United States Court of Appeals For the First Circuit

No. 18-1519

UNITED STATES OF AMERICA,

Appellee,

v.

ANTHONY SEWARD,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Barron, Stahl, and Lipez, Circuit Judges.

Inga L. Parsons, with whom Law Offices of Inga L. Parsons was on brief, for appellant. Kelly Begg Lawrence, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

July 28, 2020 STAHL, Circuit Judge. This appeal arises out of an order

denying a motion to dismiss filed by Defendant-Appellant Anthony

Seward, a state sex offender who moved from Massachusetts to New

York and failed to update his registration as required by the Sex

Offender Registration and Notification Act ("SORNA"),

(a). Seward was indicted in Massachusetts for his failure

to register. He moved to dismiss the indictment on the ground

that venue in Massachusetts was improper, relying principally on

the Supreme Court's decision in Nichols v. United States,

(2016). Seward argued that under Nichols, he had

committed no crime in Massachusetts because his failure to register

occurred entirely in New York.

The district court denied Seward's motion to dismiss,

concluding that Nichols did not address the question of venue.

The court further found interstate travel to be a necessary element

of a § 2250 offense and, as such, determined that venue was proper

in Massachusetts, where Seward's interstate travel began. After

careful review, we affirm. We thus join the all but one of our

sister circuits who have reached this issue to conclude that venue

for a § 2250 prosecution is proper in the departure jurisdiction.

I. Facts and Procedural Background

A. SORNA

SORNA was enacted by Congress in part to "make more

uniform what had remained 'a patchwork of federal and . . . state

- 2 - registration systems,' with 'loopholes and deficiencies' that had

resulted in . . . sex offenders becoming 'missing' or 'lost.'"

Nichols,

(quoting United States v. Kebodeaux,

(2013)). As such, SORNA requires that every

"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."

(a). It further requires that an 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 . . . and inform that jurisdiction" of the

change.

§ 20913(c).

Section 2250(a) of SORNA makes failing to register a

crime punishable by a fine or a prison term of up to 10 years, or

both.

(a). Under the statute, whoever "(1) is

required to register under [SORNA]; (2)(A) is a sex offender as

defined for the purposes of [SORNA] by reason of a conviction under

Federal law . . . ; or (B) travels in interstate or foreign

commerce . . . ; and (3) knowingly fails to register or update a

registration as required by [SORNA]" is subject to penalties.

B. Seward's Failure to Register

The facts are not in dispute. Seward was convicted as

a sex offender in 1996 under Massachusetts state law and was

therefore subject to the registration requirements set forth by

- 3 - SORNA. See

. Seward initially registered

as a sex offender in Massachusetts. In 2016, Seward moved from

Massachusetts to New York, where he established residence. He

subsequently failed to update his registration as required by

SORNA.

On January 19, 2017, a District of Massachusetts

magistrate judge issued an arrest warrant as to Seward for failing

to register as a sex offender in violation of § 2250(a). Seward

was arrested several days later. On March 9, 2017, a federal grand

jury returned an indictment charging that Seward, "being an

individual required to register under [SORNA], traveled in

interstate commerce and knowingly failed to register and update

his registration as required by [§ 2250]."

On July 20, 2017, Seward moved to dismiss the indictment

on the ground that Massachusetts was an improper venue and the

district court thus lacked jurisdiction over his prosecution.

Seward contended that under Nichols, venue in Massachusetts was

improper because no violation of SORNA had occurred there. In

doing so, he relied significantly on the Seventh Circuit's 2-1

decision in United States v. Haslage,

(7th Cir. 2017),

which interpreted Nichols to preclude prosecution for § 2250

violations in an offender's departure jurisdiction.

At an August 10, 2017 hearing, the district court denied

Seward's motion. The district court determined that Nichols did

- 4 - not "answer[] the venue question" and explicitly "disagree[d]

with" the Haslage majority's analysis, concurring instead with the

dissent's conclusion there that under the "preexisting Supreme

Court precedent," specifically, Carr v. United States,

(2010), interstate travel is a "necessary element" of a § 2250

charge. Accordingly, the district court analyzed venue under

(a), which states that for offenses begun in one

district and completed in another, venue is proper "in any district

in which such offense was begun, continued, or completed." As

such, the court concluded venue was proper in Massachusetts, where

Seward's travel began.

On August 20, 2017, Seward unsuccessfully moved for

reconsideration of the district court's ruling. On May 21, 2018,

Seward entered a conditional guilty plea as to the § 2250(a)

charge, reserving his right to appeal the denial of his motion to

dismiss for lack of venue. On May 31, 2018, Seward was sentenced

to a term of time served, which had been approximately sixteen

months, and five years of supervised release. This timely appeal

as to the question of venue followed.

II. Analysis

A. Standard of Review

"When a defendant in a criminal case appeals from a venue

determination, we review the trial court's legal conclusions de

novo and its factual findings for clear error." United States v.

- 5 - Salinas,

(1st Cir. 2004). Since the sole

question before us is one of law -- whether venue in the departure

jurisdiction is proper for a § 2250 prosecution -- we review the

district court's denial de novo.

B. Venue

As this court has not yet opined on the question before

us, we proceed "[a]gainst an unpainted backdrop" with an analysis

of foundational venue principles guiding our inquiry. Id.

A criminal defendant must be tried in the state or

district in which the offense "shall have been committed." U.S.

Const. art. III, § 2, cl. 3; see also id. amend. VI (requiring

trial "by an impartial jury of the State and district wherein the

crime shall have been committed"). Congress "further entrenched"

this principle in the Federal Rules of Criminal Procedure, which

include "an explicit directive that limits a criminal prosecution

to 'a district [where] the offense was committed.'" Salinas,

(quoting Fed. R. Crim. P. 18).

Where a criminal statute "contains a specific venue

provision, that provision must be honored" so long as it comports

with Constitutional requirements.

(citing Travis v. United

States,

(1961); Armour Packing Co. v. United

States,

(1908)). Where, as here, the statute

contains no such provision, the "locus delicti [of the offense]

must be determined from the nature of the crime alleged and the

- 6 - location of the act or acts constituting it." United States v.

Anderson,

(1946); see United States v. Rodriguez-

Moreno,

(1999). In making such a determination,

a court must "identify the conduct constituting the offense (the

nature of the crime) and then discern the location of the

commission of the criminal acts." Rodriguez-Moreno,

. For offenses that span multiple jurisdictions, or "where a

crime consists of distinct parts which have different

localities[,] the whole may be tried where any part can be proved

to have been done."

at 281 (quoting United States v. Lombardo,

(1916)); see also Salinas,

. And

under the federal statute governing venue for "[o]ffenses begun in

one district and completed in another," such continuing offenses

"may be inquired of and prosecuted in any district in which such

offense was begun, continued, or completed."

(a).

In determining the nature of the crime for purposes of

venue, the "focus of this test is on the conduct comprising the

offense." Salinas,

. The Supreme Court has

rejected in such an analysis dispositive reliance on "the so-

called 'verb test' -- the notion that action verbs reflected in

the text of the statute should be 'the sole consideration in

identifying the conduct that constitutes an offense.'"1

1 Courts deploying the "verb test" analyze "'the key verbs in the statute defining the criminal offense' to find the scope of

- 7 - (quoting Rodriguez-Moreno,

). In doing so, however,

the Court also explicitly recognized that "the 'verb test'

certainly has value as an interpretative tool." Rodriguez-Moreno,

. To this end, it made clear that its concern with

an overreliance on action verbs was not that this would produce an

overinclusive result, but rather, that requiring the presence of

an action verb to define the nature of the crime could sweep out

conduct not enumerated by such action language but nonetheless

essential to the offense. See

("[The verb test] cannot be

applied rigidly, to the exclusion of other relevant statutory

language. The test unduly limits the inquiry into the nature of

the offense and thereby creates a danger that certain conduct

prohibited by statute will be missed."). Thus, while we may not

focus exclusively on § 2250's action verbs, we are permitted to

consider them as part of the "wider-angled lens" through which we

"should peer at the conduct elements comprising the crime."

Salinas,

(citing Rodriguez-Moreno,

& n.4).

Grounded by these principles, we now apply them to the

case at hand.

relevant conduct." United States v. Georgacarakos,

(1st Cir. 1993) (quoting United States v. Tedesco,

(1st Cir. 1980)).

- 8 - C. Venue for Seward's Section 2250 Prosecution

Using this framework, our task today is to determine the

nature of a § 2250 crime -- or, put differently, to conclude where

Seward's offense "began." See United States v. Holcombe,

(2d Cir. 2018). Though we have not yet reached this

question, all but one of our sister circuits to have done so have

held that venue for a § 2250 prosecution of a state sex offender

is proper in the departure jurisdiction because the locus delicti

of the offense encompasses where the offender's travel begins.2

See id. at 15-16; United States v. Kopp,

(11th

Cir. 2015); United States v. Spivey,

(4th

Cir. 2020); United States v. Howell,

(8th

Cir. 2009)); United States v. Lewis,

(10th

Cir. 2014); cf. United States v. Lewallyn,

, 474-

75 (11th Cir. 2018) (per curiam) (holding Nichols does not abrogate

Kopp); but see Haslage,

(finding venue in the

departure jurisdiction improper in reliance on Nichols).

Like our sister circuits, we are guided in answering

this question by the Supreme Court's decision in Carr, in which

the Court considered whether a defendant could be convicted under

§ 2250 for interstate travel that predated the effective date of

2 We note that Kopp, Lewis, and Howell were decided prior to the Supreme Court's decision in Nichols. However, as analyzed infra, because Nichols neither abrogates Carr nor is dispositive as to the question of venue, we view these decisions as good law.

- 9 - SORNA.

. In answering this question, the Court

first determined that § 2250(a) contains three distinct elements,

which must be satisfied sequentially: for a state sex offender

like Seward, the government must prove (1) that he was required to

register under SORNA; (2) that he traveled in interstate or foreign

commerce; and (3) that he knowingly failed to register or update

a registration as required by SORNA. See id. at 445-46. The Court

then analyzed the "interstate travel" element, characterizing it

as "the very conduct at which Congress took aim" and "an aspect of

the harm Congress sought to punish" in enacting § 2250. Id. at

453-54. As the Court concluded, "[t]aking account of SORNA's

overall structure, we have little reason to doubt that Congress

intended § 2250 to do exactly what it says: to subject to federal

prosecution sex offenders who elude SORNA's registration

requirements by traveling in interstate commerce." Id. at 456.

Accordingly, pursuant to Carr, "[t]he majority of our sister

circuits that have addressed the issue have held that a SORNA

offense begins . . . in the district that the defendant leaves,

not in the district . . . in which the defendant ultimately fails

to register." Holcombe,

(citing Kopp,

; Lewis,

; Howell,

);

see Spivey,

; Lewallyn, 737 F. App'x at 474-75.

To circumvent the Court's decision in Carr and the weight

of persuasive authority from other circuits, Seward contends that

- 10 - we should instead follow the novel approach taken by the Seventh

Circuit in Haslage, a 2-1 decision that relied principally on the

Court's decision in Nichols v. United States. See

. In Nichols, the defendant, a federal sex offender,3 left

his residence in Kansas and moved to the Philippines, where he

failed to register. See

. Nichols was prosecuted

in Kansas for the failure to register as required by § 2250. Id.

He moved to dismiss the indictment on the grounds that he was not

required under SORNA to update his registration in Kansas, but did

not contest venue. Id. The Court held that SORNA did not require

Nichols to update his registration in Kansas once he no longer

resided in the country. Id.

In Haslage, a divided Seventh Circuit panel applied

Nichols to hold that venue for a § 2250 prosecution is not proper

in the departure jurisdiction. See

. As the court

there determined, in light of Nichols, interstate travel is

"neither a distinct crime nor an element of the crime," and

therefore is not "conduct that is part of the offense."4

at

3 For federal sex offenders, interstate travel is not an element of a § 2250 offense. See

(a)(2)(A) (travel element does not apply to those convicted of a sex offense "under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States"). 4 The dissent determined that Nichols did not abrogate the Court's conclusion in Carr that interstate travel is a required element of a § 2250(a) offense for state sex offenders and thus concluded that "[b]ecause the interstate travel -- an element of

- 11 - 333, 335. Seward asserts that the Seventh Circuit's ruling in

Haslage demonstrates that Nichols changes the venue analysis for

SORNA prosecutions, and that it is no longer correct to find venue

in the departure jurisdiction. Accordingly, he contends that under

Nichols, a § 2250 violation occurs only after a sex offender

reaches his new residence and fails to timely register. Seward

also argues that Carr does not apply to his case because it did

not address venue and further, that the Court's discussion there

of § 2250's travel element is merely dicta. For the reasons below,

we do not agree.

The first error in Seward's strained reliance on Nichols

is that Nichols involved a federal sex offender, not a state sex

offender like Seward.

. Federal offenders,

unlike state offenders, "do[] not need to travel interstate to

commit a SORNA offense." Holcombe,

; see

(a)(2)(A). This distinction is critical: as a result, the

Nichols Court had no occasion to and, indeed, did not, address

§ 2250's interstate travel element, either independently or with

respect to its bearing on the "nature" of a § 2250 violation for

state offenders. Nichols therefore "did not abrogate the holding

in Carr that the element of interstate travel was the 'very conduct

the offense -- began in Wisconsin, venue is proper in district court in Wisconsin." Id. at 338 (Sykes, J., dissenting).

- 12 - at which Congress took aim.'"5 Spivey,

(quoting

Carr,

).

Second, Nichols did not address venue, but rather

concerned only whether Kansas was an "involved" jurisdiction under

SORNA such that Nichols was required to update his registration

there once he moved abroad.6

. Therefore, not

only did Nichols not address the interstate travel element at all,

it also did not opine on the relationship between interstate travel

and venue. We thus concur with the all but one of our sister

circuits to have evaluated Nichols in the context of venue to

conclude that it does not bear on our venue analysis. See

Holcombe,

; Lewallyn, 737 F. App'x at 474; Spivey,

; but see Haslage,

.

Our dissenting colleague does not contest that Nichols

did not concern venue, pertained only to federal (not state) sex

offenders, and accordingly did not address whether the interstate

travel element of § 2250 is part of the nature of the crime. See

infra Section I. Our colleague also lodges his disagreement with

5 Additionally, Nichols involved travel from Kansas to the Philippines, which "is not a 'jurisdiction' under SORNA; no foreign country is."

. Indeed, it "in no way considered or ruled on the issue of where a trial should be held when a registered sex offender leaves a district and fails to register in another district that is an 'involved jurisdiction' for purposes of SORNA." Lewallyn, 737 F. App'x at 473. 6 The parties agree that Seward was not required by SORNA to register in Massachusetts after he moved to New York.

- 13 - the rationale of the only circuit to have interpreted Nichols to

find venue improper in the departure jurisdiction. See infra

Section III.C.3. However, the dissent nonetheless suggests that

a reading of Nichols, taken in conjunction with a particular line

of Supreme Court precedents, leads to the conclusion that the true

"nature" of § 2250 entirely reads out interstate travel and is

merely the "failure to do a legally required act." Infra Section

I. This conclusion has several fatal flaws: namely, it misapplies

its cited "failure-to-act" cases, misreads Nichols, and ignores

squarely on-point precedent in Carr.

The failure-to-act cases referenced by the dissent are

distinguishable on the facts. To begin, each of these decisions

concerned a statute without an interstate travel element. See

Anderson,

(criminalizing the refusal of

induction into the armed services in violation of the Selective

Training and Service Act); Lombardo,

(criminalizing the failure to file a required statement under the

Mann Act); Travis,

(criminalizing filing false

documentation under the National Labor Relations Act); Johnston v.

United States,

(1956) (criminalizing the refusal

of conscientious objectors to report for civilian employment).

Here, however, as analyzed above, interstate travel is not only an

element of the instant crime (as the dissent so concedes), but

part of "the very conduct at which Congress took aim." Carr, 560

- 14 - U.S. at 454. In this way, Carr makes clear that Seward's travel

was not merely "conduct . . . preceding the failure to register,"

as the dissent suggests, but rather conduct of particular concern

to Congress. See

By contrast, the Court in Anderson and

Johnston ruled out as locus delicti of the crimes at issue

locations in which the defendant had not engaged in any conduct

that satisfied an element of the crime. See Johnston,

(noting that venue is "determined by the acts of the accused

that violate a statute" and finding venue proper "in the vicinage

of the crime rather than the residence of the accused" (citing

Anderson,

)). Neither case held that when a statute

imposes criminal liability for failing to comply with a duty to

undertake a legally required act, venue necessarily lies

exclusively where the duty must be met. Those cases thus tell us

little about where venue lies when a defendant, like Seward, first

satisfies an element of an offense that involves a failure to

comply with a duty (here, registering as a sex offender) by

engaging in certain conduct in one jurisdiction (here, through

interstate travel), and then ultimately fails to comply with that

duty in another. Here, again, the question before us is whether

Seward's interstate travel was part of the nature of the particular

crime at issue -- a § 2250 offense. For the reasons discussed, we

hold that it is.

- 15 - The dissent also misrepresents the Court's holding in

Lombardo. There, a defendant from Washington State harbored an

immigrant woman for the purpose of prostitution and subsequently

failed to file a required statement with the Commissioner General

of Immigration in violation of the Mann Act.

.

The Court concluded that the defendant could only be prosecuted

where the Commissioner's office was located -- namely, Washington,

D.C. -- and not in Washington State, where the defendant was

located and could have mailed the required statement from.

. The dissent implies strongly that the Lombardo

Court in reaching its conclusion considered the fact that the

harboring took place in Washington State and rejected such

harboring as part of the relevant offense, even though in the same

breath the dissent concedes that the Court never explicitly

considered the harboring element. See infra Section I n.3. To be

clear, the Lombardo Court nowhere addressed the question of whether

the harboring could render venue proper in Washington State.

Rather, it focused its inquiry squarely on the "filing"

requirement, reasoning that to "file" as written in the statute

meant to deliver to the office, not send through the mails; as

such, "filing" could only take place in Washington, D.C.7

at

7 Indeed, it is in this context that the Court agreed with the lower court's conclusion that "[t]he gist of the offense [was] the failure to file" the required statement with the Commissioner -- not to reject the prospect that the act of harboring could

- 16 - 76-79. Further, as the dissent too concedes, the question of

whether harboring conferred venue was not before the Lombardo Court

because the government there did not argue that it was. Moreover,

as Lombardo itself explains, "where a crime consists of distinct

parts which have different localities the whole may be tried where

any part can be proved to have been done."

.

Thus, finding Nichols not dispositive as to the venue

question, we return to the question of whether Carr, read in

conjunction with foundational venue jurisprudence, renders venue

for Seward's prosecution proper in Massachusetts. Carr

undoubtedly makes clear that interstate travel is an element of a

§ 2250 violation for state sex offenders. See

(listing interstate travel as one of § 2250's "three elements");

Holcombe,

. We must now decide whether Carr

indicates that the locus delicti for this offense encompasses the

departure jurisdiction and thus grounds venue there. For the

reasons below, we find that it does.

The Court's discussion in Carr of § 2250's travel

element points to the conclusion that the "offense" described in

§ 2250 is not merely a failure to register, but rather, a course

of conduct that begins with interstate travel. There, the Court

constitute part of the relevant offense, but rather to emphasize that filing, rather than mailing, was the required conduct. Id. at 76 (internal quotation mark omitted).

- 17 - explicitly rejected the argument that the interstate travel

element merely provided a jurisdictional hook, emphasizing that

"[t]he act of travel by a convicted sex offender may serve as a

jurisdictional predicate for § 2250, but it is also . . . the very

conduct at which Congress took aim,"

, and "an

aspect of the harm Congress sought to punish,"

.

Indeed, the Court's language in Carr makes clear that it

viewed interstate travel as a key step in the process by which sex

offenders slip through cracks in monitoring and enforcement. See

("[W]e have little reason to doubt that Congress

intended § 2250 to do exactly what it says: to subject to federal

prosecution sex offenders who elude SORNA's registration

requirements by traveling in interstate commerce." (emphasis

added)); see also id. at 452 (state sex offenders have violated

SORNA when they "use the channels of interstate commerce in evading

a State's reach" (emphasis added)); id. at 453 ("Congress in § 2250

exposed to federal criminal liability . . . [persons] who threaten

the efficacy of the statutory scheme by traveling in interstate

commerce." (emphasis added)). This language, emphasizing that

interstate travel is a critical mechanism by which potential § 2250

offenders "evade" or "elude" a state's enforcement reach, begs the

conclusion that Congress was concerned not merely with a failure

to register, but also the interstate travel preceding it.

- 18 - The conclusion that both the interstate travel and

failure to register elements are part of the nature of the § 2250

offense is bolstered further by the Carr Court's holding that the

elements of § 2250 must be read sequentially:

A sequential reading [of the elements]. . . helps to ensure a nexus between a defendant's interstate travel and his failure to register as a sex offender. Persons convicted of sex offenses under state law who fail to register in their State of conviction would otherwise be subject to federal prosecution under § 2250 even if they had not left the State after being convicted -- an illogical result given the absence of any obvious federal interest in punishing such state offenders.

Id. at 446. The Court's emphasis on the necessary "nexus" between

a state offender's interstate travel and his ultimate failure to

register reveals its understanding that Congress was concerned not

only with the failure to register, but rather the precise problem

that arises when an offender departs one state and moves to another

-- neither with accurate knowledge of his whereabouts.

We also recognize the bedrock principle that "[a]

court's lodestar in interpreting a statute is to effectuate

congressional intent." City of Providence v. Barr,

(1st Cir. 2020); see also Griffin v. Oceanic Contractors, Inc.,

(1982) (noting the courts' "task is to give

effect to the will of Congress"); Passamaquoddy Tribe v. Maine,

(1st Cir. 1996) ("The chief objective of statutory

interpretation is to give effect to the legislative will."). And

- 19 - in ascertaining the meaning of a statutory provision, we "must

. . . interpret the relevant words not in a vacuum, but with

reference to the statutory context, 'structure, history, and

purpose.'" Abramski v. United States,

, 179 (2014)

(quoting Maracich v. Spears,

(2013)). Examining

the legislative history behind both SORNA generally and § 2250 in

particular provides further support that interstate travel is part

of the nature of a § 2250 offense.

SORNA includes many subsections aimed at "establish[ing]

a comprehensive national system for the registration of [sex]

offenders." Carr,

(second alteration in original)

(quoting

, which later became

).

These include "maintain[ing] sex-offender registries that compile

an array of information about sex offenders, . . . mak[ing] this

information publicly available online, . . . [and] shar[ing] the

information with other jurisdictions and with the Attorney General

for inclusion in a comprehensive national sex-offender registry."

(citations omitted). Indeed, a reading of the

legislative history reveals that the system set forth in SORNA was

designed to combat what Congress saw as "[t]he most significant

enforcement issue in the sex offender program[,] . . . that over

100,000 sex offenders . . . are 'missing,'" a problem explicitly

linked to interstate travel because "[t]his typically occurs when

the sex offender moves from one State to another." H.R. Rep. No.

- 20 - 109-218, pt. 1, at 26 (2005), quoted in Carr,

.

Indeed, because, as the Court has recognized, "[t]he Act's express

purpose is to protect the public from sex offenders and offenders

against children[,] . . . SORNA covers more sex offenders, and

imposes more onerous registration requirements, than most States

had before." Gundy v. United States,

(2019)

(plurality opinion) (citation and internal quotation marks

omitted). Thus, as the Supreme Court recognized in Carr, § 2250

is best read as being "embedded in a broader statutory scheme

enacted to address deficiencies in prior law that had enabled sex

offenders to slip through the cracks."

.

The Court also importantly observed in Carr that

Congress' drafting of § 2250 shows it intended to "handle federal

and state sex offenders differently," and "to have given the States

primary responsibility for supervising and ensuring compliance

among state sex offenders." Id. at 452. This focus emphasizes

the states' particular interest in recordkeeping related to state

offenders like Seward who move in "the channels of interstate

commerce" and subsequently fail to register as required. Id. The

record makes clear that Massachusetts expended resources to

ascertain Seward's whereabouts, such as deploying law enforcement

when his location became unknown and issuing a warrant for his

arrest. Massachusetts was unaware that Seward had moved across

state lines precisely because of his failure to register in New

- 21 - York; a proper registration there presumptively would have, under

SORNA, triggered a notification to Massachusetts that Seward had

relocated.8 See

(b), (b)(3) ("[I]mmediately after

a sex offender registers or updates a registration, an appropriate

official in the jurisdiction shall provide the information in the

registry . . . about that offender to . . . each jurisdiction from

or to which a change of residence, employment, or student status

occurs."). New York undoubtedly had an interest in knowing that

Seward resided within it. But Massachusetts too retained an

interest in knowing Seward's whereabouts. Untethering the

interstate travel and failure-to-register elements from one

another divorces Massachusetts entirely from that interest.9

Seward's interstate travel and subsequent failure to

register therefore frustrated both a goal of SORNA generally, to

establish a system to monitor and locate missing sex offenders,

and the goal of § 2250 in particular, "to subject to federal

8 We find puzzling the dissent's emphasis that a public official, not an offender, is responsible for notifying other relevant jurisdictions of a change in residence. Presumably, such an official only becomes aware of an offender's change in residence once said offender has notified the appropriate authorities as required by SORNA.

9 We do not suggest, as the dissent contends, that state interests supersede individual interests in a venue inquiry. Rather, we reference Massachusetts's interest in knowing Seward's whereabouts, an interest the dissent concedes as valid, as yet further support for our conclusion that the nature of Seward's § 2250 offense necessarily encompasses interstate travel.

- 22 - prosecution sex offenders who elude SORNA's registration

requirements by traveling in interstate commerce." Carr,

. It is thus and again unsurprising that all but one of our

sister circuits to have addressed this question have applied Carr

to conclude that the locus delicti of a § 2250 offense "consists

of both traveling and failing to register." Kopp,

(emphasis added); see Holcombe,

("The offense

begins where the interstate journey begins, regardless of whether

the defendant had already formed an intent to violate the statute

when the interstate travel began."); Spivey,

("[U]nder Carr, the element of 'interstate travel' is an essential

conduct element for a conviction under § 2250(a)."); Lewallyn, 737

F. App'x at 475 ("Venue was proper in Georgia, where Lewallyn began

the offense that he completed by failing to register in North

Carolina."); but see Haslage,

.

Finally, we are persuaded yet further by the fact that

the relevant element of § 2250 in question -- "travels in

interstate commerce" -- contains an active verb ("travels"). While

this cannot itself circumscribe § 2250's locus delicti, see

Rodriguez-Moreno,

, it is in our view another thumb

on the scale weighing in favor of finding interstate travel part

of the nature of a § 2250 offense. This is especially true given

the Court's concern in Rodriguez-Moreno that "certain conduct

prohibited by statute will be missed" in an analysis of the nature

- 23 - of a given offense -- not that such conduct would be accidentally

included in it.10 Id. (emphasis added).

Accordingly, we hold that because the nature of the

offense reveals that its locus delicti encompasses the departure

jurisdiction, venue for Seward's prosecution was proper in

Massachusetts.11 See Holcombe,

("Interstate travel

10 We do not, however, suggest that a conduct element must always or automatically define the nature of a given offense. Contra Spivey,

(concluding that only conduct, not circumstance, elements are relevant in determining the nature of an offense). Rather, we reserve the possibility that an anterior or jurisdictional element, for example, may not be considered part of the nature of a given crime for purposes of determining venue even if it is considered to be a "conduct" element. 11 The dissent also poses a series of hypothetical scenarios which it claims illustrate that our holding today flouts constitutional venue principles. See infra Section II.B-C, III. These scenarios are not before us and are somewhat fanciful, and extended discussion of them is not warranted. We note in passing, however, that such prosecutions would necessarily be constrained by precisely the venue principles that the dissent identifies, such as the requirement that "a criminal defendant cannot be tried in a distant, remote or unfriendly forum solely at the prosecutor's whim." Salinas,

. We also find it possible -- but do not so hold today -- that constitutional concerns about Congress's power under the Commerce Clause may also preclude us were such scenarios before us from construing this offense to encompass a defendant like the dissent's hypothetical leaf-peeper, who may have traveled in interstate commerce before failing to register but whose travel did not -- in a but-for causation sense -- trigger the registration duty, as Seward's did. These concerns about the scope of the commerce power thus may require the interstate travel element to be read narrowly to include a but- for causation constraint and preclude the provision from being used to criminalize such travel. Cf. United States v. DiTomasso,

(1st Cir. 2010) (discussing whether § 2250 falls under Congress' authority under the Commerce Clause), vacated on other grounds,

(2012); United States v. Parks,

(1st Cir. 2012) (same); compare United States v. Lopez,

- 24 - requires a departure from one State just as much as arrival in

another.").

For the reasons above, the judgment of the district court

is affirmed.

-Dissenting Opinion Follows-

(1995) (discussing the limits of the commerce power), with Gonzales v. Raich,

(2005) (discussing the limits of Lopez).

- 25 - LIPEZ, Circuit Judge, dissenting. I agree with my

colleagues on the legal framework for our venue analysis. As

acknowledged by the majority, and reaffirmed repeatedly by the

Supreme Court, "the locus delicti12 must be determined from the

nature of the crime alleged and the location of the act or acts

constituting it." United States v. Anderson,

(1946) (footnote added); see United States v. Rodriguez-Moreno,

(1999); United States v. Cabrales,

(1998). We part ways, however, on the application of this

principle to

. In my view, based on a close

examination of the text and structure of the statute, its placement

in a comprehensive legislative scheme, and the Supreme Court's

venue precedents, the interstate-travel element is not part of the

nature of the crime. Rather, the nature of the crime defined by

§ 2250 is the failure to register or update a registration, such

that venue is proper only where that failure occurs. Accordingly,

I would vacate Seward's conviction and hold that venue for

prosecuting Seward was not proper in Massachusetts.

12Locus delicti is Latin for "place of the wrong," and it means "[t]he place where an offense was committed." Black's Law Dictionary (11th ed. 2019).

- 26 - I.

To determine the nature of the § 2250 offense, I look

first to the text of SORNA and the key Supreme Court case

interpreting that text, Nichols v. United States,

(2016). SORNA requires that a sex offender keep his or her

registration current by, "not later than 3 business days after

each change of name, residence, employment, or student status,

appear[ing] in person in at least 1 jurisdiction involved . . .

and inform[ing] that jurisdiction of all changes in the information

required for that offender in the sex offender registry."

(c) (previously at

). The statute

defines "jurisdiction involved" as one "where the offender

resides, where the offender is an employee, and where the offender

is a student."

§ 20913(a).

A sex offender who fails to comply with SORNA's

registration requirements may be criminally prosecuted pursuant to

, which reads:

(a) In general. --Whoever--

(1) is required to register under [SORNA];

(2)(A) is a sex offender [under SORNA] by reason of a conviction under Federal law . . ., the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or

- 27 - (B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; 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.

Sub-section 2(A) applies to people convicted of federal sex

offenses -- the government must prove only that they are subject

to SORNA and knowingly failed to register. Sub-section 2(B)

applies to people convicted of state sex offenses (like Seward).

For them, the government must prove that they are subject to SORNA,

traveled in interstate commerce, and knowingly failed to register.

In Nichols, the Supreme Court considered the interplay

of these various statutory provisions. Nichols, who had previously

been convicted of a federal sex offense, resided in Kansas until

he abruptly left the state and moved to the Philippines.

. He was arrested overseas, brought back to the United

States by federal marshals, and prosecuted in Kansas pursuant to

§ 2250. Id. Nichols moved to dismiss the indictment, asserting

that SORNA did not require him to update his registration in

Kansas. Id. Agreeing with Nichols, the Supreme Court held that

Kansas was no longer a "jurisdiction involved" under

(a) because the statute defines that term as a place in

which a person currently resides, works, or is a student, not a

place where the person previously resided.

In other words,

- 28 - Nichols had not violated SORNA, and could not be prosecuted

pursuant to § 2250, because he was no longer living, working, or

studying in a location covered by SORNA and therefore had no

obligation to notify any jurisdiction -- including his former

resident state, Kansas -- of his new residence. Nichols thus

establishes, as the government concedes, that Seward had no

obligation to update his registration in Massachusetts after he

moved to New York.

My colleagues dismiss the relevance of Nichols to the

instant case. They emphasize that Nichols did not concern venue.

They note that because Nichols, unlike Seward, had been convicted

of a federal sex offense, the government was not required to prove

that he had engaged in interstate travel in order to convict him

under § 2250, and thus Nichols did not address the question of

whether the interstate-travel element of § 2250 is part of the

nature of the crime. However, to know whether interstate travel

is part of the nature of the crime, we must first answer that very

question: what is the nature of § 2250? In answering that

question, Nichols is highly instructive.

The Court in Nichols reasoned that a defendant who moves

from a SORNA jurisdiction to a non-SORNA jurisdiction cannot be

charged for violating § 2250 because no act is legally required in

the non-SORNA jurisdiction, based on the plain language of the

statute. See id. at 1117-18. This rationale suggests that the

- 29 - nature of the § 2250 offense is the "failure to do a legally

required act." See Johnston v. United States,

(1956). Indeed, that characterization of § 2250 is reflected in

the statutory text: the title of the statute is "Failure to

register."13 And as I explain infra section II.A, in the absence

of a failure to register, a state sex offender who engages in

interstate travel has committed no criminal conduct.

This characterization of § 2250 puts it in the same

category as other crimes that the Supreme Court has characterized

as involving the failure to do a required act -- crimes like the

refusal to perform a duty mandated by a draft board, analyzed in

United States v. Anderson and Johnston v. United States, and the

13While "headings and titles are not meant to take the place of the detailed provisions of the text," Bhd. of R.R. Trainmen v. Balt. & Ohio R.R. Co.,

(1947), they remain valuable tools for resolving ambiguities in statutory text. See I.N.S. v. Nat'l Ctr. for Immigrants' Rights, Inc.,

(1991) ("[T]he title of a statute or section can aid in resolving an ambiguity in the legislation's text."). Here, the statutory ambiguity lies in the absence of an explicit venue provision dictating the locus delicti. Thus, it is appropriate to look to the title of § 2250 to help discern the core conduct criminalized by the statute for purposes of ascertaining venue. Cf. United States v. Pendleton,

(3d Cir. 2011) (relying, in part, on the title of

(c), "Engaging in Illicit Sexual Conduct in Foreign Places," to conclude that the locus delicti of the criminal offense was the location of the illicit sexual conduct, not the place where the foreign travel preceding the illicit sexual conduct began).

- 30 - failure to file a required statement under the Mann Act, analyzed

in United States v. Lombardo.

Anderson addressed venue for prosecution for refusal to

take an oath submitting to the draft.

. The Court

determined that the nature of the offense was "omitting to do

something which is commanded to be done," and that venue therefore

was proper only in the "place of performance" and "place of refusal

to perform," at least where those two places were "identical."

. Because taking an oath was the act "commanded to

be done," venue was proper only where the defendant was required

to take the oath and refused to do so, not where the draft board

that recruited the defendant was located.

Johnston involved a similar crime: the refusal to report

for civilian employment as ordered by a draft board.

. The Court recognized "the general rule that where the

crime charged is a failure to do a legally required act, the place

fixed for its performance fixes the situs of the crime," which in

turn "fixes the situs of the trial."

. Because the

defendant's failure to report constituted such a crime, the Court

determined that "venue must lie where the failure occurred."

. Thus, venue was proper only where the defendant failed to

report for work, not where the draft board was located.

.

- 31 - Lombardo is even more analogous to the issue presented

here. In Lombardo, the charged crime was the failure to file a

required statement under the Mann Act.

(1916).

Importantly, the defendant's own conduct that triggered the filing

requirement -- the harboring of an immigrant woman for purposes of

prostitution -- took place in Washington state, where the defendant

resided and was charged.

. However, the Court

expressly rejected the notion that the crime began in Washington

state.

. Rather, because "[t]he gist of the offense

[was] the failure to file with the Commissioner General of

Immigration a statement," venue was proper only in Washington,

D.C., where the office of the Commissioner was located. See

(internal quotation marks omitted) (quoting United States v.

Lombardo,

(W.D. Wash. 1915)).

These cases strongly support the proposition that the

failure-to-register element defines the nature of the § 2250

offense, and that the locus delicti of Seward's offense is

therefore limited to New York, where he failed to register pursuant

to SORNA's requirements. See Nichols,

(holding

that a defendant is required to register only in the new state

where he took up residence, education, or employment, not the

departure jurisdiction). None of these cases even hint at the

possibility that the site of any conduct of a defendant preceding

- 32 - the failure to register would be a proper venue for trying that

defendant.14

II.

Having reached this initial conclusion that the nature

of the § 2250 offense is the failure to register, I turn my focus

to the interstate-travel element and the remaining question --

whether that element should also be considered part of the nature

14The majority attempts to blunt the force of these cases by noting that none of the statutes at issue involved an interstate- travel element. Although true, that fact does not diminish the significance of the repeated invocation in these cases of "the general rule that where the crime charged is a failure to do a legally required act, the place fixed for its performance fixes the situs of the crime." Johnston,

. Moreover, as detailed above, and as the majority concedes, unlike the draft board cases, Lombardo did involve an anterior conduct element akin to interstate travel -- the harboring of an immigrant woman for purposes of prostitution. See Lombardo,

. Although the Court did not explicitly consider whether that harboring element properly conferred venue, it ultimately held that the state where the defendant performed the harboring was an improper venue for the prosecution.

. Contrary to the majority's insinuation, it seems highly unlikely that the Court would have affirmed the dismissal of the indictment for improper venue if the harboring element, which took place in that venue, was part of the nature of the crime. Indeed, it is telling that the government in Lombardo did not even attempt to argue that the anterior conduct of harboring conferred venue for a prosecution involving the failure to do a legally required act. Instead, the government asserted that the failure to do the required act itself (filing the required statement) began in the same state as that anterior element. See

.

- 33 - of the crime. Contrary to the majority, I answer that question in

the negative.

A. Lack of Mens Rea Requirement

The interstate-travel element of § 2250 is stated

simply: "travels in interstate or foreign commerce."

(a)(2)(B). Importantly, the statute does not attach a mens

rea requirement to the interstate-travel element. This fact

distinguishes § 2250 from other statutes in which the interstate

travel itself is the predicate for the offense. For example,

(b) criminalizes "[t]ravel with intent to engage in

illicit sexual activity," and the federal murder-for-hire statute,

, criminalizes "travel in interstate or foreign

commerce . . . with intent that a murder be committed . . . as

consideration for the receipt of . . . anything of pecuniary

value." Congress thus chose not to criminalize travel undertaken

for the purpose of evading SORNA's registration requirements. It

criminalized only the failure to register in the wake of travel,

regardless of the traveler's mindset.15

15In United States v. Pendleton, the Third Circuit held that interstate travel was not part of the locus delicti for

(c), which stated at the time: Any United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.

- 34 - Nichols, again, reinforces this point. If § 2250

criminalized travel undertaken to escape SORNA's registration

requirements, the defendant in that case, who "abruptly

disconnected all of his telephone lines, deposited his apartment

keys in his landlord’s drop-box, . . . boarded a flight to Manila[,

and] was a no-show at mandatory sex-offender treatment," would

have certainly committed a violation of the statute.

. Instead, because the defendant had no registration

obligation in his new place of residence outside the United States,

his elusive travel was not part of a course of criminal conduct

pursuant to § 2250.16 Accord United States v. Haslage,

(7th Cir. 2017) ("[T]he premise of Nichols is that

-04 (quoting

(c) (2006)). The structure of § 2423(c) is nearly identical to § 2250, and the court reasoned that travel was not part of the locus delicti in part because, "while travel in foreign commerce is an element of § 2423(c), the crime itself is not complete until a person engages in illicit sex." Id. at 304. This structure distinguished § 2423(c) from § 2423(b), which criminalized "[t]ravel with intent to engage in illicit sexual conduct," and which, the court explained, "is complete as soon as one begins to travel with the intent to engage in a sex act with a minor." Id. 16Although Nichols did not commit a violation of § 2250, his behavior did violate a Kansas law requiring sex offenders who leave the state to update their registrations in Kansas. See Nichols,

. Accordingly, the decision in Nichols did not "create loopholes and deficiencies in SORNA's nationwide sex- offender registration scheme,"

(internal quotation marks omitted); rather, it recognized the principle that "Congress . . . ha[s] given the States primary responsibility for supervising and ensuring compliance among state sex offenders," Carr v. United States,

(2010).

- 35 - [§ 2250] does not criminalize travel with intent to commit a crime

(i.e., to fail to register), but rather the failure to register

after traveling.").

The Court's analysis in Lombardo, highlighted by the

majority in its unavailing effort to distinguish that case, see

supra note 3, also supports the proposition that the lack of a

mens rea requirement indicates that interstate travel is not part

of the nature of the crime. In Lombardo, the Court rejected the

government's argument that venue was proper where the defendant,

if she had complied with the statute, would have mailed the

required form.

. The Court noted that the

statute required "filing," not "mailing," and "[a]nything short of

delivery would leave the filing a disputable fact."

at 77

(quoting Lombardo,

). In a later venue case, the

Court elaborated on that rationale, explaining: "Venue should not

be made to depend on the chance use of the mails. . . . After

mailing, the [document] might have been lost; petitioner himself

might have recalled it." Travis v. United States,

(1961).17

17The statute in Travis criminalized "him who knowingly makes any 'false' statement 'in any matter within the jurisdiction of any department or agency of the United States.'"

(quoting

(1948)). The Court held that the statute did not create a continuing offense.

. Although the false statement -- an affidavit swearing that the defendant was not a Communist -- was composed and mailed in Colorado, venue was proper only in the final destination where the false filing was

- 36 - The same logic applies to the interstate-travel element

of § 2250 due to its lack of a mens rea requirement. After a state

sex offender engages in interstate travel, his crime can be

"recalled" up until the point at which he actually fails to update

his registration. In other words, even if an offender intends to

use his interstate travel to elude SORNA's registration

requirements, if he changes his mind and performs the required

registration obligation when he reaches his new state of residence,

no crime has been committed. Accordingly, the lack of a mens rea

requirement for the interstate-travel element indicates that

Congress did not intend the place of travel to be part of the locus

delicti of § 2250.

B. Lack of Causal Relationship Between Interstate-Travel Element and Failure-to-Register Element

The absence of a causal relationship between the travel

element and the failure-to-register element also indicates that

Congress did not intend for venue to lie in the place of travel.

Interstate travel will never be the "but-for cause" of a sex

offender's failure to register because SORNA does not require a

sex offender to update his registration after interstate travel.

Instead, the requirement applies only after a "change of name,

made, i.e. Washington, D.C. See id. at 636 (reasoning that "[w]hen a place is explicitly designated where a paper must be filed, a prosecution for failure to file lies only at that place" (emphasis added)).

- 37 - residence, employment, or student status."

(a),

(c). Pursuant to SORNA, a state sex offender is free to travel

from Massachusetts to New Hampshire to go leaf-peeping without

notifying any authorities. He can even drive to Maine to spend

the whole summer with his grandparents and, as long as his trip

remains a vacation and not a relocation, he is not subject to any

federal registration requirement.18 Most importantly, even if he

succumbs to the beauty of the Maine coastline and decides to stay

permanently with his grandparents, it is that decision -- to change

his residence -- that triggers his federal registration

requirement, not his preceding interstate travel.

So too here. Seward necessarily engaged in interstate

travel when he changed his residence from Massachusetts to New

York, but that interstate travel did not subject him to any

registration obligation; rather, it was his change in residence

that triggered the obligation. In other words, the fact that

Seward's interstate travel happened to accompany his change in

residence is irrelevant under SORNA's statutory framework -- all

that matters is that it preceded his failure to register. See

Carr v. United States,

(2010) (holding that

the three elements of § 2250 must be satisfied sequentially).

18Of course, he may be subject to state reporting requirements, and any violation of those requirements might constitute a crime under state law. See supra note 5.

- 38 - The lack of a causal relationship between the

interstate-travel element and the registration obligation raises

the troubling prospect that, if interstate travel were part of the

locus delicti of § 2250, venue might lie in a location of

interstate travel bearing no relationship whatsoever to the sex

offender's failure to register, thereby running afoul of the

constitutional venue protections. See United States v. Scott,

(1st Cir. 2001) (noting that the Constitution's

venue provisions serve to prevent "government forum shopping" or

the selection of a venue with "the barest connection" to the crime

or the defendant).

Consider this hypothetical: a state sex offender lives

in the New Jersey suburbs and commutes on the train to New York

City daily. If he moves to a bigger house up the street and fails

to register his change in residence with the New Jersey

authorities, would we really consider New York a proper venue for

a § 2250 prosecution? Interpreting the travel element as part of

the nature of the crime would permit that choice.

Or consider this hypothetical from Haslage:

[A]n offender [residing in Indiana] is subject to SORNA's registration requirements. He then moves across state lines from Indiana to Kentucky with the intent to look for a new job, and registers in Kentucky with his new address within two days. But when he gets a new job a week later, he fails to update his Kentucky registration.

- 39 -

. Under these circumstances, the state sex offender

would be subject to prosecution under § 2250. He (1) is subject

to SORNA, (2) engaged in interstate travel by moving from Indiana,

his "departure state,"19 to Kentucky, and (3) failed to update his

Kentucky registration after he secured a new job. Yet, it is "a

strain to imagine" that Indiana would be a proper venue for that

prosecution. Id. Even though Indiana had a connection to this

offender's change in residence (he engaged in an interstate move

that began there), the offender properly performed the

registration update triggered by his change in residence. He

became criminally liable under § 2250 only after he registered his

new address, a full week passed, and he then got a new job and

failed to report that new job to Kentucky authorities. By that

point, his interstate travel from Indiana bore no relationship to

his failure to register, making Indiana a constitutionally

problematic venue choice that Congress would avoid. See FTC v.

Am. Tobacco Co.,

(1924) (rejecting a

constitutionally suspect interpretation of a statute on the basis

that Congress would not intend such a result).

C. The Problem of the "Pass-Through States"

Finding interstate travel to be part of the locus delicti

also raises a constitutional concern that venue would lie in the

19 I discuss the significance of the term "departure state" in greater detail infra section III.A.

- 40 - jurisdictions that the sex offender passed through on the way to

his final destination, even though they bear little relationship

to his failure to register -- the so-called "pass-through states."

For example, here, Seward might have driven through Connecticut as

part of his move from Massachusetts to New York. Or instead of

moving to New York, he might have moved to Florida and driven

through nearly every state along the east coast to get there. If

interstate travel is part of the locus delicti of § 2250, the

government could try Seward in any of those jurisdictions and

select the most favorable one for its prosecution, running afoul

once again of the constitutional venue protections. See United

States v. Johnson,

(1944) (noting that a

fundamental purpose of the constitutional venue provisions is to

avoid both the "abuses" and "the appearance of abuses . . . in the

selection of what may be deemed a tribunal favorable to the

prosecution"); United States v. Salinas,

(1st

Cir. 2004) (explaining that the venue protections "ensure[] that

a criminal defendant cannot be tried in a distant, remote, or

unfriendly forum solely at the prosecutor's whim"). No such

problem arises if we find, as I believe we must, that Congress

intended venue to be limited to the location of the failure to

register.

- 41 - III.

A. The "Departure Jurisdiction"

The majority attempts to avoid the constitutional

concerns raised by these aspects of the interstate-travel element

by purporting to limit its holding to the "departure jurisdiction"

only, meaning here Massachusetts -- the state from which Seward

departed on his way to New York where he failed to comply with the

SORNA registration requirement. However, this approach does

violence to the text of the statute and ultimately does not avoid

the problems that it seeks to circumvent.

The text of § 2250 gives no special treatment to the

departure jurisdiction. The interstate-travel element -- "travels

in interstate or foreign commerce,"

(a)(2)(B) --

says nothing to distinguish the departure jurisdiction from any

other jurisdictions that the defendant travels through. Nichols,

of course, reinforces that point, with its holding that a sex

offender who changes name, residence, school, or job has no

obligation to update his registration in a jurisdiction where he

no longer resides, receives an education, or works. See

.

The majority opinion itself reveals the difficulty with

limiting its holding to the departure jurisdiction. It says, at

times, that "interstate travel . . . [is] part of the nature of a

§ 2250 offense." If interstate travel is part of the nature of

- 42 - the § 2250 offense, how can interstate travel only matter for

purposes of venue when it occurs in the departure jurisdiction?

Put another way, how could Seward's travel through Massachusetts

somehow be more salient than his travel through, say, Connecticut,

when the text of § 2250, and the operation of SORNA, treat those

two states no differently?

The majority acknowledges that "[a] court's lodestar in

interpreting a statute is to effectuate congressional intent,"

City of Providence v. Barr,

(1st Cir. 2020), yet

it simultaneously "press[es] statutory construction 'to the point

of disingenuous evasion' . . . to avoid a constitutional question,"

in violation of that fundamental principle, see United States v.

Locke,

(1985) (quoting George Moore Ice Cream Co.

v. Rose,

(1933)) (rejecting a saving construction

of a statute that contorted the statutory text). The majority's

approach is especially troublesome when there is a clear

alternative means of avoiding these constitutional concerns and

remaining true to Congress's intent, as reflected in the text of

the statute: finding venue proper only where the failure to

register occurs.

Moreover, even if a holding limited to the departure

jurisdiction could be squared with SORNA's statutory text (and it

cannot be), such a holding still does not avoid all of the concerns

that I have identified. While the majority's holding will prevent

- 43 - courts in our circuit from finding venue proper in the "pass-

through states," it will not change the fact that, in the

hypothetical posed by Haslage, the defendant could still be tried

in Indiana -- the "departure state" -- even though Indiana had no

relationship with the failure to register. Thus, the lack of a

causal relationship between the interstate-travel element and

failure-to-register element of § 2250 remains a problem even under

the majority's contrived approach.

B. Justifying Its Holding as Constitutional As-Applied

In its final footnote, the majority suggests that

because there happened to be some causal relationship between

Seward's interstate travel and his failure to register, finding

venue proper in Massachusetts -- the site where his interstate

travel began -- is not unconstitutional as applied here, and the

constitutionally problematic future applications of its

interpretation of § 2250 are problems for another day. This

rationale reveals the majority's misunderstanding of both the

nature of the venue inquiry and the doctrine of constitutional

avoidance.

The venue analysis is not simply a means of determining

whether venue was constitutionally permissible in a particular

scenario. Rather, as the majority acknowledges, it is a means of

discerning congressional intent about where the locus delicti

should lie in the absence of an explicit statutory venue provision.

- 44 - See Rodriguez-Moreno,

(looking to congressional

intent about the scene of the crime to determine the locus delicti

of a crime proscribing "using or carrying a firearm 'during and in

relation to any crime of violence'" (quoting

(c)(1)

(1998))); United States v. Cores,

(1958)

(explaining that the venue analysis requires courts to ascertain

the type of statute "Congress is found to have created" and where

venue should lie accordingly). Thus, the fact that a particular

application of a statute does not raise constitutional venue

concerns tells us little about congressional intent regarding the

locus delicti, particularly where, as here, other applications of

the statute raise such concerns. See Clark v. Martinez,

(2005) (interpreting the Immigration and

Nationality Act to bar the detention of inadmissible immigrants

for longer than reasonably necessary, reasoning that Congress

would not intend the statute to result in certain unconstitutional

applications not present in the case before the court); Rust v.

Sullivan,

(1991) (noting the foundational

assumption that "Congress . . . legislates in the light of

constitutional limitations").

The majority also inverts the constitutional avoidance

doctrine. It suggests that unconstitutional applications of its

holding that interstate travel is part of the locus delicti can be

avoided in future cases by rewriting the statute to impose a

- 45 - causal-relationship requirement between the interstate-travel

element and the failure-to-register element. But, in fact, the

doctrine of constitutional avoidance requires the majority to do

the reverse: find that interstate travel is not part of the nature

of the crime -- i.e., that Congress did not intend for venue to

lie in the location of interstate travel -- to avoid those

unconstitutional applications of the statute that would require a

rewriting. As the Supreme Court has put it,

when deciding which of two plausible statutory constructions to adopt, a court must consider the necessary consequences of its choice. If one of them would raise a multitude of constitutional problems, the other should prevail -- whether or not those constitutional problems pertain to the particular litigant before the Court.20

20In Clark v. Martinez, the seven-member majority chastised the dissent for misunderstanding the doctrine of constitutional avoidance in the precise manner that my colleagues in the majority misunderstand it here. The dissent had argued that the Court should not interpret a statute to avoid unconstitutional applications that were not present in the instant case -- all that mattered, from the dissent's perspective, was that the statute was constitutional "as-applied to the plaintiff." Clark,

(Thomas, J., dissenting). The majority responded that the dissent misconceives -- and fundamentally so -- the role played by the canon of constitutional avoidance in statutory interpretation. The canon is not a method of adjudicating constitutional questions by other means. . . . It is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts. . . . And when a litigant invokes the canon of avoidance, he is

- 46 - Clark,

.

C. Misplaced Reliance on Carr

In its analysis of whether the interstate-travel element

is part of the locus delicti, the majority improperly relies on

several statements from Carr, all of which it misconstrues and

takes out of context. Ironically, the majority chides Seward for

relying on a non-venue case -- Nichols -- but then rests its

holding almost exclusively on dicta from another non-venue case

-- Carr.

1. Carr's Discussion of "Nexus"

Carr considered whether a state sex offender could be

prosecuted under § 2250 for failure to register when the interstate

travel necessary for the prosecution had occurred before SORNA was

enacted.

. If so, the defendant there argued,

§ 2250 violated the Ex Post Facto Clause of the Constitution. Id.

at 442. The Supreme Court answered the first question in the

not attempting to vindicate the constitutional rights of others, as the dissent believes; he seeks to vindicate his own statutory rights. We find little to recommend the novel interpretive approach advocated by the dissent, which would render every statute a chameleon, its meaning subject to change depending on the presence or absence of constitutional concerns in each individual case.

(citations omitted).

- 47 - negative and thus avoided reaching the second argument raised by

the defendant.

It held that to convict a state sex offender

of violating § 2250, the government must prove that the sex

offender satisfied the statute's three elements -- being subject

to SORNA, engaging in interstate travel, and failing to register

-- sequentially, meaning that the interstate travel must have

occurred after SORNA's enactment. Id. at 446-47, 458.

In reaching that conclusion, the Court in Carr explained

that:

A sequential reading [of the elements]. . . helps to ensure a nexus between a defendant's interstate travel and his failure to register as a sex offender. Persons convicted of sex offenses under state law who fail to register in their State of conviction would otherwise be subject to federal prosecution under § 2250 even if they had not left the State after being convicted -- an illogical result given the absence of any obvious federal interest in punishing such state offenders.

Id. at 446. The majority overreads the Court's discussion of a

"nexus between a defendant's interstate travel and his failure to

register as a sex offender." Id. The nexus imposed is modest:

the interstate travel must merely predate the failure to register

-- otherwise, the federal government could prosecute a state sex

offender who fails to register but does not even leave the state.

See id.

In making the nexus point, the Court in Carr did not

surreptitiously impose some closer nexus between the interstate-

- 48 - travel element and the failure-to-register element of § 2250 that

is lacking in the statutory text. Just because the government

must prove that a state sex offender's interstate travel predated

his failure to register does not mean that it must also prove that

the two elements were performed as part of a single course of

conduct. Indeed, pursuant to the plain language of § 2250, a state

sex offender's interstate travel may occur in a context completely

unrelated to his change in name, residence, employment, or

education, which in turn triggers his registration obligation.

See supra section II.B.

This aspect of § 2250 distinguishes it from the statute

at issue in Rodriguez-Moreno, which criminalized carrying or using

a firearm "during and in relation to" a crime of violence. See

. The "during and in relation to" language of the

statute tethered the crime-of-violence element and the gun-use

element together, criminalizing a single course of conduct that

could be tried wherever the crime of violence began.

at 281-

82. But § 2250 contains no such language tethering the interstate-

travel element to the failure-to-register element. Accordingly,

the majority is wrong to infer from Carr that § 2250 criminalizes

"a course of conduct that begins with interstate travel." That

interpretation simply cannot be squared with the statutory text.

- 49 - 2. Carr's Emphasis on Interstate Travel as "Conduct at Which Congress Took Aim"

The majority also seizes on Carr's statements that

"[t]he act of travel by a convicted sex offender may serve as a

jurisdictional predicate for § 2250, but it is also . . . the very

conduct at which Congress took aim,"

, and "an

aspect of the harm Congress sought to punish,"

. These

statements were a response to the government's argument that the

interstate-travel element of § 2250 could be satisfied by travel

prior to SORNA's enactment because it was merely a jurisdictional

hook. Id. at 451-54. In Scarborough v. United States, the Supreme

Court had held that for a statute that imposed criminal liability

on any convicted felon who "possesses . . . in commerce or

affecting commerce. . . any firearm," the prosecution did not have

to prove post-enactment movement of the gun across state lines

because the language "in commerce or affecting commerce" served

only to invoke federal jurisdiction under the Commerce Clause.

See

(1977) (quoting 18 U.S.C. App. § 1202(a)

(1970)); see also Carr,

. The government saw a

similarity in the jurisdictional elements of the two statutes.

The Court in Carr rejected that analogy as part of its

effort to save § 2250 from violating the Constitution's Ex Post

Facto Clause. See

; see also

(explaining that because it construed § 2250 as not applying to

- 50 - sex offenders whose travel predated SORNA's effective date, it did

not need to address whether the statute violates the Ex Post Facto

Clause). The Ex Post Facto Clause forbids "laws, whatever their

form, which purport to make innocent acts criminal after the

event." Lynce v. Mathis,

(1997) (quoting Beazell

v. Ohio,

(1925)). Thus, the foundational

principle behind the ex post facto prohibition is fair notice.

See id. at 441. Of course, only a person -- not a gun -- can

receive notice. Accordingly, subjecting a felon to prosecution

for possessing a firearm that moved in interstate commerce prior

to the felon-in-possession statute's enactment posed no ex post

facto problem, but subjecting a sex offender to prosecution for

engaging in an element of a crime before Congress had created that

crime could create an ex post facto problem. See Carr,

.

The Court in Carr, apparently operating under the

assumption that "Congress . . . legislates in the light of

constitutional limitations," Rust,

, found it

important that Congress "took aim" at conduct of the defendant

himself through the interstate-travel element, see Carr,

. In order to avoid an ex post facto problem, Carr thus

went to great lengths to emphasize the centrality of that conduct.

But there is no reason to believe that the Court would find that

aspect of § 2250 similarly important for purposes of venue or that

- 51 - the Court would even make such observations about the interstate-

travel element outside of the ex post facto context. Accordingly,

the significance of these statements from Carr cannot be understood

apart from the distinct issue presented there.

3. Distinction Between State and Federal Sex Offenders

As for the Carr Court's observation that Congress's

drafting of § 2250 indicates that it intended to "handle federal

and state sex offenders differently," id. at 452, that statement

does little more than establish that interstate travel is an

element of a § 2250 conviction for a state sex offender,21 but not

a federal sex offender. However, the simple fact that interstate

travel is an element of § 2250 for state sex offenders does not

mean that Congress intended that venue should lie wherever the

state sex offender engaged in that interstate travel. The Supreme

Court has specifically rejected the notion that venue lies any

place where an element of a crime is committed, see Cabrales,

(reasoning that, when a "defendant acts 'after the

fact' to conceal a crime," and "the first crime is an essential

element of the second," the location of the first crime's

commission is, nevertheless, not a "place appropriate to try the

21 In this respect, I disagree with the majority in Haslage that "interstate travel is a necessary precursor, but it is neither a distinct crime nor an element of the crime."

. Of course interstate travel is an element of the crime, but that fact does not necessarily mean that it confers venue.

- 52 - 'after the fact' actor") (emphasis omitted), and the majority

explicitly acknowledges as much in its penultimate footnote. Thus,

the statutory distinction between state and federal sex offenders

has little bearing on the question of the locus delicti for § 2250.

4. Carr's Reference to Sex Offenders Who "Elude" SORNA's Registration Requirements

The majority also turns to the legislative history of

SORNA and Carr's commentary on it, citing the Court's statement

that "Congress intended § 2250 to do exactly what it says: to

subject to federal prosecution sex offenders who elude SORNA's

registration requirements by traveling in interstate commerce."

. This statement appears in the section of Carr in

which the Court addressed the government's argument that the

purpose of § 2250 is to find "missing" sex offenders. Id. at 454-

56. According to the government in Carr, prosecuting a state sex

offender under § 2250 who had engaged in interstate travel prior

to SORNA's enactment was permissible because it was consistent

with that asserted statutory purpose. Id. at 454-55.

The Court rejected the premise of the government's

argument by concluding that finding missing sex offenders was the

purpose of SORNA generally, but not § 2250 specifically. Id. at

455 ("The Government's argument confuses a general goal of SORNA

with the specific purpose of § 2250. Section 2250 is not a stand-

alone response to the problem of missing sex offenders; it is

- 53 - embedded in a broader statutory scheme enacted to address the

deficiencies in prior law that had enabled sex offenders to slip

through the cracks."). The Court then explained:

Taking account of SORNA's overall structure, we have little reason to doubt that Congress intended § 2250 to do exactly what it says: to subject to federal prosecution sex offenders who elude SORNA's registration requirements by traveling in interstate commerce.

Id. at 456.

Contrary to the majority's assertion, this statement

does not purport to identify the site of interstate travel as the

locus delicti of § 2250 for purposes of venue. As I have previously

explained, see supra section II.A, § 2550 does not criminalize

interstate travel undertaken to "elude" SORNA's registration

requirements; rather, it criminalizes a failure to register after

changing name, residence, school, or workplace in the wake of

interstate travel. The real question for purposes of venue is

where the defendant's act of "eluding" takes place. The answer,

indisputably, is the location of the failure to register. Accord

Haslage,

. Thus, if anything, Carr supports rather

than undermines the proposition that the nature of § 2250 as a

failure-to-register offense means that its locus delicti is

determined by the location of the failure to perform -- New York,

in this case -- and not where preceding conduct that merely

satisfies an element of the crime takes place.

- 54 - D. Use of An Active Verb for Interstate-Travel Element

The majority employs the so-called "verb test" -- the

notion that active verbs in a statute define the conduct

constituting the nature of the crime -- to support its conclusion

that interstate travel is part of the locus delicti of § 2250. In

the majority's view, Congress's use of an active verb for the

interstate-travel element -- "travels in interstate commerce" --

is a "thumb on the scale weighing in favor of finding interstate

travel part of the nature of a § 2250 offense." However, as the

majority concedes, the Supreme Court in Rodriguez-Moreno expressly

rejected dispositive reliance on the "verb test" for ascertaining

the nature of the crime.

. Accordingly, although

the verb test may retain value as an interpretive tool, it does

not override all of the other reasons detailed above for rejecting

interstate travel as part of the nature of the crime.

IV.

As a final justification for its conclusion that venue

was proper in the District of Massachusetts, the majority cites

Massachusetts's "interest in knowing Seward's whereabouts," as

reflected in the state's expenditure of resources to locate Seward

and a provision of SORNA unrelated to § 2250 that requires

officials in a sex offender's new state of registration to notify

the so-called "departure state."

- 55 - No doubt Massachusetts had some interest in knowing

Seward's whereabouts. But for the purpose of the venue analysis,

the majority pulls this "state interest" test out of thin air.

None of the Supreme Court precedents addressing venue even mention

that general "state interests" should be factored into the venue

analysis.22 Rather, the venue analysis itself, by assessing where

the crime is committed, takes into account the interests of states

in prosecuting crimes that are committed within their borders.

Thus, Massachusetts's interests in knowing Seward's whereabouts or

its decision to expend resources to find him have no bearing on

the question of where Seward committed a violation of § 2250. If

that violation did not happen in Massachusetts, Massachusetts's

interests are irrelevant under the Supreme Court's prescribed

venue analysis. See Rodriguez-Moreno,

(quoting

Cabrales,

) (reaffirming that venue is determined

by "the nature of the crime alleged and the location of the act or

acts constituting it").

Indeed, the interests of Massachusetts in knowing

Seward's whereabouts are protected by other federal statutory

provisions, not § 2250. As the majority points out, a separate

provision of SORNA,

(b)(3), imposes a duty on "an

22 Indeed, in Cabrales, the Court noted that "the venue requirement is principally a protection for the defendant" rather than an issue of state interests. See

.

- 56 - appropriate official in the jurisdiction" where the sex offender

updates a registration to notify "each jurisdiction from . . .

which a change of residence . . . occurs." Notably, that duty is

imposed on a public official, not on the sex offender himself. As

Nichols makes clear, federal law imposes no obligation on the sex

offender to notify the departure jurisdiction of his residence

change. See

; see also Sex Offender Registration

and Notification Act (SORNA),

Stat. 590,

597, 600 (2006) (repealing the former federal requirement that sex

offenders report a change of address to the state that they are

leaving and adding the new requirement, now codified at

(b)(3), that public officials must report a new sex

offender's registration to that sex offender's former state of

residence). Thus, the notification obligation imposed on public

officials pursuant to

(b)(3) does not bear on the

nature of § 2250. The nature of the crime created by § 2250 is

the sex offender's failure to comply with SORNA's registration

requirements, and, pursuant to Nichols, that failure occurs only

in a single jurisdiction: the new residence, place of education,

or place of work.

Massachusetts also has a state law that that requires

sex offenders registered in Massachusetts to notify Massachusetts

officials if they move out of state. See Mass. Gen. Laws ch. 6,

§ 178E(i) ("A sex offender required to register pursuant to

- 57 - sections 178C to 178P, inclusive, who intends to move out of the

commonwealth shall notify the board not later than ten days before

leaving the commonwealth."). The Massachusetts legislature has

made violation of that law a crime, see id. § 178H(a), in order to

protect Massachusetts's interest in knowing the whereabouts of

previously registered sex offenders who abandon their

Massachusetts residences. Accord Nichols,

(noting that Nichols's failure to update his registration in Kansas

when he moved out of the state was a crime under Kansas law, even

if it was not a crime pursuant to § 2250). But, again, that fact

tells us nothing about the locus delicti of Seward's charged

offense, which was a violation of § 2250, not a violation of state

law or some other provision of SORNA.

Indeed, it was the violation of those Massachusetts

laws, coupled with Seward's failure to appear at his annual

registration appointment at the local Massachusetts police

department, that led state authorities to issue a warrant for his

arrest. Thus, the "resources" that Massachusetts expended

tracking down Seward were the result of his violation of state

law, not his alleged violation of § 2250.

The Court in Carr emphasized that "the federal sex-

offender registration laws have, from their inception, expressly

relied on state-level enforcement." Carr,

. The

reliance on that state-level enforcement will always result in the

- 58 - expenditure of resources in an effort to monitor sex offenders at

the state level. However, the interests of a state generated by

state-level monitoring have little bearing on venue for a crime

that focuses on a federal registration obligation.23 The question

is where that federal obligation must be performed, and where

Seward failed to perform it. The undisputed answer pursuant to

Nichols is New York.

V.

"[Q]uestions of venue are more than matters of mere

procedure. 'They raise deep issues of public policy in the light

of which legislation must be construed.'" Travis,

(quoting Johnson,

). With this fundamental

principle in mind, and for the reasons explained above, I would

hold that the locus delicti of § 2250 is limited to the

jurisdiction in which a state sex offender fails to register and

does not include any of the jurisdictions through which he travels,

including the so-called "departure state." Seward should not have

been prosecuted in the federal district court in Massachusetts.

His motion to dismiss the indictment should have been granted.

Accordingly, I respectfully dissent.

23 The majority acknowledges that state interests do not supersede individual interests in the venue inquiry, yet its elevation of state interests in its analysis of § 2250 tells a different story.

- 59 -