U.S. v. Vardaro

• Citation: 575 F.Supp.2d 1179
• Decision Date: 05 September 2008
• Docket Number: Cause No. CR-08-04-BLG-RFC.
• Parties: UNITED STATES of America, Plaintiff, v. Jesse Lee VARDARO, Defendant.
• Court: U.S. District Court — District of Montana

575 F.Supp.2d 1179

UNITED STATES of America, Plaintiff, v. Jesse Lee VARDARO, Defendant.

Cause No. CR-08-04-BLG-RFC.

United States District Court, D. Montana, Billings Division.

September 5, 2008.

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Marcia Hurd, U.S. Attorneys Office, Billings, MT, for Plaintiff.

ORDER

RICHARD F. CEBULL, District Judge.

I. INTRODUCTION

Defendant Jesse Lee Vardaro is charged by Indictment with Failure to Register as a Sex Offender, in violation of 18 U.S.C § 2250(a). Defendant has filed a motion to dismiss the Indictment, asserting three grounds for dismissal: (1) Congress exceeded its powers under the Commerce Clause in enacting SORNA's registration requirements and making it a federal crime to fail to register; (2) Defendant's conviction would violate due process of law because Defendant was not notified of his obligation to register under SORNA; and (3) SORNA violates the Tenth Amendment because it requires state officials to accept federally-required sex offender registrations before any states choose to implement SORNA.

To date, the only Court of appeals to address Defendant's arguments is the Eighth Circuit. See United States v. May, 535 F.3d 912 (8th Cir.2008) (Holding that SORNA was not a violation of the ex post facto clause, did not violate due process, and did not violate the commerce clause.) The arguments have also been addressed and, for the most part, rejected by several district courts.

II. FACTUAL BACKGROUND

On December 13, 1989, an indictment was filed in the State of Texas, charging Defendant with Indecency with a Child Younger than 17 Years, a Third-Degree Felony. On January 26, 1990, Defendant was placed on a probationary sentence of ten years. In 1998, Defendant's probation was revoked and he was sentenced to confinement in the Institutional Division of the Texas Department of Criminal Justice.

On September 15, 2004, Defendant moved from Texas to his mother's residence in Maybee, Michigan. Upon changing his residence, Defendant registered as a sexual offender in Michigan with the Monroe County Sheriff's Office.

Defendant was recently assigned to work on an oil exploration project in Glendive, Montana. By virtue of his conviction under a sex offense under the Texas Penal Code, it is alleged in the Indictment, that Defendant is a person required to register under the Sex Offender Registration and Notification Act, and he traveled in interstate commerce from Michigan to the Montana, and did knowingly fail to register and/or update a registration, in violation of 18 U.S.C. § 2250(a).

III. BACKGROUND ON SORNA

On July 27, 2006, Congress enacted the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act"). Title I of the Adam Walsh Act contains the Sex Offender Registration and Notification Act (SORNA). SORNA establishes a national sex offender registry for the purpose of "protect[ing] the public from sex offenders and offenders against children." 42 U.S.C. § 16901.

The Act defines the term "sex offender" as "an individual who was convicted of a sex offense." Id. § 16911(1). Sex offenses include, inter alia, criminal offenses that have an element involving a sexual act or sexual contact with another and certain specified offenses against minors. Id. § 16911(5)(A). SORNA further classifies all sex offenders into three different tiers based on the nature of their crime of conviction. Id. § 16911(2)-(4). A sex offender's classification determines the number of years after a conviction registration is required and how frequently verification of information in the registry is required. Id. §§ 16915-16916.

SORNA requires states to incorporate its standards for sex offender registration and notification into their own laws and maintain a sex offender registry that conforms to certain statutory requirements. Id. § 16912. Information from each state's registry is to be made available on the internet in a manner that will permit the public to obtain relevant information for offenders within the state, and each state's website must be designed to allow it to integrate into and participate with the Attorney General's Dru Sjodin National Sex Offender Public Website. Id. §§ 16918, 16920. The Act also requires states to impose criminal penalties for a violation of its provisions. Id. § 16913 (requiring "criminal penalty that includes a maximum term of imprisonment that is greater than 1 year"). States that fail to implement SORNA's requirements within three years face a ten percent reduction in federal justice funding. Id. §§ 16924, 16925(d). To date, no state has fully complied with SORNA's requirements.¹

SORNA specifies when a sex offender must initially register and sets forth the sex offender's continuing obligation to keep his registration current. Id. § 16913. The statute states, in relevant part:

(a) In general

A sex offender shall register, and keep registration current, in each jurisdiction where the offender resides, where the offender is employed, and where the offender is a student. For initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence.

(b) Initial registration

The sex offender shall initially register—

(1) before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement; or

(2) not later than 3 business days after being sentenced for that offense, if the sex offender is not sentenced to a term of imprisonment.

(c) Keeping the registration current

A sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) of this section and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry. That jurisdiction shall immediately provide that information to all other jurisdictions in which the offender is required to register.

(d) Initial registration of sex offenders unable to comply with subsection (b) of this section

The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b) of this section. 42 U.S.C. § 16913.

Id. § 16913.

Pursuant to section 16913(d), the Attorney General issued an interim rule on February 28, 2007. The rule provided, "[t]he 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 the Act." 28 C.F.R. § 72.3 (2007).

SORNA also created a new federal offense for failing to register as a sex offender, with a maximum penalty of ten years imprisonment. 18 U.S.C. § 2250(a). The federal criminal statute provides:

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.

Id. § 2250(a).

IV. ANALYSIS

A. SORNA is a Valid Exercise of Congress' Commerce Clause Power.

Defendant's first contention in support of dismissal is that SORNA is not a valid exercise of Congress' Commerce Clause Power.

The Commerce Clause grants Congress the power "to regulate commerce with foreign Nations, and among the several states." U.S. Const. Art. I. § 8, cl. 3. The power to regulate commerce between the states includes the power to regulate: (1) "the use of channels of interstate commerce;" (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come from intrastate activities;" and (3) "those activities having a substantial relation to interstate commerce." United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Only a "rational basis" must exist for concluding that the activity legislated substantially affects interstate commerce. Gonzales v. Raich, 545 U.S. 1, 17, 22, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005).

Consistent with the overwhelming majority of district courts that have addressed the issue, I must also conclude that SORNA withstands a constitutional challenge under the second prong of the Lopez test because it regulates persons in interstate commerce. See Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624; United States v. Zuniga, No. 07-3156, 2008 WL 2184118, at *17-19 (D.Neb. May 23, 2008); United States v. Shenandoah, 572 F.Supp.2d 566, 575, 2008 WL 3854454, at *4 (M.D.Pa. August 20, 2008); United States v. Cochran, No. 08-0018, 2008 WL 2185427, at *2 (E.D.Okla. May 23, 2008); United States v. David, No. 08-11, 2008 WL 2045830, at *8-9 (W.D.N.C. May 12, 2008); United States v. Ditomasso, 552 F.Supp.2d 233, 245-46 (D.R.I.2008); United States v. Mason, No. 07-0052, 2008 WL 1882255, at *2-3 (M.D.Fla. Apr. 24, 2008); United States v. Mason, 510 F.Supp.2d 923, 931-32 (M.D.Fla. May 22, 2007); United States v. Craft, No. 07-3168, 2008 WL 1882904, at *8-11, 19-21 (D.Neb. Apr. 23, 2008); United States v. Fuller, No. 07-462, 2008 WL 2437869, at *8-10 (N.D.N.Y. June...