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United States v. Park

United States Court of Appeals, District of Columbia Circuit

September 13, 2019

United States of America, Appellant
v.
Joseph Ricky Park, also known as Joseph Demasi, Appellee

          Argued November 14, 2018

          Appeal from the United States District Court for the District of Columbia (No. 1:16-cr-00009-1)

          Sonja M. Ralston, Attorney, U.S. Department of Justice, argued the cause and filed the briefs for appellant. Elizabeth Trosman, Assistant U.S. Attorney, entered an appearance.

          A.J. Kramer, Federal Public Defender, argued the cause and filed the brief for appellee. Tony Axam Jr. and Celia Goetzl, Assistant Federal Public Defenders, entered appearances.

          Before: Garland, Chief Judge, and Griffith and Pillard, Circuit Judges.

          PILLARD, CIRCUIT JUDGE.

         One hundred and seventy-six nations have come together to develop a coordinated, global approach to fight the sexual exploitation of children. Building on the United Nations Convention on the Rights of the Child, all but a handful of the nations of the world have agreed to the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (Optional Protocol or Protocol). Its signatories jointly committed to take many common steps to protect children, including criminalizing various child sex offenses. Optional Protocol, art. 3. The Protocol also empowers its signatories to police their own nationals' sexual exploitation of children wherever it takes place. Id. art. 4. The United States Senate ratified the Protocol in 2002. Among the laws that fulfill the United States' duties under the Protocol is the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act, 18 U.S.C. § 2423 (2018) (PROTECT Act).

         Defendant Joseph Ricky Park is a U.S. citizen with a prior conviction of a sex offense against a minor in the United States. Park now faces a PROTECT Act indictment for further sex crimes against a minor in Vietnam. He challenges Congress's constitutional authority to criminalize what he is alleged to have done in a foreign country.

         Park was convicted in Connecticut of child sexual abuse decades ago. Since the 1990s, Park has for the most part been traveling and living abroad, including in Mexico, Cuba, South Korea, the Philippines, Thailand, Russia, Kuwait, China, Laos, Singapore, Malaysia, Saudi Arabia, Bahrain, Lebanon, Cambodia, and Vietnam. As Park traveled the world, he worked as an English teacher and, the government contends, sexually abused children. He often moved from one country to the next once local law enforcement authorities suspected him of child sex abuse.

         The United States apprehended Park in 2016 and indicted him for producing child pornography and sexually abusing a child while residing in Vietnam in 2015, in violation of the PROTECT Act, 18 U.S.C. §§ 2423(c), (e), (f)(3), (f)(1). Vietnam is a signatory to the Optional Protocol. Vietnam appears to have cooperated in Park's apprehension and raises no objection to the United States prosecuting him here on charges arising out of his conduct in Vietnam. Park successfully moved the district court to dismiss the indictment on the ground that Congress lacks constitutional authority for the application of a federal criminal prohibition to child sexual abuse and production of child pornography in a foreign country. The government appeals.

         We hold that the PROTECT Act is constitutional as applied to Park. Each of the provisions that Park challenges is rationally related to implementing the Optional Protocol, a treaty of unchallenged validity to which the United States and Vietnam are signatories. The provisions of the PROTECT Act that criminalize child sexual abuse and production of child pornography by U.S. citizens living abroad help to fulfill the United States' responsibility under the Optional Protocol to criminalize, "as a minimum," child prostitution and child pornography production by U.S. nationals wherever that conduct occurs. Optional Protocol, arts. 3, 4. Congress's authority under the treaty to prosecute U.S. citizens' extraterritorial crimes involving sexual exploitation of children is bolstered by the Foreign Commerce Clause, which supports application of U.S. law to economic activity abroad that, in the aggregate, could otherwise impair the effectiveness of a comprehensive regulatory regime to eliminate the sexual exploitation of children.

         I. BACKGROUND

         A. Factual Background

         When reviewing the grant of a motion to dismiss an indictment, we accept the government's factual allegations as true. See Boyce Motor Lines v. United States, 342 U.S. 337, 343 & n.16 (1952); United States v. Ballestas, 795 F.3d 138, 149 (D.C. Cir. 2015). The government has provided additional information regarding Park's conduct in Vietnam and history of sexually abusing minors, and Park concedes that we appropriately assume the truth of that information as well. Appellee Br. 9-10.

         Park has sexually abused minors in multiple countries over the past thirty years. In 1987, the State of Connecticut convicted Park of two counts of "Risk of Injury to a Child" and one count of "Sexual Assault 2nd Degree." Appendix for the United States (U.S. App.) 10; Park Appendix (Park App.) 24. After serving five years in prison, Park traveled to Mexico where, the United States alleges, he sexually abused children. Mexico extradited Park to the United States in 1995, and Connecticut re-imprisoned him until 1998 for violating the terms of his probation. In 2003, Park traveled from the United States to Cuba, where the Cuban government arrested and incarcerated him for nearly three years for "Corruption of a Minor." Park App. 24-25. Park again left the United States and, in 2009, South Korean authorities revoked his visa and ordered him to leave that country after they received information that he engaged in "indecent behavior" while working there as a schoolteacher. U.S. App. 11. In 2013, Park was apparently teaching English in Saudi Arabia when he was asked to leave because of his "pedophile" behavior. U.S. App. 14. Park went to Vietnam, where he remained on short-term tourist and business visas until November 2015.

         The crimes for which the government now charges Park allegedly took place in 2015, while Park was working as an English teacher in Vietnam. The government alleges that Park introduced himself to an eleven-year-old Vietnamese boy (the alleged victim) at a park in Hanoi. Park told the boy he was an English language instructor and invited him to his apartment for lessons. Several weeks later, that same boy and two others visited Park at his apartment. The young friends and Park played a game that involved "chasing and grasping" each other, including on Park's bed. U.S. App. 12-13. The three boys then played videogames in Park's bedroom, with the victim sitting on Park's lap. Park began to "pinch" and stroke the boy's genitals through his clothing, telling the victim that he, Park, "wanted to make him feel good." Id. at 13. Park then tried to reach his hand inside the boy's pants, but the boy pushed Park's hand away.

         The victim's mother reported Park's conduct to the United States Department of State, and Vietnam deported Park to Thailand. While in Thailand, Park asked a friend in Hanoi to collect various belongings from his apartment. The friend discovered child pornography on Park's computer and thumb drive and turned the evidence over to United States special agents. A forensic review later confirmed that the devices contained child pornography depicting unidentified victims in videos produced from July 2013 through August 2015.

         In early 2016, Park left Thailand for Guam where a special agent for the United States Department of Homeland Security arrested him on January 15. A federal grand jury indicted Park, based on his conduct while residing in Vietnam, for violating 18 U.S.C. §§ 2423(c) and (e), which criminalize actual or attempted "illicit sexual conduct with another person" engaged in by "[a]ny United States citizen . . . who travels in foreign commerce or resides, either temporarily or permanently, in a foreign country." Park moved for a bill of particulars, and the government specified that the charged "illicit sexual conduct" involved "the actual and attempted production of child pornography" and "an actual and attempted sexual act as defined in 18 U.S.C. Section 2246." See Gov't Resp. to Def.'s Bill of Particulars 2. The pornography charges are based only on images produced after May 30, 2015, which is when Congress amended the PROTECT Act to include production of child pornography.

         B. The Optional Protocol and the PROTECT Act

         The Optional Protocol seeks to end the sexual exploitation of children by committing the countries of the world to eradicate child sex trafficking, child prostitution, and child pornography. The Protocol expresses "[d]eep[] concern[] at the widespread and continuing practice of sex tourism, to which children are especially vulnerable, as it directly promotes the sale of children, child prostitution and child pornography." Optional Protocol, preamble. Under article 3, paragraph 1, the parties to the Protocol (States Parties) have obligated themselves to criminalize, "as a minimum," acts of "[o]ffering, delivering or accepting . . . a child for the purpose of [s]exual exploitation of the child," "obtaining . . . a child for child prostitution," and "[p]roducing, distributing, disseminating, importing, exporting, offering, selling or possessing for the above purposes child pornography," whether those offenses are committed "domestically or transnationally or on an individual or organized basis." Id. art. 3(1). The Protocol further authorizes each State Party to exercise jurisdiction over persons who violate the article 3, paragraph 1 prohibitions "[w]hen the alleged offender is a national of that State or a person who has his habitual residence in its territory." Id. art. 4(2)(a).

         As noted, both the United States and Vietnam are signatories to the Optional Protocol, which was adopted and opened for signature in May 2000 and went into effect in January 2002. President Clinton signed the Protocol in July 2000. See Letter of Submittal from President Clinton to the Department of State, Protocols to the Convention on the Rights of the Child, S. Treaty Doc. No. 106-37, 2000 WL 33366017, at *1 (July 5, 2000) (Protocol Analysis). The President's letter transmitting the treaty to the Senate urged its consent because participation in the Protocol would "enhance the ability of the United States to provide global leadership in the effort to eliminate abuses against children" that involve "sexual exploitation." Letter of Transmittal from President Clinton to the Senate of the United States, Protocol Analysis at *1. The Senate consented to the ratification on June 18, 2002. See 148 Cong. Rec. S5717-01 (daily ed. June 18, 2002). Vietnam signed the Protocol in September 2000 and ratified it in December 2001.

         The commercial sexual exploitation of children, which includes both child pornography and international child sex tourism, has grown rapidly over the past two decades into a multibillion-dollar industry. See Najat Maalla M'jid, Report of the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography, U.N. Doc. A/HRC/22/54, at 9 (Dec. 24, 2012) (2012 U.N. Report); see also United States v. Durham, 902 F.3d 1180, 1195 (10th Cir. 2018), cert. denied, 139 S.Ct. 849 (2019). Child sexual abuse images alone have been estimated to be worth about 20 billion dollars. 2012 U.N. Report at 9. And "[m]any developing countries have fallen prey to the serious problem of international sex tourism," yet, "for reasons ranging from ineffective law enforcement, lack of resources, corruption, and generally immature legal systems, sex tourists often escape prosecution in the host countries." H.R. Rep. No. 107-525, at 2-3 (2002). Travelers seek out children to sexually abuse in a shifting subset of countries where they anticipate lax law enforcement: "As child protection laws, mechanisms and prevention efforts are strengthened by States, civil society and the tourism industry in some countries, neighboring countries become obvious alternative destinations for travelling sex offenders." 2012 U.N. Report at 5. Affected countries often "reach out to the United States for help," and "some even blame the United States for the problem, arguing that many of the sex tourists are American." H.R. Rep. No. 107-525, at 3. For this reason, people around the world have historically looked to the United States to take responsibility to put an end to sex offenders' abuse of children overseas. Id.

         Congress proposed the Sex Tourism Prohibition Improvement Act of 2002 to address "this growing problem." Id. The House Judiciary Committee reported on the proposed bill and recommended it for passage just six days after the Senate consented to the ratification of the Optional Protocol. Id. at 1. Renamed the PROTECT Act, the bill was signed into law a year later. Pub. L. No. 108-21, 117 Stat. 650 (2003); see generally United States v. Bollinger, 798 F.3d 201, 208 (4th Cir. 2015). The PROTECT Act amended an existing, narrower federal criminal bar against travel undertaken with the intent to commit illicit sexual conduct. See 18 U.S.C. § 2423(b) (2000). In light of experience showing that it was difficult to prove that travel was undertaken with the requisite intent, the new statute included a provision reaching sex crimes committed by U.S. citizens abroad without regard for the initial purpose of the international travel. See H.R. Rep. 107-525, at 3; 148 Cong. Rec. H3885 (daily ed. June 25, 2002) (statement of Rep. Sensenbrenner, co-sponsor).

         Passage of the PROTECT Act did not eliminate misgivings about the adequacy of the United States' implementation of the Protocol. The United Nations, for instance, repeatedly expressed its "concern" that the United States' extraterritorial jurisdiction "did not reach all offenses covered by the Optional Protocol" and urged the United States to "establish its jurisdiction in all cases listed under article 4 of the Optional Protocol," which calls on parties to assume jurisdiction over their nationals for all article 3, paragraph 1 offenses (which, as noted above, include sexual exploitation and child pornography). Comm. on the Rights of the Child, Concluding Observations on the Second Periodic Report of the United States of America Submitted Under Article 12 of the Optional Protocol to the Convention on the Sale of Children, Child Prostitution and Child Pornography, ¶¶ 39-40, U.N. Doc. CRC/C/OPSC/USA/CO/2 (July 2, 2013) (2013 Concluding Observations); Comm. on the Rights of the Child, Consideration of Reports Submitted by States Parties Under Article 12, Paragraph 1, of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, ¶¶ 35-36, U.N. Doc. CRC/C/OPSC/USA/CO/1 (June 25, 2008) (2008 Consideration of Reports). U.S. courts also expressed concern that the PROTECT Act's prohibition on "travel[ing] in foreign commerce[] and engag[ing] in any illicit sexual conduct," 18 U.S.C. § 2423(c) (2006), might not reach U.S. citizens who had settled abroad. See, e.g., United States v. Schmidt, 845 F.3d 153, 156-58 (4th Cir. 2017); United States v. Jackson, 480 F.3d 1014, 1022-1024 (9th Cir. 2007).

         Meanwhile, it had become apparent that "known child-sex offenders [were] traveling internationally." International Megan's Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders, Pub. L. No. 114-119, § 2(4), 130 Stat. 15, 15 (2016) (International Megan's Law). Before 2016, the federal Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16901 et seq., did not require sex offenders to update their location information in the sex offender registry system when they traveled or moved abroad, and sex offenders took advantage of that loophole by relocating to foreign countries without giving notice to federal authorities. See, e.g., Nichols v. United States, 136 S.Ct. 1113, 1118 (2016); United States v. Lunsford, 725 F.3d 859, 861-62 (8th Cir. 2013). Offenders gravitated to certain developing countries, such as the Philippines, which were known to have "significant problems with sex tourism." H.R. Rep. No. 107-525, at 3.

         Congress responded to these concerns by amending section 2423(c) in 2013 to reach illicit sexual conduct by U.S. citizens and permanent residents who "reside[], either temporarily or permanently, in a foreign country." Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, Title XII, § 1211(b), 127 Stat. 54, 142 (2013). And, in May 2015, Congress added "production of child pornography" to the definition of "illicit sexual conduct" in section 2423(f). Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22, Title I, § 111(a)(3), 129 Stat. 227, 240 (2015).

         In relevant part, the PROTECT Act now reads:

(c) Engaging in illicit sexual conduct in foreign places.-Any United States citizen or alien admitted for permanent residence who . . . resides, either temporarily or permanently, in a foreign country, and engages in any illicit sexual conduct with another person shall be ...

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