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Circuit Holds that Interstate Travel Element Confers Multiple Venues for Prosecution

In United States v. Holcombe, 16-1429-cr, the Second Circuit (Jacobs, Leval, Lohier) resolved three open issues involving a conviction for failing to register pursuant to the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250(a).  First, the Court held that the interstate travel offense at issue “began” in the state the defendant left, New York, and thus venue in SDNY was proper.  Second, the Court held that any potential vagueness in a 30-day window for updating registration did not render defendant’s conviction here void for vagueness given the passage of at least 18 months.  Last, the Court rejected defendant’s claim that the SORNA registration requirement violated his constitutional right to travel.

The defendant, Thomas Abdul Holcombe, became subject to SORNA’s registration requirements following his 1992 conviction under state law for a sex offense.  SORNA requires, inter alia, that a sex offender update his or her registration following a change in residence, 34 U.S.C. § 20913, and imposes federal criminal liability upon any such person who “travels in interstate … commerce … [and] knowingly fails to register or update a registration” 18 U.S.C. § 2250(a).

In April 2013, after being released from a New York jail for another offense, Holcombe updated his SORNA registration to an address in New York, but never in fact lived there. Instead, he moved from New York to Maryland and resided there—without registering in Maryland or updating his New York registration—for at least eighteen months.  In May 2015 he was charged in SDNY with failing to update his registration, and was then convicted and sentenced by Judge Briccetti following a bench trial.

On appeal, the Second Circuit addressed each of Holcombe’s three contentions in turn:

Venue:  The Court rejected Holcombe’s claim that his conviction in New York violated the Sixth Amendment and Federal Rule of Criminal Procedure 18, which require that a defendant be tried in the district where the crime was committed.  The Court looked first to 18 U.S.C. § 3237(a), which permits venue in multiple districts for a crime that is “begun in one district and completed in another.”  Next, the Court considered whether any element of Holcombe’s crime occurred in New York.  The Court held that the “travel in interstate … commerce” element of the SORNA offense began in New York and thus venue there was proper—even though the failure to register did not occur until Holcombe was in Maryland, and irrespective of whether or not Holcombe had “formed an intent to violate the statue” (i.e., to remain in Maryland without registering) before he left New York. 

The Court observed that its holding was in accord with rulings by the Eighth, Tenth, and Eleventh Circuits.  The Seventh Circuit was previously in the same camp, but last year a divided panel of that court overturned its prior precedent and held, based on the Supreme Court’s ruling in Nichols v. United States, 136 S. Ct. 1113 (2016), that a SORNA offense could not be prosecuted in the departure district since the travel was “neither a distinct crime nor an element of the crime.”  In “respectfully” disagreeing with that decision, the Court here reaffirmed its holding that the travel was an element of the crime.  It observed that Nichols did not concern venue and, in any event, involved a “federal sex offender” – such that interstate travel was not required for the offense.[1]

Void for Vagueness:  The Court also rejected Holcombe’s claim that the “resides” trigger for registration pursuant to SONRA is unconstitutionally vague.  SONRA defines “resides” as “the location of the individual’s home or other place where the individual habitually lives.”  The Attorney General’s National Guidelines for Sex Offender Registration and Notification define “habitually lives” as “liv[ing] in the jurisdiction for at least 30 days” but defer to individual jurisdictions on how to apply the 30-day standard in cases of “intermittent” presence.  Since Holcombe’s claim did not implicate First Amendment rights, the Court evaluated the vagueness challenge as applied to the facts of the case (and not for “facial validity”).  Judged by that standard, the Court “easily” rejected Holcombe’s argument since he admittedly lived in Maryland for at least eighteen months.  The Court did observe that “[h]ad Holcombe lived in Maryland for a far shorter period of time, his argument might have been stronger.”

Right to Travel:  Last, the Court rejected Holcombe’s claim that SORNA’s registration requirements violated his constitutional “right of free interstate migration.”  As an initial matter, the registration requirement did not impinge on Holcombe’s ability to freely leave one state and move to another—it just imposed an obligation upon moving akin to any other state registration requirement.  Moreover, even if it did implicate Holcombe’s right to travel, SORNA would still be upheld since it furthered a sufficiently compelling governmental interest.


The Court’s decision on venue gives new significance to the jurisdictional hook element of a SORNA offense involving a sex offender convicted under state law.  For other federal crimes involving interstate travel – such as kidnapping in violation of the “Lindbergh Law” – there is little question that the core underlying offense occurred in both jurisdictions.  Here, based on the Court’s ruling, a defendant could be tried in the departure state even if when he stepped across state lines he had no plans to remain in the arrival state, without re-registering, in violation of SORNA.  The Court’s discussion of Nichols also sets up the interesting parallel in that the departure state may be involved in the offense and a proper venue for a state-law convicted sex offender who travels across state lines without registering, but not for a federal-law convicted sex offender otherwise subject to the same registration requirements.  Although the Court’s interpretation of the statute is tough to dispute, it does create a legal anomaly that is hard to rationalize from a policy perspective. 

The right-to-travel ruling also seems sensible.  To be sure, registration imposes some modest obligation when a person moves to a new state.  But there are other constitutional rights burdened by an interstate relocation.  For example, there is a constitutional right to vote, but when you relocate permanently from New York to Maryland, you must register to vote in Maryland and stop voting in New York.  Moreover, as the Court explained, the burden is minimal and the governmental interest is significant, and so the ruling here is not surprising.

-By Jason Vitullo and Harry Sandick

[1] The SORNA criminal offense does not require travel in interstate commerce if the defendant is “a sex offender … 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.” 18 U.S.C. § 2250(a)(2).