Fuller Brush-Off

United States v. Fuller, No. 09-1437-cr (2d Cir. November 30, 2010) (McLaughlin, Straug, Raggi, CJJ)

In 2004, Ross Fuller pled guilty to a sex offense in Missouri and became a registered sex offender. He complied with the applicable registration requirements until June of 2006, when he moved to New York, and failed to register either in Missouri or New York State. Federal authorities arrested Fuller in New York in October of 2007, and he pled guilty to violating the Sex Offender Registration Notification Act (“SORNA”), 42 U.S.C. § 16901, et seq., which makes it a crime to travel in interstate commerce and knowingly fail to register or update a sex offender registration.

On appeal, he made two arguments, both unsuccessful.

First, when Congress enacted SORNA in 2006, it included a provision, § 16913(d), granting the Attorney General the authority to “specify the applicability of” SORNA to sex offenders convicted before SORNA’s enactment. On February 28, 2007, the Attorney General issued an Interim Ruling providing that SORNA applied to pre-SORNA sex offenders.

SORNA does not apply when the interstate travel occurred before the statute was enacted. This does not help Fuller, so he argued instead that SORNA did not apply to him because his interstate travel occurred between SORNA’s enactment and the Interim Ruling. Joining an existing circuit split, here the court of appeals disagreed.

The court rejected Fuller’s argument that § 16913(d) meant that the decision whether to apply SORNA to pre-SORNA sex offenders rested solely with the Attorney General. Rather, the court concluded that Congress itself already decided that SORNA would apply to all sex offenders regardless of when convicted, and merely “delegated to the Attorney General authority to work out the specific manner in which that legislative determination would be enforced with respect to pre-SORNA sex offenders.” In other words, § 16913(d) gives the A.G. the power to “specify how - not whether - SORNA’s registration requirements apply” to pre-SORNA sex offenders.

Judge Raggi wrote a separate concurrence on this issue, explaining that, in her view, the doctrine of constitutional avoidance foreclosed Fuller’s argument interpretation of § 16913(d) because it would “raise concerns about the delegation of legislative authority to the executive branch.”

Fuller’s second argument was that SORNA was a specific intent crime, not a general intent crime. While a question of first impression in this circuit, every other court to consider it has concluded that SORNA is a general intent statute, and the Second Circuit agreed. The statute uses the word “knowingly,” which typically means that the statute “only requires a finding of general intent for conviction.” That requirement was satisfied here. Fuller clearly knew that he had to register as a sex offender, and his failure to do so in either Missouri or New York when he moved was a “knowing act.”

Sex Offender Goes South, As Does His Defense

United States v. Van Buren, No. 08-6262-cr (2d Cir. March 17, 2010) (Walker, Straub, Livingston, CJJ)

A jury convicted Van Buren of failing to comply with the registration requirements of SORNA after he moved from his hotel in Binghamton, New York, to his mother’s house in North Carolina without updating his New York registration or registering in North Carolina.

On appeal, he first raised a host of constitutional challenges, all of which were foreclosed by United States v. Guzman, an intervening decision. See Moving Violations, posted January 7, 2010.

He also claimed that the district court erred in its jury instructions about the scope of SORNA's registration requirements. The statutory scheme requires a convicted sex offender to register, and keep the registration current - including providing the address of his residence - in each jurisdiction where he resides, is employed or is a student. In addition, within three business days after each “change” of residence, the offender must appear in person at an “appropriate office” and inform it of all changes in his information.

In the district court, Van Buren claimed that his termination of his hotel residence in New York was not a “change” in residence because he did not establish a new residence elsewhere. The government countered that leaving the hotel was by itself a sufficient “change” to trigger SORNA. The district court agreed that terminating a residence with no intention of returning requires a sex offender to update his information, and instructed the jury accordingly.

Van Buren pursued this claim on appeal, without success. The circuit held that Van Buren’s terminating his residence in New York to travel to North Carolina with no intention of returning qualified as a “change” in residence under any definition of the word “change.” It was a “change” in the sense of going from “something to nothing” and it was also a change in the sense of “going from something to something else.”

Moreover, regardless of the semantics, the circuit held that it was clear that SORNA covered Van Buren’s conduct. Indeed, its legislative history specifically notes that sex offenders’ moving from one state to another presents the “most significant enforcement issue in the sex offender program.” The statute is therefore not ambiguous such that the rule of lenity would apply.

Moving Violations

United States v. Guzman; United States v. Hall, Nos. 08-5561-cr; 08-6004-cr (2d Cir. January 7, 2010) (Miner, Straub, Wesley, CJJ)

Defendants Guzman and Hall were both registered sex offenders in New York. Each moved to another state without updating his registration, and was charged with violating 18 U.S.C. § 2250(a), which makes it a crime for a person required to register as a sex offender to travel in interstate commerce and knowingly fail to keep his registration information current. Each defendant moved to dismiss his indictment on several grounds; the district court rejected all but the Commerce Clause challenges. Finding that the statutory scheme (“SORNA”) exceeded Congress’s authority to legislate pursuant to the Commerce Clause, the district court dismissed the indictment in both cases. On these consolidated government appeals, the circuit reversed.

The court first noted that § 2250(a) itself is a proper exercise of the power to regulate commerce, since it only criminalizes a knowing failure to register if the offender travels in interstate or foreign commerce. Interstate travel inherently involves the use of the channels of interstate commerce and is properly subject to congressional regulation under the Commerce Clause.

The district court’s decision had rested on its assessment of the underlying registration requirement, set out in 42 U.S.C. § 16913, which simply requires that the offender keep his registration current. In the district court’s view, this section lacked an interstate travel jurisdictional element and did not regulate activity that substantially affected commerce. Since a conviction under § 2250 would necessarily rely on an unconstitutional registration requirement, the court dismissed the indictments.

The circuit disagreed. It noted that the purpose of the statutory scheme was to make sure sex offenders could not avoid all registration requirements just by moving to another state. Section 16913 was accordingly constitutional under the Necessary and Proper Clause, since Congress has the power to regulate purely intrastate activities where necessary to make a regulation of interstate commerce effective. This section is a “perfectly logical way to help ensure that state will more effectively track sex offenders when they do cross state lines” and, even though it regulates solely intrastate activity, it is reasonably connected to a legitimate commerce power goal.

The court also rejected the defendants’ alternative grounds for affirming the dismissal. The provision that delegates to the Attorney General the authority to specify the legislation’s applicability to sex offenders convicted before the statute was enacted is not an improper congressional grant of legislative authority to the executive branch. And the fact that none of the relevant states had SORNA-compliant registries in place at the time was irrelevant under the court’s recent decision in United States v. Hester (blogged below as SORNA Doom). Nor does SORNA violate the Tenth Amendment since it does not commandeer state officials into administering federal law.

SORNA Doom

United States v. Hester, No. 08-4665-cr (2d Cir. December 16, 2009) (Winter, Cabranes, Hall CJJ) (per curiam)

After pleading guilty to two sex offenses in New York State, Hester was required to register as a sex offender. He completed his initial registration - which included explicit instructions that Hester update if he moved or changed jobs - and four change of address forms. Then, in April of 2007, he disappeared. Three months later, Hester was arrested on unrelated charges in Florida. He had neither registered as a sex offender there nor updated his New York registration.

Hester pled guilty to violating the Sex Offender Registration Act, “SORNA,” 18 U.S.C. § 2250(a), and was sentenced to 37 months’ imprisonment. On appeal, he raised three unsuccessful challenges to the statute: a due process claim that he had unsuccessfully litigated below and Commerce Clause and vagueness challenges that he had not.

The due process argument had two prongs. First, Hester claimed that he lacked sufficient notice of SORNA’s requirements. But, since Hester was clearly aware of the state-law requirements that he update his New York registration and register in Florida when moved there, there was no due process violation in his not being specifically notified of SORNA. Hester also argued that it was impossible for him to comply with SORNA because neither New York nor Florida had SORNA-compliant registration systems in place. But both jurisdictions had sex offender registries and Hester could have complied with them. That those states had not yet met SORNA’s administrative requirements did not excuse Hester’s failure to register.

Hester’s Commerce Clause and vagueness arguments were waived by his plea agreement, in which he waived his right to appeal his conviction and any sentence of 51 months or less. The waiver had a carve-out for the district court’s decision denying his motion to dismiss, but Hester did not raise those arguments in the motion to dismiss.

Who's SORA Now?

Willette v. Fischer, No. 06-1422-pr (2d Cir. October 29, 2007) (Meskill, Newman, Sotomayor, CJJ)

Although the Blog does not regularly report on decisions in state prisoners’ habeas corpus proceedings, this nifty case has relevance to federal criminal practice.

Steven Willette, a convicted sex offender in New York State, was tried and convicted, inter alia, of multiple violations of New York’s Sex Offender Registration Act (SORA). During 1997 and 1998, Willette was living with his girlfriend but, on the four occasions that he was supposed to report his address (SORA prescribed ninety-day intervals), he falsely stated that he was still living with his father. Willette was found guilty of four SORA counts of failing to report change of address. He received a six-month misdemeanor sentence on the first SORA count, and three consecutive felony sentences on the others, for a total of ten and one half to twenty-one years’ imprisonment.

Here, the circuit agreed with Willette’s claim that his “multiple punishments” for “more than one violation of a single statute” violated the Double Jeopardy Clause. Based on a close reading of the relevant statutes, the court rejected the state’s claim that the relevant “unit of prosecution” for this type of SORA violation was “each day that a sex offender fails to report a new address.” For Willette, who lived with his girlfriend four about fourteen months, this “daily offense” theory would have exposed him to 3,000 years in prison. Thus, while the six-month sentence on the first SORA violation was valid, the court vacated the consecutive sentences imposed on the three additional SORA counts.

The relevance to federal practice is that there are now various federal statutes that require sex offender registration, and impose criminal penalties for the failure to do so. See, e.g., 42 U.S.C. § 16913 and 42 U.S.C. § 14072. This decision should be kept in mind in those cases when the feds try to charge multiple violations.