19-1895-cr
United States v. Salvador Diaz


                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                       August Term 2019

                    (Argued: June 24, 2020           Decided: July 22,2020)

                                      Docket No. 19-1895-cr



                                   UNITED STATES OF AMERICA,

                                                          Appellee,

                                                v.

                                        SALVADOR DIAZ,

                                                          Defendant-Appellant.



                     ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                         FOR THE SOUTHERN DISTRICT OF NEW YORK




Before:
                           CALABRESI, CHIN, and CARNEY, Circuit Judges.



                   Appeal from a judgment of the United States District Court for the

Southern District of New York (Caproni, J.) convicting defendant-appellant of
failing to register as a sex offender under the Sex Offender Registration and

Notification Act in violation of 18 U.S.C. § 2250(a). Defendant-appellant

contends that the district court erred when it precluded him from collaterally

attacking his predicate conviction, rejected his argument that the statute is

unconstitutional, and denied his motion to dismiss for improper venue.

             AFFIRMED.

             Judge CALABRESI CONCURS in a separate opinion.




                          DANIEL NESSIM, Assistant United States Attorney
                               (Elinor Tarlow, David Abramowicz, Assistant
                               United States Attorneys, on the brief), for Audrey
                               Strauss, United States Attorney for the Southern
                               District of New York, New York, New York, for
                               Appellee.

                          ROBIN C. SMITH (Leean Othman, on the brief), Law Office
                               of Robin C. Smith, Esq., P.C., New York, New
                               York, for Defendant-Appellant.




PER CURIAM:

             Defendant-appellant Salvador Diaz appeals from a judgment of the

district court entered June 26, 2019, following a jury trial, convicting him of

failing to register as a sex offender under the Sex Offender Registration and

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Notification Act ("SORNA"), 18 U.S.C. § 2250(a). He was sentenced principally to

five years' probation, with the first three months to be served in home

confinement. On appeal, Diaz challenges his conviction on the grounds that the

district court erred when it precluded him from collaterally attacking his

predicate conviction, rejected his argument that SORNA is unconstitutional, and

denied his motion to dismiss for improper venue. For the reasons set forth

below, we affirm the judgment of conviction.

                                  BACKGROUND

             On December 1, 2000, Diaz, then a chief petty officer in the United

States Navy, was convicted by court-martial of three counts of rape and two

counts of indecent acts, in violation of Articles 120 and 134 of the Uniform Code

of Military Justice. He was sentenced to nine years' imprisonment and a

dishonorable discharge. Diaz has since pursued several challenges to his

convictions, all unsuccessfully. See, e.g., United States v. Diaz, 61 M.J. 594 (N-M.

Ct. Crim. App. 2005) (appeal to the Navy-Marine Corps Court of Criminal

Appeals); United States v. Diaz, 64 M.J. 180 (C.A.A.F. 2006) (appeal to the United

States Court of Appeals for the Armed Forces); Diaz v. United States, 549 U.S. 1356




                                          3
(2007) (petition for writ of certiorari to United States Supreme Court); Diaz v.

Inch, No. 06-3306, 2007 WL 9754574 (D. Kan. Sept. 28, 2007) (habeas petition).

             Following his release from prison, Diaz registered as a sex offender

in New York. Between 2014 and 2017, Diaz moved from New York to New

Jersey and Virginia, but did not register in the latter two states. On April 12,

2017, the Government indicted Diaz for violating § 2250(a)(2)(A) -- the "Sex

Offense Clause" -- because he "changed his residence without updating his

registered address in New York." App'x at 27. On March 2, 2018, Diaz,

proceeding pro se, moved to dismiss the indictment, arguing that his predicate

sex offender conviction was obtained in violation of the Constitution and that

SORNA was unconstitutional. The district court denied the motion.

             On November 19, 2018, after the district court ordered the

Government to address the effect of Nichols v. United States, 136 S. Ct. 1113 (2016),

on Diaz's indictment, the Government filed a superseding indictment, charging

Diaz with traveling in interstate commerce and failing to update his registration

in the jurisdictions in which he resided after departing New York, in violation of

§ 2250(a)(2)(B) -- the "Interstate Travel Clause." The district court set a pretrial

motion deadline for December 21, 2018. On February 25, 2019, Diaz again



                                           4
moved to dismiss for, inter alia, improper venue. The district court denied the

motion as untimely, without good cause to excuse waiver, and meritless.

             Diaz was convicted following a jury trial and sentenced principally

to five years' probation with the first three months to be served in home

confinement. This appeal followed.

                                   DISCUSSION

I.    Collateral Challenges to Predicate Convictions under SORNA

             "We review questions of statutory interpretation de novo." United

States v. Ng Lap Seng, 934 F.3d 110, 122 (2d Cir. 2019). In interpreting a statute,

this Court gives "the statutory terms their ordinary or natural meaning." United

States v. Lockhart, 749 F.3d 148, 152 (2d Cir. 2014) (internal quotation marks

omitted).

             The Supreme Court has routinely interpreted statutes that depend

on a prior conviction as precluding defendants from collaterally challenging the

predicate conviction in a subsequent proceeding. See Custis v. United States, 511

U.S. 485, 497 (1994) (holding that defendant may not collaterally attack prior

conviction used to enhance sentence under the Armed Career Criminal Act

because the statute does not explicitly permit such challenges); Lewis v. United



                                          5
States, 445 U.S. 55, 67 (1980) (finding that felon-in-possession statute did not

permit defendant to contest felony conviction in subsequent firearms prosecution

because the statute "focus[es] not on reliability, but on the mere fact of

conviction" as an element of the firearms offense); cf. United States v. Mendoza-

Lopez, 481 U.S. 828, 840-41 (1987) (permitting collateral attack on predicate

conviction despite the Immigration and Nationality Act's silence because judicial

review of that conviction is otherwise unavailable). At least one circuit has

addressed and rejected the contention that SORNA permits collateral challenges

to sex offender convictions in its proceedings. See United States v. Delgado, 592 F.

App'x 602, 603 (9th Cir. 2015) (mem. disp.).

             We agree that SORNA does not permit defendants to collaterally

challenge predicate sex offender convictions. SORNA is similar in structure to

the statutes that the Supreme Court has held do not authorize collateral attacks

of predicate convictions: SORNA requires the fact of a sex offender conviction as

an element of the registration offense, see Lewis, 445 U.S. at 67, and lacks explicit

terms authorizing a defendant to challenge the predicate conviction, see Custis,

511 U.S. at 491-92. 1 Moreover, Diaz's argument that SORNA permits collateral


1      Section 2250(a) provides: "Whoever-- (1) is required to register under [SORNA];
(2)(A) is a sex offender . . . by reason of a conviction under Federal law (including the
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attack through 34 U.S.C. § 20911(5)(B) (the "Foreign Conviction Exception") is

unpersuasive. 2 The Foreign Conviction Exception is by its terms limited to

foreign convictions, and Congress did not intend to extend it to domestic

convictions. See id. at 492 (applying expressio unius maxim that maintains "where

Congress includes particular language in one section of a statute but omits it in

another," we presume Congress acted intentionally (brackets omitted)).

              Finally, Diaz already received judicial review of his sex offender

conviction. Permitting him to attack his prior conviction would provide him an

opportunity for judicial review not available to those who abide by SORNA's

requirements. See id. at 497 (emphasizing the interest in not undermining a prior

judgment "in a proceeding that ha[s] an independent purpose other than to

overturn the prior judgmen[t]") (internal quotation marks omitted).




Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law,
or the law of any territory or possession of the United States; or (B) travels in interstate
or foreign commerce, or enters or leaves, or resides in, Indian country; and (3)
knowingly fails to register or update a registration as required by [SORNA]; shall be
fined under this title or imprisoned not more than 10 years, or both." 18 U.S.C.
§ 2250(a).
2      The Foreign Conviction Exception provides that "[a] foreign conviction is not a
sex offense . . . if it was not obtained with sufficient safeguards for fundamental fairness
and due process for the accused," 34 U.S.C. § 20911(5)(B), and mandates that the
Attorney General establish "guidelines" to determine whether these convictions qualify
as sex offenses, see id. § 20912(b).
                                             7
              Accordingly, the district court correctly held that a defendant in a

SORNA prosecution may not collaterally challenge his underlying sex offender

conviction.

II.   SORNA's Constitutionality under the Eighth and Fifth Amendments

              We review the district court's interpretation of the constitutionality

of a federal statute de novo. See United States v. Henry, 888 F.3d 589, 602 (2d Cir.

2018), cert. denied, 139 S. Ct. 2615 (2019).

              Diaz argues that SORNA violates the Eighth and Fifth Amendment's

prohibitions on cruel and unusual punishments and double jeopardy because the

statute imposes a "second punishment" on the same criminal conduct.

Appellant's Br. at 49. 3 He contends that the registration and notification

provisions of sex offender registration statutes are punitive in nature because

they result in "lifetime deprivations" of housing and employment and "public

shaming." Appellant's Br. at 44, 45. He questions the efficacy of sex offender

statutes, asserting that they are "an ineffective solution to tackling sex crimes."

Appellant's Br. at 47.



3      The Eighth Amendment mandates against the infliction of "cruel and unusual
punishments," U.S. Const. amend. VIII, while the Fifth Amendment prohibits subjecting
a person "to be twice put in jeopardy of life or limb" for one criminal act, U.S. Const.
amend. V.
                                               8
              As Diaz acknowledges, however, we held in Doe v. Pataki that the

mandatory registration and notification requirements of New York State's Sex

Offender Registration Act, which are analogous to SORNA's requirements, are

nonpunitive in purpose and effect. See 120 F.3d 1263, 1285 (2d Cir. 1997), as

amended on denial of reh'g (Sept. 25, 1997) (rejecting that the New York statute

violates the Fifth Amendment's Ex Post Facto Clause). Moreover, the Supreme

Court reached the same conclusion in its review of an Ex Post Facto challenge to

Alaska's Sex Offender Registration Act. See Smith v. Doe, 538 U.S. 84, 105 (2003).

Our precedent precludes the argument that sex offender registration and

notification requirements are punitive, see Pataki, 120 F.3d at 1285, and the

Supreme Court's similar conclusion in Smith v. Doe forecloses this Court's ability

to revisit the Pataki decision, 538 U.S. at 105. Accordingly, the district court

correctly concluded that SORNA does not violate the Fifth or Eighth

Amendments. 4



4       Diaz further argues that the district court erred when it denied as untimely his
motion to dismiss for improper venue. Diaz raised his venue objection more than two
months after the pretrial motion deadline, and the district court held that his
explanation for the delay -- that he did not understand venue and waiver as a pro se
litigant -- did not constitute good cause to excuse waiver because the court had
previously explained these concepts to him. See United States v. O'Brien, 926 F.3d 57, 83
(2d Cir. 2019). As a counseled litigant on appeal, Diaz waived any challenge to the
district court's findings on this issue because he failed to address it in his opening brief.
                                              9
                                      CONCLUSION

              For the foregoing reasons, the district court's judgment is

AFFIRMED.




See Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178, 192 (2d Cir. 2015).
Accordingly, Diaz's improper venue challenge fails.
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United States v. Diaz
19-1895
GUIDO CALABRESI, Circuit Judge, concurring:

       I join the court’s opinion in full. I write separately simply to state my belief

that our court was wrong in Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997), and the

Supreme Court equally wrong in Smith v. Doe, 538 U.S. 84 (2003). The notion that

the Sex Offender Registration and Notification Act (“SORNA”) and its equivalents

are not punitive seems to me to be quite mistaken.

       I cannot do better in stating why it is mistaken than to quote from the

opinion by then-District Judge Chin, now presiding on this panel. Like me, he is

bound by the decision of this court which reversed him, and by the Supreme Court

in reviewing an analogous statute. But as far as I am concerned, his observations

about the punitive nature of public notification requirements are still spot on.

       Public notification of the type required by the New York State Sex Offender

law and SORNA “is the modern-day equivalent of branding and shaming. . . .

[T]oday’s lawmakers—like their colonial counterparts—are counting on ‘the

invisible whip of public opinion’ to deter the sex offender from future

wrongdoing.” Doe v. Pataki, 940 F. Supp. 603, 625 (S.D.N.Y. 1996), rev’d, 120 F.3d

1263 (2d Cir. 1997). Notification statutes also have “resulted in the banishment of

sex offenders both literally and psychologically. Not only have sex offenders

literally been forced to relocate to different towns and even different states, public

notification has made it difficult if not impossible for them to reintegrate into

society.” Id. at 626. Such requirements increase punishment “simply because

[they] increase[] the penalty—or suffering in right, person, or property—imposed

on a sex offender for his crime.” Id. Notification prevents “sex offenders from

finding a home, getting a job, and reintegrating into society.” Id. at 628. Moreover,
United States v. Diaz
19-1895

whatever one thinks of the goals, notification provisions in sex offender statutes

do promote three of what many view as the traditional goals of punishment:

deterrence, retribution, and incapacitation. Id. at 628–29; see id. at 629 (“The

ostracism, public humiliation, and other harsh consequences that result from

public notification certainly deter future criminal conduct. Moreover, public

notification also serves the goal of retribution by giving the sex offenders what

many believe they deserve.          Finally, public notification has the effect of

incapacitating sex offenders as it restricts their ability to reenter society and indeed

results in their banishment from the community.”).

       As Judge Chin succinctly concluded, “one could argue, depending on the

crime involved, that these sex offenders deserved this treatment. The question

before the Court, however, is not whether they did, but whether the effect of public

notification is to punish. Clearly, it is.” Id. at 627 (citation omitted).

       Beyond this case, I believe it to be a fundamental mistake to treat as

nonpenal, and perhaps civil, any number of laws the effects of which exceed in

severity those of many quite severe criminal laws. Treating deportation as civil—

even though, as the Supreme Court has recognized, it often is tantamount to

“banishment or exile”—is one egregious example. Delgadillo v. Carmichael, 332

U.S. 388, 391 (1947). The rules governing habeas are another. Interestingly, the

Supreme Court has indicated that certain limits derived from the Eighth

Amendment should apply to civil forfeitures. See Austin v. United States, 509 U.S.

602 (1993). Analogously, the Court has put limits on tort damages that it deems

punitive. See Philip Morris USA v. Williams, 549 U.S. 346 (2007) (holding that a jury

may not, consistent with due process, award punitive damages based upon its


                                           2
United States v. Diaz
19-1895

desire to punish the defendant for harming persons who are not parties to the suit);

State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003) (holding that an

award of $145 million in punitive damages on a $1 million compensatory verdict

violated due process); BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 585–86 (1996)

(holding that a $2 million punitive damages award was “grossly excessive” and

therefore exceeded the constitutional limit).

       For reasons well expressed by Judge Posner in Mathias v. Accor Economy

Lodging, Inc., 347 F.3d 672 (7th Cir. 2003), and in the academic literature, not all

extracompensatory damages should be treated as punitive.             See A. Mitchell

Polinsky & Steven Shavell, Punitive Damages: An Economic Analysis, 111 Harv. L.

Rev. 869 (1998); Catherine M. Sharkey, Punitive Damages as Societal Damages, 113

Yale L.J. 347 (2003); Guido Calabresi, The Complexity of Torts—The Case of Punitive

Damages, in Exploring Tort Law 333 (M. Stuart Madden ed., 2005); see also generally

Ciraolo v. City of New York, 216 F.3d 236, 244 (2d Cir. 2000) (Calabresi, J.,

concurring).

       But as Thomas Colby has explained, some extracompensatory damages

indeed are punitive. See Thomas B. Colby, Clearing the Smoke from Philip Morris v.

Williams: The Past, Present, and Future of Punitive Damages, 118 Yale L.J. 392 (2008).

And one can sympathize with the Supreme Court’s desire to impose constitutional

limits in such instances.    One only wishes that the Supreme Court applied

analogous reasoning to situations in which those bearing the punitive effects were

not large corporations but individuals without similar means.




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