United States v. Seward

Decision Date28 July 2020
Docket NumberNo. 18-1519,18-1519
Citation967 F.3d 57
Parties UNITED STATES of America, Appellee, v. Anthony SEWARD, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Inga L. Parsons, with whom Law Offices of Inga L. Parsons was on brief, for appellant.

Kelly Begg Lawrence, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

Before Barron, Stahl, and Lipez, Circuit Judges.

STAHL, Circuit Judge.

This appeal arises out of an order denying a motion to dismiss filed by Defendant-Appellant Anthony Seward, a state sex offender who moved from Massachusetts to New York and failed to update his registration as required by the Sex Offender Registration and Notification Act ("SORNA"), 18 U.S.C. § 2250(a). Seward was indicted in Massachusetts for his failure to register. He moved to dismiss the indictment on the ground that venue in Massachusetts was improper, relying principally on the Supreme Court's decision in Nichols v. United States, ––– U.S. ––––, 136 S. Ct. 1113, 194 L.Ed.2d 324 (2016). Seward argued that under Nichols, he had committed no crime in Massachusetts because his failure to register occurred entirely in New York.

The district court denied Seward's motion to dismiss, concluding that Nichols did not address the question of venue. The court further found interstate travel to be a necessary element of a § 2250 offense and, as such, determined that venue was proper in Massachusetts, where Seward's interstate travel began. After careful review, we affirm. We thus join the all but one of our sister circuits who have reached this issue to conclude that venue for a § 2250 prosecution is proper in the departure jurisdiction.

I. Facts and Procedural Background
A. SORNA

SORNA was enacted by Congress in part to "make more uniform what had remained ‘a patchwork of federal and ... state registration systems,’ with ‘loopholes and deficiencies’ that had resulted in ... sex offenders becoming ‘missing’ or ‘lost.’ "

Nichols, 136 S. Ct. at 1119 (quoting United States v. Kebodeaux, 570 U.S. 387, 399, 133 S.Ct. 2496, 186 L.Ed.2d 540 (2013) ). As such, SORNA requires that every "sex offender shall 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." 34 U.S.C. § 20913(a). It further requires that an offender "shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved ... and inform that jurisdiction" of the change. Id. § 20913(c).

Section 2250(a) of SORNA makes failing to register a crime punishable by a fine or a prison term of up to 10 years, or both. 18 U.S.C. § 2250(a). Under the statute, whoever "(1) is required to register under [SORNA]; (2)(A) is a sex offender as defined for the purposes of [SORNA] by reason of a conviction under Federal law ...; or (B) travels in interstate or foreign commerce ...; and (3) knowingly fails to register or update a registration as required by [SORNA]" is subject to penalties. Id.

B. Seward's Failure to Register

The facts are not in dispute. Seward was convicted as a sex offender in 1996 under Massachusetts state law and was therefore subject to the registration requirements set forth by SORNA. See 34 U.S.C. §§ 20911 - 20932. Seward initially registered as a sex offender in Massachusetts. In 2016, Seward moved from Massachusetts to New York, where he established residence. He subsequently failed to update his registration as required by SORNA.

On January 19, 2017, a District of Massachusetts magistrate judge issued an arrest warrant as to Seward for failing to register as a sex offender in violation of § 2250(a). Seward was arrested several days later. On March 9, 2017, a federal grand jury returned an indictment charging that Seward, "being an individual required to register under [SORNA], traveled in interstate commerce and knowingly failed to register and update his registration as required by [ § 2250 ]."

On July 20, 2017, Seward moved to dismiss the indictment on the ground that Massachusetts was an improper venue and the district court thus lacked jurisdiction over his prosecution. Seward contended that under Nichols, venue in Massachusetts was improper because no violation of SORNA had occurred there. In doing so, he relied significantly on the Seventh Circuit's 2-1 decision in United States v. Haslage, 853 F.3d 331 (7th Cir. 2017), which interpreted Nichols to preclude prosecution for § 2250 violations in an offender's departure jurisdiction.

At an August 10, 2017 hearing, the district court denied Seward's motion. The district court determined that Nichols did not "answer[ ] the venue question" and explicitly "disagree[d] with" the Haslage majority's analysis, concurring instead with the dissent's conclusion there that under the "preexisting Supreme Court precedent," specifically, Carr v. United States, 560 U.S. 438, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010), interstate travel is a "necessary element" of a § 2250 charge. Accordingly, the district court analyzed venue under 18 U.S.C. § 3237(a), which states that for offenses begun in one district and completed in another, venue is proper "in any district in which such offense was begun, continued, or completed." As such, the court concluded venue was proper in Massachusetts, where Seward's travel began.

On August 20, 2017, Seward unsuccessfully moved for reconsideration of the district court's ruling. On May 21, 2018, Seward entered a conditional guilty plea as to the § 2250(a) charge, reserving his right to appeal the denial of his motion to dismiss for lack of venue. On May 31, 2018, Seward was sentenced to a term of time served, which had been approximately sixteen months, and five years of supervised release. This timely appeal as to the question of venue followed.

II. Analysis
A. Standard of Review

"When a defendant in a criminal case appeals from a venue determination, we review the trial court's legal conclusions de novo and its factual findings for clear error." United States v. Salinas, 373 F.3d 161, 164 (1st Cir. 2004). Since the sole question before us is one of law -- whether venue in the departure jurisdiction is proper for a § 2250 prosecution -- we review the district court's denial de novo.

B. Venue

As this court has not yet opined on the question before us, we proceed "[a]gainst an unpainted backdrop" with an analysis of foundational venue principles guiding our inquiry. Id.

A criminal defendant must be tried in the state or district in which the offense "shall have been committed." U.S. Const. art. III, § 2, cl. 3 ; see also id. amend. VI (requiring trial "by an impartial jury of the State and district wherein the crime shall have been committed"). Congress "further entrenched" this principle in the Federal Rules of Criminal Procedure, which include "an explicit directive that limits a criminal prosecution to ‘a district [where] the offense was committed.’ " Salinas, 373 F.3d at 164 (quoting Fed. R. Crim. P. 18).

Where a criminal statute "contains a specific venue provision, that provision must be honored" so long as it comports with Constitutional requirements. Id. (citing Travis v. United States, 364 U.S. 631, 635, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961) ; Armour Packing Co. v. United States, 209 U.S. 56, 73-75, 28 S.Ct. 428, 52 L.Ed. 681 (1908) ). Where, as here, the statute contains no such provision, the "locus delicti [of the offense] must be determined from the nature of the crime alleged and the location of the act or acts constituting it." United States v. Anderson, 328 U.S. 699, 703, 66 S.Ct. 1213, 90 L.Ed. 1529 (1946) ; see United States v. Rodriguez-Moreno, 526 U.S. 275, 279, 119 S.Ct. 1239, 143 L.Ed.2d 388 (1999). In making such a determination, a court must "identify the conduct constituting the offense (the nature of the crime) and then discern the location of the commission of the criminal acts." Rodriguez-Moreno, 526 U.S. at 279, 119 S.Ct. 1239. For offenses that span multiple jurisdictions, or "where a crime consists of distinct parts which have different localities[,] the whole may be tried where any part can be proved to have been done." Id. at 281, 119 S.Ct. 1239 (quoting United States v. Lombardo, 241 U.S. 73, 77, 36 S.Ct. 508, 60 L.Ed. 897 (1916) ); see also Salinas, 373 F.3d at 164. And under the federal statute governing venue for "[o]ffenses begun in one district and completed in another," such continuing offenses "may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed." 18 U.S.C. § 3237(a).

In determining the nature of the crime for purposes of venue, the "focus of this test is on the conduct comprising the offense." Salinas, 373 F.3d at 164. The Supreme Court has rejected in such an analysis dispositive reliance on "the so-called ‘verb test’ -- the notion that action verbs reflected in the text of the statute should be ‘the sole consideration in identifying the conduct that constitutes an offense.’ "1 Id. (quoting Rodriguez-Moreno, 526 U.S. at 280, 119 S.Ct. 1239 ). In doing so, however, the Court also explicitly recognized that "the ‘verb test’ certainly has value as an interpretative tool." Rodriguez-Moreno, 526 U.S. at 280, 119 S.Ct. 1239. To this end, it made clear that its concern with an overreliance on action verbs was not that this would produce an overinclusive result, but rather, that requiring the presence of an action verb to define the nature of the crime could sweep out conduct not enumerated by such action language but nonetheless essential to the offense. See id. ("[The verb test] cannot be applied rigidly, to the exclusion of other relevant statutory language. The test unduly limits the inquiry into the nature of the offense and thereby creates a danger that certain conduct prohibited by statute will be missed."). Thus, while we may not focus exclusively on §...

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