U.S. v. Clark

• Decision Date: 25 January 2006
• Docket Number: No. 04-30249.,04-30249.
• Citation: 435 F.3d 1100
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Lewis CLARK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

435 F.3d 1100

UNITED STATES of America, Plaintiff-Appellee, v. Michael Lewis CLARK, Defendant-Appellant.

No. 04-30249.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 6, 2005.

Filed January 25, 2006.

Michael Filipovic, Assistant Federal Public Defender, Vicki W.W. Lai, Research and Writing Attorney, Federal Public Defender's Office, Seattle, WA, for the defendant-appellant.

John McKay, United States Attorney, Helen J. Brunner, John J. Lulejian, Susan B. Dohrmann, Assistant United States Attorneys, Seattle, WA, for the plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge, Presiding. D.C. No. CR-03-00406-L.

Before HUG, FERGUSON, and McKEOWN, Circuit Judges.

Opinion by Judge McKEOWN; Dissent by Judge FERGUSON.

McKEOWN, Circuit Judge.

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.

BACKGROUND

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....