One Sausage, Different Lengths? Panel Agrees Necessary & Proper Clause Authorizes SORNA's Failure-to-Register Offense for Those With Federal Priors, But Disagrees As to Why

United States v. Kebodeaux, No. 08-51185 (5th Cir. Feb. 15, 2011) (per curiam) (Stewart, Haynes; Dennis, concurring in the judgment)

(Disclosure: My office represents Mr. Kebodeaux, so I'm limiting this post to just a summary of the two opinions, without any analysis of their merits.)

As you know, the Sex Offender Registration and Notification Act—or SORNA, to its friends—contains a criminal sanction to enforce the registration requirement.  The offense is found in 18 U.S.C. § 2250, and covers two classes of offenders: 1) those with state priors who travel in interstate or foreign commerce and fail to register or update their registration, and 2) those with federal priors who simply fail to register or update, even if they never leave their kitchens.  The Fifth Circuit, in United States v. Whaley, rejected a commerce-clause challenge to the portion of § 2250 that covers sex offenders with state priors.  But is § 2250 constitutional with regard to those with federal priors?  That's the question presented in Kebodeaux.

Kebodeaux was convicted of a sex offense under the UCMJ.  His sentence did not include a supervised release term.  After serving his prison term, he was dishonorably discharged from the Air Force.  Kebodeaux later moved to El Paso, where he complied with SORNA by registering as a sex offender.  Several months later, police found Kebodeaux in San Antonio.  He had not updated his registration.  The Government charged him with violating § 2250 by virtue of being a sex offender with a federal prior who failed to update his registration when he moved intra-state.  Kebodeaux pleaded guilty conditionally.

On appeal, Kebodeaux argued that the portion of § 2250 under which he was convicted is an invalid exercise of Congress's power to regulate interstate commerce because it reaches purely intrastate activity.  The court of appeals rejected Kebodeaux's challenge, but disagreed on the reasoning.  The panel majority, relying on the Supreme Court's decision in United States v. Comstock, held that the challenged portion of § 2250 is authorized by the Necessary and Proper Clause.  The concurrence said, and I'm paraphrasing here: "No, it's valid under the Necessary and Proper Clause.  See Comstock."

Confused?  Let's take a closer look.

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Intertubes = Interstate Commerce

United States v. Barlow, No. 08-60556 (5th Cir. May 6, 2009) (Wiener, Dennis, Clement)

Barlow was convicted of "(1) attempting to persuade or entice a person he believed to be a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b), and (2) sending obscene material to a person he believed to be younger than 16 years old in violation of 18 U.S.C. § 1470." On appeal, he argued, among other things,

that the government failed to establish the requisite interstate nexus to support either charge. The testimony of a single FBI agent, with no apparent firsthand knowledge, that Yahoo! had no servers in Mississippi was inadequate to establish that the emails and pictures traveled in interstate commerce, according to Barlow’s argument.

Barlow misunderstands the statutes. Neither § 2422(b) nor § 1470 requires proof of travel across state lines. Section 2422(b) requires the use of “any facility or means of interstate or foreign commerce.” Section 1470 requires the same with the added specific that the obscene material be “transfer[red]” using that “facility or means.” In 2009, it is beyond debate that the Internet and email are facilities or means of interstate commerce. And, it is undisputed that Barlow conducted his entire affair with Rebecca online — that is, using the Internet — and sent her obscene material by email. The interstate nexus requirements of the statutes were satisfied irrespective of the agent’s testimony.

(emphasis added). Bear in mind that the court was reviewing for plain error, although it doesn't sound like the result would have been any different if Barlow had raised the argument below.

Another eyebrow-raising aspect of the case:

In August 2006, Barlow, then 39 years old and living in Lumberton, Mississippi, spied an online picture and profile of a teenage Mississippi girl named Rebecca and emailed her, introducing himself and asking how old she was. Rebecca responded that she was 14 years old, though in reality, she was a middle-aged, married paralegal from Dixie, Mississippi, named Ginny English (“English”). English freelanced for law enforcement by posing online as an underage girl to attract potential sex offenders.

Barlow was arrested when he showed up for an in-person meeting he arranged with "Rebecca" after about a year of e-correspondence (which included sexually explicit conversation and photos).