United States District Court, E.D. Wisconsin
ORDER ADOPTING RECOMMENDATION (DKT. NO. 19) AND
DENYING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT
(DKT. NO. 11)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
December 22, 2017, the defendant filed a motion to dismiss
the indictment on the ground it fails to state a crime. Dkt.
No. 11. The grand jury charged the defendant with failing to
register under 18 U.S.C. §2250(a) of the Sex Offender
Registration and Notification Act (SORNA) from June 2016
through July 2017; the defendant argues that he was not
required to register during this time. Id. Judge
Duffin recommended that this court deny the motion to
dismiss. Dkt. No. 19. The defendant objected, dkt. no. 24;
the court reviews the motion de novo.
1997, the state of Colorado charged the defendant with
aggravated incest of a person under ten years old; sexual
assault on a child-pattern of abuse; sexual assault on a
child by a person in a position of trust; and sexual assault
onf a child. Dkt. No. 14-1 at 7-12. On November 10, 1998, the
defendant pled guilty to sexual assault of a child under
Colorado Statute §18-3-405(1). Dkt. Nos. 14 at 3; 14-1
at 1. The state court sentenced him to serve four years'
probation; the court revoked his probation in January of
2000, and the defendant served four years in prison. Dkt. No.
14-1 at 1.
2006 and 2013, after moving to Illinois, the defendant was
convicted of being a sex offender residing within 500 feet of
a school; of aggravated battery; of obstruction; and of
failure to register as a sex offender. Dkt. No. 3.
October 24, 2017, the federal grand jury in this district
returned a single-count indictment, alleging that beginning
on or about June 19, 2016 and continuing to July 31, 2017,
the defendant failed to register as a sex offender under
§2250(a). Dkt. No. 1. The defendant made his initial
appearance in the District of Minnesota, dkt. no. 2, and
appeared before Judge Duffin on November 27, 2017 for
arraignment and plea hearing, dkt. no. 4.
defendant filed a motion to dismiss, arguing that he could
not have violated §2250(a), because during the period
alleged in the indictment, he was not required to register as
a sex offender. Dkt. No. 11. Specifically, the defendant
noted that for a person to know how long he must continue to
register as a sex offender, he needs to know whether he is
classified as a Tier I, Tier II or Tier III offender under
SORNA; to answer that question, a court in this circuit must
use what is known as the “categorical
approach”-comparing the elements of the defendant's
original offense of conviction with the elements of a
“generic” federal statute governing similar
behavior. Id. at 2. The defendant argued that if the
court were to apply the categorical approach in his case, it
would conclude that he was a Tier I offender, subject to only
a fifteen-year registration period. Id. at 5. The
defendant argued that because the failure to register that
gave rise to his federal indictment occurred some twenty
years after his conviction, he no longer was required to
January 5, 2018, Magistrate Judge Duffin issued a report,
recommending that this court grant the defendant's motion
because the government had not opposed it. Dkt. No. 13. That
same day, the government filed a response (with no
explanation as to why the response was a day late). Dkt. No.
14. This court referred the motion back to Judge Duffin so
that he could consider whether to accept the government's
late response. Dkt. No. 15.
Duffin accepted the response, and on January 29, 2018, issued
a recommendation on the merits. Dkt. No. 19. Relying on
authority from the Fourth and Tenth Circuits, Judge Duffin
concluded that there is a limited exception to the
categorical approach that allows courts to look at a
particular fact outside of the elements of the
offenses-specifically, the age of the victim-to determine the
defendant's tier classification under SORNA. Id.
at 4-5. Based on the affidavit and application for an arrest
warrant filed in the Colorado prosecution, Judge Duffin
concluded the government had established that the victims of
the state offense were four and six years old. Id.
at 5. Consequently, Judge Duffin concluded that the defendant
is a Tier III offender, required to register for life.
Id. at 6.
Federal Procedural Background
Standard of Review for Magistrate Judge's
Rule of Criminal Procedure 59(b) governs dispositive motion
practice initiated before magistrate judgments. Parties have
fourteen days to file “specific written
objections” to a magistrate judge's report and
recommendation on a dispositive motion. Fed. R. Crim. P.
59(b)(2). When reviewing a magistrate's recommendation,
the district judge reviews de novo the
recommendations of the magistrate judge to which a party
timely objects. 28 U.S.C. §636(b)(1); Fed. R. Crim. P.
59(b)(2), (3). The court can “accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate.” 28 U.S.C. §636(b)(1).
Defendant's Motion to Dismiss
defendant moved to dismiss the indictment on the ground that,
as a Tier I offender, his registry requirement expired in
March 2013-three years before the alleged failure to register
began. Dkt. No. 24 at 1. He argued that the court must
classify him as a Tier I offender, because his prior Colorado
conviction was neither comparable to, nor more serious than,
the “generic” offenses listed in Tiers II and
III. Dkt. No. 11 at 2. The government responded that the
defendant is “at least” a Tier II offender,
required to register for twenty-five years after the date of
his conviction. Dkt. No. 14 at 6.
Duffin began by agreeing that courts typically use a
categorical approach for determining a defendant's SORNA
tier status. Dkt. No. 19 at 2 (citing United States v.
Taylor, 644 F.3d 573, 576 (7th Cir. 2011)). Following
that approach, Judge Duffin compared the Colorado statute
under which the defendant had been convicted (Colo. Rev.
Stat. §18-3-405(1)) to the federal statute referenced in
Tier III-18 U.S.C. §2244. Id. at 3. Judge
Duffin found that the two offenses were not categorically
Walker was convicted of violating a Colorado statute that
provided: “Any actor who knowingly subjects another not
his or her spouse to any sexual contact commits sexual
assault on a child if the victim is less than fifteen years
of age and the actor is at least four years older than the
victim.” Colo. Rev. Stat. § 18-3-405(1).
Obviously, the statute Walker was convicted of violating
differs from 18 U.S.C. §§ 2241(c) and 2244(a)(5)
with respect to the age of the victim. Sexual contact with a
person who is at least 12 years old is not prohibited under
18 U.S.C. § 2244(a)(5) but a person could be convicted
under the Colorado law for sexual contact with a person who
is 12, 13, or 14. Thus, because the Colorado statute
proscribes sexual contact with children older than those
protected under 18 U.S.C. § 2244(a)(5), the offenses are
not categorically identical.
noting that the government had not explained why the court
should look to guidelines promulgated by the Attorney General
(as it had urged him to do), nor cited any cases supporting
its position that the court should look beyond the statutory
elements to consider the victim's age, he nevertheless
did so. In taking this approach, Judge Duffin followed the
lead of the Fourth and Tenth Circuits. Id. at 4.
Each of these circuits applied the categorical approach, but
allowed the lower court to consider the specific
circumstances of the underlying conviction for the limited
purpose of determining the victim's age. Id. at
4 (citing United States v. White, 782 F.3d 1118,
1133, 1134-35 (10th Cir. 2015) and United States v.
Berry, 814 F.3d 192, 197 (4th Cir. 2016)). Judge Duffin
discussed the rationale of this limited exception to the
categorical approach over the circumstance-specific
approach-the fact that determining age (unlike comparing the
evidence underlying past convictions) is a
“‘straightforward and objective' inquiry that
‘involves the inspection of a single threshold
fact.'” Id. at 5.
recommending that this court deny the motion to dismiss,
Judge Duffin looked to the age of the defendant's
victims, found in the underlying affidavit and application
for arrest warrant supporting the Colorado conviction.
Id. Because the victims were four and six years old,
Judge Duffin determined that the defendant is a Tier III sex
offender who committed abusive sexual contact against a minor
who has not attained the age of thirteen years, 34 U.S.C.
§20911(4)(A)(ii), and who thus was required to register
for life, 34 U.S.C. §20915(a)(3). Id. at 6. He
vacated his prior recommendation, and recommended to this
court that it deny the motion to dismiss. Id.
objection, the defendant argued that Judge Duffin had
“supplement[ed]” the categorical approach by
making a factual inquiry into the victims' ages. Dkt. No.
24 at 1-2. He argued that in doing so, Judge Duffin had
violated Supreme Court and Seventh Circuit precedent, both of
which require lower courts to conduct a purely categorical
analysis. Id. (citing Taylor, 644 F.3d at
576; Descamps v. United States, 570 U.S. 254
(2013)). The defendant also argued that the
recommendation's factual findings were based on nothing
more than the arrest warrant affidavit submitted by the
government. Id. at 5.
2250 makes it a federal crime for any “sex
offender” who is required to register under SORNA, and
who travels in interstate or foreign commerce, to knowingly
fail to register or update his registration. 18 U.S.C.
§2250(a). Sex offenders must register in the
jurisdictions in which they live, work and go to school no
later than three days after changing their name, residence,
employment or student status. 34 U.S.C. §§20913(a),
(c). Throughout the registration period, registrants must
keep their registrations current. 34 U.S.C.
prove that a defendant is guilty of violating §2250(a),
the government must prove three elements. First, it must
prove that “[t]he defendant was required to register
under the Sex Offender Registration and Notification
Act.” Seventh Circuit Pattern Federal Jury
Instructions-Criminal (2012 ed.) (revised Feb. 2013), 18
U.S.C. § 2250(a) Failure to Register/Update as Sex
Offender-Elements. Second, it must prove that the defendant
knowingly failed either to register or to update his
registration. Id. Finally, it must prove that the
defendant traveled in interstate or foreign commerce after
failing to register, or update his registration. Id.
defendant does not argue that he is not a “sex
offender, ” as that phrase is defined for the purposes
of SORNA. He does not dispute that at one point in time, the
law did require him to register. He does not dispute that he
traveled in interstate commerce. The defendant argues that
the government cannot prove the first element of the
offense-that he was required to register-because on the dates
alleged in the indictment, his registration period had
Threshold Issue-Is This a Question for the Court, or for
Crim. P. 12(b)(3)(B) allows a party to challenge a defect in
the indictment-including “failure to state an
offense”-“if the basis for the motion is then
reasonably available and the motion can be determined without
a trial on the merits.” Fed. R. Crim. P. 7(c)(1)
requires that an indictment contain a “plain, concise,
and definite written statement of the essential facts
constituting the offense charged . . . .” “The
true test of the sufficiency of an indictment is . . .
whether it contains the elements of the offense intended to
be charged.” United States v. Senak, 477 F.2d
304, 306 (7th Cir. 1973) (quoting Hagner v. United
States, 285 U.S. 427, 431 (1932)).
Seventh Circuit has noted that determining the
“[f]acial sufficiency” of an indictment “is
not a high hurdle.” United States v. Bates, 96
F.3d 964, 970 (7th Cir. 1996). Here, the indictment against
the defendant states all three of the elements of
§2250(a). It states that the defendant was convicted of
a sex offense in 1988. Dkt. No. 1 at §2. It states that
he traveled in interstate commerce in 2016, after he
had been convicted of that sex offense. Id. at
§3. And it states-admittedly without additional
detail-that he was required to register as a sex offender.
Id. at §4. On its face, then, the indictment is
valid, because it states the elements of the crime alleged,
and provides dates sufficient to advise the defendant of the
acts that the government asserts violated the law.
that, it would appear to be up to the finder of fact-the
jury-to determine whether the government could prove the
first element of the charged offense beyond a reasonable
doubt. A criminal defendant has a right to “a jury
determination that [he] is guilty of every element of the
crime with which he is charged, beyond a reasonable
doubt.” Apprendi v. N.J., 530 U.S. 466, 477
(2000) (quoting United States v. Gaudin, 515 U.S.
506, 510 (1995)). For a jury to make this determination,
however, it would have to determine whether the defendant was
required to register as a sex offender any time between June
2006 and July 31, 2017. How would a jury make that
determination? It would have to determine the defendant's
tier classification under SORNA.
length of time that a sex offender is required to register is
determined by the offender's tier status. 34 U.S.C.
§20915(a). Tier I offenders must register for fifteen
years, Tier II offenders for twenty-five years, and Tier III
offenders for life. Id. To determine an
offender's tier classification, one must compare the
statute under which the offender accrued the “sex
offense” with certain offenses listed in 34 U.S.C.
§20911, and must determine whether the sex offense
“is comparable to or more severe than” the
offenses listed in that statute.
a statutory comparison to determine whether one crime is
“comparable to or more severe than” another crime
seems more like deciding a question of law than deciding a
question of fact. Without specifically saying as much, other
courts have treated it as a matter of law in the context of
deciding a defendant's tier categorization for purposes
of applying the Sentencing Guidelines. See, e.g.,
United States v. Cabrera-Gutierrez, 756 F.3d 1125
(9th Cir. 2014), cert. Den., ___ U.S. ___, 135 S.Ct.
124 (2014); Taylor; White; United States v. Berry,
814 F.3d 192 (4th Cir. 2016).
court found two cases in which a defendant had filed a motion
to dismiss the indictment because he no longer was required
to register as a sex offender on the date alleged. In
United States v. Black, 963 F.Supp.2d 790 (E.D.
Tenn. 2013), the district did not question whether the
defendant's tier classification was a question of law for
the court to decide; it simply decided it. Id. at
793-796 (concluding that the defendant was a Tier II sex
offender, subject to a twenty-five year registration period,
and denying the defendant's motion to dismiss the
indictment). In contrast, the district court for the District
of South Dakota asked the parties to brief the question.
United States v. Marrowbone, 102 F.Supp.3d 1101 (D.
S.D. 2015). The parties agreed “that the tier
determination of a sex offender is for the court, not a jury,
to decide.” Id. at 1107. The district court
Marrowbone court described the tier classification
process as one of statutory interpretation, and noted that
the “general rule” was that “statutory
interpretation is the court's duty.” Id.
The court also observed that the underlying facts of the sex
offense that gave rise to a failure to register charge were
not relevant to the question of guilt, but that if a jury
were to decide the defendant's tier classification, it
would be exposed to those underlying facts (and possibly
unfairly prejudiced). Id. Finally, the
Marrowbone court expressed concern that allowing
juries to determine a defendant's tier classification
could “result in inconsistent tier classifications for
similarly situated defendants.” Id. The court
opined that this would be unfair, because “[d]efendants
accused of the federal crime of failing to ...