U.S. v. Lafferty
| Decision Date | 07 April 2009 |
| Docket Number | Nos. CR 08-30085(01), CR 08-30102(01).,s. CR 08-30085(01), CR 08-30102(01). |
| Parties | UNITED STATES of America, Plaintiff, v. Bert Cecil LAFFERTY, Jr., Defendant. United States of America, Plaintiff, v. Patrick Scott Pomani, Defendant. |
| Court | U.S. District Court — District of South Dakota |
Jay P. Miller, Assistant United Stated Attorney, Pierre, SD, for Plaintiff.
Jana Miner, Pierre, SD, for Defendant.
Defendant Pomani has filed a motion (Doc. 21) to dismiss the indictment with a supporting memorandum (Doc. 22). Defendant Voice filed a motion (Doc. 15) to dismiss the indictment and the government filed a response (Doc. 19). Defendant Lafferty filed a motion (Doc. 19) to dismiss with a supporting memorandum of law (Doc. 20) and an amended supporting memorandum (Doc. 22) and the government filed a response (Doc. 21). United States Magistrate Judge Moreno conducted an evidentiary hearing on February 12, 2009. This was a consolidated hearing and covered United States v. Lafferty, 08-30085. United States v. Voice, 08-30101, and United States v. Pomani, 08-30102. All defendants and counsel for all parties were present. I have conducted a de novo review of the Pomani transcript (Doc. 26) and the transcript (Doc. 29) of a continued hearing as to defendant Pomani only in 08-30102. I have conducted a de novo review of the Lafferty transcript (Doc. 27). I have read and considered all other documents and the numerous exhibits.
Chief Judge Schreier is the presiding judge in Voice.
The magistrate issued a report and recommendation (Doc. 30) in Pomani. The recommendation is to deny the motion to dismiss.
Defendant Pomani timely filed objections (Doc. 33) dealing with the recommendation as to the motion to dismiss which objections are without legal merit.
The magistrate issued a report and recommendation (Doc. 26) in Lafferty. The recommendation is to deny the motion to dismiss.
Defendant Lafferty timely filed objections (Doc. 33) dealing with the recommendation as to the motion to dismiss which objections are without legal merit.
The various reports and recommendations should be adopted, the suppression motions denied, and the objections overruled.
Now, therefore,
IT IS ORDERED, as follows:
1) The motion (Doc. 21) to dismiss the indictment in Pomani is denied.
2) The report and recommendation in Pomani (Doc. 30) is adopted.
3) The objections (Doc. 33) of defendant Pomani to the report and recommendation are overruled.
4) The motion (Doc. 19) to dismiss the indictment in Lafferty is denied.
5) The report and recommendation in Lafferty (Doc. 26) is adopted.
3) The objections (Doc. 33) of defendant Lafferty to the report and recommendation are overruled.
Defendant, Patrick Scott Pomani ("Pomani"), has filed a Motion to Dismiss Indictment and a Memorandum in support thereof. Thereafter, two evidentiary hearings were held before this Court on Pomani's Motion. Because his dismissal Motion is a dispositive one, the Court is dnly authorized to determine the same on a report and recommendation basis. Pursuant to 28 U.S.C. § 636(b)(l), the Court does now make and propose the following report and recommendation for disposition of the Motion.
Pomani is charged with one count of Failure to Register as a Sex Offender. The alleged violation is said to have occurred between July 1, 2008 and October 14, 2008, in this State and District. According to the Indictment, Pomani is required to register, under the Sex Offender Registration and Notification Act ("SONA"), 42 U.S.C. §§ 16901, et. seq., as a sex offender, by reason of a conviction under federal law, and he knowingly failed to register and update his registration, in violation of 18 U.S.C. § 2250(a).
Pomani was found to be a juvenile delinquent in 1999 after he admitted to committing the offense of abusive sexual contact, a qualifying sex offense under SORNA.1 Because of his delinquency adjudication, Pomani was obliged to register as a sex offender.2 The last registration on file for him is from May, 2003, out of Buffalo County, South Dakota.
In May, 2008, Pomani called Laddimer Clifford, a criminal investigator at the time for the Rosebud Sioux Tribe, who was in charge of the Tribe's sex offender registry. Pomani said "he had just moved into the area or was staying with a relative" and wanted to know how to register and when he had to do so. Clifford explained the registration process and told Pomani he had ten days to register. At the time, Pomani was listed in the State's registry as a non-registered sex offender from Fort Thompson (Buffalo County), South Dakota. Pomani did not, at any time thereafter, register with Clifford or with the Rosebud Tribe.
On May 10, 2007, the Rosebud Tribe passed a resolution electing to carry out SORNA's national system, as a jurisdiction subject to its provisions. The following month, on June 5, 2007, the Crow Creek Sioux Tribe passed its own resolution declaring its intention to participate in the same national system as a registration jurisdiction.
As part of its expected proof at trial, the Government intends to show that Pomani failed to register as a sex offender, between July 1, 2008, and October 14, 2008, on three separate occasions—once when he entered and remained on the Crow Creek Reservation, once when he left the Reservation and went to the Rosebud Reservation, and once when he returned to the Crow Creek Reservation. Pomani does not dispute that he is alleged to have been on both the Crow Creek and Rosebud Reservations.
Pomani seeks to dismiss the Indictment claiming that SORNA violates the Ex Post Facto, Due Process, Equal Protection and Commerce Clauses of the United States Constitution and the Non-Delegation Doctrine. Although the Government has not filed a formal response to the Motion, it has, in two other pending cases3, asserted that a similar dismissal motion should be denied based on the Eighth Circuit's recent pronouncements, in United States v. May, 535 F.3d 912 (8th Cir.), petition for cert. filed (U.S. Dec. 30, 2008) (No. 08-7997). Each of Pomani's claims will be addressed in turn below.
Rule 12(b)(2) of the Federal Rules of Criminal Procedure provides for consideration, prior to trial, of "any defense, objection, or request that the court can determine without a trial of the general issue." To withstand a motion to dismiss, an indictment must allege that the defendant committed acts which, if proven, would constitute a violation of the law under which he has been charged. United States v. Polychron, 841 F.2d 833, 834 (8th Cir.). cert denied, 488 U.S. 851, 109 S.Ct. 135, 102 L.Ed.2d 107 (1988). If the acts alleged in the indictment do not constitute a criminal offense, then the indictment should be dismissed. See e.g. United States v. Coia, 719 F.2d 1120, 1123 (11th Cir.1983), cert. denied, 466 U.S. 973, 104 S.Ct. 2349, 80 L.Ed.2d 822 (1984).
In reviewing the sufficiency of an indictment, a court must determine whether the indictment includes the elements of the offense, provides adequate notice of the charge, and enables the defendant to plead double jeopardy as a bar to further prosecution. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Hernandez, 299 F.3d 984, 992 (8th Cir.2002), cert. denied, 537 U.S. 1134, 123 S.Ct. 918, 154 L.Ed.2d 825 (2003). "An indictment will ordinarily be held sufficient unless it is so defective that it cannot be said, by any reasonable construction, to charge the offense for which the defendant was convicted." Hernandez, 299 F.3d at 992.
"An indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true." United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962). "Courts should refrain from considering evidence outside the indictment when testing its legal sufficiency." United States v. Hall, 20 F.3d 1084, 1087 (10th Cir.1994). However, it is permissible, and even desirable in certain circumstances, for a court to consider evidence in connection with a pretrial motion to dismiss, particularly where the operative facts are undisputed and not objected to, in order to ascertain whether the elements of the criminal charge can be established. Id. at 1087-88; United States v. Brown, 925 F.2d 1301, 1304 (10th Cir. 1991).
Due deference to the decisions of another branch of government demands that a congressional enactment be invalidated only upon a "plain showing" that Congress exceeded its constitutional bounds. United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). It is with this presumption of constitutionality in mind that the Court must review Pomani's claims. Id.
SORNA was enacted on July 27, 2006, as a component of the Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248, 120 Stat. 587 (July 27, 2006). SORNA establishes "a comprehensive national system" for the registration of sex offenders. § 16901. Under this national system, each jurisdiction is required to maintain "a jurisdiction-wide sex offender registry" that conforms to the requirements of SORNA. §§ 16911(10), 16912(a).
Under SORNA, "an individual who is convicted of a sex offense" must "register and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student." §§ 16911(1), 16913(a).4 A sex offender must initially register in the jurisdiction in which he was convicted, § 16913(a), and within three days after any change of "name, residence, employment or student status" the offender must appear in person and at least one jurisdiction involved and...
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