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United States v. Van Buren

August 8, 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 motion seeking to dismiss the Indictment on the following grounds: (1) the registration requirement of the Sex Offender Registration and Notification Act ("SORNA"), 42 U.S.C. § 16901 et seq., did not apply to him because New York and North Carolina have yet to implement SORNA making registration impossible; (2) § 2250 violates the Ex Post Facto Clause; (3) § 2250 violates the Due Process Clause; (4) the sex offender registration requirements and § 2250 exceed Congress's authority under the Commerce Clause; (5) the sex offender registration requirement violates the Tenth Amendment; (6) the sex offender registration requirement violates the non-delegation doctrine; (7) § 2250 infringes Defendant's right to travel as protected by the Privileges and Immunities Clause of the Fourteenth Amendment and the Due Process Clause of the Fifth Amendment. The government has opposed the omnibus motion. See dkt. # 16.

II. BACKGROUND

a. The Indictment

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 a Bill of Particulars, the government asserts that Van Buren violated § 2250(a) because he "failed to update the New York registry with respect to a change of residence during the time period specified in the indictment." Dkt. # 19; see 42 U.S.C. § 16913(c)(requiring a sex offender to update his registration within 3 days after changing his name, residence, employment, or student status).

b. Legislative Background

The Adam Walsh Child Protection and Safety Act of 2006 ("the Walsh Act") was enacted "[t]o protect children from sexual exploitation and violent crime, to prevent child abuse and child pornography, to promote Internet safety, and to honor the memory of Adam Walsh and other child crime victims." Pub.L. No. 109-248, 120 Stat. 587 (July 27, 2006). Title I of the Walsh Act codified the "Sex Offender Registration and Notification Act," 42 U.S.C. § 16911 et seq., ("SORNA"). "The purpose of SORNA is 'to protect the public from sex offenders and offenders against children' by establishing 'a comprehensive national system' for the registration of sex offenders." United States v. Zuniga, 2008 WL 2184118, at * 5 (D. Neb. May 23, 2008) (quoting 42 U.S.C. § 16901). "Pursuant to SORNA, each jurisdiction (including each state) must maintain 'a jurisdiction-wide sex offender registry' that conforms to the requirements of SORNA." Id. (citing 42 U.S.C. §§ 16911(10), 16912(a)). The Attorney General is required to set up and maintain a "National Sex Offender Registry" to share the information on a nation-wide basis.*fn1 SORNA "was intended to close loopholes, especially to prevent sex offenders from being lost to tracking efforts as they travel from state to state." United States v. Ditomasso, --- F. Supp. 2d ----, 2008 WL 1994866, at * 8 (D. RI May 8, 2008)(citing 152 Cong. Rec. at 8013).

A "sex offender" is "an individual who was convicted of a sex offense." 42 U.S.C. § 16911(1). A sex offense, in turn, includes "a criminal offense that is a specified offense against a minor. . . ." 42 U.S. C. § 16911(5)(A)(ii). A "specified offense against a minor" includes "(G) Possession, production, or distribution of child pornography." 42 U.S.C. § 16911(7)(G).

SORNA's registration requirement provides:

(a) In general

A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student. For initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence.

(b) Initial registration

The sex offender shall initially register--

(1) before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement; or

(2) not later than 3 business days after being sentenced for that offense, if the sex offender is not sentenced to a term of imprisonment.

(c) Keeping the registration current

A sex offender shall, not later than 3 business days after each change of name, residence, employment or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) of this section and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry. That jurisdiction shall immediately provide that information to all other jurisdictions in which the offender is required to register.

(d) Initial registration of sex offenders unable to comply with subsection (b) of this section The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b) of this section. 42 U.S.C. § 16913.

Pursuant to 42 U.S.C. § 16913(d), which authorizes the United States Attorney General to "specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006," 42 U.S.C. § 16913(d), the Attorney General issued an interim rule on February 28, 2007. This rule made SORNA's requirements applicable "to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to [SORNA's] enactment . . . ." 28 C.F.R. § 72.3.

As well as mandating registration, "SORNA creates a new federal crime for those individuals who fail to register, or to keep their registration current, despite being required to do so by subjecting the sex offender to fines or imprisonment up to ten years, or both." United States v. Madera, 528 F.3d 852, 855 (11th Cir. 2008). Codified at 18 U.S.C. § 2250, this provides:

(a) In general. --Whoever--

(1) is required to register under the Sex Offender Registration and Notification Act;

(2) (A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law . . . ; or

(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and

(3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act; shall be fined under this title or imprisoned not more than 10 years, or both. 18 U.S.C. § 2250(a).

c. Factual Background*fn2

On March 19, 2002, Van Buren pled guilty in the Northern District of New York to Receipt of Child Pornography, in violation of 18 U.S.C. §§ 2252(a)(2)(A), 2256.*fn3 He was sentenced on July 18, 2002 to a 24-month term of imprisonment, and a term of supervised release of 3 years upon completion of his prison term.

As a result of that conviction, Van Buren was classified as a level II sex offender pursuant to N.Y. Correct. Law § 168-a, et seq., which required him to register with the New York State Sex Offender Registry. Van Buren signed a New York State Sex Offender Registration form on June 24, 2004 which notified him of his registration obligations as a sex offender. He also signed New York State Sex Offender Change of Address Forms on seven (7) subsequent occasions.*fn4

On supervised release, Van Buren failed to complete mental health treatment by having unapproved contact with individuals under the age of 18 and not abiding by the rules of the treatment program. On November 10, 2005, Van Buren's term of supervised release was revoked and he was sentenced to 6 months imprisonment and 30 months supervised release.

In July, 2006, on his second term of supervised release, Van Buren was accepted into a sex offender treatment program at the Tompkins County Mental Health Clinic in Ithaca, New York. Based on the recommendation from the sex offender treatment provider, Van Buren consented to and the Court approved the imposition of home confinement as a condition of his supervised release.

On October 13, 2006, during an interview with U.S. Probation officers, Van Buren submitted to a polygraph examination which revealed he was engaging in deceptive behavior. Upon further questioning, he admitted to an incident occurring in a bookstore at which he sexually abused a 5-7 year old boy in a bathroom. He also admitted to fantasies of going to a school with a gun, taking over a classroom, sexually abusing the teacher and students, and then killing himself. Van Buren was advised at the conclusion of the interview to go directly home and ...


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