United States District Court, N.D. Iowa, Cedar Rapids Division
R. READE JUDGE
matter before the court is Defendant Ricky Lynn Thomas's
“Motion to Dismiss” (“Motion”)
(docket no. 18).
RELEVANT PROCEDURAL HISTORY
February 22, 2018, a grand jury returned a one-count
Indictment (docket no. 2) charging Defendant with failure to
register as a sex offender, in violation of 18 U.S.C. §
2250(a). See Indictment at 1-2. On April 2, 2018,
Defendant filed the Motion. On April 3, 2018, the government
filed a Resistance (docket no. 19). The matter is fully
submitted and ready for decision.
STANDARD OF REVIEW
Rule of Criminal Procedure 12(b) authorizes pretrial motions
to present “any defense, objection, or request that the
court can determine without a trial on the merits.”
Fed. R. Crim. P. 12(b)(1). “A motion is capable of
pretrial determination ‘if trial of the facts
surrounding the commission of the alleged offense would be of
no assistance in determining the validity' of the
motion.” United States v. Turner, 842 F.3d
602, 604-05 (8th Cir. 2016) (quoting United States v.
Covington, 395 U.S. 57, 60 (1969)). “[T]o be
valid, an indictment must allege that the defendant performed
acts which, if proven, constitute the violation of law for
which he is charged. If the acts alleged in the indictment do
not constitute a violation of the law, the indictment is
properly dismissed.” United States v.
Polychron, 841 F.2d 833, 834 (8th Cir. 1988). “The
defense of failure of an indictment to charge an offense
includes the claim that the statute apparently creating the
offense is unconstitutional.” United States v.
Seuss, 474 F.2d 385, 387 n.2 (1st Cir. 1973).
is charged with failing to register as a sex offender as
required by the Sex Offender Registration and Notification
Act (“SORNA”), in violation of 18 U.S.C. §
2250(a). See Indictment at 1-2. In the Motion,
Defendant argues that the court should find that SORNA
“violate[s] the United States Constitution's
Non-Delegation Doctrine.” Brief in Support of Motion
(docket no. 18-1) at 1-2. He argues that the court should
find that SORNA is unconstitutional and dismiss the
Indictment. Id. at 3.
United States Constitution vests “[a]ll legislative
[p]owers” in Congress. U.S. Const. art. I § 1.
Congress may not “abdicate or . . . transfer to others
the essential legislative functions with which it is thus
vested.” Panama Ref. Co. v. Ryan, 293 U.S.
388, 421 (1935). Congress is permitted, however, to delegate
some authority to other persons or agencies if it provides
“an intelligible principle to which the person or body
authorized to [exercise the delegated authority] is directed
to conform.” Mistretta v. United States, 488
U.S. 361, 372 (1989) (alteration in original) (quoting
J.W. Hampton, Jr. & Co. v. United States, 276
U.S. 394, 409 (1928)). “The Supreme Court has further
clarified that Congress provides an intelligible principle
‘if Congress clearly delineates the general policy, the
public agency which is to apply it, and the boundaries of
this delegated authority.'” United States v.
Kuehl, 706 F.3d 917, 920 (8th Cir. 2013) (quoting
Am. Power & Light Co. v. Sec. & Exch.
Comm'n, 329 U.S. 90, 105 (1946)).
authorizes the United States Attorney General to determine
whether its provisions apply to sex offenders convicted
before its enactment. See 34 U.S.C. § 20913(d).
Defendant argues that “the Attorney General has not
received any guidance from Congress regarding how the
Attorney General should exercise this delegation, ”
and, thus, that the delegation lacks an “intelligible
principle, ” rendering SORNA unconstitutional. Brief in
Support of Motion at 2-3. Defendant's argument is
contrary to binding authority. The Eighth Circuit has already
found that “SORNA provides the Attorney General with an
intelligible principle, and is a valid delegation of
legislative authority.” Kuehl, 706 F.3d at
920. The Eighth Circuit determined that “the
congressional policy of SORNA, ‘to protect the public
from sex offenders and offenders against children' [is] .
. . sufficient to provide an intelligible principle for
delegation.” Id. (quoting 42 U.S.C. §
16901 (now codified at 34 U.S.C. § 20913)).
offers no argument that the court is not bound by
Kuehl. Indeed, Defendant acknowledged the binding
nature of Kuehl in a prior motion, but requested
permission to file the Motion untimely because the United
States Supreme Court has recently granted certiorari in a
case that addressed whether SORNA's “delegation of
authority to the [A]ttorney [G]eneral. . . violates the
non-delegation doctrine.” Motion to File Untimely
Motion to Dismiss (docket no. 16) at 1; see also United
States v. Grundy, 695 Fed.Appx. 639 (2d Cir. 2017),
cert. granted, 86 U.S.L.W. 3438 (U.S. Mar. 5, 2018)
(17-6086). The granting of certiorari does not disturb the
binding nature of Kuehl. Absent a decision that
overturns Kuehl, Defendant's argument is
“foreclosed by Eighth Circuit precedent.”
United States v. Manning, 786 F.3d 684, 686 (8th
Cir. 2015). Accordingly, the court shall deny the Motion.