In United States v. Lusby, --- F.3d ---, No. 18-10368 (9th Cir. 2020), the Court reversed the district court’s order dismissing an indictment charging the defendant with failing to register as a sex offender in violation of the Sex Offender Registration and Notification Act.
On appeal, the Court first addressed whether the dismissal created a double jeopardy bar, such that there was no appellate jurisdiction.
The Court explained, "[a]lthough Lusby is correct that our jurisdiction does not extend to appeals from dismissals of indictments where that Clause 'prohibits further prosecution,' 18 U.S.C. § 3731, it does not do so here."
"[J]eopardy 'does not attach' unless a defendant is 'put to trial before the trier of facts,' which subjects the defendant to the 'risk of a determination of guilt[.]
"Lusby argues that jeopardy attached here because, in dismissing his indictment, the district court effectively conducted a non-jury trial."
"[W]e reiterate that—in the context of a nonjury trial—jeopardy only attaches when the court begins to 'hear[] evidence for the purpose of deciding the issue of guilt or innocence' that could 'subject[]” the defendant “to the risk that he would be found guilty.'"
"Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy."
"[W]e hold that jeopardy did not attach in this case because the district court never heard 'evidence for the purpose of deciding the issue of guilt or innocence' that could 'subject[]' Lusby 'to the risk that he would be found guilty.'
As to the merits of the appeal, the Court addressed "whether a conviction for violating 18 U.S.C. § 2250(a) requires that the defendant’s interstate travel not be legally compelled."
It held, "the statute does not require that the interstate travel be done in the absence of legal compulsion. Congress’s inclusion of an affirmative defense for uncontrollable circumstances—which Lusby does not argue applies here—further supports the interpretation that Congress did not intend to provide an additional unwritten affirmative defense regarding legally-compelled interstate travel."
Thus, the Court remanded the case for trial.
