## Facts

- Thomas S. Pendleton, a U.S. citizen, traveled from New York to Hamburg, Germany in November 2005.
- While in Germany, he sexually abused a 15-year-old boy and was convicted in Germany of a sexual offense involving a victim incapable of resistance.
- Pendleton served approximately 19 months in a German prison and then returned to the United States.
- A federal grand jury in the District of Delaware indicted Pendleton for engaging in noncommercial illicit sexual conduct in a foreign place, in violation of 18 U.S.C. § 2423(c) and (f)(1).
- “Illicit sexual conduct” under § 2423(f)(1) includes a sexual act with a person under 18 that would violate federal sexual-abuse statutes if committed in specified U.S. jurisdictions.
- Pendleton was arrested in Delaware, tried in the District of Delaware, convicted by a jury, and sentenced to 30 years’ imprisonment.

## Issues

1. Whether venue was proper in the District of Delaware under 18 U.S.C. § 3238 for an offense involving foreign conduct when some related conduct (departure/return) occurred within U.S. districts.
2. Whether 18 U.S.C. § 2423(c) and (f)(1), as applied to a U.S. citizen’s noncommercial sexual abuse of a minor abroad following travel in foreign commerce, is a valid exercise of Congress’s power under the Foreign Commerce Clause.

## Decision

- The Third Circuit affirmed the conviction and sentence.
- Venue was proper in the District of Delaware under 18 U.S.C. § 3238 because the offense was “begun or committed” outside the jurisdiction of any particular state or district and Pendleton was first arrested in Delaware.
- Section 2423(c) and (f)(1) was held facially constitutional under the Foreign Commerce Clause because it regulates the channels of foreign commerce by targeting U.S. citizens who travel in foreign commerce and then engage in illicit sexual conduct abroad.

## Legal Principles

- For offenses “begun or committed” on the high seas or elsewhere outside the jurisdiction of any particular state or district, 18 U.S.C. § 3238 generally permits prosecution in the district where the defendant is first arrested or first brought, absent a more specific venue provision that displaces it.
- Congress may regulate the channels of foreign commerce and may prohibit certain uses of those channels without requiring case-by-case proof that the specific conduct substantially affected commerce.
- Under the Foreign Commerce Clause, Congress may criminalize noncommercial illicit sexual conduct with minors committed abroad by U.S. citizens or permanent residents when liability is tied to travel in foreign commerce.
- Citizenship plus travel in foreign commerce provides a sufficient jurisdictional basis for Congress to address extraterritorial child-exploitation conduct connected to foreign travel.

## Conclusion

The Third Circuit held that Delaware was a proper venue under § 3238 for Pendleton’s extraterritorial offense and that § 2423(c) validly exercises Congress’s Foreign Commerce Clause power by regulating foreign travel linked to illicit sexual conduct with minors abroad, thereby sustaining Pendleton’s conviction and 30-year sentence.


United States v. Pendleton, 658 F.3d 299 (3d Cir. 2011)