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Date: 08-21-2021
Case Style:
United States of America v. ROGER EDWARD PICARD
Case Number: 19-1855
Judge: Sandra Lea Lynch
Court: United States Court of Appeals
For the First Circuit
Plaintiff's Attorney: Noah Falk, Assistant United States Attorney, and Halsey B.
Frank, United States Attorney, on brief.
Defendant's Attorney:
Description:
Boston, MA - Criminal defense lawyer represented defendant with appealing from an order that revoked his supervised release on the underlying conviction of failing to register as a sex offender charge.
On January 19, 1983, Picard was convicted in
Massachusetts state court of one count of Rape of a Child under 14
and one count of Indecent Assault and Battery of a Child under 14.
The state court sentenced Picard to concurrent terms of thirteen
to twenty years' imprisonment for the rape offense and eight to
ten years' imprisonment for the indecent assault and battery
offense. Picard was also classified as a lifetime sex offender
registrant in Massachusetts.
Picard was released from prison in 2001 in
Massachusetts. In December 2003, Picard informed the
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Massachusetts Sex Offender Registry that he planned to move from
Massachusetts to Hawaii. On January 18, 2004, Picard signed a Sex
Offender Registration form in Hawaii. By signing, he acknowledged
that he had been "informed and underst[ood]" that if he moved to
another state, he would need to "register [his] new address with
the designated law enforcement agency in the new state within ten
days of establishing residence."
In 2006, while Picard was in Hawaii, Congress enacted
the Sex Offender Registration and Notification Act ("SORNA"),
which made "knowingly fail[ing] to register or update a
registration as required by [SORNA]" a federal crime for certain
types of sex offenders. 18 U.S.C. § 2250(a). SORNA requires sex
offenders to "register, and keep the registration current, in each
jurisdiction where the offender resides, where the offender is an
employee, and where the offender is a student." 34 U.S.C.
§ 20913(a) (formerly cited as 42 U.S.C. § 16913(a)). Further,
"[a] sex offender shall, not later than 3 business days after each
change of name, residence, employment, or student status, appear
in person in at least 1 jurisdiction involved pursuant to
subsection (a) and inform that jurisdiction of all changes in the
information required for that offender in the sex offender
registry." Id. § 20913(c) (formerly cited as 42 U.S.C.
§ 16913(c)).
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A. Picard's Underlying Federal Conviction for Failure to
Register as a Sex Offender in Maine and His Conditions of
Release
In the spring of 2014, Picard moved to Penobscot County
in Maine, where he had purchased property in 2013. He did not
register as a sex offender upon moving there, as he was required
to do by SORNA. On April 2, 2015, Picard received and signed a
notice which again explicitly informed him of his registration
requirements under SORNA. He still did not register then or ever
as a sex offender in Maine.
On March 1, 2018 he was visited by an agent from the
U.S. Marshals Service and arrested. On May 17, 2018, Picard
pleaded guilty to one count of failure to register as a Sex
Offender in violation of 18 U.S.C. § 2250(a). The district court
sentenced Picard to eighteen months' imprisonment followed by five
years of supervised release. His conditions of release stated:
You must comply with the requirements of the
Sex Offender Registration and Notification Act
(34 U.S.C. § 20901, et seq.) as directed by
the probation officer, the Bureau of Prisons,
or any state sex offender registration agency
in which you reside, work, are a student, or
were convicted of a qualifying offense.
[and]
You must not commit another federal, state, or
local crime.
On July 1, 2019, while he was still in custody, the
Bureau of Prisons ("BOP") told Picard that he would need to
register as a sex offender within twenty-four hours of being
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released from prison. On July 12, 2019, the BOP released Picard
to the District of Maine.
B. Violations of Conditions of Release and Revocation
Although Picard lived in Penobscot County, on July 13,
2019, he attempted to register at the Piscataquis County Sheriff's
Department. The sheriff's department could not register him
because he did not live in that county and directed him to go to
the Penobscot County Sheriff's Department. Despite these
instructions, Picard did not go and never registered or even
contacted the Penobscot County Sheriff's Department.
United States Probation officers Maria Schokman and
Kanni Francis visited Picard's home to complete an intake and home
inspection on July 16, 2019. Picard told them he knew he had to
register and had not. He called his offense "bullshit" and stated
that he should not have to register. Although he lived in
Penobscot County, he told the officers he could not afford to
travel to the Penobscot County Sheriff's Department. In response,
the officers told him of a low-or-no-cost transportation service
available to him.
On July 17, 2019, Schokman called the Penobscot County
Sheriff's Department, which told her that Picard had not registered
there or even contacted their office. On July 18, 2019, Schokman
once more contacted the Penobscot County Sheriff's Department,
which again reported that Picard had not registered or contacted
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the office. On July 18, 2019, the Marshals Service arrested Picard
at his home for violating two conditions of his supervised release:
(1) Failing to "comply with the requirements of [SORNA]" and (2)
"commit[ting] a federal, state, or local crime."
On August 16, 2019, the district court held a revocation
hearing, where Picard was represented by counsel. The court
adopted the factual findings in U.S. Probation's revocation
report.1 The court concluded that Picard's failure to register
was a Grade C violation and the court, without objection, adopted
Probation's Guidelines sentencing range calculation of five to
eleven months' imprisonment. Schokman testified and Picard argued
that the government had not shown a violation because Picard
attempted to register but failed. The district court found that
Picard had violated the conditions of his release. After
considering the Guidelines sentencing range and 18 U.S.C.
§ 3553(a) factors, the court sentenced Picard to nine months'
imprisonment followed by two months' community confinement and
five years' supervised release. The court also stated that it
would have "impose[d] the same sentence even if the applicable
1 Except for paragraph 23, which the court did not adopt
as Picard disputed its factual basis. Paragraph 23 described the
facts underlying Picard's 1983 conviction for Rape of a Child under
14 and Indecent Assault and Battery of a Child under 14, but did
not state from what documents it drew this information.
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sentencing guideline range would have been reduced by any . . .
objections." This appeal followed.
II.
A. Standard of Review
We review the district court's decision to revoke
supervised release and the sentence it imposes for abuse of
discretion. United States v. Wright, 812 F.3d 27, 30 (1st Cir.
2016). We review the underlying finding of a violation of
supervised release for clear error and legal questions de novo.
Id. "'[W]e consider the evidence in the light most favorable to
the government,' and 'we recognize the district court's broad legal
power to determine witness credibility.'" Id. at 29 (quoting
United States v. Portalla, 985 F.2d 621, 622 (1st Cir. 1993)).
B. The District Court Did Not Abuse its Discretion in Finding
that Picard Violated the Terms of His Supervised Release
Picard conceded to the district court that he did not
register as a sex offender within the required time, but argued
that his failure to register should be excused for cause because
he attempted to register at the wrong Sheriff's Department. On
appeal, Picard argues that he did not understand the instructions
to register and so lacked the required mens rea to violate SORNA.
He also argues that he is entitled to the affirmative defense that
he could not register "as directed." We disagree.
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Any person who must register under SORNA, "travels in
. . . interstate commerce," and "knowingly fails to register or
update a registration as required by [SORNA]" is subject to a fine
and/or imprisonment. 18 U.S.C. § 2250(a). To prove a failure to
register violation of SORNA, the government need only show general
intent. United States v. Thompson, 431 Fed. App'x 2, 3-4 (1st
Cir. 2011) (unpublished) (citing United States v. Stevens, 640
F.3d 48, 51 (1st Cir. 2011) (cert. granted, judgment vacated on
other grounds, 565 U.S. 1255 (2012))). The record before the
district court was more than sufficient to conclude that Picard
knew of his registration requirement. Picard told Probation
Officers Schokman and Francis that he knew he had to register but
was unwilling to do so. Multiple other agencies also informed
Picard of his registration obligation. There was no error in the
district court concluding the general intent mens rea requirement
in SORNA was satisfied.
SORNA also allows for an affirmative defense when
"uncontrollable circumstances prevent[] the individual from
complying," the individual did not contribute to the circumstances
"in reckless disregard of the requirement to comply," and then
"complied as soon as such circumstances ceased to exist." 18
U.S.C. § 2250(c). As our recitation of the facts makes clear,
this affirmative defense was not available to Picard on these
facts.
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Picard alludes to the affirmative defense by saying that
he could not register "as directed" because he was "bewildered" by
the instructions given to him. He says the instructions were "not
clear." This is inaccurate. The BOP directed Picard "to register
as a sex offender within 24 hours of release, per Maine State
requirements." After failing to register with the proper sheriff's
department per Maine law, Schokman and Francis on July 16, 2019,
directed Picard to register with the Penobscot County Sheriff's
Department and provided him with the Office's contact information.
As of July 18, 2019, Picard had still not registered, or made any
effort to contact either Probation or the Penobscot County
Sheriff's Department to clarify his registration obligations.
C. Picard's Sentence was Procedurally and Substantively
Reasonable
Picard next argues that his within-Guidelines sentence
was "both procedurally and substantively unreasonable because the
sentencing court decision lacked adequate explanation and the
length of the sentence was greater than necessary."2 These
arguments are meritless.
A "court, at the time of sentencing, [must] state in
open court the reasons for its imposition of the particular
2 Picard also argues that the district court relied on
clearly erroneous facts, and so its sentence was unreasonable.
But Picard does not identify which factual findings he contends
are erroneous, and so has waived this argument. United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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sentence." 18 U.S.C. § 3553(c)(1). "The court's explanation is
adequate for purposes of § 3553(c)(1) if it specifically
identif[ies] some discrete aspect of the defendant's behavior and
link[s] that aspect to the goals of sentencing." United States v.
Rivera-Clemente, 813 F.3d 43, 52 (1st Cir. 2016) (alterations in
original) (internal quotation marks omitted) (quoting United
States v. Rivera–Gonzalez, 626 F.3d 639, 646–47 (1st Cir. 2010)).
"A sentence is substantively reasonable when . . . the sentencing
court [gives] a plausible sentencing rationale and reached a
defensible result." United States v. Abreu-García, 933 F.3d 1, 6
(1st Cir. 2019) (internal quotation marks omitted) (quoting United
States v. Rodríguez-Adorno, 852 F.3d 168, 177 (1st Cir. 2017)).
The district court weighed all of the § 3553(a) factors
and gave a plausible rationale for the sentence it imposed. It
identified Picard's "substantial criminal history" and "proclivity
toward violence" as the main factors behind its sentencing
decision. The district court adopted the government's reasoning
that Picard's history of violence made him a "danger to the
community" and "danger to kids," and his "unwillingness to accept
responsibility" for his failure to register required a sentence
sufficient to protect the community and ensure that Picard learns
and accepts that "registering and complying with the conditions of
release are not suggestions; they are mandatory."
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The record also plainly contradicts his argument that he
was penalized for exercising his right to a revocation hearing.
Indeed, the record clearly supports the district court's
conclusion that Picard at no point accepted responsibility for not
registering.
Outcome: The judgment of the district court is affirmed
Plaintiff's Experts:
Defendant's Experts:
Comments: