United States v. Richard Schmidt
2017 U.S. App. LEXIS 105
4th Cir.2017Background
- Richard Schmidt, a U.S. citizen with a long history of sexual offenses against boys, pleaded guilty to 18 U.S.C. § 2423(c) for illicit sexual conduct in Cambodia in Dec. 2003 and received 15 years plus lifetime supervised release.
- Schmidt fled the U.S. in June 2002 to the Philippines to avoid arrest, worked there on temporary permits, lived on tourist visas, and later fled to Cambodia in Dec. 2003 after Philippine authorities pursued him.
- He entered Cambodia on a one-month tourist visa, frequented guesthouses known for sex tourism, and committed the charged illicit sexual conduct there.
- Schmidt filed a § 2255 petition claiming actual innocence: he argued his "travel in foreign commerce" ended during his extended stay in the Philippines, severing the statutory nexus required for § 2423(c) before the conduct in Cambodia.
- The district court agreed and vacated the conviction; the government appealed.
- The Fourth Circuit reviewed de novo and reversed, holding Schmidt’s travel remained "in foreign commerce" through his time abroad and thus the conviction on Count 10 should be reinstated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does "travel in foreign commerce" end for § 2423(c)? | Travel ended during Schmidt’s prolonged stay in the Philippines; nexus to the U.S. was severed before Cambodia conduct. | Travel continues until return to U.S. or permanent resettlement; Schmidt remained a transient visitor and traveled on a U.S. passport. | Travel continued from U.S. departure through the Cambodia offense; conviction reinstated. |
| Does using local visas/employment/licenses show termination of travel? | Local work permit, driver’s license, and months-long residence in Philippines show end of travel. | Temporary visas, nonresident permits, lapses, maintaining U.S. assets, and use of U.S. passport indicate transience. | Court found these factors insufficient to show permanent resettlement; travel persisted. |
| Is subjective intent dispositive to end travel? | Schmidt claimed no intent to return to U.S.; that implies travel ended. | Element is objective; subjective claims are not dispositive without supporting objective indicia. | Held intent is only one factor and not dispositive; objective facts controlled. |
| Can intermediate or multi-stop travel sever nexus to the U.S.? | A later stop can sever nexus if sufficiently permanent. | Short stops or intermediate stays do not sever nexus; statute covers continued travel until resettlement or return. | Held intermediate stops do not defeat nexus; nexus persists until permanent resettlement or return. |
Key Cases Cited
- United States v. Bollinger, 798 F.3d 201 (4th Cir. 2015) (discussing § 2423(c) purpose and nexus requirement)
- United States v. Clark, 435 F.3d 1100 (9th Cir. 2006) (§ 2423(c) does not require conduct to occur while en route)
- United States v. Jackson, 480 F.3d 1014 (9th Cir. 2007) (travel ends upon permanent resettlement; facts showing domicile can end travel)
- United States v. Pendleton, 658 F.3d 299 (3d Cir. 2011) (Foreign Commerce Clause requires a nexus with the U.S.)
- United States v. Weingarten, 632 F.3d 60 (2d Cir. 2011) (rejecting overly broad definition of § 10’s "foreign commerce" without U.S. nexus)
- Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (U.S. 1969) (subsequent legislation interpreting earlier statutes is entitled to weight)