CA- Sacramento judge finds sex offender law unconstitutional

See earlier story:

2-14-2009 California:

In only the third such ruling in the nation, a Sacramento judge has found to be unconstitutional a statute that makes it a federal crime for someone to fail to register as a sex offender and relocate from one state to another.

U.S. District Judge Lawrence K. Karlton found that, in enacting the 2006 Sex Offender Registration and Notification Act, "Congress overstepped its authority under the (Constitution's) commerce clause."

Karlton made rulings this week in two prosecutions and threw them out, saying SORNA does not meet the U.S. Supreme Court's standard for congressional jurisdiction over interstate commerce.

Federal prosecutors immediately filed notices they will appeal and asked the judge to keep the two defendants locked up until the appeals are resolved.

Karlton has set a Wednesday hearing on those requests.

"We believe the court's ruling to be in error, and are reviewing potential appeal" to the 9th U.S. Circuit Court of Appeals, said acting U.S. Attorney Larry Brown. As with all federal appeals, this one must be approved by the solicitor general, but Brown said he expects no resistance.

"Circuit courts and district courts have upheld the statute as valid," he noted. "The judge is in the vast minority in making this judgment.

"Societally, it is in our collective interest to keep a watchful eye on the whereabouts of sexual predators," Brown said.

At least 18 district judges have upheld SORNA, while only two others have found it is at cross-purposes with the commerce clause. Of the 12 federal appellate circuits, only two – the 8th and 10th – have addressed the issue, and both upheld the statute.

The defendants in the Sacramento cases are Mark Anthony Valverde, 50, and Nedde Max Murphy Jr., 41.

Valverde pleaded guilty in 2002 in Solano Superior Court to 11 counts of sexual abuse of a child, a child pornography count and one count of furnishing marijuana to a child. He was sentenced to 12 years in prison.

He was paroled Jan. 6, 2008, but instead of reporting to his Vallejo parole officer to register as a sex offender, he fled to his grandmother's house in Liberty, Mo., where parole agents found him.

He was returned to a California prison but soon was arrested by deputy U.S. marshals and brought to Sacramento to face a federal grand jury indictment charging him with a SORNA violation. It carries a maximum sentence of 10 years in prison.

Murphy was convicted in Reno in 1989 of lewdness with a child and sentenced to a five-year prison term. The sentence was suspended, and he was placed on probation. He registered as a sex offender in Nevada, but had a spotty record of keeping it up-to-date, which led to a stretch in the Elko County jail.

He later showed up in Burley, Idaho, and registered there in December 2007. He dropped off the grid in May.

Murphy was traced through Social Security Administration records to Brownsville, a dent in the road in Yuba County. He had not registered in California and was arrested and charged in December under SORNA.

Karlton dismissed the Valverde case Monday and the Murphy case Thursday. He cited a 1995 Supreme Court opinion – United States v. Lopez – that breaks into three categories the scope of congressional power to regulate commerce. SORNA does not fit any of the three, the judge ruled.

Like the statute struck down in the high court's 1995 ruling, SORNA does not "address an economic activity that could affect the supply or demand of or ability to regulate a good in the national market," Karlton wrote.

Under SORNA, he wrote, a person may be prosecuted for failing to register in his home state and then establishing residence and registering in another state. Harm would be confined to one state.

"Were this a sufficient jurisdictional element, there would be no limit to Congress' ability to penalize any crime whatsoever, so long as the defendant at some point in the course of his life traveled across state lines," the judge wrote. "This appears to be a plain usurpation of the state's police power."

Assistant U.S. Attorney Kenneth Melikian wrote in a brief opposing dismissal of the Valverde case that SORNA was meant to remedy the shortcomings of a "rather loosely integrated network of state sex offender registration systems (that) failed to adequately account for the public safety risk created by non-compliant sex offenders who move from state to state."

Melikian wrote that it was estimated in 2006 that the whereabouts of 100,000 of the more than 500,000 convicted sex offenders who had registered with the states were unknown.

Travel from one state to another "is inherently national and affects commerce," the prosecutor argued. ..News Source.. by Denny Walsh