High court to hear sex offender registry case

By Jessica Shumaker
The Daily Record Newswire
 
ST. LOUIS, MO — The case of a Kansas man convicted of failing to register as a sex offender after moving from the U.S. to the Philippines will be heard by the U.S. Supreme Court.

In February, justices will consider the diverging opinions between a case involving Lester Nichols, in the 10th U.S. Circuit Court of Appeals, and a similar case with an opposing outcome in the 8th Circuit.

The central issue in both opinions, as well as the question the court will consider, is whether the Sex Offender Registration and Notification Act, or SORNA, requires sex offenders who reside in a foreign country to update their registration in the jurisdiction where they formerly resided.

Nichols was charged in U.S. District Court’s District of Kansas in June 2013 with failing to register as a sex offender. He had a prior conviction, from 2003, of traveling interstate with the intent to engage in sex with a minor, according to court filings.

He served his sentence, returned to Leavenworth, Kansas, and complied with state and federal sex offender registry requirements before he left the country for the Philippines in November 2012, and did not register the change.

Nichols moved to dismiss the indictment on the grounds that SORNA did not require him to register while in the Philippines because when he was there, he did not reside in a U.S. jurisdiction. He also contended that SORNA’s delegation of authority to the attorney general to determine the law’s application to sex offenders like himself, who had a conviction prior to the law’s enactment in 2006, is unconstitutional.

He appealed District Judge J. Thomas Marten’s denial of the motion. The 10th Circuit affirmed the court’s decision, saying it was bound by the majority opinion of another 10th Circuit case, United States v. Murphy, where a registered sex offender in a Utah correctional facility left Utah and ultimately traveled to Belize.

Circuit Judge Carolyn McHugh wrote in her opinion for Nichols’ case that in Murphy, circuit judges found that a state remains a ‘jurisdiction involved’ when a sex offender leaves the state and that the offender’s reporting obligation “does not disappear simply because an individual manages to relocate to a non-SORNA jurisdiction.”

Across the state line in Missouri, Robert Lunsford was indicted on the same charge in August 2011.

Lunsford, a registered sex offender with sexual abuse convictions in 1990 and 1993, was living in Kansas City, Missouri, before he left the country, also for the Philippines.

He entered a conditional plea of guilty to the charge and appealed the district court’s denial of his motion to dismiss the indictment on the basis that SORNA did not require him to update his registration in Missouri.

The 8th Circuit reversed the decision and remanded the case with directions to dismiss the indictment, with Circuit Judge Steven Colloton writing in the opinion that SORNA’s definition of jurisdiction did not include foreign countries.

“The government’s theory is that Lunsford violated SORNA when he did not supply information about his change of residence to the Missouri registry,” he wrote. “He was required to do so, however, only if Missouri was a ‘jurisdiction involved,’ within the meaning of SORNA, when he changed his residence.”

The government contended the state was a jurisdiction involved because it was where he resided, however, Lunsford’s guilty plea “demonstrates that he did not reside in Missouri when he changed his residence,” Colloton wrote.

Nichols filed a petition for a writ of certiorari with the Supreme Court in July.  On Nov. 6, the Supreme Court agreed to consider the case.

Nichols was represented by Tim Henry, a Wichita, Kansas, public defender. Henry did not return a call for comment.

Appellate Chief Daniel Hansmeier will represent Nichols at the Supreme Court. He said the conflict in opinions needs to be resolved by the courts.

“Because it exists, people are treated differently,” he said.

Hansmeier added he thinks it’s “extremely rare” to have two similar cases in the same geographic area, with different results.

Assistant U.S. Attorney James Brown, who also did not return a call for comment, prosecuted Nichols’ case.

Assistant U.S. Attorney Teresa Moore represented the U.S. government in the case against Lunsford. She declined to comment on the Supreme Court case.

Stephen Moss, a Kansas City-based public defender, represented Lunsford. He said since his case was successful in its appeal, he would maintain it was the correct reading of the law.

Moss noted the law can be interpreted both ways. In such cases where there is ambiguity in the law, the Rule of Lenity should apply, where the court resolves the ambiguity in favor of the defendant, he said.

“Whether it was intentional or just a gap in coverage (of the law), that should be the proper outcome,” Moss said.

The case is Nichols v. United States, 15-5238.