United States v. Park

Citation: Not availableDocket: Criminal No. 2016-0009

Court: District Court, District of Columbia; February 27, 2018; Federal District Court

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Defendant Joseph Ricky Park faces a one-count indictment for engaging in illicit sexual conduct in Vietnam, violating 18 U.S.C. §§ 2423(c) and (e). Park moves to dismiss the indictment on three grounds: 1) Congress lacked constitutional authority to enact § 2423(c); 2) the statute infringes on his due process rights; and 3) it violates the Ex Post Facto Clause. The court emphasizes the need to combat child exploitation but finds that applying § 2423(c) to Park's alleged actions is unconstitutional, granting his motion to dismiss.

Park, a U.S. citizen, has lived outside the U.S. for over fourteen years, residing in multiple countries, including Vietnam from 2012 to 2015. The government alleges that in January 2015, Park invited three minor boys to his apartment under the pretense of English instruction, where he allegedly inappropriately touched one boy and attempted further sexual conduct. Vietnamese authorities expelled Park in October 2015 for working on a tourist visa. Prior to leaving Vietnam, he instructed a friend to remove cash and personal items from his apartment. Subsequent searches of these items uncovered evidence of child pornography dating from 2013 to 2015. Park was indicted on January 13, 2016, for illicit sexual conduct with a minor and the production of child pornography. The statutory framework for these charges stems from the PROTECT Act, enacted in 2003, which criminalizes certain behaviors involving foreign travel and illicit sexual conduct.

On March 7, 2013, Congress amended 18 U.S.C. § 2423(c) to include U.S. citizens and permanent residents who engage in illicit sexual conduct while residing abroad. The statute imposes penalties of up to 30 years imprisonment for such conduct. In May 2015, the definition of "illicit sexual conduct" was further amended to include the production of child pornography, which now forms the basis for charges in this case, based only on images produced after May 30, 2015. A defendant can challenge the indictment's constitutionality under Federal Rule of Criminal Procedure 12(b)(3)(B), either on its face or as applied to their conduct. A facial challenge requires demonstrating that the statute is unconstitutional in all scenarios, while an as-applied challenge only needs to show unconstitutionality in context to the defendant's actions. When considering a motion to dismiss, the court must accept the truth of the allegations in the indictment. The defendant, Park, seeks dismissal on three grounds: Congress lacked authority to enact § 2423(c), it violates his Due Process rights due to being unfair and arbitrary, and it contravenes the Ex Post Facto Clause by retroactively criminalizing his residency abroad. It is noted that Congress's authority to enact such laws is presumed constitutional, with the judiciary maintaining that assumption unless proven otherwise based on constitutional principles.

Legislative powers are defined and limited by the Constitution, requiring all congressional laws to be based on enumerated powers. In this case, the court concludes that Congress lacked constitutional authority to enact section 2423(c). The defendant, Park, also contends that the indictment should be dismissed due to an illegal arrest, although he provides minimal support and aims to preserve the issue for future review.

The Foreign Commerce Clause, allowing Congress to regulate foreign commerce, has not been deeply analyzed by the Supreme Court, which has not clearly differentiated it from the Interstate Commerce Clause. The Foreign Commerce Clause is considered at least as broad as the Interstate Commerce Clause. Courts in this jurisdiction have applied the framework established in United States v. Lopez to assess the constitutionality of laws enacted under the Foreign Commerce Clause.

The government argues for a modified Lopez framework, referencing various circuit cases that have analyzed whether regulated activities have a demonstrable effect on foreign commerce. The court opts to apply the Lopez framework due to its historical application in this jurisdiction and the absence of clear guidance from higher courts.

In Lopez, the Supreme Court identified three categories of activities Congress may regulate under its commerce power: 1) channels of interstate commerce, 2) instrumentalities of interstate commerce, and 3) activities substantially affecting interstate commerce. The government claims that section 2423(c) meets all three Lopez criteria, but the court disagrees. Specifically, regarding the first criterion, the government asserts that section 2423(c) protects foreign commerce channels from harmful uses, but relevant case law indicates that such protection requires a statute to have a jurisdictional element linking it explicitly to foreign commerce channels.

In United States v. Pendleton, the court upheld the validity of section 2423(c) under the Foreign Commerce Clause, ruling that the statute's criminalization of travel in foreign commerce established an "express connection" to foreign commerce. Conversely, in United States v. Homaune, the court found that the International Parental Kidnapping Crime Act had a "jurisdictional hook" linking it to foreign commerce by criminalizing the act of retaining a child outside the U.S. However, section 2423(c), as applied to the defendant Park, does not establish a similar connection; it criminalizes residing in Vietnam without addressing travel or commerce, failing to meet the first prong of the Lopez test. 

Regarding the second prong, the government argued that Park’s U.S. passports and visas were “instrumentalities” of commerce, but section 2423(c) does not regulate their use or any means of communication associated with obtaining them. Thus, it does not satisfy the requirement to direct or inhibit these instrumentalities. 

Finally, under the third prong of Lopez, which assesses the "substantial effect" on foreign commerce through four factors, the court evaluates whether the activity relates to commerce, the presence of a jurisdictional element in the statute, any congressional findings on the effects of the activity on interstate commerce, and whether the connection is too tenuous to be considered substantial.

The factors considered do not support Congress's authority to enact section 2423(c) regarding the charges in this case. The government concedes that the alleged conduct does not involve a commercial transaction but argues, citing United States v. Sullivan, that non-commercial child pornography is economic activity. However, this reliance is inappropriate, as Sullivan involved interstate trade in child pornography, while the production in this case occurred solely in Vietnam without evidence of a commercial transaction or interstate movement. 

Furthermore, section 2423(c) lacks an express jurisdictional element linking it to foreign commerce. Park, charged with illicit conduct while in Vietnam, does not have a jurisdictional connection as seen in cases involving travel in foreign commerce. The government has not provided evidence indicating that non-commercial sexual conduct by Americans abroad affects foreign commerce, nor does the legislative history of section 2423(c) address this issue. 

Lastly, the relationship between non-commercial sexual activity occurring in Vietnam and foreign commerce is too weak to be considered substantial. The government posits a rational basis for Congress's conclusion that such conduct affects foreign commerce, suggesting that failure to regulate it could normalize sex with minors, thereby influencing the commercial market. However, this argument lacks a direct connection, weakening the government's position.

The connection between non-commercial illicit sexual conduct and the commercial market for such conduct is deemed overly speculative and insufficiently substantial, as highlighted by Justice Scalia's remarks in Gonzales v. Raich. The court references Morrison and Lopez, which rejected the government's claims that gender-motivated violence and firearm possession, respectively, could be regulated under the Commerce Clause based on indirect effects on interstate commerce. In United States v. Reed, the court ruled that the criminalization of a defendant's sexual abuse of his daughter, without commercial intent, did not contribute to Congress's efforts to combat international child trafficking and sex tourism, as such a marketplace relies on commerce and travel. Similarly, convicting Park for non-commercial sexual conduct with minors in Vietnam does not aid in eliminating the marketplace for sexual exploitation. The government argues for a different standard of review based on the "demonstrable effect" test, but the court contends that even under this standard, there remains no sufficient nexus between the alleged non-commercial conduct and the commercial market in question. Overall, the court finds that distant inferences fail to establish a legitimate regulatory framework under Congress's authority.

The court concludes that section 2423(c), as amended, exceeds Congress's authority under the Foreign Commerce Clause and the Necessary and Proper Clause. The Necessary and Proper Clause allows Congress to enact laws that are necessary and appropriate to execute its constitutionally enumerated powers, specifically the President's treaty-making authority. The Supreme Court requires that laws must be rationally related to the implementation of such powers, with an inquiry into whether Congress's means are reasonably adapted to legitimate ends. While Congress's powers under this clause are broad, they are not unlimited, and any federal statute must not only be authorized by the Constitution but also not prohibited by it.

The government claims that section 2423(c) was enacted to implement the Optional Protocol related to the sale of children, child prostitution, and child pornography, ratified in 2002. The Optional Protocol mandates that States Parties prohibit these offenses and ensure they are covered by criminal law, whether committed domestically or transnationally. However, the court finds that the legislative history of section 2423(c) shows no intention from Congress to enact it in line with the Optional Protocol, as Congress did not reference it during enactment or amendment. Furthermore, even if there had been such an intention, the court argues that section 2423(c), as applied to non-commercial conduct, is not rationally related to the Optional Protocol's goal of addressing international child trafficking and protecting children from economic exploitation.

The signatories of the Optional Protocol were required to ensure their laws addressed child exploitation offenses, both domestically and transnationally. The court determines that the Necessary and Proper Clause does not empower Congress to enact section 2423(c), as legislative history reveals no intent to align this statute with the Optional Protocol—Congress did not reference the Protocol during its enactment or amendments. Even if there had been such intent, section 2423(c) does not rationally relate to the Protocol's goal of addressing grave concerns about international child trafficking. The Protocol emphasizes the protection of children from economic exploitation and the need for laws to reduce demand for child exploitation activities. In the case at hand, section 2423(c) criminalizes non-commercial sexual abuse and child pornography production by an American abroad, which is not effectively linked to implementing the Protocol’s objectives. There is no evidence of any remuneration or exchange for Park's conduct, which fails to address child trafficking or economic exploitation. Furthermore, the conduct in question does not meet the requirements of being domestic or transnational as stipulated in Article 3 of the Optional Protocol.

State Parties must ensure that specific acts are criminalized under their laws, applicable to both domestic and transnational offenses. The section 2423(c) statute, which addresses the non-commercial sexual abuse of children, is criticized for only applying to conduct occurring in Vietnam, thus failing to align with the Optional Protocol's focus on international child trafficking. This lack of a transnational element weakens the statute's justification under the Necessary and Proper Clause, as it does not rationally relate to the treaty's objectives. The government’s reliance on cases involving international travel and illicit conduct does not support the application of section 2423(c) to Park’s actions, which were limited to Vietnam after his departure from the U.S. Additionally, while the Optional Protocol mandates criminalization of child pornography production, it applies only to domestic or transnational offenses, not to acts committed solely in another country. The court finds that allowing section 2423(c) to enforce the Optional Protocol would extend the treaty's scope improperly into domestic matters, which may exceed the President's negotiation authority. Ultimately, the court concludes that section 2423(c) surpasses Congress's treaty implementation powers. The government also asserts that Congress’s authority for the statute is derived from its broader powers over citizens and foreign affairs, independent of constitutional enumerations.

Congress's authority to extend federal criminal laws to actions by U.S. citizens abroad is central to the government's argument regarding the constitutionality of section 2423(c). The government asserts that this plenary power justifies finding the statute constitutional based solely on the U.S. ability to apply its laws extraterritorially. However, it is established that any legislative power must be rooted in the Constitution, a principle the government fails to substantiate with legal authority. While some cases cited by the government affirm Congress's ability to enact laws with extraterritorial effects, they do not support the notion that such authority alone can validate a law's constitutionality. The government also argues, referencing United States v. Curtiss-Wright Export Corp., that Congress possesses inherent power over foreign relations; however, this case primarily affirms presidential authority in that domain. Additionally, the Ninth Circuit case United States v. Clark suggests Congress's plenary foreign affairs authority might support section 2423(c), yet it ultimately validates the statute under the Foreign Commerce Clause, not an inherent power.

The court concludes that it does not find case law supporting the government's assertion of plenary powers over citizens and foreign affairs, which would allow Congress to act without constitutional authority. Consequently, the court determines that Congress lacked the authority to enact section 2423(c), which criminalizes Park's actions of residing in Vietnam and engaging in illicit sexual conduct. As a result, the court does not need to consider Park's arguments related to the Due Process and Ex Post Facto Clauses or his broader facial challenge to section 2423(c). Despite recognizing the serious nature of the charges, the court emphasizes that constitutional authority is essential for criminalizing conduct, and it finds that such authority is absent in this case. Therefore, Park’s motion to dismiss is granted. The ruling was issued on February 28, 2018, by United States District Judge Tanya S. Chutkan.