General Criminal Venue Provision Applies When Part of Offense Committed in US & Illicit Sexual Conduct Outside the US Statute Constitutional

In United States v. Pendleton, No. 10-1818, September 7, 2011, the Court of Appeals considered: (1) whether the general criminal venue provision of 18 U.S.C. § 3238 applies when a defendant commits part of his offense inside the United States; and (2) whether 18 U.S.C. § 2423(c) and (f)(1) of the PROTECT Act, which criminalize noncommercial illicit sexual conduct outside the United States, are a valid exercise of Congress’s power under the Foreign Commerce Clause of the United States Constitution (Article I, Section 8, Clause 3).

In 2005, Thomas Pendleton boarded a plane in New York City bound for Hamburg, Germany. Six months after his arrival there, he sexually assaulted a 15-year-old boy. German authorities arrested him, 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 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).

Although Pendleton’s offense began when he initiated foreign travel by boarding a plane bound for Germany in the Eastern District of New York, he "committed" the offense when he engaged in a illicit sex act in Germany. Because the criminal conduct was "essentially" foreign, the district court did not err in applying the general criminal venue provision, and venue was proper in Delaware.

As for the constitutionality of 18 U.S.C. § 2423(c), because the jurisdictional element in this section has an "express connection" to the channels of foreign commerce (the first prong of the Lopez three part framework to determine whether a statue has a constitutionally tenable nexus with foreign commerce), it is a valid exercise of Congress’s power under the Foreign Commerce Clause.