The opinion of the court was delivered by: Honorable J. Garvan Murtha United States District Judge
MEMORANDUM AND ORDER ON THE DEFENDANT'S MOTION TO DISMISS INDICTMENT (Doc. 19)
The defendant, Richard Piper, has moved to dismiss the indictment against him for failing to register under the Sex Offender Registration and Notification Act ("SORNA"). He first asserts that its registration requirements do not apply to him and that, as a matter of law, the government is unable to prove its case. (Doc. 19 at 1-2.) The defendant also contends that SORNA violates the non-delegation doctrine, the Ex Post Facto Clause, the Commerce Clause, and the Tenth Amendment. Id. United States v. Guzman, 591 F.3d 83, 89-95 (2d Cir. 2010), forecloses these constitutional challenges, and the Court declines to revisit them here. See also United States v. Roy, 11-cr-109, at 7-11 (D. Vt. May 16, 2012). Because the defendant's challenge to the sufficiency of the government's proof is premature at this point in the prosecution, his first ground is unavailing also. The defendant's motion to dismiss is therefore DENIED.
The defendant pleaded guilty in Vermont state court in 2009 to two counts of open and gross lewdness and lascivious behavior in violation of section 2601 of title 13, Vermont Statutes Annotated, as well as one condition of release violation. (Doc. 28-3 at 4.) In the probable cause affidavit*fn1 for the first count, a state police trooper alleged that a witness observed the defendant masturbating in his car in the parking lot of an athletic facility in July 2007. (Doc. 28-5 at 1.) The witness told the trooper that "there were multiple children around the area" at this time. Id. When she saw her daughter leave the facility, the witness left her vehicle to intercept her daughter. Id. She also called the state police. Id. As she walked past the defendant's vehicle and reported his license plate number, the defendant drove away. Id. In a subsequent interview at the state police barracks, the defendant admitted he had masturbated in the parking lot. Id. at 2.
The affidavit for the second lewd and lascivious count alleged that, a few days later, the defendant masturbated at a swimming area. (Doc. 28-4 ¶¶ 5-7.) As she exited her vehicle with three younger relatives, a witness observed the defendant standing next to his vehicle and masturbating. Id. ¶
5. Later, while swimming with her relatives and two friends, she observed him masturbating on the rocks nearby. Id. ¶ 6. During an interview with a state trooper following this incident, the defendant acknowledged that he touched himself while naked in the parking lot but denied masturbating on the rocks. Id. ¶ 7.
At his change of plea hearing, the defendant admitted he committed the offenses described in the probable cause affidavits. (Doc. 28-3 at 4-5.) Following that hearing, a state judge sentenced the defendant to a term of twenty-four to sixty months' imprisonment, all suspended except for six months, with probation to follow. (Doc. 19 at 1.) The criminal complaint in this case alleges that the defendant signed a "Vermont Sexual Offender Registry Notification of Requirement to Register" form on the same day as his sentencing. (Doc. 1-1 ¶ 5.) The form informs the defendant of his obligation to notify the state registry of any change to his address if he intends to move out of state and to register with the registry in that new state. Id. ¶ 6. The complaint alleges that the state police in Vermont cited the defendant for a new lewd and lascivious conduct violation in June 2011. Id. ¶ 7. The defendant purportedly moved to Florida in response and failed to register as a sex offender there. Id. ¶¶ 9-10.
A federal grand jury returned an indictment against the defendant in March 2012. The indictment alleges that:
Beginning in or about July 2011 and continuing until September 2011, in the District of Vermont and elsewhere, the defendant, RICHARD PIPER, a person required to register under the Sex Offender Registration and Notification Act, having traveled in interstate commerce, did knowingly fail to register, and update his registration, as a sex offender. (Doc. 3.) The indictment tracks the language of 18 U.S.C. § 2250, which states, in relevant part, that "[w]hoever--(1) is required to register under [SORNA]; (2) . . . travels in interstate or foreign commerce . . . ; and (3) knowingly fails to register or update a registration as required by [SORNA]; shall be fined under this title or imprisoned not more than 10 years, or both." 18 U.S.C. § 2250(a).
The defendant now moves to dismiss this indictment, alleging, inter alia, that the government cannot prove an essential element of its case: namely, that he was "required to register under [SORNA]." (Doc. 19 at 1-2.) He asserts his state court convictions for lewd and lascivious conduct under section 2601 of title 13, Vermont Statutes Annotated, do not fall within SORNA's definition of "sex offense." Id. at 2-5. In determining whether his underlying convictions meet this definition, the defendant contends the Court should apply a categorical approach based solely on the elements of § 2601. Id.
The government responds that the defendant's classification under SORNA is a question of fact a pretrial motion to dismiss cannot resolve. (Doc. 28 at 4.) The government hedges that, if the Court decides otherwise, it should apply a modified categorical approach and examine facts disclosed by the record of conviction. Id. Relying on the probable cause affidavits that support both lewd and lascivious charges, the government asserts the defendant's convictions for these state crimes constitute sex offenses under SORNA because he committed them against minors. Id. at 8-9. In reply, the defendant argues: (a) the applicability of SORNA is a question of law; (b) Second Circuit precedent dictates that the categorical approach should apply; and (c) SORNA is inapplicable even if the modified categorical approach is applied. (Doc. 29 at 1-10.)
The defendant's motion to dismiss is premature at this stage in the case. Rule 12(b)(2) of the Federal Rules of Criminal Procedure provides that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." Fed. R. Crim. P. 12(b)(2). "The general issue in a criminal trial is, of course, whether the defendant is guilty of the offense charged." United States v. Doe, 63 F.3d 121, 125 (2d Cir. 1995). Rule 12(b)(2) thus bars defendants from challenging the sufficiency of the government's evidence prior to trial. The Second Circuit has stated that, "[u]nless the government has made what can fairly be described as a full proffer of the evidence it intends to present at trial . . . , the sufficiency of the evidence is not appropriately addressed on a pretrial motion to dismiss an indictment."*fn2 United States v. Alfonso, 143 F.3d 772, 776- 77 (2d Cir. 1998) (reinstating indictment that the district court had dismissed on the grounds that the government lacked sufficient ...