In United States v. Ambert , the 11th Circuit reviewed and rejected all of the major constitutional challenges to SORNA prosecutions under 2250(a). I had never heard of this case before, perhaps because the defendant was represented by a private attorney. Here is how the 11th Circuit addressed the Commerce Clause argument:
We have not had occasion to address this issue, although several district courts in this Circuit have done so. Most have found SORNA to be a proper regulation under Congress’ commerce power.... One district court, however,
found that SORNA, 42 U.S.C. § 16913 and 18 U.S.C. § 2250, exceeded Congress’
commerce clause authority. United States v. Myers, 2008 WL 5156671 (S.D. Fla.
Dec. 9, 2008) (unpublished).... Section 2250 is a proper regulation falling under either of the first two Lopez categories because it regulates both the use of channels of interstate commerce and the instrumentalities of interstate commerce.... Plainly, § 2250 focuses on sex offenders, like the defendant, who travel in interstate commerce. In this focus, SORNA is analogous to a statute prohibiting church-based arson “in or affecting interstate or foreign commerce” upheld by this Court in Ballinger, and to the Mann Act prohibiting the transport of women “in interstate commerce” for an immoral purpose, upheld by the Supreme Court long ago in Caminetti v. United States, 242 U.S. 470, 491 (1917).
There are several things that are troublesome about the opinion. First, the 11th Circuit has had more than one opinion finding that 2250 cannot be supported under the Commerce Clause. In fact, there have
been three such opinions, including United States v. Powers which is on the 11th Circuit calender for argument. Second, there is no mention of the USSC opinion in United States v. Morrison, despite the clear connection between the relevant statutes in terms of attempting to deter sexual violence. Third, the idea that punishing sex offenders for failing to register can be supported under the first Lopez category continues to boggle the mind. How are sex offenders "channels" of interstate commerce? Fourth, and perhaps most importantly, the facts of the Ambert case are especially egregious in terms of Commerce Clause justification. The alleged interstate travel by Ambert was a two day trip to California on July 9, 2007. In other words, his failure to register was in no way connected to his travel between states.
How could the 11th Circuit reached its conclusions with such important facts and errors present in the case and opinion? In defense of the court, the
brief for Ambert spent less than two pages on the Commerce Clause argument (despite the 11th Circuit being a hotbed for district courts finding no basis for SORNA prosecutions under the Commerce Clause). In that limited section, there was no mention of the district court decision within the 11th Circuit in United States v. Powers which found no justification under the Commerce Clause months before the brief was filed. The result is, thus, especially disappointing because appeals from the cases where Commerce Clause arguments were won at the district court are now precluded from any chance of success at the 11th Circuit.
What exactly does it mean? Since this is federal, it affects everyone, right? And does this mean if you travel out of state, you have to tell the sheriff's where you are, that you are there? Even if for less than a week?
Posted this on my blog as well, giving credit where it's due.
http://sexoffenderissues.blogspot.com/2009/03/11th-circuit-rejects-constitutional.html
Posted by: Sex Offender Issues | March 08, 2009 at 11:26 AM
In order for there to a prosecution under 2250(a)(2)(B), the government must show that the sex offender "travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country." Normally, that requirement means if an offender moves from, for example, Virginia to Texas and doesn't register, the interstate travel is clearly connected to the failure to register. In this case, the defendant was previously a resident of Florida and took a two-day trip to California. That served as the basis for federal jurisdiction even though there was no connection (temporal or factual) between the travel and the underlying crime of failing to register. I've argued that this is why the SORNA requirements exceed authority under the Commerce Clause as the mere requirement of proving interstate travel is insufficient.
I hope that helps.
Posted by: Corey Rayburn Yung | March 08, 2009 at 02:47 PM
So if I, a registered sex offender in Georgia, no longer on probation or parole but must still register, travel to say Nashville, TN (Davidson county) or to Charlotte, NC (Mecklenburg county) for a two day conference (get in Friday afternoon, sleep in a hotel Friday and Saturday night and drive home Sunday)in order for me to 'be legal' under SORNA, I would need to contact both county sheriff's offices to 'register'? Just what information am I to provide to 'register'? My complete criminal history? My Social security number, drivers license number, height, weight, age, sex, perm. address, work address, vehicles driven, age of victim, offense committed, year offense committed, court disposition (sentence), mental health history, medications taken, sexual offender treatment provider, boat/ mobile home registration numbers,....what? And for failing to do this results in my incarceration of 10 years? Huh?
Where is this information to be kept? Who has access to it? Posted online? For how long? (Inane question - we all know once the info is out in cyberspace, it is out there forever) Would I need to 'un-register' when I leave? How much more time would this take? Bottom line.....Just who does this protect? And at what $ amount - mine and/or the taxpayers?
If there is a school, day care center, church, park, playground, a swimming pool, etc. within, say 1,000ft of the hotel, am I supposed to find out about the local and/or state laws and NOT stay there? Just how am I to do this? (What hotel DOESN'T have a pool?) And don't say 'call the police and ask'. Don't say such an asinine thing. I highly suspect they will laugh in you ear and say 'do it yourself - you're the one on the list, not me'. They are there to protect the public, not you. They are there to protect the public FROM you.
Or is all of this up to the individual sheriff's/ city police/ state police of the jurisdiction I would be visiting?
Again, I ask, 'Who does this protect'? If I am no longer on probation, why then is this 'punishing' me again as if I were on probation? Shouldn't this 'punishment' be left up to the courts to impose?
Why try to be a better citizen and learn from my mistakes if the only actions taken against me are to belittle and create punishment for a label I have? I am not that label. I am not a serial child molester, a John Couey, a mass campus rapist. I touched a child, one time, inappropriately. Why try anything to better myself if the only thing that will happen is, at best, to have the door slammed in my face, or at worst, have the vigilante squad torch my home or harass my family and friends? Why try anything at all?
Posted by: A SO in Georgia | March 08, 2009 at 07:23 PM