United States Court of Appeals
For the First Circuit
No. 09-1047
UNITED STATES OF AMERICA,
Appellee,
v.
BRUCE GAGNON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Boudin, Selya and Gajarsa,*
Circuit Judges.
J. Hilary Billings, with whom Eric A. Vos, Federal Public
Defender, was on brief, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.
September 28, 2010
*
Of the Federal Circuit, sitting by designation.
SELYA, Circuit Judge. Defendant-appellant Bruce Gagnon
challenges his conviction under the Sex Offender Registration and
Notification Act (SORNA), Pub. L. No. 109-248, tit. I, §§ 101-155,
120 Stat. 587, 590-611 (2006). This is a "gap" case — the offense
charged was committed in the interim between Congress's passage of
SORNA and the Attorney General's issuance of an implementing rule.
The recent decision of this court in United States v. DiTomasso,
___ F.3d ___ (1st Cir. 2010) [No. 08-2567], disposes of the
principal claims raised in this proceeding.1
We presume the reader's familiarity with our DiTomasso
opinion, and we refrain from repastinating that well-ploughed
ground. Insofar as Gagnon's claims resemble DiTomasso's, we reject
them for the reasons elucidated in our earlier opinion.
Although incorporating DiTomasso by reference shortens
our journey, two issues not addressed in DiTomasso remain. The
facts needed to put them into perspective are straightforward.
In December of 2000, Gagnon was convicted of a sex
offense in New Hampshire (his state of residence). He was required
by New Hampshire law to register as a sex offender, and he did so.
He kept his registration current until July of 2005, when he failed
to update it. As a result, he was charged with violating a state
1
Due to the similarity of issues, Gagnon's appeal and
DiTomasso's appeal were argued before us on the same date.
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registration law. See N.H. Rev. Stat. Ann. §§ 651-B:4 to 651-B:6.
He was convicted later that year.
In December of 2006, Gagnon traveled from New Hampshire
to Maine. On February 2, 2007, he signed a lease for an apartment
in Maine. Despite this change of residence, he neither notified
the New Hampshire authorities of his move nor registered as a sex
offender in Maine, where such registration was required. See Me.
Rev. Stat. tit. 34-A, § 11202(2).
On February 21, 2007, United States Marshals arrested
Gagnon. Shortly thereafter, a federal grand jury indicted him for
violating a SORNA provision, 18 U.S.C. § 2250(a). The indictment
alleged that Gagnon had transgressed the federal law by failing to
register as a sex offender in Maine "on about February 2, 2007."
These dates are important. Although SORNA was enacted on
July 27, 2006, Gagnon argued below that, for various reasons, the
federal statute could not constitutionally be applied in this case
because both his interstate travel and his failure to register in
Maine occurred prior to February 28, 2007 — the date on which the
Attorney General promulgated an interim rule touching upon the
applicability of SORNA's registration requirements to previously
convicted sex offenders. See DiTomasso, ___ F.3d at ___ [slip op.
at 6-7] (discussing promulgation of interim rule and attendant
circumstances); see also 42 U.S.C. § 16913(d) (authorizing Attorney
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General to undertake rulemaking in connection with SORNA's
registration requirements).
The district court rejected Gagnon's arguments. United
States v. Gagnon, 574 F. Supp. 2d 172, 176-79 (D. Me. 2008).
Following conviction and sentencing, Gagnon filed this appeal.
Gagnon repeats the same arguments on appeal. Our opinion
in DiTomasso is dispositive of the issue of the effective date of
SORNA's registration requirements vis-à-vis most previously
convicted sex offenders (including Gagnon). See DiTomasso, ___
F.3d at ___ [slip op. at 18]. That opinion spells out the reasons
why Gagnon's view of the significance of the Attorney General's
interim rule is misguided. See id. at ___ [slip op. at 13-18].
The date of SORNA's applicability to such offenders is no longer
open to debate, and that date — July 27, 2006 — precedes the events
at issue here.
The same opinion also recognizes that Congress acted
within the scope of its authority under the Commerce Clause, U.S.
Const. art. I, § 8, cl. 3, when it enacted SORNA's registration
requirements. See DiTomasso, ___ F.3d at ___ [slip op. at 19-21].
That holding defenestrates Gagnon's Commerce Clause claim.
Gagnon makes two arguments that were not addressed in
DiTomasso. First, he posits that the rule of lenity requires a
construction of the statute that would invalidate his conviction.
We examine this contention.
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The rule of lenity requires a court to resolve "true
statutory uncertainty" in favor of the defendant in a criminal
case. United States v. Ahlers, 305 F.3d 54, 62 (1st Cir. 2002).
For present purposes, however, this rule is inapposite. When a
criminal statute has a "clear and plausible meaning," the rule of
lenity does not apply. Id. Put another way, "[i]t is only when no
reasonably clear meaning can be gleaned from the text of a statute,
leaving courts to guess at what Congress intended, that the rule of
lenity comes into play." Id.
That is not the case here. As we explained in DiTomasso,
___ F3d. at ___ [slip op. at 18], we do not find the relevant
statutory provision — 42 U.S.C. § 16913(d) — ambiguous. Rather,
when read in the full context of the statutory scheme, that
subsection, as of the date of SORNA's enactment, clearly and
unambiguously imposed an obligation on previously convicted sex
offenders to register within three business days of moving to a new
state. Given this easily discernible meaning, Gagnon's attempt to
invoke the rule of lenity must fail.
Gagnon's remaining argument is no more persuasive. He
insists that his due process rights were infringed because he did
not have fair warning of his duty to register under SORNA. This
premise is the functional equivalent of a plea that he was
justifiably ignorant of the effect of the new federal law until the
Attorney General promulgated the interim rule. Such a plea runs
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headlong into the venerable axiom that "ignorance of the law is no
excuse." United States v. Robinson, 137 F.3d 652, 654 (1st Cir.
1998).
Of course, that axiom states a general rule, and there is
an exception where the challenged conduct was "wholly passive" and
there were not attendant circumstances alerting the defendant to
the consequences of the conduct. Lambert v. California, 355 U.S.
225, 228 (1957). Gagnon seeks to wedge his case within the
contours of this exception. He does not succeed.
This exception is narrow. See United States v. Meade,
175 F.3d 215, 225-26 (1st Cir. 1999). This case does not fit
within it because, long before SORNA was enacted, Gagnon knew (or,
at least, was chargeable with knowledge) of his obligation to
register under state law and to keep his registration current.
That this notice did not specifically inform him that
failure to register under state law would also constitute a
violation of federal law does not render the notice impotent for
purposes of the case at hand. What counts is that Gagnon was on
clear notice, at the relevant time, that a failure to register
would place him on the wrong side of the law. We therefore join
several other courts that have held that notice of a defendant's
obligation to register as a sex offender under state law provides
him with effective notice of his corresponding obligation to
register under SORNA. See, e.g., United States v. Hinckley, 550
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F.3d 926, 938-39 (10th Cir. 2008), cert. denied, 129 S. Ct. 2383
(2009); United States v. May, 535 F.3d 912, 921 (8th Cir. 2008),
cert. denied, 129 S. Ct. 2431 (2009). Because Gagnon had such
notice, the requirements of the Due Process Clause are satisfied.
We need go no further. For the reasons elucidated in our
opinion in DiTomasso and augmented here, we affirm the judgment of
conviction.
Affirmed.
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