United States v. Kokinda

93 F.4th 635

UNITED STATES of America, Plaintiff - Appellee, v. Jason Steven KOKINDA, Defendant - Appellant.

No. 22-4595

United States Court of Appeals, Fourth Circuit

Argued: December 8, 2023

Decided: February 21, 2024

Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Thomas S. Kleeh, Chief District Judge. (2:21-cr-00020-TSK-MJA-1)

ARGUED: David W. Frame, LAW OFFICE OF DAVID W. FRAME, Clarksburg, West Virginia, for Appellant. Sarah Wagner, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee. ON BRIEF: William Ihlenfeld, United States Attorney, Wheeling, West Virginia, Brandon S. Flower, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.

Before AGEE, THACKER, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Thacker wrote the opinion in which Judge Agee and Judge Rushing joined.

THACKER, Circuit Judge:

Jason Steven Kokinda ("Appellant"), a convicted sex offender required to register pursuant to the Sex Offender Registration and Notification Act ("SORNA"), attempted to evade his registration requirements while staying at campgrounds in West Virginia.

A federal grand jury indicted Appellant on one count of traveling in interstate commerce and knowingly failing to update his registration as a sex offender in violation of 18 U.S.C. § 2250. The case proceeded to trial and Appellant stipulated that his prior sex offense required him to register. But Appellant argued that, by staying mobile without a fixed abode, SORNA did not require him to register anywhere. When the district court instructed the jury on SORNA's definition of "resides," it supplemented the term "habitually lives" with guidance from The National Guidelines for Sex Offender Registration and Notification ("SMART Guidelines"). After the jury found Appellant guilty, he moved for judgment of acquittal or a new trial, arguing that the district court's jury instruction improperly expanded SORNA's definition of "resides." The district court denied the motion.

Appellant makes the same argument on appeal -- that the district court's jury instruction was an incorrect recitation of the law. He also argues that SORNA, as applied to him, violates the Tenth Amendment. And Appellant challenges two facets of his sentence: (1) the eight-level enhancement for his third degree sexual abuse of a minor and possession of child pornography and (2) his lifetime term of supervised release.

We conclude that the district court correctly instructed the jury on what the terms "resides" and "habitually lives" mean for purposes of SORNA. We also conclude that SORNA, as applied to Appellant, does not violate the Tenth Amendment. And we affirm the district court's sentence as it was procedurally and substantively reasonable.

I.

A.

In 2007, Appellant was arrested in New Jersey and charged with one count of endangering the welfare of a child and one count of distribution of child pornography. He pled guilty to both charges in 2009 and was sentenced to three years of imprisonment. Following his New Jersey sentence, Appellant served a separate Pennsylvania sentence for unlawful contact with a minor. Based on the New Jersey child pornography conviction, Appellant was required to register as a sex offender pursuant to SORNA. See 34 U.S.C. § 20913; 18 U.S.C. § 2250(a). Appellant was registered in Delaware in 2015, Vermont in 2016, and New York in 2017. In 2018, Appellant left the country without notification and was later deported from Israel back to the United States based on a Vermont arrest warrant. He was released on bond in February 2019 and remained unregistered throughout 2019. While unregistered, Appellant traveled to several states in the Northeast and Midwest, evading detection by law enforcement.

That evasion ended on September 28, 2019, when Rosanna Bell ("Bell") called the police on Appellant. Bell observed Appellant talking to two pre-teen girls on the swings at the city park in Elkins, West Virginia. Then, Bell saw Appellant grab the buttocks of one of the girls while pushing her on the swing. Bell approached the girls and asked if they knew Appellant. P.M. -- the girl whom Appellant had grabbed -- asked if Bell "could please make [Appellant] leave." J.A. 599.¹ Bell called the police and waited with the girls until law enforcement arrived. By the time law enforcement officers arrived, Appellant had left the park. The next day, officers noticed a man near the park matching Appellant's description and approached him. When asked his identity, Appellant gave the name "Representative Jason Stevens." Id. at 122. Officers arrested him and charged him with sexual abuse in the third degree in violation of W. Va. Code § 61-8B-9 (2019).²

During the month prior to his arrest, Appellant left a paper trail of his stay in West Virginia. Financial records placed Appellant shopping in and near Elkins, West Virginia on an almost daily basis from August 24 until September 27. And receipts and witnesses established that Appellant rented two different campsites in West Virginia for most of September. At one of those campsites, Appellant used the alias "Jason Smoke." J.A. 183. Additionally, an Elkins, West Virginia YMCA employee provided records demonstrating that a "Jason Stevens" purchased day passes on five occasions between September 10 and 24. Id. at 201. Only four of Appellant's transactions during the August 24 to September 27 time period occurred outside West Virginia, indicating brief visits to Winchester, Virginia, and Erie, Pennsylvania. The Winchester trip occurred on September 17, with Appellant making a purchase back in Elkins, West Virginia later that same day. And the Erie trip included transactions on September 23, with a transaction back in Elkins the following day. Appellant did not dispute these transactions when he testified at trial.

When Appellant was arrested, his two cell phones were seized. Later examination of one of the cell phones revealed thirty images depicting child pornography, along with a PDF file containing child pornography search terms such as "My little girl nude," "Kiddy CP," and "Preteen incest." J.A. 653. The cell phone also contained indicia of Appellant's ownership and use of the phone, including photographs of himself, his passport, and documents and receipts containing his name.

B.

Appellant was indicted by a federal grand jury on one count of failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). The case proceeded to trial. Appellant stipulated that his New Jersey conviction required him to register as a sex offender pursuant to SORNA. But Appellant argued that he never "resided" in West Virginia, so SORNA's registration requirement was not triggered.

1.

At trial, Appellant testified in his own defense. He admitted that he had not registered as a sex offender in West Virginia, or any state after leaving Vermont in February 2019. But he denied that he had a home or regularly lived in West Virginia during the month preceding his arrest. Appellant explained that he "fully studied" SORNA's registration requirements and "tried to move around as much as possible" so he would not need to register. J.A. 441-42. And he admitted frequenting Elkins from August 24 to September 19, to go to the gym, to shop, and to charge his laptop at the library and city park. But he asserted that he was "staying somewhere very far away, as [his] home base of operations, [as his] constructive type of temporary lodging." Id. at 459. And he explained that he used false identities to conceal the fact that he is a sex offender, and stayed in campgrounds that did not require an identification.

2.

SORNA requires sex offenders to register "and keep the registration current, in each jurisdiction where the offender resides." 34 U.S.C. § 20913. "Resides" is defined as "the location of the individual's home or other place where the individual habitually lives." Id. § 20911(13). As discussed below, the SMART Guidelines define SORNA's term "habitually lives." The National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 38,030, 38,061 (July 2, 2008).

Both Appellant and the United States proposed jury instructions to clarify SORNA's registration requirement. Appellant's proposed instruction included SORNA's definition of "resides" along with a portion of the SMART Guidelines' definition of "habitually lives." Specifically, Appellant's instruction defined "habitually lives" to "include[ ] places in which the sex offender lives with some regularity. A sex offender habitually lives in the relevant sense in any place in which the sex offender lives for at least 30 days." S.A. 5.³ The United States' proposed instruction also included SORNA's definition of "resides," but included a longer excerpt from the SMART Guidelines defining "habitually lives." That longer excerpt stated:

"Habitually lives" accordingly should be understood to include places in which the sex offender lives with some regularity, and with reference to where the sex offender actually lives, not just in terms of what he would choose to characterize as his home address or place of residence for self-interested reasons. The specific interpretation of this element of "residence" these Guidelines adopt is that a sex offender habitually lives in the relevant sense in any place in which the sex offender lives for at least 30 days. Hence, a sex offender resides in a jurisdiction for the purposes of SORNA if the sex offender has a home in the jurisdiction, or if the sex offender lives in the jurisdiction for at least 30 days. Jurisdictions may specify in the manner of their choosing the application of the 30-day standard to sex offenders whose presence in the jurisdiction for 30 days is intermittent but who live in the jurisdiction for 30 days in the aggregate over some longer period of time.

S.A. 27.

The district court declined to give either party's...