an eye on the clock one ready to answer any questions the court has on the search and restitution issues i'd like to focus this morning on the statute under which mr pepe was charged and conviction that's twenty four twenty three c which makes it a crime for us citizen to travel in foreign commerce and then you can gauge in sexual acts in a foreign country the first question is whether that act applies to people who are residents of the foreign country it doesn't and that cover citizen tell us what you're saying is the statute doesn't apply to an american citizen who doesn't travel he just lives in a foreign country correct and i'm trying to think who there could be in the only one so i can think of right off hand or people who  born to american citizens abroad and stay there maybe you will let me larry and spouse stationed in germany and they just stay in germany or they grow up yeah i'm not saying the statues read that restrictive pepy doesn't fall into that class of people what i'm saying is a statute does not apply to people who travel to a foreign country and set up a residence there as opposed to people who travel there for some temporary basis we intend to return home to resident clark just never talked about that the facts of the case were that clarke was a resident but this issue was never raised it's one of those issues that merely looks in the record never brought to the attention of the court by the parties never rule them so this is an open question and i things that support a statutory construction argument are the court's recognition in jackson which was after clark that someone who permeate resettles and place is no longer traveling even under the bro interpretation that word and then you have the title in the legislative history of the statute which says that it's designed to combat sex tourism a person is not a tourist where you live and press most significantly the twenty thirteen amendment to twenty three words the title the sex tourism language it's you can wear in the record is it and no no where and where in the statute is the sex tourism language i'm looking at a version doesn't have it it's in  tourism and then also we cite in the briefs both of us cite to a house report which further if assizes this is all about sex or then we have the twenty thirteen amendment to the twenty four twenty three which adds residence to the people covered by the statute so which is of course nothing one that's relevant to mr pepys case but because the court presumes the congress intends its acts to have amendments have real and substantive effect the fact that they designed to fill in a loophole will perceive loophole to cover residence is very strong evidence that it didn't cover such people before i understand the arguments but what i don't understand is how you're  case as well setting aside the constitutional problems which i'm assuming you're going to talk about with regard to the application of the statute to the conduct at issue here i think it seems to me that clarke controls i disagree your honor because i feel that when when when in a certain factual scenario the court applies a statute and says it can be applied for these reasons because we're addressing these arguments that are being raised by counsel it doesn't mean that when issue this issue if the the court rest a lot of issues and clarke but the one thing and never did was say does this apply to residents fighting by his plain language but  hold on i had trouble understanding what you just said so i just need you to say it again in different words how do you distinguish clark clark is distinguished because this particular issue was never before the court so it never ruled on this issue never raised by the parties in maybe which issue was not before the court whether or not as a matter of statutory construction section twenty four twenty three c applies to american expatriates people who are residents residing in a foreign country not people who are merely temporarily traveling to a foreign country and they are not your argument is that even though clarke fell into that category that that issue was not presented for r so but but the issue that was the heart of of clark was the foreign commerce clause issue and as we said you know for the reasons given by justice judge we disagree that it's constitutional and all the realize that that's a matter for on buying power supreme court for another day why why wasn't the issue of ex pats presented since the fact was that clarke was an ex pat i don't know your honor i mean why should we be treated as presented because the facts of the case involved an ex pat i would just point to what we saw in the brief webster versus fall which is the supreme court cases have been a long time been around a long time and says that issues that merely look in the record either brought to the attention of the court or ruled upon by the court are not precedents that bind future panels and i think that's the reason why but i think the key thing here is the issue that was expressly left open by clarke the only one of the foreign commerce clause requires some limit on the temporal gap between twenty four twenty three cs travel and sex say x elements and if so what dissenting clark recognize that congress will be have been permissibly broad police powers if the foreign commerce clause is interpreted to allow congress to regulate every act with a bare economic component that happens after international travel even if that occurs months or even years later the concerns that maybe the majority in clark narrowly hold only that a gap of less than two months did not offend the constitution and leave for another day whether a larger draft would and the larger day the day has come because in this case to do something government was managed to prove the timing of the sex acts at all they occurred many months after this i have trouble with making things depend on the gap for one thing it makes the courts do something that ordinarily would be in a statute a regulation drawing a bright line two months is is one thing six months is another and draw a line and i don't know seven weeks or something like like that i have trouble with the idea that we can do that i can imagine suppose you have someone who is considering a job in cambodia and the job means he's going to stay in cambodia for year and he's deciding whether to take the job and he happens to have a sexual attraction to young children and he thinks well that's a good reason to take the job and he doesn't actually act on his sexual attraction till job pressures he's up during the tenth or eleventh month these here why wouldn't that be covered by the statute because i think that the first of all i agree with your on the there is so many it is unusual for trying to pick up some place in time when the gap becomes too long but that's where we're at because a clark majority i think over judge for existence dissent said that the statues and holy cons and whole entirely by the by south clarke was perfectly sensible there's no alternative view that makes sense to me that you don't have to do it on the plane right right but but i mean i think that what we ha reporting whatsoever if you travel today to stay in a country for fifty years commit a sex act that is chargeable under the statute and that i think i would hope the court would agree at that point there is no legitimate nexus under the one congress under the new statute that's that's fine you can be an ex pat it's never been in the united states and if you're a u s citizen and have sex with children in your native country even though it's not your sort of country of citizenship you're phelim under u s law that's true although i will say that the court i'm sure will one day have a somebody convicted under that statute that's going to say well what is the foreign commerce clause of basis for that provision that's not in this case because he was charged under the old law and i think that would be significant under the problems under the new law so before you go on your argument is on the constitutional basis and your argument is that at some point the gap gets too different right and i would say that that should be the maximum because the because all of the things that kind of support the the commerce law fieri which is that that the foreign commerce clause commune vote to enact the statute because of the traveling foreign commerce that's the jurisdiction hook so the farther you get away from that the more tenuous things become you're not even arguably  regulating commerce with foreign nations anymore and i think that particularly when we go back to the legislative history in texas in the act that says this is about sex tourism or you're purchasing sexual services  s conceptually it seems to me it's the same thing as saying congress can prohibit american citizens from by conducting commerce in cuba or around the concern is with the american dollars or with american citizens using any kind of money to buy anything in iran or cuba well i'm not familiar with the exact language of this law but those laws but with this law the  key fact is that the foreign commerce clause gives congress the power to an act of laws dealing with commerce with foreign nations the we must be clear that it does not mean they can regulate commerce with pointing at the what the concurring justices in bond bond versus united states noted recently about the very significant problems reading the treaty power connection with mr improperly clause and necessary improper clause very broad all because again we're talking a situation where it could grant congress and the president grot broad police powers powers all they would have to do is to i think those criticisms and commentary that they're v weapons convention implementation act goes to the core heart of the treaty power it deals with matters of war and peace so i think even then the court recognize that you can't just an act treaty on any general subject matter and then from an act and the legislation remotely connected this subject matter but i think the court can leave to another day exactly what the limits of the treaty power are because the most significant thing we have here is the court never invoked that power i mean that comes our congress never invoke that power congress clearly invoked the foreign commerce clause you know they the predecessor to actually personal than this court  clerk actually said explicitly the phrase travels in foreign commerce unequivocally establishes a congress specifically invoked the for commerce clause i just don't understand something about your argument and i need clarification so that i can understand it clark says it's within the constitutional powers of congress to regulate and i'm an american having purchasing sex in a foreign  country it seems to me that that's a simple and common application for all sorts of commerce not just sex for example regulating in american and engaging in commerce in iran or in south africa under apartheid or in cuba before the sanctions were east at the end of the last administration and it just seems routine and it seems like it's straight down the middle of the sort of regulation of commerce with foreign nations by americans that the constitution empowered congress to do and it looks like just walk lark was directing it attention to i just don't understand what the problem is really well i disagree with i think how the courts characterizing clarke is clarke didn't just say that in a limitless fashion it said we are upholding this because there's a gap of less than two months and i don't know if they said because they mentioned that gap but as they left it in the air whether that was really critical or how long the gap could be they just  occasion because of that gap to address say my hypothetical american who was born on an american military base in iran never left iran and has had his whole life in iran never even traveled and engaged in transactions in iran violating the iran sanctions and since he's an american citizen i don't understand why congress couldn't regulate him even with no travel at all if commerce with iran now that you've got a separate statutory construction argument which is essentially congress it's whether it could or couldn't it didn't regulate sex by ex pats sex by people who never traveled or travelled so long ago that the travels irrelevant before the amendment but that's separate on the constitutional argument i'm just not getting it i guess because i keep thinking about sanctions instead of sex well your honor unfortunately like that i'm not familiar with the statutes that govern you can cite them i'm not familiar with them but here you are for years ago that you are undoubtably familiar if you've ever gone to canada or england that you couldn't engaging in commerce with a foreign nation while on american soil and so are the foreign person in a foreign nation ordinarily i mean in a dictatorship it may be that you do your business with a foreign government  but most foreign commerce is with foreign firms and individuals right and i think the court has and interpreted or in commerce to be commerce more even just with the foreign government itself but i would like to point to exact scope of congress treaty powers are in they must be clearly invoked and that didn't happen here all the evidence we have is what authority stands for the proposition that congress has to clearly invoke particularly necessary and proper class power flight to be valid i couldn't find one i do know that for example i can bond in frys you know you look at the statutes there in the congress knows how to say we are the the convention against torture act implementation bill you know so usually they they say it explicitly but i think what's what's more significant is no appellate court has bought the argument that twenty three twenty four twenty three can be supported under this provision and the government has pointed to anything that allows this kind of inference of the use of the treaty power just by the series of events even when you have as you point out in the briefs at the time the optional protocol was in acted both the state department and the senate said we already feel that our own obligations under this treaty are fully complied with by those statutes already on the books therefore we do not plan to an act anything else to say that then the mere fact that the statute dealing with the creep powers and make them ten times worse because you don't even have congress abusing the treaty power you have courts by inference letting then that power you've used and your coun you're the statutory argument i have a question that's been troubling me that's just the statutory argument no constitutional aspect i read the statute as it was then and it says any u s citizen who travels on foreign commerce and engages in any illicit sexual conduct shall be penalized and i could read that one of two ways i could read the end to m if you've traveled in or in foreign commerce and you've been gauging the sexual conduct that's all it takes that's the government's way of reading it and it's consistent with the words the other way i could read it is that the travel must be connected in some way because otherwise the word travels would be either absurd or surplusage congress can certainly just prohibit american citizens from engaging in sex with minors in foreign countries the same way that it prohibit to done till recently american citizens from buying cigars in cuba and assuming that both are constitutionally ok which you and i are assuming and in support of that inference they've got this amendment where they said it doesn't matter whether you travel or not if you reside in the foreign country it's good enough to get you convicted and when i and that may mean that they didn't mean that before they amended it or it may mean it thought it was unclear either way you've got an ambiguity and if you've got an ambiguity you're supposed to apply the rule of lunatics and applying the rule of limited doesn't seem absurd for example all woman's husband dies and she moves to a country where she can leave live cheaper on life insurance and she's there for ten or twenty years after she moved there as she had to travel to it to move to that place and she has a little affair with the beach boy she's guilty under the statute of the felony and it seems unlikely the congress meant to do that under a statute that it said was to prohibit tourism why don't we have to apply the rule of meaning to me which says if there's if the statutes ambiguous if you could read it one of two ways you've got to read it in the way that criminalizes less behavior why don't we have to remark and lark and clarke that's not directed toward it's holding has to be taken as though it were holding well i think it you know i think it did look at the statute that way know it's also clear that just to me anyways that the statute is silent as to this temporal issue not ambiguous i think there was a lot of legislative history this was not limited to sex tourism the concern was that the current statute at the time twenty four twenty three section b required the intent element and this legislation was so it doesn't have to say that the reason you don't have to prove that the reason the person went there was just to have illicit sexual activity fight ok that doesn't really deal with my will of we need to be concerned for you i don't think well it's well what if i don't know what it depends on i want to know if the widow who's been living in but we for the ten or twenty years since her husband died living on insurance in billy's and gets it on with the beach boy is she a felon under the statute if it's unambiguous you should be able to tell me well under the current version of the statute she could but all under the current version no question about it but that's not the version that this fellow was convicted under would she be a felon she could have been but i think the question here can be resolved so you think on the facts here where we only have oh well how we resolve it based on the facts here is going to affect right the elderly widow who gets it on with the beach boys and beliefs so you know we can't make law and say this case only you know but what i'm trying to explain is that i think clark jackson together kind of say that that there is no there is no tempora element in this statute and yes while there may be a case someday somewhere where the where the nexus between the travel and the illicit sexual conduct becomes an issue that's one of the let's say we're all worrying about the elderly widow when we write the opinion and how do we write it so that it doesn't make her a felon if you think that she should not be or commit how should we write it to say she ought to be a felon even under the old statute the noose that you clearly makes for a felon but the older one that's what i'm worried about because that's the statute of conviction well your hypothetical is is that she's having sex with a minor correct beach way so and she's lived there for years yes yet but she did travel from the united states at some point years ago after her husband died and she got the insurance ok you know if she could be  yes it just depends so we should say in the opinion this would apply to her or we should write it in such a way that it clearly would apply to her well if it might i don't think we c here to pose a dissent raises the elderly widow and that the majority has to deal with the elderly widow hypothetical how does it deal with well i think clearly i'm you know under the statute she would be liable and she should be like i don't know why the government needs to really take that extreme position that the elderly widow example or somebody who was brought from the united states a to japan or  infant and grows up there never having given up citizenship could could under your argument still be prosecuted well now you're saying no temporal requirement  i think i think at some point which is not the point in this case i don't know where that point is i don't think that's the issue presented here i think the the court can resolve this on the facts by saying that the amount of time that  question does the government really need to go that far and you said well not in this case but that doesn't help us write the opinion i want to know how we avoid going that far if we accept the government's argument by saying that you know under the facts of this case which you know were just a number of months after the travel that that it's not you know it doesn't raise an issue of constitutional concern under clarke but are you addressing the search  as a matter of statutory interpretation you just have to have travel and there is no the permanent residency has nothing to do with it yes that's correct that this is a statute is again not ambiguous but silent as residence is irrelevant to this statute here we have a nice states citizen who traveled in a foreign commerce and engage in a listen sexual conduct with mine that's all the elements of the statu or the travel then it's just a jurisdictional requirement like like in gun cases where the gun is made in some other state yes absolutely so your interpretation would also make  of someone who was natural born on american soil and brought immediately as a baby to a foreign country or he or she lived the rest of his or her life and had sex with the minor person well possibly you know possibly i guess that's really under your interpretation and there really is no limit you just want to to leave whatever the limit could conceivably be to some other panel in some other case travel can go on infinitely even if a citizen permanently resettles abroad simply does not comport with common usage of the term travel standing alone realize that's dicta but what's wrong with that  that's not the point that even close to the point where is that point well i don't think i don't think there should be a bright line point i think it needs to depend on the reasonableness of all the facts in the case if you have to look at it al settlement which is and we there are measurements that we apply to that why is that maybe the more logical way to look at this statute is that when you permanently resettle in another country then there cce ceases to be a causal nexus with or a was sort of a way to broaden the reach twenty four twenty three b which is also a travel statute i think that's why the the to the nexus is the travel and and the foreign commerce which here of course we have the commercial nexus we did have some special verdict in the case on all seven counts that they were commercial sex acts so we have that nexus in any event but i think now when you look at the post amendment statute the travel is not necessary so i'm not talking about the constitutional argument strictly talking about statutory interpretation and of course your opponent argues with some force look it added residency and under the tools of statutory construction it would say well apparently the old statute was intended not to reach that i'm leaving aside clark and the implications of that but it's just as a pure statutory interpretation question that poses some issues well as to the twenty thirteen amendment and unfortunately there's not much legislative history there so we can only be surmising but it's it's our position it close loopholes in this in the terms of both the ex pat who doesn't travel also a u s citizen who travels among foreign countries who would not have been subject to the  so i think it it did apply to residence before the amendment and applies to a couple of extra groups of people who were not covered prior if interpretation being that there's no temporal nexus requirement between the travel the commerce that's what's creating the constitutional concern right because the government's argument isn't that you know at some point the the gap between travel and the commercial sex acts could be so great that it might not be covered but that's not this case so i didn't hear the government arguing that the government argue that it doesn't have to be of any particular duration so some the widow with then a fall under the statute the infant who was brought over seas would then fall within the statute i think that gives rise to constitutional concerns under the foreign address that well that's that's a concern i have but well i have to explore that with the panel moving moving to the search can i have you addressed the search in singapore how that's different from the search in the cambodian law enforcement the search of the defendant's rental home and pan was on june twentieth almost immediately thereafter the cambodians asked for assistance to search some but not all of the pieces of computer media that had come from the cambodian residents the district court found that it was a joint venture between cambodian and s law enforcement in assisting cambodian law enforcement the local agent had the computer examined at the closest forensic examination facility which was in of three of the victims who had provided their children to the defendants so the cambodians and as well they were investigating some of the other allegations are having other people who were at the house the day of the search  authorities and then the computer was turned over had that computer been taken to meet the u s instead of to singapore i'm assuming at that point a search warrant would have been obtained yes your honor that although to return to your question about the seamlessness the search of the house on june twentieth and then the sending of the computer and it sort of the computer in singapore on june thirtieth were part of a seamless joint investigation there were other pieces of media that the cambodians turned over to ice at that point when it seemed more clear that cambodian government was going to send the cambodian vest again because the cambodian investigation was still going on but since we had the media here and since under rule forty one at the time the property has to be located in the district where the search is since we had the property in this district the government of taint a warrant it sounds as though you're saying that once the prosecution was returned to us soil there was no longer a joint effort as  right just when it was asking you whether was a seamlessly a joint investigation between cambodia and the united states throughout the entire investigation and listening to your answer it seems to me you're saying that  was their record is silent as to whether in fact it was the forensic examination was done inside the consulate it was done by the forensic ice forensic agent who was assigned to the singapore office all right that is what i wrote in response to my to my question was that at the time that the search was done in singapore the investigation was still very much focusing on helping at the composed commodious government because not only decision had been made to prosecute mr pepper spray in the united states he was brought to the united states and the piece against him in cambodia so there was a joint venture and yes your honor now the question is when did it end it seems to me that's the critical factor for the lawfulness of the search for you would agree if there were no joint venture than the search and seizure was unreasonable in cambodia the search and seizure of the computer yes not the items at the at the residence right yes your honor ok so so that's dependent on the joint venture and because the search and seizure was illegal under material the computer examined and c s i mean other words you often you may seize materially for the car and then you need it you get a separate search warrant and often that's true with computers what you see is that you without a warrant you get a separate correlator so my question is what's the state of the record as to whether it was a joint investigation at the time i saw how the computer and examine the contents and the state of the record is that it was a joint investigation and an expert on cambodian law testified that the search of the computer was legal under cambodian law he  him is limited under the statute add to necessary physical psychiatric and psychological care a necessary physical and occupational therapy and we ability ation lost income due to injuries and lost income unnecessary child care transportation other expenses incurred during participation in the investigation or prosecution here they're these two private organizations non governmental organizations in cambodia and their spreadsheet looks like it includes all kinds of stuff out side that  they want maintenance to their building and this was and they got it all the salary of a case manager and money to run the n g o s had dental and cosmetic surgery even though there nothing to suggest that the girls would need dental or cosmetic surgery because of the sex abuse and salaries for staff costs for stale staff cellphones office supplies and even money for staff appreciation holidays birthdays and local trips and advocacy fund and it looks like it looks like the charity is preying on or the two charities may be preying off these victims and trying to swipe the money that is attached to the victims to run their nonprofits if this case taking place in america i think the girl would have just been sent to live with an aunt or a grandmother or something and it would've been all this huge money to run non some non profits orphanage and i don't understand how that restitution order can stand well first of all your honor as as we discussed in the brief we submit that the this wasn't raised at all by the defense in the district objected to the restitution the defense objected to they said that under the section twenty two forty eight which is not the applicable statute actually what happened was the probation officer calculated the restitution under the an applicable statute and then the defense didn't tell the judge to the restitution under that statute the probation officer already had and the defense still objected to the restitution and the defense objected to the restitution on the ground that under section twenty two forty eight a guardian of a victimized minor is not entitled to restitution so essentially the defense argument was that the  argued that the non governmental organizations were not entitled at all to get restitution and i really am sick once the way that wrong statute got raised was by the not by the defense but by the probation officer saying award initial sensing position and in his response to the defense position pointed out the correct statute the government pointed out that twenty to forty eight did not apply and that it's section three six eighteen u s c section three six six correct statute and when i just referred to a specific time i can't tell whether you're saying the judge the government had told the judge before the sentencing in its own memo what the correct statute was but then did not tell the judge when the judge said well i'm going as judges usually do adopt the probation officers report on this on the court indicated it was going to adopt the government's proposed restitution proposal that was in the pre sentence report was old there was some litigation between act between the verdict and the sentencing of the sensing took place some time after the verdict the government had said do you understand what you mean what litigation new trial motion and other other matters the sentencing and setting forth expenses the sentencing was long delayed the government submitted an updated restitution request under the correct statute  shortly before the sentencing at the hearing the court stated that it was inclined to adopt the government's calculations a set forth in its the defense at never at any point addressed that statute or raised the argument that your honor does here that the some of the expenses were improper assuming the court reaches the merits of that the statute that applies is section three six six three capital a and the when the crime result in bodily injury to a physical psychiatric and psychological care including non medical care and treatment rendered in accordance with the method of healing recognized by the law of the place of treatment the district court heard from the victims both their testimony about the impact of this crime on them the district court also received considerable written material about the impacts of this crime on the victim and the district court heard from the two non governmental organizations that were caring for them and your arm is right if this crime had occurred in the united states the victims could have been sent to live with a family member as the district court heard because the non governmental organizations explained in some detail that wasn't possible in cambodia because these victims were trafficked were given to the defendant by their families and if they were returned to their families there was a very high risk that they would be simply mother some were sold by by an aunt or someone else and the extended in the extended families but the they the girls came from  community within that part of cambodia that is extremely vulnerable to this type of exploitation so the district court heard that common for families to sell their children particularly to foreigners who have the funds to pay the district court heard that the destroy court also heard that really staying in the nongovernmental organization was the only option for each of these victims and these non governmental organizations essentially run a shelter where they do we care girl you're saying they could have protected the children from being sold again and that is supporting an orphanage that would take the children away from their families by giving some money to their families from the defendant  t they would be so poor they'd have to sell their children to survive that that is i'm sure that's aspirations no profits would like since they get the money if that doesn't happen well that is that is that is restitution that may be awarded yes so i think it may go to the prejudice or harmlessness if there are things awarded in restitution under two two four eight that were not permitted  under the rather statute three six six three three capital a i mean that's the question isn't it i mean there's there are there's no question that was there because the district court relied on the wrong statute the question is where there is harmless really yes and in the district court it given that the district court read the government's papers and stated that it was rocking the government's calculation i think judge kleinfeld litany of things that might g the court could remain and the things that that the judge listed however if you read three six six three a broadly treatment in accordance with the method of healing recognized by the law of the place the treatment the expenses that are incurred by the end the non governmental organization in order to maintain the facility where these where the victims were required to or had to reside as a result of the defendant's crime the power of the government's position it just said the wrong statute it made i think a typographical error possibly because the pre sentence report had reference to the wrong statue understander but i'm just trying to divide the issues up s travel that it becomes problematic and i think that's a very serious concession because the government's approach seems to be well why don't you affirm in this case and then we'll bring a case where the gaps a year and see how that is handled and then we'll bring a gap where it's two years and see how that hand that's handled and i think what it ignores is a couple of things one is the rule of lenity which judge kleinfeld mentioned which is very significant to the rule of constant the doctrine of constitutional avoidance which means the court has to not only c e the statute so it isn't unconstitutional but also to have avoid even grave doubts about it and perhaps the most significant given the government's concession is that statute should not be interpreted so that that unconstitutionally and by definition the stat the government is written says that somebody who is traveling overseas will not know what the length of the gap is where they could be hauled into a federal court and face charges under the statute so i think all of those things require not only to find out but a very short gap and i think the two month outer limit set in clark is the one the court should adopt now turning to the singapore search i disagree that the question is when did the joint venture and keep in mind the joint venture issue is a doctrine that applies to true foreign searches because where the fourth amendment doesn't generally apply to the courts it said the fourth and then will apply if there's a joint venture in the joint venture in this foreign location and the search doesn't comply with local law once as we have here the items reach a place of american jurisdiction and i want to emphasize that in the opening brief we pointed to the statutes and other factors have said that this this search occurred at advice as a office which was with under the u s embassy and under statutes that's defined as an area of u s troops stiction and they never disputed that they also have never disputed then the american judge can issue a warrant this executable in such locations so i think that once the items reach such an area the joint venture doesn't matter at all it doesn't matter whether they're still cooperate or not it's it's in a marriage it's a cert it's as much of an american search as if it took place right here and in that situation the american constitution has full force and a warrant is required