NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-2664
UNITED STATES OF AMERICA
v.
ANTHONY MARK BIANCHI
a/k/a Mark
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 06-cr-00019-001)
District Judge: Honorable Bruce W. Kauffman
Argued: May 11, 2010
Before: BARRY, ROTH, Circuit Judges and HAYDEN,* District Judge
(Opinion Filed: July 2, 2010)
David Rudovsky, Esq. (Argued)
Jonathan H. Feinberg, Esq.
Kairys, Rudovsky, Messing & Feinberg
718 Arch Street
Suite 501 South
Philadelphia, PA 19106
*
Honorable Katharine S. Hayden, United States District Judge for the District of New
Jersey, sitting by designation.
George W. Buehler, Esq.
Gregory R. Ellis, Esq.
Mark J. Geragos, Esq.
Eugene P. Harris, Esq.
Shepard S. Kopp, Esq.
Geragos & Geragos
644 South Figueroa Street
Los Angeles, CA 90017
Counsel for Appellant
Michael L. Levy, Esq. (Argued)
Mary C. Frye, Esq.
Paul G. Shapiro, Esq.
Robert A. Zauzmer, Esq.
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
OPINION
BARRY, Circuit Judge.
Anthony Mark Bianchi appeals from the judgment of sentence, following a jury
trial, in this sex tourism case. He argues that: (1) the government violated his due process
and compulsory process rights by intentionally preventing a defense witness from
appearing at trial; and (2) 18 U.S.C. § 2423(c) (engaging in illicit sexual conduct in
foreign places) was beyond Congress’s power under the Foreign Commerce Clause to
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enact. We will affirm.
I.
This is an extremely disturbing case involving a defendant who repeatedly traveled
around the world to meet and engage in sexual conduct with young boys. In the sixteen-
month span between December 2003 and March 2005, Bianchi traveled twice to the
impoverished village of Trejubeni, Moldova and twice to Romania, each time seeking out
boys between the approximate ages of twelve and fifteen. Bianchi was assisted by his
unindicted Moldovan co-conspirator, Ion Gusin, who served as a translator and helped
Bianchi meet the boys and arrange sexual encounters.1 Bianchi attempted to ingratiate
himself with these boys and their families by buying them gifts, giving them money, and
taking them on outings. He engaged in sexual conduct with several boys – including
performing oral sex on them and anally raping them – and attempted to engage in sexual
conduct with several others.
Law enforcement authorities intercepted Bianchi at the Philadelphia airport in
March 2005 as he returned from Romania. They searched his luggage and found a
children’s game, lubricant, a piece of paper containing the name and address of a
Romanian boy (A.C.N.), a letter from “Mark” to an unspecified recipient discussing “the
meaning of true friendship,” and a travel notebook of sorts that the government
1
Gusin was convicted in Moldova on charges of child trafficking and recruiting and
transporting children for commercial sexual purposes. He is serving a twenty-year prison
sentence.
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maintained was a log of sexual abuse. Among other evidence, Bianchi’s telephone
records showed nearly seventy calls to A.C.N. during a five-month period in 2005, and
Bianchi had purchased airplane tickets to Thailand for an October 2005 trip for himself,
Gusin, and M.M. (a victim he had met in Moldova and traveled with in Romania).
Bianchi was charged in a second superseding indictment with one count of
conspiracy to engage in illicit sexual conduct in foreign places, 18 U.S.C. § 2423(e)
(Count One); five counts of traveling with the intent to engage in illicit sexual conduct, 18
U.S.C. § 2423(b) (Counts Two, Four, Six, Eight, and Nine); four counts of engaging in
illicit sexual conduct in foreign places, 18 U.S.C. § 2423(c) (Counts Three, Five, Seven,
and Ten); and two counts of using a facility in foreign commerce to entice a minor to
engage in sexual activity, 18 U.S.C. § 2422(b) (Counts Eleven and Twelve). He moved
to dismiss the indictment on several grounds, including a challenge to Congress’s
constitutional authority to enact 18 U.S.C. § 2423(c) under the Foreign Commerce
Clause. The District Court denied the motion.
Days before trial was set to begin, four of the victim-witnesses reported to U.S.
officials in Moldova that they had just been approached at their homes by Serghei Gusin,
Ion Gusin’s brother, and Victor Levintsa, a Moldovan lawyer assisting Bianchi’s defense
team, who tried to dissuade them from coming to the United States to testify at Bianchi’s
trial. After the boys arrived in Philadelphia for the trial, they were interviewed by the
prosecutors and Immigration and Customs Enforcement agents. Each boy identified
Levintsa and reported him as saying things such as: “Aren’t you afraid to go be a witness
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against Mark [Bianchi] and Gusin?”; “The judge is black and has a face like a monkey,
like King Kong and will scare you”; and “America is a very poor country, maybe you
won’t come back.” (Supp. App. at 2-9.) Two days before trial, on July 14, 2007, the
government notified the District Court and defense counsel that it was seeking an arrest
warrant for Levintsa for witness intimidation, in violation of 18 U.S.C. § 1512(b)(1).
Later that day, a magistrate judge issued the warrant.
Bianchi’s counsel argued that the arrest warrant “completely scuttles the defense”
because Levintsa was to serve as a critical defense witness. (App. at 282.) The parties
disputed how important Levintsa was to the defense and whether defense counsel had
actually been planning to call him as a witness. Indeed, the government told the District
Court that it was unaware of even the possibility that Levintsa would be a witness until
three hours after it informed defense counsel of the warrant. In response to the Court’s
concerns, however, the government withdrew the complaint and arrest warrant, and the
Court made clear that it would enforce the government’s representation that Levintsa
would not be arrested if he traveled to the United States.
Nine of the alleged victims testified at trial and were cross-examined with their
prior statements to the police and at Gusin’s Moldovan trial, some of which were
inconsistent with their testimony at Bianchi’s trial. In addition, several adults Bianchi
encountered in Romania testified that he expressed interest in meeting families with
children.
Levintsa refused to come to the United States and defense counsel arranged for
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him to testify by video from Moldova. Levintsa then executed a declaration stating that
he was “no longer willing to cooperate with the defense of Mr. Bianchi due to the
intimidation of both the United States Attorney General and the Moldovan Police” (Supp.
App. at 31) because a Moldovan police officer had contacted him for questioning on the
day he was to have given his video testimony. The government obtained a letter from the
U.S. Ambassador to Moldova, stating that the interview requested by the Moldovan
authorities was in no way connected to the U.S. Embassy, and confirming that Levintsa
was not under criminal investigation and was free to come to the United States to testify.
A letter of assurance from the Moldovan Ministry of Interior also promised that Levintsa
was not the target of a criminal investigation, was free to leave Moldova, and could
provide video testimony.
Levintsa continued to refuse to come to the United States or to testify by video.
Faulting the government for having set this series of events in motion with its notification
that it would seek an arrest warrant, the District Court permitted defense counsel to
prepare and read to the jury an eight-page declaration by Levintsa, covering subjects such
as tourism in Moldova, the practice of extortion, police interrogation tactics, his
experience attending Ion Gusin’s trial, and his interviews with several of the alleged
victims, including what they told him and his impressions of their demeanor. Few of the
government’s objections were sustained, with the Court permitting what it called, in a
remarkable understatement, “a certain amount of latitude” in light of the circumstances.
(App. at 1189.) The Court instructed the jury that Levintsa’s absence was not attributable
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to Bianchi and that it should consider the declaration as if he had so testified in open
court.
After a nearly three-week trial, the jury convicted Bianchi on all counts, except for
Counts Six and Seven which had earlier been dismissed on the government’s motion.2
Bianchi filed a motion for judgment of acquittal or a new trial, arguing that the
government’s notification of its plan to obtain the arrest warrant deprived him of his
ability to call Levintsa as a witness and benefit from his assistance during the trial. After
several hearings in an effort, as the District Court put it, to “bend[] over backwards” for
the defense (App. at 1608), the Court denied Bianchi’s motion. It found “as a fact that the
decision to notify Levintsa of the arrest warrant was designed to deter him from traveling
to the United States to assist with [Bianchi’s] trial” but that there was no evidence that the
government knew that Levintsa would be a witness.3 (Id. at 22-23.) The Court ultimately
held that Bianchi was not prejudiced by Levintsa’s absence at trial because the jury was
read his declaration.
On May 27, 2009, the District Court sentenced Bianchi to concurrent 300 month
terms of imprisonment on each of the counts of conviction, lifetime supervised release,
2
With respect to Count Three (engaging in illicit sexual conduct in a foreign place, on
or about December 2 through 24, 2003) and Count Five (engaging in illicit sexual
conduct in a foreign place on or about January 17 through February 8, 2004), the jury
found Bianchi guilty with respect to two of the three victims named in each count.
3
The issue was only whether the notification was proper, not whether the government
properly obtained the arrest warrant based on probable cause.
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restitution of $47,951.20, a fine of $50,000, and a $1,000 special assessment. Bianchi
timely appealed.4
II.
A.
Bianchi argues that the government intentionally prevented Levintsa from
appearing at trial, in violation of his Fifth Amendment right to due process and his Sixth
Amendment right to compulsory process.5 See Lambert v. Blackwell, 387 F.3d 210, 260
(3d Cir. 2004) (“Intimidation or threats from the government that dissuade a potential
witness from testifying may infringe” on these constitutional rights.). As an initial matter,
Bianchi has not pointed to any evidence that the defense team was planning to call
Levintsa as a witness during trial; indeed, the first mention of this possibility was
apparently after the government announced its intention to seek a warrant for Levintsa’s
arrest, and no witness statement of his had been provided although witness statements had
been ordered to be turned over pretrial. Bianchi also argues that Levintsa would have
assisted the defense team during trial with his knowledge of Moldova, but has cited no
case holding that a defendant’s Fifth or Sixth Amendment rights had been violated
4
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
5
There is “apparently little, if any, difference in the analysis” between Fifth
Amendment due process and Sixth Amendment compulsory process claims. Gov’t of
Virgin Islands v. Mills, 956 F.2d 443, 445 n.4 (3d Cir. 1992).
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because he was deprived of this sort of trial assistance.6 But even assuming that Levintsa
was going to testify for the defense, it is eminently clear that Bianchi was not prejudiced
by his absence. To the contrary, the declaration admitted in Levintsa’s absence was far
more favorable to the defense than Levintsa’s testimony – which would have been subject
to withering cross-examination – ever would have been.
We will assume for purposes of analysis, albeit with no great confidence, that the
District Court correctly decided that the government intentionally prevented Levintsa’s
appearance at trial. Contrary to Bianchi’s suggestion, however, this was not a per se
violation of his constitutional rights. Rather, Bianchi was required to show that
Levintsa’s testimony would have been material and favorable to his defense. United
States v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982); Gov’t of Virgin Islands v. Mills,
956 F.2d 443, 446 (3d Cir. 1992). Evidence is material “only if there is a reasonable
likelihood that the testimony could have affected the judgment of the trier of fact.” Mills,
956 F.2d at 446 (quoting Valenzuela-Bernal, 458 U.S. at 874); see also United States v.
Santtini, 963 F.2d 585, 596-97 (3d Cir. 1992) (“As a general matter, even when actions
by the prosecution appear to deprive a criminal defendant of his constitutional right to
present a defense, no remedy will lie for such infringement absent a showing that the
government has caused the unavailability of material evidence and has done so in bad
faith.”).
6
To the extent that Bianchi argues that Levintsa would have provided trial assistance
and served as a witness, there was a sequestration order in place during trial.
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This standard was clearly not satisfied here. Levintsa primarily proffered
cumulative impeachment evidence. Importantly, however, that evidence was in fact
presented to the jury in the form of his declaration,7 a declaration as to which defense
counsel was given virtually free reign and which contains numerous statements that
almost certainly would not have been admissible had Levintsa appeared at trial. The
government did not attack the veracity of Levintsa’s statements or his credibility, and
Levintsa was not subject to cross-examination. Had he been, the government surely
would have savaged him and might well have recalled the victims on rebuttal to tell the
jury how Levintsa had intimidated them. In short, Levintsa’s live testimony would have
been devastating – to the defense.
In these circumstances, even in the unlikely event that Levintsa would have been a
witness at trial, there is no “reasonable likelihood that the testimony could have affected
the judgment of the trier of fact” in “a probability sufficient to undermine confidence in
the outcome.” Mills, 956 F.2d at 446 (citations omitted). Accordingly, Bianchi’s claims
that the government violated his due process and compulsory process rights are without
merit.
7
Other courts have found that substituting other evidence for oral testimony is
acceptable when a witness becomes unavailable due to some kind of government conduct.
See Buie v. Sullivan, 923 F.2d 10, 12 (2d Cir. 1990) (police officer testified at trial
regarding an exculpatory statement the non-testifying witness made about the defendant,
when the witness was arrested before trial and declined to testify); United States v.
Capozzi, 883 F.2d 608, 615 (8th Cir. 1989) (excerpts from earlier sworn deposition
testimony from non-testifying witnesses presented to jury, when witnesses declined to
testify after government named them as unindicted co-conspirators).
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B.
Bianchi asks us to vacate his convictions on Counts Three, Five, and Ten, which
charged him with engaging in illicit sexual conduct in foreign places, or attempting to do
so, in violation of 18 U.S.C. § 2423(c). It bears repeating that he does not challenge, on
grounds other than the Levintsa issue, his convictions on the other seven counts on which
he received, along with the § 2423(c) counts, concurrent sentences of 300 months
imprisonment. Nor does he seriously challenge the sufficiency of the evidence with
respect to Counts Three, Five, and Ten.8 Instead, he argues only that Congress exceeded
its authority under the Foreign Commerce Clause when it enacted this statute.9
Section 2423(c) provides:
Any United States citizen or alien admitted for permanent residence who
travels in foreign commerce, and engages in any illicit sexual conduct with
another person shall be fined under this title or imprisoned not more than 30
years, or both.
18 U.S.C. § 2423(c).10 Illicit sexual conduct is defined as:
8
Nor could he credibly do so. For example, E.C. (a victim named in Count Three)
testified that Bianchi performed oral sex on him and paid him 200 lei in Moldovan money
after E.C. stayed with Bianchi overnight. V.S. (a victim named in Count Five) testified
that Bianchi left 400 lei at his home after he stayed overnight in the same bed as V.S. and
touched him, saying that the money was for letting him sleep in the house. M.M. (the
victim named in Count Ten) testified that Bianchi gave him a birthday gift of $300 during
their trip to Romania, during which they engaged in sexual conduct.
9
The Commerce Clause grants Congress the authority to “regulate Commerce with
foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const.
art. I, § 8 cl. 3.
10
Section 2423(c) was enacted in 2003 as a provision of the Prosecutorial Remedies
and Other Tools to End the Exploitation of Children Today Act of 2003 (“PROTECT
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(1) a sexual act (as defined in section 2246) with a person under 18 years of
age that would be in violation of chapter 109A if the sexual act occurred in
the special maritime and territorial jurisdiction of the United States; or (2)
any commercial sex act (as defined in section 1591)11 with a person under
18 years of age.
18 U.S.C. § 2423(f). Thus, the statute criminalizes both non-commercial and commercial
illicit sexual conduct committed by U.S. citizens (or permanent residents) in foreign
places, and the jury in this case was instructed as to both.12
The Ninth Circuit has held that § 2423(c) is constitutional with respect to
commercial illicit sexual conduct, United States v. Clark, 435 F.3d 1100 (9th Cir. 2006),
cert. denied, 549 U.S. 1343 (2007), and we find its reasoning persuasive as to that prong
of the statute.13 The Clark Court carefully considered the statute and concluded that Ҥ
Act”), Pub. L. No. 108-21, 117 Stat. 650 (2003). See United States v. Clark, 435 F.3d
1100, 1104 (9th Cir. 2006). Unlike § 2423(b), § 2423(c) criminalizes the illicit sexual
conduct itself and does not require that the defendant travel for the purpose of engaging in
this conduct.
11
“The term ‘commercial sex act’ means any sex act, on account of which anything of
value is given to or received by any person.” 18 U.S.C. § 1591(e)(3).
12
The District Court, over no objection, instructed the jury:
The term “illicit sexual conduct” means any one of the three following
possibilities: (1) any commercial sex act with a person under eighteen years
of age; or (2) knowingly engaging in a sexual act with a person below the
age of consent; or (3) knowingly engaging in a sexual act with a person
under the age of eighteen years of age by force by rendering the person
unconscious or by using a drug or intoxicant to substantially impair the
ability of a person to apprise or control the conduct.
(App. at 1342).
13
Whether § 2423(c) is constitutional with respect to non-commercial sexual conduct
was not an issue before the Clark Court.
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2423(c)’s combination of requiring travel in foreign commerce, coupled with engagement
in a commercial transaction while abroad, implicates foreign commerce to a
constitutionally adequate degree.” Id. at 1114. It pointed to the fact, and fact it be, that
the Supreme Court “has been unwavering in reading Congress’s power over foreign
commerce broadly” and has never struck down a law as exceeding Congress’s Foreign
Commerce Clause powers. Id. at 1113; see id. at 1114 (noting “the predominance of
national interests and the absence of state sovereignty concerns in Foreign Commerce
Clause jurisprudence,” in contrast to Interstate Commerce Clause cases); see also Japan
Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 448 (1979) (“[T]here is evidence that
the Founders intended the scope of the foreign commerce power to be . . . greater” than
the interstate commerce power.).
The Supreme Court’s broad interpretation of the Foreign Commerce Clause
applies with equal force to the non-commercial sexual conduct prong of § 2423(c), and
Bianchi has simply not made the required “plain showing that Congress has exceeded its
constitutional bounds” by enacting that prong of the statute. United States v. Morrison,
529 U.S. 598, 607 (2000) (stating that “due respect” for Congress demands that we
presume its enactments to be constitutional). Bianchi ignores that “strong presumption,”
id., of constitutionality and the statute’s express requirement of travel in foreign
commerce. See id. at 611-12 (noting that whether a statute includes an express
jurisdictional element is an important consideration in Commerce Clause analysis) (citing
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United States v. Lopez, 514 U.S. 549, 562 (1995)).14 Moreover, Bianchi has not even
attempted to persuade us that Congress did not have “a rational basis for believing that
failure to regulate the non-commercial sexual abuse of minors ‘would leave a gaping
hole’ in the PROTECT Act and its ability to regulate the commercial industry of child
prostitution.” United States v. Martinez, 599 F. Supp. 2d 784, 808 (W.D. Tex. 2009)
(quoting Gonzales v. Raich, 545 U.S. 1, 22 (2005)).
We are satisfied that, given the substantial deference with which we review
Congress’s determination that a statute is within its constitutional authority and the very
generalized nature of the challenge before us, we reach the correct result. We wonder,
however, why, in circumstances such as those before us, the government would need or
even want to charge § 2423(c) violations when the evidence of § 2423(b) violations –
criminalizing interstate or foreign travel for the purpose of engaging in illicit sexual
conduct – is so clear. See United States v. Tykarsky, 446 F.3d 458, 470 (3d Cir. 2006)
(upholding the constitutionality of § 2423(b) in an interstate commerce case); United
States v. Bredimus, 352 F.3d 200, 208 (5th Cir. 2003) (upholding the constitutionality, as
applied, of § 2423(b) in a foreign commerce case). In any event, we reject Bianchi’s
Foreign Commerce Clause challenge to § 2423(c), and will affirm his convictions on
14
We stress with respect to our dissenting colleague’s discussion of the jurisdictional
element that we are not suggesting that § 2423(c) is constitutional simply because it
requires travel in foreign commerce, but only that such travel is a factor to consider in
Commerce Clause analysis. And we are not holding that § 2423(c) is constitutional
because the activity here substantially affects foreign commerce.
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Counts Three, Five, and Ten.
III.
For the reasons we have set forth, the judgment of sentence will be affirmed.
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BIANCHI v. UNITED STATES
No. 09-2644
ROTH, Circuit Judge, Concurring in part and Dissenting in part:
I concur with the majority except for its holding in Part II B. Because I believe
that criminalizing non-commercial activity abroad exceeds Congress’s power under the
Foreign Commerce Clause, I cannot join in that holding. I therefore respectfully dissent
as to it. Although, as the majority notes, Congress’s foreign commerce power is broad,
see Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 448 (1979), it has never
been deemed unlimited. Congress may regulate activities that are commercial in nature
or substantially affect foreign commerce. See, e.g., United States v. Morrison, 529 U.S.
598, 611 (2000) (holding that in all cases where federal regulation of local activity has
been upheld, it was because “the activity in question has been some sort of economic
endeavor”). However, Title 18 U.S.C. § 2423(c), as defined in section 2423(f)(1),
reaches crimes that do not in any sense constitute “Commerce with foreign Nations.”
U.S. Const. art. I, § 8, cl. 3. I submit that section 2423(c) has a breadth of application that
offends our Constitution. For that reason, it should be struck down.
In instructing the jury on the charges brought against Bianchi under section
2423(c), specifically, Counts 3, 5, and 10, the District Court did not distinguish between
the commercial and non-commercial aspects of the statute, i.e., § 2423(f)(1) and (f)(2);
nor did the court provide the jury with special interrogatories to clarify the grounds for its
findings. Instead, the District Court simply instructed the jury that, in order to convict, it
need determine only whether Bianchi “engage[d] in illicit sexual conduct outside of the
United States.” (App. at 1344-45.) For this reason, we cannot tell whether the jury based
its guilty verdict as to Counts 3, 5, and 10 on a finding that Bianchi gave money or gifts
in exchange for illicit sex, pursuant to section 2423(f)(2), or on a finding that Bianchi
engaged in illicit sex with minors while abroad, pursuant to section 2423(f)(1). As a
result, in order to uphold Bianchi’s convictions on these counts, we must be satisfied that
both prongs of the statute are constitutional.
The majority relies on the Ninth Circuit Court of Appeals’ opinion in United States
v. Clark, 435 F.3d 1100 (9th Cir. 2006), to establish that illicit commercial sex, under
section 2423(c), is within Congress’s foreign commerce power. The Ninth Circuit
affirmed the defendant’s conviction under section 2423(c) and (f)(2), finding the statute
to be a valid exercise of Congress’s Foreign Commerce Clause power. Id. at 1116-17.
The court did not, however, decide the constitutionality of the non-commercial prong of
section 2423(c). See id. at 1110 n.16. Indeed, the Ninth Circuit held only that “[t]he
combination of Clark’s travel in foreign commerce and his conduct of an illicit
commercial sex act in Cambodia shortly thereafter puts the statute squarely within
Congress’s Foreign Commerce Clause authority.” Id. at 1116 (emphasis added).
The majority goes on, however, to conclude that Bianchi did not make the required
“plain showing that Congress has exceeded its constitutional bounds” by enacting the
non-commercial sexual conduct prong of the statute. Majority at 13-14, quoting
Morrison, 529 U.S. at 607. To the contrary, I find that there is no rational basis to
2
conclude that an illicit sex act with a minor undertaken on foreign soil, perhaps years after
legal travel and devoid of any exchange of value, substantially affects foreign commerce.
See, e.g., United States v. Lopez, 514 U.S. 549, 557, 559 (1995) (holding that Congress
must have a rational basis for believing that the regulated activity substantially affects
commerce). Where the perpetrator does not pay, or give other value, for the illicit
interactions, the activity being regulated is not economic, and it is therefore beyond the
reach of Congress’s power under the Commerce Clause. Cf. Clark, 435 F.3d at 1103.
Nor does such activity substantially affect interstate commerce. Although Bianchi
purchased a plane ticket to reach the situs of his crimes, section 2423(c) does not
contemplate that the travel to get abroad be connected in any way to the subsequent
illegal act. When a statute’s jurisdictional element “is only tenuously related to the
ultimate activity regulated,” there can be no assurance that the regulated activity affects
interstate commerce. See United States v. Rodia, 194 F.3d 465, 472-73 (3d Cir. 1999)
(finding a statute’s jurisdictional element that required materials, such as film or cameras,
to have previously moved in interstate commerce to be “almost useless” in determining
whether the ultimate activity regulated – possession of child pornography – substantially
affected interstate commerce).
Section 2423(b) of the PROTECT Act criminalizes foreign travel with the intent to
engage in the prohibited activity. However, when Congress added section 2423(c), it
eliminated the intent element so that “the government would only have to prove that the
defendant engaged in illicit sexual conduct with a minor while in a foreign country.”
3
H.R. Rep. No. 108-66 at 51 (2003). Section 2423(c) contains no intent requirement for
the travel, nor does it provide that the “travels in foreign commerce” element coincide,
precede, follow, or be within any specified time of the “illicit sexual conduct” element of
the offense. Because Congress severed any jurisdictional tie to the prohibited activity, it
is untenable to use the travel element of section 2423(c) to shoehorn a subsequent,
unconnected crime into the category of activities that substantially affect foreign
commerce.
If, in this case, the jury based its verdict on the sole fact that Bianchi engaged in
illicit sex on foreign soil, which the court’s instructions permitted it to do, Bianchi would
stand convicted of a crime that Congress has no authority to regulate. Vesting Congress
with such a general international police power would violate both Bianchi’s constitutional
rights and the limited nature of our federal government. I would vacate Bianchi’s
convictions on Counts 3, 5, and 10 and remand this case to the District Court for
resentencing.
For the reasons stated above, I respectfully concur in part and dissent in part.
4