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United States v. Buren

July 23, 2008

UNITED STATES OF AMERICA,
v.
BARCLAY J. VAN BUREN, JR., DEFENDANT.



The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge

DECISION & 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 omnibus motion seeking: (a) to dismiss the Indictment on numerous grounds, and (b) a bill of particulars requiring the government to state whether the Indictment is based on an allegation that Defendant changed his name, residence, employment, or student status. See dkt. #s 12, 13, 15. The government has opposed the dismissal portion of the motion, but has not responded to the request for a bill of particulars. See Govt. Opp. Mem. L., dkt. # 16.

II. DISCUSSION

A. Bill of Particulars

The Indictment charges:

Between February 20, 2008 and March 7, 2008, in the Northern District of New York and elsewhere, BARCLAY VAN BUREN, JR., the defendant herein, an individual required to register under the Sex Offender Registration and Notification Act, by reason of his conviction under federal law, did travel in interstate commerce and did knowingly fail to register and update his registration as required by law.

In violation of Title 18, United States Code, Section 2250(a).

Indictment, dkt. # 6.

In order to be convicted under Section 2250, a defendant must "knowingly fail[] to register or update a registration as required by the Sex Offender Registration and Notification Act." 18 U.S.C. § 2250(a)(3). Section 16913 of the Sex Offender Registration and Notification Act (SORNA) requires a sex offender to register "not later than 3 business days after each change of name, residence, employment, or student status . . . ." 42 U.S.C. § 16913(c).

In opposition to Defendant's motion to dismiss, the government contends that on February 20, 2008, Van Buren signed out of his residence at the Dixie Hotel at 106 Henry Street, Binghamton, New York; disabled a GPS monitoring device he was supposed to carry with him when he left the range of his ankle bracelet monitoring device; subsequently failed to return or contact his U.S. probation officer; and was arrested on March 7, 2008 at his mother's residence in Burlington, North Carolina. See Govt. Mem L., dkt. # 16. Thus, it can fairly be concluded that the instant charge is based upon Van Buren's purported change of residence. See Def. Suppl. Ltr. Brief, dkt. # 15 ("The only conceivable change that Mr. Van Buren made when traveling was a change of residence."). However, because part of Defendant's motion to dismiss is dependent upon what information Van Buren allegedly failed to update under § 16913(c), see id., and because it is possible that the government could proceed on a theory other than that Van Buren changed his residence, a bill of particulars is required. United States v. Bortnovsky, 820 F. 2d 572, 574 (2d Cir. 1987)(A bill of particulars is necessary (1) to inform the accused of the charge against him with sufficient precision to enable him to prepare his defense and avoid surprise, and (2) to enable the accused to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense.).

Accordingly, the government shall provide a Bill of Particulars by Friday, July 25, 2008 at 4:00 p.m. identifying what information required by SORNA Van Buren allegedly changed yet failed to update between February 20, 2008 and March 7, 2008.

B. Commerce Clause

A substantial part of Defendant's motion to dismiss is based upon the contention that Congress exceeded its authority when it enacted the registration requirements of SORNA, and 18 U.S.C. ยง 2250(a). See Def. Mem. L. pp. 9-18. Much of the argument is directed at explaining why Congress lacked the authority to enact these statutory provisions under the Commerce Clause, and Defendant provides a thorough analysis of the seminal Commerce Clause case from the Supreme Court. Id. (analyzing United States v. ...


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