Friday, January 27, 2006

Case o' The Week: No Clark Bar to Foreign Commerce Clause Jx

An international flight -- without intent to commit a crime -- and a commercial sex act is enough to create Foreign Commerce Clause jurisdiction, says the Ninth in United States v. Michael Clark, __ F.3d __, CA 04-30249, Slip. Op. 999 (9th Cir. Jan. 26, 2006), available here. A fascinating, if disapponting, case of first impression, with a thoughtful and compelling dissent by Judge Ferguson -- who doesn't buy this very broad view of federal power.

Players: AFPD Michael Filipovic of Seattle, WA who submitted “excellent and comprehensive briefing on this novel issue.” Slip. Op. at 1002.

Facts: Clark is a 71-year old vet who traveled to Cambodia and was caught having sex for money with two minor boys. Id. at 1005. He raised a host of legal challenges on appeal: the centerpiece was whether Congress had the power to regulate foreign commercial sex crimes under the constitution’s “Foreign Commerce Clause.” Id.

Issue(s): “At issue is whether Congress exceeded its authority to regulate Commerce with foreign Nations . . . in enacting a statute that makes it a felony for any U.S. citizen who travels in foreign commerce, i.e. to a foreign country, to then engage in an illegal commercial sex act with a minor.” Id. at 1003 (quotations and internal citations omitted).

Held: “We hold that Congress acted within the bounds of its constitutional authority.” Id. [The statute’s] combination of requiring travel in foreign commerce, coupled with engagement in a commercial transaction while abroad, implicates foreign commerce to a constitutionally adequate degree.” Id. at 1024. “The combination of Clark’s travel in foreign commerce and his conduct of an illicit commercial sex act in Cambodia shortly thereafter puts the statute squarely within Congress’s Foreign Commerce Clause authority.” Id. at 1027.

Of Note: This is an intriguing and complex case that will be the subject of many law review articles. The majority (McKeown and Hug) effectively abandon the traditional “channels of commerce” approach used for domestic Commerce Clause analysis – a point heavily criticized in a compelling Ferguson dissent. Id. at 1029. It also uses a “new” “rational basis” approach to Commerce Clause analysis. Id. at 1029 (“The rational nexus requirement is met to a constitutionally sufficient degree.”) Again, Ferguson persuasively questions the application of that rule. Although the new Supreme Court will like this outcome, as an important case of first impression – with novel analysis – this opinion seems en banc and/or cert. worthy.

How to Use: Undersigned has spoken to a sex-crimes AUSA who prosecutes these cases nationally: she is delighted with Clark and looks forward to bringing many new cases under the PROTECT Act. Attorneys near major international hubs – LAX, SFO – should read Clark carefully. There are several unaddressed issues in the case. First, the opinion doesn’t resolve how far "downstream" the statute reaches. Id. at 1013. Clark was caught two months after his international travel, but what if the crime was two years, or two decades, after the trip? (As an aside, it sweeps in the most minimal "commercial" contact. $7.00 was involved in this case. Ferguson worries that a US citizen merely eating lunch in France may be caught in the Foreign Commerce clause).

Second, the case is limited to commercial sex crimes. Id. at 1017 & n. 16. Unresolved is whether the Foreign Commerce clause extends to non-commercial sex crimes, which are also prohibited by the PROTECT act.

For Further Reading: Judge Warren Ferguson is one of the old Lions of the Left in the Ninth. Appointed by Carter in 1979, he took senior status in 1986. See article here. Now 85 years old, Judge Ferguson wears his “Liberal” views on his sleeve, god bless him: he advertises for clerks with a “commitment to social justice.” See article here. His steadfast protection of Constitutional rights – despite political pressures – is well-summarized by a notable summary in his Clark dissent: “The Constitution cannot be interpreted according to the principle that the end justifies the means. The sexual abuse of children abroad is despicable, but we should not, and need not, refashion our Constitution to address it.” Slip Op. at 1029.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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