US v. Richard Schmidt

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:04-cr-00052-JFM-1, 1:12-cv-03370-JFM [999997490]. [16-6567]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6567

UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
RICHARD ARTHUR SCHMIDT,
Defendant - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
J. Frederick Motz, Senior District
Judge. (1:04-cr-00052-JFM-1; 1:12-cv-03370-JFM)

Argued:

December 6, 2016

Decided:

January 4, 2017

Before WILKINSON, AGEE, and HARRIS, Circuit Judges.

Reversed by published opinion.
Judge Wilkinson
opinion, in which Judge Agee and Judge Harris joined.

wrote

the

ARGUED: Sujit Raman, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellant. Mary Elizabeth Davis, DAVIS
& DAVIS, Washington, D.C., for Appellee.
ON BRIEF: Rod J.
Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellant.

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WILKINSON, Circuit Judge:
Richard

Schmidt

pleaded

guilty

to

traveling

in

foreign

commerce and engaging in illicit sexual conduct in violation of
18 U.S.C. § 2423(c). Schmidt now argues that, as a matter of
law, he did not travel in foreign commerce in connection with
his illicit sexual conduct and is thus actually innocent of the
offense. The district court agreed. We review the judgment of
the district court de novo, and for the reasons that follow, we
reverse.
I.
In the words of the district court, Schmidt is a “sexual
predator.” United States v. Schmidt, Civ. No. JFM-13-3370, 2015
WL

5440732,

at

*1

(D.

Md.

Sept.

11,

2015).

He

has

been

repeatedly convicted since 1984 for extensive and grotesque sex
offenses involving young boys.
In

June

2002,

Schmidt

fled

the

United

States

to

the

Philippines to avoid arrest for allegedly making unauthorized
contact with a minor in violation of his parole. He obtained
employment there as a school instructor until he was arrested by
Philippine authorities for once again sexually molesting young
boys. In December 2003, Schmidt fled to Cambodia during a period
of pre-trial release, roughly eighteen months after he first
arrived

in

nonetheless

the

Philippines.

continued

until

His
he
2

pattern
was

of

arrested

sex
by

offenses
Cambodian

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authorities that same month. He was soon released on “police
watch” only to rape another young boy within two days. As a
result,

Schmidt

was

deported

to

the

United

States

to

face

numerous criminal charges, including a violation of § 2423(c) in
Count

10

of

his

indictment

for

illicit

sexual

conduct

in

Cambodia. Schmidt pleaded unconditionally guilty to this charge
and

was

sentenced

to

a

prison

term

of

fifteen

years

and

a

lifetime of supervised release. 1
Schmidt now petitions under 28 U.S.C. § 2255 to vacate his
conviction, arguing that he is actually innocent of violating
§ 2423(c) and that his counsel was ineffective for failing to
notice this defect at the time he entered his plea. Schmidt does
not deny his illicit sexual conduct. Instead, Schmidt contends
that his travel in foreign commerce ended during his stay in the
Philippines, long before his illicit sexual conduct in Cambodia.
He further claims that any subsequent travel, such as his flight
to Cambodia, was not independent travel in foreign commerce for
purposes of § 2423(c).
We are therefore presented with a straightforward question.
When

did

Schmidt’s

travel

in

foreign

commerce

end

after

he

departed the United States? Because we conclude that Schmidt was
still traveling in foreign commerce from the time he departed
1

Schmidt also pleaded guilty to Count 7 of his indictment,
which the government has conceded was defective.
3

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the United States until the time of his illicit sexual conduct
in Cambodia, we conclude that he is not actually innocent of the
§ 2423(c) offense.
II.
A.
Congress

enacted

§ 2423(c)

as

part

of

the

Prosecutorial

Remedies and Other Tools to End the Exploitation of Children
Today (“PROTECT”) Act of 2003, Pub. L. No. 108-21, § 105(a), 117
Stat. 650, 654 (2003). At the time of Schmidt’s offense, it
read:
Engaging in Illicit Sexual Conduct in Foreign Places.—
Any United States citizen or alien admitted for
permanent residence who travels in foreign commerce,
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.
As the title implies, § 2423(c) was intended to criminalize
“Engaging in Illicit Sexual Conduct in Foreign Places.” It was
aimed in part at the “ugly American,” whose sexual exploits and
visitation to sexual guesthouses abroad have helped to stimulate
the sex trade in young children even to the point of wrenching
them at an early age from their own homes.
The statute expanded upon 18 U.S.C. § 2423(b), which had
been previously enacted to criminalize “Travel With Intent To
Engage

in

Illicit

Sexual

Conduct.”

Congress

recognized

the

difficulty of proving that a defendant traveled “for the purpose

4

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of”

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engaging

§ 2423(c)

to

in

illicit

“close

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sexual

loopholes

conduct,

that

id.,

facilitated

and

the

passed

abuse

of

children abroad by sex tourists,” United States v. Bollinger,
798

F.3d

Report

201,

219

explained,

(4th

Cir.

“Current

2015).
law

As

the

House

[§ 2423(b)]

Conference

requires

the

government to prove that the defendant traveled with the intent
to

engage

in

the

illegal

activity.

Under

this

section

[§ 2423(c)], the government would only have to prove that the
defendant engaged in illicit sexual conduct with a minor while
in a foreign country.” H.R. CONF. REP. NO. 108–66, at 51 (2003),
reprinted in 2003 U.S.C.C.A.N. 683, 686. 2
We construe the statute accordingly.
B.
Merriam-Webster’s Collegiate Dictionary defines “travel” as
“to go on or as if on a trip or tour,” “to go from place to
place,” and “to move or undergo transmission from one place to
another.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 1331 (11th ed. 2003).
Neither party contends that prohibited sexual conduct must occur
2

In 2013, Congress amended § 2423(c) to criminalize illicit
sexual conduct by any United States citizen who “travels in
foreign commerce or resides, either temporarily or permanently,
in a foreign country.” Pub. L. No. 113-4, § 1211(b), 127 Stat.
54, 142 (2013) (emphasis added). To the extent Congress meant to
clarify the original meaning of § 2423(c), the Supreme Court has
held that “[s]ubsequent legislation declaring the intent of an
earlier statute is entitled to great weight in statutory
construction.” Red Lion Broad. Co. v. FCC, 395 U.S. 367, 380–81
(1969).
5

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en

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route

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from

construction

one

of

place

travel

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to

another,

would

surely

and

such

defeat

the

a

narrow

intent

of

Congress. See United States v. Clark, 435 F.3d 1100, 1107 (9th
Cir. 2006) (“It [§ 2423(c)] does not require that the conduct
occur

while

traveling

in

foreign

commerce.”).

Rather,

travel

denotes a broader concept of movement abroad. A person may still
be traveling even after a significant amount of time in a given
location

so

long

contemplates

as

some

the

future

visit

is

sufficiently

departure.

See

transient

United

States

or
v.

Jackson, 480 F.3d 1014, 1022 (9th Cir. 2007). Travel can thus
continue until a party either returns to his or her place of
origin or permanently resettles elsewhere. As the Ninth Circuit
has observed, “[A]n understanding that travel ends only upon
permanent

resettlement

in

a

foreign

country

is

supported

by

courts’ regular use of a distinction between individuals who are
physically present without intending to stay in a locale and
those who are present with an intent to remain. People in the
first
people

category
in

the

domiciliaries

are

usually

second
of

the

considered

category
new

are

location.”

mere

visitors,

considered
Id.

at

while

residents
1023-24.

or

This

construction “comports with colloquial usage.” Id. at 1023.
Next,

18

U.S.C.

§

10

defines

“foreign

commerce,”

in

language that largely parallels the Foreign Commerce Clause, to
include “commerce with a foreign country.” We have previously
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noted, focusing on the conjunctive “with,” that foreign commerce
requires some nexus with the United States. See Bollinger, 798
F.3d

at

around

214.

This

makes

prosecuting

sense:

under

the

The

United

statute

States

those

cannot

with

no

go

real

connection to this country. See United States v. Pendleton, 658
F.3d 299, 307-08 (3d Cir. 2011) (“Courts have consistently held
that the Foreign Commerce Clause requires a jurisdictional nexus
‘with’ the United States, but there is precious little case law
on

how

to

establish

the

requisite

link . . . .”

(citations

omitted)); United States v. Weingarten, 632 F.3d 60, 70 (2d Cir.
2011)

(“[I]t

would

be

anomalous

to

construe

the

general

definition of ‘foreign commerce’ in § 10 . . . as including all
forms

of

without

commerce
nexus

occurring

whatsoever

outside

to

this

the

United

country.”).

States

The

and

statutory

history of § 10 reinforces this requirement. See Weingarten, 632
F.3d at 67-70.
Travel in foreign commerce therefore encompasses movement
abroad

that

consider
whether

all
and

maintains
relevant
to

what

some

nexus

facts
extent

and
a

with

the

circumstances

defendant

commerce.

7

United
to

traveled

States.

We

determine
in

foreign

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III.
A.
Schmidt
commerce

does

when

not

he

fled

contest
the

that

United

he

States

traveled
to

the

in

foreign

Philippines.

Movement directly to or from the United States is unquestionably
an adequate nexus. Instead, Schmidt argues that his travel in
foreign commerce ended shortly thereafter. He points out that he
obtained a work permit and full-time employment, rented a home,
and used a local driver’s license in the Philippines. He further
argues that the eighteen months he spent there was sufficient to
indicate that his travel had ended, or at least to sever any
nexus with the United States. As a result, Schmidt contends that
he was no longer traveling in foreign commerce when he fled to
and engaged in illicit sexual conduct in Cambodia.
We disagree. Schmidt overlooks a number of more significant
factors. To begin, his status remained transient from the time
he left the United States until the time of his illicit sexual
conduct in Cambodia. He stayed in the Philippines on a series of
two-month tourist visas and worked using an “alien employment
permit” for “non-resident foreign nationals” that he apparently
allowed

to

lapse

before

renewing.

J.A.

223-24.

Schmidt

also

maintained a substantial amount of money in the United States,
and never purchased a home or other property abroad.

8

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Schmidt’s

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unlawful

sexual

conduct

attracted

the

attention of Philippine authorities, he had no trouble making a
quick pivot to Cambodia. Unlike when he fled the United States
leaving significant assets behind, Schmidt fled the Philippines
leaving no trace beyond the ruin caused by his sexual exploits.
He

then

entered

Cambodia

on

a

one-month

tourist

visa

and

frequented guesthouses known to attract sex tourists.
We specifically note that Schmidt continually traveled on a
United States passport and made no effort to obtain permanent
status in another country. At all times, he was a visitor in
both the Philippines and Cambodia. The sum of these factors is
more than sufficient to establish for purposes of § 2423(c) that
Schmidt was still traveling in foreign commerce from the time he
left the United States until the time of his illicit sexual
conduct

in

Cambodia.

Contrary

to

his

protestations

of

permanency, Schmidt was something of a rolling stone. 3
B.
Schmidt contends, however, that travel in foreign commerce
necessarily ends sometime during the first stop after departure
and

that

the

requisite

nexus

3

with

the

United

States

is

Schmidt’s conviction does not present an ex post facto
problem because he was still traveling in foreign commerce and
engaging in illicit sexual conduct after § 2423(c) was enacted
on April 30, 2003. Count 10 charged Schmidt with violating
§ 2423(c) in December 2003.
9

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thereafter
illicit

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severed.

sexual

But

conduct

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nothing
must

in

take

§

2423(c)

place

indicates

immediately

that

or

even

shortly after leaving the United States, or that a single course
of

travel

is

limited

to

a

single

destination.

Common

sense

refutes any such notion. Schmidt’s theory would allow a simple
layover to defeat the clear design of the statute. A defendant
might make a quick stop and then proceed elsewhere cloaked in an
artificial immunity from prosecution. See Weingarten, 632 F.3d
at

71.

Intermediate

stops

of

longer

duration

are

likewise

inapposite until a party returns to his or her place of origin
or permanently resettles. See id. (“[M]ere stops along the way
do not deprive travel of its territorial nexus to the United
States.”).
Schmidt finally emphasizes that he had no intent to return
to the United States and thus his travel in foreign commerce
necessarily

concluded

shortly

after

he

arrived

in

the

Philippines. However, the element of travel and requisite nexus
with the United States is an objective inquiry that does not
turn

solely

on

self-serving

and

subjective

allegations

of

intent. While intent to permanently resettle may be one factor
in determining when relevant travel in foreign commerce comes to
an end, it is not dispositive. In any event, the record here
does not support Schmidt’s claim.

10

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United States v. Jackson is instructive by comparison. The
Ninth Circuit there concluded that the defendant’s travel in
foreign commerce ended after he moved to Cambodia, purchased a
home,

and

commenced

the

five-year

residency

requirement

for

Cambodian citizenship. 480 F.3d at 1015-16, 1024. The defendant
and his partner also sold their home and remaining property in
the United States, transferring all their assets to Cambodia.
Id. Schmidt’s sojourns display none of these features. 4
IV.
The judgment of the district court is accordingly reversed.
We remand for reinstatement of the judgment of conviction on
Count 10,

which

charged

defendant

with

the

aforementioned

§ 2423(c) offense.
REVERSED

4

Schmidt’s continuous course of travel makes it unnecessary
to address the government’s contention that § 2423(c) applies to
illicit sexual conduct even after travel in foreign commerce has
concluded. Similarly, what might qualify as a nexus to the
United States, or how attenuated a nexus might be permitted, are
questions we need not decide.
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