U.S. v. Torres

• Citation: 573 F.Supp.2d 925
• Decision Date: 21 August 2008
• Docket Number: No. 3:08-CR-1697-KC.,3:08-CR-1697-KC.
• Parties: UNITED STATES of America, v. Francisco TORRES.
• Court: U.S. District Court — Western District of Texas

573 F.Supp.2d 925

UNITED STATES of America, v. Francisco TORRES.

No. 3:08-CR-1697-KC.

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

August 21, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Erik Anthony Hanshew, Federal Public Defender, El Paso, TX, for Francisco Torres.

J. Brandy Gardes, Assistant U.S. Attorney, El Paso, TX, for United States of America.

ORDER

KATHLEEN CARDONE, District Judge.

On this day, the Court considered Defendant Francisco Torres's Motion to Dismiss Indictment ("Defendant's Motion") and Government's Response to Defendant's Motion to Dismiss Indictment ("Government's Response"). For the reasons set forth herein, Defendant's Motion is DENIED.

I. BACKGROUND

A. Procedural History

On May 7, 2008, the Government filed a Criminal Complaint against Defendant Francisco Torres, alleging that he violated Title 18, United States Code, § 2250— Failure to Register or Update a Registration by a Sexual Offender. Section 2250 is the enforcement provision of the Sex Offender Registration and Notification Act ("SORNA"), 42 U.S.C. §§ 16901 et seq. Later on May 7, 2008, the Government arrested Defendant pursuant to a warrant and without incident. On May 13, 2008, a Preliminary Hearing was held after which the Court found probable cause for Defendant's arrest.

On June 11, 2008, a Grand Jury sitting in El Paso, Texas, returned a single-count Indictment, charging Defendant with a violation of § 2250. Specifically, the Indictment states:

COUNT ONE

(18 U.S.C. § 2250—Failure to Register (Sex Offender))

Beginning on or about July 27, 2006 and continuing until on or about May 7, 2008, in the Western District of Texas and elsewhere, defendant

FRANCISCO TORRES,

being a person who is a sex offender as defined for the purpose of the Sex Offender Registration and Notification Act by reason of a conviction under the United States Code of Military Justice for: Article 120—Sodomy of a Child (one count) and Article 134—Indecency with a Child Under 16 (one count) on or about June 3, 1999, and who is required to register under the Sex Offender Registration and Notification Act, did knowingly fail to register and update a registration as required by the Sex Offender Registration and Notification Act, in violation of Title 18, United States Code, section 2250(a)(2) and (3).

Indictment 1-2.

B. Factual Background

The Government alleges that it can prove the following facts:

On or about June 3, 1999, Defendant was convicted of one (1) count of sodomy of a child in violation of Article 120 of the Uniform Code of Military Justice and was sentenced to twelve (12) years confinement, a dishonorable discharge from the Air Force, forfeiture of all pay and allowances, and reduction to E-1. On or about this same date, Defendant also was convicted of one (1) count of committing indecent acts upon a child in violation of Article 134 of the United States Code of Military Justice, and sentenced to nine (9) years confinement, a dishonorable discharge, forfeiture of all pay and allowances, and reduction to 1. The charges involved the repeated molestation (including fondling and simulated oral and vaginal sexual acts) over a 2-year period of a female family member under the age of 12.

On or about December 25, 2004, Defendant was released from the custody of the Federal Bureau of Prisons at FCI La Tuna, Anthony, Texas/New Mexico.

On December 30, 2004, Defendant completed his initial sex offender registration with the El Paso Police Department. During this initial registration, Defendant signed a CR-32 Pre-Release Notification Form Texas Sex Offender Registration Program, acknowledging he had a lifetime registration requirement and that he must update his registration every ninety (90) days.

On June 27, 2007, after the passage of both SORNA and the Attorney General's Interim Rule, Defendant signed a second CR-32 Pre-Release Notification Form, Texas Sex Offender Registration Program. On this form, Defendant acknowledged not only his lifetime registration requirement, but also indicated that he understood, inter alia, that "[n]ot later than the 7th day after the date of the change, I shall report to my primary registration authority any change in the following: my name (includes a request for name change and denial of a request), my physical health (includes hospitalization), job status (includes beginning and leaving employment and changing work locations)."

On various dates between March 31, 2005, and March 20, 2008, Defendant filed his quarterly registration update forms with the El Paso Police Department. During these registration reports, Defendant reported several changes in his employment status:

(a) On December 29, 2005, Torres reported a change in his employment from unemployed to self-employed in construction.

(b) On November 8, 2007, Torres reported a change to his employment status from self-employed as a construction worker to a welder with American Eagle Brick.

However, the American Eagle Brick is located in New Mexico. Despite this, Defendant did not register with the New Mexico authorities as required.

Additionally, according to Defendant's application for employment with American Eagle Brick, he was employed at Wal-Mart in El Paso, Texas, between April 2005 and July 2007, a time in which Defendant reported first, that he was unemployed, and then self-employed. Texas Workforce records confirm Defendant was employed from at least the second quarter of 2006 through the third quarter of 2007. Never during his various updates with the El Paso Police Department did Defendant report this employment.

On January 30, 2008, Defendant began employment with Webco General Partnership at the commissary located on Fort Bliss, Texas. Nevertheless, during a ninety day update on March 20, 2008, Defendant failed to notify the El Paso Police Department of this employment or any employment on Ft. Bliss.

Upon arrest, and after being advised of his Miranda rights and waiving the same, Defendant admitted he knew of his registration requirements and knowingly failed to register all the information as required.

Gov't's Resp. 4-7. See also Gov't's Criminal Compl. ("Complaint") 2-3.

C. The Instant Motion

On July 7, 2008, Defendant filed the instant Motion, arguing that his Indictment violated the Constitution, the Administrative Procedure Act, and was insufficiently pleaded. See generally Def.'s Mot. On July 18, 2008, the Government filed its Response, arguing that each of Defendant's objections is without merit, that SORNA is Constitutionally sound, and Defendant's Indictment is sufficiently pleaded. See generally Gov't's Resp.

II. DISCUSSION

A. Standard

Federal Rule of Criminal Procedure 12(b)(2) states that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." FED. R.CRIM.P. 12(b)(2); United States v. Lankford, 196 F.3d 563, 569 (5th Cir.1999). A party must raise before trial "a motion [that] alleged a defect in the indictment or information—but at any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court's jurisdiction or to state an offense[.]" FED.R.CRIM.P. 12(b)(3).

When challenging the constitutionality of a statute, a defendant may challenge the statute either on its face, or as the statute is applied to a defendant's particular circumstances. See United States v. Luna, 165 F.3d 316, 319-22 (5th Cir.1999) (analyzing the constitutionality of 18 U.S.C. § 922 both facially and as applied); United States v. Robinson, 119 F.3d 1205, 1213-15 (5th Cir.1997) (holding the Hobbs Act to be constitutional both facially and as applied to the defendant). In the instant case, while Defendant never specifies whether he challenges SORNA facially or as applied, Defendant appears to generally pursue a facial challenge of SORNA's constitutionality because he does not apply the alleged facts of the instant case to his constitutional analyses of the statute for most of his arguments. See generally Def.'s Mot. Nevertheless, inasmuch as Defendant's Motion argues for the Court to review the constitutionality of SORNA "as applied," the Court will do so.

Outside of the First Amendment context, a plaintiff may only succeed in a facial challenge to the constitutionality of a statute by "establishing that no set of circumstances exists under which the Act would be valid."¹ Washington State Grange v. Washington State Republican Party, ___ U.S. ___, ___ & n. 6, 128 S.Ct. 1184, 1190 & n. 6, 170 L.Ed.2d 151 (2008) (citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)); Center for Individual Freedom v. Carmouche, 449 F.3d 655, 662 (5th Cir.2006).

B. SORNA

On July 27, 2006, Congress enacted the Adam Walsh Child Protection and Safety Act of 2006 ("Walsh Act"), Pub.L. No. 109-248, 120 Stat. 587 (2006). The Act's stated goal is "to protect the public from sex offenders and offenders against children" and to "establish a comprehensive national system for the registration of those offenders." 42 U.S.C. § 16901. Title I of the Act—entitled the Sex Offender Registration and Notification Act ("SORNA")—creates a national sex offender registry law and mandates the procedure for sex offenders to register under the law. See 42 U.S.C. §§ 16901 et seq.

1. History

SORNA was preceded by the Jacob Wetterling Act ("Wetterling Act") in 1994, which is codified at 42 U.S.C. § 14071. That act provided federal funding to states which enacted sex offender registration laws, commonly known as "Megan's Laws." 42 U.S.C. § 14071. While the Act primarily was regulatory in nature, similar to SORNA, the Wetterling Act also provided criminal penalties of up to one year for a first offense, and up to ten years for subsequent offenses, for sex offenders who failed to register in any state they resided, worked or were a student. See 42 U.S.C. § 14072(i).

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