Monday, April 4th, 2016

Supreme Court: Sex Offender Who Leaves U.S. For Foreign Country Not Required To Update His Registration In U.S. (UPDATE)

If you move from Kansas to the Philippines, do you still “reside” in Kansas? Seems simple, right? The Supreme Court thought so, too.

In Nichols v. United States, No. 15–5238, the Court said no, in a unanimous, eight-page opinion issued just a month after oral argument.

Lester Nichols was convicted of a sex offense and required to register under SORNA. He lived (and registered) in Kansas for about a year, before he “disconnected all of his telephone lines, deposited his apartment keys in his landlord’s drop-box, and boarded a flight to Manila.” Slip op., at 3. Nicholas was arrested in the Philippines a month later and charged with failing to update his registration in Kansas, in violation of 18 U.S.C. § 2250(a).

Nichols moved to dismiss the indictment, arguing that he was not required to update his registration in Kansas because he no longer “resided” there. The district court denied the motion, Nichols entered a conditional guilty plea, and the Tenth Circuit affirmed.

The Supreme Court reversed on straightforward statutory grounds:

  • Section 2250(a) criminalizes knowingly failing to “update a registration as required” by SORNA.
  • 42 U.S.C. § 16913(a), which defines registration obligations, provides: “A sex offender shall 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.”
  • Section 16913(c), which covers updating one’s registration, provides: “A sex offender shall, not later than 3 business days after each change of … residence, … appear in person in at least 1 jurisdiction involved pursuant to [§ 16913(a)] and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry.”
  • Finally, a foreign country is not a SORNA “jurisdiction.” § 16911(10).

Putting those pieces together, the Court explained:

SORNA therefore requires a sex offender who changes his residence to appear, within three business days of the change, in person in at least one jurisdiction (but not a foreign country) where he resides, works, or studies, and to inform that jurisdiction of the address change. Critically, § 16913(a) uses only the present tense: “resides,” “is an employee,” “is a student.” A person who moves from Leavenworth to Manila no longer “resides” (present tense) in Kansas; although he once resided in Kansas, after his move he “resides” in the Philippines. It follows that once Nichols moved to Manila, he was no longer required to appear in person in Kansas to update his registration, for Kansas was no longer a “jurisdiction involved pursuant to [§ 16913(a)]. Slip op., at 4–5.

Nichols does not skate, however. As the Court points out, his failure to deregister in Kansas violated state law. And, prospectively, the new International Megan’s Law requires sex offenders who travel abroad to provide the jurisdictions in which they’re registered with “anticipated dates and places of departure, arrival, or return, carrier and flight numbers for air travel, destination country and address or other contact information therein, means and purpose of travel, and any other itinerary or other travel-related information required by the Attorney General.” Pub L. No. 114–119, § 6(a)(1)(B). Failure to comply with the reporting requirements is punishable just like any other SORNA offense.

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