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United States v. Wass

United States District Court, E.D. North Carolina, Southern Division

July 5, 2018




         This cause comes before the court on defendant Edward Jay Wass' motion to dismiss his indictment [DE 20]. The government has responded in opposition, [DE 21], and the matter is ripe for ruling. For the following reasons, defendant's motion is GRANTED.


         On September 7, 1995, defendant was convicted of one count of Sexual Battery, Custodial Authority, 12 to 18 Years of Age and one count of Lewd and Lascivious, Child Under 16, in Escambia County, Florida. He was sentenced to one year of custody, one year of community control, and seven years of probation, concurrent on each count. On September 18, 1998, his probation was revoked and he was sentenced to one year of custody and fifteen years of probation. He completed his probation on September 18, 2014. On March 6, 2018, a grand jury returned an indictment against defendant, alleging that at least by September 2016, and until February 27, 2018, he had traveled in interstate commerce without registering under the Sex Offender Registration and Notification Act, in violation of 18 U.S.C. § 2250(a). He has now moved to dismiss his indictment on constitutional grounds.


         In 2006, Congress passed the Adam Walsh Child Protection and Safety Act, the provisions of which were intended to reduce sex offenses and crimes against children. Pub. L. 109-248, Tit. I, 120 Stat. 590. It included the Sex Offender Registration and Notification Act, abbreviated as SORNA. SORNA revised the existing sex offender registration system. Sex offenders--those convicted of any criminal sex offense, whether state, federal, tribal, local or military-must register in every jurisdiction where they live, study, or work. 34 U.S.C. § 20911; 34 U.S.C. § 20913. The Act established three tiers of seriousness, and tied the length of time an offender must stay on the registry to the seriousness of the offense. 34 U.S.C. § 20915. It created the National Sex Offender Registry, which is managed by the FBI and compiles all of the individual jurisdictional registries, and established rules for the states, including that they themselves criminalize failures to properly register. 34 U.S.C. § 20921; 34 U.S.C. § 20913. While all states and the District of Columbia have sex offender registries, the majority of states are not in full compliance with SORNA. SORNA was originally codified at 42 U.S.C. § 16901 et seq., and has since been recodified without any other change at 34 U.S.C. § 20901 et seq.

         The Act did not take a position on what to do with individuals who had been convicted of a registrable sex offense prior to the law's passage. Instead, Congress made that responsibility the Attorney General's. 34 U.S.C. § 20913(d). Until the Attorney General so articulated, pre-Act offenders were not required to register. Reynolds v. United States, 565 U.S. 432, 445 (2012). A series of interim, proposed, final and supplemental guidelines were promulgated over the next five years. 28 C.F.R. 72.3; 73 Fed. Reg. 38030; 28 C.F.R § 72.3; 76 Fed. Reg. 1630, 1639. Today, individuals convicted of a pre-Act sex offense must register, though they are credited with the time lived in the community. 75 Fed. Reg. 81849, 81851.

         The provision of the Act under which defendant has been prosecuted, 18 U.S.C. § 2250(a), makes it a federal felony for sex offenders to travel in interstate commerce if they are required to register and have not done so. In 2010, prior to the promulgation of the Final Rule by the Attorney General, the Supreme Court ruled that § 2250(a) only applied to sex offenders who traveled in interstate commerce after the 2006 passage of the law, as the text of the statute uses the term "travels," not "had traveled" or "traveled." Carr v. United States, 560 U.S. 438, 448-49 (2010). The Court explicitly declined to reach other potential constitutional questions. See Id. at 444 n. 2.

         So, defendants, like this defendant, whose sex offense predates the law, but whose travel postdates it, are required to register and can be federally prosecuted for failing to do so. This is constitutionally defective in two ways. The first is that giving the Attorney General the authority to determine whether pre-Act offenders have to register violates the nondelegation doctrine and the separation of powers principle. The second is applying the sex offender registration scheme to pre-Act offenders violates the Ex Post Facto Clause of the Constitution. The Court will address each issue in turn.

         I. The Nondelegation Doctrine

         Congress does not have the ability to delegate its legislative powers. U.S. Const. Art I, § 1. ("All legislative Powers herein granted shall be vested in a Congress of the United States."); see also Field v. Clark, 143 U.S. 649, 694 (1892). That restriction, however, "does not prevent Congress from obtaining the assistance of its coordinate Branches." Mistretta v. United States, 488 U.S. 361, 372 (1989). As long as Congress gives enough instruction, it may permissibly delegate power. J. W. Hampton, Jr. & Co. v. United States, 27 U.S. 394, 306 (1928). That is, the law Congress passes must include an "intelligible principle" to guide the person or body to whom the law delegates the power. Id. at 409. If Congress "clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority," then it has not violated its separation-of-powers mandate and the delegation is appropriate. American Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946). When a statute provided no guidance for the exercise of discretion, it was a violation of the nondelegation doctrine. Panama Refining Co. v. Ryan, 293 U.S. 388, 417 (1935). So too was a statute that simply instructed the agency to assure "fair competition." A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 536-39 (1935).

         Traditionally executive functions, such as foreign policy and the military, are ready candidates for broad delegation by Congress. See Loving v. United States, 517 U.S. 748, 772-73 (1996). By contrast, certain areas require more congressional guidance. Whitman v. Am. Trucking Ass 'ns, 531 U.S. 457, 475 (2001). Regulating liberty, as one of the most important congressional undertakings, thus merits deeper congressional involvement. See Kent v. Dulles, 357 U.S. 116, 129 (1958). So does the establishment of criminal penalties for private conduct. United States v. Evans, 333 U.S. 483, 486 (1948); Sessions v. Dimaya, 138 S.Ct. 1204, 1212 (2018). Retroactivity is disfavored, and so laws that are retroactive must clearly say so. Bowen v. Georgetown Univ. Hosp, 488 U.S. 204, 208 (1988). Congress may delegate the power to establish retroactivity, but it must be in "very plain words." Id; Brimstone R. Co. v. United States, 276 U.S. 104, 122 (1928). Finally, laws that touch on state sovereignty should contain clear guidance. Gregory v. Ashcroft, 501 U.S. 452, 464 (1991).

         The Supreme Court previously held that 34 U.S.C. § 20913(d) delegated to the Attorney General the blanket authority to establish registration requirements for pre-Act offenders. Reynolds v. United States, 565 U.S. 432 (2012). The question they did not address was whether that authority is a violation of the nondelegation doctrine, though the dissent raised it. Id. at 450. (Scalia, J., dissenting) ("Indeed, it is not entirely clear to me that Congress can constitutionally leave it to the Attorney General to decide-with no statutory standard whatever governing his discretion-whether a criminal statute will or will not apply to certain individuals.").

         The provision here affects liberty, establishes new criminal penalties, is retroactive, and impinges on state sovereignty. It is the exact area in which Congress must speak ...

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