Tenth Rejects Extended Vacation Defense in SORNA Case

U.S. v. Forster, 2013 WL 6334796 (12/6/13) (N.M.) (unpub'd) - The 10th affirms the defendant's SORNA conviction and sentence. The government's theory was that the landlord asked the defendant to leave his residence in Mesquite, NM; the defendant traveled to the Philippines, leaving behind at his residence some personal possessions, including his car; he returned several months later to Hobbs and notified the Hobbs sheriff of his change of residence from Mesquite to Hobbs. The 10th finds sufficient evidence of a knowing failure to report a change in residence because the evidence supported the notion that the defendant abandoned his living place, rather than as the defense contended, taking an extended vacation. A sex offender has an obligation to report a residence change even if he doesn't establish a new residence. The government's evidence indicated the defendant was asked to leave the residence and engaged in various activities in the Philippines consistent with establishing a residence. The defendant's leaving possessions at the old residence and visiting that residence for a couple of days or a week in the interim did not necessarily establish a reasonable doubt, although the defendant's argument was "not entirely unreasonable." The government offered evidence showing the defendant knew he was required to update his registration in light of any change in his address, i.e., he acknowledged receipt of an instructional registration document and, in the category of no good deed goes unpunished, notified the Hobbs sheriff of his address change. In a footnote the 10th explicitly notes the defendant was not claiming he had to know his conduct violated SORNA, while citing case law holding that SORNA does not require such knowledge.

It was okay to refuse to instruct the jury that residence depends on intent and a person has not effectively abandoned his current residence by traveling. The jury instructions the court gave properly communicated that there is a change in residence that must be reported where the defendant no longer habitually lives at the same residence as the one listed in the register. The 10th finds there was no basis to conclude the government presented two different ways for the defendant to be convicted, i.e., moving to Hobbs soon after leaving the Mesquite residence or going to the Philippines. Its sole theory was that the defendant failed to update his registration when he left Mesquite. Evidence about where he went later on was offered merely to show he did not intend to return to Mesquite.

The defendant's prior Ohio offense of gross sexual imposition is a tier III offense. Its elements are "comparable" to "abusive sexual contact under 18 U.S.C. § 2244 against a minor who has not attained the age of 13 years" under 42 U.S.C. § 169114)(A)(ii). The 10th says it's far from clear the categorical approach applies when determining tier levels, but uses that approach in this case because it works well enough to reject the defendant's contentions. The only difference the 10th sees is that the Ohio statute applies to victims under 13 whereas § 2244 applies only to those under 12. The 10th notes the statutes only have to be "comparable" not identical and the § 16911 definition includes victims under 13. Both statutes punished sexually-oriented touching, whether directly or through clothing, of an erogenous zone. That the jurisdictional elements differ [in U.S. jurisdictions vs. in Ohio] is immaterial. And the district court didn't clearly err when it refused to apply a downward adjustment under § 2A3.5(b)(2) for the defendant voluntarily correcting his failure to register by updating his registration in Hobbs. The d ct. could find that the defendant's corrective action wasn't genuine and free from guile because he told the sheriff he was moving from Mesquite to Hobbs and didn't mention the Philippines, thus perpetuating the false claim that he had been living in Mesquite the last several months. And also the defendant didn't really correct his registration record because he didn't mention his travels to the Philippines.