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United States v. Barnes

July 23, 2007


The opinion of the court was delivered by: Sand, J.


Before the Court is Defendant, Edward Barnes's, Motion to Dismiss the Indictment, wherein Defendant asserts that his due process rights under the Fifth Amendment of the United States Constitution were violated when he was arrested for knowingly failing to update his registration as a sex offender after traveling in interstate commerce as required by the Sex Offender Registration and Notification Act ("SORNA"), 42 U.S.C. § 16913 and 18 U.S.C. § 2250.*fn1

SORNA is a comprehensive legislative scheme enacted by Congress on July 27, 2006, that seeks to create a uniform national sex offender registry by requiring states to comply with certain guidelines in their requirements for sex offender registration.

Defendant was convicted in New York in 2000 for the sexual molestation of a minor and later registered as a sex offender in New York in 2001 upon his release from jail. Defendant allegedly moved to New Jersey in 2005 without informing the requisite authorities in either state.*fn2 The one count superseding indictment filed on June 25, 2007, charges that:

From in or about January 2007, up to and including February 28, 2007, in the Southern District of New York and elsewhere, Edward Barnes, the defendant, an individual required to register under [SORNA], did travel in interstate commerce and unlawfully, willfully, and knowingly did fail to update a registration as required by [SORNA], to wit, the defendant moved from the Bronx, New York to New Jersey, without updating his information with New York's sex offender database, or registering in New Jersey, as required by law. (See Superseding Indictment.)

42 U.S.C. § 16913(c) provides a three day window after changing residence for updating the registry. It is impossible for Defendant to comply with a literal reading of § 16913(c) because his three day window to update registration expired three days after he moved to New Jersey in 2005, well before SORNA was passed.

42 U.S.C. § 16913(b) provides guideline for the initial registration of those sex offenders presently incarcerated for their underlying sex crimes, or those sex offenders who receive non-custodial sentences. 42 U.S.C. § 16913(b)(1)-(2). Defendant may have complied with a strict reading of § 16913(b) because he registered as a sex offender upon his release from prison in 2001, though the Court lacks sufficient information to make such a finding. It is clear however that Defendant falls under the scope of § 16913(d) as he was convicted prior to SORNA's passage.

42 U.S.C. § 16913(d) attempts to deal with the problems raised by the initial registration of sex offenders who, like Defendant, were convicted prior to the passage of SORNA. Section 16913(d) gives the Attorney General the "the authority to specify the applicability of" SORNA's registration requirements to those "sex offenders convicted before the enactment of this Act" and "to prescribe rules for the registration of any such sex offenders." Rather than prescribing a complete set of final rules dealing with the mechanics of registration, on February 28, 2007, Attorney General Alberto Gonzalez promulgated the only interim rule heretofore issued, which deals only with the retroactive application of SORNA. The interim rule specifies that: "The requirements of [SORNA] apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act." 28 C.F.R. § 72.3. Explaining the rulemaking, the Attorney General stated:

The current rulemaking serves the narrower, immediately necessary purpose of foreclosing any dispute as to whether SORNA is applicable where the conviction for the predicate sex offense occurred prior to the enactment of SORNA. This issue is of fundamental importance to the initial operation of SORNA, and to its practical scope for many years, since it determines the applicability of SORNA's requirements to virtually the entire existing sex offender population.

72 Fed. Reg. 8894-01 (Feb. 28, 2007). The interim rule makes "it indisputably clear that SORNA applies to all sex offenders (as the Act defines that term) regardless of when they were convicted." Id. Thus the government contends that SORNA is applicable to Defendant at least from the date the Attorney General made clear that it would apply retroactively to those sex offenders convicted of sex offenses prior to SORNA's passage in 2006.

Defendant argues that it was not clear until February 28, 2007 that he needed to register under SORNA and that being arrested on that date violates his due process rights because he was not given any opportunity to comply with the registration requirements.*fn3

The government points to two district court decisions that hold § 16913(d)'s delegation of authority does not govern sex offenders who, like Defendant, were able to register under the laws of their current state of residence and who were not incarcerated during SORNA's passage. United States v. Templeton, 2007 WL 445481 at *4 (W.D. Okla. 2007); United States v. Hinen, --- F. Supp. 2d ---, 2007 WL 1447853 at *2, (W.D.Va. 2007) ("The delegation provision of the statute refers to persons who, prior to the enactment of SORNA's revised standards, were not required to register by their state's registration law.") These courts find § 16913(b) applicable and do not examine § 16913(d)'s directive to the Attorney General to promulgate rules for sex offenders convicted prior to SORNA's passage. Hinen, 2007 WL 1447853 at *2.

The defendant in Templeton, was convicted of a sex offense in Arizona and pursuant to state law was required to register there prior to leaving the state. He was not required to register in his new state, Oklahoma. Templeton, 2007 WL 445481 at *4. The district court found that his indictment on December 6, 2006, nearly three months prior to the interim rule, was valid under § 16913(b) because the language "clearly indicates that this subsection [§ 16913(d)] only applies to individuals who were unable to initially register as a sex offender."*fn4 Templeton, 2007 WL 445481 at *4.

This Court disagrees with the Templeton court's reading of ยง 16913(b), which interprets the subsection to include any sex offender required under state law to register at any time prior to entering a new state and thus makes SORNA applicable regardless of its effective date. Templeton does not address the issue of the sex offender's attempts to comply ...

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