United States v. Pepe

• Decision Date: 11 July 2018
• Docket Number: No. 14-50095,14-50095
• Citation: 895 F.3d 679
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Joseph PEPE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

895 F.3d 679

UNITED STATES of America, Plaintiff-Appellee,

v.Michael Joseph PEPE, Defendant-Appellant.

No. 14-50095

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 8, 2017—Pasadena, California

Filed July 11, 2018

James H. Locklin (argued), Deputy Federal Public Defender; Hilary L. Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Defendant-Appellant.

Nancy B. Spiegel, Assistant United States Attorney, Criminal Appeals Section; Patricia A. Donahue, Chief, National Security Division; Lawrence S. Middleton, Chief, Criminal Division; Eileen M. Decker, United States Attorney; United States Attorney's Office, Los Angeles, California; for Plaintiff-Appellee.

Before: Sidney R. Thomas, Chief Judge, and Andrew J. Kleinfeld and Jacqueline H. Nguyen, Circuit Judges.

Dissent by Chief Judge Thomas

NGUYEN, Circuit Judge:

Michael Pepe, a U.S. citizen, drugged and raped seven children in Cambodia, where he claims to have resided for several years. Pepe was convicted of violating 18 U.S.C. § 2423(c), engaging in illicit sexual conduct in foreign places, and sentenced to prison for 210 years. The version of the statute under which he was convicted applied to a U.S. citizen "who travels in foreign commerce, and engages in any illicit sexual conduct with another person." 18 U.S.C. § 2423(c) (2005). Pepe's illicit sexual conduct occurred between three and nine months after his return to Cambodia following a brief trip to the United States to visit family and attend his daughter's wedding. Pepe contends that the statutory language didn't encompass his conduct because, as a resident of Cambodia, he had ceased "travel[ing] in foreign commerce."

Pepe's contention runs up against our previous conclusion that the statute "does not require that the conduct occur whiletraveling in foreign commerce." United States v. Clark , 435 F.3d 1100, 1107 (9th Cir. 2006). Focusing on the word "and," which connected the travel with the conduct, we construed § 2423(c) to include individuals who, like Pepe, at some point traveled in foreign commerce and thereafter engaged in any illicit sexual conduct. See id .

However, Congress subsequently amended the statute to add a new basis for criminal liability. The statute now applies to a U.S. citizen "who travels in foreign commerce or resides, either temporarily or permanently, in a foreign country , and engages in any illicit sexual conduct with another person." 18 U.S.C. § 2423(c) (2018) (emphasis added). From the statutory amendment, as well as the accompanying legislative history, it is evident that § 2423(c) was previously inapplicable to U.S. citizens living abroad unless they were traveling—meaning something more than being in transit—when they had illicit sex. Because this subsequent Congressional pronouncement is clearly irreconcilable with our prior construction of the statute, we are not bound by our reasoning in Clark .

The government appears to contest that Pepe relocated to Cambodia, but this factual dispute was not resolved below because the district court applied Clark . However, if Pepe resided in Cambodia and was no longer "traveling," then the prior version of § 2423(c) does not apply to him. We therefore vacate his convictions and sentence and remand for further proceedings.

I.

Pepe, a 49-year-old U.S. citizen, left the United States for Cambodia in March 2003 on a one-way ticket. He rented a house, obtained a Cambodian driver's license, bought a car, and secured employment teaching management at a university in Phnom Penh. Pepe "married" a Cambodian citizen, Bith Chanry, and the two of them lived together for a while.¹ He also became involved in community activities, such as the Phnom Penh Veterans of Foreign Wars Post and the local Catholic church.

Pepe occasionally traveled to the United States to visit his family. His last such trip prior to his arrest was to Los Angeles for a week in August 2005 to attend his daughter's wedding. Nearly a year after his return to Cambodia, in June 2006, local authorities took him into custody and searched his home based on information from American officials that a girl had reported him sexually abusing her. He spent seven months in a Cambodian prison and then was handed over to U.S. authorities, who brought him to the United States.

Pepe was indicted on seven counts of engaging in illicit sexual conduct in foreign places between three and nine months following his return to Cambodia from the wedding. He moved to dismiss the indictment and suppress evidence taken from his home and examined in Singapore and the United States. The district court denied each of these motions.

At trial, the prosecution presented evidence that Pepe met a prostitute, Basang, at Sharkey Bar in Phnom Penh about five years before his arrest.² Pepe paid Basang for sex several times, but she worked for him primarily by procuring girls around 10–12 years old for sex. Basang gave the girls' families money from Pepe in exchange. Pepe paid Basang's rent and gave her $300 to help pay for her parents' gravestones. Basang also translated for him—the girls and their mothers spoke little or no English, and he could not communicate in the languages that they spoke, Khmer and Vietnamese.

The girls, six of whom testified at trial, lived with Pepe at various times for a few days to several weeks. Basang taught the girls to massage and orally copulate Pepe while he and they were naked. After the girls did this, Pepe would give them a dollar bill. In addition, he forcibly raped each of the girls at least once; some, three times or more. Often, when raping a girl for the first time, Pepe or Basang would give the girl a sedative and Pepe would tie her legs to his bed with a rope. If the girl screamed when she awoke, he would slap her, tape her mouth, or cover her head with a pillow.

The jury convicted Pepe on all seven counts. The district court sentenced him to consecutive 30-year sentences for a total of 210 years in prison. In addition, the court ordered him to pay $247,213 in restitution to two Cambodian non-governmental organizations, Hagar and Agape, on the victims' behalf.

II.

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

Whether 18 U.S.C. § 2423(c) applies to U.S. citizens who reside in—as opposed to just travel to—a foreign country is a question of law which we review de novo. See United States v. Sheldon , 755 F.3d 1047, 1049 (9th Cir. 2014).

III.

A.

Section 2423 originated in the White-Slave Traffic (Mann) Act, ch. 395, § 3, 36 Stat. 825 (1910). For decades, the statute covered only situations in which the minor victim of certain sex crimes was transported across state or federal borders. Whether the perpetrator accompanied the victim in the travel or arranged the transportation from afar was irrelevant. See United States v. Barrington , 806 F.2d 529, 534 (5th Cir. 1986) (holding that perpetrator's "own travel, distinct from her causing others to travel," was unnecessary for § 2423 conviction); cf. United States v. Jones , 909 F.2d 533, 540 (D.C. Cir. 1990) ("[O]ne need not physically carry or accompany a person interstate in order to ‘transport’ her ....").

To address the situation where the perpetrator traveled but the victim stayed put, Congress added the offense currently codified in § 2423(b) to punish persons who travel in interstate or foreign commerce "for the purpose of engaging in [a prohibited] sexual act." Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 160001(g), 108 Stat. 1796. Proving that foreign travelers intended to engage in sexual misconduct with children at the time they left the United States turned out to be difficult.

The 1994 law resulted in only a handful of such convictions nationwide, see Karen D. Breckenridge, Comment, Justice Beyond Borders: A Comparison of Australian and U.S. Child-Sex Tourism Laws , 13 P. Rim L. & Policy J. 405, 415 (2004), prompting Congress to amend the statute again less than a decade later. See Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 ("PROTECT Act"), Pub. L. No. 108-21, § 105, 117 Stat. 650.

The offense at issue here, § 2423(c), was added in the PROTECT Act. Congress purposefully omitted an intent element in order to facilitate prosecutions. See H.R. Conf. Rep. 108-66, at 51 (2002) (amending § 2423 to address "a number of problems related to persons who travel to foreign countries and engage in illicit sexual relations with minors," including the need "to prove that the defendant traveled with the intent to engage in the illegal activity").

As originally enacted, the statute applied to "[a]ny United States citizen ... who travels in foreign commerce, and engages in any illicit sexual conduct with another person."³ 18 U.S.C. § 2423(c) (2003). That version of the statute was in effect when Pepe engaged in illicit sexual conduct. It's also the version that was at issue in Clark , where we considered its interpretation and constitutionality under similar facts.

B.

Michael Clark, a U.S. citizen and military veteran, resided primarily in Cambodia for approximately five years before being extradited. Clark , 435 F.3d at 1103. He took annual trips back to the United States, where he "maintained real estate, bank accounts, investment accounts, a driver's license, and a mailing address." Id. After one such trip to visit family, he flew back to Cambodia via third countries. Id. Within two months of his return, "Clark came under suspicion when street kids reported to social workers that he was molesting young boys on a regular basis." Id. The Cambodian National Police ("CNP") arrested Clark, charged him with debauchery, and ultimately turned him over to U.S. authorities for prosecution here. Id. He pled guilty to violating § 2423(c).

On appeal, Clark argued that the statute was an unconstitutional exercise of...