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United States v. Pepe

United States Court of Appeals, Ninth Circuit

July 11, 2018

United States of America, Plaintiff-Appellee,
v.
Michael Joseph Pepe, Defendant-Appellant.

          Argued and Submitted February 8, 2017 Pasadena, California

          Appeal 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

          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.

          Before: Sidney R. Thomas, Chief Judge, and Andrew J. Kleinfeld and Jacqueline H. Nguyen, Circuit Judges.

         SUMMARY[*]

         Criminal Law

         The 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.

         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 § 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.

         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.

          OPINION

          NGUYEN, CIRCUIT JUDGE

         Michael 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."

         Pepe's 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.

         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." 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.

         The 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.

         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.

         At trial, the prosecution presented evidence that Pepe met a prostitute, Basang, at Sharkey Bar in Phnom Penh about five years before his arrest.[2] 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.

         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 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 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 18 U.S.C. § 3231. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

         Whether 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).

         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 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 ...


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