January 4, 2017
UNITED STATES OF AMERICA, Plaintiff - Appellant,
RICHARD ARTHUR SCHMIDT, Defendant-Appellee.
Argued: December 6, 2016
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)
Raman, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellant.
Elizabeth Davis, DAVIS & DAVIS, Washington, D.C., for
Rosenstein, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellant.
WILKINSON, AGEE, and HARRIS, Circuit Judges.
WILKINSON, Circuit Judge:
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,
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.
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 the Philippines. His pattern of sex
offenses nonetheless continued until he was arrested by
Cambodian 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
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
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 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.
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
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.
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 of" engaging in illicit
sexual conduct, id., and passed § 2423(c) to
"close loopholes that facilitated the abuse of children
abroad by sex tourists, " United States v.
Bollinger, 798 F.3d 201, 219 (4th Cir. 2015). As the
House Conference Report explained, "Current law [§
2423(b)] 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.
construe the statute accordingly.
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 en route from one place to another, and such a
narrow construction of travel would surely defeat the 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 as the visit is sufficiently transient or
contemplates some future departure. See United States 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
category are usually considered mere visitors, while people
in the second category are considered residents or
domiciliaries of the new location." Id. at
1023-24. This construction "comports with colloquial
usage." Id. at 1023.
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 noted, focusing on the conjunctive
"with, " that foreign commerce requires some nexus
with the United States. See Bollinger, 798 F.3d at
214. This makes sense: The United States cannot go around
prosecuting under the statute those with no 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 commerce occurring outside the
United States and without nexus whatsoever to this
country."). The statutory history of § 10
reinforces this requirement. See Weingarten, 632
F.3d at 67-70.
in foreign commerce therefore encompasses movement abroad
that maintains some nexus with the United States. We consider
all relevant facts and circumstances to determine whether and
to what extent a defendant traveled in foreign commerce.
does not contest that he traveled in foreign commerce when he
fled the United States to the 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.
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.
Schmidt's 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
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
contends, however, that travel in foreign commerce
necessarily ends sometime during the first stop after
departure and that the requisite nexus with the United States
is thereafter severed. But nothing in § 2423(c)
indicates that illicit sexual conduct must take place
immediately 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.").
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
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.
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.
 Schmidt also pleaded guilty to Count 7
of his indictment, which the government has conceded was
 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).
 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
 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.