Opinion
20-cr-88-jdp
2021-06-29
UNITED STATES of America, Plaintiff, v. Thomas P. THAYER, Defendant.
Julie Suzanne Pfluger, Government, United States Attorney's Office, Madison, WI, for Plaintiff.
Julie Suzanne Pfluger, Government, United States Attorney's Office, Madison, WI, for Plaintiff.
OPINION and ORDER
JAMES D. PETERSON, District Judge
Defendant Thomas P. Thayer is charged in a single-count indictment with failing to register as required under the Sex Offender Registration and Notification Act, in violation of 18 U.S.C. § 2250. Thayer moves to dismiss the indictment, contending that his Minnesota conviction for Fourth Degree Criminal Sexual Conduct is not a predicate "sex offense" under SORNA, so he was under no obligation to register. Dkt. 12. After briefing, Magistrate Judge Crocker issued a Report and Recommendation that the motion be granted. Dkt. 22. The government objects to the Report and Recommendation. Dkt. 30. Pursuant to 28 U.S.C. § 636(b)(1) and this court's standing order, I am required to review de novo the objected-to portions of the Report and Recommendation.
The underlying facts are undisputed. In 2003, Thayer pleaded guilty in Minnesota state court to Fourth Degree Criminal Sexual Conduct, in violation of Minn. Stat. 609.345(b). According to the sworn probable cause statement attached to the state-court complaint, Thayer was sleeping on the floor of his trailer next to his daughter JB, who was a minor at the time. At some point during the night, JB awoke to find her pants and underwear pulled aside and Thayer touching her vaginal area. Thayer told the investigating officers that he must have mistaken his daughter for his wife.
Thayer's motion presents a question of law: whether his Minnesota conviction is a predicate "sex offense" under SORNA. Guided primarily by United States v. Walker , 931 F.3d 576, 578 (7th Cir. 2019), Judge Crocker concluded that, to answer the question, the court must apply the "categorical" approach. Under that approach, the court compares the elements of the Minnesota statute to the SORNA definition of sex offense without consideration of Thayer's actual offense conduct. Judge Crocker concluded that the Minnesota statute criminalizes conduct that would not fall within the SORNA definition of sex offense. Because the Minnesota statute sweeps more broadly than the SORNA definition, Judge Crocker recommends that I dismiss the indictment. The government objects to every step of Judge Crocker's analysis. Dkt. 30.
My analysis differs from Judge Crocker's, but I reach the same conclusion. I adopt the recommendation and dismiss the indictment.
A. Categorical vs. circumstance-specific approach
The government objects to the use of the categorical approach in the first place, basing its argument in the text of SORNA's complex definition of "sex offense." The government agrees that the categorical approach would be appropriate for those sex crimes defined in 34 U.S.C. § 20911(5)(A)(i). That provision defines a "sex offense" as "a criminal offense that has an element involving a sexual act or sexual contact with another." That language, phrased in terms of whether a prior offense has a certain "element," calls for an analysis of the elements, which is to say, the categorical approach. But, the government's argument goes, the definition in § 20911(5)(A)(ii) is phrased in a way that calls for a "circumstance-specific" approach in which the court considers the underlying offense conduct. Neither the Supreme Court nor the Seventh Circuit has endorsed this approach. But the government cites half a dozen cases outside the Seventh Circuit that it says call for the circumstance-specific approach, most notably United States v. Dodge , 597 F.3d 1347 (11th Cir. 2010). Dkt. 30, at 5.
Section 20911(5)(A)(ii) defines "sex offense" to include, among other definitions, "a criminal offense that is a specified offense against a minor." "Specified offense against a minor" is defined in § 20911(7), a subsection with the heading "Expansion of definition of ‘specified offense against a minor’ to include all offenses by child predators." The defined specified offenses include, as is pertinent here, "an offense against a minor that involves ... any conduct that by its nature is a sex offense against a minor." § 20911(7)(I). The government contends that the definition calls for a circumstance-specific examination of the underlying offense conduct because the definition is phrased in terms of offenses that "involve any conduct."
I am persuaded, as was the Dodge court, that Congress intended to sweep very broadly with § 20911(7). The heading of the section makes that clear. And purely as a matter of textual reading, the definition in paragraph (I) would include pretty much everything under the sun that could reasonably be considered a sex offense against a minor. But for several reasons I'm not persuaded that this section calls for the court to look at the underlying offense conduct.
The statutory text is ambiguous about whether it calls for the examination of the actual individual offense conduct. It might; the Dodge court read the text that way. But asking whether an "offense" involves some specific conduct could be a question about whether the offense as statutorily defined requires proof of that conduct, which would call for the examination of the criminal statute, not the actual offense conduct. I don't find the text as clear and compelling as the government contends. But I don't need to resolve the textual ambiguity, because there are other reasons to reject the circumstance-specific approach.
Reading § 20911(7)(I) to allow the court to look at the underlying offense conduct for anything that would be a sex offense would render most of SORNA's definitions of sex offense mere surplusage. Walker , following Nijhawan v. Holder , 557 U.S. 29, 38–39, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009), allows consideration of the actual age of the victim only after a strictly categorical analysis of the statute of conviction. Why bother with the exacting categorical analysis called for in Walker when § 20911(7)(I) would cover the vast majority of putative SORNA predicate convictions? I can't reconcile the Dodge approach with Seventh Circuit precedent, particularly Walker , that calls for an initial categorical analysis of SORNA predicate convictions.
The most fundamental problem with the government's position is that categorical analysis is not merely matter of interpreting the statutory text to ascertain congressional intent. It is also rooted in constitutional principles that circumscribe judicial factfinding to protect a defendant's rights to due process and a jury trial. Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2246, 195 L.Ed.2d 604 (2016). Other than a prior conviction, any fact that exposes a defendant to increased statutory punishment must be found, beyond a reasonable doubt, by a jury. Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The government's position finds arguable support in SORNA's text, but it invites expansive judicial factfinding that cannot be easily squared with Mathis and the many subsequent cases applying the categorical approach to predicate convictions in many contexts. Thayer's case illustrates the problem vividly: under the government's approach, to convict Thayer for the SORNA violation, the court would have to find the facts underlying an 18-year-old conviction with a sleeping minor victim and an intoxicated offender, presumably based on hearsay—the investigator's probable cause statement. I decline to take a circumstance-specific approach that would consider Thayer's actual offense conduct in deciding whether he was required to register under SORNA.
B. Categorical analysis of Thayer's predicate conviction
The government contends that even if the court takes the categorial approach, Thayer's Minnesota conviction for criminal sexual contact is a "sex offense" under SORNA. In conducting the categorical analysis, the first question is: what must the court compare the Minnesota statute to?
The Supreme Court has recently clarified that there at two categorical methodologies depending on the provision of the federal statute at issue. Shular v. United States , ––– U.S. ––––, 140 S. Ct. 779, 206 L.Ed.2d 81 (2020) ; see also United States v. Ruth , 966 F.3d 642, 646 (7th Cir. 2020), cert. denied , ––– U.S. ––––, 141 S. Ct. 1239, 208 L.Ed.2d 630 (2021). Some statutes require the "generic-offense" approach, in which the court must come up with the generic version of a crime. For example, the Armed Career Criminal Act says that a conviction for "burglary" counts as a predicate violent felony. This requires the court to identify the elements of generic burglary and compare those elements to the statute under which the defendant was previously convicted. Other statutes call for a "conduct-based" approach, in which the court more directly examines the elements of the statute of the prior conviction to determine whether that statute meets the criteria specified in the federal law. For example, the Immigration and Naturalization Act provides consequences for an alien convicted of a crime that "involves fraud or deceit." This calls for the court to directly examine the elements of the statute of the prior conviction to determine whether it necessarily entails fraud or deceit. To be clear: the conduct-based method is strictly categorical, and it does not call for or permit any evaluation of the actual offense conduct.
Neither side directly addresses which categorical approach I should take here, but the definition of "sex offense" in SORNA calls for the conduct-based categorical approach. In Ruth , the court of appeals considered the Armed Career Criminal Act concept "serious drug offense," which is defined as "an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance." The court of appeals held that "serious drug offense" called for the conduct-based categorical analysis. The SORNA definition language is phrased in terms similar to the definition of "serious drug offense." SORNA does not refer to generic offenses, but to conduct that must be an element of the prior convictions. So the conduct-based categorical approach is the appropriate method here. With that background, I turn to the government's arguments about why I should find a categorical match between Minnesota Fourth Criminal Degree Sexual Contact and the SORNA definition of "sex offense."
The government's first argument on this issue is that the court should eschew any federal statutory definition and use a plain-language definition of "sexual contact." Sexual contact is not expressly defined under SORNA. The government suggests that, using dictionary definitions, the term means simply "touching of a sexual nature," and that's a match with the Minnesota statute because the statute involves touching of the intimate parts of the victim. I'm not persuaded that this is the right approach, because SORNA expressly refers to some federal offenses, and other courts have suggested that the federal sex offenses provide the proper starting point. See, e.g., Walker , 931 F.3d at 578 ; United States v. George , 223 F. Supp. 3d 159, 161 (S.D.N.Y. 2016).
Besides, the proposed plain-language approach would not necessarily produce the result the government intends. The Minnesota statute also applies to touching with "aggressive" intent, so it would apply to touching that was not intended to be sexual, and thus it would sweep more broadly than SORNA, producing a categorical mismatch. If the government means to say that any touching of the intimate parts is inherently sexual, then the government is reading the intent element out of the Minnesota statute and the federal definition, and its categorical analysis would be fundamentally flawed because it would reach touching of the intimate parts for purposes of health care or hygiene.
The government's second argument is more directly targeted to the analysis in the Report and Recommendation, which used the definition of "sexual contact" in 18 U.S.C. § 2246(3). According to the government, Fourth Degree Criminal Sexual Conduct under Minnesota law is a categorical match to "sexual contact" as defined in § 2246(3). Judge Crocker disagreed. The Minnesota offense and the federal offense match with respect to the body parts whose touching is potentially prohibited. But the Minnesota statute criminalizes touching with either sexual or aggressive intent, whereas § 2246(3) requires "an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person." Judge Crocker saw no equivalent to aggressive touching in § 2246(3), but the government contends that Judge Crocker was wrong.
The government's argument is succinct, essentially relying on the unpublished decision from the Fifth Circuit Court of Appeals, which concluded that "[t]he intent to ‘abuse’ in 18 U.S.C. § 2246(3) is analogous to the aggressive intent required by the Minnesota statute." United States v. Coleman , 681 F. App'x 413, 417 (5th Cir. 2017). I considered essentially the same issue in United States v. Geasland , No. 15-CR-132 (W.D. Wis., filed July 7, 2016). I won't repeat the entire analysis from Geasland here. But I took a close look at the concept "abuse" under federal sex crime law, and I reached the same conclusion as did the Fifth Circuit:
Given the necessarily broad notion of "abuse" as that term is used in federal sex crime statutes, I conclude that the touching of a minor's intimate parts for the purpose of inflicting physical pain—such as a battery to the genitals or breast—would constitute sexual contact within the meaning of the federal sex abuse statutes.
Id. , at 8. So I part ways with the Report and Recommendation on this point: I conclude that the aggressive intent element of Minnesota Fourth Degree Criminal Sexual Conduct is a categorical match to the abusive intent element in § 2246(3).
But that's not the end of the categorical analysis, because there is a second categorical mismatch identified in the Report and Recommendation, involving what Judge Crocker referred to as the "Romeo and Juliet" carve-out. SORNA excludes from "sex offense" two categories of offenses involving consensual sexual conduct. The first category includes offenses with adult victims not under the custodial authority of the offender. The second category includes offenses with victims at least 13 years old, if the offender was no more than four years older than the victim at the time of the offense. The Minnesota statute under which Thayer was convicted criminalizes sexual contact with a victim 13–15 years old if the offender is either more than 48 months older than the victim or the offender is "in a position of authority" over the victim. Minn. Stat. § 609.345(b). As Judge Crocker pointed out, there is a categorical mismatch here: Minnesota would criminalize sexual contact between a 13–15 year old victim and an offender in a position of authority, even if the offender was less than 48 months older. But that offense would not be a sex offense under SORNA.
Judge Crocker questioned whether this categorical mismatch would meet the "realistic probability of application threshold" in Walker . Dkt. 22, at 9 n.3. But he didn't have to resolve that point, because he concluded that the mismatch on the intent element resolved Thayer's motion. Because I disagree with Judge Crocker on the intent element, I have to address the realistic probability of application issue in more depth.
In Walker , the Court of Appeals described the matching called for under the categorical approach in this way:
If the elements of the predicate offense are the same (or narrower) than the federal offense, there is a categorical match.... But if the elements of the state conviction sweep more broadly such that there is a "realistic probability ... that the State would apply its statute to conduct that falls outside" the definition of the federal crime, then the prior offense is not a categorical match. Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193, 127 S. Ct. 815, 166 L. Ed. 2d 683 (2007).
931 F.3d at 579. This comment from Walker suggests that the categorical approach requires something more than a strict element-by-element analysis, but nothing in Walker required the Court of Appeals to explain or apply the realistic probability test.
The case cited in Walker, Duenas-Alvarez , involved the categorical analysis of a state-law offense to determine whether it qualified as a "theft offense" under the Immigration and Naturalization Act, which would result in the defendant's removal from the United States. 549 U.S. at 185, 127 S.Ct. 815. The Court said that it was not enough to point to a minor elemental discrepancy between the state statute and the generic definition of the offense:
Moreover, in our view, to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute's language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic probability, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.
549 U.S. at 193, 127 S.Ct. 815. As the court of appeals explained in Ruth , the generic-offense approach "must allow for some margin of inconsequential discrepancy." 966 F.3d at 647–48. Under the generic-offense approach, it's enough for the government to show substantial correspondence between the state statute and the generic crime. It's up to the defendant to show a realistic probability that the state would apply its statute in the non-generic way by pointing to a specific case.
But the margin of inconsequential discrepancy does not apply under the conduct-based categorical approach. Under that approach, "[t]here are no minor deviations in offense elements to assess, only enumerated conduct." Id. Thus, in Ruth , the criminalization of "positional isomers" of cocaine under Illinois law was enough to create a categorical mismatch with the federal definition of "felony drug offense." The government adduced evidence that the DEA had never encountered a case involving positional isomers of cocaine, but that did not matter under the conduct-based categorical approach. Id. at 648.
The strict Ruth approach is applicable here because we are operating under the conduct-based categorical approach. The minor discrepancy in the Romeo-and-Juliet carve-out creates a categorical mismatch, which means that Minnesota Fourth Criminal Degree Sexual Contact is not a "sex offense" as that term is used under SORNA. Thayer was under no obligation to register as a sex offender. The result is counterintuitive, in light Thayer's actual offense conduct, but that conduct is immaterial under the required categorical analysis.
ORDER
IT IS ORDERED that defendant's motion is GRANTED; the indictment is dismissed.