Phillips v. United States

Decision Date04 November 2013
Docket NumberNo. 11–6249.,11–6249.
Citation734 F.3d 573
PartiesGregory Alec PHILLIPS, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
CourtU.S. Court of Appeals — Sixth Circuit


ARGUED:Hallie H. McFadden, Signal Mountain, Tennessee, for Appellant. Debra A. Breneman, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF:Hallie H. McFadden, Signal Mountain, Tennessee, for Appellant. Debra A. Breneman, Charles E. Atchley, Jr., UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

Before: ROGERS and KETHLEDGE, Circuit Judges; BORMAN, District Judge.*


BORMAN, District Judge.

Gregory Alec Phillips, a former federal prisoner now on supervised release, was indicted on December 7, 2004, in the United States District Court, Eastern District of Tennessee. (R. 3, Sealed Indictment.) 1 The one-count indictment charged that on or about November 2004, Phillips, an adult citizen of the United States, did travel in foreign commerce to Thailand, and did knowingly engage in illicit sexual conduct as defined in Title 18, United States Code, Sections 2423(f) and 2246, with a minor male person who had not attained the age of sixteen (16) years, in violation of 18 U.S.C. § 2423(c). Phillips pleaded guilty to the single count and was sentenced to 37 months imprisonment, which he has served, and to lifetime supervised release. Phillips was released from prison on August 16, 2007. Subsequently, Phillips violated multiple terms of his supervised release and was sentenced to an additional 30 months imprisonment and thereafter to a 20 year term of supervised release. Phillips was released from his second incarceration in or about September, 2010, and continues on supervised release.

Phillips now appeals the district court's order denying his motion to vacate judgment filed under 28 U.S.C. § 2255. In his motion to vacate in the district court, Phillips argued that the statute under which he was convicted, 18 U.S.C. § 2423(c), which punishes [e]ngaging in illicit sexual conduct in foreign places,” applied only to individuals who both traveled in foreign commerce and engaged in illicit sexual conduct after the statute was enacted on April 30, 2003. Phillips also argued that his conviction violated the Ex Post Facto clause. Declining to address the government's arguments that Phillips's § 2255 motion was time-barred and procedurally defaulted, the district court addressed the merits and ruled that Phillips's foreign travel need not have preceded the date of enactment of section 2423(c), as long as the illicit sexual conduct occurred after the statute was enacted, which in Phillips's case it did. The district court denied the motion to vacate, and denied Phillips a certificate of appealability. Phillips v. United States, No. 04–cr–179, 2011 WL 4436526 (E.D.Tenn. Sept. 23, 2011). This Court granted Phillips's motion for a certificate of appealability, on the issue of whether 18 U.S.C. § 2423(c) requires that both the travel and the illicit sexual conduct occur after enactment of the statute criminalizing engaging in illicit sexual conduct in foreign places. After oral argument, this Court requested supplemental briefing addressing whether the equitable exception for actual innocence to AEDPA's one-year statute of limitations applies in this case, in light of the absence of new evidence, and in light of the Supreme Court's recent decision in McQuiggin v. Perkins, ––– U.S. ––––, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013). For reasons not addressed by the district court, but addressed by the parties in the supplemental briefs, which we find dispositive of Phillips's claims, we AFFIRM the decision of the district court denying Phillips's motion to vacate judgment.


Title 18 U.S.C. § 2423(c), which was enacted on April 30, 2003, as part of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (“the PROTECT Act”), defined as AN ACT To prevent child abduction and the sexual exploitation of children, and for other purposes,” provides:

“Illicit sexual conduct” is defined as:

(1) a sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States; or (2) any commercial sex act (as defined in section 1591) with a person under 18 years of age.

18 U.S.C. § 2423(f). SeePub.L. No. 108–21, 117 Stat. 650 (2003).2

Section 2423(c) originally was proposed as one of a number of amendments to 18 U.S.C. § 2423, as part of the Sex Tourism Prohibition Improvement Act of 2002. H.R. REP. 107–525 (June 24, 2002), 2002 WL 1376220 (2002). Ultimately, the amendments proposed as part of the Sex Tourism Prohibition Improvement Act of 2002 became law as part of the PROTECT Act in 2003, replacing the single section (b), which punished travel in interstate commerce with intent to engage in a sexual act with a minor, with new subsections (b) through (g). Subsection (b), “Travel With Intent to Engage in Illicit Sexual Conduct,” remained essentially unchanged and subsections (c) through (g) were newly added. Subsection (c), “Engaging in Illicit Sexual Conduct in Foreign Places,” under which Phillips was indicted in this case, has no intent requirement and punishes one who travels in foreign commerce and engages in illicit sexual conduct with another person.3

B. Phillips's Conviction, Supervised Release Violations and Motion to Vacate

In August, 2001, Phillips traveled from the United States to Thailand to begin employment as a teacher at the American School of Bangkok, in Bangkok, Thailand.4At the time he decided to travel to Thailand to seek employment as a teacher, Phillips had just completed 36 months probation following a 1998 conviction in Mecklenburg, North Carolina, for taking indecent liberties with a child. Because Phillips was prohibited from seeking employment as teacher in the United States, he decided to move to Thailand and find work there teaching children. At all times relevant to this action, Phillips remained a citizen of the United States, although he had obtained the necessary legal authorization to reside and work in Thailand. Beginning in or about May, 2004 (or earlier), and continuing through October, 2004, Phillips lived at his residence in Bangkok with a Thai national child named Prasert Ketbuakaew, also known as “Ong,” who was over thirteen but under sixteen years of age during that period of time.5

On or about October 26, 2004, the United States Department of Homeland Security, Immigration and Customs Enforcement (“ICE”) in Bangkok, Thailand, sought the assistance of the Royal Thai Police in obtaining a search warrant for Phillips's residence on suspicion that Phillips was violating 18 U.S.C. § 2423(c), “Engaging in Illicit Sexual Contact in Foreign Places.” (R. 46–4 at 4–6, United States Supplemental Filing to the Response to the Defendants' Motion to Suppress Thai Search Warrant, Ex. 4, October 26, 2004 Letter from Mark Robinson, Attache for ICE in Bangkok, to Surat Udomrat, Royal Thai Police Colonel.) The ICE request to Police Colonel Udomrat set forth, in pertinent part, the following investigative findings:

Through investigation and surveillance from March 2004 to the present, this office's Special Agents and Investigators have learned that Mr. Phillips is allegedly involved in the sexual exploitation and/or endangerment of children. This information was initially developed when the American School of Bangkok (ASB) informed that Mr. Phillips was formerly teaching there until he was released based upon his suspicious behavior with the school children.

The ASB's staff reported that Mr. Phillips was particularly interested with the school's boys as exhibited by his frequent public displays of inappropriate physical contact with them on school grounds.... After interviewing some of [the staff at Phillips's former Bangkok residence], it was learned that Mr. Phillips regularly brought different “young Thai boys” to his apartment to spend the night. One of the boys was nicknamed or identified as “Ong,” the alleged victim.... When Mr. Phillips moved out of [his former residence] it was determined through multiple surveillances conducted at different times such as mornings, afternoons, and evenings that Ong was inside [Mr. Phillips's] residence. It was learned that he was approximately thirteen years old. R. 46–4 at 5. Based upon this, and other pertinent information learned through further investigation and surveillance, the search warrant was granted, the search was conducted and Ong was removedfrom the residence and transferred to child protection officers.

Although it is unclear how Mr. Phillips became aware that authorities were searching for him in Thailand in connection with these charges, according to testimony of his probation officer in connection with Phillips's supervised release revocation hearing on March 28, 2008, Phillips did become aware that he was being sought and did flee Thailand sometime in October, 2004, to Mexico, where he stayed for approximately 30 days with a former acquaintance, whom Phillips knew as Dylan Thomas,” a convicted sex offender whose actual name was John Schillaci, who was then listed on the FBI's Top Ten Most Wanted individuals.6 According to the testimony of Phillips's probation officer at the revocation hearing, at some point, after residing in Mexico for a period of approximately 30 days, Phillips voluntarily returned to the United States. On December 7, 2004, Phillips was indicted on charges of knowingly engaging in illicit sexual conduct with a minor male, Ong, in violation of 18 U.S.C. § 2423(c).

On May 17, 2005, Phillips entered into a Rule 11 Plea Agreement, in which he pleaded guilty to the single count with which he was charged, engaging in illicit sexual conduct in foreign places in...

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