FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL JOSEPH PEPE,

Defendant-Appellant.

No. 14-50095

D.C. No.

2:07-cr-00168-DSF-1

OPINION

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted February 8, 2017

Pasadena, California

Filed July 11, 2018

Before: Sidney R. Thomas, Chief Judge, and Andrew J. 

Kleinfeld and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Nguyen;

Dissent by Chief Judge Thomas
2 UNITED STATES V. PEPE

SUMMARY*

Criminal Law

The panel vacated a conviction and sentence under the 

2005 version of 18 U.S.C. § 2423(c), which applies to a U.S. 

citizen “who travels in foreign commerce, and engages in 

any illicit sexual conduct with another person,” and 

remanded, in a case in which the defendant, a U.S. citizen, 

drugged and raped several children in Cambodia, where he 

claims to have resided for several years.

The defendant contended that the statutory language 

didn’t encompass his conduct because, as a resident of 

Cambodia, he had ceased “travel[ing] in foreign commerce.” 

The panel held that in light of a 2013 amendment to the 

statute adding a new basis for criminal liability, as well as 

the accompanying legislative history, it is evident that the 

version of § 2423(c) in effect at the time of the defendant’s 

illicit sexual conduct was inapplicable to U.S. citizens living 

abroad unless they were traveling—meaning something 

more than being in transit—when they had illicit sex. The 

panel wrote that this subsequent Congressional 

pronouncement is clearly irreconcilable with this court’s 

previous construction of the statute in United States v. Clark, 

435 F.3d 1100 (9th Cir. 2006) (concluding that § 2423(c) 

“does not require that the conduct occur while traveling in 

foreign commerce”), and that the panel is therefore not 

bound by the reasoning in Clark.

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. PEPE 3

The panel observed that the government appears to 

dispute the defendant’s claim that he had resettled in 

Cambodia. Because the jury was not properly instructed on 

the travel element, the panel wrote that if the government 

elects to retry the defendant, it will need to prove that he was 

still traveling when he committed illicit sexual conduct.

Dissenting, Chief Judge Thomas wrote that Clark, whose 

holding of the statutory reach of the prior statute is 

completely consistent with the 2013 amendment, remains 

good law and is binding on this panel. He wrote further that 

the panel should not be deciding the question, never argued 

to the district court, of whether the prior statute applied to 

citizens who temporarily resided abroad and intended to 

resettle.

COUNSEL

James H. Locklin (argued), Deputy Federal Public Defender; 

Hilary L. Potashner, Federal Public Defender; Office of the 

Federal Public Defender, Los Angeles, California; for 

Defendant-Appellant.

Nancy B. Spiegel, Assistant United States Attorney, 

Criminal Appeals Section; Patricia A. Donahue, Chief, 

National Security Division; Lawrence S. Middleton, Chief, 

Criminal Division; Eileen M. Decker, United States 

Attorney; United States Attorney’s Office, Los Angeles, 

California; for Plaintiff-Appellee.
4 UNITED STATES V. PEPE

OPINION

NGUYEN, Circuit Judge:

Michael Pepe, a U.S. citizen, drugged and raped seven 

children in Cambodia, where he claims to have resided for 

several years. Pepe was convicted of violating 18 U.S.C. 

§ 2423(c), engaging in illicit sexual conduct in foreign 

places, and sentenced to prison for 210 years. The version 

of the statute under which he was convicted applied to a U.S. 

citizen “who travels in foreign commerce, and engages in 

any illicit sexual conduct with another person.” 18 U.S.C. 

§ 2423(c) (2005). Pepe’s illicit sexual conduct occurred 

between three and nine months after his return to Cambodia 

following a brief trip to the United States to visit family and 

attend his daughter’s wedding. Pepe contends that the 

statutory language didn’t encompass his conduct because, as 

a resident of Cambodia, he had ceased “travel[ing] in foreign 

commerce.”

Pepe’s contention runs up against our previous 

conclusion that the statute “does not require that the conduct 

occur while traveling in foreign commerce.” United States 

v. Clark, 435 F.3d 1100, 1107 (9th Cir. 2006). Focusing on 

the word “and,” which connected the travel with the conduct, 

we construed § 2423(c) to include individuals who, like 

Pepe, at some point traveled in foreign commerce and 

thereafter engaged in any illicit sexual conduct. See id.

However, Congress subsequently amended the statute to 

add a new basis for criminal liability. The statute now 

applies to a U.S. citizen “who travels in foreign commerce 

or resides, either temporarily or permanently, in a foreign 

country, and engages in any illicit sexual conduct with 

another person.” 18 U.S.C. § 2423(c) (2018) (emphasis 

added). From the statutory amendment, as well as the 
UNITED STATES V. PEPE 5

accompanying legislative history, it is evident that § 2423(c) 

was previously inapplicable to U.S. citizens living abroad 

unless they were traveling—meaning something more than 

being in transit—when they had illicit sex. Because this 

subsequent Congressional pronouncement is clearly 

irreconcilable with our prior construction of the statute, we 

are not bound by our reasoning in Clark.

The government appears to contest that Pepe relocated 

to Cambodia, but this factual dispute was not resolved below 

because the district court applied Clark. However, if Pepe 

resided in Cambodia and was no longer “traveling,” then the 

prior version of § 2423(c) does not apply to him. We 

therefore vacate his convictions and sentence and remand for 

further proceedings.

I.

Pepe, a 49-year-old U.S. citizen, left the United States 

for Cambodia in March 2003 on a one-way ticket. He rented 

a house, obtained a Cambodian driver’s license, bought a 

car, and secured employment teaching management at a 

university in Phnom Penh. Pepe “married” a Cambodian 

citizen, Bith Chanry, and the two of them lived together for 

a while.1 He also became involved in community activities, 

 1 The legal status of their relationship is unclear. Prior to their 

wedding, Pepe and Bith signed a declaration stating that the ceremony 

was for “satisfying Bith family considerations” and not “to have any 

legal standing under Cambodian law, American law or international 

law.” After his arrest, Pepe wrote to the U.S. Ambassador to Cambodia, 

requesting assistance in registering his marriage. Around the same time, 

he wrote to his family in the United States, acknowledging years of “on 

again / off again problems” between himself and Bith and stating that 

they “are still married.”
6 UNITED STATES V. PEPE

such as the Phnom Penh Veterans of Foreign Wars Post and 

the local Catholic church.

Pepe occasionally traveled to the United States to visit 

his family. His last such trip prior to his arrest was to Los 

Angeles for a week in August 2005 to attend his daughter’s 

wedding. Nearly a year after his return to Cambodia, in June 

2006, local authorities took him into custody and searched 

his home based on information from American officials that 

a girl had reported him sexually abusing her. He spent seven 

months in a Cambodian prison and then was handed over to 

U.S. authorities, who brought him to the United States.

Pepe was indicted on seven counts of engaging in illicit 

sexual conduct in foreign places between three and nine 

months following his return to Cambodia from the wedding. 

He moved to dismiss the indictment and suppress evidence 

taken from his home and examined in Singapore and the 

United States. The district court denied each of these 

motions.

At trial, the prosecution presented evidence that Pepe 

met a prostitute, Basang, at Sharkey Bar in Phnom Penh 

about five years before his arrest.2 Pepe paid Basang for sex 

several times, but she worked for him primarily by procuring 

girls around 10–12 years old for sex. Basang gave the girls’ 

families money from Pepe in exchange. Pepe paid Basang’s 

rent and gave her $300 to help pay for her parents’ 

gravestones. Basang also translated for him—the girls and 

their mothers spoke little or no English, and he could not

 2 Basang was deposed at the U.S. embassy in Cambodia while 

serving a 27-year sentence for trafficking and pimping. Her deposition 

testimony was played for the jury.
UNITED STATES V. PEPE 7

communicate in the languages that they spoke, Khmer and 

Vietnamese.

The girls, six of whom testified at trial, lived with Pepe 

at various times for a few days to several weeks. Basang 

taught the girls to massage and orally copulate Pepe while 

he and they were naked. After the girls did this, Pepe would 

give them a dollar bill. In addition, he forcibly raped each 

of the girls at least once; some, three times or more. Often, 

when raping a girl for the first time, Pepe or Basang would 

give the girl a sedative and Pepe would tie her legs to his bed 

with a rope. If the girl screamed when she awoke, he would 

slap her, tape her mouth, or cover her head with a pillow.

The jury convicted Pepe on all seven counts. The district 

court sentenced him to consecutive 30-year sentences for a 

total of 210 years in prison. In addition, the court ordered 

him to pay $247,213 in restitution to two Cambodian nongovernmental organizations, Hagar and Agape, on the 

victims’ behalf.

II.

The district court had jurisdiction pursuant to 18 U.S.C. 

§ 3231. We have jurisdiction pursuant to 18 U.S.C. § 3742 

and 28 U.S.C. § 1291.

Whether 18 U.S.C. § 2423(c) applies to U.S. citizens 

who reside in—as opposed to just travel to—a foreign 

country is a question of law which we review de novo. See

United States v. Sheldon, 755 F.3d 1047, 1049 (9th Cir. 

2014).
8 UNITED STATES V. PEPE

III.

A.

Section 2423 originated in the White-Slave Traffic 

(Mann) Act, ch. 395, § 3, 36 Stat. 825 (1910). For decades, 

the statute covered only situations in which the minor victim 

of certain sex crimes was transported across state or federal 

borders. Whether the perpetrator accompanied the victim in 

the travel or arranged the transportation from afar was 

irrelevant. See United States v. Barrington, 806 F.2d 529, 

534 (5th Cir. 1986) (holding that perpetrator’s “own travel, 

distinct from her causing others to travel,” was unnecessary 

for § 2423 conviction); cf. United States v. Jones, 909 F.2d 

533, 540 (D.C. Cir. 1990) (“[O]ne need not physically carry 

or accompany a person interstate in order to ‘transport’ her

. . . .”).

To address the situation where the perpetrator traveled 

but the victim stayed put, Congress added the offense 

currently codified in § 2423(b) to punish persons who travel 

in interstate or foreign commerce “for the purpose of 

engaging in [a prohibited] sexual act.” Violent Crime 

Control and Law Enforcement Act of 1994, Pub. L. No. 103-

322, § 160001(g), 108 Stat. 1796. Proving that foreign 

travelers intended to engage in sexual misconduct with 

children at the time they left the United States turned out to 

be difficult. The 1994 law resulted in only a handful of such 

convictions nationwide, see Karen D. Breckenridge, 

Comment, Justice Beyond Borders: A Comparison of 

Australian and U.S. Child-Sex Tourism Laws, 13 P. Rim L.

& Policy J. 405, 415 (2004), prompting Congress to amend 

the statute again less than a decade later. See Prosecutorial 

Remedies and Other Tools to end the Exploitation of 

Children Today Act of 2003 (“PROTECT Act”), Pub. L. No. 

108-21, § 105, 117 Stat. 650.
UNITED STATES V. PEPE 9

The offense at issue here, § 2423(c), was added in the 

PROTECT Act. Congress purposefully omitted an intent 

element in order to facilitate prosecutions. See H.R. Conf. 

Rep. 108-66, at 51 (2002) (amending § 2423 to address “a 

number of problems related to persons who travel to foreign 

countries and engage in illicit sexual relations with minors,” 

including the need “to prove that the defendant traveled with 

the intent to engage in the illegal activity”).

As originally enacted, the statute applied to “[a]ny 

United States citizen . . . who travels in foreign commerce, 

and engages in any illicit sexual conduct with another 

person.”3 18 U.S.C. § 2423(c) (2003). That version of the 

statute was in effect when Pepe engaged in illicit sexual 

conduct. It’s also the version that was at issue in Clark, 

where we considered its interpretation and constitutionality 

under similar facts.

B.

Michael Clark, a U.S. citizen and military veteran, 

resided primarily in Cambodia for approximately five years 

before being extradited. Clark, 435 F.3d at 1103. He took 

annual trips back to the United States, where he “maintained 

real estate, bank accounts, investment accounts, a driver’s 

 3 Pepe doesn’t dispute that his conduct fell within the definition of 

“illicit sexual conduct,” which means either (1) certain defined sex acts 

with a minor that, if performed on U.S. soil, would violate specified 

sexual abuse laws; or (2) “any commercial sex act” with a minor. 

18 U.S.C. § 2423(f). A “commercial sex act” is “any sex act, on account 

of which anything of value is given to or received by any person.” 

18 U.S.C. § 1591(c)(1). The crimes comprising the definition’s first 

prong “share the common characteristic that there is no economic 

component,” i.e., that “they are non-commercial sex acts.” Clark, 

435 F.3d at 1105. The jury found Pepe’s conduct fell within both prongs.
10 UNITED STATES V. PEPE

license, and a mailing address.” Id. After one such trip to 

visit family, he flew back to Cambodia via third countries. 

Id. Within two months of his return, “Clark came under 

suspicion when street kids reported to social workers that he 

was molesting young boys on a regular basis.” Id. The 

Cambodian National Police (“CNP”) arrested Clark, charged 

him with debauchery, and ultimately turned him over to U.S. 

authorities for prosecution here. Id. He pled guilty to 

violating § 2423(c).

On appeal, Clark argued that the statute was an 

unconstitutional exercise of Congressional power but could 

“be saved from constitutional scrutiny by interpreting it to 

require that the illicit sexual conduct take place while the 

defendant is literally still traveling.” Clark, 435 F.3d at 

1107. We disagreed. Observing that § 2423 has “two key 

determinations”—whether the defendant “travels in foreign 

commerce” and “engages in any illicit sexual conduct”—we 

concluded that the statute “does not require that the conduct 

occur while traveling in foreign commerce.” Clark, 435 F.3d 

at 1105, 1107; see United States v. Jackson, 480 F.3d 1014, 

1017 (9th Cir. 2007) (“In light of Clark, an individual can 

violate § 2423(c) even if he stops traveling before he 

engages in illicit sex.”).

Although we viewed the statute as “unambiguous” in this 

respect, Clark, 435 F.3d at 1107, our focus was on the word 

“and,” which connected the travel with the conduct. We 

construed the statute to mean: travels in foreign commerce 

and thereafter engages in any illicit sexual conduct. We thus 

saw “no plausible reading of the statute that would exclude 

its application to Clark’s conduct because of [the] limited 

gap” of two months “between his most recent transit 

between the United States and Cambodia and his arrest.” Id. 

We speculated that there might be a constitutional problem 
UNITED STATES V. PEPE 11

with a longer gap but had no reason to consider the issue. Id.

at 1107 n.11.

Acknowledging a different interpretive possibility in 

which “and” means “and concurrently,” we dismissed it as 

leading to absurd results. As a practical matter, we thought 

it “non-sensical” that Congress would have limited 

§ 2423(c)’s scope “to the unlikely scenario where the abuse 

occurs while the perpetrator is literally en route.” Id. at 

1107. Such a reading, we explained, “would eviscerate 

§ 2423(c) by severely limiting its use to only those people 

who commit the offense while physically onboard an 

international flight, cruise, or other mode of transportation.” 

Id.

Implicit in this apparent absurdity, however, was Clark’s 

assumption that the meaning of “travels” was limited to 

“transits.” One travels in that sense by “mov[ing] . . . from 

one place to another.” Travel, Merriam-Webster, 

https://www.merriam-webster.com/dictionary/travel (last 

visited Nov. 8, 2017). But “travel” could also have the 

broader meaning of “go[ing] on . . . a trip or tour.” Id. As 

we pointed out the following year, “a person who is 

temporarily in France or Thailand—on vacation, for 

example, or on a business trip—but fully intends to return to 

a permanent residence in the United States is ‘traveling’ as 

long as he remains in the foreign city . . . .” Jackson, 

480 F.3d at 1023.

Employing this broader understanding of “travels,” the 

statutory language linking travel “and” illicit sexual conduct 

could mean, consistent with the goal of combatting sex 

tourism, that the two elements must occur at the same time. 

So interpreted, § 2423(c) would apply to sex tourists who fly 

to foreign countries for a finite time, have illicit sex, and then 

return to the United States. But it would not apply to 
12 UNITED STATES V. PEPE

Americans who have illicit sex while residing in the foreign 

country, because they are not traveling. The sex tourist’s 

stay in the foreign country need not be short or have a set 

end date, but it must be expected to end. In other words, the 

stay must be temporary. See United States v. Schmidt, 

845 F.3d 153 (4th Cir. 2017) (construing the U.S. citizen’s 

“travels” to last eighteen months where he didn’t resettle in 

the foreign country during that time), cert. denied, No. 17-

5254, 2017 WL 3118060 (U.S. Oct. 2, 2017).

We thus see two plausible interpretations of the statute. 

In one, “travels” is construed broadly while “and” is 

construed narrowly to require that the travel and the illicit 

sexual conduct occur at the same time. In the other—the one 

adopted in Clark and rejected by the Fourth Circuit in 

Schmidt—it’s just the opposite. Travel under this view 

“end[s] when the citizen arrives in a foreign country.” 

Jackson, 480 F.3d at 1023. In this construction, as we 

explained in Clark, the connector “and” necessarily creates 

an open-ended temporal relationship between the travel and 

the sexual misconduct in order to save the statute from 

irrelevance.

C.

Normally, Clark’s interpretation of the statute would 

bind subsequent panels, including ours. See, e.g., United 

States v. Parga-Rosas, 238 F.3d 1209, 1212 (9th Cir. 2001). 

But there’s an important exception to this principle. We 

have a rule that “where the reasoning or theory of our prior 

circuit authority is clearly irreconcilable with the reasoning 

or theory of intervening higher authority, a three-judge panel 

should consider itself bound by the later and controlling 

authority, and should reject the prior circuit opinion as 

having been effectively overruled.” Miller v. Gammie, 

335 F.3d 889, 893 (9th Cir. 2003) (en banc).
UNITED STATES V. PEPE 13

The “intervening higher authority” is generally the 

federal or state court of last resort or an en banc panel of this 

court. However, Congressional amendments to a statute can 

also “constitute ‘intervening’ authority for the purposes of 

our rule.” Landreth v. Comm’r, 859 F.2d 643, 648 (9th Cir. 

1988); see United States v. McNeil, 362 F.3d 570, 574 (9th 

Cir. 2004) (“[W]hen Congress amends statutes, our 

decisions that rely on the older versions of the statutes must 

be reevaluated in light of the amended statute.” (citing 

Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1172 (9th Cir. 

2003))). In particular, “the rule is applicable in cases 

involving statutory interpretation where Congress has 

retroactively clarified the meaning of the statute at issue.” 

Landreth, 859 F.2d at 648. If our case law interpreting a 

statute is clearly irreconcilable with the text and history of 

subsequent legislation, we are not bound by the decisions of 

prior panels. See United States v. Gonzalez-Torres, 309 F.3d 

594, 599 (9th Cir. 2002) (citing United States v. Washington, 

872 F.2d 874, 880 (9th Cir. 1989)). We are dealing with 

such a case here.

In 2013, Congress amended § 2423(c) as part of the 

Violence Against Women Reauthorization Act, Pub. L. 113-

4, § 1211(b) (2013). The statute now penalizes a U.S. citizen 

“who travels in foreign commerce or resides, either 

temporarily or permanently, in a foreign country, and 

engages in any illicit sexual conduct.” 18 U.S.C. § 2423(c) 

(emphasis added).

This change to the statute makes no sense as we 

interpreted the original version in Clark. “When Congress 

acts to amend a statute, we presume it intends its amendment 

to have real and substantial effect.” Pierce County v. 

Guillen, 537 U.S. 129, 145 (2003). Yet the amendment to 

§ 2423(c) would have virtually no effect if the illicit sexual 
14 UNITED STATES V. PEPE

conduct can occur anytime after the travel. Almost every 

U.S. expatriate travels in foreign commerce before residing 

overseas. Under Clark’s analysis, “the only U.S. citizens 

who could fall outside the reach of § 2423(c) if they engage 

in illicit sexual conduct abroad are those who never set foot 

in the United States.” Clark, 435 F.3d at 1120 (Ferguson, J., 

dissenting).

Indeed, that is exactly the government’s position. It 

argues that the amendment “was intended to close the 

loophole of the prior version of the statute that did not 

criminalize the illicit sexual conduct committed by 

Americans residing abroad who had not traveled in foreign 

commerce.” Even if that were plausible in the abstract, it is 

incongruent with the amendment’s text.

The offense has always contained two elements: travel 

in foreign commerce, and the commission of illicit sexual 

conduct. The amendment concerned the first element, which 

can now be satisfied in two ways. One either “travels in 

foreign commerce or resides . . . in a foreign country.” 

18 U.S.C. § 2423(c).

The word “and,” which connects the first element with 

the second, now modifies both “travels” and “resides.” With 

respect to “travels,” we interpreted “and” sequentially in 

Clark—one travels, completes the travel by arriving in the 

foreign country, and afterwards engages in illicit sexual 

conduct. That interpretation of “and” makes no sense with 

respect to “resides.” The statute obviously was not meant to 

apply to someone who resides, perhaps temporarily, in a 

foreign country and afterwards engages in illicit sexual 

conduct. Rather, in that context “and” means “and 

concurrently”—one engages in the illicit sexual conduct 

while residing in the foreign country. By adhering to our 

construction in Clark, “[t]he word ‘[and]’ would have two 
UNITED STATES V. PEPE 15

different meanings at once . . . . It would be rather like 

saying ‘He filled and kicked the bucket’ to mean ‘He filled 

the bucket and died.’ Grotesque.” District of Columbia v. 

Heller, 554 U.S. 570, 587 (2008).

The government’s explanation for the amendment is also 

flatly contradicted by the legislative history. See Landreth, 

859 F.2d at 648 (looking to both the text of the statutory 

changes and Congressional statements of purpose); cf. Red 

Lion Broad. Co. v. FCC, 395 U.S. 367, 380–81 (1969) 

(“Subsequent legislation declaring the intent of an earlier 

statute is entitled to great weight in statutory construction.”). 

The amendment was adopted nearly verbatim from a 

proposal by the Alliance to End Slavery & Trafficking 

(“ATEST”), a lobbying organization comprised of various 

human rights groups. ATEST advocated for the change out 

of concern that the original law “only allows the U.S. 

government to pursue criminal charges against U.S. citizens

. . . who exploit children while traveling in foreign 

commerce. Due to the use and intent of the word ‘travel,’ 

this has been interpreted to mean a brief stay and not include 

resettlement or intent to stay.” ATEST, Recommendations 

for the Reauthorization of the Trafficking Victims Protection 

Act of 2000, at 31 (2011), http://www.castla.org/assets/files/

2013_TVPRA_Summary.doc (last visited Oct. 25, 2017); 

see Best Practices and Next Steps: A New Decade in the 

Fight Against Human Trafficking: Hearing Before the 

Subcomm. on Afr., Glob. Health, & Human Rights of the H. 

Comm. on Foreign Affairs, 112th Cong. 139 (2011) 

(material submitted by David Abramowitz, Director of 

Policy and Government Relations, Humanity United) 

(recommending that Congress “[c]riminalize the 

exploitation of children by U.S. citizens living overseas”).
16 UNITED STATES V. PEPE

Congress shared this understanding of the law, citing the 

amendment to § 2423(c) as an example of the “significant 

changes” it was making “to fight human trafficking crimes.” 

S. Rep. 112-96, at 8 (2011). The Senate Report explained 

that child exploitation laws were being “strengthened to hold 

criminally liable those U.S. citizens . . . residing outside of 

the United States who engage in illicit sexual conduct with a 

minor. Current law only reaches U.S. citizens . . . who travel 

abroad in foreign commerce.” Id. If the design of this 

legislation was to reach only those U.S. citizens living 

abroad and committing illicit sexual conduct who had never 

stepped foot on U.S. soil, it could hardly be described as a 

“significant” change to existing law.

We thus conclude that Clark’s construction of § 2423(c) 

is clearly irreconcilable with the plain text of its subsequent 

amendment as well as Congress’s stated reason for the 

change. The statute originally did not target all U.S. citizens 

who traveled overseas and committed sex crimes with 

minors—only those who resided in the United States. 

Because this ensnared only sex tourists who committed their 

sex crimes while traveling in the foreign country, Congress 

amended the statute to cover even U.S. citizens who chose 

to relocate, either temporarily or permanently, overseas.

We do not depart from circuit precedent lightly. When 

intervening higher authority casts doubt on our prior 

statutory interpretation, we must attempt to reconcile the 

two, reserving for an en banc panel the prerogative to 

overrule imprudent but still tenable decisions. See Ctr. for 

Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1106 

(9th Cir. 2016). If it were possible, consistent with Clark, 

we would read the amendment to § 2423(c) as clarifying 

rather than enlarging its scope. But even the government 

agrees that Congress expanded criminal liability when it 
UNITED STATES V. PEPE 17

amended the statute. There’s no interpretation of the current 

statutory text that is consistent both internally and with 

Clark.

Departing from precedent might still give us pause if 

Clark had considered and rejected the interpretation we 

adopt today. However, Clark’s analysis focused on the 

statute’s constitutionality. In its brief discussion of the 

statute’s meaning, Clark weighed only whether “and” 

should be construed narrowly or broadly. It didn’t consider 

this question in the context of whether “travels” could be 

read more expansively. Just as cases are not precedential for 

propositions not considered, see United States v. RamosMedina, 706 F.3d 932, 938 (9th Cir. 2013), Clark does not 

foreclose an interpretation of the statute that it didn’t 

consider when subsequent Congressional action renders that 

interpretation the only one possible.

D.

Aside from what the 2013 amendment revealed about 

Congressional intent, there are good reasons to interpret the 

former statute as we do. We normally resolve “ambiguity 

concerning the ambit of criminal statutes . . . in favor of 

lenity.” Jones v. United States, 529 U.S. 848, 858 (2000) 

(quoting Rewis v. United States, 401 U.S. 808, 812 (1971)). 

This canon of construction serves the policy of giving “fair 

warning . . . to the world in language that the common world 

will understand, of what the law intends to do if a certain line 

is passed. To make the warning fair, so far as possible the 

line should be clear.” United States v. Bass, 404 U.S. 336, 

348 (1971) (quoting McBoyle v. United States, 283 U.S. 25, 

27 (1931)). In addition, “because of the seriousness of 

criminal penalties, and because criminal punishment usually 

represents the moral condemnation of the community, 
18 UNITED STATES V. PEPE

legislatures and not courts should define criminal activity.” 

Id.

By dispensing with the intent element, § 2423(c) marked 

a dramatic departure from existing law in order to facilitate 

convictions.4 Strict liability is generally imposed for socalled “public welfare offenses” that “are in the nature of 

neglect where the law requires care, or inaction where it 

imposes a duty.” Morissette v. United States, 342 U.S. 246, 

255 (1952). Such offenses rarely involve moral 

condemnation by the community; they tend to carry minor 

penalties, with conviction resulting in no grave harm to an 

offender’s reputation. Id. at 256. Section 2423(c), in 

contrast, threatens an offender with up to 30 years in prison 

and lifetime registration as a sex offender. See 34 U.S.C. 

§ 20913(a). Application of the rule of lenity takes on 

heightened importance when an offense requires no mens rea 

and its potential penalty is so severe.5

 4 While § 2423(c) doesn’t itself require a mens rea, “illicit sexual 

conduct” can be established through offenses that do. See 18 U.S.C. 

§ 2423(f)(1). However, illicit sexual conduct can also be established 

through a commercial sex act, id. § 1591, or production of child 

pornography, id. § 2256(8), neither of which requires a particular state 

of mind. See id. § 2423(f)(2)–(3). Moreover, the requisite mens rea, 

when applicable, is minimal. Statutory rape, for example, requires proof 

only that the defendant “knowingly” engaged in a sexual act with another 

person. Id. § 2243(a). The government doesn’t need to prove knowledge 

of the victim’s age, though reasonable mistake about it is a defense. See

id. § 2243(c)(1), (d).

5 A person such as Pepe who commits heinous acts over a long 

period of time obviously has an intent to violate the law. But the statute 

would apply equally to a 19-year-old who has a romantic and mutually 

desired sexual relationship with a 15-year-old, see 18 U.S.C. §§ 2243(a), 

2423(f)(1), even if the relationship is legal in both the 19-year-old’s 
UNITED STATES V. PEPE 19

Another venerable canon of construction instructs us that 

“ambiguous statutory language [should] be construed to 

avoid serious constitutional doubts.” FCC v. Fox TV 

Stations, Inc., 556 U.S. 502, 516 (2009) (citing Edward J. 

DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. 

Trades Council, 485 U.S. 568, 575 (1988)). Congress 

ostensibly enacted § 2423(c) pursuant to its authority under 

the Foreign Commerce Clause. See Clark, 435 F.3d at 1104. 

The government argues that the Necessary and Proper 

Clause was another basis for the legislation because 

Congress needed to implement an international convention 

on child trafficking to which the United States was a 

signatory—the Optional Protocol to the Convention on the 

Rights of the Child on the sale of children, child prostitution 

and child pornography, G.A. Res. 54/263, U.N. Doc. 

A/54/263 (May 25, 2000). Pepe disputes that either Clause 

is a valid source of Congressional authority.

Clark acknowledged the possibility that “a longer gap 

between the travel and the commercial sex act could trigger 

constitutional or other concerns.” 435 F.3d at 1119 n.11. 

With no statutory limitation on the temporal gap we all but 

guarantee a stream of litigation over the statute’s 

constitutionality. See Naomi Harlin Goodno, When the 

Commerce Clause Goes International: A Proposed Legal 

Framework for the Foreign Commerce Clause, 65 Fla. L. 

Rev. 1139, 1210–11 (2013) (“[E]ach scenario [under 

§ 2423(c)] would have to be considered on a case-by-case 

basis to determine if Congress is acting within its power 

under the Foreign Commerce Clause.”). In any given case, 

defense counsel would be remiss not to attempt to 

 home state and the foreign country, see, e.g., Colo. Rev. Stat. § 18-3-

402(e); Code pénal art. 227-25 (Fr.). We can’t invoke the rule of lenity 

selectively for sympathetic defendants.
20 UNITED STATES V. PEPE

distinguish their client from Michael Clark due to a longer 

gap between the travel and the illicit sexual conduct or some 

other factor that makes the connection with foreign 

commerce more attenuated.

Nor are Pepe’s constitutional arguments trivial. “Cases 

involving the reach of the Foreign Commerce Clause vis-[à]-

vis congressional authority to regulate our citizens’ conduct 

abroad are few and far between.” Clark, 435 F.3d at 1102. 

There is “strong textual, structural, and historical evidence 

that Congress has less—not more—power to impose U.S. 

law inside foreign nations than inside the several states under 

the Commerce Clause.” Anthony J. Colangelo, The Foreign 

Commerce Clause, 96 Va. L. Rev. 949, 1003 (2010); see 

also United States v. Al-Maliki, 787 F.3d 784, 791 (6th Cir. 

2015) (“doubt[ing]” that the Foreign Commerce Clause 

“include[s] the power to punish a citizen’s noncommercial 

conduct while the citizen resides in a foreign nation”). And 

the government’s argument under the Necessary and Proper 

Clause rests on a 1920 case that has been sharply criticized 

in recent years.6 While the current version of § 2423(c) will 

 6 In Missouri v. Holland, the Supreme Court held that “[i]f [a] treaty 

is valid there can be no dispute about the validity of the [implementing] 

statute under Article 1, Section 8, as a necessary and proper means to 

execute the powers of the Government.” 252 U.S. 416, 432 (1920). 

Nearly a century later, the Court interpreted a criminal statute narrowly 

to avoid reconsidering this precedent. See Bond v. United States, 134 S. 

Ct. 2077, 2085–87 (2014). Three Justices would have reached the 

constitutional question and struck down the statute as exceeding 

Congress’s authority. See id. at 2100 (Scalia, J., concurring) (“[T]he 

possibilities of what the Federal Government may accomplish, with the 

right treaty in hand, are endless and hardly farfetched.”); id. at 2109–10

(Thomas, J., concurring) (criticizing Holland for taking “an improperly 

broad view of the Necessary and Proper Clause” in light of “the original 

understanding [of] the Treaty Power”); see also United States v. 

Bollinger, 798 F.3d 201, 221 (4th Cir. 2015) (“Because Congress may 
UNITED STATES V. PEPE 21

inevitably force us to grapple with the outer limits of 

Congress’s power to regulate the conduct of U.S. citizens 

residing abroad, we leave that question for another day.

Finally, our interpretation brings us in line with the 

several other circuits that read “travels” expansively. See

Schmidt, 845 F.3d at 157 (“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.” (citing Jackson, 480 F.3d at 1022)); 

United States v. McGuire, 627 F.3d 622, 624 (7th Cir. 2010) 

(“Section 2423(c) was added to punish persons who travel in 

foreign commerce and have sex with a minor in the course 

of the trip regardless of what the defendant intended when 

he set out on it.”); United States v. Frank, 599 F.3d 1221, 

1239–40 (11th Cir. 2010) (finding no plain error in 

proposition that “§ 2423(c) allows multiple sentences for 

making a single trip during which the defendant engaged in 

illicit sexual conduct with multiple minors”). But see United 

States v. Pendleton, 658 F.3d 299, 309 (3d Cir. 2011) 

(“[U]nder § 2423(c), a person’s travel through foreign 

commerce continues to provide a link to his illicit sexual 

conduct long after his travel is complete.”).

E.

The dissent responds to a straw argument by misstating 

Pepe’s position both here and in the district court as one of 

only temporary residency in Cambodia. According to the 

 

enact legislation regulating domestic affairs pursuant to international 

treaties, courts should tread carefully in expanding that power.” (citing 

Bond, 134 S. Ct. at 2087–88)); Nicholas Quinn Rosenkranz, Executing 

the Treaty Power, 118 Harv. L. Rev. 1867, 1869 (2005) (arguing that 

Holland allows treaties to “increase the legislative power virtually 

without limit”).
22 UNITED STATES V. PEPE

dissent, Pepe “did not rest his statutory argument on his 

alleged intent to resettle” before the district court and “[f]or 

the first time on appeal . . . argues that his temporary 

residency . . . took his conduct out of the statutory reach of 

§ 2423(c).” Dissent at 25 & n.1. To the contrary, throughout 

the proceedings Pepe has maintained that “he was indeed a 

resident of Cambodia who had demonstrated a ‘permanent 

intent to resettle’ in that country.” In moving to dismiss the 

indictment, Pepe represented to the district court that he had 

“permanently relocated to Cambodia” in 2003, more than 

two years before the conduct at issue. He argued that “the 

statute in no way indicates that it’s intended . . . to target 

people who were already residing in a foreign country and 

had demonstrated . . . no intent to return.”

The dissent acknowledges that prior to the 2013 

amendment, § 2423(c) “likely did not apply to citizens who 

had permanently resettled in a foreign country.” Dissent at 

29. Given Pepe’s claim that he was residing in Cambodia on 

a permanent basis, we fail to see the relevance of the 

dissent’s contention that the statute has always applied to 

persons residing abroad temporarily. If the statute did not 

apply to U.S. citizens permanently living overseas, Pepe’s 

conviction cannot stand.

The dissent’s only response is that Pepe should have 

raised his statutory argument in the district court. See

Dissent at 25 n.1, 30. In fact, he did. The district court 

understood Pepe to argue that “he was no longer traveling at 

the time he allegedly engaged in illicit sexual conduct, 

because he permanently resided in Cambodia.” The district 

court rejected this argument on the ground that Pepe “did not 

have to be traveling at the time he engaged in illicit sexual 

conduct in order to be liable under § 2423(c).”
UNITED STATES V. PEPE 23

But even if Pepe didn’t present his precise statutory 

argument to the district court, there was no reason for him to 

do so. Under Clark’s then-binding interpretation of the 

statutory language, it was a nonstarter. Michael Clark’s 

argument that he had permanently resettled in Cambodia was 

rejected as irrelevant to the statutory definition. See United 

States v. Clark, 315 F. Supp. 2d 1127, 1134 & n.2 (W.D. 

Wash. 2004). We agreed with the district court that carving 

out an exception for permanent residents would “add 

elements to the crime . . . that simply do not exist in the 

statute.” Clark, 435 F.3d at 1107 (quoting Clark, 315 F. 

Supp. 2d at 1130).

The dissent concedes that Pepe’s statutory theory was 

“not viable under applicable case law” at the time. Dissent 

at 30. Indeed, it wasn’t until five years after Pepe’s 

conviction that Congress passed the statutory amendment 

giving rise to his interpretive challenge. A defendant need 

not raise a futile defense at trial in order to preserve it for 

appeal. See United States v. Wilbur, 674 F.3d 1160, 1177 

(9th Cir. 2012) (citing United States v. Manning, 56 F.3d 

1188, 1195 (9th Cir. 1995)).

Moreover, the government doesn’t assert that Pepe 

forfeited his statutory claim. By responding to the merits of 

Pepe’s contentions, the government forfeited any forfeiture 

argument. See United States v. Lewis, 787 F.2d 1318, 1323 

n.6 (9th Cir. 1986)); see also Tibble v. Edison Int’l, 843 F.3d 

1187, 1196 (9th Cir. 2016) (en banc).

We do not lightly overturn Pepe’s convictions. But we 

cannot uphold his 210-year sentence under a statute that he 

may not have violated simply because his reprehensible 

conduct harmed vulnerable children. Due process requires 

“proof beyond a reasonable doubt of every fact necessary to 

constitute the crime with which he is charged.” In re 
24 UNITED STATES V. PEPE

Winship, 397 U.S. 358, 364 (1970). The government has not 

met this burden with respect to the travel element.

IV.

We hold that a conviction under § 2423(c), when based 

on a defendant’s travel in foreign commerce, requires proof 

that the illicit sexual conduct occurred while the defendant 

was traveling. If, as Pepe maintains, he relocated to 

Cambodia in March 2003, then the statute does not apply to 

him. 

The government appears to dispute Pepe’s claim that he 

had resettled in Cambodia, citing among other things Pepe’s 

post-arrest letters to the U.S. ambassador and various family 

members expressing his intent to register his Cambodian 

marriage and return to the United States with his wife. 

Because the jury was not properly instructed on the travel 

element, we vacate Pepe’s convictions and sentence. On 

remand, should the government elect to retry him, it will 

need to prove that he was still traveling when he committed 

illicit sexual conduct.

VACATED and REMANDED.

THOMAS, Chief Judge, dissenting:

United States v. Clark, 435 F.3d 1100 (9th Cir. 2006) 

remains good law and is binding on this panel. It is not 

“clearly irreconcilable” with the 2013 amendment to 

§ 2423(c). Indeed, Clark’s holding of the statutory reach of 

the prior statute is completely consistent with the 

amendment. Further, the question of whether the prior 

statute applied to citizens who temporarily resided abroad 
UNITED STATES V. PEPE 25

and intended to resettle was never argued to the district 

court. We should not be deciding that question in this 

appeal, much less overturning prior circuit precedent as a 

three judge panel. Therefore, I must respectfully dissent.

For the first time on appeal, Pepe argues that his 

temporary residency, by itself, took his conduct out of the 

statutory reach of § 2423(c).1 Part of his argument is 

founded on the 2013 amendment to § 2423(c). The version 

of the statute under which Pepe was convicted applied to 

“[a]ny United States citizen . . . who travels in foreign 

commerce, and engages in any illicit sexual conduct with 

another person.” 18 U.S.C. § 2423(c) (2003). The 2013 

amendment added the phrase “or resides, either temporarily 

or permanently, in a foreign country.” It otherwise reenacted the prior statute and left the remaining phrases 

untouched.

We, of course, presume as a general rule that 

Congressional amendments are intended “to have real and 

substantial effect.” Pierce County v. Guillen, 537 U.S. 129, 

145 (2003). However, the principles of statutory 

construction do not end there. “The mere fact of an 

 1 Before the district court, he only argued that “the principles of 

statutory construction require[] that the prohibited conduct in § 2423(c) 

occur soon after the travel.” He did not rest his statutory argument on 

his alleged intent to resettle–a contention that was vigorously disputed 

by the United States given his written statements to the Cambodian 

government that he intended to live his life in the United States, a letter 

to his family that he intended to return to the United States to live, and a 

letter to his storage facility in Colorado that gave his permanent address 

as Oxnard, California and stating that he would be traveling in and out 

of the country. He claimed to have permanently resettled solely in the 

context of his constitutional challenges to Congressional authority. The 

district court never resolved the factual question of whether or not Pepe 

had permanently resettled in Cambodia.
26 UNITED STATES V. PEPE

amendment itself does not indicate that the legislature 

intended to change a law.” Callajas v. McMahon, 750 F.2d 

729, 731 (9th Cir. 1984). Indeed, we also presume that 

Congress “had knowledge of the interpretation given to the 

incorporated law, at least insofar as it affects the new 

statute.” Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 

802–03 (1985) (quoting Lorillard v. Pons, 434 U.S. 575, 

580–81 (1978)). Further, “when ‘judicial interpretations 

have settled the meaning of an existing statutory provision, 

repetition of the same language in a new statute indicates, as 

a general matter, the intent to incorporate its . . . judicial 

interpretations as well.’ ” Merrill Lynch v. Dabit, 547 U.S. 

71, 85–86 (2006) (quoting Bragdon v. Abbott, 524 U.S. 624, 

645 (1998)).

Thus, we presume that, in enacting the 2013 

amendments, Congress was well aware of the prior judicial 

interpretations of the prior statute. Although the underlying 

analysis in cases interpreting § 2423(c) may have differed, 

the holding was entirely the same: § 2423(c) applied to 

conduct that occurred after the U.S. citizen arrived in a 

foreign country. Clark rejected the defendant’s contention 

that the crime must be committed “while the perpetrator is 

literally en route.” 435 F.3d at 1108. Rather, Clark held that 

a two month gap between the end of transit and the crime did 

not take Clark’s actions out of the statutory reach, reasoning 

that the twofold requirement of foreign travel and illicit 

sexual conduct “does not require that the conduct occur 

while traveling in foreign commerce.” Id. at 1107. Clark

noted that the legislative history of the prior legislation 

strongly suggested that Congress intended for the original 

statute to encompass conduct after the completion of travel, 

during residencies and other long-term stays in foreign 

countries. Clark, 435 F.3d at 1104, 1108; H.R. Rep. No. 

108–66, at 51 (2003) (“Under [§ 2423(c)]{fs28 , the 
UNITED STATES V. PEPE 27

government would only have to prove that the defendant 

engaged in illicit sexual conduct with a minor while in a 

foreign country.

The Fourth Circuit reached the same conclusion that 

arrival in a country did not terminate the statutory reach of 

§ 2423(c) by expansively interpreting the term “traveling” 

broadly as “encompass[ing] movement abroad that 

maintains some nexus with the United States.” United States 

v. Schmidt, 845 F.3d 153, 157 (4th Cir. 2017). Schmidt noted 

that “[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.” Id. The bottom line of both cases is precisely 

the same: the reach of § 2423 did not stop when the U.S. 

Citizen arrived on foreign soil.2

Indeed, federal courts have uniformly and repeatedly 

applied the original statute to capture precisely this type of 

conduct. See, e.g., Schmidt, 845 F.3d at 155 (applying the 

statute to a citizen who fled to the Philippines and then 

Cambodia a year later); Clark, 435 F.3d at 1103 (convicted 

defendant repeatedly molested young boys while residing in 

Cambodia from 1998 until extraction in 2003, with annual 

trips back to the United States); United States v. Pendleton, 

658 F.3d 299, 301 (3d Cir. 2011) (convicted defendant 

molested a minor six months after arrival in Germany); 

 2 I am not necessarily persuaded that there is a meaningful conflict 

between Clark and Schmidt. The Clark panel was only confronted with 

the argument that foreign travel--and thus the reach of the statute--

terminated on arrival in the foreign country. It did not specifically 

construe the term “foreign travel” in determining that the statute applied 

after a citizen’s arrival in a foreign country. But that question is, in my 

mind, irrelevant because the holding is the same in both cases, even if 

there is some difference in rationale.
28 UNITED STATES V. PEPE

United States v. Flath, No. 11-CR-69, 2011 WL 6299941, at 

*1, *12 (E.D. Wis. Sept. 14, 2011), report and 

recommendation adopted in relevant part, 845 F. Supp. 2d 

951 (E.D. Wis. 2012) (defendant was indicted in 2010 

despite maintaining living in Belize for four years).

Significantly, both Clark and Schmidt stand for the 

proposition that living abroad alone did not place the 

defendants out of the reach of § 2423(c). The defendant in 

Clark had “primarily resided in Cambodia from 1998 until 

his extradition in 2004.” 435 F.3d at 1103. The defendant 

in Schmidt had lived abroad for almost two years. 845 F.3d 

at 157.

In sum, when Congress passed the 2013 amendments, it 

was aware of the uniform judicial decisions interpreting 

§ 2423(c) that held that the statute applied to conduct 

occurring after the defendant arrived in a foreign country 

even if the defendant had been living abroad and had 

remained in the foreign country for “a significant amount of 

time.” Schmidt, 845 F.3d at 157. Congress did not alter that 

language, evincing its intent to incorporate those judicial 

interpretations. Merrill Lynch, 547 U.S. at 85–86. Thus, 

there is nothing in the amended statute that would indicate 

an intent to overrule Clark, or assign some other meaning to 

the prior statutory language.

There were other judicial observations on the prior 

statute that were doubtless important to Congress. No case 

prescribed a temporal limit as to the statute’s reach on the 

citizen’s presence in a foreign country. However in United 

States v. Jackson, 480 F.3d 1014 (9th Cir. 2007) we 

construed Clark as implying that “travel can end for a United 

States citizen at some point while still abroad,” and we 

suggested that the statute did not reach citizens who had 

permanently resettled in a foreign country because their 
UNITED STATES V. PEPE 29

foreign travel had ended. Id. at 1023. Schmidt also 

recognized the possibility that a citizen’s permanent 

resettlement in a foreign country might place the citizen’s 

conduct beyond the reach of the statute. 845 F.3d at 158. 

However, Schmidt held that “[w]hile intent to permanently 

resettle may be one factor in determining when relevant 

travel in foreign commerce comes to an end, it is not 

dispositive.” Id. Thus, at the time Congress passed the 

amendments, applicable case law interpreting the prior 

statute suggested that § 2423(c) did not apply to U.S. citizens 

who had permanently resettled in another country. Thus, it 

was quite logical for Congress to add amendatory language 

to address that situation and make it clear that the statute 

applied to all U.S. citizens not only who “travel[ed] in 

foreign commerce,” but to those who “reside[], either 

temporarily or permanently, in a foreign country.” The new 

language settled the question of whether the statute applied 

to U.S. citizens who had permanently resettled in another 

country. It did not, however, purport to alter the meaning of 

the prior statutory language, which remained intact.

In short, when Congress passed the 2013 amendments, 

we presume it was aware of judicial interpretations of the 

existing statute, holding that: (1) the statute applied to 

conduct after the citizen arrived in the foreign country, even 

if the citizen had been abroad for a significant time and had 

taken up temporary residency, and (2) the statute likely did 

not apply to citizens who had permanently resettled in a 

foreign country. Because Congress reenacted the same 

language that courts had construed, we presume that 

Congress intended to incorporate those judicial 

interpretations, rather than supplant them. Merrill Lynch,

547 U.S. at 85–86. By adding permanent residency to the 

statute, it was expanding the statutory reach, not contracting. 

Thus, the amendments had “real and substantial effect,” but 
30 UNITED STATES V. PEPE

did not alter existing law as to construction of the prior 

statute. To the extent that the new language clarified that the 

statute applied to temporary residency, it was merely a 

clarifying amendment, not a substantive change in the 

existing law. ABKO Music Inv. v. Lavere, 217 F.3d 684, 691 

(9th Cir. 2000). It is implausible to believe that Congress 

intended through the 2013 amendments to narrow the 

application of the prior statute.

Thus, there is nothing in the 2013 amendments that is 

“clearly irreconcilable” with Clark, and certainly nothing 

that would justify a three judge panel overruling it.

Under Clark, Schmidt, and every other federal case 

construing the prior version of § 2423(c), the statute applied 

to Pepe. His objection, made for the first time on appeal, to 

the statute’s application is that he had been living in 

Cambodia for some time, which is not sufficient to avoid the 

statute under Clark, Schmidt, or Pendleton. As noted earlier, 

he did not argue to the district court that the statute did not 

apply to him because he had intended to permanently 

resettle; he only made an argument as to the temporal reach 

of the statute, and that theory was clearly precluded by case 

law. He did not request a jury instruction stating that the 

statute did not apply to citizens who had taken up residency 

abroad or that had permanently resettled; he only requested 

one that said that the illegal conduct must occur immediately 

or soon after travel in foreign commerce. There was no 

error, much less plain error, in the district court’s denial of 

the motion to dismiss the indictment on an unasserted theory 

of statutory construction, nor in the district court not sua 

sponte instructing the jury on a theory not asserted at trial 

and not viable under applicable case law.

In sum, under Clark, the prior version of § 2423(c) 

applies to Pepe, as the majority concedes. There is nothing 
UNITED STATES V. PEPE 31

in the 2013 amendments that is “clearly irreconcilable” with 

Clark. Thus, it remains good law, binding on this panel, and 

requires affirmance.

For these reasons, I respectfully dissent.3

 3 I see no merit in Pepe’s other assertions on appeal, but there is no 

reason to discuss them given that the majority opinion is confined to a 

single issue on which it bases the reversal.