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United States v. Burgee

United States District Court, D. South Dakota, Central Division

March 25, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
KT BURGEE, a/k/a Kape Teal Burgee, Defendant.

          OPINION AND ORDER DENYING MOTION TO DISMISS INDICTMENT

          ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE

         The Sex 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.

         I. Background

         Burgee 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 this section.

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." Doc. 27-2.

         Burgee 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 that individual?
([Burgee] conferred with counsel.)
[BURGEE]: No, Your Honor.
THE COURT: It was not without the consent of the individual?
[BURGEE]: Yes.
THE COURT: But you knew this individual was not of age; is that correct?
[BURGEE]: At the time I didn't.
THE COURT: Ms. Kloeppner.[1]
MS. KLOEPPNER: I can fill in some blanks, ...

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