Saturday, January 22nd, 2011

Belgian Awful

United States v. Weingarten, No. 09-1043-cr (2d Cir. January 18, 2011) (Cabranes, Wesley, Livingston, CJJ)

Defendant Weingarten, who sexually abused one of his daughters for years, successfully challenged the applicability of 18 U.S.C. § 2423(b), which makes it a crime to travel in “foreign commerce” with the intent to engage in sexual activity that would be illegal in the United States, to one of the counts of conviction.


Weingarten, a United States citizen, moved his family to Antwerp, Belgium, in 1984. Starting in about 1991, he began sexually abusing his oldest daughter, who was then nine or ten. The abuse went on for years – the daughter moved for England for a time – but when she returned to Belgium it resumed. In 1997, Weingarten moved the family to Israel, but the abuse continued. He also brought her to Brooklyn, to visit his father, and abused her there, too.

Weingarten was charged years later, when the abuse came to the attention of the FBI. Four counts charged him with traveling in or transporting the daughter in foreign commerce with the intent to engage in unlawful sexual activity. These related to the trips between Brooklyn and Belgium. But one count charged him with a traveling in foreign commerce with respect to his travel between Belgium and Israel when he moved his family in 1997.

The Circuit’s Ruling

The court agreed with Weingarten the phrase “travel[] in foreign commerce” in § 2423(b) did not apply to travel between two foreign countries when the conduct did not involve any territorial nexus with the United States. It accordingly reversed Weingarten’s conviction – and the associated ten-year consecutive sentence – on that count.

The court first held that § 2423(b) can apply to conduct occurring outside the territorial jurisdiction of the United States. Although there is a presumption against extraterritoriality, this section “manifestly expresses Congress’ concern with conduct that occurs overseas.” The law prohibits traveling with the intent to engage in sexual activity that would be illegal if it occurred in the United States regardless of whether the planned activity is to take place outside the United States.

Nevertheless, however, the statute does not cover travel between foreign nations when the conduct involves no territorial nexus to the United States. The statute’s language – “travel[] in foreign commerce” – is ambiguous. The statute that defines the phrase “foreign commerce,” 18 U.S.C. § 10 merely says that it “includes commerce with a foreign country.” While this definition might include something more than commerce between the United States and a foreign country, the circuit concluded that it did not. The current § 10 was a recodification of a prior law that specifically limited the definition to transportation between the United States and a foreign country, and there was insufficient evidence that the recodification was “meant to effectuate a substantive change.”

Moreover, the phrase has not been extended to activity exclusively occurring between foreign countries in other statutes that use it, such as the kidnapping statute, 18 U.S.C. § 1201. It would be “anomalous” to construe it differently in § 2423(b).

The court also noted that the government could point to “any precedent suggesting” a different outcome. Even the relevant pattern jury instructions limited the definition of “foreign commerce” to commerce involving “some nexus to the United States.”

Finally, the court recognized that construing the statute in this manner would “avoid[] the necessity of addressing whether such an exercise of Congressional power would comport with the Constitution.”

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