Tuesday, August 25, 2020

US v. Lusby, No. 18-10368 (8-25-20)(Wallace w/Friedland & Lasnik). This is an interesting SORNA case. The 9th affirms the conviction but deals with (1) double jeopardy; and (2) “compelled travel.” To set the stage, the defendant was released from confinement in Arizona and ordered to appear at a hallway house in Las Vegas. He was transported to a bus station, bought a ticket, and put on the bus.  Once in Las Vegas, he didn’t show and was charged with failing to register under SORNA.

Defendant argued that he didn’t travel interstate voluntarily but was compelled to travel. He was taken from Nevada, and then ordered to return. The district court found that the interstate travel was not voluntary, and so dismissed the indictment. The government appealed.

On appeal, the defendant argued double jeopardy. The 9th reviews the double jeopardy doctrine, which we know requires in a bench trial for a witness to be sworn. But, here, the arguments and facts seemed straightforward, and the trial may not have mattered. “Ah,” said the 9th, the defendant was not at risk because this was not a “formal” trial; there may have been other facts brought forth, or the defendant may have been at risk of a different ruling. The opinion provides a good overview of DJ in the context of legal dispositive motions. The DJ discussion takes up the bulk of the opinion.

Turning to the merits, the 9th held that the statute did not have this extra element of the travel not being legally compelled. There is an affirmative defense of uncontrollable circumstances, but this differs because there was a legal compulsion (the order). The 9th looked at the statute, the plain language, and the desire for a national registration, and said “Naw.” The elements were set out; and the court’s carving out an exception for legally compelled travel contravenes the plain language of the statute. It also creates a loophole that could be exploited.

The decision is here:



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