United States Court of Appeals, District of Columbia Circuit
November 14, 2018
from the United States District Court for the District of
Columbia (No. 1:16-cr-00009-1)
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.
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,
PILLARD, CIRCUIT JUDGE.
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).
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.
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
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.
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
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.
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.
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.
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.
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
The Optional Protocol and the PROTECT Act
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).
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
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.
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,
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).
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.
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).
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 ...