Stadtmueller U.S. District Judge
March 8, 2016, the defendant, Taungra Nicole Toney, was
charged in a single-count Indictment, which alleges a
violation for failure to register as a sex offender as
required by the Sex Offender Registration and Notification
Act (“SORNA”), 42 U.S.C. § 16901 et
seq., after having traveled from Wisconsin to Minnesota,
where she then resided. (Docket #1). This matter comes before
the Court on Ms. Toney’s motion to dismiss for lack of
venue. (Docket #13).
26, 2016, Magistrate Judge Nancy Joseph issued a Report and
Recommendation (“the Report”) with this Court,
recommending that the motion to dismiss for lack of venue be
granted. (Docket #17). On June 9, 2016, the government filed
written objections to the findings pursuant to 28 U.S.C.
§ 636(b(1)(C). (Docket #18). On June 21, 2016, the
defendant filed a response to the objections, (Docket #21),
and the government did not file a reply. The objections to
the Report are now fully briefed and ready for disposition.
As discussed below, the Court will adopt the recommendation
of Judge Joseph and grant Ms. Toney’s motion to dismiss
for lack of venue.
purposes of this Order, the Court presumes the parties’
familiarity with the background of SORNA as described
thoroughly in the Report, and will, therefore, only briefly
review the relevant facts to this case.
jury sitting in the Eastern District of Wisconsin returned a
single count indictment against Ms. Toney, charging her with
failure to register as a sex offender as required by SORNA.
(Docket #1). The indictment specifically provides as follows:
TAUNGRA NICOLE TONEY
did knowingly fail to register and update her registration
as required under the Sex Offender Registration and
Notification Act, Title 42, United States Code, Section
16901 et seq. (“The Act”).
2. Taungra Nicole Toney was convicted of Solicit, Induce
and Promote Prostitution on or about July 8, 1999, in the
State of Minnesota, in violation of Minnesota Statute
Section 609.322, Subd.1(2).
3. In approximately February 2015, Taungra Nicole Toney
traveled in interstate commerce from Wisconsin to
Minnesota, where she resided.
4. Taungra Nicole Toney was required to update her
registration with the State of Wisconsin and register with
the State of Minnesota under the Act because she is a sex
offender as defined by the Act.
in violation of Title 18, United States Code, Section
2250(a). (Docket 1).
to 28 U.S.C. § 636(b)(1)(B), a magistrate judge may
consider potentially dispositive motions, such as a motion
to dismiss for lack of venue, and issue proposed
recommendations to the district judge regarding the motion.
When reviewing a magistrate’s recommendation, the
Court is obliged to analyze the portions of the report to
which the defendant has lodged objections de novo.
28 U.S.C. § 636(b)(1)(C). Thus, the Court can
“accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate.”
Id. In other words, the Court’s de
novo review of Magistrate Joseph’s Report is not
limited to her legal analysis alone; rather, the Court may
also review the factual findings and accept, reject, or
modify those findings as it sees fit based upon the
Report recommends granting the motion to dismiss for lack
of venue in light of Nichols v. United States,
-U.S.-, 136 S.Ct. 1113 (2016), a recent United States
Supreme Court case decided this past April. The government
objects to this recommendation and argues that the
Nichols holding is narrower and not applicable to
the issue of proper venue for SORNA violations. The extent
to whether Nichols should apply to a SORNA venue
analysis was recently decided in another branch of this
court by the Honorable Judge Charles N. Clevert in
United States v. Lena Haslage, Case No. 16-CR-40.
There, Judge Clevert agreed with the defendant that
Nichols applied and dismissed the indictment for
lack of venue. As described below, the Court agrees with
the reasoning of Judge Clevert and Judge Joseph in finding
that Nichols applies and warrants dismissal of the
indictment for lack of proper venue.
guarantees are more than procedural technicalities; they
“touch closely the fair administration of criminal
justice and public confidence in it” and “raise
deep issues of public policy.” United States v.
Muhammad, 502 F.3d 646, 652 (7th Cir. 2007) (internal
quotation marks and citation omitted), cert.
denied, 552 U.S. 1144 (2008). Article Three of the
Constitution requires that “[t]he Trials 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. Additionally, the Sixth Amendment provides
that “[i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an
impartial jury of the state and district wherein the crime
shall have been committed.” U.S. Const. amend. XI.
These constitutional provisions are codified in Federal
Rule of Criminal Procedure 18, which provides, in pertinent
part, that “the prosecution shall be had in a
district in which the offense was committed.” The
government bears the burden to prove venue, however, it
need only be proven by a preponderance of evidence because
it is not a substantive element of a crime. See, e.g.,
United States v. Tingle, 183 F.3d 719, 727 (7th
may be appropriate in multiple districts.
Muhammad, 502 F.3d at 653-54 (citing United
States v. Reed, 773 F.2d 480 (2d Cir. 1985)). To
address 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 Cir. 1992). As is the
case here, in the absence of a statutory directive on
venue, the Court must consider: (1) the “nature of
the crime alleged”; and (2) “the location of
the act or acts constituting it.” Muhammad,
502 F.3d at 652.
Toney acknowledges that prior to Nichols, courts,
including the Seventh Circuit, recognized that proper venue
for a SORNA violation could be had in the district from
which a sex offender flees. See, e.g., United States v.
Leach, 639 F.3d 769 (7th Cir. 2011) (finding venue
proper in Northern District of Indiana for SORNA violation
where defendant moved from Indiana to South Carolina and
failed to update registry information); United States
v. Lewis, 768 F.3d 1086 (10th Cir. 2014). The
government relies on these and similar cases to support its
argument that venue in Wisconsin is appropriate.
(See Docket #18 at 3-5). Ms. Toney argues,
however, that Nichols changes the analysis such
that venue for SORNA violations can no longer lie in the
district where the sex offender flees. (See
generally Docket #21).
does not directly address the issue of proper venue for
SORNA violations; notably, the term “venue”
appears nowhere in the decision. See generally 136
S.Ct. 1113. In Nichols, the defendant was a
registered sex offender living in the Kansas City area.
Id. at 1115. The defendant moved to the
Philippines without notifying Kansas authorities of his
change in residence. Id. For that omission, he was
convicted of failing to update his sex offender
registration, in violation of SORNA. Id. Before
the Supreme Court, Nichols argued that once he left Kansas,
he was no longer required under SORNA to update his sex
offender registration, and the Court agreed. Beginning with
the statutory language of § 16913(c), the Court noted
that Nichols was required to “appear in person in at
least 1 jurisdiction involved pursuant to subsection (a)
and inform that jurisdiction of” his change of
residence. Id. at 1117. Subsection (a), in turn,
includes three possible jurisdictions: where the offender
resides, where the offender is an employee, and where the
offender is a student. Id. The Court stated that
§ 16913(a) uses only the present tense:
“resides, ” “is an employee, ” and
“is a student, ” and for this reason, a person
who moves from Kansas City to the Philippines no longer
“resides” in Kansas. Id. Using this
reasoning, the Court stated that “[i]t 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 subsection (a)’ of § 16913.”
Id. (quoting § 16913(c)).
the Court pointed out that in the amended Wetterling Act,
the law preceding SORNA, sex offenders were required to
report their change of address to the responsible agency
in the State the person was leaving. Id.
at 1118. The Court stated that if Congress had wanted the
language to require registration in the departure
jurisdiction, “[t]hey could have easily said
so.” Id. Finally, in addressing the
government’s policy argument as to the purpose of
SORNA, the Court declined to consider this argument because
“even the most formidable argument concerning the
statute’s purposes could not overcome the clarity we
find in the statute's text.’” Id.
at 119 (quoting Kloeckner v. Solis, 568 U.S. ----,
----, n.4, 133 S.Ct. 596 (2012).
issue here is whether Nichols requires an
alteration of existing law regarding the proper venue for
SORNA violations. The Court finds that it does, and that
venue in Wisconsin is, therefore, improper in this case.
The government reads Nichols far too narrowly in
arguing that it does not apply because it did not address
the issue of venue and it involved a foreign jurisdiction.
As Ms. Toney points out in her response to the objections,
the government confuses the facts of Nichols with
its legal holding. (See Docket #21 at 2). As aptly
stated by Judge Joseph, “Nichols did not
turn on a distinction between domestic and foreign travel.
The case turned on the statutory text.” (Docket #17
although not explicitly, clarifies where a SORNA violation
occurs-which is at the heart of the Court’s venue
analysis. See Kramer, 955 F.2d at 486 (venue
appropriate where a crime begins, continues, and ends). In
looking to the text, SORNA required Ms. Toney, within 3
business days, to “appear in person in at least 1
jurisdiction involved pursuant to subsection (a) and inform
that jurisdiction of” her change of residence. 42
U.S.C. § 16913(c). Subsection (a), in turn, includes
three possible jurisdictions: where the offender resides,
where the offender is an employee, and where the offender
is a student. § 16913(a). Thus, the only
“jurisdictions involved” after departure are
those codified in Subsection (a).
government contends, without explanation, that the SORNA
violation “started when Toney left Wisconsin and
traveled to the state of Minnesota where she then
resided.” (Docket #18 at 7). Why so? Although the
indictment claims that Ms. Toney was required to update her
registration with the state of Wisconsin, Nichols
precludes this conclusion. Nichols clearly found
that once the offender moved to Manila, he was no longer
required to appear in person in his departure ...