Asingle dollar bill—or, to Michael Joseph Pepe, the amount each of his child victims deserved after they performed oral sex on him. That, he determined, was the worth of their lives, their innocence, and their wellbeing. And that was just the beginning.
Pepe, a retired Marine Corps captain, traveled to Phnom Penh, Cambodia in March of 2003. He quickly crafted a life for himself. He found a job teaching management at a local university, rented a place to live, purchased a car, and obtained a local driver’s license. He even entered into a non-binding “marital” union with a Cambodian woman.1
During an evening spent at Sharkey Bar in Phnom Penh, Pepe met Basang. Basang was a local prostitute whom Pepe paid for sex and relied upon to recruit victims. Basang served as an intermediary, identifying victims and providing their families with the payment required for Pepe to gain unfettered access to their children—in particular, their 10 to 12-year-old daughters. In exchange for her services, Pepe paid Basang’s rent and provided her with the $300 she needed to purchase gravestones for her parents.2
Many cases of exploitation involve coercive subtleties. This one did not. Pepe used ropes and Rohypnol to gain the level of compliance he sought. In addition to having Basang teach their victims to perform naked massages and oral sex on Pepe, Pepe forcibly raped each child. During the first time Pepe raped a victim, he would drug her and tie her legs to the bed. If she made any noise as the drugs wore off, he smothered her screams with a pillow, taped her mouth shut, or simply hit her in the face.3
Acting on a tip from U.S. officials, Cambodian authorities arrested Pepe in June 2006. After spending seven months detained in Cambodia, he was turned over to U.S. law enforcement. He was indicted and charged with seven counts of violating 18 U.S.C. § 2423(c) (part of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act (“PROTECT Act”) of 2003) which criminalized the behavior of any U.S. citizen “who travels in foreign commerce, and engages in any illicit sexual conduct with another person.4” Six of Pepe’s victims testified at trial, recounting the horrors they were subjected to during Pepe’s time in Cambodia.
The jury convicted Pepe of all seven counts, and he was sentenced to serve 210 years in prison and to pay $247,213 in restitution to Hagar and Agape, two non-profit organizations fighting trafficking and exploitation in Cambodia.5
Substantive Change or Simple Clarification?
In 2013, Congress amended the PROTECT Act to specify that the law applies to a U.S. citizen who travels in foreign commerce or resides, either temporarily or permanently, in a foreign country, and engages in the prohibited sexual conduct.6 On appeal, Pepe contended that the amendment demonstrated that during 2005 and 2006—the timeframe covering Pepe’s offenses—his conduct was not covered by the version of the law in existence. While Pepe occasionally traveled to the United States during the years he spent in Cambodia, including a trip just three months prior to the timeframe in which the charged conduct occurred, he maintains that he was a formal resident of Cambodia, and therefore outside the scope of the earlier statute.7
The Ninth Circuit agreed. In July 2018, the court held that the 2013 amendment to the PROTECT Act invalidates Pepe’s conviction, finding that the language addition demonstrated the previous version of the law was not intended to cover those who reside in a foreign country. Despite existing Ninth Circuit precedent which interpreted the earlier version of the Act to apply expansively to U.S. citizens who travel overseas and, at some point thereafter, engage in the prohibited conduct,8 the court considered the amendment sufficient grounds for reversal.9 Why? The Court believed the amendment would fail to have the significant effect envisioned by Congress if the new language did not meaningfully alter the original law.10 Further, the Court emphasized the amendment was adopted in response to a proposal from the Alliance to End Slavery & Trafficking (“ATEST”), a coalition of anti-trafficking organizations, and highlighted language from the ATEST proposal in a manner that appeared to suggest ATEST had concerns about the scope of the previous law.
The Debate Intensifies
Not so, argued ATEST in a recent letter denouncing the Ninth Circuit’s decision and excoriating the Court for its misuse of the organization’s proposal.11 ATEST contended their position had been fundamentally mischaracterized, and they were not suggesting, or even questioning, whether an expansive interpretation of the previous statutory language was consistent with the law. They were merely asking Congress to foreclose any confusion and address potential variance among jurisdictions by amending the language to demonstrate legislative agreement with the prevailing interpretation that conduct like Pepe’s was within the scope of the statute.
In its letter, ATEST urged the Solicitor General and the United States Attorney for the Central District of California to petition the Ninth Circuit to rehear United States v. Pepe en banc, as they believe the case was wrongly decided. The Chief Judge of the Ninth Circuit disagreed with the opinion in Pepe, noting that the majority incorrectly interpreted the amendment’s retroactive impact. He argued that the mere fact Congress amended the statute does not indicate, and certainly does not necessitate, the conclusion that Congress intended to substantively alter the law.12 He further noted this is especially true when a statute like 2423(c) has already undergone judicial interpretation—interpretation that Congress is presumably aware of and chose not to undermine by maintaining the original language.
What does this mean for litigants? It means they are left in a state of flux if the defendant’s conduct occurred between the PROTECT Act’s enactment in 2003 and amendment in 2013. Cases in the Ninth Circuit charged under 2423(c) may have valid grounds for appeal if the facts fail to demonstrate that the defendant was still in a state of travel. If faced with an appeal under 2423(c), the government will need to demonstrate that the jury was properly instructed and that the government proved that the defendant had not permanently resettled in the foreign country prior to the charged conduct. In Pepe’s case, the government argued that letters to family members, as well as the U.S. ambassador, conveyed Pepe’s intent to return to the United States—a key factor in assessing whether a defendant was still “traveling.” Retrying an offense that occurred 13 years ago and involved testimony from six juvenile witnesses residing overseas is a colossal challenge to be sure; but the government could, theoretically, choose to retry Pepe with the necessary jury instructions and attempt to prove he was still “traveling.” If the new jury determines Pepe was still traveling and finds him guilty of violating the pre-2013 version of the PROTECT Act, he will be resentenced following the conviction.
- 1See, United States v. Pepe, 752 — F.3d –, 2 (9th Cir. 2018).
- 2 See id. at 2.
- 3 See id. at 3.
- 4 18 U.S.C. § 2423(c) (2005).
- 5 Ibid.See id. at 3.
- 6See id. at 2.
- 7 See id. at 1.
- 8 See United States v. Clark, 435 F3d 1100 (9th Cir. 2006).
- 9 See id. at 5 (quoting Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).
- 10 See id. at 5 (quoting Pierce County v. Guillen, 537 U.S. 129, 145 (2003).
- 11 See Alliance to End Slavery & Trafficking (“ATEST”), Letter to Solicitor General and United States Attorney for the Central District of California, September 4, 2018.
- 12 See Pepe at 11 (quoting Callejas v. McMahon, 750 F.2d 729, 731 (9th Cir. 1984)).