U.S. v. Bredimus, 02-11307.

• Citation: 352 F.3d 200
• Decision Date: 26 November 2003
• Docket Number: No. 02-11307.,02-11307.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nicholas BREDIMUS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

352 F.3d 200

UNITED STATES of America, Plaintiff-Appellee, v. Nicholas BREDIMUS, Defendant-Appellant.

No. 02-11307.

United States Court of Appeals, Fifth Circuit.

Filed November 26, 2003.

Linda Marie Dedman (argued), Dallas, TX, for Plaintiff-Appellee.

David L. Botsford (argued), Law Office of David L. Botsford, Austin, TX, Daniel J. Sheehan, Jr., Daniel Sheehan & Associates, Dallas, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before GARWOOD, JONES and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Appellant Nicholas Bredimus ("Bredimus") conditionally pled guilty, expressly reserving his right to appeal, to the charge of knowingly and willfully traveling in foreign commerce for the purpose of engaging in a sexual act with a person under 18 years of age in violation of 18 U.S.C. § 2423(b). On appeal, he challenges the sufficiency of the factual basis for the guilty plea, arguing that the statute of conviction is an invalid exercise of Congressional authority under the Commerce Clause and it unconstitutionally punishes mere preparation, mere thought, and mere travel. He also contends that the district court lacked jurisdiction to adjudicate the charge on the grounds that the offense lacked a domestic effect as required by the statute of conviction. For the following reasons, we affirm the judgment of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

The following facts are not in dispute. In October 2001, Bredimus, a United States citizen, left his residence in Coppell, Texas to travel to Thailand after first stopping in Hong Kong and Tokyo. In addition to attending scheduled business meetings, while in Thailand Bredimus intended to make videotapes and digital images of Thai children engaged in sexually explicit conduct.

Upon arriving in Thailand, Bredimus contacted Pensri Suhongsa ("Suhongsa"), and hired her to accompany him to Chiang Rai Province as a procurer and interpreter. On November 3, 2001, Bredimus and Suhongsa traveled to Mai Sao in the Chiang Rai Province of Northern Thailand and obtained two rooms at the Srisamoot Hotel. Bredimus asked Suhongsa to find young boys or girls who would come to the hotel for him to photograph. That same day, Bredimus videotaped himself engaged in sexually explicit conduct with a thirteen-year-old Thai boy at the Srisamoot Hotel, and took digital images of the boy engaged in sexually explicit conduct.

Bredimus was indicted on March 5, 2002, in a six count indictment.¹ On June 4, 2002, a federal grand jury returned a superseding indictment charging Bredimus with one count of knowingly traveling in foreign commerce for the purpose of engaging in a sexual act with children under 18 years of age in violation of section 2423(b)² and one count of traveling in foreign commerce with the intent to promote sexually explicit conduct by minors for the purpose of producing visual depictions of such conduct in violation of 18 U.S.C. §§ 2251 A(b)(2)(A) and (c)(1).³

On May 3, 2002, Bredimus moved to dismiss the indictment, asserting an as-applied challenge that (1) Congress exceeded its authority under the Commerce Clause, U.S. CONST. art. I, § 8, cl. 3, by enacting the two statutes under which he was charged, and (2) the district court lacked subject matter jurisdiction over an extraterritorial offense that has no effect within the United States. On July 19, 2002, the district court denied the appellant's Motion to Dismiss, finding inter alia, that Section 2423(b) does not exceed Congress's authority under the Commerce Clause because Congress has the authority to keep the channels of foreign commerce free from immoral or injurious uses and that banning foreign travel for an illicit purpose does not impermissibly burden a person's fundamental right to travel. The court also ruled that it had jurisdiction under Section 2423(b) on the grounds that the statute targets an activity that occurs within the United States because the foreign travel originates domestically.

Bredimus entered into a conditional plea agreement with the government on August 27, 2002. Bredimus pled guilty to Count Two of the original indictment, but specifically reserved his right to challenge the constitutionality of Section 2423(b) on appeal.⁴ At the arraignment hearing, Bredimus moved the court to reconsider this motion to dismiss, which the district court denied.⁵

On November 18, 2002, the district court sentenced Bredimus to 66 months in the Bureau of Prisons, a fine of $30,000.00, and conditioned supervised release for three years. All remaining counts in the original and superseding indictment were dismissed. Bredimus timely filed a notice of appeal.

II. STANDARDS OF REVIEW

This court reviews a constitutional challenge to a federal statute de novo. United States v. Delgado-Nunez, 295 F.3d 494, 496 (5th Cir.2002) (quoting United States v. Brown, 250 F.3d 907, 912 (5th Cir.2001)). When reviewing an act of Congress passed under the authority of the Commerce Clause, we review the statute under the rational basis standard. Groome Resources, Ltd. v. Parish of Jefferson, 234 F.3d 192, 203 (5th Cir.2000). The burden for the challenger is high because "federal commerce legislation continues to merit a high degree of judicial deference." United States v. Robinson, 119 F.3d 1205, 1210 (5th Cir.1997). In applying this deferential standard, "[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." Groome Resources Ltd., L.L.C. v. Parish of Jefferson, 234 F.3d 192, 216 (2000).

Challenges to a district court's jurisdiction are reviewed de novo. United States v. Sims Bros. Const., Inc., 277 F.3d 734, 741 (5th Cir.2001).

A trial court cannot accept a plea of guilty unless there is a sufficient factual basis for the plea. See Fed.R.Crim.P. 11(f); United States v. Johnson, 194 F.3d 657, 659 (5th Cir.1999); United States v. Gobert, 139 F.3d 436, 439 (5th Cir.1998). A district court's acceptance of a guilty plea is a factual finding which we review under the clearly erroneous standard. United States v. Angeles-Mascote, 206 F.3d 529, 530 (5th Cir.2000).

III. DISCUSSION

A. The Constitutionality of Section 2423(b)

Under Section 2423(b), "[a] ... United States Citizen ... who travels in foreign commerce, for the purpose of engaging in any illicit sexual conduct with another person shall be fined [and/or] imprisoned...." 18 U.S.C. § 2423(b). Bredimus argues that the statute of conviction, as applied,⁶ constitutes Congress exercising a general police power in violation of United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and therefore, he contends that this court must inquire into whether the regulated activity "substantially affects" commerce. Specifically, Bredimus challenges the constitutionality of Section 2423(b), on the grounds that Congress exceeded its authority under the Commerce Clause, because on these facts there is no "substantial relationship" between the proscribed conduct (the crime of sexual exploitation of minors) and foreign commerce (travel by U.S. citizens abroad). Bredimus also contends that, as applied in this case, the statute unconstitutionally burdens his individual rights under the First, Fifth, and Eighth Amendments, because it punishes mere thought, mere travel, or mere preparation for a crime. We will discuss each in turn.

1. First Principles

Because Bredimus brings a challenge under Lopez and Morrison, we begin our analysis by briefly elucidating the "first principles" of commerce clause jurisprudence. United States v. Ho, 311 F.3d 589, 596 (5th Cir.2002).⁷ The Constitution "ensure[s] protection of our fundamental liberties." Id. Pursuant to this aim, the Framers devised a federal government of limited and enumerated powers. This constitutionally mandated division of authority appears in the Article I Vesting Clause, U.S. Const. art. I, § 1, which confers upon Congress solely "the legislative powers herein granted." The clause necessarily implies that the Framers denied Congress a "general police power," Ho, 311 F.3d at 596 (quoting, Morrison, 529 U.S. at 618 and n. 8, 120 S.Ct. 1740), reposing such power instead in the states.

The Constitution, however, expressly granted Congress the power "to regulate Commerce with foreign Nations, and among the several States..." Art. I, § 8, cl. 3. Since 1937,⁸ the scales of the federal courts' Commerce Clause jurisprudence tipped more towards according to Congress "considerably greater latitude in regulating conduct [including federal criminal statutes]." See Morrison, 529 U.S. at 608, 120 S.Ct. 1740, rather than to maintaining a distinction between "what is truly national and what is truly local." Id. at 617-18, 120 S.Ct. 1740; Lopez, 514 U.S. at 567-68, 115 S.Ct. 1624. A new era emerged with the Court's decisions in Lopez and Morrison, which clarified the legal standards applicable to a constitutional challenge under the Commerce Clause.⁹ Based on those two landmark cases, it is now clear, that while courts still maintain a wide degree of deference to Congress's power to enact legislation pursuant to the Commerce Clause, such power is now subject to certain "outer limits." Lopez, 514 U.S. at 556-67, 115 S.Ct. 1624; see also Ho, 311 F.3d at 596. With that in mind, we begin our analysis of the current facts.

2. The Commerce Clause

Our consideration of Bredimus's assertion that Congress exceeded the "outer limits" of the Commerce Clause must begin with Lopez. In Lopez, the plaintiff brought a challenge to the constitutionality of the Gun-Free School Zones Act of 1990, § 922(q)(2)(a), which made it a federal crime to have a gun within 1,000 feet of a school. The Lopez Court summarized three broad...