United States District Court, D. South Dakota, Central Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS
ROBERTO A. LANGE, District Judge.
The Government charged David Marrowbone with one count of failure to register as a sex offender in violation of 18 U.S.C. § 2250(a). Doc. 1. On October 14, 2014, Marrowbone, through counsel, filed a motion to dismiss indictment for failure to state an offense pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B) and a brief in support of that motion. Docs. 27, 28. The Government opposed the motion and filed a brief supporting its position, Doc. 31, after which Marrowbone filed a reply brief, Doc. 32. For the reasons set forth below, Marrowbone's motion to dismiss is denied.
I. Legal Standard on Motion to Dismiss and Validity of Indictment
Marrowbone argues that the indictment fails to state an offense and therefore must be dismissed pursuant to Rule 12(b)(3)(B). Docs. 27, 28, 32. When ruling on a motion to dismiss, a court must accept all factual allegations in the indictment as true. See United States v. Sampson, 371 U.S. 75, 78-79 (1962). A valid indictment must allege that "the defendant performed acts which, if proven, constitute the violation of law for which he is charged." United States v. Polychron, 841 F.2d 833, 834 (8th Cir. 1988). If an indictment fails to allege acts that constitute a violation of law, then it may be dismissed. Id . An indictment adequately states an offense 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) (quoting United States v. Hernandez, 299 F.3d 984, 992 (8th Cir. 2002)). This is a low bar, and an indictment normally will be found valid unless it is "so defective" that no reasonable construction of it properly charges the offense for which the defendant is being tried. See Sewell, 513 F.3d at 821. Normally, an indictment that tracks the statutory language is sufficient. Id.
The Government alleges that Marrowbone failed to register or update his registration as required by federal law. Federal law requires that:
(1) is required to register under the Sex Offender Registration and Notification Act;
(2)(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law..
(3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act;
shall be fined under this title or imprisoned not more than 10 years, or both.
18 U.S.C. § 2250(a). The indictment charges:
On or between the 3rd day of February, 2014, and the 14th day of March, 2014, in the District of South Dakota, the defendant, David Marrowbone, a person required to register under the Sex Offender Registration and Notification Act, and a sex offender by reason of a conviction under Federal Law, did knowingly fail to register and update a registration, in violation of 18 U.S.C. § 2250.
Although terse, the wording of the indictment tracks the three elements of the offense. First, it alleges that Marrowbone is required to "register under the Sex Offender Registration and Notification Act, " invoking § 2250(a)(1). Second, it alleges that Marrowbone is a "sex offender by reason of a conviction under federal law, " which is required by § 2250(a)(2)(A). Third, it alleges that Marrowbone "knowingly fail[ed] to register and update a registration, " which tracks the language of § 2250(a)(3). The indictment also alleges a narrow timeframe in which Marrowbone allegedly failed to ...