Seventh Cir Issues Interesting SORNA Opinion---Commerce Clause Analysis

Today, the Seventh Circuit issued an opinion dealing with SORNA and the Commerce Clause. United States v. Vasquez, No. 09-2411 (7th Cir. July 1, 2010). Panel of Judges Bauer, Manion, and Tinder (Judge Manion dissented).

Defendant appealed his conviction under SORNA, 18 U.S.C. 2250(a). Court affirmed the conviction. Court joined the Fourth, Fifth, Eighth, and Eleventh Circuits (and echoed its reasoning in Cox), and held that "SORNA merely requires that a defendant have knowledge that he was required by law to register as a sex offender. The government need not prove that, in addition to being required to register under state law, a defendant must also know that registration is mandated by a federal statute." Court found that Flores-Figueroa did not overrule the cases that have defined the term “knowingly,” when used in a criminal statute, as meaning a defendant realized what he or she was doing and was aware of the nature of his or her conduct . . . that the defendant did not act through ignorance, mistake, or accident.

Basically, a defendant can be convicted under SORNA if the government can prove that he or she knew he or she was required to register as a sex offender. Period.

In terms of the Commerce Clause, the defendant argued that 42 U.S.C. § 16913, SORNA’s registration provision requiring every sex offender to register regardless of whether the offender traveled across state lines, is unconstitutional. He contended that Congress does not have the power to impose registration requirements on individual citizens convicted of purely intrastate offenses. He also argued that § 2250(a), SORNA’s criminal penalty for failing to register, is unconstitutional because the statute makes it a federal crime for a sex offender who travels in interstate commerce to knowingly fail to register, even when the interstate travel has no connection to the failure to register.

Court saw no reason to disagree with other circuits. Found that the statutory aim of SORNA is to prevent a convicted sex offender from circumventing registration by leaving the state in which he or she is registered. Court concluded that 2250 only criminalizes a knowing failure to register when the defendant is either required to register under federal law or travels in interstate or foreign commerce. So, the Court reasoned, a sequential reading of the statute helps to assure that there is a nexus between a defendant’s interstate travel and his or her failure to register as a sex offender. Court looked to Carr.

Court concludes that interstate travel inherently involves the use of the channels of interstate commerce and is a proper subject of congressional control under the Commerce Clause. Court finds that Lopez explicitly acknowledged Congress’s power to regulate persons traveling in interstate commerce.

So, 2250 is a permissible exercise of congressional power under the Commerce Clause because of the use of the channels and instrumentalities of interstate commerce---this use is a necessary part of the commission of the targeted offense.

A rational basis exists under the Commerce Clause to support Congress's enactment of § 2250. And § 16913 is a logical way to help the government be more effective in tracking sex offenders when they cross state lines. Court concludes that, to the extent that § 16913 regulates solely intrastate activity, the regulatory means chosen are reasonably adapted to reaching a legitimate end under the commerce power.

Judge Manion dissented. Admonishes: "In reading the court’s opinion and the recent Supreme Court case Carr v. United States, this fact cannot be lost: there are seemingly two statutes at issue here. There is § 2250 as we interpreted it in United States v. Dixon, and as the court continues to interpret it, and then there is § 2250 as the Supreme Court interpreted it in Carr."

He has two principal disagreements with the majority’s opinion. First, it gives Carr too limited a reading. Second, its interpretation of § 2250 renders the statute constitutionally defective.

He points out that from the stipulated record the defendant’s only duty to register as a sex offender arose in Illinois, where he failed to register. He did not have a duty to register in California, and under the sparse record, one cannot tell how long he was there or whether he had changed his residence or any status that would compel him to register in California. So, his interstate travel did not culminate in his failure to register, nor was it in any way connected to such a failure. The travel was not part of the harm that Congress was addressing, but a mere jurisdictional hook for making the offense a federal one.

Judge Manion takes issue with the majority's treatment of Carr. He feels that it should be clear that the Supreme Court views § 2250 as requiring that some purpose to avoid, evade, or elude registration attach to a defendant’s travel. It is not enough that the defendant traveled across state lines to run an errand or visit a friend.

Because there is no proof concerning why the defendant traveled to California, his conviction should be overturned.

Against the backdrop of the traditional boundaries that have marked Congress’s power under the Commerce Clause and the courts' interpretation of Lopez, Judge Manion feels that it is clear that § 2250 is not a legitimate exercise of congressional power. In an effort to uphold the statute, the majority endorses a significant expansion of congressional power.

The dissent notes that in contrast to the statutes that properly regulate a person’s travel across the channels of interstate commerce under § 2250 the majority separates the defendant’s travel from the crime of failing to register. This separation renders the statute constitutionally problematic. The Supreme Court may have tacitly recognized the problem in Carr when the High Court noted that under § 2250 Congress subjected offenders to federal criminal liability only when they use the channels of interstate commerce in evading a state’s reach. Under Carr, the focus is and should be on the sex offender’s misuse of the channels of interstate commerce (i.e. using them to evade registration). Unless courts interpret the statute as the Carr Court did, § 2250 is not a permissible use of congressional power.

The dissent finds that the majority interpreted the issue to mean that, because a person travels across state lines, he or she is then a person in interstate commerce, so Congress can regulate the person thereafter. This expansive interpretation of the second Lopez category is contrary to the circuit’s precedent.

The dissent points out that none of the other circuits has directly relied on Scarborough and its minimal nexus test to uphold § 2250 as the statute applies to persons who have traveled interstate. By so doing, the majority here is recognizing a power Congress has never had, and it is doing so without giving deference to the reasoning in Carr.

The test may work when applied to things (e.g., guns and cars), but there are problems with extending the minimal/limited nexus rationale to persons. Persons are different: persons are not inherently commercial; they cannot be bought or sold; and their participation in commerce is limited to their decision to engage in it. With this distinction in mind, in the felon-in-possession context, it is the gun that has crossed state lines. It is insufficient hat the felon has crossed state lines and then possesses a firearm that has remained intrastate.

Expanding Scarborough would obliterate the limits between what is local and what is national. Congress could take over the monitoring and control of local crime by making an element of the offense that the person has traveled interstate at some point. This approach, however, stands in complete contradiction to Morrsion.

When § 2250 is applied in the way it was applied in Dixon and as it is applied by the majority, the dissent points out, there is a need to apply Carr’s "considered dicta" to the statute and a showing that the defendant’s travel was done with an illicit intent (to evade, elude, or avoid registering) is required. The dissent warns that "[t]he alternative is an unconstitutional statute."

The dissent's final point is that this offense is a specific-intent crime. Such is true applying the statute either as the court did in Dixon or as the Supreme Court did in Carr. If the court were to follow Carr’s reasoning and the purpose of the travel is vital to the statute, the government is forced to prove that the defendant had an elevated intent. It is not enough to travel and negligently/ignorantly fail to register.

The statute does not proscribe inherently unlawful conduct. Rather, it requires a defendant to register. He or she has an affirmative, administrative duty that he or she must perform or be imprisoned. It is reasonable that a defendant would have to know about this duty before being held accountable. Nothing suggests that Congress intended to hold a person responsible for knowingly failing to do something without any evidence that the person knew what they were supposed to do.

The majority’s position that the court can transfer knowledge between a state-imposed duty and a federal duty is difficult to reconcile with the fundamental concepts of justice (and with precedent).