USA v. Lena Haslage

Filing

Filed opinion of the court by Chief Judge Wood. The judgments of the district courts are AFFIRMED. Diane P. Wood, Chief Judge; Ilana Diamond Rovner, Circuit Judge and Diane S. Sykes, Circuit Judge, dissenting. [6831088-1] [6831088] [16-3095, 16-3196]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 16 3095
UNITED STATES OF AMERICA,
Plaintiff Appellant,
v.
LENA RAE HASLAGE,
Defendant Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 16 CR 40 — Charles N. Clevert, Jr., Judge.

____________________
No. 16 3196
UNITED STATES OF AMERICA,
Plaintiff Appellant,
v.
TAUNGRA NICOLE TONEY,
Defendant Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 16 CR 43 — J.P. Stadtmueller, Judge.

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________________
ARGUED DECEMBER 6, 2016 — DECIDED APRIL 3, 2017
____________________

Before WOOD, Chief Judge, and ROVNER and SYKES, Circuit
Judges.
WOOD, Chief Judge. In Nichols v. United States, 136 S.Ct. 1113
(2016), the Supreme Court held that a sex o ender was not
required under the Sex O ender Registration and Noti ca
tion Act (SORNA), 18 U.S.C. § 2250, to update his registration
in the state where he had been residing, after he left his home
and moved to a new place. In Nichols, the new place was out
side the United States, in the Philippines. The two cases we
have consolidated for disposition on appeal present the more
conventional scenario of a person who moves from one state
in the United States to another—in Lena Rae Haslage’s case,
from Wisconsin to Washington State, and in Taungra Nicole
Toney’s case, from Wisconsin to Minnesota. In both cases, the
district courts dismissed the indictments for improper venue.
The government has appealed. We conclude, however, that
the district courts properly applied Nichols and that their
judgments must be a rmed.
I
Li le more need be said about the underlying facts of the
two cases. Haslage had been living in Wisconsin, where she
was registered as a sex o ender based on a 2006 conviction
for two o enses. After her initial registration, she updated her
le at least eight times in Wisconsin. She was released on pa
role in February 2015. Not long thereafter, in May, she cut o

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her electronic monitoring bracelet and took a train to Spo
kane, Washington. She did not register as required by SORNA
and state law in Washington.
Toney’s story is similar. She was convicted in 1999 in Min
nesota for prostitution related o enses. These required her to
register under SORNA as a sex o ender. By 2015, she was liv
ing in Wisconsin, where she was registered. In February of
that year, however, she left Wisconsin and traveled to Minne
sota, where she took up residence. In violation of SORNA, she
failed to register in Minnesota.
In March 2016, a federal grand jury in the Eastern District
of Wisconsin indicted both women in separate cases, each of
which contained one count of failure to register as a sex of
fender in violation of SORNA. Each moved to dismiss on the
ground that Nichols established that the government could
not establish venue in Wisconsin, because no o ense or part
of an o ense was commi ed in Wisconsin. Both district courts
granted the motion and dismissed for improper venue, and
these appeals on behalf of the government followed.
II
We begin with some basics. The Sixth Amendment to the
U.S. Constitution guarantees a defendant the right to trial by
“an impartial jury of the state and district wherein the crime
shall have been commi ed.” Re ecting this constitutional
command, the Federal Rules of Criminal Procedure also state
that “the government must prosecute an o ense in a district
where the o ense was commi ed.” FED. R. CRIM. P. 18. This
does not mean that there is one and only one district in which
a particular crime may be prosecuted. As we have recognized,

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“[m]any o enses touch more than one district. For these, Con
gress may, consistently with the Constitution, authorize
venue in any district where conduct that is part of the o ense
occurred.” United States v. Orona Ibarra, 831 F.3d 867, 872
(7th Cir. 2016). The question before us is thus whether any
conduct that is part of the o ense de ned by 18 U.S.C. § 2250
occurred in the Eastern District of Wisconsin. If yes, then the
district courts erred; if no, then their judgments were correct.
SORNA states that “[a] sex o ender shall register, and
keep the registration current, in each jurisdiction where the
o ender resides, where the o ender is an employee, and
where the o ender is a student.” 42 U.S.C. § 16913(a). In order
to keep her registration current, the o ender must:
not later than 3 business days after each change of
name, residence, employment, or student status, ap
pear in person in at least 1 jurisdiction involved pursu
ant to subsection (a) of this section and inform that ju
risdiction of all changes in the information required for
that o ender in the sex o ender registry.
Id. § 16913(c). The noti ed jurisdiction then has the responsi
bility to provide that information to all other jurisdictions in
which the o ender is required to register.
Failure to register as required is a crime, punishable by a
ne or a prison term of up to 10 years. 18 U.S.C. § 2250(a). The
statute covers (1) any sex o ender required to register under
SORNA, who (2) travels in interstate or foreign commerce,
and who (3) knowingly fails to register or update a registra
tion as required by SORNA. In an earlier SORNA case, the
Supreme Court held that liability under section 2250 cannot
be predicated on pre SORNA travel. Carr v. United States,

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560 U.S. 438 (2010). The key to our case, however, is the third
element. To understand that be er, we take a closer look at
Nichols.
The question before the Court in Nichols was “whether
federal law required Nichols to update his registration in
Kansas to re ect his departure from the State.” 136 S.Ct. at
1115. The Court observed that an earlier statute had imposed
the duty to report a change of address to the responsible
agency in the state from which the o ender was leaving, but
that SORNA repealed that part of the law and replaced it with
the language we quoted earlier. The Court thus reformulated
its question to be “whether the State a sex o ender leaves—
that is, the State where he formerly resided—quali es as an
‘involved’ jurisdiction under § 16913.” Id. at 1116.
The Court stressed the fact that 42 U.S.C. § 16913(a), which
identi es “involved” jurisdictions, uses the present tense: “re
sides,” “is an employee,” and “is a student.” It pointed out
that a person (such as Nichols) who moves from Leaven
worth, Kansas, to Manila, in the Philippines, no longer “re
sides” (present tense) in Kansas. It follows, the Court said,
“that once Nichols moved to Manila, he was no longer re
quired to appear in person in Kansas to update his registra
tion, for Kansas was no longer a ‘jurisdiction involved pursu
ant to subsection (c)’ of § 16913.” Id. at 1117. The Court found
further support for its conclusion in the fact that an o ender
who moves to a new place has three business days after each
change of residence to register in the new place. “SORNA’s
plain test … therefore did not require Nichols to update his
registration in Kansas once he no longer resided there.” Id. at
1118. In short, Nichols commi ed no o ense in Kansas, be
cause his travel alone did not violate SORNA. It is the change

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of residence that results from the travel, coupled with the fail
ure to register in the new place within the allo ed three days,
that SORNA reaches.
Like the two district courts whose decisions we are re
viewing, we read Nichols to hold that the act of leaving one’s
home in State A and traveling to State B is not a separable part
of the o ense de ned in section 2250 for purposes of criminal
venue. Indeed, in countless cases the act of traveling from
State A to State B will not be the predicate for any o ense at
all. SORNA does not prohibit all interstate travel; it does not
require registration by an o ender who travels from Chicago
to Hammond, Indiana, to a end a Saturday wedding; and it
places no obligation on the o ender to do anything in the state
of origin. (The Supreme Court noted that state law often re
quires more of an o ender, but that is of no importance for
purposes of federal criminal venue; it just means that SORNA
has not left a gaping loophole in the registration system.)
By contrast, there are statutes in which the act of traveling
from one state to another is the predicate for an o ense. The
Travel Act, for example, makes it a crime to travel interstate
with the intent to commit a crime or other unlawful activity.
See 18 U.S.C. § 1952; United States v. O’Hara, 301 F.3d 563
(7th Cir. 2002). The Mann Act, 18 U.S.C. §§ 2421–2424, crimi
nalizes interstate travel or transportation with the intent to en
gage in criminal sexual activity. In cases involving violations
of those statutes, the crime begins in the state where the de
fendant set out with the intent to cross a state line and commit
the crime.
But section 2250 is di erent; the premise of Nichols is that
it does not criminalize travel with intent to commit a crime
(i.e., to fail to register), but rather the failure to register after

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traveling. To illustrate this distinction, imagine a hypothetical
case in which an o ender living in Madison, Wisconsin, packs
up all of her belongings and drives to the rural upper penin
sula of Michigan with the intent to stay and live there “o the
grid” without registering. But imagine that, once she has
crossed the border, she hears a radio report about new sight
ings of wolverines and, terri ed, returns to her previous resi
dence in Madison the following day. She has commi ed no
crime under section 2250.
On the other hand, if this hypothetical o ender had also
taken her minor nephew along with her with the intent that
he engage in prostitution, she would have commi ed a crime
under the Mann Act as soon as she crossed the border,
whether or not she followed through on that plan. See
18 U.S.C. § 2423(a). It therefore makes sense to understand the
Mann Act violation as beginning in Wisconsin. But when it
comes to SORNA, Nichols tells us that no criminal conduct
even begins until she fails to register in Michigan, even if her
travel began in Wisconsin.
Another example may also help. As we have noted, section
2250 criminalizes a sex o ender’s failure to update his regis
tration as required in 42 U.S.C. § 16913(a). The la er statute
includes a duty to update each change in employment or stu
dent status. Imagine that an o ender 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. Presumably, he would be
subject to prosecution under section 2250 for this failure, but

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it is a strain to imagine that his crime had anything to do with
Indiana.
The government argues that venue is appropriate in Wis
consin because the Supreme Court’s decision in United States
v. Rodriguez Moreno instructs that venue is proper where the
distinct parts or conduct of criminal conduct occurred.
526 U.S. 275, 279–82 (1999). But Rodriguez Moreno involved a
di erent statute, and the di erence ma ers. There, the de
fendant was charged with violating 18 U.S.C. § 924(c)(1),
which prohibits using or carrying a rearm during and in re
lation to any crime of violence. The defendant had kidnapped
a victim in Texas and carried him through numerous states,
including New Jersey and Maryland, but had used a gun only
while in Maryland. Id. at 276–77. The Court emphasized that
section 924(c) contained two distinct conduct elements: (1) us
ing and carrying a gun and (2) the commission of a kidnap
ping. Id. at 280. Because the underlying and distinct crime of
violence (kidnapping) spanned the entire geographic area of
travel, venue was proper for the section 924(c) o ense any
where the kidnapping had continued.
As we know from the Court’s guidance in Carr, the ele
ments of a section 2250 violation for failure to register are se
quential, not distinct or independent. See United States v.
Sanders, 622 F.3d 779, 783 (7th Cir. 2010). A section 2250
SORNA violation for failure to register in one state does not
span the entire geographic range of states the o ender has
traversed, even though it might have been necessary to pass
through several states before reaching the destination. The in
terstate travel is a necessary precursor, but it is neither a dis
tinct crime nor an element of the crime. If it were, and we
therefore conceived of the crime as beginning in Wisconsin,

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we could nd ourselves faced with the absurd conclusion that
venue could be laid anywhere the travel occurred or evidence
of the travel was located (i.e., in Haslage’s case, perhaps in a
state such as Montana or Idaho; in Nichols’s case, perhaps
California).
The government urges that travel is part and parcel of this
crime, and so an essential (if not distinct) part of the prohib
ited conduct took place in Wisconsin. It would like us to ex
amine the contacts with Wisconsin to see how substantial they
are (i.e. where did the defendant’s acts take place; what are
the elements of the crime; what is the locus of the criminal
activity; how suitable would each district be for trial). The
glaring problem with this approach is that it starts from the
proposition that there are at least two permissible venues.
These considerations are of no help if the question on the table
is whether one place is permissible at all. It is true that Carr
held that the act of travel is “the very conduct at which Con
gress took aim.” 560 U.S. at 454. But Nichols tells us that travel
even to a place outside the United States did not transform the
defendant’s act of leaving Kansas into a Kansas based
SORNA violation. Furthermore, a closer look at Carr reveals
that it is not discussing travel alone; rather, it is talking about
those “who elude SORNA’s registration requirements by
traveling in interstate commerce.” Id. at 456. That takes us
right back to the question of the place where that act of elud
ing takes place. Nichols answers it: in the place of the new res
idence.
Haslage and Toney stand accused of commi ing o enses
under SORNA, but the charges show that if they did, they did
so in Washington State and Minnesota, not in Wisconsin. We
see nothing to prevent the government from alerting the

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U.S. A orneys in the Eastern District of Washington and the
District of Minnesota to these violations, and leaving it to
those authorities to prosecute. Only in that sense are the pre
sent cases di erent from, and easier than, Nichols, because in
Nichols the o ender left the United States and a empted to
nd refuge in a place beyond the reach of SORNA. Here, the
violations of section 2250 began, were carried out, and ended
in the place of the new residence. If either defendant were to
change residence again, we would have a di erent case, in
which we can assume at least two venues would be possible.
Even then, however, Wisconsin would not be a permissible
choice based solely on the fact that they lived there before fail
ing to register in a new place.
The judgments of the district courts are AFFIRMED.

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SYKES, Circuit Judge, dissenting. I disagree that Nichols v.
United States, 136 S. Ct. 1113 (2016), precludes the govern
ment from prosecuting these SORNA o enses in the Eastern
District of Wisconsin. Nichols addressed the scope of the
registration duty set forth in 42 U.S.C. § 16913, which estab
lishes SORNA’s basic registration requirements for sex
o enders. The decision did not address the elements of the
criminal o ense under 18 U.S.C. § 2250(a), which makes it a
crime to travel in interstate commerce and fail to register as
required by SORNA. Nor did the Court touch on the venue
question presented here.
Lester Ray Nichols, a federal sex o ender,1 was indicted
by a federal grand jury in Kansas for violating § 2250(a) after
he moved from Leavenworth, Kansas, to Manila, Philip
pines, without updating his sex o ender registration in
Kansas. 136 S. Ct. at 1117. He moved to dismiss the indict
ment, arguing that SORNA did not require him to update
his Kansas registration because he no longer resided in that
jurisdiction and was neither an employee nor a student
there. Id. The motion was denied and he conditionally
pleaded guilty. The Tenth Circuit a rmed, agreeing with the
district court that Nichols was required to update his Kansas
registration. Id.
The Supreme Court reversed. The question before the
Court was one of statutory interpretation: Does the text of
SORNA require a sex o ender when he moves out of state to

1 He was convicted in 2003 of traveling in interstate commerce with
intent to engage in illicit sexual conduct with a minor in violation of
18 U.S.C. § 2423(b). Nichols v. United States, 136 S. Ct. 1113, 1116–17
(2016).

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return to the departure state to update his registration there?
The speci c language of the relevant SORNA provision,
§ 16913(c), states: “[N]ot later than 3 business days after each
change of name, residence, employment, or student status”
the o ender must “appear in person in at least 1 jurisdiction
involved pursuant to subsection (a) of this section” and
provide that jurisdiction with all changes in his registration
information. A “jurisdiction involved” under subsection (a)
is a “jurisdiction where the o ender resides, where the
o ender is an employee, and where the o ender is a stu
dent.” § 16913(a). The use of the present tense was decisive.
The Court held that
[a] person who moves from Leavenworth to
Manila no longer ‘resides’ (present tense) in
Kansas; although he once resided in Kansas, af
ter his move he ‘resides’ in the Philippines. It
follows that once Nichols moved to Manila, he
was no longer required to appear in person in
Kansas to update his registration, for Kansas
was no longer a ‘jurisdiction involved pursuant
to subsection (a)’ of § 16913.
Nichols, 136 S. Ct. at 1117. In other words, if a sex o ender
moves to a new out of state residence, § 16913(c) does not
require him to appear in the departure state to update his
registration there.
As applied here, Nichols means only that Haslage and
Toney had no legal obligation to update their Wisconsin
registrations after they moved out of state.2 But Nichols does
2 Though they did have a legal duty to appear in Washington and
Minnesota, respectively, for that purpose.

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not mean that the two women cannot be prosecuted in a
Wisconsin district court for violating § 2250(a).
The speci c language of § 2250(a) is as follows:
(a) In general.—Whoever—
(1) is required to register under the Sex
O ender Registration and Noti cation
Act;
(2)(A) is a sex o ender [under SORNA] by
reason of a conviction under Federal
law … , the law of the District of Co
lumbia, Indian tribal law, or the law of
any territory or possession of the United
States; or
(B) travels in interstate or foreign com
merce, 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 ned under this title or imprisoned not
more than 10 years, or both.
Take particular note of subsections (2)(A) and (B). A fed
eral sex o ender is directly subject to federal criminal liabil
ity for a knowing failure to update his registration; a state sex
o ender, on the other hand, is subject to federal criminal
liability only if he travels in interstate commerce and know
ingly fails to update his registration as required by SORNA.
Haslage and Toney are state sex o enders. So for them,
interstate travel is an essential element of the § 2250(a)
o ense. Carr v. United States, 560 U.S. 438, 445–46 (2010).

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Criminal venue is governed by rule and statute and is
also subject to constitutional limits. As my colleagues ex
plain, Majority Op. at p. 3, Rule 18 of the Federal Rules of
Criminal Procedure supplies the general rule: “Unless a
statute or these rules permit otherwise, the government must
prosecute an o ense in a district where the o ense was
commi ed.” Rule 18 mirrors the Constitution’s references to
criminal venue.3
Here, however, venue is governed by a more speci c
provision: 18 U.S.C. § 3237(a). That statute provides a special
venue rule for crimes begun in one district and completed in
another:
Except as otherwise expressly provided by en
actment of Congress, any o ense against the
United States begun in one district and completed
in another, or commi ed in more than one dis
trict, may be inquired of and prosecuted in any dis
trict in which such o ense was begun, continued, or
completed.
Any o ense involving the use of the mails, trans
portation in interstate or foreign commerce, or the
importation of an object or person into the
United States is a continuing o ense and, except
Article III of the Constitution provides: “The Trial of all Crimes … shall
be held in the State where the said Crimes shall have been com
mi ed … .” U.S. CONST. art. III, § 2. The Sixth Amendment provides: “In
all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein the
crime shall have been commi ed, which district shall have been previ
ously ascertained by law … .” U.S. CONST. amend. VI. Haslage and
Toney do not advance a constitutional argument here.
3

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as otherwise expressly provided by enactment
of Congress, may be inquired of and prosecuted in
any district from, through, or into which such
commerce, mail ma er, or imported object or
person moves.
§ 3237(a) (emphases added). Prosecution in district court in
Wisconsin is proper under both paragraphs of § 3237(a).
As I’ve explained, because Haslage and Toney are state
sex o enders, interstate travel is an essential element of the
§ 2250(a) o enses charged in these cases. Without it there is
no federal crime. Although the crimes were not completed
until Haslage and Toney failed to appear in person in their
new home states and provide that jurisdiction with their
registration information, the o enses clearly began in
Wisconsin when each woman commenced the interstate
travel that is a necessary element of this crime.
My colleagues say that “interstate travel is a necessary
precursor, but it is neither a distinct crime nor an element of
the crime.” Majority Op. at p. 8. Interstate travel is certainly
not a distinct crime, but it is an element of the § 2250(a)
o ense for a state sex o ender. That much is clear from Carr.
There the Court parsed “the statute’s three elements”: (1) a
qualifying sex o ense, which triggers the registration duty;
(2) interstate travel; and (3) a failure to register as required
by SORNA. 560 U.S. at 446 (emphasis added). Nichols did
not alter these elements of the crime for state sex o enders
who are subject to SORNA requirements. Indeed, Nichols
involved a federal sex o ender, not a state sex o ender. So
the Court had no occasion to comment on whether Carr’s
holding—that interstate travel is a required element of the
§ 2250(a) o ense for state sex o enders—remains good law.

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No Supreme Court decision suggests that it is not good law.
Carr’s analysis of the elements of the § 2250(a) o ense con
trols here.
The crimes charged in these two cases began in Wiscon
sin and were completed in the states of Washington (Has
lage) and Minnesota (Toney). The venue statute plainly
permits the government to prosecute a crime “begun in one
district and completed in another” in “any district” in which
it was “begun, continued, or completed.” § 3237(a). Because
the interstate travel—an element of the o ense—began in
Wisconsin, venue is proper in district court in Wisconsin.
As additional support for the government’s choice of
venue, § 3237(a) provides that any o ense involving trans
portation in interstate commerce may be prosecuted “in any
district from, through, or into which such commerce …
moves.” These crimes involved transportation in interstate
commerce “from” Wisconsin, so the government may prose
cute them in a district court in Wisconsin.
Accordingly, I would reverse the judgments of the
district courts dismissing the indictments for improper
venue. I respectfully dissent.