United States District Court, D. Oregon
ORDER RE: MOTION TO DISMISS COUNTS 1-6; FOREIGN
Michael J. McShane United States District Judge
Daniel Johnson moves this Court, pursuant to Fed. R. Crim. P.
12(b)(3), to dismiss counts one through six of the
Superseding Indictment on constitutional grounds. Dkt. 59.
These counts charge Johnson with traveling in foreign
commerce (from the United States to the Kingdom of Cambodia)
and engaging in illicit sexual conduct with minors in
violation of 18 U.S.C. § 2423(c) and (e) (2003). Defendant
argues that § 2423(c) is facially unconstitutional as
well as specifically unconstitutional when applied to the
alleged conduct that forms the basis of the government's
Ninth Circuit has found 18 U.S.C. § 2423(c) to be
constitutional on its face. United States v. Clark,
435 F.3d 1100, 1103 (9th Cir. 2006) (reviewing the statute
under the “traditional rational basis standard”
the court found “[w]here [ ] the defendant travels in
foreign commerce to a foreign country and offers to pay a
child to engage in sex acts, his conduct falls under the
broad umbrella of foreign commerce and consequently within
congressional authority under the Foreign Commerce
Clause.”) In a facial challenge a litigant
must “establish that no set of circumstances exists
under which the Act would be valid.” United States
v. Salerno, 48 U.S. 739, 745 (1987). Because Defendant
cannot establish that no set of circumstances exists under
which the Act would be valid, 18 U.S.C. § 2423(c) is
constitutional on its face.
also challenges the constitutionality of § 2423(c) as
applied to the specific facts of his case, arguing that
Congress cannot rely on the foreign commerce clause to
regulate noncommercial sex acts committed abroad. He submits
that the facts underlying his charges differ from those found
in Clark, where the defendant was shown to have
routinely paid minors to perform sex acts while traveling
abroad. 435 F.3d at 1103. The Ninth Circuit in Clark
found that “§ 2423(c)'s combination of
requiring travel in foreign commerce, coupled with engagement
in a commercial transaction while abroad, implicates foreign
commerce to a constitutionally adequate degree.”
Id. at 1114. “[T]he statute covers the
situation where a U.S. citizen engages in a commercial
transaction through which money is exchanged for sex
acts.” Id. at 1115.
Johnson argues that the underlying criminal conduct he is
alleged to have engaged in lacks the necessary economic nexus
to fall under the Foreign Commerce Clause. The allegations
that he engaged in illicit sexual conduct with minors are
noncommercial sex acts- there is no allegation that anything
of value was given or received.
Court declines at the moment to rule on the Defendant's
as-applied challenge in order to allow for a factual record
to be developed at trial. United States v. Perry,
431 F.2d 1020, 1023 (9th Cir. 1970) (an as-applied challenge
is based on a developed record) citing White Motor Co. v.
United States, 372 U.S. 253 (1963). Without a factual
record, Defendant's as-applied challenge is premature.
Reply and in oral argument on February 15, 2018, Defendant
raised a further constitutional concern that § 2423(c)
lacks a requisite mental state as an element of the offense.
The court believes that issue can be addressed during jury
motion (Dkt. 59) is DENIED in part, as to constitutional
facial challenge. Defendant's as-applied challenge will
be re-visited after the development of the factual record.
The mens rea requirement under § 2423(c) will
be addressed during jury instructions.
 Subsection (e) provides that an
attempt or conspiracy to violate § 2423(c) shall be
punishable in the same manner as a completed
 City of Chicago v. Morales,
527 U.S. 41, 56 (1999) (criminal statute may be facially
unconstitutional if it is void for vagueness); Holder v.
Humanitarian Law Project, 561 U.S. 1, 18-19 (2010)
(as-applied challenge determines whether a statute is
unconstitutional as applied to a particular set of
 Authority for the exercise of
extraterritorial jurisdiction is found in the
Constitution's foreign commerce clause: Congress shall
have the power “to regulate Commerce with foreign
Nations, and among the several States, and with the ...