U.S. v. Crowder

• Decision Date: 06 May 2011
• Docket Number: No. 10–30125.,10–30125.
• Citation: 11 Cal. Daily Op. Serv. 11140,2011 Daily Journal D.A.R. 13355,656 F.3d 870
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Kevin Leroy CROWDER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

656 F.3d 870

11 Cal. Daily Op. Serv. 11,140

2011 Daily Journal D.A.R. 13,355

UNITED STATES of America, Plaintiff–Appellee,

v.Kevin Leroy CROWDER, Defendant–Appellant.

No. 10–30125.

United States Court of Appeals, Ninth Circuit.

Submitted May 6, 2011.*Filed Aug. 30, 2011.

Michael Donahoe, Federal Defenders of Montana, Helena, MT, for defendant-appellant, Kevin Leroy Crowder.Marcia Hurd, Assistant United States Attorney, Billings, MT, for plaintiff-appellee, United States.Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding. D.C. No. 2:09–cr–00025–DWM–1.Before: A. WALLACE TASHIMA, CARLOS T. BEA, and SANDRA S. IKUTA, Circuit Judges.IKUTA, Circuit Judge:

The Sex Offender Registration and Notification Act (SORNA) imposes criminal penalties on any person who “knowingly fails to register or update a registration as required by [SORNA].” 18 U.S.C. § 2250(a). This appeal requires us to decide whether the government must prove that a defendant knew that SORNA imposed a registration requirement in order to convict a defendant of a violation of this statute. We join our sister circuits in holding that the government need not prove this knowledge element and affirm the district court.

I

In June 2007, Kevin Leroy Crowder was convicted of child molestation in Washington state court and sentenced to two years confinement, followed by three to four years community custody (i.e., probation). On June 22, 2007, he received and signed a certified copy of his judgment and sentence form, which informed him that as a sex offender, he was “required to register with the sheriff of the county of the state of Washington” where he resides, and that if he moved “out of Washington State,” he had to “send written notice within 10 days of moving to the county sheriff with whom [he] last registered in Washington State,” and then “register a new address, fingerprints, and photograph with the new state within 10 days.” Upon his release from prison, on May 28, 2008, Crowder completed a Washington state sexual offender registration form, registering at the King County Sheriff's Office. The registration form stated that if Crowder “move[d] out of Washington State,” he had to “send signed written notice within ten days of moving to the new state or foreign country, to the county sheriff with whom [he] last registered.” And if he “knowingly fail[ed] to comply with these registration requirements, [he would be] guilty of a ... felony.” One week later, he filed a change of address form.

In March or April 2009, Crowder left Washington for Montana without advising either state to that effect. After a short stay with a woman he met at a bus stop, Crowder set up a campsite in a national forest. He was arrested on September 29, 2009, at a convenience store in Bozeman. In October 2009, a federal grand jury indicted Crowder for failure to register as a sex offender, in violation of 18 U.S.C. § 2250(a). The indictment stated: “KEVIN LEROY CROWDER, a sex offender by reason of a conviction under Washington law for Child Molestation in the Second Degree, a Felony, and a person required to register under [SORNA], traveled in interstate commerce to Montana, and did knowingly fail to register and/or update a registration, in violation of 18 U.S.C. § 2250(a).” He entered a not guilty plea and opted for a bench trial. The district court rejected Crowder's argument that he did not receive “actual notice” of the federal sex registration requirements, relying on the Eighth Circuit's decision in United States v. Baccam, 562 F.3d 1197 (8th Cir.), cert. denied, ––– U.S. ––––, 130 S.Ct. 432, 175 L.Ed.2d 296 (2009), and found him guilty. Crowder timely appeals. We have jurisdiction under 28 U.S.C. § 1291.

II

A

Before SORNA was enacted, the Wetterling Act, 42 U.S.C. §§ 14071–73, repealed by SORNA, Pub. L. 109–248 (2006), required states to establish a sex offender registration program that met federal requirements or lose 10 percent of federal funding for law enforcement programs. Id. § 14071(g). “[B]y 2000, all fifty states and the District of Columbia had both sex offender registration systems and community notification programs.” United States v. Begay, 622 F.3d 1187, 1190 (9th Cir.2010).

On July 27, 2006, Congress enacted the Adam Walsh Child Protection and Safety Act, 42 U.S.C. § 16901 et seq., which includes SORNA. “SORNA was enacted to succeed and enhance the registration requirements of the Wetterling Act....” Begay, 622 F.3d at 1190. To “protect the public from sex offenders ... and in response to the vicious attacks by violent predators” against seventeen named victims of sex crimes, SORNA “establishe[d] a comprehensive national system for the registration of [sex] offenders.” 42 U.S.C. § 16901. A “sex offender” is an individual “who was convicted of a sex offense,” id. § 16911(1), that is, “a criminal offense that has an element involving a sexual act or sexual contact with another,” id. § 16911(5)(A)(i). A sex offender must “register, and keep the registration current, in each jurisdiction where the offender resides,” id. § 16913(a), before completion of his prison term, or, if he was not confined, no more than three business days after sentencing, id. § 16913(b). “[R]egister” is undefined, but SORNA defines a “sex offender registry” as a “registry of sex offenders, and a notification program, maintained by a jurisdiction.” 42 U.S.C. § 16911(9). In addition, an offender must, “after each change of name, residence, employment, or student status,” appear in person in one of the jurisdictions in which he is required to register and notify it of the changed information. Id. § 16913(c). In other words, SORNA requires a person convicted of a crime that “has an element involving a sexual act or sexual contact with another,” id. § 16911(5)(A)(i), to register in the registry of sex offenders maintained by the jurisdiction in which the offender resides.

Separate from the requirements imposed on sex offenders, SORNA also imposes certain obligations on the government. First, § 16917(a) directs an “appropriate official” (the term is undefined) to,

shortly before release of the sex offender from custody, or, if the sex offender is not in custody, immediately after the sentencing of the sex offender, ...

(1) inform the sex offender of the duties of a sex offender under this subchapter and explain those duties;

(2) require the sex offender to read and sign a form stating that the duty to register has been explained and that the sex offender understands the registration requirement; and

(3) ensure that the sex offender is registered.

Id. § 16917(a). Section 16917(b) provides that the Attorney General “shall prescribe rules for the notification of sex offenders who cannot be registered in accordance with” the procedure described in § 16917(a). The Attorney General has not yet promulgated such rules. In addition, Section 16913 gives the Attorney General “the authority to specify the applicability of [these] requirements ... to sex offenders convicted before the enactment of this chapter or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b).” § 16913(d).¹

Finally, SORNA contains various criminal provisions. Relevant here, 18 U.S.C. § 2250 provides that anyone “required to register under [SORNA]” who was either convicted of a federal sex offense or who “travels in interstate or foreign commerce,” and “knowingly fails to register or update a registration as required by [SORNA],” shall be fined or imprisoned or both.² 18 U.S.C. § 2250(a).

B

Crowder does not dispute that he is a “sex offender” who traveled in interstate commerce from Washington to Montana and failed to register in Montana or update his registration in Washington, despite being required to do so by his judgment of conviction. Nevertheless, Crowder argues that he cannot be convicted under § 2250 because the government failed to plead and prove beyond a reasonable doubt that he knew registration was required by SORNA. In other words, he urges us to read the language of § 2250(a)(3) (that the defendant “knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act”) as requiring the government to plead and prove that the defendant knew that he had failed to register and also knew that such registration was required by SORNA.

To address this argument, we must determine whether the word “knowingly” applies only to “fails to register or update a registration,” or also applies to the phrase “as required by [SORNA].” As a general rule, the Supreme Court reads “knowingly” in a criminal statute so as to avoid criminalizing apparently innocent conduct, unless there are indicia of congressional intent to the contrary. See, e.g., Flores–Figueroa v. United States, 556 U.S. 646, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009); United States v. X–Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994); Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985). Flores–Figueroa, for example, involved an identity theft statute imposing enhanced penalties on an offender who “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” 129 S.Ct. at 1888 (quoting 18 U.S.C. § 1028A(a)(1)) (internal quotation marks omitted) (emphasis omitted). The Court rejected the government's interpretation that “knowingly” applied only to the surrounding verbs, because that would require the offender to “know that he is transferring, possessing, or using that something without lawful authority,” but not to know that the “something” was a “means of identification,” which was the element that constituted the criminal offense. Id. at 1889.

Similarly, in Liparota, the Court considered a...