U.S. v. Trent

• Decision Date: 24 July 2008
• Docket Number: Case No. 3:07cr196.
• Citation: 568 F.Supp.2d 857
• Parties: UNITED STATES of America, Plaintiff, v. Roger Dale TRENT, Defendant.
• Court: U.S. District Court — Southern District of Ohio

568 F.Supp.2d 857

UNITED STATES of America, Plaintiff, v. Roger Dale TRENT, Defendant.

Case No. 3:07cr196.

United States District Court, S.D. Ohio, Western Division.

July 24, 2008.

COPYRIGHT MATERIAL OMITTED

Laura Clemmens, Assistant U.S. Attorney, U.S. Attorney's Office, Dayton, OH, for the government.

F. Arthur Mullins, Assistant Federal Public Defender, Federal Public Defender's Office, Dayton, OH, for the defendant.

DECISION AND ENTRY OVERRULING DEFENDANT'S MOTION TO DISMISS INDICTMENT (DOC. # 22), AS SUPPLEMENTED BY DOC. # 31; DIRECTIVE TO GOVERNMENT'S COUNSEL

WALTER HERBERT RICE, District Judge.

Defendant Roger Dale Trent ("Defendant" or "Trent") is charged in the Indictment (Doc. # 12) with one count of traveling in interstate commerce and knowingly failing to register as a sex offender, as required by the Sex Offender Registration and Notification Act ("SORNA"), in violation of 18 U.S.C. § 2250(a). In its entirety, the Indictment provides:

Between on or about November 2, 2007 and November 25, 2007, the defendant, ROGER DALE TRENT, an individual required to register under the Sex Offender Registration and Notification Act, traveled in interstate commerce to the Southern District of Ohio and 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).

Doc. # 12. Section 2250(a) provides:

(a) In general.—Whoever—

(1) is required to register under the Sex Offender Registration and Notification Act;

(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 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

(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.¹

This case is now before the Court on the Defendant's Motion to Dismiss Indictment (Doc. # 22). Therein, Trent has presented four arguments in support of his request for dismissal, to wit: 1) Congress exceeded the authority granted to it by the Commerce Clause of the United States Constitution by enacting § 2250(a), because the statute lacks a sufficient nexus with interstate commerce; 2) the terms of the SONA clearly indicate that the statute did not apply to him, because Ohio had not implemented the SORNA at the time of the alleged offense; 3) he was not obligated to register, because the Government failed to give him notice of his duty to register in violation of the statute and the Due Process Clause of the Fifth Amendment;² and 4) Congress improperly delegated the legislative function of determining whether the statute would be applied retroactively to the Attorney General. The Government has filed a memorandum opposing Defendant's motion. See Doc. # 30. As a means of analysis, the Court will address the Defendant's four arguments in the above order. In addition, the Defendant has filed a Supplement to Motion to Dismiss Indictment (Doc. # 31), wherein he argues that Congress violated the Commerce Clause by enacting 42 U.S.C. § 16913(a), the provision of the SORNA under which he was required to register as a sex offender. The Court will address this additional argument in the context of ruling on Trent's Commerce Clause challenge to § 2250(a).

1. Commerce Clause

In support of his argument that § 2250(a) violates the Commerce Clause,³ Trent relies primarily on United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). In Lopez, the Supreme Court concluded that Congress had exceeded its authority under the Commerce Clause by enacting the Gun Free School Zones Act of 1990, 18 U.S.C. § 922(q), which prohibited the possession of a firearm in a school zone. The Lopez Court initially set forth the categories of activity that Congress may regulate under the Commerce Clause:

[W]e have identified three broad categories of activity that Congress may regulate under its commerce power. Perez [v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971) ]; see also Hodel [v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264 276-277, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981)]. First, Congress may regulate the use of the channels of interstate commerce. See, e.g., [United States v.] Darby, 312 U.S. [100, 114, 61 S.Ct. 451, 85 L.Ed. 609 (1941)]; Heart of Atlanta Motel, Inc. [v. United States, 379 U.S. 241, 256, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964)] ("`[T]he authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.'" (quoting Caminetti v. United States, 242 U.S. 470, 491, 37 S.Ct. 192, 61 L.Ed. 442 (1917))). Second, Congress is empowered to 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. See, e.g., Shreveport Rate Cases, 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341 (1914); Southern R. Co. v. United States, 222 U.S. 20, 32 S.Ct. 2, 56 L.Ed. 72 (1911) (upholding amendments to Safety Appliance Act as applied to vehicles used in intrastate commerce); Perez, supra, at 150, 91 S.Ct. at 1359 ("[F]or example, the destruction of an aircraft (18 U.S.C. § 32), or ... thefts from interstate shipments (18 U.S.C. § 659)"). Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, [NLRB v.] Jones & Laughlin Steel Corp., 301 U.S. [1, 37, 57 S.Ct. 615, 81 L.Ed. 893 (1937)], i.e., those activities that substantially affect interstate commerce, [Maryland v.] Wirtz, [392 U.S. 183, 196, n. 27, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968)].

Id. at 558-59, 115 S.Ct. 1624. The Lopez Court briefly addressed the first two categories, holding that neither supported the statute in question, and turned to the third. Id. at 559, 115 S.Ct. 1624. In holding that the Gun Free School Zones Act of 1990 did not substantially affect interstate commerce, the Lopez Court noted, inter alia, that the statute lacked a "jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." Id. at 561, 115 S.Ct. 1624.

The Defendant has also mentioned United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), wherein the Supreme Court held that Congress had exceeded its power under the Commerce Clause, by enacting 42 U.S.C. § 13981. That statute was the provision of the Violence Against Women Act of 1994 ("VAWA"), which afforded a civil remedy to the victims of violence motivated by gender. In the course of its decision, the Morrison Court noted that the statute at issue did not contain a jurisdictional element. "Like the Gun-Free School Zones Act at issue in Lopez, § 13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress' power to regulate interstate commerce." Id. at 613, 120 S.Ct. 1740. The Morrison Court also contrasted the absence of such an element from § 13981, with the inclusion of a jurisdictional element contained in the criminal provision of the VAWA, 18 U.S.C. § 2261(a), writing:⁴

The Courts of Appeals have uniformly upheld this criminal sanction as an appropriate exercise of Congress' Commerce Clause authority, reasoning that "[t]he provision properly falls within the first of Lopez's categories as it regulates the use of channels of interstate commerce-i.e., the use of the interstate transportation routes through which persons and goods move." United States v. Lankford, 196 F.3d 563, 571-572 (C.A.5 1999) (collecting cases) (internal quotation marks omitted).

Id. at 613 n. 5, 120 S.Ct. 1740.

However, since neither of those Supreme Court decisions addressed the constitutionality of § 2250(a) under the Commerce Clause, given that they were decided before that statute was enacted, Defendant places primary reliance on United States v. Powers, 544 F.Supp.2d 1331 (M.D.Fla.2008). Among the dozens of District Courts to address the issue, Powers is the only such court to conclude that § 2250(a) violates the Commerce Clause. Therein, the court rejected the proposition that the jurisdictional element set forth in § 2250(a) saved it from challenge under the Commerce Clause. For reasons which follow, this Court rejects the result reached in Powers and joins the majority of District Courts, thus concluding that Congress did not exceed its authority under the Commerce Clause by enacting § 2250(a).⁵

Section 2250(a) contains a jurisdictional element, applying, in addition to individuals convicted of certain federal offenses, only to those required to register by SORNA who have traveled in interstate commerce. The inclusion of such a jurisdictional element in the statute causes this Court to conclude that the statute does not violate the Commerce Clause. Although no appellate court has addressed this question, such courts have uniformly held that including in a criminal statute the requirement that the defendant travel in interstate commerce, as a jurisdictional element, is sufficient to defeat a Commerce Clause challenge. For instance, in United States v. Tykarsky, 446 F.3d 458 (3d Cir. 2006), the Third Circuit addressed a Commerce Clause challenge to 18 U.S.C. § 2423(b), which prohibits interstate travel for the purpose engaging of engaging in certain sexual conduct with a minor. The court rejected that challenge, because the jurisdictional element in the statute, traveling in interstate commerce, meant...