Filed: Jun. 02, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5003 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. CHAD TALADA, Defendant – Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Thomas E. Johnston, District Judge. (5:08-cr-00269-1) Submitted: May 14, 2010 Decided: June 2, 2010 Before KING, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Mary Lou Newberger, Federal Public Defender,
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5003 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. CHAD TALADA, Defendant – Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Thomas E. Johnston, District Judge. (5:08-cr-00269-1) Submitted: May 14, 2010 Decided: June 2, 2010 Before KING, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Mary Lou Newberger, Federal Public Defender, ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5003
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHAD TALADA,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:08-cr-00269-1)
Submitted: May 14, 2010 Decided: June 2, 2010
Before KING, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Edward H. Weis, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, Blaire L. Malkin, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chad Talada, a convicted sex offender, was charged
with one count of failing to update his registration as a sex
offender under the criminal provision of the Sex Offender
Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250
(2006). Pursuant to a written plea agreement, Talada pled
guilty to the charged offense, reserving his right to appeal the
district court’s denial of his motion to dismiss the indictment.
He was sentenced to twenty-four months’ imprisonment and a
seventy-year term of supervised release. Talada now appeals,
and for the following reasons, we affirm.
On appeal Talada raises three issues. First, Talada
argues the criminal provision of SORNA, 18 U.S.C. § 2250,
exceeds Congress’s power under the Commerce Clause, to the
extent that it limits his right to travel. Second, he claims
the Attorney General’s issuance of regulations making the
criminal provision of SORNA retroactive violates the
Administrative Procedure Act (“APA”), specifically 5 U.S.C.
§ 553 (2006). Last, Talada maintains the district court abused
its discretion by requiring Talada, as a condition of supervised
release, to submit to polygraph examinations without ordering
that the results not be made public.
As Talada readily concedes, the issue of whether the
Attorney General’s issuance of the regulations making § 2250
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retroactive violates the APA has been addressed by this court in
United States v. Gould, 568 F.3d 459, 470 (4th Cir. 2009), cert.
denied,
130 S. Ct. 1686 (2010). In Gould, we held that “the
Attorney General had good cause to invoke the exception to
providing the 30-day notice” required by § 553, and therefore
the issuance of the regulations did not violate the APA.
Id.
Accordingly, Talada’s argument is foreclosed by our holding in
Gould. See Scotts Co. v. United Indus. Corp.,
315 F.3d 264, 271
n.2 (4th Cir. 2002) (“[A] panel of this court cannot overrule,
explicitly or implicitly, the precedent set by a prior panel of
this court. Only the Supreme Court or this court sitting en
banc can do that.” (internal quotation marks omitted)).
Talada also argues that “the only ‘hook’ invoking
federal jurisdiction is his movement from New York to West
Virginia,” and the only “criminal act triggering liability is
the failure to comply with state registration regimes, none of
which, at the time of Talada’s arrest, fully complied with the
requirements of SORNA.” Thus, Talada concludes that the
criminal sanction under SORNA, “with such a tangential
relationship to legitimate federal interests, violates
Congress’s authority under the Commerce Clause, as circumscribed
by [his] right to interstate travel.”
In Gould, this court held that § 2250(a), which
requires that a sex offender must have been convicted of a
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qualifying sex offense and, after conviction, traveled to
another state and failed to register or maintain his
registration, does not violate the Commerce Clause. Gould, 568
F.3d at 471-75. Talada asserts that Gould is not controlling
because “the defendant in Gould raised the bare issue of whether
the Commerce Clause allowed for the regulation of ‘purely local
intrastate activity that has nothing to do with commerce or any
type of economic enterprise,’” and that Gould, in challenging
SORNA, did not raise the issue of whether Congress’s authority
under the Commerce Clause impinged on the defendant’s
fundamental right to travel. Talada states that Gould was
convicted under § 2250(a)(2)(A), criminalizing the failure to
register by one who has been convicted as a sex offender in the
District of Columbia, and not under the same provision of § 2250
as Talada, i.e., § 2250(a)(2)(B), criminalizing the failure to
register by one who “travels in interstate or foreign commerce.”
According to Talada, the Commerce Clause issue raised by Gould’s
conviction, therefore, is distinct from the issue he raises.
First, despite Talada’s contentions, this court
explained in a footnote in Gould that while § 2250(a) “justifies
federal jurisdiction for a SORNA failure-to-register offense
also by reason of a defendant’s conviction for a sex offense
under federal or District of Columbia law,” and that Gould
satisfied this basis for jurisdiction, this court “need not
4
address it because Gould traveled in interstate commerce.”
Gould, 568 F.3d at 470 n.5. Second, we expressly discussed in
Gould the interaction of travel and Congress’s power under the
Commerce Clause, explaining that “Congress . . . has the
authority to regulate persons in interstate commerce, especially
persons who move from the State of conviction to another State
and there fail to register, as they use instrumentalities of
interstate commerce.”
Id. at 471 (internal quotation marks
omitted). Moreover, SORNA does not criminalize a sexual
offender simply for engaging in interstate travel. Rather,
“Congress, motivated by a desire to prevent sex offenders from
traveling among the States to avoid state registration, used its
commerce power to enact a national program mandating stronger
and the more comprehensive registration system, as contained in
SORNA.”
Id. at 474. Thus, although a SORNA violation under
§ 2250(a)(2)(B) requires interstate travel, it also requires
“the act of failing to register.”
Id. at 470. As a result,
Talada’s argument that Gould does not control this issue is
without merit.
Finally, Talada argues that the district court abused
its discretion by imposing a condition of supervised release
requiring him to submit to polygraph examinations as part of a
sex offender treatment program without requiring that the
results of those examinations remain confidential. “District
5
courts have broad latitude with regard to special conditions of
supervised release, and we review the [district] court’s
decision to impose a condition of supervised release for an
abuse of discretion.” United States v. Holman, 532 F.3d 284,
288 (4th Cir. 2008) (internal quotation marks omitted).
This court specifically addressed the use of polygraph
tests as a condition of supervised release in United States v.
Dotson, 324 F.3d 256, 261 (4th Cir. 2003). In Dotson, we upheld
the use of polygraph testing as a condition of supervised
release because the testing was to be used “as a potential
treatment tool upon Dotson’s release from prison,” and not to
“gather[] evidence to inculpate or exculpate Dotson.”
Id.
While Talada concedes that imposition of the condition is
generally reasonable and not an abuse of discretion, he notes
that, in Dotson, the district court had taken the added measure
of directing that the results of any polygraph testing not be
made public. Talada argues that the potential for disclosure in
his case, where no such specification was made, infringes on
his Fifth Amendment right to be free from self-incrimination.
Here, the district court made clear at sentencing,
like in Dotson, that “polygraph examinations are a part of . . .
an overall program of treatment and protection of the public,”
and that they are “a tool for supervision of the defendant for
an overall treatment scheme and program.” The court further
6
noted that “[w]e all know they are not admissible,” and that the
use of polygraphs as a special condition for supervised release
was “appropriate as set forth in the standard conditions. . . .”
To the extent Talada suggests that potential disclosure of the
results of the testing could infringe on his Fifth Amendment
right to be free from self-incrimination, such a claim at this
juncture is merely speculative. See United States v. Zinn, 321
F.3d 1084, 1092 (11th Cir. 2003) (“If and when Appellant is
forced to testify over his valid claim of privilege, he may
raise a Fifth Amendment challenge. In the meantime, we can only
decide whether requiring polygraph testing as a condition of
supervised release generally violates the Fifth Amendment so as
to amount to plain error. We hold it does not.”).
Accordingly, we affirm Talada’s conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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