United States District Court, D. North Dakota
ORDER DENYING DEFENDANT'S MOTION TO
L. Hovland, Chief Judge United States District Court.
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
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.
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and he was revoked on April 2, 2001, and sentenced to 12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.
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.
STANDARD OF REVIEW
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”).
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).
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).
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)
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,
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 ...