U.S. v. Vasquez

• Decision Date: 19 September 2008
• Docket Number: No. 07 CR 565.,07 CR 565.
• Citation: 576 F.Supp.2d 928
• Parties: UNITED STATES of America v. Isaac VASQUEZ.
• Court: U.S. District Court — Northern District of Illinois

576 F.Supp.2d 928

UNITED STATES of America v. Isaac VASQUEZ.

No. 07 CR 565.

United States District Court, N.D. Illinois, Eastern Division.

September 19, 2008.

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Isaac Vasquez, Centralia, IL, pro se.

Gabriel Bankier Plotkin, Miller Shakman & Beem LLP, Chicago, IL, for Isaac Vasquez.

AUSA, Michael James Ferrara, United States Attorney's Office, Chicago, IL, for United States of America.

OPINION AND ORDER

CHARLES R. NORGLE, District Judge.

Before the Court is Defendant Isaac Vasquez's Motion to Dismiss the Indictment pursuant to FED.R.CRIM.P. 12(b)(2). The indictment charges the Defendant with failing to register as a sex offender under the 2006 Sex Offender Registration and Notification Act, or "SORNA," codified at 42 U.S.C. § 16912 et seq. The Defendant raises a variety of constitutional and procedural challenges to SORNA, which the Court shall determine as a matter of first impression. For the following reasons, the Defendant's motion is denied.

I. BACKGROUND

A. FACTS

On October 28, 1998 Isaac Vasquez ("Vasquez") pleaded guilty in the Circuit Court of Cook County, Illinois to "Predatory Criminal Sexual Assault of a Minor Under the Age of 13." He was sentenced to six years imprisonment. On December 19, 2003, upon his release, Vasquez registered as a sex offender pursuant to Illinois law. On August 22, 2004, Vasquez moved residences in Illinois but failed to report a change of address. Authorities arrested Vasquez for his failure to report a change in address, and thereafter he pleaded guilty to the charge. He was sentenced to one year imprisonment. On March 14, 2005, one day prior to his release, Vasquez signed a notification form through which he acknowledged his duty to register as a sex offender and that a failure to do so would constitute a criminal offense. Despite the notice, Vasquez failed to register upon his release.

After April 11, 2007, Vasquez left the Northern District of Illinois and traveled to California. Again, he failed to register as a sex offender. As alleged in the indictment, this took place "[f]rom on or about, May 2007, through on or about July 3, 2007." On or about July 3, 2007, United States Marshals arrested Vasquez in Los Angeles County, California. On February 5, 2008 the United States Attorney for the Northern District of Illinois filed a one-count indictment against Vasquez, charging him with a violation of 18 U.S.C. § 2250 for his failure to register as a sex offender and to update his registration in Illinois, after traveling in interstate commerce.

B. PROCEDURAL HISTORY

On May 5, 2008 Vasquez moved to dismiss the indictment on five grounds. They are as follows:

(1) (a) Registration under SORNA violates the Defendant's Due Process rights because the statute makes it a crime to "knowingly fail to register or update a registration." Defendant's conviction occurred prior to SORNA's enactment, thus it was impossible for him to "knowingly" fail to register as required; otherwise, (b) SORNA violates the Tenth Amendment and (c) violates the Commerce clause (2) The indictment also violates the Defendant's Due Process rights by charging him with a crime for which he had no notice;

(3) SORNA's registration requirements are an unconstitutional exercise of Congress' authority under the Commerce Clause;

(4) (a) Congress violated the nondelegation doctrine when it delegated to the Attorney General the decision of whether SORNA would apply retroactively; and, nevertheless, (b) the Attorney General failed to abide by the Administrative Procedure Act when it determined SORNA's retroactivity; and

(5) (a) The indictment failed to allege the dates upon which the Defendant traveled; and (b) a prosecution pursuant to 18 U.S.C. § 2250 violates the Ex Post Facto clause of the Constitution because it imposes a more severe punishment on him than the law permitted at the time Vasquez committed the crime.

The motion is fully briefed and before the Court.

II. DISCUSSION

A. STANDARD OF DECISION

Vasquez's arguments are neither innovative nor unique. Although these arguments are a matter of first impression for this Court, District Courts throughout the United States have considered identical arguments to strike down SORNA and, for the most part, have rejected them. It has long been established that there is a presumption of constitutionality with regard to federal statutes. Bowen v. Kendrick, 487 U.S. 589, 617, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988) (acknowledging the "traditional presumption in favor of the constitutionality of statutes enacted by Congress"). We recognize that it is preferable to interpret a statute so as to avoid constitutional problems, unless, of course, such a construction would abrogate Congress's intent. See Gonzales v. Carhart, 550 U.S. 124, ___, 127 S.Ct. 1610, 1631, 167 L.Ed.2d 480 (2007) (noting that every reasonable construction should be utilized to save a statute from unconstitutionality); Mistretta v. United States, 488 U.S. 361, 384, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) ("When this Court is asked to invalidate a statutory provision that has been approved by both Houses of Congress and signed by the President, [...], it should only do so for the most compelling constitutional reasons."); Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988) ("[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, [the statute should be construed] to avoid such problems unless such construction is plainly contrary to the intent of Congress."). And, to assail the presumption of constitutionality, the burden falls on the party seeking to establish as unconstitutional a particular federal statute. See Central States, Southeast and Southwest Areas Pension Fund v. Midwest Motor Express, Inc., 181 F.3d 799, 809 (7th Cir. 1999) (recognizing a "heavy burden of showing [a statute] to be unconstitutional"); Keith Fulton & Sons, Inc. v. New England Teamsters and Trucking Indus. Pension Fund, 762 F.2d 1124, 1129 (1st Cir.1984) (noting that the burden to overcome the presumption of constitutionality falls on the one complaining of Congress's violation to "establish that the legislature has acted in an arbitrary and irrational way") (citing Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963)); City of Louisville v. Babb, 75 F.2d 162, 165 (7th Cir.1935) ("The burden of proof, where the constitutionality of a statute is in question, is always upon the party asserting the unconstitutional limitations of power...."). It is incumbent upon this Court to observe these tenets in deciding the Defendant's motion.

FED.R.CRIM.P. 12(b)(2) provides 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." When considering a motion to dismiss under Rule 12(b)(2), a court assumes all facts in the indictment as true and must "view all facts in the light most favorable to the government." See United States v. Yashar, 166 F.3d 873, 880 (7th Cir.1999). When viewed in that light, an indictment is sufficient if it satisfies three constitutionally-mandated requirements. United States v. Anderson, 280 F.3d 1121, 1124 (7th Cir.2002). First, the indictment "must adequately state all of the elements of the crime charged; second, it must inform the defendant of the nature of the charges so that he may prepare a defense; and finally, the indictment must allow the defendant to plead the judgment as a bar to any future prosecution for the same offense." Id. (citing United States v. Smith, 230 F.3d 300, 305 (7th Cir.2000)). Yet, the indictment "need not exhaustively recount the facts surrounding the crime's commission," United States v. Agostino, 132 F.3d 1183, 1189 (7th Cir.1997), rather, when determining the sufficiency of the indictment, a court must look at the indictment's contents on a practical basis and in its entirety, not hypothetically. United States v. McLeczynsky, 296 F.3d 634, 636 (7th Cir.2002) (citing Smith, 230 F.3d at 305). In addition, a court may dismiss an indictment "if it is otherwise defective or subject to a defense that may be decided solely on issues of law." United States v. Black, 469 F.Supp.2d 513, 518 (N.D.Ill.2006); United States v. Labs of Virginia, Inc., 272 F.Supp.2d 764, 768 (N.D.Ill.2003).

B. THE ADAM WALSH ACT AND THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

Title I of the Adam Walsh Child Protection and Safety Act of 2006 (the "Adam Walsh Act"), Pub.L. 109-248, §§ 1-155, 120 Stat. 587, 590-611 (2006) encompasses SORNA. It was signed and approved by the President on July 27, 2006. SORNA requires that each state and all other United States territories maintain a jurisdictional-wide sex offender registry that conforms to the registration guidelines that the statute sets forth. See 42 U.S.C. § 16912(a). Put simply, the statute created a nation-wide registry for sex offenders. Each state has three years from the statute's enactment, with possible extensions, to implement the new federal registry standards, or risk a reduction in federal grants. Id. §§ 16924(a), 16925(a).

Prior to the Adam Walsh Act, in 1994 Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act ("Wetterling Act"), urging all states to adopt a national sex offender registry. Then, in 1996 Megan's Law amended the Wetterling Act so that federal funding for state law enforcement initiatives became contingent upon the states' adoption of sex offender registration programs. Every state thereafter adopted some form of Megan's Law. See Smith v. Doe, 538 U.S. 84, 90, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). Illinois enacted its own "Sex Offender Registration Act" on August 15, 1986. 730 ILL. COMP. STAT. § 150/1 et seq.¹

As to SORNA's registration...