U.S. v. LeTourneau

Full title: UNITED STATES OF AMERICA v. TOMMY EDWARD LeTOURNEAU

Court: United States District Court, S.D. Texas

Date published: Jan 9, 2008

534 F. Supp. 2d 718 (S.D. Tex. 2008)

Opinion

CRIMINAL NO. B-07-855.

January 9, 2008.

Cesar A. Amador, Brownsville, TX, for Plaintiff.

Terra L. Bay, United States Attorney's Office, Brownsville, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

ANDREW S. HANEN, District Judge.

Before this Court is a motion by defendant, Tommy Edward LeTouraneau, to dismiss the indictment against him. (Docket No. 11). LeTourneau filed a memorandum in support and the government has filed an opposition to the motion. (Docket No. 13). The Court orally announced its decision denying LeTourneau's motion on November 27, 2007 at a Pre-Trial Conference, but has written this order to memorialize the ruling.

I. BACKGROUND

For purposes of reviewing a motion to dismiss an indictment, the Court assumes the truth of what the indictment alleges. See United States v. Afshari, 426 F.3d 1150, 1153 (9th Cir. 2005). A Court can also consider facts agreed upon by the parties. See, e.g., United States v. Dixon, No. 3:07-CR-72(01) RM, 2007 WL 4553720 (N.D. Ind. Dec. 18, 2007).

The Government presented facts on which the indictment is based as a part of its response to the motion to dismiss and during subsequent hearings on this case. ( See Docket No. 13); (Pre-Trial Conference, November 17, 2007); (Final Pre-Trial Conference, January 8, 2008). Defendant never objected to any of the facts presented by the Government with regard to the motion dismiss and Defendant's counsel conceded in open court that LeTourneau has a conviction which would require registration under SORNA. ( See Final Pre-Trial Conference, January 8, 2008). This Court will, therefore, deem the facts as follows to have been agreed upon by the parties for purposes of ruling on this motion to dismiss: LeTourneau was convicted of Attempted Aggravated Sexual Battery in Sullivan County, Tennessee on August 19, 2004. ( See Indictment, Docket No. 5 [hereinafter Indictment]); (Docket No. 13). This conviction required him to register as a sex offender under Tennessee law. ( Id.) He was also required to report to a law enforcement agency within 48 hours of changing his address, employment, vocation, or becoming a student in Tennessee. ( Id.) LeTourneau initially registered while in prison in Tennessee. ( Id.)

After release from custody in June 26, 2007, LeTourneau soon thereafter traveled from Tennessee to Texas. (Docket No. 13). He has since been living and working in Brownsville, Texas. ( Id.) LeTourneau never registered these changes with the proper authorities in Tennessee, nor did he register as a sex offender in Texas. ( Id.)

LeTourneau was indicted on September 18, 2007 for failing to register and update his registration after traveling in interstate commerce as required by the Sex Offender Registration and Notification Act ("SORNA"). (Docket No. 5).

He challenges his indictment on four grounds:

(i) SORNA violates the ex post facto clause by applying its registration requirements to convictions that occurred prior to the enactment of SORNA, creating "an enhanced penalty that did not exist at the time the offense in issue was committed. . . . "

(ii) He lacked constitutionally adequate notice of SORNA's registration requirements.

(iii) The indictment failed to allege all elements of the charged offense.

(iv) SORNA violates the non-delegation doctrine by directing the Attorney General to decide which offenders with convictions predating SORNA are subject to the registration requirements. (Docket No. 11).

II. THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT ("SORNA")

The Adam Walsh Child Protection and Safety Act of 2006 (the "Walsh Act") was enacted on July 27, 2006, while LeTourneau was still in the custody of the Tennessee authorities. Title I of the Walsh Act is the Sex Offender Registration and Notification Act ("SORNA"). 42 U.S.C. § 16911. All jurisdictions must maintain a sex offender registry that conforms to the requirements of SORNA. 42 U.S.C. § 16912.

SORNA makes it a federal crime for anyone required to register as a sex offender to travel in interstate commerce and knowingly fail to register or update his or her registration. 18 U.S.C. § 2250(a). A defendants is subject to SORNA's provisions if (i) he or she has a state law sex offense requiring registration as a sex offender; (ii) then travels in interstate commerce; and (iii) knowingly fails to register or update his or her registration as required by state law. See 42 U.S.C. §§ 16911, 16912, 16913; United States v. Pitts, Crim. No. 07-157-A, 2007 WL 3353423, at *3 (M.D. La. Nov. 7, 2007).

The Attorney General has authority to specify the applicability of the requirements of SORNA to sex offenders convicted prior to July 27, 2006 and to prescribe the rules for the registration of those sex offenders. 42 U.S.C. § 16913(d). The Attorney General issued a regulation on February 28, 2007 stating, in pertinent part, that "[t]he requirements of [SORNA] apply to all sex offenders, including sex offenders convicted of [an] offense for which registration is required prior to enactment of [SORNA]." 28 C.F.R. § 72.3. SORNA therefore applies to any defendant convicted and required to register under state law, regardless of the date of conviction, who travels in interstate commerce and knowingly fails to update his or her registration. See Pitts, 2007 WL 3353423 at *3.

III. EX POST FACTO CLAUSE

LeTourneau argues his indictment must be dismissed because SORNA requires a retroactive application of the statute to a conviction existing prior to the enactment of SORNA. (Docket No. 11). Specifically, LeTourneau alleges SORNA violates the ex post facto clause of the United States Constitution, U.S. CONST. Art. I, § 9, cl. 3, by imposing an enhanced penalty that did not exist at the time he committed the sex offense for which he was convicted in 2004. (Docket No. 11).

A. SORNA Does Not Implicate the Ex Post Facto Doctrine Because it is Civil and Nonpunitive in Nature

The constitutional prohibition of the ex post facto doctrine applies "only to penal statutes which disadvantage the offender affected by them." Collins v. Youngblood, 497 U.S. 37, 41 (1990). This Court must therefore "ascertain whether [Congress] meant the statute to establish `civil proceedings.'" Smith v. Doe, 538 U.S. 84, 92 (2003). If a law, however, despite being civil and nonpunitive on its face, is so punitive in purpose or effect as to negate the intent of the legislature, then it will be in violation of the Constitution. Id.

In Smith, the Supreme Court considered a sex offender registration and notification law enacted by the Alaska State Legislature. See generally Smith v. Doe, 538 U.S. 84 (2003). After considering the statute's text and structure, the Supreme Court held "the intent of the Alaska legislature was to create a civil nonpunitive regime." Id. at 96. Imposing restrictive measures on sex offenders adjudicated to be dangerous is a "legitimate nonpunitive governmental objective . . ." Id. at 93, 123 S.Ct. 1140. The Supreme Court concluded that the retroactive application of a sex offender registration does not violate the ex post facto clause. See id. at 97-98, 123 S.Ct. 1140.

The stated purpose of SORNA is "to protect the public from sex offenders and offenders against children . . . [and to] establish a comprehensive national system for the registration of [sex] offenders." 42 U.S.C. § 16901. SORNA's registration requirement is functionally indistinguishable from the Alaskan requirement at issue in Smith. United States v. Gill, No. 2:06-cr-00725 PGC, 2007 WL 3018909, at *3 (D. Utah Oct. 15, 2007). The registration scheme established by SORNA has not historically been regarded as a punishment, does not impose an affirmative disability or restraint, does not promote the traditional aims of punishments, has a rational connection to a nonpunitive purpose, and is not excessive with respect to the nonpunitive purpose. United States v. Madera, 474 F. Supp. 2d 1257, 1263 (M.D. Fla.); see Smith, 538 U.S. at 97. Relying on Smith v. Doe, all courts reviewing SORNA have held that SORNA does not generally violate the ex post facto clause.¹

1 See United States v. Pitts, Crim. No. 07-157-A, 2007 WL 3353423, at *5-6 (M.D. La. Nov. 7, 2007); United States v. Carr, No. 1:07-cr-73, 2007 WL 3256600, at *2 (N.D. Ind. Nov. 2, 2007); United States v. Gill, 2007 WL 3018909, at *3; United States v. Ambert, No. 4:07-cr-053-SPM, 2007 WL 2949476, at *5 (N.D. Fla. Oct. 10, 2007); Levine v. Pennsylvania State Police, No. 4:07-cv-1453, 2007 WL 3033951, at *4 (M.D. Pa. Oct. 16, 2007); United States v. Lovejoy, No. 4:07-cr-061, 2007 WL 2812681, at *6 (D.N.D. Sept. 28, 2007); United States v. May, No. 4:07-cr-00164-JEG, 1:07-cr-00059-JEG, 2007 WL 2790388, at *5 (S.D. Iowa Sept. 24, 2007); United States v. Patterson, No. 8:07CR159, 2007 WL 2904099, at *8 (D. Neb. Sept. 21, 2007); United States v. Cole, No. 07-CR-30062-DRH, 2007 WL 2714111, at *3 (S.D. Ill. Sept. 17, 2007); United States v. Stinson, 507 F. Supp. 2d 560, 565 (S.D.W. Va. Sept. 7, 2007); United States v. Kelton, No. 5:07-CR-300C10GRJ, 2006 WL 2572204, at *1 (M.D.Fla. Sept. 5, 2007); United States v. Torres, No. 07-50035, 2007 WL 2343884, at *2 (W.D. Ark. Aug. 15, 2007); United States v. Gonzales, No. 5:07CR27-RS, 2007 WL 2298004, at *10 (N.D. Fla. Aug. 9, 2007); United States v. Mason, No. 607CR52ORL19JGG, 2007 WL 1521515, at *4 (M.D. Fla. May 22, 2007); United States v. Markel, No. 06-20004, 2007 WL 1100416, at *1-2 (W.D. Ark. Apr. 11, 2007); United States v. Templeton, No. CR-06-291-M, 2007 WL 445481, at *5 (W.D. Okla. Feb. 7, 2007; United States v. Madera, 474 F. Supp. 2d 1257, 1264 (M.D. Fla. Jan. 16, 2007).

SORNA thus does not violate the ex post facto clause by imposing registration requirements and possible criminal punishment for failure to register. LeTourneau cannot have his indictment dismissed merely because he is required to register and is subject to the consequences of updating his registration as required by SORNA.

Since the conduct criminalized by SORNA is "traveling in interstate commerce and subsequently failing to register," a number of courts have held that charging a defendant with a violation of SORNA for travel prior to the effective date of SORNA (either July 27, 2006 or February 28, 2007)² violates the ex post facto clause because that travel was only a misdemeanor prior to the enactment of SORNA.³ Here, LeTourneau traveled at some point between June and July 2007, well after the Attorney General specified the rules for registering sex offenders convicted prior to SORNA. (Docket No. 13). This case does not implicate the ex post facto concerns raised by the "prior-to-effective date" interstate travel cases.

2 SORNA was enacted on July 27, 2006. On February 28, 2007, the requirements of SORNA were applied to sex offenders who were convicted prior to July 27, 2006. There is a split among district courts about whether applying SORNA to travel prior to July 27, 2006 or February 28, 2007 implicates the ex post facto clause. This case does not implicate this split of authority, because LeTourneau traveled after February 28, 2007.

3 See United States v. Wilson, No. 2:06-CR867 TC, 2007 WL 3046290, *2 (D. Utah Oct. 16, 2007); United States v. Gill, No. 2:06-CR-00725, 2007 WL 3018909, at *6 (D. Utah Oct. 15, 2007); United States v. Deese, No. CR-07-167-L, 2007 WL 2778362, at *3 (W.D. Okla. Sept. 21, 2007); United States v. Patterson, No. 8:07CR159, 2007 WL 2904099, at *8 (D. Neb. Sept. 21, 2007); United States v. Cole, No. 07-CR-30062-DRH, 2007 WL 271411, at *3 (S.D. Ill. Sept. 17, 2007); United States v. Stinson, 507 F. Supp. 2d 560, 568-69 (S.D.W. Va. 2007); United States v. Muzio, No. 407CR179 CDP, 2007 WL 2159462, at *6 (E.D. Mo. July 26, 2007); United States v. Kapp, 487 F. Supp. 536, 543. (M.D. Pa. 2007).

B. SORNA Does Not Implicate the Ex Post Facto Doctrine Because the Conduct "Punished" Did Not Occur Until After SORNA Was Enacted

A few courts address ex post facto issues raised under SORNA by focusing on the conduct required to violate SORNA. See Carr, 2007 WL 325660, at *3; Ambert, 2007 WL 2949476, at *5; Mason, 2007 WL 1521515, at *3; Templeton, 2007 WL 445481, at *5. These courts also find that SORNA does not violate the ex post facto clause. See id.

A law violates the ex post facto clause if it (i) punishes as a crime an act that was not criminal when it was committed or (ii) makes the punishment for a crime greater than when the crime was committed. Collins v. Youngblood, 497 U.S. 37, 52 (1990). SORNA does not punish a defendant for the sexual offense committed prior to the enactment of SORNA, but rather traveling in interstate commerce and failing to register after SORNA became effective. Carr, 2007 WL 325660, at *3; Ambert, 2007 WL 2949476, at *5; Mason, 2007 WL 1521515, at *3; Templeton, 2007 WL 445481, at *5. LeTourneau's motion to dismiss fails on this aspect of the ex post facto doctrine as well.

IV. CONSTITUTIONALLY ADEQUATE NOTICE

LeTourneau argues that the Attorney General has not promulgated rules or policies to notify offenders whose convictions pre-dated SORNA of the statute's registration requirements and that LeTourneau, therefore, could not have been provided notice under SORNA. (Docket No. 11). He also argues that any notification he may have received of his obligation to register under state law was not constitutionally adequate notice for SORNA because he was entitled to notice of the heightened penalties for failure to register under SORNA. (Docket No. 11).

Under SORNA, an official should inform a sex offender of his duties as a sex offender under SORNA and explain those duties prior to the sex offender's release. 42 U.S.C. § 16917(a)(1). A sex offender's obligations under SORNA are, however, based only on the defendants prior obligations to register under state law. See Marcantonio, 2007 WL 2230773, at *2. Where a defendant is already under an obligation to register under state law SORNA does not create any additional duties for the defendant. See Marcantonio, 2007 WL 2230773 at *2. Thus, the issue before this Court is whether a defendant convicted prior to the enactment of SORNA, who was fully informed of his obligation to register and update his registration pursuant to state law, meets the registration obligations of SORNA. See United States v. Adkins, No. 1:07-CR-59, 2007 WL 4335457, *6 (N.D. Ind. Dec. 7, 2007).

The issue of notice in SORNA is different from the situation presented to the United States Supreme Court in Lambert v. California, where a conviction for failure to register was overturned because the defendant had no actual knowledge of a duty to register as a felon. See 355 U.S. 225, 227-29, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). The Lambert holding only applies when a "person, wholly passive and unaware of any wrongdoing, is brought to the bar of justice for condemnation in a criminal case." Id. at 228. Lambert is inapplicable to the vast majority of cases under SORNA because most defendants have been shown to be well aware of their duty to keep their registration current and to update their registration upon moving to a new state. See, e.g., United States v. Gould, Crim. No. WDQ-07-0359, 2007 WL 4371418, at *3-4 (D. Md. Dec. 13, 2007). All but two courts reviewing the issue of due process and constitutional notice have, therefore, held that a sex offender's awareness of his duty under the state law of conviction to update his registration qualifies as constitutionally effective notice under SORNA.⁴

4 See United States v. Dixon, No. 3:07-CR-72(01) RM, 2007 WL 4553720, *3-4 (N.D. Ind. Dec. 18, 2007); United States v. Gould, Crim. No. WDQ-07-0359, 2007 WL 4371418, at *3-4 (D. Md. Dec. 13, 2007); United States v. Elliott, No. 07-14059-CR, 2007 WL 4365599, *7 (S.D. Fla. Dec. 13, 2007); United States v. Brown, No. 07-cr-485(HB), 2007 WL 4372829, at *4 (S.D.N.Y. Dec. 12, 2007); United States v. Adkins, No. 1:07-CR-59, 2007 WL 4335457, at *5-6 (N.D. Ind. Dec. 7, 2007); United States v. Cardenas, No. 07-80108-CR, 2007 WL 4245913, at *13-14 (S.D. Fla., Nov. 29, 2007); Ambert, 2007 WL 2949476, at *2; Mitchell, 2007 WL 2609874, at *2; Torres, 2007 WL 2343884, at *2; Marcantonio, 2007 WL 2230773, at *1; Madera, 474 F. Supp. 2d at 1262; Markel, 2007 WL 1100416, at *2; Mason, 2007 WL 1521515, at *3.

Tennessee requires all registered sex offenders to report to a designated law enforcement agency after the offender moves to another state. Tenn. Code § 40-39-208(a)(9). Upon moving to Texas, LeTourneau was required to notify the proper Tennessee authorities. See id. On June 19, 2007, LeTourneau signed a Tennessee Bureau of Investigation Sexual Offender/Violent Offender Instructions and registered as a sex offender in Tennessee. ( See Tennessee Bureau of Investigation Sexual Offender/Violent Sexual Offender Instructions signed by LeTourneau on June 19, 2007 [hereinafter Instructions], attached as Exhibit A).

By signing these Instructions, LeTourneau acknowledged that he read and was aware of, among other requirements, his duty to update his registration when he moves to another state, and that a failure to update his registration upon moving was a Class E felony under Tennessee's registration laws. ( Id.); see Tenn. Code § 40-39-208(a)(9). When LeTourneau moved to Texas, and failed to register, his prior knowledge of his duty to update his registration under Tennessee state law qualified as effective notice under SORNA.⁵ LeTourneau's motion to dismiss for lack of constitutionally adequate notice, therefore, fails on this ground.

5 LeTourneau also failed to register as a sex offender in Texas. (Docket No. 13). Texas requires all out-of-state sex offenders who move to Texas to register as sex offenders if the elements of their out-of-state conviction would satisfy the elements of a Texas crime that requires registration as a sex offender under Texas law. See Tex. Crim. Pro. Art. 62.001(5)(H), 62.501(a)(1). The elements of a Tennessee conviction for Attempted Aggravated Sexual Battery would satisfy the elements of the Texas crime of Attempted Aggravated Sexual Assault. Compare TN ST §§ 39-12-101, 39-13-504 with Tex. Penal Code § 22.021. A person convicted of the Texas crime of Attempted Aggravated Sexual Assault must register as a sex offender pursuant to Texas law. See Tex. Crim. Pro. Art. 62.001(5)(A), 62.051. LeTourneau was, therefore, required to register in Texas as a sex offender upon moving to Texas. LeTourneau, however, failed to register with the Texas authorities. (Docket No. 13).

Two courts have found that a defendant failed to receive constitutionally adequate notice and the situations involved do not apply to LeTourneau's case. See United States v. Barnes, No. 07 CR. 187, 2007 WL 2119895, at *2-3 (S.D.N.Y. July 23, 2007) (holding a defendant lacked adequate notice when travel occurred prior the Attorney General extending SORNA's requirements to include all sex offenders); United States v. Smith, No. CRIMA 207-CR-00082, 2007 WL 1725329, at *4-5 (S.D.W. Va. June 13, 2007) (finding lack of constitutionally adequate notice when defendant arrested on the day the Attorney General extended SORNA). LeTourneau traveled in interstate commerce, failed to update his registration in Texas or Tennessee, and was subsequently arrested between June and August of 2007. Since these actions all occurred after February 28, 2007, the day when the Attorney General specified SORNA's requirements for sex offender convicted prior to SORNA, the exceptions in Barnes and Smith do not apply to LeTourneau.

V. INSUFFICIENCY OF THE INDICTMENT

LeTourneau argues that the indictment failed to allege all elements of the offense charged pursuant to 18 U.S.C. § 2250(a) because it failed to state that he was required to be registered under SORNA "by reason of a conviction under Federal Law. . . ." See 18 U.S.C. § 2250(a); (Docket No. 13). He claims that SORNA does not include state sexual offenses as qualifying SORNA sex offenses. (Docket No. 11).

A plain reading of the statute shows that conviction under 18 U.S.C. § 2250(a) requires either a federal sex offense conviction or interstate travel after a state conviction requiring registration, not both. See 18 U.S.C. § 2250(a). SORNA applies to a defendant with a state law conviction requiring registration as a sex offender who travels in interstate commerce and knowingly fails to register or update his registration as required. See, e.g., Pitts, 2007 WL 3353423, at *3.

LeTourneau was charged with being a person required to register under SORNA, who traveled in interstate commerce, and subsequently failed to register as required. (Docket Nos. 5, 13). The indictment sufficiently notified the LeTourneau of the charge against him. ( See Docket No. 5).

VI. NON-DELEGATION DOCTRINE

Finally, LeToumeau argues that SORNA improperly delegates legislative powers to the Executive Branch by directing the Attorney General to decide whether and how a sex offender with a conviction pre-dating SORNA will be subject to its requirements in violation of the non-delegation doctrine. See 42 U.S.C. § 16913(d); (Docket No. 11).

Congress clearly set forth the purpose of SORNA in 42 U.S.C. § 16901. See Lovejoy, 2007 WL 2812681, at *3; Mason, 2007 WL 1521515, at *3. The Attorney General was only given the power "to promulgate regulations under the most limited of circumstances," therefore, the authority Congress delegated to the Attorney General was "no so broad as to be violative of the non-delegation doctrine." Hinen, 487 F. Supp. 2d at 752; see May, 2007 WL 2790388, at *6, Loveyjoy, 2007 WL 2812681, *3; Mason, 2007 WL 1521515, at *3.

Every District Court considering whether 42 U.S.C. § 16913(d) violates the non-delegation doctrine have declined to find it an unconstitutional congressional delegation of authority. See Pitts, 2007 WL 3353423, at *7-8; Gill, 2007 WL 3018909, at *5; Lovejoy, 2007 WL 2812681, at *3; May, 2007 WL 2790388, at *6; Kelton, 2007 WL 2572204, at *1; Mason, 2007 WL 1521515, at *3; Madera, 474 F. Supp. 2d at 1261. This Court agrees with those holdings that SORNA is not an unconstitutional delegation of power to the Attorney General.

VII. CONCLUSION

Having considered LeTourneau's motion to dismiss and the arguments therein, this Court DENIES his motion to dismiss the indictment.

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