In matter of first impression, Eleventh Circuit finds that 18 U.S.C. § 2251A [selling or buying children for sexual purposes] applies extraterritorially to conduct by U.S. person that occurred in Cambodia

In matter of first impression, Eleventh Circuit finds that 18 U.S.C. § 2251A [selling or buying children for sexual purposes] applies extraterritorially to conduct by U.S. person that occurred in Cambodia

In 2004, Cambodian police detained one Kent Frank, a U.S. citizen (Defendant) in Cambodia after Officer Keo of the Cambodian National Police (CNP) saw several apparently underage girls leaving Defendant’s hotel room. He interviewed them. Defendant later confessed to CNP officers that he paid the underage girls money for sex acts and for letting him take sexually explicit photographs.

Cambodian officers eventually released Defendant who fled to Vietnam. U.S. officials traced him to Vietnam and arrested him there.

A Florida federal court convicted Defendant of various offenses arising out of his sexual acts with the minors. He appealed his conviction claiming, inter alia, that the trial court should have suppressed his Cambodian confession and that 18 U.S.C. § 2251A has no application outside U.S. territory. The U.S. Court of Appeals for the Eleventh Circuit, however, affirms.

Defendant first argued that the lower court should have suppressed his confession in Cambodia because he had not received any Miranda warnings. The district court found that Miranda warnings were not required in this case and that Defendant’s confession was voluntary.

The Court of Appeals agrees. “Generally, ‘statements obtained by foreign officers conducting interrogations in their own nations have been held admissible despite a failure to give Miranda warnings to the accused.’ ... The reasoning behind this rule is that the exclusion of evidence by an American court has little to no deterrent effect on foreign police practices. .. That is, our ‘Constitution cannot compel such specific, affirmative action by foreign sovereigns.’ ... Two exceptions to this general rule are: (1) if the foreign officers’ conduct ‘shocks the conscience of the American court’ and (2) if ‘American officials participated in the foreign . . . interrogation, or if the foreign authorities were acting as agents for their American counterparts,’ also known as the “joint venture” doctrine. See U.S. v. Heller, 625 F.2d 594, 599 (5th Cir. 1980)] ...”

“... Defendant’s statements do not fall under the joint venture doctrine. American officials did not know of Defendant’s presence in Cambodia until after he was arrested and did not participate in Defendant’s detention or interrogation. When Agent Phillips attempted to interrogate Defendant, after giving him Miranda warnings, he was cut short when Cambodian officers came in to bring Defendant before a judge. At all times, the Cambodian officers acted out of their own interest in determining whether Defendant violated Cambodian laws. The officers then released Defendant and allowed him to travel to Vietnam without notifying the United States. Consequently, there is no evidence that the Cambodian officers acted as agents of the United States. ...”

“Second, Defendant’s interrogation does not shock the judicial conscience. Defendant was not held in a jail but allowed to sleep overnight in Officer Keo’s office. The interview lasted less than two hours. Defendant was treated with respect, offered food and water, and was not beaten or threatened in any way. Based on these facts, we also find that Defendant’s confession was voluntary. ... As such, the district court did not err in denying Defendant’s motion to suppress his statements resulting from interrogation by Cambodian officials.” [Slip op. 7‑9]

Defendant next argues that 18 U.S.C. § 2251A should not apply to conduct in Cambodia. In particular, §§ 2251A(b)(2)(A) and (C)(1) provide that “[w]hoever purchases ... a minor ... with intent to promote ... the engaging in of sexually explicit conduct by such minor for the purpose of producing any visual depiction of such conduct,” and “in the course of the conduct described ... the minor or the actor traveled in or was transported in or affecting interstate or foreign commerce” may be imprisoned for 30 years or for life.”

Congress does have the power to apply its laws extraterritorially. The Court then reviews whether Congress so intended in this case. “We presume that statutes only apply domestically, and give extraterritorial effect ‘where congressional intent is clear.’ ... However, in United States v. Bowman, 260 U.S. 94, 97‑98 ... (1922), the Supreme Court held that extraterritorial application can be inferred in certain cases even absent an express intention on the face of the statute.”

“We have interpreted Bowman to hold that extraterritorial application ‘may be inferred from the nature of the offense[] and Congress’ other legislative efforts to eliminate the type of crime involved.’ ... Crimes fall under the Bowman exception when limiting ‘their locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity for frauds as easily committed by citizens . . . in foreign countries as at home.’ ... Thus, we have upheld extraterritorial application of statutes ‘where the nature of the activities warranted a broad sweep of power.’ ...”

“We must determine whether Congress intended § 2251A to apply to United States citizens engaged in conduct wholly outside of the United States. To date, no circuit court has decided this issue. ... After considering the language of the statute, the nature of the offense covered by 18 U.S.C. § 2251A, and Congress’s other efforts to combat child pornography, we find that 18 U.S.C. § 2251A applies extraterritorially to reach Defendant’s conduct.”

“[...] Section 2251A requires that, in the course of the prohibited conduct, the defendant or minor ‘travel[] in . . . interstate or foreign commerce,’ making plain Congress’s intent that the statute sweep broadly and apply extraterritorially. 18 U.S.C. § 2251A(c)(1) ... For example, 18 U.S.C. § 2423(c), which punishes anyone ‘who travels in foreign commerce, and engages in any illicit sexual conduct,’ has been applied extraterritorially. United States v. Clark, 435 F.3d 1100, 1106 (9th Cir. 2006) (holding that the title of the statute, ‘Engaging in illicit sexual conduct in foreign places,’ and the requirement that the defendant ‘travel[] in foreign commerce,’ evinced Congressional intent to apply the statute extraterritorially) ...”

“Furthermore, extraterritorial application is supported by the nature of § 2251A and Congress’s other efforts to combat child pornography. Section 2251A is part of a comprehensive scheme created by Congress to eradicate the sexual exploitation of children and eliminate child pornography, and therefore warrants a broad sweep. ... Since 1977, Congress has passed numerous statutes to combat child pornography and the sexual exploitation of children. ... As part of this effort, § 2251A was included in the Child Protection and Obscenity Enforcement Act of 1988, Pub. L. No. 100‑690, Title VII, Subtitle N, § 7512, 102 Stat. 4181 (1988) (‘1988 Act’). .... The statute falls under Chapter 110 of Title 18 of the United States Code, which punishes offenses dealing with the sexual exploitation and other abuse of children. [...]”

“Congress has also amended its laws to allow for extraterritorial application when it has discovered loopholes in its statutory scheme. ... For instance, Congress amended 18 U.S.C. § 2423 in 2003 to eliminate the requirement that the government had to prove the intent to engage in sexual activity, and instead allowed prosecution where the defendant traveled in foreign commerce and actually engaged in illicit sexual activity with a minor. See PROTECT Act, § 105, 117 Stat. at 654, codified as amended at 18 U.S.C. § 2423 (c); H.R. Rep. No. 107‑525 (2003) (Congress noted that this ‘legislation [would] close significant loopholes in the law that persons who travel to foreign countries seeking sex with children are currently using to their advantage in order to avoid prosecution’). Additionally, Congress enacted 18 U.S.C. § 2251(c) to clarify that acts covered under 18 U.S.C. § 2251(a) applied extraterritorially. See H.R. Rep. No. 108‑66, at 62‑63 (2003) (Conf. Rep.) (implying that the enactment of § 2251(c) was partly in response to Thomas).”

“The language of § 2251A requiring travel in foreign commerce, the broad sweep warranted by child pornography offenses, and Congress’s repeated efforts to prevent exploiters of children from evading criminal punishment demonstrate that Congress intended § 2251A to apply extraterritorially.” [Slip op. 10‑16]

Finally, the exercise of jurisdiction over Defendant comports with international law. Defendant is a U.S. citizen, thus there was jurisdiction based on the “nationality principle” which permits a country to exercise wide‑reaching criminal jurisdiction over one of its nationals.

Citation: United States v. Frank, 599 F.3d 1221 (11th Cir. 2010).

 


**** Patrick Michael Megaro is a partner at Halscott Megaro PA. His primary areas of practice are criminal defense, criminal appeals, post-conviction relief, civil appeals, and civil rights litigation. Attorney Profile at: https://solomonlawguild.com/patrick-michael-megaro; Attorney News at: https://attorneygazette.com/patrick-megaro%2C-esq#ab17a387-a757-4c0f-bc37-81f556fd15ea