United States v. Roy
| Decision Date | 09 January 2012 |
| Docket Number | Case No. 11-cr-109 |
| Court | U.S. District Court — District of Vermont |
| Parties | UNITED STATES OF AMERICA v. WILLIAM ROY |
MOTION TO DISMISS INDICTMENT
(Doc. 40)
This matter comes before the court on Defendant William Roy's motion to dismiss the Indictment on the basis that the Indictment fails to state an offense, is "duplicitous," and is based on a statute that is unconstitutional as applied to him. (Doc. 40.) The Government opposes the motion. The parties have waived oral argument. The Government is represented by AUSA Kevin J. Doyle. Defendant is represented by Bradley S. Stetler, Esq.
The Indictment charges Defendant as follows:
From in or about August 2008 through August 2011, in the District of Vermont and elsewhere, the defendant, WILLIAM ROY, a person required to register under the Sex Offender Registration and Notification Act [SORNA], having traveled in interstate commerce, did knowingly fail to register or update his registration as a sex offender.
(18 U.S.C. § 2250(a))
(Doc. 36.)
Defendant's facial challenge to the Indictment is twofold. First, he asserts that because the Indictment does not state that he had been convicted of a "sex offense" included in SORNA, it fails to allege an essential element of the charge against him. Second, he argues that because the Indictment alleges potentially three or four violations of SORNA, it joins two or more distinct crimes in a single count, requiring its dismissal as "duplicitous."
The following facts are undisputed for purposes of the pending motion. They are gleaned from a May 27, 2011 affidavit submitted by Senior Inspector Joseph M. Gaines of the U.S. Marshals Service in support of the initial criminal Complaint filed against Defendant. Defendant hypothesizes that this same evidence was presented to the grand jury. In its Opposition, the Government does not dispute this contention.
On September 9, 1993, Defendant was convicted in New Hampshire of two counts of aggravated felonious sexual assault, one count of attempted theft by extortion, and one count of kidnapping. Defendant served ten years and was released on February 2, 2003.
Prior to his release, Defendant signed a New Hampshire "Offender Register Information" form, wherein Defendant acknowledged that he is a convicted sex offender, is required to register and update his registration annually for the rest of his life, and must register with local law enforcement within thirty days of changing his address. At the time of his release, Defendant listed his address as 269 Hanover Street, Apt. 2, Lebanon, New Hampshire. Defendant last updated his registration on May 6, 2008, and indicated his address was 615 8th Avenue, San Diego, California.
In April 2011, New Hampshire law enforcement contacted the San Diego Police Department to determine whether Defendant had registered in California as a sex offender. California had no record of Defendant registering.
On February 24, 2011, New Hampshire law enforcement provided information to the Vermont Sex Offender Registry that Defendant was living at 380 East Cobble Hill Road in Barre, Vermont. Pursuant to Vermont law, Defendant was required to register for up to ten years after he completed his prison term if he moved to Vermont during that ten year period. According to this law, Defendant was thus required to register in Vermont upon moving here until 2013.
On March 2, 2011, Senior Inspector Gaines spoke in person with Defendant, who told him that he had been living at the Barre address since September of 2008. After interviewing Defendant's wife, Maryanne Holland, Senior Inspector Gaines learned that Defendant had been living in Vermont since 2007 and at the address in Barre sinceAugust 2008. As of May 25, 2011, Defendant had not registered in Vermont, despite being provided a copy of a "Notification of Duty to Register as a Sex Offender" form informing him of his obligation to register.
Shortly after speaking with Senior Inspector Gaines, and while allegedly "on the run" from local authorities, Defendant stayed at the Hollow Inn in Barre, Vermont from March 9, 2011 until March 14, 2011. He then purchased a recreation vehicle in New Hampshire and drove to Florida. Florida law enforcement sent Senior Inspector Gaines a record check, which indicated that Defendant had not registered in Florida as a sexual offender prior to May 16, 2011. Defendant called his wife at some time in April or May of 2011 and indicated that he had been in New Hampshire.
Defendant's sister-in-law, Evelyn Roy, stated that Defendant had visited her at her home in New Hampshire in March of 2011. She stated that Defendant did not live at her residence at 269 Hanover Street, Apt. 2, Lebanon, New Hampshire at any time in 2008.
In seeking dismissal of the Indictment pursuant to Fed. R. Crim. P. 12(b)(3), Defendant first contends that the Indictment fails to state an offense because it does not allege that he was convicted of a "sex offense" under SORNA.1 In response, the Government points out that the Indictment tracks the statutory language of a violation of 18 U.S.C. § 2250, and therefore adequately alleges a criminal offense.
Fed. R. Crim. P. 7(c)(1) requires that an indictment "be a plain, concise, and definite written statement of the essential facts constituting the offense charged." In order to meet these requirements, "an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime." United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir. 1975).
To determine whether the Indictment in this case is sufficient, the court thus examines the statute in question, which provides:
The Indictment at issue here tracks the statutory language and alleges that on the dates identified, in Vermont and elsewhere, Defendant, a person required to register under SORNA, knowingly failed to register after traveling in interstate commerce. Other courts have held similarly worded indictments state an offense. See, e.g., United States v. Dean, 606 F. Supp. 2d 1335, 1338 (M.D. Ala. 2009) (); United States v. Leader, 2011 WL 1584367, at *5 (E.D. Wash. Apr. 27, 2011) ().
In any event, it is not enough to merely identify an alleged deficiency in an indictment; a criminal defendant must go further and demonstrate that the alleged deficiency caused him or her prejudice. See United States v. Benjamin, 2011 WL4929534, at * 1 (D. Vt. Oct. 17, 2011) () (quoting United States v. Williams, 152 F.3d 294, 299 (4th Cir. 1998)) (internal quotation marks omitted). Consequently, even where an indictment is "not a model of clarity," the Second Circuit has "repeatedly refused, in the absence of any showing of prejudice, to dismiss . . . charges for lack of specificity." United States v. Walsh, 194 F.3d 37, 45 (2d Cir. 1999) (quoting United States v. McClean, 528 F.2d 1250, 1257 (2d Cir. 1976)).
Because the allegations of the Indictment are sufficient to state an offense, and because Defendant has not demonstrated prejudice as a result of the alleged imprecision in describing the underlying offense as a "sex offense" under SORNA, Defendant's motion to dismiss the Indictment for failure to state an offense is DENIED.
Defendant's second argument is less easily disposed of. As Defendant points out, the facts giving rise to the case against him arguably support as many as four SORNA violations for Defendant's failure to register as a sex offender in the states of Vermont, Florida, California, and New Hampshire over a three year period. Citing 42 U.S.C. § 16913(c), Defendant contends that a violation of SORNA is complete when a sex offender fails to register within three days of interstate travel, and therefore SORNA violations are not continuing offenses. Accordingly, Defendant seeks dismissal of the Indictment on the basis that it alleges several offenses in a single count. The Government responds that the Indictment is not "duplicitous" because it charges a single continuous offense over a three-year period.
"An indictment is duplicitous if it joins two or more distinct crimes in a single count." United States v. Aracri, 968 F.2d 1512, 1518 (...
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