United States v. Rife

429 F.Supp.3d 363

UNITED STATES of America, Plaintiff,

v.Micky RIFE, Defendant.

Criminal No. 3:19-cr-00010-GFVT-MAS

United States District Court, E.D. Kentucky, Central Division. Frankfort.

Signed December 20, 2019

David A. Marye, U.S. Attorney's Office, Lexington, KY, for Plaintiff.

James Michael Inman, Green, Chesnut & Hughes PLLC, Lexington, KY, for Defendant.

OPINION & ORDER

Gregory F. Van Tatenhove, United States District Judge

Defendant Micky Rife moves this Court, pursuant to Federal Rule of Criminal Procedure 12(b), to dismiss the indictment pending against him. [R. 27.] Mr. Rife was indicted on two counts of engaging in illicit sexual conduct in a foreign place, in violation of 18 U.S.C. § 2423(c). [R. 1.] Mr. Rife argues the particular subsection he is charged under is an unconstitutional exercise of Congressional authority as applied to him. For the reasons that follow, Mr. Rife's Motion to Dismiss the Indictment [R. 27] is DENIED .

I

A

In January 2019, Defendant Micky Rife was charged by criminal complaint of one count of engaging in illicit sexual conduct in a foreign place, specifically Cambodia, in violation of 18 U.S.C. § 2423(c). [R. 1.] Mr. Rife was arrested later that month. [R. 9.] On February 7, 2019, a grand jury returned an indictment against him in open court. [ R. 12.] The indictment charges Mr. Rife with two counts of engaging in illicit sexual conduct in foreign places in violation of 18 U.S.C. § 2423(c). [ R. 12.]

Mr. Rife is a United States citizen who, in September 2012, traveled to Cambodia and obtained a job teaching English to Cambodian children. Allegations of misconduct with students began as early as 2013 and lasted until his termination from the Cambodian school in December 2018. The counts in the indictment are based on allegations made by two former minor students at the school. The victims represented that Mr. Rife touched them inappropriately underneath their clothing while ostensibly playing with or carrying them. Mr. Rife returned to the United States, where he was arrested, in December 2018 following his termination at the Cambodian school. The government believes the conduct at issue occurred between 2014 and 2016.

The government does not allege that Mr. Rife offered either the children or their parents, or some other third party, any form of payment or remuneration in connection with the abuse of these students. Therefore, the "illicit sexual conduct" at issue here is that defined by § 2423(f)(1), i.e. , non-commercial in nature.

B

In July 2000, President Clinton signed the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography (hereinafter "Optional Protocol"). Letter of Submittal from President Clinton to the Department of State, S. Treaty Doc. No. 106-37, 2000 WL 33366017, at *1 (July 5, 2000). It was ratified by the Senate in June 2002. See 148 Cong. Rec. S5717-01 (daily ed. June 18, 2002). Its aim was to curb certain sex offenses "domestically and transnationally," related to "crimes of trafficking in children," namely the sale of children, child prostitution, and child pornography. Letter of Transmittal from President Clinton to the United States Senate, S. Treaty Doc. No. 106-37 (July 5, 2000). To that end, the Optional Protocol requires each signatory nation to ensure that certain sexual offenses against children are "fully covered under its criminal or penal law, whether theses offences are committed domestically or transnationally[.]" S. Treaty Doc. No. 106-37, art. 3. Cambodia is likewise a signatory to the Optional Protocol. See Status of Ratification of the Optional Protocol, http://indicators.Ohchr.org/.

In 2003, on the heels of the Optional Protocol, Congress enacted the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today ("PROTECT") Act. Pub. L. 108-21, 117 Stat. 650 (2003). Originally introduced as part of the Sex Tourism Prohibition Improvement Act of 2002, the purpose of PROTECT was to "make it a crime for a U.S. citizen to travel to another country and engage in illicit sexual conduct with minors." H.R. Rep. No. 107-525 (2002); Gregory Van Houten, Note, Testing Congress's Foreign Commerce and Treaty Powers: A New, (Un)Constitutional Tool for Combating American Child Sex Tourists? , 53 Am. Crim. L. Rev. 177, 188 (2016). Prior to PROTECT, it was already a criminal offense to travel in foreign commerce with the intent to engage in illicit sexual conduct with a minor. See 18 U.S.C. § 2423(b) (2000). However, enforcement proved difficult as prosecutors struggled to establish that the intent to engage in illicit sexual conduct existed prior to travel in foreign commerce. See PROTECT Act, Pub. L. No. 108-21, Title I, § 105(a), 117 Stat. 650, 652 (2003); see also H.R. Rep. No. 107-525 (2002). Thus, with the passage of the PROTECT Act, intent was no longer an element of the offense.

Changes to § 2423 came again in 2013 when Congress incorporated a residency clause into subsection (c) as part of the Violence Against Women Reauthorization Act. Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, Title XII, § 1211(b), 127 Stat. 54, 142 (2013). Today, § 2423(c) prohibits "travel[ing] in foreign commerce or resid[ing], either temporarily or permanently, in a foreign country, and engag[ing] in any illicit sexual conduct with another person." 18 U.S.C. 2423(c). "Illicit sexual conduct" is further defined as "(1) a sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the ... jurisdiction of the United States; or (2) any commercial sex act (as defined in section 1591) with a person under 18 years of age." 18 U.S.C. 2423(f)(1)-(2). Thus, § 2423(c) criminalizes both commercial and non-commercial sex acts with minors in foreign territories.

Defendant Micky Rife is charged under this latest iteration of 18 U.S.C. § 2423(c) with committing an illicit, non-commercial sex act with a minor while either traveling in foreign commerce or residing in a foreign country. [R. 1.] Mr. Rife believes the statute under which he is charged is an "unconstitutional exercise of Congressional authority" as applied to him, and argues that this Court should dismiss the indictment. [R. 27-1 at 2.]

II

A Defendant may challenge a defect in the indictment, including its constitutionality, via a pretrial motion to dismiss, provided "the basis of 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). A defendant may challenge the constitutionality of a statute facially or as applied. A statute is facially unconstitutional if it is "unconstitutional in all of its applications." Wash. State Grange v. Wash. State Republican Party , 552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008).

In contrast, an as-applied challenge alleges that the statute in question is unconstitutional as applied to the defendant's alleged conduct. Carroll v. City of Cleveland , 522 Fed. App'x 299, 306 (6th Cir. 2013). When ruling on a motion to dismiss an indictment, the Court accepts the factual allegations therein as true, and determines only whether the indictment is valid on its face. See United States v. McAuliffe , 490 F.3d 526, 531 (6th Cir. 2007). With these standards in mind, the Court finds that Mr. Rife's motion to dismiss the indictment must be DENIED.

A

Mr. Rife is not the first to question the constitutionality of the non-commercial prong of § 2423(c). Following both its enactment in 2003 and its amendment in 2013, § 2423(c) has made several appearances in the case law. To date, no circuit court has struck down the provision, but no two circuits have followed quite the same line of reasoning in upholding it, either. Circuit Courts analyzing § 2423 typically uphold it pursuant to Congress's Foreign Commerce Clause powers, Congress's treaty power, or both. See United States v. Park , 938 F.3d 354 (D.C. Cir. 2019) (finding criminalization of commercial and non-commercial sex acts with minors under § 2423(c) is necessary and proper for the implementation of the Optional Protocol); United States v. Lindsay , 931 F.3d 852 (9th Cir. 2019) (finding § 2423(c) did not exceed Congress's authority under the Foreign Commerce Clause as applied to non-commercial sexual abuse of a minor); United States v. Al-Maliki , 787 F.3d 784 (6th Cir. 2015) (upholding conviction under non-commercial prong of § 2423(c) under plain error review); United States v. Pendleton , 658 F.3d 299, 311 (3rd Cir. 2011) (holding § 2423(c) is a valid exercise of Congress's power to regulate "channels of foreign commerce" under the Foreign Commerce Clause). Mr. Rife argues that neither provides Congress the authority to criminalize conduct like that at issue here. [R. 27; R. 36.]

Article II gives the President the "Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." U.S. Const. art. II, § 2, cl. 2. The Necessary and Proper Clause grants Congress power to enact legislation that would implement such a treaty. U.S. Const. Art. II, § 8 cl. 18. This is commonly referred to as Congress's "treaty power". Park , 938 F.3d at 365. This power is broad, and therefore "the word ‘necessary’ does not mean ‘absolutely necessary.’ " United States v. Comstock , 560 U.S. 126, 134, 130 S.Ct. 1949, 176 L.Ed.2d 878 (2010). Instead, "necessary" means "convenient or useful" or "conducive to the authority's beneficial exercise." Id. (internal citations omitted). Thus, in examining the constitutionality of a particular statute under the Necessary and Proper Clause, the Court asks "whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power." Id.

The Sixth Circuit has not yet addressed whether the treaty power provides a constitutional basis for §...