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Congress did not exceed its powers when it passed a law making it a crime to travel overseas for the purpose of engaging in sex with minors, a federal judge has ruled. In his 11-page opinion in United States v. Bianchi, U.S. District Judge Bruce W. Kauffman rejected Mark Bianchi’s arguments that his indictment on charges of traveling to Eastern Europe and Cuba to have sex with 13 foreign boys should be dismissed. Bianchi’s lawyer, prominent California criminal defense attorney Mark Geragos, argued that substantive due process requires the government to show a “nexus” between Bianchi’s conduct and the United States to ensure that extraterritorial application of the charged statutes “would not be arbitrary or fundamentally unfair.” But Kauffman found that Geragos was relying on a line of cases from the 9th U.S. Circuit Court of Appeals that has been explicitly rejected by the 3rd Circuit. In United States v. Martinez-Hidalgo, Kauffman said, the 3rd Circuit declined to follow the 9th Circuit’s 1990 decision in United States v. Davis, saying “we see nothing fundamentally unfair in applying … a criminal law extraterritorially without regard for a nexus between a defendant’s conduct and the United States.” Instead, Kauffman said, the 3rd Circuit “held open the possibility” that a nexus may be required to criminalize extraterritorial conduct if the conduct were “generally lawful” in most other countries. “But that is not the situation here,” Kauffman wrote. “The sexual abuse of children is universally condemned.” Geragos also complained that a fair trial in the United States is impossible because most of the government’s witnesses hail from Moldova, and that once trial is under way, Bianchi’s defense team will have no opportunity to collect rebuttal evidence or to find rebuttal witnesses. Kauffman disagreed, saying the court has already ordered prosecutors to take “extraordinary measures” to ensure that Bianchi has the opportunity to mount an affirmative defense. “Recognizing the unique circumstances of this case, the court has ordered production of all Jencks Act material , in addition to any other discovery, months in advance of trial,” Kauffman wrote. Prosecutors have also produced the entire Moldavian police and court file from the investigation of Bianchi and his alleged co-conspirator, Ion Gusin, who was convicted in Moldova and sentenced to 20 years in prison for serving as Bianchi’s translator and helping him to find young boys for sex, Kauffman noted. “These documents provide defendant with a detailed roadmap of the government’s case,” Kauffman wrote. Kauffman has scheduled the case for trial beginning July 10. In his motion for dismissal, Geragos also argued that the two federal statutes under which Bianchi was charged violate his right of substantive due process because the laws criminalize nothing more than a preparatory act without any requirement that the actual substantive crime be committed. But Kauffman said that argument, too, has been rejected by the 3rd Circuit. In United States v. Tykarksy, Kauffman said, the appellate court explained that the laws do not prohibit “thinking immoral thoughts while traveling” because the statute explicitly states that the travel must be for “the purpose of engaging in any illicit sexual conduct.” By including the phrase “for the purpose of” engaging in illicit sexual activity, the Tykarksy court said, Congress sufficiently narrowed the scope of the law to “exclude mere preparation, thought or fantasy.” Kauffman found that the second statute was also narrowed in scope with the phrase “knowingly induce, entice, or coerce” a minor to engage in illicit sex. Geragos also complained that Bianchi’s defense will be severely hampered by his inability to compel the attendance of witnesses from Moldova and that a U.S. court has no authority to do so. But Kauffman said that difficulty does not rise to the level of a constitutional violation. “The possibility that there may be material defense witnesses in foreign countries who cannot be reached by the subpoena power of the court, however, does not render the indictment unconstitutional,” Kauffman wrote. Convictions are not unconstitutional under the Sixth Amendment, Kauffman said, even though the U.S. courts lack power to subpoena witnesses, other than American citizens, from foreign countries. If the law were otherwise, Kauffman said, “any defendant could forestall trial simply by specifying that a certain person living where he could not be forced to come to this country was required as a witness in his favor.” Finally, Geragos argued that both of the statutes Bianchi was indicted under are unconstitutional because Congress exceeded its power to regulate foreign commerce. Kauffman rejected that argument, too, saying that while the U.S. Supreme Court has recently imposed strict limits on congressional power to regulate interstate commerce, it has not done the same in the area of foreign commerce. “Where the Supreme Court has limited Congress’ authority to regulate commerce, the fundamental concern has been with protecting the sovereignty of the states against the federal government,” Kauffman wrote. By contrast, Kauffman said, when the justices have considered the Foreign Commerce Clause, they have generally “emphasized Congress’ broad and plenary authority.” Kauffman held that the two statutes are “a constitutional exercise of that power” because they apply “only to American citizens or permanent residents who travel in foreign commerce.” (Copies of the 11-page opinion in United States v. Bianchi, PICS No. 07-0805, are available from The Legal Intelligencer. Please refer to page 12 for ordering information.)

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