UNITED STATES of America, Plaintiff-Appellee, v. Keith Allen LAWRANCE, Defendant-Appellant.
No. 08-6034.
United States Court of Appeals, Tenth Circuit.
Dec. 8, 2008.
1329
Aplt. Br. 35-36
But none of these facts, even viewing them in the light most favorable to Mr. Thomas, ties Mr. Sacchieri to Mr. Thomas‘s termination. They show grounds for frustration on Mr. Sacchieri‘s part, and perhaps even pressure on Mr. Edwards to get the certificate. Nothing, however, links the decision to fire Mr. Thomas to Mr. Sacchieri—no statement is offered as evidence of Mr. Sacchieri‘s role, not even an indirect one. Even if we assume that Mr. Edward and Mr. Ketchum fired Mr. Thomas in order to curry favor with the Mayor, this is not sufficient to hold the latter responsible. See, e.g., Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 533 (10th Cir.1998) (plaintiff must allege specific facts “showing an agreement and concerted action” amongst defendants). Unless an official participates personally in a constitutional violation, as by instructions or improper training, he cannot be held responsible for the acts of his subordinates even if those acts were committed for his benefit. The record on summary judgment contains nothing to show that Mr. Sacchieri was a participant in the decisionmaking process that led up to Mr. Thomas‘s termination. As the district court concluded, Mr. Thomas “offered no evidence that Sacchieri requested plaintiff‘s termination or that he was involved in any way in the decision to terminate plaintiff. In fact, the evidence shows that he was not aware that plaintiff had been terminated until several days after the fact.”
CONCLUSION
Mr. Thomas‘s speech was constitutionally protected, and the question of whether he was fired for that speech is a matter of disputed fact. Therefore we REVERSE the district court‘s grant of summary judgment as to Mr. Edwards, Mr. Ketchum, and the City and REMAND for further proceedings consistent with this opinion. Because Mr. Sacchieri did not personally participate in the alleged violation of Mr. Thomas‘s constitutional rights, his motion for summary judgment was properly granted and we AFFIRM the district court‘s judgment as to Mr. Sacchieri.
Robert Gifford, Assistant United States Attorney (John C. Richter, United States Attorney, on the brief), Oklahoma City, OK, for Plaintiff-Appellee.
Paul Lacy, Assistant Federal Public Defender, Oklahoma City, OK, for Defendant-Appellant.
Before KELLY, SEYMOUR, and MURPHY, Circuit Judges.
PAUL KELLY, JR., Circuit Judge.
On July 18, 2002, Mr. Lawrance was convicted in Arizona of sexual conduct with a minor under eighteen years old. 2 R. (PSR) 4. Upon receiving a five-year term of probation, Mr. Lawrance acknowledged in writing his duty to register as a sex offender, his duty if he moves to another state or county to inform the sheriff of the county from which he is moving within seventy-two hours, and his duty to comply with the sex offender registration requirements of any state in which he lives. 2. R. (PSR) 5. Mr. Lawrance‘s probation was subsequently revoked, and he received a sentence of eighteen months’ imprisonment as a result of his failure to update his address. 2 R. (PSR) 8.
In July 2006, Mr. Lawrance moved from Arizona to Montrose, Colorado, and in November 2006, “just prior to Thanksgiving,” Mr. Lawrance and his girlfriend moved to Stillwater, Oklahoma, where they lived with the girlfriend‘s cousin. 2 R. (PSR) 4. Before Christmas 2006, Mr. Lawrance and his girlfriend moved to Oklahoma City, where they lived at approximately five different addresses between December 2006 and June 2007. 2 R. (PSR) 4.
Mr. Lawrance concedes that he “is required to comply with the sex offender registration requirements of any state where he lived,” and admits that he failed to update his registration in Arizona, never registered in Colorado, and “knowingly failed to register as a Sex Offender in the state of Oklahoma.” 2 R. (PSR) 5. The resulting indictment charges Mr. Lawrance with “knowingly fail[ing] to register as a sex offender in the state [of] Oklahoma as required by the Sex Offender Registration and Notification Act, after leaving the state of Arizona where he failed to update his Sex Offender Registration and thereafter traveled in interstate commerce to the State of Oklahoma” during the period November 2006 through June 20, 2007. 1 R. Doc. 13.
Discussion
In reviewing constitutional challenges to a statute, our review is de novo. United States v. Parker, 362 F.3d 1279, 1281 (10th Cir.2004) (Commerce Clause); see also United States v. Morris, 247 F.3d 1080, 1085 (10th Cir.2001) (same); Femedeer v. Haun, 227 F.3d 1244, 1248 (10th Cir.2000) (Ex Post Facto); Neely v. Newton, 149 F.3d 1074, 1079 (10th Cir.1998) (due process).
I. Ex Post Facto Clause
Mr. Lawrance first argues that his prosecution under SORNA‘s failure to register provisions violates the Ex Post Facto Clause. In Calder v. Bull, the Supreme Court held that any law that “inflicts a greater punishment[] than the law annexed to the crime” at the time of its commission or criminalizes any act “done before the passing of the law” violates the Ex Post Facto Clause. 3 U.S. 386, 390, 3 Dall. 386, 1 L.Ed. 648 (1798). To violate the Clause, a law “must be retrospective, that is, it must apply to events occurring before its enactment” and “must disadvantage the offender affected by it.” Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (citing Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 81 L.Ed. 1182 (1937); Calder, 3 U.S. at 390). To be criminally liable under SORNA, a sex offender must travel in interstate commerce and “knowingly fail[] to register or update a registration as required by the [Act].”
Mr. Lawrance makes two arguments: (1) that SORNA‘s retroactive application
Just as in Hinckley, Mr. Lawrance argues that SORNA violates the Ex Post Facto Clause by retroactively increasing punishment for past offenses. While Mr. Lawrance is actually being punished for his failure to register after traveling in interstate commerce, and not for his prior sexual offense, we address his argument in light of SORNA‘s retroactive registration scheme as a whole. Under Smith v. Doe, we engage in a two-part analysis to determine whether the retroactive application of a statute violates the Ex Post Facto Clause in this fashion. 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). First, we “ascertain whether the legislature meant the statute to establish ‘civil’ proceedings.” Id. at 92, 123 S.Ct. 1140 (quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)). If Congress indeed intended via the statute to “enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is ‘so punitive either in purpose or effect as to negate [Congress‘s] intention’ to deem it ‘civil.‘” Id. (quoting United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)). The court normally defers to Congress‘s stated intent, and therefore “only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Id. (quoting Hudson v. United States, 522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997)).
SORNA is both civil in its stated intent and nonpunitive in its purpose, similar to the scheme in Smith, and therefore does not violate the Ex Post Facto Clause. Mr. Lawrance attempts to distinguish the statutory scheme in Smith, but it is unavailing. In enacting SORNA, Congress expressly declared its intent to create a “comprehensive national system for the registration” of sex offenders, “[i]n order to protect the public from sex offenders and offenders against children, and in response to the vicious attacks by violent predators.”
We are not persuaded. First, the registration provisions in Smith were actually codified in Alaska‘s criminal procedure code. See
Mr. Lawrance further argues that SORNA as applied to his case violates the Ex Post Facto Clause because it penalizes his pre-enactment interstate travel. Essentially, he argues that his travel in interstate commerce occurred prior to SORNA‘s effective date, which he asserts did not become applicable until February 28, 2007, the date of the Attorney General‘s promulgation of the Interim Rule.1 In support, he cites several cases that focus on the timing of defendants’ travel and the dates of their indictments, most of which are easily distinguishable.2 Aplt. Br. 13-15. Regardless, we do not find their reasoning persuasive in light of our recent holding in Hinckley regarding the retroactive applicability of SORNA. See Hinckley, 550 F.3d at 926-27.
SORNA requires that an offender travel in interstate commerce before he can be held criminally liable for failing to register. See
Pertaining to this case, a survey of recent decisions reveals that courts are also split on whether the Attorney General‘s Interim Rule, issued February 28, 2007,
II. Commerce Clause
Mr. Lawrance next argues that SORNA and its failure to register provisions,
The Supreme Court has enumerated “three general categories of regulation in which Congress is authorized to engage under its commerce power.” Gonzales v. Raich, 545 U.S. 1, 16, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005). “First, Congress can regulate the channels of interstate commerce. Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Third, Congress has the power to regulate activities that substantially affect interstate commerce.” Id. at 16-17, 125 S.Ct. 2195 (citations omitted); see also United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Mr. Lawrance argues that his failure to register did not “substantially affect” interstate commerce under the third prong as discussed in Lopez, and therefore the application of SORNA to his case violates the Commerce Clause. Additionally, he claims
We rejected similar arguments in Hinckley. When referring to a sex offender‘s failure to register after traveling in interstate commerce, we stated “[w]hether such an activity has a substantial effect on interstate commerce is irrelevant, since the first and second prongs of Lopez confirm Congress‘s authority to regulate this type of activity.” Hinckley, 550 F.3d at 940; see also N. Am. Co. v. Secs. and Exch. Comm‘n, 327 U.S. 686, 705, 66 S.Ct. 785, 90 L.Ed. 945 (1946) (reiterating the “well-settled principle that Congress may impose relevant conditions and requirements on those who use the channels of interstate commerce in order that those channels will not become the means of promoting or spreading evil, whether of a physical, moral or economic nature” (citing Brooks v. United States, 267 U.S. 432, 436-37, 45 S.Ct. 345, 69 L.Ed. 699 (1925))); Caminetti v. United States, 242 U.S. 470, 491-92, 37 S.Ct. 192, 61 L.Ed. 442 (1917); May, 535 F.3d at 921-22. Elaborating on Congress‘s regulatory power, the Supreme Court has held that “Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty or the spread of any evil or harm to the people of other states from the state of origin.” Brooks, 267 U.S. at 436, 45 S.Ct. 345. In doing so, Congress may regulate not “conduct related to interstate commerce but rather interstate commerce itself—barring from the channels of interstate commerce a class of goods or people.” United States v. Patton, 451 F.3d 615, 620-21 (10th Cir.2006) (citing United States v. Rybar, 103 F.3d 273, 288-89 (3d Cir.1996) (Alito, J., dissenting)) (summarizing cases). Thus, Congress‘s authority to regulate is not limited to “regulations with a narrowly economic purpose or impact,” Patton, 451 F.3d at 621, but rather the Commerce Clause allows “Congress to keep the channels of interstate commerce free from immoral and injurious uses.” Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (quoting Caminetti, 242 U.S. at 491, 37 S.Ct. 192). In fact, the first prong, and even the second prong, of Lopez focuses on statutes that prevent the use of interstate commerce that results in harm to the populations of states other than those where such harm originates. See Brooks, 267 U.S. at 436-37, 45 S.Ct. 345.
Mr. Lawrance relies on United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), Lopez, and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), which examine statutes in which Congress attempted to prohibit purely intrastate activity via the third category of Lopez—the “substantially affects” prong; however, SORNA clearly intends to regulate interstate activity, i.e., the evasion of sex offender registration requirements by sex offenders who have crossed jurisdictional lines. Mr. Lawrance failed to keep his registration current in Arizona, did not register in Colorado, and then traveled in interstate commerce to Oklahoma after SORNA‘s July 27, 2006, effective date, evading his registration requirements yet again in Oklahoma. With SORNA, Congress clearly and validly proscribed such evasive tactics by offenders who move across state lines, and we must reject Mr. Lawrance‘s arguments to the contrary.
Finally, Mr. Lawrance argues that SORNA‘s application to his conduct constitutes a due process violation. Specifically, he reiterates his argument that SORNA did not apply to him until the promulgation of the Attorney General‘s Interim Rule and therefore that he was afforded no statutory notification of SORNA‘s registration requirements. In Hinckley, we held that such arguments amount to “ignorance of the law” claims, Hinckley, 550 F.3d at 938 (quoting May, 535 F.3d at 921), and found no due process violation.
In support of his due process claim, Mr. Lawrance also argues that
Furthermore, we disagree with Mr. Lawrance‘s claim that he was entitled to statutory notification of the penalties for failing to register after traveling in interstate commerce. A “majority of courts have concluded that notice of a defendant‘s obligations under state law is sufficient to satisfy the Due Process Clause‘s requirements.” Hinckley, 550 F.3d at 938 (citing May, 535 F.3d at 921; United States v. Gould, 526 F.Supp.2d 538, 545 n. 8 (D.Md.2007) (collecting cases)). In fact, Mr. Lawrance admits that he registered in Arizona after his initial conviction in 2002, and that he failed to comply with any state or federal registration requirements after his initial registration, even after signing a written acknowledgment of his duties. He not only knew of his obligation to register and keep his registration current, but he was also arrested nearly a year after SORNA‘s enactment and four months after the Attorney General issued his Interim Rule. Because his arrest occurred post-SORNA, and even post-Interim Rule, we presume that Mr. Lawrance was familiar with the law. See Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991) (“The general rule that ignorance of the law ... is no defense to criminal prosecution is deeply rooted in the American legal system.“). Mr. Lawrance cannot now claim that he not only did not know about SORNA, but also that this lack of knowledge contributed to his decision to evade well-known and well-established state law registration obligations.
AFFIRMED.
MURPHY, Circuit Judge, dissenting:
Lawrance was indicted for violating
(a) In general.--Whoever—
(1) is required to register under the Sex Offender Registration and Notification Act;
(2)(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or
(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and
(3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act;
shall be fined under this title or imprisoned not more than 10 years, or both.
As the plain language of the provision makes clear, three elements must be satisfied for an individual such as Lawrance, who has been convicted of a sex offense only under state law, to violate
It is undisputed that during some portion of the time period set forth in the indictment, Lawrance was required to register under SORNA as a sex offender and knowingly failed to register or update his registration. See Majority Op. at 1336. He therefore satisfied the first and third elements of
Section 16913(d) of SORNA reads:
The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b) of this section.
The requirements of the Sex Offender Registration and Notification Act apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act.
The majority concedes that all of Lawrance‘s interstate travel occurred prior to February 27, 2007, the date the Interim Rule was issued. It contends, however, that from SORNA‘s effective date, as opposed to the date of issuance of the Interim Rule, SORNA applied to all sex offenders no matter their date of conviction. Majority Op. at 1335-36. Based on this conclusion, the majority holds that because Lawrance traveled interstate during the gap period between SORNA‘s July 27, 2006, effective date and the February 27, 2007, Interim Rule, Lawrance satisfied the second element and was thus properly convicted under
For the reasons described in Judge McConnell‘s dissenting opinion in United States v. Hinckley, this conclusion is contrary to the unambiguous language of
The first clause says, unambiguously, that the Attorney General has the authority to specify the requirements of the subchapter—all of SORNA—to those who were convicted of a sex offense before the date of enactment (July 27, 2006), or its implementation in a particular jurisdiction. This clause provides that the Attorney General “shall” have the authority to “specify the applicability” of SORNA to past offenders. Until the Attorney General does so, the Act applies only prospectively, and does not apply to past offenders....
The second clause gives the Attorney General quite a different authority: to prescribe rules for the registration both of those whose offenses predate SORNA and also for “other categories of sex offenders” who, for whatever reason, are unable to comply with the initial registration requirements of SORNA. This clause also does not present any ambiguity. Whereas the Attorney General has the authority to “specify the applicability” of SORNA only as regards sex offenders who were convicted of their offense prior to SORNA‘s enactment, he can prescribe rules for the registration both of any pre-SORNA offenders and of other categories of sex offender (i.e., groups of offenders who committed their offense after enactment of SORNA) who meet the specified criterion, namely the inability to meet the initial registration requirements of subsection (b).... There is no grammatical reason to limit the category of pre-SORNA offenders to those who are unable to comply with subsection (b), for purposes of either clause. Because there is no ambiguity, there is no need to look to the subtitle, the statutory purpose or context, or any other secondary interpretive aids.
Id. at 937-38 (McConnell, J., dissenting) (footnotes omitted).
Prior to the February 27, 2007, Interim Rule, SORNA was not applicable to defendants such as Lawrance who were convicted of a sex offense prior to July 27, 2006. Accordingly, because all of Lawrance‘s interstate travel, the necessary second element of the offense, occurred before the issuance of the Interim Rule, his conviction should be reversed. The majority‘s statement that Lawrance “continued to move from address to address in Oklahoma without registering after the Interim Rule, well after the close of the ‘gap period’ and clearly in violation of the registration requirements laid out in
UNITED STATES of America, Plaintiff-Appellee, v. Dolores Mae ARREOLA, Defendant-Appellant.
No. 07-2168.
United States Court of Appeals, Tenth Circuit.
Dec. 8, 2008.