4/4/09 – Lawyer: Laws faulty, charges should be dismissed
Texarkana Gazette
April 4, 2009
By Lynn LaRowe
Lawyer: Laws faulty, charges should be dismissed
A motion was filed Friday to dismiss charges against a follower of Tony Alamo Ministries who was arrested on ministry property for allegedly failing to register as a sex offender.
Jonathon Patrick Curry was convicted in 2002 of attempted lewdness with a child below the age of 14 in Clark County, Nevada.
Because of the nature of his conviction, Curry was to be supervised by state parole officials for life and register as a sex offender. But Curry reportedly didn’t register in Nevada after his Nov. 20, 2007 release from state prison. Instead, he allegedly moved into a room in a warehouse on Alamo Ministry property in Fort Smith, Ark.
Curry, 49, was jailed in January and formally indicted in February by a federal grand jury in the Western District of Arkansas for violating federal sex offender registration laws.
In his motion federal public defender Bruce Eddy argued that the charges should be dismissed because the laws under which he was indicted is are faulty.
Eddy alleged that SORNA, the federal Sex Offender Registration and Notification Act and the Adam Walsh Act don’t meet the “commerce clause” criteria necessary for an illegal act to become a violation of
federal law.
Unless the statutes somehow regulates interstate commerce, they cannot be enforced by the federal government, the motion said.
Eddy quoted a ruling in a similar case in another federal district.
“As the government notes, the Adam Walsh Act was enacted with a commendable goal: to protect the public from sex offenders,” the motion said. “However, a worthy cause is not enough to transform a state concern (sex offender registration) into a federal crime.”
Eddy noted in the motion that the Eighth Circuit Appellate Court, which addresses questions arising from district courts in the Western District of Arkansas, has found SORNA is good law. But, he argued, the matter may wind up before the U.S. Supreme Court and the motion would allow Curry to appeal later.
Eddy also claims Curry’s Fifth Amendment right to due process was been violated.
“Although Mr. Curry was aware of Nevada’s registration requirements, he did not receive fair notice that the comprehensive, federal sex offender statute with its severe criminal penalties applied to him,” the motion said. “Mr. Curry’s registration in Nevada does not constitute sufficient notice of a punitive federal statute which is much stricter in punishment.”
Finally, Eddy argued that Congress gave too much power to the nation’s chief prosecutor, the U.S. attorney general, when it enacted SORNA.
Eddy argued that the law allows the attorney General to determine to whom the law applies and who should be prosecuted . “This is precisely the type of delegation that the Framers would have viewed as impermissible,” the motion said.
U.S. District Judge Robert Dawson has scheduled Curry for an April 15 jury trial in Fort Smith.
If convicted, Curry faces up to 10 years in a federal prison.