Opinion
No. 5:19-CR-499-D
07-01-2020
UNITED STATES of America v. Hector Daneri REGALDO, Defendant.
Sebastian Kielmanovich, United States Attorney's Office, Raleigh, NC, for United States of America.
Sebastian Kielmanovich, United States Attorney's Office, Raleigh, NC, for United States of America.
ORDER
JAMES C. DEVER III, United States District Judge
On April 15, 2020, the United States filed a superseding indictment against Hector Daneri Regaldo ("Regaldo" or "defendant") [D.E. 22]. In the superseding indictment, the grand jury charged Regaldo with three counts of knowingly attempting to procure his naturalization contrary to law in violation of 18 U.S.C. § 1425(a) (counts 1, 2, 3), two counts of knowingly applying for, and attempting to procure evidence of, citizenship to which he was not entitled in violation of 18 U.S.C. § 1425(b) (counts 4 and 6), three counts of willfully and knowingly making a false statement in an application for a passport with intent to induce and secure a passport contrary to law in violation of 18 U.S.C. § 1542 (counts 5, 7, and 8), one count of knowingly failing to register and update registration as required by the Sex Offender Registration and Notification Act ("SORNA") in violation of 18 U.S.C. § 2250(a) (count 9), and one count of knowingly possessing a document as evidence of authorized stay and employment in the United States knowing such documents were procured by fraud and unlawfully obtained in violation of 18 U.S.C. § 1546(a) (count 10). See id. On June 3, 2020, Regaldo moved to dismiss the superseding indictment and filed an incorporated memorandum of law [D.E. 34]. On June 18, 2020, the United States responded in opposition [D.E. 38]. As explained below, the court denies the motion to dismiss the superseding indictment.
In light of the court's decision, the court dismisses Regaldo's motion to dismiss the original indictment [D.E. 20] as moot.
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I.
Regaldo seeks to dismiss all ten counts of the superseding indictment under Federal Rule of Criminal Procedure 12. See [D.E. 34] 1–9. These counts fall into two groups. First, the counts concerning naturalization and passport fraud (counts 1, 2, 3, 4, 5, 6, 7, 8, and 10), and second, the count concerning failure to update under SORNA (count 9). As for the first group, Regaldo challenges these counts as unconstitutionally vague as applied to him in violation of the Fifth Amendment Due Process Clause. See id. at 1–7. As for the second group, Regaldo challenges the SORNA violation because "the public record does not reflect that he knowingly failed to update his sex offender registration." Id. at 1, 7–9 (emphasis omitted).
Rule 12 provides the defendant with the ability to file a a motion alleging "a defect in the indictment or information." Fed. R. Crim. P. 12(b)(3)(B). "A district court may dismiss an indictment under Rule 12 where there is an infirmity of law in the prosecution; a court may not dismiss an indictment, however, on a determination of facts that should have been developed at trial." United States v. Engle, 676 F.3d 405, 415 (4th Cir. 2012) (quotation omitted). Moreover, "[a] court cannot grant the motion to dismiss under Rule 12 if a defendant's legal contentions are inextricably bound up with the facts of the case." United States v. Pinson, No. 2:19-CR-00250, 2020 WL 2601659, at *2 (S.D.W. Va. May 21, 2020) (unpublished) (quotation omitted); United States v. Shabbir, 64 F. Supp. 2d 479, 481 (D. Md. 1999).
The counts concerning naturalization and passport fraud are not constitutionally defective for vagueness. Notably, Regaldo does not challenge as vague the statutes underlying these counts. Rather, Regaldo challenges the vagueness of the factual predicate of each count. Specifically, Regaldo challenges as vague the question from his application for naturalization at the heart of this prosecution: "Have you ever committed a crime for offense for which you were not arrested?" [D.E. 34-1] 1; see [D.E. 34-2] 1 (same). The jury, not this court, must determine whether Regaldo knowingly lied when answering this question. See Pinson, 2020 WL 2601659, at *2 ; Shabbir, 64 F. Supp. 2d at 481. At trial, Regaldo can make his arguments concerning, inter alia, the lack of scienter, the Alford plea, and the veracity of the sexual misconduct allegations at trial. See [D.E. 34] 3–7. A Rule 12 motion, however, is not the appropriate vehicle for challenging the naturalization application questions that form the factual predicate for charges concerning naturalization and passport fraud. As for the statutes themselves, the statutes meet the constitutional standards for due process. Cf. Skilling v. United States, 561 U.S. 358, 402–03, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010) ("To satisfy due process, a penal statute must define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement" (quotation and alteration omitted)); Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). Accordingly, the court declines to dismiss the counts concerning naturalization and passport fraud.
As for the SORNA count, Regaldo makes numerous factual arguments concerning whether he knowingly failed to update his sex offender registration. See [D.E. 34] 8–9 ("It is a matter of public record that [Regaldo] properly registered as a sex offender and has never been violated by the Sheriff of Sampson County [sic] charged with maintaining the sex offender registry."). Thus, Regaldo's arguments "concern [ ] not the sufficiency of the indictment allegations, but rather, the sufficiency of the record." United States v. Thomas, 367 F.3d 194, 197 (4th Cir. 2004). The jury will consider the sufficiency of the record. Accordingly, the court declines to dismiss the SORNA count as factually defective.
II.
In sum, the court DENIES Regaldo's motion to dismiss the superseding indictment [D.E. 34], and DISMISSES Regaldo's motion to dismiss the original indictment [D.E. 20] as moot.
SO ORDERED. This 1st day of July 2020.