When the FBI Comes Calling…®
HUMAN TRAFFICKING AND SMUGGLING (continued)
Trafficking in Persons (continued)
Trafficking For Sexual Activity (continued)
Case Law Interpreting Section 2423
United States v. Clark, 315 F. Supp. 2d 1127 (W.D. Wash. 2004).
Clark is a fascinating case, and not just because it raises the suggestion that the United States applies universal jurisdiction in certain circumstances. The defendant, a United States citizen, was arrested in Cambodia on charges of debauchery for engaging in sexual contact with two Cambodian boys. Clark at 1129. He had lived in Cambodia for five years previous to his arrest. Id. The United States took jurisdiction over the defendant and, following his expulsion from Cambodia, he was charged with two counts of violating 18 U.S.C. § 2423(c), to which he pled guilty and reserved the right to challenge the legality of the statute. Id.
He argued that the statute was unconstitutional for lack of Congressional authority, that the statute should not apply to him as constructed, and that the extraterritorial application is unreasonable and unconstitutional. Id. We will not discuss the challenge to Congressional authority. Suffice to say, the court held that Congress had the authority to enact such a statute. Id. at 1136.
The court evaluated the defendant's statutory construction challenges first. The defendant claimed that the PROTECT Act, which led to section 2423(c), refers to the legislation as "penalties against sex tourism," and should not apply to him because he is not a sex tourist. Id. at 1130. However, the court noted that the defendant was adding elements to the statute that did not exist and that he falls within the class of people whose conduct Congress intended to criminalize. Id. at 1130-31 & n.2.
The defendant's next argument was that his prosecution would violate principles of international law and would be unreasonable under international law. Id. at 1131. However, the court found that the nationality principle and the universality principle applied to the defendant. Id. The nationality principle means that jurisdiction is based on the nationality or national character of the offender, and since the defendant maintained his status as an American citizen by traveling back and forth between Cambodia and the United States, and used his military status to organize transportation between the two countries, the United States maintained jurisdiction over him. Id. The universality principle provides jurisdiction over extraterritorial acts for crimes so heinous to be universally condemned. Id. The court acknowledged that it was true that certain countries "have not yet done nearly enough to ensure that their child citizens are protected from sexual abuse by other citizens or by foreign travelers," yet it found that sexual abuse of children is universally condemned. Id. 1131 & n.3. Furthermore, the court found that extraterritorial application of the statute was reasonable, based partly on the fact that the defendant is a U.S. citizen. Id. 1132.
Clark was recently affirmed by the Ninth Circuit.
United States v. Clark, No. 04-30249 (9th Cir. 2006) [hereinafter Clark II].
On appeal, Mr. Clark argued that the extraterritorial application of section 2423(c) violates principles of international law. However, the Court held that "extraterritorial application is proper based on the nationality principle." First, the Court addressed the long-standing "presumption that Congress ordinarily intends federal statutes to have only domestic application" by pointing out that the text of section 2423(c) states that it reaches "people 'who travel[] in foreign commerce.'" Furthermore, the "nationality principle 'permits a country to apply its statutes to extraterritorial acts of its own nationals.'" This is fairly-well established, and, other than pointing out that such application is reasonable under international law, that is where the Court's analysis ends. In other words, the Court declined to address whether the text of the statute that applies to people other than citizens (i.e., "alien[s] admitted for permanent residence") is valid under international law, nor did the Court address whether the District Court erred in applying the universality principle: "we decline to address whether the universality principle also applies in [Mr.] Clark's case," the court noted, "because extraterritorial application of a criminal law need be justified by only one of the five principles of extraterritorial authority." Thus, the question of whether the United States truly recognizes universal jurisdiction will be answered some other day.
The Court also determined that Congress has the authority to regulate foreign commerce. The majority wrote that "[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." In evaluating the constitutional challenge, the court also noted that the Supreme Court has consistently read the Foreign Commerce Clause broadly and in fact, has "never struck down an act of Congress as exceeding its powers to regulate foreign commerce."
This analysis looks at two prongs: travel in foreign commerce and commercial conduct. Here, the court found that getting on a plane in the U.S. and landing in Cambodia (albeit after traveling through Japan, Malaysia, and Thailand) is sufficient for the element of "travel in foreign commerce." The second prong is satisfied by the existence of an "economic component" to the prohibited conduct. Read this broadly, any exchange involving a good or service abroad is presumptively foreign commerce and, even as individual conduct, may be regulated under the Commerce Clause.
Although this analysis seems to limit the Foreign Commerce Clause power to prohibited commercial acts, the court takes pains to demonstrate that this is merely the commercial analysis for the constitutionality of this power. The decision notes that subsection (b) of this same statute was also affirmed-under a more traditional Commerce Clause analysis-as a legitimate exercise of the Foreign Commerce Clause by the 5th Circuit Court of Appeals. The majority argues that "[t]hese are two different statutes with separate justifications under the Commerce Clause."
The fact remains that the 9th Circuit would have us use a power designed to regulate commercial trade between nations as a basis for the criminal prosecution of an individual under a criminal statute. As Judge Ferguson notes in his dissent, this is too much like a "grant of international police power." So long as travel by a U.S. citizen and some exchange of good or services is involved at all, the court says, the government may use its foreign trade regulation power to prosecute its citizens anywhere in the world. This decision reads like a collateral expansion of extraterritorial jurisdiction over individuals.
United States v. Bredimus, 352 F.3d 200 (5th Cir. 2003). In Bredimus, the defendant conditionally pleaded guilty to traveling to Thailand with the intent to make videotapes of Thai children engaged in sexually explicit conduct, reserving his right to appeal. Bredimus at 201. He argued on appeal that 18 U.S.C. § 2423(b) (traveling with the purpose of engaging in illicit sexual activity) "unconstitutionally punishes mere preparation, mere thought, and mere travel." Id. The court rejected the argument.
Finding that section 2423(b) "criminalizes crossing state (or international) lines with a criminal intent, without requiring the commitment of any further criminal act," Id. at 207, the court held that section 2423(b) "does not prohibit mere thought or mere preparation because it requires as an element that the offender actually travel in foreign commerce." Id. at 208.