United States District Court, D. South Dakota, Central Division
OPINION AND ORDER DENYING MOTION TO DISMISS
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE
Offender Registration and Notification Act (SORNA) requires
people who have been convicted of certain "sex
offenses" to periodically register in the jurisdiction
where they reside. 34U.S.C. §§ 20911(1),
20913-20914. Defendant KT Burgee pleaded guilty in state
court to sexual exploitation of a minor and received a
suspended sentence. Docs. 27-1, 27-3. Burgee allegedly failed
to register as a sex offender and was later indicted by a
federal grand jury for failing to register as a sex offender
in violation of 18 U.S.C. § 2250. Doc. 1. Burgee moved
to dismiss the indictment, arguing that his state conviction
does not qualify as a "sex offense" under SORNA and
that the relevant definition of a "sex offense" is
void for vagueness. Doc. 26. This Court denies Burgee's
motion because a jury must determine whether his prior
conviction is a "sex offense" and a decision on
Burgee's vagueness argument would be premature.
was charged in state court with sexual exploitation of a
minor under South Dakota Codified Law (SDCL) §
22-22-24.3. That statute reads in relevant part:
A person is guilty of sexual exploitation of a minor if the
person causes or knowingly permits a minor to engage in an
activity or the simulation of an activity that:
(1) Is harmful to minors;
(2) Involves nudity; or
(3) Is obscene.
Consent to performing these proscribed acts by a minor or a
minor's parent, guardian, or custodian, or mistake as to
the minor's age is not a defense to a charge of violating
SDCL § 22-22-24.3. Burgee's information cited to
SDCL § 22-22-24.3(2) but seemed to concern §
22-22-24.3(1), alleging that Burgee "did cause or
knowingly permit a minor to engage in an activity or the
simulation of an activity that is harmful to minors."
pleaded guilty to the offense in June 2014. Doc. 27-3. He had
the following exchange with the state judge about the factual
basis for his plea:
THE COURT: Mr. Burgee, back on March 17th, did you have
contact with an individual who was under the age of 16?
[BURGEE]: Yes, Your honor.
THE COURT: And was that contact without the permission of
([Burgee] conferred with counsel.)
[BURGEE]: No, Your Honor.
THE COURT: It was not without the consent of the individual?
THE COURT: But you knew this individual was not of age; is
[BURGEE]: At the time I didn't.
THE COURT: Ms. Kloeppner.
MS. KLOEPPNER: I can fill in some blanks, ...