Should Sex Offenders Be Relieved of Their Registration Obligations Upon Relocation to a Foreign County? Preview of Nichols v. United States, by Samantha Millar

On March 1, the Supreme Court will hear oral argument in the case of Nichols v. United States on whether a sex offender’s registration obligations under the federal Sex Offender Registration and Notification Act, 42 U.S.C. § 16911–16929 (2006) (SORNA), continue after he has relocated outside of a United States jurisdiction. The case is at the Court on a writ of certiorari to the Tenth Circuit, where the court of appeals concluded that an offender who abandons his residence to relocate to a foreign jurisdiction must fulfill his registration obligations in the state where he formerly resided. The outcome of this case will resolve a split between the Eighth and Tenth Circuits, which differ as to the clarity of SORNA and the extent to which its registration requirements, as set forth in 42 U.S.C. § 16913, reach those who relocate to non-U.S. jurisdictions.

As background, § 16913(a) of SORNA provides:

A 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. For initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence.

A registrant is required to appear in person in at least one “jurisdiction involved” (that is, where an offender resides, is an employee, or is a student) no more than three days after each change of residence, name, employment, or student status to notify law enforcement of that change. 42 U.S.C. § 16913(c). “Jurisdiction” is defined under SORNA as: a State, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Northern Mariana Islands, the United States Virgin Islands, and a federally recognized Indian tribe. 42 U.S.C. §16911(1). SORNA excludes foreign countries from its definition of “jurisdiction.”

The Tenth Circuit’s Analysis

In 2003, petitioner Lester Ray Nichols was convicted of traveling interstate with the intent to engage in illicit sexual conduct (sex with a minor), in violation of 18 U.S.C. § 2423(b). Following his release from prison and until 2012, Nichols regularly complied with his registration obligations under both Kansas law and SORNA. In 2012, Nichols boarded a plane from Kansas City to Manila, Philippines without updating his sex offender registry or providing any notification of his relocation. Nichols was subsequently arrested in the Philippines, deported back to the United States, and indicted under 18 U.S.C. § 2250(a) for knowingly failing to fulfill his registration obligations under SORNA.

Nichols moved the United States District Court for the District of Kansas (United States v. Nichols, No. 13–10106, 2013 WL 6000016 (D. Kan. Nov. 12, 2013)) to dismiss the charge, advancing two supporting arguments. First, he argued that because he relocated to a foreign country, the plain language of SORNA—which includes no provision requiring sex offenders who leave a United States jurisdiction to keep their registration current—compelled the conclusion that he no longer fell within the statute’s ambit and was therefore not required to update his registration thereunder. Nichols’s alternative argument was that § 16913(d) of SORNA, which gives the Attorney General the authority to determine whether SORNA should be applied retroactively to pre-Act offenders (of which Nichols is one), creates an unconstitutional delegation of legislative power. Nichols advanced the same arguments on appeal to the Tenth Circuit (United States v. Nichols, 775 F.3d 1225 (10th Cir. 2014)), which rejected both arguments and affirmed the lower court’s denial of his motion to dismiss.

The Tenth Circuit rejected Nichols’s latter argument on the ground that Congress had clearly satisfied the “intelligible principle” standard articulated by the Supreme Court in J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 392 (1928), for determining violations of the principle of nondelegation.

On the issue of interpreting SORNA’s jurisdictional reach, the circuit court concluded that absent en banc reconsideration (a petition for which was subsequently requested and denied by all but four circuit judges), it was bound by stare decisis to follow its earlier decision in United States v. Murphy, 664 F.3d 798 (10th Cir. 2011). The facts of Murphy are nearly identical to those in Nichols and defendant Murphy advanced the same argument regarding SORNA’s reach. The Murphy court, noting that defendant’s appeal turned on the construction of § 16913, emphasized the distinction between SORNA’s language of “jurisdiction where an offender resides” (§ 16913(a))—meaning the state where an individual has a home or habitually lives—and “residence” (§ 16913(c))—that is, a specific place of dwelling. This distinction was important to the Murphy court’s conclusion that the two terms gave rise to different obligations under SORNA: “the offender’s jurisdiction is where he must keep his registration current, while the offender’s residence is a specific piece of registry information, a change of which sparks a reporting duty.” Murphy, 664 F.3d at 801. Thus, when an offender abandons his dwelling place, he necessarily changes his residence under SORNA, which triggers an obligation to update his registration within three days even if he hasn’t yet established another fixed dwelling. Accepting these propositions, the Nichols court held that when Nichols abandoned his home in Kansas—the “jurisdiction involved” for statutory purposes and where his reporting obligations arose—to fly to the Philippines, he was at that time statutorily required to register this change under SORNA.

The Question Presented

On petition for certiorari, Nichols presented these two problems as ripe for review and requested the Supreme Court to resolve both. The Court granted certiorari, but limited the scope of the inquiry to the interpretation of SORNA’s registration requirement, 42 U.S.C. § 16913. Both parties’ briefs articulate the question presented as whether a sex offender can be prosecuted under 18 U.S.C. § 2250 for failing to register or update his sex offender registration following relocation outside of a United States jurisdiction, and agree that the answer turns on the interpretation of § 16913 of SORNA.

Shortly after Murphy and before Nichols was decided, the Eighth Circuit issued its opinion in United States v. Lunsford, 725 F.3d 859 (8th Cir. 2013), declining to follow the Tenth Circuit’s holding in Murphy. The court held that the defendant had no obligation under SORNA to update his registration in Missouri (the state in which he lived before he relocated) after he moved to the Philippines because he no longer resided in Missouri and, thus, Missouri was no longer a “jurisdiction involved” for the purposes of § 16913(a). The Eighth Circuit interpreted SORNA to require that an offender need only update his registration in the jurisdiction in which he “resides,” not a jurisdiction in which he formerly “resided.”

Petitioner’s Argument

These nuanced and complicated statutory interpretations will be important at oral argument, and ultimately essential to the outcome of the case. Petitioner Nichols insists, as he did below, that the plain language of SORNA does not require registration after relocation to a foreign country. Specifically, Petitioner’s brief urges that Congress’s use of present tense verbs in the statutory provision in question (i.e. registration is required where an offender “resides,” “is a student,” and “is an employee”) to define the jurisdiction where an offender must register and keep his registration current is dispositive of the issue: “this consistent present-tense construction reinforces the conclusion that sex offenders need not register or keep registrations current in jurisdictions in which they formerly resided, worked, or attended school.” (Petr.’s Br. 24.)

Petitioner also argues that the “in-person” requirement of § 16913(c) (which states that an offender must report a change of residence in person within three days of moving) confirms that Congress intended an offender to register only where he resides, not where he resided. The logic advanced here is that an individual must be “present” in a jurisdiction in order to register, and that it would simply not make sense for Congress to require registration “in person” in a jurisdiction where an offender doesn’t reside. Thus, requiring Nichols to register in person in Kansas after he relocated to the Philippines would not only be contrary to a plain reading of the statute, it would also be next to impossible. Petitioner also reminds the Court that a foreign country is not considered a jurisdiction under SORNA, and “consequently, once an offender no longer ‘resides,’ ‘is an employee,’ or ‘is a student’ in the United States, there are no longer any jurisdictions ‘involved’ in which to keep the registration current.” (Petr.’s Br. 40.)

The Government’s Argument

The Government, much like the Tenth Circuit in Murphy, argues that when an offender abandons a registered address, he effectively changes his residence under SORNA and is thus required to register such a change regardless of whether or not he has identified or established a new address. The Government insists that petitioner’s argument that a “change,” for registration purposes, does not occur until an offender has identified a new residence is inconsistent with a more holistic reading of the statute’s requirement that notice be provided for each change of residence, employment, or student status (§ 16913(c)). Put another way, the Government notes that “a sex offender who graduates or withdraws from college has unquestionably experienced a change in his student status, even if he has no plans for further study [and therefore must register the change] . . . . The same is true of a sex offender who quits his residence and has yet to establish a new one.” (Resp.’s Br. 16.)

To that end, respondents do not insist that a foreign country falls within SORNA’s jurisdiction or that an offender must appear within three days “in person” to provide notice of a new residence (either within or outside a United States jurisdiction). Rather, recognizing that there may be instances where an offender is unable to establish and register a new residence, the Government urges that he may still satisfy his duty to keep his registration “current” under SORNA by giving notice of abandonment of or intent to abandon his residence in the jurisdiction he is or will be leaving. “Reporting the imminent change of residence on the day before, or the morning of, the move would unquestionably satisfy petitioner’s concern about a sex offender’s being able to report only in the jurisdiction where he presently ‘resides.’” (Resp.’s Br. 24.) Further, Kansas did not cease to be a “jurisdiction involved” “in the precise moment when petitioner turned out the lights, locked the door, and dropped off his apartment keys.” (Resp.’s Br. 25.) Once an offender is registered in a jurisdiction, that jurisdiction remains “involved” by virtue of the offender’s continuous appearance on its registry as a current resident.

The Court’s Precedents

Important to the Court’s decision will be its opinion in Carr v. United States, 560 U.S. 438 (2010), where the Court held that criminal liability under 18 U.S.C. § 2250 (at issue here) does not attach to sex offenders whose interstate travel occurred before SORNA was enacted. Section 2250 prescribes a fine or imprisonment for (1) an offender required to register under SORNA who (2) travels in interstate and foreign commerce and (3) knowingly fails to register or update his registration. 18 U.S.C. § 2250(a)(1)–(3). The Court and the parties in Carr agreed that the provision should be read sequentially such that the statute’s elements must be “satisfied in sequence” for the defendant to be in violation thereof. Carr, 650 U.S. at 446.

The majority opinion, written by Justice Sotomayor, undertook an extensive examination of the statutory provision, relying heavily on Congress’s language and verb usage to reach its conclusion:

That § 2250 sets forth the travel requirement in the present tense (‘travels’) rather than in the past or present perfect (‘traveled’ or ‘has traveled’) reinforces the conclusion that preenactment travel falls outside the statute’s compass. Consistent with normal usage, we have frequently looked to Congress’ choice of verb tense to ascertain a statute’s temporal reach. Congress’ use of a verb tense is significant in construing statutes.

Carr, 560 U.S. at 448 (citations omitted). This decision provided a solid basis upon which the Eighth Circuit made its decision in Lunsford, discussed above, and is embraced by petitioner in the present case. Nichols insists that the principles underlying the interpretation of § 2250 by the majority in Carr are also applicable to § 16913 of SORNA, particularly since the Court has “previously described a statute’s undeviating use of the present tense as a striking indic[ator] of its prospective orientation.” Id. at 449 (citations omitted) (alteration in the original). Applied to § 16913 then, it would be “implausible to read § 16913(a) to define the relevant jurisdictions to include those jurisdictions where the sex offender once resided.” (Petr.’s Br. 24).

The Government contends that its construction of § 16913 is consistent with the Court’s holding in Carr in that petitioner was in violation of SORNA’s registration requirements and § 2250 when he failed to update his registration immediately after he abandoned his residence and before he traveled in interstate and foreign commerce (that is, outside of Kansas), and then traveled in foreign commerce without providing any notification thereof. This, according to the Government, matches the Carr court’s sequential approach to § 2250 and therefore attaches liability to Nichols. Regarding the Carr court’s treatment of verb tense, respondents merely distinguish the two cases, emphasizing that the issue here turns on “where petitioner was residing when he abandoned his Kansas residence in November 2012, years after SORNA was enacted and petitioner was made subject to its requirements,” rather than an inquiry into potential ex post facto violations as was the case in Carr. (Resp.’s Br. 28.)

In addition to statutory construction, legislative history and intent, as well as sex offender public policy, will also likely factor into the Court’s analysis. It might strike some that a natural implication of SORNA would be that whenever a sex offender plans to leave the country or a U.S. jurisdiction, he should notify the state he’s leaving of such plans before he does so. The public policy and legislative motivations behind SORNA and state sex offender laws across the country for travel within the United States promote the idea that states should be aware of when sex offenders leave and enter their respective territories. This notice allows law enforcement and communities to adjust their behaviour accordingly, to account for the sex offenders in their midst. While this argument is perhaps weaker when an offender leaves the United States altogether, some might argue that such a requirement is necessary to prevent sex offenders from evading their obligations under SORNA altogether (in that they could arguably just disappear from SORNA’s radar, even while still living in the U.S.) and essential to maintaining an effective national registry, one of Congress’s front-running motivations behind enacting SORNA.

Regardless of where one falls on the public policy side of the debate, it is undoubted that the Court’s decision will resolve the circuit split that seemingly runs contrary to Congress’s goal of establishing a uniform and comprehensive national sex offender, and currently results in the disparate application of SORNA—that is, offenders who abandon their residence in Missouri and move to a foreign country need not register such a change (per Lunsford), while offenders who do so in Kansas (the next state over) must register (per Nichols).

Given the statutory ambiguity, it wouldn’t be a stretch to see the Court find in favour of Nichols in this instance—particularly when the failure to register carries with it criminal sanctions (perhaps implicating the rule of lenity, as argued by petitioner)—and send the issue back to Congress for clarification. Intentionally or not, Congress was silent on this issue when drafting SORNA and the Court might be reluctant to assign intent either way, particularly when its interpretation is so greatly contested. The decision will likely depend on how the Justices construe the registration provision of SORNA, and whether they undertake a strict textual analysis (as the late Justice Scalia would undoubtedly have done) or whether legislative history and public policy will dominate the inquiry.

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