Argued and Submitted Jan. 14, 2013.
Mark D. Eibert (argued), Half Moon Bay, CA, for Defendant-Appellant.
Susan B. Gray (argued), Assistant United States Attorney; Melinda Haag, United States Attorney; Barbara J. Valliere, Assistant United States Attorney, San Francisco, CA, for Plaintiff-Appellee.
Appeal from the United States District Court for the Northern District of California, Susan Illston, Senior District Judge, Presiding. D.C. No. 3:09-cr-00268-SI-1.
Before: JOHN T. NOONAN, A. WALLACE TASHIMA, and SUSAN P. GRABER, Circuit Judges.
Opinion by Judge Tashima; Dissent by Judge Graber.
TASHIMA, Circuit Judge:
Alexander DeJarnette is a federal sex offender who failed to register as such and was convicted of violating the Sex Offender Registration and Notification Act (" SORNA" ). Pub.L. No. 109-248, 120 Stat. 587 (codified at 42 U.S.C. §§ 16901 et seq., 18 U.S.C. § 2250 (2006)). On appeal, he challenges the district court's interpretation of SORNA as imposing upon him an obligation to register in the jurisdiction of his sex-offense conviction, the Northern District of California, even though the evidence shows that he resided in a different jurisdiction (the State of Georgia) throughout the period charged in his indictment. He contends that, because he had no legal duty to register in the Northern District of California, the district court's contrary jury instruction was erroneous as a matter of law, venue was improper in the Northern District of California, and his nonregistration conviction is not supported by sufficient evidence. We have jurisdiction under 28 U.S.C. § 1291 and, for the following reasons, we reverse the conviction.
In 2001, in the U.S. District Court for the Northern District of California, DeJarnette was convicted of two counts of transporting minors with intent to engage in prostitution and criminal sexual activities, in violation of 18 U.S.C. § 2423(a), and one count of transportation with intent to engage in prostitution and criminal sexual activity, in violation of 18 U.S.C. § 2421. In his guilty plea, DeJarnette acknowledged that he may be required to register as a sex offender under state or federal law. He was sentenced to 96 months' imprisonment and 36 months' supervised release. Corrections officials at the United States Penitentiary in Lompoc, California, where DeJarnette was incarcerated, informed him of his duty to register as a sex offender in any state where he resided, was employed, or attended school; DeJarnette refused to sign the notification form.
DeJarnette entered the supervised-release program in 2006. The terms of his supervised release prohibited DeJarnette from leaving the judicial district without permission of the court or a probation officer. With regard to sex-offender registration, the terms of his supervised release additionally stated:
If required by the state to which the defendant is released from custody, and if so directed by the U.S. Probation Officer, the defendant is ordered to report, as directed by the United States Probation Officer, to the local law enforcement authority so that they may determine whether he must register as a sex offender.
Judgment at 4, United States v. DeJarnette, No. 3:99-cr003510SI-1 (N.D.Cal. Feb. 21, 2001), ECF No. 116.
In January 2007, a federal probation officer notified DeJarnette of his duty under California law to register as a sex offender; he refused to sign the notification form. DeJarnette asserts that he then unsuccessfully challenged the registration requirement in state court.
Later that month, the probation officer petitioned the district court in the Northern District of California for a supervised release violation summons, alleging that DeJarnette had violated the terms of his supervised release by failing to register as a sex offender. DeJarnette was found
guilty of violating several other conditions of his supervised release, and the court warned DeJarnette to register as a sex offender by March 13, 2008, or else be found in violation of the registration condition as well. A warrant was issued for his arrest. DeJarnette did not register.
On March 17, 2008, the government asked the district court to impose an additional supervised release condition requiring that DeJarnette register as a sex offender pursuant to SORNA. DeJarnette absconded.
Authorities apprehended DeJarnette in Atlanta, Georgia, in December 2008. He maintains that he resided in Georgia in the months preceding his arrest. DeJarnette had not registered as a sex offender in Georgia.
In March 2009, a grand jury in the Northern District of California indicted DeJarnette on charges of violating SORNA by failing to register as a sex offender beginning on or about March 14, 2008. The district court dismissed the indictment, holding that it violated the terms of DeJarnette's plea agreement. The government appealed, and this Court reversed and remanded. United States v. Dejarnette, 403 Fed.Appx. 188 (9th Cir.2010).
SORNA was enacted on July 27, 2006— more than five years after DeJarnette was convicted of a registrable sex offense. In 2010, we determined that SORNA's " retroactivity provision" — the provision that imposes registration requirements on pre-Act offenders like DeJarnette— " did not become effective until August 1, 2008." United States v. Valverde, 628 F.3d 1159, 1160 (9th Cir.2010). In response to our Valverde decision, the government obtained a superseding indictment that charged DeJarnette with violating SORNA by failing to register as a sex offender in the Northern District of California between August 2, 2008 and December 27, 2008.
Before trial, DeJarnette objected to the government's proposed jury instruction setting forth the registration requirements under SORNA. The proposed instruction stated in pertinent part:
SORNA requires a sex offender initially to register in the jurisdiction in which the sex offender was convicted of the sex offense that led to the registration requirement, if this jurisdiction is different from the jurisdiction of residence.
United States' Proposed Jury Instructions at 36, ECF No. 197. DeJarnette argued that the instruction misstated the law and that he was under no SORNA obligation to register in the Northern District of California. The government construed DeJarnette's opposition to the instruction as a claim of improper venue and asked the court for a pretrial ruling on venue, so as to preserve the government's right to appeal an adverse ruling before jeopardy attached. On the eve of trial, the district court ruled that DeJarnette " had a duty to complete his initial registration pursuant to SORNA in the district in which he was convicted— this [Northern] District [of California]— even if it was different from his jurisdiction of residence at that time[,]" and that the jury would be so instructed. Order, ECF No. 205.
At the conclusion of a two-day trial, the jury was instructed that " SORNA requires a sex offender initially to register in the jurisdiction in which the sex offender was convicted of the sex offense that led to the registration requirement, if this jurisdiction
is different from the jurisdiction of residence." Instructions to Jury at 6, ECF No. 214. The jury was also instructed on the elements of the nonregistration offense, including the government's burden of showing " [t]hat during the time in between August 2, 2008 and December 27, 2008 in the Northern District of California, the defendant knowingly failed to register or keep his registration current as required by SORNA." Id. DeJarnette was convicted and sentenced to 37 months' imprisonment followed by five years' supervised release.
We review de novo the district court's interpretation of SORNA. See United States v. Mattix, 694 F.3d 1082, 1084 (9th Cir.2012); United States v. Begay, 622 F.3d 1187, 1193 (9th Cir.2010). We also review de novo DeJarnette's challenges to the jury instructions, the sufficiency of the evidence, and the propriety of venue. See United States v. Sullivan, 522 F.3d 967, 974 (9th Cir.2008); United States v. Valdez-Santos, 457 F.3d 1044, 1046 (9th Cir.2006); United States v. Shipsey, 363 F.3d 962, 967 n. 3 (9th Cir.2004).
SORNA requires that all state and federal sex offenders " 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). Subsection (a) of the statute further provides that, " [f]or initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence." Id.
Subsection (b) then explains that offenders " shall initially register" as follows:
(1) before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement; or
(2) not later than 3 business days after being sentenced for that offense, if the sex offender is not sentenced to a term of imprisonment.
§ 16913(b). As the text makes clear, subsection (b) sets forth a forward-looking scheme: it addresses offenders who, at the time of SORNA's enactment, were not yet subject to reporting obligations because they were still incarcerated, § 16913(b)(1), or had not yet been sentenced for the sex offense, § 16913(b)(2). Thus, the " initial registration" scheme described in subsections (a) and (b) does not, by its terms, apply retroactively to pre-Act offenders— individuals like DeJarnette, whose 2001 sex-offense convictions long pre-date SORNA's 2006 enactment. See Reynolds v. United States,
__ U.S. __, 132 S.Ct. 975, 982, 181 L.Ed.2d 935 (2012) (noting that subsection (b) " says nothing about when a pre-Act offender who completed his prison term pre-Act must register" ).
The government argues the " initial registration" requirement of registration in the jurisdiction of the sex offense conviction (where different from the jurisdiction of residence) nonetheless applies to pre-Act offenders like DeJarnette. It points to subsection (d) of the statute, which carries the title " [i]nitial registration of sex ...