The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
Rene Solis Cruz ("Cruz") has moved to dismiss 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. 9.) The Government has opposed Cruz's motion, and has cross-moved for reciprocal discovery. (Dkt. No. 11.) For the reasons set forth below, the Court denies Cruz's motion, and reserves decision on the Government's cross-motion pending the receipt of response papers from Cruz.
None of the issues in Cruz's motion to dismiss involve any factual disputes. Rather, the issues raised by Cruz are solely constitutional challenges to SORNA's applicability to him. Thus, the Court will only briefly discuss the facts in this case.
On August 2, 2000, Cruz plead guilty to one count of attempted rape in the first degree, in violation of New York Penal Law §§ 110.00, 130.35(1), and was sentenced to a seven-year term of imprisonment. (Dkt. No. 9, Part 2, at 6.) On September 1, 2006, before he was released from state prison, Cruz appeared before Hon. William F. Ames of Cortland County, who determined Cruz to be a risk level two (2) sex offender, and classified him as a sexually violent offender.
On September 11, 2006, while still incarcerated at Attica Correctional Facility in Attica, New York, Cruz signed a New York State Sex Offender Registration Form, which notified Cruz that, due to his designation as a sex offender, he has certain legal obligations, including compliance with delineated registration requirements. (Dkt. No. 11, Part 1, at 3-4.) By signing this Registration Form, Cruz effectively registered himself in New York State as a sex offender. (Dkt. No. 9, Part 2, at 6.)
On September 12, 2006 Cruz was released from state prison. (Dkt. No. 11, Part 1, at 3-4.) On September 13, 2006, Cruz filed with the Division of Criminal Justice Services ("DCJS") a Sex Offender Change of Address Form, indicating his address in Syracuse, New York. (Dkt. No. 11, Part 1, at 3-4.) On October 31, 2006, another change of address form was filed on Cruz's behalf by New York State Parole Officer Jay Moss, notifying DCJS that Cruz was incarcerated at the Onondaga County Correctional Facility. (Id.) Thereafter, as a result of a parole violation, Cruz was transferred to Downstate Correctional Facility. (Id.) On January 12, 2007, Cruz signed a Sex Offender Change of Address Form notifying DCJS of his change of address. (Id.)
On September 18, 2008, before his release on the parole violation, Cruz executed another Sex Offender Change of Address Form, indicating the Syracuse address where he intended to reside upon his release from Altona Correctional Facility. (Id.; Dkt. No. 9, Part 2, at 6.) This was the last change-of-address form Cruz filed with DCJS. (Dkt. No. 11, Part 1, at 3-4.)
On October 31, 2008, Cruz was re-paroled. (Dkt. No. 11, Part 1, at 4-5.) On March 31, 2009, Cruz left his approved residence without the authorization of his Parole Officer. (Id.) On June 25, 2009, Cruz was arrested in Reading, Pennsylvania, pursuant to a New York State parole warrant. (Dkt. No. 9, Part 2, at 6.)
Following his arrest, Cruz told law enforcement officers that he had gone to Pennsylvania on June 8, 2009, to visit family, and that he had not registered as a sex offender nor notified anyone of his change of address. (Id.; Dkt. No. 11, Part 1, at 5.)
On June 27, 2009, Cruz was returned to New York State. (Dkt. No. 11, Part 1, at 5.) On the return trip, Cruz made statements to New York State Parole Officer Cliff Cuda admitting that he traveled from Geneva, New York, to Reading, Pennsylvania, exactly two weeks before his being arrested on June 24, 2009, and that he did not register this change with DCJS, or notify the sex offender registry in Pennsylvania of his change of residence because he did not want to get caught. (Id.) The Pennsylvania State Police confirmed that Cruz did not register with them. (Id.)
On July 23, 2009, a grand jury returned an indictment, charging Cruz with one count of failing to register from in or about April 2009 to June 2009. (Dkt. No. 9, Part 2, at 6-7.)
Cruz's motion dismiss the indictment is based on four grounds: (1) to punish Cruz for a violation of an Act that has not yet been implemented in either New York or Pennsylvania would violate the Ex Post Facto and Due Process Clauses of the Constitution; (2) Congress lacks the power, under the Commerce Clause, to force individuals convicted of purely local sex offenses to register as sex offenders; (3) SORNA impermissibly encroaches upon state power in violation of the Tenth Amendment; and (4) SORNA violates the doctrine (i.e., the "Non-Delegation Doctrine") that prohibits Congress from delegating its legislative authority to another branch of the government (i.e., the executive branch). (Dkt. No. 9, Part 2, at 7.) The Government opposes Cruz's motion.
II. RELEVANT STATUTORY LANGUAGE
SORNA provides as follows, in pertinent part:
Registry requirements for sex offenders
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.
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 ...