Metropolitan News-Enterprise


Friday, March 30, 2007


Page 1


Ninth Circuit Panel Tosses Sex Tourism Conviction


By TINA BAY, Staff Writer


A federal statute prohibiting international child-sex tourism by American citizens does not apply to alleged offenders whose travel abroad occurred before the law’s enactment, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court agreed with Washington-based U.S. District Judge Ricardo S. Martinez that a man who relocated to Cambodia in November 2001 could not be indicted for later committing “illicit sexual conduct” under the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003.

A provision enacted by the PROTECT Act, which became law on April 30, 2003,  as 18 U.S.C. Sec. 2423(c) punishes any U.S. citizen who “travels in foreign commerce, and engages in any illicit sexual conduct with another person”—“illicit sexual conduct” being defined as a sex act with a person under 18 years of age.

Retired marine carpenter Gary Jackson was indicted for violating the statute after it was discovered he had paid three Cambodian boys for a sexual rendezvous in Phnom Penh on June 27, 2003.

A U.S. citizen, Jackson had left the U.S. in November 2001 to relocate permanently to Cambodia with his longtime domestic partner, James Kleven. After traveling in Thailand for two months, the two eventually settled into a home in Cambodia that a friend purchased on their behalf with their money.

The only remaining property they held in the U.S. after their move was a joint bank account in which Jackson’s monthly pension check was deposited, and from which funds were then wired to Jackson and Kleven’s joint account in Phnom Penh. Both men intended to apply for Cambodian citizenship after satisfying the five-year residency requirement, Kleven said in a declaration.

Jackson used his U.S. passport to visit other Southeast Asian countries but never returned to the U.S. before his 2003 arrest.

An international children’s rights group notified Cambodian authorities that Jackson had enlisted the sexual services of three boys between ages 10 and 15, giving them $21 to split after the encounter.  After being arrested and charged with debauchery in Cambodia, he was extradited to the U.S. and indicted by a grand jury on three counts of violating Sec. 2423(c).

Jackson admitted the allegations were true in a plea agreement, but moved to dismiss the indictment on numerous grounds including violation of the Ex Post Facto Clause because his travel, an integral part of the offense, had occurred before Sec. 2423(c)’s effective date.

Though alluding to the Ex Post Facto issue, Martinez granted the dismissal motion on the ground that the plain language of Sec. 2423(c) evidenced Congress’ intent only to prohibit both travel and sexual conduct occurring after April 30, 2003.

Writing for the Ninth Circuit, Judge Marsha S. Berzon agreed.

“Under normal English language conventions, the use of the present tense in Sec. 2423(c) indicates that Congress desired only to cover individuals traveling after the enactment of the statute; one would not refer in the present tense to something that had already happened,” she wrote.

Moreover, Berzon said, Congress in the Dictionary Act specified that words used in the present tense include both the present and future, but consciously excluded past acts or omissions.

Whether international “travel” is defined to end when a U.S. citizen arrives in a foreign country, or to end only once the citizen resettles in or takes up residence in a foreign country—an issue the court did not decide—Jackson’s travel had ended by April 30, 2003, the judge concluded, explaining:

“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, Jackson had given up his residence in the United States, begun fulfilling Cambodia’s five-year residency requirement, and intended to apply for Cambodian citizenship.”

The fact that Jackson admittedly committed “despicable” and “abhorrent” conduct “does not give us license to ignore the elements of the criminal statutes that Congress has established,” Berzon said.

Judge Ronald M. Gould and U.S. District Judge William W. Schwarzer of the Northern District of California, sitting by designation, concurred.

The case is United States v. Jackson, 05-30058.


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