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United States of America v. Thomas S. Pendleton

April 12, 2011

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

The opinion of the court was delivered by: Barry, Circuit Judge

PRECEDENTIAL

Submitted Under Third Circuit LAR 34.1(a) March 14, 2011

Before: RENDELL, BARRY and CHAGARES, Circuit Judges

OPINION OF THE COURT

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 ...


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