FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE HON. GEORGE Z. SINGAL, U.S. DISTRICT JUDGE.
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
Torruella, Lynch, and Barron, Circuit Judges.
TORRUELLA, CIRCUIT JUDGE.
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.
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.
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. 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
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.
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").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. 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.
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
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. 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.
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). A two-day jury
trial in the United States District Court for the District of
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.
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.
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.
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."
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 ...