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United States v. Tomahawk

United States District Court, D. North Dakota

June 20, 2018

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

          ORDER GRANTING 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 May 17, 2018. See Docket No. 42. The Government filed a response in opposition to the motion on May 29, 2018. See Docket No. 43. The Defendant filed a reply brief on June 8, 2018. See Docket No. 47. For the reasons outlined below, the motion is granted.

         I. BACKGROUND

         On November 19, 1998, Reynard Red Tomahawk was convicted, in the federal District of Montana, of one count of abusive sexual contact in violation of 18 U.S.C. § 2244(a)(1) and sentenced to thirty (30) months of imprisonment and three (3) years of supervised release. See Docket No. 22-3. The judgment required Red Tomahawk to comply with the State of Montana Sex Offender Registration requirements pursuant to MCA 46-18-255. See Docket No. 22-3, p. 4. It is undisputed that by virtue of this federal conviction, Red Tomahawk became a tier I sex offender subject to a 15-year registration period under the Sex Offender Registration and Notification Act (“SORNA”), 34 U.S.C. §§ 20901-20932. Red Tomahawk is an enrolled member of the Standing Rock Sioux Tribe (“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. 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obtained from the U.S. Marshals Service reveal, although not clearly, that his supervision began on May 5, 2000, and he was revoked on April 2, 2001, and sentenced to 12-months of imprisonment.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 in 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 his first motion to dismiss the indictment contending his obligation to register under SORNA expired prior to the offense dates listed in the indictment. See Docket No. 21. The Government argued Red Tomahawk was obligated to register under SORNA since the registration period is subject to tolling. The Court denied the first motion in an order dated February 7, 2018. See Docket No. 32. In that Order, the Court determined that (1) the registration periods set forth in SORNA are not subject to tolling, (2) Red Tomahawk is no longer subject to a federal registration requirement under SORNA itself, and (3) Red Tomahawk may be prosecuted federally under SORNA for failure to comply with the Standing Rock Sioux Tribe's sex offender registration laws. As it was unclear what the Tribal registration requirements were, the Court invited Red Tomahawk to renew his motion should he ascertain that he was no longer required to register under Tribal law.

         On May 17, 2018, Red Tomahawk filed what he described as a “Supplement to Motion to Dismiss.” See Docket No. 42. The Court directed the Clerk to treat the filing as a motion to dismiss as Red Tomahawk was essentially renewing his motion and raising a new issue. In his motion, Red Tomahawk explains that he is subject to a twenty-five year registration period under Tribal law. However, Red Tomahawk also contends he cannot be prosecuted under SORNA for his failure to comply with the Tribal registration requirement as the federal and Tribal registration requirements are independent, and his obligation to register under federal law has expired. This second or renewed motion to dismiss has now been fully briefed and is ready for decision.

         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 Court of Appeals, 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 821. 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. Teh, 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

         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. ยง 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 ...


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