U.S. v. Stevens, No. CR-08-36-B-W.

• Citation: 578 F.Supp.2d 172
• Decision Date: 19 September 2008
• Docket Number: No. CR-08-36-B-W.
• Parties: UNITED STATES of America v. Olin Dudley STEVENS.
• Court: U.S. District Court — District of Maine

578 F.Supp.2d 172

UNITED STATES of America v. Olin Dudley STEVENS.

No. CR-08-36-B-W.

United States District Court, D. Maine.

September 19, 2008.

COPYRIGHT MATERIAL OMITTED

Virginia G. Villa, Federal Defender's Office, Bangor, for Defendant (1) Olin Dudley Stevens.

Gail Fisk Malone, Office of the U.S. Attorney, District of Maine, Bangor, for Plaintiff USA.

ORDER ON MOTIONS TO DISMISS INDICTMENT

JOHN A. WOODCOCK, JR., District Judge.

Charged with violating the Sex Offender Registration and Notification Act (SORNA), Olin Dudley Stevens moves to dismiss the Indictment on a host of grounds, ranging from the failure to state an offense to constitutional infirmities. Constrained by the limitations on motions to dismiss in a criminal context, the Court denies each motion. It concludes that the Indictment does state an offense under SORNA even though neither the state of Maine nor the state of Rhode Island has fully implemented its provisions, that SORNA does not violate the separation of powers and the non-delegation doctrines, that SORNA does not violate the Commerce Clause, that SORNA does not impermissibly restrict the right to travel, that SORNA does not violate the Due Process Clause or raise Ex Post Facto concerns as applied in this case, and finally that whether the Government will fail to prove an essential element of the charge must await trial.

I. STATEMENT OF FACTS

A. Four Motions to Dismiss

On February 12, 2008, a federal grand jury indicted Olin Dudley Stevens for one count of knowingly failing to register and update his registration as required by SORNA, an alleged violation of 18 U.S.C. § 2250(a). Indictment (Docket # 1). More specifically, the Indictment alleges that Mr. Stevens was convicted of a sex offense in Rhode Island in 1993, was required to register under SORNA, traveled in interstate commerce, and when in Maine from February 27, 2007 to February 12, 2008, he failed to register as required. On May 12, 2008, Mr. Stevens unleashed a broadside against the Indictment, filing four separate motions to dismiss on multiple theories. Def.'s Mot. to Dismiss Indictment for Failure to State an Offense (Docket # 14) (Def.'s First Mot.); Mot. to Dismiss Indictment as the Statute Charged Was Enacted in Violation [of] Numerous Restrictions on Federal Jurisdiction and Personal Freedoms Provided by the United States Constitution (Docket # 15) (Def.'s Second Mot.); Mot. to Dismiss Indictment as Unconstitutional as Applied (Docket # 16) (Def.'s Third Mot.); Mot. to Dismiss Indictment as Disc. Indicates a Failure of Proof as to an Essential Element of the Crimes Charged (Docket # 17) (Def.'s Fourth Mot.). The Government opposed each motion. Government's Opp'n. to Def.'s Mots, to Dismiss (Docket # 24) (Govt.'s Opp'n.). The Defendant replied to each, except the Government's opposition to the motion to dismiss as unconstitutional as applied. Def.'s Reply to Government's Resp. [DEN 24] to Mot. to Dismiss Indictment for Failure to State an Offense (Docket # 27) (Def.'s First Reply); Def.'s Reply to Government's Mem. in Opp'n [DEN 24] to Mot. to Dismiss Indictment as Disc. Indicates a Failure of Proof as to an Essential Element of the Crimes Charged (Docket #28) (Def.'s Second Reply); Reply to Government's Resp. in Opp'n to Mot. to Dismiss Indictment as the Statute Charged was Enacted in Violation [of] Numerous Restrictions on Federal Jurisdiction and Personal Freedom Provided by the United States Constitution (Docket # 29) (Def.'s Third Reply).

B. The Indictment

On February 12, 2008, a federal grand jury returned a one count Indictment against Mr. Stevens. It alleges:

That beginning on or about February 27, 2007, and continuing until on or about February 12, 2008, in the District of Maine, defendant Olin Dudley Stevens who (a) had been convicted of a sex offense in Rhode Island in 1993; (b) was, as a result of his conviction, required to register under the Sex Offender Registration and Notification Act; and (c) traveled in interstate commerce; knowingly failed to register and update his registration as required by the Sex Offender Registration and Notification Act.

Indictment (Docket # 1). The Indictment alleges a violation of 18 U.S.C. § 2250(a).

C. Mr. Stevens' Evidence

To frame his arguments, Mr. Stevens proposes the following: Mr. Stevens was convicted on October 28, 1993 of two counts of Sexual Assault in the Second Degree in Rhode Island and upon his release from custody on September 8, 1995, he was placed on probation for seven and one-half years. Def.'s Third Mot. at 2. When released from prison, he was informed in writing of his obligation to register as a sex offender under the then applicable Rhode Island law:

Pursuant to title 11, Chapter 37, Section 16[of] the General Laws of the State of Rhode Island, you are required to register with the Chief of Police [of] the City or Town which you have designated within thirty (30) days of release on probation or assessment of fine. This action is necessitated by virtue of your conviction of the crime(s) of: Second Degree Sexual Assault 2 counts. Any violation of this provision will result in a misdemeanor charge punishable by a term of imprisonment of ninety (90) days and thereafter, one (1) year probation as well as a violation being initiated which could result in a revocation of probation or parole.

Id.; Notice of Duty to Register (Docket # 16-3). He was given a similar notification on July 1, 1999. Def.'s Third Mot. at 2-3; Notice of Duty to Register: Offense Committed Prior to July 24, 1996 (Docket # 16-2). Sometime between December 2006 and January 2007, Mr. Stevens moved from Rhode Island to Maine. Mr. Stevens asserts that there is no evidence he was ever notified that he was obligated to register under SORNA. Def.'s Third Mot. at 3.

D. The Government's Factual Response

The Government counters with its own evidence. The Government agrees Mr. Stevens was convicted on October 28, 1993 of two counts of second degree sexual assault in Superior Court for Newport, Rhode Island. Govt.'s Opp'n at 3. It says that the Rhode Island statute under which he was convicted required, as an element, proof that he "engaged in sexual contact with another person." Id. (citing R.I.G.L. 1956 § 11-37-4). It claims the victims of Mr. Stevens' crimes were girls age fifteen and thirteen and that he received a sentence of ten years incarceration, seven and one-half years of which were suspended. Id.

After he was notified on August 3, 1995 in writing of his registration duties, he registered with the town of Newport, Rhode Island, on September 8, 1995. Govt.'s Opp'n at 3. Sometime later, he apparently moved away from Newport and when he returned, he lived at a different address. Id. On December 3, 1996, he was arrested in Newport for failing to re-register as a sex offender and on December 18, 1996 he was convicted of that offense and sentenced to one year in prison. Id.

On July 8, 1999, Mr. Stevens registered as a sex offender in Pawtucket, Rhode Island, after being told to do so by his probation officer. Id. While registering in Pawtucket, he signed an acknowledgement that he had been informed of his duty to register in 1995 before he was released from prison. Id. at 3-4. Sometime after registering in Pawtucket, however, he moved to Woonsocket and on October 19, 2000 he was arrested there for failing to register. Id. at 4. He registered in Woonsocket the next day and on November 3, 2000 he received a thirty-day suspended sentence for failing to register as a sex offender. Id.

In mid-1999, before the Woonsocket conviction, he reunited with his younger sister, Billie Jo Stevens, and in late 1999, moved in with her and her children. Id. He told her about his duty to register, but misrepresented the details of his crime, saying that it arose from an incident with a seventeen-year-old former girlfriend. Id.

During the week of December 25-31, 2006 Mr. Stevens moved to Waterville, Maine, with his sister and her children. Id. On October 24, 2007, Rhode Island obtained a warrant for his arrest after it discovered that he had changed residences several times since last registering as a sex offender there. Id. After traveling to Maine, Mr. Stevens neither informed the state of Rhode Island of his move to Maine, nor registered pursuant to Maine law. Id. On November 16, 2007, Mr. Stevens was arrested in Waterville, Maine, on Rhode Island's October 24, 2007 warrant. Id.

II. DISCUSSION

A. The Motions to Dismiss

In returning an indictment, a grand jury is carrying out a constitutional function enshrined in the Bill of Rights. U.S. CONST. amend. V (stating that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury"). Accordingly, unlike civil actions, a criminal action, particularly one initiated by an indictment, is not generally subject to dispositive motion practice. United States v. DiTomasso, 552 F.Supp.2d 233, 238 (D.R.I.2008) (stating that "[a] motion to dismiss an indictment is not a device for a summary trial of the evidence, but rather is directed only toward the sufficiency of the indictment to charge an offense"). An indictment "is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Vega Molina, 407 F.3d 511, 527 (1st Cir.2005).

Rule 12(b)(2) allows a party to raise "by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue," but the phrase "that the court can determine without a trial of the general issue" imposes a significant constraint. Fed.R.Crim.P. 12(b)(2). A motion to dismiss an indictment tests "its...