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United States v. Nagell

United States Court of Appeals, First Circuit

December 19, 2018

UNITED STATES OF AMERICA, Appellee,
v.
MICHAEL NAGELL, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE HON. GEORGE Z. SINGAL, U.S. DISTRICT JUDGE.

         Luke S. Rioux and Rioux, Donahue, Chmelecki & Peltier, LLC on brief for appellant.

          Benjamin M. Block, Assistant United States Attorney, and Halsey B. Frank, United States Attorney, on brief for appellee.

          Before Torruella, Lynch, and Barron, Circuit Judges.

          TORRUELLA, CIRCUIT JUDGE.

         A jury convicted Defendant-Appellant Michael Nagell ("Nagell"), a registered sex offender, of knowingly failing to update his registration, in violation of 18 U.S.C. § 2250(a). At sentencing, the district court imposed a two-level obstruction of justice enhancement pursuant to U.S.S.G. § 3C1.1, after finding that Nagell had committed perjury when he testified at trial in his own defense. The district court then sentenced him to thirty months' imprisonment, at the middle of his Guidelines sentencing range ("GSR"). Nagell now challenges the district court's finding of obstruction of justice and the resulting sentencing enhancement. We affirm.

         I. Background

         In 2007, Nagell was convicted on two counts of coercion and enticement of a minor, in violation of 18 U.S.C. § 2422(b), and one count of traveling to engage in illicit sexual activity, in violation of 18 U.S.C. § 2423(b). He was sentenced to sixty months of incarceration, to be followed by eight years of supervised release. As a mandatory condition of his release, under the Sex Offender Registration and Notification Act ("SORNA"), Nagell became a registrant in the Maine Sex Offender Registry (the "Registry") upon his release from prison.

         Nagell was required to annually complete and return a "verification form" to the Registry. With that form, he also needed to include a current passport photo and pay a twenty-five dollar fee. Additionally, if he changed his domicile, residence, employment, or school between verification cycles, Nagell had to notify local law enforcement within twenty-four hours of that change, and also file a "notice of change of information report" with the Registry within five days.[1] Nagell acknowledged all of these requirements in writing during his initial registration as a sex offender, and received numerous reminders from his probation officers and case workers in the years that followed.

         Between 2012 and May 2015, Nagell's supervised release was twice revoked, and he received prison sentences for failing to comply with the conditions of his release, followed by additional periods of supervised release. During this period of time, Nagell also filed several annual verification and change of information reports with the Registry. Nagell's third period of supervised release began in July 2015. As a condition of this third period of supervised release, he was placed in the Pharos House, a federal halfway house in Portland, Maine, which aims to facilitate the reintegration of convicts into society.

         Following his placement at Pharos House, Nagell held several jobs. Immediately after his arrival at Pharos House, Nagell's case manager, Kimberly Hartley ("Kim Hartley"), helped him apply to Single Source Staffing ("SSS"), a temporary employment agency. SSS hired him. In September 2015, SSS placed Nagell at Earle W. Noyes & Sons Moving Specialists, Inc. ("Noyes") and, in October 2015, at Emery-Waterhouse Company ("Emery-Waterhouse").[2]Between October 2015 and December 10, 2015, Nagell received concurrent SSS assignments at both Emery-Waterhouse and Noyes. On December 21, 2015, Nagell informed his probation officer that he had been hired as a full-time employee by Noyes and that his prior employment with SSS (and consequently with Emery-Waterhouse) had ceased.[3] From July 2015 to April 2016, the only Registry updates regarding employment changes were filed on December 28, 2015 and January 13, 2016, and listed Emery-Waterhouse as Nagell's employer.

         Nagell's residency information also changed during this period. In September 2015, he moved out of Pharos House and back into his pre-conviction residence in Bath, Maine. Although he notified his probation officer of his change of address, he did not file the corresponding notice of change of information report with the Registry. Consequently, in November 2015, the Registry mailed Nagell's annual verification form to Pharos House. The form was twice returned to the Registry as undeliverable, and finally reached Nagell at his new address after the Bath Police Department informed the Registry of Nagell's new residence.

         On December 28 or 29, 2015, Nagell completed his annual verification form, along with a notice of change of information report updating his residence and employer information, at the Bath Police Department.[4] In the report, however, he identified his employer as "Emery & Waterhouse," even though he had become a full-time employee at Noyes on December 21, 2015, and had ended his professional affiliation with Emery-Waterhouse and SSS earlier in December 2015. The Registry received Nagell's forms on January 4, 2016. Because Nagell did not provide a full physical address for his listed employer, the Registry sent a letter back to Nagell on January 4, 2016, requesting that he provide his employer's address. In response, Nagell submitted a new notice of change of information report, dated January 13, 2016, in which he once again listed Emery-Waterhouse as his employer and included its address. The Registry received that new form on January 20th. Nagell did not update his employment information after that.

         Nagell continued to work full-time at Noyes until late April 2016. On April 27, 2016, Nagell's probation officer filed a petition to revoke Nagell's supervised release for, inter alia, failing to provide the Registry with his updated employment information. The court issued an arrest warrant and, on May 3, 2016, Nagell was arrested. A one-count Information charged Nagell with knowingly failing to update his sex offender registration between December 2015 and April 2016, in violation of 18 U.S.C. § 2250(a).[5] A two-day jury trial in the United States District Court for the District of Maine followed.

         The parties entered a stipulation as to the first two elements of the crime, namely, that Nagell was a sex offender under SORNA by reason of a conviction under federal law, and that as a result of that conviction, he was required to register under SORNA. The only contested issue that remained was whether Nagell knowingly failed to update his employment information at the Registry between December 2015 and April 2016, as required by SORNA.

         At trial, the following five witnesses testified for the government's case-in-chief: Nagell's Probation Officer, Kristin Cook; SSS's Director of Recruiting, Jeremy Jackson; Noyes's Vice President, William Noyes; Office Associate II at the Registry, Sally Taylor; Bath Police Department Detective, Andrew Booth. The defense's only witness was Nagell, who took the stand in his own defense. Nagell's testimony led the prosecution to call Kim Hartley as a rebuttal witness. The jury found Nagell guilty as charged.

         At sentencing, the government -- arguing that Nagell had willfully obstructed the administration of justice by committing perjury at trial -- asked for a two-level enhancement pursuant to U.S.S.G. § 3C1.1. The government relied on two instances at trial where witness testimony directly contradicted Nagell's statements under oath.

         The first instance involved Nagell's testimony concerning his state of mind as to his failure to register. On direct examination, Nagell claimed that Kim Hartley, his case manager at Pharos House, had told him that she had updated his information at the Registry. When asked why he did not report Noyes as his current employer, Nagell responded, "Because when I was at the halfway house Kim said everything was taken care of. So she said she put my current jobs and current address on the information, but the form never appeared." During cross examination, when the prosecutor asked Nagell whether he had sent any notice of change of information report to the Registry updating his employment information while at Pharos House, Nagell responded that he didn't because "Kim said she took care of that. . . . I asked her twice."

         Kim Hartley's testimony as a rebuttal witness directly contradicted Nagell's statements on the stand. The following exchange is illustrative:

Q: As a general matter, when a resident of Pharos House, somebody . . . who is part of your caseload, obtains employment outside the house, have you ever notified the ...

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