U.S. v. Pendleton

• Decision Date: 12 April 2011
• Docket Number: No. 10–1755.,10–1755.
• Citation: 636 F.3d 78
• Parties: UNITED STATES of Americav.Thomas S. PENDLETON, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

636 F.3d 78

UNITED STATES of America

v.Thomas S. PENDLETON, Appellant.

No. 10–1755.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit

LAR 34.1(a) March 14, 2011.

Opinion Filed April 12, 2011.

Eleni Kousoulis, Esq., Daniel I. Siegel, Esq., Office of the Federal Public Defender, Wilmington, DE, for Appellant.Ilana H. Eisenstein, Esq., Office of the United States Attorney, Wilmington, DE, Jennifer Leonardo, Esq., United States Department of Justice, Criminal Division, Public Integrity Section, Washington, D.C., for Appellee.Before RENDELL, BARRY and CHAGARES, Circuit Judges.

OPINION OF THE COURT

BARRY, Circuit Judge.

Thomas Pendleton, previously convicted of a qualifying sex offense, was convicted under 18 U.S.C. § 2250(a) for traveling in interstate and foreign commerce and knowingly failing to register under the Sex Offender Registration and Notification Act (“SORNA”). On appeal, he challenges the sufficiency of the evidence at trial, as well as SORNA's constitutionality under the Due Process and Commerce Clauses. We will affirm.

I. BACKGROUND

The one-count indictment in this case charged that

[f]rom on or about January 28, 2008, to on or about March 10, 2008, in the State and District of Delaware and elsewhere, THOMAS S. PENDLETON, defendant herein, a person required to register under Sex Offender Registration and Notification Act, Title 42, United States Code, Section 16901 et seq. (“SORNA”), having traveled in interstate and foreign commerce subsequent to his conviction for a sex offense, to wit, a conviction on or about September 30, 1992, in the state of New Jersey, and a conviction on or about October 16, 2006, in District Court of Kempten, Germany, did knowingly fail to register and update a registration as required by SORNA, in violation of Title 18, United States Code, Section 2250(a).

(R. at 58.) The parties stipulated that Pendleton was convicted of the two sex offenses identified in the indictment and agreed that he was, therefore, a “sex offender” under SORNA.

A. Pendleton's Registration Status

Pendleton was registered as a sex offender in Washington, D.C. in 2005 and for some period of time before then, but in an email dated April 29, 2005, he informed Yolanda Stokes, the sex offender registry specialist who oversaw his registry, that he was moving to Delaware. He wrote,

Effective May 1, 2005, I am moving my residence from the District of Columbia to the State of Delaware. I have already been in contact with the Delaware authority confirming my responsibilities there.... In case you need it, my new address is: 202 West 14th Street, Wilmington ... 19801 [the “Wilmington Address”]. My cell phone remains unchanged....

( Id. at 237–38 (internal quotation marks omitted).) Stokes then closed her file on Pendleton, contacted the Delaware authorities, and sent them information regarding him. In early 2008 and again at the time of trial in April of 2009, an officer with the Delaware State Police Sex Offender Apprehension and Registration Unit searched Delaware records and determined that Pendleton never registered as a sex offender there.

B. Pendleton's Claims of Delaware Residence

On May 4, 2005, Pendleton applied for a driver's license from the Delaware Division of Motor Vehicles. He gave the Wilmington Address as his address and signed a statement in which he certified,

under penalty of perjury, that the information on this application is true and correct, to the best of my knowledge, and that I am a bona fide resident of Delaware.... I understand that all convicted sex offenders must register with the Delaware State Police within seven days of coming into the state as explained on this form.

( Id. at 251.) Pendleton also used the Wilmington Address when he filled out and signed a voter registration form at the Division of Motor Vehicles on which he stated that he was “a permanent resident of the State of Delaware at the address given above [the Wilmington Address].” ( Id. at 249.)

Pendleton listed the Wilmington Address as both his mailing address and permanent address in a passport application dated October 5, 2005. On October 2, 2006, he again applied for a passport, with his mailing address in Kempten, Germany and the Wilmington Address as his permanent address. In a third passport application on February 29, 2008, within the time period alleged in the indictment, he listed the Wilmington Address as his current and permanent address.

Pendleton went to Germany in November of 2005 and was convicted of a sex offense there on October 16, 2006. After he served his prison sentence for that offense, he was deported to the United States, and he arrived at JFK Airport on January 21, 2008. William McAlpin, an agent with Immigration and Customs Enforcement, interviewed him upon his arrival at JFK. Pendleton listed the Wilmington Address on his customs declaration form and told McAlpin that “he was residing” there and planned to go there after spending some time visiting friends in New York City. ( Id. at 254–55.) He also told McAlpin that the Wilmington Address “was an apartment within a home owned by one Richard Bayard.” ( Id. at 257.) Pendleton then sent an email to Mr. Bayard to let him know that he gave the address to customs officials when he came through the airport, and that “a strange call might come about me. I explained that it was your home and did not correct his impression that I rented a room from you.” ( Id. at 300.)

Mr. Bayard owned the single-family home at the Wilmington Address. His adult daughter, Kate Bayard, lived there for most of her life with her family and has lived there alone since 2006. Ms. Bayard testified that Pendleton “was friendly with [her] parents,” but she does not remember meeting him. ( Id. at 263.) As far as she knows, Pendleton did not have a key to the house, never stayed there overnight or asked to do so, and did not come in the house. Ms. Bayard did not know that Pendleton used her address to obtain a driver's license, apply for a passport, or register to vote.

At some point between 2002 and 2006, Pendleton asked Mr. Bayard to hold his mail while he was traveling. He picked up his mail once, and then the Bayards “didn't hear from him for a number of years.” ( Id. at 265.) In 2008, Pendleton contacted Mr. Bayard to pick up his mail, and Ms. Bayard arranged to leave the mail in the mailbox in front of the house. Deputy United States Marshal William David had been investigating Pendleton's compliance with SORNA and made arrangements with Ms. Bayard for Pendleton's mail to be in the mailbox at the Wilmington Address on the afternoon of March 10, 2008.

David went to the Wilmington Address on the prearranged day and approached Pendleton, who had checked the mailbox and was standing on a nearby street corner. After David identified himself, he asked Pendleton for identification, and Pendleton produced a Delaware driver's license that was issued on May 13, 2005 with the Wilmington Address on it. When David asked, Pendleton said that he lived at the Wilmington Address but “had lost his key and was waiting for the other occupant to get home to let him in.” ( Id. at 283.) Pendleton also showed David his passport and a membership card for Hostelling International, which had the Wilmington Address on it. Pendleton said he had just come from the library in Wilmington but was staying at a hostel in Philadelphia because he “had business” there. ( Id. at 284.) A receipt showed that he paid to stay at the hostel in Philadelphia from March 7 to 11, 2008. The hostel later sent his belongings to the United States Marshal's Service, and his name and the Wilmington Address were written on a luggage tag on one of those items.

David arrested Pendleton, read him his rights, and told him that he was charged with a violation of § 2250 for failure to register as a sex offender. Pendleton first denied being a sex offender and then said that he was a sex offender but was not required to register. After he was arrested, the government executed a search warrant on an email account that he used. Emails that he sent and received in late January of 2008, after he was deported from Germany to the United States, show that he researched sex offender registration requirements in Delaware and correctly concluded that at that time he was not required to register under Delaware law.

C. Pendleton's Travels in Early 2008

Based on his examination of Pendleton's emails, travel documents, and other items, David concluded that after Pendleton arrived at JFK on January 21, 2008, he stayed in New York for about five days and then traveled to Philadelphia on or about January 26th. On February 1st, he traveled to Delaware, and left for Washington, D.C. on or about February 4th. According to David's testimony and Amtrak tickets in Pendleton's name, Pendleton traveled starting on February 9th from Washington, D.C. to Chicago; starting on February 12th from Chicago to Emeryville, California; starting on February 26th from Los Angeles to Chicago; and starting on March 2nd from Chicago to Washington, D.C. On March 7th, he traveled to Philadelphia, and then on March 10th, he traveled to Wilmington and was arrested. Pendleton had a one-way airplane ticket to travel on March 12, 2008 from JFK to Prague, Czech Republic.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Our review of the Court's denial of Pendleton's motion for judgment of acquittal, its construction of SORNA, and its conclusion that SORNA is constitutional is plenary.

III. ANALYSIS

The Adam Walsh Child Protection and Safety Act of 2006, which included SORNA,¹ “was enacted to close the loopholes in previous sex offender registration legislation and to standardize registration across the states.” United States v. Shenandoah, 595 F.3d 151, 154 (3d Cir.2010). In response to previous legislation, by 199...