United States v. Bear
| Decision Date | 08 June 2012 |
| Docket Number | CR. 12-30068-RAL |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. KEITH SUN BEAR, Defendant. |
| Court | U.S. District Court — District of South Dakota |
REPORT AND RECOMMENDATION
FOR DISPOSITION OF MOTION
TO DISMISS INDICTMENT
SUMMARY
Keith Sun Bear moves to dismiss the Indictment charging him with violating the Sex Offender Registration and Notification Act (SORNA). He argues that Congress unlawfully delegated to the Attorney General the task of determining whether SORNA and its requirements applied to pre-Act offenders, like himself. While he may have standing to challenge the Act on non-delegation grounds, his argument cannot succeed because Congress provided "intelligible principles" to limit the Attorney General's discretion so as to make any grant of discretion constitutionally-acceptable. The Court therefore recommends that his dismissal motion be denied.
FACTUAL AND PROCEDURAL BACKGROUND
Sun Bear was convicted of sexual abuse of a minor (18 U.S.C. §§1153, 2243(a) and 2246(2)) in United States District Court for the District of South Dakota on June 17, 2002.1 He received a 24-month custody sentence and was ordered, among other things, to register as a sex offender.2
On June 6, 2011, Sun Bear was convicted of failure to register as a sex offender (18 U.S.C. §2250(a)) in the same court as his 2002 conviction.3 He was sentenced to serve a five-month custody term and ordered to register as a sex offender as part of his supervised release.4
After allegedly absconding from a community corrections center in Rapid City, South Dakota,5 a federal grand jury indicted Sun Bear once again for failure to register as a sex offender.6 It is this Indictment that he now seeks to dismiss.7
Sun Bear's motion to dismiss is premised on the non-delegation doctrine derived from Article I, Section 1 () and Article I, Section 8, Clause 18 () of the Constitution.8 He claims that Congress violated this doctrine by delegating to the Attorney General the power to determine SORNA's applicability to pre-Act offenders.9 Specifically, he contends that Congress failed to articulate any standard or intelligible principle to guide the Attorney General on the retroactivity of the Act.10
The Government has filed a response to Sun Bear's motion, resisting the same.11 In its response, the Government asserts that Congress did not impermissibly delegate legislative functions to the Attorney General, namely, the discretion to determine whether SORNA's registration requirements would apply to sex offenders convicted prior to the Act's amendment.12
STATUTORY AND REGULATORY OVERVIEW
SORNA became law on July 27, 2006.13 It "requires those convicted of certain sex crimes to provide state governments with (and to update) information such as names andcurrent addresses, for inclusion on state and federal sex offender registries."14 Under SORNA, any person who (1) is required to register under [the Act]"; (2) "knowingly travels in interstate or foreign commerce," and (3) "knowingly fails to register or update a registration as required by [the Act]" is guilty of a crime punishable by fine and imprisonment for up to 10 years.15 The registration requirement is spelled out in 42 U.S.C. §16913 and permits the Attorney General to "specify the applicability of the requirements of this subchapter to offenders convicted before the enactment of this chapter."16 42 U.S.C. §16912(b) also instructs the Attorney General to "issue guidelines and regulations to interpret and implement this subchapter."
On February 28, 2007, the Attorney General issued an interim rule making SORNA immediately effective "to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of [the] Act."17 The Attorney General opined that the rule qualified for the "good cause" exception to the procedural requirements of the Administrative Procedure Act but nonetheless announced that he would accept comments until April 30, 2007.18
A short time later, the Attorney General published proposed guidelines from the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking ("SMART guidelines").19 The SMART guidelines stated that they were promulgated pursuant to the Attorney General's authority under §16912(b) to interpret and implement SORNA and restated the Attorney General's position that the Act applied to all sex offenders, "including those whose convictions predate the enactment of the Act."20
After a period for public comment, the Attorney General published the final version of these SMART guidelines on July 2, 2008.21 In this version, the Attorney General reaffirmed that SORNA covered pre-Act offenders.22 The final guidelines became effective on July 2, 2008 - the date of their publication.23
In December 2010, the Attorney General responded further to comments he had received and "finaliz[ed] the interim rule to put to rest any doubts regarding the retroactivity of SORNA.24 This latest rule went into effect on January 28, 2011, 30 days after its publication.25
STANDING
Previously, the Eighth Circuit Court of Appeals held that pre-Act offenders lacked standing to challenge SORNA.26 The Eighth Circuit joined four other circuits that similarly held that SORNA's registration requirements "apply from the date of the Act's enactment . . . to pre-Act offenders who had already registered under state law."27 Six other circuits, however, determined "that the Act's registration requirements do not apply to pre-Act offenders unless and until the Attorney General so specifies."28
Earlier this year, the United States Supreme Court resolved this circuit's split in favor of the latter approach (taken by the majority of appeals courts - but not the Eighth Circuit).29 While deciding that pre-Act offenders had standing to challenge SORNA, the Court did not indicate whether their challenges would be successful.30
In view of the Supreme Court's pronouncements, it is clear that Sun Bear, a pre-Act offender, has standing to contest the applicability of SORNA's registration requirements. And this includes the right to challenge the Act on delegation grounds.31
NON-DELEGATION DOCTRINE
Sun Bear maintains that Congress delegated to the Attorney General the legislative task of determining the retroactive application of SORNA to pre-Act sex offenders without any standard or intelligible principle to guide the Attorney General.32 He says that this delegation was unconstitutional, that the Act never became applicable to him and that he cannot be convicted of failing to register as a sex offender under it.33
"The non-delegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of government."34 The doctrine holds that "Congress manifestly is not permitted to abdicate or to transfer to others the essential legislative functions with which it is [constitutionally] vested."35 But "Congress may delegate itslegislative power if it 'lay[s] down by legislative art an intelligible principle to which the person or body authorized to [act] is directed to conform."36 A statute will survive a non-delegation challenge and be "constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority."37 The "intelligible principle" can be broad.38 Notably, Congress has been given wide latitude in the delegation area and since 1935 has not had a single one of its statutes overturned as an unconstitutional delegation of legislative power 39
The Court here is satisfied that there are sufficiently "intelligible principles" to guide the Attorney General in the exercise of his discretion when promulgating rules and otherwise administering the application of SORNA. Not only has Congress provided theAttorney General with a policy framework in 42 U.S.C. §16901 to guide his discretionary authority under §16913(d), but it has also made a series of legislative judgments in §§16911, 16913, 16914 and 18 U.S.C. §2250 that circumscribe the Attorney General's discretion to a narrow and prescribed category.40
At the outset, Congress created SORNA with a specific design in mind: to provide the broadest possible protection to the public and to children in particular, from sex offenders. §16901 expressly states the congressional purpose in these terms: "In order to protect the public from sex offenders and offenders against children and in response to the vicious attacks by violence predators against the victims listed below, Congress . . . establishes a comprehensive national system for the registration of those offenders . . . ." The Attorney General's exercise of discretion is adequately cabined by this clear statement of purpose.41 Congress recognized that combining the registry systems of 50 states presented "precisely the sort of intricate, labor-intensive task for which delegation to an expert body is especially appropriate."42 It wanted the Attorney General to address this logistical problem and granted him, as part of its delegation of authority, the discretion to determine when and how SORNA would apply to pre-Act offenders. The notion that the Attorney General could create a comprehensive system without applying SORNA to these offenders was, as the Supreme Court in Reynolds tactfully put it, an "unrealisticpossibility."43 Indeed, to exempt pre-Act offenders, would both ignore and frustrate Congress's mandate to register all offenders across the country.
Furthermore, and perhaps more importantly, because "Congress made virtually every legislative determination in enacting SORNA" the Attorney General's discretion...
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