### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-50506

UNITED STATES OF AMERICA Plaintiff-Appellee
v. EUGENE MERRILL BELAIRE, II, also known as Eugene Merrill Belaire, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas

(10-CR-2482)

Before DAVIS, SMITH and DENNIS, Circuit Judges. W. EUGENE DAVIS, Circuit Judge: * Defendant Eugene Merrill Belaire, I I appeals his criminal conviction under the Sex Offender Registr a tion and Notification Act (SORNA), 18 U.S.C. § 2250(a), for failing to comply with the act’s registration requirement. Belaire argues that the district court’s instructions allowed the jury to convict on a theory of guilt that would not support a conviction. We agree, and accordingly vacate Belaire’s conviction and remand for a new trial. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D June 25 , 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-50506 Document: 00511898824 Page: 1 Date Filed: 06/25/2012No. 11-50506 I. Belaire was convicted of a sex offense in 2004. When he was released from prison he registere d a s a sex offender in Texas, where he resided and worked. Belaire was required to check in with the probation office e v e ry 3 0 d ays. He checked in with his registering official in Texas on August 11, 2010. On August 13, he traveled to New York on a one-way ticket to meet a friend, Danielle Perry. On August 25, he was stopped by border patrol in Massena, New York, when reentering the U.S. from Canada. He was referred to the s e c o n d a ry inspection

area because his name was on recor d i n the NCIC data bank. Belaire was traveling with Danielle Perry and two minor females. Belaire told border patrol agents that th e group had attended a Justin Bieber concert in Canada and were returning after an overnight stay. Belaire admitted that he was a registered sex offender, that he had registered in Texas and had not informed Texas authorities of his t r av e l p lans. When Officer Weaver asked Belaire where he lived, he responded that he “was living with Ms. Perry in Moria, New York.” He told the officer that he had come to New York to rekindle an old flame with a high school sweetheart, and after a few days they had hit it off. Belaire stated that he was going to stay here (in New York) and start a new life with her. The officer asked Belaire if he knew he had to report in New York. Belaire said he di d n ’ t think he did unless he was staying permanently. Be l a i r e k new the New York reporting office was in Albany and stated that he had the contact information at home, referring to M o ri a, New York. When asked about his job situation, Belaire to l d t h e o f f i cer that he had been r e cently laid off as an aircraft mechanic in El Paso. He was looking for work in New York, and Perry and her boss were helping him. Although Belaire told officers he was livin g w ith Perry and gave her address on his written declaration for their entry into the United States, he also stated, when asked about his registration obligation, that he hadn’t off i c i a l ly

2 Case: 11-50506 Document: 00511898824 Page: 2 Date Filed: 06/25/2012No. 11-50506

moved to New York and his belongings were still in Texas. He had not decided when to go back to Texas to retrieve them. Belaire was found guilty and sentenced to 24 months of imprisonment. He timely appealed. II. The statute under which Belaire was convicted, 18 U.S.C. § 2250, makes it a crime to knowingly fail to register or update a registration as required by the SOTNA. Belaire registered under the act in Texas and the question in this case

1

was whether he failed to timely update his registration. The only registry update required in the act itself is located in 42 U.S.C. § 16913, which requires

sex offenders to register and keep their registration current by reporting within 3 business days each change of name, residence, employment, or student status

The fed eral cri mi nal pr ovis ion forf ailur e t o c om ply wi th SO RNA is cont ained in 18 1 U. S. C. § 2 250. § 22 50 . Failur e to re giste r (a) In genera l. Whoeve r- - (1) is requ ired to regis ter unde r the Sex Of fe n d e r Regis tra tio n and Not ifi cat ion Act; ( 2) (A) is a se x off

ende r as d e f

i n e d f o r the pur pos es of the Sex Of fen der Regis tra tio n and Not ifi cat ion Act by r eas on of a convic tio n unde r Fede ral law (inc ludi ng the Unif

ormCode of M ilit ary Jus tic e [10 US CS §§ 801 et se q.] ), the law of the Di st ric t of Colum bia, Indian tribal law , or the law of any ter rit ory or pos se ss ion of the Unit ed Sta tes ; or (B) travels in inte rs tat e or for eign com me rce , or ente rs or leaves , or res ide s in, Indian count ry; and (3) know ingly fails to re giste r or update a re gistr ation as re qu ire d by the Se x Of

fe nderRegi stration and N otific ation Act ; sha ll be fine d unde r this t itleorim priso ned not mo re than 10 ye ars , or both

.

. . . 18 U .S .C. § 2250 (em phas is add ed)

. 3 Case: 11-50506 Document: 00511898824 Page: 3 Date Filed: 06/25/2012No. 11-50506

to the appropriate authorities. The case against Belaire was that he changed 2 his residence to Moria, New York without timely reporting the change. Consistent with the requirements of 42 U.S.C. § 16913, the district court instructed the jury that –

[A] person cannot be found guilty o f f ailing to register as required by federal law unless he resided in a new state, in this case New York, for at least three days without registering.

. . . Thus, the government must prove that the defendant left the residence listed in the registry with no intention of returning. However, t h at instruction was immediately followed by an instruction that authorized a conviction on an alternative theory that Belaire contends is legally incorrect. The law also requires a sex offender to register at o r p r o vide information about any place in which the sex offender is staying when away from his registered address for seven or more days, including identifying the place and the period of time t h e sex offender is staying there. The prospect that a conviction could be based on a violation of the seven d a y p r ovision was increased by the government’s closing argument. The prosecutor argued -

Subs ect ion(c) of § 16913 st ates the requ irem ents for ke epi ng the regis tra tio n current

. 2 § 16 91 3. Regis try r eq uir em entsfor se x offe nder s (c) Ke epi ng the regis tra tio n current

. A se x off ende r sha ll, not later t h a n 3 bu sine ss days afte r e a c h chan ge of nam e, re side nce , em ploym ent, or stude nt status , app ear in per so n in a t leas t 1 jur isd ict ion involved pur sua nt to subse cti on (a) and info rmthat juris dic tio n of all changes in the inform atio n requ ired for that off

ende r in the se x o f

fen der regis try. That juris dic tio n sha ll im me diat el y p r o vide that info rm atio n to all othe r juris dic tio ns in wh ich the off ende r is requ iredt o r egis ter

. 42 U .S .C. § 16913 (em phas is add ed)

.

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The la w i s very strict on sex offenders, and you’ve been given the l a w . They have three days when moving jurisdictions to check in. And if they are going to be gone more than seven days on a vacation or in one place for seven days, they have to check in and they have to tell the registration agency that. The Defendant did none of that.
The government repeated this argument on Belaire’s obligation to register if traveling for more than seven days in its rebuttal. The Government submits that there is sufficient evidence in this case to convict the Defendant of failing to update his registration as required under the federal law when he left on the 11th or the 13th of August fo r N e w York with no intent to return, but much less being gone for more than seven days without returning.
The combination of the j ury in s tructions and the prosecution’s argument allowed the jury to convict on Belaire’s failure to register his address in Moria, New York where he had been staying for more than seven days. It is important to differentiate t h e requirement to report temporary lodging information f rom the obligation to update residency changes. The obligation to report residency changes within 3 business days is part of SORNA and thus failure to co m p l y can be a violation of 18 U.S.C. § 2250. In contrast, the requirement to provide temporary lodging informatio n i s c o ntained in the regulations in a list of information that jurisdictions must require sex offenders to provide. Section 16914 l i s t s information that jurisdictions maintaining the registries must include and includes a catch-all provision in subsection (a) ( 7), that states th at the sex offender shall provide to the registering jurisdiction “Any other information required by the Attorney General.” One of the items of “other information” that the Attorney General has required jurisdictions to direct sex offenders to provide is “Temporary Lodging Information.” The authority under SORNA § 114(a)(7) is accordingly exercised to p r o vi de that jurisdictions must require sex offenders to provide i n formation about any place in which the sex offender is staying when away from his residence f o r seven or more days, including

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identifying the place and t h e p e ri o d of time the sex offender is staying there. 73 FR 38030, 38056. This requi r e m e n t d oes not create an additional basis for criminal liability under § 2250, and the government does not argue that it does. In fact, neither Texas nor New York has implemented these regulations as they relate to their own sex offender registries. The government counters that the reference to the seven day registration
p r ovision was to negate the assertion by Belaire that he was just temporari l y visiting New York and had no plans to make New York his permanent residence. T h e e vi d ence was arguably probative on the critical issue of whether Belaire had decided to permanently relocate to New York. However, the court’s charge allowed the jury to convict on t h e t h e o ry that Belaire failed to register within

seven days of his arrival in New York and the government’s argument urged the jury to convict on this legally invalid theory. We are satisfied that this error was not harmless. [T]h e r e are two ways to prove the harmlessness of an alternative-theory error. First, as set forth in Neder v. United States (which is the most recent of the l i n e of cases cited in Pulido), an error is harmless if a court, after a " t h o r ough examination of the record," is able to "conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error." 527 U.S. at 19. If the defendant "raised e vi d ence sufficient to support a contrary finding," then the error was not harml e s s . Id

. Thus, under the so-called Ne der standard, a reviewing court, "in typical appellate-court fashion, asks whether the record contains evidence that could rationally lead to [an acquittal] with respect to the [valid theory of guilt]." Id

. Second, as we held in United States v. Holley , 23 F.3d 902 (5th Cir. 1994), and United States v. Saks , 964 F.2d 1514 (5th Cir. 1992), an alternative-theory error is harmless if the jury, in convicting on an invalid theory of guilt, necessarily found facts establishing guilt on a valid theory.

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United States v. Skilling , 638 F.3d 480, 482 (5th Cir. 2011), cert. denied, 132 S. Ct. 1905 (2012). Under the first o p t ion, the question is whether it is clear beyond a reasonable doubt that the jury verdict would have been the s a m e ab s e nt the

error. We find that it would not. The border of f i c i a l s t estified that Belaire stated that he originally flew to New York for a visit, and there was no evidence that he had physically moved In addition, even if the jury concluded that Belaire decided at some point to remain in New York, there was no evidence when that decision was made, which decision triggers the three day time period to update the registry. Also, although B e l a i r e w as looking for a job in New York, his search had been unsuccessful. A jury could reasonably find that he wanted to

move to New York only if he could fin d w o r k

. On the other hand, Belaire had admittedly been in New York and Canada – away from his registered address in Texas – more than seven days without notifying authorities of that fact. Thus, convi c t ion under the invalid theory that he failed to register a visit in

excess of seven days was much more likely than under the valid theory that he had decided to permanently relocate to New York and failed to register within three days of that decision. Under th e s e c o n d o p tion, Skilling asks whether the fact findings necessary to support a jury conviction on the invalid seven day tem p orary stay theory would necessarily support a finding of guilt on the three day change of residence theory. They would not. For these reasons, the error in presenting an invalid theory of conviction to the jury was not harmless. III. For the above reasons, we vacate Belaire’s conviction an d re m an d this case to the district court for a new trial. 3

Belair e als o argues that Congres s lack ed autho rit y unde r the Com me rce Claus e to 3
enac t SO RNA; that the SO RNA convic tio n violat es his due pr oce ss right s beca use he wa s 7 Case: 11-50506 Document: 00511898824 Page: 7 Date Filed: 06/25/2012No. 11-50506

VACATED; REMANDED.

never given noti ce of a dut y to regis ter unde r SO RNA; and that the SO RNA convic tio n violat es Belair e’s due pr oce ss right s beca use no st ate has im ple me nted SO RNA. Belair e ack now led ges that the above thr ee iss ues are for eclo se d by Fift h Circ uit pr ece dent , Uni ted States v. Wha le y , 577 F.3d 254, 256- 62 (5t h Cir. 2009)

. He pr es ents them to pr es erve them in the event of en banc or Sup rem e Co urtr eview

.
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