United States v. Michael Lewis Clark
2006 U.S. App. LEXIS 1780, 435 F.3d 1100, 2006 WL 172074 (2006)
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Rule of Law:
Congress has the authority under the Foreign Commerce Clause to criminalize commercial sex acts with a minor committed abroad by a U.S. citizen who has previously traveled in foreign commerce.
Facts:
- Michael Lewis Clark, a U.S. citizen and military veteran, primarily resided in Cambodia from 1998 to 2003.
- Clark maintained significant ties to the United States, including real estate, bank accounts, and a driver's license, and he typically made annual trips back to the U.S.
- In May 2003, after visiting family in the United States, Clark flew from Seattle to Cambodia.
- In late June 2003, while in Cambodia, Clark was discovered engaging in sex acts with two boys, aged approximately ten and thirteen.
- Clark had hired the boys to perform sex acts, paying or promising to pay them small amounts of money, such as two to five dollars.
- Clark acknowledged that he had been involved in sexual activity with approximately 40-50 children since he began traveling internationally in 1996.
- A non-governmental organization reported Clark to the Cambodian National Police, who subsequently arrested him.
- The Cambodian government permitted the United States government to take jurisdiction over Clark for prosecution.
Procedural Posture:
- Michael Lewis Clark was indicted in the U.S. District Court for the Western District of Washington under 18 U.S.C. § 2423(c) and (e).
- Clark filed a pre-trial motion to dismiss the indictment, arguing the statute was unconstitutional.
- The district court, a court of first instance, denied Clark's motion to dismiss.
- Clark entered a conditional guilty plea, reserving his right to appeal the court's denial of his motion.
- Clark (appellant) appealed the district court's final judgment to the U.S. Court of Appeals for the Ninth Circuit, an intermediate federal appellate court.
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Issue:
Does 18 U.S.C. § 2423(c), which criminalizes engaging in a commercial sex act with a minor in a foreign country after traveling in foreign commerce, exceed Congress's power under the Foreign Commerce Clause?
Opinions:
Majority - McKeown, Circuit Judge.
No, the statute is a valid exercise of Congress's authority under the Foreign Commerce Clause. Congress's power to regulate foreign commerce is plenary, exclusive, and broader than its power over interstate commerce because it is not constrained by principles of federalism or state sovereignty. The statute is constitutional because it links two elements: 1) the defendant must have traveled in foreign commerce, and 2) the defendant must have engaged in a commercial sex act abroad. This combination of foreign travel and a subsequent commercial transaction provides a sufficient nexus to foreign commerce. The court distinguished this case from domestic commerce precedents like Lopez and Morrison, noting that the regulated activity here is 'quintessentially economic,' unlike the non-economic crimes at issue in those cases.
Dissenting - Ferguson, Circuit Judge,
Yes, the statute exceeds Congress's authority under the Foreign Commerce Clause. The law regulates a private, local crime, not 'Commerce with foreign Nations,' and improperly converts the Commerce Clause into a grant of international police power. The majority errs by discarding the established three-category framework for Commerce Clause analysis, which helps define the outer limits of congressional power. The statute does not regulate the 'channels of commerce' because the illicit conduct is entirely divorced from the act of travel; it requires no wrongful intent during travel and has no required temporal link. The mere fact that a U.S. citizen flew on an international flight at some point prior to committing a crime with a 'bare economic component' is an insufficient nexus to justify federal regulation.
Analysis:
This decision reinforces the principle that Congress possesses significantly broader authority under the Foreign Commerce Clause than under the Interstate Commerce Clause. The court's refusal to rigidly apply the restrictive framework from Lopez and Morrison signals greater deference to Congress in regulating the extraterritorial conduct of U.S. citizens. By finding a sufficient nexus in the combination of foreign travel and a subsequent commercial act, the ruling establishes a key precedent for prosecuting transnational crimes like sex tourism. This expansive interpretation may encourage Congress to legislate against other forms of criminal conduct committed by Americans abroad, provided some commercial or travel element is present.
