United States District Court for the District of Delaware
11 February 2009
Other International Provisions:
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography (OPSC)
Prosecutorial Remedies and Other Tools to End the Exploitation of the Children Today Act 2003 (PROTECT Act), sections 2423(c) and (f)(1)
Constitution of the United States
Mr Pendleton, a US national, was convicted of having illicit sexual contact with a teenage boy in Germany and served a prison sentence there. Upon his release, he was deported back to the US, arrested, and indicted by a federal grand jury for travelling in foreign commerce to engage in illicit sexual conduct, in violation of sections 2423(c) and (f)(1) of the Prosecutorial Remedies and Other Tools to End the Exploitation of the Children Today Act (PROTECT Act). Mr Pendleton filed a motion to dismiss the indictment, challenging the validity of the PROTECT Act and US jurisdiction under rules of international law.
Issue and resolution:
Whether certain provisions of the PROTECT Act exceed Congress’ authority under the foreign commerce clause; whether these provisions violate substantive due process requirements under the Fifth Amendment; and whether Mr Pendleton’s prosecution under the PROTECT Act is barred by principles of international law. The Court denied Mr Pendleton’s motion to dismiss the indictment.
The Court held that sections 2423(c) and (f)(1) of the PROTECT Act were a valid exercise of Congress’ power to regulate the “channels” of foreign commerce. Among other things, these provisions are “necessary and proper” to the implementation of the US’ international treaty obligations under the Optional Protocol to the CRC on the Sale of Children, Child Prostitution, and Child Pornography. The Court also found that US citizenship alone provides a sufficient basis for the constitutional exercise of jurisdiction over the defendant in this case, and therefore that sections 2423(c) and (f)(1) of the PROTECT Act do not violate substantive due process requirements under the Fifth Amendment. Finally, the Court found that the prosecution of the defendant was not barred by international law as Congress intended for the PROTECT Act to be applied extraterritorially, and international law principles cannot override or invalidate this clear intent. Moreover, the US has an interest in regulating the behaviour of its citizens, regardless of whether its citizen has already been prosecuted in another country.
Excerpts citing CRC and other relevant human rights instruments:
Third, the court further finds that §§ 2423(c) and (f)(1) are valid under the Necessary and Proper Clause. That is, these provisions are “necessary and proper” to the implementation of the United States’ international treaty obligations. See United States v. Franks, 486 F.Supp.2d 1253, 1256–58 (S.D.Fla.2007) (finding that Congress could enact § 2423(c) under the Necessary and Proper Clause); United States v. Pepe, No. 07-168-DSF, slip op. at 6 (C.D.Cal. Dec. 3, 2007) (“ Section 2423(c) … is thus a necessary and proper means of implementing the government’s treaty-making power.”) […] Specifically, Article VI, Clause 2 of the United States Constitution gives Congress the authority to enact legislation to implement treaties under the Necessary and Proper Clause. See Missouri v. Holland, 252 U.S. 416, 432, 40 S.Ct. 382, 64 L.Ed. 641 (1920). Therefore, when analyzed in conjunction with Congress’ power to enact legislation to implement treaties, §§ 2423(c) and (f)(1) are, indeed, valid. [FN3]
[FN3] On June 18, 2002, the U.S. Senate ratified the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography. S. Treaty Doc. No. 106-37, 39 L.L.M. 1285 (the “Optional Protocol Treaty”). […] The government correctly notes that § 2423(c) is promulgated in accord with the Optional Protocol Treaty in that it prohibits travel from the United States to engage in illicit commercial sex acts or to sexually assault or abuse children abroad. See Franks, 486 F.Supp.2d at 1256–58. […]
The validity of the laws of the United States do not depend on international law. SeeAlvarez-Mendez v. Stock, 941 F.2d 956, 963 (9th Cir. 1991). That said, courts, however, generally construe statutes so as to avoid conflict with international law when possible to do so without distorting them. See Murray v. The Schooner Charming Betsy, 6 U.S. 64 (1804). […]
Here, the defendant contends that his prosecution is barred by international law because, among other things, “it violates applicable limitations on the exercise of extra-territorial jurisdiction. […] The court disagrees.
First, it is clear Congress intended for the PROTECT Act to be applied extraterritorially […] As the government correctly notes, international law principles cannot override or otherwise invalidate this clear intent. Nor is the court persuaded that international law principles of “reasonableness” invalidate the provisions at issue in this case.
Finally, the defendant’s argument that this prosecution is unreasonable as a matter of international law because he was previously prosecuted in German is equally unpersuasive. The fact that Germany has an interest in regulating, and does regulate the behavior of adults toward children within its territorial limits, in no way diminishes the interest the United States has in regulating that same behavior when it involves one of its citizens. In this case, Pendleton’s previous prosecution, conviction, and term of imprisonment in Germany for a German sexual offense does not, in any way, diminish or bar prosecution or enforcement of United States law under the PROTECT Act. Germany and the United States are separate sovereigns. […] And, much as in the instance of a successive prosecution by the government of the United States and one of the states of a citizen for the same behaviour under different laws, the United States may assert its interest in the circumstances presented in this case.
Mr Pendleton took his case to the Court of Appeal for the Third Circuit, which affirmed the District Court’s decision.
CRIN believes that this decision is consistent with the CRC and the OPSC. CRIN notes Article 34 of the CRC, under which states have an obligation to protect children from sexual exploitation and abuse. CRIN further notes Article 3(1) of the OPSC, which requires states to criminalise sexual exploitation of children regardless of whether such offences occur domestically or transnationally, as well as Article 4(2)(a), which provides that a state may take such measures as may be necessary to establish its jurisdiction over such offences when the alleged offender is a national of that state.
United States of America v. Thomas Pendleton, Criminal Action No. 08-111-GMS
Link to Full Judgment: