NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0253n.06
Filed: April 2, 2009
No. 08-5537
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
TANZ REINALDO SAMUELS, ) EASTERN DISTRICT OF KENTUCKY
)
Defendant-Appellant. )
Before: MARTIN and COOK, Circuit Judges; and WATSON, District Judge.*
MICHAEL H. WATSON, District Judge. Tanz Reinaldo Samuels was convicted in New
York of second degree rape in December 1999. Based on that conviction, New York law in effect
at the time required that he be designated as a sex offender and register as a sex offender for ten
years. In December 2006, Samuels moved to Kentucky, but at no time did he register as a sex
offender in Kentucky or notify New York of his move. The Sex Offender Registration and
Notification Act (“SORNA”) required that he register. See 42 U.S.C. § 16913.
In September 2007, Samuels was indicted on one count of violating 18 U.S.C. § 2250(a), for
knowingly failing to register and update a registration as a sex offender. Samuels filed a Motion to
*
The Honorable Michael H. Watson, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 08-5537
U.S. v. Samuels
Dismiss the Indictment which was denied by the district court. Samuels pleaded guilty to the
Indictment. For the reasons that follow, we affirm.
I. Background
On December 22, 1999, Samuels was convicted of second degree rape in New York state.
He received a sentence of four months imprisonment, followed by five years probation. Based on
the conviction, New York law designated Samuels as a sex offender and required that he register and
accurately update his registration for ten years. Samuels was also required to notify the local law
enforcement agency and New York authorities of any change to his home address within ten days
of said change. Samuels was further notified that, if he moved to another state, he might be required
to register as a sex offender in that state. Samuels registered in New York as a sex offender on
December 22, 1999.
In December 2006, Samuels moved to Boone County, Kentucky. He failed to register as a
sex offender in Kentucky or notify New York authorities of his new address.
On September 13, 2007, the federal grand jury in the Eastern District of Kentucky indicted
Samuels on one count of violating 18 U.S.C. § 2250(a), for knowingly failing to register and update
a registration as a sex offender, from on or about February 2007 and continuing through on or about
August 27, 2007. On October 11, 2007, Samuels filed a Motion to Dismiss the Indictment. After
briefing and argument by counsel, the district court denied Samuels’s Motion to Dismiss the
Indictment.
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On April 28, 2008, Samuels entered into a plea agreement pursuant to which he pleaded
guilty but reserved the right to appeal the district court’s denial of his Motion to Dismiss the
Indictment. The same day, the district court sentenced Samuels to 12 months and one day in prison
and placed him on supervised release for a term of life.
Samuels now appeals.
II. Analysis
A. Standard of Review
In United States v. Grenier, 513 F.3d 632 (6th Cir. 2008), the court discussed the standard
of review to apply for a motion to dismiss an indictment.
The standard of review to be applied for a motion to dismiss an indictment is
somewhat unclear. United States v. Titterington, 374 F.3d 453, 456 (6th Cir. 2004).
When reviewing a district court’s disposition of a motion to dismiss an indictment
based on findings of fact, we have generally applied either an abuse of discretion
standard or a clear error standard. United States v. Butler, 297 F.3d 505, 512 (6th Cir.
2002) (reviewing a motion to dismiss based on a factual determination for clear
error); United States v. Suarez, 263 F.3d 468, 476 (6th Cir. 2001) (noting that the
court has used both a clear error and an abuse of discretion standard to evaluate the
dismissal of indictments based on findings of prosecutorial vindictiveness). When
reviewing the district court’s legal conclusions in the motion to dismiss context, we
have generally undertaken de novo review. United States v. Philp, 460 F.3d 729, 732
(6th Cir. 2006) (reviewing de novo denial of motion to dismiss on legal grounds);
United States v. Martinez-Rocha, 337 F.3d 566, 569 (6th Cir. 2003) (noting that the
Sixth Circuit reviews a denial of a motion to dismiss involving questions of law de
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novo); United States v. Ford, 987 F.2d 334, 339 (6th Cir. 1992) (reviewing de novo
denial of a motion to dismiss on the ground of double jeopardy).
Id. at 635–36.
As Samuels challenges the legal conclusions of the district court, our review is de novo.
B. Statutory Provisions
On July 27, 2006, President Bush signed into law Title I of the Adam Walsh Child Protection
and Safety Act of 2006, which included SORNA. Congress’s stated purpose in establishing a
comprehensive national system for registration of sex offenders was “to protect the public from sex
offenders and offenders against children, and in response to the vicious attacks by violent predators.”
42 U.S.C.A. § 16901.
SORNA imposes registration requirements on sex offenders who are subject to federal
jurisdiction and imposes criminal liability for the failure to register as a sex offender. The
registration requirements are as follows:
(a) In general
A sex offender shall register, and keep 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.
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(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.
(d) Initial registration of sex offenders unable to comply with subsection (b) of
this section
The Attorney General shall have the authority to specify the applicability of
the requirements of this subchapter to sex offenders convicted before July 27,
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.
On February 28, 2007, pursuant to its statutory directive to specify the applicability of
SORNA to sex offenders convicted before July 27, 2006, and who were unable to comply with the
initial registration requirements of 42 U.S.C. § 16913(b), the Department of Justice promulgated an
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interim rule declaring SORNA retroactive to sex offenders convicted prior to SORNAs enactment.
72 Fed. Reg. 8894 (Feb. 28, 2007) (codified at 28 C.F.R. § 72 (2007)) (“Interim Rule”).
Failing to register as a sex offender subjects a defendant to liability pursuant to 18 U.S.C.
§ 2250(a), which provides:
Whoever–
(1) is required to register under [SORNA];
(2) (A) is a sex offender as defined for purposes of [SORNA] by
reason of a conviction under Federal law (including the
Uniform Code of Military Justice), the law of the District of
Columbia, Indian tribal law, or the law of any territory or
possession of the United States, or
(B) travels in interstate or foreign commerce, or enters or leaves,
or resides in, Indian country; and
(3) knowingly fails to register or update a registration as required by
[SORNA]
shall be fined under this title or imprisoned not more than 10 years or both.
18 U.S.C. § 2250(a).
Accordingly, the essential elements for a § 2250(a) offense are that a defendant:
(1) was a sex offender as defined under SORNA and, therefore, required
to register under SORNA;
(2) traveled in interstate commerce; and
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(3) knowingly failed to register or update a registration as required by
SORNA.
C. Due Process
Samuels first argues that the district court erred in holding that SORNA did not violate his
due process rights. He maintains he was never notified of SORNA’s registration requirements. He
asserts that his documentation from New York, while clearly stating he was to register as a sex
offender in New York, was devoid of any requirement to register under SORNA. Further, Samuels
asserts that while Kentucky law also requires he register as a sex offender, at the time he moved to
Kentucky, Kentucky law was silent as to his requirement to register under SORNA. As such,
Samuels contends he was unaware of his duty to register under SORNA.
The district court did not err in concluding that Samuels’s due process rights were not
violated. Samuels was aware of his duty to update his registration in New York. Additionally he
received notice that, if he moved to another state, he might be required to register as a sex offender
in that state. Further, notwithstanding the fact Kentucky law was silent as to the requirement to
register under SORNA, Defendant concedes Kentucky law mandated he register as a sex offender
in Kentucky, which he failed to do. Notwithstanding his failure to register, Samuels’s prior
knowledge of his duty to register under state law qualified as effective notice under SORNA.
Accordingly, Samuels’s due process argument is without merit.
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D. Application of SORNA to Samuels
Samuels next argues the district court erred in concluding SORNA applied to him.
Specifically, he contends SORNA does not apply to sex offenders, like himself, who traveled in
interstate commerce between the enactment of SORNA and February 27, 2007, the date the Interim
Rule was promulgated.
SORNA applies to Samuels regardless of the fact he traveled in interstate commerce before
promulgation of the Interim Rule. “The bulk of [SORNA] does not make a distinction between
those convicted before the Act and those convicted after. It imposes its requirements on ‘sex
offenders,’ without qualification.” United States v. May, 535 F.3d 912, 917 (8th Cir. 2008) (citing
United States v. Roberts, No. 6:07-CR-70031, 2007 U.S. Dist. LEXIS 54646, 2007 WL 2155750
(W.D. Va. July 27, 2007)). Furthermore, “42 U.S.C. § 16913(d) only applies to initial registration.
This construction makes sense when one considers that a sex offender convicted before July 27,
2006, would, in many cases, be unable to comply with the initial registration requirements of
SORNA because the time limits for initial registration would have already passed when SORNA was
enacted.” May, 535 F.3d at 918 (citing United States v. Beasley, No. 1:07-CR-115-TCB, 2007 U.S.
Dist. LEXIS 85793, 2007 WL 3489999 (N.D. Ga. Oct. 10, 2007) (internal citation omitted)).
Moreover, the cases upon which Samuels relies are inapposite. In United States v. Kapp, 487
F. Supp. 2d 536 (M.D. Pa. 2007) and United States v. Smith, 528 F. Supp. 2d 615 (S.D. W.Va.
2007), the defendants allegedly failed to register or update a registration prior to February 28, 2007.
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In United States v. Deese, No. CR-07-167-L, 2007 U.S. Dist. LEXIS 70677, 2007 WL 2778362
(W.D. Okla. Sept. 21, 2007) and United States v. Sallee, No. CR-07-152-L, 2007 U.S. Dist. LEXIS
68350, 2007 WL 3283739 (W.D. Okla. Aug. 13, 2007), while the alleged failure to register or update
a registration occurred both before and after February 28, 2007, the defendants’ respective travel
occurred before SORNA’s enactment. To the contrary, Samuels’s interstate travel occurred after
SORNA’s enactment and the Indictment charges him with failing to register or update a registration
for time periods after February 28, 2007. Accordingly, SORNA applies to Samuels and he was
properly charged in the Indictment.
E. Ex Post Facto Clause
Samuels’s third argument is that the district court erred in holding that SORNA does not
violate the Ex Post Facto Clause. “[I]t has long been recognized . . . that the constitutional
prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender
affected by them.” Collins v. Youngblood, 497 U.S. 37, 41 (1990) (citations omitted). In Smith v.
Doe, 538 U.S. 84 (2003), the Supreme Court discussed the framework to determine whether a statute
violates the Ex Post Facto Clause.
We must “ascertain whether the legislature meant the statute to establish ‘civil’
proceedings.” Kansas v. Hendricks, 521 U.S. 346, 361 (1997). If the intention of the
legislature was to impose punishment, that ends the inquiry. If, however, the
intention was to enact a regulatory scheme that is civil and nonpunitive, we must
further examine whether the statutory scheme is “so punitive either in purpose or
effect as to negate [the State’s] intention ‘to deem it’ civil.” Ibid. (quoting United
States v. Ward, 448 U.S. 242, 248-249 (1980)). Because we “ordinarily defer to the
legislature’s stated intent,” Hendricks, supra, at 361, “‘only the clearest proof’ will
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suffice to override legislative intent and transform what has been denominated a civil
remedy into a criminal penalty.” Hudson v. United States, 522 U.S. 93, 100 (1997)
(quoting Ward, supra, at 249); see also Hendricks, supra, at 361; United States v.
Ursery, 518 U.S. 267, 290 (1996); United States v. One Assortment of 89 Firearms,
465 U.S. 354, 365 (1984).
Id. at 92 (parallel citations omitted).
The Eighth Circuit previously examined the issue of whether Congress intended SORNA to
impose punishment for a pre-existing crime in May. In concluding SORNA does not violate the Ex
Post Facto Clause, the May court reasoned:
SORNA’s registration requirement demonstrates no congressional intent to punish
sex offenders. . . . Even though Congress’s intent “was to enact a regulatory scheme
that is civil and nonpunitive,” we must look further to see if the statutory scheme is
so punitive that it negates Congress’s intention to deem the act civil. See Smith, 538
U.S. at 92. . . . The only punishment that can arise under SORNA comes from a
violation of § 2250, which punishes convicted sex offenders who travel in interstate
commerce after the enactment of SORNA and who fail to register as required by
SORNA. Congress clearly intended SORNA to apply to persons convicted before the
Act’s passage. . . . If SORNA did not apply to previously convicted sex offenders,
SORNA would not serve Congress’s stated purpose of establishing a “comprehensive
national system” for sex offender registration. Section 16901. . . . Section 2250
punishes an individual for traveling in interstate commerce and failing to register.
The statute does not punish an individual for previously being convicted of a sex
crime.
May, 535 F.3d at 919.
The May court’s reasoning is sound and we adopt it. Samuels traveled in interstate
commerce after the enactment of SORNA and failed to update his registration in New York and to
register in Kentucky after February 27, 2008. It is this behavior that is being punished. Samuels is
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not being punished for his initial 1999 rape conviction. Accordingly, Samuels’s argument is without
merit.
III. Conclusion
For these reasons, we affirm.
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