U.S. v. Pendleton

• Citation: 658 F.3d 299
• Decision Date: 07 September 2011
• Docket Number: No. 10–1818.,10–1818.
• Parties: UNITED STATES of Americav.Thomas S. PENDLETON, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

658 F.3d 299

UNITED STATES of America

v.Thomas S. PENDLETON, Appellant.

No. 10–1818.

United States Court of Appeals, Third Circuit.

Argued Feb. 16, 2011.Filed: Sept. 7, 2011.

Ilana H. Eisenstein, [Argued], Office of United States Attorney, Wilmington, DE, Jennifer Leonardo, United States Department of Justice, Criminal Division, Public Integrity Section, Washington, DC, for Plaintiff–Appellee.Eleni Kousoulis, Daniel I. Siegel, [Argued], Office of Federal Public Defender, Wilmington, DE, for Defendant–Appellant.Before: SLOVITER and HARDIMAN, Circuit Judges and JONES, II, ^* District Judge.

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

This appeal presents two questions of first impression. First, we consider whether the general criminal venue provision, 18 U.S.C. § 3238, applies when a defendant commits part of his offense inside the United States. Second, we determine whether 18 U.S.C. § 2423(c) and (f)(1), which together criminalize noncommercial illicit sexual conduct outside the United States, is a valid exercise of Congress's power under Article I, Section 8, Clause 3 of the United States Constitution (the Foreign Commerce Clause).

I

On November 25, 2005, Thomas Pendleton boarded a plane in New York City and flew to Hamburg, Germany. Six months after his arrival in Germany, Pendleton sexually molested a fifteen-year-old boy. German authorities arrested Pendleton, and a jury in Hamburg found him guilty of “engaging in sexual acts with a person incapable of resistance.” After serving nineteen months in a German prison, Pendleton returned to the United States, where he was arrested and indicted by a federal grand jury in the District of Delaware on one count of engaging in noncommercial illicit sexual conduct in a foreign place, in violation of 18 U.S.C. § 2423(c) and (f)(1).

Adopted in 2003 as part of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (the PROTECT Act), § 2423(c) provides: “Any United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.” The statute defines “illicit sexual conduct” in two ways: (1) “a sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States;” or (2) “any commercial sex act (as defined in section 1591) with a person under 18 years of age.” 18 U.S.C. § 2423(f). Pendleton was indicted under the first subpart of § 2423(f), which criminalizes noncommercial sex with a minor.

Pendleton moved to dismiss the indictment, challenging Congress's authority to regulate noncommercial activity outside the United States under the Foreign Commerce Clause and the Due Process Clause of the Fifth Amendment. The District Court denied Pendleton's motion, holding that 18 U.S.C. § 2423(c) was a valid exercise of Congress's power to regulate the “channels” of foreign commerce.¹ See United States v. Clark, 435 F.3d 1100, 1114 (9th Cir.2006) (“[T]he phrase ‘travels in foreign commerce’ unequivocally establishes that Congress specifically invoked the Foreign Commerce Clause.”). The District Court also held that Pendleton's due process claim was foreclosed by our decision in United States v. Martinez–Hidalgo, 993 F.2d 1052, 1056 (3d Cir.1993).²

Following a two-day jury trial, Pendleton was convicted of engaging in illicit sexual conduct in Germany in violation of 18 U.S.C. § 2423(c), and he was sentenced to thirty years in prison.³ At the close of the Government's case, Pendleton moved for judgment of acquittal under Federal Rule of Criminal Procedure 29(a), claiming that he should have been tried in the Eastern District of New York. The District Court denied the motion, holding that venue was proper in the District of Delaware because Pendleton was arrested there following his return to the United States. United States v. Pendleton, 2010 WL 427230, at *6 (D.Del. Feb. 2, 2010).

Pendleton timely appealed the District Court's judgment of sentence and seeks reversal for two reasons: (1) venue was improper in the District of Delaware; and (2) the “noncommercial” prong of 18 U.S.C. § 2423(c) is facially unconstitutional. We consider each argument in turn.

II

Jurisdiction lies over Pendleton's appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3582, and we exercise plenary review over the District Court's venue determination. United States v. Perez, 280 F.3d 318, 328–30 (3d Cir.2002).

As a defendant in a criminal trial, Pendleton has a constitutional right to be tried in the district where his crime was committed. Id. at 329 (citing U.S. Const. amend. VI and U.S. Const. art. III, § 2, cl. 3). Congress may fix jurisdiction in any district where a “crucial element” of the crime is performed. Id. When Congress has “not indicate[d] where it consider[s] the place of committing the crime to be,” we determine jurisdiction “from the nature of the crime alleged and the location of the act or acts constituting it.” United States v. Rodriguez–Moreno, 526 U.S. 275, 279 n. 1, 119 S.Ct. 1239, 143 L.Ed.2d 388 (1999) (citations and internal quotation marks omitted). When the crime consists of distinct acts occurring in different places, venue is proper where any part of the crime occurs. Id. (citing United States v. Lombardo, 241 U.S. 73, 77, 36 S.Ct. 508, 60 L.Ed. 897 (1916)).

Although the PROTECT Act contains no express venue provision, Pendleton argues that Congress fixed venue for all crimes involving “transportation in foreign commerce” only in those districts where foreign travel commenced. For this proposition, Pendleton cites 18 U.S.C. § 3237(a), which reads in relevant part:

Any offense involving the use of the mails, transportation in interstate or foreign commerce, or the importation of an object or person into the United States is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce, mail matter, or imported object or person moves.

Because he boarded the plane to Germany in the Eastern District of New York, Pendleton claimed jurisdiction would have been proper only in that district. The District Court disagreed, writing that “the PROTECT Act contains no directive as to the appropriate venue for the prosecution of those charged under its provisions.” Consequently, the Court relied on Rodriguez–Moreno's two-pronged approach to determine venue in this case. Pendleton, 2010 WL 427230, at *6. This was not error.

Contrary to Pendleton's argument, § 3237(a) does not include a mandatory venue provision. Rather, the statute instructs that offenses involving interstate or foreign transportation “ may be inquired of and prosecuted ... in the district from ... which such commerce ... moves.” Id. (emphasis added). Accordingly, the Government is not statutorily barred from prosecuting Pendleton in another district if it can show that a portion of his offense was committed there. Moreover, the Constitution does not “ ‘command a single exclusive venue.’ ” United States v. Goldberg, 830 F.2d 459, 466 (3d Cir.1987) (quoting United States v. Reed, 773 F.2d 477, 480 (2d Cir.1985)). “ ‘The [c]onstitution requires only that the venue chosen be determined from the nature of the crime charged as well as from the location of the act or acts constituting it, and that it not be contrary to an explicit policy underlying venue law.’ ” Id. (quoting Reed, 773 F.2d at 480).

Where, as here, Congress has not designated the venue in the relevant criminal statute, we employ the two-pronged approach set forth in Rodriguez–Moreno. See 526 U.S. at 279, 119 S.Ct. 1239. “A court must initially identify the conduct constituting the offense (the nature of the crime) and then discern the location of the commission of the criminal acts.” Id. To identify which conduct “constitutes the offense,” we look to Pendleton's crime of conviction, which provides:

Any United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.

18 U.S.C. § 2423(c). The crime of conviction thus comprises three elements: (1) being a United States citizen or permanent resident; (2) traveling in foreign commerce; and (3) engaging in illicit sexual conduct. See Clark, 435 F.3d at 1105 (finding that an American citizen who traveled in foreign commerce to Cambodia and engaged in commercial sex acts with underage boys could be prosecuted under § 2423(c)).

Of these three elements, we agree with the District Court that “engaging in illicit sexual conduct” is the most critical to § 2423(c). Indeed, the title of the offense—“Engaging in Illicit Sexual Conduct in Foreign Places”—describes only this conduct. Moreover, while travel in foreign commerce is an element of § 2423(c), the crime itself is not complete until a person engages in illicit sex. In this regard, § 2423(c) is unlike the crime of “[t]ravel with intent to engage in illicit sexual conduct,” defined in § 2423(b), which is complete as soon as one begins to travel with the intent to engage in a sex act with a minor. See United States v. Bredimus, 352 F.3d 200, 208, 210 (5th Cir.2003) (“We find ... that the criminal act under § 2423(b) is foreign travel with criminal intent; and thus, the offense is complete even if the illicit intent is never realized.”). Although § 2423(c) targets the same individuals as does § 2423(b)—namely, persons traveling in commerce for the purpose of engaging in illicit sex—it does so by focusing the court's attention on the defendant's actual conduct in the foreign nation. See H.R.Rep. No. 108–66, at 51 (explaining tha...