United States District Court, D. South Dakota, Central Division
For David Marrowbone, Defendant: Edward G. Albright, LEAD ATTORNEY, Federal Public Defender's Office, Pierre, SD.
For USA, Plaintiff: Mikal G. Hanson, LEAD ATTORNEY, U.S. Attorney's Office, Pierre Office, Pierre, SD.
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.
The Government charged David Marrowbone with one count of failure to register as a sex offender in violation of the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a). Doc. 1. Marrowbone, through counsel, filed a motion to dismiss indictment for failure to state an offense under Fed. R. Crim. P. 12(b)(3)(B) and briefs in support of that motion. Docs. 27, 28, 32. Marrowbone argued that the indictment must be dismissed because SORNA, enacted well after his 1982 conviction for assault with intent to commit rape, does not contemplate a registration requirement for that offense, or alternatively, the time during which Marrowbone would need to register has expired. Docs. 28, 32. The Government opposed the motion and filed a brief supporting its position. Doc. 31. This Court denied Marrowbone's motion but requested supplemental briefing on whether the court or the jury should determine Marrowbone's sex offender tier level, which affects his registration requirement duration under SORNA. Doc. 33. Both parties responded with supplemental briefs, Docs. 37, 38, 39, and Marrowbone renewed his motion to dismiss, Doc. 37. For the reasons set forth below, the Defendant's renewed motion to dismiss is denied.
I. STANDARD ON MOTION TO DISMISS INDICTMENT
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, 83 S.Ct. 173, 9 L.Ed.2d 136 (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 will normally 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 id. at 821. Normally, an indictment that tracks the statutory language is sufficient. Id.
The Government charged 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. . .;
. . . and
(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 ...