United States v. Rife
| Decision Date | 05 May 2022 |
| Docket Number | 20-5688 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Micky RIFE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: James M. Inman, GREEN CHESNUT & HUGHES, PLLC, Lexington, Kentucky, for Appellant. Sonja M. Ralston, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: James M. Inman, GREEN CHESNUT & HUGHES, PLLC, Lexington, Kentucky, for Appellant. Sonja M. Ralston, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Charles P. Wisdom, Jr., UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee.
Before: KETHLEDGE, STRANCH, and BUSH, Circuit Judges.
KETHLEDGE, J., delivered the opinion of the court in which BUSH, J., joined. STRANCH, J. (pp. 848–60), delivered a separate opinion concurring in the judgment.
At issue in this case is whether Congress has plenary power to regulate the conduct of American citizens after they travel overseas. Micky Rife, a Kentucky-born U.S. citizen, travelled to Cambodia and, years later, sexually abused two girls. After returning to Kentucky, he pled guilty to engaging in illicit sexual conduct abroad in violation of 18 U.S.C. § 2423(c). Rife now argues that Congress lacked power to regulate the conduct for which he was convicted. We agree with him that Congress's power under the Foreign Commerce Clause does not support his conviction. But we also conclude—based on Supreme Court precedent alone—that § 2423(c) as applied here was within Congress's power to enact legislation implementing treaties. We therefore affirm his conviction.
In September 2012, Rife moved from Kentucky to Phnom Penh, Cambodia. There, he took a position as an elementary-school teacher, began a relationship with a Cambodian woman, and adopted a young Cambodian girl. (One may suspect that these relationships were not what they seemed, but the record here contains no information to that effect.) For the next six years, Rife lived and worked exclusively in Cambodia, obtaining each year an "Extension of Stay" temporary visa through his U.S. passport. Rife did not visit the United States during that period, though he maintained a bank account and property in Kentucky.
In 2018, Cambodian authorities opened an investigation into allegations that Rife had sexually assaulted his young female students. One girl reported that, on more than one occasion when she was four or five years-old, Rife tossed her up into the air and touched her vagina underneath her clothing; she also said he put his fingers inside her vagina, which hurt. A second girl reported that, when she was seven or eight, Rife put his hand underneath her clothing and put his fingers on her vagina while he was carrying her—and that "it happened many times."
That December, based upon information received from Cambodian authorities, Rife's school terminated his employment. Four days later he voluntarily returned to Kentucky, where federal agents soon interviewed him about his actions in Cambodia. Rife told them he had been fired for "mishandling kids," and eventually confessed to abusing two of his female students as described above. The agents arrested him.
A federal grand jury soon indicted Rife on two counts (one for each victim) of illicit sexual conduct in a foreign place, in violation of 18 U.S.C. § 2423(c). That statute punishes any United States citizen or lawful permanent resident "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." Section 2423(f) in turn defines "illicit sexual conduct" to mean noncommercial or commercial sex acts with a person under age 18, or the production of child pornography. The government did not allege that Rife offered anything of value in connection with his abuse of the two girls; hence the parties agree that his "illicit sexual conduct" was noncommercial in nature. See 18 U.S.C. §§ 2423(f)(1), 2246(2)(D).
Rife moved to dismiss the indictment, arguing that Congress lacked constitutional authority to punish him for noncommercial acts of sexual abuse that occurred in a foreign country years after he had travelled there. The government countered that the application of § 2423(c) to Rife's conduct was authorized by two powers granted to Congress under Article I: first, the Foreign Commerce Clause; and second, the Necessary and Proper Clause, which among other things empowers Congress to enact legislation to implement treaties—the relevant treaty here being the "Optional Protocol to the United Nations Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography," which the United States ratified in 2002. The district court denied Rife's motion to dismiss, passing over the foreign commerce issue but upholding § 2423(c) as a valid exercise of Congress's power to implement the Optional Protocol.
Rife then entered a conditional plea of guilty to one count of illicit sexual conduct, 18 U.S.C. § 2423(c), admitting the facts recited above but reserving the right to appeal the court's denial of his motion to dismiss. The court sentenced Rife to 252 months’ imprisonment, to be followed by 20 years of supervised release. This appeal followed.
Rife challenges the constitutionality of 18 U.S.C. § 2423(c) as applied to him. The government, for its part, again argues that the Foreign Commerce Clause, as well as Congress's power to implement treaties under the Necessary and Proper Clause, authorized that application. Both of the government's arguments thus present constitutional questions; we address each in turn.1
We review de novo whether § 2423(c) was a valid exercise of Congress's power as applied to Rife's conduct. See United States v. Abdulmutallab , 739 F.3d 891, 905 (6th Cir. 2014).
The Constitution empowers Congress to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes[.]" U.S. Const. Art. I, § 8, cl. 3. The public meaning of "commerce" at the time of the Constitution's ratification was hardly obscure; indeed Justice Thomas's explication of it is largely uncontested. See United States v. Lopez , 514 U.S. 549, 586, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (Thomas, J., concurring). We only briefly reiterate that explication here. "Commerce," at that time, meant "trade" or economic "intercourse," which consisted of "exchange of one thing for another," "interchange," or "traffick." See, e.g., 1 S. Johnson, A Dictionary of the English Language 422 (6th ed. 1785). In The Federalist Papers , John Jay, Alexander Hamilton, and James Madison each used the words "commerce" and "trade" interchangeably. See, e.g., The Federalist No. 7 (Hamilton) (discussing "competitions of commerce" between States as a result of state "regulations of trade"). So did the Antifederalists. See Lopez , 514 U.S. at 586, 115 S.Ct. 1624 (Thomas, J., concurring). Federalists and Antifederalists alike also distinguished "commerce" from manufacturing and agriculture. See, e.g., The Federalist No. 36 (Hamilton) (referring to "agriculture, commerce, manufactures"). Commerce itself, then, meant trade and transportation thereof, as opposed to activities preceding those things. See Lopez , 514 U.S. at 585, 115 S.Ct. 1624 (Thomas, J., concurring); United States v. Al-Maliki , 787 F.3d 784, 792 (6th Cir. 2015).
Consistent with that understanding—particularly the "transportation thereof" part—Chief Justice Marshall later explained that the power to regulate commerce included the power to regulate "navigation" and the streams (figuratively speaking) of foreign or interstate commerce, all the way up to their headwaters in a particular State. Gibbons v. Ogden , 22 U.S. 1, 72, 74, 9 Wheat. 1, 6 L.Ed. 23 (1824). And Justice Story added that Congress's power to regulate commerce included the power to punish acts that "interfere with, obstruct, or prevent the due exercise of the power to regulate commerce and navigation with foreign nations, and among the states." United States v. Coombs , 37 U.S. 72, 78, 12 Pet. 72, 9 L.Ed. 1004 (1838).
None of this history is controversial. Indeed, two of the "three broad categories of activity that Congress may regulate under its commerce power," Lopez , 514 U.S. at 558, 115 S.Ct. 1624 (majority opinion), roughly track this historical understanding. In Lopez the Court wrote about those "broad categories" with respect to interstate commerce in particular. "First, Congress may regulate the use of the channels of interstate commerce." Id . "Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities." Id . The Court's departure from the original meaning of "commerce" came in the third category: summarizing the Court's caselaw, again with respect to interstate commerce in particular, the Court in Lopez recited that "Congress’ commerce authority includes the power to regulate" not only commerce itself, but also "those activities that substantially affect interstate commerce." Id . at 558-59, 115 S.Ct. 1624.
In the 80 years since the Supreme Court added that third category to Congress's power to regulate interstate commerce—an addition that has come to overshadow the original structure to which it was attached—the Court has not extended it to Congress's power to regulate under the Foreign Commerce Clause. See Baston v. United States , ––– U.S. ––––, 137 S. Ct. 850, 852, 197 L.Ed.2d 478 (2017) () ( that the federal circuit courts have been "[w]ithout guidance from this Court as to the proper scope of Congress’ power under this Clause"). Thus, a threshold question here is whether we must or should extend that addition to Congress's foreign-commerce power ourselves.
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