As matter of first impression, Ninth Circuit determines that Congress' exercise of power under the Foreign Commerce Clause supports criminal jurisdiction over U.S. citizen's commercial pedophilia in Cambodia
Cambodian police arrested Michael Lewis Clark (defendant), a U.S. citizen, while he was engaging in sex with two young boys. Street children had earlier reported that Clark was frequently molesting young boys, and the organization Action Pour Les Enfants had notified the Cambodian police. The Cambodian Government later granted the U.S.'s extradition request.
The statute in question is Section 18 U.S.C. Section 2423(c), a part of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub.L. No. 108-21, 117 Stat. 650 (2003). Section (c) provides in part that: "(c) Engaging in illicit sexual conduct in foreign places. Any United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both." A federal grand jury indicted defendant under the Act.
The precise issue in this case is whether Congress exceeded its authority under Article I, Section 8, Clause [3] "to regulate Commerce with foreign Nations" when it made it a felony for U.S. citizens to engage in illegal commercial sex with a minor outside U.S. territory. Reserving his right to appeal on legal issues, defendant pled guilty to two counts under 18 U.S.C. Section 2423(c) and (e).
The U.S. Court of Appeals for the Ninth Circuit upholds the conviction, concluding that Congress' enactment of the PROTECT Act lay within the bounds of its constitutional authority.
First, the Court analyzes Section 2423(c) in light of international law. " ... The legal presumption that Congress ordinarily intends federal statutes to have only domestic application ... is easily overcome in Clark's case because the text of Section 2423(c) is explicit as to its application outside the United States. See 18 U.S.C. Section 2423(c) (titled "Engaging in illicit sexual conduct in foreign places' and reaching people "who travel[ ] in foreign commerce') ... By its terms, the provision is exclusively targeted at extraterritorial conduct."
"... [W]e [next] ask whether the exercise of extraterritorial jurisdiction in this case comports with principles of international law. See United States v. Vasquez-Velasco, 15 F.3d 833, 839 (9th Cir. 1994) ("In determining whether a statute applies extraterritorially, we also presume that Congress does not intend to violate principles of international law.') ... Of the five general principles that permit extraterritorial criminal jurisdiction, the nationality principle most clearly applies to Clark's case. The nationality principle "permits a country to apply its statutes to extraterritorial acts of its own nationals.' ... Jurisdiction based solely on the defendant's status as a U.S. citizen is firmly established by our precedent. ... Clark's U.S. citizenship is uncontested. Accordingly, extraterritorial application of Section 2423(c) to Clark's conduct is proper based on the nationality principle." [Slip op. 8]
Defendant also claimed that Section 2423(c) requires that the alleged conduct take place while a defendant is still traveling, but the Court is unable to uncover any such requirement in the statute. Moreover, such a reading would disembowel the statute by limiting its application to citizens who commit sex crimes while still on a plane, train, ship, bus, car or other means of transport.
The Court next spurns defendant's contention that the extraterritorial application of Section 2423(c) violates the Due Process Clause of the Fifth Amendment because there is an insufficient nexus between his conduct and the U.S. The Ninth Circuit has held that the U.S. may exercise jurisdiction over U.S. nationals living abroad, regardless of where the crime is committed. Defendant's U.S. citizenship is enough of a nexus for its extraterritorial application to conform to Due Process.
Finally, defendant had maintained that the Foreign Commerce Clause limits congressional power to the banning of "commercial" sex acts. The Ninth Circuit disagrees. The U.S. Supreme Court has interpreted Congress' power over foreign commerce broadly. In fact, the Supreme Court has never voided an act of Congress as exceeding its powers to regulate foreign commerce.
"Title 18 of the U.S. Code broadly declares only that "The term 'foreign commerce', as used in this title, includes commerce with a foreign country.' 18 U.S.C. Section 10. Admittedly, this definition is not particularly helpful given its rearrangement of the words being defined in the definition itself. Courts have understandably taken the broad wording to have an expansive reach. [Cites]. We likewise see no basis on which to impose a constrained reading of "foreign commerce' under Section 2423(c). Defendant got on a plane in the United States and traveled to Cambodia. This act is sufficient to satisfy the "travels in foreign commerce' element of Section 2423(c)." [Slip op. 17]
In sum, "[t]he illicit sexual conduct reached by the statute expressly includes commercial sex acts performed by a U.S. citizen on foreign soil. This conduct might be immoral and criminal, but it is also commercial. Where, as in this appeal, the defendant travels in foreign commerce to a foreign country and offers to pay a child to engage in sex acts, his conduct falls under the broad umbrella of foreign commerce and consequently within congressional authority under the Foreign Commerce Clause." [Slip op. 4]
Citation: United States v. Clark, No. 04-30249 (9th Cir. January 25, 2006).
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