A federal grand jury indicted Gary Jackson (Defendant) for violating 18 U.S.C. Section 2423, the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act [PROTECT Act], which prohibits U.S. citizens and permanent residents from traveling in foreign commerce to engage

in illicit sexual conduct. Defendant and his domestic partner, James Kleven, relocated to Cambodia in 2001. The statute went into effect on April 30, 2003. The pair traveled within Thailand for a few months and then settled in their new home in Phnom Penh in January 2002. In June 2003, Cambodian police arrested Defendant for having had sex with three young boys. The U.S. took jurisdiction and the authorities escorted Defendant to the U.S. for trial.

Defendant entered into a plea agreement which admitted the facts but reserved his right to challenge the indictment on constitutional, jurisdictional and statutory grounds. The district court ended up dismissing the indictment. It held that the statute did not apply retroactively to Defendant's foreign travel prior to April 30, 2003. The Government appealed. The U.S. Court of Appeals for the Ninth Circuit, however, affirms.

The application of the statute to individuals whose travel took place before its effective date is a matter of first impression in the Circuit Courts. The statute at issue seeks to contribute to the control of international child-sex tourism. It provides in relevant part that "Any United States citizen or alien admitted for permanent residence [1] who travels in foreign commerce, and [2] engages in illicit sexual conduct with another person shall be fined ... or imprisoned for not more than 30 years, or both." 18 U.S. C. Section 2423(c). Analyzing the relationship between the two elements of the offense, the Court holds that Section 2423(c) does not apply where the travel took place before its effective date even though Defendant committed the alleged illicit act thereafter.

"Our conclusion follows largely from the plain language of the statute. Critical to our statutory interpretation is that Section 2423(c) specifies, as one of the crime's two elements, that it covers '[a]ny United States citizen . . . who travels in foreign commerce.' 18 U.S.C. Section 2423(c) ... The use of the present tense suggests that statutory element does not apply to travel that occurred before the statute's enactment." [Slip op. 6]

" ... [Defendant's] travel had ended by April 30, 2003.... As of that date, it had been nearly eighteen months since his last airplane flight from the United States, and almost sixteen months since he had begun residing in a Phnom Penh home purchased for him. As of April 30, 2003, [Defendant] had given up his residence in the United States, begun fulfilling Cambodia's five-year residency requirement, and intended then to apply for Cambodian citizenship. The government does not dispute those facts. Instead, it admits in its brief that [Defendant] 'took up residence in Cambodia.'"

"It is thus evident that [Defendant] had both arrived in Cambodia and resettled in that country before Section 2423(c) was passed. His travel had ended on either plausible interpretation of the term 'travel' as used in Section 2423(c). As Congress did not intend to cover those whose travel ended before that date, he could not be charged under Section 2423(c)." [Slip op. 12]

Citation: United States v. Jackson, 2007 WL 925730 (9th Cir. 2007).