Filed: Jul. 28, 2020
Latest Update: Jul. 28, 2020
Summary: United States Court of Appeals For the First Circuit No. 18-1519 UNITED STATES OF AMERICA, Appellee, v. ANTHONY SEWARD, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Denise J. Casper, U.S. District Judge] Before Barron, Stahl, and Lipez, Circuit Judges. 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
Summary: United States Court of Appeals For the First Circuit No. 18-1519 UNITED STATES OF AMERICA, Appellee, v. ANTHONY SEWARD, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Denise J. Casper, U.S. District Judge] Before Barron, Stahl, and Lipez, Circuit Judges. 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 A..
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United States Court of Appeals
For the First Circuit
No. 18-1519
UNITED STATES OF AMERICA,
Appellee,
v.
ANTHONY SEWARD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Barron, Stahl, and Lipez,
Circuit Judges.
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.
July 28, 2020
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, 136 S.
Ct. 1113 (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
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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 (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
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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
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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 (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.
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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 (1961); Armour Packing Co. v. United
States,
209 U.S. 56, 73-75 (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
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location of the act or acts constituting it." United States v.
Anderson, 328 U.S. 699, 703 (1946); see United States v. Rodriguez-
Moreno,
526 U.S. 275, 279 (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. 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 (quoting United States v. Lombardo,
241 U.S. 73, 77 (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.
1
Courts deploying the "verb test" analyze "'the key verbs in
the statute defining the criminal offense' to find the scope of
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(quoting Rodriguez-Moreno, 526 U.S. at 280). 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. 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 § 2250's action verbs, we are permitted to
consider them as part of the "wider-angled lens" through which we
"should peer at the conduct elements comprising the crime."
Salinas, 373 F.3d at 164 (citing
Rodriguez-Moreno, 526 U.S. at 280
& n.4).
Grounded by these principles, we now apply them to the
case at hand.
relevant conduct." United States v. Georgacarakos, 988 F.2d 1289,
1293 (1st Cir. 1993) (quoting United States v. Tedesco,
635 F.2d
902, 905 (1st Cir. 1980)).
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C. Venue for Seward's Section 2250 Prosecution
Using this framework, our task today is to determine the
nature of a § 2250 crime -- or, put differently, to conclude where
Seward's offense "began." See United States v. Holcombe, 883 F.3d
12, 16 (2d Cir. 2018). Though we have not yet reached this
question, all but one of our sister circuits to have done so have
held that venue for a § 2250 prosecution of a state sex offender
is proper in the departure jurisdiction because the locus delicti
of the offense encompasses where the offender's travel begins.2
See
id. at 15-16; United States v. Kopp,
778 F.3d 986, 988 (11th
Cir. 2015); United States v. Spivey,
956 F.3d 212, 216-17 (4th
Cir. 2020); United States v. Howell,
552 F.3d 709, 717-18 (8th
Cir. 2009)); United States v. Lewis,
768 F.3d 1086, 1092-94 (10th
Cir. 2014); cf. United States v. Lewallyn,
737 F. App'x 471, 474-
75 (11th Cir. 2018) (per curiam) (holding Nichols does not abrogate
Kopp); but see
Haslage, 853 F.3d at 335-36 (finding venue in the
departure jurisdiction improper in reliance on Nichols).
Like our sister circuits, we are guided in answering
this question by the Supreme Court's decision in Carr, in which
the Court considered whether a defendant could be convicted under
§ 2250 for interstate travel that predated the effective date of
2 We note that Kopp, Lewis, and Howell were decided prior to
the Supreme Court's decision in Nichols. However, as analyzed
infra, because Nichols neither abrogates Carr nor is dispositive
as to the question of venue, we view these decisions as good law.
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SORNA. 560 U.S. at 456-58. In answering this question, the Court
first determined that § 2250(a) contains three distinct elements,
which must be satisfied sequentially: for a state sex offender
like Seward, the government must prove (1) that he was required to
register under SORNA; (2) that he traveled in interstate or foreign
commerce; and (3) that he knowingly failed to register or update
a registration as required by SORNA. See
id. at 445-46. The Court
then analyzed the "interstate travel" element, characterizing it
as "the very conduct at which Congress took aim" and "an aspect of
the harm Congress sought to punish" in enacting § 2250.
Id. at
453-54. As the Court concluded, "[t]aking account of SORNA's
overall structure, we have little reason to doubt that Congress
intended § 2250 to do exactly what it says: to subject to federal
prosecution sex offenders who elude SORNA's registration
requirements by traveling in interstate commerce."
Id. at 456.
Accordingly, pursuant to Carr, "[t]he majority of our sister
circuits that have addressed the issue have held that a SORNA
offense begins . . . in the district that the defendant leaves,
not in the district . . . in which the defendant ultimately fails
to register."
Holcombe, 883 F.3d at 15 (citing
Kopp, 778 F.3d at
988-89;
Lewis, 768 F.3d at 1092-94;
Howell, 552 F.3d at 717-18);
see
Spivey, 956 F.3d at 216-17;
Lewallyn, 737 F. App'x at 474-75.
To circumvent the Court's decision in Carr and the weight
of persuasive authority from other circuits, Seward contends that
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we should instead follow the novel approach taken by the Seventh
Circuit in Haslage, a 2-1 decision that relied principally on the
Court's decision in Nichols v. United States. See 853 F.3d at
335-36. In Nichols, the defendant, a federal sex offender,3 left
his residence in Kansas and moved to the Philippines, where he
failed to register.
See 136 S. Ct. at 1117. Nichols was prosecuted
in Kansas for the failure to register as required by § 2250.
Id.
He moved to dismiss the indictment on the grounds that he was not
required under SORNA to update his registration in Kansas, but did
not contest venue.
Id. The Court held that SORNA did not require
Nichols to update his registration in Kansas once he no longer
resided in the country.
Id.
In Haslage, a divided Seventh Circuit panel applied
Nichols to hold that venue for a § 2250 prosecution is not proper
in the departure jurisdiction. See
853 F.3d 331. As the court
there determined, in light of Nichols, interstate travel is
"neither a distinct crime nor an element of the crime," and
therefore is not "conduct that is part of the offense."4
Id. at
3
For federal sex offenders, interstate travel is not an
element of a § 2250 offense. See 18 U.S.C. § 2250(a)(2)(A) (travel
element does not apply to those convicted of a sex offense "under
Federal law (including the Uniform Code of Military Justice), the
law of the District of Columbia, Indian tribal law, or the law of
any territory or possession of the United States").
4
The dissent determined that Nichols did not abrogate the
Court's conclusion in Carr that interstate travel is a required
element of a § 2250(a) offense for state sex offenders and thus
concluded that "[b]ecause the interstate travel -- an element of
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333, 335. Seward asserts that the Seventh Circuit's ruling in
Haslage demonstrates that Nichols changes the venue analysis for
SORNA prosecutions, and that it is no longer correct to find venue
in the departure jurisdiction. Accordingly, he contends that under
Nichols, a § 2250 violation occurs only after a sex offender
reaches his new residence and fails to timely register. Seward
also argues that Carr does not apply to his case because it did
not address venue and further, that the Court's discussion there
of § 2250's travel element is merely dicta. For the reasons below,
we do not agree.
The first error in Seward's strained reliance on Nichols
is that Nichols involved a federal sex offender, not a state sex
offender like Seward. 136 S. Ct. at 1116-17. Federal offenders,
unlike state offenders, "do[] not need to travel interstate to
commit a SORNA offense."
Holcombe, 883 F.3d at 16; see 18 U.S.C.
§ 2250(a)(2)(A). This distinction is critical: as a result, the
Nichols Court had no occasion to and, indeed, did not, address
§ 2250's interstate travel element, either independently or with
respect to its bearing on the "nature" of a § 2250 violation for
state offenders. Nichols therefore "did not abrogate the holding
in Carr that the element of interstate travel was the 'very conduct
the offense -- began in Wisconsin, venue is proper in district
court in Wisconsin."
Id. at 338 (Sykes, J., dissenting).
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at which Congress took aim.'"5 Spivey, 956 F.3d at 216 (quoting
Carr, 560 U.S. at 454).
Second, Nichols did not address venue, but rather
concerned only whether Kansas was an "involved" jurisdiction under
SORNA such that Nichols was required to update his registration
there once he moved abroad.6 136 S. Ct. at 1116. Therefore, not
only did Nichols not address the interstate travel element at all,
it also did not opine on the relationship between interstate travel
and venue. We thus concur with the all but one of our sister
circuits to have evaluated Nichols in the context of venue to
conclude that it does not bear on our venue analysis. See
Holcombe, 883 F.3d at 15-16;
Lewallyn, 737 F. App'x at 474;
Spivey,
956 F.3d at 216; but see
Haslage, 853 F.3d at 335.
Our dissenting colleague does not contest that Nichols
did not concern venue, pertained only to federal (not state) sex
offenders, and accordingly did not address whether the interstate
travel element of § 2250 is part of the nature of the crime. See
infra Section I. Our colleague also lodges his disagreement with
5 Additionally, Nichols involved travel from Kansas to the
Philippines, which "is not a 'jurisdiction' under SORNA; no foreign
country is." 136 S. Ct. at 1117. Indeed, it "in no way considered
or ruled on the issue of where a trial should be held when a
registered sex offender leaves a district and fails to register in
another district that is an 'involved jurisdiction' for purposes
of SORNA."
Lewallyn, 737 F. App'x at 473.
6 The parties agree that Seward was not required by SORNA to
register in Massachusetts after he moved to New York.
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the rationale of the only circuit to have interpreted Nichols to
find venue improper in the departure jurisdiction. See infra
Section III.C.3. However, the dissent nonetheless suggests that
a reading of Nichols, taken in conjunction with a particular line
of Supreme Court precedents, leads to the conclusion that the true
"nature" of § 2250 entirely reads out interstate travel and is
merely the "failure to do a legally required act." Infra Section
I. This conclusion has several fatal flaws: namely, it misapplies
its cited "failure-to-act" cases, misreads Nichols, and ignores
squarely on-point precedent in Carr.
The failure-to-act cases referenced by the dissent are
distinguishable on the facts. To begin, each of these decisions
concerned a statute without an interstate travel element. See
Anderson, 328 U.S. at 705-06 (criminalizing the refusal of
induction into the armed services in violation of the Selective
Training and Service Act);
Lombardo, 241 U.S. at 74-75
(criminalizing the failure to file a required statement under the
Mann Act);
Travis, 364 U.S. at 636-37 (criminalizing filing false
documentation under the National Labor Relations Act); Johnston v.
United States,
351 U.S. 215, 216 (1956) (criminalizing the refusal
of conscientious objectors to report for civilian employment).
Here, however, as analyzed above, interstate travel is not only an
element of the instant crime (as the dissent so concedes), but
part of "the very conduct at which Congress took aim." Carr, 560
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U.S. at 454. In this way, Carr makes clear that Seward's travel
was not merely "conduct . . . preceding the failure to register,"
as the dissent suggests, but rather conduct of particular concern
to Congress. See id. By contrast, the Court in Anderson and
Johnston ruled out as locus delicti of the crimes at issue
locations in which the defendant had not engaged in any conduct
that satisfied an element of the crime. See
Johnston, 351 U.S. at
220-21 (noting that venue is "determined by the acts of the accused
that violate a statute" and finding venue proper "in the vicinage
of the crime rather than the residence of the accused" (citing
Anderson, 328 U.S. at 705)). Neither case held that when a statute
imposes criminal liability for failing to comply with a duty to
undertake a legally required act, venue necessarily lies
exclusively where the duty must be met. Those cases thus tell us
little about where venue lies when a defendant, like Seward, first
satisfies an element of an offense that involves a failure to
comply with a duty (here, registering as a sex offender) by
engaging in certain conduct in one jurisdiction (here, through
interstate travel), and then ultimately fails to comply with that
duty in another. Here, again, the question before us is whether
Seward's interstate travel was part of the nature of the particular
crime at issue -- a § 2250 offense. For the reasons discussed, we
hold that it is.
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The dissent also misrepresents the Court's holding in
Lombardo. There, a defendant from Washington State harbored an
immigrant woman for the purpose of prostitution and subsequently
failed to file a required statement with the Commissioner General
of Immigration in violation of the Mann Act. 241 U.S. at 73-75.
The Court concluded that the defendant could only be prosecuted
where the Commissioner's office was located -- namely, Washington,
D.C. -- and not in Washington State, where the defendant was
located and could have mailed the required statement
from. 241
U.S. at 77-78. The dissent implies strongly that the Lombardo
Court in reaching its conclusion considered the fact that the
harboring took place in Washington State and rejected such
harboring as part of the relevant offense, even though in the same
breath the dissent concedes that the Court never explicitly
considered the harboring element. See infra Section I n.3. To be
clear, the Lombardo Court nowhere addressed the question of whether
the harboring could render venue proper in Washington State.
Rather, it focused its inquiry squarely on the "filing"
requirement, reasoning that to "file" as written in the statute
meant to deliver to the office, not send through the mails; as
such, "filing" could only take place in Washington, D.C.7
Id. at
7 Indeed, it is in this context that the Court agreed with
the lower court's conclusion that "[t]he gist of the offense [was]
the failure to file" the required statement with the Commissioner
-- not to reject the prospect that the act of harboring could
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76-79. Further, as the dissent too concedes, the question of
whether harboring conferred venue was not before the Lombardo Court
because the government there did not argue that it was. Moreover,
as Lombardo itself explains, "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 77.
Thus, finding Nichols not dispositive as to the venue
question, we return to the question of whether Carr, read in
conjunction with foundational venue jurisprudence, renders venue
for Seward's prosecution proper in Massachusetts. Carr
undoubtedly makes clear that interstate travel is an element of a
§ 2250 violation for state sex offenders. See 560 U.S. at 445-46
(listing interstate travel as one of § 2250's "three elements");
Holcombe, 883 F.3d at 15. We must now decide whether Carr
indicates that the locus delicti for this offense encompasses the
departure jurisdiction and thus grounds venue there. For the
reasons below, we find that it does.
The Court's discussion in Carr of § 2250's travel
element points to the conclusion that the "offense" described in
§ 2250 is not merely a failure to register, but rather, a course
of conduct that begins with interstate travel. There, the Court
constitute part of the relevant offense, but rather to emphasize
that filing, rather than mailing, was the required conduct. Id.
at 76 (internal quotation mark omitted).
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explicitly rejected the argument that the interstate travel
element merely provided a jurisdictional hook, emphasizing that
"[t]he act of travel by a convicted sex offender may serve as a
jurisdictional predicate for § 2250, but it is also . . . the very
conduct at which Congress took aim," 560 U.S. at 454, and "an
aspect of the harm Congress sought to punish,"
id. at 453.
Indeed, the Court's language in Carr makes clear that it
viewed interstate travel as a key step in the process by which sex
offenders slip through cracks in monitoring and enforcement. See
id. at 456 ("[W]e have little reason to doubt that Congress
intended § 2250 to do exactly what it says: to subject to federal
prosecution sex offenders who elude SORNA's registration
requirements by traveling in interstate commerce." (emphasis
added)); see also id. at 452 (state sex offenders have violated
SORNA when they "use the channels of interstate commerce in evading
a State's reach" (emphasis added));
id. at 453 ("Congress in § 2250
exposed to federal criminal liability . . . [persons] who threaten
the efficacy of the statutory scheme by traveling in interstate
commerce." (emphasis added)). This language, emphasizing that
interstate travel is a critical mechanism by which potential § 2250
offenders "evade" or "elude" a state's enforcement reach, begs the
conclusion that Congress was concerned not merely with a failure
to register, but also the interstate travel preceding it.
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The conclusion that both the interstate travel and
failure to register elements are part of the nature of the § 2250
offense is bolstered further by the Carr Court's holding that the
elements of § 2250 must be read sequentially:
A sequential reading [of the elements]. . .
helps to ensure a nexus between a defendant's
interstate travel and his failure to register
as a sex offender. Persons convicted of sex
offenses under state law who fail to register
in their State of conviction would otherwise
be subject to federal prosecution under § 2250
even if they had not left the State after being
convicted -- an illogical result given the
absence of any obvious federal interest in
punishing such state offenders.
Id. at 446. The Court's emphasis on the necessary "nexus" between
a state offender's interstate travel and his ultimate failure to
register reveals its understanding that Congress was concerned not
only with the failure to register, but rather the precise problem
that arises when an offender departs one state and moves to another
-- neither with accurate knowledge of his whereabouts.
We also recognize the bedrock principle that "[a]
court's lodestar in interpreting a statute is to effectuate
congressional intent." City of Providence v. Barr, 954 F.3d 23,
31 (1st Cir. 2020); see also Griffin v. Oceanic Contractors, Inc.,
458 U.S. 564, 570 (1982) (noting the courts' "task is to give
effect to the will of Congress"); Passamaquoddy Tribe v. Maine,
75
F.3d 784, 788 (1st Cir. 1996) ("The chief objective of statutory
interpretation is to give effect to the legislative will."). And
- 19 -
in ascertaining the meaning of a statutory provision, we "must
. . . interpret the relevant words not in a vacuum, but with
reference to the statutory context, 'structure, history, and
purpose.'" Abramski v. United States, 573 U.S. 169, 179 (2014)
(quoting Maracich v. Spears,
570 U.S. 48, 76 (2013)). Examining
the legislative history behind both SORNA generally and § 2250 in
particular provides further support that interstate travel is part
of the nature of a § 2250 offense.
SORNA includes many subsections aimed at "establish[ing]
a comprehensive national system for the registration of [sex]
offenders." Carr, 560 U.S. at 455 (second alteration in original)
(quoting 42 U.S.C. § 16901, which later became 34 U.S.C. § 20901).
These include "maintain[ing] sex-offender registries that compile
an array of information about sex offenders, . . . mak[ing] this
information publicly available online, . . . [and] shar[ing] the
information with other jurisdictions and with the Attorney General
for inclusion in a comprehensive national sex-offender registry."
Id. at 455-56
(citations omitted). Indeed, a reading of the
legislative history reveals that the system set forth in SORNA was
designed to combat what Congress saw as "[t]he most significant
enforcement issue in the sex offender program[,] . . . that over
100,000 sex offenders . . . are 'missing,'" a problem explicitly
linked to interstate travel because "[t]his typically occurs when
the sex offender moves from one State to another." H.R. Rep. No.
- 20 -
109-218, pt. 1, at 26 (2005), quoted in Carr, 560 U.S. at 454.
Indeed, because, as the Court has recognized, "[t]he Act's express
purpose is to protect the public from sex offenders and offenders
against children[,] . . . SORNA covers more sex offenders, and
imposes more onerous registration requirements, than most States
had before." Gundy v. United States,
139 S. Ct. 2116, 2121 (2019)
(plurality opinion) (citation and internal quotation marks
omitted). Thus, as the Supreme Court recognized in Carr, § 2250
is best read as being "embedded in a broader statutory scheme
enacted to address deficiencies in prior law that had enabled sex
offenders to slip through the
cracks." 560 U.S. at 455.
The Court also importantly observed in Carr that
Congress' drafting of § 2250 shows it intended to "handle federal
and state sex offenders differently," and "to have given the States
primary responsibility for supervising and ensuring compliance
among state sex offenders." Id. at 452. This focus emphasizes
the states' particular interest in recordkeeping related to state
offenders like Seward who move in "the channels of interstate
commerce" and subsequently fail to register as required.
Id. The
record makes clear that Massachusetts expended resources to
ascertain Seward's whereabouts, such as deploying law enforcement
when his location became unknown and issuing a warrant for his
arrest. Massachusetts was unaware that Seward had moved across
state lines precisely because of his failure to register in New
- 21 -
York; a proper registration there presumptively would have, under
SORNA, triggered a notification to Massachusetts that Seward had
relocated.8 See 34 U.S.C. § 20923(b), (b)(3) ("[I]mmediately after
a sex offender registers or updates a registration, an appropriate
official in the jurisdiction shall provide the information in the
registry . . . about that offender to . . . each jurisdiction from
or to which a change of residence, employment, or student status
occurs."). New York undoubtedly had an interest in knowing that
Seward resided within it. But Massachusetts too retained an
interest in knowing Seward's whereabouts. Untethering the
interstate travel and failure-to-register elements from one
another divorces Massachusetts entirely from that interest.9
Seward's interstate travel and subsequent failure to
register therefore frustrated both a goal of SORNA generally, to
establish a system to monitor and locate missing sex offenders,
and the goal of § 2250 in particular, "to subject to federal
8 We find puzzling the dissent's emphasis that a public
official, not an offender, is responsible for notifying other
relevant jurisdictions of a change in residence. Presumably, such
an official only becomes aware of an offender's change in residence
once said offender has notified the appropriate authorities as
required by SORNA.
9 We do not suggest, as the dissent contends, that state
interests supersede individual interests in a venue inquiry.
Rather, we reference Massachusetts's interest in knowing Seward's
whereabouts, an interest the dissent concedes as valid, as yet
further support for our conclusion that the nature of Seward's
§ 2250 offense necessarily encompasses interstate travel.
- 22 -
prosecution sex offenders who elude SORNA's registration
requirements by traveling in interstate commerce." Carr, 560 U.S.
at 456. It is thus and again unsurprising that all but one of our
sister circuits to have addressed this question have applied Carr
to conclude that the locus delicti of a § 2250 offense "consists
of both traveling and failing to register."
Kopp, 778 F.3d at 989
(emphasis added); see
Holcombe, 883 F.3d at 15-16 ("The offense
begins where the interstate journey begins, regardless of whether
the defendant had already formed an intent to violate the statute
when the interstate travel began."); Spivey, 956 F.3d at 216
("[U]nder Carr, the element of 'interstate travel' is an essential
conduct element for a conviction under § 2250(a)."); Lewallyn, 737
F. App'x at 475 ("Venue was proper in Georgia, where Lewallyn began
the offense that he completed by failing to register in North
Carolina."); but see Haslage, 853 F.3d at 335-36.
Finally, we are persuaded yet further by the fact that
the relevant element of § 2250 in question -- "travels in
interstate commerce" -- contains an active verb ("travels"). While
this cannot itself circumscribe § 2250's locus delicti, see
Rodriguez-Moreno, 526 U.S. at 280, it is in our view another thumb
on the scale weighing in favor of finding interstate travel part
of the nature of a § 2250 offense. This is especially true given
the Court's concern in Rodriguez-Moreno that "certain conduct
prohibited by statute will be missed" in an analysis of the nature
- 23 -
of a given offense -- not that such conduct would be accidentally
included in it.10 Id. (emphasis added).
Accordingly, we hold that because the nature of the
offense reveals that its locus delicti encompasses the departure
jurisdiction, venue for Seward's prosecution was proper in
Massachusetts.11 See
Holcombe, 883 F.3d at 16 ("Interstate travel
10 We do not, however, suggest that a conduct element must
always or automatically define the nature of a given offense.
Contra Spivey, 956 F.3d at 215-16 (concluding that only conduct,
not circumstance, elements are relevant in determining the nature
of an offense). Rather, we reserve the possibility that an
anterior or jurisdictional element, for example, may not be
considered part of the nature of a given crime for purposes of
determining venue even if it is considered to be a "conduct"
element.
11 The dissent also poses a series of hypothetical scenarios
which it claims illustrate that our holding today flouts
constitutional venue principles. See infra Section II.B-C, III.
These scenarios are not before us and are somewhat fanciful, and
extended discussion of them is not warranted. We note in passing,
however, that such prosecutions would necessarily be constrained
by precisely the venue principles that the dissent identifies,
such as the requirement that "a criminal defendant cannot be tried
in a distant, remote or unfriendly forum solely at the prosecutor's
whim." Salinas, 373 F.3d at 164. We also find it possible -- but
do not so hold today -- that constitutional concerns about
Congress's power under the Commerce Clause may also preclude us
were such scenarios before us from construing this offense to
encompass a defendant like the dissent's hypothetical leaf-peeper,
who may have traveled in interstate commerce before failing to
register but whose travel did not -- in a but-for causation sense
-- trigger the registration duty, as Seward's did. These concerns
about the scope of the commerce power thus may require the
interstate travel element to be read narrowly to include a but-
for causation constraint and preclude the provision from being
used to criminalize such travel. Cf. United States v. DiTomasso,
621 F.3d 17, 26 (1st Cir. 2010) (discussing whether § 2250 falls
under Congress' authority under the Commerce Clause), vacated on
other grounds,
565 U.S. 1189 (2012); United States v. Parks,
698
F.3d 1, 7 (1st Cir. 2012) (same); compare United States v. Lopez,
- 24 -
requires a departure from one State just as much as arrival in
another.").
For the reasons above, the judgment of the district court
is affirmed.
-Dissenting Opinion Follows-
514 U.S. 549, 558-59 (1995) (discussing the limits of the commerce
power), with Gonzales v. Raich,
545 U.S. 1, 23-25 (2005)
(discussing the limits of Lopez).
- 25 -
LIPEZ, Circuit Judge, dissenting. I agree with my
colleagues on the legal framework for our venue analysis. As
acknowledged by the majority, and reaffirmed repeatedly by the
Supreme Court, "the locus delicti12 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
(1946) (footnote added); see United States v. Rodriguez-Moreno,
526 U.S. 275, 279 (1999); United States v. Cabrales,
524 U.S. 1,
6-7 (1998). We part ways, however, on the application of this
principle to 18 U.S.C. § 2250. In my view, based on a close
examination of the text and structure of the statute, its placement
in a comprehensive legislative scheme, and the Supreme Court's
venue precedents, the interstate-travel element is not part of the
nature of the crime. Rather, the nature of the crime defined by
§ 2250 is the failure to register or update a registration, such
that venue is proper only where that failure occurs. Accordingly,
I would vacate Seward's conviction and hold that venue for
prosecuting Seward was not proper in Massachusetts.
12Locus delicti is Latin for "place of the wrong," and it
means "[t]he place where an offense was committed." Black's Law
Dictionary (11th ed. 2019).
- 26 -
I.
To determine the nature of the § 2250 offense, I look
first to the text of SORNA and the key Supreme Court case
interpreting that text, Nichols v. United States, 136 S. Ct. 1113
(2016). SORNA requires that a sex offender keep his or her
registration current by, "not later than 3 business days after
each change of name, residence, employment, or student status,
appear[ing] in person in at least 1 jurisdiction involved . . .
and inform[ing] that jurisdiction of all changes in the information
required for that offender in the sex offender registry." 34
U.S.C. § 20913(c) (previously at 42 U.S.C. § 16913). The statute
defines "jurisdiction involved" as one "where the offender
resides, where the offender is an employee, and where the offender
is a student."
Id. § 20913(a).
A sex offender who fails to comply with SORNA's
registration requirements may be criminally prosecuted pursuant to
18 U.S.C. § 2250, which reads:
(a) In general. --Whoever--
(1) is required to register under
[SORNA];
(2)(A) is a sex offender [under SORNA] by
reason of a conviction under Federal law
. . ., the law of the District of
Columbia, Indian tribal law, or the law
of any territory or possession of the
United States; or
- 27 -
(B) travels in interstate or foreign
commerce, or enters or leaves, or resides
in, Indian country; and
(3) knowingly fails to register or update
a registration as required by [SORNA];
shall be fined under this title or imprisoned
not more than 10 years, or both.
Sub-section 2(A) applies to people convicted of federal sex
offenses -- the government must prove only that they are subject
to SORNA and knowingly failed to register. Sub-section 2(B)
applies to people convicted of state sex offenses (like Seward).
For them, the government must prove that they are subject to SORNA,
traveled in interstate commerce, and knowingly failed to register.
In Nichols, the Supreme Court considered the interplay
of these various statutory provisions. Nichols, who had previously
been convicted of a federal sex offense, resided in Kansas until
he abruptly left the state and moved to the Philippines. 136 S.
Ct. at 1117. He was arrested overseas, brought back to the United
States by federal marshals, and prosecuted in Kansas pursuant to
§ 2250. Id. Nichols moved to dismiss the indictment, asserting
that SORNA did not require him to update his registration in
Kansas.
Id. Agreeing with Nichols, the Supreme Court held that
Kansas was no longer a "jurisdiction involved" under 35 U.S.C.
§ 20913(a) because the statute defines that term as a place in
which a person currently resides, works, or is a student, not a
place where the person previously resided.
Id. In other words,
- 28 -
Nichols had not violated SORNA, and could not be prosecuted
pursuant to § 2250, because he was no longer living, working, or
studying in a location covered by SORNA and therefore had no
obligation to notify any jurisdiction -- including his former
resident state, Kansas -- of his new residence. Nichols thus
establishes, as the government concedes, that Seward had no
obligation to update his registration in Massachusetts after he
moved to New York.
My colleagues dismiss the relevance of Nichols to the
instant case. They emphasize that Nichols did not concern venue.
They note that because Nichols, unlike Seward, had been convicted
of a federal sex offense, the government was not required to prove
that he had engaged in interstate travel in order to convict him
under § 2250, and thus Nichols did not address the question of
whether the interstate-travel element of § 2250 is part of the
nature of the crime. However, to know whether interstate travel
is part of the nature of the crime, we must first answer that very
question: what is the nature of § 2250? In answering that
question, Nichols is highly instructive.
The Court in Nichols reasoned that a defendant who moves
from a SORNA jurisdiction to a non-SORNA jurisdiction cannot be
charged for violating § 2250 because no act is legally required in
the non-SORNA jurisdiction, based on the plain language of the
statute. See id. at 1117-18. This rationale suggests that the
- 29 -
nature of the § 2250 offense is the "failure to do a legally
required act." See Johnston v. United States, 351 U.S. 215, 220
(1956). Indeed, that characterization of § 2250 is reflected in
the statutory text: the title of the statute is "Failure to
register."13 And as I explain infra section II.A, in the absence
of a failure to register, a state sex offender who engages in
interstate travel has committed no criminal conduct.
This characterization of § 2250 puts it in the same
category as other crimes that the Supreme Court has characterized
as involving the failure to do a required act -- crimes like the
refusal to perform a duty mandated by a draft board, analyzed in
United States v. Anderson and Johnston v. United States, and the
13While "headings and titles are not meant to take the place
of the detailed provisions of the text," Bhd. of R.R. Trainmen v.
Balt. & Ohio R.R. Co., 331 U.S. 519, 528 (1947), they remain
valuable tools for resolving ambiguities in statutory text. See
I.N.S. v. Nat'l Ctr. for Immigrants' Rights, Inc.,
502 U.S. 183,
189 (1991) ("[T]he title of a statute or section can aid in
resolving an ambiguity in the legislation's text."). Here, the
statutory ambiguity lies in the absence of an explicit venue
provision dictating the locus delicti. Thus, it is appropriate to
look to the title of § 2250 to help discern the core conduct
criminalized by the statute for purposes of ascertaining venue.
Cf. United States v. Pendleton, 658 F.3d 299, 304 (3d Cir. 2011)
(relying, in part, on the title of 18 U.S.C. § 2423(c), "Engaging
in Illicit Sexual Conduct in Foreign Places," to conclude that the
locus delicti of the criminal offense was the location of the
illicit sexual conduct, not the place where the foreign travel
preceding the illicit sexual conduct began).
- 30 -
failure to file a required statement under the Mann Act, analyzed
in United States v. Lombardo.
Anderson addressed venue for prosecution for refusal to
take an oath submitting to the draft. 328 U.S. at 701. The Court
determined that the nature of the offense was "omitting to do
something which is commanded to be done," and that venue therefore
was proper only in the "place of performance" and "place of refusal
to perform," at least where those two places were "identical."
Id. at 705-06. Because taking an oath was the act "commanded to
be done," venue was proper only where the defendant was required
to take the oath and refused to do so, not where the draft board
that recruited the defendant was located.
Id.
Johnston involved a similar crime: the refusal to report
for civilian employment as ordered by a draft
board. 351 U.S. at
216-17. The Court recognized "the general rule that where the
crime charged is a failure to do a legally required act, the place
fixed for its performance fixes the situs of the crime," which in
turn "fixes the situs of the trial."
Id. at 220. Because the
defendant's failure to report constituted such a crime, the Court
determined that "venue must lie where the failure occurred."
Id.
at 222. Thus, venue was proper only where the defendant failed to
report for work, not where the draft board was located.
Id. at
216-22.
- 31 -
Lombardo is even more analogous to the issue presented
here. In Lombardo, the charged crime was the failure to file a
required statement under the Mann Act.
241 U.S. 73, 75 (1916).
Importantly, the defendant's own conduct that triggered the filing
requirement -- the harboring of an immigrant woman for purposes of
prostitution -- took place in Washington state, where the defendant
resided and was charged.
Id. at 74-75. However, the Court
expressly rejected the notion that the crime began in Washington
state.
Id. at 77-79. Rather, because "[t]he gist of the offense
[was] the failure to file with the Commissioner General of
Immigration a statement," venue was proper only in Washington,
D.C., where the office of the Commissioner was located. See
id.
at 76 (internal quotation marks omitted) (quoting United States v.
Lombardo,
228 F. 980, 982 (W.D. Wash. 1915)).
These cases strongly support the proposition that the
failure-to-register element defines the nature of the § 2250
offense, and that the locus delicti of Seward's offense is
therefore limited to New York, where he failed to register pursuant
to SORNA's requirements. See Nichols, 136 S. Ct. at 1117 (holding
that a defendant is required to register only in the new state
where he took up residence, education, or employment, not the
departure jurisdiction). None of these cases even hint at the
possibility that the site of any conduct of a defendant preceding
- 32 -
the failure to register would be a proper venue for trying that
defendant.14
II.
Having reached this initial conclusion that the nature
of the § 2250 offense is the failure to register, I turn my focus
to the interstate-travel element and the remaining question --
whether that element should also be considered part of the nature
14The majority attempts to blunt the force of these cases by
noting that none of the statutes at issue involved an interstate-
travel element. Although true, that fact does not diminish the
significance of the repeated invocation in these cases of "the
general rule that where the crime charged is a failure to do a
legally required act, the place fixed for its performance fixes
the situs of the crime." Johnston, 351 U.S. at 220. Moreover, as
detailed above, and as the majority concedes, unlike the draft
board cases, Lombardo did involve an anterior conduct element akin
to interstate travel -- the harboring of an immigrant woman for
purposes of prostitution. See
Lombardo, 241 U.S. at 74. Although
the Court did not explicitly consider whether that harboring
element properly conferred venue, it ultimately held that the state
where the defendant performed the harboring was an improper venue
for the prosecution.
Id. at 76-79. Contrary to the majority's
insinuation, it seems highly unlikely that the Court would have
affirmed the dismissal of the indictment for improper venue if the
harboring element, which took place in that venue, was part of the
nature of the crime. Indeed, it is telling that the government in
Lombardo did not even attempt to argue that the anterior conduct
of harboring conferred venue for a prosecution involving the
failure to do a legally required act. Instead, the government
asserted that the failure to do the required act itself (filing
the required statement) began in the same state as that anterior
element. See
id. at 77.
- 33 -
of the crime. Contrary to the majority, I answer that question in
the negative.
A. Lack of Mens Rea Requirement
The interstate-travel element of § 2250 is stated
simply: "travels in interstate or foreign commerce." 18 U.S.C.
§ 2250(a)(2)(B). Importantly, the statute does not attach a mens
rea requirement to the interstate-travel element. This fact
distinguishes § 2250 from other statutes in which the interstate
travel itself is the predicate for the offense. For example, 18
U.S.C. § 2423(b) criminalizes "[t]ravel with intent to engage in
illicit sexual activity," and the federal murder-for-hire statute,
18 U.S.C. § 1958, criminalizes "travel in interstate or foreign
commerce . . . with intent that a murder be committed . . . as
consideration for the receipt of . . . anything of pecuniary
value." Congress thus chose not to criminalize travel undertaken
for the purpose of evading SORNA's registration requirements. It
criminalized only the failure to register in the wake of travel,
regardless of the traveler's mindset.15
15In United States v. Pendleton, the Third Circuit held that
interstate travel was not part of the locus delicti for 18 U.S.C.
§ 2423(c), which stated at the time:
Any United States citizen or alien admitted
for permanent residence who travels in foreign
commerce, and engages in any illicit sexual
conduct with another person shall be fined
under this title or imprisoned not more than
30 years, or both.
- 34 -
Nichols, again, reinforces this point. If § 2250
criminalized travel undertaken to escape SORNA's registration
requirements, the defendant in that case, who "abruptly
disconnected all of his telephone lines, deposited his apartment
keys in his landlord’s drop-box, . . . boarded a flight to Manila[,
and] was a no-show at mandatory sex-offender treatment," would
have certainly committed a violation of the statute. 136 S. Ct.
at 1117. Instead, because the defendant had no registration
obligation in his new place of residence outside the United States,
his elusive travel was not part of a course of criminal conduct
pursuant to § 2250.16 Accord United States v. Haslage,
853 F.3d
331, 334 (7th Cir. 2017) ("[T]he premise of Nichols is that
658 F.3d at 303-04 (quoting 18 U.S.C. § 2423(c) (2006)). The
structure of § 2423(c) is nearly identical to § 2250, and the court
reasoned that travel was not part of the locus delicti in part
because, "while travel in foreign commerce is an element of
§ 2423(c), the crime itself is not complete until a person engages
in illicit sex."
Id. at 304. This structure distinguished
§ 2423(c) from § 2423(b), which criminalized "[t]ravel with intent
to engage in illicit sexual conduct," and which, the court
explained, "is complete as soon as one begins to travel with the
intent to engage in a sex act with a minor."
Id.
16Although Nichols did not commit a violation of § 2250, his
behavior did violate a Kansas law requiring sex offenders who leave
the state to update their registrations in Kansas. See
Nichols,
136 S. Ct. at 1119. Accordingly, the decision in Nichols did not
"create loopholes and deficiencies in SORNA's nationwide sex-
offender registration scheme,"
id. (internal quotation marks
omitted); rather, it recognized the principle that
"Congress . . . ha[s] given the States primary responsibility for
supervising and ensuring compliance among state sex offenders,"
Carr v. United States,
560 U.S. 438, 452 (2010).
- 35 -
[§ 2250] does not criminalize travel with intent to commit a crime
(i.e., to fail to register), but rather the failure to register
after traveling.").
The Court's analysis in Lombardo, highlighted by the
majority in its unavailing effort to distinguish that case, see
supra note 3, also supports the proposition that the lack of a
mens rea requirement indicates that interstate travel is not part
of the nature of the crime. In Lombardo, the Court rejected the
government's argument that venue was proper where the defendant,
if she had complied with the statute, would have mailed the
required
form. 241 U.S. at 77-78. The Court noted that the
statute required "filing," not "mailing," and "[a]nything short of
delivery would leave the filing a disputable fact."
Id. at 77
(quoting
Lombardo, 228 F. at 983). In a later venue case, the
Court elaborated on that rationale, explaining: "Venue should not
be made to depend on the chance use of the mails. . . . After
mailing, the [document] might have been lost; petitioner himself
might have recalled it." Travis v. United States,
364 U.S. 631,
636 (1961).17
17The statute in Travis criminalized "him who knowingly makes
any 'false' statement 'in any matter within the jurisdiction of
any department or agency of the United States.'" 364 U.S. at 635
(quoting 18 U.S.C. § 1001 (1948)). The Court held that the statute
did not create a continuing offense.
Id. at 636-37. Although the
false statement -- an affidavit swearing that the defendant was
not a Communist -- was composed and mailed in Colorado, venue was
proper only in the final destination where the false filing was
- 36 -
The same logic applies to the interstate-travel element
of § 2250 due to its lack of a mens rea requirement. After a state
sex offender engages in interstate travel, his crime can be
"recalled" up until the point at which he actually fails to update
his registration. In other words, even if an offender intends to
use his interstate travel to elude SORNA's registration
requirements, if he changes his mind and performs the required
registration obligation when he reaches his new state of residence,
no crime has been committed. Accordingly, the lack of a mens rea
requirement for the interstate-travel element indicates that
Congress did not intend the place of travel to be part of the locus
delicti of § 2250.
B. Lack of Causal Relationship Between Interstate-Travel
Element and Failure-to-Register Element
The absence of a causal relationship between the travel
element and the failure-to-register element also indicates that
Congress did not intend for venue to lie in the place of travel.
Interstate travel will never be the "but-for cause" of a sex
offender's failure to register because SORNA does not require a
sex offender to update his registration after interstate travel.
Instead, the requirement applies only after a "change of name,
made, i.e. Washington, D.C. See id. at 636 (reasoning that "[w]hen
a place is explicitly designated where a paper must be filed, a
prosecution for failure to file lies only at that place" (emphasis
added)).
- 37 -
residence, employment, or student status." 34 U.S.C. § 20913(a),
(c). Pursuant to SORNA, a state sex offender is free to travel
from Massachusetts to New Hampshire to go leaf-peeping without
notifying any authorities. He can even drive to Maine to spend
the whole summer with his grandparents and, as long as his trip
remains a vacation and not a relocation, he is not subject to any
federal registration requirement.18 Most importantly, even if he
succumbs to the beauty of the Maine coastline and decides to stay
permanently with his grandparents, it is that decision -- to change
his residence -- that triggers his federal registration
requirement, not his preceding interstate travel.
So too here. Seward necessarily engaged in interstate
travel when he changed his residence from Massachusetts to New
York, but that interstate travel did not subject him to any
registration obligation; rather, it was his change in residence
that triggered the obligation. In other words, the fact that
Seward's interstate travel happened to accompany his change in
residence is irrelevant under SORNA's statutory framework -- all
that matters is that it preceded his failure to register. See
Carr v. United States, 560 U.S. 438, 446-47 (2010) (holding that
the three elements of § 2250 must be satisfied sequentially).
18Of course, he may be subject to state reporting
requirements, and any violation of those requirements might
constitute a crime under state law. See supra note 5.
- 38 -
The lack of a causal relationship between the
interstate-travel element and the registration obligation raises
the troubling prospect that, if interstate travel were part of the
locus delicti of § 2250, venue might lie in a location of
interstate travel bearing no relationship whatsoever to the sex
offender's failure to register, thereby running afoul of the
constitutional venue protections. See United States v. Scott, 270
F.3d 30, 36-37 (1st Cir. 2001) (noting that the Constitution's
venue provisions serve to prevent "government forum shopping" or
the selection of a venue with "the barest connection" to the crime
or the defendant).
Consider this hypothetical: a state sex offender lives
in the New Jersey suburbs and commutes on the train to New York
City daily. If he moves to a bigger house up the street and fails
to register his change in residence with the New Jersey
authorities, would we really consider New York a proper venue for
a § 2250 prosecution? Interpreting the travel element as part of
the nature of the crime would permit that choice.
Or consider this hypothetical from Haslage:
[A]n offender [residing in Indiana] is subject
to SORNA's registration requirements. He then
moves across state lines from Indiana to
Kentucky with the intent to look for a new
job, and registers in Kentucky with his new
address within two days. But when he gets a
new job a week later, he fails to update his
Kentucky registration.
- 39 -
853 F.3d at 334. Under these circumstances, the state sex offender
would be subject to prosecution under § 2250. He (1) is subject
to SORNA, (2) engaged in interstate travel by moving from Indiana,
his "departure state,"19 to Kentucky, and (3) failed to update his
Kentucky registration after he secured a new job. Yet, it is "a
strain to imagine" that Indiana would be a proper venue for that
prosecution.
Id. Even though Indiana had a connection to this
offender's change in residence (he engaged in an interstate move
that began there), the offender properly performed the
registration update triggered by his change in residence. He
became criminally liable under § 2250 only after he registered his
new address, a full week passed, and he then got a new job and
failed to report that new job to Kentucky authorities. By that
point, his interstate travel from Indiana bore no relationship to
his failure to register, making Indiana a constitutionally
problematic venue choice that Congress would avoid. See FTC v.
Am. Tobacco Co.,
264 U.S. 298, 305-06 (1924) (rejecting a
constitutionally suspect interpretation of a statute on the basis
that Congress would not intend such a result).
C. The Problem of the "Pass-Through States"
Finding interstate travel to be part of the locus delicti
also raises a constitutional concern that venue would lie in the
19
I discuss the significance of the term "departure state"
in greater detail infra section III.A.
- 40 -
jurisdictions that the sex offender passed through on the way to
his final destination, even though they bear little relationship
to his failure to register -- the so-called "pass-through states."
For example, here, Seward might have driven through Connecticut as
part of his move from Massachusetts to New York. Or instead of
moving to New York, he might have moved to Florida and driven
through nearly every state along the east coast to get there. If
interstate travel is part of the locus delicti of § 2250, the
government could try Seward in any of those jurisdictions and
select the most favorable one for its prosecution, running afoul
once again of the constitutional venue protections. See United
States v. Johnson, 323 U.S. 273, 275 (1944) (noting that a
fundamental purpose of the constitutional venue provisions is to
avoid both the "abuses" and "the appearance of abuses . . . in the
selection of what may be deemed a tribunal favorable to the
prosecution"); United States v. Salinas,
373 F.3d 161, 164 (1st
Cir. 2004) (explaining that the venue protections "ensure[] that
a criminal defendant cannot be tried in a distant, remote, or
unfriendly forum solely at the prosecutor's whim"). No such
problem arises if we find, as I believe we must, that Congress
intended venue to be limited to the location of the failure to
register.
- 41 -
III.
A. The "Departure Jurisdiction"
The majority attempts to avoid the constitutional
concerns raised by these aspects of the interstate-travel element
by purporting to limit its holding to the "departure jurisdiction"
only, meaning here Massachusetts -- the state from which Seward
departed on his way to New York where he failed to comply with the
SORNA registration requirement. However, this approach does
violence to the text of the statute and ultimately does not avoid
the problems that it seeks to circumvent.
The text of § 2250 gives no special treatment to the
departure jurisdiction. The interstate-travel element -- "travels
in interstate or foreign commerce," 18 U.S.C. § 2250(a)(2)(B) --
says nothing to distinguish the departure jurisdiction from any
other jurisdictions that the defendant travels through. Nichols,
of course, reinforces that point, with its holding that a sex
offender who changes name, residence, school, or job has no
obligation to update his registration in a jurisdiction where he
no longer resides, receives an education, or works. See 136 S.
Ct. at 1117.
The majority opinion itself reveals the difficulty with
limiting its holding to the departure jurisdiction. It says, at
times, that "interstate travel . . . [is] part of the nature of a
§ 2250 offense." If interstate travel is part of the nature of
- 42 -
the § 2250 offense, how can interstate travel only matter for
purposes of venue when it occurs in the departure jurisdiction?
Put another way, how could Seward's travel through Massachusetts
somehow be more salient than his travel through, say, Connecticut,
when the text of § 2250, and the operation of SORNA, treat those
two states no differently?
The majority acknowledges that "[a] court's lodestar in
interpreting a statute is to effectuate congressional intent,"
City of Providence v. Barr, 954 F.3d 23, 31 (1st Cir. 2020), yet
it simultaneously "press[es] statutory construction 'to the point
of disingenuous evasion' . . . to avoid a constitutional question,"
in violation of that fundamental principle, see United States v.
Locke,
471 U.S. 84, 96 (1985) (quoting George Moore Ice Cream Co.
v. Rose,
289 U.S. 373, 379 (1933)) (rejecting a saving construction
of a statute that contorted the statutory text). The majority's
approach is especially troublesome when there is a clear
alternative means of avoiding these constitutional concerns and
remaining true to Congress's intent, as reflected in the text of
the statute: finding venue proper only where the failure to
register occurs.
Moreover, even if a holding limited to the departure
jurisdiction could be squared with SORNA's statutory text (and it
cannot be), such a holding still does not avoid all of the concerns
that I have identified. While the majority's holding will prevent
- 43 -
courts in our circuit from finding venue proper in the "pass-
through states," it will not change the fact that, in the
hypothetical posed by Haslage, the defendant could still be tried
in Indiana -- the "departure state" -- even though Indiana had no
relationship with the failure to register. Thus, the lack of a
causal relationship between the interstate-travel element and
failure-to-register element of § 2250 remains a problem even under
the majority's contrived approach.
B. Justifying Its Holding as Constitutional As-Applied
In its final footnote, the majority suggests that
because there happened to be some causal relationship between
Seward's interstate travel and his failure to register, finding
venue proper in Massachusetts -- the site where his interstate
travel began -- is not unconstitutional as applied here, and the
constitutionally problematic future applications of its
interpretation of § 2250 are problems for another day. This
rationale reveals the majority's misunderstanding of both the
nature of the venue inquiry and the doctrine of constitutional
avoidance.
The venue analysis is not simply a means of determining
whether venue was constitutionally permissible in a particular
scenario. Rather, as the majority acknowledges, it is a means of
discerning congressional intent about where the locus delicti
should lie in the absence of an explicit statutory venue provision.
- 44 -
See Rodriguez-Moreno, 526 U.S. at 281 (looking to congressional
intent about the scene of the crime to determine the locus delicti
of a crime proscribing "using or carrying a firearm 'during and in
relation to any crime of violence'" (quoting 18 U.S.C. § 924(c)(1)
(1998))); United States v. Cores,
356 U.S. 405, 408 (1958)
(explaining that the venue analysis requires courts to ascertain
the type of statute "Congress is found to have created" and where
venue should lie accordingly). Thus, the fact that a particular
application of a statute does not raise constitutional venue
concerns tells us little about congressional intent regarding the
locus delicti, particularly where, as here, other applications of
the statute raise such concerns. See Clark v. Martinez,
543 U.S.
371, 377-78, 380 (2005) (interpreting the Immigration and
Nationality Act to bar the detention of inadmissible immigrants
for longer than reasonably necessary, reasoning that Congress
would not intend the statute to result in certain unconstitutional
applications not present in the case before the court); Rust v.
Sullivan,
500 U.S. 173, 191 (1991) (noting the foundational
assumption that "Congress . . . legislates in the light of
constitutional limitations").
The majority also inverts the constitutional avoidance
doctrine. It suggests that unconstitutional applications of its
holding that interstate travel is part of the locus delicti can be
avoided in future cases by rewriting the statute to impose a
- 45 -
causal-relationship requirement between the interstate-travel
element and the failure-to-register element. But, in fact, the
doctrine of constitutional avoidance requires the majority to do
the reverse: find that interstate travel is not part of the nature
of the crime -- i.e., that Congress did not intend for venue to
lie in the location of interstate travel -- to avoid those
unconstitutional applications of the statute that would require a
rewriting. As the Supreme Court has put it,
when deciding which of two plausible statutory
constructions to adopt, a court must consider
the necessary consequences of its choice. If
one of them would raise a multitude of
constitutional problems, the other should
prevail -- whether or not those constitutional
problems pertain to the particular litigant
before the Court.20
20In Clark v. Martinez, the seven-member majority chastised
the dissent for misunderstanding the doctrine of constitutional
avoidance in the precise manner that my colleagues in the majority
misunderstand it here. The dissent had argued that the Court
should not interpret a statute to avoid unconstitutional
applications that were not present in the instant case -- all that
mattered, from the dissent's perspective, was that the statute was
constitutional "as-applied to the plaintiff." Clark, 543 U.S. at
395 (Thomas, J., dissenting). The majority responded that the
dissent
misconceives -- and fundamentally so -- the
role played by the canon of constitutional
avoidance in statutory interpretation. The
canon is not a method of adjudicating
constitutional questions by other
means. . . . It is a tool for choosing between
competing plausible interpretations of a
statutory text, resting on the reasonable
presumption that Congress did not intend the
alternative which raises serious
constitutional doubts. . . . And when a
litigant invokes the canon of avoidance, he is
- 46 -
Clark, 543 U.S. at 380-81.
C. Misplaced Reliance on Carr
In its analysis of whether the interstate-travel element
is part of the locus delicti, the majority improperly relies on
several statements from Carr, all of which it misconstrues and
takes out of context. Ironically, the majority chides Seward for
relying on a non-venue case -- Nichols -- but then rests its
holding almost exclusively on dicta from another non-venue case
-- Carr.
1. Carr's Discussion of "Nexus"
Carr considered whether a state sex offender could be
prosecuted under § 2250 for failure to register when the interstate
travel necessary for the prosecution had occurred before SORNA was
enacted. 560 U.S. at 444-46. If so, the defendant there argued,
§ 2250 violated the Ex Post Facto Clause of the Constitution.
Id.
at 442. The Supreme Court answered the first question in the
not attempting to vindicate the constitutional
rights of others, as the dissent believes; he
seeks to vindicate his own statutory rights.
We find little to recommend the novel
interpretive approach advocated by the
dissent, which would render every statute a
chameleon, its meaning subject to change
depending on the presence or absence of
constitutional concerns in each individual
case.
543 U.S. at 381 (citations omitted).
- 47 -
negative and thus avoided reaching the second argument raised by
the defendant. Id. It held that to convict a state sex offender
of violating § 2250, the government must prove that the sex
offender satisfied the statute's three elements -- being subject
to SORNA, engaging in interstate travel, and failing to register
-- sequentially, meaning that the interstate travel must have
occurred after SORNA's enactment.
Id. at 446-47, 458.
In reaching that conclusion, the Court in Carr explained
that:
A sequential reading [of the elements]. . .
helps to ensure a nexus between a defendant's
interstate travel and his failure to register
as a sex offender. Persons convicted of sex
offenses under state law who fail to register
in their State of conviction would otherwise
be subject to federal prosecution under § 2250
even if they had not left the State after being
convicted -- an illogical result given the
absence of any obvious federal interest in
punishing such state offenders.
Id. at 446. The majority overreads the Court's discussion of a
"nexus between a defendant's interstate travel and his failure to
register as a sex offender."
Id. The nexus imposed is modest:
the interstate travel must merely predate the failure to register
-- otherwise, the federal government could prosecute a state sex
offender who fails to register but does not even leave the state.
See
id.
In making the nexus point, the Court in Carr did not
surreptitiously impose some closer nexus between the interstate-
- 48 -
travel element and the failure-to-register element of § 2250 that
is lacking in the statutory text. Just because the government
must prove that a state sex offender's interstate travel predated
his failure to register does not mean that it must also prove that
the two elements were performed as part of a single course of
conduct. Indeed, pursuant to the plain language of § 2250, a state
sex offender's interstate travel may occur in a context completely
unrelated to his change in name, residence, employment, or
education, which in turn triggers his registration obligation.
See supra section II.B.
This aspect of § 2250 distinguishes it from the statute
at issue in Rodriguez-Moreno, which criminalized carrying or using
a firearm "during and in relation to" a crime of violence. See
526 U.S. at 281. The "during and in relation to" language of the
statute tethered the crime-of-violence element and the gun-use
element together, criminalizing a single course of conduct that
could be tried wherever the crime of violence began.
Id. at 281-
82. But § 2250 contains no such language tethering the interstate-
travel element to the failure-to-register element. Accordingly,
the majority is wrong to infer from Carr that § 2250 criminalizes
"a course of conduct that begins with interstate travel." That
interpretation simply cannot be squared with the statutory text.
- 49 -
2. Carr's Emphasis on Interstate Travel as "Conduct at
Which Congress Took Aim"
The majority also seizes on Carr's statements that
"[t]he act of travel by a convicted sex offender may serve as a
jurisdictional predicate for § 2250, but it is also . . . the very
conduct at which Congress took aim," 560 U.S. at 454, and "an
aspect of the harm Congress sought to punish,"
id. at 453.
These
statements were a response to the government's argument that the
interstate-travel element of § 2250 could be satisfied by travel
prior to SORNA's enactment because it was merely a jurisdictional
hook.
Id. at 451-54. In Scarborough v. United States, the Supreme
Court had held that for a statute that imposed criminal liability
on any convicted felon who "possesses . . . in commerce or
affecting commerce. . . any firearm," the prosecution did not have
to prove post-enactment movement of the gun across state lines
because the language "in commerce or affecting commerce" served
only to invoke federal jurisdiction under the Commerce Clause.
See
431 U.S. 563, 564, 572 (1977) (quoting 18 U.S.C. App. § 1202(a)
(1970)); see also
Carr, 560 U.S. at 453-54. The government saw a
similarity in the jurisdictional elements of the two statutes.
The Court in Carr rejected that analogy as part of its
effort to save § 2250 from violating the Constitution's Ex Post
Facto Clause. See 560 U.S. at 453-54; see also
id. at 442
(explaining that because it construed § 2250 as not applying to
- 50 -
sex offenders whose travel predated SORNA's effective date, it did
not need to address whether the statute violates the Ex Post Facto
Clause). The Ex Post Facto Clause forbids "laws, whatever their
form, which purport to make innocent acts criminal after the
event." Lynce v. Mathis, 519 U.S. 433, 440 (1997) (quoting Beazell
v. Ohio,
269 U.S. 167, 170 (1925)). Thus, the foundational
principle behind the ex post facto prohibition is fair notice.
See
id. at 441. Of course, only a person -- not a gun -- can
receive notice. Accordingly, subjecting a felon to prosecution
for possessing a firearm that moved in interstate commerce prior
to the felon-in-possession statute's enactment posed no ex post
facto problem, but subjecting a sex offender to prosecution for
engaging in an element of a crime before Congress had created that
crime could create an ex post facto problem. See
Carr, 560 U.S.
at 442.
The Court in Carr, apparently operating under the
assumption that "Congress . . . legislates in the light of
constitutional limitations," Rust, 500 U.S. at 191, found it
important that Congress "took aim" at conduct of the defendant
himself through the interstate-travel element, see
Carr, 560 U.S.
at 454. In order to avoid an ex post facto problem, Carr thus
went to great lengths to emphasize the centrality of that conduct.
But there is no reason to believe that the Court would find that
aspect of § 2250 similarly important for purposes of venue or that
- 51 -
the Court would even make such observations about the interstate-
travel element outside of the ex post facto context. Accordingly,
the significance of these statements from Carr cannot be understood
apart from the distinct issue presented there.
3. Distinction Between State and Federal Sex Offenders
As for the Carr Court's observation that Congress's
drafting of § 2250 indicates that it intended to "handle federal
and state sex offenders differently," id. at 452, that statement
does little more than establish that interstate travel is an
element of a § 2250 conviction for a state sex offender,21 but not
a federal sex offender. However, the simple fact that interstate
travel is an element of § 2250 for state sex offenders does not
mean that Congress intended that venue should lie wherever the
state sex offender engaged in that interstate travel. The Supreme
Court has specifically rejected the notion that venue lies any
place where an element of a crime is committed, see
Cabrales, 524
U.S. at 7-8 (reasoning that, when a "defendant acts 'after the
fact' to conceal a crime," and "the first crime is an essential
element of the second," the location of the first crime's
commission is, nevertheless, not a "place appropriate to try the
21 In this respect, I disagree with the majority in Haslage
that "interstate travel is a necessary precursor, but it is neither
a distinct crime nor an element of the crime." 853 F.3d at 335.
Of course interstate travel is an element of the crime, but that
fact does not necessarily mean that it confers venue.
- 52 -
'after the fact' actor") (emphasis omitted), and the majority
explicitly acknowledges as much in its penultimate footnote. Thus,
the statutory distinction between state and federal sex offenders
has little bearing on the question of the locus delicti for § 2250.
4. Carr's Reference to Sex Offenders Who "Elude"
SORNA's Registration Requirements
The majority also turns to the legislative history of
SORNA and Carr's commentary on it, citing the Court's statement
that "Congress intended § 2250 to do exactly what it says: to
subject to federal prosecution sex offenders who elude SORNA's
registration requirements by traveling in interstate commerce."
560 U.S. at 456. This statement appears in the section of Carr in
which the Court addressed the government's argument that the
purpose of § 2250 is to find "missing" sex offenders.
Id. at 454-
56. According to the government in Carr, prosecuting a state sex
offender under § 2250 who had engaged in interstate travel prior
to SORNA's enactment was permissible because it was consistent
with that asserted statutory purpose.
Id. at 454-55.
The Court rejected the premise of the government's
argument by concluding that finding missing sex offenders was the
purpose of SORNA generally, but not § 2250 specifically. Id. at
455 ("The Government's argument confuses a general goal of SORNA
with the specific purpose of § 2250. Section 2250 is not a stand-
alone response to the problem of missing sex offenders; it is
- 53 -
embedded in a broader statutory scheme enacted to address the
deficiencies in prior law that had enabled sex offenders to slip
through the cracks."). The Court then explained:
Taking account of SORNA's overall structure,
we have little reason to doubt that Congress
intended § 2250 to do exactly what it says: to
subject to federal prosecution sex offenders
who elude SORNA's registration requirements by
traveling in interstate commerce.
Id. at 456.
Contrary to the majority's assertion, this statement
does not purport to identify the site of interstate travel as the
locus delicti of § 2250 for purposes of venue. As I have previously
explained, see supra section II.A, § 2550 does not criminalize
interstate travel undertaken to "elude" SORNA's registration
requirements; rather, it criminalizes a failure to register after
changing name, residence, school, or workplace in the wake of
interstate travel. The real question for purposes of venue is
where the defendant's act of "eluding" takes place. The answer,
indisputably, is the location of the failure to register. Accord
Haslage, 853 F.3d at 335. Thus, if anything, Carr supports rather
than undermines the proposition that the nature of § 2250 as a
failure-to-register offense means that its locus delicti is
determined by the location of the failure to perform -- New York,
in this case -- and not where preceding conduct that merely
satisfies an element of the crime takes place.
- 54 -
D. Use of An Active Verb for Interstate-Travel Element
The majority employs the so-called "verb test" -- the
notion that active verbs in a statute define the conduct
constituting the nature of the crime -- to support its conclusion
that interstate travel is part of the locus delicti of § 2250. In
the majority's view, Congress's use of an active verb for the
interstate-travel element -- "travels in interstate commerce" --
is a "thumb on the scale weighing in favor of finding interstate
travel part of the nature of a § 2250 offense." However, as the
majority concedes, the Supreme Court in Rodriguez-Moreno expressly
rejected dispositive reliance on the "verb test" for ascertaining
the nature of the crime. 526 U.S. at 280. Accordingly, although
the verb test may retain value as an interpretive tool, it does
not override all of the other reasons detailed above for rejecting
interstate travel as part of the nature of the crime.
IV.
As a final justification for its conclusion that venue
was proper in the District of Massachusetts, the majority cites
Massachusetts's "interest in knowing Seward's whereabouts," as
reflected in the state's expenditure of resources to locate Seward
and a provision of SORNA unrelated to § 2250 that requires
officials in a sex offender's new state of registration to notify
the so-called "departure state."
- 55 -
No doubt Massachusetts had some interest in knowing
Seward's whereabouts. But for the purpose of the venue analysis,
the majority pulls this "state interest" test out of thin air.
None of the Supreme Court precedents addressing venue even mention
that general "state interests" should be factored into the venue
analysis.22 Rather, the venue analysis itself, by assessing where
the crime is committed, takes into account the interests of states
in prosecuting crimes that are committed within their borders.
Thus, Massachusetts's interests in knowing Seward's whereabouts or
its decision to expend resources to find him have no bearing on
the question of where Seward committed a violation of § 2250. If
that violation did not happen in Massachusetts, Massachusetts's
interests are irrelevant under the Supreme Court's prescribed
venue analysis. See Rodriguez-Moreno, 526 U.S. at 279 (quoting
Cabrales, 524 U.S. at 6-7) (reaffirming that venue is determined
by "the nature of the crime alleged and the location of the act or
acts constituting it").
Indeed, the interests of Massachusetts in knowing
Seward's whereabouts are protected by other federal statutory
provisions, not § 2250. As the majority points out, a separate
provision of SORNA, 34 U.S.C. § 20923(b)(3), imposes a duty on "an
22 Indeed, in Cabrales, the Court noted that "the venue
requirement is principally a protection for the defendant" rather
than an issue of state interests. See 524 U.S. at 9.
- 56 -
appropriate official in the jurisdiction" where the sex offender
updates a registration to notify "each jurisdiction from . . .
which a change of residence . . . occurs." Notably, that duty is
imposed on a public official, not on the sex offender himself. As
Nichols makes clear, federal law imposes no obligation on the sex
offender to notify the departure jurisdiction of his residence
change. See 136 S. Ct. at 1117; see also Sex Offender Registration
and Notification Act (SORNA), Pub. L. No. 109-248, 120 Stat. 590,
597, 600 (2006) (repealing the former federal requirement that sex
offenders report a change of address to the state that they are
leaving and adding the new requirement, now codified at 34 U.S.C.
§ 20923(b)(3), that public officials must report a new sex
offender's registration to that sex offender's former state of
residence). Thus, the notification obligation imposed on public
officials pursuant to 34 U.S.C. § 20923(b)(3) does not bear on the
nature of § 2250. The nature of the crime created by § 2250 is
the sex offender's failure to comply with SORNA's registration
requirements, and, pursuant to Nichols, that failure occurs only
in a single jurisdiction: the new residence, place of education,
or place of work.
Massachusetts also has a state law that that requires
sex offenders registered in Massachusetts to notify Massachusetts
officials if they move out of state. See Mass. Gen. Laws ch. 6,
§ 178E(i) ("A sex offender required to register pursuant to
- 57 -
sections 178C to 178P, inclusive, who intends to move out of the
commonwealth shall notify the board not later than ten days before
leaving the commonwealth."). The Massachusetts legislature has
made violation of that law a crime, see id. § 178H(a), in order to
protect Massachusetts's interest in knowing the whereabouts of
previously registered sex offenders who abandon their
Massachusetts residences. Accord
Nichols, 136 S. Ct. at 1119
(noting that Nichols's failure to update his registration in Kansas
when he moved out of the state was a crime under Kansas law, even
if it was not a crime pursuant to § 2250). But, again, that fact
tells us nothing about the locus delicti of Seward's charged
offense, which was a violation of § 2250, not a violation of state
law or some other provision of SORNA.
Indeed, it was the violation of those Massachusetts
laws, coupled with Seward's failure to appear at his annual
registration appointment at the local Massachusetts police
department, that led state authorities to issue a warrant for his
arrest. Thus, the "resources" that Massachusetts expended
tracking down Seward were the result of his violation of state
law, not his alleged violation of § 2250.
The Court in Carr emphasized that "the federal sex-
offender registration laws have, from their inception, expressly
relied on state-level enforcement." Carr, 560 U.S. at 452. The
reliance on that state-level enforcement will always result in the
- 58 -
expenditure of resources in an effort to monitor sex offenders at
the state level. However, the interests of a state generated by
state-level monitoring have little bearing on venue for a crime
that focuses on a federal registration obligation.23 The question
is where that federal obligation must be performed, and where
Seward failed to perform it. The undisputed answer pursuant to
Nichols is New York.
V.
"[Q]uestions of venue are more than matters of mere
procedure. 'They raise deep issues of public policy in the light
of which legislation must be construed.'" Travis, 364 U.S. at 634
(quoting
Johnson, 323 U.S. at 276). With this fundamental
principle in mind, and for the reasons explained above, I would
hold that the locus delicti of § 2250 is limited to the
jurisdiction in which a state sex offender fails to register and
does not include any of the jurisdictions through which he travels,
including the so-called "departure state." Seward should not have
been prosecuted in the federal district court in Massachusetts.
His motion to dismiss the indictment should have been granted.
Accordingly, I respectfully dissent.
23
The majority acknowledges that state interests do not
supersede individual interests in the venue inquiry, yet its
elevation of state interests in its analysis of § 2250 tells a
different story.
- 59 -
