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United States v. Doby

United States District Court, D. Kansas

November 7, 2019

JERRY DOBY, Defendant.



         The government indicted Defendant Jerry Doby on one count of failure to register under the Sex Offender Registration and Notification Act (“SORNA”) in violation of 18 U.S.C. § 2250(a). This statute penalizes sex offenders who are required to register, who travel in interstate commerce, and who knowingly fail to register or update a registration under SORNA. Doby now moves to dismiss the indictment based on five statutory and constitutional arguments. Doc. 50.

         Doby argues that the government cannot prove that he “knowingly” failed to register under SORNA without showing that he knew the length of his duty to register, and he contends that SORNA violates his First Amendment rights because it compels his speech. But the Court concludes the indictment adequately alleges the crime charged, and, to the extent SORNA compels speech, it passes strict scrutiny. Doby's three remaining arguments have already been rejected by either the Tenth Circuit or the Supreme Court, and this Court is bound to follow that precedent.[1]Accordingly, Doby's motion to dismiss is denied.

         I. STANDARD

         If a defendant believes there is a defect in an indictment, he may move to dismiss it under Federal Rule of Criminal Procedure 12(b). Under Rule 12, pretrial motions are generally limited to asserting “any defense, objection, or request that the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(1).

         A defendant may move to dismiss an indictment under Rule 12 if there is a defect in the indictment such as a lack of specificity or a failure to state an offense. Federal Rule of Criminal Procedure 7(c)(1) requires that an indictment contain a “plain, concise, and definite written statement of the essential facts constituting the offense charged.” An indictment satisfies this standard “if it sets forth the elements of the offense charged, puts the defendant on fair notice of the charges against which he must defend, and enables the defendant to assert a double jeopardy defense.” United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006) (quoting United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir.1997)). The indictment essentially need only quote the language of the applicable statute, assuming those words set forth all the elements of the crime charged, and include the date, place, and nature of the alleged illegal activity. United States v. Doe, 572 F.3d 1162, 1173-74 (10th Cir. 2009).

         Assuming those standards are met, the indictment “need not go further and allege in detail the factual proof that will be relied upon to support the charges.” Id. (quoting United States v. Redcorn, 528 F.3d 727, 733 (10th Cir. 2008)). An indictment “should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true.” Todd, 446 F.3d at 1067 (quoting United States v. Hall, 20 F.3d 1084, 1087 (10th Cir. 1994)). A challenge to an indictment is not a challenge to the sufficiency of the government's evidence, and courts should avoid considering evidence outside the indictment. Id.

         II. ANALYSIS

         Before addressing the arguments raised by Doby, some background on SORNA is helpful. Congress enacted SORNA to address “loopholes and deficiencies” in state statutes that permitted thousands of sex offenders to escape registration requirements. Gundy v. United States, 139 S.Ct. 2116, 2121 (2019). SORNA's purpose is “to protect the public from sex offenders and offenders against children.” 34 U.S.C. § 20901. For that purpose, and in response to certain specific “vicious attacks by violent predators against” a list of named victims, Congress passed SORNA to “establish[] a comprehensive national system for the registration of those offenders.” Id. To achieve its goal of comprehensive registration, SORNA “covers more sex offenders, and imposes more onerous registration requirements, than most States had before.” Gundy, 139 S.Ct. at 2121.

         SORNA defines a “sex offender” as “an individual who was convicted of a sex offense.” 34 U.S.C. § 20911(1). Under 34 U.S.C. § 20913(a), a “sex offender shall 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.” SORNA also sets out the information that must be included in a registration. 34 U.S.C. § 20914(a). Although SORNA was passed in 2006, the Attorney General, under authority delegated from Congress, has issued guidance stating that SORNA applies “to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act.” 28 C.F.R. § 72.3. SORNA established different tiers of sex offenders, 34 U.S.C. § 20911(2)-(4), and set applicable registration-duration requirements based on those tiers, 34 U.S.C. § 20915(a).

         Congress also enacted criminal penalties for failing to register under SORNA. For purposes of this case, anyone who “is required to register under” SORNA, who travels in interstate or foreign commerce, and who “knowingly fails to register or update a registration as required” by SORNA faces fines and up to 10 years in prison. 18 U.S.C. § 2250(a).

         In this case, the indictment alleges that Doby was previously convicted in 1989 of rape, forced oral copulation, and forced sexual penetration in California state court. Doc. 1 at 1; see also Doc. 50 at 1. The indictment further alleges that he is a person who is required to register under SORNA, who traveled in interstate commerce, and who knowingly failed to register or update a registration in violation of 18 U.S.C. § 2250(a).[2]

         A. Doby's knowledge argument is based on an alleged factual deficiency and not on a flaw in the indictment.

         Doby's first argument is the government is required to prove that he had “knowledge of his federal duty to register under SORNA, ” including that he “knew the length of the registration requirement.” Doc. 50 at 8. But the Court need not substantively reach this question in the context of this motion to dismiss. Although he initially states that the government is “legally incapable” of proving that Doby knowingly failed to register under SORNA, as charged in the indictment, Doc. 50 at 7, his argument is premised on what he believes the government cannot prove, namely that no one has told Doby his tier classification ...

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