United States v. Marrowbone

102 F.Supp.3d 1101

UNITED STATES of America, Plaintiff,

v.David MARROWBONE, Defendant.

No. 3:14–CR–30071–RAL.

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

Signed March 2, 2015.

Mikal G. Hanson, U.S. Attorney's Office, Pierre, SD, for Plaintiff.

OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS

ROBERTO A. LANGE, District Judge.

The Government charged David Marrowbone with one count of failure to register as a sex offender in violation of the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a). Doc. 1. Marrowbone, through counsel, filed a motion to dismiss indictment for failure to state an offense under Fed.R. Crim.P. 12(b)(3)(B)and briefs in support of that motion. Docs. 27, 28, 32. Marrowbone argued that the indictment must be dismissed because SORNA, enacted well after his 1982 conviction for assault with intent to commit rape, does not contemplate a registration requirement for that offense, or alternatively, the time during which Marrowbone would need to register has expired. Docs. 28, 32. The Government opposed the motion and filed a brief supporting its position. Doc. 31. This Court denied Marrowbone's motion but requested supplemental briefing on whether the court or the jury should determine Marrowbone's sex offender tier level, which affects his registration requirement duration under SORNA. Doc. 33. Both parties responded with supplemental briefs, Docs. 37, 38, 39, and Marrowbone renewed his motion to dismiss, Doc. 37. For the reasons set forth below, the Defendant's renewed motion to dismiss is denied.

I. STANDARD ON MOTION TO DISMISS INDICTMENT

When ruling on a motion to dismiss, a court must accept all factual allegations in the indictment as true. SeeUnited States v. Sampson,371 U.S. 75, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962). A valid indictment must allege that “the defendant performed acts which, if proven, constitute the violation of law for which he is charged.” United States v. Polychron,841 F.2d 833, 834 (8th Cir.1988). If an indictment fails to allege acts that constitute a violation of law, then it may be dismissed. Id.An indictment adequately states an offense if it “contains all of the essential elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to a subsequent prosecution.” United States v. Sewell,513 F.3d 820, 821 (8th Cir.2008)(quoting United States v. Hernandez,299 F.3d 984, 992 (8th Cir.2002)). This is a low bar, and an indictment will normally be found valid unless it is so defective that no reasonable construction of it properly charges the offense for which the defendant is being tried. See id.at 821. Normally, an indictment that tracks the statutory language is sufficient. Id.

The Government charged that Marrowbone failed to register or update his registration as required by federal law. Federal law requires that:

Whoever—

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

(2)(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law ...;

... 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.

18 U.S.C. § 2250(a). The indictment in turn alleged:

On or between the 3rd day of February, 2014, and the 13th day of March, 2014, in the District of South Dakota, the defendant, David Marrowbone, a person required to register under the Sex Offender Registration and Notification Act, and a sex offender by reason of a conviction under Federal Law, did knowingly fail to register and update a registration, in violation of 18 U.S.C. § 2250(a).

Doc. 1.

Although terse, the wording of the indictment tracks the three elements of the offense. First, it alleges that Marrowbone is required to “register under the Sex Offender Registration and Notification Act,” invoking § 2250(a)(1). Next, it alleges that Marrowbone is a “sex offender by reason of a conviction under Federal Law,” which is required by § 2250(a)(2). Third, it alleges that Marrowbone “knowingly fail[ed] to register and update a registration,” which tracks the language of § 2250(a)(3). The indictment also alleges a narrow timeframe in which Marrowbone allegedly failed to register, which provides sufficient notice for him to plead a prior conviction or acquittal of the alleged offense. On its face, the indictment is valid.

A facially valid indictment ordinarily will survive a motion to dismiss for failure to state an offense without further inquiry. A court cannot dismiss an indictment based on “predictions as to what the trial evidence will be;” instead it must give the Government the opportunity to present its evidence. United States v. Ferro,252 F.3d 964, 968 (8th Cir.2001)(quoting United States v. DeLaurentis,230 F.3d 659, 661 (3rd Cir.2000)). However, when certain dispositive facts are undisputed, a court may consider that evidence and entertain a pretrial motion to dismiss. United States v. Lafferty,608 F.Supp.2d 1131, 1137 (D.S.D.2009); see also United States v. Hall,20 F.3d 1084, 1087–88 (10th Cir.1994)(holding pretrial dismissal of a criminal case by a trial court may be appropriate when undisputed facts establish as a matter of law that the Government is incapable of proving its case).

In this case, both parties agree that the underlying criminal offense alleged to trigger Marrowbone's responsibility to register is a 1982 federal conviction for assault with intent to commit rape in violation of the version of 18 U.S.C. § 113(a)that was in force at the time.¹Doc. 28 at 3; Doc. 31 at 3. This Court determined in its Opinion and Order Denying Defendant's Motion to Dismiss that the crime of assault with intent to commit rape is a sex offense that triggers SORNA's registration requirement. Doc. 33. The issues then become whether assault with intent to commit rape is a sex offense that requires registration for life or for some lesser period of years and whether that determination is for the court or a jury to make.

II. AUTHORITY TO DETERMINE SORNA TIER LEVEL

Only a sex offender who “is required to register under [SORNA]” is subject to criminal punishment under federal law. 18 U.S.C. § 2250. A sex offender is required to maintain registration for the entire duration of his or her “registration period.” 18 U.S.C. § 2250(a)(3); 42 U.S.C. §§ 16913(a), 16915. The registration period for a sex offender is primarily determined by the sex offender tier level within which he or she falls. 42 U.S.C. § 16915.²“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.” 42 U.S.C. § 16915(a). The statute defines a tier III sex offender as:

[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 2241and 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) involved kidnapping of a minor (unless committed by a parent or guardian); or

(C) occurs after the offender becomes a tier II sex offender.

42 U.S.C. § 16911(4). A tier II sex offender is a sex offender who is not a tier III sex offender but who commits a felony sex offense that is “comparable to or more severe than” certain federal sex offenses against minor victims, or a sex offender whose felony sex offense occurs after he or she is a tier I sex offender. Id.§ 16911(3). A tier I sex offender is any sex offender who is not a tier II or tier III sex offender. Id.§ 16911(2).

This Court expressed reluctance in its previous opinion and order denying dismissal, Doc. 33, to determine what sex offender tier a person convicted of assault with intent to commit rape falls within because the language “comparable to or more severe than” arguably could be interpreted as requiring a fact and value judgment within the province of a jury. Doc. 33 at 11–13. Generally, statutory interpretation is a question of law that is to be determined by the court, see Bollenbach v. United States,326 U.S. 607, 612, 66 S.Ct. 402, 90 L.Ed. 350 (1946), and other courts have determined an offender's tier level as a matter of law using the categorical statutory interpretation technique to determine whether a conviction of assault with intent to rape is a sex offense, United States v. Cabrera–Gutierrez,756 F.3d 1125, 1133–34 (9th Cir.), cert. denied,––– U.S. ––––, 135 S.Ct. 124, 190 L.Ed.2d 95 (2014); United States v. Backus,550 Fed.Appx. 260, 262 (6th Cir.), cert. denied,––– U.S. ––––, 134 S.Ct. 2153, 188 L.Ed.2d 1138 (2014); United States v. Taylor,644 F.3d 573, 576–77 (7th Cir.2011); United States v. Black,963 F.Supp.2d 790, 793–96 (E.D.Tenn.2013). However, other than in Black,the procedural postures of those cases were significantly different than Marrowbone's case. In Cabrera–Gutierrez, Backus,and Taylor,the courts were determining the sex offender tier in order to properly apply sentencing guidelines after the defendants' guilty pleas had been accepted. Only the district court in Blackaddressed the sex offender tier determination on a motion to dismiss. The district court in Blackreferred to the National Guidelines for Sex Offender Registration and Notification, 73 Fed.Reg. 38,030 (July 2, 2008)[hereinafter SMART Guidelines], on the issue of whether to classify a prior crime as a tier II or tier III offense: “[J]urisdictions generally may premise the determination on the elements of the offense, and...