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United States v. Cole

September 17, 2007


The opinion of the court was delivered by: Herndon, District Judge


I. Introduction and Background

This matter comes before the Court on Defendant Richie Cole's motion to dismiss indictment (Doc. 23) and supplemental motion to dismiss indictment (Doc. 25).*fn1 Obviously, the Government opposes the motion (Doc. 26). Based on the pleadings, the applicable case law and the following, the Court GRANTS Defendant's motion.

On April 20, 2007, the grand jury indicted Richie Cole with failure to register as a sex offender in violation of 18 U.S.C. § 2250(a) (Doc. 1). Specifically, the Indictment alleges:

From on or about December 15, 2006 through on or about January 31, 2007, in St. Clair County and Johnson Counties, within the Southern District of Illinois, and elsewhere, RICHIE COLE, defendant herein, a person required to register under the Sex Offender Registration and Notification Act, traveled in interstate commerce and did knowingly fail to register, in violation of Title 18, United States Code, Section 2250(a).

(Doc. 1). On June 11, 2007, Cole, represented by the Federal Public Defender, was arraigned and plead not guilty to the charge contained in the Indictment (Docs. 10 & 11). That same day, the Government filed a motion to detain (Doc. 9) and Cole entered a waiver of detention hearing and a waiver of right under interstate agreement on detainers (Docs. 14 & 15, respectively). On June 11, 2007, Magistrate Judge Donald G. Wilkerson entered an Order granting the motion to detain (Doc. 17).

On August 1, 2007, Cole filed a motion to dismiss indictment (Doc. 23) and on August 8, 2007 a supplemental motion to dismiss indictment (Doc. 25). Specifically, Cole moves the Court to dismiss the indictment arguing: (1) the Sex Offender and Registration Notification Act ("SORNA") failed to give him adequate notice; (2) the Indictment fails to allege all of the elements of the charged offense; (3) 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 predating SORNA will be subject to its requirements; (4) that the regulations in SORNA impermissibly infringe upon his constitutional right to travel; and (5) whether SORNA applies to Cole when he traveled in interstate commerce and failed to register during the period of time between SORNA's enactment and the Attorney General's interim rule. On August 13, 2007, the Government filed its response opposing the motion. The Government makes clear that the facts are simple and clearly stated in the indictment as aforementioned. The Court now turns to address the motion.

II. Statutory and Regulatory Background

On July 26, 2006, Congress enacted the Adam Walsh Child Protection and Safety Act of 2006 and SORNA. Pursuant to SORNA, a sex offender who is required to register under the Act and who travels in interstate commerce may be imprisoned for not more than ten years if such person knowingly fails to register or update his or her registration as required by the Act. 18 U.S.C. § 2250(a).*fn2 The registration requirements for SORNA are set forth in 42 U.S.C. § 16913. For offenders such as the defendant who are convicted prior to SORNA's enactment and are unable to comply with the initial registration requirements, Congress provided in § 16913(d):

The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 26, 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). In addition, for notifying sex offenders with prior convictions of their obligations under SORNA, Congress provided that "[t]he Attorney General shall prescribe rules for the notification of sex offenders who cannot be registered in accordance with subsection (a) of this section." 42 U.S.C. § 16917(b).*fn3

The Attorney General published the Interim Rule on February 28, 2007 making SORNA applicable to Cole. Specifically, in 28 C.F.R. § 72.3, the Attorney General stated that SORNA's requirements "apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of the Act." 28 C.F.R. § 72.3. In the Supplementary Information of the Rule, the Attorney General explained that this Rule makes "it indisputably clear that SORNA applies to all sex offenders (as the Act defines that term) regardless of when they were convicted" and it forecloses all claims that it does not apply to them "because a ruling confirming SORNA's applicability has not been issued." 72 Fed.Reg. 39, 8894, 8896 (Feb. 28, 2007)(to be codified at 28 C.F.R. pt. 72).

III. Analysis

Article I, Section 9, clause 3 of the United States Constitution provides that "[n]o Bill of Attainder or ex post facto Law shall be passed." U.S. Const., art. I, § 9, cl. 3. In Weaver v. Graham, 450 U.S. 24 (1981), the United States Supreme Court explained that ex post facto prohibits Congress from enacting a law "which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." 450 U.S. at 28 (internal quotation marks and citation omitted). In deciding whether a statute violates ex post facto, two factors must be present: "it must be retrospective, that is, it must apply to ...

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