United States v. Michael Pepe

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-50095
Plaintiff-Appellee,
D.C. No.
v. 2:07-cr-00168-DSF-1

MICHAEL JOSEPH PEPE,
Defendant-Appellant. 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
2 UNITED STATES V. PEPE

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.

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 UNITED STATES V. PEPE 3

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.
4 UNITED STATES V. PEPE

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
 UNITED STATES V. PEPE 5

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,

1
The legal status of their relationship is unclear. Prior to their
wedding, Pepe and Bith signed a declaration stating that the ceremony
was for “satisfying Bith family considerations” and not “to have any
legal standing under Cambodian law, American law or international
law.” After his arrest, Pepe wrote to the U.S. Ambassador to Cambodia,
requesting assistance in registering his marriage. Around the same time,
he wrote to his family in the United States, acknowledging years of “on
again / off again problems” between himself and Bith and stating that
they “are still married.”
6 UNITED STATES V. PEPE

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

2
Basang was deposed at the U.S. embassy in Cambodia while
serving a 27-year sentence for trafficking and pimping. Her deposition
testimony was played for the jury.
 UNITED STATES V. PEPE 7

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 non-
governmental 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).
8 UNITED STATES V. PEPE

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
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 § 2423(b) to punish persons who travel
in interstate or foreign commerce “for the purpose of
engaging in [a prohibited] sexual act.” Violent Crime
Control and Law Enforcement Act of 1994, Pub. L. No. 103-
322, § 160001(g), 108 Stat. 1796. Proving that foreign
travelers intended to engage in sexual misconduct with
children at the time they left the United States turned out to
be difficult. The 1994 law resulted in only a handful of such
convictions nationwide, see Karen D. Breckenridge,
Comment, Justice Beyond Borders: A Comparison of
Australian and U.S. Child-Sex Tourism Laws, 13 P. Rim L.
& Policy J. 405, 415 (2004), prompting Congress to amend
the statute again less than a decade later. See Prosecutorial
Remedies and Other Tools to end the Exploitation of
Children Today Act of 2003 (“PROTECT Act”), Pub. L. No.
108-21, § 105, 117 Stat. 650.
 UNITED STATES V. PEPE 9

The offense at issue here, § 2423(c), was added in the
PROTECT Act. Congress purposefully omitted an intent
element in order to facilitate prosecutions. See H.R. Conf.
Rep. 108-66, at 51 (2002) (amending § 2423 to address “a
number of problems related to persons who travel to foreign
countries and engage in illicit sexual relations with minors,”
including the need “to prove that the defendant traveled with
the intent to engage in the illegal activity”).

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 18 U.S.C. § 2423(c) (2003). That version of the
statute was in effect when Pepe engaged in illicit sexual
conduct. It’s also the version that was at issue in Clark,
where we considered its interpretation and constitutionality
under similar facts.

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

3
Pepe doesn’t dispute that his conduct fell within the definition of
“illicit sexual conduct,” which means either (1) certain defined sex acts
with a minor that, if performed on U.S. soil, would violate specified
sexual abuse laws; or (2) “any commercial sex act” with a minor.
18 U.S.C. § 2423(f). A “commercial sex act” is “any sex act, on account
of which anything of value is given to or received by any person.”
18 U.S.C. § 1591(c)(1). The crimes comprising the definition’s first
prong “share the common characteristic that there is no economic
component,” i.e., that “they are non-commercial sex acts.” Clark,
435 F.3d at 1105. The jury found Pepe’s conduct fell within both prongs.
10 UNITED STATES V. PEPE

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 § 2423(c).

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 § 2423(c) even if he stops traveling before he
engages in illicit sex.”).

Although we viewed the statute as “unambiguous” in this
respect, Clark, 435 F.3d at 1107, our focus was on the word
“and,” which connected the travel with the conduct. We
construed the statute to mean: travels in foreign commerce
and thereafter engages in any illicit sexual conduct. We thus
saw “no plausible reading of the statute that would exclude
its application to Clark’s conduct because of [the] limited
gap” of two months “between his most recent transit
between the United States and Cambodia and his arrest.” Id.
We speculated that there might be a constitutional problem
 UNITED STATES V. PEPE 11

with a longer gap but had no reason to consider the issue. Id.
at 1107 n.11.

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
§ 2423(c)’s scope “to the unlikely scenario where the abuse
occurs while the perpetrator is literally en route.” Id. at
1107. Such a reading, we explained, “would eviscerate
§ 2423(c) by severely limiting its use to only those people
who commit the offense while physically onboard an
international flight, cruise, or other mode of transportation.”
Id.

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, § 2423(c) would apply to sex tourists who fly
to foreign countries for a finite time, have illicit sex, and then
return to the United States. But it would not apply to
12 UNITED STATES V. PEPE

Americans who have illicit sex while residing in the foreign
country, because they are not traveling. The sex tourist’s
stay in the foreign country need not be short or have a set
end date, but it must be expected to end. In other words, the
stay must be temporary. See United States v. Schmidt,
845 F.3d 153 (4th Cir. 2017) (construing the U.S. citizen’s
“travels” to last eighteen months where he didn’t resettle in
the foreign country during that time), cert. denied, No. 17-
5254, 2017 WL 3118060 (U.S. Oct. 2, 2017).

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 to this principle. We
have a rule that “where the reasoning or theory of our prior
circuit authority is clearly irreconcilable with the reasoning
or theory of intervening higher authority, a three-judge panel
should consider itself bound by the later and controlling
authority, and should reject the prior circuit opinion as
having been effectively overruled.” Miller v. Gammie,
335 F.3d 889, 893 (9th Cir. 2003) (en banc).
 UNITED STATES V. PEPE 13

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 § 2423(c) as part of the
Violence Against Women Reauthorization Act, Pub. L. 113-
4, § 1211(b) (2013). The statute now penalizes 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.” 18 U.S.C. § 2423(c)
(emphasis added).

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
§ 2423(c) would have virtually no effect if the illicit sexual
14 UNITED STATES V. PEPE

conduct can occur anytime after the travel. Almost every
U.S. expatriate travels in foreign commerce before residing
overseas. Under Clark’s analysis, “the only U.S. citizens
who could fall outside the reach of § 2423(c) if they engage
in illicit sexual conduct abroad are those who never set foot
in the United States.” Clark, 435 F.3d at 1120 (Ferguson, J.,
dissenting).

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.”
18 U.S.C. § 2423(c).

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
conduct. That interpretation of “and” makes no sense with
respect to “resides.” The statute obviously was not meant to
apply to someone who resides, perhaps temporarily, in a
foreign country and afterwards engages in illicit sexual
conduct. Rather, in that context “and” means “and
concurrently”—one engages in the illicit sexual conduct
while residing in the foreign country. By adhering to our
construction in Clark, “[t]he word ‘[and]’ would have two
 UNITED STATES V. PEPE 15

different meanings at once . . . . It would be rather like
saying ‘He filled and kicked the bucket’ to mean ‘He filled
the bucket and died.’ Grotesque.” District of Columbia v.
Heller, 554 U.S. 570, 587 (2008).

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 advocated 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”).
16 UNITED STATES V. PEPE

Congress shared this understanding of the law, citing the
amendment to § 2423(c) as an example of the “significant
changes” it was making “to fight human trafficking crimes.”
S. Rep. 112-96, at 8 (2011). The Senate Report explained
that child exploitation laws were being “strengthened to hold
criminally liable those U.S. citizens . . . residing outside of
the United States who engage in illicit sexual conduct with a
minor. Current law only reaches U.S. citizens . . . who travel
abroad in foreign commerce.” Id. If the design of this
legislation was to reach only those U.S. citizens living
abroad and committing illicit sexual conduct who had never
stepped foot on U.S. soil, it could hardly be described as a
“significant” change to existing law.

We thus conclude that Clark’s construction of § 2423(c)
is clearly irreconcilable with the plain text of its subsequent
amendment as well as Congress’s stated reason for the
change. The statute originally did not target all U.S. citizens
who traveled overseas and committed sex crimes with
minors—only those who resided in the United States.
Because this ensnared only sex tourists who committed their
sex crimes while traveling in the foreign country, Congress
amended the statute to cover even U.S. citizens who chose
to relocate, either temporarily or permanently, overseas.

We do not depart from circuit precedent lightly. When
intervening higher authority casts doubt on our prior
statutory interpretation, we must attempt to reconcile the
two, reserving for an en banc panel the prerogative to
overrule imprudent but still tenable decisions. See Ctr. for
Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1106
(9th Cir. 2016). If it were possible, consistent with Clark,
we would read the amendment to § 2423(c) as clarifying
rather than enlarging its scope. But even the government
agrees that Congress expanded criminal liability when it
 UNITED STATES V. PEPE 17

amended the statute. There’s no interpretation of the current
statutory text that is consistent both internally and with
Clark.

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 context 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 punishment usually
represents the moral condemnation of the community,
18 UNITED STATES V. PEPE

legislatures and not courts should define criminal activity.”
Id.

By dispensing with the intent element, § 2423(c) marked
a dramatic departure from existing law in order to facilitate
convictions. 4 Strict liability is generally imposed for so-
called “public welfare offenses” that “are in the nature of
neglect where the law requires care, or inaction where it
imposes a duty.” Morissette v. United States, 342 U.S. 246,
255 (1952). Such offenses rarely involve moral
condemnation by the community; they tend to carry minor
penalties, with conviction resulting in no grave harm to an
offender’s reputation. Id. at 256. Section 2423(c), in
contrast, threatens an offender with up to 30 years in prison
and lifetime registration as a sex offender. See 34 U.S.C.
§ 20913(a). Application of the rule of lenity takes on
heightened importance when an offense requires no mens rea
and its potential penalty is so severe. 5

4
While § 2423(c) doesn’t itself require a mens rea, “illicit sexual
conduct” can be established through offenses that do. See 18 U.S.C.
§ 2423(f)(1). However, illicit sexual conduct can also be established
through a commercial sex act, id. § 1591, or production of child
pornography, id. § 2256(8), neither of which requires a particular state
of mind. See id. § 2423(f)(2)–(3). Moreover, the requisite mens rea,
when applicable, is minimal. Statutory rape, for example, requires proof
only that the defendant “knowingly” engaged in a sexual act with another
person. Id. § 2243(a). The government doesn’t need to prove knowledge
of the victim’s age, though reasonable mistake about it is a defense. See
id. § 2243(c)(1), (d).

5
A person such as Pepe who commits heinous acts over a long
period of time obviously has an intent to violate the law. But the statute
would apply equally to a 19-year-old who has a romantic and mutually
desired sexual relationship with a 15-year-old, see 18 U.S.C. §§ 2243(a),
2423(f)(1), even if the relationship is legal in both the 19-year-old’s
 UNITED STATES V. PEPE 19

Another venerable canon of construction 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 § 2423(c) pursuant to its authority under
the Foreign Commerce Clause. See Clark, 435 F.3d at 1104.
The government argues that the Necessary and Proper
Clause was another basis for the legislation because
Congress needed to implement an international convention
on child trafficking to which the United States was a
signatory—the Optional Protocol to the Convention on the
Rights of the Child on the sale of children, child prostitution
and child pornography, G.A. Res. 54/263, U.N. Doc.
A/54/263 (May 25, 2000). Pepe disputes that either Clause
is a valid source of Congressional authority.

Clark acknowledged the possibility that “a longer gap
between the travel and the commercial sex act could trigger
constitutional or other concerns.” 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 statute’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
§ 2423(c)] would have to be considered on a case-by-case
basis to determine if Congress is acting within its power
under the Foreign Commerce Clause.”). In any given case,
defense counsel would be remiss not to attempt to

home state and the foreign country, see, e.g., Colo. Rev. Stat. § 18-3-
402(e); Code pénal art. 227-25 (Fr.). We can’t invoke the rule of lenity
selectively for sympathetic defendants.
20 UNITED STATES V. PEPE

distinguish their client from Michael Clark due to a longer
gap between the travel and the illicit sexual conduct or some
other factor that makes the connection with foreign
commerce more attenuated.

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 evidence
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
in recent years. 6 While the current version of § 2423(c) will

6
In Missouri v. Holland, the Supreme Court held that “[i]f [a] treaty
is valid there can be no dispute about the validity of the [implementing]
statute under Article 1, Section 8, as a necessary and proper means to
execute the powers of the Government.” 252 U.S. 416, 432 (1920).
Nearly a century later, the Court interpreted a criminal statute narrowly
to avoid reconsidering this precedent. See Bond v. United States, 134 S.
Ct. 2077, 2085–87 (2014). Three Justices would have reached the
constitutional question and struck down the statute as exceeding
Congress’s authority. See id. at 2100 (Scalia, J., concurring) (“[T]he
possibilities of what the Federal Government may accomplish, with the
right treaty in hand, are endless and hardly farfetched.”); id. at 2109–10
(Thomas, J., concurring) (criticizing Holland for taking “an improperly
broad view of the Necessary and Proper Clause” in light of “the original
understanding [of] the Treaty Power”); see also United States v.
Bollinger, 798 F.3d 201, 221 (4th Cir. 2015) (“Because Congress may
 UNITED STATES V. PEPE 21

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 Ҥ 2423(c) allows multiple sentences for
making a single trip during which the defendant engaged in
illicit sexual conduct with multiple minors”). But see United
States v. Pendleton, 658 F.3d 299, 309 (3d Cir. 2011)
(“[U]nder § 2423(c), a person’s travel through foreign
commerce continues to provide a link to his illicit sexual
conduct long after his travel is complete.”).

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”).
22 UNITED STATES V. PEPE

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
§ 2423(c).” Dissent at 25 & n.1. To the contrary, throughout
the proceedings Pepe has maintained that “he was indeed a
resident of Cambodia who had demonstrated a ‘permanent
intent to resettle’ in that country.” In moving to dismiss the
indictment, Pepe represented to the district court that he had
“permanently relocated to Cambodia” in 2003, more than
two years before the conduct at issue. He argued that “the
statute in no way indicates that it’s intended . . . to target
people who were already residing in a foreign country and
had demonstrated . . . no intent to return.”

The dissent acknowledges that prior to the 2013
amendment, § 2423(c) “likely did not apply to citizens who
had permanently resettled in a foreign country.” Dissent at
29. Given Pepe’s claim that he was residing in Cambodia on
a permanent basis, we fail to see the relevance of the
dissent’s contention that the statute has always applied to
persons residing abroad temporarily. If the statute did not
apply to U.S. citizens permanently living overseas, Pepe’s
conviction cannot stand.

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 § 2423(c).”
 UNITED STATES V. PEPE 23

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
24 UNITED STATES V. PEPE

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 § 2423(c), when based
on a defendant’s travel in foreign commerce, requires proof
that the illicit sexual conduct occurred while the defendant
was traveling. If, as Pepe maintains, he relocated to
Cambodia in March 2003, then the statute does not apply to
him.

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 Pepe’s convictions and sentence. On
remand, should the government elect to retry him, it will
need to prove that he was still traveling when he committed
illicit sexual conduct.

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
§ 2423(c). Indeed, Clark’s holding of the statutory reach of
the prior statute is completely consistent with the
amendment. Further, the question of whether the prior
statute applied to citizens who temporarily resided abroad
 UNITED STATES V. PEPE 25

and intended to resettle was never argued to the district
court. We should not be deciding that question in this
appeal, much less overturning prior circuit precedent as a
three judge panel. Therefore, I must respectfully dissent.

For the first time on appeal, Pepe argues that his
temporary residency, by itself, took his conduct out of the
statutory reach of § 2423(c). 1 Part of his argument is
founded on the 2013 amendment to § 2423(c). The version
of the statute under which Pepe was convicted applied to
“[a]ny United States citizen . . . who travels in foreign
commerce, and engages in any illicit sexual conduct with
another person.” 18 U.S.C. § 2423(c) (2003). The 2013
amendment added the phrase “or resides, either temporarily
or permanently, in a foreign country.” It otherwise re-
enacted the prior statute and left the remaining phrases
untouched.

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

1
Before the district court, he only argued that “the principles of
statutory construction require[] that the prohibited conduct in § 2423(c)
occur soon after the travel.” He did not rest his statutory argument on
his alleged intent to resettle–a contention that was vigorously disputed
by the United States given his written statements to the Cambodian
government that he intended to live his life in the United States, a letter
to his family that he intended to return to the United States to live, and a
letter to his storage facility in Colorado that gave his permanent address
as Oxnard, California and stating that he would be traveling in and out
of the country. He claimed to have permanently resettled solely in the
context of his constitutional challenges to Congressional authority. The
district court never resolved the factual question of whether or not Pepe
had permanently resettled in Cambodia.
26 UNITED STATES V. PEPE

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 affects 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
analysis in cases interpreting § 2423(c) may have differed,
the holding was entirely the same: § 2423(c) applied to
conduct that occurred after the U.S. citizen arrived in a
foreign country. Clark rejected the defendant’s contention
that the crime must be committed “while the perpetrator is
literally en route.” 435 F.3d at 1108. Rather, Clark held that
a two month gap between the end of transit and the crime did
not take Clark’s actions out of the statutory reach, reasoning
that the twofold requirement of foreign travel and illicit
sexual conduct “does not require that the conduct occur
while traveling in foreign commerce.” Id. at 1107. Clark
noted that the legislative history of the prior legislation
strongly suggested that Congress intended for the original
statute to encompass conduct after the completion of travel,
during residencies and other long-term stays in foreign
countries. Clark, 435 F.3d at 1104, 1108; H.R. Rep. No.
108–66, at 51 (2003) (“Under [§ 2423(c)]{fs28 , the
 UNITED STATES V. PEPE 27

government would only have to prove that the defendant
engaged in illicit sexual conduct with a minor while in a
foreign country.

The Fourth Circuit reached the same conclusion that
arrival in a country did not terminate the statutory reach of
§ 2423(c) by expansively interpreting the term “traveling”
broadly as “encompass[ing] movement abroad that
maintains some nexus with the United States.” United States
v. Schmidt, 845 F.3d 153, 157 (4th Cir. 2017). Schmidt noted
that “[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.” Id. The bottom line of both cases is precisely
the same: the reach of § 2423 did not stop when the U.S.
Citizen arrived on foreign soil. 2

Indeed, 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);

2
I am not necessarily persuaded that there is a meaningful conflict
between Clark and Schmidt. The Clark panel was only confronted with
the argument that foreign travel--and thus the reach of the statute--
terminated on arrival in the foreign country. It did not specifically
construe the term “foreign travel” in determining that the statute applied
after a citizen’s arrival in a foreign country. But that question is, in my
mind, irrelevant because the holding is the same in both cases, even if
there is some difference in rationale.
28 UNITED STATES V. PEPE

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 § 2423(c). The defendant in
Clark had “primarily resided in Cambodia from 1998 until
his extradition in 2004.” 435 F.3d at 1103. The defendant
in Schmidt had lived abroad for almost two years. 845 F.3d
at 157.

In sum, when Congress passed the 2013 amendments, it
was aware of the uniform judicial decisions interpreting
§ 2423(c) that held that the statute applied to conduct
occurring after the defendant arrived in a foreign country
even if the defendant had been living abroad and had
remained in the foreign country for “a significant amount of
time.” Schmidt, 845 F.3d at 157. Congress did not alter that
language, evincing its intent to incorporate those judicial
interpretations. Merrill Lynch, 547 U.S. at 85–86. Thus,
there is nothing in the amended statute that would indicate
an intent to overrule Clark, or assign some other meaning to
the prior statutory language.

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
 UNITED STATES V. PEPE 29

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 § 2423(c) did not apply to U.S. citizens
who had permanently resettled in another country. Thus, it
was quite logical for Congress to add amendatory language
to address that situation and make it clear that the statute
applied to all U.S. citizens not only who “travel[ed] in
foreign commerce,” but to those who “reside[], either
temporarily or permanently, in a foreign country.” The new
language settled the question of whether the statute applied
to U.S. citizens who had permanently resettled in another
country. It did not, however, purport to alter the meaning of
the prior statutory language, which remained intact.

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
30 UNITED STATES V. PEPE

did not alter existing law as 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 § 2423(c), the statute applied
to Pepe. His objection, made for the first time on appeal, to
the statute’s application is that he had been living in
Cambodia for some time, which is not sufficient to avoid the
statute under Clark, Schmidt, or Pendleton. As noted earlier,
he did not argue to the district court that the statute did not
apply to him because he had intended to permanently
resettle; he only made an argument as to the temporal reach
of the statute, and that theory was clearly precluded by case
law. He did not request a jury instruction stating that the
statute did not apply to citizens who had taken up residency
abroad or that had permanently resettled; he only requested
one that said that the illegal conduct must occur immediately
or soon after travel in foreign commerce. There was no
error, much less plain error, in the district court’s denial of
the motion to dismiss the indictment on an unasserted theory
of statutory construction, nor in the district court not sua
sponte instructing the jury on a theory not asserted at trial
and not viable under applicable case law.

In sum, under Clark, the prior version of § 2423(c)
applies to Pepe, as the majority concedes. There is nothing
 UNITED STATES V. PEPE 31

in the 2013 amendments that is “clearly irreconcilable” with
Clark. Thus, it remains good law, binding on this panel, and
requires affirmance.

For these reasons, I respectfully dissent. 3

3
I see no merit in Pepe’s other assertions on appeal, but there is no
reason to discuss them given that the majority opinion is confined to a
single issue on which it bases the reversal.