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United States v. Ballantyne

United States District Court, D. Montana, Billings Division

August 19, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSEPH MATTHEW BALLANTYNE, Defendant.

          OPINION AND ORDER

          SUSAN P. WATTERS U.S. DISTRICT COURT JUDGE.

         Before the Court is Defendant Joseph Ballantyne's motion to dismiss (Doc. 15) the indictment. For the following reasons, Ballantyne's motion is granted.

         I. Background

         On June 12, 1987, in Colorado state court, Ballantyne was sentenced to 14 years in prison for Second Degree Sexual Assault. On or before January 24, 2001, Ballantyne was released. (Doc. 16 at 3; Doc. 26 at 10). Upon his release, Ballantyne was required to register as a sex offender under the Sex Offender Registration and Notification Act, 34 U.S.C. § 20901 et seq. The length of time Ballantyne was required to register under SORNA depended upon his tier classification. SORNA classifies sex offenders as either a one, a two, or a three. 34 U.S.C. § 16911(2-4). A tier three offender is required to register for life, a tier two offender is required to register for 25 years, and a tier one offender is required to register for 15 years. 34 U.S.C. § 20915(a). Ballantyne's registration period began when he was released from prison in 2001. United States v. Del Valle-Cruz, 785 F.3d 48, 55 (1st Cir. 2015).

         The tier assigned to Ballantyne depended upon his 1987 conviction. If Ballantyne's 1987 conviction was comparable to or more severe than abusive sexual contact against a minor under the age of 13, he was designated a tier three. 34 U.S.C. § 2091 l(4)(A)(ii). If his conviction was comparable to or more severe than abusive sexual contact, he was designated a tier two. 34 U.S.C. § 2091 l(3)(A)(iv). If his conviction was not comparable to either of those offenses, he was designated a tier one.[1] 34 U.S.C. § 20911(2).

         On April 4, 2019, Ballantyne was indicted on one count of Failure to Register as a Sexual Offender, in violation of 18 U.S.C. § 2250(a). (Doc. 1). The indictment stated Ballantyne was "a person required to register under the Sex Offender Registration and Notification Act," who had failed to register from approximately October 26, 2018, until April 4, 2019. (Doc. 1). Ballantyne filed a motion to dismiss the indictment, arguing he is a tier one offender and his obligation to register expired in 2016. The government responded Ballantyne is at least a tier two and his duty to register does not expire until 2026 at the earliest.

         In a separate case in 2011, the Presentence Investigation Report determined Ballantyne was a tier three offender based on his 1987 conviction. (CR 11-43-BLG-SPW, Doc. 46 at 5). Here, the government states that case's PSR properly adjudicated Ballantyne's tier designation, but does not argue Ballantyne's motion is barred by res judicata. The government's lack of argument on res judicata leads the Court to believe the government believes the PSR was correct rather than binding.

         II. Discussion

         To determine Ballantyne's tier classification, the Court employs the categorical approach. United States v. Cabrera-Gutierrez, 756 F.3d 1125, 1133 (9th Cir. 2014) (citing Taylor v. United States, 495 U.S. 575 (1990)). Under the categorical approach, the Court compares the statutory definition of the prior offense with the elements of the federal offense the government contends is "comparable" to the prior offense. Cabrera-Gutierrez, 756 F.3d at 1133. The prior offense is "comparable" to the federal offense if it is defined more narrowly than, or has the same elements as, the federal offense. Cabrera-Gutierrez, 756 F.3d at 1133. The prior offense is not "comparable" to the federal offense if the statute defining the prior offense "sweeps more broadly" than the federal offense. Cabrera-Gutierrez, 756 F.3d at 1133. The Court may not consider the facts giving rise to the prior offense, even if the facts show the defendant's conduct satisfies the federal elements. A comparison of the elements is the only relevant inquiry.[2] Cabrera-Gutierrez, 756 F.3d at 1133.

         The federal offense the government contends is "comparable" to Ballantyne's prior offense is either Abusive Sexual Contact against a minor under the age of 13 (tier three) or Abusive Sexual Contact (tier two). Because both offenses are premised on the crime of Abusive Sexual Contact, the parties agree the Court should compare Second Degree Sexual Assault with the federal crime of Abusive Sexual Contact. If the crimes categorically match, the Court should then use the age of the victim to determine whether Ballantyne is a tier two or a tier three. United States v. Mi Kyung Byun, 539 F.3d 982, 993 (9th Cir. 2008).

         The statute under which Ballantyne was convicted provided "[a]ny actor who knowingly inflicts sexual penetration or sexual intrusion on a victim commits sexual assault in the second degree if...." Colo. Rev. Stat. § 18-3-403 (repealed 2000). The statute then lists several subsections which contain additional elements to complete the crime, such as the actor knows the victim is incapable of appraising the nature of the victim's conduct or the actor knows the victim erroneously believes the actor to be the victim's spouse. Colo. Rev. Stat. § 18-3-403 (a-h) (repealed 2000). The parties agree the Court does not need to consider the particular subsection Ballantyne was convicted under because regardless of the subsection involved, the offense had to include either "sexual penetration" or "sexual intrusion." The parties further agree the analysis rests squarely on the definition of "sexual intrusion" because the categorical inquiry "need focus only on the conduct falling at the least egregious end of [the state statute's] range of conduct." United States v. Baza-Martinez, 464 F.3d 1010, 1014 (9th Cir. 2006) (citation and internal quotation omitted). The Court notes again neither party argues "sexual penetration" and "sexual intrusion" are themselves divisible elements.

         The Federal statute criminalizing Abusive Sexual Contact provides "[w]hoever ... knowingly engages in or causes sexual contact with or by another person-----" 18 U.S.C. § 2244(a). Like the Colorado statute, the federal statute then lists several subsections which contain additional elements to complete the crime, such as rendering the victim unconscious or administering a drug which impairs the victim's ability to control his or her conduct. 18 U.S.C. § 2244(a)(1) (citing 18 U.S.C. § 2241(b)(l-2)). Also similar to the Colorado statute, the parties agree the Court does not need to consider the particular subsection Ballantyne's prior offense might compare to because the federal offense must include "sexual contact."

         What this boils down to, according to the parties, is whether "sexual intrusion" sweeps more broadly than "sexual contact." "Sexual intrusion" means "any intrusion, however slight, by any object or any part of a person's body, except the mouth, tongue, or penis, into the genital or anal opening of another person's body if that sexual intrusion can reasonably be construed as being for the purposes of sexual arousal, gratification, or abuse."[3] Colo. Rev. Stat. § 18-3-401(6). "Sexual contact" means "the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person." 18 U.S.C. § 2246(3).

         Ballantyne argues sexual intrusion sweeps more broadly for two reasons, both of which are based on the intent required. First, Ballantyne argues sexual intrusion requires only the general intent of a "knowing" sexual intrusion whereas "sexual contact" requires the specific intent of an "intentional" touching. Second, Ballantyne argues sexual intrusion requires an objective standard for determining intent whereas sexual intrusion requires a subjective standard. To the first argument, the government responds both sexual intrusion and sexual contact have general and specific intent elements. To the second argument, the government responds Colorado case law has interpreted the statute to require a subjective standard. The parties' arguments are conflated-which is unavoidable under the circumstances-but ...


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