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United States v. Fuller

June 13, 2008

UNITED STATES OF AMERICA,
v.
ROSS A. FULLER, III, DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Defendant is charged in a one-count Indictment with failing to register as a sex offender in violation of 18 U.S.C. § 2250(a). Currently before the Court is Defendant's motion to dismiss the Indictment on the following grounds: (1) SORNA did not apply to him at the time he traveled in interstate commerce because New York State had not yet updated its registry in accordance with SORNA, (2) to punish him for a crime that did not yet apply to him would violate the Ex Post Facto Clause of the United States Constitution, and (3) to punish him for violating a law with which he was unable to comply would violate the Due Process Clause of the United States Constitution.

The Court rejected Defendant's previous motion to dismiss the Indictment pursuant to a Memorandum-Decision and Order, dated March 27, 2008. Specifically, the Court held that (1) SORNA applied to Defendant when he traveled in interstate commerce, (2) 18 U.S.C. § 2250(a) does not violate the Ex Post Facto Clause, (3) Congress had the authority to enact 18 U.S.C. § 2250(a) and 42 U.S.C. § 16913 pursuant to the Commerce Clause, (4) 18 U.S.C. § 2250(a) does not violate Defendant's right to procedural due process, (5) SORNA does not violate the Tenth Amendment, and (6) SORNA does not violate the non-delegation doctrine. See Memorandum-Decision and Order, dated March 27, 2008, at 13.

II. BACKGROUND

Defendant pled guilty on April 24, 2004, to second degree statutory sodomy pursuant to Missouri Revised Statutes § 566.064. He was sentenced to seven years in prison; however, after serving 120 days, he was released on August 25, 2004, to probation supervision for a term of five years.

Pursuant to state requirements, Defendant signed a Missouri Offender Registration Notification Form on August 31, 2004, listing his address as the St. Louis Community Resource Center in St. Louis, Missouri. The form stated that Defendant must inform the Chief Law Enforcement Official in Missouri if he planned to move to another state. The form also required Defendant to notify that official within ten days if he changed his address within Missouri. Defendant initialed five boxes in a section of the form labeled "Acknowledgment of Requirements," affirming that he understood these registration requirements. In addition, Defendant signed a Probation Supervision Agreement on August 31, 2004, with the State of Missouri Board of Probation and Parole, which required him to verify his address every ninety days. Defendant submitted an address verification form pursuant to the ninety-day requirement on November 29, 2004, February 25, 2005, August 29, 2005, November 7, 2005, January 30, 2006, and April 17, 2006. On these dates, he listed his address in St. Louis, Missouri.

On June 5, 2006, Defendant submitted a Missouri Offender Registration Change of Address form, notifying officials that he was changing his address within the City of St. Louis. Defendant submitted another form on June 27, 2006, confirming this new address. The June 27, 2006 form was the last form that Missouri officials received from Defendant. Defendant's probation officer asserts that Defendant last reported to her on August 28, 2006, and has made no attempt to contact her since September 18, 2006. A Fugitive Officer went to Defendant's residence in Missouri on September 15, 2006, on an unrelated matter and established that Defendant was at home in Missouri at that time.

In September 2007, law enforcement officers determined that Defendant was residing in Utica, New York, and had not registered as a sex offender in New York State.*fn1 Agents of the United States Marshal's Service located Defendant in Oneida County, New York, and arrested him on October 19, 2007.

III. DISCUSSION

A. SORNA's application to Defendant despite the State of New York's Failure to Implement SORNA

Defendant's contention that he could not register under SORNA when he traveled in interstate commerce because the State of New York had not implemented SORNA is almost identical to Defendant's argument in his previous motion to dismiss, in which he contended that he was not afforded due process because the State of Missouri had not yet implemented SORNA. The Court rejected that argument, holding that SORNA merely requires that a sex offender inform the relevant jurisdiction "of all changes in the information required for that offender in the sex offender registry." See 42 U.S.C.§ 16913(c). Specifically, a defendant must provide his name, social security number, address, place of employment, student information, license plate number, and vehicle description. See 42 U.S.C. § 16914. Notification in this manner ends the defendant's obligation. There is no indication that Defendant was prevented from performing this task. Whether the state of Missouri updates its registry in conformance with SORNA has nothing to do with Defendant's obligations.

See Memorandum-Decision and Order, dated March 27, 2008, at 12 n.4. Moreover, the Court held that, pursuant to the plain language of the statute, SORNA's registration requirements applied to Defendant from the moment SORNA was enacted. See id. at 6.

Several other district courts have similarly held that, even where the state in which the defendant was supposed to register pursuant to SORNA had not yet implemented SORNA, "compliance was not impossible . . . ." United States v. Hester, No. 1:07-CR-376, 2008 WL 351677, *2 (N.D.N.Y. Feb. 7, 2008); see also United States v. Utesch, No. 2:07-CR-105, 2008 WL 656066, *5 (E.D. Tenn. ...


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