United States v. Black

• Decision Date: 08 August 2013
• Docket Number: No. 1:12–CR–117.,1:12–CR–117.
• Parties: UNITED STATES of America v. Richard BLACK.
• Court: U.S. District Court — Eastern District of Tennessee

963 F.Supp.2d 790

UNITED STATES of America

v.Richard BLACK.

No. 1:12–CR–117.

United States District Court, E.D. Tennessee.

Aug. 8, 2013.

Perry H. Piper, U.S. Department of Justice, Chattanooga, TN, for United States of America.

MEMORANDUM

CURTIS L. COLLIER, District Judge.

Defendant Richard Black (“Defendant”) has filed a motion to dismiss the indictment (Court File No. 12). The Government submitted a response in opposition to Defendant's motion (Court File No. 13), and Defendant submitted a reply (Court File No. 17). The Court held a hearing on June 17, 2013, at which time the parties argued their positions and requested additional time to brief a newly raised issue by Defendant. The Court granted the parties' request. To date, a supplemental brief has been filed by the Government (Court File No. 19), a supplemental response has been filed by Defendant (Court File No. 20), and a supplemental reply has been filed by the Government (Court File No. 21).

The issues raised by the parties involve novel questions of law and apply to a unique fact pattern. Therefore, the Court commends counsel on their advocacy for their respective party. After considering the arguments made by counsel both at the hearing and in their briefs, as well as the relevant law, the Court will DENY Defendant's motion to dismiss the indictment (Court File No. 12).

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

In May 1988, Defendant pleaded guilty in Louisiana to engaging in indecent behavior with a juvenile, in violation of La.Rev.Stat. Ann. § 14:81. After serving a term of incarceration, Defendant was released on June 30, 1992. On June 18, 1992, just days prior to his release, new legislation became effective in Louisiana imposing a ten-year registration requirement for sex offenders upon release from imprisonment; that period would expire after ten years as long as the convicted sex offender did not become subject again to this same chapter in the statute. SeeLa.Rev.Stat. Ann. § 15:544. Defendant registered under Louisiana law upon release from prison. His parole ended in 1996.

Defendant was not charged with any subsequent offenses until 2007, when he was charged with aggravated assault on a peace officer with a firearm, in violation of La.Rev.Stat. Ann. § 14:37.2. Defendant was convicted and sentenced to five years in prison. He was released in October 2011 and placed on parole. On October 24, 2011, his parole officer ordered that he register under the sex offender registry law, and Defendant acquiesced. According to Defendant, however, he only registered out of fear his parole might be revoked. On June 7, 2012, a warrant was issued by the state of Louisiana for Defendant's failure to register. On July 20, 2012, Defendant was arrested in Tennessee. Defendant had not registered in Tennessee nor had he updated his registration information in Louisiana.

On September 25, 2012, Defendant was indicted by a federal grand jury and charged with failure to register and update his registration pursuant to the Sex Offender Registration and Notification Act (“SORNA”), in violation of 18 U.S.C. § 2250(a) and 42 U.S.C. §§ 16911 and 16913. Now pending before the Court is Defendant's motion to dismiss the indictment.

II. STANDARD OF REVIEW

Outside the context of the Speedy Trial Act, dismissing an indictment on a defendant's motion is a significant step for a district court to take. “[D]ismissal of the indictment is appropriate only if it is established that the violation substantially influenced the grand jury's decision to indict, or if there is ‘grave doubt’ that the decision to indict was free from the substantialinfluence of such violations.” Bank of Nova Scotia v. United States, 487 U.S. 250, 254, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988).

Motions to dismiss are governed by Rule 12 of the Federal Rules of Criminal Procedure, which permits pretrial consideration of any defense “the court can determine without a trial of the general issue.” Fed.R.Crim.P. 12(b)(2). Rule 12 provides a defendant may bring a motion challenging “a defect in the indictment or information,” including “a claim that the indictment or information fails to invoke the court's jurisdiction.” Fed.R.Crim.P. 12(b)(3)(B). Generally, a defense can be determined before trial if it involves questions of law instead of questions of fact on the merits of criminal liability. United States v. Craft, 105 F.3d 1123, 1126 (6th Cir.1997). Accordingly, the defense may use a Rule 12(b) motion to raise for consideration such matters as “former jeopardy, former conviction, former acquittal, statute of limitations, immunity [and] lack of jurisdiction.” Id. In considering such motions, a trial court may “ordinarily make preliminary findings of fact necessary to decide questions of law presented by pretrial motions so long as the trial court's conclusions do not invade the province of the ultimate factfinder.” Craft, 105 F.3d at 1126.

III. DISCUSSION

In light of the parties' arguments at the June 17 hearing and their averments in their supplemental briefs, the Court observes two issues remain for the Court's consideration.¹ The first issue pertains to whether Defendant is a Tier I or Tier II sex offender for purposes of SORNA. Defendant's classification is relevant because it would have a direct impact on when Defendant's registration period ended under SORNA.² In the event the Court determines Defendant is a Tier II offender, the second issue would be whether applying the SORNA requirements would result in both Ex Post Facto and Due Process violations.

A. Classification under SORNA

Defendant argues under SORNA he is a Tier I, not a Tier II, offender. The distinction is significant because as a Tier I sex offender, Defendant would only be subject to a fifteen year period of registration, or even possibly a ten year period of registration if he maintained a “clean record” as defined by statute. Given that Defendant was released from prison for committing a sex offense in 1992, Defendant argues his registration period would have expired in either 2002 or 2007. Thus, the time period for registering would have ended well before the instant offense. On the other hand, Defendant acknowledges that as a Tier II offender he would have been subject to a twenty-five year registration period.

As background, Title 18, United States Code, Section 2250 makes it a crime for a sex offender to fail to register under the Sex Offender Registration and Notification Act or “SORNA,” 42 U.S.C. §§ 16901 et seq. Specifically, 18 U.S.C. § 2250 makes it a crime not to register if the person “is required to register under [SORNA]”; “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 ... or the law of any territory or possession of the United States”; “travels in interstate or foreign commerce”; and “knowingly fails to register or update a registration as required by [SORNA].” 18 U.S.C. § 2250. Although SORNA was passed on July 27, 2006, the statute was not made effective until August 1, 2008. See United States v. Utesch, 596 F.3d 302, 311 (6th Cir.2010). At issue here is whether Defendant was a Tier I or Tier II sex offender and, depending upon his classification, whether he was still required to register.

Sex offenders under SORNA are classified into one of three categories: Tier I, II, or III. A Tier I sex offender is subject to a fifteen year registration period, and with a clean record, that period can be reduced to ten years. 42 U.S.C. § 16915(a)-(b). A Tier II sex offender, on the other hand, is subject to a twenty five year registration period. Id. Finally, a Tier III sex offender is generally subject to a registration period of life. Id.

The statute defines a Tier I sex offender as “a sex offender other than a tier II or tier III sex offender.” 42 U.S.C. § 16911(2). A Tier II sex offender is defined as follows:

a sex offender other than a tier III 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, when committed against a minor, or an attempt or conspiracy to commit such an offense against a minor:

...

(iv) abusive sexual contact (as described in section 2244 of Title 18)

42 U.S.C. § 16911(3).

Title 18, United States Code, Section 2244 provides limited guidance regarding the definition of “abusive sexual contact.” The Court observes that two provisions in § 2244 could be relevant to Defendant's case and the manner in which “abusive sexual contact” should be defined: (1) 18 U.S.C. § 2244(a)(3), which pertains specifically to offenses against minors as described in § 2243(a), and (2) 18 U.S.C. § 2244(b), which is more akin to a catch-all provision. Section 2244(a)(3) applies to anyone who “knowingly engages in or causes sexual contact with or by another person” if under § 2243(a) the sexual contact would have been a “sexual act.” Section 2243(a) applies to anyone who “knowingly engages in a sexual act with another person who (1) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the person so engaging; or attempts to do so.” 18 U.S.C. § 2243(a). The statute defines a “sexual act” as, inter alia, “the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(2).

Section 2244(b), on the other hand, addresses sexual conduct not otherwise covered by the other provisions of § 2244. Section 2244(b) pertains to anyone who “knowingly engages in sexual contact with another person without that other person's permission.” “Sexual contact” is defined in the statute as “the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner...