United States District Court, E.D. Wisconsin
ORDER ADOPTING REPORT AND RECOMMENDATION (DOC. 16),
GRANTING DEFENDANT'S MOTION TO DISMISS FOR LACK OF VENUE
(DOC. 12), AND DISMISSING INDICTMENT
CLEVERT, JR. U.S. DISTRICT JUDGE
26, 2016, Magistrate Judge Joseph issued a report and
recommendation that defendant's motion to dismiss for
lack of venue be granted. The government has filed an
objection to the recommendation. Accordingly, the court makes
a de novo determination of those portions of the report and
recommendation to which an objection is made. 28U.S.C. §
636(b)(1). After hearing oral argument and reviewing the
supplemental briefs, this court adopts the recommendation and
grants the motion to dismiss for lack of venue.
Haslage filed her motion to dismiss for lack of venue because
United States v. Nichols, a recent Supreme Court
decision, states that she did not commit a crime in this
district. 136 S.Ct. 1113 (2016). In Nichols, a
registered sex offender living in Kansas moved to the
Phillippines where he did not update his sex offender
registration. Nichols was charged in the District of Kansas
under 18 U.S.C. § 2250. The United States Supreme Court
agreed with Nichols that there was no requirement
under the Sex Offender Registration and Notification Act
("SORNA") that he register in the Philippines.
Hence, there was no violation of the statute simply because
he left Kansas. Notably, Nichols was not a venue
Nichols, Haslage was charged with violating 18 U.S.C. §
2250(a) after she failed to register as a sex offender after
traveling from Wisconsin to Washington where she resided. The
indictment states that she "was required to update her
registration with the State of Wisconsin and register with
the State of Washington" because she is a sex offender.
Haslage argues that the alleged violation occurred in
Washington because there was no requirement that she update
her registration in Wisconsin citing her constitutional right
to be prosecuted where the crime occurred. U.S. Const. art.
III, § 2; see also Fed. R. Crim. 18. According
to Haslage, if she is charged with a crime under § 2250,
she must be charged in Washington.
purposes of keeping the registration current, SORNA requires:
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.
42 U.S.C. § 16913. Subsection (a) provides as follows:
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.
the sex offender is required to update his or her
registration in one jurisdiction, and then the appropriate
office in the jurisdiction provides the information to a list
of interested parties. 42 U.S.C. § 16921(b)(1)-(7).
enforcement mechanism for § 16913's registration
requirements, § 2250 subjects any person required to
register under § 16913 and who "is a sex offender .
. . by reason of a conviction under Federal law" or
"travels in interstate or foreign commerce" to
fines or imprisonment in the event that she or he
"knowingly fails to register or update a registration as
required by [SORNA]." 18 U.S.C. § 2250(a).
Consequently, the government must establish that Haslage (1)
was required to register under SORNA; (2) traveled in
interstate commerce; and (3) knowingly failed to register or
update her registration during the time period specified in
the indictment. Viewing the statute in isolation, it would
appear that the violation at issue occurred in Washington
when Haslage knowingly failed to update her registration
within three business days of changing her residence.
Nevertheless, venue is a separate issue decided by a
preponderance of the evidence.
III of the U.S. Constitution states: "Trial of all
Crimes . . . shall be held in the State where the said Crimes
shall have been committed." U.S. Const. art. III, §
2, cl. 3. Similarly, the Sixth Amendment guarantees a
defendant a trial "by an impartial jury of the State and
district where the crime shall have been committed."
U.S. Const. amend. VI. The Federal Rules of Criminal
Procedure require that prosecution must ensue in the district
where the offense occurred, absent a statute or other
procedure allowing for another venue. See Fed. R.
Crim. P. 18. Section 2250 does not have a specific venue
address these multi-state crimes, Congress allows crimes
against the United States to be tried in any of the venues in
which a part of the crime was committed. See 18
U.S.C. § 3237(a). Under this statute, "[A]ny
offense against the United States 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). Thus, venue for continuing crimes is
proper where the crimes began, continued, or were completed.
United States v. Kramer, 955 F.2d 479, 486 (7th
argues that her violation of § 2250 did not occur in the
Eastern District of Wisconsin because she was not required to
register until she took up a new residence in Washington.
However, the Seventh Circuit Court of Appeals in United
States v. Leach, 639 F.3d 769 (7th Cir. 2011), applied
the venue provisions of § 3237 in a case involving a
violation of § 2250. Indeed, the Seventh Circuit
affirmed the district court's finding that venue was
proper in Indiana even though the sex offender resided and
was arrested in South Carolina. The Seventh Circuit focused
on the fact that, for purposes of SORNA, a sex offender
"violates the statute only when he travels across state
lines and fails to register." Id., 639 F.3d at
772. Notably, the Seventh Circuit concluded that SORNA
required Leach to "update his registration with Indiana
authorities when he left the state, see §
16013(c), and register with South Carolina authorities when
he established a residence there, see §
16913(a)." Id. Accordingly, venue was proper in
Indiana as it would have been in South Carolina if the
government had opted to prosecute there.
Leach, Haslage moved from one state to another
"promptly notifying government officials in either
state." Id., 639 F.3d at 770. Nevertheless, the
court does not find a requirement in SORNA that Haslage
"update her registration with the State of
Wisconsin" as set forth in the indictment. (Doc. 1,
¶ 4.) Rather, she was required to "appear in person
in at least 1 jurisdiction" no later than "3
business days after each change of . . . residence" in
each jurisdiction where she was residing, an ...