United States v. Scott Lowell Church

461 F.Supp.3d 875

UNITED STATES of America, Plaintiff,

v.Scott Lowell CHURCH, Defendant.

No. 1:19-cr-00052-RGE-HCA

United States District Court, S.D. Iowa, Western Division.

Signed February 4, 2020

Michael Brian Duffy, Richard E. Rothrock, United States Attorneys Office, Council Bluffs, IA, for Plaintiff.

Bradley Ryan Hansen, Federal Public Defenders Office, Sioux City, IA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS INDICTMENT

Rebecca Goodgame Ebinger, United States District Judge

I. INTRODUCTION

Defendant Scott Lowell Church was indicted on one count of failure to register as a sex offender. Redacted Indictment, ECF No. 2. He now moves to dismiss the indictment, arguing his duty to register expired prior to the events alleged in the indictment. Def.'s Mot. Dismiss Indictment, ECF No. 23. For the reasons set forth below, the Court grants Church's motion to dismiss.

II. BACKGROUND

The Court takes the allegations in the indictment as true for the purpose of considering Church's motion to dismiss. See Boyce Motor Lines, Inc. v. United States , 342 U.S. 337, 343 n.16, 72 S.Ct. 329, 96 L.Ed. 367 (1952). The following facts are either alleged in the indictment or submitted in the parties' briefing. See Def.'s Br. Supp. Mot. Dismiss Indictment 1–2, ECF No. 23-1; Gov't's Resist. Def.'s Mot. Dismiss Indictment 1–2, ECF No. 34.

On June 22, 2001, Church was charged with first-degree sexual assault under Nebraska law. ECF No. 23-1 at 2. The information alleged that Church "did subject another person to sexual penetration without consent of the victim; knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct." Id. ; Def.'s Ex. A Supp. Mot. Dismiss Indictment 2, ECF No. 23-2.¹

Church pleaded no contest to the charge. ECF No. 23-1 at 2; ECF No. 23-2 at 6. He entered his plea to an amended version of the indictment with handwritten modifications indicating the crime was an attempt² and that it caused serious personal injury to the victim.³ ECF No. 23-1 at 2; ECF No. 23-2 at 5; see Def.'s Ex. B Supp. Mot. Dismiss Indictment, ECF No. 23-3. Church was sentenced to 15 to 30 months of imprisonment. ECF No. 23-1 at 2; ECF No. 23-2 at 7. He was released from prison on September 4, 2003. ECF No. 23-1 at 2; Def.'s Ex. C Supp. Mot. Dismiss Indictment, ECF No. 23-4.

On September 25, 2019—roughly sixteen years after his release from prison—Church was indicted in the Southern District of Iowa on one count of failure to register as a sex offender. ECF No. 2. The indictment alleges Church was required to register as a sex offender under the Sex Offender Registration and Notification Act ("SORNA"), 34 U.S.C. § 20911 et seq. Id. It further alleges that, as early as April 2019 and continuing to on or about September 2019, Church traveled in interstate commerce from Idaho to Iowa after failing to register. Id.

Church now moves to dismiss the indictment. ECF No. 23; see also Def.'s Reply Br. Supp. Mot. Dismiss Indictment, ECF No. 35. The Government resists. ECF No. 34; see also Gov't's Sur-Reply Def.'s Mot. Dismiss Indictment, ECF No. 36.

III. LEGAL STANDARD

A criminal indictment must include "a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). "[A]n indictment must allege that the defendant performed acts which, if proven, constitute the violation of law for which he is charged. If the acts alleged in the indictment do not constitute a violation of law, the indictment is properly dismissed." United States v. Polychron , 841 F.2d 833, 834 (8th Cir. 1988). A criminal defendant may move to dismiss an indictment for "failure to state an offense." Fed. R. Crim. P. 12(b)(3)(B)(v). Generally, an indictment is insufficient only if it omits an essential element of the offense. United States v. Hance , 501 F.3d 900, 906 (8th Cir. 2007).

Ordinarily, a court does not look beyond the four corners of the indictment when judging its sufficiency. See United States v. Farm & Home Sav. Ass'n , 932 F.2d 1256, 1259 n.3 (8th Cir. 1991). But here, both parties invite the court to consider facts outside the indictment. See ECF No. 23-1 at 2–3; ECF No. 34 at 1–2. Although the parties do not address the issue, other courts considering the sufficiency of SORNA-based indictments have reasoned that looking to extrinsic evidence is permissible when the material facts are undisputed and the challenge presents a pure question of law. United States v. Grant , No. 1:17-CR-236-AT-AJB, 2018 WL 4516008, at *2 (N.D. Ga. July 4, 2018), report and recommendation adopted , No. 1:17-CR-0236-AT, 2018 WL 4140870 (N.D. Ga. Aug. 30, 2018) (addressing whether a defendant had a duty to register under SORNA in a pretrial motion to dismiss the indictment because it was a pure legal question based on undisputed facts); United States v. Marrowbone , No. 3:14-CR-30071-RAL, 2014 WL 6694781, at *2 (D.S.D. Nov. 26, 2014) (same); cf. United States v. Brown , No. 11-174, 2012 WL 604185, at *4 (W.D. Pa. Feb. 24, 2012) (denying a defendant's motion to dismiss an indictment because the sufficiency of the indictment turned on "factual questions [that] cannot be addressed in the context of a motion to dismiss the indictment"). The Eighth Circuit has not addressed this issue.

The Court finds the reasoning of other district courts persuasive, and concludes that looking past the four corners of the indictment is proper here. As the district court noted in Grant , the Federal Rules of Criminal Procedure provide that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." 2018 WL 4516008, at *1 (alteration in original) (quoting Fed. R. Crim. P. 12(b)(1) ). Consistent with this rule, Church may raise his challenge to the indictment at this stage because it presents a pure question of law, based on undisputed facts, and thus it can be resolved without a trial on the merits. As the court noted in Marrowbone , "if [the defendant's] claim is valid, it would be unfair to [the defendant] and a waste of judicial resources to begin a trial on an indictment that would be dismissed on a legal issue." 2014 WL 6694781, at *2. Therefore, the Court will accept the parties' invitation to look outside the indictment in ruling on Church's motion to dismiss.

IV. DISCUSSION

Church argues the indictment is legally insufficient because his duty to register as a sex offender expired before his alleged failure to register. ECF No. 23-1 at 3–10.⁴ The Government argues Church had a duty to register at the time of the events alleged in the indictment, and he failed to do so. ECF No. 34 at 2. The parties' dispute stems from their disagreement about Church's sex offender classification under SORNA.

SORNA requires sex offenders to register, and to keep their registrations current, in the jurisdictions where they reside, work, and attend school. 34 U.S.C. § 20913(a). The length of a sex offender's duty to register depends on his or her tier classification. See id. § 20915(a). Tier III offenders—the "most egregious" category—must register for life. United States v. Mulverhill , 833 F.3d 925, 928 (8th Cir. 2016) (internal quotation marks omitted) (quoting United States v. Morales , 801 F.3d 1, 3 (1st Cir. 2015) ); 34 U.S.C. § 20913(a)(3). Tier II offenders must register for twenty-five years.

34 U.S.C. § 20913(a)(2). And tier I offenders must register for fifteen years. Id. at § 20913(a)(1).

SORNA defines the tiers in part by reference to other federal statutes. A tier III sex offender is one whose offense of conviction is a felony that is (A) "comparable to or more severe than" (i) aggravated sexual abuse or sexual abuse as defined in 18 U.S.C. §§ 2241 and 2242, respectively, or (ii) abusive sexual contact as defined in 18 U.S.C. § 2244 against a minor under the age of thirteen; (B) involves kidnapping a minor; or (C) occurs when the offender is already a tier II offender. 34 U.S.C. § 20911(4). Tier II comprises sex offenders with certain prior felony convictions against minors and those who commit felonies while tier I offenders. Id. § 20911(3). Tier I is a catchall for sex offenders who do not qualify as tier II or tier III offenders. Id. § 20911(2).

Church contends he is a tier I offender, meaning his duty to register lasted only 15 years and expired in September 2018—several months before the events alleged in the indictment. ECF No. 23-1 at 3–10; see ECF No. 2. The Government argues Church is a tier III offender who must register for life. ECF No. 34 at 3–6. Relying on subsection (A)(i) of the tier III definition, the Government argues that Church's conviction for first-degree sexual assault in Nebraska is comparable to or more severe than aggravated sexual abuse or sexual abuse as defined in 18 U.S.C. §§ 2241 and 2242. Id. ; see 34 U.S.C. § 20911(4)(A)(i). Church does not dispute that he is a sex offender under SORNA, and neither party argues Church is a tier II offender. Therefore, the sufficiency of the indictment turns on whether Church's Nebraska conviction is comparable to or more severe than the federal crimes of aggravated sexual abuse or sexual abuse, as they are defined in 18 U.S.C. §§ 2241 and 2242.

Federal courts generally use one of two analytical approaches when comparing prior convictions with the generic or federal offenses listed in statutes requiring a predicate offense, like SORNA. United States v. Berry , 814 F.3d 192, 195 (4th Cir. 2016) ; see Nijhawan v. Holder , 557 U.S. 29, 34, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009). One is the "categorical approach," which compares the "elements" of a prior offense with the elements of the listed offense. See Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2248, 195 L.Ed.2d 604 (2016) ; see also Taylor v. United States , 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (holding a state burglary conviction...