United States v. Phasung Lu Baccam ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3242
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*
United States of America, *
*
Plaintiff – Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Phasung Lu Baccam, *
*
*
Defendant – Appellant. *
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Submitted: April 14, 2009
Filed: April 28, 2009
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Before MURPHY, HANSEN, and BYE, Circuit Judges.
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MURPHY, Circuit Judge.
Phasung Lu Baccam was convicted under 18 U.S.C. § 2250 for failing to
register as a sex offender after he moved to Arkansas from California where he had
been convicted of a sex offense under state law. The district court1 denied his motion
to dismiss the indictment on the ground that he had not received notice of the federal
sex offender registration law. Baccam appeals, and we affirm.
1
The Honorable Jimm Larry Hendren, United States District Judge for the
Western District of Arkansas.
In 1996 Baccam was convicted in California of sexual contact with a minor
female. Under California law this conviction required him to maintain registration as
a sex offender throughout his lifetime. Cal. Penal Code § 290(b) (Deering 2009).
Two "Notice of Sex Offender Registration Requirement" forms that Baccam signed
on February 8, 1999 and November 10, 2003 not only detailed his registration
requirements within California, but also notified him that if he moved to another state
he would need to register in that state within ten days and notify the law enforcement
agency with which he was last registered of his change of residence. After Baccam
was arrested in California for failure to update his registration he signed another form
on September 19, 2005. That form required him to initial his acknowledgment that
he was required to register as a sex offender in any state to which he might relocate.
In the summer of 2007 Baccam moved to Arkansas but did not register as a sex
offender. When he was arrested in September 2007 for traffic violations, officials
discovered that he had not registered as a sex offender in their state as required by
California, Arkansas, and federal law. He was later indicted under the Sex Offender
Registration and Notification Act (SORNA), 18 U.S.C. § 2250, for his failure to
register.
SORNA is part of the Adam Walsh Child Protection and Safety Act of 2006,
Pub. L. No. 109-248, 120 Stat. 590 (2006). When enacting the law, Congress declared
that "in order to protect the public from sex offenders and offenders against children,
and in response to the vicious attacks by violent predators," it was establishing a
"comprehensive national system for registration of those offenders." 42 U.S.C. §
16901 (2008).2 To improve coordination and information sharing between
2
During the Senate consideration of the Act, Senator Orrin Hatch pointed out
that "[l]aws regarding registration for sex offenders have not been consistent from
State to State," and that there may have been as many as "150,000 sex offenders who
are not complying." 152 Cong. Rec. S8012-02, *S8013 (2006) (statement of Sen.
Hatch).
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jurisdictions, SORNA encourages each state to maintain a sex offender registry
conforming to national standards and ties the receipt of certain federal funds to
compliance with those standards. Id. §§ 16912, 16925(a).
SORNA requires a sex offender to register in each jurisdiction where he or she
resides, works, or is a student. Id. § 16913(a). Within three business days of any
change of name, residence, employment, or student status, the offender must appear
in person in either the old or new state to update his or her registration. Id. §
16913(c). That state must then transmit the information to other places where the
offender is required to register. Id. SORNA also created a federal criminal offense
for a sex offender who travels in interstate commerce and knowingly fails to register
or update a registration as required by federal law. 18 U.S.C. § 2250(a). The statute
applies to sex offenders convicted under federal law even when they do not travel in
interstate commerce. Violation of § 2250(a) carries a prison sentence of up to ten
years.
Baccam moved to dismiss the indictment charging him under § 2250(a). After
the district court denied the motion, Baccam entered a conditional guilty plea and was
sentenced to twenty four months. We review de novo the denial of a motion to
dismiss an indictment. See United States v. Cvijanovich, 556 F.3d 857, 862 (8th Cir.
2009).
Baccam contends that he could not, as a matter of law, knowingly fail to
register under SORNA because he was never told of his specific registration
obligations under that law. A provision in SORNA entitled "Duty to notify sex
offenders of registration requirements and to register" states that "[a]n appropriate
official shall . . . inform the sex offender of the duties of a sex offender under this title
and explain those duties." 42 U.S.C. § 16917(a). Baccam contends that because there
is no evidence that he was ever informed about his duties under SORNA, which had
been enacted in 2006 after he had signed the California forms informing him of his
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duty to register if he moved to a different state, the government cannot prove an
element of the offense and the indictment should have been dismissed.
The government argues that the scienter requirement in § 2250(a) does not
require that Baccam specifically knew he was violating SORNA, but only that he
knew he was violating a legal registration requirement upon relocating. It urges that
Baccam knew he was required to register in a new state because of the information
provided him on the California forms he had signed in 1999, 2003, and 2005.
We have previously had occasion to rule on challenges to the application of
SORNA. In United States v. May, 535 F.3d 912 (8th Cir. 2008), we addressed a
number of challenges to SORNA and specifically to § 2250(a). We held that §
2250(a) was authorized by the Commerce Clause, that SORNA applies to sex
offenders convicted prior to the statute's passage, and that such application does not
violate the Ex Post Facto Clause. Id. at 918–22. We also rejected May's argument
that his prosecution under SORNA violated due process because he had not received
notice of the statute's registration requirements. Id. at 921. Then, in United States v.
Howell, 552 F.3d 709, 717 (8th Cir. 2009), we concluded that the § 16913 registration
requirement itself was also a constitutional exercise of Congress's commerce power.
The defendant in May raised a due process argument similar to Baccam's claim
that he had no notice of SORNA's requirements, and we observed there that May
"admitted he knew, based on previously enacted state laws, he had an obligation to
register and keep his registration current when moving between jurisdictions." 535
F.3d at 921. Thus, there was no constitutional infirmity in his conviction. Other
courts of appeals have also rejected lack of notice due process challenges to SORNA
when the defendant had received notice of state law registration requirements. See,
e.g., United States v. Dixon, 551 F.3d 578, 584 (7th Cir. 2008); United States v.
Hinckley, 550 F.3d 926, 938–39 (10th Cir. 2008); United States v. Samuels, No. 08-
5537, 2009 WL 877698, at *3 (6th Cir. Apr. 2, 2009).
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Baccam states that his appeal is not controlled by May because that case
addressed only the notice required by due process. He contends that Congress
provided for greater notice than the Constitution requires. In essence he argues that
because SORNA requires officials to inform sex offenders about the statute's
requirements, "the general rule that ignorance of the law . . . is no defense to criminal
prosecution" does not apply. See Cheek v. United States, 498 U.S. 192, 199 (1991).
He cites no authority for the argument that a lack of § 16917 notice is a defense to
prosecution under § 2250(a). Numerous district courts have rejected this defense.
E.g., United States v. Trent, 568 F. Supp. 2d 857, 866–67 (S.D. Ohio 2008); United
States v. LeTourneau, 534 F. Supp. 2d 718, 722–23 (S.D. Tex. 2008); United States
v. Gould, 526 F. Supp. 2d 538, 544–45 (D. Md. 2007); United States v. Adkins, 2007
U.S. Dist. LEXIS 90737, *14–15 (N.D. Ind. Dec. 7, 2007); United States v. Lovejoy,
516 F. Supp. 2d 1032, 1037–38 (D.N.D. 2007).
We conclude that it would be inconsistent with SORNA's purpose of protecting
the public by strengthening the system of sex offender registration not to give effect
to state law notifications that relocation requires registration in the new jurisdiction.
There is no reason to believe that the SORNA notice provision in § 16917 was
intended to dilute the effect of state notice requirements, given the stated
congressional intent to protect the public by establishing a comprehensive national
system for registration of sex offenders. 42 U.S.C. § 16901.
We conclude that Baccam had adequate notice of his registration obligations
based on the information provided him in the California registration forms, even if
that notice did not explain that failure to register would be a violation of federal law
as well as state law. Baccam does not deny that he knew that he needed to register in
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Arkansas. Had he done so, he would have received notification of SORNA's
requirements, and would have been in compliance with federal law.3
Accordingly, we affirm the judgment of the district court.
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3
SORNA requires a sex offender to register within three days of moving to a
new state, while Baccam was informed in California that he needed to register within
ten days. This difference is immaterial given the fact that Baccam did not register for
several months after moving to Arkansas.
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