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October 12, 2014
  United States v. Lewis - Tenth Circuit
Case Name: United States v. Lewis - Tenth Circuit

Headline: Tenth Circuit holds that sex offenders who relocate and fail to register under SORNA in their new state of residence can be prosecuted in the state they departed from.

Areas of Law: Criminal Law, Criminal Procedure

Issues Presented:

1. Can a sex offender who moves to a new state but fails to register under the Sex Offender Registration and Notification Act ("SORNA") be prosecuted under 18 U.S.C. § 2250 in the state from which he departed?

Brief Summary:

Defendant was convicted of statutory rape in Missouri and required to register as a sex offender. He registered in his residential state of Kansas, but afterwards relocated and failed to register in Missouri and Georgia. He was charged and convicted in Kansas for violations of SORNA and sentenced to two years in prison.

He appealed his conviction, arguing that Kansas was an improper venue because his failure to register occurred in Missouri and Georgia. The 10th Circuit affirmed the defendant's conviction, holding that venue for prosecuting 18 U.S.C. § 2250 violations is appropriate in multiple jurisdictions which include the departure jurisdiction.

Extended Summary:

In 1996, the defendant pleaded guilty to statutory rape in Missouri. He was required by the federal Sex Offender Registration and Notification Act ("SORNA") to register as a sex offender in his state of residence. He registered in 2011 in Kansas, but then abandoned his residence and left the state. Law enforcement officers in Kansas were unable to locate him in connection with an unrelated warrant and turned the matter over to U.S. Marshals, who tracked the defendant as far as Missouri but did not find him. The defendant was ultimately arrested in July 2012 in Atlanta, GA, where he had not registered as a sex offender. He was indicted in the District of Kansas for one count of failing to register under 18 U.S.C. § 2250(a).

The defendant first filed a motion to dismiss for improper venue because the alleged violations had not occurred in Kansas, arguing that he had registered appropriately in Kansas and only failed to register after he left the state. The district court denied the motion. After trial, he filed a motion for judgment of acquittal, again raising the improper venue issue and challenging the sufficiency of the evidence of venue.

The 10th Circuit reviewed the district court's legal finding of sufficient evidence to support venue using a de novo standard of review. The court described its role as deciding whether, when "viewing the evidence in the light most favorable to the Government and making all reasonable inferences and credibility choices in favor of the finder of fact, the Government proved by preponderance of direct or circumstantial evidence that the crimes charged occurred within the district." United States v. Rinke, 778 F.2d 581, 584 (10th Cir. 1985).

The court began its analysis by describing the Sex Offender Registration and Notification Act, 42 U.S.C. § 16901 et seq. The first relevant provision in SORNA is the civil registration requirement, 42 U.S.C. § 16913, which requires a convicted sex offender to register and keep that registration current "in each jurisdiction where the offender resides". The court interpreted SORNA's § 16913(c) reporting obligation to require that an offender update his registration within three days of abandoning his residence. In the defendant's case, this required him to update his registration with Missouri after leaving Kansas and again with Georgia after settling there. The second relevant provision, 18 U.S.C. § 2250, is the criminal enforcement mechanism that prescribes fines or imprisonment for knowingly failing to comply with the registration provision of SORNA. To prove that the defendant violated 18 U.S.C. § 2250, the government was required to show that Lewis had an obligation to register under SORNA, that he travelled in interstate commerce, and that he knowingly failed to register or update his registration during the time period specified in the indictment.

The defendant did not dispute that the government properly established a § 2250 violation, but challenged its choice of venue. He argued that Kansas was an inappropriate venue because his reporting obligation only arose when he was in Missouri and Georgia, and so his SORNA violations only occurred in those two states. The court described the venue requirements of the United States Constitution and the Federal Rules of Criminal Procedure as requiring that prosecution take place in the district where the offense occurred unless the criminal statute or other procedure requires a different venue. 18 U.S.C. § 2250 does not have a specific venue provision, so the court was required to ascertain "the nature of the crime alleged and the location of the act or acts constituting it." United States v. Medina-Ramos, 834 F.2d 874, 876 (10th Cir. 1987).

The court considered its prior holding in United States v. Murphy, 664 F.3d 798, 803 (10th Cir. 2011). In Murphy, the defendant relocated from Utah to Belize. The government prosecuted that defendant in the departure state of Utah and the 10th Circuit affirmed the conviction. The court in Murphy did not directly address the question of whether a § 2250 offense occurs in the departure district. It held that, when traveling abroad, a sex offender is required to update his registration in his departure district because of the plain language of § 16913. The requirement to update his registration "triggered" when the defendant left his permanent residence in Utah and, because SORNA does not apply extraterritorially, his departure state was the only appropriate state with which to update his registration. The court reasoned that this necessarily permitted venue to lie in the departure state.

Murphy also held that the departure district remains a "jurisdiction involved" for purposes of § 16913 even after the sex offender has left the state. The reporting obligation to that state does not end simply because the defendant leaves it. It noted that this view is shared by the National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 38030-01 (July 2, 2008), which requires that a sex offender's updated registration in a new district be provided to the departure district. This allows for an "interconnected web of state registries."

The defendant argued that Murphy was wrongly decided, citing the 8th Circuit's decision in United States v. Lunsford, 725 F.3d 859 (8th Cir. 2013). Lunsford held that "an offender who leaves a domestic jurisdiction for a foreign jurisdiction" need not "necessarily . . . update his registration in the domestic jurisdiction where he formerly resided" depending on the circumstances. The 10th Circuit disagreed with the defendant, finding Lunsford unpersuasive because that case did not contemplate the issue of venue existing in the departure district when the defendant fails to register in any subsequent domestic jurisdiction. Lunsford was critical of the argument that a sex offender is required by federal law to notify the departure jurisdiction of their relocation. The 10th Circuit noted that neither Murphy nor the present case imposed such a requirement; they only require that a sex offender update his registration after relocating, but provide that an offender can be prosecuted in the departure jurisdiction if they fail to do so.

The 10th Circuit held that Murphy was the controlling case because it established that a violation of § 2250 occurs in the departure district. Murphy relied on cases from other circuits that also found venue to be proper. Those cases relied on 18 U.S.C. § 3237, the Federal Venue Statute that allows offenses begun in one district and completed in another to be "inquired of and prosecuted in any district in which such offense was begun, continued, or completed." 18 U.S.C. § 3237(a). The 10th Circuit previously held that a § 2250 violation is a continuing offense. In United States v. Hinckley, 550 F.3d 926, 936 (10th Cir. 2008), the court held that "[a]n interpretation of the sex offender registration requirement that defines it in any way other than as a continuing offense would result in absurdity." The court held that a SORNA violation extends from the moment a sex offender abandons his residence in the departure jurisdiction until the moment he either registers or is arrested, and that this creates multiple venues in which the sex offender can be prosecuted under § 2250.

The court noted that its decision was consistent with those of other circuits that have also considered the matter of venue in a § 2250 prosecution. It also noted that other district courts within the 10th Circuit have reached the same conclusion. The court held that Murphy and § 3237 both provide that venue for a § 2250 violation is appropriate in the departure district.

The defendant's next argument challenged Murphy's applicability to the case. The defendant alleged that he left Kansas before the dates specified in the government's indictment. He argued that, because Murphy involved a defendant who was in Utah in the temporal time frame alleged by the government, Murphy is inapplicable when a defendant's abandonment of his residence does not fall within the indictment's prescribed timeframe. The court disagreed with this contention.

The defendant then argued that the limited factual record allowed for an inference that he had not violated the registration requirements of SORNA prior to October 1, 2011 because he had not abandoned his Kansas residence. The court disagreed, noting that the government proved by a preponderance of the evidence that the defendant had abandoned his Kansas residence.

The defendant's final argument was that the government's theory of the case relied on the premise that a sex offender has an affirmative duty to notify the state from which he departs that he is moving to another state. His challenge relies on the 9th Circuit's decision in United States v. DeJarnette, 741 F.3d 971, 984 (9th Cir. 2013), in which the defendant was convicted of sex crimes before SORNA's enactment. The defendant in DeJarnette ignored existing state and federal registration laws and moved from California to Georgia in March of 2008. SORNA became retroactively applicable to pre-Act offenders in August 2008, but the 9th Circuit held that pre-Act offenders were not required to register in the jurisdiction of their conviction if it differed from their residence when SORNA's retroactivity came into effect. The 10th Circuit disagreed with the defendant's interpretation of this case, noting that it merely established the reach of SORNA's retroactivity and was inapplicable to the defendant's case. The court held that venue for a § 2250 violation can lie in the departure district and affirmed the defendant's conviction.

To read the full opinion, please visit:

Panel: Tymkovich, Baldock, Bacharach

Date of Issued Opinion: September 30, 2014

Docket Number: No. 13-3173

Decided: Affirmed the district court's decision to deny Lewis's motion for a judgment of acquittal based on insufficient evidence of proper venue.


John K. Henderson, Jr., Assistant Federal Public Defender, Federal Public
Defender's Office, Wichita, Kansas, for Appellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United
States Attorney, with him on the brief), United States Attorney's Office, Topeka,
Kansas, for Appellee.

Author: Tymkovich

Case Alert Author: Ian M. Alden

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 10/12/2014 03:10 PM     10th Circuit  

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