United States v. Grant

• Decision Date: 04 July 2018
• Docket Number: CRIMINAL ACTION FILE NO. 1:17-CR-236-AT-AJB
• Parties: UNITED STATES OF AMERICA v. BRADLEY STACEY GRANT, Defendant.
• Court: U.S. District Court — Northern District of Georgia

UNITED STATES OF AMERICA v. BRADLEY STACEY GRANT, Defendant.

CRIMINAL ACTION FILE NO. 1:17-CR-236-AT-AJB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

July 4, 2018

UNITED STATES MAGISTRATE JUDGE'S ORDER AND FINAL REPORT AND RECOMMENDATION

Defendant Bradley Stacey Grant ("Grant" or Defendant) is charged with failing to register under the Sex Offender Registration and Notification Act ("SORNA" or "the Act"), 34 U.S.C. § 20901 et seq.,¹ after traveling in interstate commerce, in violation of 18 U.S.C. § 2250(a). [Doc. 1]. He moves to dismiss the indictment on the grounds that his guilty plea to child molestation, entered pursuant to the Georgia First Offender Act, where adjudication of guilt was withheld, did not constitute a "conviction" for purposes of triggering the registration requirements under SORNA. [Doc. 15]. TheCourt disagrees and, therefore, RECOMMENDS that Grant's motion to dismiss the indictment, [Doc. 15], be DENIED.

I. Introduction

A. Procedural History

Grant is charged in a single count indictment that alleges as follows:

Beginning on or about September 26, 2016, in the Northern District of Georgia and elsewhere, the defendant, BRADLEY STACEY GRANT, a person required to register under the Sex Offender Registration and Notification Act, and having traveled in interstate and foreign commerce, did knowingly fail to register and update registration, as required by the Sex Offender Registration and Notification Act, in violation of Title 18, United States Code, Section 2250(a).

[Doc. 1 at 1]. Grant filed a motion to dismiss the indictment, [Doc. 15], to which the Government responded, [Doc. 20], and Grant replied, [Doc. 26]. Thereafter, in response to an order directing the Government to respond to Grant's argument about the non-delegation doctrine, [Doc. 28], the Government filed a sur-response, [Doc. 31], to which Grant filed a sur-reply, [Doc. 39].² With briefing complete, the motion to dismiss is ripe for recommended resolution.

B. Legal Standards

Ordinarily, when ruling on a motion to dismiss an indictment, a court is limited to reviewing the face of the indictment and, more specifically, the language used to charge the crime. United States v. Sharpe, 438 F.3d 1257, 1263 (11^th Cir. 2006) (citing United States v. Critzer, 951 F.2d 306, 307 (11^th Cir.1992)); see also id. (explaining that a court may not "dismiss an indictment . . . on a determination of facts that should have been developed at trial") (quoting United States v. Torkington, 812 F.2d 1347, 1354 (11^th Cir. 1987)).

However, Rule 12(b)(2) of the Federal Rules of Criminal Procedure provides that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." Fed. R. Crim. P. 12(b)(2). " '(T)he propriety of granting a motion to dismiss an indictment under . . . Rule 12 by pretrial motion is by-and-large contingent upon whether the infirmity in the prosecution is essentially one of law or involves determinations of fact.' " United States v. Korn, 557 F.2d 1089, 1090 (5^th Cir. 1977)³ (quoting United States v. Miller, 491 F.2d 638, 647 (5^th Cir. 1974) (footnote omitted)). If a question of law is involved, thenconsideration of the motion is generally proper. Id. (citing United States v. Jones, 542 F.2d 661, 664 (6^th Cir. 1976)).

In this case, the parties agree that only a question of law is involved and that the Court may rule on the motion before trial. [Doc. 15 at 2 (citations omitted); Doc. 20 at 1-2]. While the parties' views are persuasive, they are not controlling, so the Court must independently determine whether it has the authority to consider the issues raised before trial.

While the ultimate issue is one of law, resolving the issue pretrial requires the Court to consider facts outside the four corners of the indictment. Nonetheless, at issue is whether Grant's First Offender sentence triggered his SORNA registration requirement, an issue that Court concludes is an issue strictly of law. Although the Court's research has not directed it to any SORNA cases directly on point, the Eleventh Circuit has held in somewhat analogous circumstances that determining what qualifies as a triggering conviction for applying a federal statute is a question of law. Dixon v. U.S. Attorney Gen., 768 F.3d 1339, 1341 (11^th Cir. 2014) (holding that whether a conviction qualifies as "an aggravated felony" under the Immigration and Nationality Act is a question of law); United States v. Anton, 546 F.3d 1355, 1358 (11^th Cir. 2008) (finding that defendant's status as convicted felon for purposes of18 U.S.C. § 922(g)(1) prosecution "involved a question of law, rather than a question of fact for the jury"); United States v. Grinkiewicz, 873 F.2d 253, 255 (11^th Cir. 1989) (finding that defendant's contention in § 922(g)(1) prosecution that prior proceeding did not amount to a conviction "involved a pure legal question, not a factual issue which the jury must decide"). Accordingly, the Court concludes that the motion to dismiss may be decided by way of a pretrial motion, particularly since the facts do not appear to be in material dispute.

II. Facts

The facts for purposes of the pending motion are as follows. On November 12, 2008, Grant pleaded guilty in the Superior Court of Cobb County, in Case No. 08-9-3426-18, to the Georgia crime of child molestation.⁴ In placing him on probation for five years, the Superior Court Judge deferred judgment under the Georgia First Offender Act, O.C.G.A. § 42-8-60 et seq., ordering as follows:

WHEREAS, said defendant has not previously been convicted of a felony nor availed himself of the provision of the First Offender Act (Ga. Laws 1968, p. 324).

NOW, THEREFORE, the defendant consenting hereto, it is the judgement of the Court that no judgement of guilt be imposed at this time, but thatfurther proceedings are deferred and defendant is hereby sentenced to confinement for the period of -------- and/or placed on probation for the period of Five (5) years from this date provided that said defendant complies with the following general and special conditions herein imposed by the Court as part of his sentence:

PROVIDED, further, that upon violation of the terms of probation, the Court may enter an adjudication of guilt and proceed to sentence defendant to the maximum sentence provided by law. Upon fulfillment of the terms of probation, or upon release of the defendant by the Court prior to the termination of the period thereof, the defendant shall stand discharged of said offense charged and shall be completely exonerated of guilt of said offense charged.

Let a copy of this Order be forwarded to the Office of the State Probation System of Georgia, and the identification Division of the Federal Bureau of Investigation.

[Doc. 20-1 at 1]. Grant also was ordered to pay a $1,000 fine and comply with "Special Conditions of Probation for Child Abuser/Sex Offender," which included supervision by a probation officer; waiver of confidentiality; treatment and counseling; and various travel, residence, association, and work restrictions. [Id. at 2-3].

Thereafter, on April 2, 2009, Grant acknowledged in writing that he was required to register pursuant to O.C.G.A. § 42-1-12 "as a sex offender in the State of Georgia for a lifetime requirement." [Doc. 20-2 at 3-6]. His First Offender status was revoked on March 24, 2017, on grounds unrelated to the indictment presently before the Court. [Doc. 26 at 2-3].

III. Arguments of the Parties

In his opening brief filed in support of his motion, Grant argues that following his November 2008 guilty plea, adjudication of guilt was withheld under the Georgia First Offender Act and, therefore, he had no reporting obligations under SORNA because, as of September 26, 2016 (the date charged in the indictment), he had not been convicted of a sex offense. [Doc. 15 at 2 (citing 34 U.S.C. § 20913 (prescribing reporting obligations for sex offenders); and quoting 34 U.S.C. § 20911 ("The term 'sex offender' means an individual who was convicted of a sex offense.") (emphasis in brief))]. He argues that because one of the elements of a SORNA prosecution is being required to register, he did not incur a registration obligation as of September 26, 2016 (the violation date alleged in the indictment presently before the Court), and, therefore, the indictment should be dismissed. [Id. at 2-3 (citations omitted)].⁵

In response, the Government argues that Grant's First Offender guilty plea qualifies as a conviction under SORNA. It first contends that Grant did not show howhis 2008 guilty plea was not a conviction, given that he was given a five-year probated sentence, and argues that one cannot receive a sentence of probation without a conviction. [Doc. 20 at 2 (quoting Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 113-14 (1983) ("It is . . . plain that one cannot be placed on probation if the court does not deem him to be guilty of a crime . . . ."))]. It also points out that the sentencing court never entered an order of discharge; instead, Grant's First Offender status subsequently was revoked. [Id. at 2-3].

The Government then argues that the particular nomenclature of Defendant's conviction is irrelevant because the Attorney General's guidelines issued pursuant to SORNA clearly cover convictions under the Georgia First Offender Act, since these guidelines provide, in material part, that "an adult sex offender is 'convicted' for SORNA purposes if the sex offender remains subject to penal consequences based on the conviction, however it is styled." [Id. at 3 (quoting Office of the Attorney Gen.; The Nat'l Guidelines for Sex Offender Registration & Notification, 73 Fed. Reg. 38030-01 (hereinafter "SMART Guidelines"⁶))]. The Government contends that withholding adjudication is akin to having a conviction vacated or setaside, which the SMART Guidelines treat as a conviction, and thus Grant was required to register....