[00:00:14] Speaker 02:
Good morning.

[00:00:15] Speaker 02:
May it please the court, Peter Waukingshaw on behalf of the United States.

[00:00:20] Speaker 02:
When a criminal defendant commits successive offenses, the government may institute successive prosecutions and seek to impose successive punishments.

[00:00:30] Speaker 02:
When a defendant on supervised release commits a new offense and his supervised release is revoked, that revocation is a part of his earlier sentence from his earlier conviction and is not punishment for the new offense.

[00:00:45] Speaker 02:
Double Jeopardy, therefore, does not preclude prosecution and punishment for the new offense conduct.

[00:00:53] Speaker 02:
This has been the law of this circuit for 30 years, and neither the defendant nor the district court in this case has provided adequate grounds to depart from that rule in this case.

[00:01:05] Speaker 02:
The district court therefore erred in dismissing the indictment on double jeopardy grounds, and we would ask this court to reverse that dismissal.

[00:01:14] Speaker 02:
Now, there are two issues before the court, really one from our briefs, but two from the defendant's briefs.

[00:01:23] Speaker 02:
Unless there are immediate questions on the merits of the double jeopardy question, I might just briefly address the Loper-Bride issue from the defendant's briefs.

[00:01:36] Speaker 02:
So seeing no questions, Loper-Bride is not implicated by this case for two reasons.

[00:01:42] Speaker 02:
One, while the defendant's brief does not use the phrase as applied challenge, he is challenging the sorna as applied.

[00:01:51] Speaker 02:
And he's saying that sorna is not applicable to individuals like him.

[00:01:55] Speaker 02:
And at this juncture, there is no factual record to support what his living situation is,

[00:02:02] Speaker 02:
whether or not various aspects of Sorna would be triggered by his living situation.

[00:02:09] Speaker 02:
And therefore, we would ask the court not to consider for the first time on appeal an argument for dismissal that the district court has never had the chance to consider or develop a factual record for.

[00:02:21] Speaker 02:
And then second, Loper-Bright by its terms really only applies in situations where an agency construes an ambiguous term and it holds that courts need to exercise their independent judgment as to whether or not that construction is the best one.

[00:02:38] Speaker 02:
But here there is no construction of an ambiguous term because the information required in registration that the defendant identifies as necessary for defendants without a fixed abode is not the Attorney General's construction of the term residence.

[00:02:56] Speaker 02:
It is a requirement that he imposes pursuant to his expressly delegated authority as part of subsection 114A7 of SORNA, which is currently codified as expressed in our briefs.

[00:03:17] Speaker 02:
Turning very briefly.

[00:03:18] Speaker 01:
Just to be clear, your first line position is that we shouldn't reach any of these issues because the district court didn't pass on them.

[00:03:24] Speaker 01:
Is that right?

[00:03:25] Speaker 02:
I think that'd be the appropriate resolution of this particular issue, Your Honor.

[00:03:31] Speaker 02:
Perhaps some sort of factual record could be developed under man if the district court agrees to consider it at this late juncture in the case.

[00:03:40] Speaker 02:
I think that'd be the best way to resolve that particular issue.

[00:03:44] Speaker 02:
However, if the court does decide to reach the merits of the claim, it's clear that the claim fails.

[00:03:54] Speaker 02:
Just turning very briefly to the defendant's two arguments against application of this court's precedence on double jeopardy.

[00:04:03] Speaker 02:
First, the fact that the defendant is on a lifetime term of supervised release provides really no insight into whether or not the two offenses are separate offenses.

[00:04:11] Speaker 02:
There's nothing in the double jeopardy clause, either in its text or history, that would suggest that whether or not two offenses are the same offense is to be determined by reference to the length of one of the two offenses.

[00:04:23] Speaker 02:
And furthermore, just as a purely practical matter, defendants can seek to have their supervisor released terminated early.

[00:04:32] Speaker 02:
in certain situations.

[00:04:34] Speaker 02:
So it's unclear why the court would need to drastically alter its double jeopardy jurisprudence to address the concern raised in the defendant's briefs.

[00:04:48] Speaker 02:
In respect to Puerto Rico versus Sanchez Valle,

[00:04:52] Speaker 02:
That case concerned two prosecutions by purportedly separate sovereigns.

[00:04:58] Speaker 02:
It turned out not to be Puerto Rico and the United States for new offenses.

[00:05:02] Speaker 02:
They were gun offenses, and each of the two governmental entities, both the federal government and Puerto Rico, both sought to institute new prosecutions.

[00:05:14] Speaker 02:
That doesn't really speak to the issue in this case as to whether or not supervisor release is punishment for an earlier offense.

[00:05:20] Speaker 02:
At this juncture, I would welcome any questions from the court.

[00:05:26] Speaker 02:
But if there are none, I would perhaps just reserve the remainder of my time for rebuttal.

[00:05:30] Speaker 00:
All right.

[00:05:30] Speaker 00:
Thank you, Council.

[00:05:31] Speaker 02:
Thank you, Your Honor.

[00:05:43] Speaker 00:
Good morning, Your Honors.

[00:05:44] Speaker 00:
Jonil Thomas appearing on behalf of Richard Whitaker.

[00:05:54] Speaker 00:
Mr. Whitaker is an elderly homeless man with dementia who has been prosecuted for failing to register as a sex offender under SORNA while also facing imprisonment for the same offense, his failure to register after he was sent by bus from Arkansas to Las Vegas in his supervised release proceedings.

[00:06:19] Speaker 00:
The district court here found that jeopardy applied and I acknowledge it was an unexpected ruling, especially in light of this court's decision and Soto Olivia's.

[00:06:36] Speaker 00:
But digging in deeper into the case, there are ample reasons why the district court's decision should be affirmed.

[00:06:45] Speaker 00:
The first is based on the finding of devil jeopardy.

[00:06:49] Speaker 00:
And then the second is based on the recent United States Supreme Court case in Loperbright.

[00:06:57] Speaker 00:
On the Loperbright issue, I'll start there since the appellant started with that issue.

[00:07:07] Speaker 00:
Loperbright happened after the dismissal in this case.

[00:07:12] Speaker 00:
It's a significant decision that made a very major change in jurisprudence.

[00:07:20] Speaker 00:
it's appropriately considered by this court.

[00:07:25] Speaker 00:
By my count, since June 28th when Loper-Bright was issued, this court has issued 20 decisions in a relatively short time dealing with that case.

[00:07:37] Speaker 00:
I could not identify a single case in which this court has said we should remand this matter to the district court for its consideration of the issue in the first instance.

[00:07:48] Speaker 01:
So even if we agree with you and everything you're saying about Loper-Brite and everything you're saying about how to read the statute,

[00:07:57] Speaker 01:
then what would follow from that is that in certain factual circumstances, there may not be the kind of registration obligation that the government thinks there is.

[00:08:11] Speaker 01:
But we don't have a factual record to evaluate whether those are the circumstances of this case or not.

[00:08:16] Speaker 01:
So why isn't it appropriate to just let the district court resolve all those arguments in the first instance?

[00:08:24] Speaker 00:
Your Honor, I disagree with that for two reasons.

[00:08:27] Speaker 00:
The first is the supplemental excerpts of record show repeatedly the facts concerning this case, where the prosecutor sought to admit records of gambling records and homeless shelter records, different hotel records to establish residents.

[00:08:45] Speaker 00:
There's no serious legitimate dispute that Mr. Whitaker is homeless.

[00:08:52] Speaker 00:
He's transient.

[00:08:52] Speaker 00:
He does not have a regular place where he lives.

[00:08:56] Speaker 00:
But perhaps more critically, the indictment here did not charge the triggering effect that would put SORNA into action.

[00:09:06] Speaker 00:
It didn't charge that he was a student who had changed educational institutions.

[00:09:11] Speaker 00:
It didn't charge that he worked somewhere and had a change of location.

[00:09:17] Speaker 00:
And it also didn't allege that he had a place of abode, a residence, as that term is defined by Congress in the statute.

[00:09:29] Speaker 00:
the government could go back to a grand jury and present evidence of those facts and file a new indictment alleging the elements of the offense.

[00:09:41] Speaker 01:
But here, this indictment- I'm looking at the indictment now and it just says knowingly failed to register or update a registration as required by SORNA.

[00:09:49] Speaker 01:
So do you think the indictment requires some greater specificity than that?

[00:09:54] Speaker 00:
I do, Your Honor.

[00:09:55] Speaker 00:
I believe it needs to have one of the triggering events that come into play that require a change in circumstances that trigger the registration.

[00:10:06] Speaker 00:
And that would be the change of education, workplace, or having a residence.

[00:10:13] Speaker 01:
Aren't those just different means of committing one offense, and which wouldn't ordinarily need to be specifically alleged in the indictment?

[00:10:21] Speaker 00:
I think that they do need to be alleged or at least there needs to be some evidence presented on those points.

[00:10:29] Speaker 00:
But because the government had no

[00:10:33] Speaker 00:
notion that homeless or transient offenders are not covered by this statute, that record here doesn't exist.

[00:10:43] Speaker 00:
And so it would be appropriate to send this matter back, let them go back to the grand jury if they think they can come up with any evidence that Mr. Whitaker was not a person who lacked a home, who lacked a habitual place where he lived.

[00:11:01] Speaker 00:
those facts don't exist here, but that would be a proper course.

[00:11:09] Speaker 00:
And I also dispute.

[00:11:11] Speaker 01:
I guess just procedurally, I mean, why, I mean, if we reverse the dismissal of the indictment and the case will go to trial and then they'll have to put in the evidence at the trial, what is the evidentiary requirement that you think applies at this stage?

[00:11:31] Speaker 00:
I think the indictment doesn't charge a valid offense in that it doesn't charge any of the means of committing the offense.

[00:11:40] Speaker 00:
It doesn't charge education, workplace, or residence.

[00:11:45] Speaker 00:
And the definition of residence was not something that was delegated to the attorney general to come up with definitions.

[00:11:53] Speaker 00:
Congress came up with a definition.

[00:11:55] Speaker 00:
the Attorney General in the SMART guidelines, which was laid out at length, said that definition isn't broad enough.

[00:12:02] Speaker 00:
It doesn't cover this conduct.

[00:12:04] Speaker 00:
And that admission by the Attorney General in their own guidelines should be dispositive of the fact that this definition is not sufficient.

[00:12:15] Speaker 00:
And within that context,

[00:12:19] Speaker 00:
It is appropriate for this court to look at this issue.

[00:12:23] Speaker 00:
This court is very well equipped to determine statutory definitions.

[00:12:29] Speaker 00:
It's a de novo review.

[00:12:30] Speaker 00:
There's no precedent saying that we should remand matters back to the district court to determine the meaning of a statute based on Congress's definitions.

[00:12:41] Speaker 00:
That is a very appropriate function for this Court.

[00:12:45] Speaker 00:
The matter has been presented to this Court.

[00:12:47] Speaker 00:
But by the Attorney General's own admission in the Smart Guidelines, where said the statutory term doesn't go far enough, we need to read in more to be consistent with Congress's intent.

[00:13:03] Speaker 00:
That may have been a permissible course of action in the past, but it's not now.

[00:13:08] Speaker 00:
It's not under Loper-Bright.

[00:13:10] Speaker 00:
It's not under the bump stock decision.

[00:13:12] Speaker 00:
The Supreme Court in Loper-Bright has made it clear that the court should be interpreting statutory conditions.

[00:13:20] Speaker 00:
There are a whole host of other issues presented by separation of powers of having

[00:13:27] Speaker 00:
prosecutors writing laws that make it easier for them to put someone in prison.

[00:13:34] Speaker 00:
That was not the delegation that was done here.

[00:13:37] Speaker 00:
And even though this was not presented to the district court, this court is free to affirm on any basis in the record.

[00:13:46] Speaker 00:
Loper Price presents this court with the opportunity to say, this statute doesn't reach people who are homeless, who don't have a residence, who don't have a home.

[00:13:59] Speaker 00:
If I may briefly touch on the double jeopardy issue, unless you have additional questions on lower right.

[00:14:06] Speaker 00:
Who is not counsel?

[00:14:08] Speaker 00:
Thank you.

[00:14:10] Speaker 00:
I respectfully submit that the Puerto Rico v. Sanchez-Vaya decision provides an opportunity for this court to look anew at the double jeopardy issue.

[00:14:21] Speaker 00:
In that case, the court talked about the origin of authority for a prosecution and said where the origin of authority comes from the same place.

[00:14:32] Speaker 00:
In that case, as here, Congress,

[00:14:35] Speaker 00:
that jeopardy is applied not just on the elements of the offense, but on the same conduct.

[00:14:43] Speaker 00:
And here, Congress has set up two different paths for imprisonment for a person based on a SORNA violation.

[00:14:52] Speaker 00:
They've done so through SORNA and they've also done so through the supervised release conditions, which are mandatory.

[00:15:00] Speaker 00:
These are not discretionary conditions.

[00:15:02] Speaker 00:
And by setting up two different paths to send Mr. Whitaker to prison, yet again, he's been in prison nonstop 10 years for registration offenses through either SORNA or Arkansas or the revocation proceedings.

[00:15:19] Speaker 00:
But setting up those dual paths of sending him to prison for the single act of traveling on a bus from... But it's not for a single act, right?

[00:15:27] Speaker 01:
I mean, the whole point of Seto Alivas is that

[00:15:32] Speaker 01:
The indictment seeks to punish him for this most recent act of non-registration.

[00:15:39] Speaker 01:
The supervised release revocation is punishment for the original offense, not for the new non-registration act.

[00:15:49] Speaker 01:
So there's two different, he's being punished for two different things.

[00:15:52] Speaker 01:
I mean, that's the holding of Soto Olivas, right?

[00:15:55] Speaker 00:
I think reevaluating that under the Puerto Rico decision is warranted, and looking at the fact that the power for that second action, sending him to prison, which has been called a remedial action, it's punishment.

[00:16:11] Speaker 00:
When someone is sent to prison, that is punishment.

[00:16:14] Speaker 00:
It would not have happened here, but for the later conduct, which is also being pursued.

[00:16:21] Speaker 00:
and through the SORNA violation, and going back to the basics, as established in green, a person shouldn't be required to go through two different proceedings on the same conduct, facing the same end goal of the prosecution, which is sending Mr. Whitaker to prison.

[00:16:43] Speaker 00:
and that is what happened here.

[00:16:46] Speaker 00:
Judge Mahan recognized the duplicity of those proceedings and his judgment should be affirmed.

[00:16:54] Speaker 01:
Thank you.

[00:17:06] Speaker 02:
Thank you.

[00:17:07] Speaker 02:
Again, for the record, Peter Walkinshaw on behalf of the United States.

[00:17:10] Speaker 02:
I'd welcome any immediate questions from the court if there are any.

[00:17:14] Speaker 02:
Otherwise, I think I'd just make three brief points.

[00:17:18] Speaker 02:
With respect to whether or not the indictment charges a valid offense, it does.

[00:17:22] Speaker 02:
But also, this is the first time that that issue has been raised.

[00:17:25] Speaker 02:
And that's not only not in the district court, but not in briefing before this court.

[00:17:29] Speaker 02:
So we would just ask the court to deem that issue waived.

[00:17:32] Speaker 02:
With respect to whether or not the Attorney General is construing the term residence when requiring information from people without fixed abodes about where they habitually reside, I would direct the Court's attention to the addendum to the appellee's answering brief at pages 37 and 38.

[00:17:56] Speaker 02:
where it's clear that what the Attorney General is doing is exercising the authority delegated to him or her now to request any information that they deem necessary.

[00:18:12] Speaker 02:
And with respect to Puerto Rico versus Sanchez Valle, we don't dispute that the origin of authority in both the supervised release revocation proceeding and the new indictment in this case both originate from the federal government, the United States, the same supreme authority.

[00:18:32] Speaker 02:
But the question is whether or not the punishment for what.

[00:18:36] Speaker 02:
And they punish separate offenses that occurred at separate times.

[00:18:40] Speaker 02:
And so, Sanchez-Vaya does not provide any real basis for this court to reevaluate its decision and so do all of us.

[00:18:50] Speaker 02:
So unless there are any other questions, I will happily submit.

[00:18:52] Speaker 00:
It appears not.

[00:18:53] Speaker 00:
Thank you for your time.

[00:18:53] Speaker 00:
Thank you, counsel.

[00:18:54] Speaker 00:
Thank you to both counsels.

[00:18:56] Speaker 00:
The case is argued and is submitted for decision by the court.

[00:18:58] Speaker 00:
The next case, Ferguson v. Johnson, has been submitted on the briefs.