                              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        wrote   the
opinion, in which Judge Agee and Judge Harris joined.


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.
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     the   Philippines.       His     pattern       of    sex        offenses

nonetheless       continued    until     he      was    arrested       by     Cambodian

                                          2
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
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
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. 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

      2In 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
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.

        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

                                                       6
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.

       Travel 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.




                                                    7
                                       III.

                                        A.

     Schmidt      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.

     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
      When     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 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       with   the   United    States   is


      3Schmidt’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
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.”).

       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
        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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