i'm happy to hear from you thank you very much judge wilkinson and may it please the court when congress enacts section twenty four twenty three c its goal as this court observed in u s vs bolger was to close existing loopholes that facilitated the abuse of children abroad by u s citizens as the text of the statute and as its legislative history makes clear section twenty four twenty three c as originally enacted criminalized every illicit sex act perpetrated by a u s citizen abroad the district court's holding that mr schmidt is actually innocent of count ten is incompatible with that basic principle and should be reversed for three reasons first the defendant was traveling in foreign commerce when he fled to cambodia in december of two thousand and three because he still violated the statute for the very reason i mentioned at the outset because section twenty four twenty three c criminalizes every illicit sex act perpetrated abroad by a us citizen or your group has to be is actually innocent of his plea based convictions on count seven and count ten he still never should have secured collateral relief in this case because he has never demonstrated his factual innocence of counts one through six in his indictment which charges the government dismissed in exchange for his guilty pleas as required by the supreme court's decision and bruce lee vs united states accordingly for all these reasons your honors we ask this court to reverse the district court's grant of collateral relief and to remand the case with instructions to reinstate judgment as to count ten and i would like to begin judge agee with with the point that you've made which is that in the government's view mr schmidt was still traveling at the time that he fled from the philippines to cambodia and i think it's useful to look at the ninth circuit's opinion in jackson in this case where the ninth circuit laid out what it means to travel provided a number of dictionary definitions and concluded that the ultimate standard is a person permanently settled in a location is no longer travelling even if that place was not his point of origin now applying that it is a known trip marco polo here on earth left venice in twelve so polo left venice in twelve seventy one and returned to venice and twelve ninety five so he was traveling for twenty five years because travel and i think the ninth circuit standard is a very useful one which is there i mean their point is how many people three years without stopping back to the united states well i think on the facts of this case your hon certainly in contrast to the defendant in jackson where mr jackson had permanently settled in cambodia he had bought a house there unlike mr schmidt who never purchased any kind of a home once he was outside the united states mr jackson had  pretty substantial financial ties in cambodia he had actually taken all this money out of the united states maintain a depository account here and then essentially wired all the money to southeast asia which is exactly the inverse of the the case here where one reason for mr schmitz travel was that he was a fugitive from justice the country in order to avoid arrest i think it's one factor it certainly explains your honor why he was sort of moving from place to place once you left the united states i don't think though that it really gets into the question of his conviction under count ten which alleged a violation of twenty four twenty three c unlike count seven which alleged a violation  ten i think the motivation for the travel is less important the subject of intentions and more the object of fact that he had never actually permanently settled anywhere else so how do we determine whether someone is travelling is a totalit circumstances test do we look i mean do we look at the length of time he's away from the united states do we look at the number of countries he's visited do we look at what is the activities were when he was  actually wanted to give up his u s citizenship and there isn't actually an affidavit in the record in that case where mr jackson essentially wanted to spend the five years in cambodia which would have qualified him for cambodian citizenship and thus his sort of intention from the very beginning was to give up leave the united states behind there was no indication of any of that in this record where mr schmidt never gave up his u s citizenship of course and was traveling on his u s passport the entire time that he was abroad so i think it's useful for this court to compare this case on its facts to checks and and all of the various reasons why the ninth circuit found that mr jackson had permanently settled in cambodia or actually run exactly the opposite direction in this case where mr schmidt did not purchase any home abroad he was untrue as pieces the entire time he was he was a proud two month increments once he arrived in the philippines a tourist visa for two months which he then extended once or twice he did get a work authorization but that work authorization which is actually in the joint appendix specifically said that he's a nonresident person right we have to have two  if he wasn't traveling in jackson jackson what how do you write the well if he wasn't traveling then the question becomes what is the function of that travel in foreign co element in something of the jackson court didn't talk about the other courts have pendleton the third circuit in pendleton and really the supreme court in torrance versus lynch drew a distinction between jurisdictional elements and substantive elements of the crime and i think it's pretty clear when you look at twenty four twenty three see especially in contact and you look at the legislative history which of course informs the tax you say and that's how we identify the standard for travelling is to get into the substance of verses jurisdiction course this is an easy case if he wasn't traveling or if the travel had ended i think you have to look at the function of that element and again in taurus the supreme court agrees it permissible to interpret the word tr who journey from the united states and patron these establishments over a period of time it's really a worldwide scourge  congress was after it right whatever country it might occur and when we interpret the word travel we have to look at it in terms of what the legislative authority was trying to accomplish that's what you do judge will consider i think you've hit the nail on the head number one what was congress doing in two thousand and three when it actually enacted the protect act it was filling a gap because the prior statute which was twenty four twenty three b because it was just a travel statue that just focused on the act of travel actually wasn't doing its job very few prosecutions were brought under that statute because it was so hard to prove so that's the first thing the second thing is the legislative history you know we have very clear statements on both in the house report that accompanied the predecessor bill as well as statements on the floor mr smith congressman smith from texas this legislation will send a message to those who go to foreign countries to exploit children that no one can abuse a child with impunity no matter where the offense is committed counsel just locating your argument in the outline are you still under point one you think that this legislative history goes to how we construe whether the defendant was actually traveling at the time i think it helps in forming yes your honor and it certainly gets to the second question is the second argument as well which is it just a jurisdictional hook or is it some kind of substantive element i think congress is trying to do is criminalize the illicit sex act and that i think is to my second point which is that's why in the government's view at least with respect to twenty four twenty three c the travel is just merely a jurisdictional element it's not the substitute of crime the congress was addressing  already done that would be and that wasn't working question about that i don't know the answer this is a real question do we are there still federal criminal statutes where the jurisdictional hook is that a gun has cross the lines yes your honor and in those cases where you don't have to prove that the hundred sixty five so the connection to interstate or foreign commerce occurred before the guy was even born and under scarborough and by the way scarborough the statue the film in possession statute is in the present tense right as whoever possesses in our affecting commerce inserting that language about temporarily residing or living abroad i see my time is up here on it i'm happy to research the time for a bottle the court has any other questions thank you  possession has to be present but also it also has the language in regard to nine twenty two juli which makes possession the far arm firearm illegal if it has been shipped or transported so that's in the part of the statute is speaking of the past tense and that's the and also twenty two fifty two a for b which uses the past tense of has been or transported was when i was he not traveling he's not travelling because he went to the philippines he worked full time he rented a home he had a license he was there for eighteen months he had no intent to return to the united states doesn't necessarily turn on him to know that it doesn't have  act and that is whether you knowingly committed and illicit sex act as deposed or whether you were knowingly or whether you intended to return to the united states when you when you're trying to get to the mental element here it's  illicit sex act and not the travel is much but the statute says travels in foreign commerce and this court is held and ballinger that travels in foreign commerce means there has to be a nexus between the united states there we are pill twenty four twenty three c convictions for someone who had been away from the united states for five years that's correct but that's a different issue because but invest much longer than he was away right but don't i don't understand it because most people who many people who travel just go to one country but many others go to go to to two or three so why would you but they don't they don't get jobs they don't rent homes they don't get driver's licenses and the put in of this court follows the reasoning of the united states technically someone could travel around the world twenty years later and commit an illicit act and they found guilty of the statute and i don't think that citizenship no never made any attempt to turn his passport he he never purchased a home or abroad he didn't accumulate assets far as i know he had i thought he maintained a substantial amount of money in the united states i think that was a result of you have bank accounts in the united and account as a result of his mother passing away i think it was a state money but i don't think the purchase of a home should decide this case there's people united states that don't know it's homes part of a total part of the total picture and plus i some serious issues taking place in the future right but like that but that does sort of go to the question that he's a fugitive in the first place when he gets to the philippines and i do think that's relevant fugitives particularly fugitives we're going to continue to commit the same crime tend not to settle down they know they have to you know keep moving i but at the same time i think the jackson case it's helpful on this end because the jackson case focused on whether the person had an attendant to remain as opposed to being physically present without the intent to stay at the time mr richards and mr schmidt went to the philippines he intended to stay in the philippines he worked there he lived there he had a car and i think even having like he intended to do what he did in the philippines and he intended to do it on a short time basis until he got caught at which point he would move on to a new i don't know is that a perfectly reasonable inference from i don't think there's any evidence to support that i mean i only meshes with the facts i don't but at the same time judge harris i think you have to look at what the implications are if you say that is if someone is a sexual offender and they leave the united states that they can be prosecuted no matter where they are when they if you do have someone who's in a constant state of transit but maintains most of their u s connections they maintain their assets here the registration here they vote here  there is no evidence that they have stopped for some significant period of time and set up housekeeping so to speak in another country that would seem to indicate they're still traveling even if it is a multiple times of yours the only asset mr schmidt had the united states again was the money in that bank account that's the only asset he had in the meantime he was one thing right i think that was his reason for ravel right there was his reason for traveling initially but that but what there's nothing to indicate that at the time he settled in the philippines that he intended to leave the philippines i mean there's just nothing there his intent at the time was to remain where terms of the criminal law if when we talk about intent the way i think the statute is written is if the intent bears on the intent to commit and i listed sex act perhaps knowing someone as a minor or knowing what you're doing is an unlawful sex act it doesn't it doesn't seem to me to require an intent to travel he can be traveling without necessarily having an attempt to travel and what but where the where the criminal act comes in is when a sex act is taken with an unlawful and tan in his case he was knowledgeable that the people with whom he was having sexual relations were minors very young manners in some cases that's where the intent comes in the interior doesn't come here necessarily in terms of whether he's whether he's whether he intends to travel or even if it's a fact it's whether he is traveling not whether he intends to travel it's whether he lives whether he whether he travels and commits the offense but where do we draw the line on travels i mean there has to be a nexus between the united states and the country where the act of place and so therefore you're right you're right i mean sufficient unto the day i mean i'm a lot of times court simply decide a case based on the facts of the case before them we don't need to hypothesize about all the different people who may be absent from the country for twenty years do i think this is not someone who's been absent from the country for twenty years you know he was absent from the country for eighteen months and resigning someplace else and this is i think this is what obviously judge must base his decision and i think there are and the government argued with many pleadings back and forth  following judge mathis decision on the twenty fifty five and judgments rejected all of those arguments and the implication of that is that the eighteen months that he spent in the philippines broke the nexus that there was no trout that there was he was not traveling  foreign commerce when he went from the philippines to cambodia so  i think it's a combination but i think it's based on the facts i think if and i think the case is also speak of the point well if the person would stay longer well then it would have been a different implication where we would have decide this case differently  in cases where there are long stretches between the the time from when the person leaves the united states until you know they commit the act then that is an important factor of the length of time isn't it or not we were going to state s e prudential standard for these cases what would you say that would be that the the person making the judge making the decision has to look at the facts and determine whether there was an intent to remain where the where the person went to in this case the philippines there was a mr schmidt had the intent to stay in the philippines and that his travel evidence that supports that as opposed to the fact that he had  intent to reside there what proves that the fact that he had a job that he had a home that he was there eighteen months i thought there has to be a point wasn't it sufficient to say if this is a concern you can see what the facts were in the jackson case like circuits this is sufficient to show the travel it ended but it's government can possibly prove right and so isn't that the same standard here that he has to say look if you're goin said is that there was there was based on ballinger that there was no travel in foreign commerce that's specifically what the judge said and so that was based obviously on the facts that were presented to him and that was that mr it was a very short like a very short but the but it does stay in the memorandum at one point that based on ballinger he found that there was no travel in foreign commerce then the government filed the motion for reconsideration foreign commerce clause can then be employed any time that what a u s citizen is doing abroad has substantial effects on foreign commerce but there has to be a nexus between the the can't the united states and the country right and when they come in and they find that nexus in united states citizenship i don't know the part i make is i think it also and i don't have it right in front of me but i think it requires that there be a nexus between the country that he traveled to between united states and the country that he traveled it would have been different it seems to me that travel would be more important had ballinger rested on the instrumentalities problem that was put in front of it like maybe what you really care about under this clause and that somebody flew in interstate commerce and used an airplane was himself in interstate commerce that kind of rationale would really put a lot of emphasis on this whole travel thing but that's not the rationale the court use the court instead use the effect on foreign commerce that is generated when u s citizens go abroad to rape and sexually abuse children in foreign countries that that is really bad for foreign commerce and that's what they relied on it was the act not the trial but i think the weingarten case addresses that and that's the reason that he was successful was because there was travel from the united states to another country then to another country and the other case that i think is important is the government relied upon the dissenting opinion and it  where were even more clarke said there it yeah the majority opinion noted that if there had been a longer gap between the travel and the act it might trigger other concerns that the court was not addressing at the time there was just  two month to month period between leaving i had states he travel through stuff to three other countries i believe and what i'm suggesting to you i guess and i think i'm being an artful about this is that under bowl injury that really doesn't raise constitutional concerns in the fourth circuit because the fourth circuit has relied on the combination of u s citizenship and then an act abroad that has substantial effects on foreign commerce but i believe i want your also says and my interpretation of it with all due respect is that there has to be primarily one of citizenship the fact that you hold ace the fact that you are a citizen in this country because i'm not sure ultimately that the sta maybe it hinges upon the length of time that someone is abroad but maybe the critical fact is that the person is a united states citizen because what congress wanted to prevent was united states citizens committing illicit sex acts abroad they didn't just want to prohibit united states citizens who way from the country for six months or twelve months or eighteen months from committing the list of sex acts abroad it wished to prohibit united states citizens period from committing illicit sexual activity while abroad as long as the statute says as long as you're a united states citizen and you travel abroad in foreign commerce that that's but the statute says and i would note that the government conceded that judgments was correct on count seven because the government said that there there is no nexus in that count if they that count failed because it's standard they have there's travel between the philippines and cambodia and the government can say that ballinger stands for the proposition that there had to be a nexus between the country where the act took place that is the reason the this whole pattern of americans going abroad engaging in this kind of behavior has an effect on foreign commerce and we use a principle of aggregation here to determine that a fact which it seems to me argues against giving our cramped interpretation to the word commerce certainly understand the argument it's brought up in eighteen us c section but i don't see those words as words of limitation says what commerce includes it doesn't say is limited to but the cars that that the statue is looking towards is the commerce the has a nexus with the united states the now at this united states has no control over what takes place and cambodia unless there's a nexus between the united states and cambodia and once mr schmidt spent eighteen months in the philippines there was there was no nexus to cambodia if you travel from unites that you think people in cambodia think that when a united states citizen in cambodia is committing these illicit sex acts you don't think they think there's a nexus to united states citizenship and i'm pretty sure that's what the court held  it's the citizenship that's the problem but they're also there's ballinger also think that people in cambodia think well he came from the philippines so i guess it's not really a u s issue well you know i don't think that at all but i think ballinger also said that there there has to be that we cannot control com and the other stuff countries cannot listen to what our laws are unless there's a nexus to that country and and i think any case that has discussed twenty four twenty three c looks at the length of time that the person that spent before they go on to the country where the act took place i don't think there's any case i don't think you could member of congress who voted for that statute who would right there can be but jackson but jackson looked at those factors jackson said look he bought a house and he had money being sent over there and but jackson still held on to his us passport also in the process filling the requirements for kimba citizenship that's correct but i thank you we can't look at every specific fact i think we have to look at what took place in this case what took place with them all together in the  n was and perhaps in this case it was not but there has to be a line drawn somewhere else and i think that wind has to focus on first off the length of time that someone is spending i don't think we're going over there and i think we have to thank you court i'd say simply that i think you will consume your point about focusing on the facts of this case certainly the government would indorse that approach as you observe your honor and u s citizen is the text of the statute i go further the title of the statute which of d me earlier is it relevant the fact that mr schmidt was a fugitive and listening to some of the biplane in my in my my friend's argument i think my answer absolutely i think the fact that he's a fugitive is relevant here because it's one of the reasons why he took off and the most sort of transiently moving from place to place once he was abroad so on the particular facts of this case when you look at the particular factual make tricks in this case it is relevant and i think that's why this