United States v. Marrowbone
| Decision Date | 26 November 2014 |
| Docket Number | 3:14-CR-30071-RAL |
| Court | U.S. District Court — District of South Dakota |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. DAVID MARROWBONE, Defendant. |
The Government charged David Marrowbone with one count of failure to register as a sex offender in violation of 18 U.S.C. § 2250(a). Doc. 1. On October 14, 2014, Marrowbone, through counsel, filed a motion to dismiss indictment for failure to state an offense pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B) and a brief in support of that motion. Docs. 27, 28. The Government opposed the motion and filed a brief supporting its position, Doc. 31, after which Marrowbone filed a reply brief, Doc. 32. For the reasons set forth below, Marrowbone's motion to dismiss is denied.
Marrowbone argues that the indictment fails to state an offense and therefore must be dismissed pursuant to Rule 12(b)(3)(B). Docs. 27, 28, 32. When ruling on a motion to dismiss, a court must accept all factual allegations in the indictment as true. See United States v. Sampson, 371 U.S. 75, 78-79 (1962). A valid indictment must allege that "the defendant performed acts which, if proven, constitute the violation of law for which he is charged." UnitedStates v. Polvchron, 841 F.2d 833, 834 (8th Cir. 1988). If an indictment fails to allege acts that constitute a violation of law, then it may be dismissed. Id. An indictment adequately states an offense if it "contains all of the essential elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to a subsequent prosecution." United States v. Sewell, 513 F.3d 820, 821 (8th Cir. 2008) (quoting United States v. Hernandez, 299 F.3d 984, 992 (8th Cir. 2002)). This is a low bar, and an indictment normally will be found valid unless it is "so defective" that no reasonable construction of it properly charges the offense for which the defendant is being tried. See Sewell, 513 F. 3d at 821. Normally, an indictment that tracks the statutory language is sufficient. Id.
The Government alleges that Marrowbone failed to register or update his registration as required by federal law. Federal law requires that:
18 U.S.C. § 2250(a). The indictment charges:
On or between the 3rd day of February, 2014, and the 14th day of March, 2014, in the District of South Dakota, the defendant, David Marrowbone, a person required to register under the Sex Offender Registration and Notification Act, and a sex offender by reason of a conviction under Federal Law, did knowingly fail to register and update a registration, in violation of 18 U.S.C. § 2250.
Although terse, the wording of the indictment tracks the three elements of the offense. First, it alleges that Marrowbone is required to "register under the Sex Offender Registration and Notification Act," invoking § 2250(a)(1). Second, it alleges that Marrowbone is a "sex offender by reason of a conviction under federal law," which is required by § 2250(a)(2)(A). Third, it alleges that Marrowbone "knowingly fail[ed] to register and update a registration," which tracks the language of § 2250(a)(3). The indictment also alleges a narrow timeframe in which Marrowbone allegedly failed to register, which provides sufficient notice for him to plea a prior conviction or acquittal of the current alleged offense. On its face, the indictment is valid.
A valid indictment ordinarily will survive a motion to dismiss for failure to state an offense without further inquiry. "An indictment should be tested solely on the basis of the allegations made on its face," Sampson, 371 U.S. at 78-79, and no evidence outside the four corners of the indictment should be considered, United States v. Hall, 20 F.3d 1084, 1087 (10th Cir. 1994). In a criminal proceeding based on a grand jury indictment, there is no procedure to test the sufficiency of the Government's evidence prior to trial. United States v. Ferro, 252 F.3d 964, 968 (8th Cir. 2001). A court cannot dismiss an indictment based on "predictions as to what the trial evidence will be," instead it must give the Government the opportunity to present its evidence. Id. (quoting United States v. Laurentis, 230 F.3d 659, 661 (3d Cir. 2000). However, in certain circumstances, such as when operative facts are undisputed, it is permissible for a court to consider evidence in connection with a pretrial motion to dismiss. United States v. Lafferty, 608 F. Supp. 2d 1131 (D.S.D. 2009) (citing Hall, 20 F.3d at 1087-88).
In this case, both parties agree that the underlying criminal offense alleged to trigger Marrowbone's responsibility to register is a 1982 federal conviction for assault with intent tocommit rape in violation of the version of 18 U.S.C. § 113(a) that was in force at the time.1 Doc. 28 at 3; Doc. 31 at 3. Marrowbone argues that his 1982 conviction for assault with intent to commit rape does not qualify as an offense for which he must register as a sex offender. Thus, the issue raised is whether the underlying offense is a qualifying offense for purposes of § 2250 and the Sex Offender Registration and Notification Act (SORNA). This is a legal rather than a factual issue appropriate to be decided before trial. If Marrowbone's claim is valid, it would be unfair to Marrowbone and a waste of judicial resources to begin a trial on an indictment that would be dismissed on a legal issue.
Only a "sex offender" who is required to register under SORNA, but fails to so register is subject to criminal punishment under § 2250. A sex offender is an individual who has been convicted of a "sex offense." 42 U.S.C. § 16911(1). Federal law defines a sex offense:
42 U.S.C. § 16911(5)(A). The Government does not claim Marrowbone's 1982 conviction was a specified offense against a minor victim. Marrowbone's 1982 conviction was a violation of 18 U.S.C. § 113 as it existed at the time and thus was not one of the enumerated federal offenses ora specified military offense. Therefore, the 1982 offense is a sex offense only if it falls under clause (i) or clause (v) of the definition of sex offense.
To decide whether an underlying conviction is a sex offense, the statute directs a court to determine whether the offense of conviction has "an element involving a sexual act or sexual contact with another." 42 U.S.C. § 16911(5)(A)(i). The use of terms like "conviction" in §16911(1) and "element" in § 16911(5)(A)(i) suggests a categorical approach to determine whether the prior offense qualifies as a sex offense. See United States v. Gonzalez-Medina, 757 F.3d 425, 429 (5th Cir. 2014) (citing Taylor v. United States, 495 U.S. 575, 600-01 (1990)). However, because the assault statute under which Marrowbone was convicted charged alternate versions of assault, this Court may consider a limited scope of facts beyond the statute to determine what elements must have been proven to secure the conviction. Cf. Descamps v. United States, 133 S. Ct. 2276, 2283-84 (2013) ().
Assault with intent to commit rape is not necessarily a "criminal offense that has an element involving a sexual act or sexual contact with another." The terms "sexual act" and "sexual contact" are defined in Title 18, Chapter 109A, of the United States Code, and both require actual physical contact between the offender and the victim. 18 U.S.C. §§ 2246(2)-(3). Assault with intent to commit rape had two elements: (1) an assault (2) perpetrated with the specific intent to commit rape. United States v. Iron Shell, 633 F.2d 77, 88 (8th Cir. 1980). The crime of assault with intent to commit rape could be committed without any actual physical contact with the victim. Id.; see also Ladner v. United States, 358 U.S. 169, 177 (1958) (). While a conviction of assault with intent to commit rape could have involved a sexual act or sexual contact, neither is a necessary element for a conviction. Assault with intent to rape therefore cannot be considered a sex offense under clause (i) of 42 U.S.C. § 16911(5)(A), which requires "a criminal offense that has an element involving a sexual act or sexual contact with another."
The Government posits that rape is a criminal offense that has a sexual act as an element of the offense. Doc. 31 at 4-7. The Government then argues that assault with intent...
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