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United States v. Spivey

United States District Court, E.D. North Carolina, Southern Division

October 9, 2017

UNITED STATES OF AMERICA,
v.
CHARLES SPIVEY, JR., Defendant.

          ORDER

          MALCOLM J. HOWARD SENIOR UNITED STATES DISTRICT JUDGE.

         This matter is before the court on defendant's motion to dismiss for improper venue and failure to state an offense, [DE #26]. The government has responded, [DE #31], and the time for further filings has expired. These motions, are ripe for adjudication.

         STATEMENT OF THE CASE

         On April 5, 2017, defendant was indicted on one count of knowingly failing to register and update his registration as required by the Sex Offender Registration and Notification Act ("SORNA"), in violation of 18 U.S.C. § 2250(a). On July 21, 2017, defendant filed a motion to dismiss for improper venue under Fed. R. Crim. P. 12 (b) (3) (A) (i) and for failure to state an offense under Fed. R. Crim. P. 12 (b) (3) (B) (v), [DE #26]. The arraignment in this case is set for the court's November 7, 2017 term.

         STATEMENT OF THE FACTS

         According to the government's response, defendant was convicted of several North Carolina offenses for which he was required to register as a sex offender for his lifetime, including two counts of Indecent Liberties with a Minor on August 16, 1989; one count of Indecent Liberties with a Minor on January 26, 1993/ one count of Indecent Liberties with a Minor on December 15, 1993; and one felony Sex Offender Employment Violation on November 17, 2008.

         Defendant last registered on September 25, 2015, when he reported to the New Hanover County Sheriff's Office and changed his address to homeless, residing in the woods at 2300' North College Road, Wilmington, North Carolina. One month later, on October 23, 2015, defendant was arrested for unlawfully being on the premises of a high school in New Hanover County, a felony offense. Defendant Was released on bond. On June 9, 2016, New Hanover Sheriff s Office obtained an arrest warrant charging defendant with failing to report a new address after investigation revealed that he was not living at the Wilmington address he disclosed in September 2015. A separate arrest warrant was issued on August 9, 2016, because defendant failed to appear in court for the felony offense of Unlawfully Being on School Premises.

         On December 9, 2016, the New Hanover Sheriff's Office requested the assistance of the NC Violent Fugitive Task Force (VFTF) to locate and apprehend defendant. VFTF received information that defendant and his wife had fled to Colorado Springs, Colorado. On December 30, 2016, defendant's bail bondsman from North Carolina traveled to Colorado to attempt to locate defendant. He apprehended defendant in Colorado Springs, Colorado, and brought him back to North Carolina. According to the manager at the Aspen Lodge in Colorado Springs, defendant had been living in room 37 with his family since October 27, 2016. Defendant never registered in Colorado and wrote a statement to that, effect. In that statement, he further stated that he knew he had a warrant for failure to appear in North Carolina and knew that he was required to register within three days. Defendant has been charged in this court with failing to register in violation of 18 U.S.C. § 2250(a).

         COURT'S DISCUSSION

         I. Motion to Dismiss for Improper Venue

         Defendant argues the Eastern District of North Carolina is an improper venue because the crime of failure to register did not occur in North Carolina, but rather in Colorado. SORNA provides, in pertinent part:

A sex 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 pursuant to subsection (a) and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry. That jurisdiction shall immediately provide that information to all other jurisdictions in which the offender is required to register.

34 U.S.C. § 20913(c). The jurisdictions involved pursuant to subsection (a) are "each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student." 34 U.S.C. § 20913(a). The Supreme Court has determined the present tense of the statute requires a sex offender to register in the state of current residence within three days of change of residence, and there is no requirement for a sex offender under SORNA to update his registration in a state of former residence. Nichols v. United States, 136 S.Ct. 1113, .1117-18 (2016) (holding defendant was not required to register in Kansas once he departed Kansas as it was no longer a ' jurisdiction involved."). The government concedes post-Nichols, there is no longer a requirement under SORNA to update registration in the state in which the defendant no longer resides. [DE #31 at 15]. Thus, defendant allegedly only failed to register in Colorado within three days of his change of residence from North Carolina to Colorado.

         Defendant therefore argues venue for a violation of SORNA is not proper in the Eastern District of North Carolina, as this district is not the district in which the crime occurred. "Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed." Fed. R. Crim. P. 18. The government argues one such statute providing otherwise is 18 U.S.C. § 3237, providing "any offense against the United States begun in one district and completed in another, or committed in more than one district, may ...


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