The opinion of the court was delivered by: Judge Conner
Presently before the court are motions to dismiss the indictments in two separate criminal actions, namely, United States v. Paul Shenandoah and United States v. Brian Dennis Douglas. (See No. 07-500, Doc. 22; No. 08-196, Doc. 20.) The motions challenge the constitutionality of the Sex Offender Registration and Notification Act ("SORNA") both on its face and as applied. The motions have been fully briefed and are ripe for disposition.
For purposes of judicial economy, the court will address both motions in a single memorandum. For the reasons that follow, the motions will be denied.
A brief discussion of the factual and procedural history underlying the case against each defendant follows. Because defendant Paul Shenandoah was indicted first, the court turns initially to a discussion of the case against him.
On December 19, 2007, defendant Paul Shenandoah ("Shenandoah") was indicted by a grand jury. The indictment charges Shenandoah with two counts of failing to register as a sex offender in violation of 18 U.S.C. § 2250(a) and 42 U.S.C. § 14072(i)(1) and two counts of knowingly and willfully providing false information to law enforcement officials regarding his federal sex offender registration offenses in violation of 18 U.S.C. §§ 1001 and 1512(b)(3). (See No. 07-500, Doc. 1 at 3-6.) The government alleges, inter alia, that Shenandoah was previously convicted in the State of New York of raping and sexually assaulting a minor. As a component of his previous conviction and sentence, Shenandoah was required to comply with the sex offender registration requirements of the State of New York and all other jurisdictions in which he lived and worked. Despite his knowledge of these requirements, Shenandoah allegedly failed to register as a sex offender, verify his current address, or notify officials of changes in his place of residence and employment. (See id. at 1-2.) On May 13, 2008, Shenandoah entered a plea of not guilty to each count in the indictment. (No. 07-500, Doc. 11.)
On June 25, 2008, Shenandoah filed a motion to dismiss the indictment. (No. 07-500, Doc. 22.) The motion alleges that SORNA violates the non-delegation doctrine, the Administrative Procedures Act, the Ex Post Facto Clause, the Due Process Clause, the Commerce Clause, the Tenth Amendment, and the right to travel. (See No. 07-500, Doc. 23.)
On May 14, 2008, defendant Brian Dennis Douglas ("Douglas") was indicted by a grand jury. The indictment charges Douglas with two counts of failing to register as a sex offender in violation of 18 U.S.C. § 2250(a) and 42 U.S.C. § 14072(i)(1). (See No. 08-196, Doc. 1 at 3-4.) The government alleges, inter alia, that Douglas was previously convicted of raping and sexually assaulting a minor. As a component of his previous conviction and sentence, Douglas was required to comply with the sex offender registration requirements of the Commonwealth of Pennsylvania and all other jurisdictions in which he lived and worked. Despite his knowledge of these requirements, Douglas allegedly failed to register as a sex offender, verify his current address, or notify officials of changes in his place of residence and employment. (See id. at 1-2.) On June 3, 2008, Douglas entered a plea of not guilty to each count in the indictment. (See No. 08-196, Doc. 10.)
On July 2, 2008, Douglas filed a motion to dismiss the indictment. (No. 08-196, Doc. 20.) Like Shenandoah's motion, Douglas's motion asserts that SORNA is unconstitutional both on its face and as applied. The motion is premised on all grounds raised by Shenandoah, with the exception of the right to travel. (See No. 08-196, Doc. 21); see also supra Part I.A.
Defendants move to dismiss the indictment pursuant to Federal Rule of Criminal Procedure 12(b)(3), which permits a defendant to assert any "defect in the indictment" prior to trial. The United States Court of Appeals for the Third Circuit has summarized the standard for evaluating the sufficiency of an indictment as follows:
We deem an indictment sufficient so long as it "(1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution." Moreover, "no greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution."
United States v. Kemp, 500 F.3d 257, 280 (3d Cir. 2007) (citations omitted). Dismissal under Rule 12(b)(3) "may not be predicated upon the insufficiency of the evidence to prove the indictment's charges." United States v. DeLaurentis, 230 F.3d 659, 661 (3d Cir. 2000). Accordingly, the court must assume that the allegations in the indictment are true. United States v. Besmajian, 910 F.2d 1153, 1154 (3d Cir. 1990). The court will review the indictment "using a common sense construction," United States v. Hodge, 211 F.3d 74, 76 (3d Cir. 2000), "examine the [statutes at issue] as applied to the facts as alleged in the indictment, and determine whether the defendant's conduct, as charged, 'reflect[s] a proper interpretation of criminal activity under the relevant criminal statute[s].' " United States v. Delle Donna, No. 07-784, 2008 WL 1961485, at *5 (D.N.J. Mar. 14, 2008) (quoting United States v. Wecht, No. 06-0026, 2007 WL 3125096, *5 (W.D. Pa. Oct. 24, 2007)); see also United States v. Bryant, No. 07-0267, 2008 WL 2315720, at *1-2 (D.N.J. June 5, 2008).
Congress enacted the Sex Offender Registration and Notification Act ("SORNA") on July 27, 2006, as a component of the Adam Walsh Child Protection and Safety Act of 2006. SORNA creates a national sex offender registration system that was designed to "help prevent sex offenders from evading detection by moving from one state to the next." See Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 2006 U.S.C.C.A.N. S35-S36; see also United States v. Gillette, 553 F. Supp. 2d 524, ___ (D.V.I. 2008). This national system requires sex offenders to maintain a current registration in each jurisdiction in which they live, work, or attend school. See 42 U.S.C. § 16913(a).*fn1 In addition to mandating registration, SORNA criminalizes the failure to register. Specifically, SORNA makes it a crime for any sex offender who "is required to register" and who "travels in interstate . . . commerce" to "knowingly fail to register or update a registration."
When SORNA was enacted, Congress delegated the authority to promulgate regulations regarding its breadth to the United States Attorney General. See 42 U.S.C. § 16913(d).*fn3 On February 28, 2007, the Attorney General issued an interim rule regarding SORNA. The rule clarified that SORNA's requirements are applicable "to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to [SORNA's] enactment." See 28 C.F.R. § 72.3; see also United States v. Kapp, 487 F. Supp. 2d 536, 541 (M.D. Pa. 2007) (stating that the interim rule made it "indisputably clear that SORNA applies to sex offenders . . . regardless of when they were convicted").
SORNA also requires states to conform their sex offender registries to federal requirements by 2009 or risk losing a component of their federal funding. See 42 U.S.C. §§ 16924(a), 16925(a). The states relevant to the instant case, namely, Pennsylvania, New York, and Florida, have not yet complied fully with these requirements. See United States v. Fuller, No. 07-462, 2008 WL 2437869, at *3 (N.D.N.Y. June 13, 2008) (holding the New York has not yet implemented SORNA); see also S.B. 1130, 2007-2008 Gen. Assemb., Reg. Sess. (Pa. 2008) (pending SORNA implementation bill in Pennsylvania); S.B. 1604, 110th Cong., Reg. Sess. (Fla. 2008) (pending SORNA implementation bill in Florida).
Defendants allege that SORNA violates the Ex Post Facto, Commerce, and Due Process Clauses, as well as the Tenth Amendment and the right to travel. In addition, defendants assert that SORNA's enactment violates the non-delegation doctrine and the Administrative Procedures Act. Defendants also posit an as-applied challenge to SORNA based upon the Attorney General's failure to make SORNA expressly applicable to defendants. A discussion of each of the alleged pitfalls of SORNA follows.
The Ex Post Facto Clause "forbids the Congress and the States to enact any 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."
Weaver v. Graham, 450 U.S. 24, 28 (1981) (citations and quotations omitted); see also U.S. CONST. art 1, § 9. Thus, a law is ex post facto if it: (1) is penal,*fn4 (2) has retroactive effect, and (3) is more onerous than the law in effect on the date of the offense. See Collins v. Youngblood, 497 U.S. 37, 41 (1990); Weaver, 450 U.S. at 29; United States v. Johns, 742 F. Supp. 196, 218 (E.D. Pa. 1990). A law has retroactive effect if it "changes the legal consequences of acts ...