United States v. Michael Pepe
895 F.3d 679
9th Cir.2018Background
- Defendant Michael Pepe, a U.S. citizen, lived in Cambodia from 2003, obtained local documents, worked, and had ongoing ties there; he made occasional short trips to the U.S., including an August 2005 visit.
- Between three and nine months after his return to Cambodia from the 2005 U.S. trip, Pepe was accused of drugging, prostituting, and raping multiple Cambodian children; he was arrested in 2006, extradited, tried, convicted under 18 U.S.C. § 2423(c), and sentenced to 210 years.
- § 2423(c) (2003 version) penalized a U.S. citizen “who travels in foreign commerce, and engages in any illicit sexual conduct,” without an intent element.
- Pepe argued the statute did not apply because he had ceased “traveling in foreign commerce” and had become a resident of Cambodia at the time of the crimes.
- The district court applied Ninth Circuit precedent construing “travels … and engages” to allow post-travel conduct to be covered; the jury convicted and imposed consecutive 30-year terms per count.
Issues
| Issue | Plaintiff's Argument (Pepe) | Defendant's Argument (U.S.) | Held |
|---|---|---|---|
| Whether § 2423(c)’s travel element covers conduct that occurs after a defendant ceases “traveling” (i.e., after resettlement abroad) | Pepe: he had permanently (or at least no longer temporarily) resettled in Cambodia, so he was not "traveling" when the illicit conduct occurred; statute therefore did not apply | Government: prior Ninth Circuit precedent (Clark) allows liability even if the illicit conduct occurs after arrival; most citizens who relocate had earlier traveled so the prior text already reached them | The court held that under the pre-2013 statute the travel element requires that the illicit sexual conduct occur while the defendant is traveling; if Pepe had resettled, § 2423(c) (2003) did not apply; conviction vacated and remanded |
| Whether the panel is bound by United States v. Clark (435 F.3d 1100) | Pepe: Clark is not controlling because Congress later amended § 2423(c), and that amendment shows Congress did not intend Clark’s interpretation | Government: Clark remains binding and its interpretation should control | Court: Clark is effectively overruled for this panel because the 2013 amendment (and legislative history) is intervening authority clearly irreconcilable with Clark, so the panel declines to follow Clark |
| Whether statutory construction principles (lenity, avoidance of constitutional doubts) counsel narrow reading of § 2423(c) | Pepe: strict liability and severe penalties justify lenity and a narrower reading to avoid constitutional concerns about extraterritorial regulation | Government: broader reading is consistent with Congress’s goals to combat child-sex exploitation abroad | Court: cited lenity and constitutional-avoidance concerns as supportive of applying a narrower travel-required rule; left larger constitutional questions for another day |
| Whether Pepe preserved his statutory-residency argument for appeal | Government: Pepe failed to raise the precise permanent-residency argument in district court | Court: Pepe did argue he had permanently relocated and challenged statutory reach; in any event, a futile argument under then-binding Clark need not have been pressed; government’s response waived forfeiture defenses | Court: found no forfeiture bar and proceeded to decide the statutory question |
Key Cases Cited
- United States v. Clark, 435 F.3d 1100 (9th Cir. 2006) (prior Ninth Circuit construction treating travel and later illicit conduct as covered by § 2423(c))
- Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc) (panel must follow intervening controlling authority; later authority can overrule prior panels)
- United States v. Schmidt, 845 F.3d 153 (4th Cir. 2017) (construing “travels” to include sufficiently transient visits and recognizing limits for permanent resettlement)
- United States v. Jackson, 480 F.3d 1014 (9th Cir. 2007) (discussing broader meanings of "travels" and implications for temporary stays abroad)
- Pierce County v. Guillen, 537 U.S. 129 (2003) (presumption that congressional amendments have real and substantial effect)
- Winship v. United States, 397 U.S. 358 (1970) (due process requires proof beyond a reasonable doubt of every fact necessary to constitute the crime)