UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL JOSEPH PEPE, Defendant-Appellant.
No. 14-50095
United States Court of Appeals for the Ninth Circuit
July 11, 2018
D.C. No. 2:07-cr-00168-DSF-1
FOR PUBLICATION
OPINION
Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding
Argued and Submitted February 8, 2017 Pasadena, California
Filed July 11, 2018
Before: Sidney R. Thomas, Chief Judge, and Andrew J. Kleinfeld and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Nguyen; Dissent by Chief Judge Thomas
SUMMARY*
Criminal Law
The panel vacated a conviction and sentence under the 2005 version of
The defendant contended that the statutory language didn‘t encompass his conduct because, as a resident of Cambodia, he had ceased “travel[ing] in foreign commerce.” The panel held that in light of a 2013 amendment to the statute adding a new basis for criminal liability, as well as the accompanying legislative history, it is evident that the version of
The panel observed that the government appears to dispute the defendant‘s claim that he had resettled in Cambodia. Because the jury was not properly instructed on the travel element, the panel wrote that if the government elects to retry the defendant, it will need to prove that he was still traveling when he committed illicit sexual conduct.
Dissenting, Chief Judge Thomas wrote that Clark, whose holding of the statutory reach of the prior statute is completely consistent with the 2013 amendment, remains good law and is binding on this panel. He wrote further that the panel should not be deciding the question, never argued to the district court, of whether the prior statute applied to citizens who temporarily resided abroad and intended to resettle.
COUNSEL
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.
NGUYEN, Circuit Judge:
Michael Pepe, a U.S. citizen, drugged and raped seven children in Cambodia, where hе claims to have resided for several years. Pepe was convicted of violating
Pepe‘s contention runs up against our previous conclusion that the statute “does not require that the conduct occur while
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.”
Thе 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
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.
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 аnd 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 nongovernmental organizations, Hagar and Agape, on the victims’ behalf.
II.
The district court had jurisdiction pursuant to
Whether
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 thе 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
The offense at issue here,
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
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
On appeal, Clark argued that the statute was an unconstitutional exercise of Congressional power but could “be saved from constitutional scrutiny by interpreting it to require that the illicit sexual conduct take place while the defendant is literally still traveling.” Clark, 435 F.3d at 1107. We disagreed. Observing that § 2423 has “two key determinations“—whether the defendant “travels in foreign commerce” and “engages in any illicit sexual conduct“—we concluded that the statute “does not require that the conduct occur while traveling in foreign commerce.” Clark, 435 F.3d at 1105, 1107; see United States v. Jackson, 480 F.3d 1014, 1017 (9th Cir. 2007) (“In light of Clark, an individual can violate
Although we viewed the statute as “unambiguous” in this respect, Clark, 435 F.3d at 1107, our focus was on the word
Acknowledging a different interpretive possibility in which “and” means “and concurrently,” we dismissed it as leading to absurd results. As a practical matter, we thought it “non-sensical” that Congress would have limited
Implicit in this apparent absurdity, however, was Clark‘s assumption that the meaning of “travels” was limited to “transits.” One travels in that sense by “mov[ing] . . . from one place to another.” Travel, Merriam-Webster, https://www.merriam-webster.com/dictionary/travel (last visited Nov. 8, 2017). But “travel” could also have the broader meaning of “go[ing] on . . . a trip or tour.” Id. As we pointed out the following year, “a person who is temporarily in France or Thailand—on vacation, for example, or on a business trip—but fully intends to return to a permanent residence in the United States is ‘traveling’ as long as he remains in the foreign city . . . .” Jackson, 480 F.3d at 1023.
Employing this broader understanding of “travels,” the statutory language linking travel “and” illicit sexual conduct could mean, consistent with the goal of combatting sex tourism, that the two elements must occur at the same time. So interpreted,
We thus see two plausible interpretations of the statute. In one, “travels” is construed broadly while “and” is construed narrowly to require that the travel and the illicit sexual conduct occur at the same time. In the other—the one adopted in Clark and rejected by the Fourth Circuit in Schmidt—it‘s just the opposite. Travel under this view “end[s] when the citizen arrives in a foreign country.” Jackson, 480 F.3d at 1023. In this construction, as we explained in Clark, the connector “and” necessarily creates an open-ended temporal relationship between the travel and the sexual misconduct in order to save the statute from irrelevance.
C.
Normally, Clark‘s interpretation of the statute would bind subsequent panels, including ours. See, e.g., United States v. Parga-Rosas, 238 F.3d 1209, 1212 (9th Cir. 2001). But there‘s an important exception
The “intervening higher authority” is generally the federal or state court of last resort or an en banc panel of this court. However, Congressional amendments to a statute can also “constitute ‘intervening’ authority for the purposes of our rule.” Landreth v. Comm‘r, 859 F.2d 643, 648 (9th Cir. 1988); see United States v. McNeil, 362 F.3d 570, 574 (9th Cir. 2004) (“[W]hen Congress amends statutes, our decisions that rely on the older versions of the statutes must be reevaluated in light of the amended statute.” (citing Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1172 (9th Cir. 2003))). In particular, “the rule is applicable in cases involving statutory interpretation where Congress has retroactively clarified the meaning of the statute at issue.” Landreth, 859 F.2d at 648. If our case law interpreting a statute is clearly irreconcilable with the text and history of subsequent legislation, we are not bound by the decisions of prior panels. See United States v. Gonzalez-Torres, 309 F.3d 594, 599 (9th Cir. 2002) (citing United States v. Washington, 872 F.2d 874, 880 (9th Cir. 1989)). We are dealing with such a case here.
In 2013, Congress amended
This change to the statute makes no sense as we interpreted the original version in Clark. “When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect.” Pierce County v. Guillen, 537 U.S. 129, 145 (2003). Yet the amendment to
Indeed, that is exactly the government‘s position. It argues that the amendment “was intended to close the loophole of the prior version of the statute that did not criminalize the illicit sexual conduct committed by Americans residing abroad who had not traveled in foreign commerce.” Even if that were plausible in the abstract, it is incongruent with the amendment‘s text.
The offense has always contained two elements: travel in foreign commerce, and the commission of illicit sexual conduct. The amendment concerned the first element, which can now be satisfied in two ways. One either “travels in foreign commerce or resides . . . in a foreign country.”
The word “and,” which connects the first element with the second, now modifies both “travels” and “resides.” With respect to “travels,” we interpreted “and” sequentially in Clark—one travels, completes the travel by arriving in the foreign country, and afterwards engages in illicit sexual
The government‘s explanation for the amendment is also flatly contradicted by the legislative history. See Landreth, 859 F.2d at 648 (looking to both the text of the statutory changes and Congressional statements of purpose); cf. Red Lion Broad. Co. v. FCC, 395 U.S. 367, 380–81 (1969) (“Subsequent legislation declaring the intent of an earlier statute is entitled to great weight in statutory construction.“). The amendment was adopted nearly verbatim from a proposal by the Alliance to End Slavery & Trafficking (“ATEST“), a lobbying organization comprised of various human rights groups. ATEST advocatеd for the change out of concern that the original law “only allows the U.S. government to pursue criminal charges against U.S. citizens . . . who exploit children while traveling in foreign commerce. Due to the use and intent of the word ‘travel,’ this has been interpreted to mean a brief stay and not include resettlement or intent to stay.” ATEST, Recommendations for the Reauthorization of the Trafficking Victims Protection Act of 2000, at 31 (2011), http://www.castla.org/assets/files/2013_TVPRA_Summary.doc (last visited Oct. 25, 2017); see Best Practices and Next Steps: A New Decade in the Fight Against Human Trafficking: Hearing Before the Subcomm. on Afr., Glob. Health, & Human Rights of the H. Comm. on Foreign Affairs, 112th Cong. 139 (2011) (material submitted by David Abramowitz, Director of Policy and Government Relations, Humanity United) (recommending that Congress “[c]riminalize the exploitation of children by U.S. citizens living overseas“).
Congress shared this understanding of the law, citing the amendment to
We thus conclude that Clark‘s construction of
We do not depart from circuit precedent lightly. When intervening higher authority
Departing from precedent might still give us pause if Clark had considered and rejected the interpretation we adopt today. However, Clark‘s analysis focused on the statute‘s constitutionality. In its brief discussion of the statute‘s meaning, Clark weighed only whether “and” should be construed narrowly or broadly. It didn‘t consider this question in the cоntext of whether “travels” could be read more expansively. Just as cases are not precedential for propositions not considered, see United States v. Ramos-Medina, 706 F.3d 932, 938 (9th Cir. 2013), Clark does not foreclose an interpretation of the statute that it didn‘t consider when subsequent Congressional action renders that interpretation the only one possible.
D.
Aside from what the 2013 amendment revealed about Congressional intent, there are good reasons to interpret the former statute as we do. We normally resolve “ambiguity concerning the ambit of criminal statutes . . . in favor of lenity.” Jones v. United States, 529 U.S. 848, 858 (2000) (quoting Rewis v. United States, 401 U.S. 808, 812 (1971)). This canon of construction serves the policy of giving “fair warning . . . to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.” United States v. Bass, 404 U.S. 336, 348 (1971) (quoting McBoyle v. United States, 283 U.S. 25, 27 (1931)). In addition, “because of the seriousness of criminal penalties, and because criminal рunishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity.” Id.
By dispensing with the intent element,
Another venerable canon of cоnstruction instructs us that “ambiguous statutory language [should] be construed to avoid serious constitutional doubts.” FCC v. Fox TV Stations, Inc., 556 U.S. 502, 516 (2009) (citing Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988)). Congress ostensibly enacted
Clark acknowledged the possibility that “a longer gap between the travel and the commercial sex act could trigger constitutional or other concerns.” Clark, 435 F.3d at 1119 n.11. With no statutory limitation on the temporal gap we all but guarantee a stream of litigation over the statutе‘s constitutionality. See Naomi Harlin Goodno, When the Commerce Clause Goes International: A Proposed Legal Framework for the Foreign Commerce Clause, 65 Fla. L. Rev. 1139, 1210-11 (2013) (“[E]ach scenario [under
Nor are Pepe‘s constitutional arguments trivial. “Cases involving the reach of the Foreign Commerce Clause vis-[à]-vis congressional authority to regulate our citizens’ conduct abroad are few and far between.” Clark, 435 F.3d at 1102. There is “strong textual, structural, and historical еvidence that Congress has less—not more—power to impose U.S. law inside foreign nations than inside the several states under the Commerce Clause.” Anthony J. Colangelo, The Foreign Commerce Clause, 96 Va. L. Rev. 949, 1003 (2010); see also United States v. Al-Maliki, 787 F.3d 784, 791 (6th Cir. 2015) (“doubt[ing]” that the Foreign Commerce Clause “include[s] the power to punish a citizen‘s noncommercial conduct while the citizen resides in a foreign nation“). And the government‘s argument under the Necessary and Proper Clause rests on a 1920 case that has been sharply criticized
inevitably force us to grapple with the outer limits of Congress‘s power to regulate the conduct of U.S. citizens residing abroad, we leave that question for another day.
Finally, our interpretation brings us in line with the several other circuits that read “travels” expansively. See Schmidt, 845 F.3d at 157 (“A person may still be traveling even after a significant amount of time in a given location so long as the visit is sufficiently transient or contemplates some future departure.” (citing Jackson, 480 F.3d at 1022)); United States v. McGuire, 627 F.3d 622, 624 (7th Cir. 2010) (“Section 2423(c) was added to punish persons who travel in foreign commerce and have sex with a minor in the course of the trip regardless of what the defendant intended when he set out on it.“); United States v. Frank, 599 F.3d 1221, 1239-40 (11th Cir. 2010) (finding no plain error in proposition that ”
E.
The dissent responds to a straw argument by misstating Pepe‘s position both here and in the district court as one of only temporary residency in Cambodia. According to the enact legislation regulating domestic affairs pursuant to international treaties, courts should tread carefully in expanding that power.” (citing Bond, 134 S. Ct. at 2087-88)); Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 Harv. L. Rev. 1867, 1869 (2005) (arguing that Holland allows treaties to “increase the legislative power virtually without limit“).
dissent, Pepe “did not rest his statutory argument on his alleged intent to resettle” before the district court and “[f]or the first time on appeal . . . argues that his temporary residency . . . took his conduct out of the statutory reach of
The dissent acknowledges that prior to the 2013 amendment,
The dissent‘s only response is that Pepe should have raised his statutory argument in the district court. See Dissent at 25 n.1, 30. In fact, he did. The district court understood Pepe to argue that “he was no longer traveling at the time he allegedly engaged in illicit sexual conduct, because he permanently resided in Cambodia.” The district court rejected this argument on the ground that Pepe “did not have to be traveling at the time he engaged in illicit sexual conduct in order to be liable under
But even if Pepe didn‘t present his precise statutory argument to the district court, there was no reason for him to do so. Under Clark‘s then-binding interpretation of the statutory language, it was a nonstarter. Michael Clark‘s argument that he had permanently resettled in Cambodia was rejected as irrelevant to the statutory definition. See United States v. Clark, 315 F. Supp. 2d 1127, 1134 & n.2 (W.D. Wash. 2004). We agreed with the district court that carving out an exception for permanent residents would “add elements to the crime . . . that simply do not exist in the statute.” Clark, 435 F.3d at 1107 (quoting Clark, 315 F. Supp. 2d at 1130).
The dissent concedes that Pepe‘s statutory theory was “not viable under applicable case law” at the time. Dissent at 30. Indeed, it wasn‘t until five years after Pepe‘s conviction that Congress passed the statutory amendment giving rise to his interpretive challenge. A defendant need not raise a futile defense at trial in order to preserve it for appeal. See United States v. Wilbur, 674 F.3d 1160, 1177 (9th Cir. 2012) (citing United States v. Manning, 56 F.3d 1188, 1195 (9th Cir. 1995)).
Moreover, the government doesn‘t assert that Pepe forfeited his statutory claim. By responding to the merits of Pepe‘s contentions, the government forfeited any forfeiture argument. See United States v. Lewis, 787 F.2d 1318, 1323 n.6 (9th Cir. 1986); see also Tibble v. Edison Int‘l, 843 F.3d 1187, 1196 (9th Cir. 2016) (en banc).
We do not lightly overturn Pepe‘s convictions. But we cannot uphold his 210-year sentence under a statute that he may not have violated simply because his reprehensible conduct harmed vulnerable children. Due process requires “proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). The government has not met this burden with respect to the travel element.
IV.
We hold that a conviction under
The government appears to dispute Pepe‘s claim that he had resettled in Cambodia, citing among other things Pepe‘s post-arrest letters to the U.S. ambassador and various family members expressing his intent to register his Cambodian marriage and return to the United States with his wife. Because the jury was not properly instructed on the travel element, we vacate
VACATED and REMANDED.
THOMAS, Chief Judge, dissenting:
United States v. Clark, 435 F.3d 1100 (9th Cir. 2006) remains good law and is binding on this panel. It is not “clearly irreconcilable” with the 2013 amendment to
For the first time on appeal, Pepe argues that his temporary residency, by itself, took his conduct out of the statutory reach of
We, of course, presume as a general rule that Congressional amendments are intended “to have real and substantial effect.” Pierce County v. Guillen, 537 U.S. 129, 145 (2003). However, the principles of statutory construction do not end there. “The mere fact of an
amendment itself does not indicate that the legislature intended to change a law.” Callajas v. McMahon, 750 F.2d 729, 731 (9th Cir. 1984). Indeed, we also presume that Congress “had knowledge of the interpretation given to the incorporated law, at least insofar as it аffects the new statute.” Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 802-03 (1985) (quoting Lorillard v. Pons, 434 U.S. 575, 580-81 (1978)). Further, “when ‘judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its . . . judicial interpretations as well.’ ” Merrill Lynch v. Dabit, 547 U.S. 71, 85-86 (2006) (quoting Bragdon v. Abbott, 524 U.S. 624, 645 (1998)).
Thus, we presume that, in enacting the 2013 amendments, Congress was well aware of the prior judicial interpretations of the prior statute. Although the underlying
The Fourth Circuit reached the same conclusion that arrival in a country did not terminate the statutory reach of
Indеed, federal courts have uniformly and repeatedly applied the original statute to capture precisely this type of conduct. See, e.g., Schmidt, 845 F.3d at 155 (applying the statute to a citizen who fled to the Philippines and then Cambodia a year later); Clark, 435 F.3d at 1103 (convicted defendant repeatedly molested young boys while residing in Cambodia from 1998 until extraction in 2003, with annual trips back to the United States); United States v. Pendleton, 658 F.3d 299, 301 (3d Cir. 2011) (convicted defendant molested a minor six months after arrival in Germany);
United States v. Flath, No. 11-CR-69, 2011 WL 6299941, at *1, *12 (E.D. Wis. Sept. 14, 2011), report and recommendation adopted in relevant part, 845 F. Supp. 2d 951 (E.D. Wis. 2012) (defendant was indicted in 2010 despite maintaining living in Belize for four years).
Significantly, both Clark and Schmidt stand for the proposition that living abroad alone did not place the defendants out of the reach of
In sum, when Congress passed the 2013 amendments, it was aware of the uniform judicial decisions interpreting
There were other judicial observations on the prior statute that were doubtless important to Congress. No case prescribed a temporal limit as to the statute‘s reach on the citizen‘s presence in a foreign country. However in United States v. Jackson, 480 F.3d 1014 (9th Cir. 2007) we construed Clark as implying that “travel can end for a United States citizen at some point while still abroad,” and we suggested that the statute did not reach citizens who had permanently resettled in a foreign country because their foreign travel had ended. Id. at 1023. Schmidt also recognized the possibility that a citizen‘s permanent resettlement in a foreign country might place the citizen‘s conduct beyond the reach of the statute. 845 F.3d at 158. However, Schmidt held that “[w]hile intent to permanently resettle may be one factor in determining when relevant travel in foreign commerce comes to an end, it is not dispositive.” Id. Thus, at the time Congress passed the amendments, applicable case law interpreting the prior statute suggested that
In short, when Congress passed the 2013 amendments, we presume it was aware of judicial interpretations of the existing statute, holding that: (1) the statute applied to conduct after the citizen arrived in the foreign country, even if the citizen had been abroad for a significant time and had taken up temporary residency, and (2) the statute likely did not apply to citizens who had permanently resettled in a foreign country. Because Congress reenacted the same language that courts had construed, we presume that Congress intended to incorporate those judicial interpretations, rather than supplant them. Merrill Lynch, 547 U.S. at 85-86. By adding permanent residency to the statute, it was expanding the statutory reach, not contracting. Thus, the amendments had “real and substantial effect,” but did not alter existing law аs to construction of the prior statute. To the extent that the new language clarified that the statute applied to temporary residency, it was merely a clarifying amendment, not a substantive change in the existing law. ABKO Music Inv. v. Lavere, 217 F.3d 684, 691 (9th Cir. 2000). It is implausible to believe that Congress intended through the 2013 amendments to narrow the application of the prior statute.
Thus, there is nothing in the 2013 amendments that is “clearly irreconcilable” with Clark, and certainly nothing that would justify a three judge panel overruling it.
Under Clark, Schmidt, and every other federal case construing the prior version of
In sum, under Clark, the prior version of
For these reasons, I respectfully dissent.3