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United States v. O'Dell

May 13, 2009

UNITED STATES OF AMERICA,
v.
JEFFREY O'DELL, DEFENDANT.



The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM DECISION AND ORDER

I. INTRODUCTION

Defendant Jeffrey O'Dell is charged in a one-count indictment with violating 18 U.S.C. § 2250(a). To wit, the government charged defendant, an individual required to register under the Sex Offender Registration and Notification Act ("SORNA"), with knowingly traveling in interstate commerce from the State of New York to the State of Georgia, and knowingly failing to register as a sex offender in the State of Georgia and knowingly failing to update his registration in the State of New York.

Presently before the Court is defendant's motion to dismiss the indictment on the following grounds: (1) SORNA is not applicable to defendant because New York and Georgia have not yet implemented the law; (2) to punish defendant for a law that did not yet apply to him would violate the Ex Post Facto Clause of the United States Constitution; (3) to punish defendant for violating a law with which he was unable to comply would violate the Due Process Clause of the United States Constitution; (4) the criminal provisions of SORNA (18 U.S.C. § 2290) and the registration requirements of SORNA (42 U.S.C. § 16913) violate the Commerce Clause; (5) the registration requirements of SORNA violate the Tenth Amendment; and (6) SORNA violates the non-delegation doctrine. (Dkt. No. 9) The government opposes defendant's motion. (Dkt. No. 10).

II. FACTS*fn1

On December 5, 1996, defendant was convicted of Criminal Sexual Conduct in the Third Degree in violation of South Carolina Code, § 16-3-654.*fn2 On December 5, 1996, defendant was committed to the South Carolina State Department of Corrections for a term of 5 years with the sentence to be suspended upon the service of 10 months with probation for 3 years.*fn3 On May 6, 1997, defendant completed a New Sex Offender Registry Information Form for the State of South Carolina. Defendant acknowledged that he read the Form which provided, in part:

I am providing this information in accordance with Section 23-3-450 of the South Carolina State Code of Laws which requires all individuals convicted of criminal offenses set forth in section 23-3-400 to register with the Sheriff's Office. I understand that I am required to re-register annually for life from the date below.

Under New York Law, defendant was required to register as a Sex Offender. On May 10, 2002, defendant registered as a Level 3 sex offender by completing and filing a New York State Sex Offender Registration Form. Defendant acknowledged that he read the form and understood his duty to register. The duties, as listed on the form, included notifying the Division of Criminal Justice Services of any change of address and verifying a home address once a year. Additionally, a Level 3 offender was required to verify his home address (in person) with local law enforcement every 90 days. Defendant listed his address as Saratoga County Jail, 6010 Country Farm Road, Ballston Spa, New York, 12020. On July 25, 2008, defendant completed a NYS Sex Offender Change of Address Form and listed his former address as Saratoga County Jail and his new address as 86 Van Dam Street, Saratoga Springs, New York.

On September 2, 2008, the Saratoga Springs Police Department conducted an address verification of defendant. Investigator Glen E. Vidnansky prepared an Incident Report stating that a landlord at defendant's apartment building advised that defendant was evicted from the premises on August 22, 2008. On September 4, 2008, a warrant was issued for defendant's arrest for failure to update/register as a sex offender.

On January 9, 2009, the U.S. Marshals Service received information from a Special Agent of the Social Security Administration. The agent advised that on January 2, 2009, plaintiff had appeared at a Social Security Office in Savannah, Georgia requesting that his social security benefits be reinstated. Defendant advised the Social Security representatives that he arrived in Savannah on December 31, 2008 and that he resided at 60 W. Montgomery, Savannah, Georgia. On January 12, 2009, Deputy U.S. Marshall Sullivan contacted the Georgia Bureau of Investigation Sex Offender Registry and the Chatham County Sheriff's Department and was advised that defendant never registered as a sex offender in the State of Georgia.

The indictment charges defendant with failing to register as a sex offender in the State of Georgia and failing to update his registration in the State of New York between July 2008 and February 6, 2009.

III. LEGISLATIVE BACKGROUND

Title I of The Adam Walsh Child Protection and Safety Act ("Walsh Act") is comprised of the Sex Offender Registration and Notification Act ("SORNA"). Pub. L. No. 109-248, §§ 1-155, 120 Stat. 587, 590-611 (2006), codified at 42 U.S.C. §§ 16901-16991. SORNA was enacted in July 2006 to "protect the public from sex offenders and offenders against children by establishing a comprehensive national system for the registration of sex offenders". 42 U.S.C. § 16901. SORNA established registry requirements for sex offenders and provides, in pertinent part:

(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.

42 U.S.C. § 16913.

Subsection (d) of 42 U.S.C. § 16913 vested the Attorney General with, "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(d). The Attorney General was further directed to develop software to enable jurisdictions to establish and operate uniform sex offender registries. 42 U.S.C. § 16923. Each jurisdiction was directed to implement SORNA before the later of July 27, 2009 or one year after the software was made available. See 42 U.S.C. § 16924.

On February 28, 2007, the Attorney General enacted an Interim Rule which applied the requirements of SORNA to, "all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act". 28 C.F.R § 72.3.

SORNA also created criminal penalties for individuals who failed to register. The criminal provisions of SORNA were codified at 18 U.S.C. ...


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