and Submitted February 8, 2017 Pasadena, California
from the United States District Court for the Central
District of California D.C. No. 2:07-cr-00168-DSF-1 Dale S.
Fischer, District Judge, Presiding
H. Locklin (argued), Deputy Federal Public Defender; Hilary
L. Potashner, Federal Public Defender; Office of the Federal
Public Defender, Los Angeles, California; for
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
Before: Sidney R. Thomas, Chief Judge, and Andrew J.
Kleinfeld and Jacqueline H. Nguyen, Circuit Judges.
panel vacated a conviction and sentence under the 2005
version of 18 U.S.C. § 2423(c), which applies to a U.S.
citizen "who travels in foreign commerce, and engages in
any illicit sexual conduct with another person," and
remanded, in a case in which the defendant, a U.S. citizen,
drugged and raped several children in Cambodia, where he
claims to have resided for several years.
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 § 2423(c) in effect at the time of the
defendant's illicit sexual conduct was inapplicable to
U.S. citizens living abroad unless they were
traveling-meaning something more than being in transit-when
they had illicit sex. The panel wrote that this subsequent
Congressional pronouncement is clearly irreconcilable with
this court's previous construction of the statute in
United States v. Clark, 435 F.3d 1100 (9th Cir.
2006) (concluding that § 2423(c) "does not require
that the conduct occur while traveling in foreign
commerce"), and that the panel is therefore not bound by
the reasoning in Clark.
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.
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.
NGUYEN, CIRCUIT JUDGE
Pepe, a U.S. citizen, drugged and raped seven children in
Cambodia, where he claims to have resided for several years.
Pepe was convicted of violating 18 U.S.C. § 2423(c),
engaging in illicit sexual conduct in foreign places, and
sentenced to prison for 210 years. The version of the statute
under which he was convicted applied to a U.S. citizen
"who travels in foreign commerce, and engages in any
illicit sexual conduct with another person." 18 U.S.C.
§ 2423(c) (2005). Pepe's illicit sexual conduct
occurred between three and nine months after his return to
Cambodia following a brief trip to the United States to visit
family and attend his daughter's wedding. Pepe contends
that the statutory language didn't encompass his conduct
because, as a resident of Cambodia, he had ceased
"travel[ing] in foreign commerce."
contention runs up against our previous conclusion that the
statute "does not require that the conduct occur
while traveling in foreign commerce."
United States v. Clark, 435 F.3d 1100, 1107 (9th
Cir. 2006). Focusing on the word "and," which
connected the travel with the conduct, we construed §
2423(c) to include individuals who, like Pepe, at some point
traveled in foreign commerce and thereafter engaged
in any illicit sexual conduct. See id.
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." 18 U.S.C. § 2423(c) (2018) (emphasis
added). From the statutory amendment, as well as the
accompanying legislative history, it is evident that §
2423(c) was previously inapplicable to U.S. citizens living
abroad unless they were traveling-meaning something more than
being in transit-when they had illicit sex. Because this
subsequent Congressional pronouncement is clearly
irreconcilable with our prior construction of the statute, we
are not bound by our reasoning in Clark.
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 §
2423(c) does not apply to him. We therefore vacate his
convictions and sentence and remand for further proceedings.
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. He also became involved in community
activities, such as the Phnom Penh Veterans of Foreign Wars
Post and the local Catholic church.
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.
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.
trial, the prosecution presented evidence that Pepe met a
prostitute, Basang, at Sharkey Bar in Phnom Penh about five
years before his arrest. Pepe paid Basang for sex several times,
but she worked for him primarily by procuring girls around
10-12 years old for sex. Basang gave the girls' families
money from Pepe in exchange. Pepe paid Basang's rent and
gave her $300 to help pay for her parents' gravestones.
Basang also translated for him-the girls and their mothers
spoke little or no English, and he could not communicate in
the languages that they spoke, Khmer and Vietnamese.
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 and 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
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.
district court had jurisdiction pursuant to 18 U.S.C. §
3231. We have jurisdiction pursuant to 18 U.S.C. § 3742
and 28 U.S.C. § 1291.
18 U.S.C. § 2423(c) applies to U.S. citizens who reside
in-as opposed to just travel to-a foreign country is a
question of law which we review de novo. See United
States v. Sheldon, 755 F.3d 1047, 1049 (9th Cir. 2014).
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 the 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 ...