United States v. Pendleton

Citations: 636 F.3d 78; 2011 U.S. App. LEXIS 7439; 2011 WL 1366382Docket: 10-1755

Court: Court of Appeals for the Third Circuit; April 12, 2011; Federal Appellate Court

Original Court Document: View Document

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Thomas S. Pendleton, previously convicted of two qualifying sex offenses, was indicted under 18 U.S.C. § 2250(a) for failing to register as required by the Sex Offender Registration and Notification Act (SORNA) after traveling in interstate and foreign commerce. The indictment specified that Pendleton traveled between January 28, 2008, and March 10, 2008, without updating his registration in Delaware, despite his previous registrations in Washington, D.C. 

Pendleton had informed the D.C. registry in April 2005 about his move to Delaware and provided a new address in Wilmington. However, both a Delaware State Police officer and the trial court found that Pendleton never registered in Delaware. Evidence presented included Pendleton's application for a Delaware driver’s license and a voter registration form where he certified his residency in Delaware, yet he failed to register as a sex offender within the required timeframe. Pendleton challenged the sufficiency of the evidence and the constitutionality of SORNA under Due Process and Commerce Clauses, but the court affirmed his conviction.

Pendleton listed the Wilmington Address as both his mailing and permanent address on passport applications in 2005, 2006, and 2008. He traveled to Germany in November 2005, where he was convicted of a sex offense in October 2006, subsequently serving a prison sentence before being deported to the U.S. and arriving at JFK Airport on January 21, 2008. Upon arrival, he informed Immigration and Customs Enforcement (ICE) agent William McAlpin that he resided at the Wilmington Address and intended to return there after visiting friends in New York City. Pendleton described the Wilmington Address as an apartment within a home owned by Richard Bayard. He later emailed Bayard to inform him that he had provided the address to customs officials and did not clarify that he rented a room.

Richard Bayard owned the home, where his daughter, Kate Bayard, resided. Kate testified that while Pendleton was friendly with her parents, she did not recall meeting him, nor was she aware of his use of their address for obtaining a driver’s license, passport, or voter registration. Pendleton had previously asked Mr. Bayard to hold his mail while traveling, with minimal communication afterward until he resumed contact in 2008 regarding his mail.

On March 10, 2008, Deputy U.S. Marshal William David, investigating Pendleton’s compliance with the Sex Offender Registration and Notification Act (SORNA), arranged for Pendleton’s mail to be placed in the mailbox at the Wilmington Address. When David approached Pendleton, who had just checked the mailbox, Pendleton presented a Delaware driver’s license from May 2005 and claimed to live at the Wilmington Address, stating he had lost his key. He also showed David a passport and a hostel membership card listing the Wilmington Address. Pendleton indicated he had been staying at a Philadelphia hostel while conducting business there. He was arrested for failing to register as a sex offender, initially denying but later admitting his status, claiming he was not required to register. Following his arrest, a search warrant was executed on his email account.

Emails from late January 2008 reveal that Pendleton, after his deportation from Germany to the U.S., researched Delaware's sex offender registration requirements and determined he was not obliged to register under state law. Following his arrival at JFK on January 21, 2008, Pendleton spent approximately five days in New York before traveling to Philadelphia around January 26. By February 1, he moved to Delaware and subsequently to Washington, D.C. on or about February 4. His travel itinerary includes several trips by Amtrak: from Washington, D.C. to Chicago starting February 9; from Chicago to Emeryville, California starting February 12; returning from Los Angeles to Chicago starting February 26; and back to Washington, D.C. starting March 2. On March 7, he traveled to Philadelphia and was arrested in Wilmington on March 10, with a one-way ticket to Prague booked for March 12.

The District Court had jurisdiction under 18 U.S.C. § 3231, and appellate jurisdiction is established under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. The appellate review of the denial of Pendleton’s motion for judgment of acquittal, the interpretation of the Sex Offender Registration and Notification Act (SORNA), and its constitutional validity is plenary.

The Adam Walsh Child Protection and Safety Act of 2006, which includes SORNA, was designed to address gaps in previous sex offender registration laws and to establish a standardized national registry to resolve inconsistencies among state laws. SORNA mandates sex offender registration under 42 U.S.C. § 16913 and includes criminal enforcement provisions in 18 U.S.C. § 2250, both enacted as part of Title I of the Act. While the constitutionality of SORNA was previously upheld under the Commerce Clause in United States v. Shenandoah, the specific application of § 16913 is under review here. Congress aimed to account for the mobility of sex offenders to prevent them from evading registration obligations, a concern echoed in the Eighth Circuit's rejection of the notion that offenders could easily avoid updating their registration through transient living arrangements. The government argues that Pendleton's significant travel history raises similar concerns about his compliance with SORNA.

Under 42 U.S.C. 16913(a), sex offenders must register and maintain current registration in each jurisdiction where they reside, work, or study. A "jurisdiction" includes states, and "resides" refers to the individual's habitual living location. Offenders are required to appear in person within three business days to report any changes in name, residence, employment, or student status. Pendleton was convicted under 18 U.S.C. 2250(a) for failing to register after traveling across state lines, not under 16913, which lacks an enforcement provision. He does not dispute his status as a sex offender or that he traveled interstate while failing to register in Delaware. His appeal challenges the evidence of his residency in Delaware, his notice of the registration requirement there, alleging a violation of the Due Process Clause, and the constitutionality of 16913 under the Commerce Clause.

The review of the District Court's decision regarding Pendleton's residency is deferential, requiring the verdict to be upheld if substantial evidence exists when viewed favorably to the government. The government’s argument was that Pendleton resided in Delaware, supporting this with evidence of his use of a Wilmington address as a mail drop and his claims of residency. The District Court, while not definitively ruling on his habitual residence, considered Attorney General guidelines suggesting that a mail drop could qualify as a residence for registration purposes under SORNA.

The Court determined that Pendleton's Wilmington Address qualified as his "home" under the Sex Offender Registration and Notification Act (SORNA) because he frequently used it as a legal residence and not just as a mail drop between 2005 and 2008. Pendleton contended that he only resided in a jurisdiction if he "habitually lived" there, arguing that the Court's reliance on the Attorney General’s guidelines violated the Ex Post Facto Clause. Under SORNA, "resides" refers to an individual’s home or a place where they habitually live. Pendleton asserted that a mail drop does not constitute a residence, but the Court found it unnecessary to resolve this point, noting that Pendleton had repeatedly stated he lived at the Wilmington Address during the relevant period. The jury could reasonably have concluded that he "habitually lived" there despite conflicting testimony from Ms. Bayard, as Pendleton's claims were consistent over several years.

Additionally, Pendleton argued that the government failed to prove he maintained a dwelling in Delaware, but SORNA requires registration in jurisdictions where an offender resides, not where they maintain a dwelling. The evidence was sufficient for a rational juror to conclude that Pendleton resided at the Wilmington Address and "habitually lived" in Delaware, necessitating his registration under SORNA. The statute's three-day registration requirement was about the timeframe for registration, not about continuous residence.

On the Due Process claim, it was recognized that Pendleton was not required to register under Delaware law at the time of his arrest. However, SORNA imposes a federal obligation for registration in each jurisdiction where a sex offender resides, including Delaware in this case. Pendleton contested that SORNA was unconstitutionally vague as applied to him, arguing he lacked fair notice of the federal registration requirement. The Supreme Court has defined vagueness in statutes as failing to provide clear notice of prohibitions or being standardless, which could lead to arbitrary enforcement.

Pendleton argues that SORNA violates the "fair notice" requirement because it mandates registration in a sex offender registry of a jurisdiction where he is not required to register under state law, specifically Delaware. He asserts that an ordinary person would be unaware of federal registration obligations when state law does not impose such requirements. However, the document clarifies that federal law can impose different obligations than state law, citing the example of medicinal marijuana, which is legal in some states but prohibited federally. Pendleton's lack of obligation to register under Delaware law does not negate his federal requirement under SORNA, as established in prior cases like Shenandoah, which confirmed that sex offenders have an independent federal duty to register regardless of state implementation. 

Furthermore, Pendleton challenges the constitutionality of 16913 under the Commerce Clause, claiming that it constitutes an overreach of Congress's powers. However, it is noted that Congress has the authority to regulate interstate commerce, including preventing immoral activities that can harm other states. The document references established case law, including United States v. Lopez, which outlines three categories of activities Congress can regulate under its commerce power: the use of channels of interstate commerce, instrumentalities of interstate commerce, and activities substantially affecting interstate commerce. Overall, Pendleton's arguments regarding fair notice and the Commerce Clause are rejected based on these legal precedents.

In Shenandoah, it was determined that the Sex Offender Registration and Notification Act (SORNA) derives authority from the Commerce Clause, particularly its first two prongs. The case highlighted that a sex offender traveling between states is engaged in interstate commerce. Pendleton argues that SORNA's provision 16913, which mandates registration of all sex offenders, is unconstitutional under the Commerce Clause as it applies to individuals not engaged in interstate travel. The government counters that 16913 is a valid exercise of Congress's Commerce Clause power via the Necessary and Proper Clause, which allows Congress to enact laws essential for executing its constitutional powers.

The Supreme Court has established that as long as the ends pursued by Congress are legitimate and constitutional, the means employed are permissible. The Second Circuit upheld 16913, noting it complements provision 2250 and that by the time SORNA was enacted, all states had sex offender registries. Thus, SORNA aimed not only to establish a registry but also to ensure that sex offenders could not evade registration by moving between states. The regulation requiring updates for intrastate address or employment changes is seen as a logical measure to enhance state tracking of sex offenders crossing state lines. The Fifth Circuit also recognized the interdependence of provisions 2250 and 16913, stating that each is essential for the other’s enforcement and efficacy.

The court recognized that the Sex Offender Registration and Notification Act (SORNA) addresses the issue of sex offenders evading registration through interstate travel. It concluded that the requirement for sex offenders to register both prior to and following interstate travel facilitates monitoring their movements and minimally impacts intrastate offenders, who cannot be federally punished for failure to register unless they travel between states. The Eighth Circuit's analysis indicates that while a narrow interpretation of 16913 under the Lopez categories may raise constitutional doubts, a broader examination under the Commerce Clause and the Necessary and Proper Clause confirms its constitutionality. The court emphasized that SORNA aims to regulate the interstate movement of sex offenders, with 16913 serving as a reasonable means of tracking them across state lines. No appellate court has supported the argument against the constitutionality of 16913. The court aligned its reasoning with prior cases and affirmed that 16913 is a lawful exercise of Congress's powers under the Constitution. Consequently, the judgment of conviction will be upheld.