USA v. Michael Harper

Filing

Per Curiam OPINION filed to dismiss as moot, decision not for publication pursuant to local rule 206. Martha Craig Daughtrey, Circuit Judge; R. Guy Cole , Jr., Circuit Judge and John M. Rogers, Circuit Judge. [11-3741, 11-3532]

Case: 11-3741

Document: 006111463616

Filed: 10/12/2012

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1069n.06
Nos. 10-3036/11-3741/11-3532

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Oct 12, 2012

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL R. HARPER,
Defendant-Appellant.

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DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF OHIO

Before: DAUGHTREY, COLE, and ROGERS, Circuit Judges.

PER CURIAM. Defendant Michael R. Harper appeals both his conviction for failure
to update his registration under the federal Sex Offender Registration and Notification Act
(SORNA), 18 U.S.C. § 2250(a), and the 18-month sentence imposed by the district court
based on the jury verdict finding him guilty. On appeal, Harper contends that SORNA is
unconstitutional on various grounds; that the evidence presented at trial was legally
insufficient to convict and, moreover, that it created a fatal variance with the indictment;
that the district court erred in three evidentiary rulings at trial and in its response to a
question from the jury during deliberations; and that his sentence was both procedurally
and substantively unreasonable. We note at the outset that the question of SORNA’s
constitutionality on the same grounds raised by Harper has been foreclosed by our recent
opinions in United States v. Felts, 674 F.3d 599 (6th Cir. 2012), and United States v.

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Coleman, 675 F.3d 615 (6th Cir. 2012). We therefore pretermit discussion of that issue
in this appeal and, finding no merit to the remaining claims, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Harper’s obligation to comply with SORNA arose from his 1990 conviction in
Minnesota state court for attempted sexual abuse of a minor. Claiming that he was too
intoxicated to recall his assault on a 15-year-old girl, Harper entered an Alford plea and
was sentenced to five years’ probation. However, he absconded and was not located and
rearrested until 1999. Convicted of violating his parole, Harper was sentenced to 13
months in prison. In November 1999, two days before his release to a halfway house,
Harper met with a corrections official who helped him fill out his initial sex-offender
registration form,1 under a Minnesota law enacted in 1993 that applied to all such offenders
then in custody or on parole. She advised him of his obligations as a registered sex
offender – he would be required to maintain registration for a period of ten years from the
date of this initial registration and was obligated to update his registration five days prior
to changing his residential address in Minnesota or another state. Harper signed “under
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The record with regard to Harper’s initial registration was established through the testim ony of
Laraine Lekander, the case m anager for the Minnesota Departm ent of Corrections who screened Harper at
intake and handled the paperwork at the tim e of his release. On Novem ber 15, 1999, she went over the Sex
Offender Notification and Registration Form that constituted Harper’s initial registration and secured his
signature on the form . It contained the essential inform ation about the 1990 sex-offense conviction that
necessitated registration, the address of the halfway house in St. Paul to which he would transfer two days
later, and a “registration advisory” notifying him of his obligation to update the inform ation provided on the
registration form “at least five days prior to changing that address, including m oving to another state.” W hen
Harper left the halfway house in April 2000 without updating his address, this first failure to com ply constituted
a “gross m isdem eanor” under Minnesota Statute § 243.160. W hen he left the state som etim e later, without
giving five days’ prior notice, the second non-com pliance constituted a felony. Id.

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duress,” adding a reference to a state statute that prohibited retroactive application of
changes in prison rules and policies but obviously did not apply to the registration statute.

After his release from the halfway house, Harper lived in several states, moving from
Minnesota to Florida, Arizona, North Carolina and, finally, to Ohio, where he settled in
Cincinnati in April 2009. He did not re-register in any of those states but, based on
information from a North Carolina law enforcement official, he was contacted by letter from
the Hamilton County (Ohio) Sheriff’s Office in June 2009 and advised that he needed to
appear there in person within three days and register or face certain specified
consequences. Harper did not appear as directed, but he did call the Sheriff’s Office to
explain that he was not required to register.

When told by an official there that

documentation from Minnesota indicated to the contrary, he responded by saying that he
would “see her in court.” As a result, an officer was sent to Harper’s residence to verify the
address and had Harper sign a form acknowledging his address. That form was not a
registration document, but it did advise Harper that he must appear in person at the
Sheriff’s Office in order to register properly.

When Harper did not appear as directed, his case was submitted to the grand jury,
which returned an indictment on July 22, 2009, charging that Harper was “an individual
required to register under the Sex Offender Registration and Notification Act, [who had]
traveled in interstate and foreign commerce and did knowingly fail to update a registration
as required by the . . . Act.” After a two-day jury trial, Harper was found guilty and was

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subsequently sentenced to 18 months in prison, a term at the low end of the applicable
sentencing range. He now appeals both his conviction and sentence.

DISCUSSION

Sufficiency of the Evidence

Title 18 U.S.C. § 2250(a) provides that a sex offender who is required to register
under SORNA and who, having traveled in interstate commerce, “knowingly fails to register
or update a registration” is subject to a fine or imprisonment. At trial, Harper did not
contest his status as a convicted sex offender or deny that he had traveled in interstate
commerce. However, at the end of the government’s proof, Harper made a motion for
judgment of acquittal under Federal Rule of Criminal Procedure 29, arguing that the
government had failed to prove that he had knowingly failed to register. The motion was
denied, and the defense rested without presenting evidence. Harper now contends, in
addition to the argument in his Rule 29 motion concerning knowledge, that there was
insufficient proof that he had a duty to register or that he traveled in interstate commerce
after that duty arose.

We review de novo the denial of a motion for acquittal, viewing the evidence in “a
light most favorable to the prosecution, giving the prosecution the benefit of all reasonable
inferences from the testimony.” United States v. McAuliffe, 490 F.3d 526, 537 (6th Cir.
2007). In doing so, we will “reverse a judgment for insufficiency of evidence only if [the]
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judgment is not supported by substantial and competent evidence upon the record as a
whole.” United States v. Stone, 748 F.2d 361, 363 (6th Cir.1984). The failure to raise an
issue in a Rule 29 motion constitutes a waiver, and our review is then “limited to
determining whether there was a manifest miscarriage of justice,” which exists “only if the
record is devoid of evidence pointing to guilt.” United States v. Price, 134 F.3d 340, 350
(6th Cir. 1998) (citations and internal quotations omitted).

The record in this case is clearly not devoid of evidence that Harper had a duty to
register initially under Minnesota’s sex-offender registration statute. In fact, the record
establishes that Harper did register in November 1999 and was informed at that time that,
pursuant to Minnesota state law, he would be under a duty for a period of 10 years to reregister each time he changed his address. Subsequently, in 2006, Congress enacted
SORNA for the purpose of “creat[ing] a national system for the registration of sex
offenders.” United States v. Utesch, 596 F.3d 302, 306 (6th Cir. 2010) (citing 42 U.S.C.
§ 16901). The Act included a delegation by Congress that allowed the Attorney General
of the United States to determine retroactivity. See 42 U.S.C. § 16913(d). On August 1,
2008, the Attorney General proclaimed the Act retroactive to “all sex offenders including
offenders convicted . . . prior to the enactment of [SORNA].” 28 C.F.R. § 72.3. Harper
thereby became obligated to update his registration under the federal statute as of that
date. Because the 10-year period imposed by state law had not elapsed when Harper was
contacted by the Hamilton County Sheriff’s Office in June 2009, he was under a duty to
comply with SORNA.
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Hence, the government proved that Harper, having initially registered in November
1999, was under a duty to update his registration thereafter and that he traveled in
interstate commerce while under a duty to update his registration. His arguments to the
contrary were and are simply unpersuasive. He claimed, for example, that the Minnesota
state judge told him that he would be “done” once he served his 13-month sentence for
parole violation. However, that comment apparently referred to the fact that Harper was
“done” with post-imprisonment supervsion and would not be subject to parole again, once
the new sentence was served. The subject of registration as a sex offender was not
mentioned, but that omission and the judge’s failure to check a box on the judgment order
calling for sex-offender registration were legally irrelevant, given the Minnesota statute’s
provision that “[i]f a person required to register . . . was not notified by the court of the
registration requirement at the time of sentencing or disposition, the assigned corrections
agent shall notify the person of the requirements” of the statutory provisions. Minn. Stat.
§ 243.166, subd. 2. That is, of course, exactly what occurred in Harper’s case. As a result,
his contention that he was not obligated to register prior to the “notice” that he received
from Hamilton County officials is simply not supported by the record. Moreover, his claim
that he voluntarily “registered” in Hamilton County after receiving notice is unavailing – he
finally updated his registration only as a condition of pre-trial release.

Finally, we note that appellant’s reliance on State v. Williams, 952 N.E.2d 1108
(Ohio 2011), is misplaced. In Williams, the Ohio Supreme Court held that the retroactive
application of a 2007 amendment to the state sex-offender classification system violated
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the Ohio constitution, but Williams clearly did not invalidate the Ohio state registration
system as a whole. Moreover, Williams is irrelevant in this case, because Harper’s duty
to register under SORNA was independent of state registration obligations. See Felts, 674
F.3d at 603.

Variance Between Indictment and Evidence at Trial

On appeal, Harper also contends that the evidence at trial created a fatal variance
with the indictment – specifically, that the indictment charged an obligation to register in
Ohio, but the evidence proved that he had a duty to register in Minnesota and North
Carolina. We would normally review the question of a variance de novo, but in this case,
the defendant failed to raise the issue in his Rule 29 motion, instead raising it for the first
time on appeal. We therefore review it for plain error only, and we find none. See Price,
134 F.3d at 350. The indictment charged that he had failed to “update a registration as
required by the . . . Act,” and that is precisely what the evidence presented by the
government established. There was no variance and thus no error in this regard, plain or
otherwise.

Evidentiary Rulings at Trial

Harper argues, for the first time on appeal, that the district court erred in admitting
evidence of “other crimes” under Federal Rule of Evidence 404(b) through testimony by
a deputy sheriff from North Carolina that while Harper had resided in North Carolina, and
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before moving to Cincinnati, he had been notified that he was required to update his
registration but did not comply. Harper objected to this testimony at trial but only on the
basis of hearsay. As a result, there was no Merriweather hearing under Rule 404(b), see
United States v. Merriweather, 78 F.3d 1070, 1076-77 (6th Cir. 1996), and we review the
district court’s decision for plain error, rather than under the usual abuse-of-discretion
standard. See United States v. Allen, 619 F.3d 518, 523 (6th Cir. 2010). We find neither.
Because Harper’s defense was that he had not knowingly failed to register under SORNA,
evidence that he was repeatedly advised of his obligation under the Act was highly
relevant. Moreover, the jury was instructed that it could not convict Harper for failure to
register before moving to Ohio and should consider the evidence in question only for the
purpose of determining that he acted knowingly in failing to update his registration in Ohio,
rather than by accident or mistake. Under these circumstances, there was no error. See
id. at 525.

Harper did object at trial to the introduction of certified public records as evidence
of his 1990 sex-offense conviction in Minnesota, but the documents were relevant to
establish the elements of SORNA and were admitted as self-authenticating public records
under Federal Rule of Evidence 902. The district court did not commit an abuse of
discretion in admitting these documents.

Harper next contends that the district court erred in refusing to admit transcripts from
his revocation hearing in the Minnesota state court, purportedly to show that there was no
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duty to register ordered at that time and that he was, therefore, not guilty of failing to
register in Ohio. However, the motion to admit the transcripts came not in connection with
Harper’s trial but at his sentencing hearing, purportedly “for purposes of appeal” of the
district court’s denial of the defendant’s earlier Rule 29 motion. The district court declined
to permit expansion of the trial record in this irregular manner and denied Harper’s motion.
In addition, the evidence, if admitted, would have been cumulative, for the reasons set out
earlier in this opinion. We find no abuse of discretion in the district court’s decision and,
therefore, no error.

Request by Jury

Nor did the district court err in its response to the jury’s request during deliberations
for a copy of both the Minnesota statute that Harper noted on his original registration form
and the portion of SORNA charged in the indictment. The judge consulted with counsel
before declining to provide copies of either statute, indicating that he was satisfied that he
had given the jury appropriate instructions on the applicable law and that the requested
material might prove confusing. Instead, the district court referred the jury to the relevant
portions of the instructions, thereby properly “respon[ding] to the jury’s specific concern[s]
while prudently refocusing the jury on the instructions and evidence as a whole.” United
States v. Davis, 490 F.3d 541, 548 (6th Cir. 2007).

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Sentencing

Harper first claims that his 18-month sentence was procedurally deficient because
the district court failed to address his non-frivolous arguments adequately and, based on
those arguments, should have granted his request to be sentenced to time served, 91
days. A review of the sentencing hearing indicates, however, that the court did consider,
directly or indirectly, each of the three points that the defendant now raises: (1) that he
was characterized as “low risk” in a Minnesota risk assessment; (2) that he had not been
arrested for any serious misconduct since then; and (3) that he had complied with the sexoffender registration requirement once he was ordered by the district court to do so. But
the risk assessment was 10 years old at the time of the sentencing in this case, having
been done at the time Harper was released from prison in Minnesota. And, as the district
judge noted, because Harper had a continuing duty to update his sex-offender registration
each time he changed addresses but had moved in and out of five or six states without
complying, he had repeatedly violated the Minnesota statute.

It was clear at the

sentencing that no matter how many times the registration requirements had been
explained to him, Harper remained personally convinced that he had no obligation under
the Minnesota state registration law, apparently because no judge had actually ordered him
to register until the district court did so as a condition of his pre-trial release. Under all the
circumstances that were brought out at the sentencing hearing, the 18-month sentence
was procedurally reasonable.

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The defendant also claims that the sentence was substantively unreasonable in that
it was greater than necessary, given that the underlying sex offense occurred in 1989,
some 20 years earlier. However, the offense for which Harper was being sentenced was
not the underlying conviction but his failure to comply with SORNA, as charged in the
federal indictment. Moreover, the district court carefully went over the factors set out in 18
U.S.C. § 3553(a), addressing the nature, circumstances, and seriousness of Harper’s
offense, his criminal history, the need for deterrence, and the need to protect the public.
We conclude that Harper has failed to overcome the presumption of reasonableness that
attaches to a sentence falling within the guidelines, noting once again that his sentence fell
at the lowest end of the applicable guideline range. See United States v. Williams, 436
F.3d 706 (6th Cir. 2006).

CONCLUSION

For the reasons set out above, we AFFIRM the district court’s judgment in appeal
No. 10-3036. In addition, we DISMISS as moot consolidated appeals No. 11-3532 and No.
11-3741, which challenged the district court’s rulings on the defendant’s motions for
release pending appeal.

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