December 6, 2016.
from the United States District Court for the Eastern
District of Wisconsin. Nos. 16-CR-40, 16-CR-43 Charles N.
Clevert, Jr., J.P. Stadtmueller, Judges.
WOOD, Chief Judge, and ROVNER and Sykes, Circuit Judges.
Nichols v. United States, 136 S.Ct. 1113 (2016), the
Supreme Court held that a sex offender was not required under
the Sex Offender Registration and Notification Act (SORNA),
18 U.S.C. § 2250, to update his registration in the
state where he had been residing, after he left his home and
moved to a new place. In Nichols, the new place was
outside the United States, in the Philippines. The two cases
we have consolidated for disposition on appeal present the
more conventional scenario of a person who moves from one
state in the United States to another-in Lena Rae
Haslage's case, from Wisconsin to Washington State, and
in Taungra Nicole Toney's case, from Wisconsin to
Minnesota. In both cases, the district courts dismissed the
indictments for improper venue. The government has appealed.
We conclude, however, that the district courts properly
applied Nichols and that their judgments must be
more need be said about the underlying facts of the two
cases. Haslage had been living in Wisconsin, where she was
registered as a sex offender based on a 2006 conviction for
two offenses. After her initial registration, she updated her
file at least eight times in Wisconsin. She was released on
parole in February 2015. Not long thereafter, in May, she cut
off her electronic monitoring bracelet and took a train to
Spokane, Washington. She did not register as required by
SORNA and state law in Washington.
story is similar. She was convicted in 1999 in Minnesota for
prostitution-related offenses. These required her to register
under SORNA as a sex offender. By 2015, she was living in
Wisconsin, where she was registered. In February of that
year, however, she left Wisconsin and traveled to Minnesota,
where she took up residence. In violation of SORNA, she
failed to register in Minnesota.
March 2016, a federal grand jury in the Eastern District of
Wisconsin indicted both women in separate cases, each of
which contained one count of failure to register as a sex
offender in violation of SORNA. Each moved to dismiss on the
ground that Nichols established that the government
could not establish venue in Wisconsin, because no offense or
part of an offense was committed in Wisconsin. Both district
courts granted the motion and dismissed for improper venue,
and these appeals on behalf of the government followed.
begin with some basics. The Sixth Amendment to the U.S.
Constitution guarantees a defendant the right to trial by
"an impartial jury of the state and district wherein the
crime shall have been committed." Reflecting this
constitutional command, the Federal Rules of Criminal
Procedure also state that "the government must prosecute
an offense in a district where the offense was
committed." Fed. R. Crim. P. 18. This does not mean that
there is one and only one district in which a particular
crime may be prosecuted. As we have recognized, "[m]any
offenses touch more than one district. For these, Congress
may, consistently with the Constitution, authorize venue in
any district where conduct that is part of the offense
occurred." United States v. Orona-Ibarra, 831
F.3d 867, 872 (7th Cir. 2016). The question before us is thus
whether any conduct that is part of the offense defined by 18
U.S.C. § 2250 occurred in the Eastern District of
Wisconsin. If yes, then the district courts erred; if no,
then their judgments were correct.
states that "[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." 42 U.S.C. §
16913(a). In order to keep her registration current, the
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 pursuant to subsection (a)
of this section and inform that jurisdiction of all changes
in the information required for that offender in the sex
Id. § 16913(c). The notified jurisdiction then
has the responsibility to provide that information to all
other jurisdictions in which the offender is required to
to register as required is a crime, punishable by a fine or a
prison term of up to 10 years. 18 U.S.C. § 2250(a). The
statute covers (1) any sex offender required to register
under SORNA, who (2) travels in interstate or foreign
commerce, and who (3) knowingly fails to register or update a
registration as required by SORNA. In an earlier SORNA case,
the Supreme Court held that liability under section 2250
cannot be predicated on pre-SORNA travel. Can v. United
States, 560 U.S. 438 (2010). The key to our case,
however, is the third element. To understand that better, we
take a closer look at Nichols.
question before the Court in Nichols was
"whether federal law required Nichols to update his
registration in Kansas to reflect his departure from the
State." 136 S.Ct. at 1115. The Court observed that an
earlier statute had imposed the duty to report a change of
address to the responsible agency in the state from which the
offender was leaving, but that SORNA repealed that part of
the law and replaced it with the language we quoted earlier.
The Court thus reformulated its question to be "whether
the State a sex offender leaves- that is, the State where he
formerly resided-qualifies as an 'involved'
jurisdiction under § 16913." Id. at 1116.
Court stressed the fact that 42 U.S.C. § 16913(a), which
identifies "involved" jurisdictions, uses the
present tense: "resides, " "is an employee,
" and "is a student." It pointed out that a
person (such as Nichols) who moves from Leavenworth, Kansas,
to Manila, in the Philippines, no longer "resides"
(present tense) in Kansas. It follows, the Court said,
"that once Nichols moved to Manila, he was no longer
required to appear in person in Kansas to update his
registration, for Kansas was no longer a 'jurisdiction
involved pursuant to subsection (c)' of §
16913." Id. at 1117. The Court found further
support for its conclusion in the fact that an offender who
moves to a new place has three business days after each
change of residence to register in the new place.
"SORNA's plain test ... therefore did not require
Nichols to update his registration in Kansas once he no
longer resided there." Id. at 1118. In short,
Nichols committed no offense in Kansas, because his ...