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United States v. Red Tomahawk

United States District Court, D. North Dakota

February 7, 2018

United States of America, Plaintiff,
v.
Reynard Verle Red Tomahawk, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO DISMISS

          Daniel L. Hovland, Chief Judge United States District Court.

         Before the Court is the Defendant's Motion to Dismiss filed on November 8, 2017. See Docket No. 21. The Government filed a response in opposition to the motion on November 13, 2017. See Docket No. 27. The Defendant filed a reply brief on December 4, 2017. See Docket No. 31. For the reasons outlined below, the motion is denied at this stage.

         I. BACKGROUND

         On November 19, 1998, Reynard Red Tomahawk was convicted, in the District of Montana, of one count of abusive sexual contact in violation of 18 United States Code § 2244(a)(1) and sentenced to thirty (30) months imprisonment and three (3) years supervised release. See Docket No. 22-3. It is undisputed that by virtue of this conviction, Red Tomahawk became a tier I sex offender subject to a minimum registration period of 15 years under the Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. §§ 16911-16929. The judgment required Red Tomahawk to comply with the State of Montana Sex Offender Registration requirement pursuant to MCA 46-18-255. See Docket No. 22-3, p. 4. Red Tomahawk is an enrolled member of the Standing Rock Sioux Tribe whose reservation straddles the South Dakota/North Dakota border.

         The record is unclear as to when Red Tomahawk was released from prison. However, it could have been no later than 30 months after the date the sentence was imposed, or May 19, 2001. In addition, the docket sheet from the District of Montana indicates jurisdiction over Red Tomahawk's supervised release was transferred to the Western District of Arkansas on August 22, 2000. See Docket No. 22-4, p. 5. Other records obtained from the U.S. Marshals Service indicate, although not clearly, his supervision began on May 5, 2000, and he was revoked on April 2, 2001, and sentenced to 12 months imprisonment. See Docket No. 28. p. 2. Numerous other violations, including failure to register as a sex offender, kept Red Tomahawk in and out of custody for a total of at least another 30 months until he was arrested on the current charge on May 11, 2017. See Docket Nos. 6 and 28.

         On May 10, 2017, Red Tomahawk was charged in the District of North Dakota with failure to register as a sex offender violation of 18 U.S.C. § 2250. See Docket No. 1. This offense is alleged to have occurred on or about April 8, 2017, through April 20, 2017. On November 8, 2017, Red Tomahawk filed a motion to dismiss the indictment contending his obligation to register under SORNA expired prior the offense dates listed in the indictment. The Government contends Red Tomahawk is obligated to register under SORNA since the registration period is subject to tolling and the period of registration required by the State of North Dakota has not expired.

         II. STANDARD OF REVIEW

         An indictment or information must contain “a plain, concise and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). If the government fails to plead conduct that is consistent with a violation of a criminal statute, the indictment or information is subject to dismissal for failure to state an offense. See United States v. Clark, 646 F.2d 1259, 1262 (8th Cir. 1981); see also Fed. R. Crim. P. 12(b)(3)(B)(v). Claims that a statute named in an indictment does not proscribe the alleged conduct are also treated as claims that the indictment “fails to state an offense.” See United States v. Adesida, 129 F.3d 846, 850 (6th Cir. 1997) (recognizing that “if an indictment does not charge a cognizable federal offense, then a federal court lacks jurisdiction to try a defendant for violation of the offense”).

         In the Eighth Circuit, an indictment or information is sufficient only if “it contains all of the essential elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to a subsequent prosecution.” United States v. Sewell, 513 F.3d 820, 821 (8th Cir. 2008). If an indictment fails to allege acts that constitute a violation of law, the indictment is subject to dismissal for failure to state an offense pursuant to Fed. R. Crim. P. 12(b)(3)(B)(v). See United States v. Polychron, 841 F.2d 833, 834 (8th Cir.1988). “An indictment is normally sufficient if its language tracks the statutory language.” Sewell, 513 F.3d at 822. However, if the Government has applied an erroneous interpretation to the statutory language to attempt to reach actions not prohibited by the statute, the indictment or information is subject to dismissal. See United States v. Tey, 535 F.3d 511, 515 (6th Cir. 2008); United States v. Foley, 73 F.3d 484, 488 (2d Cir. 1996); United States v. Meacham, 626 F.2d 503, 509 (5th Cir. 1980).

         III. LEGAL DISCUSSION

         A. SORNA

         The Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act) was enacted by Congress and signed into law by President Bush on July 27, 2006. Pub. L. 109-248, § 1-155, 120 Stat. 587, 590-611 (2006) (originally codified at 42 U.S.C. §§ 16901-16929, now codified at 34 U.S.C. §§ 20901-20932). The Adam Walsh Act contains the Sex Offender Registration and Notification Act (SORNA). SORNA creates an independent federal obligation on individuals convicted of a “sex offense” to register with a sex offender registry. See 18 U.S.C. § 2250. SORNA is intended to protect the public from sex offenders and establish a comprehensive national database for the registration of such offenders. Thus, SORNA creates a new federal offense for failure to register. Section 2250 imposes criminal penalties of up to ten years imprisonment and a $250, 000 fine on individuals required to register under SORNA, who travel in interstate commerce or enter Indian country, and who knowingly fail to register or update their registration. 18 U.S.C. § 2250. In setting minimum national standards, SORNA has established a national baseline which jurisdictions must comply with or risk losing federal justice assistance funding. Final Guidelines, 73 Fed. Reg. 38, 030, 38046 (July 2, 2008).

         SORNA provides that a sex offender must initially register in the relevant jurisdiction before completing a period of imprisonment, or no later than three business days after being sentenced if not sentenced to imprisonment. 34 U.S.C. § 20913(b). Thereafter, a sex offender is required to keep his/her registration current by appearing in person in at least one jurisdiction in which the sex offender is required to register, and informing the registering agency of any changes in information, such as changes of name, residence, or employment status. 34 U.S.C. § 20913(c). SORNA requires tier I sex offenders to register for 15 year, tier II sex offenders to register for 25 years, and tier III sex offenders to register for life. 34 U.S.C. § 20915. Jurisdictions covered include all states, federal territories, and federally recognized Indian tribes. 42 U.S.C. § 20911(10)

         Section 20913(d) of SORNA delegates to the Attorney General the authority to specify the applicability of SORNA to sex offenders convicted before July 27, 2006. On February 28, 2007, under the authority of Section 20913(d), the Attorney General issued an interim rule providing that “[t]he requirements of the Sex Offender Registration and Notification Act apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of the Act.” 72 Fed. Reg. 8894 (Feb. 28, 2007); 28 C.F.R. § 72.3 (2007). The Attorney General issued National Guidelines for Sex Offender Registration and Notification (“Final Guidelines”) to interpret and implement SORNA on July 2, 2008. Final Guidelines, 73 Fed. Reg. 38, 030 (July 2, 2008). These Final Guidelines became effective on August 1, 2008. See United States v. Gundy, 804 F.3d 140, 143 (2nd Cir. 2015) (citing 5 U.S.C. § 553(d)). Jurisdictions are free to set their own registration periods, however, in order to stay in compliance with SORNA those registration periods must be equal to or longer than those set out in SORNA. Final Guidelines, 73 Fed. Reg. at 38, 046-47.

         B. TOLLING

         Red Tomahawk contends his 15-year obligation to register under SORNA expired prior the offense dates (April 8, 2017 through April 20, 2017) listed in the indictment. The Government contends SORNA's registration periods are subject to tolling when a sex offender is in custody on new charges after serving the sentence which gave rise to the registration obligation. The ...


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