Reply Brief — Jason Steven Kokinda, Petitioner v. United States

Supreme Court briefAug 14, 2024

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No. 24-5006

In the

Supreme Court of the United States

JASON STEVEN KOKINDA,

Petitioner,

UNITED STATES,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of A ppeals for the Fourth Circuit

SUPPLEMENTAL MEMORANDUM OF LAW

David W. Frame

Counsel of Record

The Law Office of David Frame

Nationwide Building

493 Washington Avenue, Suite 2

Clarksburg, West Virginia 26301

dwframe@framelaw.com

Counsel for Petitioner

332110

(800) 274-3321 • (800) 359-6859

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................... ii

Introduction ................................................................................................................... 1

Chevron deference v. the Rule of Lenity ....................................................................... 3

Delegation/“Skidmore deference” .................................................................................. 5

Conclusion ...................................................................................................................... 6

TABLE OF AUTHORITIES

Page(s)

Cases:

Abramski v. United States,

573 U.S. 169, 134 S.Ct. 2259, 189 L.Ed.2d 262 (2014) ................................... 2, 4, 5

Cargill v. Garland,

57 F.4th 447 (5th Cir. 2023) ................................................................................. 2, 3

Guedes v. ATF,

___ U.S. ___, 140 S.Ct. 789, 206 L.Ed.2d 266 (2020)............................................... 2

Loper Bright Enterprises v. Raimondo,

___ U.S. ____, 144 S.Ct. 2244 (2024), overruling

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984) .......................................................................... 1, 2, 3, 5, 6, 7, 8

National Cable & Telecommunications Association v.

Brand X Internet Services,

545 U.S. 967, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) ........................................... 5

Nichols v. United States,

578 U.S. 104, 136 S.Ct. 1113, 194 L.Ed.2d 324 (2016) ....................................... 4, 5

Skidmore v. Swift & Co.,

323 U.S. 134 (1944) .................................................................................................. 6

United States v. Apel,

571 U.S. 359, 134 S.Ct. 1144, 186 L.Ed.2d 75 (2014) ............................................. 2

United States v. Castleman,

572 U.S. 157 (2014) .................................................................................................. 3

United States v. Kebodeaux,

570 U.S. 387, 133 S.Ct. 2496, 186 L.Ed.2d 540 (2013) ........................................... 4

United States v. Kokinda,

93 F.4th 635 (2024)................................................................................................... 8

United States v. Ward,

2014 WL 6388502 (USDC N.D.Florida) .................................................................. 4

United States v. Wiltberger,

18 U.S. (5 Wheat.) 76, 5 L.Ed. 37 (1820) ................................................................. 3

Wooden v. United States,

595 U. S. 360 (2022) ................................................................................................. 3

Statutes & Other Authorities:

18 U.S.C. § 2250 ............................................................................................................. 1

34 U.S.C. §20912(b) ....................................................................................................... 5

H. Monaghan, Marbury and the Administrative State, 83 Columb.L.Rev. 1

(1983) ........................................................................................................................ 6

Magnuson-Stevens Fishery Conservation and Management Act................................ 2

SMART Guidelines, Office of the Attorney General’s “National Guidelines

for Sex Offender Registration and Notification,” 73 FR 38030-01,

2008 WL 2594934 ................................................................................. 1, 3, 4, 5, 6, 8

iii

Introduction

On August 2, 2024, the Solicitor General filed her response to the Petition in

this case. On behalf of the government, the Solicitor General recommended that the

Court “should grant the petition” (p. 2, Memorandum of the United States), based

on the Court’s recent decision in Loper Bright Enterprises v. Raimondo, ___ U.S.

____, 144 S.Ct. 2244 (2024), overruling Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984). This supplemental memorandum is

being filed to confirm the Petitioner’s agreement that Loper Bright is a landmark

opinion, a paradigm shift, and directly applicable to the Petitioner’s criminal

conviction. The Petitioner will also briefly emphasize how this criminal proceeding

in particular was infected from start to finish with the government’s expansive

interpretation of a crucial element of the criminal offense of Failure to Register as a

Sex Offender, 18 U.S.C. §2250, based on selected passages from the so-called

SMART (Sentencing, Monitoring, Apprehending, Registering, and Tracking)

Guidelines, Office of the Attorney General’s “National Guidelines for Sex Offender

Registration and Notification” (hereinafter “Guidelines”), 73 FR 38030-01, 2008 WL

2594934, that were grafted on to the statutory text to craft an erroneous jury

instruction. The Guidelines passages that were adopted altered the crucial element

of “change of residence,” making it easier to prosecute and more difficult to defend.

The augmented element expanded the field of factual circumstances under which a

sex offender’s obligation to register would be triggered.

Loper Bright involves the administrative interpretation of a civil statute, the

Magnuson-Stevens Fishery Conservation and Management Act (MSA), regulating

domestic and foreign fishing in an “exclusive economic zone” off the United States’

coastline and requiring the owners of fishing vessels to pay for third-party monitors.

Although the MSA includes criminal sanctions as part of its enforcement

mechanism, they are not implicated in the case or discussed in the opinion. In fact,

the Court makes it clear that it granted certiorari to decide whether to overturn or

clarify Chevron in the broadest sense. The explicit and categorical abrogation of the

Chevron doctrine, which had been foreshadowed in cases leading up to Loper Bright

(see, e.g., Justice Gorsuch’s statement, on the reasons for denying certiorari in

Guedes v. ATF, ___ U.S. ___, 140 S.Ct. 789, 791, 206 L.Ed.2d 266 (2020)(citing

United States v. Apel, 571 U.S. 359, 369, 134 S.Ct. 1144, 186 L.Ed.2d 75 (2014) and

Abramski v. United States, 573 U.S. 169, 191, 134 S.Ct. 2259, 189 L.Ed2d 262

(2014)), strongly implies that overruling Chevron answers the repeated questions

about whether or to what extent the Chevron doctrine supplanted the “rule of

lenity.” Acknowledging that “we have sent mixed signals on whether Chevron

applies when a statute has criminal applications,” 144 S.Ct. at p§§. 2269, Chief

Justice Roberts cited Cargill v. Garland, 57 F.4th 447 (5th Cir. 2023). Cargill

succinctly lays out the argument in favor of the rule of lenity and explains why the

Fifth Circuit’s “sister circuits” got it wrong when they applied Chevron instead. Id.,

§IVB, at pp. 466-468; see also Guedes v. ATF, 920 F.3d 1 (D.C. Cir. 2019). If any of

the circuit courts are obstinate enough to insist that Loper Bright did not expressly

state that the Chevron deference is dead with respect to criminal cases, there will

be a time-consuming and wasteful parade of cases back to the Court until every

doubt has been abolished.

Chevron deference v. the Rule of Lenity

“Since the founding, American courts have construed ambiguities in penal

laws against the government and with lenity toward affected persons.” Loper

Bright, 144 S.Ct. at 2286 (quoting Wooden v. United States, 595 U. S. 360, 388–390

(2022) (Gorsuch, J., concurring in the judgment)). “A rich legal tradition supports

the ‘well known rule’ that ‘penal laws are to be construed strictly.’” Cargill, supra,

at p. 451 (quoting United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 94-95, 5 L.Ed.

37 (1820). “The rule of lenity tells us to construe ambiguous statutes in favor of

criminal defendants.” United States v. Castleman, 572 U.S. 157, 172-174 (2014).

As a rule of statutory construction, the rule of lenity counsels adopting the

interpretation that is most favorable to the defendant. In this case, rather than

construing the elements of the offense, as articulated in the statutory text, in the

light most favorable to the defendant (i.e., with “lenity”), the district court judge

“leaned” into the administrative Guidelines, which were adopted with enigmatic

objectives.1 Judge Kleeh crafted a jury instruction which enlarged the universe of

factual grounds on which a sex offender “must” register. The instruction completely

1 The undersigned has argued from the outset — and this may be the crux of the

case — that Part VI and Part VIII of the Guidelines express very different

objectives and must be clearly distinguished to avoid the very error that occurred

here. Any other interpretation places the administrative exercise in excess of the

scope of its constitutionally delegated authority.

foreclosed the defense theory that Kokinda was a “digital nomad” who did not

“reside” anywhere during the relevant period of time. Congress delegated power to

the Attorney General, largely to provide administrative guidance to states and

territories regarding their compliance with SORNA, but, to the extent that

Congress delegated interpretive authority, it can not justify the administrative

enactment of scenarios which would satisfy the factual basis for a “change of

residence” divorced from the “ordinary English usage” of the statutory terms. The

district court’s and counsels’ somewhat “bi-partisan” effort to craft an appropriate

instruction went off the rails when it conflated interpretation of the elements of the

criminal offense with the Attorney General’s guidance about “pieces of information”

that a sex offender must provide “if and when” he is required to update his

registration. Nichols, p. 110-111 (emphasis added). See also, United States v. Ward,

2014 WL 6388502 (USDC N.D.Florida) (Guidelines, Part VI). The reviewing circuit

court believed the expansion of the “change of residence” element was warranted

because it advanced the statute’s “purpose” and the Justice Department’s objective

of locking down all of the sex offenders who were “lost” under the previous

patchwork of state-run programs. United States v. Kebodeaux, 570 U.S. 387, 399,

133 S.Ct. 2496, 186 L.Ed.2d 540 (2013).

Defying common sense and the “ordinary English usage” of the term

“resides,” as counseled very clearly in Nichols v. United States, 578 U.S. 104, 111,

136 S.Ct. 1113, 194 L.Ed.2d 324 (2016)(quoting Abramski v. United States, 573 U.S.

169, 197, 134 S.Ct. 2259, 2277, 189 L.Ed.2d 262 (2014)(Scalia, J., dissenting), one of

the passages adopted from the Guidelines gave the government the alternative of

proving that the offender “resides” . . . [either] “where [he] stations himself during

the day (re-defining the plain text of the statute) or [where he] sleeps at night (more

akin to the “ordinary, English usage” of the word “resides” (brackets, parentheses

and emphasis added). In Nichols, the Court found the meaning of “resides” to be

unambiguous. Justice Alito chided the government for its resistance to a

straightforward reading of the statutory text. “[N]o one in ordinary speech uses

language in such a “strained and hyper-technical way.” Nichols, at p. 109. In spite

of Nichols’ binding precedent, finding the statutory text unambiguous, the district

court allowed the administrative agency’s interpretation to supersede the judicial

interpretation. National Cable & Telecommunications Association v. Brand X

Internet Services, 545 U.S. 967, 125 S.Ct. 2688, 162 L.Ed.2d 820, (2005)

Delegation/“Skidmore deference”

The Loper Bright opinion does appear to carve out one vaguely defined

exception for “delegated interpretive authority.” SORNA §112(b), 34 U.S.C.

§20912(b); and see, Loper Bright, 144 S.Ct., at p. 2275 (Justice Gorsuch’s concurring

opinion). SORNA delegated to the Attorney General of the United States the

authority to issue guidelines “to interpret and implement SORNA.” Guidelines, p.

38044 (I. Introduction). Loper Bright also cites Skidmore v. Swift & Co., 323 U.S.

134 (1944) for the proposition that the courts must give respectful consideration for

another branch’s interpretation of the law. However, the Court “fix[es] the

boundaries of [the] delegated authority.” H. Monaghan, Marbury and the

Administrative State, 83 Columb.L.Rev. 1, 27 (1983). Loper Bright, 144 S.Ct., at p.

2263. The SMART Guidelines were issued principally “to provide guidance and

assistance to covered jurisdictions,” Guidelines, p. 38044, by describing the method

and means of implementing, including the content of the sex offender registration

and notification programs the jurisdictions were required to adopt in order to

qualify for law enforcement funding.

SORNA and the Guidelines are vague about the extent to which the

delegation of authority to interpret and implement SORNA was intended to define

statutory terms. The only part of the Guidelines that explicitly undertakes such a

task is Part VIII, in which “resides” and “lives” is given a temporal threshold of “at

least 30 days” 73 FR38062. Trial counsel conceded this much. However, at the

government’s urging, the district court judge also incorporated lengthy passages

from Part VI, which is expressly described as “informational content” that must be

obtained by a jurisdiction and included in its registry, but only “if and when” a sex

offender is required to register, according to Nichols, supra, pp. 110-111.

Conclusion

Whether the government continues to defend the subject jury instruction

based on deference or delegation, from the presentation of this case to the grand

jury through the circuit court appeal, the government’a position has been that the

“change of residence” element of the failure to register offense was satisfied by the

defendant’s frequent visits to Elkins, West Virginia — his “base” or “hub” — where

he shopped, exercised and hung out, during the day. He had no house, apartment,

tent, campsite or R.V. in Elkins, or anywhere in Randolph County, West Virginia.

He did not stay overnight or sleep in his car, under a bridge, at a shelter, on a park

bench or on a friend’s couch in Randolph County. The Petitioner did, however,

testify that he stayed at campgrounds in four (4) different counties in three (3)

different states during the relevant time period. That evidence was not challenged

by the government, and it was supported by the U.S. Marshals’ seizure of his tent

and sleeping bag at the last campground, which he was unable to return to after his

September 29, 2019 arrest.

The Petitioner’s conviction stands on the sandy ground of convoluted

semantics and the application of a legal doctrine whose “best by” date has expired.

The government insisted on the application of Chevron deference, which was

grounded in the argument that the term “resides” was rendered ambiguous because

its synonym “lives” was qualified by the adjective “habitually.” The government

maintained that the ambiguity created by the word “habitually” warranted Chevron

deference. Even if/when Chevron did apply, the government and the district court

judge deferred to the wrong part of the Guidelines. The administrative exercise

included an earnest attempt to close the loophole of sex offenders “without a fixed

abode.” The Attorney General did this by cataloging scenarios involving transient

sex offenders, but it was error to treat these scenarios as a definitive interpretation

of statutory terms that triggered the obligation to register. The expanded concept

of “resides/lives” included the sex offenders day-time meanderings, and not only as

extrinsic evidence of where he lived, but as conclusive proof that he lived “where

[he] stationed himself during the day.” The undisputed facts of the case

notwithstanding, the appeals court panel distinguished Nichols, applied Chevron,

and found that Kokinda’s textual argument offended the “purpose” of SORNA. The

panel found that Kokinda’s Aristotelian travels stretched Nichols’ hypothetical

about transitory lodging beyond the breaking point, because he might travel

“indefinitely.” United States v. Kokinda, 93 F.4th 635, 646 (2024). If Kokinda’s

nomadic scenario is contrary to the spirit of SORNA but not contradicted by the

text, it is still not for the courts to repair the breach. Returning to Loper Bright,

and if overruling Chevron mandates the application of the rule of lenity, the facts of

this case can not sustain a conviction. The court erred in rejecting Nichols’ binding

precedent and adopting the wrong part of the administrative guidelines. These

errors compounded to blur the boundary of the factual circumstances that were

deemed sufficient to trigger the obligation to register. It was plain error for the

district court to give this overbroad instruction and refuse to grant a judgment of

acquittal. The Court could put an end to any further speculation about the survival

of some vestige of delegated Chevron deference vis-a-vis the rule of lenity by

rendering a summary reversal and acquittal rather than a remand to an

unsympathetic panel of the circuit court.

Respectfully Submitted,

/s/ David W. Frame