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United States v. Fuller

September 11, 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

Currently before the Court is Defendant's motion to dismiss the Second Superseding Indictment. Defendant is charged in a two-count Second Superseding Indictment with failing to register as a sex offender. Count One of the Second Superseding Indictment charges that [f]rom in or about September, 2006, through in or about October, 2007, in the Northern District of New York, and elsewhere, ROSS FULLER, III the defendant herein, an individual required to register under the Sex Offender Registration and Notification Act, did travel in interstate commerce and did knowingly fail to update his registration with the State of Missouri, as required by law. In violation of Title 18, United States Code, Section 2250(a). Count Two charges that [f]rom in or about September 2006, through in or about October, 2007, in the Northern District of New York, and elsewhere, ROSS FULLER, III the defendant herein, an individual required to register under the Sex Offender Registration and Notification Act, did travel in interstate commerce and did knowingly fail to register with the State of New York, as required by law. In violation of Title 18, United States Code, Section 2250(a).

See Second Superseding Indictment.*fn1

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 regulation, 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.*fn2 Agents of the United States Marshal's Service located Defendant in Oneida County, New York, and arrested him on October 19, 2007.

The Court rejected Defendant's two motions to dismiss the Indictment. Pursuant to the first motion to dismiss, 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 power 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.

Pursuant to Defendant's second motion to dismiss, the Court held that (1) SORNA applied to him at the time he traveled in interstate commerce despite the fact that New York State had not yet updated its registry in accordance with SORNA; (2) applying SORNA to Defendant would not violate the Ex Post Facto Clause of the United States Constitution; and (3) applying SORNA to Defendant would not violate the Due Process Clause of the United States Constitution. See Memorandum-Decision and Order, dated June 13, 2008, at 8.

III. DISCUSSION

Defendant contends that the Court should dismiss the Second Superseding Indictment on multiplicity grounds. Defendant argues that, under SORNA, a sex offender must register in at least one jurisdiction; he need not register in multiple jurisdictions. See Defendant's Memorandum of Law at 4. Defendant asserts that, because "[i]t is legally impossible for [him] to be convicted of both Counts in the Second Superseding Indictment," the Court should dismiss the Second Superseding Indictment or require the Government to elect whether it will proceed under Count One or Count Two. See id.

To the contrary, the Government contends that the Court should not dismiss the Second Superseding Indictment because, [e]ven based upon a simple reading of the Second Superseding Indictment, it is evident that[,] although each count alleges a violation of the same statute (accordingly the same legal elements), proof of each count involves different facts, and different knowledge requirements: whether [Defendant] knowingly failed to update ...


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