Saturday, December 11, 2010

Fuller Brush-Off

United States v. Fuller, No. 09-1437-cr (2d Cir. November 30, 2010) (McLaughlin, Straug, Raggi, CJJ)

In 2004, Ross Fuller pled guilty to a sex offense in Missouri and became a registered sex offender. He complied with the applicable registration requirements until June of 2006, when he moved to New York, and failed to register either in Missouri or New York State. Federal authorities arrested Fuller in New York in October of 2007, and he pled guilty to violating the Sex Offender Registration Notification Act (“SORNA”), 42 U.S.C. § 16901, et seq., which makes it a crime to travel in interstate commerce and knowingly fail to register or update a sex offender registration.

On appeal, he made two arguments, both unsuccessful.

First, when Congress enacted SORNA in 2006, it included a provision, § 16913(d), granting the Attorney General the authority to “specify the applicability of” SORNA to sex offenders convicted before SORNA’s enactment. On February 28, 2007, the Attorney General issued an Interim Ruling providing that SORNA applied to pre-SORNA sex offenders.

SORNA does not apply when the interstate travel occurred before the statute was enacted. This does not help Fuller, so he argued instead that SORNA did not apply to him because his interstate travel occurred between SORNA’s enactment and the Interim Ruling. Joining an existing circuit split, here the court of appeals disagreed.

The court rejected Fuller’s argument that § 16913(d) meant that the decision whether to apply SORNA to pre-SORNA sex offenders rested solely with the Attorney General. Rather, the court concluded that Congress itself already decided that SORNA would apply to all sex offenders regardless of when convicted, and merely “delegated to the Attorney General authority to work out the specific manner in which that legislative determination would be enforced with respect to pre-SORNA sex offenders.” In other words, § 16913(d) gives the A.G. the power to “specify how - not whether - SORNA’s registration requirements apply” to pre-SORNA sex offenders.

Judge Raggi wrote a separate concurrence on this issue, explaining that, in her view, the doctrine of constitutional avoidance foreclosed Fuller’s argument interpretation of § 16913(d) because it would “raise concerns about the delegation of legislative authority to the executive branch.”

Fuller’s second argument was that SORNA was a specific intent crime, not a general intent crime. While a question of first impression in this circuit, every other court to consider it has concluded that SORNA is a general intent statute, and the Second Circuit agreed. The statute uses the word “knowingly,” which typically means that the statute “only requires a finding of general intent for conviction.” That requirement was satisfied here. Fuller clearly knew that he had to register as a sex offender, and his failure to do so in either Missouri or New York when he moved was a “knowing act.”

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