USA v. Voice

Decision Date05 October 2010
Docket NumberNo. 09-3260.,09-3260.
Citation622 F.3d 870
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Harold VOICE, Defendant-Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

622 F.3d 870

UNITED STATES of America, Plaintiff-Appellee,
Harold VOICE, Defendant-Appellant.

No. 09-3260.

United States Court of Appeals,Eighth Circuit.

Submitted: June 15, 2010.
Filed: Sept. 1, 2010.

Corrected: Oct. 5, 2010.

622 F.3d 871
622 F.3d 872

Edward Albright, AFPD, argued, Pierre, SD, for appellant.

Jay P. Miller, AUSA, argued, Pierre, SD, for appellee.

Before LOKEN, ARNOLD and GRUENDER, Circuit Judges.

LOKEN, Circuit Judge.

A jury convicted Harold Voice of violating 18 U.S.C. § 2250(a), part of the Sex Offender Registration and Notification Act of 2006 (SORNA), by failing to update his South Dakota sex offender registration. The district court 1 sentenced him to forty-six months in prison. Voice appeals his conviction, challenging the sufficiency of the evidence, the denial of his pre-trial motions to suppress and to dismiss the indictment, and other district court rulings. We affirm.

I. Sufficiency of the Evidence and Related Issues

In 1998, Voice was convicted of abusive sexual contact with a minor in Indian country. He was released in November 2005 and placed on supervised release in Rapid City, South Dakota, where he registered as a sex offender as required by South

622 F.3d 873

Dakota law. See S.D. Codified Laws § 22-24B-1 et seq. Voice's offense was a “sex offense” under SORNA, first enacted in 2006, meaning that he is a “sex offender” who must “register, and keep the registration current, in each jurisdiction where the offender resides.” 42 U.S.C. §§ 16911(1) and (5)(A)(iii), 16913(a). Failing to update a registration as required by SORNA is a violation of 18 U.S.C. § 2250(a) punishable by up to ten years imprisonment.

In April 2008, Voice was placed on supervised release at Glory House, a halfway house in Sioux Falls, South Dakota. United States Probation Officer Maureen Janssen informed Voice that he must register as a sex offender under federal law. He signed a form entitled “Notice and Acknowledgment of Duty to Register as a Sex Offender” informing him of his obligation to update his federal registration every three months and within three days of changing residence. He also completed a South Dakota sex offender registration form, which satisfied his initial SORNA registration obligation. See 42 U.S.C. §§ 16911(10)(A), 16913(a). He later completed a South Dakota registration update in July 2008.

On July 31, Voice assaulted another Glory House resident. Glory House terminated Voice's participation in its program. On August 1, a Glory House counselor notified Janssen of the incident, and she met with Voice to discuss it. Though neither Janssen nor the counselor informed Voice he was terminated from the Glory House program, he absconded from the halfway house that night. This was a supervised release violation, and a federal warrant issued for his arrest.

After leaving Glory House, Voice relocated to Fort Thompson, South Dakota, within the Crow Creek Sioux Indian Reservation. Scott Shields, Fort Thompson's Chief of Police, saw Voice walking a quarter mile from an abandoned tribal comfort station on October 2 and arrested him on the outstanding warrant. Voice told police his residence was Glory House in Sioux Falls. Chief Shields is responsible for registering sex offenders in the Fort Thompson area. After learning that Voice was on supervised release for a federal sex offense, and knowing he had not registered with the Fort Thompson police, Shields began investigating whether Voice had violated SORNA by failing to register in Fort Thompson.

On October 3, Chief Shields interviewed Priscilla St. John, who said that Voice regularly visited the trailer she shared with Ronnie Wounded Knee, eating dinner three times a week and using the shower once a week. After handing Shields a leather jacket Voice had left in the trailer, St. John took Shields to the abandoned comfort station across the street from Wounded Knee's trailer. She pointed out a cement slab outside the building where she said Voice had been sleeping and told Shields that Voice was keeping his possessions inside the abandoned building. Shields left briefly to interview Voice's cousin, Karen Voice, and then returned to the comfort station. He seized a camouflage jacket lying on the cement slab. Inside the refuse-filled station, Shields found two duffel bags, one marked “Darla V.,” the other marked “Traversie.” He looked inside the bag marked “Darla V.” and found an envelope from the Interior Department addressed to Voice at Karen Voice's post office box address. Shields put the letter back in the “Darla V.” bag and seized both bags without further inspection.

SORNA requires a registered sex offender to appear in person “not later than 3 business days after each change of name, residence, employment, or student status” to inform an involved jurisdiction of all

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changes needed to update his registration. 42 U.S.C. § 16913(a) & (c); see also S.D. Codified Laws §§ 22-24B-7 & -12. From August 1 to October 2, 2008, when he was arrested, Voice did not update his sex-offender registration. The indictment charged that Voice “did knowingly fail to register and update a registration, in violation of 18 U.S.C. § 2250(a).” The government's theory was that Voice was under an obligation to update his registration because he changed his residence from Glory House to one or more locations in the Fort Thompson area.

At trial, Roger Head testified that Voice lived for approximately ten days in Head's home after arriving in the Fort Thompson area. Karen Voice testified that Voice visited her Fort Thompson home approximately six times and spent one night there. During one visit, she gave Voice a change of clothes and a duffel bag marked “Darla V.” Karen also agreed to let Voice use her post office box address to receive mail and delivered mail to Voice at Wounded Knee's trailer, including a letter from the United States Department of the Interior Trust Program Management Center. Priscilla St. John's testimony was consistent with the above summary of what she told Chief Shields when he interviewed her on October 3, 2008.

The jury convicted Voice of violating 18 U.S.C. § 2250(a) during the time between August 5, 2008 and October 2, 2008. On appeal, Voice argues the evidence was insufficient in two respects. “We review the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the government, resolving evidentiary conflicts in the government's favor, and drawing all reasonable inferences in favor of the jury's verdict.” United States v. Stymiest, 581 F.3d 759, 764 (8th Cir.2009), cert. denied, --- U.S. ----, 130 S.Ct. 2364, 176 L.Ed.2d 573 (2010).

A. Change of Residence. (a) Voice argues the evidence was insufficient to prove a SORNA violation because it showed only that he left Glory House and traveled within South Dakota from August to October 2008, visiting friends and family, not a change of residence. We disagree. In setting forth the elements of a § 2250(a) offense, the jury instructions explained that the government must prove, beyond a reasonable doubt, that Harold Voice is a sex offender who must “register, and keep his registration current, in each jurisdiction where the offender resides,” and that, to update a registration, he must appear in person to inform the pertinent jurisdiction not later than three business days after a change of residence. Consistent with the statute, the instructions defined “resides” as meaning “the location of [an] individual's home or other place where the individual habitually lives.” See 42 U.S.C. § 16911(13). Without objection, the instructions did not define “habitually lives.” Thus, the issue as framed by these instructions is whether, during the time in question, Voice changed the place where he “habitually lived” requiring him to update his registration.

The evidence viewed in the light most favorable to the jury verdict showed that Voice absconded from Glory House on August 1, triggering an arrest warrant for violating conditions of his supervised release, and then lived in various places in the Fort Thompson area until his arrest on October 2. He spent ten days living at Roger Head's home-a conventional dwelling with an address. He then lived for some period of time at the comfort station. We need not decide whether some travelers are so transient that a jury could not reasonably find a change of residence during extended travels. Here, there was sufficient evidence for a reasonable jury to find that Voice failed to register a change

622 F.3d 875

of residence when he “habitually lived” in one or more locations in the Fort Thompson area between August 5 and October 2, 2008. We reject the suggestion that a savvy sex offender can move to a different city and avoid having to update his SORNA registration by sleeping in a different shelter or other location every night. 2 As the Attorney General's SORNA Guidelines explained:

Sex offenders who lack fixed abodes are nevertheless required to register in the jurisdictions in which they reside.... Such sex offenders cannot provide [a] residence address ... because they have no definite “address” at which they live. Nevertheless, some more or less specific description should normally be obtainable concerning the place or places where such a sex offender habitually lives-e.g., information about a certain part of a city that is the sex offender's habitual locale, a park or spot on the street (or a number of such places) where the sex offender stations himself during the day or sleeps at night [etc.].

National Guidelines for Sex Offender Registration and Notification, 73 Fed.Reg. 38,030, 38,055 (July 2, 2008).

(b) Voice further argues that the prosecutor was guilty of misconduct during closing when he said, “What's the definition of ‘habitually’? Under the law it's three days.” Voice objected and the district court properly instructed the jury to “rely on the jury instructions that I gave you for what the law means.” The...

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