Virginia Lawyers Weekly

The registration requirement under the federal Sex Offender Registration & Notification Act applied to a defendant who failed to register in the Western District of Virginia, even though Virginia has not enacted all the federal statutory standards prior to the federal deadline, and the Danville U.S. District Court refuses to dismiss defendant’s indictment for failure to register.

An important section of SORNA to this case concerns those sex offenders convicted of offenses occurring before the implementation of SORNA.

Defendant can be charged under SORNA even though Virginia has not fully implemented all SORNA standards. SORNA’s language states sex offenders must register and update their registration in accordance with the registration requirements every state has already implemented under Megan’s Law.

Virginia has had a sexual offender registry for a number of years, both before and after the enactment date of SORNA.

Defendant’s claim ignores the requirement that as a resident of Virginia, Virginia law required him to register as a sex offender prior to SORNA. There was a procedure in place in Virginia for defendant to register and update that registration, and defendant initially complied with that procedure, however, he did not update his registration upon leaving Virginia.

To hold that SORNA does not apply because Virginia has not enacted all of its standards prior to the statute’s deadline would nullify Congress’ intent to safeguard potential victims from sex offenders until after the July 2009 deadline. Accepting defendant’s argument would allow countless sex offenders to skirt registration by simply relocating to a neighboring jurisdiction.

SORNA is enforceable because based on the statutory analysis of Virginia’s preexisting registration requirement, the widespread acceptance of its applicability by federal courts across the country, the law and regulatory intent, and the public policy implications. Therefore, I hold the defendant is subject to SORNA’s application.

The court further holds that the Western District of Virginia is the proper venue because it is where defendant failed to update the registry; the Attorney General’s Interim Rule will be upheld because the Administrative Procedure Act’s “good cause” exception to the general rule (requiring a 30-day public comment period before implementation) was accurately asserted; SORNA is constitutional under the Commerce Clause because it fulfills the first two prongs of the pertinent Lopez test (defendant was a person moving in interstate commerce and he used instrumentalities of interstate commerce to relocate in North Carolina), so no analysis is needed to determine the law’s substantial effect on interstate commerce; Congress did not abdicate its constitutional role by delegating authority to the Attorney General, who was given clear guidance, limitations and purpose to enact enforcement regulations for SORNA; SORNA does not violate due process because defendant was on actual notice of his duty to re-register with Virginia if he was to relocate to another state after signing a Virginia State Police re-registration form detailing his obligations after SORNA was implemented; and there are no ex post facto penalties in SORNA because the law seeks to ensure a civil regulatory obligation is fulfilled by sex offenders.

Motion to dismiss indictment denied.

U.S. v. Turner (Kiser, J.) No. 4:08cr00034-01, June 12, 2009; USDC at Danville, Va. VLW 009-3-348, 25 pp.

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