United States v. Burchell, 4:21-cr-40025

UNITED STATES OF AMERICA, Plaintiff v. BILLY FRANK BURCHELL, Defendant

No. 4:21-cr-40025

United States District Court, D. South Dakota, Southern Division

August 23, 2021

MEMORANDUM OPINION AND ORDER

LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE

Pending before the Court is Defendant's Motion to Dismiss the Indictment (Doc. 28), which the Government resists (Doc. 31). Defendant has been charged with violating 18 U.S.C. § 2250(a) (Doc. 1). The Government alleges Defendant failed to register as a sex offender based on a prior state conviction and traveled in interstate commerce. For the reasons stated herein, the Defendant's Motion to Dismiss is granted.

Background

In 1990, Defendant was convicted in the State of Texas for violating Texas Penal Code Ann. § 22.011, prohibiting sexual assault. Defendant pleaded guilty to Count II of the Indictment, alleging Sexual Assault in the Second Degree after a jury failed to reach a verdict. (Doc. 29, Ex C). He was sentenced to a prison term and was required to register as a sex offender. (Id.) The defense claims that Defendant is a Tier I sex offender, and the 15-year term for which he was required to register has expired. The Government alleges that Defendant is a Tier III sex offender who is required to register for life in connection with interstate travel, and that Defendant failed to do so. The problem before the Court is to determine the appropriate Tier for Defendant's offense of conviction and thereby determine whether his failure to register could qualify as an offense under 18 U.S.C. § 2250(a).

Legal Analysis

1. Pretrial resolution

At the outset, the Court must address whether the issue presented is one for the jury or for the Court to resolve. Federal Rule of Criminal Procedure 12(b)(1) authorizes a party to "raise by pretrial motion any defense, objection, or request that the court can determine without trial on the merits." As a general matter, the Court does not look further than the indictment itself to determine its sufficiency. United States v. Farm & Home Sav. Ass'n, 932 F.2d 1256 1259 n.3 (8^th Cir. 1991). Where, as here, the Defendant's Motion to Dismiss raises a legal question, however, it is appropriate for the Court to resolve it in advance of trial. Accord, United States v. Church, 461 F.Supp.3d 875, 881 (S.D. Iowa 2020); United States v. Grant, 2018 WL 4516008 (N.D.Ga. 2018). See also United States v. Laney, 2021 WL 1821188 (N.D. Iowa 2021) report and recommendation adopted, 2021 WL 2373845 (N.D. Iowa, March 26, 2021). In a different context, United States v. Marrowbone, 2014 WL 6694781 (D. S.D. 2014), explained that the rationale for the Court to address such issues pretrial is threefold: the difficulty for a jury in resolving this type of legal question; fairness to the defendant; and wise use of judicial resources. Id. at *2.

The parties agree (Doc. 29 and 31) that this case poses a legal question proper for determination by the Court, and not by the jury. The Court agrees.

2. Pertinent authority

The Sex Offender Registration and Notification Act ("SORNA"), 34 U.S.C. §§ 20911-20932, sets forth a comprehensive system for registration by convicted sex offenders, as follows:

The term "tier III sex offender" means a sex offender whose offense is punishable by imprisonment for more than 1 year and-

(A) is comparable to or more severe than the following offenses, or an attempt or conspiracy to commit such an offense:

(i) aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242 of title 18); or

(ii) abusive sexual contact (as described in section 2244 of title 18) against a minor who has not attained the age of 13 years;

(B) involves kidnapping of a minor (unless committed by a parent or guardian); or occurs after the offender becomes a tier II sex offender.

34 U.S.C. §20911(4).

The statute further defines a Tier II offender as someone who has committed an offense involving a minor, which is not relevant here. 34 U.S.C. § 20911(3). A Tier I offender is one who does not qualify as either a Tier II or Tier III offender. 34 U.S.C. § 20911(2).

SORNA sets forth the periods of time during which an individual must register as a sex offender as follows:

(a) Full registration period

A sex offender shall keep the registration current for the full registration period (excluding any time the sex offender is in custody or civilly committed) unless the offender is allowed a reduction under subsection (b). The full registration period is--

(1) 15 years, if the offender is a tier I sex offender;

(2) 25 years, if the offender is a tier II sex offender; and

(3) the life of the offender, if the offender is a tier III sex offender.

34 U.S.C. § 20915(a).

In addition to requiring registration by sex offenders, SORNA links to the federal criminal code to impose criminal responsibility on offenders who fail to comply. 18 U.S.C. § 2250(a) provides as follows:

Whoever -

(1) is required to register under the Sex Offender Registration and

Notification Act;

(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of conviction under Federal law (including the 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 the Sex Offender Registration and Notification Act; Shall be fined under this title or imprisoned not more than 10 years, or both.

To determine whether and at what level an individual qualifies as a sex offender, the Court must examine applicable sections of the federal criminal code, as well as the applicable state code. As provided in SORNA's definition of a Tier III offender, 34 U.S.C. § 20911(4), the pertinent provisions of the United States Code which must be compared with the state code are 18 U.S.C. §§ 2241 and 2242, which read as follows:

18 U.S.C. § 2241. Aggravated sexual abuse

(a) By force or threat-Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly causes another person to engage in a sexual act-

(1) by using force against that other person; or

(2) by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping; or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both.

(b) By other means.-Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly-

(1) renders another person unconscious and thereby engages in a sexual act with that other person; or

(2) administers to another person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby-

(A) substantially impairs the ability of that other person to appraise or control conduct; and

(B) engages in a sexual act with that other person; or attempts to do so,

shall be fined under this title, imprisoned for any term of years or life, or both.

18 U.S.C. § 2242. Sexual abuse

Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly-

(1) causes another person to engage in a sexual act by threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping); or

(2) engages in a sexual act with another person if that other person is-

(A) incapable of appraising the nature of the conduct; or

(B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act; or attempts to do so, shall be fined under this title and imprisoned for any term of years or for life.

The task for the Court is to examine these statutes and compare them to the Texas sexual assault statute in effect at the time of Defendant's conviction. At the time, the Texas statute read as follows:

Texas Penal Code Ann. § 22.011

(a) A person commits an offense if the person: (1) intentionally or knowingly:

(A)causes the penetration of the anus or female sexual organ of another person who is not the spouse of the actor by any means, without that person's consent;

(B) causes the penetration of the mouth of another person who is not the spouse of the actor by the sexual organ of the actor, without that person's consent; or

(C) causes the sexual organ of another person who is not the spouse of the actor, without that person's consent, to contact Or penetrate the mouth, anus, or sexual organ of another person, including the actor[.]

The term "without the consent of the other person" was defined in § 22.011(b) and meant:

(1) the actor compels the other person to submit or participate by the use of physical force or violence;

(2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that

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