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United States v. Elias

United States District Court, S.D. Texas, Laredo Division

August 12, 2019

UNITED STATES OF AMERICA
v.
FERNANDO PAY ELIAS

          ORDER

          MARINA GARCIA MARMOLEJO UNITED STATES DISTRICT JUDGE

         Defendant was indicted for failing to register under the Sex Offender Registration and Notification Act (SORNA). (Dkt. No. 8 at 1). Pending before the Court is his Motion to Dismiss the Indictment (Dkt. No. 32), which argues that the indictment should be dismissed because (1) SORNA impermissibly delegates authority to the Attorney General and (2) this Court lacks jurisdiction because the Southern District of Texas is an improper venue. (Dkt. No. 32 at 1). The Government filed a response (Dkt. No. 35) rejecting both grounds, and the Court held a hearing on July 9, 2019. At that hearing, the Court DENIED dismissal based on Defendant's improper-delegation argument because of the Supreme Court's recent ruling in Gundy v. United States. See 139 S.Ct. 2116, 2129 (2019) (holding that SORNA does not improperly delegate authority to the Attorney General). The Court now holds that the improper-venue argument also fails. Defendant's Motion to Dismiss the Indictment (Dkt. No. 32) is therefore DENIED.

         I. Background

         In 2003, a North Dakota state court convicted Defendant for Gross Sexual Imposition and sentenced him to ten years imprisonment. (Dkt. No. 35 at 2). Congress subsequently passed SORNA, which-together with the Attorney General's final regulation-required those convicted of sex crimes (both pre- and post-SORNA) to register in their state of residence. (Id.).

         Defendant originally complied with the Act, signing the North Dakota Offender Registration Notice/Acknowledgement and Registration. (Id. at 2-3). He again complied when he moved to Laredo in 2017 and signed the Texas Sex Offender Registration Program Form. (Id.). With his next move however he did not comply.

         Within a year of his move to Texas, Defendant moved to Arizona. (Id.). Defendant neither informed Texas authorities of his move nor registered as a sex offender in Arizona. (Id.). On March 12, 2019, Defendant was indicted and charged with failure to register as a sex offender in violation of 18 U.S.C. § 2250(a). (Dkt. No. 32).

         II. Legal Standard

         A. SORNA

         SORNA "establishes a comprehensive national system for the registration of [sex] offenders," 34 U.S.C. § 20901, by requiring sex offenders 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." 34 U.S.C. § 20913(a). To keep the registration current, sex offenders must "not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry." Id. at 20913(c). It is then incumbent upon the notified jurisdiction to "immediately provide that information to all other jurisdictions in which the offender is required to register." Id.

         A state sex offender violates SORNA only if the following elements are satisfied in sequence: "an offender must (1) be required by SORNA to register; then (2) travel in interstate or foreign commerce; and then (3) knowingly fail to register or update a registration as required by SORNA." United States v. Byrd, 419 Fed.Appx. 485, 488 (5th Cir. 2011) (per curiam) (citing United States v. Carr, 560 U.S. 438 (2010)); see also 18 U.S.C. § 2250(a). The government need not prove that the sex offender traveled interstate specifically intending to avoid a registration requirement. Id. (citing Carr, 560 U.S. at 447). Such a violation is punishable by a fine or a prison term of up to 10 years. 18 U.S.C. § 2250(a).

         B. Venue

         The Sixth Amendment to the U.S. Constitution guarantees a defendant the right to a trial by "an impartial jury of the State and district wherein the crime shall have; been committed." U.S. CONST, amend. VI; see also FED. R. CRIM. P. 18 ("[T]he government must prosecute an offense in a district where the offense was committed."). That does not mean that a particular crime may always be prosecuted in one and only one district. Many crimes occur in more than one district, and therefore "any offense . . . begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed." 18 U.S.C. § 3237(a); see United States u. Bullock, 451 F.2d 884, 889 (5th Cir. 1971) ("18 U.S.C.A. § 3237 expressly fixes venue for the prosecution of those crimes which are begun in one district and completed in another. Under the terms of that statute, such a crime may be prosecuted in any district where it was 'begun, continued, or completed.'"). Thus "whether venue is proper in a particular district turns on the elements of the i underlying crime and where the acts satisfying those elements occurred." United States v. Holcombe, 883 F.3d 12, 15 (2d Cir. 2018); see also United States v. Rodriguez-Moreno, 526 U.S. 275, 279 (1999) ("[T]he locus delicti [of the charged offense] must be determined from the nature of the crime alleged and the location of the act or acts constituting it. In performing this inquiry, a court must initially identify the conduct constituting the offense (the nature of the crime) and then discern the location of the commission of the criminal acts." (citations and internal quotation marks omitted)).

         Venue also lies in multiple districts if the particular crime being prosecuted is a continuing offense. Section 3237(a) states, "Any offense involving ... transportation in interstate . . . commerce ... is a continuing offense and . . . may be inquired of and prosecuted in any district from, through, or into which such commerce ... or person moves." 18 U.S.C. § 3237(a).

         III. Analysis

         A. Jurisdiction is proper in the Southern District of Texas because interstate travel is an essential element of a ...


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