FOR PUBLICATION



### UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

U NITED S TATES O F A MERICA
, Plaintiff

- Appellee

,

v.

M ICHAEL J OSEPH P EPE
, 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 Thomas2 U NITED S TATES V

. P EPE

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 cr iminal 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

— meanin g 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 (9 th 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.U NITED S TATES V

. P EPE 3

The panel observed that the government appears to dispute the def endant’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

t he 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, Uni ted States Attorney; United States Attorney’s Office, Los Angeles,
California ; for Plaintiff

- Appellee.4 U NITED S TATES V

. P EPE

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 pris on 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 condu ct 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 resi dent 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

c ountry , 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 theU NITED S TATES V

. P EPE 5

accompanying legislative history, it is evident that § 2423(c) was previously inapplicable t o 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

a re 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 “tr aveling,” 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 t icket. 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 pro blems” between himself and Bith and stating that they “are still married.”6 U NITED S TATES V

. P EPE

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 Angel es 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 hi m 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, t he 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.U NITED S TATES V

. P EPE 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 seda tive 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 non

governmental organizations, Hagar and Agape, on the
victims’ behalf.

II.

The district court had jurisdiction purs uant 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 nov o. See
United States v. Sheldon , 755 F.3d 1047, 1049 (9th Cir. 2014).8 U NITED S TATES V

. P EPE

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 i n 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 purp ose 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. 65 0.U NITED S TATES V

. P EPE 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 a ccounts, 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 characterist ic 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 U NITED S TATES V

. P EPE

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 tha t 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 st ill 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 tha t 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

engage s 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 problemU NITED S TATES V

. P EPE 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 unlike ly 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
i nternational 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 t o 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 pers on 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 10 23.

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 to12 U NITED S TATES V

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Americans who have illicit sex while residing in the foreign country, because they are no t 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 un der 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 impor tant 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).U NITED S TATES V

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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.” Landre th 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 sta tute.” (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.”
Landre th , 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 sta tute 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 s ense 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) wo uld have virtually no effect if the illicit sexual14 U NITED S TATES V

. P EPE

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 r each 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
in congruent 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 “t ravels 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” sequentia lly 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 so meone 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 adhe ring to our
construction in Clark , “[t]he word ‘[and]’ would have twoU NITED S TATES V

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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 Allian ce 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. citiz ens

. . . 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 Reauthoriza tion 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]rim inalize the exploitation of children by U.S. citizens living overseas”).16 U NITED S TATES V

. P EPE

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 l aw 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 statut e 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 cou ntry, 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 interp retation, 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 itU NITED S TATES V

. P EPE 17

am ended 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. Howev er, 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 “trave ls” could be read more expansively. Just as cases are not precedential for propositions not considered, see United States v. Ramos

Medina , 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 “ambig uity 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) (quotin g 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 U NITED S TATES V

. P EPE

legislatures and not courts should define crim inal 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 so

called “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 res ulting 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 e stablished 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 s tate 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 gove rnment 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, s ee 18 U.S.C. § § 2243(a), 2423(f)(1), even if the relationship is legal in both the 19

- year

- old’sU NITED S TATES V

. P EPE 19

Another venerable canon of construction instructs us that “ambiguous statutory language [should] be construed to
avoid serious constitutional doubt s.” 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 Foreig n 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 Sta tes 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 sour ce 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 fore ign country, see, e.g. , Colo. Rev. Stat. § 18

- 3

- 402 (e); Code p é nal art. 227

- 25 (Fr.). We can’t invoke the rule of lenity selectively for sympathetic defendants.20 U NITED S TATES V

. P EPE

distinguish thei r 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 r each 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 m ore

— 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 192 0 case that has been sharply criticized in recent years. 6 While the current version of § 2423(c) will

6 In Missouri v. Holland

, t he 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 in terpreted a criminal statute narrowly to avoid reconsidering this precedent. See Bond v. United States , 134 S. Ct. 2077, 20 85

– 87 (2014) . Three Justices would have reached the constitutional question and struck down the statute as exceeding Congress’s aut hority. 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 tak ing “ 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 mayU NITED S TATES V

. P EPE 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 commerc e 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 thr ough 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 res idency in Cambodia. According to the

enact legislation regulating do mestic 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, 186 9 (2005) (arguing that
Holland allows treaties to “increase the legislativ e power virtually
without limit ” ).22 U NITED S TATES V

. P EPE

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
residen cy

. . . took his conduct out o f 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 Cambo dia 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 issu e. 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 permane nt 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 dis sent’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 arg ue 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 travel ing at the time he engaged in illicit sexual
conduct in order to be liable under § 2423(c).”U NITED S TATES V

. P EPE 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 applicabl e 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 unde r 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 re24 U NITED S TATES V

. P EPE

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 occ urred 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 P epe’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 vaca te 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 abroadU NITED S TATES V

. P EPE 25

and intended to resettle was never argued to the dist rict court. We should not be deciding that question in this appeal, much less overturning prior circuit precedent as a
thre e judge panel. Therefore , I must respectfully dissent.

For the first time on appeal, Pepe argues that his temporary residency, by i tself, 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 con victed applied to “[a]ny United States citizen

. . . who travels in f oreign 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 re

enacted the prior sta tute and left t he 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 statu tory 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 le tter 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 U NITED S TATES V

. P EPE

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 t he 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 interpretat ions 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 int erpreting § 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 enc ompass 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 , theU NITED S TATES V

. P EPE 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 b e 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 ba ck 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 p ersuaded 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

co nstrue 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 ration ale.28 U NITED S TATES V

. P EPE

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 abro ad 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. 8 4 5 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 def endant 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

, 5 47 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 fo r 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 theirU NITED S TATES V

. P EPE 29

foreign travel had ended. Id. at 1023. Schmidt also recognized the poss ibility 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 w hen 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
lan guage 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 la nguage, 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 significan t 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 C ongress 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 substant ial effect,” but30 U NITED S TATES V

. P EPE

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
exist ing 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 th ree 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 via ble under appl icable case law.

In sum, under Clark , the prior version of § 2423(c) applies to Pepe, as the majority concedes. There is nothingU NITED S TATES V

. P EPE 31

in the 2013 amendments that is “clearly irreconcilable” with
Clark . Thus, it remains good law, binding on this panel, and

req uires 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.