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Beware when federal law criminalizes such overseas activities as sex with minors

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Richard Arthur Schmidt faced quite the reversal of fortune this week in the Fourth Circuit, which overturned the trial court’s reversal of his conviction on a guilty plea for traveling in foreign commerce and having sex with minor boy(s). United States v. Schmidt, ___ F. 3d ___ (4th Cir., Jan. 4, 2017).

At the outset, anyone reading Schmidt will not want him within a million miles of their minor children for even a millisecond. In his instant case, Schmidt was prosecuted for having sex, by rape (whether or not the Fourth Circuit means statutory rape), with at least one boy overseas after leaving the United States to avoid a parole violation charge on the allegation of having had unauthorized contact with a minor. Prior to Schmidt’s overseas escape, he had “been repeatedly convicted since 1984 for extensive and grotesque sex offenses involving young boys.”

Here, Schmidt first escaped to the Philippines, where he got prosecuted for sexually molesting boys. While on pretrial release in the Philippines, he flew to Cambodia, where he raped a boy.

The applicable federal criminal statute is 18 U.S. Code § 2423(c):

“Any United States citizen or alien admitted for permanent residence 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 shall be fined under this title or imprisoned not more than 30 years, or both.

Here, the definition of “illicit sex” includes penetrative sex with a minor: “a sexual act (as defined in [18 U.S.C. §] 2246) with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States.” 18 U.S. Code § 2423(f).

Schmidt initially entered an unconditional guilty plea in the Maryland federal trial court and was sentenced to fifteen years. Then, apparently through great representation by a habeas corpus lawyer, Schmidt convinced the same trial court that his original lawyer was ineffective for advising to plead guilty rather than to point out a purported defect that Schmidt’s flight to and time in the Philippines broke any chain of events that could have made his presence (and thus rape of a minor boy) in Cambodia a part of travel in foreign commerce. Schmidt’s habeas corpus court found Schmidt actually innocent and his original trial lawyer thereby ineffective under the Sixth Amendment.

Nothing doing, said the Fourth Circuit in reversing his trial court level habeas corpus victory, finding that Schmidt had far from abandoned his American residency and had not set replacement roots in the Philippines. Schmidt distinguishes that scenario from United States v. Jackson, 480 F.3d 1014 (9th Cir. 2007), where the Ninth Circuit concluded that the United States citizen defendant’s “travel in foreign commerce ended after he moved to Cambodia, purchased a home, and commenced the five-year residency requirement for Cambodian citizenship… [Jackson] and his partner also sold their home and remaining property in the United States, transferring all their assets to Cambodia. Id. Schmidt’s sojourns display none of these features.” Schmidt.

The Schmidt three-judge panel leaves open the door not to be as charitable with such attenuation arguments as the Ninth Circuit in Jackson: 

“Schmidt’s continuous course of travel makes it unnecessary to address the government’s contention that § 2423(c) applies to illicit sexual conduct even after travel in foreign commerce has concluded. Similarly, what might qualify as a nexus to the United States, or how attenuated a nexus might be permitted, are questions we need decide.” Schmidt at n. 4.

Schmidt is instructive not only for analyzing the statutory meaning of 18 U.S.C. § 2423(c), but also for having no hesitation to permit domestic United States prosecution for this type of overseas criminal activity by American citizens. Consequently, Americans who are inclined to engage in sex tourism (in Thailand and other countries) with minors are on notice of the United States’ criminal law penalties for doing so.

Moreover, subsection (b) of the same statute makes it a crime to cross state lines to engage in sex with a minor even if of an age meeting that state’s age of consent (for instance Maryland, where sixteen is the age of consent): “A person who travels in interstate commerce … for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.” 18 U.S.C. § 2423(b).  

Engaging in applicable sexual activity with minors anywhere simply is not worth it — apart from the moral issues in doing so — nor is risking such activity with people who appear to be adults or who even show identification claiming an age of majority, in the event they might turn out to be minors nevertheless.