U.S. v. Waybright

• Decision Date: 11 June 2008
• Docket Number: No. CR 08-16-M-DWM.,CR 08-16-M-DWM.
• Parties: UNITED STATES of America, Plaintiff, v. Bernard Lenwood WAYBRIGHT, Defendants.
• Court: U.S. District Court — District of Montana

Page 1154

561 F.Supp.2d 1154

UNITED STATES of America, Plaintiff, v. Bernard Lenwood WAYBRIGHT, Defendants.

No. CR 08-16-M-DWM.

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

June 11, 2008.

COPYRIGHT MATERIAL OMITTED

John Rhodes, Federal Defenders of Montana, Missoula, MT, for Defendant.

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

ORDER

DONALD W. MOLLOY, District Judge.

I. Introduction

Bernard Lenwood Waybright was charged in a two-count indictment with failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). Section 2250(a) is part of the Sex Offender Registration and Notification Act ("SORNA" or the "Act"). The section makes it a federal crime for a sex offender who is required to register under SORNA to travel in interstate commerce and then fail to register. Waybright was convicted of a crime in West Virginia that obligated him to register under SORNA. He traveled to Montana, and did not register with local law enforcement authorities in Montana.

Waybright filed three motions to dismiss the indictment, asserting seven different legal grounds for dismissal. He contends: (1) Congress exceeded its power under the Commerce Clause in enacting SORNA's registration requirements and making it a federal crime to fail to register; (2) SORNA violates the Tenth Amendment because it requires state officials to accept federally-mandated sex offender registrations before any state chooses to implement SORNA; (3) SORNA violates the right to travel because it subjects sex offenders who move to another state to stiffer registration requirements and penalties than those that remain in a single state; (4) Congress violated the non-delegation doctrine by authorizing the Attorney General to determine whether SORNA applied retroactively; (5) regulations issued by the Attorney General pursuant to SORNA violate the Administrative Procedure Act because they were promulgated without notice and comment; (6) Waybright cannot be convicted of violating 18 U.S.C. § 2250(a) because Montana has not implemented SORNA; and (7) Waybright's conviction would violate due process of law because Waybright was not notified of his obligation to register under SORNA. Oral argument on Waybright's motions took place on June 4, 2008.

No court of appeals has addressed Waybright's arguments. It is evident that the same or similar arguments have been raised in district courts around the country. These courts have mostly rejected such challenges for varying reasons. In my view, those district courts have it right for the most part. I conclude that all of Waybright's arguments, except one, lack merit. I agree with Waybright's claim that enactment of 42 U.S.C. § 16913, which requires all sex offenders to register regardless of whether they travel in interstate commerce, is not a valid exercise of Congress' power under the Constitution. I therefore declare 42 U.S.C. § 16913 unconstitutional. Moreover, because Waybright cannot be convicted of failing to register under § 2250(a) unless the government proves he was required to register under § 16913, the Indictment against Waybright must be dismissed without prejudice.

II. Factual Background

On May 5, 2004, Waybright was convicted in West Virginia state court of sexual abuse in the second degree, a misdemeanor.¹ He was subsequently sentenced to a suspended one-year term of imprisonment and placed on probation for five years. The Sentencing Order explicitly required Waybright to "register as a sex offender as required by West Virginia Code § 15-2-1, et seq."² As a condition of his probation, Waybright was required to "comply with all the requirements of the Sexual Offender Registration Law and ... register with the State Police Detachment in Kingwood, Preston County, West Virginia within [ten days of sentencing]." Under West Virginia law, Waybright was required to register for at least ten years from the date he was placed on probation. W. Va.Code § 15-12-4.

He initially registered as a sex offender in West Virginia on July 12, 2004. As part of the registration process, Waybright signed a form entitled "Notification of Sex Offender Responsibility." Waybright acknowledged he had read and understood his registration obligations by signing this form. Specifically, the form stated:

I understand that I must report to the local detachment of the West Virginia State Police within ten (10) days any change in my registration information .... If this is a change in address or residence to another state I understand that I must advise the West Virginia State Police of the new address ten (10) days prior to the move and I must register in that state and comply with the laws of that state.

...

I understand that if I am required to register as a resident of West Virginia and I am employed, carry on a vocation, attend school or training or am a visitor in another state, I must register with that state and comply with the laws of that state.

The form also told him that failing to register or provide notification of a change of information is a misdemeanor under West Virginia law. See id. § 15-12-8. Waybright updated his West Virginia registration on July 19, 2006. When he did, the "Notification of Sex Offender Responsibility" form was read to him and he again signed the form indicating he understood his registration obligations.

In early 2008, the Missoula County Sheriffs Office received information that Waybright was living in Montana. The Sheriffs Office conducted a records check on Waybright and discovered he had an outstanding warrant in West Virginia for failure to register as a sex offender. The records check also revealed Waybright surrendered his West Virginia drivers license and obtained a Montana drivers license on May 9, 2006. The Sheriffs Office subsequently contacted Nina Cramer, who owned the residence where Waybright was living while in Montana. Cramer informed officers Waybright made several trips to Montana, stayed for a number of days, and then returned to West Virginia to care for his ill mother. According to Cramer, Waybright stayed at her residence in Missoula from May 2006 to July 12, 2006; April 9, 2007 to May 7, 2007; and October 12, 2007 to November 1, 2007. Waybright did not register as a sex offender with the Missoula County Sheriffs Office or any other Montana law enforcement agency during these visits.

A sexual offender must register within three business days of entering Montana "for the purpose of residing or setting up a temporary residence for 10 days or more or for an aggregate period exceeding 30 days in a calendar year." Mont.Code Ann. § 46-23-504(c). "Sexual offender" is defined as "a person who has been convicted of ... a sexual ... offense." Id. § 46-23-502(10). "Sexual offense," in turn, is defined as "any violation of a law of another state ... for which the offender was required to register as a sexual offender after an adjudication or conviction." Id. § 46-23-502(9)(b). Waybright therefore was required to register as a sex offender under Montana law during the time he was staying at Cramer's residence.

Waybright was charged in a two-count indictment with failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). Count I of the indictment covers the time period from April 9, 2007 to May 7, 2007; Count II relates to the time period from October 12, 2007 to November 1, 2007. The indictment alleges Waybright, a person required to register under SORNA by reason of his West Virginia conviction for sexual abuse in the second degree, traveled in interstate commerce to Montana, and knowingly failed to register as a sex offender.

III. Analysis

A. 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 establishes a national sex offender registry for the purpose of "protecting] 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 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 classifies 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 the offender must remain registered after conviction and the frequency with which the offender's information is verified. 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. 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"). Any state that fails to implement SORNA's requirements within three years faces a ten percent reduction in federal justice funding. Id. §§ 16924, 16925(d). As of June 10, 2008, no state has fully complied with SORNA's requirements.³

SORNA specifies when a sex offender must first register and then 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...