United States of America v. Richard Arthur Schmidt

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6567
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
RICHARD ARTHUR SCHMIDT,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:04-cr-00052-JFM-1; 1:12-cv-03370-JFM)
Argued: December 6, 2016 Decided: January 4, 2017
Before WILKINSON, AGEE, and HARRIS, Circuit Judges.
Reversed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Agee and Judge Harris joined.
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.

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WILKINSON, Circuit Judge:
Richard Schmidt pleaded guilty to traveling in foreign
commerce and engaging in illicit sexual conduct in violation of
18 U.S.C. § 2423(c). Schmidt now argues that, as a matter of
law, he did not travel in foreign commerce in connection with
his illicit sexual conduct and is thus actually innocent of the
offense. The district court agreed. We review the judgment of
the district court de novo, and for the reasons that follow, we
reverse.
I.
In the words of the district court, Schmidt is a “sexual
predator.” United States v. Schmidt, Civ. No. JFM-13-3370, 2015
WL 5440732, at *1 (D. Md. Sept. 11, 2015). He has been
repeatedly convicted since 1984 for extensive and grotesque sex
offenses involving young boys.
In June 2002, Schmidt fled the United States to the
Philippines to avoid arrest for allegedly making unauthorized
contact with a minor in violation of his parole. He obtained
employment there as a school instructor until he was arrested by
Philippine authorities for once again sexually molesting young
boys. In December 2003, Schmidt fled to Cambodia during a period
of pre-trial release, roughly eighteen months after he first
arrived in the Philippines. His pattern of sex offenses
nonetheless continued until he was arrested by Cambodian

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authorities that same month. He was soon released on “police
watch” only to rape another young boy within two days. As a
result, Schmidt was deported to the United States to face
numerous criminal charges, including a violation of § 2423(c) in
Count 10 of his indictment for illicit sexual conduct in
Cambodia. Schmidt pleaded unconditionally guilty to this charge
and was sentenced to a prison term of fifteen years and a
lifetime of supervised release.1
Schmidt now petitions under 28 U.S.C. § 2255 to vacate his
conviction, arguing that he is actually innocent of violating
§ 2423(c) and that his counsel was ineffective for failing to
notice this defect at the time he entered his plea. Schmidt does
not deny his illicit sexual conduct. Instead, Schmidt contends
that his travel in foreign commerce ended during his stay in the
Philippines, long before his illicit sexual conduct in Cambodia.
He further claims that any subsequent travel, such as his flight
to Cambodia, was not independent travel in foreign commerce for
purposes of § 2423(c).
We are therefore presented with a straightforward question.
When did Schmidt’s travel in foreign commerce end after he
departed the United States? Because we conclude that Schmidt was
still traveling in foreign commerce from the time he departed
1 Schmidt also pleaded guilty to Count 7 of his indictment,
which the government has conceded was defective.

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the United States until the time of his illicit sexual conduct
in Cambodia, we conclude that he is not actually innocent of the
§ 2423(c) offense.
II.
A.
Congress enacted § 2423(c) as part of the Prosecutorial
Remedies and Other Tools to End the Exploitation of Children
Today (“PROTECT”) Act of 2003, Pub. L. No. 108-21, § 105(a), 117
Stat. 650, 654 (2003). At the time of Schmidt’s offense, it
read:
Engaging in Illicit Sexual Conduct in Foreign Places.—
Any 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.
As the title implies, § 2423(c) was intended to criminalize
“Engaging in Illicit Sexual Conduct in Foreign Places.” It was
aimed in part at the “ugly American,” whose sexual exploits and
visitation to sexual guesthouses abroad have helped to stimulate
the sex trade in young children even to the point of wrenching
them at an early age from their own homes.
The statute expanded upon 18 U.S.C. § 2423(b), which had
been previously enacted to criminalize “Travel With Intent To
Engage in Illicit Sexual Conduct.” Congress recognized the
difficulty of proving that a defendant traveled “for the purpose

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of” engaging in illicit sexual conduct, id., and passed
§ 2423(c) to “close loopholes that facilitated the abuse of
children abroad by sex tourists,” United States v. Bollinger,
798 F.3d 201, 219 (4th Cir. 2015). As the House Conference
Report explained, “Current law [§ 2423(b)] requires the
government to prove that the defendant traveled with the intent
to engage in the illegal activity. Under this section
[§ 2423(c)], 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. C ONF. R EP. N O. 108–66, at 51 (2003),
reprinted in 2003 U.S.C.C.A.N. 683, 686.2
We construe the statute accordingly.
B.
Merriam-Webster’s Collegiate Dictionary defines “travel” as
“to go on or as if on a trip or tour,” “to go from place to
place,” and “to move or undergo transmission from one place to
another.” MERRIAM-WEBSTER’ S COLLEGIATE DICTIONARY 1331 (11th ed. 2003).
Neither party contends that prohibited sexual conduct must occur
2 In 2013, Congress amended § 2423(c) to criminalize illicit
sexual conduct by any United States citizen who “travels in
foreign commerce or resides, either temporarily or permanently,
in a foreign country.” Pub. L. No. 113-4, § 1211(b), 127 Stat.
54, 142 (2013) (emphasis added). To the extent Congress meant to
clarify the original meaning of § 2423(c), the Supreme Court has
held that “[s]ubsequent legislation declaring the intent of an
earlier statute is entitled to great weight in statutory
construction.” Red Lion Broad. Co. v. FCC, 395 U.S. 367, 380–81
(1969).

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en route from one place to another, and such a narrow
construction of travel would surely defeat the intent of
Congress. See United States v. Clark, 435 F.3d 1100, 1107 (9th
Cir. 2006) (“It [§ 2423(c)] does not require that the conduct
occur while traveling in foreign commerce.”). Rather, travel
denotes a broader concept of movement abroad. 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. See United States v.
Jackson, 480 F.3d 1014, 1022 (9th Cir. 2007). Travel can thus
continue until a party either returns to his or her place of
origin or permanently resettles elsewhere. As the Ninth Circuit
has observed, “[A]n understanding that travel ends only upon
permanent resettlement in a foreign country is supported by
courts’ regular use of a distinction between individuals who are
physically present without intending to stay in a locale and
those who are present with an intent to remain. People in the
first category are usually considered mere visitors, while
people in the second category are considered residents or
domiciliaries of the new location.” Id. at 1023-24. This
construction “comports with colloquial usage.” Id. at 1023.
Next, 18 U.S.C. § 10 defines “foreign commerce,” in
language that largely parallels the Foreign Commerce Clause, to
include “commerce with a foreign country.” We have previously

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noted, focusing on the conjunctive “with,” that foreign commerce
requires some nexus with the United States. See Bollinger, 798
F.3d at 214. This makes sense: The United States cannot go
around prosecuting under the statute those with no real
connection to this country. See United States v. Pendleton, 658
F.3d 299, 307-08 (3d Cir. 2011) (“Courts have consistently held
that the Foreign Commerce Clause requires a jurisdictional nexus
‘with’ the United States, but there is precious little case law
on how to establish the requisite link . . . .” (citations
omitted)); United States v. Weingarten, 632 F.3d 60, 70 (2d Cir.
2011) (“[I]t would be anomalous to construe the general
definition of ‘foreign commerce’ in § 10 . . . as including all
forms of commerce occurring outside the United States and
without nexus whatsoever to this country.”). The statutory
history of § 10 reinforces this requirement. See Weingarten, 632
F.3d at 67-70.
Travel in foreign commerce therefore encompasses movement
abroad that maintains some nexus with the United States. We
consider all relevant facts and circumstances to determine
whether and to what extent a defendant traveled in foreign
commerce.

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III.
A.
Schmidt does not contest that he traveled in foreign
commerce when he fled the United States to the Philippines.
Movement directly to or from the United States is unquestionably
an adequate nexus. Instead, Schmidt argues that his travel in
foreign commerce ended shortly thereafter. He points out that he
obtained a work permit and full-time employment, rented a home,
and used a local driver’s license in the Philippines. He further
argues that the eighteen months he spent there was sufficient to
indicate that his travel had ended, or at least to sever any
nexus with the United States. As a result, Schmidt contends that
he was no longer traveling in foreign commerce when he fled to
and engaged in illicit sexual conduct in Cambodia.
We disagree. Schmidt overlooks a number of more significant
factors. To begin, his status remained transient from the time
he left the United States until the time of his illicit sexual
conduct in Cambodia. He stayed in the Philippines on a series of
two-month tourist visas and worked using an “alien employment
permit” for “non-resident foreign nationals” that he apparently
allowed to lapse before renewing. J.A. 223-24. Schmidt also
maintained a substantial amount of money in the United States,
and never purchased a home or other property abroad.

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When Schmidt’s unlawful sexual conduct attracted the
attention of Philippine authorities, he had no trouble making a
quick pivot to Cambodia. Unlike when he fled the United States
leaving significant assets behind, Schmidt fled the Philippines
leaving no trace beyond the ruin caused by his sexual exploits.
He then entered Cambodia on a one-month tourist visa and
frequented guesthouses known to attract sex tourists.
We specifically note that Schmidt continually traveled on a
United States passport and made no effort to obtain permanent
status in another country. At all times, he was a visitor in
both the Philippines and Cambodia. The sum of these factors is
more than sufficient to establish for purposes of § 2423(c) that
Schmidt was still traveling in foreign commerce from the time he
left the United States until the time of his illicit sexual
conduct in Cambodia. Contrary to his protestations of
permanency, Schmidt was something of a rolling stone.3
B.
Schmidt contends, however, that travel in foreign commerce
necessarily ends sometime during the first stop after departure
and that the requisite nexus with the United States is
3 Schmidt’s conviction does not present an ex post facto
problem because he was still traveling in foreign commerce and
engaging in illicit sexual conduct after § 2423(c) was enacted
on April 30, 2003. Count 10 charged Schmidt with violating
§ 2423(c) in December 2003.

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thereafter severed. But nothing in § 2423(c) indicates that
illicit sexual conduct must take place immediately or even
shortly after leaving the United States, or that a single course
of travel is limited to a single destination. Common sense
refutes any such notion. Schmidt’s theory would allow a simple
layover to defeat the clear design of the statute. A defendant
might make a quick stop and then proceed elsewhere cloaked in an
artificial immunity from prosecution. See Weingarten, 632 F.3d
at 71. Intermediate stops of longer duration are likewise
inapposite until a party returns to his or her place of origin
or permanently resettles. See id. (“[M]ere stops along the way
do not deprive travel of its territorial nexus to the United
States.”).
Schmidt finally emphasizes that he had no intent to return
to the United States and thus his travel in foreign commerce
necessarily concluded shortly after he arrived in the
Philippines. However, the element of travel and requisite nexus
with the United States is an objective inquiry that does not
turn solely on self-serving and subjective allegations of
intent. While intent to permanently resettle may be one factor
in determining when relevant travel in foreign commerce comes to
an end, it is not dispositive. In any event, the record here
does not support Schmidt’s claim.

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United States v. Jackson is instructive by comparison. The
Ninth Circuit there 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. 480 F.3d at 1015-16, 1024. The defendant
and his partner also sold their home and remaining property in
the United States, transferring all their assets to Cambodia.
Id. Schmidt’s sojourns display none of these features.4
IV.
The judgment of the district court is accordingly reversed.
We remand for reinstatement of the judgment of conviction on
Count 10, which charged defendant with the aforementioned
§ 2423(c) offense.
REVERSED
4 Schmidt’s continuous course of travel makes it unnecessary
to address the government’s contention that § 2423(c) applies to
illicit sexual conduct even after travel in foreign commerce has
concluded. Similarly, what might qualify as a nexus to the
United States, or how attenuated a nexus might be permitted, are
questions we need not decide.

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