The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court
MEMORANDUM DECISION AND ORDER
Before the Court are two motions to dismiss the Superseding Indictment (Dkts. 61 & 62) filed by Defendant William Newel Brockbrader. On November 14, 2012, the Court conducted a hearing and took the motions under advisement. For the reasons set forth below, the Court will deny the motions to dismiss the Superseding Indictment.
In December 1997, the defendant, William Newel Brockbrader, was convicted by general court martial for the crimes of Sodomy, Carnal Knowledge with a Child Under Age Sixteen, and Indecent Acts with a Child Under Age Sixteen, violations of the Uniform Code of Military Justice, Articles 125, 120, and 134. Superseding Indictment at 2, Dkt. 30. On April 21, 1998, a military judge sentenced him to dishonorable discharge, confinement for 11 years, forfeiture of all pay and allowances, and a reduction in pay grade. General Court-Martial Order Number 18-98 at 1, Ex. A to Motion to Dismiss on Statutory Grounds, Dkt. 61-2. The confinement and forfeiture were suspended to allow Mr. Brockbrader to participate in a sexual abuse therapy program. Id. Brockbrader was released from custody in June 2001.
When Brockbrader was released, he signed a "Prisoner's Acknowledgement of Sex Offender Registration Requirements," in which he acknowledged that he was subject to sex offender registration requirements in whichever state he resided: "I am subject to registration requirements as a sex offender in any State or U.S. territory in which I reside, be employed, carry on a vocation, or be a student." Acknowledgment, Ex. B. to Motion to Dismiss on Statutory Grounds, Dkt. 61-3. Brockbrader also acknowledged that, if he moved to another state, he must report the change of address to the responsible agency in the state he was leaving and comply with the registration requirements in the new state of residence. Id. He registered in the state of Utah in 2001 and apparently continued to register in Utah through 2008. He then apparently moved to Nevada and then Idaho. Brockbrader's travel from Nevada to Idaho allegedly occurred "on or after April 24, 2011."
On July 10, 2012, a grand jury returned a superseding indictment against Defendant William Newel Brockbrader, charging him with failure to register as required by the Sex Offender Registration and Notification Act ("SORNA" or "the Act"), 42 U.S.C. § 16901 et seq. Superseding Indictment, Dkt. 30. The Superseding Indictment charges Brockbrader for violating SORNA in two different ways: (1) because he is a sex offender who was convicted under federal law, and he failed to register and update his registration in violation of 18 U.S.C. § 2250(a)(2)(A); and (2) because he is a sex offender who traveled in interstate commerce "on or after April 24, 2011", and he failed to register and update his registration in violation of 18 U.S.C. § 2250(a)(2)(B). Id.
Brockbrader has filed two motions to dismiss the indictment -- the first on statutory grounds and the second on constitutional grounds. In his first motion to dismiss on statutory grounds, Brockbrader contends the Superseding Indictment against him should be dismissed because neither provision under subsection (a)(2) of section 2250 can apply in his case. In his second motion, Brockbrader argues that the Superseding Indictment violates the Constitution on its face and as applied to him.
A motion to dismiss challenges the sufficiency of an indictment to charge an offense. United v. Sampson, 371 U.S. 75, 78--79 (1962). "An indictment is sufficient if it contains the elements of the charged crime and adequate detail to inform the defendant of the charge and to enable him to plead double jeopardy." United States v. Buckley, 689
F.2d 893, 896 (9th Cir. 1982). In determining the sufficiency of the indictment, the court examines whether the indictment adequately alleges the elements of the offense and fairly informs the defendant of the charge, and not whether the government can prove its case. Id. at 897. In deciding a motion to dismiss, the court must take the allegations of the indictment as true. Boyce Motor Lines, Inc., v. United States, 342 U.S. 337, 343 n. 16 (1952); United States v. Afshari, 426 F.3d 1150, 1153 (9th Cir. 2005). An indictment need not allege the government's theory of the case or supporting evidence, but it must state the essential facts necessary to apprise the defendant of the crime charged. Id.
Rule 12 of the Federal Rules of Criminal Procedure requires a defendant to challenge a defective indictment prior to trial. Fed.R.Crim.P. 12(b)(3)(A) and (B). Rule 12(b)(2) permits a party to raise "any defense, objection, or request that the court can determine without a trial of the general issue." Id. A pretrial motion is generally "capable of determination" before trial if it involves questions of law rather than fact. United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir. 1986). The trial court may make preliminary findings of fact necessary to decide the legal questions presented by the motion, but it may not invade the province of the jury in deciding a pretrial motion to dismiss. It is also well established that "[a] motion to dismiss is not a proper way to raise a defense." United States v. Snyder, 428 F.2d 520, 522 (9th Cir. 1970).
A.The Jacob Wetterling Act
The Jacob Wetterling Act was enacted by Congress in 1994 and is commonly referred to as "Megan's Laws." 42 U.S.C. § 14071. The Jacob Wetterling Act provided federal funding to states that enacted sex offender registration laws. It also created a federal misdemeanor failure to register offense punishable by up to one year imprisonment for sex offenders who failed to register in a state where they resided, worked, or were a student. 42 U.S.C. § 14072(f). By 1996, all states had enacted Megan's Laws in some form. See Smith v. Doe, 538 U.S. 84, 90 (2003).
Congress enacted SORNA on July 27, 2006 as part of the Adam Walsh Child Protection and Safety Act. Pub. L. 109--248, Tit. I, 120 Stat. 590. SORNA's stated purpose is to "establish[ ] a comprehensive national system for the registration of sex offenders." 42 U.S.C. § 16901. "Since 1994, federal law has required states, as a condition for the receipt of certain law enforcement funds, to maintain federally compliant systems for sex-offender registration and community notification." Carr v. United States, 130 S.Ct. 2229, 2235 (2010). In an effort to make these state schemes more effective, SORNA expanded the information that states must collect and maintain in their sex offender registries, created a federal registration requirement, and criminalized the failure to register. 42 U.S.C. §§ 16901, 16913, 16914.
SORNA has provisions that apply to states and other provisions that apply to individuals. The Walsh Act applies to each state, the District of Columbia, native American tribal territories, and other United States territories. See § 16911(10), defining jurisdiction for purposes of the SORNA. Each jurisdiction had until July 27, 2009 to substantially comply with the requirements of SORNA or lose part of its federal funding.
42 U.S.C. §§ 16924(a), 16925(a). SORNA requires states to implement sex offender registries, which must include standard information and be compatible with a national electronic data base. 42 U.S.C. §§ 16912, 16918, 16919.
In addition to establishing a national sex offender registration system, SORNA requires sex offenders to "register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student." 42 U.S.C. § 16913(a). SORNA defines the term "sex offender" as "an individual who was convicted of a sex offense" and classifies all sex offenders into three different categories. 42 U.S.C. § 16911(1)-(4). A "sex offense" is "a criminal offense that has an element involving a sexual act or sexual contact with another." Id.; § 16911(5)(A)(I). A sex offender must initially register before completing a period of imprisonment, or not later than three business days after being sentenced if not sentenced to imprisonment. 42 U.S.C. § 16913(b).
Section 16913(d) of SORNA delegates authority to the Attorney General of the United States to specify the applicability of SORNA's requirements to sex offenders convicted before July 27, 2006, when SORNA took effect, its implementation in a particular jurisdiction, and also to prescribe rules for the registration of any sex offender unable to comply with the initial registration provisions of SORNA.
On February 28, 2007, the Attorney General promulgated an interim rule applying SORNA to all sex offenders regardless of when they were convicted. See Applicability of the Sex Offender Registration and Notification Act, 72 Fed.Reg. 8894 (Feb. 28, 2007) (codified at 28 C.F.R. § 72 (2007)). On May 30, 2007, the Department of Justice issued proposed guidelines for ...