United States v. Pertuset

Citation160 F.Supp.3d 926
Decision Date08 February 2016
Docket NumberCRIMINAL ACTION NO. 2:15-cr-00077
CourtU.S. District Court — Southern District of West Virginia
Parties United States of America, Plaintiff, v. Troy Anthony Pertuset, Defendant.

Jennifer Rada Herrald, U.S. Attorney's Office, Charleston, WV, for Plaintiff.




Pending before the Court is Defendant's Motion for Judgment of Acquittal (the “Motion”). (ECF No. 44.) For the reasons provided herein, the Court GRANTS the Motion. (Id. )

I. Background

The facts in this case are not in dispute, as the parties stipulated to each of the below facts. (See ECF No. 47, Ex. 1.) “On or about April 11, 2005, [Defendant] was convicted of sexual imposition in violation of Ohio Revised Code § 2907.06(A)(4)

... in the Highland County, Ohio Criminal Court, Greenfield, Ohio, Case Number CRB0500130B.” (Id. ¶ 1.) [Defendant] met with his probation officer in Highland County, Ohio, on September 11, 2007.” (Id. ¶ 2.) [Defendant] did not register as a sex offender in West Virginia between 2005 and 2009.” (Id. ¶ 7.)

“On or about July 31, 2009, a five-count Indictment was filed against [Defendant] in Kanawha County Circuit Court charging him with five counts of 3rd degree sexual assault in violation of WV Code § 61–8B–5

, Case number 09-F-522.” (Id. ¶ 6.) “On November 2, 2009, pursuant to a written plea agreement with the State of West Virginia, [Defendant] pled guilty to Counts One and Two of the Indictment.” (Id. ) “On February 4, 2010, [Defendant] was sentenced to a term of 1-5 years imprisonment on each count of conviction, to be served consecutively, with credit for 324 days that he had spent in custody since his arrest on March 17, 2009.” (Id. ) [Defendant] was released from custody on March 17, 2014, and began serving a term of five years of supervision.” (Id. ¶ 8.)

[Defendant] registered on the State of West Virginia Sex Offender Registry pursuant to the Sex Offender Registration and Notification Act (“SORNA”) “on March 19, 2014, and last updated his registry in West Virginia on May 5, 2014.” (Id. ¶ 9.) “According to [Defendant's] last West Virginia registry update, his address was the Roark Sullivan Lifeway Center, 505 Leon Sullivan Way, Charleston, WV 25301, and his place of employment was Shoney's Restaurant, 116 Kanawha Blvd. East, Charleston, WV 25301.” (Id. ¶ 10.)

“After updating his status in the West Virginia Registry on May 5, 2014, [Defendant] moved out of the Roark Sullivan Lifeway Center on May 8, 2014 and did not return to his employment with Shoney's.” (Id. ¶ 11.) [Defendant] failed to update his WV sex offender registry after May 8, 2014.” (Id. ¶ 12.)

“On May 14, 2014, a capias was issued for [Defendant's] arrest by the Kanawha County, West Virginia Circuit Court for violation of conditions of his supervision.”

(Id. ¶ 13.) “In February ... 2015, [Defendant] was arrested in the country of Belize.” (Id. ¶ 14.) “On March 25, 2015, a complaint was filed in the United States District Court for the Southern District of West Virginia charging [Defendant] with failing to update his sex offender registration in violation of 18 U.S.C. § 2250

.” (Id. ¶ 15.) “On March 25, 2015, [Defendant] was removed from the country of Belize in the custody of law enforcement offices [sic] from that country and flown to Miami, Florida.” (Id. ¶ 16.) [Defendant] was immediately arrested by members of the United States Marshal Service as he disembarked the flight from Belize in the custody of the Belizian authorities” and “has remained in ... custody ... since his arrest on March 25, 2015.” (Id. )

On April 7, 2015, the United States filed a single-count Indictment against Defendant. (ECF No. 6.) The Indictment alleges the following:

In or about May of 2014, in and around Charleston, Kanawha County, West Virginia, and within the Southern District of West Virginia, [Defendant], being required to register under [SORNA], and having traveled in interstate or foreign commerce, did knowingly fail to update his registration as required by [SORNA].
In violation of 18, United States Code, Section 2250


(Id. at 1.) On October 1, 2015, Defendant filed a Motion for Bench Trial, (ECF No. 31), which the Court granted by its order entered on October 2, 2015, (ECF No. 33).

The Court conducted a one-day bench trial in this matter on October 22, 2015. (ECF No. 45.) At the beginning of this trial, the Court determined that Defendant knowingly and voluntarily waived his right to a jury trial and found Defendant competent to stand trial. (See id. ) At the conclusion of the trial, Defendant filed the Motion and moved for an acquittal of the single-count Indictment. (ECF No. 44.) The Government filed its opposition to the Motion on November 15, 2015. (ECF No. 49; see also ECF No. 41 (constituting the Government's trial brief in this case).) Defendant has not filed a reply in support of the Motion to date. The Motion is thus fully briefed and ready for disposition.

II. Legal Standard
Federal Rule of Criminal Procedure 29

provides, in pertinent part, that [a]fter the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). Stated another way, [a] judgment of acquittal based on the insufficiency of evidence is a ruling by the court that as a matter of law the government's evidence is insufficient ‘to establish factual guilt’ on the charges in the indictment.” United States v. Alvarez , 351 F.3d 126, 129 (4th Cir.2003) (quoting Smalis v. Pennsylvania , 476 U.S. 140, 144, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986) ).

“The test for deciding a motion under Rule 29(a)

is ‘whether there is substantial evidence (direct or circumstantial) which, taken in the light most favorable to the prosecution, would warrant [the trier of fact] finding that the defendant was guilty beyond a reasonable doubt.’ United States v. Blankenship , Criminal Action No. 5:14–cr–00244, 2015 WL 8731688, at *1 (S.D.W.Va. Dec. 9, 2015) (quoting United States v. M


cCloskey , 682 F.2d 468, 473 (4th Cir.1982) ). “Although the United States may rely on inferences and circumstantial evidence, it ‘nevertheless must establish proof of each element’ of the crime ‘beyond a reasonable doubt.’ United States v. Ismail , 97 F.3d 50, 55 (4th Cir.1996) (quoting United States v. Burgos , 94 F.3d 849, 858 (4th Cir.1996) ). See generally

Burgos , 94 F.3d at 858

(“To require less of the Government would eviscerate its burden to prove all elements of a crime beyond a reasonable doubt and relieve it of its burden of vigilance in prosecuting crimes—thereby violating bedrock principles of our Anglo-American jurisprudence.” (citation omitted)). “If a ‘rational trier of fact’ can find that the essential elements of a charged offense are supported by the evidence, the motion must be denied.” Blankenship , 2015 WL 8731688, at *1 (quoting United States v. Singh , 518 F.3d 236, 246 (4th Cir.2008) ). “This standard of review is the same whether the trial was before a jury or before the court.” United States v. Witasick , No. 4:07CR00030–001, 2010 WL 1064735, at *1 (W.D.Va. Mar. 22, 2010) (citations omitted).

III. Discussion

Defendant argues, in pertinent part, that the Government provided insufficient evidence that he was obligated under 42 U.S.C. § 16913(a)

and (c) to update his West Virginia registration, as required for the violation of 18 U.S.C. § 2250 alleged in the Indictment. (ECF No. 44 at 5–10.) The Court first provides background on SORNA and the charge in the instant case, then addresses Defendant's argument.

A. Background on SORNA and the Charged Offense

[T]he federal sex-offender registration laws have, from their inception, expressly relied on state-level enforcement.” Carr v. United States , 560 U.S. 438, 452, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010)

. [W]hen it initially set national standards for state sex-offender registration programs in 1994, Congress did not include any federal criminal liability.” Id. Instead, Congress ... conditioned certain federal funds on States' adoption of ‘criminal penalties' for individuals who were “required to register under a State program,” but “knowingly fail[ed] to so register and keep such registration current.” Id. (citation omitted). In 1996, Congress supplemented state enforcement mechanisms by subjecting to federal prosecution any covered sex offender who changes address to a State other than the State in which the person resided at the time of the immediately preceding registration and knowingly fails to register as required.” Id. at 452–53, 130 S.Ct. 2229.

“On July 27, 2006, the Adam Walsh Child Protection and Safety Act of 2006 ... was signed into law.” United States v. Hatcher , 560 F.3d 222, 224 (4th Cir.2009)

(citation omitted). Title I of [this] Act is SORNA,” United States v. Smith , 528 F.Supp.2d 615, 616 (S.D.W.Va.2007), which “establishes a comprehensive regulatory scheme to track and provide community notification regarding convicted sex offenders,” United States v. Price , 777 F.3d 700, 703 (4th Cir.2015). Congress enacted SORNA “for the purpose of ‘protect[ing] the public from sex offenders and offenders against children’ through the creation of a ‘comprehensive national system for the registration of those offenders.’ Hatch


r , 560 F.3d at 224 (alteration in original) (quoting 42 U.S.C. § 16901 ). See generally

Price , 777 F.3d at 709 (noting that Congress passed SORNA in response “to ... vicious attacks by violent predators” (quoting 42 U.S.C. § 16901 )); United States v. Collins , 773 F.3d 25, 31 (4th Cir.2014) (Congress enacted SORNA to protect the population at large rather than the victim of the underlying crime.” (citation omitted)). In passing SORNA, Congress noted that the earlier federal efforts to create sex offender registries state-by-state had left...

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