US v Cooper

4-10-2014 Delaware:

US v Cooper

Keith Allen Cooper (“Cooper”) is a sex offender who was convicted of rape in Oklahoma and paroled prior to the enactment of the Sex Offender Registration and Notification Act (“SORNA” or the “Act”), Pub.L. No. 109–248, 120 Stat. 587, 590–611 (2006) (codified primarily at 18 U.S.C. § 2250 & 42 U.S.C. § 16901 et seq .). After Congress enacted SORNA, Cooper was convicted of failing to comply with the sex offender registration requirements set forth in SORNA. In bringing this appeal, Cooper invokes the nondelegation doctrine, challenging the constitutionality of the provision of SORNA in which Congress delegated to the Attorney General the authority to determine the applicability of the Act's registration requirements to pre-SORNA sex offenders.

We conclude that SORNA does not violate the nondelegation doctrine. Accordingly, we will affirm Cooper's conviction.

In 1999, Cooper was convicted in Oklahoma state court on three counts of rape in the first degree. Cooper was paroled in January 2006. As required by pre-SORNA law, he registered as a sex offender in Oklahoma on or around January 20, 2006.

In July 2006, Congress enacted SORNA, which requires sex offenders to comply with specific registration requirements and to update registration information in the event of a change of name, address, employment, or student status. Pursuant to the promulgation of an administrative rule on February 28, 2007, and subsequent issuance of a final rule, the Attorney General made SORNA's registration requirements applicable to individuals (such as Cooper) who were convicted of sex offenses prior to the enactment of SORNA.

In or around early 2011, Cooper moved from Oklahoma to Delaware. Although SORNA required Cooper to notify authorities of this change in residence, Cooper did not provide either Oklahoma or Delaware authorities with his updated residence information, nor did he separately register as a sex offender in Delaware after moving there.

In 2012, Cooper was arrested and charged with one count of failure to register as a sex offender, in violation of 18 U.S.C. § 2250(a), in the United States District Court for the District of Delaware. On November 2, 2012, Cooper moved to dismiss the indictment on the basis that, inter alia, SORNA's delegation of authority to the Attorney General to determine the applicability of the Act's registration requirements to pre-SORNA sex offenders violates the nondelegation doctrine and thus is unconstitutional. The District Court denied Cooper's motion to dismiss.

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Relevant to this appeal, SORNA makes it a federal crime for any person who is required to register, and who travels in interstate or foreign commerce, to knowingly fail to register or to update registration. 18 U.S.C. § 2250(a).1 Once a sex offender is subject to SORNA's registration requirements, that offender can be convicted under § 2250 if he thereafter engages in interstate or foreign travel and then fails to register. See Carr v. United States, 560 U.S. 438, 447, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010).

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It may well be, as Justice Scalia has written, that in delegating this responsibility to the Attorney General, Congress “sail[ed] close to the wind with regard to the principle that legislative powers are nondelegable.” Reynolds v. United States, ––– U.S. ––––, ––––, 132 S.Ct. 975, 986, 181 L.Ed.2d 935 (2012) (Scalia, J., dissenting). Indeed, we are puzzled as to why Congress decided to delegate to the Attorney General the authority to determine the applicability of SORNA's registration requirements to pre-SORNA offenders. The decision to make SORNA's registration requirements applicable to pre-Act offenders is a weighty one—particularly for the class of pre-SORNA offenders affected by that decision. Although we find Congress' delegation of this important decision curious at best, we hold that it does not amount to an unconstitutional abdication.

Under controlling nondelegation doctrine jurisprudence, the hurdle for the government in this case is not high.6 Applying the precedential authority on the nondelegation doctrine, we conclude that SORNA's delegation to the Attorney General in 42 U.S.C. § 16913(d) does not violate the nondelegation doctrine. Accordingly, we will affirm.

ACLU-DE Wins Small Victory with Dover Sex Offender Ordinance

10-1-2013 Delaware:

Wilmington, DE (October 1, 2013) — The American Civil Liberties Union of Delaware agreed today to dismiss its lawsuit challenging the City of Dover ordinance adopted in April 2012 to expand residency restrictions for registered sex offenders.

For now, we will have to be satisfied that we won a small victory for our client,” said Richard Morse, ACLU-DE legal director. “Since the city amended the original ordinance to include a grandfather clause and our client can stay in his home, he no longer needs a ruling by the court.”

The ordinance, §70-7 of the Dover Code, restricted registered sex offenders from living or working within 500 feet of a daycare center. The Dover City Council adopted the ordinance despite objections from the ACLU that residency laws actually increase the risk of harm to children.

All studies of residency restrictions for sex offenders have shown that they make the public less safe,” said Kathleen MacRae, ACLU-DE executive director. “These laws destabilize the lives of offenders by pushing them away from the support of family, friends and the mental health services that they need. They also drive offenders into the shadows and away from supervision by law enforcement, one of the most effective tools against recidivism,” MacRae continued.

In a 2012 report, the Delaware Sex Offender Management Board recommended to the General Assembly that Delaware change the statewide residency restriction so that judges can decide whether to apply the restriction. The Board noted in its report:

The sex offender residency restriction was a well-intended effort to keep the children of our community safe. It has, however, had unintended consequences that may decrease community safety. While limited, research findings indicate residency restrictions have little to no effect on sexual re-offense. Housing restrictions appear to be based largely on three ideas, none of which is supported by the evidence.

Federal justice statistics show that only 7% of sex-offenders victimize someone they do not know. Laws such as the Dover ordinance lull communities into a false sense of security by overstating the threat posed by strangers and ignoring the fact that most sexual abuse is committed by a family member or acquaintance.

Dover’s only change to their original ordinance was to eliminate the requirement that people move from the homes where they were living when it was passed. The ordinance still applies to registered sex offenders who wish to move to a home that is near a daycare center.

Even though the city amended the residency ordinance so our client may stay in his home, there are still many other things wrong with this law. The ACLU is ready to file a new lawsuit on behalf of people who seek to move to a prohibited area or work near a daycare center. They should contact us for help,” Morse concluded.

... ..Source.. by ACLU-DE

Dahl v State

5-15-2007 Delaware:

Dahl v State
926 A.2d 1077 (2007)

Defendant-Appellant William S. Dahl appeals his Superior Court conviction of Loitering by a Sex Offender within 500 Feet of a School,1 specifically a dance academy. Dahl was convicted at a bench trial. Dahl raises three arguments on appeal.

• First, Dahl contends that his due process rights were violated when the trial judge allowed the prosecutor to amend the indictment on the day of trial to expand by one month the date parameters of the alleged offense.
• Second, Dahl contends that the trial court erred when it denied his motion for judgment of acquittal because the State failed to present sufficient evidence from which a factfinder could conclude beyond a reasonable doubt that he was within 500 feet of a "school."
• Third, Dahl contends that the dance academy described at trial is not a "school" as defined in 11 Del. C. § 1112 and, therefore, his motion for judgment of acquittal should have been granted.

We do not find merit to Dahl's first and second arguments. We do find, however, that the State presented insufficient evidence at trial to prove an essential element of the offense beyond a reasonable doubt; that the dance academy was a "school" as that term has been defined by the General Assembly. Because the Due Process Clause of the United States Constitution and Delaware law require proof beyond a reasonable doubt of each element of an offense, we must reverse and remand with instructions to enter a judgment of acquittal in this case.

Heath v State

11-4-2009 Delaware:

Heath v State (Most unusual case)
(983 A.2d 77 (2009)

The Governor, as the Board of Pardons recommended, unconditionally pardoned Brian Heath for Second Degree Unlawful Sexual Contact. We address, on first impression, whether that pardon permits Heath to deregister as a sexual offender. The trial judge decided that the pardon statute's silence regarding registration differentiates its effect from expunction, which would extinguish Heath's Registry requirements.

Because the Board and Governor review "propensity for recidivism" before recommending and granting an unconditional pardon and a pardon restores all civil rights, no basis remains for mandating continued registration as a sex offender. Therefore, we REVERSE the judgment of the Superior Court

Article: Ruling limits sex offender registry.