U.S. v. Bredimus, CR.A. 302CR064L.

Decision Date19 July 2002
Docket NumberNo. CR.A. 302CR064L.,CR.A. 302CR064L.
PartiesUNITED STATES of America v. Nicholas BREDIMUS
CourtU.S. District Court — Northern District of Texas
234 F.Supp.2d 639
UNITED STATES of America
v.
Nicholas BREDIMUS
No. CR.A. 302CR064L.
United States District Court, N.D. Texas, Dallas Division.
July 19, 2002.

Page 640

Linda Groves, U.S. Attorney's Office, Department of Justice, Dallas, TX, for United States.

Thomas W. Mills, Jr., Tom Mills & Associates, Dallas, TX, for Nicholas Bredimus.

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MEMORANDUM OPINION AND ORDER

LINDSAY, District Judge.


Before the court is Defendant's Motion to Dismiss, filed May 3, 2002. After careful consideration of the motion, the government's response, the parties' supplemental briefing, and the applicable law, the court, for the reasons stated herein, denies Defendant's Motion to Dismiss.

I. Factual and Procedural Background1

According to the government, on November 3, 2001, residents of the Chiang Rai Province, Thailand, reported to local law enforcement officers that several of their children were missing. Upon investigation, the Thai police discovered the missing children with Defendant Nicholas Bredimus ("Bredimus") in a hotel located in Chiang Rai Province. Several of these children told the police that Bredimus had paid them to allow him to take photographs of them in the nude and while he performed sexual acts on them. The Thai police subsequently arrested Bredimus for the alleged sexual abuse of these children and for allegedly producing images of child pornography.

On June 4, 2002, the grand jury returned a two-count superseding Indictment ("Indictment") that charged Bredimus with (1) traveling in foreign commerce with the intent to engage in a "sexual act" with children under the age of 16, in violation of 18 U.S.C. § 2423(b)2 (Count 1); and (2) traveling in foreign commerce with the intent to use minors to engage in sexually explicit conduct for the purpose of producing visual depictions of that conduct, in violation of 18 U.S.C. § 2251A(b)(2)(A) and (c)(1) (Count 2).3 Bredimus now moves to dismiss the Indictment for lack of subject matter jurisdiction, pursuant to Fed.R.Crim.P. 12(b).4

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II. Defendant's Motion to Dismiss

Bredimus contends that the Indictment is jurisdictionally defective, and should be dismissed for several reasons. First, he contends that both statutes, as applied to him, are unconstitutional because they regulate conduct occurring outside the jurisdiction of the United States. Second, he contends that § 2423(b) is unconstitutional because it exceeds the scope of Congress's power to regulate the channels of commerce under the Commerce Clause of the United States Constitution. Third, he asserts that § 2423(b) unconstitutionally restricts the fundamental right to travel because it unreasonably burdens travel from this country by punishing nothing more than one's thought processes. Fourth, he contends that the offense set forth in § 2423(b) is an impermissible inchoate offense because it punishes one who crosses a foreign border with the requisite intent without requiring the commission of any other act. The government responds that § 2423(b) and § 2251A are valid exercises of Congress's authority under the Commerce Clause to regulate the use of the channels of interstate commerce, and, moreover, the constitutionality of § 2423(b) has been upheld as a valid exercise of that authority. The government further responds that the statutes do not criminalize "mere thoughts," as they both punish the act of exiting the United States and traveling to a foreign country for the purpose of engaging in an unlawful sexual act with a individual under the age of 18. Finally, the government contends that the statutes are not unconstitutionally applied to Bredimus because the alleged acts constituting the offenses occurred within the United States, and that, in any event, Congress has authority to exercise extraterritorial jurisdiction over sex tourists. The court addresses both statutes in turn.

A. The Constitutional Challenge to 18 U.S.C. § 2423(b)

1. Commerce Clause Challenge

Bredimus contends that Congress may not punish one who travels in foreign commerce merely because he has the intent to commit an illegal or immoral act on foreign soil. He relies on Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1917), for the proposition that an individual is subject to congressional authority under the Commerce Clause only when he either arranges for a passenger's movement or transports the individual directly himself in interstate or foreign commerce. Bredimus acknowledges Congress's power to regulate the transportation of people or things across state lines or a foreign border for an immoral or improper purpose; however, he maintains that criminalizing the transportation of oneself in commerce for such purposes exceeds the scope of Congress's Commerce Clause authority.

Section 2423(b) provides, inter alia, for criminal penalties when a United States citizen travels in foreign commerce for the purpose of engaging in an unlawful sexual act with a juvenile. The Constitution expressly grants Congress the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. art. I, § 8 cl. 3. The term "foreign commerce," as used in Title 18, includes commerce with a foreign country, see 18 U.S.C. § 10, and is defined in the Fifth Circuit Pattern

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Jury Instructions as "commerce or travel between any part of the United States, including its territorial waters, and any other country, including its territorial waters." Fifth Circuit Pattern Jury Instruction 1.40 (West 2001); see also United States v. Montford, 27 F.3d 137, 139-40 (5th Cir.1994)("Congress intended foreign commerce to mean travel to or from, or at least some form of contact with, a foreign state."). Congress's authority to regulate foreign and interstate commerce is plenary, and may be exercised to its utmost extent without limitation, except as prescribed by the Constitution. See United States v. Lopez, 514 U.S. 549, 553, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995)(citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196, 6 L.Ed. 23 (1824)).

Congress's authority to regulate foreign is extremely broad, being even broader than its power to regulate interstate commerce. See Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 448, 99 S.Ct. 1813, 60 L.Ed.2d 336 (1979)("Foreign commerce is preeminently a matter of national concern[,] and "there is evidence that the Founders intended the scope of the foreign commerce power to be ... greater" than the scope of the interstate commerce power."). Congress's authority under the Commerce Clause is moreover broad enough "to stretch beyond the simple regulation of commercial goods traveling in interstate and foreign commerce to include regulation of non-economic activities ... that affect, impede, or utilize channels of commerce." United States v. Cummings, 281 F.3d 1046, 1048 (9th Cir.2002) (citations omitted). The Supreme Court has identified three broad categories of activity that Congress is permitted to regulate under its commerce power. First, Congress can regulate "the use of the channels of interstate commerce." Lopez, 514 U.S. at 558, 115 S.Ct. 1624. Second, Congress may regulate "the instrumentalities of interstate commerce, or persons or things in interstate commerce." Id. Third, Congress may regulate those activities that "substantially affect interstate commerce."5 Id. at 558-59, 115 S.Ct. 1624. The parties agree that if § 2423(b) is to be upheld, it must be under the first category of regulation, that is, the use of channels of interstate commerce.6 See also United States v. Han, 230 F.3d 560, 562 (2d Cir.2000)(stating that § 2423(b) falls under Congress's authority to regulate the use of the channels of interstate commerce); United States v. Brockdorff, 992 F.Supp. 22, 24 n. 3 (D.D.C.1997)(expressing that constitutionality of § 2423(b) based on Congress's authority under the Commerce Clause presents a "channels of commerce" issue).

The first category of regulation, reaches the "misuse" of the channels of interstate or foreign commerce, Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), and refers to the interstate transportation routes through which persons and goods move.

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United States v. Bailey, 115 F.3d 1222, 1226 (5th Cir.1997)(internal quotation and citation omitted), cert. denied, 522 U.S. 1082, 118 S.Ct. 866, 139 L.Ed.2d 764 (1998). That Congress has authority "to keep the channels of interstate commerce free from immoral or injurious uses has been frequently sustained, and is no longer open to question." Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (quoting Caminetti v. United States, 242 U.S. 470, 491, 37 S.Ct. 192, 61 L.Ed. 442 (1917)). Because Congress's authority is even more broad in the area of foreign commerce, it necessarily follows that it has authority to keep the channels of foreign commerce free from immoral or injurious uses. As such, Congress's authority under the Commerce Clause is broad enough to include individuals who travel in foreign commerce for the purpose of engaging in prohibited sexual activity with minors. The court concludes that § 2423(b) does not exceed Congress's authority under the Commerce Clause.

Bredimus also contends that the statute is unconstitutional because it unreasonably burdens travel from this country by punishing nothing more than a person's thought processes, and therefore violates his fundamental right to travel. Although the right to travel is a fundamental right, it does not encompass traveling for illicit purposes. See Hoke v. United States, 227 U.S. 308, 320-323, 33 S.Ct. 281, 57 L.Ed. 523 (1913); Brockdorff, 992 F.Supp. at 25. The court therefore determines that the statute, which criminalizes foreign travel when it is done for an illicit purpose, does not impermissibly burden a person's fundamental right to travel. See id.

Further, the court...

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