United States v. Brunner
726 F.3d 299
| 2d Cir. | 2013Background
- Kenneth Brunner was court-martialed in 2002 for carnal knowledge and sodomy of a child, sentenced and dishonorably discharged; New York classified him as a level‑2 sex offender and he initially registered in 2003.
- Postal returns and investigation revealed Brunner had provided a false name and address; a state warrant issued for failure to register and a federal grand jury indicted him under SORNA § 2250 for failing to update his registration (indictment alleges noncompliance June 2007–April 2010).
- Brunner moved to dismiss, arguing SORNA was unconstitutional as applied because he had completed his sentence and was no longer under federal supervision when SORNA was enacted; the district court denied the motion.
- He entered a conditional guilty plea preserving the constitutional issue and appealed; oral argument occurred before the Supreme Court decided United States v. Kebodeaux.
- After Kebodeaux, the Second Circuit held Brunner conceded SORNA falls within Congress’s authority under the Military Regulation and Necessary and Proper Clauses because he had been subject to the earlier Wetterling Act; the court affirmed the conviction.
Issues
| Issue | Plaintiff's Argument (Brunner) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether Congress had authority to apply SORNA to a former servicemember who completed his sentence and left federal supervision | Congress lacks power to regulate Brunner post‑release; he was no longer under federal control | Congress has authority under the Military Regulation and Necessary and Proper Clauses, especially where prior Wetterling Act obligations existed | Held for government: Kebodeaux controls; Congress had authority to apply SORNA to Brunner |
| Whether the government waived reliance on the Wetterling Act by not raising it below | Wetterling argument was not raised below and thus should be foreclosed on appeal | Wetterling was implicated by government’s supervisory‑interest argument; Court may consider new legal questions in its discretion | Held for government: Court exercised discretion to consider Wetterling issue and bound Brunner by Kebodeaux |
| Whether applying SORNA to Brunner violated the Ex Post Facto Clause | Retroactive application of new registration requirements is punitive and unconstitutional | SORNA and the Attorney General’s 2007 interim rule applied to all sex offenders; Guzman forecloses ex post facto challenge under these facts | Held for government: No Ex Post Facto violation; conviction valid under Guzman |
Key Cases Cited
- United States v. Kebodeaux, 133 S. Ct. 2496 (2013) (Supreme Court: Congress may regulate former military offenders under Military Regulation and Necessary and Proper Clauses where Wetterling Act applied)
- United States v. Guzman, 591 F.3d 83 (2d Cir. 2010) (SORNA application to post‑enactment travel and failures to register does not raise ex post facto problem)
- United States v. Morrison, 529 U.S. 598 (2000) (standard for invalidating congressional enactments on constitutional grounds)
- Carr v. United States, 560 U.S. 438 (2010) (context on SORNA’s aim to standardize state sex‑offender registration schemes)