U.S. v. Clark

• Decision Date: 26 April 2004
• Docket Number: No. CR03-0406L.,CR03-0406L.
• Citation: 315 F.Supp.2d 1127
• Parties: UNITED STATES of America, Plaintiff, v. Michael Lewis CLARK, Defendant.
• Court: U.S. District Court — Western District of Washington

315 F.Supp.2d 1127

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

No. CR03-0406L.

United States District Court, W.D. Washington, At Seattle.

April 26, 2004.

Susan Blair Dohrmann, U.S. Attorney's Office, John Joseph Lulejian, U.S. Attorney's Office, Seattle, WA, for USA, Plaintiff.

Michael Filipovic, Federal Public Defender's Office (Sea), Seattle, WA, for Michael Lewis Clark, Defendant.

ORDER DENYING MOTION TO DISMISS

LASNIK, District Judge.

I. INTRODUCTION

This matter comes before the Court on a motion to dismiss (Dkt.# 44) filed by defendant Michael Lewis Clark ("Clark"). For the reasons set forth in this Order, the Court denies Clark's motion.

II. DISCUSSION

A. Background.

On June 28, 2003, Clark, a United States citizen, was arrested by Cambodian National Police in Phnom Penh, Cambodia, on charges of debauchery for engaging in sexual contact with two Cambodian boys. Prior to his arrest, Clark had lived in Cambodia for approximately five years, periodically returning to the United States for family visits. Following a family visit in April of 2003, Clark left the United States aboard a United States military flight that departed from Seattle, Washington, on May 1, 2003. Clark traveled through Japan, Singapore, Malaysia and Thailand before returning to Cambodia.

While Clark was detained in Cambodia, the United States arranged to take jurisdiction over the offense from Cambodia. Following his expulsion from Cambodia, on September 24, 2003, Clark was indicted with two counts of violation of 18 U.S.C. § 2423(c), which criminalizes the illicit sexual conduct of United States citizens or admitted aliens who travel in foreign commerce. On March 17, 2004, Clark pled guilty to those charges and reserved the right to challenge the legality of that statute.

Clark challenges the statute as unconstitutional for lack of congressional authority under the Commerce Clause. Additionally, Clark contends that under principles of statutory construction the statute should not be read to apply to him. Clark also argues that the statute violates principles of international law and that its extraterritorial application is unreasonable and unconstitutional under the Due Process Clause of the Fifth Amendment.

B. Analysis.

A court should exercise caution and reluctance before striking down a statute as unconstitutional. See Parker v. Levy, 417 U.S. 733, 760, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (courts must be "reluctant[ ] to strike down a statute on its face where there [are] a substantial number of situations to which it might validly be applied"); Nader 2000 Primary Comm., Inc. v. Hazeltine, 110 F.Supp.2d 1201, 1206 (D.S.D.2000) ("A court should inquire into the constitutionality of a statute only if such inquiry is essential to the protection of the rights of one of the parties."). The Court therefore turns to those arguments that do not implicate the Constitution before considering Clark's constitutional challenges to the statute.

1. The Statute.

18 U.S.C. § 2423(c) provides:

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.

"Illicit sexual contact" 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). This statute was enacted as part of the "Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act" (the "PROTECT Act"). See Pub.L. No. 108-21, 117 Stat. 650 (2003). Prior to enactment of 18 U.S.C. § 2423(c), the Violent Crime Control and Law Enforcement Act of 1994 criminalized travel to foreign countries for the purpose of engaging in sexual acts with a child under the age of 18 if such acts would be in violation of federal law. See 18 U.S.C. § 2423(b).¹

The provisions of 18 U.S.C. § 2423(c) are very similar to legislation passed by the House of Representatives in 2002, but which failed to pass in the Senate. See H.R. Conf. Rep. No. 108-66, at 5, 2003 U.S.C.C.A.N. 683 (section "is similar to H.R. 4477, the `Sex Tourism Prohibition Improvement Act of 2002,' which passed the House on June 26, 2002"). The House Report on that prior legislation stated that the purpose of the bill was to remove the requirement that the "Government ... prove that the defendant traveled `for the purpose' of engaging in the illegal activity." H.R.Rep. No. 107-525, at 2 (2002). The House Report further noted that the "legislation will close significant loopholes in the law that persons who travel to foreign countries seeking sex with children are currently using to their advantage in order to avoid prosecution." Id. at 3.

2. Statutory Construction Argument.

Clark contends that the application of two principles of statutory construction mandates that the charges against him be dismissed:

First, "where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by other of which such questions are avoided, [the Court's] duty is to adopt the latter." United States v. Delaware & Hudson Co., 213 U.S. 366, 408, 29 S.Ct. 527, 53 L.Ed. 836 (1909); see also Jones v. United States, 529 U.S. 848, 857, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000).... Second, "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." Jones, 529 U.S. at 858, 120 S.Ct. 1904.

(Motion at 22). Clark contends that because the PROTECT Act refers to the legislation as "penalties against sex tourism" and because the prior legislation upon which the statute was modeled was entitled "Sex Tourism Prohibition Improvement Act of 2002," the statute should not apply to him because he is not a "sex tourist." (Motion at 23 (citing H.R. Conf. Rep. No. 108-66, at 5, 2003 U.S.C.C.A.N. 683)).

Clark is attempting to add elements to the crime with which he is charged (and to which he pled guilty) that simply do not exist in the statute. Clark is within the class of persons whose conduct Congress intended to criminalize by enacting 18 U.S.C. § 2423(c).² No principles of statutory construction cause this Court to construe the statute such that it does not apply to Clark.

3. Violation of International Law Argument.

Clark contends that this Court should not exercise jurisdiction over this matter because his prosecution would violate principles of international law and would be unreasonable under international law.

a. Principles of International Law Regarding Extraterritorial Application of a Federal Statute.

When "determining whether a statute applies extraterritorially, [courts] presume that Congress did not intend to violate principles of international law." McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21-22, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963). "In the absence of an explicit Congressional directive, courts do not give extraterritorial effect to any statute that violates principles of international law." United States v. Vasquez-Velasco, 15 F.3d 833, 839 (9th Cir.1994).

International law recognizes several principles under which the exercise of extraterritorial jurisdiction may be appropriate, including (1) the objective territorial principle, under which jurisdiction is asserted over acts performed outside the United States that produce detrimental effects in the United States; (2) the protective principle, under which jurisdiction is asserted over foreigners for acts committed outside the United States that may impinge on the territorial integrity, security, or political independence of the United States; (3) the nationality principle, under which jurisdiction is based on the nationality or national character of the offender; (4) the universality principle, which provides jurisdiction over extraterritorial acts for crimes so heinous as to be universally condemned; and (5) the passive personality principle, under which jurisdiction is based upon the nationality of the victim. Id. at 840 n. 5 (citing Restatement (Third) of Foreign Relations of Law of the United States § 402 cmt. a (1987)).

Clark used American sources of financing to live in Cambodia. Additionally, Clark frequently utilized military benefits to fly between Asia and the United States. Clark maintained his citizenship, and "[a]long with the many benefits that American citizenship confers upon those who hold it, come certain `obligations of citizenship' [including] the obligation to obey laws that specifically apply to one's conduct." United States v. Shahani-Jahromi, 286 F.Supp.2d 723, 730 (E.D.Va.2003). Furthermore, although the Court acknowledges that certain nations have not yet done nearly enough to ensure that their child citizens are protected from sexual abuse by other citizens or by foreign travelers, the Court finds that the sexual abuse of children criminalized by this statute is universally condemned. The Court therefore finds that Congress may exercise extraterritorial jurisdiction over the acts criminalized by 18 U.S.C. § 2423(c) under both the nationality principle and the universality principle.³

b. Reasonableness.

Even if principles of international law serve as bases for extraterritorial application of a law, international law also requires that such application of the law be reasonable. Vasquez-Velasco, 15 F.3d at 840. Several factors may be considered in the reasonableness determination:

(a) the link of the activity to the territory of the regulating state, i.e., the extent to which the activity takes place within the territory, or has substantial, direct, and foreseeable effect upon or in the territory;

(b) the connections, such as...