USA v. Red Tomahawk

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
United States of America, )
)
Plaintiff, ) ORDER GRANTING DEFENDANT’S
) MOTION TO DISMISS
vs. )
) Case No. 1:17-cr-106
Reynard Verle Red Tomahawk, )
)
Defendant. )
______________________________________________________________________________
Before the Court is the Defendant’s Motion to Dismiss filed on May 17, 2018. See Docket
No. 42. The Government filed a response in opposition to the motion on May 29, 2018. See Docket
No. 43. The Defendant filed a reply brief on June 8, 2018. See Docket No. 47. For the reasons
outlined below, the motion is granted.
I. BACKGROUND
On November 19, 1998, Reynard Red Tomahawk was convicted, in the federal District of
Montana, of one count of abusive sexual contact in violation of 18 U.S.C. § 2244(a)(1) and
sentenced to thirty (30) months of imprisonment and three (3) years of supervised release. See
Docket No. 22-3. The judgment required Red Tomahawk to comply with the State of Montana Sex
Offender Registration requirements pursuant to MCA 46-18-255. See Docket No. 22-3, p. 4. It is
undisputed that by virtue of this federal conviction, Red Tomahawk became a tier I sex offender
subject to a 15-year registration period under the Sex Offender Registration and Notification Act
(“SORNA”), 34 U.S.C. §§ 20901-20932. Red Tomahawk is an enrolled member of the Standing
Rock Sioux Tribe (“Tribe”) whose reservation straddles the South Dakota/North Dakota border.
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The record is unclear as to when Red Tomahawk was released from prison. However, it
could have been no later than 30-months after the date the sentence was imposed, or May 19, 2001.
The docket sheet from the District of Montana indicates jurisdiction over Red Tomahawk’s
supervised release was transferred to the Western District of Arkansas on August 22, 2000. See
Docket No. 22-4, p. 5. Other records obtained from the U.S. Marshals Service reveal, although not
clearly, that his supervision began on May 5, 2000, and he was revoked on April 2, 2001, and
sentenced to 12-months of imprisonment. See Docket No. 28. p. 2. Numerous other violations,
including failure to register as a sex offender, kept Red Tomahawk in and out of custody for a total
of at least another 30-months until he was arrested on the current charge on May 11, 2017. See
Docket Nos. 6 and 28.
On May 10, 2017, Red Tomahawk was charged in the District of North Dakota with failure
to register as a sex offender in violation of 18 U.S.C. § 2250. See Docket No. 1. This offense is
alleged to have occurred on or about April 8, 2017, through April 20, 2017.
On November 8, 2017, Red Tomahawk filed his first motion to dismiss the indictment
contending his obligation to register under SORNA expired prior to the offense dates listed in the
indictment. See Docket No. 21. The Government argued Red Tomahawk was obligated to register
under SORNA since the registration period is subject to tolling. The Court denied the first motion
in an order dated February 7, 2018. See Docket No. 32. In that Order, the Court determined that (1)
the registration periods set forth in SORNA are not subject to tolling, (2) Red Tomahawk is no
longer subject to a federal registration requirement under SORNA itself, and (3) Red Tomahawk may
be prosecuted federally under SORNA for failure to comply with the Standing Rock Sioux Tribe’s
sex offender registration laws. As it was unclear what the Tribal registration requirements were, the
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Court invited Red Tomahawk to renew his motion should he ascertain that he was no longer required
to register under Tribal law.
On May 17, 2018, Red Tomahawk filed what he described as a “Supplement to Motion to
Dismiss.” See Docket No. 42. The Court directed the Clerk to treat the filing as a motion to dismiss
as Red Tomahawk was essentially renewing his motion and raising a new issue. In his motion, Red
Tomahawk explains that he is subject to a twenty-five year registration period under Tribal law.
However, Red Tomahawk also contends he cannot be prosecuted under SORNA for his failure to
comply with the Tribal registration requirement as the federal and Tribal registration requirements
are independent, and his obligation to register under federal law has expired. This second or
renewed motion to dismiss has now been fully briefed and is ready for decision.
II. STANDARD OF REVIEW
An indictment or information must contain “a plain, concise and definite written statement
of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). If the government
fails to plead conduct that is consistent with a violation of a criminal statute, the indictment or
information is subject to dismissal for failure to state an offense. See United States v. Clark, 646
F.2d 1259, 1262 (8th Cir. 1981); see also Fed. R. Crim. P. 12(b)(3)(B)(v). Claims that a statute
named in an indictment does not proscribe the alleged conduct are also treated as claims that the
indictment “fails to state an offense.” See United States v. Adesida, 129 F.3d 846, 850 (6th Cir.
1997) (recognizing that “if an indictment does not charge a cognizable federal offense, then a federal
court lacks jurisdiction to try a defendant for violation of the offense”).
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In the Eighth Circuit Court of Appeals, an indictment or information is sufficient only 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). If an indictment fails to allege acts that constitute a violation of law,
the indictment is subject to dismissal for failure to state an offense pursuant to Fed. R. Crim. P.
12(b)(3)(B)(v). See United States v. Polychron, 841 F.2d 833, 834 (8th Cir. 1988). “An indictment
is normally sufficient if its language tracks the statutory language.” Sewell, 513 F.3d at 821.
However, if the Government has applied an erroneous interpretation to the statutory language to
attempt to reach actions not prohibited by the statute, the indictment or information is subject to
dismissal. See United States v. Teh, 535 F.3d 511, 515 (6th Cir. 2008); United States v. Foley, 73
F.3d 484, 488 (2d Cir. 1996); United States v. Meacham, 626 F.2d 503, 509 (5th Cir. 1980).
III. LEGAL DISCUSSION
The Adam Walsh Child Protection and Safety Act of 2006 (“Adam Walsh Act”) was enacted
by Congress and signed into law by President Bush on July 27, 2006. Pub. L. 109-248, § 1-155, 120
Stat. 587, 590-611 (2006) (originally codified at 42 U.S.C. §§ 16901-16929, now codified at 34
U.S.C. §§ 20901-20932). The Adam Walsh Act contains the Sex Offender Registration and
Notification Act (SORNA). SORNA creates an independent federal obligation on individuals
convicted of a “sex offense” to register with a sex offender registry. See 18 U.S.C. § 2250. SORNA
is intended to protect the public from sex offenders and establish a comprehensive national database
for the registration of such offenders. Thus, SORNA creates a new federal offense for failure to
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register. Section 2250 imposes criminal penalties of up to ten years imprisonment and a $250,000
fine on individuals required to register under SORNA, who travel in interstate commerce or enter
Indian country, and who knowingly fail to register or update their registration. 18 U.S.C. § 2250.
The relevant portion of Section 2250 provides as follows:
(a) In general.--Whoever--
(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 (including the
Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal
law, or the law of any territory or possession of the United States; or
(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian
country; 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 10 years, or both.
18 U.S.C. § 2250.
SORNA provides that a sex offender must initially register in the relevant jurisdiction before
completing a period of imprisonment, or no later than three business days after being sentenced if
not sentenced to imprisonment. 34 U.S.C. § 20913(b). Thereafter, a sex offender is required to keep
his/her registration current by appearing in person in at least one jurisdiction in which the sex
offender is required to register, and informing the registering agency of any changes in information,
such as changes of name, residence, or employment status. 34 U.S.C. § 20913(c). SORNA requires
Tier I sex offenders to register for 15 years, Tier II sex offenders to register for 25 years, and Tier
III sex offenders to register for life. 34 U.S.C. § 20915(a). A Tier I sex offender may have his period
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of registration reduced by five years if he keeps his record clean. 34 U.S.C. § 20915(b).
Jurisdictions covered include all states, federal territories, and federally recognized Indian tribes.
34 U.S.C. § 20911(10)
The indictment in this case reads as follows:
The Grand Jury Charges:
From on or about April 8, 2017, to on or about April 20, 2017, in the District
of North Dakota,
REYNARD VERLE RED TOMAHAWK,
as a person required to register under the Sex Offender Registration and Notification
Act, and as a sex offender as defined for the purposes of the Sex Offender
Registration and Notification Act by reason of a conviction under federal law for
sexual assault Case Number CR 97-107-BLG-JDS, with judgment entered by the
Federal District Court of Montana on November 19, 1998, traveled into and resided
on the Standing Rock Indian Reservation in Sioux County, North Dakota, and
knowingly failed to register as required by the Sex Offender Registration and
Notification Act.
In violation of Title 18, United States Code, Section 2250.
See Docket No. 1.
It is undisputed that Red Tomahawk is a Tier I sex offender based upon his federal conviction
for abusive sexual contact in violation of 18 U.S.C. § 2244(a)(1). SORNA requires a Tier I sex
offender to register for fifteen years. 34 U.S.C. § 20915(a). The SORNA registration period begins
to run when the sex offender is released from prison on the conviction giving rise to the registration
requirement. United States v. Del Valle-Cruz, 785 F.3d 48, 55 (1st Cir. 2015); United States v.
Gundy, 804 F.3d 140, 147-48 (2nd Cir. 2015). Once the registration period is complete the sex
offender is no longer subject to SORNA’s registration requirement. Gundy, 804 F.3d at 147.
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Red Tomahawk contends he cannot be prosecuted for violating SORNA because his
obligation to register has expired. It is undisputed that more than fifteen years elapsed between the
time Red Tomahawk was released from federal prison (no later than May 19, 2001) and the offense
dates listed in the indictment (April 8, 2017, through April 20, 2017). The Court previously rejected
the Government’s tolling argument. See Docket No. 32. The issue now before the Court, which was
not fully addressed in Red Tomahawk’s first motion to dismiss, is whether Red Tomahawk’s failure
to comply with the Tribe’s twenty-five year registration requirement leaves him open to prosecution
in federal court for a violation of SORNA.
In support of his contention that tribal and federal registration requirement are independent,
Red Tomahawk cites United States v. Billiot, 785 F.3d 1266 (8th Cir. 2015). The Government offers
no case law in support of its contention otherwise. In Billiot, the defendant was convicted of a sex
offense in state court in Louisiana, sentenced to a term of imprisonment, and released from custody
in February 2000. Id. at 1267-68. At the time of his release, the defendant was required by
Louisiana law to register for a period of ten years, but in 2012 a change in Louisiana law imposed
a lifetime registration requirement. Id. at 1268. SORNA became law in 2006. The defendant
initially complied with Louisiana’s laws requiring him to register as a sex offender. However, in
2012, the defendant moved to Arkansas and failed to register thereafter. Id. at 1268. In 2013, the
defendant was charged in federal court in Arkansas with failing to register as required by SORNA.
The defendant entered a conditional guilty plea which permitted him to bring an ex post facto
challenge to the changes in Louisiana law which required him to register for life. Id. at 1269. The
Eighth Circuit Court of Appeals rejected the ex post facto challenge as misplaced because “SORNA
imposes an independent federal obligation for sex offenders to register that does not depend on, or
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incorporate, a state-law registration requirement.” Id. at 1269 (emphasis in original). The Eighth
Circuit further explained that while SORNA obligations are often imposed as a result of an
underlying state court sex offense conviction, the SORNA reporting requirements are “independent
of the state reporting requirements” and the constitutionality or applicability of a state’s sex offender
registration requirements “have no bearing on [the defendant’s] SORNA conviction.” Id. at 1269.
Other cases involving SORNA lend support to the Eighth Circuit’s holding in Billiot that
state and federal registration requirements are independent. See Del Valle-Cruz, 785 F.3d at 55
(calculating the length of defendant’s duty to register under federal law); Gundy, 804 F.3d at 148
(noting that once a person’s federal registration period is complete he is no longer subject to
SORNA’s registration requirement even though he remains a sex offender); United States v. Gudger,
624 Fed. App’x 394, 396 (6th Cir. 2015) (noting SORNA is a separate federal obligation which itself
specifies how long a sex offender must register); United States v. Thompson, 431 Fed. App’x 2, 3
(1st Cir. 2011) (observing that SORNA’s “registration requirements for sex offenders are neither
conditioned on nor harnessed to state implementation of SORNA’s state-directed mandates”); United
States v. Goguen, 218 F. Supp. 3d 111, 118 (D. Me 2016) (finding federal registration obligations
are independent of duties to register under state law). In Goguen, the defendant was required to
register for life under SORNA but was no longer required to register under Maine law. Id. The
defendant’s arguments relying on state law were rejected based on the independent nature of
SORNA’s registration requirement which is separate from state law. Id.
In this case, it is undisputed that Red Tomahawk is no longer subject to a federal registration
requirement under SORNA because his 15-year registration period under SORNA expired prior to
the offense dates alleged in the indictment. Billiot makes it clear that SORNA imposes an
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independent federal registration requirement that does not rely on or incorporate any state or tribal
registration requirements. Billiot, 785 F.3d at 1269; Goguen, 218 F. Supp. 3d at 118. The
independent nature of SORNA’s registration requirement cuts both ways as in some cases the federal
registration obligation is longer than the registration period imposed under state law. See Goguen,
218 F. Supp. 3d at 118. In this case, the federal sex offender registration obligation is shorter than
the tribal registration obligation. Since the tribal and federal registration periods are independent,
Red Tomahawk cannot be prosecuted under 18 U.S.C. § 2250 for failing to comply with the Tribe’s
longer sex offender registration requirements.1 As such, the indictment fails to state an offense and
must be dismissed.
IV. CONCLUSION
For the reasons set forth above, the Defendant’s Motion to Dismiss (Docket No. 42) is
GRANTED, and the indictment is dismissed. The Defendant shall be released from custody.
IT IS SO ORDERED.
Dated this 20th day of June, 2018.
/s/ Daniel L. Hovland
Daniel L. Hovland, Chief Judge
United States District Court
1 This conclusion is contrary to the Court's earlier February 7, 2018, order (Docket No. 32) wherein the
Court erroneously concluded, without the benefit of full briefing and without having read Billiot, that Red
Tomahawk could be prosecuted under SORNA for failing to comply with the Tribe's registration requirements. The
Government has not offered any case law from the Eighth Circuit or from any other federal district court or appellate
court to support a contrary conclusion.
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