U.S. v. Tom, Civil No. 06-3947 (PAM/JSM).

Decision Date23 May 2008
Docket NumberCivil No. 06-3947 (PAM/JSM).
Citation558 F.Supp.2d 931
PartiesUNITED STATES of America, Petitioner, v. Roger Dean TOM, Respondent.
CourtU.S. District Court — District of Minnesota

Joan D. Humes, United Health Group, Minnetonka, MN, Mary L. Trippler, Perry F. Sekus, United States Attorney's Office, Minneapolis, MN, for Petitioner.

Andrew H. Mohring, Caroline Durham, Katherine D. Roe, Office of the Federal Defender, Minneapolis, MN, for Respondent.


PAUL A. MAGNUSON, District Judge.

This matter is before the Court on Respondent Roger Dean Tom's ("Tom") Motion to Dismiss. For the reasons that follow, the Court grants the Motion.


In 1997, Tom pled guilty in the District of Utah to one count of aggravated sexual abuse in violation of 18 U.S.C. § 2241(c) and was sentenced to 120 months in prison and 60 months of supervised release. The Bureau of Prisons ("BOP") assigned him to the Federal Medical Center in Rochester, Minnesota ("FMC-Rochester"), from where he was scheduled for release on October 4, 2006.

On October 2, 2006, Tom's release was stayed after the United States of America ("Government") filed a petition pursuant to 18 U.S.C. § 4248(a), which authorizes the BOP to "stay the release" of an inmate whom the BOP certifies as a "sexually dangerous person" until the Court can determine whether there is clear and convincing evidence that the person is in fact sexually dangerous. According to the petition, FMC-Rochester mental health staff examined Tom and determined that he was a sexually dangerous person. (Pet. at 1-2.) He has served no portion of supervised release. (Supp. Mem. at 3.)

Pursuant to § 4248(a), the Court scheduled a hearing to determine whether there is clear and convincing evidence of Tom's sexual dangerousness. Tom canceled the hearing by filing this Motion alleging that § 4248 violates the United States Constitution.

The parties characterize the Motion as the first of its kind in the Eighth Circuit but cite four decisions from other Districts addressing the constitutionality of § 4248. Three courts have determined that § 4248 was a valid exercise of Congressional power. United States v. Dowell, No. 06-CV-1216-D, 2007 U.S. Dist. LEXIS 96564 (W.D.Okla. Dec. 5, 2007); United States v. Shields, 522 F.Supp.2d 317 (D.Mass.2007); United States v. Carta, 503 F.Supp.2d 405 (D.Mass.2007). One court has ruled that Congress exceeded its power by enacting § 4248. United States v. Comstock, 507 F.Supp.2d 522 (E.D.N.C.2007).

A. 18 U.S.C. § 4248

The statute at issue, 18 U.S.C. § 4248, is part of the Adam Walsh Child Protection and Safety Act that Congress enacted in July of 2006. It was described as "[a]n Act [t]o protect children from sexual exploitation and violent crime, to prevent child abuse and child pornography, to promote Internet safety, and to honor the memory of Adam Walsh and other child crime victims." Pub.L. No. 109-248, 120 Stat. 587 (2006). Section 4248(a) reads in its entirety:

In relation to a person who is in the custody of the Bureau of Prisons, or who has been committed to the custody of the Attorney General pursuant to section 4241(d), or against whom all criminal charges have been dismissed solely for reasons relating to the mental condition of the person, the Attorney General or any individual authorized by the Attorney General or the Director of the Bureau of Prisons may certify that the person is a sexually dangerous person, and transmit the certificate to the clerk of the court for the district in which the person is confined. The clerk shall send a copy of the certificate to the person, and to the attorney for the Government, and, if the person was committed pursuant to section 4241(d), to the clerk of the court that ordered the commitment. The court shall order a hearing to determine whether the person is a sexually dangerous person. A certificate filed under this subsection shall stay the release of the person pending completion of procedures contained in this section.

"Sexually dangerous person" is defined as "a person who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others." 18 U.S.C. § 4247(a)(5). "Sexually dangerous to others" means that "the person suffers from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released." Id. § (a)(6).

After a hearing, if "the court finds by clear and convincing evidence that the person is a sexually dangerous person, the court shall commit the person to the custody of the Attorney General." 18 U.S.C. § 4248(d). On such a finding, the BOP is required to request that the state where the person is domiciled or was tried "assume responsibility for his custody, care, and treatment." Id. If the state refuses, then the Attorney General takes custody of the person and places him in a "suitable facility" until the state agrees to assume responsibility or the person no longer is sexually dangerous, whichever is earlier. Id.

The statute appears in Chapter 313 of the Criminal Code, 18 U.S.C. §§ 4241-4248, titled "Offenders with Mental Disease or Defect." Chapter 313 also contains provisions pertaining to mental competency to stand trial, insanity at time of offense, hospitalization of those found not guilty by reason of insanity, hospitalization of those with mental disease or defect, and hospitalization of a person due for release but suffering from a mental defect.

B. "Facial" Challenge

Tom's argument is that the Government's Petition must be dismissed because (1) neither the Constitution's Commerce Clause nor Necessary and Proper Clause authorized Congress to enact the statute, (2) the statute violates due process and equal protection, and (3) the statute is a criminal sanction requiring the Government to establish sexual dangerousness beyond a reasonable doubt. The Government characterizes the Motion as a "facial" challenge that fails because even if the statute cannot constitutionally be applied to Tom, it conceivably could be applied to someone consistent with the Constitution. See, e.g., Wash. State Grange v. Wash. State Republican Party, ___ U.S. ___, 128 S.Ct. 1184, 1190, 170 L.Ed.2d 151 (2008) (facial challenge permitted only when party "`establishes] that no set of circumstances exists under which the Act would be valid,' i.e. that the law is unconstitutional in all of its applications") (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)).

Facial challenges arise most often when a party claims a deprivation of a constitutionally protected liberty. See id. at 1187 (examining facial validity of election law with respect to First`Amendment); Salerno, 481 U.S. at 755, 107 S.Ct. 2095 (holding that Bail Reform Act provision was not facially invalid under Fifth or Eight Amendments). "[F]acial challenges are best when infrequent," and are not the preferred means for challenging Congress's power to enact a statute. Sabri v. United States, 541 U.S. 600, 608-10, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004) (rejecting "facial" challenge to Congress's power to enact criminal bribery statute and characterizing constitutional claim as "an overbreadth challenge"); see also Carta, 503 F.Supp.2d at 407 ("[t]he precise test to apply to a facial challenge is not clear").

Although Tom alleges deprivation of constitutional liberties, his first argument is that Congress had no authority to enact § 4248. As the Court in Comstock concluded, "[i]f Congress lacked the authority to enact the [§ 4248] civil commitment scheme at issue ... the commitment scheme could not be constitutionally applied." Comstock, 507 F.Supp.2d at 528. Thus, if Tom succeeds in his argument that Congress lacked authority to enact § 4248, it is of no moment whether a facial challenge might succeed.

C. Congressional Power

The Commerce and Necessary and Proper Clauses are in Article 1, Section 8 of the United States Constitution, which governs Congress's power to enact statutes. The Commerce Clause authorizes Congress "[t]o regulate Commerce .. . among the several States." U.S. Const, art. 1, § 8, cl. 3. The Necessary and Proper Clause authorizes Congress "to make all laws which shall be necessary and proper for carrying into Execution the forgoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Id. cl. 18. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X. If Congress has exceeded its constitutional authority in enacting a statute, then the statute may not be given effect and an action founded on it must be dismissed. United States v. Morrison, 529 U.S. 598, 604, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000); United States v. Lopez, 514 U.S. 549, 551, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); Comstock, 507 F.Supp.2d at 560.

1. Commerce Clause

The Commerce Clause authorizes Congress to (1) "regulate the use of the channels of commerce"; (2) "regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities"; and (3) "regulate those activities having a substantial relation to interstate commerce." Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624 (1995); see also Morrison, 529 U.S. at 608-09, 120 S.Ct. 1740. In furtherance of this power, Congress may make any "necessary and proper" law. U.S. Const. art. 1, § 8, cl. 18. Because there is no suggestion that § 4248 involves either the "channels of commerce" or "instrumentalities of interstate commerce," the question is whether the activities at issue have a "substantial relation to interstate commerce."

a. Lopez and Morrison

In Lopez, the Court...

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