UNITED STATES of America, Plaintiff-Appellee v. Larry Wayne THOMPSON, Defendant-Appellant.
No. 15-40370.
United States Court of Appeals, Fifth Circuit.
Jan. 21, 2016.
811 F.3d 717
A final word is owed on Wheat‘s sexual harassment claim. As the majority correctly concludes, Wheat‘s interactions with the alleged harasser did not objectively create a severe or pervasive hostile work environment.
At the same time, I do not think the majority suggests—and I would not agree if it had—that inmate-on-employee sexual harassment claims will always fail because correctional officers should expect severe or pervasive sexual advances as “ordinary terms and conditions” of their job. Op. at 711 n. 5 (quotation marks and citation omitted). That proposition is unsupported by case law. See Beckford v. Dep‘t of Corr., 605 F.3d 951, 953 (11th Cir.2010) (“We conclude that the jury was entitled to find the [Florida Department of Corrections] liable under Title VII because it unreasonably failed to remedy the sexual harassment by its inmates.“); Vajdl v. Mesabi Acad. of KidsPeace, Inc., 484 F.3d 546, 550 n. 2 (8th Cir.2007); Freitag v. Ayers, 468 F.3d 528, 538 (9th Cir.2006) (“the [California Department of Corrections and Rehabilitation‘s] contention that it cannot, as a matter of law, be liable under Title VII for maintaining a hostile work environment caused by inmate misconduct ... is unsupported by the entire weight of case authority in this circuit and others“); Slayton v. Ohio Dep‘t of Youth Servs., 206 F.3d 669, 679 (6th Cir.2000) (affirming liability on hostile work envirоnment claim where, among other things, the supervisor “intentionally sent [the plaintiff, a correctional officer in a juvenile facility] to check on an inmate who was masturbating“).
Given the weight of these authorities, and the fact that the legal question is avoidable in this case, I would leave the issue for another day. See Valdiviez-Hernandez v. Holder, 739 F.3d 184, 193 (5th Cir.2013) (Jolly, J., concurring) (“I can see no compelling reason to initiate a circuit split“).
For these reasons, I respectfully dissent in part.
her job performance evaluations were either “Very Good” or “Outstanding.” (Emphasis added). Since she reasonably expected annual raises tied to her annual performаnce reviews, it is premature to conclude that the delay was nonretaliatory, particularly when combined with the other retaliatory act (e.g., the janitorial duties).
William Richardson Tatum, Esq. (argued), Assistant U.S. Attorney, U.S. Attorney‘s Office, Sherman, TX, for Plaintiff-Appellee.
Seth Kretzer (argued), Law Offices of Seth Kretzer, Houston, TX, Denise S. Benson, Esq., Assistant Federal Public Defender, Federal Defender‘s Office, Sherman, TX, for Defendant-Appellant.
Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Defendant-Appellant Larry Wayne Thompson appeals his conviction for failure to register as a sex offender. We affirm.
I.
The relevant facts, viewed in the light most favorable to the jury verdict,1 are as follows:
After completing his sentence, Thompson registered as a sex offender in Oklahoma. However, in 2007, Thompson moved from Oklahoma to Corpus Christi, Texas, without updating his sex offender registration. Accordingly, a warrant issued for Thompson‘s arrest.
The United States located Thompson in Mexico, rеturned him to the United States, and indicted him for failing to update his registration. Thompson again pleaded guilty and served another term of imprisonment. Once again, the court required Thompson, as a condition of his sentence, to “register with the sex offender registration agency in any state where the defendant resides, is employed, carries on a vocation, or is a student, as directed by the probation officer.”
After completing his second prison sentence, Thompson moved into an apartment complex in Corpus Christi with a roommate named Matthew Hunt. Thompson registerеd as a sex offender in Corpus Christi.
In the summer of 2013, Hunt began making plans to move from Corpus Christi to McKinney, Texas, where his son lived. Thompson “decided it would be best for him to come with” Hunt. Thus, after two or three months of planning, Thompson and Hunt decided to leave Corpus Christi in September 2013.
Thompson rented a U-Haul truck in his own name to accomplish the move. Notably, Thompson did not purchase a roundtrip rental; instead, he purchased a one-way rental from Corpus Christi to McKinney.
Thompson and Hunt removed the majority of their belongings from their Corpus Christi apartment and loaded them into the U-Haul truck. They then left their apartment keys in the complex‘s office, drove away, and never returned to the complex. Neither Thompson nor Hunt left a forwarding address with the apartment complex. The complex eventually leased Thompson and Hunt‘s former unit to new tenant.
Crucially, Thompson never updated his sex offender registration after leaving Corpus Christi or arriving in McKinney.
Thompson and Hunt applied for an apartment in McKinney, but when they arrived in McKinney the apartment was unavailable. Throughout the month of September, Thompson and Hunt alternated between residing at a hotel in McKinney and camping in various McKinney parks.
A few days after Thompson and Hunt arrived in McKinney, an administrative assistant at Thompson‘s sex offender treatment center in Corpus Christi called Thompson to remind him that he had an upcoming counseling appointment. Thompson replied that “he was not interested” in attending the therapy appointment and that “he was not going to appear.” Thompson then hung up the phone. As a result of Thompson‘s refusal to comply with the conditions of his sentence, a warrant issued for his arrest.
Several days later, the City of McKinney‘s Parks Department contactеd the city‘s police department to report that a U-Haul truck was illegally “parked off of
A federal grand jury in the Eastern District of Texas issued a one-count indictment charging Thompson with failure to register as a sex offender as required by the Sex Offender Registration & Notification Act (“SORNA“). The case proceeded to trial and the jury found Thompson guilty. Thompson now appeals.
II.
SORNA‘s registration provision,
[1] SORNA also contains a separate penalty provision,
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.
Thus, “a sex offender whose underlying conviction was obtained pursuant to state law and who never crosses state lines, international borders, or the boundaries of Indian country, cannot be criminally liable for failure to comply with SORNA.”4 By contrast, “[o]ne convicted of federal sex offenses is liable for his knowing failure to register or update his registration regardless of whether hе travels in interstate or foreign commerce.”5
Thompson previously committed a sex offense under federal, not state, law.6 He did not travel in interstate commerce; instead, he failed to update his registration after relocating from one city in Texas to a different city in the same State. Thus,
III.
Thompson challenges his conviction on several grounds. For the following reasons, we reject all of Thompson‘s challenges.
A.
Thompson first raises an as-applied constitutional chаllenge to SORNA. He claims that the Necessary and Proper Clause of the U.S. Constitution7 does not authorize Congress to criminalize his “purely intrastate conduct“—namely, relocating from one city in Texas to another city in Texas without updating his sex offender registration. According to Thompson, Congress may only criminalize a sex offender‘s intrastate conduct if the defendant either (1) “served in the armed forces” or (2) committed an offense on “federal property.” Thompson does not fall into either of those categories. Thus, claims Thompson, the district court should have dismissed the indiсtment. Our standard of review is de novo.8
Thompson‘s constitutional challenge is meritless. The Courts of Appeals have repeatedly upheld SORNA‘s registration and penalty provisions under the Necessary and Proper Clause,9 even when the defendant neither served in the military, nor committed an offense or lived on federal property, nor moved within interstate or foreign commerce.10
The Tenth Circuit‘s decision in United States v. Brune is particularly illustrative. Brune was previously convicted for possessing child pornography in violation of
plainly withstands constitutional scrutiny as an exercise of congressional authority under the Commerce Clause to regulate the interstate trafficking of child pornography. And because the constitutionality of the underlying statute cannot be reasonably questioned, SORNA‘s registration requirements are a limited and rational extension of congressional power, as permitted by the Necessary and Proper Clause.16
Thus, the Necessary and Proper Clause grants Congress the authority to criminalize Thompson‘s failure to update his registration even though he never served in the military, committed an offense on federal property, or relocated to a different state.
Thompson‘s argument to the contrary is based almost entirely on Chief Justice Roberts‘s concurring opinion in United States v. Kebodeaux, — U.S. —, 133 S.Ct. 2496, 186 L.Ed.2d 540 (2013). In Kebodeaux, a military servicemember had previously been court-martialed and imprisoned for committing a federal sex offense in violation of the Uniform Code of Military Justice.17 Like Thompson, Kebodeaux subsequently violated SORNA by failing to update his sex offender rеgistration after moving from one city in Texas to a different city in the same State.18 Kebodeaux challenged SORNA‘s registration provisions on constitutional grounds. A five-Justice majority upheld the challenged provisions under the Necessary and Proper Clause and the Military Regulation Clause.19 The Chief Justice concurred in the judgment but did not join the majority opinion. The Chief Justice reasoned that, because Congress does not possess a general “federal police power,”20 the mere fact that the defendant had previously committed a federal sex offense “d[id] not give Congress а freestanding, independent, and perpetual interest in protecting the public from the convict‘s purely intrastate conduct.”21 Nevertheless, the Chief Justice voted to uphold the defendant‘s conviction because Congress possessed “the power to regulate the conduct of members of the military by imposing consequences for their violations of military law.”22
No other Justice joined the Chief Justice‘s concurrence.23 Nor was the Chief Justice‘s concurrence necessary to obtain a fifth vote in favor of the majority‘s result.24 As a result, “the majority opinion binds us, and its analysis does not confine SORNA‘s constitutionality to applications involving only the Military Regulation Clause. Nothing in the majority opinion isolates the Military Regulation Clause as the sole foundation for congressional authority in support of SORNA.”25 Thus, SORNA is constitutional under the Necessary and Proper Clause, and Thompson‘s conviction may stand even though he never served in the military.26
Thompson next contends that the evidence the Government presented at trial was insufficient to sustain his conviction. Thompson believes that a sex offender need not update his registration if he “merely travels for an extended period of time without establishing either a new home or a nеw place to habitually live.” Because he and Hunt never moved into a new apartment in McKinney, but instead slept at various hotels and campgrounds around the McKinney area, Thompson argues that he never exhibited a “settled purpose” to “habitual[ly] reside[ ]” in McKinney.
Because Thompson preserved this challenge for appeal by orally moving for a judgment of acquittal at trial, our standard of review is de novo.27 “All evidence is reviewed in the light most favorable to the verdict to determine whether a rational trier of fact could have found that the evidence еstablished [Thompson‘s] guilt beyond a reasonable doubt.”28
Thompson‘s argument that an itinerant sex offender may wait to update his registration until he establishes a new residence is meritless. To the contrary, “SORNA requires a convicted sex offender to update his registration information in person upon terminating his current residence with no intention of returning, even if the sex offender has not yet established a new residence.”29 “[A] savvy sex offender” may not “avoid having to update his SORNA registration” by “mov[ing] to a different city” and then “sleeping in a different shelter or other location every night.”30 “[I]f an individual remains itinerant within a given area,” such as a neighborhood in a particular city, “then his place of residence should be those areas. In other words, a peripatetic must keep his registration current with as much detail as to his general location as possible.”31 Thus, the fact that Thompson stayed in hotels and parks instead of establishing a single permanent residence in McKinney does not relieve him of his registration obligations under SORNA.32
In an attempt to avoid this result, Thompson maintains that he never actually abandoned his residence in Corpus Christi. He instead asserts that he was “merely travel[ling] for an extended period of time.” However, at trial, the Government introduced the following evidence that Thompson did indeed leave Corpus Christi with no intention to return:
- Thompson and Hunt jointly formulated a plan to move to McKinney.
- Thompson and Hunt removed the majority of their belongings from their Corpus Christi apartment and transported them to McKinney in the U-Haul truck.
- Thompson did not purchase a roundtrip rental for the U-Haul; instead, he purchased a one-way rental from Corpus Christi to McKinney in his own name.
- Thompson and Hunt left their apartment keys in the Corpus Christi complex‘s office and never returned to the complex.
- Thompson and Hunt stayed in McKinney for several weeks without ever returning to Corpus Christi.
- Thompson and Hunt arranged their furniture in the U-Haul “almost like a living room kind of where you could hang out in the back of the truck.”
Thus, viewing the evidence in the light most favorable to the verdict, the jury could reasonably find beyond a reasonable doubt that Thompson abandoned his Corpus Christi residence to habitually live in McKinney.33 The jury could likewise reject Thompson‘s assertion that he was merely temporarily traveling.34 Thus, the evidence was sufficient to convict Thompson.
C.
Thompson also argues that the district court should have suppressed certain evidence introduced at trial. As we noted above, this is not the first time Thompson has been convicted for failing to register as a sex offender under SORNA. Thompson previously failed to update his registration when he moved from Oklahoma to Texas in 2011. A warrant issued for his arrest, the Government located him in Mexico, and the Government brought him back to the United States. Thompson ultimately pleaded guilty and served a term of imprisonment for failing to update his registration.
Deputy U.S. Marshal Alfredo Lujan interviewed Thompson immediately after he arrived in the United States from Mexico (the “2011 Interview“). Over Thompson‘s objeсtion, the district court permitted Lujan to testify about the 2011 Interview at trial. The objected-to portion of the exchange between Deputy Lujan and Thompson follows:
Q. [Did you] talk to the defendant about requirements for registration of sex offenders in Texas?
Q. And what did you explain to him as far as the duties for a sex offender to register in Texas?
A. I explained to him since he was traveling from the State of Oklahoma to the State of Texas, state law requires—gives him ten days to notify law enforcement about his new residency for him being within the State of Texas.
Thompson argues that the district court should have excluded this testimony under the Miranda doctrine. According to Thompson, (1) Lujan failed to cease interrogation after Thompson “repeatedly requested counsel” during the 2011 Interview; (2) Lujan “tricke[d]” Thompson into signing a “consent form” immediately after the agent said it was an opt-out form;” and (3) “[t]his trickery is augmented by the fact that Thompson was 73 years old and had just gotten off an airplane in handcuffs after having been extradited from Mexico days earlier and in transit ever since.” Thompson asserts that Lujan‘s testimony prejudiced his “lack of knowledge” defense at trial:
Thompson‘s defense was that he was unaware that he had to register under SORNA even if his ultimate destination and corresponding new residence were still uncertain. Agent Lujan‘s testimony about having conveyed information imparting this knowledge (in a situation no less than a conversation expressly described to the jury as “Mirandized“) was fatal to Thompson‘s defense.35
“When we review a district court‘s denial of a motion to suppress, we view the facts in the light most favorable to the prevailing party, accepting the district court‘s factual findings unless clearly erroneous and considering all questions of law de novo.”36
The testimony to whiсh Thompson objects is not a testimonial statement of the accused obtained during the course of a custodial interrogation. We therefore doubt that the Miranda doctrine applies to Deputy Lujan‘s statements to Thompson.37 But even assuming arguendo that the Miranda doctrine does apply to Deputy Lujan‘s testimony, the district court did not err by admitting it. The district court held a suppression hearing at which it watched the tape of the 2011 Interview and heard testimony from Thompson. The court found that (1) Lujan did not trick Thompson into waiving his Miranda rights by falsely misrepresenting that Lujan would cease the interrogation if Thompson signed a waiver form; (2) Thompson “did not unambiguously invoke his right to counsel;” and (3) Thompson‘s statements to Lujаn were voluntary notwithstanding Thompson‘s age and physical condition. After reviewing the record and viewing the facts in the light most favorable to the Government, we conclude that the district court‘s findings were not clearly erroneous.38
Finally, Thompson raises a number of challenges to the district court‘s jury instructions, which we reproduce here in relevant part:
A sex offender is required to register where he resides, which is the location of his home or other place where he habitually lives.
“Resides” means the location of an individual‘s home or other place where that individual habitually livеs, even if the person has no home or fixed address anywhere or is homeless.
Places where a person “habitually lives” include places in which that person lives with some regularity.
Under the Sex Offender Registration and Notification Act, a sex offender shall, within three business days after each “change of residence,” register his change of residence with the appropriate jurisdiction where he now resides.
The permanent abandonment of an abode constitutes a “change of residence,” regardless of whether a new residence has been formally adopted.
Thompson objected to the jury instructions and thereby preserved his challenges for appellate review. “Ordinarily, we review a jury instruction for abuse of discretion, affording substantial latitude to the district court in describing the law to the jury.”39 “Under this standard, we consider whether the charge, as a whole, was a correct state-ment of the law and whether it clearly instructed the jurors as to the principles of the law applicable to the factual issues confronting them.”40 “However, when a jury instruction hinges on a question of statutory construction, our review is de novo.”41
As explained below, wе find no error in the district court‘s instructions.
1.
Thompson argues that, because the term “resides” is neither “highly ‘technical or specific‘” nor “‘outside the common understanding’ of jurors,” the district court should not have рrovided the jury a definition of that term that went beyond the definition provided in
Thompson next challenges the district court‘s instruction that “[t]he permanent abandonment of an abode constitutes a ‘change of residence,’ regardless of whether a new residence has been formally adopted.” Thompson argues that “one has not changed one‘s residence until one has established a new residence where one resides or will reside.”
This сhallenge fails as well. As we explained above, a sex offender must “update his registration information in person upon terminating his current residence with no intention of returning, even if the sex offender has not yet established a new residence.”44 “[A] savvy sex offender” may not “avoid having to update his SORNA registration” by “mov[ing] to a different city” and then “sleeping in a different shelter or other location every night.”45 The jury instructions quoted directly from one of the leading cases on this issue.46 As a result, the instructions accurately stated the applicable law.
3.
Finally, Thompson argues that a sex offender only “habitually lives” in a place if he lives there for at least thirty days. He bases his argument on the following excerpt from the Attorney General‘s National Guidelines for Sex Offender Registration and Notification (the “SMART Guidelines“):
“Habitually lives” accordingly should be understood to include places in which the sex offender lives with some regularity, and with reference to where the sex offender actually lives, not just in terms of what he would choose to characterize as his home address or place of residence for self-interested reasons. The specific interpretation of this element of “residence” these Guidelines adopt is that a sex offender habitually lives in the relevant sense in any place in which the sex offender lives for at least 30 days. Hence, a sex offender resides in a jurisdiction for purposes of SORNA if the sex offender has a home in the jurisdiction, or if the sex offender lives in the jurisdiction for at least 30 days.47
Thompson resided in McKinney for approximately twenty days before law enforcement officials arrested him for failing to update his registration. Because Thompson had not resided in McKinney for thirty days, he argues that he qualifies for a “safe harbor” undеr the SMART Guidelines.
Thompson asked the district court to include the above-quoted language in its jury instruction and argues that the district court erred in declining to include it. Thompson‘s argument fails because it ignores other sections of the SMART Guidelines. In a provision of the SMART Guidelines that Thompson neglects to
As to the timing of registration based on changes of residence, the understanding of “habitually lives” to mean living in a place for at least 30 days does not mean that the registration of a sex оffender who enters a jurisdiction to reside may be delayed until after he has lived in the jurisdiction for 30 days. Rather, a sex offender who enters a jurisdiction in order to make his home or habitually live in the jurisdiction must be required to register within three business days, as discussed in Part X.A of these Guidelines. Likewise, a sex offender who changes his place of residence within a jurisdiction must be required to report the change within three business days, as discussed in Part X.A.48
Thus, under the SMART Guidelines, because Thompson abandoned his residence in one city in Texas and relocated to another city in Texas, Thompson qualified as “a sex offender who changes his place of residence within a jurisdiction“—i.e., within the State of Texas.49 Thompson was therefore “required to report the change within three business days.”50 Thompson failed to do so.
Because Thompson‘s proposed instruction omits crucial qualifying language from the SMART Guidelines, it would have misled the jury regarding when Thompson was required to update his registration. As a result, the district court correctly rejected the proposed instruction.
IV.
Because the district court committed no error, we affirm Thompson‘s conviction.
AFFIRMED.
SANDERSON FARMS, INCORPORATED, Petitioner, v. Thomas E. PEREZ, Secretary, Department of Labor, Respоndent.
No. 15-60215.
United States Court of Appeals, Fifth Circuit.
Jan. 22, 2016.