United States v. Torchia
| Decision Date | 07 May 2021 |
| Docket Number | CASE NO. 1:20-CR-00464-MHC-LTW |
| Parties | UNITED STATES OF AMERICA, v. LUCIANO TORCHIA, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
This case is before the Court on Defendant Luciano Torchia's Motion to Dismiss Based on an Insufficient Indictment and Motion to Dismiss Indictment for Failure to State an Offense. [Docs. 22, 23]. For the reasons outlined below, the Court RECOMMENDS that Defendant's Motion to Dismiss Based on an Insufficient Indictment ([Doc. 22]) be DENIED. But the undersigned RECOMMENDS that Defendant's Motion to Dismiss Indictment for Failure to State an Offense ([Doc. 23]) be GRANTED.
Defendant is charged with one count of failure to register under the Sex Offender Registration and Notification Act ("SORNA"), in violation of 18 U.S.C. § 2250(a). [Doc. 1]. The Indictment contains the following allegations: Defendant is an individual who is required to register under SORNA, and while in the Northern District of Georgia between March and May 2020 after traveling in interstate commerce, knowingly failed to register and update registration as required under the Act. [Id.]. Defendant moves to dismiss the indictment as insufficient and as failing to state an offense. [Docs. 22, 23].
Defendant first argues the Indictment fails to offer specific facts regarding his obligation to register under SORNA and the dates he entered and left the state of Georgia. [Doc. 22 at 4-5]. The lack of specificity as to those facts, Defendant argues, renders him unable to rely upon any judgment under the Indictment for double jeopardy purposes. [Id. at 6].
In response, the Government contends that the Indictment is sufficient because it tracks the language of the failure to register statute and presents the essential elements constituting the charged offense. [Doc. 29 at 2]. The Government argues the Indictment includes sufficient facts to prove the essential elements of the offense and to protect Defendant from future double jeopardy concerns. [Id. at 4-6]. Further, the Government asserts that providing facts as to specific instances over a period of threemonths when Defendant was required to register or update registration is not required under the statute or by any binding precedent. [Id. at 4].
Defendant also moves to dismiss the Indictment for failing to state an offense. [Doc. 23 at 1]. Defendant contends that the facts in the Indictment, even if true, do not indicate that he is a sex offender under SORNA, and was thus under no obligation to register, because the Indictment does not include any facts to support why he is required to register. [Id. at 3]. Defendant also contends that the Indictment fails because his prior offense—Criminal Sexual Conduct in the Second Degree in violation of Minnesota Criminal Code § 609.343.1(a)—is not comparable to or more severe than aggravated sexual abuse under 18 U.S.C. § 2241. [Id.]. In response, the Government argues Defendant's prior offense was under a substantially similar law to the relevant federal statute, and consequently, Defendant is a sex offender with an obligation to register under SORNA. [Doc. 33].
Rule 7(c) of the Federal Rules of Criminal Procedure states that an indictment "must be a plain, concise, and definite written statement of the essential facts constituting the offense charged . . ." Fed. R. Crim. P. 7(c). Defendant may file amotion alleging a defect in the indictment or information, including a defect accounting to "failure to state an offense." Fed. R. Crim. P. 12(b)(3)(B)(v). "An indictment is considered legally sufficient if it: (1) presents the essential elements of the charged offense, (2) notifies the accused of the charges to be defended against, and (3) enables the accused to rely upon a judgment under the indictment as a bar against double jeopardy for any subsequent prosecution for the same offense." United States v. Schmitz, 634 F.3d 1247, 1259 (11th Cir. 2011) (quoting United States v. Jordan, 582 F.3d 1239, 1245 (11th Cir. 2009)). "It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as those words fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished." United States v. Garrett, 467 F. App'x 864, 867 (11th Cir. 2012) (citing Hamling v. United States, 418 U.S. 87, 117 (1974)); see also United States v. Critzer, 951 F.2d 306, 307-08 (11th Cir. 1992) (); United States v. Malone, No. 804CR348T24TGW, 2005 WL 1243762, at *3 (M.D. Fla. 2005) ().
An indictment that tracks the language of the statute must be accompanied by a statement of "facts and circumstances that will inform the accused of the specific offense, coming under the general description, with which he is charged." Russell v. United States, 369 U.S. 749, 765 (1962) (citations omitted). But an indictment does not have to "detail the factual proof that will be relied upon to support the charges." United States v. Sharpe, 438 F.3d 1257, 1263 n.3 (11th Cir. 2006) (quoting United States v Crippen, 579 F.2d 340, 342 (5th Cir. 1978)).
In ruling on the present motions, the Court must accept the facts in the indictment as true and may not rely on outside facts. See Sharpe, 438 F.3d at 1257-59; United States v. Plummer, 221 F.3d 1298, 1302 n.3 (11th Cir. 2000) (). In the context of a motion to dismiss an indictment for failure to state an offense, the Court is limited to "reviewing the face of the indictment and, more specifically, the language used to charge the crimes." Sharpe at 1263 (quoting United States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992)). A court must read the indictment "as a whole and give it a 'common sense construction.'" United States v. Jordan, 582 F.3d 1239, 1245 (11th Cir. 2009) (citation omitted). The Court must ultimately determine whether "the factual allegations in the indictment, when viewed in the light most favorable to thegovernment, [are] sufficient to charge the offense[s] as a matter of law." United States v. deVegter, 198 F.3d 1324, 1327 (11th Cir. 1999) (quoting United States v. Torkington, 812 F.2d 1347, 1354 (11th Cir. 1987)).
Defendant argues the Indictment is insufficient because it only tracks the basic language of the statute without offering specific facts to support the charge, creating unconstitutional vagueness. [Doc. 22 at 1-2]. Further, Defendant suggests that because the Indictment omits any discussion of 34 U.S.C. § 20913 and does not identify why Defendant is obligated to register, the essential elements of the charge are not provided in the Indictment. [Doc. 22 at 4]. The undersigned finds the Indictment sufficient because it tracks the language of the failure to register statute and alleges the essential elements of the offense. See United States v. Parker, No. 1:05-CR-45-ODE, 2006 WL 8443230, at *3 (N.D. Ga. 2006) (), report and recommendation adopted, No. 1:05-CR-045, 2007 WL 9734884 (N.D. Ga. 2007).
In relevant part, a violation of 18 U.S.C. § 2250(a) occurs when: (1) the person charged was "required to register under [SORNA]," (2) the person "travel[ed] in interstate or foreign commerce," and (3) the person "knowingly fail[ed] to register or update a registration as required by [SORNA]." 18 U.S.C. § 2250(a). In this case, the Indictment alleges that Defendant was "required to register under [SORNA]," "traveled in interstate commerce," and "knowingly fail[ed] to register [or] update registration as required by [SORNA]." [Doc. 1]. The Indictment is sufficient insofar as it "sets forth the offense in the words of the statute itself." Garrett, 467 F. App'x at 867.
Defendant's real argument is that the indictment fails to contain the necessary "facts and circumstances that will inform [Defendant] of the specific offense, coming under the general description, with which he is charged." See Russell, 369 U.S. at 765. Specifically, Defendant contends that the Indictment fails to notify him of the specific instance or instances between March and May 2020 when he was required to register or update his registration. [Doc. 22 at 4]. Defendant also argues the Indictment is insufficient because it does not outline the reasons behind his obligation to register under SORNA. [Id.]. The undersigned disagrees.
Defendant relies heavily on United States v. Sumner for the proposition that the Indictment's lack of specificity as to when the alleged violation occurred is cause fordismissal. 89 F. Supp. 3d 1161(N.D. Okla. 2015). Defendant argues the Indictment's timeframe of March to May 2020 requires him "to guess when or how he was allegedly in violation of SORNA's registration requirements." [Doc. 22 at 5]. But Sumner is readily distinguishable from the case at bar. In Sumner, the defendant allegedly "entered and left Indian Country" at some unspecified point during a period of over a year. 89 F. Supp. 3d at 1166.1 The entering and leaving of "Indian Country" was "the federal hook that trigger[ed] the SORNA registration requirement," but the indictment failed to contain any "specific allegation as to the time or place" when it allegedly occurred. Id. Because of "the unique prevalence of Indian country throughout [the Northern...
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