted Kenneth Thompson for failure to register as a sex offender as required by SORNA, in violation of 18 U.S.C. § 2250(a). Indictment (Docket # 1). The Indictment alleges:

That beginning on or about August 31, 2007, and continuing until on or about April 18, 2008, in the District of Maine and elsewhere, [Kenneth Thompson] who had been convicted of a state sex offense and a federal child pornography offense in 2001 and was, as a result of those convictions, required to register under the Sex Offender Registration and Notification Act, traveled in interstate commerce and knowingly failed to register and update his registration as required by the [SORNA].

Id.

On December 8, 2008, Mr. Thompson moved to dismiss the Indictment on six grounds: (1) the non-delegation doctrine; (2) the Commerce Clause; (3) the freedom to travel; (4) the Due Process Clause; (5) the Ex Post Facto Clause¹; and, (6) improper venue. Mot. to Dismiss Indictment (Docket # 13) (Def.'s Mot). The Government responded on January 9, 2009. Mem. in Opp'n to Def.'s Mot. to Dismiss (Docket # 17) (Gov't's Opp'n). Mr. Thompson replied on January 20, 2009. Mem. in Reply to Gov't's Resp. to Mot. to Dismiss (Docket # 19) (Def.'s Reply).

II. DISCUSSION

A. The Motion to Dismiss

In returning an indictment, a grand jury is carrying out a constitutional function enshrined in the Bill of Rights. U.S. CONST. amend. V (stating that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury"). Accordingly, unlike civil actions, a criminal action, particularly one initiated by an indictment, is not generally subject to dispositive motion practice. United States v. DiTomasso, 552 F.Supp.2d 233, 238 (D.R.I.2008) (stating that "[a] motion to dismiss an indictment is not a device for a summary trial of the evidence, but rather is directed only toward the sufficiency of the indictment to charge an offense"). An indictment "is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590(1974); United States v. Vega Molina, 407 F.3d 511, 527 (1st Cir.2005).

Rule 12(b)(2) allows a party to raise "by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue," but the phrase "that the court can determine without a trial of the general issue" imposes a significant constraint. Fed.R.Crim.P. 12(b)(2). A motion to dismiss an indictment tests "its sufficiency to charge an offense," United States v. Sampson, 371 U.S. 75, 79, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962); thus, for example, a defendant may challenge defects in the institution of the prosecution or defects in the indictment itself. See Fed.R.Crim.P. 12(b)(3)(A), (B). But, in ruling on a motion to dismiss, the "allegations of the indictment must be taken as true." Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 343 n. 16, 72 S.Ct. 329, 96 L.Ed. 367 (1952); United States v. Bohai Trading Co., 45 F.3d 577, 578 n. 1 (1st Cir.1995).

B. Mr. Thompson's Motion

1. Non-Delegation Doctrine

The Court resolved the non-delegation issue in United States v. Stevens, 578 F.Supp.2d 172, 182-84 (D.Me.2008), and finds no cause to revisit it here.

2. Commerce Clause

The Court largely addressed Mr. Thompson's Commerce Clause challenges in Stevens, 578 F.Supp.2d at 184-85, and the analysis still applies. He raises one new issue: whether the prior federal conviction basis for a § 2250(a) conviction violates the Commerce Clause.²

Section 2250(a) establishes two means to satisfy the second element of the offense: under § 2250(a)(2)(A), status as a sex offender "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, under § 2250(a)(2)(B), travel "in interstate or foreign commerce" or entering, leaving, or residing in "Indian country." Mr. Thomas's challenge focuses on § 2250(a)(2)(A), arguing that because § 2250(a)(2)(A) does not require an element of interstate travel or foreign commerce, the statute lacks a jurisdictional basis. Def.'s Mot. at 6.³

The Court is aware of no circuit court decisions on point. However, numerous district courts have rejected Defendant's argument. The Western District of Texas recently explained:

[D]efendants 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).... In short, Defendant does not have standing to raise an attack on Commerce Clause grounds as he was convicted under federal law.

United States v. Santana, 584 F.Supp.2d 941, 946-47 (W.D.Tex.2008) (citation omitted); see also United States v. Reeder, No. EP-08-CR-977-DB, 2008 WL 4790114, at *3, 2008 U.S. Dist. LEXIS 105968, at *9-10 (W.D.Tex. Oct. 31, 2008) (same); United States v. Yelloweagle, No. 08-cr-00364-WYD, 2008 WL 5378132, at *2, 2008 U.S. Dist. LEXIS 105479, at *3-4 (D.Colo. Dec. 23, 2008) ("Like the other district courts that my research has revealed to have addressed the issue, I find that § 2250(a)(2)(A) raises no Commerce Clause implications."); United States v. Senogles, 570 F.Supp.2d 1134, 1147 (D.Minn.2008) ("[T]he provisions of Section 2250(a)(2)(A) do not raise Commerce Clause concerns, as they require that the defendant have a previous conviction under Federal law."); United States v. David, No. 1:08CR11, 2008 WL 2045830, at *8 n. 11, 2008 U.S. Dist. LEXIS 38613, at *25 n. 11 (W.D.N.C. May 12, 2008) ("The only other category of individuals who may be prosecuted under SORNA are those who have been convicted of a sex offense under federal law. 18 U.S.C. § 2250(a)(2)(A). This category, of course, has no Commerce Clause implications."). The Court agrees with its fellow district courts that the Commerce Clause is not implicated in a prosecution under § 2250(a)(2)(A).

3. Freedom to Travel

The Court addressed and resolved the same freedom to travel issues in Stevens, 578 F.Supp.2d at 185-86, which it adopts in full herein.

4. Due Process

Mr. Thompson argues that SORNA violates the Due Process Clause of the Fifth Amendment by punishing the failure to comply with non-existent requirements. Although presented in the context of a failure to state a claim, the Court rejected this argument in Stevens. Id. at 179-82. In Stevens, a criminal defendant claimed that the Government failed to allege an offense against him because neither Maine nor Rhode Island had fully implemented SORNA. Id. The Court noted that, under SORNA, a sex offender must "`register, and keep the registration current, in each jurisdiction where [he] resides.'" Id. at 179 (quoting 42 U.S.C. § 16913(a)). The Court observed that Maine law imposes a legal obligation to register as a sex offender. Id. (citing 34-A M.R.S.A. § 11223). Finally, the Court concluded that "[a] straightforward reading of the language of § 16913(a) suggests that, since he was required to register in Rhode Island and Maine, the jurisdictions where he was residing, he was also required by SORNA to do so." Id. In other words, SORNA imposes real, ongoing registration requirements on sex offenders; the Indictment alleges that Mr. Thompson failed to meet these requirements. The Court finds no Due Process violation.

5. Ex Post Facto Clause

Mr. Thompson next argues that his federal prosecution constitutes unconstitutional retroactive punishment. Citing a recent Maine district court decision, State v. Letalien, No. CR07-3082 (Me. Dist. Ct. 8, And., June 4, 2008), he contends that Maine's SORNA statute violates the Ex Post Facto Clause, and he concludes that his prosecution under the federal SORNA, which he argues is premised upon his failure to comply with the Maine SORNA, is itself unconstitutional.

The United States Supreme Court recently upheld Alaska's SORNA law against a challenge that it constituted retroactive punishment forbidden by the Ex Post Facto Clause. Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). In so doing, Smith applied the two-step method for analyzing the constitutionality of such statutes:

We must ascertain whether the legislature meant the statute to establish civil proceedings. If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate the State's intention to deem it civil. Because we...