United States v. Michael Lewis Clark

In this appeal we are confronted with a question of first impression regarding the scope of Congress's power under the Foreign Commerce Clause.1 At issue is whether Congress exceeded its authority "to regulate Commerce with foreign Nations," U.S. Const. art. I, § 8, cl. 3, in enacting a statute that makes it a felony for any U.S. citizen who travels in "foreign commerce," i.e. to a foreign country, to then engage in an illegal commercial sex act with a minor. 18 U.S.C. § 2423(c). We hold that Congress acted within the bounds of its constitutional authority.

Congressional invocation of the Foreign Commerce Clause comes as no surprise in light of growing concern about U.S. citizens traveling abroad who engage in sex acts with children. The United States reiterated its commitment to quelling sexual abuse abroad by signing The Yokohama Global Commitment 2001, available at http://www.unicef.org/events/yokohama/outcome.html (last visited Dec. 29, 2005), which was concluded at the Second World Congress Against the Commercial Sexual Exploitation of Children. The Commitment welcomes "new laws to criminalize [child prostitution], including provisions with extra-territorial effect." Id. Notably, in an explanatory statement attached to the Commitment, the United States emphasized that it "believes that the Optional Protocol [on child prostitution] and [the International Labour Organization's Convention No. 182 regarding child labor] provide a clear starting point for international action concerning the elimination of commercial sexual exploitation of children." Id.

Under the Commerce Clause, Congress has power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." This seemingly simple grant of authority has been the source of much dispute, although very little of the controversy surrounds the "foreign Nations" prong of the clause. Cases involving the reach of the Foreign Commerce Clause vis-a-vis congressional authority to regulate our citizens' conduct abroad are few and far between. See, e.g., United States v. Bredimus, 352 F.3d 200, 207-08 (5th Cir.2003) (affirming conviction under 18 U.S.C. § 2423(b), which reaches any person who travels in foreign commerce "for the purpose of" engaging in illicit sexual conduct).2 It is not so much that the contours of the Foreign Commerce Clause are crystal clear, but rather that their scope has yet to be subjected to judicial scrutiny.

The Supreme Court has long adhered to a framework for domestic commerce comprised of "three general categories of regulation in which Congress is authorized to engage under its commerce power," Gonzales v. Raich, ___ U.S. ___, ___, 125 S.Ct. 2195, 2205, 162 L.Ed.2d 1 (2005):(1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce; and (3) activities that substantially affect interstate commerce. See also United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); Raich, 125 S.Ct. at 2215 (Scalia, J., concurring) (noting that for over thirty years, "our cases have mechanically recited that the Commerce Clause permits congressional regulation of three categories"). This framework developed in response to the unique federalism concerns that define congressional authority in the interstate context. Lopez, 514 U.S. at 557, 115 S.Ct. 1624 ("[T]he scope of the interstate commerce power `must be considered in the light of our dual system of government . . . .'") (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 81 L.Ed. 893 (1937)). No analogous framework exists for foreign commerce.

Further distinguishing the two spheres "is evidence that the Founders intended the scope of the foreign commerce power to be ... greater" as compared with interstate commerce. Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 448, 99 S.Ct. 1813, 60 L.Ed.2d 336 (1979). This expansive latitude given to Congress over foreign commerce is sensible given that "Congress' power to regulate interstate commerce may be restricted by considerations of federalism and state sovereignty," whereas "[i]t has never been suggested that Congress' power to regulate foreign commerce could be so limited." Id. at 448 n. 13, 99 S.Ct. 1813.

Adapting the interstate commerce categories to foreign commerce in specific contexts is not an insurmountable task. See, e.g., United States v. Cummings, 281 F.3d 1046, 1049 n. 1 (9th Cir.2002) (analyzing constitutionality of the International Parental Kidnaping Act, 18 U.S.C. § 1204(a), under Lopez's three-category approach). At times, however, this undertaking can feel like jamming a square peg into a round hole. Instead of slavishly marching down the path of grafting the interstate commerce framework onto foreign commerce, we step back and take a global, commonsense approach to the circumstance presented here: The 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.

Michael Lewis Clark, a seventy-one year old U.S. citizen and military veteran, primarily resided in Cambodia from 1998 until his extradition in 2003. He typically took annual trips back to the United States and he also maintained real estate, bank accounts, investment accounts, a driver's license, and a mailing address in this country. Following a family visit in May 2003, Clark left Seattle and flew to Cambodia via Japan, Thailand, and Malaysia. He was traveling on a business visa that he renewed on an annual basis.

While in Cambodia, Clark came to the attention of Action Pour Les Enfants, a non-governmental organization whose mission is to rescue minor boys who have been sexually molested by non-Cambodians. Clark came under suspicion when street kids reported to social workers that he was molesting young boys on a regular basis. The organization in turn reported him to the Cambodian National Police. In late June 2003, the Cambodian police arrested Clark after discovering him in a Phnom Penh guesthouse engaging in sex acts with two boys who were approximately ten and thirteen years old. He was charged with debauchery. The United States government received permission from the Cambodian government to take jurisdiction over Clark.

U.S. officials—assisted by the Cambodian National Police and the Australian Federal Police—conducted an investigation that led to Clark's confession and extradition to the United States. As part of the investigation, the younger boy told authorities that he had engaged in sex acts with Clark because he needed money to buy food for his brother and sister. The older boy stated that Clark had hired him in the past to perform sex acts, on one occasion paying five dollars. Other young boys whom Clark had molested reported that they were paid about two dollars, and Clark stated that he routinely paid this amount. Clark acknowledged that he had been a pedophile since at least 1996, "maybe longer," and had been involved in sexual activity with approximately 40-50 children since he began traveling in 1996.

Upon his return to the United States, Clark was indicted under the provisions of the newly-enacted 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).3 He pled guilty to two counts under 18 U.S.C. § 2423(c) and (e)4 but reserved the right to appeal his pre-trial motion to dismiss based on constitutional, jurisdictional, and statutory construction grounds. See United States v. Clark, 315 F.Supp.2d 1127 (W.D.Wash.2004) (order denying Clark's motion to dismiss).

On appeal, Clark's challenge centers on the constitutionality of § 2423(c). Adopted in 2003 as part of the PROTECT Act, § 2423(c) provides as follows:

(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.

This provision was first proposed as part of the Sex Tourism Prohibition Improvement Act of 2002, H.R.Rep. No. 107-525 (2002). The "Constitutional Authority Statement" in the Report accompanying this Act expressly identified the Commerce Clause, article I, section 8 of the Constitution, as the authority for the legislation. Id. at 5. The purpose of the bill was "to make it a crime for a U.S. citizen to travel to another country and engage in illicit sexual conduct with minors." Id. The provision was not enacted, however, until it was added to the PROTECT Act the following year. See H.R.Rep. No. 108-66, at 5 (2003) (Conf.Rep.), as reprinted in 2003 U.S.C.C.A.N. 683. This section was incorporated verbatim into the 2003 legislation but the Report on the PROTECT Act does not include the prior reference to constitutional authority.

Before the PROTECT Act became law in 2003, § 2423(b) required the government to prove that the defendant "travel[ed] in foreign commerce, or conspire[d] to do so, for the purpose of engaging in" specified sexual conduct with a person under eighteen years of age. Violent Crime Control and Law Enforcement Act of 1994, Pub.L. 103-322, 108 Stat. 1796, Sec. 160001 (1994) (codified as amended at 18 U.S.C. § 2423(b)) (emphasis added). The PROTECT Act replaced this single section with new subsections (b) through (g), with the new subsection (b) remaining substantively the same as the former subsection (b). Subsection (c) is an entirely new section which deletes the "for the purpose of" language.5 The conference report accompanying the PROTECT Act explains that Congress removed the intent requirement from § 2423(c) so that "the government would only have to prove that the defendant engaged in illicit sexual conduct with a minor while in a foreign country." H.R.Rep. No. 108-66 at 51; see also H.R.Rep. No. 107-525, at 2 (same statement in report for failed 2002 bill). Consequently, for § 2423(c) to apply, the two key determinations are whether the defendant "travel[ed] in foreign commerce" and "engages in any illicit sexual conduct."

The statute defines "illicit sexual conduct" in two ways: First, the definition includes "a sexual act (as defined in section 2246 [18 U.S.C. § 2246]) with a person under 18 years of age that would be in violation of chapter 109A[18 U.S.C. §§ 2241 et seq.] if the sexual act occurred in the special maritime and territorial jurisdiction of the United States." 18 U.S.C. § 2423(f)(1). Chapter 109A, in turn, criminalizes various forms of sexual abuse including, for example, aggravated sexual abuse by force, threat, or other means, 18 U.S.C. § 2241(a)-(b); sexual abuse by threatening or placing that other person in fear, 18 U.S.C. § 2242; and sexual abuse of a minor or ward, 18 U.S.C. § 2243. These violations share the common characteristic that there is no economic component to the crime. In other words, they are non-commercial sex acts.

In contrast, the second prong of the definition covers "any commercial sex act (as defined in section 1591[18 U.S.C. § 1591]) with a person under 18 years of age." 18 U.S.C. § 2423(f)(2). "Commercial sex act," in turn, is defined as "any sex act, on account of which anything of value is given to or received by any person." 18 U.S.C. § 1591(c)(1). Clark acknowledges that his conduct qualifies as illicit sexual conduct, and he admitted in his plea agreement that he "intended to pay each of the boys and each of the boys expected such payment in exchange for the sexual encounter." Accordingly, it is this second "commercial sex act" prong that is at issue in Clark's appeal.

Clark does not dispute that he traveled in "foreign commerce," nor does he dispute that he engaged in illicit commercial sexual conduct. The challenge he raises is to congressional authority to regulate this conduct. In addition to his Commerce Clause challenge, Clark attacks his conviction on international law, statutory construction, and Due Process grounds.6 In recognition of the principle that courts have a "strong duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration," County Court of Ulster County v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), we begin our analysis with Clark's non-constitutional claims.

I. SECTION 2423(C) COMPORTS WITH THE PRINCIPLES OF INTERNATIONAL LAW

We start with Clark's argument that extraterritorial application of § 2423(c) violates principles of international law.7 On de novo review, United States v. Felix-Gutierrez, 940 F.2d 1200, 1203-04 (9th Cir.1991), we hold that extraterritorial application is proper based on the nationality principle.

The legal presumption that Congress ordinarily intends federal statutes to have only domestic application, see Small v. United States, ___ U.S. ___, ___, 125 S.Ct. 1752, 1755, 161 L.Ed.2d 651 (2005), is easily overcome in Clark's case because the text of § 2423(c) is explicit as to its application outside the United States. See 18 U.S.C. § 2423(c) (titled "Engaging in illicit sexual conduct in foreign places" and reaching people "who travel[ ] in foreign commerce"); see also Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 176, 113 S.Ct. 2549, 125 L.Ed.2d 128 (1993) (explaining that there must be "affirmative evidence of intended extraterritorial application"). By its terms, the provision is exclusively targeted at extraterritorial conduct.

Having addressed this threshold issue, we 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.") (citing McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21-22, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963)); see also United States v. Neil, 312 F.3d 419, 421 (9th Cir.2002). Of the five general principles that permit extraterritorial criminal jurisdiction,8 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." United States v. Hill, 279 F.3d 731, 740 (9th Cir. 2002). Jurisdiction based solely on the defendant's status as a U.S. citizen is firmly established by our precedent. See, e.g., United States v. Walczak, 783 F.2d 852, 854 (9th Cir.1986) (holding that jurisdiction over a U.S. citizen who violated a federal statute while in Canada was proper under the nationality principle); McKeel v. Islamic Repub. of Iran, 722 F.2d 582, 588 (9th Cir.1983) (noting that nationality principle permits states to punish the wrongful conduct of its citizens); United States v. King, 552 F.2d 833, 851 (9th Cir.1976) (commenting that nationality principle would apply to U.S. citizen defendants). Clark's U.S. citizenship is uncontested.9 Accordingly, extraterritorial application of § 2423(c) to Clark's conduct is proper based on the nationality principle.10

Clark also seeks to invalidate the statute because, in his view, extraterritorial application is unreasonable. See Restatement (Third) of Foreign Relations Law of the United States § 403 (1987); Vasquez-Velasco, 15 F.3d at 840-41 (holding that extraterritorial application of U.S. statute to violent crimes associated with drug trafficking was reasonable under international law). The record provides no support for this argument. Clark cites no precedent in which extraterritorial application was found unreasonable in a similar situation. Cambodia consented to the United States taking jurisdiction and nothing suggests that Cambodia objected in any way to Clark's extradition and trial under U.S. law. Clark himself stated to a U.S. official in Cambodia that he "wanted to return to the United States" because he saw people dying in the Cambodian prison "and was very much afraid that if [he] stayed in that prison, [he] would not survive." Having been saved from immediate prosecution in Cambodia, it is somewhat ironic that he now challenges the law in a United States court.

II. CLARK'S CONDUCT FALLS WITHIN THE SCOPE OF § 2423(C)

Clark posits that § 2423(c) can be saved from constitutional scrutiny by interpreting it to require that the illicit sexual conduct take place while the defendant is literally still traveling. The district court declined to dismiss the indictment on this ground, explaining that "Clark is attempting to add elements to the crime ... that simply do not exist in the statute." Clark, 315 F.Supp.2d at 1130. We agree. Despite Clark's efforts to distance himself from the statute, we are unable to resolve this appeal by excising Clark's conduct from the reach of § 2423(c). Cf. Jones v. United States, 529 U.S. 848, 850-51, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000) (avoiding constitutional challenge by construing statute's text to hold that certain owner-occupied residences do not qualify as property "used in" commerce).

The statute is plain on its face: Section 2423(c) reaches "[a]ny United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person." It does not require that the conduct occur while traveling in foreign commerce. In Clark's case, the lapse in time between his most recent transit between the United States and Cambodia and his arrest was less than two months. We see no plausible reading of the statute that would exclude its application to Clark's conduct because of this limited gap.11 Because the statute is unambiguous and Clark's conduct falls squarely within the class of persons whose conduct Congress intended to criminalize under this statute, we do not invoke the rule of lenity. Jones, 529 U.S. at 858, 120 S.Ct. 1904 ("ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity") (citation omitted).

The legislative history also supports the plain reading that we adopt. The conference report explains that Congress eliminated the intent requirement so that "the government would only have to prove that the defendant engaged in illicit sexual conduct with a minor while in a foreign country." H.R.Rep. No. 108-66 at 51. From a practical perspective, it seems non-sensical for Congress to limit the scope of § 2423(c) to the unlikely scenario where the abuse occurs while the perpetrator is literally en route. This reading would eviscerate § 2423(c) by severely limiting its use to only those people who commit the offense while physically onboard an international flight, cruise, or other mode of transportation. We decline to adopt Clark's strained reading of the statute.

The next question is whether extra-territorial application of § 2423(c) violates the Due Process Clause of the Fifth Amendment because there is an insufficient nexus between Clark's conduct and the United States. We hold that, based on Clark's U.S. citizenship, application of § 2423(c) to his extra-territorial conduct is neither "arbitrary [n]or fundamentally unfair." United States v. Davis, 905 F.2d 245, 249 (9th Cir.1990).12

Clark is correct that to comply with the Due Process Clause of the Fifth Amendment, extraterritorial application of federal criminal statutes requires the government to demonstrate a sufficient nexus between the defendant and the United States "so that such application would not be arbitrary or fundamentally unfair." Davis, 905 F.2d at 248-49. Indeed, "even resort to the Commerce Clause can[not] defy the standards of due process." Sec'y of Agric. v. Cent. Roig Refining Co., 338 U.S. 604, 616, 70 S.Ct. 403, 94 L.Ed. 381 (1950).

In Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375 (1932), the Supreme Court explained that the extra-territorial application of U.S. law to its citizens abroad did not violate the Fifth Amendment. The Court declared that despite moving his residence to France, the U.S.-citizen defendant "continued to owe allegiance to the United States. By virtue of the obligations of citizenship, the United States retained its authority over him, and he was bound by its laws made applicable to him in a foreign country." Id. at 436, 52 S.Ct. 252. This longstanding principle that citizenship alone is sufficient to satisfy Due Process concerns still has force. Citing Blackmer, we recently affirmed that "[t]here is no doubt that the United States may exercise jurisdiction over American nationals living abroad, regardless of where the crime is committed." United States v. Corey, 232 F.3d 1166, 1179 n. 9 (9th Cir.2000).

Clark offers no authority that calls into question this principle. Instead, he relies on cases that involved foreign nationals, which meant that the courts had no choice but to look beyond nationality to establish the defendants' ties with the United States. See, e.g., United States v. Klimavicius-Viloria, 144 F.3d 1249, 1254 (9th Cir. 1998) (defendant and crew "were all Columbians"); Davis, 905 F.2d at 247 ("Davis is not a citizen of the United States.").

Clark is a U.S. citizen, a bond that "implies a duty of allegiance on the part of the member and a duty of protection on the part of the society. These are reciprocal obligations, one being a compensation for the other." Luria v. United States, 231 U.S. 9, 22, 34 S.Ct. 10, 58 L.Ed. 101 (1913). Predicated on this imputed allegiance, application of § 2423(c) to Clark's extraterritorial conduct does not violate the Due Process Clause.13 Having concluded that none of Clark's other arguments resolve this appeal, we turn to Clark's Commerce Clause challenge.

IV. CONGRESS'S FOREIGN COMMERCE CLAUSE POWER EXTENDS TO REGULATING COMMERCIAL SEX ACTS ABROAD

In considering whether Congress exceeded its power under the Foreign Commerce Clause in enacting § 2423(c), we ground our analysis in the fundamental principle that "[i]t is an essential attribute of [Congress's power over foreign commerce] that it is exclusive and plenary." Bd. of Trustees of Univ. of Ill. v. United States, 289 U.S. 48, 56, 53 S.Ct. 509, 77 L.Ed. 1025 (1933). We are further mindful of the Supreme Court's caution that "[d]ue respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds." United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). No plain showing has been made here. In light of Congress's sweeping powers over foreign commerce, we conclude that Congress acted within its constitutional bounds in criminalizing commercial sex acts committed by U.S. citizens who travel abroad in foreign commerce.14

At the outset, we highlight that § 2423(c) contemplates two types of "illicit sexual conduct": non-commercial and commercial. Clark's conduct falls squarely under the second prong of the definition, which criminalizes "any commercial sex act... with a person under 18 years of age." 18 U.S.C. § 2423(f)(2).15 In view of this factual posture, we abide by the rule that courts have a "strong duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration," County Court of Ulster County, 442 U.S. at 154, 99 S.Ct. 2213, and limit our holding to § 2423(c)'s regulation of commercial sex acts.16

A. THE COMMERCE CLAUSE: STRUCTURE AND HISTORY

Chief Justice Marshall observed long ago that "[t]he objects, to which the power of regulating commerce might be directed, are divided into three distinct classes—foreign nations, the several states, and Indian Tribes. When forming this article, the convention considered them as entirely distinct." Cherokee Nation v. Georgia, 30 U.S. 1, 18, 5 Pet. 1, 8 L.Ed. 25 (1831). Looking to the text, the single clause indeed embodies three subclauses for which distinct prepositional language is used: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. art. I, § 8, cl. 3.

Among legal scholars there has been considerable debate over the intrasentence unity—or disunity, as the case may be —of the three subclauses, considering that they share the common language "[t]o regulate Commerce." Some commentators take the view that Congress's powers over commerce with foreign nations and Indian tribes are broader than over interstate commerce. See, e.g., Kenneth M. Casebeer, The Power to Regulate "Commerce with Foreign Nations" in a Global Economy and the Future of American Democracy: An Essay, 56 U. Miami L.Rev. 25, 33-41 (2001); 1 R. Rotunda & J. Nowak, Treatise on Constitutional Law § 4.2 (3d ed. 1999) ("Even during periods when the Justices were debating whether to significantly restrict the congressional power to regulate intrastate activities under the commerce power, there was no serious advocacy of restrictions on the federal powers in these other areas.").

Other scholars maintain that Congress has coextensive powers under the Commerce Clause's subdivisions. See e.g., Louis Henkin, Foreign Affairs and the Constitution 70 n. 9 (1972) ("It is generally accepted, however, that the power of Congress is the same as regards both [foreign and interstate commerce]."); Saikrishna Prakash, Our Three Commerce Clauses and the Presumption of Intrasentence Uniformity, 55 Ark. L.Rev. 1149, 1173 (2003) ("In practice, we have three different Commerce Clauses when text and history indicate that we ought to have but one."). Despite the long-running lively debate among scholars, no definitive view emerges regarding the relationship among the three subclauses. Nonetheless, Supreme Court precedent points to the conclusion that the Foreign Commerce Clause is different than the Interstate Commerce Clause. See Japan Line, 441 U.S. at 448, 99 S.Ct. 1813 ("[T]here is evidence that the Founders intended the scope of the foreign commerce power to be ... greater" as compared with interstate commerce.).

Regardless of how separate the three subclauses may be in theory, the reality is that they have been subject to markedly divergent treatment by the courts. This approach is not surprising given the considerably different interests at stake when Congress regulates in the various arenas. Most notably, regardless of whether the subject matter is drugs, gender-motivated violence, or gun possession, a prominent theme runs throughout the interstate commerce cases: concern for state sovereignty and federalism. On the other hand, "[t]he principle of duality in our system of government does not touch the authority of the Congress in the regulation of foreign commerce." Bd. of Trustees of Univ. of Ill., 289 U.S. at 57, 53 S.Ct. 509. This distinction provides a crucial touchstone in applying the Foreign Commerce Clause, for which Congress's authority to regulate has not been defined with the precision set forth by Lopez and Morrison in the interstate context.