United States v. Stevens

United States Court of Appeals
For the First Circuit

No. 09-2024

UNITED STATES OF AMERICA,

Appellee,

v.

OLIN DUDLEY STEVENS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,
Selya and Howard, Circuit Judges.

Virginia G. Villa, Assistant Federal Defender, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Thomas E.
Delahanty II, United States Attorney, was on brief, for appellee.

May 23, 2011
 SELYA, Circuit Judge. After defendant-appellant Olin

Dudley Stevens was convicted on a charge of failing to register

under the Sex Offender Registration and Notification Act (SORNA),

Pub. L. No. 109-248, tit. I, §§ 101-155, 120 Stat. 587, 590-611

(2006), the district court sentenced him to serve 85 months in

prison. He challenges his conviction, alleging both evidentiary

insufficiency and constitutional infirmity. Concluding that his

arguments lack merit, we affirm.

We rehearse the facts in the light most favorable to the

verdict. United States v. Rodríguez-Vélez, 597 F.3d 32, 38 (1st

Cir. 2010). In 1993, the defendant was convicted of a sex crime in

Rhode Island and incarcerated. Upon his release from immurement,

the state notified him of his duty to register annually as a sex

offender. See R.I. Gen. Laws § 11-37-16(a) (1992) (repealed

1996).1 He initially complied and renewed his registration

periodically. He eventually became less assiduous, and his failure

to keep his registration current led, in 1996, to a no contest plea

to a charge of failing to register as a sex offender. He did not

learn his lesson and, four years later, he was again convicted on

1
From time to time, the Rhode Island General Assembly
tinkered with the sex offender registration law, and the procedural
history is complicated. Withal, the district court found that the
1992 version of the law (which was in effect when the defendant was
convicted of the sex crime that required him to register) applied
to the defendant throughout his stay in Rhode Island. United
States v. Stevens, 598 F. Supp. 2d 133, 141-42 (D. Me. 2009).
Because that finding is not challenged here, we do not trace the
law's subsequent history.

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a charge of failure to keep his state sex offender registration

current and given a suspended sentence.

We fast-forward to January of 2007, when the defendant

moved from Rhode Island to Maine. He failed to notify the

authorities in Rhode Island of his change in residence and likewise

failed to register as a sex offender in Maine as required by that

state's law. See Me. Rev. Stat. Ann. tit. 34-A, § 11223. By the

same token, he neglected to comply with SORNA (which Congress had

enacted in 2006).

These delinquencies came to the attention of the

authorities and, in February of 2008, a federal grand jury indicted

the defendant for non-compliance with SORNA's registration

requirements. See 42 U.S.C. § 16913. After a bench trial, the

district court found him guilty. The court concluded that,

although the defendant lacked actual knowledge of his duty to

register as a sex offender,2 he was on constructive notice of this

duty because he had registered several times in Rhode Island and

also had been convicted for failing to register. United States v.

Stevens, 598 F. Supp. 2d 133, 153 (D. Me. 2009). Following the

imposition of sentence, the defendant filed a timely notice of

appeal.

2
The court noted that Rhode Island law enforcement officers
may not have apprised the defendant of his ongoing duty to
register. The court found that the shifting legal framework, see
supra note 1, may have confused some officers, who, in turn,
misinformed the defendant about his duty to register.

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 We begin our discussion of the merits with the

defendant's challenge to the sufficiency of the evidence. We

review such challenges de novo, appraising the evidence in the

light most favorable to the verdict. Rodríguez-Vélez, 597 F.3d at

38. "The verdict must stand unless the evidence is so scant that

a rational factfinder could not conclude that the government proved

all the essential elements of the charged crime beyond a reasonable

doubt." Id. at 39.

The defendant's challenge has twin foci. First, he

claims that the government did not present sufficient evidence that

SORNA required him to register as a sex offender after he had

traveled in interstate commerce. At bottom, this claim rests on a

legal interpretation, and the defendant argues that the evidence is

inadequate under that interpretation. Thus, the statute of

conviction frames this aspect of the argument.

SORNA provides in pertinent part:

(a) In general. — Whoever —
(1) is required to register under the Sex
Offender Registration and Notification Act;
(2)(A) is a sex offender as defined for the
purposes of [SORNA] . . . ; or
(B) travels in interstate or foreign commerce
. . . ; and
(3) knowingly fails to register or update a
registration as required by [SORNA];
shall be fined under this title or imprisoned
not more than 10 years, or both.

18 U.S.C. § 2250(a).

The defendant posits that this requirement did not become

applicable until the Attorney General promulgated an implementing

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regulation in February of 2007. See 72 Fed. Reg. 8894, 8896 (Feb.

28, 2007). Because this regulation post-dated his 2007 trip from

Rhode Island to Maine, his thesis runs, that travel cannot be said

to have triggered the federal registration requirement.

This contention is old hat. We previously have held that

SORNA was fully effective as of the date of its enactment: July 27,

2006. United States v. DiTomasso, 621 F.3d 17, 25 (1st Cir. 2010).

It therefore stands decided, under settled circuit precedent, that

the defendant's interstate travel in 2007 brought SORNA's

registration requirement into play. Consequently, the district

court correctly applied the requirement in this instance.

The second focus of the defendant's claim of evidentiary

insufficiency is that the government did not present proof adequate

to show that he knowingly violated SORNA. In mounting this

argument, the defendant does not challenge the supportability of

the district court's finding that he had constructive notice of a

registration requirement. Rather, he claims that SORNA requires a

showing of a specific intent to violate its registration provision

(and, therefore, requires a showing of actual knowledge of that

provision). To the extent that this claim poses a question of

statutory construction, our standard of review remains de novo.

United States v. Leahy, 473 F.3d 401, 405 (1st Cir. 2007).

SORNA makes it a crime to "knowingly fail[] to register

or update a registration as required by [SORNA]." 18 U.S.C.

§ 2250(a). The defendant suggests that "knowingly" modifies all

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the language that follows it, with the result that a person cannot

violate the statutory proscription unless he knows specifically of

his obligation to register under SORNA and nevertheless flouts that

obligation. This suggestion lacks force.

The Supreme Court has given us the appropriate starting

point for our analysis. The Court has said that "unless the text

of the statute dictates a different result, the term 'knowingly'

merely requires proof of knowledge of the facts that constitute the

offense." Bryan v. United States, 524 U.S. 184, 193 (1998). Our

own precedent is to the same effect. See United States v. Meade,

175 F.3d 215, 226 n.5 (1st Cir. 1999). Nothing in the text of

SORNA dictates a different result. Indeed, giving words their

ordinary meaning, the adverb "knowingly" modifies only the phrase

"fails to register," not the next phrase, "as required by [SORNA]."

Cf. United States v. Currier, 621 F.2d 7, 10 (1st Cir. 1980)

(construing "knowingly" in 18 U.S.C. § 922(m), a firearms statute,

as not requiring the government to prove specific intent).

In an effort to remove his case from the sweep of the

Bryan rule, the defendant urges us to find that the meaning of

"knowingly" in section 2250(a) is at least unclear, thus making

applicable the rule of lenity. The notion that lack of clarity may

ground an exception to the Bryan rule is plausible. See, e.g.,

United States v. Godin, 534 F.3d 51, 53 (1st Cir. 2008) (applying

rule of lenity after concluding that the knowledge requirement in

an unrelated statute, 18 U.S.C. § 1028A(a), was ambiguous). But

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ambiguity is a condition precedent to the invocation of the rule of

lenity, see, e.g., United States v. Santos, 553 U.S. 507, 514

(2008); United States v. Dwinells, 508 F.3d 63, 69-70 (1st Cir.

2007), and SORNA contains no ambiguity with respect to its

knowledge requirement.

The short of it is that, in the case at hand, no textual

clue counsels against giving "knowingly" the usual meaning that

Bryan ascribes to that term. Accordingly, we hold that section

2250(a)(3) requires only that the government prove general intent;

that is, a defendant's awareness of his failure to register

simpliciter. We add that this holding is well within the

mainstream. It comports with the holdings of every other court of

appeals that has decided this point. See, e.g., United States v.

Fuller, 627 F.3d 499, 507-08 (2d Cir. 2010); United States v.

Voice, 622 F.3d 870, 876 (8th Cir. 2010); United States v. Vasquez,

611 F.3d 325, 328-29 (7th Cir. 2010).

That ends this aspect of the matter. Inasmuch as the

statute of conviction contains only a general intent requirement,

the government had to prove no more than that the defendant was

aware that he had not registered. See Bryan, 524 U.S. at 193;

Fuller, 627 F.3d at 507-08. On this point, even the district

court's finding of constructive notice was superfluous.

The district court's determination that the government

carried this burden cannot seriously be questioned. It follows

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that the evidence was sufficient to support the defendant's

conviction.

In a different (but equally unavailing) vein, the

defendant advances a pair of constitutional claims. We review

these claims de novo. United States v. Volungus, 595 F.3d 1, 4

(1st Cir. 2010). Neither of them is substantial.

To begin, the defendant asserts that convicting him

despite his lack of actual knowledge of SORNA's requirement

deprives him of due process of law. This assertion flies in the

teeth of the venerable principle that ignorance of the law is no

excuse. See, e.g., United States v. Int'l Minerals & Chem. Corp.,

402 U.S. 558, 562-63 (1971); United States v. Robinson, 137 F.3d

652, 654 (1st Cir. 1998).

Of course, there is an acknowledged exception to this

principle for conduct that is wholly passive, see Lambert v.

California, 355 U.S. 225, 228 (1957), and the defendant seeks

refuge within the narrow confines of this exception. But the

circumstances of this case do not lend themselves to an application

of the exception.

There is no need to tarry. In an earlier SORNA case,

United States v. Gagnon, 621 F.3d 30, 33 (1st Cir. 2010), the

defendant made the same claim. We flatly rejected the claim,

holding that because the defendant was chargeable with knowledge of

an obligation to register as a sex offender, his failure to do so

was not within the purview of Lambert. Gagnon, 621 F.3d at 33.

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Gagnon is controlling: there, as here, the defendant was a

convicted sex offender who was on notice of a duty to register.3

See id. at 33. Thus, the exception does not apply and the

defendant's due process argument fails.

Finally, the defendant asseverates that SORNA cannot be

enforced because Congress lacked power under the Commerce Clause to

enact it. U.S. Const. art. I, § 8, cl. 3. We confronted and

defenestrated this very same asseveration in DiTomasso, in which we

held that the enactment of the statute was well within the scope of

congressional authority under the Commerce Clause. DiTomasso, 621

F.3d at 26. We reiterated that holding in Gagnon, 621 F.3d at 32.

Given those decisions, the defendant's Commerce Clause argument

necessarily fails.

We need go no further. For the reasons elucidated above,

we affirm the judgment of the district court.

Affirmed.

3
In Gagnon, we noted that the defendant either had actual
notice or was "chargeable with" notice (i.e., that he had
constructive notice). 621 F.3d at 33. For this purpose, either
type of notice suffices to satisfy the demands of due process.

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