SORNA held constitutional

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A sex offender need not know that he is required to register as such after traveling in interstate commerce to violate the federal Sex Offender Registration and Notification Act (SORNA).

On July 1, the Seventh Circuit held that the statute imposes strict criminal liability for failure to register. It further held that the law is within Congress’ power under the Commerce Clause.

Isaac Vasquez was convicted of a sex offense in Illinois state court in 1998, and was thus required to register as a sex offender under Illinois law within the State of Illinois.

In 2006, Congress enacted SORNA, which requires that a sex offender who travels in interstate commerce to register within three business days.

In 2007, Vasquez traveled from Illinois to California without registering, and was charged for not doing so. He was convicted in federal court in Illinois under stipulated facts, and he appealed.

In an opinion by Judge William J. Bauer, and joined by Judge John D. Tinder, the Seventh Circuit affirmed, with Judge Daniel Manion dissenting.

The majority first held that the government need not prove that a defendant knew SORNA required him to register.

The court explained, “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.”

The court analogized the statute to 18 U.S.C. 2423(a), which only requires proof that the defendant knowingly transported a person who has not attained the age of 18 years for purposes of prostitution, without requiring proof that the defendant knew the victim was under 18.

Because it was undisputed that Vasquez knew he was required to register under Illinois law, the court held the evidence was sufficient to support the conviction.

Commerce Clause

The court next held that the statute was within Congress’ Commerce Clause powers.

Included in the three categories of activity that Congress may regulate are: the use of the channels of interstate commerce; and persons or things in interstate commerce.

Because a defendant must necessarily use channels of interstate commerce to travel in interstate commerce, the court held the statute fit within both categories.

The court rejected Vasquez’ argument that a nexus is required between the travel and failing to register, relying on Scarborough v. U.S., 431 U.S. 563 (1977). In Scarborough, the Supreme Court held that the interstate transportation of a firearm need not be contemporaneous with a felon’s possession of it to violate the felon in possession statute.

Dissent

Judge Manion dissented from the majority’s analysis of both issues.

On the issue of knowledge, Manion relied on dicta in Carr v. U.S., — S.Ct. — (June 1, 2010), that SORNA should only apply when there is a connection between the interstate movement and the failure to register.

Addressing the Commerce Clause issue, Manion cited U.S. v. Mortensen, 322 U.S. 369 (1944), which held that, to fall within Congress’ Commerce Clause power, the interstate transportation must facilitate illegal activity.

Manion also dismissed the majority’s analogy to transporting a minor in interstate commerce to become a prostitute, because of the strict liability that has historically attached to sexual acts with minors.

But failure to register, Manion maintained, is not inherently unlawful; accordingly, proof of specific intent should be required.

Case analysis

Notwithstanding the majority opinion, defense attorneys should continue to raise the objections made in this case.

In holding that the government need not prove the defendant knew he was required to register, the court cites four other circuit courts of appeal for persuasive authority.

However, all predate the U.S. Supreme Court opinion in Carr, decided just last month. The majority fails to even address dicta in Carr that supports Vasquez’ position.

Should even one circuit find that dicta convincing, a circuit split would arise, and a solid basis for review in the Supreme Court would exist.

Judge Manion’s dissent also provides an excellent blueprint for any Commerce Clause argument.

Of course, it is an uphill battle to argue that any statute exceeds Congress’ Commerce Clause powers, but the dissent provides ample argument to at least preserve the issue.