United States v. Burgee

• Decision Date: 25 March 2019
• Docket Number: 3:18-CR-30164-RAL
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. KT BURGEE, a/k/a Kape Teal Burgee, Defendant.
• Court: U.S. District Court — District of South Dakota

UNITED STATES OF AMERICA, Plaintiff,
v.
KT BURGEE, a/k/a Kape Teal Burgee, Defendant.

3:18-CR-30164-RAL

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA CENTRAL DIVISION

March 25, 2019

OPINION AND ORDER DENYING MOTION TO DISMISS INDICTMENT

The Sex Offender Registration and Notification Act (SORNA) requires people who have been convicted of certain "sex offenses" to periodically register in the jurisdiction where they reside. 34 U.S.C. §§ 20911(1), 20913-20914. Defendant KT Burgee pleaded guilty in state court to sexual exploitation of a minor and received a suspended sentence. Docs. 27-1, 27-3. Burgee allegedly failed to register as a sex offender and was later indicted by a federal grand jury for failing to register as a sex offender in violation of 18 U.S.C. § 2250. Doc. 1. Burgee moved to dismiss the indictment, arguing that his state conviction does not qualify as a "sex offense" under SORNA and that the relevant definition of a "sex offense" is void for vagueness. Doc. 26. This Court denies Burgee's motion because a jury must determine whether his prior conviction is a "sex offense" and a decision on Burgee's vagueness argument would be premature.

I. Background

Burgee was charged in state court with sexual exploitation of a minor under South Dakota Codified Law (SDCL) § 22-22-24.3. That statute reads in relevant part:

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A person is guilty of sexual exploitation of a minor if the person causes or knowingly permits a minor to engage in an activity or the simulation of an activity that:

(1) Is harmful to minors;
(2) Involves nudity; or
(3) Is obscene.

Consent to performing these proscribed acts by a minor or a minor's parent, guardian, or custodian, or mistake as to the minor's age is not a defense to a charge of violating this section.

SDCL § 22-22-24.3. Burgee's information cited to SDCL § 22-22-24.3(2) but seemed to concern § 22-22-24.3(1), alleging that Burgee "did cause or knowingly permit a minor to engage in an activity or the simulation of an activity that is harmful to minors." Doc. 27-2.

Burgee pleaded guilty to the offense in June 2014. Doc. 27-3. He had the following exchange with the state judge about the factual basis for his plea:

THE COURT: Mr. Burgee, back on March 17th, did you have contact with an individual who was under the age of 16?
[BURGEE]: Yes, Your honor.
THE COURT: And was that contact without the permission of that individual?
([Burgee] conferred with counsel.)
[BURGEE]: No, Your Honor.
THE COURT: It was not without the consent of the individual?
[BURGEE]: Yes.
THE COURT: But you knew this individual was not of age; is that correct?
[BURGEE]: At the time I didn't.
THE COURT: Ms. Kloeppner.¹
MS. KLOEPPNER: I can fill in some blanks, Your Honor.
THE COURT: Please.
MS. KLOEPPNER: The Information in this case alleges that he permitted a minor to engage in an activity or the simulation of an activity that is harmful to minors. In this case Mr. Burgee had contact with a minor. The evidence in this case, the forensic evidence showed that his DNA was found on her neck and his DNA was found in her underwear. I think that would provide the factual basis.
THE COURT: Do you deny that?
[BURGEE]: No, your honor.

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Doc. 27-3 at 3. In August 2014, the state judge gave Burgee a suspended sentence of two years' imprisonment and ordered that he register as a sex offender "pursuant to South Dakota law." Doc. 27-1.

Over four years later, a federal grand jury indicted Burgee in this case for failing to register as a sex offender. Doc. 1. The indictment alleges that Burgee was required to register under SORNA "by reason of a conviction under state law." Doc. 1. The parties agree that Burgee's 2014 conviction for sexual exploitation of a minor is the conviction referenced in the indictment, and both parties have filed documents concerning this conviction. Burgee filed the information, the transcript from his change of plea hearing, and the judgment of conviction. The government filed police and lab reports as well as sex offender registration forms Burgee completed. According to the police report, the victim of Burgee's conviction was a fourteen-year-old girl who said that Burgee had raped her during a party at her mother's house. Doc. 28-3 at 1, 4. The girl told a forensic interviewer that Burgee had entered the bedroom where she was sleeping, stripped off her clothes, and forced his penis into her vagina. Doc. 28-2 at 4. The lab reports the government submitted state that semen was detected on the victim's panties as well as her vaginal and anal/perineum swabs. Doc. 28-3 at 1. DNA obtained from the sperm in the victim's panties matched the DNA profile obtained from Burgee.² Doc. 28-3. The sex-offender registration forms the government submitted show that Burgee registered eleven times between August 27, 2014 and August 5, 2016. Docs. 28-5 through 28-15.

II. Analysis

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A. Burgee's Argument That He is Not Required to Register Under SORNA

Congress enacted SORNA to protect the public from child predators and sexually violent criminals by ensuring that these individuals register as sex offenders. 34 U.S.C. § 20901; Reynolds v. United States, 565 U.S. 432, 435 (2012). To this end, § 2250 makes it a crime for a person who "is required to register under [SORNA]" and resides in Indian country to "knowingly" fail to register as a sex offender or update certain information. 18 U.S.C. § 2250. Burgee argues that the indictment should be dismissed because his state conviction does not trigger SORNA's registration requirement. This argument turns in large part on SORNA's definition of a "sex offense."

SORNA requires Burgee to register only if he is a "sex offender." 34 U.S.C. § 20913(a). A "sex offender," in turn, is defined as "an individual who was convicted of a sex offense." Id. § 20911(1). The issue here, then, is whether Burgee's state court conviction qualifies as a "sex offense" under SORNA. SORNA defines "sex offense" broadly. Section 20911(5), which is entitled "Amie Zyla expansion of sex offense definition," states that the term "sex offense" means, among other things, "(ii) a criminal offense that is a specified offense against a minor." Id. § 20911(5)(A)(ii). SORNA further defines the phrase "specified offense against a minor" in § 20911(7), which is aptly entitled "Expansion of definition of 'specified offense against a minor' to include all offenses by child predators." Id. § 20911(7). Section 20911(7) states:

The term "specified offense against a minor" means an offense against a minor that involves any of the following:

(A) An offense (unless committed by a parent or guardian) involving kidnapping.
(B) An offense (unless committed by a parent or guardian) involving false imprisonment.
(C) Solicitation to engage in sexual conduct.
(D) Use in a sexual performance.
(E) Solicitation to practice prostitution.
(F) Video voyeurism as described in section 1801 of Title 18.
(G) Possession, production, or distribution of child pornography.

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(H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct.
(I) Any conduct that by its nature is a sex offense against a minor.

Id. Burgee argues that subsection (I) is the only potentially applicable definition while the government contends that Burgee's prior conviction falls within subsection (H) and (I). Because Burgee's motion can be resolved under § 20911(7)(I), this Court focuses on the definition in that subsection.

The parties disagree over how to decide whether Burgee's state conviction involved "conduct that by its nature is a sex offense against a minor." Burgee advocates for the "categorical approach," under which courts consider the statutory definition of the crime of conviction but ignore the underlying facts.³ See United States v. Hill, 820 F.3d 1003, 1005 (8th Cir. 2016). The government, on the other hand, argues that this Court must apply a "circumstance-specific approach." Under that approach, courts may "examine the 'particular circumstances in which an offender committed the crime on a particular occasion.'" Id. (quoting Moncrieffe v. Holder, 569 U.S. 184, 202 (2013)).

The Eighth Circuit in Hill held that the circumstance-specific approach governs whether a prior offense constitutes "conduct that by its nature is a sex offense against a minor." Id. Looking to the text of § 20911(7)(I), the Eighth Circuit concluded that this subsection "manifestly invites an examination of the specific conduct in which the defendant engaged." Hill, 820 F.3d at 1005. This conclusion was supported, the Eighth Circuit reasoned, by SORNA's purpose. Id. After all,

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Congress passed SORNA to protect children from sex offenders, and it used broad terms to encompass "as many offenses against children as possible." Id. at 1005-06 (quoting United States v. Dodge, 597 F.3d 1347, 1355 (11th Cir. 2010) (en banc)). SORNA's "intended breadth," the Eighth Circuit explained, was illustrated by the headings for the subsection defining a "sex offense"—"Amie Zyla expansion of sex offense definition"—and the subsection defining the term "specified offense against a minor"— "Expansion of definition of 'specified offense against a minor' to include all offenses by child predators." Id. at 1006.

Other circuits have also concluded that § 20911(7)(I) calls for a circumstance-specific approach. United States v. Price, 777 F.3d 700, 708-09 (4th Cir. 2015) (holding that the circumstance-specific approach applies to § 20911(7)(I)); Dodge, 597 F.3d at 1353-56 (same); United States v. Mi Kyung Byun, 539 F.3d 982, 991-92 (9th Cir. 2008) (concluding that the noncategorical approach applies to determine the age of the victim under § 20911(7)(I)). The Eighth Circuit in Hill cited Price, Dodge, and Byun with approval when deciding that the circumstance-specific approach governs whether a prior offense involved "conduct that by its nature is a sex offense against a minor." Hill, 820 F.3d at 1005.

Burgee acknowledges that the Eighth Circuit has...