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United States v. Lieu

United States District Court, District of Columbia

June 15, 2018

UNITED STATES OF AMERICA
v.
DAVID LIEU, Defendant.

          MEMORANDUM OPINION, DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT FOR LACK OF JURISDICTION

          RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Defendant David Lieu has been charged with distributing child pornography and traveling with the intent to engage in illicit sexual conduct with a person under the age of eighteen. The charges arise from an undercover investigation, during which Defendant allegedly exchanged child pornography with an undercover detective and traveled from Maryland to Washington, D.C. to engage in sexual activity with a child. This matter is presently before the Court on Defendant's pro se motion to dismiss the charges for lack of jurisdiction. For the reasons stated below, the Court denies Defendant's motion.

         II. FACTUAL BACKGROUND

         A. Factual Allegations [1]

         The government intends to prove the following allegations at trial. In the winter of 2016, Detective Timothy Palchak was acting in an undercover capacity as part of the Metropolitan Police Department-Federal Bureau of Investigation Child Exploitation Task Force. Detective Palchak posted an internet advertisement designed to attract individuals with a sexual interest in children, Defendant responded to that ad, and Defendant and Detective Palchak subsequently engaged in a series of electronic communications in which Detective Palchak posed as a father of a fictitious nine-year-old-girl.

         In his communications with Detective Palchak, Defendant discussed his prior illicit sexual conduct with his step-daughter, sent Detective Palchak several images of child erotica and child pornography, and made arrangements to meet Detective Palchak and the fictitious child on February 4, 2016 for the purpose of engaging in illicit sexual activity with the child. On that date, Defendant traveled from Maryland to Washington D.C. and met Detective Palchak at a prearranged location, where he was arrested. Defendant was charged, and subsequently indicted, with one count of distributing child pornography, in violation of 18 U.S.C. § 2252(a)(2), and one count of travel with intent to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). See Compl., ECF No. 1; Superseding Indictment, ECF No. 48.

         B. The Current Motion

         In December 2016, although he was represented by counsel, Defendant filed a pro se motion to dismiss the charge brought under 18 U.S.C. § 2423(b). Under this provision:

“A person who travels in interstate commerce or travels into the United States, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign 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.” Defendant's motion, however, was held in abeyance at the request of Defendant's counsel.

         Defendant later retained new counsel, who filed a notice that he was submitting Defendant's motion without argument. Def. Counsel's Response, ECF No. 59. The government submitted a brief in opposition, and the motion is now ripe for the Court's consideration.1F[2]

         III. ANALYSIS

         Defendant makes several arguments for why the charge brought under 18 U.S.C. § 2423(b) should be dismissed. Specifically, he argues that: (1) the Court lacks subject matter jurisdiction; (2) Section 2423(b) does not apply to Defendant's case; (3) Section 2423(b) violates the Commerce Clause of the United States Constitution; and (4) Section 2423(b), as applied to Defendant, impermissibly criminalizes “mere thought.” For the reasons set forth below, this Court concludes that none of these arguments have merit.

         A. The Court's Subject ...


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