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Second Circuit: SORNA Applies to All Sex Offenders

The Second Circuit Court of Appeals held that the federal Sex Offender Registration and Notification Act (SORNA) applied upon enactment to sex offenders whose predicate sex offense convictions predate SORNA. The appellate court also held that violation of SORNA’s criminal enforcement provision is a general intent crime. The Supreme Court has since agreed to review the Second Circuit’s decision.

“SORNA was enacted July 27, 2006, to ‘protect the public from sex offenders’ and to ‘establish[] a comprehensive national system for the registration of those offenders.’ 42 USC § 16901.” Under § 16913(d), the “Attorney General shall have the authority to specify the applicability of the requirements of SORNA “to sex offenders convicted before” its enactment “or its implementation in a particular jurisdiction.”

On February 28, 2007, the Attorney General issued an Interim Ruling under § 16913(d), concluding that SORNA’s registration requirements apply to all sex offenders, regardless of whether their conviction occurred before or after SORNA’s enactment. 72 Fed. Reg at 8896.

On April 26, 2004, Ross A. Fuller III pled guilty to a Missouri sex offense and, after his August 2004 release, he was required to comply with Missouri sex offender registration and notification requirements. Fuller complied with Missouri law from November 2004 until June 2006, when authorities stopped receiving notice from him and issued a warrant for his arrest.

On October 19, 2007, Fuller was arrested in New York and charged with violating 18 USC § 2250, the criminal enforcement provision of SORNA.

“On November 21, 2007, Fuller moved to dismiss the indictment, arguing inter alia, that (1) he was not subject to SORNA because his relevant interstate travel occurred prior to the Interim Ruling; and (2) prosecuting him under SORNA would violate the Ex Post Facto Clause. The district court denied Fuller’s motion. See United States v. Fuller, U.S.D.C. (ND NY), Case No. 5:07-CR-462; 2008 WL 5600709.

He then requested that the district court instruct the jury “that, in order to find him guilty, it had to find that he had specific intent to violate SORNA’s requirements.” When the court denied his request, Fuller pled guilty, pursuant to a conditional plea agreement, preserving his right to appeal the court’s rulings. He was then sentenced to 532 days time served, a ten year supervised release term and a $100 special assessment.

On appeal, Fuller renewed the arguments he made in the lower court, which the Second Circuit found to be issues of first impression.

“Given the purpose and structure of SORNA,” the Second Circuit found “that § 16913(d), in the context of the statute as a whole, is ultimately susceptible to only one interpretation.”

That is, “SORNA applied 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. . . .” Therefore, the Court held “that SORNA applied upon its enactment to all sex offenders regardless of when convicted, including Fuller.”

The Court also rejected Fuller’s argument that the lower court erred in refusing to give a specific intent jury instruction. “Fuller has failed to identify any reason why the term `knowingly,’ as it is used in SORNA, should not be given its typical meaning of requiring only general intent,” the Court observed. “Because Fuller was clearly aware that he was required to register and update his registration by virtue of his voluntary agreement to and participation in Missouri’s sex offender registration scheme,” the court held that “his failure to register upon his interstate travel, with either New York or Missouri authorities, was a knowing act, ... and was therefore sufficient to sustain the indictment for violating SORNA.”

The court also rejected Fuller’s other SORNA challenges that it had previously considered and rejected in other cases. See: United States v. Fuller, 627 F.3d 499 (2nd Cir. 2010).

The U.S. Supreme Court granted Fuller’s petition for writ of certiorari on February 21, 2012, and a decision by the high court remains pending.

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Related legal case

United States v. Fuller