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United States v. Walker

United States District Court, E.D. Wisconsin

July 6, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
RICHARD WALKER, Defendant.

          ORDER ADOPTING RECOMMENDATION (DKT. NO. 19) AND DENYING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT (DKT. NO. 11)

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.

         On 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.

         I. Background

         In 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.

         Between 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.

         On 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.

         The 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 register. Id.

         On 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.

         Judge 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.

         II. Federal Procedural Background

         A. Standard of Review for Magistrate Judge's Recommendation

         Federal 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).

         B. Defendant's Motion to Dismiss

         The 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, [1] required to register for twenty-five years after the date of his conviction. Dkt. No. 14 at 6.

         C. Recommendation

         Judge 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 identical:

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.

Id.

         Although 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.

         In 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.

         D. Defendant's Objection

         In his 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.

         III. Analysis

         Section 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. §20915(a).[2]

         To 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.

         The 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 expired.

         A. Threshold Issue-Is This a Question for the Court, or for a Jury?

         Fed. R. 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)).

         The 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.

         Given 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.

         The 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.

         Conducting 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).

         The 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 agreed.

         The 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 ...


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