United States v. Robert Lunsford , 725 F.3d 859 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-3616
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Robert D. Lunsford,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: April 10, 2013
Filed: August 5, 2013
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Before COLLOTON and SHEPHERD, Circuit Judges, and ROSE1, District Judge.
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COLLOTON, Circuit Judge.
Robert Lunsford, a sex offender subject to the requirements of the Sex
Offender Registration and Notification Act (“SORNA”), entered a conditional plea
of guilty to a charge of failing to update his registration after he moved from Missouri
1
The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa, sitting by designation.
to the Philippines. He appeals the district court’s denial of his motion to dismiss the
indictment, arguing that SORNA did not require him to update his registration in
Missouri to reflect his move out of the country. Because the text of SORNA does not
extend registration requirements to Lunsford’s situation, we conclude that the motion
to dismiss was meritorious, and we therefore reverse.
I.
Because Lunsford sustained convictions for sexual abuse in 1990 and 1993,
SORNA required him to register as a sex offender. In February 2011, Lunsford lived
and was registered at an address on Northwest Plaza Drive, Kansas City, in Clay
County, Missouri. On May 3, Lunsford boarded a flight from Kansas City to the
Philippines on a round-trip ticket, with a return scheduled for May 24. He did not use
his return ticket, however, and he did not inform the Missouri registry of a change of
residence. On July 20, law enforcement officers arrested Lunsford in the Philippines.
He was eventually deported and sent back to the United States.
A grand jury in Western Missouri charged Lunsford with one count of failing
to update his registration, in violation of 18 U.S.C. § 2250(a). Lunsford moved to
dismiss the indictment, arguing that SORNA did not require him to update his
registration when he left the United States. The district court denied the motion,
adopting the recommendation of a magistrate judge, and Lunsford entered a
conditional guilty plea. Lunsford appeals the district court’s denial of his motion to
dismiss.
II.
SORNA requires a sex offender to “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). To “keep the registration
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current,” an offender must “not later than 3 business days after each change of . . .
residence . . . appear in person in at least 1 jurisdiction involved pursuant to [42
U.S.C. § 16913(a)] and inform that jurisdiction of all changes in the information
required for that offender in the sex offender registry.” Id. § 16913(c). The offender
must supply, among other things, the address of “each residence at which the sex
offender resides or will reside.” Id. § 16914(a)(3). A sex offender violates 18 U.S.C.
§ 2250(a) if he travels in interstate or foreign commerce and knowingly fails to
register or update a registration as required by SORNA.
Lunsford changed his residence when he moved to the Philippines. A change
of residence triggers an obligation on the part of a sex offender to update a
“jurisdiction involved” with the address of his new residence. 42 U.S.C. §§ 16913(c);
16914(a)(3). SORNA’s definition of “jurisdiction” excludes foreign countries, id.§ 16911(10), so Lunsford was not required to register in the Philippines. The
government’s theory is that Lunsford violated SORNA when he did not supply
information about his change of residence to the Missouri registry. He was required
to do so, however, only if Missouri was a “jurisdiction involved,” within the meaning
of SORNA, when he changed his residence.
A “jurisdiction involved” is a jurisdiction where the offender resides, is an
employee, or is a student. Id. § 16913(a), (c). The government does not argue that
Lunsford was an employee or a student in Missouri at the relevant time, but contends
that Missouri was a “jurisdiction involved” because it was the “jurisdiction where the
offender resides.” Id. § 16913(a). SORNA defines “resides” to mean, “with respect
to an individual, the location of the individual’s home or other place where the
individual habitually lives.” Id. § 16911(13).
The stipulated factual basis for Lunsford’s guilty plea demonstrates that he did
not reside in Missouri when he changed his residence. According to the plea
agreement, Lunsford allegedly violated SORNA between May 3 and July 28, “after
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he traveled in interstate and foreign commerce.” Plea Agreement at 3 (emphasis
added). The government does not contend, for example, that Lunsford established a
new residence in Missouri after he abandoned his residence on Northwest Plaza Drive
and before he boarded his flight to the Philippines. The plea agreement reflects the
understanding of the parties that Lunsford did not change his residence and trigger a
reporting obligation until after he left the United States. But after Lunsford left the
country, Missouri was not the location of his home or a place where he habitually
lived, so Lunsford did not “reside” in Missouri when he changed his residence. See
42 U.S.C. § 16911(13).
The government nonetheless contends that Missouri was a “jurisdiction
involved,” because it was the jurisdiction where Lunsford resided until he changed his
residence. The National Guidelines for Sex Offender Registration and Notification,
which provide guidance to States about SORNA, seem to reflect this understanding
of the statute, saying that “[i]f a sex offender simply leaves the country and does not
inform the jurisdiction or jurisdictions in which he has been registered, then the
requirement to keep the registration current will not have been fulfilled.” 73 Fed. Reg.
38,030, 38,066-67 (July 2, 2008). Neither the National Guidelines nor the
government’s brief in this case, however, grapple effectively with the language of the
statute on this point, and we conclude that the text forecloses the government’s
position. An offender is required to “keep the registration current” in the jurisdiction
where he “resides,” 42 U.S.C. § 16913(a), not a jurisdiction where he “resided.”
“Resides” is a present-tense verb, and “the present tense generally does not include
the past.” United States v. Carr, 130 S. Ct. 2229, 2236 (2010) (citing the Dictionary
Act, 1 U.S.C. § 1). There is thus no textual basis for requiring an offender to update
his registration in a jurisdiction where he formerly “resided,” and where he is not
currently an employee or a student. Missouri was not a “jurisdiction involved” after
Lunsford changed his residence to somewhere in the Philippines, so Lunsford was not
required by the federal statute to update the Missouri registry.
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III.
The government advances three principal arguments against this straightforward
application of the statutory text. First, it relies on United States v. Murphy, 664 F.3d
798 (10th Cir. 2011), a case in which a registered sex offender abandoned his
residence in Utah, traveled by bus to Mexico, and relocated to Belize without updating
the Utah registry. Id. at 800. A divided panel affirmed Murphy’s conviction for
violating § 2250(a), concluding that “[w]hen an offender leaves a residence in a state,
and then leaves the state entirely, that state remains a jurisdiction involved.” Id. at
803. One court has observed that “Murphy is no model of clarity,” United States v.
Lewis, No. 12-10180, 2013 WL 1308512, at *3 (D. Kan. Mar. 28, 2013), and the
Tenth Circuit may have concluded that the offender still resided in Utah within the
meaning of § 16911(13) when he changed his residence and triggered his reporting
obligation. See Murphy, 664 F.3d at 803 (“[T]he intentional abandonment of a home
does not in itself change the ‘jurisdiction where the offender resides,’ so long as the
offender was still a resident of the state when the abandonment occurred.”). But
insofar as Murphy concluded that an offender who leaves a domestic jurisdiction for
a foreign jurisdiction necessarily must update his registration in the domestic
jurisdiction where he formerly resided, we respectfully disagree. According to the
statute, a jurisdiction is a “jurisdiction involved” only if the offender resides, works,
or studies there “after [a] change of . . . residence.” 42 U.S.C. § 16913(a), (c); see
Murphy, 664 F.3d at 805-06 (Lucero, J., dissenting).2
2
The government briefly suggests that because § 2250(a) applies to an
individual “who travels in interstate or foreign commerce,” 18 U.S.C. § 2250(a)(2)(B)
(emphasis added), the actions of an offender who does not update a registry after
moving abroad must meet the elements of the offense. The registration requirements,
however, are established by § 16913 not § 2250(a). In any event, the reference to
foreign commerce in § 2250(a) is not inconsistent with the limitations on a
“jurisdiction involved” in § 16913(a). For example, an offender who changes his
residence from the United States to a contiguous foreign jurisdiction, but who is still
an employee or a student in the United States, must update the registry in the
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The government also relies on policy arguments—principally, SORNA’s
asserted purpose to establish a comprehensive national registration system, and the
corresponding need to prevent sex offenders from evading registration requirements
by adopting an itinerant lifestyle. See United States v. Van Buren, 599 F.3d 170, 174-
75 (2d Cir. 2010). The government contends that if the jurisdiction from which a sex
offender departs does not count as a “jurisdiction involved,” then transient offenders
could avoid registering altogether by continuously relocating without establishing a
new residence. This court has recognized, however, that transient sex offenders who
lack a fixed residence usually will “habitually live” somewhere: for example, in “‘a
certain part of a city that is the sex offender’s habitual locale, a park or spot on the
street (or a number of such places) where the sex offender stations himself during the
day or sleeps at night.’” See United States v. Voice, 622 F.3d 870, 875 (8th Cir. 2010)
(quoting National Guidelines, 73 Fed. Reg. at 38,055). Therefore, SORNA’s
requirement that a sex offender register in the jurisdiction where he “habitually lives”
typically should ensure that a sex offender who moves from one jurisdiction to
another is required to register in the jurisdiction to which he moves, even if he
“resides” at a park bench or on a group of street corners. If, despite the foregoing,
there is still a hole in the law that permits a particular transient to avoid registration,
then it is a product of the statutory text that we cannot repair.
When a sex offender moves abroad, moreover, the government’s policy
argument is even more attenuated. Congress enacted SORNA to “protect the public
from sex offenders and offenders against children.” 42 U.S.C. § 16901. The prospect
of sex offenders evading their registration obligations by moving from jurisdiction to
jurisdiction within the United States raises serious public safety concerns, and the
National Guidelines concerning “residence information” and offenders who lack fixed
jurisdiction where he works or studies, after having traveled in foreign commerce.
Likewise, an offender who leaves the United States for a period of years and then
travels in foreign commerce to reside again in this country is subject to prosecution
under § 2250(a) if he fails to register as required.
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abodes are designed to address them. See Voice, 622 F.3d at 875; National
Guidelines, 73 Fed. Reg. at 38,055. But Congress did not give SORNA
extraterritorial effect, see 42 U.S.C. § 16911(10), and when a sex offender leaves the
country, he no longer poses an immediate threat to the safety of children in the United
States. The government asserts no policy interest under SORNA in monitoring the
offender’s subsequent movements among foreign jurisdictions. See National
Guidelines, 73 Fed. Reg. at 38,066 (“A sex offender who moves to a foreign country
may pass beyond the reach of U.S. jurisdictions and hence may not be subject to any
enforceable registration requirement under U.S. law unless and until he or she returns
to the United States.”).
Law enforcement officials understandably would like to know if a registered
offender has left the country, so the police need not worry that he has gone “missing”
in the United States. But with the possible exception of an offender destined for an
overseas U.S. military base, see id. at 38,067, the policy interest in learning of foreign
travel apparently is to conserve law enforcement resources and to maintain peace of
mind rather than to ensure domestic public safety. These are worthy interests that
Congress may wish to address, but they are not encompassed within the scope of the
federal statute as written. Cf. Mo. Rev. Stat. 589.414 (“If any person required . . . to
register changes their state of residence, the person shall appear in person and shall
inform both the chief law enforcement official with whom the person was last
registered and the chief law enforcement official of the area in the new state having
jurisdiction over the new residence or address within three business days of such new
address.”).
The government further contends that circuit precedent supports its
interpretation of SORNA. The principal authority cited, United States v. Howell, 552
F.3d 709 (8th Cir. 2009), did not rule on whether a registered sex offender may be
liable for failing to update his registration in a jurisdiction from which he has
departed, but rather addressed venue for a prosecution under SORNA. After a
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registered sex offender moved from Iowa to Texas, and then failed to update his
registration within three days of arriving in Texas, see 42 U.S.C. § 16913(c), the
government prosecuted him in Iowa. This court held that venue was proper in Iowa,
because an offense begun in one district and completed in another may be prosecuted
in the district “in which such offense was begun.” 18 U.S.C. § 3237(a); see Howell,
552 F.3d at 718. The offender’s act of travel began in Iowa, where he started his
interstate journey to Texas, so the SORNA registration violation could be prosecuted
in Iowa. Howell, 552 F.3d at 718.
It is true that the Howell opinion—after explaining that venue was proper in
Iowa because the SORNA violation “commenced” there—added that the offender was
“required by law” to notify the Iowa sex offender registry of his move to Texas, and
that his failure to notify the Iowa registry “was a material part of the § 2250
violation.” Id. It was undisputed, however, that the offender failed to register in
Texas, id., so a determination whether SORNA required him to update the registry in
Iowa was not necessary to a conviction or to the court’s decision on venue. The
parties did not brief that question, and the court did not address the point after
adversarial presentation. Under the circumstances, the court’s comment that the
offender was “required by law” to update the Iowa registry after moving to Texas was
dicta that is not binding in a future case such as this one that squarely raises the issue
under the federal statute.3 See Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 363
(2006); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821) (Marshall, C.J.) (“It
is a maxim not to be disregarded, that general expressions, in every opinion, are to be
taken in connection with the case in which those expressions are used. If they go
3
The offender in Howell was required by Iowa law to update the Iowa registry
when he moved to Texas. See Iowa Code § 692A.3(4) (2007) (“A person required to
register under this chapter shall notify the sheriff of the county in which the person is
registered, within five days of changing residence to a location outside this state, of
the new residence address and any changes in telephone number or name.”), repealed
and replaced by Iowa Code § 692A.104(5) (2009).
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beyond the case, they may be respected, but ought not to control the judgment in a
subsequent suit when the very point is presented for decision.”); Passmore v. Astrue,
533 F.3d 658, 660-61 (8th Cir. 2008).4
* * *
For the foregoing reasons, the judgment of the district court is reversed, and the
case is remanded with directions to dismiss the indictment.
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4
The government also cites a footnote in Voice that expressed agreement with
the Second Circuit’s decision to affirm a jury instruction “that an updated registration
is required if a sex offender leaves his registered residence with no intent to return.”
622 F.3d at 875 n.2 (citing Van Buren, 599 F.3d at 172-75). Voice observed, however,
that “no such instruction was requested in this case,” id., so the comment about Van
Buren is plainly dicta. The court had no occasion to consider the application of
SORNA to an offender who abandons a residence and immediately leaves the country.
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