United States v. Lewis
| Decision Date | 30 September 2014 |
| Docket Number | No. 13–3173.,13–3173. |
| Citation | 768 F.3d 1086 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Marcus Sabation LEWIS, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John K. Henderson, Jr., Assistant Federal Public Defender, Federal Public Defender's Office, Wichita, KS, 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, KS, for Appellee.
Before TYMKOVICH, BALDOCK, and BACHARACH, Circuit Judges.
This venue case requires us to decide whether a convicted sex offender who violates 18 U.S.C. § 2250(a) when he (1) abandons his residence in one state, (2) moves from that state to another, and (3) knowingly fails to update his sex offender registration can be prosecuted in the state from which he departed. In other words, is venue proper in the departure district for the federal crime of knowingly failing to register as a sex offender after traveling in interstate commerce?
We find that it is, and, exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district court's decision. Under the relevant statutory provisions and case law, a sex offender may be prosecuted in either the departure district where the offense began or in other districts where the offender was required to update his registration.
In 1996, Marcus Lewis pleaded guilty to statutory rape in Missouri and was sentenced to five years of probation. He later served prison time on account of a probation violation. As a convicted sex offender, Lewis was required by federal law to register his status in his state of residence under the federal Sex Offender Registration and Notification Act (SORNA) and its statutory predecessors. Lewis last registered in Kansas in May 2011, and he has not voluntarily registered in any other state since that time.
Congress enacted SORNA in 2006 to require convicted sex offenders to register where they live, work, or attend school. Any changes in status must be reported to authorities at any new place of residency. In this way, a national database is created and kept current, providing up-to-date information about the location and movement of covered sex offenders.
In August 2011, a sheriff's deputy for Lyon County, Kansas, tried to locate Lewis on a warrant for a probation violation unconnected to his sex offense. Accessing the sex offender registry, the deputy went to Lewis's last known address, but learned that Lewis no longer lived there. Unable to locate Lewis, the deputy turned the matter over to the U.S. Marshals Service. The marshals, relying on information available in their database about Lewis's family members, visited Kansas City, Missouri, in hopes of finding Lewis. The marshals could not physically locate Lewis at the Kansas City address, but did identify a car associated with him.
Almost a year later, on July 25, 2012, Lewis was apprehended in Atlanta, Georgia, on the Lyon County warrant. An Atlanta-based inspector for the marshals interviewed Lewis in the Fulton County jail, where Lewis admitted that he left Kansas because he worried his probation officer would report him for violations. During the interview, he also explained that he had first traveled to Missouri to visit relatives and later took a Greyhound bus to Georgia. When he arrived in Georgia, he stayed in a homeless shelter for six months, but had since become employed and made plans to marry. Finally, Lewis confessed he knew of his obligation to register in Georgia upon changing his residence, but that he resisted doing so for fear of being arrested on his outstanding Kansas warrants.
A federal grand jury in the District of Kansas indicted Lewis for one count of failing to register between August 2011 and July 2012 under 18 U.S.C. § 2250(a). Lewis filed a motion to dismiss for improper venue, claiming that the alleged violation did not occur in Kansas. The district court denied this motion.
After the government declined to agree to a conditional plea, the case proceeded to a stipulated bench trial, and the district court found Lewis guilty of violating § 2250(a). Following the trial, Lewis filed a motion for judgment of acquittal, which raised the improper venue issue and claimed that the evidence of venue was insufficient for conviction. The district court denied this motion and later sentenced Lewis to 24 months in prison.
Lewis contends venue was improper in Kansas. Along these lines, he argues that SORNA requires him only to register either in Missouri or Georgia because he abandoned his home in Kansas, traveled through Missouri, and established residency in Georgia. According to Lewis, any SORNA violation occurred—and thus could only be prosecuted—in states other than Kansas.
Although venue is ordinarily a fact question, we review de novo a district court's legal finding of sufficient evidence to support a venue determination.
United States v. Kelly, 535 F.3d 1229, 1232 (10th Cir.2008). We assess whether venue is proper in a particular district by determining whether, “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). “Our review is ‘quite deferential.’ ” Kelly, 535 F.3d at 1233 (quoting United States v. Evans, 318 F.3d 1011, 1021 (10th Cir.2003) ).
The Sex Offender Registration and Notification Act, 42 U.S.C. § 16901 et seq., was established as part of a broad legislative scheme intended to protect the public from the dangers posed by persons convicted of sex crimes. To accomplish this end, SORNA contains both a civil registration provision and a criminal provision. Under the registration provision, SORNA requires that a convicted sex offender “register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.” 42 U.S.C. § 16913(a). Subsection (c) of § 16913 creates a reporting obligation pursuant to which an offender must appear in person in “at least 1 jurisdiction involved” to update his registration any time he changes, among other things, his residence. Id. § 16913(c).1
As an enforcement mechanism for § 16913's registration requirements, § 2250 is SORNA's criminal constituent and it subjects any person required to register under § 16913 and who “is a sex offender ... by reason of a conviction under Federal law” or “travels in interstate or foreign commerce” to fines or imprisonment in the event that he “knowingly fails to register or update a registration as required by [SORNA].” 18 U.S.C. § 2250(a) ; see also United States v. Yelloweagle, 643 F.3d 1275, 1278–79 (10th Cir.2011).
The elements of a § 2250 violation are sequential, Carr v. United States, 560 U.S. 438, 456, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010), and each must be proven beyond a reasonable doubt. In Lewis's case, the government must establish that Lewis (1) was required to register under SORNA; (2) traveled in interstate commerce; and (3) knowingly failed to register or update his registration during the time period specified in the indictment. Lewis admits that the government can meet all three of the statute's explicit elements, but contests whether the government has sufficient evidence to establish proper venue in Kansas.
To prove venue—which is a necessary, if often subtle, element of every criminal statute—the government must establish where the failure to register occurred by a preponderance of the evidence. And because § 2250 does not have a specific venue provision, venue is established using traditional statutory and common law tools 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) (quoting United States v. Anderson, 328 U.S. 699, 703, 66 S.Ct. 1213, 90 L.Ed. 1529 (1946) ); see also United States v. Cryar, 232 F.3d 1318, 1321 (10th Cir.2000).
Although it is contested infrequently in criminal cases, establishing proper venue is a matter of constitutional significance.2 See Kelly, 535 F.3d at 1233. Paraphrasing the Constitution, the Federal Rules of Criminal Procedure require that prosecution must ensue in the district where the offense occurred, absent a statute or other procedure allowing for another venue. See Fed.R.Crim.P. 18. Lewis argues that his violation of § 2250 did not occur in Kansas because he was not required to register until he left the state and took up a new residence elsewhere. In other words, Lewis contends venue was improper in Kansas because he only consummated a SORNA violation when he moved to Missouri (and then to Georgia) and failed to update his registration in those states, which may have been proper venues. For several reasons, we disagree.
The reporting obligation under § 16913(c) arises as soon as the offender abandons his former residence, even if he has yet to establish a new, permanent residence. United States v. Murphy, 664 F.3d 798, 801–02 (10th Cir.2011) ; see also United States v. Voice, 622 F.3d 870, 874–75 (8th Cir.2010). Thus, although SORNA grants a three-day grace period, the offender is required to report the change in status to at least one “jurisdiction involved” upon leaving his former residence. In many cases, the offender can satisfy his obligation by updating his registration in the new SORNA jurisdiction where he settles, as long as the registration takes place within three days of the abandonment of the prior residence. If it does not, then the offender “must register twice—within three days of abandoning his former residence, and within three days of establishing the new one.”Murp...
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