Tenth Circuit's Construction Narrows Federal Sex Offender Registry Law

The provision of the federal Sex Offender Registration and Notification Act that makes it a crime to travel interstate and fail to register as a sex offender does not apply to someone whose travel was complete before the law went into effect, the U.S. Court of Appeals for the Tenth Circuit held Nov. 5 (United States v. Husted, 10th Cir., No. 08-6010, 11/5/08).

Congress's use of the present tense “travels” in 18 U.S.C. § 2250(a)(2)(B) plainly indicates that it meant to reach only those who moved between states following the statute's enactment, the court decided.

The statute provides that a person who is a convicted sex offender and “travels in interstate or foreign commerce … and knowingly fails to register” at his destination as required by the act is subject to imprisonment for up to 10 years.

The defendant in this case was convicted of sexually abusing a child in Illinois in 1993. He subsequently moved to Oklahoma and later to Missouri at some point prior to July 27, 2006, the effective date of SORNA. In 2007, a federal grand jury indicted him for traveling interstate and failing to register as a sex offender in Missouri.

The defendant challenged his indictment on the ground that SORNA does not apply to a person whose interstate travel took place before the effective date of the act. The government took the position that the term “travels” applies to anyone who traveled in interstate commerce after having been convicted of a qualifying sex offense. The trial court rejected the defendant's argument but, apparently concerned about ex post facto problems, amended the indictment to reflect that the offense commenced on the date SORNA went into effect.

The defendant pleaded guilty but reserved the right to appeal the denial of his motion to dismiss. The Tenth Circuit, in an opinion by Judge Carlos F. Lucero, reversed.

‘Travels' Is Forward-Looking.

Focusing on the text of the statute, the court concluded that “Congress's use of the present tense form of the verb ‘to travel' indicates that SORNA's coverage is limited to those individuals who travel in interstate commerce after the Act's effective date.” Noting that 1 U.S.C. §1 instructs courts that “words used in the present tense include the future as well as the present” unless a statute's context suggests otherwise, it said, “The Act uses the present tense (‘travels'), which according to ordinary English grammar, does not refer to travel that has already occurred. Had Congress used the past tense (‘traveled') or the present perfect tense (‘has traveled'), then this might be a different case. Here, however, we find no ambiguity in Congress's use of the word ‘travels.'”

Congress also used the present tense in SORNA when referring to entering, leaving, or residing in Indian country, the court said, which makes clear that the use of the present tense “travels” was not a mistake.
The court found support for its holding in the Ninth Circuit's interpretation of the term “travels” as used in the federal statute that makes it a crime to travel in foreign commerce to engage in illegal sex, 18 U.S.C. § 2423(c). In United States v. Jackson, 480 F.3d 1014 (9th Cir. 2007), the court held that Section 2423(c) applies only to travel taking place after the statute's enactment, explaining that “one would not refer in the present tense to something that had already happened.”

Similarly, the Tenth Circuit found the language of Section 2250 unambiguous and held that “Congress's use of the present tense indicates that it was targeting prospective travel.”

The government argued that Congress meant to close a loophole in state registries for sex offenders, and that the failure to sweep up offenders who moved to another state before the law took effect would lead to an absurd result. However, the court responded that the absurdity doctrine applies to unambiguous statutes, such as Section 2250, “in only the most extreme of circumstances.” It explained that “the relevant portion of SORNA is unambiguous, and we cannot say that Congress's choice to regulate only those sex offenders who travel interstate after SORNA's enactment shocks the general moral or common sense.” In fact, the court said, “prospective legislation is typical of the legislative task, and Congress may well have wished to avoid the very ex post facto concern [the defendant] raises before this court.”

The court also rejected an argument that the broad statement of purpose in the preamble to the act under which SORNA falls should be read to trump the specific provision under which the defendant was charged. To do so, it said, “would contravene the axiom that a specific provision controls over a general one.”

Read full article here. [Brooks Holland]