United States District Court, District of Columbia
S. CHUTKAN UNITED STATES DISTRICT JUDGE
Joseph Ricky Park is charged in a one-count indictment with
engaging and attempting to engage in illicit sexual conduct
in Vietnam in violation of 18 U.S.C. §§ 2423(c) and
(e). ECF No. 2 (Indictment). Park moves to dismiss the
indictment, arguing that 18 U.S.C. § 2423(c) is facially
unconstitutional and unconstitutional as applied to him.
Specifically, he argues that: (1) Congress did not have
constitutional authority to enact section 2423(c); (2) the
statute violates his due process rights; and (3) the statute
violates the Constitution's Ex Post Facto
court finds the alleged conduct in this case, if true, to be
reprehensible. Every effort must be made to prosecute and
eradicate the exploitation of children, wherever it takes
place. Nevertheless, the statute under which a defendant is
charged must be appropriate to the conduct alleged. Upon
consideration of the parties' pleadings and the relevant
law, the court finds that the application of 18 U.S.C. §
2423(c) to Park's alleged conduct is unconstitutional,
and therefore Park's motion to dismiss will be GRANTED.
being a United States citizen, Park has not resided in nor
traveled to the United States in over fourteen years. ECF No.
18 (Mot.) at 1. He left the U.S. in 2003, and spent time in
several countries, including Cuba, South Korea, the
Philippines, Thailand, Russia, Kuwait, China, Laos,
Singapore, Malaysia, Saudi Arabia, Bahrain, Lebanon, and
Cambodia. ECF No. 23 (Opp.) at 2. From 2012 until October
2015, Park resided in Vietnam, where the conduct with which
he is charged occurred. Mot. at 1; Opp. at 3.
to the government, around January 2015, Park invited three
Vietnamese minor boys to his apartment, ostensibly for
English language instruction. Opp. at 2. While the boys were
playing video games, Park allegedly placed his hand on one of
the minor's genitals, and proceeded to
“‘pinch' and stroke” the minor's
genitals through his clothing. Id. at 2-3. Park then
allegedly attempted to place his hand inside the minor's
pants, but the minor pushed Park's hand away.
Id. at 3.
October 2015, Vietnamese authorities asked Park to leave the
country, on the grounds that he was teaching English while on
a tourist visa. Id. Park agreed to leave and went to
Thailand, where he was initially detained by authorities.
Opp. at 3; ECF No. 21 (Gov't Mot. to Suppress Resp.) at
6. Around the time he left for Thailand, Park instructed a
friend to go to his apartment in Vietnam and remove
approximately 1, 000 U.S. Dollars and an unspecified amount
of Vietnamese Dong. Opp. at 3. He also directed his friend to
purchase a plane ticket to Thailand, and to bring him his
laptop, bank card, bank documents, vitamins, and any leftover
money. Id. A few weeks later, he told his friend to
retrieve any remaining items-including various computer
devices-left in the apartment in Vietnam and store them in
his friend's house. Id. A search of the computer
devices, which were retrieved pursuant to a search warrant,
revealed evidence of unidentified victims used in the
production of child pornography from July 2013 through August
January 13, 2016, Park was indicted on charges of engaging
and attempting to engage in illicit sexual conduct with a
minor in Vietnam in violation of 18 U.S.C. §§
2423(c) and (e). Park is also charged with the actual and
attempted production of the recovered child
2003, Congress enacted the Prosecutorial Remedies and Other
Tools to End the Exploitation of Children Today Act
(“PROTECT Act”). Pub. L. 108-21, 117 Stat. 650
(2003). Section 2423(c) prohibited “travel[ing] in
foreign commerce, and engag[ing] in any illicit sexual
conduct.” 117 Stat. at 654. On March 7, 2013, Congress
amended section 2423(c) to reach U.S. citizens who
temporarily or permanently reside abroad:
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,
18 U.S.C. § 2423(c); Pub. L. 113-4, 127 Stat. 142
(2013). Section 2423(e), as applied in this case, prohibits
attempting to engage in illicit sexual conduct while residing
in a foreign country. See 18 U.S.C. § 2423(e).
section 2423(f) included two definitions of “illicit
sexual conduct”: (a) “a sexual act . . . 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,
” and (b) “any commercial sex act . . . with a
person under 18 years of age. Pub. L. 108-21, 117 Stat. 654.
In May 2015, as part of the Justice for Victims of
Trafficking Act of 2015, Congress further amended section
2423 by amending the definition of “illicit sexual
conduct” in section 2423(f) to include
“production of child pornography (as defined in section
2256(8)).” Pub. L. 114-22, 129 Stat. 240 (2015).
defendant may challenge “a defect in the indictment or
information”-including its constitutionality-as long as
“the basis for the motion is then reasonably available
and the motion can be determined without a trial on the
merits.” Fed. R. Crim. P. 12(b)(3)(B). In making such a
challenge, a defendant may challenge a statute as
unconstitutional on its face or as applied to the conduct
alleged. See Hodge v. Talkin, 799 F.3d 1145, 1156-57
(D.C. Cir. 2015). In order to show that a statute is facially
unconstitutional, a defendant must demonstrate that the
statute is “unconstitutional in all of its
applications.” John Doe Co. v. Consumer Fin. Prot.
Bureau, 849 F.3d 1129, 1133 (D.C. Cir. 2017) (citing
United States v. Salerno, 481 U.S. 739, 745 (1987)).
In contrast, an as-applied challenge need only show that the
statute is “an unconstitutional exercise of
congressional power” as applied to the defendant's
alleged conduct. United States v. Sullivan, 451 F.3d
884, 887 (D.C. Cir. 2006). When ruling on a motion to dismiss
an indictment, the district court assumes the truth of the
factual allegations in the indictment and the
government's proffered facts. United States v.
Ballestas, 795 F.3d 138, 149 (D.C. Cir. 2015).
moves to dismiss the indictment on the grounds that: (1)
Congress lacked constitutional authority to enact 18 U.S.C.
§ 2423(c); (2) section 2423(c) violates his rights under
the Due Process Clause of the Constitution because it is
unfair and arbitrary; and (3) section 2423(c) violates his
rights under the Ex Post Facto Clause of the
Constitution because it retroactively criminalizes his
Congress's Authority to Enact Section 2423(c)
2423(c), originally and as amended, is presumed
constitutional. Nat'l Mining Ass'n v.
Kempthorne,512 F.3d 702, 711 (D.C. Cir. 2008)
(“[T]he judiciary must rightly presume that Congress
acts consistent with its duty to uphold the
Constitution.”); see also United States v.
Knowles, 197 F.Supp.3d 143, 152 (D.D.C. 2016)
(“The Court must presume that a federal statute is
constitutional.”). Notwithstanding this presumption,
Congress's power to enact any law, including section
2423(c), must derive from the Constitution. United States
v. Morrison, 529 U.S. 598, 607 (2000) (“Every law
enacted by Congress must be based on one or more of its
powers enumerated in the Constitution.”); see also
United States v. Carvajal, 924 F.Supp.2d 219, 249
(D.D.C. 2013) (“Because the powers of the legislature
are defined and limited, every law enacted by Congress must
be based on one or more of ...