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435 F.3d 1100 
435 F.3d 1100, 06 Cal. Daily Op. Say. 696, 2006 Daily Journal D.A.R. 962 
(Cite as: 435 F.3d 1100) 
---, 125 S.Ct 1752, 1755, 161 L.Ed.2d 651 (2005), 
is easily overcome in Clark's case because the text 
of § 2423(c) is explicit as to its application outside 
the United States. Seel8 U.S.C. § 2423(c) (titled 
"Engaging in illicit sexual conduct in foreign 
places" and reaching people "who 
vel( ) in for-
eign commerce"); see also Sale 
Haitian Ctrs. 
Council, Inc., 509 U.S. 155, 176, 
13 S.Ct. 2549, 
125 L.Ed.2d 128 (1993) (explaining that there must 
be "affirmative evidence of intended extraterritorial 
application"). By its terms, the provision is exclus-
ively targeted at extraterritorial conduct. 
Having addressed this threshold issue, we ask 
whether the exercise of extraterritorial jurisdiction 
19
in this case comports with 
nciples
'
 of internation-
al law. See United States 
Vasquez-Velasco, 15 
F.3d 833, 839 (9th Cir.! 4) ("In determining 
whether a statute applies exiraterritorially, we also 
presume that Congress does not intend to violate 
winciples of international law.") (citing McCulloch 
Sociedad National de Marineros de Honduras, 
372 U.S. 10, 21-22, 83 S.Ct. 67i 9 L.Ed.2d 547 
(1963)); see also United States 
Neil, 312 F.3d 
419, 421 (9th Cir.2002). Of the we general prin-
ciples that permit extraterritorial criminal jurisdic-
tion,na the nationality principle most clearly ap-
plies to Clark's case. The nationality principle 
"permits a country to apply its statutes to extraser 
ritorial acts of its own nationals." United States 
Hill, 279 F.3d 731, 740 (9th Cir.2002). Jurisdiction 
based solely on the defendant's status as a U.S. cit-
izen is firmly estallished by our precedent. See, 
e.g.. United States 
Walczak, 783 F.2d 852, 854 
(9th Cir.1986) (holding that jurisdiction over a U.S. 
citizen who violated a federal statute while in 
Canada los proper under the nationality principle); 
McKee! I Islamic Repub. of Iran, 722 F.2d 582, 
588 (9th Cir.1983) (noting that nationality principle 
permits states to punish r wrongful conduct of its 
citizens); United States 
King, 552 F.2d 833, 851 
(9th Cir.1976) (commenting that nationality prin-
ciple would apply to U.S. citizen defendants). 
Clark's U.S. citizenship is uncontested." *1107 
Accordingly, 
extraterritorial 
application of § 
2423(c) to Clark's conduct is proper based on the 
nationality principle.FNIO 
Page 7 of 20 
Page 7 
FN8. The five jurisdictional bases are ter-
ritorial, national, protective, universal, and 
passive 
personality. 
SeeRestatement 
(Third) of Foreign Relations Law of the 
Il
rated States § 402 (1987); United States 
Hill, 279 F.3d 731, 739 (9th Cir.2002) 
isting the five principles). 
FN9. Because Clark is a U.S. citizen, we 
do not reach the issue whether reliance on 
the nationality principle is also proper 
when "alien(s) admitted for permanent res-
idence" are prosecuted under § 2423(c). 18 
U.S.C. § 2423(c). 
FNIO. Although the district court found 
that extraterritorial jurisdiction was proper 
under both the nationality principle and 
universality 
principle, 
Clark, 
315 
F.Supp.2d at 1131, we decline to address 
whether the universality principle also ap-
plies in Clark's case because extraterritori-
al application of a criminal law need be 
justified by only one of the five principles 
of ex 
territorial authority. See Chua Han 
Mow I
 United States. 730 F.2d 1308, 1312 
(9th Cir.1984). 
Clark also seeks to invalidate the statute be-
cause, in his view, extraterritorial application is un-
reasonable. SeeRestatement (Third) of Foreign Re-
lations Law of the United States § 403 (1987); 
Vasquez-Velasco, 15 F.3d at 840-41 (holding that 
extraterritorial application of U.S. statute to violent 
crimes associated with drug trafficking was reason-
able under international law). The record provides 
no support for this argument. Clark cites no preced-
ent in which extraterritorial application was found 
unreasonable in a similar situation. Cambodia con-
sented to the United States taking jurisdiction and 
nothing suggests that Cambodia objected in any 
way to Clark's extradition and trial under U.S. law. 
Clark himself stated to a U.S. official in Cambodia 
that he "wanted to return to the United States" be-
cause he saw people dying in the Cambodian prison 
"and was very much afraid that if (he) stayed in that 
prison, [he) would not survive." Having been saved 
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from immediate prosecution in Cambodia, it is 
somewhat ironic that he now challenges the law in 
a United States court. 
II. CLARK'S CONDUCT FALLS WITHIN THE 
SCOPE OF § 2423(C) 
Clark posits that § 2423(c) can be saved from 
constitutional scrutiny by interpreting it to require 
that the illicit sexual conduct take place while the 
defendant is literally still traveling. The district 
court declined to dismiss the indictment on this 
ground, explaining that "Clark is attempting to add 
elements to the crime ... that simply do not exist in 
the statute." Clark 315 F.Supp.2d at 1130. We 
agree. Despite Clark's efforts to distance himself 
from the statute, we are unable to resolve this ap-
peal by excising Clark's conduct from the reach of 
§ 2423(c). Cf. Jones 
United 
States, 
529 
U.S. 
848,
850-51, 120 S.Ct. I 
, 146 L.Ed.2d 902 (2000) 
(avoiding constitutional challenge by construing 
statute's text to hold that certain owner-occupied 
residences do not qualify as property "used in" 
commerce). 
[2] The statute is plain on its face: Section 
2423(c) reaches "[a]ny United States citizen or ali-
en admitted for permanent residence who travels in 
foreign commerce, and engages in any illicit sexual 
conduct with another person." It does not require 
that the conduct occur while traveling in foreign 
commerce. In Clark's case, the lapse in time 
between his most recent transit between the United 
States and Cambodia and his arrest was less than 
two months. We see no plausible reading of the 
statute that would exclude its application to Clark's 
conduct because of this limited gap.r" Because 
the statute is unambiguous and Clark's conduct falls 
squarely within the class of persons whose conduct 
Congress intended to criminalize under this statute, 
we do not invoke the 'We of lenity. Jones, 529 U.S. 
at 858, 120 S.Ct. 1904 ("ambiguity concerning the 
ambir1108 of criminal statutes should be resolved 
in favor of lenity") (citation omitted). 
FN I I. Whether a longer gap between the 
travel and the commercial sex act could 
Page 8 
trigger constitutional or other concerns is 
an issue we leave for another day. 
The legislative history also supports the plain 
reading that we adopt. The conference report ex-
plains that Congress eliminated the intent require-
ment so that "the government would only have to 
prove that the defendant engaged in illicit sexual 
conduct with a minor while in a foreign country." 
H.R.Rep. No. 108-66 at 51. From a practical per-
spective, it seems non-sensical for Congress to limit 
the scope of § 2423(c) to the unlikely scenario 
where the abuse occurs while the perpetrator is lit-
erally en route. This reading 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. We decline to adopt Clark's 
strained reading of the statute. 
HI. NO DUE PROCESS VIOLATIOn 
[3] The next question is whether extraterritorial 
application of § 2423(c) violates the Due Process 
Clause of the Fifth Amendment because there is an 
insufficient nexus between Clark's conduct and the 
United States. We hold that, based on Clark's U.S. 
citizenship, application of § 2423(c) to his extra-
territorial conduct is neither "arlitr
]or funda-
mentally unfair." United States 
905 F.2d 
245, 249 (9th Cir.1990)."‘" 
FN12. Although Clark's citizenship alone 
is sufficient to satisfy Due Process con-
cerns, his U.S. investments, ongoing re-
ceipt of federal retirement benefits and use 
of U.S. military flights also underscore his 
multiple and continuing ties with this 
country. 
Clark is correct that to comply with the Due 
Process Clause of the Fifth Amendment, extraterrit-
orial application of federal criminal statutes re-
quires the government to demonstrate a sufficient 
nexus between the defendant and the United States 
"so that such application would not be arbitrary or 
fundamentally unfair."Davis, 905 F.2d at 248-49. 
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(Cite as: 435 F.3d 1100) 
Indeed, "even resort to the Commerce Clause 
cannot] is fy the standards of due process." Seo'y 
of Agric. I Cent. Roig Refining Co., 338 U.S. 604, 
616, 70 S.Ct. 403, 94 L.Ed. 381 (1950). 
In Blackmer' United States, 284 U.S. 421, 52 
S.Ct. 252, 76 L.Ed. 375 (1932), the Supreme Court 
explained that the extraterritorial application of 
U.S. law to its citizens abroad did not violate the 
Fifth Amendment. The Court declared that despite 
moving his residence to France, the U.S.-citizen de-
fendant "continued to owe allegiance to the United 
States. By virtue of the obligations of citizenship, 
the United States retained its authority over him, 
and he was bound by its laws made applicable to 
him in a foreign country." Id. at 436, 52 S.Ct. 252. 
This longstanding principle that citizenship alone is 
sufficient to satisfy Due Process concerns still has 
force. Citing Blackmer, we recently affirmed that 
"[t]here is no doubt that the United States may ex-
ercise jurisdiction over American nationals living 
abroad, regardless 
where the 
1
crime is commit-
ted." United States 
Corey, 232 F.3d 1166, 1179 
n. 9 (9th Cir.2000). 
Clark offers no authority that calls into ques-
tion this principle. Instead, he relies on cases that 
involved foreign nationals, which meant that the 
courts had no choice but to look beyond nationality 
to establish the defendants' ties with the United 
States. See, e.g., United States' Klimavicius-Vilor-
ia, 144 F.3d 1249, 1254 (9th Cir. ili(defendant 
and crew "were all Columbian"); 
905 F.2d 
at 247 ('= 
is not a citizen of the United States."). 
Clark is a U.S. citizen, a bond that "implies a 
duty of allegiance on the part of the member and a 
duty of protection on the part of the society. These 
are reciprocal obligations one being a compensa-
tion for the other." Luria I United States, 231 U.S. 
9, 22, 34 S.Ct. 10, 58 L.Ed. 101 (1913). *1109 Pre-
dicated on this imputed allegiance, application of § 
2423(c) to Clark's extraterritorial conduct does not 
violate the Due Process Clause.," 
Having con-
cluded that none of Clark's other arguments resolve 
this appeal, we turn to Clark's Commerce Clause 
challenge. 
Page 9 of 20 
Page 9 
FN13. Clark also raises notice and vague-
ness challenges, neither of which with-
stands scrutiny. Section 2423(c) was en-
acted in April 2003-while Clark was visit-
ing the United States-and the commercial 
sex act did not occur until June 2003. Mere 
sil 
"ignorance of the law will not excuse." 
Shevlin-Carpenter Co. 
Minn., 218 U.S. 
57, 68, 30 S.Ct. 663, 
Ltd. 930 (1910). 
Clark might have been ignorant of the law, 
but he had constitutionally sufficient no-
tice. We are not persuaded by Clark's argu-
ment that the statute's "travels in foreign 
commerce" language gave him "no reason-
able basis" to anticipate being haled into a 
U.S. court. For a criminal statute to survive 
a vagueness challenge, we require only 
that "a reasonable person of ordinary intel-
ligence would understand what conduct the 
statute prohibits." United States' Lee, 183 
F.3d 1029, 1032 (9th Cir.1999). A reason-
able person would easily understand § 
2423(c) to cover Clark's travel to Cambod-
ia and sexual conduct with minors there. 
IV. CONGRESS'S FOREIGN COMMERCE 
CLAUSE POWER EXTENDS TO REGULAT-
ING COMMERCIAL SEX ACTS ABROAD 
[4] In considering whether Congress exceeded 
its power under the Foreign Commerce Clause in 
enacting § 2423(c), we ground our analysis in the 
fundamental principle that "[i]t is an essential at-
tribute of [Congress's power over foreign 
rc 
cont-
.!
mee] that it is owl ' e and plenary." Bd. of 
Trustees of Univ. of Ill. 
United States, 289 U.S. 
48, 56, 53 S.Ct. 509, 77 .Ed. 1025 (1933). We are 
further mindful of the Supreme Court's caution that 
"[d]ne respect for the decisions of a coordinate 
branch of Government demands that we invalidate 
a congressional enactment only upon a plain show-
ing that Congress has 
xceeded its constitutional 
bounds." United States I Morrison, 529 U.S. 598, 
607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). No 
plain showing has been made here. In light of Con-
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gress's sweeping powers over foreign commerce, 
we conclude that Congress acted within its constitu-
tional bounds in criminalizing commercial sex acts 
commined by U.S. citizens who travel abroad in 
foreign commerce."" 
FN14. Our review of the constitutionality 
of § 2423(c) is focused on congressional 
authority under the Commerce Clause. As 
pointed out by the Government, the Su-
preme Court once remarked in a case in-
volving the delegation of legislative power 
to the Executive that "(t)he broad state-
ment that the federal government can exer-
cise no powers except those specifically 
enumerated in the Constitution, and such 
implied powers as are necessary and prop-
er to carry into effect the enumerated 
powers, is categorically true only in re-
,
f of our internal affairs." United States 
Curtiss-Wright Export Corp.. 299 U.S. 
315-16, 57 S.Ct. 216, 81 L.Ed. 255 
(1936). Standing alone, however, this ref-
erence does not establish that the Foreign 
Commerce Clause has no meaning or is 
without bounds. Nor does it necessarily 
mean that congressional regulation of ex-
ternal affairs has no limits. The Govern-
ment has not argued-nor is there any indic-
ation in the legislation-that Congress en-
acted § 2423(c) based on an implied fo 
eign affairs power. Cf. United States 
Hernandez-Guerrero. 147 F.3d 1075, 10 
(9th Cir.1998) (noting that in exercising 
immigration power, which falls into the 
arena of foreign affairs, "Congress is not 
subject to the rigid constraints that govern 
its authority in domestic contexts"). Non-
etheless, given our charge to uphold the 
la
statute absent a plain showing 
t it is un-
constitutional, United States 
Morrison, 
529 U.S. 598, 607, 120 S.Ct. 1740, 146 
L.Ed.2d 658 (2000), we acknowledge that 
Congress's plenary authority over foreign 
affairs may also provide a sufficient basis 
for § 2423(c). See. e.g., Curtiss-Wright Ex-
port Corp.. 299 U.S. at 315, 57 S.Ct. 216; 
Page 10 
United States 
Belmont. 301 U.S. 324, 
331, 57 S.Ct. 
8, 81 Ltd. 1134 (1937)
"(Cjomplete power over international af-
fairs is in the national government ..."). 
At the outset, we highlight that § 2423(c) con-
templates two types of "illicit *1110 sexual con-
duct": non-commercial and commercial. Clark's 
conduct falls squarely under the second prong of 
the definition, which criminalizes "any commercial 
sex act ... with a person under 18 years of age." 18 
U.S.C. § 2423(f)(2)P13 In view of this factual 
posture, we abide by the rule that courts have a 
"strong duty to avoid constitutional issues that need 
not be resolved in order to determine the rights of 
the parties to the case under consideration,"Counry 
Court of Ulster County. 442 U.S. at 154, 99 S.Ct. 
2213, and limit our holding to § 2423(c)'s regula-
tion of commercial sex acts."'" 
FN 15. That the authorities arrested Clark 
before the money had actually changed 
hands is immaterial to our analysis. Clark 
does not dispute that he hired the boys to 
engage in sex acts with the promise of 
monetary payment, and the statute does not 
require that the victims be paid by the de-
fendant prior to arrest. See18 U.S.C. § 
2423(e) (providing that an attempt to viol-
ate § 2423(c) shall be punishable in the 
same manner as a completed violation). In 
fact, the second count to which Clark pled 
guilty was that he traveled in foreign com-
merce and "thereafter attempted to engage 
in illicit sexual conduct." 
FN16. We do not decide the constitutional-
ity of § 2423(c) with respect to illicit sexu-
al conduct covered by the non-commercial 
prong of the statute, such as sex acts ac-
complished by use of force or threat. See18 
U.S.C. § 2423(1) (defining "illicit sexual 
conduct" in part by reference to crimes lis-
ted under 18 U.S.C. §§ 2241 et seq.). The 
situation presented by § 2423(c) is distinct 
from challenges in which courts have 
carved out a discrete subset of conduct 
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from a statute based on distinctions de-
duced from the statutory scheme. See. e.g.. 
Raich, 125 S.Ct. at 2211 (disagreeing with 
this court's isolation of a "separate and dis-
tinct" class of activities beyond the reach 
of the federal statute and instead conclud-
ing that the subdivided class "was an es-
sential 
part 
of the 
I 
er 
regulatory 
scheme"); United States 
McCoy, 323 
F.3d 1114, 1115 (9th Cir. 
3) (holding a 
statute unconstitutional as applied to the 
limited category of simple intra-state pos-
session of child pornography that had not 
traveled in interstate commerce). Here, the 
statute is plain on its face in dividing the 
definition of "illicit sexual conduct" into 
two distinct, numbered prongs. We address 
only the prong that applies to Clark's con-
duct. This decision to limit our holding to 
commercial sex acts is an expression of ju-
dicial restraint, not an attempt to atomize a 
cohesive statutory scheme. 
A. THE COMMERCE CLAUSE: STRUCTURE 
AND HISTORY 
Chief Justice Marshall observed long ago that 
"Nile objects, to which the power of regulating 
commerce might be directed, are divided into three 
distinct classes-foreign nations, the several states, 
and Indian Tribes. When forming this article, the 
)
convention consi red them as entirely distinct." 
Cherokee Nation 
Georgia, 30 U.S. I, 18, 5 Pet. 
1, 8 L.Ed. 25 (18 ). Looking to the text, the single 
clause indeed embodies three subclauses for which 
distinct prepositional language is used: "To regulate 
Commerce with foreign Nations, and among the 
several States, and with the Indian Tribes." U.S. 
Const. art. I, § 8, cl. 3. 
Among legal scholars there has been consider-
able debate over the intrascntence unity-or disunity, 
as the case may be-of the three subclauses, consid-
ering that they share the common language "No 
regulate Commerce." Some commentators take the 
view that Congress's powers over commerce with 
foreign nations and Indian tribes are broader than 
Page 11 
over interstate commerce. See, e.g., Kenneth M. 
Casebeer, The Power to Regulate "Commerce with 
Foreign Nations" in a Global Economy and the Fu-
ture of American Democracy: An Essay. 56 U. 
Miami L.Rev. 25, 3341 (2001); 1 R. Rotunda & J. 
Nowak, Treatise on Constitutional Law § 4.2 (3d 
ed. 1999) ("Even during periods when the Justices 
were debating whether to significantly restrict the 
congressional power to regulate intrastate activities 
under the commerce power, there was no serious 
advocacy*1111 of restrictions on the federal 
powers in these other areas."). 
Other scholars maintain that Congress has co-
extensive powers under the Commerce Clause's 
subdivisions. See e.g., Louis Henkin, Foreign Af-
fairs and the Constitution 70 n. 9 (1972) ("It is gen-
erally accepted, however, that the power of Con-
gress is the same as regards both (foreign and inter-
state commerce)."); Saikrishna Prakash, Our Three 
Commerce Clauses and the Presumption of In-
trasentence Uniformity. 55 Ark. L.Rev. 1149, 1173 
(2003) ("In practice, we have three different Com-
merce Clauses when text and history indicate that 
we ought to have but one."). Despite the long-
running lively debate among scholars, no definitive 
view emerges regarding the relationship among the 
three subclauses. Nonetheless, Supreme Court pre-
cedent points to the conclusion that the Foreign 
Commerce Clause is different than the Interstate 
Commerce Clause. See Japan Line, 441 U.S. at 
448, 99 S.Ct. 1813 ("Mhere is evidence that the 
Founders intended the scope of the foreign com-
merce power to be ... greater" as compared with in-
terstate commerce.). 
Regardless of how separate the three sub-
clauses may be in theory, the reality is that they 
have been subject to markedly divergent treatment 
by the courts. This approach is not surprising given 
the considerably different interests at stake when 
Congress regulates in the various arenas. Most not-
ably, regardless of whether the subject matter is 
drugs, gender-motivated violence, or gun posses-
sion, a prominent theme runs throughout the inter-
state commerce cases: concern for state sovereignty 
and federalism. On the other hand, "[t]he principle 
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of duality in our system of government does not 
touch the authority of the Congress in the regula-
tion of foreign commerce." Bd. of Trustees of Univ. 
of III.. 289 U.S. at 57, 53 S.Ct. 509. This distinction 
provides a crucial touchstone in applying the For-
eign Commerce Clause, for which Congress's au-
thority to regulate has 
been defined with the 
precision set forth by
 and Morrison in the in-
terstate context. 
We start with the component that has domin-
ated judicial consideration of the Commerce 
Clause: "among the several States." After decades 
of expanse% reading by the courts, see. e.g., 
Kanenbach I McClung, 379 U.S. 294, 303.04, 85 
S.Ct. 377, 13 L.Ed.2d 290 (1964) ("[W]here we 
find that the legislators ... have a rational basis for 
finding a chosen regulatory scheme necessary to the 
protection of commerce, our investigation is at an 
end."), the mid-I990s saw a retrenchment in Com-
merce Clause j ' 
den 
inning with the wa-
tershed case of 
In 
the Court held that 
a statute which criminalize possession of a firearm 
in a school zone was beyond Congress's Commerce 
Clause authority. 514 U.S. at 552, 115 S.Ct. 1624. 
In so holding, the Court stressed its concern that an 
overly expansive view of the Interstate Commerce 
Clause "would effectually obliterate the distinction 
between what is national and what is local and cre-
ate a completely centralized govemm t." Id. at 
jit 
557, 115 S.Ct. 1624 (quoting NLRB 
Jones & 
Laughlin Steel Corp.. 301 U.S. at 37, 5 S.Ct. 615). 
The Court reiterated these concerns five years later 
in Morrison in striking down a provision under the 
Violence Against Women Act: "Mlle concern ... 
that Congress might use the Commerce Clause to 
completely obliterate the Constitution's distinction 
between national and local authority seems well 
founded." Morrison. 529 U.S. at 615, 120 S.Ct. 1740. 
In addition to announcing a shift to a more con-
strained view 
Congress's power over interstate 
commerce, I= 
and Morrison ossified the three-
category framework that the Court had 1 
lied 
*1112 to interstate commerce cases. See 
514 
U.S. at 558-59, 115 S.Ct. 1624; Morrison, 
U.S. 
Page 12 
at 609-14, 120 S.Ct. 1740; see also Raich, 125 S.Ct. 
at 2215 (Scabs, l., concurring) (noting that for over 
thirty years, "our cases have mechanically recited 
that the Commerce Clause permits congressional 
regulation of three categories"). As noted earlier, 
these three familiar categories are (I) the use of the 
channels of interstate commerce; (2) the instru-
mentalities of interstate commerce, or persons or 
things in interstate commerce; and (3) activities that 
substantially affect interstate commerce. See M. 
514 U.S. at 558-59, 115 S.Ct. 1624. Within the in-
terstate commerce arena, the guiding force of 
and Morrison quickly took firm hold, and lower 
courts have adhered closely to t 
three-prong 
structure. See. e.g., United States 
Adams. 343 
F.3d 1024, 1027-28 (9th 
3 (reciting the 
three categories set out in 
and Morrison and 
applying the third to a statute criminalizing the in-
trastate possession of child pornography). 
This past term the Court introduced a new 
wrinkle in interstate commerce's jurisprudential 
fabric when it held that the Controlled Substances 
Act was a valid exercise of Congress's powers un-
der the Commerce Clause. See Raich, 125 S.Ct. at 
2201. Raich did not alter the fundamental three-
prong rubric, but the Court took a more generous 
view of Con 
power over interstate commerce 
than seen in 
and Morrison. Over the dissent's 
pointed objections, the majority concluded that 
"Congress had a rational basis for concluding that 
leaving home-consumed marijuana outside federal 
control would similarly affect price and market 
conditions." Id. at 2207. This "rational basis" for 
finding a nexus between home-consumed marijuana 
and the interstate market put the regulation 
"squarely within Congress' commerce power." Id. 
In tension with the majority's broad reading of Con-
gress's power over interstate commerce, the dissent 
emphasized that setting "outer limits" to Congress's 
Commerce Clause powers "protect(s) historic 
spheres of state sovereignty from excessive federal 
encroachment." Id. at 2220 (O'Connor, J., dissent-
ing). 
Although the Supreme Court's view of the In-
terstate Commerce Clause has "evolved over time," 
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id. at 2205, Indian Commerce Clause jurisprudence 
has been more of a straight line proposition. See, 
e.g.. United States I Lara, 541 U.S. 193, 200, 124 
S.Ct. 1628, 158 L.Ed.2d 420 (2004) ("[T]he Consti-
tution grants Congress broad general powers to le-
gislate in respect to Indian tribes, powers that we 
have consistently described as 'plenary and exclus-
ive' ... This Court has traditionally identified the In-
dian Commerce Clause, U.S. Coast., Art. I, § 8. cl. 
3, and the Treaty Clause, Art. II, § 2, cl. 2, as 
sources of that power.") (citations omitted). Indeed, 
the Supreme Court has commented on the "very 
different applications" of the Interstate and Indian 
Commerce Clause powers, explaining that interstate 
commerce jurisprudence "is premised on a structur-
al understanding of the unique role of the States in 
our constitutional system that is not readily impor-
ted to cases involving the InVn Commerce 
Clause." Cotton Petroleum Corp. I New Mexico, 
490 U.S. 163, 192, 109 S.Ct. 1698, 104 L.Ed.2d 
209 (1989). In contrast to the federal government's 
relationship with the states, its relationship with In-
dian tribes is "based on a history of treaties and 
assumption of a 'guardian-ward' status." Morton
Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 
L.Ed.2d 290 (1974). The Commerce Clause stands 
as one of the main textual grants of Congress's 
plenary power to regulate this special relationship 
between the federal government and Indian tribes. 
Id. at 551-52, 94 S.Ct. 2474. In this context,*1113 
the Court has defined Congress's authority under 
the Indian Commerce 
ithout reference to 
the rigid categories of 
and Morrison. See, 
e.g., Lara. 541 U.S. at 
, 200-207, 124 S.Ct. 
1628 (upholding Congress's authority to adjust tri-
bal sovereignty in criminal matters under the Indian 
Commerce Clause without considering the three-
category framework). 
As with the Indian Commerce Clause, the For-
eign Commerce Clause has followed its own dis-
tinct evolutionary path. Born largely from a desire 
for uniform rules governing commercial relations 
with foreign countries, the Supreme Court has read 
the Foreign Commerce Clause as granting Congress 
sweeping powers. See Bd. of Trustees of Univ. of 
289 U.S. at 59, 53 S.O. 509 ("[W]ith respect to 
Page 13 
foreign intercourse and trade[,] the people of the 
United States act through a single government with 
unified and adequate national power."); see also 
Rotunda & Nowak § 4.2 ("The Court has always re-
cognized a plenary power in Congress to deal with 
matters touching upon foreign relations or foreign 
trade."); Robert J. Delahunty, Federalism Beyond 
the Water's Edge: State Procurement Sanctions and 
Foreign Affairs, 37 Stan. J. Intl L. 1, 16-26 (2001) 
(describing the origins of the Foreign Commerce 
Clause). This view was laid down nearly two cen-
turies ago when Chief Justice Marshall stated that 
"[l]t has, we believe, been universally admitted, 
that [the words of the Commerce Clause] compre-
hend every species of commercial intercourse 
(18
between 
e United States and foreign nations." 
Gibbons 
Ogden, 22 U.S. (9 Wheat) I, 193, 6 
L.Ed. 23 
24). 
The Court has been unwavering in reading 
my
Congress's power over foreign co 
rce broadly. 
See. e.g., California Bankers Ass'n 
Shultz, 416 
U.S. 21, 46, 94 S.Ct. 1494, 39 L.Ed. d 812 (1974) 
(stating that Congress's plenary authority over for-
j
gn commerce "is not open to dispute"); Buryieid 
Stranahan, 192 U.S. 470, 492-93, 24 S.Ct. 349, 
48 L.Ed. 525 (1904) (describing the "complete 
1
power of Congress o r foreign commerce"); Hart-
ford Fire Ins. Co. 
California, 509 U.S. 764, 
813-14, 113 S.C. 2 1, 125 L.Ed.2d 612 (1993) 
(Scalia, J., dissenting) ("Congress has broad power 
under Article I, § 8, cl. 3, `to regulate Commerce 
with foreign Nations,' and this Court has repeatedly 
upheld its power to make laws applicable to per-
sons or activities beyond our territorial boundaries 
where United States ' 
is are affected."). There 
is no counterpart to 
or Morrison in the for-
eign commerce realm 
t would signal a retreat 
from the Court's expansive reading of the Foreign 
Commerce Clause. In fact, the Supreme Court has 
never struck down an act of Congress as exceeding 
its powers to regulate foreign commerce. 
Federalism and state sovereignty concerns do 
not restrict Congress's power over foreign com-
merce, see Japan Line, 441 U.S. at 448 n. 13, 99 
S.Ct. 1813, and the need for federal uniformity "is 
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no less paramount" in assessing the so-called 
"dormant" implications of congressional power un-
der the Foreign Commerce Clause. Id. at 449, 99 
S.Ct. 1813; see also Bd. of Trustees of Univ. of RI., 
289 U.S. at 59, 53 S.Ct. 509 (instnunentality of a 
state was not entitled to import articles duty free 
because "with respect to foreign intercourse and 
trade[,) the people of the United States act through 
a single government with unified and adequate na-
tional power"). By contrast, under the dormant In-
terstate Commerce Clause, "reconciliation of the 
conflicting claims of state and national power is to 
be attained only by some appraisal and accommod-
ation of the competing demands of the state and na-
tional interests involved." Southern Pac. Ca I Ar-
iz. a rel. Sullivan. 325 U.S. 761, 768-69, 65 S.Ct. 
1515, 89 L.Ed. 1915 (1945). 
•1114 Clark's case illustrates the predominance 
of national interests and the absence of state sover-
eignty concerns in Foreign Commerce Clause juris-
prudence. No state has voiced an interest in the pro-
ceedings nor is there an indication of any state in-
terest at stake in determining the constitutionality 
of § 2423(c). Because this case is divorced from the 
common federal/state interplay seen in the Inter-
state Commerce Clause cases, we find ourselves in 
sparsely charted waters. We thus look to the text of 
§ 2423(c) to discern whether it has a constitution-
ally tenable nexus with foreign commerce. 
B. SECTION 2423(C)'S REGULATION OF 
COMMERCIAL SEX ACTS IS A VALID EX-
ERCISE OF CONGRESS'S FOREIGN COM-
MERCE CLAUSE POWERS 
[5] Taking a page from Raich, we review the 
statute under the traditional rational basis standard. 
Rale/I, 125 S.Ct. at 2211. The question we pose is 
whether the statute bears a rational relationship to 
Congress's authority under the Foreign Commerce 
Clause. 
Although it is important to view the statute as a 
whole, parsing its elements illustrates why the stat-
ute fairly relates to foreign commerce. The ele-
ments that the government must prove under § 
Page 14 
2423(c)'s commercial sex acts prong are straightfor-
ward. First, the defendant must "travel( ] in foreign 
commerce." 18 U.S.C. § 2423(c). Second, the de-
fendant must "engage[ ] in any illicit sexual con-
duct with another person,"id., which in this case 
contemplates "any commercial sex act ... with a 
person under 18 years of age." 18 U.S.C. § 
2423(0(2). We hold that § 2423(c)is combination of 
requiring travel in foreign commerce, coupled with 
engagement in a commercial transaction while 
abroad, implicates foreign commerce to a constitu-
tionally adequate degree. 
Beginning with the first element, the phrase 
"travels in foreign commerce" unequivocally estab-
lishes that Congress specifically invoked the For-
eign Commerce Clause. The defendant must there-
fore have moved in foreign commerce at some 
point to trigger the statute. In Clark's case, he 
traveled from the United States to Cambodia. 
"Foreign commerce" has been defined broadly 
for purposes of Title 18 of the U.S.Code, with the 
statutory definition reading, in full: "The term 
'foreign commerce', as used in this title, includes 
commerce with a foreign country." 18 U.S.C. § 10. 
Admittedly, this definition is not particularly help-
ful given its rearrangement of the words being 
defined in the definition itself. Courts have under-
standably taken the broad wording to have an ex-
pansive reach. See, e.g., United States' Mon(ord, 
27 F.3d 137, 139-40 (5th Cir.1994) (discerning that 
"Congress intended foreign commerce to mean 
travel to or from, or at least swne fonn of contact 
with, a foreign state"); Londos I United States, 240 
F.2d I, 6 (5th Cir.1957) (concluding that foreign 
commerce under § 10 "means passing to and fro"). 
We likewise see no basis on which to impose a con-
strained reading of "foreign commerce" under § 
2423(c). Clark got on a plane in the United States 
and journeyed to Cambodia. This act is sufficient to 
satisfy the "travels in foreign commerce" element 
of § 2423(c). 
Once in Cambodia, the second element of § 
2423(c) was also met, namely, "engage[ment) in 
any illicit sexual conduct with another person,"18 
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U.S.C. § 2423(c), which in this case was commer-
cial sex under § 2423(0(2). As the Supreme Court 
recognized centuries ago, the Commerce Clause 
"comprehend [s] every species of commercial inter-
course between the United States and foreign na-
tions." *1115Gibbons, 22 U.S. at 193; see also Bd. 
of Trustees of Univ. of M., 289 U.S. at 56-57, 53 
S.Ct. 509 (same). Section 2423(c) regulates a perni-
cious "species of commercial intercourse": com-
mercial sex acts with minors. 
The statute expressly includes an economic 
component by defining "illicit sexual conduct," in 
pertinent part, as "any commercial sex act ... with a 
person under 18 years of age." 18 U.S.C. § 
2423(O(2). "Commercial sex act `is defined as' 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). Thus, in the most sterile terms, the stat-
ute covers the situation where a U.S. citizen en-
gages in a commercial transaction through which 
money is exchanged for sex acts. 
The essential economic character of the com-
mercial sex acts regulated by § 2423(c) stands in 
contrast to the non-econo • 
'vibes regulated by 
the statutes at issue in li 
and Morrison. See 
r 
Morrison, 529 U.S. at 
, 120 S.Ct. 1740 
("Gender-motivated crimes of violence are not, in 
of the phrase, economic activity."); 
Illi ci514 U.S. at 561, 115 S.Ct. 1624 (explaining 
that firearm possessi 
to was purely a crimin-
al statute). In both 
and Morrison, the Su-
preme
o
 Court voic i strong concerns over Con-
gress's use of the Commerce Clause to enact "a 
criminal statute that by its terms has nothing to do 
with `commerce* or any sort of economic enter-
prise, however broadly one might define those 
terms." /Win, 529 U.S. at 610, 120 S.Ct. 1740 
(quoting 
514 U.S. at 561, 115 S.Ct. 1624). 
Like the statute regulating illicit drugs at issue in 
Raich, the activity regulated by the commercial sex 
prong of § 2423(c) is "quintessentially economic," 
FN 17125 S.Ct. at 2211, and thus falls within for-
eign trade and conunerce."'n 
FNI7. 
The 
evolving 
definition 
of 
Page 15 
"economics" presents a slight quirk to the 
analysis. Although the definition in the 
1966 Webstees Third New International 
Dictionary cited by the Supreme Court in 
Raich only refers to "the production, distri-
bution, and consumption of commodities," 
more recent versions of Webster's have ad-
ded "services" to the defmition. See, e.g.. 
Merriam Webster's Collegiate Dictionary 
364 (10th ed.I993) (defining "economics" 
as the social science concerned with "the 
production, distribution, and consumption 
of goods and services"); Merriam-Webster 
Online 
Dictionary, 
available 
at 
www.m-w.com (same) (last visited Dec. 
29, 2005). 
FN18. It is now universally acknowledged 
that foreign trade or commerce includes 
both goods and services. See. e.g.. Agree-
ment Establishing the Multilateral Trade 
Organization [World Trade Organization], 
Dec. 15, 1993, 33 I.L.M. 13, pmbl. 
("Recognizing that their relations in the 
field of trade and economic endeavour 
should be conducted with a view to ... ex-
panding the production and trade in goods 
and services"); General Agreement on 
Trade in Services, Dec. 15, 1993, 33 
I.L.M. 44, pmbl. ("Recognizing the grow-
ing importance of trade in services for the 
iili
growth and development of 
e world eco-
nomy"); cf. Gulf Oil Corp. 
Copp Paving 
Co., Inc., 419 U.S. 186, 19 , 95 S.Ct. 392, 
42 L.Ed.2d 378 (1974Xholding that, under 
the Interstate Commerce Clause, the " 'in 
commerce' language of the Clayton and 
Robinson-Patman Act provisions ... ap-
pears to denote only persons or activities 
within the flow of interstate commerce-the 
practical, economic continuity in the gen-
eration of goods and services for interstate 
markets and their transport and distribution 
to tigirer.") 
(emphasis added). But 
see 
514 U.S. at 585-89, 115 S.Ct. 
1624 (arguing that "commerce" as under-
stood at the time of the ratification of the 
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. 435 F.3d 1100 
435 F.3d 1100, 06 Cal. Daily Op. Sm. 696, 2006 Daily Journal D.A.R. 962 
(Cite as: 435 F.3d 1100) 
Constitution encompassed only bartering 
and trafficking in goods) (Thomas, J., con-
curring). 
As in Raich, the fact that § 2423(c) has a crim-
inal as well as an economic component does not put 
it beyond Congress's reach under the Foreign Com-
merce Clause. Indeed, § 2423(c) is far from unique 
in using the Foreign Commerce Clause to regulate 
crimes iith an economic facet. See, e.g., United 
States 
Kay, 359 F.3d 738, 741 (5th Cir.2004) 
(describing*1116 "particular instrumentalities of 
interstate and foreign commerce that defendants 
used or caused to be used in carrying out the pur-
ported bribery" in violation o the Foreign Corrupt 
Practices Act); United States 
Hsu, 155 F.3d 189, 
195.96 (3rd Cir.1998) (discussing statute enacted as 
part of the Economic Espionage Act of 1996 that 
criminalizes the theft of trade secrets related to 
products "produced for or placed 1 interstate or 
foreign commerce"); United States 
Germ 249 
F.2d 662, 666-67 (9th Cir.1957) (explaining that 
statute criminalizing the forging or counterfeiting 
of foreign currency is based on the Foreign Com-
merce Clause). 
The combination of Clark's travel in foreign 
commerce and his conduct of an illicit commercial 
sex act in Cambodia shortly thereafter puts the stat-
ute squarely within Congress's Foreign Commerce 
Clause authority. In reaching this conclusion, we 
view the Foreign Commerce Clause independently 
from its domestic brethren. 
Likewise, although our precedent illustrates 
that the inter-state categories may be adapted for 
use in specific foreign commerce contexts, see, e.g.. 
Cummings. 281 F.3d at 1049 n. 1, the categories 
have never been deemed exclusive or mandatory, 
nor has the Supreme Court suggested their applica-
tion in relation to the Foreign Commerce Clause. 
CI Prakash, 55 Ark. L.Rev. at 1166 ("Apparently, 
the Supreme Court has 
iscussed 
the applic-
ability of the three-part 
test to gauging the 
limits of the foreign commerce power."). The cat-
egories are a guide, not a straightjacket. In Cum-
mings, we upheld the constitutionality of the Inter-
Page 16 
national Parental Kidnaping Crime Act ("IPKCA"), 
18 U.S.C. § 1204(a). See281 F.3d at 1051. In so 
holding, we applied the interstate commerce frame-
work but noted that Congress has "broader power" 
in the foreign commerce area, and this context "is 
quite relevant to our inquiry." Id. at 1049 n. I. Crit-
ical to this understanding was the Supreme Court's 
now familiar statement in Japan Line that "the 
Founders intended the scope of the foreign com-
merce power to be ... greater" as compared with in-
terstate commerce. Id. (quoting Japan Line, 441 
U.S. at 448, 99 S.Ct. 1813). 
At times, forcing foreign commerce cases into 
the domestic commerce rubric is a bit like one of 
the stepsisters trying to don Cinderella's glass slip-
per; nonetheless, there is a good argument that, as 
found by the district court, § 2423(c) can also be 
viewed as a valid regulation of the "channels of 
commerce." Our previous decisions have recog-
nized that Congress legitimately exercises its au-
thority to regulate the channels of commerce where 
a crime committed on foreign soil is necessarily 
tied to travel in foreign commerce, even where the 
actual use of the channels has ceased. See Cum-
mings, 281 F.3d at 1050-51. 
Clark emphasizes that § 2423(b) requires that 
the foreign travel be with the specific intent to en-
gage in illicit sex, whereas § 2423(c) does not have 
such a specific intent requirement. Although the in-
tent element distinguishes the two statutory crimes, 
we do not see that it distinguishes the scope of Con-
gress's Constitutional authority. Under § 2423(b), 
the crime is contained solely within the "travels in 
foreign commerce" provision of the statute. Under 
the crime charged in this case, § 2423(c) and (f)(2), 
the crime requires both foreign travel and engaging 
in an illicit commercial sex act. These are two dif-
ferent statutes with separate justifications under the 
Commerce Clause. 
In sum, Clark has failed to demonstrate "a 
plain showing that Congress ... exceeded its consti-
tutional bounds,"Morrison, 529 U.S. at 607, 120 
S.Ct. 1740, in enacting §§ 2423(c) and (f)(2). Trav-
eling to a foreign country and paying a child to 
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*1117 engage in sex acts are indispensable ingredi-
ents of the crime to which Clark pled guilty. The 
fact that §§ 2423(c) and (1)(2) meld these economic 
and criminal components into a single statute does 
not put the conduct beyond Congress's reach under 
the Foreign Commerce Clause. The rational nexus 
requirement is met to a constitutionally sufficient 
degree. Congress did not exceed its power "to regu-
late Commerce with foreign Nations," U.S. Const. 
art. I, § 8, cl. 3, in criminalizing commercial sex 
acts with minors committed by U.S. citizens abroad. 
AFFIRMED. 
FERGUSON, Circuit Judge, dissenting: 
The Constitution cannot be interpreted accord-
ing to the principle that the end justifies the means. 
The sexual abuse of children abroad is despicable, 
but we should not, and need not, refashion our Con-
stitution to address it. The majority holds that 
"travel in foreign commerce, coupled with engage-
ment in a commercial transaction while abroad, im-
plicates foreign commerce to a constitutionally ad-
equate degree." Maj. op. at 1114. I respectfully dis-
agree. 
The Constitution authorizes Congress "[t]o reg-
ulate Commerce with foreign Nations." Art. I, § 8, 
cl. 3. The activity regulated by 18 U.S.C. § 2423(c), 
illicit sexual conduct, does not in any sense of the 
phrase relate to commerce with foreign nations. 
Rather, § 2423(c) is a criminal statute that punishes 
private conduct fundamentally divorced from for-
eign commerce. Article I, section 8, clause 3, while 
giving Congress broad authority over our commer-
cial relations with other nations, is not a grant of in-
ternational police power. I respectfully dissent from 
the majority's assertion that the Commerce Clause 
authorizes Congress to regulate an activity with a 
bare economic component, as long as that activity 
occurs subsequent to some form of international 
travel. I also note that the conduct in this case will 
not go unpunished, as the reasonable course of ac-
tion remains of recognizing Cambodia's authority to 
prosecute Clark under its own criminal laws. 
Page 17 
I. 
Our national government is a government of 
"enumerated powers," see U.S. Const. art. I, § 8, 
which presupposes powers that are not enumerated, 
and therefore not accorded to Congress, see Gib-
bons' Ogden, 22 U.S. (9 Wheat.) 1, 85, 6 L.Ed. 23 
d
(1824). As such, the Commettei C 
's "subject 
to outer limits." United States 
514 U.S. 
p
549, 556-57, 115 S.Ct. 1624, 1 
.2d 626 
(1995). Through a long line of cases, the Supreme 
Court has developed a tri-category framework that 
helps courts ascertain these outer limits, and wheth-
er a partirlar enactment exceeds them. See, e.g.. 
Gonzales 
Raich, 545 U.S. 1, ---, 125 S.Ct. 2195, 
2205, 162 L.Ed.2d 1 (2005). In the foreign com-
merce context, the majority would replace this 
time-tested framework with its own broad standard: 
whether a statute "has a constitutionally tenable 
nexus with foreign commerce." Maj. op. at 1114. 
The majority views the foreign commerce prong of 
the Commerce Clause "independently from its do-
mestic brethren," id. at 1116, though Congress's au-
thority in both spheres is governed by the same 
constitutional language: "[t]o regulate Commerce," 
art. I, § 8, cl. 3. In so doing, the majority goes 
farther than our precedent counsels and dispenses 
with the tri-category framework that has grounded 
Commerce Clause analysis in the modern era." 
FNI. Though the majority asserts that it is 
applying "the traditional rational basis 
standard," maj. op. at 1114 (citing Raich, 
125 S.Ct. at 2211), this statement is mis-
leading to the extent that rationality review 
in the Commerce Clause context is applied 
as part of the "substantial effects" test, 
which is a more demanding inquiry than 
the open-ended "nexus" inquiry that the 
majority proposes. Compare 
514 
U.S. at 561-63, 115 S.Ct. 162 ,wet 
maj. 
op. at 1114-17. Courts apply rationality re-
view to assess whether Congress had a 
"rational basis" for concluding that a par-
ticular activity "substantially affects" inter-
state commerce, Raich, 125 S.O. at 2208, 
not to inquire generally "whether the stat-
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. 
435 F.3d 1100 
435 F.3d 1100, 06 Cal. Daily Op. Serv. 696, 2006 Daily Journal D.A.R. 962 
(Cite as: 435 F.3d 1100) 
ute bears a rational relationship to Con-
gress's authority under the [ ] Commerce 
Clause," maj. op. at 1114. Raich is further 
distinguished by the fact that Congress's 
power to effectuate a comprehensive regu-
latory scheme was central to that opinion, 
see125 S.Ct. at 2206-07, while no compar-
ably general regulation of foreign com-
merce exists in this case. 
*1118 The majority portrays the raison d'etre 
of the 
tri-category 
framework 
as 
addressing 
"unique federalism concerns that define congres-
sional authority in the interstate 
t." Maj. op. 
at 1103 (emphasis added) (citing 
514 U.S. at 
557, 115 S.Ct. 1624). It is thus ab e to conclude that 
this framework is generally inapplicable to foreign 
commerce cases. A fairer understanding of the tri-
category framework is that it has evolved not only 
in response to federalism concerns that courts have 
read into Congress's Interstate Commerce power, 
but also to give content to what it means generally 
gulate Commerce," art. I, § 8, cl. 3. Cf 
514 U.S. at 551, 115 5.O. 1624 (citing not 
only federalism concerns in invalidating 18 U.S.C. 
§ 922(q), but also the fact that the statute "neither 
regulates a commercial activity nor contains a re-
quirement that the [gun] possession be connected ip 
any way to interstate commerce"); United States 
Morrison, 529 U.S. 598, 610, 120 S.Ct. 1740, 146 
L.Ed.2d 658 (2000) (noting that "the noneconomic, 
criminal nature of the conduct at issue".was central 
to the Supreme Court's decision in 
). While 
Congress's authority to regulate foreigncontinence 
may well be broader than its authority to regulate 
interstate commerce, see, e.g.. Japan Line, Ltd. 
County of Los Angeles, 441 U.S. 434, 448, 99 S.Ct. 
1813, 60 L.Ed.2d 336 (1979), its authority in the 
foreign sphere is not different in kind. In both 
spheres, Congress is only authorized "[t]o regulate 
Commerce," art. I, § 8, cl. 3, and not those activit-
ies that are fundamentally divorced from com-
merce. So while the majority correctly notes that 
"[f]ederalism and state sovereignty concerns do not 
restrict Congress's power over foreign commerce," 
maj. op. at 1113, it fails properly to consider the re-
strictions on the scope of Congress's Foreign Com-
Page 18 
mcrce power that emanate from the constitutional 
text itself, which the tri-category framework also 
helps elucidate. 
11. 
Under the tri-category framework, and contrary 
to the District Court's conclusion, § 2423(c) is not a 
regulation of the channels of foreign commerce. 
Section 2423(c) lacks any of the tangible links to 
the channels of commerce that would justify up-
holding it under Congress's Foreign Commerce 
power. 
The Supreme Court has held that Congress's 
authority to regulate the channels of conunerce en-
compasses keeping those channels "free from im-
moral and injurious uses." Heart of Atlanta Motel, 
Inc. 
United States. 379 U.S. 241, 256, 85 S.Ct. 
348, 13 L.Ed.2d 258 (1964) (internal quotation 
marks omitted). Thus, Congress has the authority to 
criminalize the international transport of children 
for the purpose of sexual exploitation in the U.S. 
because such transport is an immoral and injurious 
l
e of the channels of commerce. Cf United States 
Hersh. 297 F.3d 1233, 1238 (11th Cir.2002) 
(upholding the conviction of a defendant who trans-
ported a Honduran boy to Florida to engage in 
*1119 sexual relations). Congress also has the au-
thority to criminalize travel "for the purpose" of en-
gaging in illicit sexual conduct, since travel with 
such harmful intent constitutes an injurious use of 
l
e
the c 
Is of foreign commerce. See, e.g., United 
States 
Bredimus, 352 F.3d 200, 207-08 (5th 
Cir.200 
i 
.'"2 We have not necessarily limited 
Congress's reach under its channels of commerce 
authority based on the cessation of movement. 
Thus, this Court found g a proper congressional ex-
ercise in United States I Cummings to prevent per-
sons from retaining children abroad after they first 
made use of the channels of foreign commerce 
wrongfully to remove the children from the U.S. 
1
281 F.3d 1 
1050 (9th Cir.2002); see also 
United States 
Shahani-Jahromi, 286 F.Supp.2d 
723, 734 (E.D. a.2003) (holding that wrongful re-
tention of a child in a foreign country, which im-
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(Cite as: 435 F.3d 1100) 
peded that child's travel back to the U.S. through 
the channels of commerce, provided a sufficient 
basis for Congress to exercise its Foreign Com-
merce power). 
FN2. The statute upheld in Bredimus was 
the former 18 U.S.C. § 2423(b), which pre-
ceded the present statute and which in-
cluded an intent requirement. 
Under this rubric, the current 18 U.S.C. § 
2423(6) contains a defensible link to the channels 
of foreign commerce, as it covers people who 
"[t]ravel with intent to engage in illicit sexual con-
duct." See, e.g., Nick Madigan, Man, 86, Convicted 
Under New Law Against Americans Who Go 
Abroad to Molest Minors, N.Y. Times, Nov. 20, 
2004, at Al2 (defendant was arrested at Los 
Angeles international Airport with "dozens of por-
nographic photographs of himself with Filipino 
girls, sex toys and 100 pounds of chocolate and 
candy"). The activity regulated by § 2423(b), inten-
tion to engage in illicit sexual conduct, is at least 
tenably related to the channels of commerce in that 
the defendant engages in travel with illegitimate 
ends. The person indicted under § 2423(b) has a 
plane ticket in hand, has paid a travel agent to set 
up the trip, or has otherwise committed an act that 
is both wrongful (because of the criminal intent) 
and tangibly related to the channels of commerce. 
By contrast, § 2423(c) neither punishes the act 
of traveling in foreign commerce, or the wrongful 
use or impediment of use of the channels of foreign 
commerce. Rather, it punishes future conduct in a 
foreign country entirely divorced from the act of 
traveling except for the fact that the travel occurs at 
some point prior to the regulated conduct. The stat-
ute does not require any wrongful intent at the time 
the channel is being used, nor does it require a tem-
poral link between the "travel( ) in foreign com-
merce," 18 U.S.C. § 2423(c), and the underlying 
regulated activity. 
The majority suggests that § 2423(c)"cant I be 
viewed as a valid regulation of the 'channels of 
commerce,' " maj. op. at 1116, because Congress's 
Page 19 
channels of commerce authority extends to regulat-
ing crimes committed abroad that are "necessarily 
tied to travel in foreign conunerce,"id. But whereas 
the requisite ties to the channels of commerce exist 
in the case the majority cites, Cummings, 281 F.3d 
1046, these ties are entirely absent in § 2423(c). 
The statute in Cummings prohibited conduct-
wrongful retention of children abroad-that was ne-
cessarily tied to injurious uses of the channels of 
commerce. The defendant in Cummings illegally 
transported his children to Germany so that he 
could retain them there, and his wrongful retention 
of them necessarily impeded their lawful use of the 
channels of commerce to return to the U.S. By con-
trast, § 2423(c) regulates an activity that is in no 
way connected to the wrongful use, or impediment 
of use, of the channels of foreign commerce. Sec-
tion 2423(c) only •1120 requires that the regulated 
conduct occur at some point subsequent-perhaps 
even years subsequent-to international travel. The 
travel may well be lawful-the statute does not re-
quire any criminal intent during travel, nor does it 
otherwise connect the regulated activity to an abuse 
of the channels of commerce. 
The mere act of boarding an international 
flight, without more, is insufficient to bring all of 
Clark's downstream activities that involve an ex-
change of value within the ambit of Congress's For-
eign Commerce power. On some level, every act by 
a U.S. citizen abroad takes place subsequent to an 
international flight or some form of "travel( ) in 
foreign commerce." 18 U.S.C. § 2423(c). This can-
not mean that every act with a bare economic com-
ponent that occurs downstream from that travel is 
subject to regulation by the United States under its 
Foreign Commerce power, or the Commerce Clause 
will have been converted into a general grant of po-
lice power. It is telling to note that, theoretically, 
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 (i.e., U.S. citizens by virtue of their 
parent's citizenship), and thus never travel in 
"Commerce with foreign Nations." Art. 1. § 8, cl. 3. 
In short, § 2423(c) is divorced from its asserted 
Commerce Clause underpinnings. The statute does 
2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
hups://web2.westlaw.com/print/printstream.asPx?sv=Full&rs=WLW8.01&prft=HTMLE&... 1/30/2008 
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• 
. 435 F.3d 1100 
435 F.3d 1100, 06 Cal. Daily Op. Serv. 696, 2006 Daily Journal D.A.R. 962 
(Cite as: 435 Fid 1100) 
not set another "guidepost" regarding Congress's 
Foreign Commerce power, contra United States 
Clark, 
315 
F.Supp.2d 
1127, 
1135 
(W.D.Wash.2004)-it exceeds it. 
Rather than engaging in a losing "channels of 
commerce" analysis, the majority applies a general 
"rational nexus" standard in this case, maj. op. at 
1117, and strains to find more foreign commerce in 
§ 2423(c) than the act of boarding an international 
flight. Specifically, the majority characterizes the 
crime regulated by § 2423(c), illicit sexual conduct, 
as sufficiently related to "Commerce with foreign 
Nations," art. I, § 8, cl. 3, to bring it under Con-
gress's Foreign Conunerce authority. 
First, the underlying regulated activity is not 
"quintessentially economic," maj. op. at 1115, 
simply because it has a bare economic aspect. Just 
as IgJender-motivated crimes of violence are not, 
in any sense of the phrase, economic activity,"Mor-
rison, 529 U.S. at 613, 120 5.O. 1740, neither is 
"illicit sexual conduct." The plain purpose of § 
2423(c) is to regulate criminal conduct, not com-
m
. As the Supreme Court cautioned in 
"depending on the level of generality, any 
activity can be looked upon as commercial." 514 
U.S. at 565, 115 5.O. 1624. 
Further, the underlying act, even if considered 
economic or commercial, is certainly not a presence 
of commerce with foreign nations. In the most 
sterile terms, an act of paid sex with a minor that 
takes place overseas is not an act of commerce with 
other nations. Under the interpretation of the major-
ity, the purchase of a lunch in France by an Americ-
an citizen who traveled there by airplane would 
constitute a constitutional act of engaging in for-
eign commerce. Under such an interpretation, Con-
gress could have the power to regulate the overseas 
activities of U.S. citizens many months or years 
after they had concluded their travel in foreign 
commerce, as long as the activities involved some 
sort of exchange of value-even if the partner in ex-
change was a U.S. entity that funneled the value 
Page 20 of 20 
Page 20 
back into the American economy. Analogously, the 
statute here does not even facially limit its applica-
tion to sex with foreign minors in an effort to create 
a tenable link to "Commerce with foreign Nations." 
Art. I, § 8, cl. 3. This observation may seem 
slightly absurd, but so is the task of trying to show 
•1121 how sexual abuse of a minor overseas by a 
U.S. citizen constitutes an act of "Commerce with 
foreign Nations." Id. 
IV. 
Viewed as a whole, it is clear that § 2423(c) 
does not relate to "Commerce with foreign Na-
tions." Id. Nor is § 2423(c) a constitutional exercise 
of Congress's authority to regulate the channels of 
commerce. Sexual exploitation of children by for-
eigners is thoroughly condemnable, but the ques-
tion before us is whether Congress properly in-
voked its power "[tit) regulate Commerce with for-
eign Nations,"id., in enacting § 2423(c) to address 
this problem. It did not. I therefore respectfully dis-
sent. 
C.A.9 (Wash.),2006. 
U.S... Clark 
435 F.3d 1100, 06 Cal. Daily Op. Serv. 6%, 2006 
Daily Journal D.A.R. 962 
END OF DOCUMENT 
C 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
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Approved: / 147/ 10
-.
BOYD M. JOHNSON III 
RITA GLAVIN 
DANIEL STEIN 
Assistant United States Attorneys 
Before: 
HONORABLE RONALD L. ELLIS 
United States Magistrate Judge 
Southern District of New York 
UNITED STATES OF AMERICA 
MARK BRENER, 
a/k/a "Michael,' 
CECIL SUWAL, 
a/k/a "Katie,' 
a/k/a "Kate," 
TEMEKA RACHELLE LEWIS, 
a/k/a "Rachelle," and 
TANYA HOLLANDER, 
a/k/a "Tania Hollander," 
Defendants. 
SOUTHERN DISTRICT OF NEW YORK, ss.: 
8 
X 
SEALED COMPLAINT 
G .0463 
Violations of 
18 U.S.C. S§ 371, 1952, 
2421, 2422, 1956 
COUNTY OF OFFENSE: 
NEW YORK• 
X 
KENNETH MOSEY, being duly sworn, deposes and says that 
he is a Special Agent with the Federal Bureau of Investigation, 
and charges as follows: 
COUNT ONE 
1. 
From in or about December 2004 to in or about 
March 2008, in the Southern District of New York and elsewhere, 
MARK BRENER, a/k/a "Michael," CECIL SUWAL, a/k/a "Katie," a/k/a 
"Kate," TEMEKA RACHELLE LEWIS, a/k/a "Rachelle," and TANYA 
HOLLANDER, a/k/a "Tania Hollander," the defendants, and others 
known and unknown, unlawfully, willfully, and knowingly did 
combine, conspire, confederate, and agree together and with each 
other to violate Sections 1952(a) (3), 2421, and 2422(a) of Title 
18, United States Code. 
EFTA00192161

2. 
It was a part and an object of the conspiracy that 
MARK BRENER, a/k/a "Michael," CECIL SUWAL, a/k/a "Katie," a/k/a 
"Kate," TEMEKA RACHELLE LEWIS, a/k/a "Rachelle," and TANYA 
HOLLANDER, a/k/a "Tania Hollander," the defendants, and others 
known and unknown, would and did use and cause to be used 
facilities in interstate commerce, to wit, cellular telephones 
and e-mail, with intent to promote, manage, establish, and carry 
on, and to facilitate the promotion, management, establishment 
and carrying on of an unlawful activity, to wit, a business 
enterprise involving prostitution offenses in violation of 
applicable State law, and thereafter did perform and attempt to 
perform an act to promote, manage, establish, and carry on and to 
facilitate the promotion, management, establishment, and carrying 
on of said unlawful activity, in violation of Title 18, United 
States Code, Section 1952(a) (3). 
3. 
It was a further part and an object of the 
conspiracy that MARK BRENER, a/k/a "Michael," CECIL SUWAL, a/k/a 
"Katie," a/k/a "Kate," TEMEKA RACHELLE LEWIS, a/k/a "Rachelle,' 
and TANYA HOLLANDER, a/k/a "Tania Hollander," the defendants, and 
others known and unknown, unlawfully, willfully and knowingly 
would and did transport individuals in interstate and foreign 
commerce with intent that such individuals engage in 
prostitution, and in sexual activity for which a person can be 
charged with a criminal offense, in violation of Title 18, United 
States Code, Section 2421. 
4. 
It was a further part and an object of the 
conspiracy that MARK BRENER, a/k/a "Michael,' CECIL SUWAL, a/k/a 
"Katie,' a/k/a "Kate," TEMEKA RACHELLE LEWIS, a/k/a "Rachelle," 
and TANYA HOLLANDER, a/k/a "Tania Hollander," the defendants, and 
others known and unknown, unlawfully, willfully and knowingly 
would and did persuade, induce, entice, and coerce individuals to 
travel in interstate and foreign commerce to engage in 
prostitution and in sexual activity for which a person can be 
charged with a criminal offense, in violation of Title 18, United 
States Code, Section 2422(a). 
Overt Acts 
5. 
In furtherance of said conspiracy and to effect 
the illegal objects thereof, the following overt acts, among 
others, were committed in the Southern District of New York and 
elsewhere: 
a. 
From in or about December 2004 through in or 
about March 2008, MARK BRENER, a/k/a "Michael," and CECIL SUWAL, 
a/k/a "Katie," a/k/a "Kate," the defendants, controlled a website 
2 
EFTA00192162

located at URL www.emperorsclubvip.com. that included photographs 
of prostitutes' bodies, with their heads hidden, along with 
hourly rates for different categories of prostitutes; 
b. 
From in or about December 2004 through in or 
about at least January 2008, MARK BRENER, a/k/a "Michael," and 
CECIL SUWAL, a/k/a "Katie," a/k/a "Kate," the defendants, 
received applications from women seeking to work as prostitutes 
with their prostitution business (hereinafter, the "Emperors 
Club") at various e-mail accounts; 
c. 
On or about January 9, 2008, MARK BRENER, 
a/k/a "Michael," CECIL SUWAL, a/k/a "Katie," a/k/a "Kate," and 
TEMEKA RACHELLE LEWIS, a/k/a "Rachelle," the defendants, spoke 
over the telephone about offering the Emperors Club's clients the 
opportunity to exercise a "buyout clause," which would permit 
clients to purchase direct access to one of the Emperors Club's 
prostitutes without having to contact the agency; 
d. On or about January 15, 2008, TEMEKA RACHELLE 
LEWIS, a/k/a "Rachelle," the defendant, spoke with a client of 
the Emperors Club over the telephone about arranging for a 
prostitute to come to his room at a hotel in New York, New York; 
e. On or about January 15, 2008, a prostitute 
working with the Emperors Club went to a client's hotel in New 
York, New York; 
f. On or about January 18, 2008, TEMEKA RACHELLE 
LEWIS, a/k/a "Rachelle," the d endant, spoke over the telephone 
If 
with a new prostitute working ith the Emperors Club who told 
LEWIS that she had never "done anything like this before" and was 
a "little bit nervous about it"; 
g. 
On or about January 18, 2008, CECIL SUWAL, 
a/k/a "Katie," a/k/a "Kate," the defendant, sent an e-mail to a 
potential prostitute asking her to send photographs of herself to 
SUWAL; 
h. On or about January 22, 2008, TEMEKA RACHELLE 
LEWIS, a/k/a "Rachelle," the defendant, told an Emperors Club 
client that he should not be concerned about sending a wire 
transfer to the Emperors Club because the wire would be sent to 
"QAT Consulting" so it would show up "like as a business 
transaction"; 
i. On or about January 24, 2008, a prostitute 
working with the Emperors Club went to a hotel in Los Angeles, 
3 
EFTA00192163

California; 
j. On or about January 24, 2008, CECIL SUWAL, 
a/k/a "Katie," a/k/a "Kate," the defendant, received an e-mail 
from a potential prostitute declining to work for the Emperors 
Club in part because her friend had to have sex with a client 
"twice in an hour"; 
k. On or about January 24, 2008, CECIL SUWAL, 
a/k/a "Katie," a/k/a "Kate," the defendant, sent an e-mail to 
TEMEKA RACHELLE LEWIS, a/k/a "Rachelle," the defendant, attaching 
a list of the aliases used by more than 50 prostitutes working 
with the Emperors Club in, among other places, New York, New 
York; Los Angeles, California; Miami, Florida; London, England; 
and Paris, France; 
1. 
On or about January 24, 2008, CECIL SUWAL, 
a/k/a "Katie," a/k/a "Kate," the defendant, sent an e-mail to a 
prostitute working with the Emperors Club and asked if she would 
be available on February 11, 2008, in Europe for an extended 
prostitution date with a client to cost $25,000 or more. 
m. On or about January 26, 2008, TEMEKA RACHELLE 
LEWIS, a/k/a "Rachelle," the defendant, spoke with a client of 
the Emperors Club over the telephone about arranging for a 
prostitute to come to his room at a hotel in Los Angeles, 
California; 
n. On or about January 27, 2008, a prostitute 
working with the Emperors Club went to a client's hotel in Los 
Angeles, California; 
o. On or about January 27, 2008, TEMEKA RACHELLE 
LEWIS, a/k/a "Rachelle," the defendant, spoke with an Emperors 
Club client over the telephone who asked LEWIS whether the QAT 
consulting company could be traced because he had heard of 
agencies like the Emperors Club getting "busted"; 
p. On or about January 28, 2008, MARK BRENER, 
a/k/a "Michael,' CECIL SUWAL, a/k/a "Katie," a/k/a "Kate,' and 
TANYA HOLLANDER, a/k/a "Tania Hollander," the defendants, met in 
the vicinity of Grand Central Terminal in New York, New York; 
q. On or about January 28, 2008, TEMEKA RACHELLE 
LEWIS, a/k/a "Rachelle," the defendant, spoke with an Emperors 
Club client over the telephone about arranging for a prostitute 
to travel from New York to Washington, D.C., to his hotel; 
4 
EFTA00192164

r. On or about January 30, 2008, MARK BRENER, 
a/k/a "Michael," CECIL SUWAL, a/k/a "Katie," a/k/a "Kate," and 
TEMEKA RACHELLE LEWIS, a/k/a "Rachelle," the defendants, spoke 
over the telephone regarding problems with one of the Emperors 
Club's prostitutes who they believed might be abusing drugs; 
s. On or about January 30, 2008, CECIL SUWAL, 
a/k/a "Katie," a/k/a "Kate," the defendant, sent TANYA HOLLANDER, 
a/k/a "Tania Hollander," the defendant, a text message over the 
telephone asking HOLLANDER to contact an Emperors Club client to 
arrange an appointment with an Emperors Club prostitute in New 
York on February 1, 2008; 
t. On or about January 30, 2008, CECIL SUWAL, 
a/k/a "Katie," a/k/a "Kate," the defendant, sent TANYA HOLLANDER, 
a/k/a "Tania Hollander," the defendant, a text message over the 
telephone asking HOLLANDER to send two particular prostitutes on 
dates with Emperors Club clients in New York if possible, and 
HOLLANDER agreed; 
u. On or about January 31, 2008, TANYA HOLLANDER, 
a/k/a "Tania Hollander," the defendant, sent CECIL SUWAL, a/k/a 
"Katie," a/k/a "Kate," the defendant, a text message over the 
telephone informing SUWAL that she had scheduled a date for an 
Emperors Club client with an Emperors Club prostitute in Europe; 
On or about February 7, 2008, CECIL SUWAL, 
a/k/a `Katie," a/k/a "Kate," and TEMEKA RACHELLE LEWIS, a/k/a 
"Rachelle," the defendants, spoke over the telephone about the 
fact that an Emperors Club client had complained that one of 
their prostitutes was "more sex than sexy"; 
w. On or about February 11, 2008, CECIL SUWAL, 
a/k/a "Katie," a/k/a "Kate," and TEMEKA RACHELLE LEWIS, a/k/a 
"Rachelle," the defendants, communicated via text message about 
the fact that the three-day rates for two of the Emperors Club 
prostitutes were $50,000 and $35,000, respectively; 
x. On or about February 12, 2008, TEMEKA RACHELLE 
LEWIS, a/k/a "Rachelle," the defendant, spoke with an Emperors 
Club client over the telephone about arranging for a prostitute 
to travel from New York to Washington, D.C.; and 
y. On or about February 13, 2008, an Emperors 
Club prostitute traveled from New York, New York, to a hotel in 
Washington, D.C. 
(Title 18, United States Code, Section 371.) 
5 
EFTA00192165

COUNT TWO 
6. From in or about December 2004, up through and 
including in or about March 2008, in the Southern District of New 
York and elsewhere, MARK BRENER, a/k/a "Michael," and CECIL 
SUWAL, a/k/a "Katie," a/k/a "Kate," the defendants, and others 
known and unknown, unlawfully, willfully, and knowingly combined, 
conspired, confederated, and agreed together and with each other 
to commit an offense against the United States, to wit, to 
violate Title 18, United States Code, Section 1956. 
7. 
It was a part and an object of the conspiracy that 
MARK BRENER, a/k/a "Michael," and CECIL SUWAL, a/k/a "Katie," 
a/k/a "Kate," the defendants, and others known and unknown, in an 
offense involving and affecting interstate and foreign commerce, 
knowing that the property involved in certain financial 
transactions represented the proceeds of some form of unlawful 
activity, unlawfully, willfully, and knowingly would and did 
conduct such financial transactions, which in fact involved the 
proceeds of specified unlawful activity, to wit, the use of 
facilities in interstate commerce with the intent to promote, 
manage, establish, and carry on, and to facilitate the promotion, 
management, establishment, and carrying on of an unlawful 
activity, to wit, a business involving prostitution offenses in 
violation of applicable State law, in violation of Title 18, 
United States Code, Section 1952(a)(3); interstate transportation 
of individuals to engage in prostitution, in violation of Title 
18, United States Code, Section 2421; and persuasion of 
individuals to travel in interstate and foreign commerce to 
engage in prostitution, in violation of Title 18, United States 
Code, Section 2422(a), (a) with the intent to promote the 
carrying on of specified unlawful activity, and (b) knowing that 
the transactions were designed in whole and in part to conceal 
and disguise the nature, the location, the source, the ownership, 
and the control of the proceeds of specified unlawful activity, 
in violation of Title 18, United States Code, Sections 
1956(a) (1) (A) (i) and 1956(a) (1) (B)(i). 
Overt Acts 
8. 
In furtherance of the conspiracy and to effect the 
illegal objects thereof, the following overt acts, among others, 
were committed in the Southern District of New York and 
elsewhere: 
a. In or about December 10, 2004, CECIL SUWAL, 
a/k/a •Katie," a/k/a "Kate," the defendant, opened a bank account 
in the name of "QAT Consulting Group, Inc."; 
6 
EFTA00192166