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UNITED STATES v. FULLER
C. SHIRLEY JR., Magistrate Judge
This case is before the Court on Defendant Bemis's Motion to Continue [Doc. 26] her November 29, 2010 trial date in this case.See 28 U.S.C. § 636(b). In her motion, Defendant Bemis states that she is scheduled to enter a guilty plea before the District Judge on December 8, 2010, at 2:00 p.m., and she asks that her trial be continued to a date thereafter. She states that the Government requested that she file the motion because her speedy trial time is about to elapse.
Based upon Defendant Bemis's clear inability to proceed to trial on November 29, 2010, the Court finds that a short continuance of the trial is necessary and that the ends of justice served by granting a continuance outweigh the interest of the Defendants and the public in a speedy trial. 18 U.S.C. § 3161(h)(7)(A). First, the Court finds that to require Defendant Bemis to proceed to trial nine days before she is scheduled to enter a guilty plea would constitute a miscarriage of justice. 18 U.S.C. § 3161(h)(7)(B)(i). Moreover, the Court observes that a Superseding Indictment [Doc. 17] was filed in this case on November 16, 2010. This indictment added a new codefendant, Kevin Lynn Catt, who is set for trial on January 25, 2011. If Defendant Bemis does not proceed with her guilty plea on December 8, her counsel will need a reasonable amount of time to prepare for a trial that includes this new codefendant. The Court finds that this necessary trial preparation could not take place before the November 29, 2010 trial date. Thus, the Court finds that the failure to grant a continuance would deprive Defendant Bemis's attorney of the reasonable time necessary to prepare for trial despite his use of due diligence. See 18 U.S.C. § 3161(h)(7)(B)(iv).
Additionally, the Court notes that excluded from the speedy trial calculation is a "reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted." 18 U.S.C. § 3161(h)(6). Under this provision, time excludable as to one defendant is excludable to all codefendants.United States v. Holyfield, 802 F.2d 846, 847-48 (6th Cir. 1986). Unlike some periods of delay automatically excluded by the Act, delay caused by joinder with a codefendant must be reasonable.Henderson v. United States, 476 U.S. 321, 327 (1986). In assessing the reasonableness of delay attributed to a codefendant, courts should be guided by the policies supporting the enactment of section 3161(h)(6) (formerly 3161(h)(7)):
Section 3161(h)(6) was formerly numbered 18 U.S.C. § 3161(h)(7). Congress renumbered this section, effective October 2008, without changing its language.
The legislative history of this section demonstrates a strong Congressional preference for joint trials and an intention that delays attributable to the joinder of defendants be liberally excluded. Further, the purpose of this section is to insure that the Speedy Trial Act does not alter the present rules governing severance of co-defendants by forcing the government to prosecute the defendants separately or be subject to a speedy trial dismissal motion.United States v. Monroe, 833 F.2d 95, 100 (6th Cir. 1987) (citations omitted). In other words, Congress expressly favored the goals of efficiency and economyresulting from multi-defendant trials despite the loss of speed that would result from a severance.See id.
In the present case, Defendants Bemis and Catt are jointly indicted and no motion for severance has been filed. Defendant Catt entered the case on November 23, 2010, one week before Defendant Bemis's trial date. The Court finds that the eight-week delay caused by Defendant Catt's need to review discovery, prepare and litigate any pretrial motions, and to prepare for trial to be reasonable. Accordingly, this delayis also attributable to Defendant Bemis. 18 U.S.C. § 3161(h)(6).
Thus, Defendant Bemis's Motion to Continue [ Doc. 26] is GRANTED, and her trial is reset so that she may be tried jointly with Defendant Catt on January 25, 2011. The Court also finds that all the time between the filing of Defendant Bemis's motion on November 29, 2010, and the new trial date of January 25, 2011, to be fully excludable time under the Speedy Trial Act for the reasons set forth herein. See 18 U.S.C. § 3161(h)(1)(D), -(6), -(7)(A)-(B). With regard to further scheduling, the parties (including Defendant Bemis, if she does not enter a guilty plea prior to this date) are to appear before the undersigned for a pretrial conference on January 11, 2011, at 1:30 p.m. The Court instructs the parties that all motions in limine must be filed no later than January 10, 2011. Special requests for jury instructions shall be submitted to the District Court no later than January 14, 2011, and shall be supported by citations to authority pursuant to Local Rule 7.4.
Accordingly, it is ORDERED:
(1) Defendant Bemis's Motion to Continue [ Doc. 26] the November 29, 2010 trial is GRANTED;
(2) The trial of Defendant Bemis is reset to coinside with the trial of Defendant Catt on January 25, 2011, at 9:00 a.m., before the Honorable Thomas A. Varlan, United States District Judge;
(3) All time between the filing of the motion on November 29, 2010, and the new trial date of Janaury 25, 2011, is fully excludable time under the Speedy Trial Act for the reasons set forth herein;
(4) The parties are to appear before the undersigned for a pretrial conference on January 11, 2011, at 1:30 p.m.;
(5) Motions in limine must be filed no later than January 10, 2011; and
(6) Special requests for jury instructions with appropriate citations shall be submitted to the District Court by January 14, 2011.IT IS SO ORDERED.
If SORNA were deemed inapplicable to sex offenders convicted prior to its enactment, then the resulting system for registration of sex offenders would be far from "comprehensive," and would not be effective in protecting the public from sex offenders because most sex offenders who are being released into the community or are now at large would be outside of its scope. . . .72 Fed.Reg. at 8896.
The far more reasonable interpretation of § 16913(d) is that Congress itself had already made the determination that 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, as well as those unable to comply with SORNA's initial registration rules.
The basic structure of the statute supports this reading. A "sex offender" to whom SORNA applies, for example, is defined as "an individual who was convicted of a sex offense," without any reference to the date of conviction, 42 U.S.C. § 16911(1); the general registration requirements of § 16913 also do not distinguish between sex offenders convicted before and after SORNA's enactment, rather subsections (a), (b), and (c) state simply that a "sex offender shall" register and keep his registration current, without reference to the date of conviction, id. § 16913(a)-(c); and additional ancillary sections relating to what information is required of sex offenders, the duration of the registration requirements, and the need for sex offenders to comply with periodic verification procedures likewise make no distinction among sex offenders based on their date of conviction, see id. §§ 16914, 16915, 16916.
We are guided in our determination by the presumption that a law takes effect upon enactment absent a clear direction to the contrary. See Gozlon-Peretz, 498 U.S. at 404, 111 S.Ct. 840. For the reasons above, subsection (d) cannot be construed as a clear indication that Congress intended to leave SORNA's criminal reach to the discretion of the Attorney General. Cf. DiTomasso, 621 F.3d at 23 ("Subsection (d) is anything but a clear direction [that SORNA did not take effect upon enactment]."). To the contrary, in our view, the first clause of § 16913(d) constitutes a clear pronouncement by Congress of SORNA's general applicability to pre-SORNA sex offenders, while the second clause grants the Attorney General rule-making authority over two classes of sex offenders: (1) those pre-SORNA offenders addressed in the first clause — "such sex offenders" — and (2) " other categories of sex offenders" unable to comply with subsection (b). 42 U.S.C. § 16913(d) (emphasis added). In other words, § 16913(d) grants the Attorney General two separate but closely related powers: (1) the power to specify how — not whether — SORNA's registration requirements apply to the subset of sex offenders who were convicted prior to SORNA's enactment, and (2) the power to promulgate the precise registration rules applicable to that subset, as well as to sex offenders unable to comply with § 16913(b) for any other reason.
Under this reading, the Attorney General's power "to specify the applicability of the requirements of [SORNA]" refers to his authority to work out the complications that may arise in the application of a new federal criminal law to an already existent class of offenders, the myriad permutations of which Congress chose not to address in the Act itself, in order to ensure an efficient and "comprehensive" national sex offender registration system. See 42 U.S.C. § 16901. For example, § 16915 concerns the duration of time for which the various classes of sex offenders defined by SORNA are required to keep their registration active, with reductions for maintaining a clean record. Under the authority granted by § 16913(d), the Attorney General could (but is not required to) elect to shorten or otherwise modify the length of time a sex offender, convicted many years before SORNA's enactment and who has exhibited good behavior, must maintain his registration. See DiTomasso, 621 F.3d at 23 ("When viewed as a part of a seamless regulatory scheme, subsection (d) . . . reflects] Congress's recognition that specific applications of the registration requirements to previously convicted sex offenders may have unintended consequences . . . [and thus] allows — but does not compel — the Attorney General to narrow SORNA's sweep if and to the extent that he concludes that specific situations invite such narrowing.").
Although this construction admits a small degree of superfluity, such surplusage can be forgiven in light of SORNA's overarching purpose and its general structure. See Lamie v. U.S. tr, 540 U.S. 526, 536, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) ("Surplusage does not always produce ambiguity and our preference for avoiding surplusage constructions is not absolute."). After all, we are not called upon to construe Platonic forms of statutes, but real ones passed by Congress, whose intent we must respect.
In sum, "appreciating how [SORNA's] sections relate to one another," Auburn Hous. Auth., 277 F.3d at 144, and placing § 16913(d) "within the context" of SORNA as a whole, Gayle, 342 F.3d at 93, we hold that SORNA applied upon its enactment to all sex offenders regardless of when convicted, including Fuller.
B. General versus Specific Intent
Fuller further argues that the district court erred in denying his requested jury charge that SORNA requires specific intent. This Court reviews jury charges de novo. See United States v. Van Buren, 599 F.3d 170, 173 (2d Cir. 2010). SORNA's criminal provision requires proof that the accused "knowingly fai][ed] to register or update a registration." 18 U.S.C. § 2250(a)(3). This Court has held that the use of "knowingly" in a statute "typically signals that the statute only requires a finding of general intent for conviction." United States v. George, 386 F.3d 383, 389 n. 6 (2d Cir. 2004). General intent "does not necessarily [refer] to a culpable state of mind or to knowledge of the law," rather, the term "merely requires proof of knowledge of the facts that constitute the offense." Bryan v. United States, 524 U.S. 184, 192-93, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998).
Whether SORNA requires specific or general intent is a question of first impression in this Circuit, but every Circuit to have considered the matter has held that SORNA is a general intent crime. See, e.g., United States v. Gould, 568 F.3d 459, 468 (4th Cir. 2009) ("SORNA's criminal provision is not a specific intent law . . . [t]here is no language requiring specific intent or a willful failure to register such that [the defendant] must know his failure to register violated federal law."); United States v. Shenandoah, 595 F.3d 151, 159 (3d Cir. 2010) (same); United States v. Vasquez, 611 F.3d 325, 328-29 (7th Cir. 2010) (same).
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. See George, 386 F.3d at 389 n. 6. 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, his failure to register upon his interstate travel, with either New York or Missouri authorities, was a knowing act, see Bryan, 524 U.S. at 192-93,118 S.Ct. 1939, and was therefore sufficient to sustain the indictment for violating SORNA, see 18 U.S.C. § 2250(a); cf. Gould, 568 F.3d at 468.
C. Fuller's Remaining Arguments
Fuller advances several additional arguments that require only brief consideration. First, he argues that his conviction violates the Ex Post Facto Clause. Since we hold that SORNA applied to Fuller upon its enactment, this argument is foreclosed. See Guzman, 591 F.3d at 94 (holding that, where a SORNA defendant's "travel and failure to register occurred after SORNA's enactment and the effective date of the [Act]," there is "no ex post facto problem" (emphasis added)).
Additionally, Fuller argues that his conviction was improper because (1) SORNA exceeds Congress's Commerce Clause authority; (2) SORNA violates the non-delegation doctrine; (3) SORNA cannot be applied to him because neither Missouri nor New York had implemented SORNA at the time of his conviction, as directed by the Act; and (4) he was never specifically notified of SORNA's requirements and applicability to him. These challenges to SORNA have been considered by this Court and rejected, see id. at 90-93; United States v. Hester, 589 F.3d 86, 92-93 (2d Cir. 2009), and thus are foreclosed on this appeal.
CONCLUSION
For the foregoing reasons, we conclude that Fuller's conviction under 18 U.S.C. § 2250(a) was proper. The judgment of the district court is hereby AFFIRMED.
REENA RAGGI, Circuit Judge, concurring:
I join in the court's opinion holding that the text and structure of the federal Sex Offender Registration and Notification Act ("SORNA"), 42 U.S.C. § 16901 et seq., are unambiguous in providing for SORNA's registration requirements to take effect on the date of its enactment to persons previously convicted of predicate sex offenses. I write separately only to explain that I think the alternate construction urged by defendant — identifying ambiguity as to whether § 16913(d) vests the Attorney General with authority to determine whether, and not simply how, SORNA applied to sex offenders convicted before SORNA's enactment — is, in any event, foreclosed by the rule of constitutional avoidance, as such a construction would, to my mind, raise concerns about the delegation of legislative authority to the executive branch.
1. Constitutional Avoidance
The rule of constitutional avoidance states that "where an otherwise acceptable construction of a statute would raise serious constitutional problems," a court must "construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." United States v. Magassouba, 544 F.3d 387, 404 (2d Cir. 2008) (internal quotation marks omitted). This canon of construction is a "tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts." Clark v. Martinez, MS U.S. 371, 381, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005).
Because constitutional avoidance is "a means of giving effect to congressional intent," Clark v. Martinez, 543 U.S. at 382, 125 S.Ct. 716, it assumes priority over the rule of lenity, which applies in defendant's favor "only if, after seizing everything from which aid can be derived, we can make no more than a guess as to what Congress intended," Reno v. Koray, 515 U.S. 50, 65, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995) (citation and internal quotation marks omitted); see also United States v. Van Buren, 599 F.3d 170, 174 (2d Cir. 2010) ("[T]he Supreme Court has reserved lenity for those situations in which a reasonable doubt persists about a statute's intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute." (internal quotation marks omitted; emphasis in original)); United States v. Wu, 419 F.3d 142, 147 (2d Cir. 2005) ("The doctrine of lenity is one of last resort." (internal quotation marks omitted)). For this reason, "the rule of lenity has no application" if SORNA's meaning should turn out to be clear after considering "every indicator of statutory intent," including the doctrine of constitutional avoidance. United States v. Hinckley, 550 F.3d 926, 948 n. 8 (10th Cir. 2008) (Gorsuch, J., concurring).
2. Non-Delegation
The Constitution provides that " [a]ll legislative Powers herein granted shall be vested in a Congress of the United States." U.S. Const, art. I, § 1 (emphasis added). Consistent with this text and the principle of separation of powers, the non-delegation doctrine generally permits "no delegation" of legislative powers to another branch of government. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001); see also Mistretta v. United States, 488 U.S. 361, 371-72, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Among Congress's legislative powers is the authority to determine the temporal scope of a statute. See, e.g., City of New York v. Permanent Mission of India to the U.N., 618 F.3d 172, 195 (2d Cir. 2010) (recognizing Congress's "`responsibility for fundamental policy judgments concerning the proper temporal reach of statutes'" (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 273, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994))). That determination is particularly significant with respect to statutes exposing persons to criminal liability. Here, a decision as to the application of SORNA registration requirements to persons convicted of sex offenses before enactment of the statute could expand or contract the class subject to possible criminal prosecution for non-compliance by more than half a million. See 152 Cong. Rec. S8012, 8013 (daily ed. July 20, 2006) (statement of Sen. Hatch) (estimating over 500, 000 persons convicted of predicate sex offenses prior to enactment of SORNA); 152 Cong. Rec. H5705, 5722 (daily ed. July 25, 2006) (statement of Rep. Sensenbrenner) (same).
In exercising legislative authority, Congress is permitted to "seek[] assistance, within proper limits, from its coordinate Branches." Touby v. United States, 500 U.S. 160, 165, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991). To stay within constitutional limits, however, a delegation of congressional authority to a coordinate branch must "lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform." J.W. Hampton, Jr., Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 72 L.Ed. 624 (1928); accord Touby v. United States, 500 U.S. at 165, 111 S.Ct. 1752. Put another way, a delegation is "constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority." American Power Light Co. v. SEC, 329 U.S. 90, 105, 67 S.Ct. 133, 91 L.Ed. 103 (1946); accord Mistretta v. United States, 488 U.S. at 372-73, 109 S.Ct. 647.
In the eighty years since the Supreme Court first articulated the "intelligible principle" requirement, it has broadly construed Congress's ability to delegate power, striking down only two statutes for impermissible delegation, both in 1935. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935). The Court nonetheless continues to subject congressional acts of delegation to constitutional scrutiny, see, e.g., Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 121 S.Ct. 903; Touby v. United States, 500 U.S. 160, 111 S.Ct. 1752, and it has frequently invoked the rule of constitutional avoidance in construing statutes to avoid serious delegation questions, see, e.g., Industrial Union Dep't, AFLCIO v. Am. Petroleum Inst, 448 U.S. 607, 646, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980) (rejecting interpretation of Occupational Safety and Health Act as making "such a `sweeping delegation of legislative power' that it might be unconstitutional under the Court's reasoning in A.L.A. Schechter Poultry Corp. v. United States . . . and Panama Refining Co. v. Ryan . . . A construction of the statute that avoids this kind of open-ended grant should certainly be favored."); see also National Cable Television Ass'n v. United States, 415 U.S. 336, 340-42, 94 S.Ct. 1146, 39 L.Ed.2d 370 (1974); Kent v. Dulles, 357 U.S. 116, 129-30, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958).
3. The Delegation Concerns Raised by Defendant's Interpretation of SORNA
Title 42 U.S.C. § 16913(d) states:
The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter 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.
Defendant argues that the first clause can be construed to empower the Attorney General to decide whether — rather than simply how — the subchapter's requirements apply to sex offenders whose predicate convictions predate SORNA's enactment. I think this construction must be rejected on avoidance grounds because I do not see that Congress provided any intelligible principle in the statute to guide the Attorney General in exercising such putative delegated legislative authority.
In United States v. Guzman, 591 F.3d 83 (2d Cir. 2010), this court identified no such concern, ruling that the Attorney General's exercise of legislative authority was "highly circumscribed" by SORNA provisions identifying the crimes requiring registration, the "where, when, and how" of registration, the information required of registrants, and the elements and penalties for the federal crime of failure to register. Id. at 93 (citing 42 U.S.C. §§ 16911, 16913-14, 18 U.S.C. § 2250). Guzman also observed that the Attorney General's power under § 16913(d) would extend only "to the limited class of individuals who were convicted of covered sex offenses prior to SORNA's enactment; the Attorney General cannot do much more than simply determine whether or not SORNA applies to those individuals." Id.
United States v. Guzman did not conclusively construe the first clause of § 16913(d), concluding that regardless of whether it confers broad or narrow authority, it is a permissible delegation that satisfies the "intelligible principle" test. See 591 F.3d at 92-93.
In reaching the same conclusion, a panel of the Eleventh Circuit relied upon the detailed statutory specifications identified in Guzman, and also noted that "Congress has undeniably provided the Attorney General with a policy framework in § 16901 to guide his exercise of discretion under § 16913(d)," by building the following statement of legislative purpose into the statute: "`In order to protect the public from sex offenders and offenders against children, . . . Congress in this chapter establishes a comprehensive national system for the registration of those offenders.'" United States v. Ambert, 561 F.3d 1202, 1213-14 (11th Cir. 2009) (quoting 42 U.S.C. § 16901).
I agree that the SORNA provisions cited in Guzman and Ambert indicate how persons to whom the statute applies may satisfy its requirements or be prosecuted for failing to do so. But I respectfully fail to see what guidance these provisions provide to the Attorney General in exercising legislative authority to decide whether or not SORNA's registration requirements should apply to prior offenders at all. See, e.g., United States v. Madera, 528 F.3d 852, 858 (11th Cir. 2008) (adopting broad interpretation of § 16913(d)'s delegation, and noting Attorney General's " unfettered discretion to determine both how and whether SORNA was to be retroactively applied" (first emphasis added)). Nor does the statutory purpose of creating a "comprehensive national system" for registration, 42 U.S.C. § 16901; see United States v. Ambert, 561 F.3d at 1213-14, hint as to what factors, if any, might counsel against applying the Act's registration requirements to prior offenders. The Attorney General could simply flip a coin, and thereby make the more than 500, 000 persons convicted of sex offenses before July 27, 2006, subject to SORNA's registration requirements — or not. I am not alone in noting such a delegation concern with the construction of § 16913(d) urged by defendant:
Without any discernible principle to guide him or her in the statute, the Attorney General could, willy nilly, a) require every single one of the estimated half million sex offenders in the nation to register under SORNA, b) through inaction, leave each of those half million offenders exempt from SORNA, c) do anything in between those two extremes, or d) change his or her mind on this question, making the statute variously prospective and retroactive, as administrative agencies are normally entitled to do when Congress delegates interpretive questions to them.United States v. Hinckley, 550 F.3d 926, 948 (10th Cir. 2008) (Gorsuch, J., concurring) (citation omitted).
I do not think these concerns are dispelled by the fact that the Attorney General's authority under § 16913(d) would apply only "to a particular, capped class of offenders." United States v. Ambert, 561 F.3d at 1214; see also United States v. Guzman, 591 F.3d at 93 (noting authority applies only to "limited class of individuals"). A delegation of authority to determine the potential criminal exposure of half a million people cannot be deemed narrow. In any event, the non-delegation doctrine requires, not that the delegated authority be narrow in the scope of its application, but rather that Congress provide an "intelligible principle" to guide its exercise. I do not think SORNA provides such a principle.
The identified constitutional concern with defendant's construction of § 16913(d) is further aggravated by the fact that it presumes that Congress, without providing any meaningful guidance, delegated to the Attorney General, the very officer charged with executive power to enforce the criminal laws, the legislative power unilaterally to pronounce the scope of a law with criminal consequences. Cf. Buckley v. Valeo, 424 U.S. 1, 139, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) ("Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions." (internal quotation marks omitted)); Mistretta v. United States, 488 U.S. at 391 n. 17, 109 S.Ct. 647 (recognizing that uniting power to prosecute and power to sentence in executive would raise constitutional concerns). This I expect is why the Supreme Court has suggested, even if not decided, that "greater congressional specificity" might be required of delegations in the criminal context. Touby v. United States, 500 U.S. at 165-66, 111 S.Ct. 1752; see also United States v. Dhafir, 461 F.3d 211, 216 (2d Cir. 2006). Unlike the delegation of legislative authority implicit in defendant's urged construction, delegations that have previously been upheld in the criminal context have been accompanied by rigorous, "meaningful constraints" not only on the scope of the delegated authority, but also on the manner of its exercise. Touby v. United States, 500 U.S. at 166, 111 S.Ct. 1752 (upholding delegation where Attorney General was required, inter alia, to determine exercise of authority was "`necessary to avoid an imminent hazard to the public safety'" (quoting 21 U.S.C. § 811(h)(1))); see also United States v. Dhafir, 461 F.3d at 216 (upholding delegation where "`the authorities granted to the President . . . may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared'" (brackets omitted) (quoting 50 U.S.C. § 1701(b))).
In Touby, Congress had delegated authority to the Attorney General to schedule a substance as "controlled" on a temporary basis, pending completion of the requirements for permanent scheduling. See Touby v. United States, 500 U.S. at 162-64, 111 S.Ct. 1752. Petitioners, who had been convicted of manufacturing a temporarily scheduled drug, conceded that Congress had set out an "intelligible principle" to guide exercise of the Attorney General's discretion, but argued "that something more than an `intelligible principle' is required when Congress authorizes another Branch to promulgate regulations that contemplate criminal sanctions." Id. at 165-66, 111 S.Ct. 1752. The Court found it unnecessary to decide this issue, holding that the delegation "passes muster even if greater congressional specificity is required in the criminal context," because the statute "meaningfully constrains the Attorney General's discretion" by requiring a number of findings in support of a temporary scheduling, including that it be "`necessary to avoid an imminent hazard to the public safety.'" Id. at 166, 111 S.Ct. 1752 (quoting 21 U.S.C. § 811(h)(1)).
At issue in Dhafir was a delegation of authority to the President in the International Emergency Economic Powers Act ("IEEPA"), 50 U.S.C. § 1701 et seq., to issue regulations, the violation of which triggered criminal penalties, in response to declared international threats. See United States v. Dhafir, 461 F.3d at 213. We held that the IEEPA constrained the President's exercise of such authority in a manner comparable to Touby and, further, that the statute related to foreign affairs, "an area in which the President has greater discretion" because of the authority vested exclusively in the executive by Article II. Id. at 216-17.
In sum, while Guzman plainly controls our review, I continue to have reservations concerning the substantial delegation concerns raised by defendant's proposed interpretation of SORNA. The court conclusively eliminates these concerns today by answering the question left open in Guzman, holding that the text and structure of the statute clearly do not support defendant's construction and, in fact, signal Congress's clear intent for SORNA's registration requirements to take effect on the date of its enactment even as to persons previously convicted of predicate sex offenses. I note simply that even if we had identified any statutory ambiguity, the rule of constitutional avoidance would further prompt me to construe § 16913(d) as the court does today to avoid possible constitutional infirmities in defendant's construction. See, e.g., Clark v. Martinez, 543 U.S. at 381, 125 S.Ct. 716 (describing constitutional avoidance as "tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts"); see also United States v. Hinckley, 550 F.3d at 948 (Gorsuch, J., concurring) ("The Supreme Court tells us that we ought to construe statutes to avoid problems of potential constitutional dimension when a plausible alternative interpretation exists. And plainly a reasonable alternative [interpretation of § 16913(d)] exists in this case far more consonant with every indicator of congressional intent." (citation omitted)). Thus, that rule only reinforces my decision to affirm.
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