U.S. v. Hardeman
| Decision Date | 20 April 2011 |
| Docket Number | No. CR 10-0859 RS,CR 10-0859 RS |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. GARY HARDEMAN, Defendant. |
| Court | U.S. District Court — Northern District of California |
On November 23, 2010, a grand jury returned a two-count indictment against defendant Gary Hardeman. He is charged in Count One with engaging in illicit sexual conduct in Mexico between on or about October 22, 2007 and December 17, 2007, in violation of 18 U.S.C. section 2423(c) and, in Count Two, with failure to register as a sex offender as required by California law, pursuant to 18 U.S.C. section 2260A. That section imposes punishment where a registration failure accompanies an underlying sex offense. Relying on those protections guaranteed by the Fifth Amendment's Double Jeopardy Clause and the doctrine of collateral estoppel, Hardeman moves here to dismiss Count Two. He argues an issue necessary to resolution of the section 2260A registration claim was necessarily decided in his favor when the United States in 2009 dismissed with prejudice an indictment. That indictment charged Hardeman with a single count: failure to register as a sex offender, as required by 18 U.S.C. section 2250(a). As explained below, Hardemancannot demonstrate that the central question—whether the government would be able to prove with admissible evidence that he was required to register as a sex offender on account of two previously set-aside convictions—was necessarily decided in the prior case. His motion therefore must be denied.
Hardeman is a Bay Area native, and was steadily employed as a salesman until he opted to serve as a live-in caregiver for his elderly parents. He is 55 years old, has an adult daughter who resides in Mexico, and has incurred two prior convictions.1 The first conviction, from 1980, was a felony for lewd and lascivious conduct with a minor. The second was a misdemeanor conviction in 1986 for annoying a child. Both were later set aside under a California statute allowing for withdrawal of a plea of guilty. That statute by its terms also removes all "penalogical consequences" associated with conviction. See Cal. Penal Code § 1203.4.
On November 12, 2008, a federal grand jury returned an indictment charging Hardeman with failing to register as a sex offender, in violation of 18 U.S.C. section 2250(a), a part of the Sex Offender Registration and Notification Act ("SORNA"). The United States alleged that Hardeman travelled to Mexico between October 23, 2007 and February 18, 2008, while under an obligation to register as a sex offender, and thereafter failed to register as required. In conjunction with an unsuccessful effort to obtain pretrial detention in that case, the prosecutor advised that the government was considering the institution of additional charges against Hardeman for engaging in illicit sexual conduct in a foreign place, pursuant to the very statute, 18 U.S.C. section 2423(c), on which Count One of the 2010 indictment is based. The reviewing court pointed out that while the government was free to present the uncharged conduct to a grand jury, it had not done so at thatpoint, prompting the court to order Hardeman released on conditions.
In that underlying action, Hardeman moved to dismiss the indictment, challenging the constitutionality of SORNA's sections 2250(a) and 16913 () under the Commerce Clause. Hardeman also argued that SORNA at any rate did not apply to him, because his two predicate convictions were set aside, pursuant to California Penal Code section 1203.4.2 The district court denied the motion, finding first that the Act did not violate the Commerce Clause and, second, that that it was "unable to conclude as a matter of law that the subsequent dismissal of a state conviction... necessarily withdraws that conviction from the ambit of SORNA." United States v. Hardeman, 598 F. Supp. 2d 1040, 1049 (N.D. Cal. 2009). The matter was set for trial shortly thereafter. On the day in limine motions and other pretrial matters were due, however, the United States filed a notice, pursuant to Federal Rule of Criminal Procedure 48(a), of dismissal "without prejudice." In a written order, the district court requested that the prosecution explain its request and address whether the court should vacate its Order on the motion to dismiss.
In response, the United States represented that various factual and legal weaknesses had come to light, obligating it to dismiss the indictment. The United States also emphasized that the reason driving dismissal was unrelated to the analysis undertaken in the court's Order. Suggesting that the Order might lend guidance to courts faced with similar constitutional challenges, the United States encouraged the court to leave it in place. The United States' response also indicated that defense counsel had affirmed Hardeman did not object to dismissal. At a hearing scheduled soon thereafter, the court asked the government to explain its "evidence problem." The government responded that it had in the course of its investigation realized it would be unable to prove Hardeman changed residences, so as to trigger SORNA's registration requirement. The court then indicated that the government should either dismiss the indictment with prejudice or proceed to trialas planned. That same day, the United States filed a notice of dismissal with prejudice.
The 2010 indictment advances the "sex tourism" charge alluded to at the earlier detention hearing, and includes a penalty enhancement for failure to register as a sex offender as required by state or federal law. This time, however, the United States does not rely on SORNA but instead on those sex offender registration obligations imposed by the State of California.
Hardeman grounds his issue preclusion arguments on the Fifth Amendment's Double Jeopardy Clause. The Fifth Amendment provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. Some time ago, the Supreme Court recognized how that clause "incorporates" the doctrine of collateral estoppel. Ashe v. Swenson, 397 U.S. 436 (1970). Accordingly, the Double Jeopardy Clause does more than "bar a second prosecution on the same charge of which a defendant has been previously acquitted (or convicted)." United States v. Castillo-Basa, 483 F.3d 890, 896 (9th Cir. 2007). "It also prevents the government from seeking to prosecute a defendant on an issue that has been determined in the defendant's favor in a prior prosecution, regardless of the particular offense involved in the earlier trial." Id. (citing Ashe, 397 U.S. at 443).
As Ashe explained, the concept provides that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Id. at 443. Put another way, "[w]hen an issue of fact or law is actually litigated and determined by a final and valid judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." Castillo-Basa, 483 F.3d at 897 (citing United States v. Hernandez, 572 F.2d 218, 220 (9th Cir. 1978)). Accordingly, "[w]here a previous judgment of acquittal was based upon a general verdict," and where a defendant seeks to invoke the collateral estoppel doctrine to bar a subsequent prosecution regarding a particular issue, a court is required to "examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and otherrelevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." Ashe, 397 U.S. at 444 ). Courts in the Ninth Circuit implement Ashe's "charge" through a three-step process:
(1) An identification of the issues in the two actions for the purpose of determining whether the issues are sufficiently similar and sufficiently material in both actions to justify invoking the doctrine; (2) an examination of the record of the prior case to decide whether the issue was "litigated" in the first case; and (3) an examination of the record of the prior proceeding to ascertain whether the issue was necessarily decided in the first case. Castillo-Basa, 483 F.3d at 897.
Hardeman in his motion relies on the Double Jeopardy Clause. There is some question as to whether he can do so. In one of its paradigmatic cases on the subject, Serfass v. United States, 420 U.S. 377 (1977), the Supreme Court emphasized the utility in defining "a point in criminal proceedings at which the constitutional purposes and policies are implicated by resort to the concept of 'attachment of jeopardy.'" 420 U.S. at 388 (citing United States v. Jorn, 400 U.S. 471, 480 (1971)). "In the case of a jury trial," the Court explained, "jeopardy attaches when a jury is empanelled and sworn." Id. (citing Downum v. United States, 372 U.S. 734 (1963); Illinois v. Somerville, 410 U.S. 458 (1973)). In a nonjury trial, jeopardy attaches when the court "begins to hear evidence." Id. (citations omitted). Jeopardy does not attach, and the constitutional prohibition can have no application, until a defendant is "put to trial before the trier of facts, whether the trier be a jury or a judge.' Id. (quoting Jorn, 400 U.S. at 479).3
The record here reflects that...
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