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United States v. Park

United States District Court, District of Columbia

February 28, 2018

UNITED STATES OF AMERICA
v.
JOSEPH RICKY PARK, Defendant.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN UNITED STATES DISTRICT JUDGE

         Defendant 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 Clause.

         The 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.

         I. BACKGROUND

         A. Factual Background

         Despite 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.

         According 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.

         In 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 2015. Id.

         On 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 pornography.[1]

         B. Statutory Framework

         In 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, or both.

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).

         Originally, 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).

         II. LEGAL STANDARD

         A 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).

         III. DISCUSSION

         Park 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 residency abroad.[2]

         A. Congress's Authority to Enact Section 2423(c)

         Section 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 ...


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