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JerryKendallIsAKiller.com

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 10-1755 ____________ UNITED STATES OF AMERICA v. THOMAS S. PENDLETON, Appellant ____________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (D.C. Crim. No. 08-cr-59-1) District Judge:  Honorable Gregory M. Sleet ____________ Submitted Under Third Circuit LAR 34.1(a) March 14, 2011 ____________ Before: RENDELL, BARRY and CHAGARES, Circuit Judges (Opinion Filed: April 12, 2011) ____________ Eleni Kousoulis, Esq.  Daniel I. Siegel, Esq.  Office of the Federal Public Defender  800 King Street  Suite 200  Wilmington, DE 19801  Counsel for Appellant

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http://thomas-pendelton.blogspot.com/?m=1


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When Congress enacted SORNA, it was particularly concerned about the transient nature of many sex offenders and did not want to lose track of sex offenders when they moved from state to state. United States v. Howell, 552 F.3d 709, 716-17 (8th Cir. 2009). Recognizing this, the Eighth Circuit “reject[ed] the suggestion that a savvy sex offender can move to a different city and avoid having to update his SORNA registration by sleeping in a different shelter or other location every night.” United States v. Voice, 622 F.3d 870, 875 (8th Cir. 2010). Given Pendleton‟s extensive travel, the government argues that a similar concern regarding transience is present in this case. Under the relevant provision of 42 U.S.C. § 16913(a), “[a] sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.” A “jurisdiction” is, among other things, “[a] State.” 42 U.S.C. § 16911(10)(A). “The term „resides‟ means, with respect to an individual, the location of the individual‟s home or other place where the individual habitually lives.” 42 U.S.C. § 16911(13). A sex offender must “appear in person” in at least one of the applicable jurisdictions “not later than 3 business days after each change of name, residence, employment, or student status . . . and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry.” 42 U.S.C. § 16913(c).  Pendleton was convicted not under § 16913, which does not have an enforcement provision, but under 18 U.S.C. § 2250(a), which provides that a person commits a crime when he or she “(1) is required to register under the Sex Offender Registration and Notification Act; (2) . . . (B) travels in interstate or foreign commerce . . . ; and (3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act.” In other words, “[o]nce a person becomes subject to SORNA‟s registration requirements . . . that person can be convicted under § 2250 if he thereafter travels and then fails to register.” Carr v. United States, 130 S. Ct. 2229, 2236 (2010).  Pendleton does not dispute on appeal.

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This is the Central Intelligence Agency address and the phone number of officer.  His Jerry Kendall previous home address in Northern Virgina is: 2003 Wellfleet Court Falls Church 22043 and work address was 934 Dolley Madison Blvd McLean, VA
(703) 874-0767
He current lives in Oregon.

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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 1996 every state and the District of Columbia had mandatory sex offender registration laws, but “SORNA creates a national sex offender registry with the goal of eliminating inconsistencies among state laws.” Id. 1Title I of the Adam Walsh Child Protection and Safety Act of 2006 was itself named the “Sex Offender Registration and Notification Act” (SORNA), and both 42 U.S.C. § 16913, which contains the sex offender registration requirement, and 18 U.S.C. § 2250, which contains the criminal enforcement provision under which Pendleton was convicted, were enacted through Title I of that Act. Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, §§ 101, 113, 141, 120 Stat. 587, 590, 593-94, 60102 (2006).  As defined by statute, “SORNA” thus includes both §§ 16913 and 2250. In United States v. Shenandoah, we upheld the constitutionality of “SORNA” under the Commerce Clause, but did not specifically address § 16913. See United States v. Shenandoah, 595 F.3d 151, 160-61 (3rd Ctr. 2010)
Will Add more.

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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

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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

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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

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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

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Eisenstein, Esq.  Office of the United States Attorney  1007 North Orange Street, Suite 700  P.O. Box 2046  Wilmington, DE 19899  -AND- Jennifer Leonardo, Esq.  United States Department of Justice  Criminal Division, Public Integrity Section  1400 New York Avenue, N.W.  Washington, D.C. 20530 Counsel for Appellee ____________ 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

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PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 10-1755 ____________ UNITED STATES OF AMERICA v. THOMAS S. PENDLETON, Appellant ____________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (D.C. Crim. No. 08-cr-59-1) District Judge:  Honorable Gregory M. Sleet ____________ Submitted Under Third Circuit LAR 34.1(a) March 14, 2011 ____________ Before: RENDELL, BARRY and CHAGARES, Circuit Judges (Opinion Filed: April 12, 2011) ____________ Eleni Kousoulis, Esq.  Daniel I. Siegel, Esq.  Office of the Federal Public Defender  800 King Street  Suite 200  Wilmington, DE 19801  Counsel for Appellant

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 » Recent Releases
News Releases
FEBRUARY 4, 2010WILMINGTON, DE
Delaware child predator sentenced to 30 years in federal prison
The man was convicted by a jury on sex tourism and failure to register charges
WILMINGTON, DEL. - Delaware man and repeat offender Thomas S. Pendleton, age 66, received maximum sentence on Feb. 3, in the Delaware District Court for his conviction for a sexual related crime against children.
Pendleton was sentenced to the statutory maximum of 30 years in prison and a lifetime of supervised release for violating the "Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003" (PROTECT Act). The PROTECT Act makes it a crime for U.S. citizens to travel abroad and commit illicit sexual acts with minors. Pendleton was also sentenced today to a concurrent term of 10 years in prison for failing to register as a sex offender in violation of the Adam Walsh Child Protection and Safety Act of 2006.
After a three-day jury trial in September 2009, the federal jury found Pendleton guilty of violating the PROTECT Act. Evidence developed by U.S. Immigration and Customs Enforcement (ICE) and introduced at trial established that Pendleton traveled from Philadelphia to Germany in November 2005, where he found his victim. At the time, the victim was a 14-year-old boy living in an orphanage. During the next several months, the defendant cultivated a friendship with the victim and made arrangements to take him on a biking trip in Germany. In May 2006, just after the victim turned 15 and while on the bike trip, the victim woke up to find Pendleton fondling him. The victim and a witness from the German camp site where the crime occurred traveled to the U.S. to testify.
"The defendant thought he could avoid being caught by U.S. law enforcement by preying on children abroad. He was wrong," said John P. Kelleghan, special agent in charge of the ICE Office of Investigations in Philadelphia. "Child predators can no longer travel outside our borders to mask their crimes. ICE and our international law enforcement partners around the world stand vigilant to protect the most vulnerable among us, our children."
Pendleton was convicted in April 2009, in a separate trial for failing to register as a sex offender. He has three prior convictions for sexually molesting or assaulting children aged nine through 13 years of age in two U.S. states and in Latvia. In 1981, Pendleton was convicted in a Michigan state court of fourth degree criminal contact. In that case, he molested an 11-year-old while he was serving as a church camp counselor.
In 1992, Pendleton was convicted in New Jersey state court of sexual assault, attempted aggravated sexual assault of a minor, and endangering the welfare of a child in a case involving sexual abuse of a 12-year-old boy on biking trips in Virginia and New Jersey. Pendleton received a seven-year sentence for that offense. The jury heard testimony from the now 32-year-old victim of that prior offense at the September 2009 trial for the sex tourism charge.
Approximately three years after his release from New Jersey prison, Pendleton was convicted in the Republic of Latvia of sexually abusing a 9-year-old child and a 13-year-old child between June and November 2001, and was sentenced to three and a half years in prison in a Latvian prison. He was released from prison and deported back to the United States on March 20, 2005. Just 14 months later, he traveled to Germany to commit the offense in this case.
He has been in federal custody since March 10, 2008, when the United States Marshals Service arrested him on the failure to register charge.
In sentencing the defendant, Chief U.S. District Judge Gregory M. Sleet relied heavily on the defendant's history of sexually abusing children. The court further cited Pendleton's failure to accept responsibility for his crimes and the fact that the defendant's past prison sentences had failed to deter him. He found the sentence would protect the children from "further acts of depravity" perpetrated by the defendant.
"Thomas Pendleton is a sexual predator who has a long history of abusing children entrusted to his care," said David C. Weiss, United States Attorney for the District of Delaware. "Recognizing that Pendleton poses an unacceptable risk to children, the court's sentence will ensure that he will be incarcerated or under federal supervision for the remainder of his life. This sentence will protect children here and abroad from sexual abuse by the defendant."
Assisting ICE on these cases was the United States Marshals Service. A computer forensic specialist from the High Tech Investigative Unit of the U.S. Department of Justice Child Exploitation and Obscenity Section (CEOS) performed an analysis of a computer and other digital media seized from the defendant. The case was prosecuted by Assistant U.S. Attorney Ilana Eisenstein of the U.S. Attorney's Office for the District of Delaware and CEOS Trial Attorney Jennifer Toritto Leonardo.
This investigation was part of Operation Predator, a nationwide ICE initiative to identify, investigate and arrest those who prey on children, including human traffickers, international sex tourists, Internet pornographers, and foreign-national predators whose crimes make them deportable. Launched in July 2003, ICE agents have arrested almost 12,000 individuals through Operation Predator.
ICE encourages the public to report suspected child predators and any suspicious activity through its toll-free hotline at 1-866-347-2423. This hotline is staffed around the clock by investigators.
Suspected child sexual exploitation or missing children may be reported to the National Center for Missing and Exploited Children, an Operation Predator partner, at 1-800-843-5678 or http://www.cybertipline.com.
You may also visit us on Facebook, Twitter and YouTube.
U.S. Immigration and Customs Enforcement (ICE) is the largest investigative arm of the Department of Homeland Security.
ICE is a 21st century law enforcement agency with broad responsibilities for a number of key homeland security priorities. For more information, visit www.ICE.gov. To report suspicious activity, call 1-866-347-2423 or complete our tip form.
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