United States v. Cole Lusby

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10368
Plaintiff-Appellant,
D.C. No.
v. 2:18-cr-00136-
APG-PAL-1
COLE LUSBY,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted January 9, 2020
San Francisco, California
Filed August 25, 2020
Before: J. Clifford Wallace and Michelle T. Friedland,
Circuit Judges, and Robert S. Lasnik, * District Judge.
Opinion by Judge Wallace
*
The Honorable Robert S. Lasnik, United States District Judge for
the Western District of Washington, sitting by designation.
2 UNITED STATES V. LUSBY
SUMMARY **
Criminal Law
The panel reversed the district court’s order dismissing
an indictment charging the defendant with failing to register
as a sex offender in violation of the Sex Offender
Registration and Notification Act, 18 U.S.C. § 2250(a), and
remanded.
The district court held that the Government was required
to prove that a defendant’s interstate travel was not legally
compelled, and the Government conceded it could not prove
its case under that interpretation of Section 2250.
Rejecting the defendant’s contention that the Double
Jeopardy Clause precludes jurisdiction over this appeal, the
panel held that jeopardy did not attach in this case because
the district court never heard evidence for the purpose of
deciding the issue of guilt or innocence that could subject the
defendant to the risk that he would be found guilty.
Addressing the merits, the panel held that, in light of the
plain language and purpose behind the statute, Section
2250(a) does not require that a defendant’s interstate travel
not be compelled. The panel therefore remanded with
instructions to apply the elements of Section 2250 as written.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. LUSBY 3
COUNSEL
Elham Roohani (argued), Assistant United States Attorney;
Elizabeth O. White, Appellate Chief; Nicholas A. Trutanich,
United States Attorney; United States Attorney’s Office, Las
Vegas, Nevada; for Plaintiff-Appellant.
Kathleen Bliss (argued), Kathleen Bliss Law PLLC,
Henderson, Nevada, for Defendant-Appellee.
OPINION
WALLACE, Circuit Judge:
The Government appeals from an order dismissing Cole
Lusby’s indictment, which charged him with failing to
register as a sex offender in violation of 18 U.S.C. § 2250(a).
The key issues in this appeal are whether the Double
Jeopardy Clause of the Fifth Amendment precludes our
jurisdiction over this appeal and, if we have jurisdiction,
whether the district court erred in holding that the
Government was required to prove that Lusby’s interstate
travel was not legally compelled. We conclude that we have
jurisdiction and that the district judge erred as a matter of
law in holding that Section 2250 requires that a defendant’s
interstate travel not be legally compelled. Accordingly, we
reverse and remand.
4 UNITED STATES V. LUSBY
I.
The events of this case 1 started in 2009, when Cole
Lusby was convicted of crimes that required him to register
as a convicted sex offender. 2 Seven years later, Lusby pled
guilty to failing to register as a sex offender under the federal
Sex Offender Registration and Notification Act (SORNA),
34 U.S.C. § 20901, et seq. Upon his conviction, the district
court sentenced Lusby to 24 months of incarceration
followed by eight years of supervision. Because there was
no federal prison in Nevada, the federal Bureau of Prisons
(BOP) transported Lusby to a facility in Arizona to serve his
sentence.
The terms of Lusby’s supervised release originally
required Lusby to “report, in person, to the probation office
in the district to which [he was] released within 72 hours of
discharge from custody.” Because he would be homeless
upon release, Lusby requested that, upon his release, he
serve some of his supervised release at a residential re-entry
center in Las Vegas, Nevada (the Halfway House).
Accommodating Lusby’s request, the Probation Office
recommended that the district court modify Lusby’s
conditions of supervised release to include a 90-day
placement at the Halfway House. Based on this
recommendation, the district court modified the conditions
of Lusby’s supervision such that he “must reside in a
1
We recite the facts as they have been presented to us in the current
posture of this case, but our doing so here does not change the
Government’s burden on remand to prove all relevant facts at trial.
2
Lusby was convicted of first-degree attempted rape, first-degree
custodial interference, first-degree online sexual corruption of a child,
second-degree custodial interference, misdemeanor sexual abuse, and
misdemeanor escape.
UNITED STATES V. LUSBY 5
residential reentry center for a term of 90 days.” The
Probation Office subsequently approved a prerelease plan
under which Lusby “[would] be accepted for supervision in
the District of Nevada.”
On January 26, 2018, Lusby was physically released
from BOP custody in Arizona, transported to a bus station in
Arizona, provided a bus ticket to Las Vegas, Nevada, and
instructed to “take a taxi, or make [his] own arrangements,
to get to” the Halfway House. The instructions also reminded
him to “report for supervision within 72 hours after [his]
release.”
As of February 1, 2018, however, Lusby had neither
arrived at the Halfway House nor reported to the Nevada
Probation Office. Accordingly, the district court issued a
warrant for Lusby’s arrest for violating the terms of his
supervised release. On April 24, 2018, Lusby was
apprehended in Las Vegas, where he had apparently been
living using other identities. For violating the terms of his
supervision, Lusby was sentenced to 24 months of
incarceration followed by a life-term of supervision.
Lusby was also indicted for failing to register as a sex
offender after entering Nevada in violation of 18 U.S.C.
§ 2250(a). Lusby waived his right to a trial by jury, so the
court set a date for a non-jury trial. Lusby filed a pro se
motion to dismiss the indictment, arguing that he had
previously registered as a sex offender in Nevada, and thus
any failure to update his address was a “purely intrastate”
issue. 3 During a series of hearings held to address both the
3
Lusby and the Government dispute whether he previously
registered with the Nevada sex offender registry, and the district court
did not make a factual finding on this issue.
6 UNITED STATES V. LUSBY
motion to dismiss and trial scheduling, the district court
questioned the voluntariness of Lusby’s interstate travel and
expressed concerns about the Government “manufacturing”
jurisdiction by compelling Lusby’s travel across state lines.
After ordering supplemental briefing, the district court
initially denied Lusby’s motion to dismiss. The court
explained that it had concluded that the interstate travel
component of SORNA includes a “voluntariness element.”
But the court concluded there was “a question of fact” as to
whether Lusby’s travel was voluntary, and that “one of the
purposes of the trial [would be] to flesh that factual issue
out.” In response to the court’s ruling, the Government filed
an emergency motion for clarification, asking the court to
explain, among other things, how it would define
“voluntariness,” because the Government believed that the
answer to this “question of law” would affect the
Government’s trial burden.
In response to the Government’s motion, the district
court explained that in its view, “to satisfy SORNA’s
interstate travel requirement, the defendant’s travel must not
be legally or physically compelled.” The district court
observed that it did “not know all the facts underlying
Lusby’s travel to Arizona and back to Nevada,” but that “[i]f
Lusby was involuntarily removed from Nevada and then
legally compelled to return to Nevada, he did not voluntarily
travel in interstate commerce and should not be federally
prosecuted.” 4
4
The district court also stated that it “surmise[d]” from the parties’
statements and briefs some specific facts about Lusby’s interstate travel,
and suggested that under those facts, both Lusby’s travel to Arizona and
his return to Nevada would have been involuntary, and thus Lusby’s
UNITED STATES V. LUSBY 7
The Government conceded it could not prove its case
under the district court’s interpretation of Section 2250 and
filed a motion asking the district court to grant Lusby’s
motion to dismiss the indictment in order to seek appellate
review of the district court’s interpretation of Section 2250.
Based on this concession, the district court agreed to dismiss
the indictment.
II.
We begin by addressing Lusby’s challenge to our
jurisdiction over this appeal. Lusby argues that we lack
jurisdiction because the Double Jeopardy Clause of the
United States Constitution prohibits “re-trying” him.
Although Lusby is correct that our jurisdiction does not
extend to appeals from dismissals of indictments where that
Clause “prohibits further prosecution,” 18 U.S.C. § 3731, it
does not do so here.
The Double Jeopardy Clause provides that “[n]o person
shall . . . be subject for the same offense to be twice put in
jeopardy of life or limb.” U.S. Const. amend. V. “This
guarantee recognizes the vast power of the sovereign, the
ordeal of a criminal trial, and the injustice our criminal
justice system would invite if prosecutors could treat trials
as dress rehearsals until they secure the convictions they
seek.” Currier v. Virginia, 138 S. Ct. 2144, 2149 (2018).
However, “the Clause was not written or originally
understood to pose ‘an insuperable obstacle to the
administration of justice’ in cases where ‘there is no
conduct would have fallen outside the scope of the statute as the district
court understood it. But the district court did not adopt those facts as true
or take the action that its legal reasoning would have demanded had it
intended to do so: dismissal for failure as a matter of law to prove an
element of the charged crime.
8 UNITED STATES V. LUSBY
semblance of [these] type[s] of oppressive practices.’” Id.,quoting Wade v. Hunter, 336 U.S. 684, 688–89 (1949)
(alterations in original).
In striking this balance, the Supreme Court has
consistently held that the Double Jeopardy Clause has “no
application” unless jeopardy has first “attach[ed].” See, e.g,
Serfass v. United States, 420 U.S. 377, 388 (1975). As the
Supreme Court explained:
Both the history of the Double Jeopardy
Clause and its terms demonstrate that it does
not come into play until a proceeding begins
before a trier ‘having jurisdiction to try the
question of the guilt or innocence of the
accused.’ Without risk of a determination of
guilt, jeopardy does not attach, and neither an
appeal nor further prosecution constitutes
double jeopardy.
Id. at 391–92, quoting Kepner v. United States, 195 U.S.
100, 133 (1904). In other words, jeopardy “does not attach”
unless a defendant is “put to trial before the trier of facts,”
id. at 388–89, which subjects the defendant to the “risk of a
determination of guilt,” id. at 391.
Lusby argues that jeopardy attached here because, in
dismissing his indictment, the district court effectively
conducted a non-jury trial. However, we previously rejected
this argument under similar circumstances in United States
v. Olson, 751 F.2d 1126 (9th Cir. 1985).
In Olson, a former air traffic controller was indicted for
making false statements on government forms for the
purpose of securing temporary disability benefits. Id.
at 1127. The district court dismissed the indictment based on
UNITED STATES V. LUSBY 9
its legal view that an element of the crime was missing: a
person seeking temporary disability benefits had no duty to
provide the information requested. Id. We held that the
dismissal of the indictment on that ground was erroneous,
and, as is important here, that jeopardy had not attached
because “[j]eopardy does not attach without the
consideration of some or all of the factual elements in the
case, and the risk of a finding of guilt based on the resolution
of a fact issue.” Id. at 1129 (internal citations omitted). We
then concluded that jeopardy did not attach because the trial
court made a “purely legal determination” without
“receiving and evaluating evidence and applying it to the
question of guilt or innocence.” Id. In reaching that
conclusion, we observed that, even though the hearing took
place on the day scheduled for trial, the government only
“described what evidence it would present” at trial, “and
counsel’s statements did not constitute hearing evidence for
the purpose of deciding the issue of guilt or innocence,
which is the essence of the attachment of jeopardy.” Id.
at 1128. Finally, we explained that risk of being found guilty
is what affects the “interests protected by the double
jeopardy clause.” Id.In this appeal, we reiterate that—in the context of a non-
jury trial—jeopardy only attaches when the court begins to
“hear[] evidence for the purpose of deciding the issue of guilt
or innocence” that could “subject[]” the defendant “to the
risk that he would be found guilty.” Id. at 1128. For the
following reasons, however, we hold that those
circumstances are not present here and thus jeopardy never
attached.
First, the circumstances surrounding the district court’s
rulings and the rulings themselves make clear that the district
court did not “hear[] evidence for the purpose of deciding
10 UNITED STATES V. LUSBY
the issue of guilt or innocence.” Id. Rather, the proceedings
in question were held in response to Lusby’s motion seeking
dismissal before trial based on what he characterized as
“pure questions of law,” followed by the Government’s
emergency motion for the district court to clarify the district
court’s legal interpretation of Section 2250, culminating in
the Government’s concession that it could not prove its case
under that legal interpretation and the district court’s
agreement to dismiss the indictment in light of the
concession. Like in Olson, the district court here made a
“purely legal determination,” id. at 1129: namely, that an
element of the SORNA offense charged here is that “the
defendant’s [interstate] travel must not be legally or
physically compelled.” As the district court explained, its
goal in these proceedings was to provide “guidance” about
what the parties would need to prove at trial, similar to how
it would have proceeded upon a request for a pre-trial ruling
on a jury instruction.
Moreover, the district court made this determination
without “receiving and evaluating evidence and applying it
to the question of guilt or innocence.” Id. In its own words,
the district court did “not know all the facts underlying
Lusby’s travel to Arizona and back to Nevada.” Rather than
either making findings of fact or treating any particular facts
as undisputed by the parties, the district court initially ruled
that the trial would proceed, with factual disputes about the
voluntariness of Lusby’s interstate travel being “flesh[ed]
. . . out” at trial. It was only after the Government conceded
that it would be unable to prove its case under the court’s
legal interpretation that the district court dismissed the
indictment. Neither the proceedings during which the district
court evaluated the meaning of the statute nor the subsequent
dismissal based on a Government concession involved “an
application of law to facts established by evidence which the
UNITED STATES V. LUSBY 11
court received and considered.” Id. Instead, the district court
provided legal analysis based on the “parties’ statements,”
which, as we clarified in Olson, does “not constitute hearing
evidence for the purpose of deciding the issue of guilt or
innocence, which is the essence of the attachment of
jeopardy.” Id. at 1128.
Second, Lusby was never “subject[ed] . . . to the risk that
he would be found guilty.” Id. As to the interstate travel
issue, the district court assessed whether a “voluntariness
element” existed, what the definition of that element should
be, and whether to accept a Government concession made in
light of that definition. If the district court had been
persuaded by the Government’s position on the disputed
legal issue, the result would have been analogous to adopting
a different set of jury instructions than the ones Lusby sought
(or, more precisely, the ones Lusby would have sought if he
had been proceeding to a jury trial)—not a finding of factual
guilt as to any element. Moreover, as Lusby concedes, there
was “an unresolved factual dispute as to whether Mr. Lusby
[previously] registered as a sex offender in Nevada” and “the
district court never made a factual finding” on this issue.
This unresolved factual dispute concerned an entirely
different and independent element of the offense, which, in
the district court’s view, was at “the crux of [the] case.”
Because the district court was not considering an
uncontested set of facts or even attempting to resolve
outstanding factual disputes, including one at “the crux” of
the case, Lusby was never at “risk of a finding of guilt based
on the resolution of a fact issue.” Id. at 1129. “Without risk
of a determination of guilt, jeopardy does not attach, and
neither an appeal nor further prosecution constitutes double
jeopardy.” Serfass, 420 U.S. at 391–92.
12 UNITED STATES V. LUSBY
Thus, we hold that jeopardy did not attach in this case
because the district court never heard “evidence for the
purpose of deciding the issue of guilt or innocence” that
could “subject[]” Lusby “to the risk that he would be found
guilty.” Olson, 751 F.2d at 1128. As explained below, we
hold that this conclusion does not run afoul of the interests
protected by the Double Jeopardy Clause.
The “underlying idea” of the Double Jeopardy Clause is
that “the State with all its resources and power should not be
allowed to make repeated attempts to convict an individual
for an alleged offense, thereby subjecting him to
embarrassment, expense and ordeal and compelling him to
live in a continuing state of anxiety and insecurity, as well as
enhancing the possibility that even though innocent he may
be found guilty.” U.S. v. Scott, 437 U.S. 82, 87 (1978)
(internal quotation marks and citation omitted). Indeed, “the
‘core’ of the Double Jeopardy Clause’s prohibition on
multiple prosecutions is denying the prosecution a second
opportunity ‘to supply evidence which it failed to muster in
the first proceeding.’” United States v. Weems, 49 F.3d 528,
531 (9th Cir. 1995), quoting Tibbs v. Florida, 457 U.S. 31,
41 (1982)).
Here, the Government never attempted to “supply
evidence” to secure a conviction. The Government merely
sought clarification of the district court’s legal interpretation
of Section 2250’s requirements without attempting to admit
any evidence or examine any witnesses, and then sought
dismissal of the indictment based on its own evaluation of
the strength of its case in light of that legal interpretation.
Thus, the proceeding in the district court was not a “dress
rehearsal[]” for prosecutors to secure a conviction, Currier,
138 S. Ct. at 2149, and remanding the case will not provide
UNITED STATES V. LUSBY 13
the prosecution a “second opportunity” to supply inculpatory
evidence, Weems, 49 F.3d at 531.
Moreover, Lusby was not subjected to the full
“embarrassment, expense and ordeal” that accompanies a
full trial. Serfass, 420 U.S. at 388. A judge’s issuing a ruling
on a question of law, without any attempt to make factual
findings regarding outstanding factual issues, is not itself a
trial. See Olson, 751 F.2d at 1128. In fact, in the same order
in which the district court ultimately clarified its
understanding of the statute’s interstate commerce
requirement, the district court also indicated that Lusby’s
trial (the mechanism for resolving outstanding factual
issues) was still scheduled to commence on a later date. The
proceedings concluded when, in advance of that date, the
district court agreed to the Government’s request for
dismissal in light of its ruling. “When a criminal prosecution
is terminated prior to trial, an accused is often spared much
of the expense, delay, strain, and embarrassment which
attend a trial.” Serfass, 420 U.S. at 391.
It is clear that “[t]he constitutional prohibition against
‘double jeopardy’ was designed to protect an individual from
being subjected to the hazards of trial and possible
conviction more than once for an alleged offense.” Id. at 387;
Olson, 751 F.2d at 1128 (explaining that risk of being found
guilty is what implicates the “interests protected by the
double jeopardy clause”). Because the district court
explicitly avoided making factual findings, including
regarding an unresolved factual issue at the “crux” of the
case, Lusby was never subject to the risk of being found
guilty. “Without risk of a determination of guilt, jeopardy
does not attach, and neither an appeal nor further prosecution
constitutes double jeopardy.” Serfass, 420 U.S. at 391–92.
Holding that jeopardy attached here would violate “the
14 UNITED STATES V. LUSBY
fundamental principle that an accused must suffer jeopardy
before he can suffer double jeopardy.” Id. at 393.
Lusby’s references to United States v. Hill, 473 F.2d 759(9th Cir. 1972), and United States v. Patrick, 532 F.2d 142(9th Cir. 1976), do not convince us that jeopardy attached.
In Hill, the defendants were charged with mailing obscene
materials. 473 F.2d at 760. The trial court “heard evidence
going to the general issue—whether the matter mailed was
obscene, a necessary element of the offense.” Id. at 761
(internal quotation marks omitted). “Having considered the
evidence, the court ruled, as a matter of law, that the matter
was not obscene,” and dismissed the indictment. Id. (internal
quotation marks omitted). We held that the district court had
essentially found the defendants not guilty based on the
evidence, and that jeopardy had attached. Id. In Olson, we
subsequently clarified that “the finding of the trial court in
Hill was an application of law to facts established by
evidence which the court received and considered.” Olson,
751 F.2d at 1129. We distinguished Hill from the situation
in Olson, in which the district court did not engage in
“receiving and evaluating evidence and applying it to the
question of guilt or innocence” such that there was no “risk
of a finding of guilt.” Id. In the latter situation, we held that
jeopardy did not attach. Id. The same conclusion applies for
the same reasons in this appeal. The district court here did
not evaluate any evidence for the purposes of determining
whether Lusby was guilty, 5 and Lusby was never at “risk of
a finding of guilt.” Id.5
It is true that the district court referred to specific facts about
Lusby’s interstate travel that it had “surmise[d]” from the parties’
statements and briefs, and that the court referenced a document Lusby
attached to his brief for the proposition that the BOP notified Nevada
UNITED STATES V. LUSBY 15
In Patrick, the defendant was indicted for kidnapping a
young woman. 532 F.2d at 144. Patrick conceded both that
he “engage[d] in the conduct attributed to him,” and that
such conduct matched the elements of the offense. Id.However, he argued that the defense of necessity applied
because he was hired by the parents of that young woman to
extricate her from a religious sect and “deprogram” her. Id.The Government, for its part, conceded that if the district
court were to agree with Patrick that “the mere belief of
danger is a defense,” it was prepared to “stipulate that the
victim’s parents believed her to be in some sort of danger,”
in which case “a finding of ‘not guilty’ would be entered.”
Id. In short, Patrick and the Government were in agreement
that there were “no factual disputes, that the dispute [was]
essentially a legal dispute” as to whether the necessity
defense applied under those circumstances. Id. If the defense
applied, Patrick would be acquitted. If the defense did not
apply, the parties had made “clear” that they “contemplated
that [a] stipulation” regarding “all the facts needed to find
[Patrick] guilty” would have been made. Id. at 147. To
enable the district court to apply the law to essentially
undisputed facts, Patrick’s counsel made an “offer of proof”
that “cover[ed] some 30 pages of the reporter’s transcript
and incorporate[d] [counsel’]s 20 pages of memoranda,
together with a number of exhibits,” then the government
“outlined rebuttal evidence,” then the defendant’s exhibits
“were offered and received in evidence.” Id. at 145. Upon
“weigh[ing] the proffered and admitted facts to determine
about his release from custody. As explained above, however, the district
court did not adopt any facts as true or rely upon them to make a
determination of guilt or innocence. “To the limited extent that the trial
court in this case heard proffers of evidence during the hearing[s] on
[Lusby’s] motion to dismiss, it did so without subjecting [him] to the risk
that he would be found guilty, and thus without affecting the interests
protected by the double jeopardy clause.” Olson, 751 F.2d at 1128.
16 UNITED STATES V. LUSBY
whether they made out the proffered defense,” the district
court “ruled that the proffered defense was available, that the
proffered facts supported it, and that Patrick was not guilty.”
Id. at 146. We held that jeopardy had attached.
However, unlike Patrick, where the district court had the
relevant facts before it and made a ruling that was expressly
“based solely upon the facts presented to the [c]ourt in the
offers of proof of the parties” (e.g., “that the victim’s parents
believed her to be in some sort of danger”), id. at 145, the
district court here explicitly acknowledged that it did not
have before it those facts necessary to determine guilt or
innocence. In fact, in addition to stating that it did “not know
all the facts underlying Lusby’s travel to Arizona and back
to Nevada,” the district court here explicitly recognized that
the parties had a fundamental factual dispute at the “crux” of
the case regarding an essential element of the crime, namely
“whether Lusby properly registered in Nevada before he was
transported to Arizona.”
Thus, Hill and Patrick stand for the proposition that
jeopardy may attach where there are no genuine issues of
fact and a dispute over whether to dismiss the indictment is
capable of being decided as a matter of law because, under
those conditions, the defendant can be at risk of being found
guilty based on the district court’s application of the law to
those undisputed facts. As explained above, however, those
circumstances do not apply to the dismissal in Lusby’s case,
in which the district court did not apply the law to any
specific set of facts, and Lusby was never at risk of a finding
of guilt.
We therefore hold that jeopardy never attached, and thus,
we have jurisdiction to consider this appeal.
UNITED STATES V. LUSBY 17
III.
Turning to the merits, we now decide whether a
conviction for violating 18 U.S.C. § 2250(a) requires that the
defendant’s interstate travel not be legally compelled. 6 The
district court reasoned that, if upon Lusby’s release from
custody in Arizona he faced the choice of either returning to
Nevada and “thereby expos[ing] himself to SORNA liability
by traveling in interstate commerce,” or staying in Arizona
and “thereby be[ing] in violation of the terms of [the]
Judgment” that directed him to report in Nevada upon his
release, Lusby’s return to Nevada would have been “legally
compelled.” Animated by that concern, the district court held
that the interstate travel element of SORNA can be satisfied
only if the defendant’s travel is not “legally compelled.” We
disagree.
“As in all cases involving statutory construction, our
starting point must be the language employed by Congress,
and we assume that the legislative purpose is expressed by
6
Although the district court framed its ruling as holding that there
is a “voluntariness element” to the interstate travel element of SORNA,
the Government has conceded for purposes of this case that it must prove
that Lusby’s interstate travel was voluntary, urging us to hold only that
the district court erred in the definition of voluntariness that it adopted
and that voluntariness should instead mean only that conduct was
volitional. Moreover, although the district court defined voluntariness as
meaning that the defendant’s interstate travel must not be “legally or
physically compelled,” the Government’s opening brief does not
challenge the physical compulsion aspect of this ruling. In light of the
Government’s positions, we assume arguendo that the Government must
prove that Lusby’s travel was voluntary (under some definition of that
term) and that it must prove the travel was not physically compelled, and
resolve only the more precise legal issue the parties actually dispute on
appeal: whether the Government must, to obtain a SORNA conviction,
prove that interstate travel was not legally compelled.
18 UNITED STATES V. LUSBY
the ordinary meaning of the words used.” Am. Tobacco Co.
v. Patterson, 456 U.S. 63, 68 (1982) (internal quotation
marks and citations omitted). In relevant part, Section 2250
punishes anyone who: (1) “is required to register under the
Sex Offender Registration and Notification Act,” (2) “travels
in interstate or foreign commerce,” and (3) “knowingly fails
to register or update a registration as required by the Sex
Offender Registration and Notification Act.” 18 U.S.C.
§ 2250(a). Section 2250 also provides that it is an affirmative
defense if “(1) uncontrollable circumstances prevented the
individual from complying; (2) the individual did not
contribute to the creation of such circumstances in reckless
disregard of the requirement to comply; and (3) the
individual complied as soon as such circumstances ceased to
exist.” Id. § 2250(c).
On its face, the statute does not require that the interstate
travel be done in the absence of legal compulsion.
Congress’s inclusion of an affirmative defense for
uncontrollable circumstances—which Lusby does not argue
applies here—further supports the interpretation that
Congress did not intend to provide an additional unwritten
affirmative defense regarding legally-compelled interstate
travel. See, e.g., Boudette v. Barnette, 923 F.2d 754, 756–57
(9th Cir. 1991) (the doctrine of “expressio unius est exclusio
alterius” “creates a presumption that when a statute
designates certain persons, things, or manners of operation,
all omissions should be understood as exclusions”); see also
id. (“if a statute states that a party can invoke an action by [a
certain method], such [method] is presumed the exclusive
manner in which the action may be invoked”).
Absent “a clearly expressed legislative intention to the
contrary,” statutory “language must ordinarily be regarded
as conclusive.” Patterson, 456 U.S. at 68 (internal quotation
UNITED STATES V. LUSBY 19
marks and citation omitted). This is because “[g]oing behind
the plain language of a statute in search of a possibly
contrary congressional intent is ‘a step to be taken
cautiously’ even under the best of circumstances.” Id. at 75,
quoting Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 26
(1977).
We need not go further to dispose of this appeal. But,
even if we were to examine congressional intent, Congress
made its intent clear: Congress enacted SORNA “to protect
the public from sex offenders and offenders against children
. . . [by establishing] a comprehensive national system for
the registration of those offenders.” 34 U.S.C. § 20901. The
statute was “designed to make more uniform what had
remained a patchwork of federal and 50 individual state
registration systems, with loopholes and deficiencies that
had resulted in an estimated 100,000 sex offenders becoming
missing or lost” to state authorities. United States v.
Kebodeaux, 570 U.S. 387, 399 (2013) (internal quotation
marks and citations omitted). Section 2250 “is embedded in
a broader statutory scheme enacted to address the
deficiencies in prior law that had enabled sex offenders to
slip through the cracks.” Carr v. United States, 560 U.S. 438,
455 (2010). Thus, a review of congressional intent reveals
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.
Therefore, the district court’s interpretation carving out
an exception for legally-compelled interstate travel not only
contravenes the plain language of the statute, but it is also
inconsistent with clear congressional intent. The district
court’s interpretation would allow offenders to “slip through
the cracks,” id. at 455, by effectively creating a new
20 UNITED STATES V. LUSBY
“loophole[],” Kebodeaux, 570 U.S. at 399, for offenders
traveling across state lines as long as that travel is legally
compelled—for example, because it was consistent with the
terms of the conditions of their release. Moreover, this
“loophole” would even apply to offenders who do not
ultimately comply with their release conditions (such as by
failing, as Lusby allegedly did, to report to the probation
office or appear at a Halfway House). The fact that such a
loophole is not found anywhere in the text of the statute and
contravenes Congress’s express purposes compels a
conclusion that no such loophole exists. 7
In light of the plain language and purpose behind the
statute, we hold that a conviction under 18 U.S.C. § 2250(a)
does not require that a defendant’s interstate travel not be
legally compelled. We reverse the order dismissing the
indictment and remand with instructions to apply the
elements of Section 2250 as written.
REVERSED AND REMANDED.
7
The district court discounted the concern about “lost” inmates by
explaining that the BOP gives notice to the states upon its releasing
convicts. The parties dispute whether Nevada had notice in Lusby’s
instance, but even if Nevada was notified by the BOP, that is not a
compelling reason to limit Congress’s clear requirement that the offender
must notify the state via the registration system as well. See Robinson v.
Marshall, 66 F.3d 249, 251 (9th Cir. 1995) (generally, a legislature need
not “choose the fairest or best means of advancing its goals”).