United States v. Lusby

• Citation: 972 F.3d 1032
• Decision Date: 25 August 2020
• Docket Number: No. 18-10368,18-10368
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Cole LUSBY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

972 F.3d 1032

UNITED STATES of America, Plaintiff-Appellant,

v.Cole LUSBY, Defendant-Appellee.

No. 18-10368

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 9, 2020 San Francisco, California

Filed August 25, 2020

Elham Roohani (argued), Assistant United States Attorney; Elizabeth O. White, Appellate Chief; Nicholas A. Trutanich, United States Attorney; United States Attorney's Office, Las Vegas, Nevada; for Plaintiff-Appellant.

Kathleen Bliss (argued), Kathleen Bliss Law PLLC, Henderson, Nevada, for Defendant-Appellee.

Before: J. Clifford Wallace and Michelle T. Friedland, Circuit Judges, and Robert S. Lasnik,^* District Judge.

WALLACE, Circuit Judge:

The Government appeals from an order dismissing Cole Lusby's indictment, which charged him with failing to register as a sex offender in violation of 18 U.S.C. § 2250(a). The key issues in this appeal are whether the Double Jeopardy Clause of the Fifth Amendment precludes our jurisdiction over this appeal and, if we have jurisdiction, whether the district court erred in holding that the Government was required to prove that Lusby's interstate travel was not legally compelled. We conclude that we have jurisdiction and that the district judge erred as a matter of law in holding that Section 2250 requires that a defendant's interstate travel not be legally compelled. Accordingly, we reverse and remand.

I.

The events of this case¹ started in 2009, when Cole Lusby was convicted of crimes that required him to register as a convicted sex offender.² Seven years later, Lusby pled guilty to failing to register as a sex offender under the federal Sex Offender Registration and Notification Act (SORNA), 34 U.S.C. § 20901, et seq . Upon his conviction, the district court sentenced Lusby to 24 months of incarceration followed by eight years of supervision. Because there was no federal prison in Nevada, the federal Bureau of Prisons (BOP) transported Lusby to a facility in Arizona to serve his sentence.

The terms of Lusby's supervised release originally required Lusby to "report, in person, to the probation office in the district to which [he was] released within 72 hours of discharge from custody." Because he would be homeless upon release, Lusby requested that, upon his release, he serve some of his supervised release at a residential re-entry center in Las Vegas, Nevada (the Halfway House). Accommodating Lusby's request, the Probation Office recommended that the district court modify Lusby's conditions of supervised release to include a 90-day placement at the Halfway House. Based on this recommendation, the district court modified the conditions of Lusby's supervision such that he "must reside in a residential reentry center for a term of 90 days." The Probation Office subsequently approved a prerelease plan under which Lusby "[would] be accepted for supervision in the District of Nevada."

On January 26, 2018, Lusby was physically released from BOP custody in Arizona, transported to a bus station in Arizona, provided a bus ticket to Las Vegas, Nevada, and instructed to "take a taxi, or make [his] own arrangements, to get to" the Halfway House. The instructions also reminded him to "report for supervision within 72 hours after [his] release."

As of February 1, 2018, however, Lusby had neither arrived at the Halfway House nor reported to the Nevada Probation Office. Accordingly, the district court issued a warrant for Lusby's arrest for violating the terms of his supervised release. On April 24, 2018, Lusby was apprehended in Las Vegas, where he had apparently been living using other identities. For violating the terms of his supervision, Lusby was sentenced to 24 months of incarceration followed by a life-term of supervision.

Lusby was also indicted for failing to register as a sex offender after entering Nevada in violation of 18 U.S.C. § 2250(a). Lusby waived his right to a trial by jury, so the court set a date for a non-jury trial. Lusby filed a pro se motion to dismiss the indictment, arguing that he had previously registered as a sex offender in Nevada, and thus any failure to update his address was a "purely intrastate" issue.³ During a series of hearings held to address both the motion to dismiss and trial scheduling, the district court questioned the voluntariness of Lusby's interstate travel and expressed concerns about the Government "manufacturing" jurisdiction by compelling Lusby's travel across state lines.

After ordering supplemental briefing, the district court initially denied Lusby's motion to dismiss. The court explained that it had concluded that the interstate travel component of SORNA includes a "voluntariness element." But the court concluded there was "a question of fact" as to whether Lusby's travel was voluntary, and that "one of the purposes of the trial [would be] to flesh that factual issue out." In response to the court's ruling, the Government filed an emergency motion for clarification, asking the court to explain, among other things, how it would define "voluntariness," because the Government believed that the answer to this "question of law" would affect the Government's trial burden.

In response to the Government's motion, the district court explained that in its view, "to satisfy SORNA's interstate travel requirement, the defendant's travel must not be legally or physically compelled." The district court observed that it did "not know all the facts underlying Lusby's travel to Arizona and back to Nevada," but that "[i]f Lusby was involuntarily removed from Nevada and then legally compelled to return to Nevada, he did not voluntarily travel in interstate commerce and should not be federally prosecuted."⁴

The Government conceded it could not prove its case under the district court's interpretation of Section 2250 and filed a motion asking the district court to grant Lusby's motion to dismiss the indictment in order to seek appellate review of the district court's interpretation of Section 2250. Based on this concession, the district court agreed to dismiss the indictment.

II.

We begin by addressing Lusby's challenge to our jurisdiction over this appeal. Lusby argues that we lack jurisdiction because the Double Jeopardy Clause of the United States Constitution prohibits "re-trying" him. Although Lusby is correct that our jurisdiction does not extend to appeals from dismissals of indictments where that Clause "prohibits further prosecution," 18 U.S.C. § 3731, it does not do so here.

The Double Jeopardy Clause provides that "[n]o person shall ... be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. "This guarantee recognizes the vast power of the sovereign, the ordeal of a criminal trial, and the injustice our criminal justice system would invite if prosecutors could treat trials as dress rehearsals until they secure the convictions they seek." Currier v. Virginia , ––– U.S. ––––, 138 S. Ct. 2144, 2149, 201 L.Ed.2d 650 (2018). However, "the Clause was not written or originally understood to pose ‘an insuperable obstacle to the administration of justice’ in cases where ‘there is no semblance of [these] type[s] of oppressive practices.’ " Id. , quoting Wade v. Hunter , 336 U.S. 684, 688–89, 69 S.Ct. 834, 93 L.Ed. 974 (1949) (alterations in original).

In striking this balance, the Supreme Court has consistently held that the Double Jeopardy Clause has "no application" unless jeopardy has first "attach[ed]." See, e.g , Serfass v. United States , 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). As the Supreme Court explained:

Both the history of the Double Jeopardy Clause and its terms demonstrate that it does not come into play until a proceeding begins before a trier ‘having jurisdiction to try the question of the guilt or innocence of the accused.’ Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy.

Id. at 391–92, 95 S.Ct. 1055, quoting Kepner v. United States , 195 U.S. 100, 133, 24 S.Ct. 797, 49 L.Ed. 114 (1904). In other words, jeopardy "does not attach" unless a defendant is "put to trial before the trier of facts," id. at 388–89, 95 S.Ct. 1055, which subjects the defendant to the "risk of a determination of guilt," id. at 391, 95 S.Ct. 1055.

Lusby argues that jeopardy attached here because, in dismissing his indictment, the district court effectively conducted a non-jury trial. However, we previously rejected this argument under similar circumstances in United States v. Olson , 751 F.2d 1126 (9th Cir. 1985).

In Olson , a former air traffic controller was indicted for making false statements on government forms for the purpose of securing temporary disability benefits. Id. at 1127. The district court dismissed the indictment based on its legal view that an element of the crime was missing: a person seeking temporary disability benefits had no duty to provide the information requested. Id. We held that the dismissal of the indictment on that ground was erroneous, and, as is important here, that jeopardy had not attached because "[j]eopardy does not attach without the consideration of some or all of the factual elements in the case, and the risk of a finding of guilt based on the resolution of a fact issue." Id. at 1129 (internal citations omitted). We then concluded that jeopardy did not attach because the trial court made a "purely legal determination" without "receiving and evaluating evidence and applying it to the question of guilt or innocence." Id. In reaching that conclusion, we observed that, even though the hearing took place on the day scheduled for trial, the government only "described what evidence it would present" at trial, "and counsel's statements did not constitute hearing evidence for the purpose of deciding the issue of guilt or innocence, which is the essence of the attachment of jeopardy." Id. at 1128. Finally, we explained that risk of being found guilty is what...