USA v. Kevin Crowder

Filing

FILED OPINION (A. WALLACE TASHIMA, CARLOS T. BEA and SANDRA S. IKUTA) AFFIRMED., Judge: SSI Authoring. FILED AND ENTERED JUDGMENT. [7875530]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEVIN LEROY CROWDER,
Defendant-Appellant.





No. 10-30125
D.C. No.
2:09-cr-00025DWM-1
OPINION

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted May 6, 2011*
Portland, Oregon
Filed August 30, 2011
Before: A. Wallace Tashima, Carlos T. Bea, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta

*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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UNITED STATES v. CROWDER

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COUNSEL
Michael Donahoe, Federal Defenders of Montana, Helena,
Montana, for defendant-appellant Kevin Leroy Crowder.

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UNITED STATES v. CROWDER

Marcia Hurd, Assistant United States Attorney, Billings,
Montana, for plaintiff-appellee United States.

OPINION
IKUTA, Circuit Judge:
The Sex Offender Registration and Notification Act
(SORNA) imposes criminal penalties on any person who
“knowingly fails to register or update a registration as
required by [SORNA].” 18 U.S.C. § 2250(a). This appeal
requires us to decide whether the government must prove that
a defendant knew that SORNA imposed a registration requirement in order to convict a defendant of a violation of this statute. We join our sister circuits in holding that the government
need not prove this knowledge element and affirm the district
court.
I
In June 2007, Kevin Leroy Crowder was convicted of child
molestation in Washington state court and sentenced to two
years confinement, followed by three to four years community custody (i.e., probation). On June 22, 2007, he received
and signed a certified copy of his judgment and sentence
form, which informed him that as a sex offender, he was “required to register with the sheriff of the county of the state of
Washington” where he resides, and that if he moved “out of
Washington State,” he had to “send written notice within 10
days of moving to the county sheriff with whom [he] last registered in Washington State,” and then “register a new
address, fingerprints, and photograph with the new state
within 10 days.” Upon his release from prison, on May 28,
2008, Crowder completed a Washington state sexual offender
registration form, registering at the King County Sheriff’s
Office. The registration form stated that if Crowder “move[d]

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out of Washington State,” he had to “send signed written
notice within ten days of moving to the new state or foreign
country, to the county sheriff with whom [he] last registered.”
And if he “knowingly fail[ed] to comply with these registration requirements, [he would be] guilty of a . . . felony.” One
week later, he filed a change of address form.
In March or April 2009, Crowder left Washington for Montana without advising either state to that effect. After a short
stay with a woman he met at a bus stop, Crowder set up a
campsite in a national forest. He was arrested on September
29, 2009, at a convenience store in Bozeman. In October
2009, a federal grand jury indicted Crowder for failure to register as a sex offender, in violation of 18 U.S.C. § 2250(a).
The indictment stated: “KEVIN LEROY CROWDER, a sex
offender by reason of a conviction under Washington law for
Child Molestation in the Second Degree, a Felony, and a person required to register under [SORNA], traveled in interstate
commerce to Montana, and did knowingly fail to register
and/or update a registration, in violation of 18 U.S.C.
§ 2250(a).” He entered a not guilty plea and opted for a bench
trial. The district court rejected Crowder’s argument that he
did not receive “actual notice” of the federal sex registration
requirements, relying on the Eighth Circuit’s decision in
United States v. Baccam, 562 F.3d 1197 (8th Cir.), cert.
denied, 130 S. Ct. 432 (2009), and found him guilty. Crowder
timely appeals. We have jurisdiction under 28 U.S.C. § 1291.
II
A
Before SORNA was enacted, the Wetterling Act, 42 U.S.C.
§§ 14071-73, repealed by SORNA, Pub. L. 109-248 (2006),
required states to establish a sex offender registration program
that met federal requirements or lose 10 percent of federal
funding for law enforcement programs. Id. § 14071(g). “[B]y
2000, all fifty states and the District of Columbia had both sex

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offender registration systems and community notification programs.” United States v. Begay, 622 F.3d 1187, 1190 (9th Cir.
2010).
On July 27, 2006, Congress enacted the Adam Walsh Child
Protection and Safety Act, 42 U.S.C. §§ 16901 et seq., which
includes SORNA. “SORNA was enacted to succeed and
enhance the registration requirements of the Wetterling Act
. . . .” Begay, 622 F.3d at 1190. To “protect the public from
sex offenders . . . and in response to the vicious attacks by
violent predators” against seventeen named victims of sex
crimes, SORNA “establishe[d] a comprehensive national system for the registration of [sex] offenders.” 42 U.S.C.
§ 16901. A “sex offender” is an individual “who was convicted of a sex offense,” id. § 16911(1), that is, “a criminal
offense that has an element involving a sexual act or sexual
contact with another,” id. § 16911(5)(A)(i). A sex offender
must “register, and keep the registration current, in each jurisdiction where the offender resides,” id. § 16913(a), before
completion of his prison term, or, if he was not confined, no
more than three business days after sentencing, id.
§ 16913(b). “[R]egister” is undefined, but SORNA defines a
“sex offender registry” as a “registry of sex offenders, and a
notification program, maintained by a jurisdiction.” 42 U.S.C.
§ 16911(9). In addition, an offender must, “after each change
of name, residence, employment, or student status,” appear in
person in one of the jurisdictions in which he is required to
register and notify it of the changed information. Id.
§ 16913(c). In other words, SORNA requires a person convicted of a crime that “has an element involving a sexual act
or sexual contact with another,” id. § 16911(5)(A)(i), to register in the registry of sex offenders maintained by the jurisdiction in which the offender resides.
Separate from the requirements imposed on sex offenders,
SORNA also imposes certain obligations on the government.
First, § 16917(a) directs an “appropriate official” (the term is
undefined) to,

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shortly before release of the sex offender from custody, or, if the sex offender is not in custody, immediately after the sentencing of the sex offender, . . .
(1) inform the sex offender of the duties of
a sex offender under this subchapter and
explain those duties;
(2) require the sex offender to read and sign
a form stating that the duty to register has
been explained and that the sex offender
understands the registration requirement;
and
(3) ensure that the sex offender is registered.
Id. § 16917(a). Section 16917(b) provides that the Attorney
General “shall prescribe rules for the notification of sex
offenders who cannot be registered in accordance with” the
procedure described in § 16917(a). The Attorney General has
not yet promulgated such rules. In addition, Section 16913
gives the Attorney General “the authority to specify the applicability of [these] requirements . . . to sex offenders convicted
before the enactment of this chapter or its implementation in
a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex
offenders who are unable to comply with subsection (b).”
§ 16913(d).1
Finally, SORNA contains various criminal provisions. Relevant here, 18 U.S.C. § 2250 provides that anyone “required
to register under [SORNA]” who was either convicted of a
federal sex offense or who “travels in interstate or foreign
commerce,” and “knowingly fails to register or update a regis1

Because SORNA was enacted in 2006, and Crowder was convicted of
child molestation in 2007, this provision is not applicable to him.

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tration as required by [SORNA],” shall be fined or imprisoned
or both.2 18 U.S.C. § 2250(a).
B
[1] Crowder does not dispute that he is a “sex offender”
who traveled in interstate commerce from Washington to
Montana and failed to register in Montana or update his registration in Washington, despite being required to do so by his
judgment of conviction. Nevertheless, Crowder argues that he
cannot be convicted under § 2250 because the government
failed to plead and prove beyond a reasonable doubt that he
knew registration was required by SORNA. In other words,
he urges us to read the language of § 2250(a)(3) (that the
defendant “knowingly fails to register or update a registration
as required by the Sex Offender Registration and Notification
Act”) as requiring the government to plead and prove that the
2

18 U.S.C. § 2250(a) states in full:
(a) In general.—Whoever—
(1) is required to register under the Sex Offender Registration and Notification Act;
(2) (A) is a sex offender as defined for the purposes of the
Sex Offender Registration and Notification Act by reason of
a conviction 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; or
(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 the Sex Offender Registration and Notification
Act;
shall be fined under this title or imprisoned not more than 10
years, or both.

18 U.S.C. § 2250(a). Section 2250(b) provides an affirmative defense to
a violation of § 2250(a), but Crowder has never asserted such a defense.

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defendant knew that he had failed to register and also knew
that such registration was required by SORNA.
[2] To address this argument, we must determine whether
the word “knowingly” applies only to “fails to register or
update a registration,” or also applies to the phrase “as
required by [SORNA].” As a general rule, the Supreme Court
reads “knowingly” in a criminal statute so as to avoid criminalizing apparently innocent conduct, unless there are indicia
of congressional intent to the contrary. See, e.g., FloresFigueroa v. United States, 129 S. Ct. 1886 (2009); United
States v. X-Citement Video, Inc., 513 U.S. 64 (1994); Liparota
v. United States, 471 U.S. 419 (1985). Flores-Figueroa, for
example, involved an identity theft statute imposing enhanced
penalties on an offender who “knowingly transfers, possesses,
or uses, without lawful authority, a means of identification of
another person.” 129 S. Ct. at 1888 (quoting 18 U.S.C.
§ 1028A(a)(1)) (internal quotation marks omitted) (emphasis
omitted). The Court rejected the government’s interpretation
that “knowingly” applied only to the surrounding verbs,
because that would require the offender to “know that he is
transferring, possessing, or using that something without lawful authority,” but not to know that the “something” was a
“means of identification,” which was the element that constituted the criminal offense. Id. at 1889.
Similarly, in Liparota, the Court considered a federal food
stamp statute providing that “[w]hoever knowingly uses,
transfers, acquires, alters, or possesses coupons or authorization cards in any manner not authorized by [law]” was subject
to punishment. 471 U.S. at 420 n.1 (quoting 7 U.S.C.
§ 2024(b)(1)). The Court rejected the government’s interpretation that “knowingly” applied only to the surrounding verbs,
because that would allow the conviction of a person who
knowingly acquired or possessed food stamps (which is not
itself a crime) but was unaware of the facts making their
acquisition or possession a crime.3 Id. at 426. The Court also
3

The Court observed that because food stamps could be used only at
stores that charged their normal prices to food stamp participants, “[a]

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held that the food stamp statute was not a “public welfare”
offense (which does not require the government to prove a
mental element), because such strict liability offenses criminalize only “a type of conduct that a reasonable person should
know is subject to stringent public regulation and may seriously threaten the community’s health or safety,” which the
food stamp crime did not. Id. at 432-33. Absent contrary congressional intent, the Court explained, it would not interpret
“knowingly” in a manner so as to “criminalize a broad range
of apparently innocent conduct.” Id. at 426; see also XCitement Video, 513 U.S. at 69 (rejecting an interpretation
that would have allowed the conviction of a person who
knowingly transported videos but was unaware that the videos
showed minors engaged in sexually explicit conduct (the element that made the offense a crime), because it would be contrary to the presumption that Congress intends “some form of
scienter” in a criminal statute).
The Court’s approach in Flores-Figueroa, Liparota, and XCitement Video—namely, to avoid interpreting “knowingly”
so as to “criminalize a broad range of apparently innocent
conduct,” Liparota, 471 U.S. at 426—is consistent with the
long-standing rule that “unless the text of the statute dictates
a different result, the term ‘knowingly’ merely requires proof
of knowledge of the facts that constitute the offense,” not a
“culpable state of mind” or “knowledge of the law.” Dixon v.
United States, 548 U.S. 1, 5 (2006) (quoting Bryan v. United
States, 524 U.S. 184, 192-93 (1998) (footnote omitted)); see
also United States v. Pasillas-Gaytan, 192 F.3d 864, 868 (9th
Cir. 1999) (holding that defendant need only be aware of “the
facts that make his conduct illegal”) (quoting Staples v.
strict reading of the statute with no knowledge-of-illegality requirement
would . . . render criminal a food stamp recipient who, for example, used
stamps to purchase food from a store that, unknown to him, charged
higher than normal prices to food stamp program participants.” Liparota,
471 U.S. at 426.

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United States, 511 U.S. 600, 619 (1994)) (internal quotation
marks omitted).
[3] Read together, these cases indicate that absent clear
indicia of congressional intent to the contrary, an interpretation of “knowingly” in a criminal statute should require the
government to prove the defendant’s knowledge of the facts
that constitute the offense, see, e.g., Bryan, 524 U.S. at 193,
and should not “criminalize a broad range of apparently innocent conduct,” Liparota, 471 U.S. at 426.
C
[4] We apply these principles to our interpretation of
§ 2250(a)(3), which punishes a sex offender who “knowingly
fails to register or update a registration as required by
[SORNA].” The government argues that “knowingly” applies
only to “fails to register or update a registration” and not to
the phrase “as required by [SORNA].” We agree that this
interpretation requires the government to prove that the defendant knew the facts constituting the offense (i.e., both the registration requirement and the failure to do so) and, thus,
comports with Flores-Figueroa and Liparota. Because state
registration schemes have been around for years in all 50
states, see Smith v. Doe, 538 U.S. 84, 89-90 (2003), and convicted sex offenders know (or should know) of their own state
registration requirements, a convicted sex offender who
“knowingly fails to register or update a registration” is on
notice or chargeable with notice of the facts constituting the
offense.
[5] Next, we consider whether the government’s interpretation would “criminalize a broad range of apparently innocent conduct.” Liparota, 471 U.S. at 426. It would not.
Because, as explained above, all 50 states have enacted criminal statutes requiring sex offenders to register, an offender
“would hardly be surprised to learn” that the failure to do so
“is not an innocent act.” Id. at 433 (quoting United States v.

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Freed, 401 U.S. 601, 609 (1971)) (internal quotation marks
omitted). We reached a similar conclusion in interpreting 18
U.S.C. § 2423, which punishes any “person who knowingly
transports an individual who has not attained the age of 18
years in interstate or foreign commerce . . . with intent that the
individual engage in prostitution.” See United States v. Taylor, 239 F.3d 994, 997 (9th Cir. 2001). The defendant in that
case argued that § 2423 should be read as requiring the government to prove that he knew the age of the individual he
was transporting, not just that he was knowingly transporting
her to this illicit end. We rejected this argument, in part
because “the transportation of any individual for purposes of
prostitution or other criminal sexual activity is already unlawful under federal law.” Id. In other words, we held that it was
sufficient for “knowingly” to apply to criminal conduct; it
was not necessary for the government to prove that the defendant was also aware of the enhancement element.
By the same token, it is sufficient here to interpret “knowingly” as applying to the state criminal offense of failing to
register; it is not necessary for “knowingly” to apply to the
subsidiary clause “as required by [SORNA].” Indeed, this
conclusion here has even more force than in Taylor, because
the subsidiary clause merely makes the offense conduct punishable under federal law; it does not change the offense conduct or add an enhancement. As noted in Bryan, the use of the
term “knowingly” in a criminal statute generally does not
require the government to prove “knowledge of the law.” 524
U.S. at 192.
[6] Not only is a sex offender’s knowing failure to register
not innocent conduct; it is also more closely analogous to a
public welfare offense. The very impetus behind sex offender
registration laws is that sex offenders, unlike food stamp possessors, do “seriously threaten the community’s . . . safety.”
Liparota, 471 U.S. at 433. See 42 U.S.C. § 16901 (stating that
the purpose of SORNA’s registration requirement is to “protect the public from sex offenders”); cf. X-Citement Video,

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513 U.S. at 71 (holding that a statute criminalizing the transportation, shipment, etc. of “visual depictions” of minors
engaged in “sexually explicit conduct” was not a public welfare offense because people “do not harbor settled expectations that the contents of magazines and film are generally
subject to stringent public regulation”). The failure of a convicted sex offender to register is “conduct that a reasonable
person should know is subject to stringent public regulation
and may seriously threaten the community’s health or safety,”
Liparota, 471 U.S. at 433, much like the receipt or possession
of an unregistered firearm, see United States v. Freed, 401
U.S. 601, 609 (1971), or the shipment of adulterated and misbranded drugs, see United States v. Dotterweich, 320 U.S.
277, 284 (1943). In sum, a convicted sex offender who knowingly fails to register would ordinarily be committing a crime,
regardless whether that individual knows such failure also
violates SORNA.
[7] Finally, we see no indicia of congressional intent
weighing against the government’s more natural reading of
the statute. To the contrary, requiring the government to prove
knowledge of the federal registration requirements would
likely make it more difficult for the government to prosecute
convicted sex offenders who knowingly evade their state registration requirements, and thus potentially undermine Congress’s goal of alerting communities to the presence of sex
offenders via a nationwide network of state registries. See 42
U.S.C. § 16901 (stating SORNA’s purpose as the protection
of “the public from sex offenders”); Baccam, 562 F.3d at
1200. Indeed, no indicium of congressional intent weighs
against the more natural reading of the statute.
Crowder raises one additional argument as to why § 2250
requires proof that a defendant knew that registration was
required by SORNA.4 According to Crowder, the language in
4

Crowder did not develop his arguments that SORNA is unconstitutional as applied because Congress’s delegation of authority to the Attor-

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42 U.S.C. §§ 16913(d) and 16917(b) show that Congress
intended to condition criminal liability on a defendant’s
receipt of actual notice, as prescribed by the Attorney General. See 42 U.S.C. § 16913(d) (giving the Attorney General
authority to determine how SORNA will apply to sex offenders convicted before SORNA’s enactment); id. § 16917(b)
(requiring the Attorney General to “prescribe rules for the
notification of sex offenders who cannot be registered in
accordance with subsection (a) [requiring an ‘appropriate official’ to ensure that the sex offender is registered]”). This argument fails. Section 16913(d) does not create a notification
requirement, but rather, merely authorizes the Attorney General to determine how SORNA applies retroactively. Section
16917(b), meanwhile, authorizes the Attorney General to promulgate regulations to notify sex offenders who were not
already notified of their registration requirement by an “appropriate official.” Neither provision suggests that Congress
intended to eliminate criminal liability for a convicted sex
offender who knowingly failed to register in a state registry
simply because he did not know that registration was also
required by SORNA.
[8] In light of this analysis, we interpret § 2250(a)(3) as
requiring the government to prove that a convicted sex
offender knew of a registration requirement and knowingly
failed “to register or update a registration.” It does not require
the government to prove that the sex offender also knew that
the failure to register violates SORNA. This interpretation is
consistent with the Supreme Court’s rule that generally “the
term ‘knowingly’ merely requires proof of knowledge of the
facts that constitute the offense,” Bryan, 524 U.S. at 193,
ney General under § 16913(b) violated separation-of-powers principles, or
that his due process rights were violated by the Attorney General’s failure
to promulgate regulations to notify sex offenders who could not be notified by an “appropriate official” pursuant to § 16917. Thus, we do not
address them. See United States v. Kama, 394 F.3d 1236, 1238 (9th Cir.
2005).

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while also ensuring that the defendant cannot be convicted of
apparently innocent conduct. See, e.g., Liparota, 471 U.S. at
426. In so holding, we join our sister circuits, all of which
have read the word “knowingly” in § 2250(a)(3) as not applying to the “as required by [SORNA]” clause. See United
States v. Stevens, 640 F.3d 48, 51-52 (1st Cir. 2011); United
States v. Fuller, 627 F.3d 499, 507-08 (2d Cir. 2010); United
States v. Vasquez, 611 F.3d 325, 328-29 (7th Cir. 2010), cert.
denied, 131 S. Ct. 2930 (2011); United States v. Shenandoah,
595 F.3d 151, 159 (3d Cir.), cert. denied, 130 S. Ct. 3433
(2010); United States v. Griffey, 589 F.3d 1363, 1367 (11th
Cir. 2009) (per curiam), cert. denied, 130 S. Ct. 3290 (2010);
United States v. Whaley, 577 F.3d 254, 262 n.6 (5th Cir.
2009); United States v. Gould, 568 F.3d 459, 468 (4th Cir.
2009), cert. denied, 130 S. Ct. 1686 (2010); Baccam, 562
F.3d at 1199-1200.
III
[9] We now apply this interpretation of § 2250 to Crowder’s case. Although Crowder did not receive notice of the
requirement to register under SORNA, the government did
not have to prove that Crowder knew of this requirement in
order to convict him of an offense under § 2250. Crowder was
required by the terms of his judgment to register in Washington as well as in any new state to which he moved. Indeed,
his registration form advised him that he needed to update his
registration in Washington before he moved to another state.
In short, there was ample evidence on which the district court
could base its determination that Crowder knew that he was
required to register and failed to do so. See Jackson v. Virginia, 443 U.S. 307 (1979). Accordingly, we reject Crowder’s
sufficiency of the evidence challenge.
AFFIRMED.