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United States v. Herbert

November 20, 2009



Presently before the Court is a Motion (Dkt. No. 10) by Defendant Jeffrey Herbert ("Defendant" or "Herbert") to dismiss ("Motion") the first count of a two count Indictment (Dkt. No. 4). Herbert challenges on six grounds the charge that he has committed a violation of, and may be prosecuted under, the Sex Offender Registration and Notification Act, 18 § U.S.C. 2250(a). For the reasons that follow, each of Defendant's arguments fails, and his Motion to dismiss must be denied.


On February 27, 1998, the Defendant was convicted of rape in the third degree in St. Lawrence County, New York, qualifying him as a sex offender under New York state law. See Govt.'s Response ("Response") at 4-5 (Dkt. No. 11); Motion at 2; N.Y. Correction Law § 168-a(1), (3) 2009. On March 12, 1999, as part of his release from custody, Defendant registered with the New York State Division of Criminal Justice as a sex offender, listing an address in Irvington, New Jersey as his residence. In doing so, Herbert certified that he had been instructed upon and understood that he must verify his home address and provide notification in case of any change thereof. Response at 5. On March 17, 2009, Defendant completed verification of the address in New Jersey as his current residence.

In December of 2008, the Government alleges that Herbert began residing in Delmar, New York without providing any update to his New York sex offender registration. In February of 2009, the Government states that Herbert moved to Troy, New York, where he remained until his arrest there on August 5, 2009. Motion at 3; Response at 5-6. During the time that Herbert is alleged to have been living in New York while registered in New Jersey, he held jobs and applied for a driver's license listing Troy as his place of residence. Response at 5-6.

On July 27, 2006, the Adam Walsh Child Protection and Safety Act of 2006 was signed into law, which included as Title I the "Sex Offender Registration and Notification Act" ("SORNA"). Pub. L. No. 109-248, §§ 1-155, 120 Stat. 587, 590-611 (2006). As it pertains to the instant case, SORNA is composed of a set of provisions for the registration of convicted sex offenders, codified as 42 U.S.C. §§ 16901-16991, and a criminal penalty for state and federal sexual offenders who violate the rules in the Title 42 provisions and proceed to travel from one state to another, codified as 18 U.S.C. § 2250.

SORNA was enacted with the purpose of "protect[ing] 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. The registry requirements state, 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.

Pursuant to authority vested by Congress through 42 U.S.C. ยง 16913, the Attorney General promulgated a rule on February 28, 2007 concerning the application of SORNA to those persons qualifying as sexual offenders before the passage of SORNA, which remains in effect. "The requirements of the Sex Offender Registration and Notification Act apply 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. ...

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