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February 21, 2017
  United States v. Schmidt -- Fourth Circuit
Americans Abroad: No Transfer of Citizenship? No Property Abroad? You Are Still a "Traveler in Foreign Commerce" under U.S. Jurisdiction

Areas of Law: Criminal Law, Habeas Corpus

Issue Presented: Whether the defendant's "travel in foreign commerce" for purposes of 18 U.S.C. § 2423(c) ended after he departed the United States for the Philippines, got a work permit, had a full-time job, rented a home, used a local driver's license, and stayed in the Philippines for eighteen months.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that the defendant was travelling in foreign commerce from the time he departed the United States until the time of his illicit sexual conduct in Cambodia. Citing United States v. Jackson, 480 F.3d 1014 (9th Cir. 2007) and United States v. Bollinger, 798 F. 3d 201 (4th Cir. 2015), the Fourth Circuit construed "travel in foreign commerce," under 18 U.S.C. § 2423(c), as any movement abroad that maintains some nexus with the United States. Where Richard Schmidt kept a substantial amount of money in a United States bank account, never purchased any property abroad, and never made an effort to obtain permanent legal status in another country, the Fourth Circuit found that he was merely a visitor in the Philippines and Cambodia. Therefore, the Fourth Circuit reversed the district court's grant of the defendant's habeas corpus petition.

Extended Summary: Richard Schmidt ("Schmidt") is a sexual predator who has been repeatedly convicted of sex offenses involving young boys. In June 2002, to avoid arrest for allegedly making unauthorized contact with a minor in violation of his parole, Schmidt fled the United States for the Philippines. In the Philippines, Schmidt worked as a school instructor until he was arrested by Philippine authorities on charges of once again sexually molesting young boys. In December 2003, during a period of pre-trial release, Schmidt fled to Cambodia. His pattern of sex misconduct continued there and he was arrested by Cambodian authorities. Schmidt was subsequently deported to the United States to face numerous criminal charges, including a violation of 18 U.S.C. § 2423(c) ("§ 2423(c)") for illicit sexual conduct in Cambodia. Schmidt pled unconditionally guilty to this charge and was sentenced to a prison term of fifteen years and a lifetime of supervised release.

Schmidt filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the District of Maryland. He argued that he was innocent of violating § 2423(c) and that his counsel was ineffective for failing to notice this defect at the time he entered his plea.

Section 2423(c) provides that "[a]ny United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both."

Schmidt contended that his travel in foreign commerce ended during his stay in the Philippines, long before his illicit sexual conduct in Cambodia. He further claimed that any subsequent travel, such as his flight to Cambodia, was not independent travel in foreign commerce for purposes of § 2423(c). The district court agreed.

The Fourth Circuit disagreed, holding that Schmidt was "traveling in foreign commerce" from the time he departed the United States until the time of his illicit sexual conduct in Cambodia. The Fourth Circuit started its analysis by interpreting the term "travel in foreign commerce." First, the Fourth Circuit held that the term "travel" did not simply encompass movement from one place to another, but instead denoted a broader concept of movement abroad. Citing the Ninth Circuit's decision in United States v. Jackson, 480 F.3d 1014 (9th Cir. 2007), the Fourth Circuit found that a person might still be traveling even after a significant amount of time in a given location so long as the visit was sufficiently transient or contemplated eventual departure. Thus, the Fourth Circuit concluded that travel could continue until a party either returned to his or her place of origin or permanently resettled elsewhere. Second, citing United States v. Bollinger, 798 F. 3d 201 (4th Cir. 2015), the Fourth Circuit held that "foreign commerce" required some nexus with the United States. Therefore, the Fourth Circuit construed "travel in foreign commerce" as "movement abroad that maintain[ed] some nexus with the United States."

Schmidt first argued that his travel in foreign commerce ended shortly after he arrived in the Philippines because he got a work permit, had a full-time job, rented a home, used a local driver's license, and remained in the Philippines for eighteen months. The Fourth Circuit disagreed, holding that Schmidt's status remained transient in the Philippines and Cambodia. The Fourth Circuit observed that Schmidt stayed in the Philippines on tourist visas and worked using an "alien employment permit" for "non-resident foreign nationals." Further, the Fourth Circuit found that Schmidt maintained a substantial amount of money in a United States' bank account, and never purchased a home or other property abroad. Specifically, the Fourth Circuit noted that Schmidt continually traveled on a United States passport and made no effort to obtain permanent status in another country. Therefore, the Fourth Circuit concluded that he was "just a visitor in the Philippines and Cambodia."

Schmidt also argued that his travel in foreign commerce ended shortly after he arrived in the Philippines because he had no intention of returning to the United States. The Fourth Circuit, however, observed that the element of travel and requisite nexus with the United States was an objective inquiry that did not turn solely on self-serving and subjective allegations of intent. Even though intent to permanently resettle might be one factor in determining when relevant travel in foreign commerce comes to an end, the Fourth Circuit found that it was not dispositive.

Finally, the Fourth Circuit compared Schmidt's case with United States v. Jackson. In United States v. Jackson, the Ninth Circuit concluded that the defendant's travel in foreign commerce ended after he moved to Cambodia, purchased a home, and commenced the five-year residency requirement for Cambodian citizenship. The defendant and his partner also sold their home and remaining property in the United States, transferring all their assets to Cambodia. The Fourth Circuit found that Schmidt's stay displayed none of these features. Therefore, the Fourth Circuit reversed the district court's decision and remanded for reinstatement of the judgment of conviction.

To read the full opinion, click here.

Panel: Judges Wilkinson, Agee, and Harris

Argument Date: 12/06/2016

Date of Issued Opinion: 01/04/2017

Docket Number: No. 16-6567

Decided: Reversed by published opinion

Case Alert Author: Ziyi He, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Sujit Raman, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellant. Mary Elizabeth Davis, DAVIS & DAVIS, Washington, D.C., for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellant.

Author of Opinion: Judge Wilkinson

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/21/2017 10:49 AM     4th Circuit  

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