United States v. Pietrantonio

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 09-3068
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United States of America, *
*
Appellee, *
* Appeal from the United
v. * States District Court for
* the District of Minnesota.
Dennis Edward Pietrantonio, *
*
Appellant. *
___________

Submitted: October 19, 2010
Filed: March 15, 2011
___________

Before MURPHY, BEAM, and BENTON, Circuit Judges.
___________

BEAM, Circuit Judge.

Dennis Pietrantonio appeals his conviction for failing to timely register or
update his registration as a convicted sex offender, in violation of the federal Sex
Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a). We
reverse.

I. BACKGROUND

In November 2004, Pietrantonio was convicted and sentenced in Minnesota
state court of solicitation of a minor to engage in sexual activity. Upon his release, he
was required to register as a sex offender in Minnesota pursuant to Minnesota state
law, and he was informed of this requirement by his state probation officer.
Following a return to prison in early 2007 for a parole violation, Pietrantonio was
released in late July 2007 and returned to Hibbing, Minnesota. However, he was not
welcome at a place called Stover House, where he had resided prior to his latest period
of incarceration, nor was he welcome at his daughter Kim's apartment complex in
Hibbing. Accordingly, he was homeless in Hibbing, though Kim and her husband,
James Koch, helped him manage his severe diabetes by keeping his insulin
refrigerated and bringing it to him for administration in various parking lots around
Hibbing. Despite being homeless in August 2007, Pietrantonio complied with his
registration requirements by notifying the police department each time he moved his
belongings to a different parking lot in Hibbing. Shortly after their first meeting on
July 30, 2007, Pietrantonio informed Officer Stark, the police officer in charge of sex
offender registration in Hibbing, that he and his daughter's family were planning a
move to Las Vegas, Nevada, although he did not specify when exactly they would
move. Shortly before the family left for Las Vegas on August 31, 2007, Pietrantonio
and Koch spoke with a Hibbing police officer about the sex offender registration
requirements upon moving. Because Officer Stark was on sick leave that day,
Pietrantonio and Koch spoke with another officer who allegedly erroneously informed
them that Pietrantonio did not need to fill out any forms prior to leaving Hibbing.

Once Pietrantonio got to Las Vegas and the family secured an apartment, he
called his daughter's former apartment manager in Hibbing and gave her his new
address. Evidence at trial suggested that Officer Stark received this information from
the apartment manager. Nonetheless, upon learning that Pietrantonio had left the
jurisdiction, Officer Stark signed a state court complaint charging Pietrantonio with
failing to leave a forwarding address in violation of Minnesota's sex offender registry
laws. A Minnesota warrant was issued for his arrest.

Soon after arriving in Nevada, Pietrantonio was briefly hospitalized. Kim
signed a Las Vegas apartment lease on September 4, 2007, and Koch assisted

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Pietrantonio in obtaining a Nevada driver's license on September 10, 2007. He then
filled out his required Nevada sex offender registry form on September 14, 2007,
falsely claiming that he had been in Nevada for only four days.

Eventually Las Vegas authorities began looking for Pietrantonio based upon the
Minnesota warrant. When officers went to Pietrantonio's listed address in February
2008, he was not there. In early January 2008, Pietrantonio took a bus cross-country
to Boston, Massachusetts. One of Pietrantonio's trial witnesses, who completed part
of the bus trip with him, testified that Pietrantonio went to Boston only to visit another
daughter and to obtain medical care, not to live permanently. On cross-examination,
this same witness admitted that Pietrantonio said while on the bus trip that the Las
Vegas environment was not for him. While in Massachusetts, Pietrantonio's health
problems worsened, and he was hospitalized for nearly two months in Boston. His
medical records indicate that he told hospital officials that he did not reside in
Massachusetts, but that he was visiting his daughter, and that he lived in Nevada. He
did not register as a sex offender in Massachusetts during the time he was in Boston.
On April 15, 2008, Pietrantonio was arrested by federal marshals in Massacusetts on
the outstanding Minnesota warrant. After Pietrantonio's arrest, authorities returned
him to Minnesota, and a federal grand jury charged him in a single-count indictment
with a SORNA violation.

The indictment read as follows:

From on or about September 14, 2007 through on or about April 15,
2008, in the State and District of Minnesota, the defendant, DENNIS
EDWARD PIETRANTONIO, a person required to register under
[SORNA], traveled in interstate commerce and did knowingly fail to
update a registration as required by [SORNA], all in violation of Title
18, United States Code, Section 2250(a) and Title 42, United States
Code, Sections 16911 and 16913.

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 The dates in the indictment suggest that the government's theory encompassed
Pietrantonio's failure to update his Minnesota registration and/or failure to timely
register in Nevada, as well as his failure to register at all in Massachusetts. Prior to
trial, Pietrantonio moved to dismiss the indictment, arguing that it contained
inadequate factual support to fully apprise him of the charges, and also that the eight-
month time frame left him to speculate about when, exactly, the government alleged
that the offense occurred. Finally, Pietrantonio alleged that the indictment was
defective because it only alleged a Minnesota violation when two other jurisdictions
were potentially involved. The district court denied the motion to dismiss, finding
that the indictment sufficiently put Pietrantonio on notice regarding the elements of
the offense and the relevant dates, and gave him the ability to plan his defenses
accordingly. United States v. Pietrantonio, No. 08-170, 2008 WL 4205546, at *5 (D.
Minn. Sept. 9, 2008).

At trial, Koch testified that Pietrantonio believed, based on the Hibbing police
officer's advice, that he had complied with Minnesota laws by calling to give a
forwarding address to the apartment manager. Koch also testified that, once in Las
Vegas, Pietrantonio had to obtain a driver's license before he could register with an
official address. Koch explained that he helped Pietrantonio register in Las Vegas as
soon as was practicable, which turned out to be September 14, 2007. Pietrantonio's
remaining witnesses generally supported the theory that Pietrantonio complied with
Minnesota forwarding requirements by speaking with the police before he left, that
he registered in Nevada as soon as he was physically able, and that he did not move
to Massachusetts, but rather was there to visit his daughter and obtain healthcare.

The jury found Pietrantonio guilty of the charge articulated in the one-count
indictment, and the court sentenced him to twenty-four months' imprisonment. On
appeal, Pietrantonio argues, among other things, that the indictment was defectively
duplicitous.

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II. DISCUSSION

SORNA is codified at 42 U.S.C. §§ 16901-16991, and § 16913 provides in part,

(a) In general

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. For initial registration
purposes only, a sex offender shall also register in the jurisdiction in
which convicted if such jurisdiction is different from the jurisdiction of
residence.
....
(c) Keeping the registration current

A sex offender shall, 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) of
this section and inform that jurisdiction of all changes in the information
required for that offender in the sex offender registry. That jurisdiction
shall immediately provide that information to all other jurisdictions in
which the offender is required to register.

If a sex offender fails to register under § 16913, he or she can be prosecuted
under 18 U.S.C. § 2250. Section 2250 states that sex offenders required to register
under SORNA who knowingly fail to register or update a registration as required by
SORNA can be fined and/or imprisoned up to ten years.

We review an allegedly duplicitous indictment de novo. United States v.
Nattier, 127 F.3d 655, 657 (8th Cir. 1997). Federal Rule of Criminal Procedure 8(a)
provides that the government may charge two or more connected offenses in the same
indictment, as long as each is charged in a separate count. "Duplicity," meaning that

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two or more distinct and separate offenses are joined in a single count, is problematic
because it might lead the jury to convict without unanimous agreement on the
defendant's guilt with respect to a particular offense. Nattier, 127 F.3d at 657.
Nonetheless, the Sixth Amendment right to a unanimous jury verdict, imperiled with
a duplicitous indictment, may be cured by a limiting instruction requiring the jury to
unanimously find the defendant guilty of at least one distinct act. Id.1 The Sixth
Amendment also requires that a trial be held in the state and district where the crime
was committed. United States v. Stanko, 528 F.3d 581, 584 (8th Cir. 2008).

Pietrantonio argues that the government improperly charged him with more
than one SORNA offense in a single indictment. The government's theory of the case
at trial, and initially on appeal, was that the fact pattern here involved one continuing
violation of SORNA. See generally United States v. George, 625 F.3d 1124, 1131
(9th Cir. 2010) (holding that the crime of failing to register as a sex offender is a
continuing offense–if the convicted sex offender does not register by the end of the
third day after he changes his residence, he violates SORNA, and the violation
continues until he is arrested or registers). However, at oral argument, the government
conceded that the indictment was duplicitous, and now admits that Pietrantonio's
single-count indictment charges two violations–one for the time frame before
September 14, which included Pietrantonio's move from Minnesota to Nevada, and
a second for the time frame following September 14, which included his alleged move
from Nevada to Massachusetts.

1
The government argues Pietrantonio waived the duplicity argument by not
raising it in a motion to dismiss prior to trial. United States v. Spencer, 592 F.3d 866,
874 (8th Cir. 2010) (holding that if the defendant does not object to an allegedly
duplicitous indictment prior to trial, he waives the issue). Having reviewed the pre-
trial record, we find that Pietrantonio adequately raised the substance of the issue prior
to trial, even though he did not use the word "duplicitous" in his motion to dismiss the
indictment. Accordingly, we fully review the issue.

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 The government's theory at trial was that the September 14 Nevada registration
did not "stop" this continuing violation, because the registration was somehow
defective–either because Pietrantonio lied about the length of time he had been in
Nevada when he registered, or because he had provided a false address. The latter of
these two contentions turned out to be the government's misunderstanding based upon
the fact that Pietrantonio's Nevada registry verification letter was erroneously returned
as undeliverable. It is now undisputed that Pietrantonio provided a correct address to
Nevada officials. That Pietrantonio lied about the length of time he had been in
Nevada when he registered is relevant only to whether Pietrantonio failed to timely
update his registration when he moved from Minnesota to Nevada, not whether he
registered at all. As the government now recognizes, the first violation ceased to be
"continuing" when Pietrantonio registered in Nevada. Indeed, all of the courts that
have recognized a "continuing" SORNA violation have found that the violation
continues until the defendant is arrested or registers. Id.; United States v. Dixon, 551
F.3d 578, 582 (7th Cir. 2008), overruled on other grounds by Carr v. United States,
130 S. Ct. 2229 (2010); United States v. Hinckley, 550 F.3d 926, 936 (10th Cir.
2008). Accordingly, the government's continuing violation theory was no longer
viable once it became clear that Pietrantonio's Nevada registration, though possibly
untimely, contained a valid street address.

The government alleges, however, that even though the indictment was
duplicitous, and a specific "unanimity" instruction was not given (such an instruction
was not requested by either party), the jury instructions actually cured the duplicity
problem. The government points to instruction nine, which states:

The crime of failure to register as a sex offender, as charged in the
indictment, has three elements, which are: One: From on or about
September 14, 2007 through on or about April 15, 2008, in the State and
District of Minnesota, the defendant was required to register under
[SORNA]; Two: The defendant traveled in interstate or foreign

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 commerce; and Three: The defendant knowingly failed to update his
registration as required by [SORNA].

As to the first element, the parties have stipulated that during the time
period charged in the indictment, the defendant was required to register
under [SORNA], and you may treat this element as proven.

If all of these elements have been proved beyond a reasonable doubt as
to the defendant Dennis Edward Pietrantonio, then you must find the
defendant guilty of the crime charged; otherwise you must find the
defendant not guilty of this crime.

We fail to see how instruction nine cures the government's admittedly
duplicitous indictment. The parties stipulated to element one, which, as we read it,
simply sets forth the conclusion that Pietrantonio was a person subject to SORNA's
requirements. Insertion of the terms "District of Minnesota" does not ensure that all
twelve members of the jury agreed that a crime occurred in Minnesota, especially
when the jury was instructed to consider that element proven. The remaining two
elements to be found by the jury were that Pietrantonio traveled in interstate
commerce, and that he failed to update a registration. Element three did not request
any specific finding as to where the defendant knowingly failed to update his
registration, and the evidence at trial suggested that it could have occurred in
Minnesota, Nevada and/or Massachusetts.

The remaining jury instructions provide no further illumination. For example,
instruction eleven detailed the elements of a SORNA violation, including the three-
day rule, the meaning of the term "resides," and the fact that it is for the jury to decide
whether the defendant traveled to and was habitually living in another state so as to
trigger his duty to update the registration. Additionally, the jury was given an
affirmative defense instruction. Instruction twelve tracked the statutory language that
it is considered an affirmative defense if the defendant proves that uncontrollable
circumstances, not created by the defendant, kept him from complying with

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registration requirements, and that he complied as soon as those circumstances ceased
to exist, 18 U.S.C. § 2250(b).

As we read the record and the instructions, we are left with the unavoidable
conclusion that the jury may not have been unanimous, in violation of Pietrantonio's
Sixth Amendment rights. Plainly, a portion of the jury could have concluded that
Pietrantonio was not justified in registering more than three days after arriving in
Nevada. These same jury members may have concluded that Pietrantonio did not
actually move to Massachusetts, but only went there to visit his daughter and obtain
medical care in Boston. Simultaneously, other jury members might have believed
Pietrantonio's affirmative defense that his physical ailments and lack of ability to
freely travel justified his failure to timely register in Nevada, but did not believe his
story about visiting Massachusetts. These members may have believed Pietrantonio
intended to reside in Massachusetts and thus voted to convict based upon his failure
to update his registration following his move to Massachusetts. Or maybe all twelve
believed Pietrantonio was guilty of both violations. We simply do not know. Neither
the record nor the jury instructions shed any further light on the situation.

Complicating our instant analysis is the fact that, even though the government
has now conceded duplicity, the indictment is not actually duplicitous on its face.
Instead, the indictment was rendered duplicitous by the evidence presented at trial.
Cf. United States v. D'Amico, 496 F.3d 95, 100 (1st Cir. 2007) ("[T]he fact that an
indictment is not duplicitous on its face of course does not guarantee that a jury
verdict will be unanimous, based on the evidence actually presented."), vacated on
other grounds by 552 U.S. 1173 (2008) (mem.). It was not until the government
presented evidence of the possible Massachusetts violation that the indictment became
duplicitous, and this, as previously noted, created the potential for a Sixth Amendment
jury unanimity problem. Id. However, it may have been Pietrantonio's burden to
request a unanimity instruction. See id. at 100-01 (holding that it was defendant's
burden to request a unanimity instruction, and his failure to do so rendered the issue

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unreviewable). But, it has been our practice to review for plain error the district
court's failure to give a unanimity instruction, see United States v. James, 172 F.3d
588, 592 (8th Cir. 1999), and this situation may very well meet the rigorous plain error
test.

However, we need not decide these difficult issues because there remains a
venue problem that comparatively easily carries the day for Pietrantonio. The general
venue statute for multi-jurisdictional offenses, 18 U.S.C. § 3237(a), provides that "any
offense . . . begun in one district and completed in another . . . may be inquired of and
prosecuted in any district in which such offense was begun, continued, or completed."
Pietrantonio objected to venue at the close of the government's case, arguing that the
Massachusetts portion of the case was not properly venued in Minnesota. The
government has, correctly in our view, conceded there were two counts alleged in the
indictment. The first included the move from Minnesota to Nevada, ending with
Pietrantonio's September 14 Nevada registration, and the second included the alleged
move from Nevada to Massachusetts. While venue would have been proper for the
first violation in either Minnesota or Nevada, Minnesota was not the proper venue for
the second violation, because Minnesota had no connection to the offense regarding
Pietrantonio's failure to update his SORNA registration when he allegedly moved
from Nevada to Massachusetts. See, e.g., United States v. Schlei, 122 F.3d 944, 979-
80 (11th Cir. 1997) (holding that a duplicitous security fraud count contained an
offense not properly venued for trial, and the lack of any assurances of jury unanimity
required vacation of the conviction on that count).

When a defendant is charged with more than one count, venue must be proper
with respect to each count. United States v. Granados, 117 F.3d 1089, 1091 (8th Cir.
1997). Venue was not proper with regard to the "second count" in the duplicitous
indictment. As we have previously discussed, we have no way of knowing why the
jury decided what it did, so we are unable to simply excise or vacate the Nevada-to-
Massachusetts count without implicating Pietrantonio's Sixth Amendment right to a

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unanimous jury verdict. At oral argument, the government contended that venue was
"both the problem and the solution" in this case, again pointing to instruction nine.
The government asserted at argument that there is no way the jury could have
convicted Pietrantonio without finding that venue was proper in Minnesota for the
first count. While that is true, it does not solve the problem of the second count,
which was undisputedly2 not properly venued in Minnesota, nor does it reconcile the
possibility that the jury split its verdict between these two counts.

III. CONCLUSION

Accordingly, we reverse and remand with directions to the district court to
dismiss the indictment.
______________________________

2
Nor does our opinion in United States v. Howell, 552 F.3d 709 (8th Cir. 2009),
cited by the government, solve the government's venue problem in this case. In
Howell, we held that venue in a SORNA case lies in both the state that the defendant
had registered in and moved from (Iowa), as well as the state the defendant moved to
(Texas). Id. at 717-18. Although the government in Howell asked the court to decide
that venue would have been proper in any of the states the defendant traveled through
to get to Texas, the court expressly did not decide that issue. Id. at 718 n.6. However,
even if the Howell court had answered that question in the affirmative, Howell would
have no influence on the instant case. The Howell defendant did not register in any
of the states he traveled through on the way to Texas. Importantly, for our purposes,
Pietrantonio did not travel through Massachusetts on his way to Nevada and his
Nevada registration clearly severed and bifurcated the connection between Minnesota
and Massachusetts.

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