USA v. White Mountain

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
UNITED STATES OF AMERICA/
Plaintiff,
vs.
MIKAL JOHN WHITE MOUNTAIN,
Defendant.
1:21-CR-10047-CBK
REPORT AND
RECOMMENDATION ON
MOTION TO DISMISS INDICTMENT
In this sex offender registration case/ Mikal John White Mountain (White
Mountain)/ seeks to dismiss the indictment against him because it fails to state an offense.
He offers documentary and testimonial evidence in support of his motion. The
government opposes the motion/ arguing that the indictment is fadally valid. Because
the indictment is legally sufficient, even if extrinsic evidence is considered/ the Court
recommends that the dismissal motion be denied.
BACKGROUND
A federal grand jury indicted White Mountain with failure to register as a sex
offender. The indictment charges:
On or about between the 4th day of September/ 2021, and the date of this
Indictment [December 14, 2021]/ in the District of South Dakota and
elsewhere/ the defendant/ Mikal John White Mountain/ a person required
to register under the Sex Offender Registration and Notification Act
[SORNA]/ and having traveled in interstate and foreign commerce/ and
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having left/ entered/ and resided in Indian country/ did knowingly fail to
register and update a registration, in violation of 18 U.S.C. § 2250(a).1
White Mountain moved to dismiss the indictment for failing to state an offense
under Fed. R. Crim. P. 12(b)(3)(B)(v). He claims that a stint at the Burleigh County
Detention Center/ lasting less than thirty days/ does not trigger a duty to update his
SORNA registration upon release from the Center.2 The SORNA definitions for
"habitually lives" and "resides/" he says/ excuse any alleged registration omission(s)
during the indicted time period.3 In response/ the government asserts that White
Mountain misconstrues the SORNA requirements and that his legal argument would
//frustrate[] the purpose of SORNA."4
White Mountain initially offered three exhibits to bolster his claim: (1) a North
Dakota registration form completed when he got out of the Detention Center on August
31, 2021;5 (2) a Standing Rock Sioux Tribe (SRST) change of registration form from a year
earlier;6 and (3) a letter Brett Smith/ the SORNA coordinator for the SRST/ wrote eight
1 Docket No. 1.
2 Docket Nos. 66, 71.
3 See Docket Nos. 66, 71.
4 Docket No. 70 at 4.
5 Docket No. 66, Ex. A (sealed).
6 Docket No. 71, Ex. C (sealed).
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days after White Mountain's release from the Center.7 White Mountain then withdrew
the Smith letter as an exhibit/ declaring he intended to rely on the two registration
exhibits.8 He also presented testimony from Casey Kapp/ a Burleigh County detention
officer/ to support his fachial allegations.9 The government maintains the underlying
evidence is "unnecessary" to resolve White Mountain's motion10 but alternatively
contends that dismissal is not justified because he violated § 2250(a) by: (1) registering a
North Dakota address; (2) travelling to South Dakota; (3) residing in Indian Country/ and
(4) failing to register his South Dakota address for more than 30 days."
DISCUSSION
A. Facial Sufficiency
A defendant may move to dismiss a defective indictment that fails to state a
criminal offense.12 An indictment adequately states an offense if "it contains all of the
essential elements of the offense charged/ fairly informs the defendant of the charge[]
7 Docket No. 66, Ex. B (sealed).
8 Mot. Hr/g Tr. 15-16 (Sept. 7, 2022).
9 Mot. Hr'g Tr. 6-11; see also Docket No. 74.
10 Docket No. 70 at 1-2, M:ot Hr'g Tr. 12-13 (objecting to the Court going beyond the
indictment when deciding White Mountain's motion).
u Docket No. 70 at 3-4.
12 Fed. R. Crim. P. 12(b)(3)(B)(v).
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against which he must defend/ and alleges information to allow [him] to plead a
conviction or acquittal as a bar to a subsequent prosecution/'13 When ruling on a motion
to dismiss/ a court must "accept the allegations stated in the indictment as true and ask
whether they can form the basis of the charged offense."14 "An indictm.ent is normally
sufficient if its language tracks the statutory language."15 "This is a low bar/ and an
indictm.ent [will usually] be found valid unless it is / so defective' that no reasonable
construction of it properly charges the offense for which the defendant is being tried."16
Ordinarily/ a court's "assessment is limited to the 'four corners' of the [i]ndictment/ and
the [c]ourt should studiously avoid the consideration of evidence from sources beyond
the [i]ndictment."17 In a criminal case in which the charge is brought by grand jury
indictment, "there is no procedure to test the sufficiency of the [g]overnment's evidence
13 United States v. Sewell, 513 F.3d 820, 821 (8th Cir. 2008) (quoting United States v.
Hernandez, 299 F.3d 984, 992 (8th Cir. 2002)).
14 United States v. Hansmeier, 988 F.3d 428,436 (8th Cir. 2021), cert. denied, 142 S.Ct.262,211
(2021) (citations omitted).
15 Sewell, 513 F.3d at 821.
16 United States v. Marrowbone, No. 3:14-CR-30071-RAL/ 2014 WL 6694781/ at *1 (D.S.D.
Nov. 26, 2014) (quoting Sewell, 513 F.3d at 821).
17 United States v. Prentice, 683 F. Supp. 2d 991, 1005 (D. Minn. 2010) (citing United States
v. Hall, 20 F.3d 1084, 1087 (10th Cir. 1994)); see also United States v. Farm & Home Sav. Ass'n,
932 F.2d 1256, 1259 n.3 (8th Cir. 1991) (a court does not look beyond the four comers of
the indictment when judging its sufficiency).
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prior to trial."18 "A court cannot dismiss an indictment based on 'predictions as to what
the trial evidence will be/ instead it must give the [g]overnment the opportunity to
present its evidence/'19
Here/ the wording of the indictment tracks the text of the statute and the elements
of the failure to register offense.20 First/ the indictment alleges that White Mountain is
"required to register under [SORNA]/' invoking § 2250(a). Second/ the indictment states
that White Mountain "traveled in interstate and foreign commerce and [] left/ entered/
and resided in Indian Country/" which § 2250(a)(2)(B) requires. Third/ the indictment
avers that White Mountain "knowingly fail[ed] to register and update a registration/'
which mirrors the language of § 2250 (a) (3). The indictment likewise charges a narrow
enough timeframe (September 4/ 2021 - December 14, 2021) to provide White Mountain
with notice of the charge for him to plead double jeopardy as a bar to another prosecution.
"On its face/ the indictment is valid/'21 And "[a] valid indictment [typically] will survive
a motion to dismiss for failure to state an offense without further inquiry."22
18 Marrowbone, 2014 WL 6694781/ at *2 (citing LZmft^ Stotes v. Ferro, 252 F.3d 964, 968 (8th
Cir. 2001)).
^Manowbone, 2014 WL 6694781, at *2 (quoting United States v. Laurentis, 230 F.3d 659, 661
(3d Cir. 2000)).
20 Eighth Circuit Manual of Model Jury Instructions (Criminal) 6.18.2250 (2018).
21 Marrowbone, 2014 WL 6694781/ at *2.
22 Id.
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B. Extnnsic Evidence
That said/ White Mountain asks the Court to consider extrinsic evidence in
deciding his motion to dismiss.23 This evidence/ he maintains/ shows he never resided in
North Dakota and was not required to update his registration in South Dakota.24
Rule 12 though "was not intended to permit . . . motions challenging an
indictanent's sufficiency based on facts that are outside the pleadings."25 Still, courts have/
on occasion/ looked beyond the four corners of an indicfanent in the context of a Rule
12(b)(3)(B)(v) dismissal motion/ but only when passing on questions of law based on
23 Docket Nos. 66 at 1-2 & Ex. A and 71 at 2 & Ex. C.
24 Docket Nos. 66 at 2 and 71 at 2.
251A Charles Alan Wright & Andrew D. Leipold/ Federal Practice & Procedure: Criminal §
195 (5th ed. 2020) (collecting cases).
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undisputed facts.26 The Eighth Circuit has not yet weighed in on the issue.27 The Tenth
Circuit though has held that courts may entertain Rule 12(b)(3)(B)(v) dismissal motions
in "limited circumstances" where (1) the operative facts are undisputed; (2) the
government does not object to the court considering those facts; and (3) the court can
determine from them that, as a matter of law/ the government is incapable of proving its
26 See, e.g., United States v. Church, 461 F. Supp. 3d 875, 881 (S.D. Iowa 2020) (looking
beyond the four corners of the indictment was proper where pretrial indictment
challenge presented a pure question of law based on undisputed facts); United States v.
Skaggs, No. 2:18-CR-51-RLJ-HBG/ 2019 WL 6691014/ at *9 (E.D. Term. Nov. 25,2019), R6^
adopted, 2019 WL 6691009 (E.D. Tenn. Dec. 6/ 2019) (observing/ in a SORNA case/ that
there are two requirements for addressing a Rule 12(b)(3)(B)(v) motion to dismiss: (1) the
issue raised must be a question of law and (2) the relevant facts must be undisputed);
United States v. Grant, No. 1:17-CR-236-AT-AJB/ 2018 WL 4516008/ at *2 (ND. Ga. July 4/
2018), R&R adopted, 2018 WL 4140870 (N.D. Ga. Aug. 30, 2018) (addressing pretrial
motion to dismiss that required consideration of facts outside the four corners of the
SORNA indictment that were not in dispute); Marrowbone, 2014 WL 6694781/ at *1
(passing on motion to dismiss failure to register indictment where operative facts were
undisputed); see also United States v. Bnrchell, No. 4:21-CR-40025/ 2021 WL 3726899, at *1
(D.S.D. Aug. 23, 2021) (question posed in motion to dismiss defendant's SORNA
indictment was a legal one for the court to determine/ not the jury); United States v. Brown,
No. 11-174, 2012 WL 604185/ at *4 (W.D. Pa. Feb. 24, 2012) (denying defendant's motion
to dismiss because the sufficient of the failure to register indictment turned on factual
questions that could not be addressed in the context of such a motion); see generally 1A
Federal Practice & Procedure, § 192 & nn. 17-18 (some courts have said that in "rare" or
"unusual" cases/ a court can properly rule on a dismissal motion based on the sufficiency
of the evidence where the facts are not disputed and the government does not object.
Other courts have taken a contrary position/ concluding that this kind of motion should
not be ruled on even where the facts are uncontroverted).
27 See Church, 461 F. Supp. 3d at 881.
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case beyond a reasonable doubt.28 If there are contested facts surrounding the
commission of the offense that would be of any assistance in deciding the motion's
validity/ then the prosecution must continue.29 "Any other approach would 'risk
trespassing on territory reserved to the jury as the ultimate finder of fact.. . /"30
The meager factual record in White Mountain's case is controverted and does not
satisfy the first prong of the Tenth Circuit's test. The government did not concede as true
White Mountain's "facts/" and agreed that even if the Court considered the extrinsic
evidence offered/ factual issues remained for a jury to resolve.31 Indeed/ nothing in the
two exhibits/ the testimony of Casey Kapp/ or the indictment itself shows - let alone
undisputedly establishes - that (1) White Mountain continuously resided32 at the same
McLaughlin address before and during the indicted timeframe/ or (2) the time White
Mountain spent at the Burleigh County Detention Center was/ as he alleges/ only two
weeks.33 White Mountain's arrest in North Dakota raises suspicion about whether he
28 United States v. Chavez, 29 F.4th 1223,1226-27 (10th Cir. 2022), petition for cert. filed, No.
22-86 (Jul. 29, 2022).
29 Id. at 1227-28 (citing United States v. Pope, 613 F.3d 1255,1261 (10th Cir. 2010))
30 Chavez, 29 F.4th at 1227.
31 Mot. Hr'g Tr. 12-13.
32 See 42 U.S.C. § 16911 (13) (defining residency as the "location of [an] individuaFs home
or other place where the individual habitually lives").
33 See Docket No. 66, Ex. A (providing no indication of how long White Mountain was at
the Burieigh County Detention Center/ only that he signed an offender registration form
8
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continuously lived in McLaughlin/ which he would have the Court assume. At any rate/
White Mountain cannot forgo his duty to register/ based on a jail stay of less than thirty
days/ without first proving the premise. As a condition precedent to granting the
dismissal prayed for - and to ruling on the legal question posited - the Court must know
White Mountain's whereabouts with certainty and without dispute. But because his
motion sits on a muddy factual foundation/ dismissal is unwarranted. Besides/ the
motion does not correspond to the Rule 12(b)(3)(B)(v) motions/ made in other SORNA
cases/ where courts have considered extrinsic evidence.34
The second and third prongs of the test are not satisfied either. The government
objected/ both orally and in writing/ to the Court considering any extrinsic evidence/
there on August 31, 2021); Mot. Hr'g Tr. 6-11 (making no mention of when White
Mountain arrived and left the Detention Center).
34 See, e.g., Burchell, 2021 WL 3726899, at *1 (where motion to dismiss raises only a legal
question/ it is appropriate for the court to resolve it in advance of trial); Grant, 2018 WL
4516008, at *2 (dismissal of the indictment may be decided by way of pretrial motion
under Rule 12 where the facts do not appear to be in material dispute); M.arrowbone, 2014
WL 6694781, at *2 (issue raised in defendant's motion to dismiss for failure to state an
offense was a legal/ rather than a factual, one the court could decide before trial); United
States v. Lafferty, 608 F. Supp. 2d 1131, 1137 (D.S.D. 2009) (it is permissible in some
circumstances for a court to consider evidence when dealing with a motion to dismiss/
particularly where the operative facts are undisputed and not objected to/ to determine
whether the elements of the criminal charge can be established); see generally 1A Federal
Practice & Procedure: Criminal ^ 192 n.l7 and 195 n.7.
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including the "underlying facts."35 What's more/ the Court cannot conclude/ at this stage
of the proceedings/ that the government cannot prove its case as a matter of law.
Dismissing the indictment now would prejudice the government/ especially given such
a limited picture of what evidence there is/ and will be offered/ against White Mountain.
The Court does not know where White Mountain resided between September 4/
2021 and the date of his indictment (December 14, 2021). So the Court has no way of
determining whether he had a duty to register/ over this 101-day stretch/ and breached
that duty. He may have lived in one or more different places during the period in
question or not changed his residence at all. The Court cannot tell/ from the adduced
evidence/ which one is the case. On this record/ unsettled factual issues exist - that
pertain directly to whether White Mountain had to register - that a jury must sort out.
And even if it could fully address White Mountain's fact-based motion, the Court does
not see how the extrinsic evidence presented compels dismissal of the indictment without
a trial and further factual development.
CONCLUSION
The indictment/ as it now reads/ is legally sufficient/ tracking the language of §
2250(a) and reasonably placing White Mountain on notice of the failure to register charge.
I
With the evidentiary record being unclear/ silent/ equivocal/ or in dispute/ the Court
35 Mot. Hr'g Tr. 12-13 (objecting to the Court considering extrinsic evidence); Docket No.
70 at 1 (stating the underlying facts are "unnecessary for resolving this motion .. ..").
10
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declines to rule on the merits of WUte Mountain's claims. Granting his Rule
12(b)(3)(B)(v) motion - and making a determination that/ as a matter of law/ the
government cannot prove its case beyond a reasonable doubt - is inappropriate and the
case should proceed to trial. White Mountain may renew his claims in a motion for
judgment of acquittal after the government puts on its case and rests.
RECOMMENDATION
In accordance with the authorities and legal analysis set forth in this report/ and
the record as it now exists before the Court/ it is
RECOMMENDED that White Mountain's motion to dismiss indictment36 be
denied/ without prejudice.
NOTICE
The parties have 14 calendar days after service of this report and recommendation
to object to the same.37 Unless an extension of time for cause is later obtained/38 failure to
36 Docket No. 65.
37See 28 U.S.C. § 636(b)(l); Fed. R. Crim. P. 59(b).
38See Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990); Nash v. Black, 781 F.2d 665, 667 &
n.3 (8th Cir. 1986) (citing Thomas v. Am, 474 U.S. 140,155 (1985)).
11
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file timely objections will result in the waiver of the right to appeal questions of fact.39
Objections must //identify[] those issues on which further review is desired[.]//4°
DATED this 9th day of September/ 2022 at Pierre/ South Dakota.
BY THE COURT:
CTAn^Q
MARK A. MORENO
UNITED STATES MAGISTRATE JUDGE
39See Thompson, 897 F.2d at 357; Nash, 781 at 667.
40Arn, 474 U.S. at 155.
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