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United States v. Nier

April 21, 2009

UNITED STATES OF AMERICA,
v.
JOSEPH R. NIER, DEFENDANT.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

DECISION and ORDER

Currently before the Court are the following three motions: (1) a motion by Joseph Nier ("Nier") for an Order dismissing the Indictment charging him with failing to register or update his registration as a sex offender in violation of 18 U.S.C. § 2250, as required by the Sex Offender Registration and Notification Act ("SORNA"), 42 U.S.C. § 16901, et seq. (Dkt. No. 10); (2) a motion by Nier for an alternative Order accepting his requested jury instruction that includes knowledge as an element of a charge under SORNA (Dkt. No. 10); and (3) the Government's cross-motion for reciprocal discovery pursuant to Fed. R. Crim. P. 16(b)(1) (Dkt. No. 12). For the reasons set forth below, the Court denies Plaintiff's motion to dismiss the Indictment; the Court denies without prejudice Plaintiff's alternative motion for a jury instruction; and the Court grants the Government's cross-motion for reciprocal discovery.

I. RELEVANT BACKGROUND

None of the issues raised by Nier's in his motion papers involve any factual disputes. (See Dkt. No. 10.) Rather, the issues raised by Nier in his motion papers are solely constitutional challenges to SORNA's applicability to him, and to the Government's previously proposed jury instruction (filed in other SORNA prosecutions) stating that knowledge is not an element of a charge under SORNA. (Id.) Thus, the Court will only briefly discuss the facts in this case.

On or about December 3, 2003, Nier pled guilty to violating Section 130.65 of the New York Penal Law--Sexual Abuse in the First Degree, a Class D felony, and was sentenced to six months incarceration and ten years probation. (Dkt. No. 13.) As a result of that sentence, Nier was designated a Level 1 Sex Offender by the State of New York, and was required to register as a sex offender and keep his registration up to date pursuant to New York State Correction Law Section 168-a.

On February 2, 2004, Nier completed a New York Sex Offender Registration form. (Id.)*fn1

Nier subsequently filed the required annual address verifications in February 2005, February 2006, February 2007, and February 2008. (Dkt. No. 12, Part 3.) On June 11, 2008, Nier filed a New York State Sex Offender Change of Address Form (DCJS-3231). (Dkt. No. 14.) This was the last change-of-address form received by the New York State Division of Criminal Justice Services ("NY DCJS") from Nier.

On June 23, 2008, following his release to parole supervision after serving a prison sentence for an unrelated offense, Nier reviewed, and signed the conditions of his release with Parole Officer Matt Mullin. (Dkt. No. 12, Part 5.) Section 13(v) of the Special Conditions of Release to Parole Supervision, signed by Nier, states that "[Nier] will comply with the directive to register as a sex offender with the designated law enforcement agency as required." (Id. at 3.)

On December 22, 2008, New York State Parole Officer Cliff Cuda contacted the United States Marshal's Service to notify it that Nier was absent from supervision. Information surfaced showing that Nier had been transported to a relative's home in Florida. On January 9, 2009, the Florida Regional Fugitive Task Force team located Nier in Lake City, Florida. Information surfaced showing that Nier had been living in Florida since approximately November, 2008. An investigation by officials in Florida and New York showed that Nier had not notified the Florida Sex Offender registry of his change of residence from New York to Florida, and likewise that the NY DCJS had not received a change-of-residence form from Nier.

II. RELEVANT STATUTORY LANGUAGE

SORNA provides as follows, in pertinent part:

Registry Requirements for Sex Offenders

(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 his 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 ...


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