Dissent by Chief Judge Thomas
NGUYEN, Circuit Judge:
Michael Pepe, a U.S. citizen, drugged and raped seven children in Cambodia, where he claims to have resided for several years. Pepe was convicted of violating 18 U.S.C. § 2423(c), engaging in illicit sexual conduct in foreign places, and sentenced to prison for 210 years. The version of the statute under which he was convicted applied to a U.S. citizen who travels in foreign commerce, and engages in any illicit sexual conduct with another person. 18 U.S.C. § 2423(c) (2005). Pepes illicit sexual conduct occurred between three and nine months after his return to Cambodia following a brief trip to the United States to visit family and attend his daughters wedding. Pepe contends that the statutory language didnt encompass his conduct because, as a resident of Cambodia, he had ceased travel[ing] in foreign commerce.
Pepes contention runs up against our previous conclusion that the statute does not require that the conduct occur while traveling in foreign commerce. United States v. Clark , 435 F.3d 1100, 1107 (9th Cir. 2006). Focusing on the word and, which connected the travel with the conduct, we construed § 2423(c) to include individuals who, like Pepe, at some point traveled in foreign commerce and thereafter engaged in any illicit sexual conduct. See id .
However, Congress subsequently amended the statute to add a new basis for criminal liability. The statute now applies to a U.S. citizen who travels in foreign commerce or resides, either temporarily or permanently, in a foreign country , and engages in any illicit sexual conduct with another person. 18 U.S.C. § 2423(c) (2018) (emphasis added). From the statutory amendment, as well as the accompanying legislative history, it is evident that § 2423(c) was previously inapplicable to U.S. citizens living abroad unless they were traveling-meaning something more than being in transit-when they had illicit sex. Because this subsequent Congressional pronouncement is clearly irreconcilable with our prior construction of the statute, we are not bound by our reasoning in Clark .
The government appears to contest that Pepe relocated to Cambodia, but this factual dispute was not resolved below because the district court applied Clark . However, if Pepe resided in Cambodia and was no longer traveling, then the prior version of § 2423(c) does not apply to him. We therefore vacate his convictions and sentence and remand for further proceedings.
I.
Pepe, a 49-year-old U.S. citizen, left the United States for Cambodia in March 2003 on a one-way ticket. He rented a house, obtained a Cambodian drivers license, bought a car, and secured employment teaching management at a university in Phnom Penh. Pepe married a Cambodian citizen, Bith Chanry, and the two of them lived together for a while. He also became involved in community activities, such as the Phnom Penh Veterans of Foreign Wars Post and the local Catholic church.
Pepe occasionally traveled to the United States to visit his family. His last such trip prior to his arrest was to Los Angeles for a week in August 2005 to attend his daughters wedding. Nearly a year after his return to Cambodia, in June 2006, local authorities took him into custody and searched his home based on information from American officials that a girl had reported him sexually abusing her. He spent seven months in a Cambodian prison and then was handed over to U.S. authorities, who brought him to the United States.
Pepe was indicted on seven counts of engaging in illicit sexual conduct in foreign places between three and nine months following his return to Cambodia from the wedding. He moved to dismiss the indictment and suppress evidence taken from his home and examined in Singapore and the United States. The district court denied each of these motions.
At trial, the prosecution presented evidence that Pepe met a prostitute, Basang, at Sharkey Bar in Phnom Penh about five years before his arrest. Pepe paid Basang for sex several times, but she worked for him primarily by procuring girls around 10-12 years old for sex. Basang gave the girls families money from Pepe in exchange. Pepe paid Basangs rent and gave her $300 to help pay for her parents gravestones. Basang also translated for him-the girls and their mothers spoke little or no English, and he could not communicate in the languages that they spoke, Khmer and Vietnamese.
The girls, six of whom testified at trial, lived with Pepe at various times for a few days to several weeks. Basang taught the girls to massage and orally copulate Pepe while he and they were naked. After the girls did this, Pepe would give them a dollar bill. In addition, he forcibly raped each of the girls at least once; some, three times or more. Often, when raping a girl for the first time, Pepe or Basang would give the girl a sedative and Pepe would tie her legs to his bed with a rope. If the girl screamed when she awoke, he would slap her, tape her mouth, or cover her head with a pillow.
The jury convicted Pepe on all seven counts. The district court sentenced him to consecutive 30-year sentences for a total of 210 years in prison. In addition, the court ordered him to pay $247,213 in restitution to two Cambodian non-governmental organizations, Hagar and Agape, on the victims behalf.
II.
The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
Whether 18 U.S.C. § 2423(c) applies to U.S. citizens who reside in-as opposed to just travel to-a foreign country is a question of law which we review de novo. See United States v. Sheldon , 755 F.3d 1047, 1049 (9th Cir. 2014).
III.
A.
Section 2423 originated in the White-Slave Traffic (Mann) Act, ch. 395, § 3, 36 Stat. 825 (1910). For decades, the statute covered only situations in which the minor victim of certain sex crimes was transported across state or federal borders. Whether the perpetrator accompanied the victim in the travel or arranged the transportation from afar was irrelevant. See United States v. Barrington , 806 F.2d 529, 534 (5th Cir. 1986) (holding that perpetrators own travel, distinct from her causing others to travel, was unnecessary for § 2423 conviction); cf. United States v. Jones , 909 F.2d 533, 540 (D.C. Cir. 1990) ([O]ne need not physically carry or accompany a person interstate in order to transport her ....).
To address the situation where the perpetrator traveled but the victim stayed put, Congress added the offense currently codified in § 2423(b) to punish persons who travel in interstate or foreign commerce for the purpose of engaging in [a prohibited] sexual act. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 160001(g), 108 Stat. 1796. Proving that foreign travelers intended to engage in sexual misconduct with children at the time they left the United States turned out to be difficult.
The 1994 law resulted in only a handful of such convictions nationwide, see Karen D. Breckenridge, Comment, Justice Beyond Borders: A Comparison of Australian and U.S. Child-Sex Tourism Laws , 13 P. Rim L. & Policy J. 405, 415 (2004), prompting Congress to amend the statute again less than a decade later. See Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub. L. No. 108-21, § 105, 117 Stat. 650.
The offense at issue here, § 2423(c), was added in the PROTECT Act. Congress purposefully omitted an intent element in order to facilitate prosecutions. See H.R. Conf. Rep. 108-66, at 51 (2002) (amending § 2423 to address a number of problems related to persons who travel to foreign countries and engage in illicit sexual relations with minors, including the need to prove that the defendant traveled with the intent to engage in the illegal activity).
As originally enacted, the statute applied to [a]ny United States citizen ... who travels in foreign commerce, and engages in any illicit sexual conduct with another person. 18 U.S.C. § 2423(c) (2003). That version of the statute was in effect when Pepe engaged in illicit sexual conduct. Its also the version that was at issue in Clark , where we considered its interpretation and constitutionality under similar facts.
B.
Michael Clark, a U.S. citizen and military veteran, resided primarily in Cambodia for approximately five years before being extradited. Clark , 435 F.3d at 1103. He took annual trips back to the United States, where he maintained real estate, bank accounts, investment accounts, a drivers license, and a mailing address. Id. After one such trip to visit family, he flew back to Cambodia via third countries. Id. Within two months of his return, Clark came under suspicion when street kids reported to social workers that he was molesting young boys on a regular basis. Id. The Cambodian National Police (CNP) arrested Clark, charged him with debauchery, and ultimately turned him over to U.S. authorities for prosecution here. Id. He pled guilty to violating § 2423(c).
On appeal, Clark argued that the statute was an unconstitutional exercise of Congressional power but could be saved from constitutional scrutiny by interpreting it to require that the illicit sexual conduct take place while the defendant is literally still traveling. Clark , 435 F.3d at 1107. We disagreed. Observing that § 2423 has two key determinations-whether the defendant travels in foreign commerce and engages in any illicit sexual conduct-we concluded that the statute does not require that the conduct occur while traveling in foreign commerce. Clark , 435 F.3d at 1105, 1107 ; see United States v. Jackson , 480 F.3d 1014, 1017 (9th Cir. 2007) (In light of Clark , an individual can violate § 2423(c) even if he stops traveling before he engages in illicit sex.).
Although we viewed the statute as unambiguous in this respect, Clark , 435 F.3d at 1107, our focus was on the word and, which connected the travel with the conduct. We construed the statute to mean: travels in foreign commerce and thereafter engages in any illicit sexual conduct. We thus saw no plausible reading of the statute that would exclude its application to Clarks conduct because of [the] limited gap of two months between his most recent transit between the United States and Cambodia and his arrest. Id. We speculated that there might be a constitutional problem with a longer gap but had no reason to consider the issue. Id. at 1107 n.11.
Acknowledging a different interpretive possibility in which and means and concurrently, we dismissed it as leading to absurd results. As a practical matter, we thought it non-sensical that Congress would have limited § 2423(c)s scope to the unlikely scenario where the abuse occurs while the perpetrator is literally en route. Id. at 1107. Such a reading, we explained, would eviscerate § 2423(c) by severely limiting its use to only those people who commit the offense while physically onboard an international flight, cruise, or other mode of transportation. Id.
Implicit in this apparent absurdity, however, was Clark s assumption that the meaning of travels was limited to transits. One travels in that sense by mov[ing] ... from one place to another. Travel , Merriam-Webster, https://www.merriam-webster.com/dictionary/travel (last visited Nov. 8, 2017). But travel could also have the broader meaning of go[ing] on ... a trip or tour. Id. As we pointed out the following year, a person who is temporarily in France or Thailand-on vacation, for example, or on a business trip-but fully intends to return to a permanent residence in the United States is traveling as long as he remains in the foreign city .... Jackson , 480 F.3d at 1023.
Employing this broader understanding of travels, the statutory language linking travel and illicit sexual conduct could mean, consistent with the goal of combatting sex tourism, that the two elements must occur at the same time. So interpreted, § 2423(c) would apply to sex tourists who fly to foreign countries for a finite time, have illicit sex, and then return to the United States. But it would not apply to Americans who have illicit sex while residing in the foreign country, because they are not traveling. The sex tourists stay in the foreign country need not be short or have a set end date, but it must be expected to end. In other words, the stay must be temporary. See United States v. Schmidt , 845 F.3d 153 (4th Cir. 2017) (construing the U.S. citizens travels to last eighteen months where he didnt resettle in the foreign country during that time), cert. denied , --- U.S. ----, 138 S.Ct. 234, 199 L.Ed.2d 152 (2017).
We thus see two plausible interpretations of the statute. In one, travels is construed broadly while and is construed narrowly to require that the travel and the illicit sexual conduct occur at the same time. In the other-the one adopted in Clark and rejected by the Fourth Circuit in Schmidt -its just the opposite. Travel under this view end[s] when the citizen arrives in a foreign country. Jackson , 480 F.3d at 1023. In this construction, as we explained in Clark , the connector and necessarily creates an open-ended temporal relationship between the travel and the sexual misconduct in order to save the statute from irrelevance.
C.
Normally, Clark s interpretation of the statute would bind subsequent panels, including ours. See, e.g. , United States v. Parga-Rosas , 238 F.3d 1209, 1212 (9th Cir. 2001). But theres an important exception to this principle. We have a rule that where the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority, a three-judge panel should consider itself bound by the later and controlling authority, and should reject the prior circuit opinion as having been effectively overruled. Miller v. Gammie , 335 F.3d 889, 893 (9th Cir. 2003) (en banc).
The intervening higher authority is generally the federal or state court of last resort or an en banc panel of this court. However, Congressional amendments to a statute can also constitute intervening authority for the purposes of our rule. Landreth v. Commr , 859 F.2d 643, 648 (9th Cir. 1988) ; see United States v. McNeil , 362 F.3d 570, 574 (9th Cir. 2004) ([W]hen Congress amends statutes, our decisions that rely on the older versions of the statutes must be reevaluated in light of the amended statute. (citing Zazueta-Carrillo v. Ashcroft , 322 F.3d 1166, 1172 (9th Cir. 2003) ) ). In particular, the rule is applicable in cases involving statutory interpretation where Congress has retroactively clarified the meaning of the statute at issue. Landreth , 859 F.2d at 648. If our case law interpreting a statute is clearly irreconcilable with the text and history of subsequent legislation, we are not bound by the decisions of prior panels. See United States v. Gonzalez-Torres , 309 F.3d 594, 599 (9th Cir. 2002) (citing United States v. Washington , 872 F.2d 874, 880 (9th Cir. 1989) ). We are dealing with such a case here.
In 2013, Congress amended § 2423(c) as part of the Violence Against Women Reauthorization Act, Pub. L. 113-4, § 1211(b) (2013). The statute now penalizes a U.S. citizen who travels in foreign commerce or resides, either temporarily or permanently, in a foreign country , and engages in any illicit sexual conduct. 18 U.S.C. § 2423(c) (emphasis added).
This change to the statute makes no sense as we interpreted the original version in Clark . When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect. Pierce County v. Guillen , 537 U.S. 129, 145, 123 S.Ct. 720, 154 L.Ed.2d 610 (2003). Yet the amendment to § 2423(c) would have virtually no effect if the illicit sexual conduct can occur anytime after the travel. Almost every U.S. expatriate travels in foreign commerce before residing overseas. Under Clark s analysis, the only U.S. citizens who could fall outside the reach of § 2423(c) if they engage in illicit sexual conduct abroad are those who never set foot in the United States. Clark , 435 F.3d at 1120 (Ferguson, J., dissenting).
Indeed, that is exactly the governments position. It argues that the amendment was intended to close the loophole of the prior version of the statute that did not criminalize the illicit sexual conduct committed by Americans residing abroad who had not traveled in foreign commerce. Even if that were plausible in the abstract, it is incongruent with the amendments text.
The offense has always contained two elements: travel in foreign commerce, and the commission of illicit sexual conduct. The amendment concerned the first element, which can now be satisfied in two ways. One either travels in foreign commerce or resides ... in a foreign country. 18 U.S.C. § 2423(c).
The word and, which connects the first element with the second, now modifies both travels and resides. With respect to travels, we interpreted and sequentially in Clark -one travels, completes the travel by arriving in the foreign country, and afterwards engages in illicit sexual conduct. That interpretation of and makes no sense with respect to resides. The statute obviously was not meant to apply to someone who resides, perhaps temporarily, in a foreign country and afterwards engages in illicit sexual conduct. Rather, in that context and means and concurrently-one engages in the illicit sexual conduct while residing in the foreign country. By adhering to our construction in Clark , [t]he word [and] would have two different meanings at once .... It would be rather like saying He filled and kicked the bucket to mean He filled the bucket and died. Grotesque. District of Columbia v. Heller , 554 U.S. 570, 587, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).
The governments explanation for the amendment is also flatly contradicted by the legislative history. See Landreth , 859 F.2d at 648 (looking to both the text of the statutory changes and Congressional statements of purpose); cf. Red Lion Broad. Co. v. FCC , 395 U.S. 367, 380-81, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969) (Subsequent legislation declaring the intent of an earlier statute is entitled to great weight in statutory construction.). The amendment was adopted nearly verbatim from a proposal by the Alliance to End Slavery & Trafficking (ATEST), a lobbying organization comprised of various human rights groups. ATEST advocated for the change out of concern that the original law only allows the U.S. government to pursue criminal charges against U.S. citizens ... who exploit children while traveling in foreign commerce. Due to the use and intent of the word travel, this has been interpreted to mean a brief stay and not include resettlement or intent to stay. ATEST, Recommendations for the Reauthorization of the Trafficking Victims Protection Act of 2000 , at 31 (2011), http://www.castla.org/assets/files/2013_TVPRA_Summary.doc (last visited Oct. 25, 2017); see Best Practices and Next Steps: A New Decade in the Fight Against Human Trafficking: Hearing Before the Subcomm. on Afr., Glob. Health, & Human Rights of the H. Comm. on Foreign Affairs , 112th Cong. 139 (2011) (material submitted by David Abramowitz, Director of Policy and Government Relations, Humanity United) (recommending that Congress [c]riminalize the exploitation of children by U.S. citizens living overseas).
Congress shared this understanding of the law, citing the amendment to § 2423(c) as an example of the significant changes it was making to fight human trafficking crimes. S. Rep. 112-96, at 8 (2011). The Senate Report explained that child exploitation laws were being strengthened to hold criminally liable those U.S. citizens ... residing outside of the United States who engage in illicit sexual conduct with a minor. Current law only reaches U.S. citizens ... who travel abroad in foreign commerce. Id. If the design of this legislation was to reach only those U.S. citizens living abroad and committing illicit sexual conduct who had never stepped foot on U.S. soil, it could hardly be described as a significant change to existing law.
We thus conclude that Clark s construction of § 2423(c) is clearly irreconcilable with the plain text of its subsequent amendment as well as Congresss stated reason for the change. The statute originally did not target all U.S. citizens who traveled overseas and committed sex crimes with minors-only those who resided in the United States. Because this ensnared only sex tourists who committed their sex crimes while traveling in the foreign country, Congress amended the statute to cover even U.S. citizens who chose to relocate, either temporarily or permanently, overseas.
We do not depart from circuit precedent lightly. When intervening higher authority casts doubt on our prior statutory interpretation, we must attempt to reconcile the two, reserving for an en banc panel the prerogative to overrule imprudent but still tenable decisions. See Ctr. for Auto Safety v. Chrysler Group, LLC , 809 F.3d 1092, 1106 (9th Cir. 2016). If it were possible, consistent with Clark , we would read the amendment to § 2423(c) as clarifying rather than enlarging its scope. But even the government agrees that Congress expanded criminal liability when it amended the statute. Theres no interpretation of the current statutory text that is consistent both internally and with Clark .
Departing from precedent might still give us pause if Clark had considered and rejected the interpretation we adopt today. However, Clark s analysis focused on the statutes constitutionality. In its brief discussion of the statutes meaning, Clark weighed only whether and should be construed narrowly or broadly. It didnt consider this question in the context of whether travels could be read more expansively. Just as cases are not precedential for propositions not considered, see United States v. Ramos-Medina , 706 F.3d 932, 938 (9th Cir. 2013), Clark does not foreclose an interpretation of the statute that it didnt consider when subsequent Congressional action renders that interpretation the only one possible.
D.
Aside from what the 2013 amendment revealed about Congressional intent, there are good reasons to interpret the former statute as we do. We normally resolve ambiguity concerning the ambit of criminal statutes ... in favor of lenity. Jones v. United States , 529 U.S. 848, 858, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000) (quoting Rewis v. United States , 401 U.S. 808, 812, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971) ). This canon of construction serves the policy of giving fair warning ... to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear. United States v. Bass , 404 U.S. 336, 348, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) (quoting McBoyle v. United States , 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931) ). In addition, because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. Id.
By dispensing with the intent element, § 2423(c) marked a dramatic departure from existing law in order to facilitate convictions. Strict liability is generally imposed for so-called public welfare offenses that are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Morissette v. United States , 342 U.S. 246, 255, 72 S.Ct. 240, 96 L.Ed. 288 (1952). Such offenses rarely involve moral condemnation by the community; they tend to carry minor penalties, with conviction resulting in no grave harm to an offenders reputation.
Id. at 256, 72 S.Ct. 240. Section 2423(c), in contrast, threatens an offender with up to 30 years in prison and lifetime registration as a sex offender. See 34 U.S.C. § 20913(a). Application of the rule of lenity takes on heightened importance when an offense requires no mens rea and its potential penalty is so severe.
Another venerable canon of construction instructs us that ambiguous statutory language [should] be construed to avoid serious constitutional doubts. FCC v. Fox TV Stations, Inc. , 556 U.S. 502, 516, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) (citing Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council , 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988) ). Congress ostensibly enacted § 2423(c) pursuant to its authority under the Foreign Commerce Clause. See Clark , 435 F.3d at 1104. The government argues that the Necessary and Proper Clause was another basis for the legislation because Congress needed to implement an international convention on child trafficking to which the United States was a signatory-the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, G.A. Res. 54/263, U.N. Doc. A/54/263 (May 25, 2000). Pepe disputes that either Clause is a valid source of Congressional authority.
Clark acknowledged the possibility that a longer gap between the travel and the commercial sex act could trigger constitutional or other concerns. 435 F.3d at 1119 n.11. With no statutory limitation on the temporal gap we all but guarantee a stream of litigation over the statutes constitutionality. See Naomi Harlin Goodno, When the Commerce Clause Goes International: A Proposed Legal Framework for the Foreign Commerce Clause , 65 Fla. L. Rev. 1139, 1210-11 (2013) ([E]ach scenario [under § 2423(c) ] would have to be considered on a case-by-case basis to determine if Congress is acting within its power under the Foreign Commerce Clause.). In any given case, defense counsel would be remiss not to attempt to distinguish their client from Michael Clark due to a longer gap between the travel and the illicit sexual conduct or some other factor that makes the connection with foreign commerce more attenuated.
Nor are Pepes constitutional arguments trivial. Cases involving the reach of the Foreign Commerce Clause vis-[à]-vis congressional authority to regulate our citizens conduct abroad are few and far between. Clark , 435 F.3d at 1102. There is strong textual, structural, and historical evidence that Congress has less-not more-power to impose U.S. law inside foreign nations than inside the several states under the Commerce Clause. Anthony J. Colangelo, The Foreign Commerce Clause , 96 Va. L. Rev. 949, 1003 (2010) ; see also United States v. Al-Maliki , 787 F.3d 784, 791 (6th Cir. 2015) (doubt[ing] that the Foreign Commerce Clause include[s] the power to punish a citizens noncommercial conduct while the citizen resides in a foreign nation). And the governments argument under the Necessary and Proper Clause rests on a 1920 case that has been sharply criticized in recent years. While the current version of § 2423(c) will inevitably force us to grapple with the outer limits of Congresss power to regulate the conduct of U.S. citizens residing abroad, we leave that question for another day.
Finally, our interpretation brings us in line with the several other circuits that read travels expansively. See Schmidt , 845 F.3d at 157 (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. (citing Jackson , 480 F.3d at 1022 ) ); United States v. McGuire , 627 F.3d 622, 624 (7th Cir. 2010) ( Section 2423(c) was added to punish persons who travel in foreign commerce and have sex with a minor in the course of the trip regardless of what the defendant intended when he set out on it.); United States v. Frank , 599 F.3d 1221, 1239-40 (11th Cir. 2010) (finding no plain error in proposition that § 2423(c) allows multiple sentences for making a single trip during which the defendant engaged in illicit sexual conduct with multiple minors). But see United States v. Pendleton , 658 F.3d 299, 309 (3d Cir. 2011) ([U]nder § 2423(c), a persons travel through foreign commerce continues to provide a link to his illicit sexual conduct long after his travel is complete.).
E.
The dissent responds to a straw argument by misstating Pepes position both here and in the district court as one of only temporary residency in Cambodia. According to the dissent, Pepe did not rest his statutory argument on his alleged intent to resettle before the district court and [f]or the first time on appeal ... argues that his temporary residency ... took his conduct out of the statutory reach of § 2423(c). Dissent at 692 & n.1. To the contrary, throughout the proceedings Pepe has maintained that he was indeed a resident of Cambodia who had demonstrated a permanent intent to resettle in that country. In moving to dismiss the indictment, Pepe represented to the district court that he had permanently relocated to Cambodia in 2003, more than two years before the conduct at issue. He argued that the statute in no way indicates that its intended ... to target people who were already residing in a foreign country and had demonstrated ... no intent to return.
The dissent acknowledges that prior to the 2013 amendment, § 2423(c)likely did not apply to citizens who had permanently resettled in a foreign country.
Dissent at 694. Given Pepes claim that he was residing in Cambodia on a permanent basis, we fail to see the relevance of the dissents contention that the statute has always applied to persons residing abroad temporarily. If the statute did not apply to U.S. citizens permanently living overseas, Pepes conviction cannot stand.
The dissents only response is that Pepe should have raised his statutory argument in the district court. See Dissent at 692 n.1, 694. In fact, he did. The district court understood Pepe to argue that he was no longer traveling at the time he allegedly engaged in illicit sexual conduct, because he permanently resided in Cambodia. The district court rejected this argument on the ground that Pepe did not have to be traveling at the time he engaged in illicit sexual conduct in order to be liable under § 2423(c).
But even if Pepe didnt present his precise statutory argument to the district court, there was no reason for him to do so. Under Clark s then-binding interpretation of the statutory language, it was a nonstarter. Michael Clarks argument that he had permanently resettled in Cambodia was rejected as irrelevant to the statutory definition. See United States v. Clark , 315 F.Supp.2d 1127, 1134 & n.2 (W.D. Wash. 2004). We agreed with the district court that carving out an exception for permanent residents would add elements to the crime ... that simply do not exist in the statute. Clark , 435 F.3d at 1107 (quoting Clark , 315 F.Supp.2d at 1130 ).
The dissent concedes that Pepes statutory theory was not viable under applicable case law at the time. Dissent at 695. Indeed, it wasnt until five years after Pepes conviction that Congress passed the statutory amendment giving rise to his interpretive challenge. A defendant need not raise a futile defense at trial in order to preserve it for appeal. See United States v. Wilbur , 674 F.3d 1160, 1177 (9th Cir. 2012) (citing United States v. Manning , 56 F.3d 1188, 1195 (9th Cir. 1995) ).
Moreover, the government doesnt assert that Pepe forfeited his statutory claim. By responding to the merits of Pepes contentions, the government forfeited any forfeiture argument. See United States v. Lewis , 787 F.2d 1318, 1323 n.6 (9th Cir. 1986) ; see also Tibble v. Edison Intl , 843 F.3d 1187, 1196 (9th Cir. 2016) (en banc).
We do not lightly overturn Pepes convictions. But we cannot uphold his 210-year sentence under a statute that he may not have violated simply because his reprehensible conduct harmed vulnerable children. Due process requires proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re Winship , 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The government has not met this burden with respect to the travel element.
IV.
We hold that a conviction under § 2423(c), when based on a defendants travel in foreign commerce, requires proof that the illicit sexual conduct occurred while the defendant was traveling. If, as Pepe maintains, he relocated to Cambodia in March 2003, then the statute does not apply to him.
The government appears to dispute Pepes claim that he had resettled in Cambodia, citing among other things Pepes post-arrest letters to the U.S. ambassador and various family members expressing his intent to register his Cambodian marriage and return to the United States with his wife. Because the jury was not properly instructed on the travel element, we vacate Pepes convictions and sentence. On remand, should the government elect to retry him, it will need to prove that he was still traveling when he committed illicit sexual conduct.
VACATED and REMANDED.
The legal status of their relationship is unclear. Prior to their wedding, Pepe and Bith signed a declaration stating that the ceremony was for satisfying Bith family considerations and not to have any legal standing under Cambodian law, American law or international law. After his arrest, Pepe wrote to the U.S. Ambassador to Cambodia, requesting assistance in registering his marriage. Around the same time, he wrote to his family in the United States, acknowledging years of on again / off again problems between himself and Bith and stating that they are still married.
Basang was deposed at the U.S. embassy in Cambodia while serving a 27-year sentence for trafficking and pimping. Her deposition testimony was played for the jury.
Pepe doesnt dispute that his conduct fell within the definition of illicit sexual conduct, which means either (1) certain defined sex acts with a minor that, if performed on U.S. soil, would violate specified sexual abuse laws; or (2) any commercial sex act with a minor. 18 U.S.C. § 2423(f). A commercial sex act is any sex act, on account of which anything of value is given to or received by any person. 18 U.S.C. § 1591(c)(1). The crimes comprising the definitions first prong share the common characteristic that there is no economic component, i.e. , that they are non-commercial sex acts. Clark , 435 F.3d at 1105. The jury found Pepes conduct fell within both prongs.
While § 2423(c) doesnt itself require a mens rea, illicit sexual conduct can be established through offenses that do. See 18 U.S.C. § 2423(f)(1). However, illicit sexual conduct can also be established through a commercial sex act, id. § 1591, or production of child pornography, id. § 2256(8), neither of which requires a particular state of mind. See id. § 2423(f)(2)-(3). Moreover, the requisite mens rea, when applicable, is minimal. Statutory rape, for example, requires proof only that the defendant knowingly engaged in a sexual act with another person. Id. § 2243(a). The government doesnt need to prove knowledge of the victims age, though reasonable mistake about it is a defense. See id. § 2243(c)(1), (d).
A person such as Pepe who commits heinous acts over a long period of time obviously has an intent to violate the law. But the statute would apply equally to a 19-year-old who has a romantic and mutually desired sexual relationship with a 15-year-old, see 18 U.S.C. §§ 2243(a), 2423(f)(1), even if the relationship is legal in both the 19-year-olds home state and the foreign country, see, e.g. , Colo. Rev. Stat. § 18-3-402(e) ; Code pénal art. 227-25 (Fr.). We cant invoke the rule of lenity selectively for sympathetic defendants.
In Missouri v. Holland , the Supreme Court held that [i]f [a] treaty is valid there can be no dispute about the validity of the [implementing] statute under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government. 252 U.S. 416, 432, 40 S.Ct. 382, 64 L.Ed. 641 (1920). Nearly a century later, the Court interpreted a criminal statute narrowly to avoid reconsidering this precedent. See Bond v. United States , --- U.S. ----, 134 S.Ct. 2077, 2085-87, 189 L.Ed.2d 1 (2014). Three Justices would have reached the constitutional question and struck down the statute as exceeding Congresss authority. See id. at 2100 (Scalia, J., concurring) ([T]he possibilities of what the Federal Government may accomplish, with the right treaty in hand, are endless and hardly farfetched.); id. at 2109-10 (Thomas, J., concurring) (criticizing Holland for taking an improperly broad view of the Necessary and Proper Clause in light of the original understanding [of] the Treaty Power); see also United States v. Bollinger , 798 F.3d 201, 221 (4th Cir. 2015) (Because Congress may enact legislation regulating domestic affairs pursuant to international treaties, courts should tread carefully in expanding that power. (citing Bond , 134 S.Ct. at 2087-88 ) ); Nicholas Quinn Rosenkranz, Executing the Treaty Power , 118 Harv. L. Rev. 1867, 1869 (2005) (arguing that Holland allows treaties to increase the legislative power virtually without limit).