Testing Congress' foreign commerce and treaty powers: a new, (un)constitutional tool for combating American child sex tourists?

AuthorVan Houten, Gregory


On February 24, 2005, Anthony Mark Bianchi--a wealthy, forty-two-year-old man from North Wildwood, New Jersey--boarded an Air France flight at Philadelphia International Airport destined for Romania. (1) Once Bianchi landed, he traveled to several remote villages in northwest Romania, including Ieud, where he ultimately rented a place to stay. (2) While in Ieud, Bianchi became acquainted with several families that resided in the small village. (3) However, Bianchi grew fond of one particular family, the poorest family who lived there. (4) This family, the family of G.B., had little, but they did have exactly what Bianchi wanted: a young and vulnerable twelve-year-old boy known as G.B. (5)

Bianchi flattered G.B.'s family and garnered their trust by showering them with money and gifts, (6) such as flour, sugar, and oil. (7) He even promised to buy them a television set. (8) In the eyes of G.B's family, Bianchi was an American miracle.

Once he had developed a relationship with G.B.'s family, Bianchi asked them if G.B. could stay with him overnight. (9) The family agreed, and G.B. went to stay with Bianchi. (10) The evening began with a game of Connect Four (11) and ended with Bianchi and the twelve year-old G.B. sleeping in the same bed. (12)

The next morning, Bianchi's landlord in Ieud confronted him after hearing that Bianchi had slept in the same bed as a small boy. (13) In response, Bianchi offered to pay the landlord double. (14) The landlord rejected his offer and Bianchi left the village. (15) Bianchi later wired $100 to G.B.'s family. (16)

Less than two months later, Bianchi traveled to Bucharest, Romania. (17) Upon arrival in Bucharest, Bianchi contacted Ion Gusin, a Moldovan man whom Bianchi had previously hired to serve as both translator and procurer of young children. (18) Gusin arranged for a fourteen-year-old Moldovan boy to travel nearly seven hours to Romania to meet and stay with Bianchi. (19) For the next three weeks, Bianchi and the boy slept in the same bed. (20) On several of those nights, Bianchi performed oral sex on the boy. (21) On the night of the boy's fifteenth birthday, Bianchi took the boy to a restaurant for a birthday celebration. (22) The boy got drunk with Bianchi and later passed out. (23) When he awoke the next morning, the boy was wearing only a shirt and had pains in his anus. (24)

A few months later, Bianchi returned to the United States where, like any other citizen returning to the country, he was searched by Immigration and Customs Enforcement Agents. (25) The Agents found the Connect Four game, sexual lubricants, and a handwritten letter addressed to a child. (26) Later, government agents found airplane and hotel reservations for Bianchi to take Ion Gusin and the boy from Moldova to Pattaya, Thailand for a three-week trip. (27) This curious collection of belongings sparked the agents' interest. Shortly thereafter, investigators tapped Bianchi's phone and overheard Bianchi attempting to persuade Gusin to fabricate a story masking his exploits. (28) Moldovan police soon interviewed Gusin and the boy from Moldova. (29) Armed with an abundance of evidence, the police obtained both a search warrant and an arrest warrant; they arrested Bianchi and found a journal detailing Bianchi's sexual encounters, including his successes and failures. (30)

Anthony Mark Bianchi's story is not unique; in fact, his story is all too common. In 2005 alone, the number of children exploited by the global commercial sex trade totaled over one million. (31) Much of the global commercial sex trade is fueled by child sex tourists, who prey on the most vulnerable children in the most impoverished areas of the world. (32) The United States Department of Justice notes that some organizations estimate that United States citizens account for twenty-five percent of child sex tourists worldwide and eighty percent of child sex tourists in Latin America. (33) Moreover, the Justice Department acknowledges that the number of Americans preying on children abroad is growing rapidly. (34)


In 2003, partly in response to growing concerns about the child sex tourism industry, Congress passed the PROTECT Act. (35) The PROTECT Act includes four "travel statutes," one of which, 18 U.S.C. [section] 2423(c), criminalizes traveling in foreign commerce and engaging in illicit sexual conduct abroad. (36) 18 U.S.C. [section] 2423(c), at the time of enactment, provided that "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." (37)

Since its enactment, federal prosecutors have utilized 18 U.S.C. [section] 2423(c) to combat child sex tourism, but not without facing legitimate constitutional challenges from defendants. (38) While defendants have attacked the statute from a variety of angles, the argument that has gained the most traction in courts is that Congress did not possess the Article I authority to enact [section] 2423(c) because the statute is beyond the scope of Congress's Foreign Commerce Clause powers. (39) Notably, no court has invalidated the statute. Rather, courts have generally found that the "travel" requirement implicates foreign commerce to a constitutionally tenable degree and, thus, the statute falls within Congress's Article I powers. (40)

In February 2007, a grand jury sitting in the Eastern District of Pennsylvania indicted Bianchi on four counts of engaging in illicit sexual conduct in foreign places in violation of 18 U.S.C. [section] 2423(c). (41) Bianchi moved to dismiss the [section] 2423(c) charges (42) and advanced two main arguments. First, Bianchi asserted that the extraterritorial application of [section] 2423(c) was arbitrary and unfair and thus violated his Fifth Amendment due process rights because there was not a sufficient nexus between his conduct and the United States. (43) Secondly, Bianchi argued that Congress lacked the constitutional authority to enact [section] 2423(c) under its Foreign Commerce Clause powers. (44)

The District Court for the Eastern District of Pennsylvania denied Bianchi's motion to dismiss. (45) The court held that where the conduct at issue is "universally condemned," due process does not require a nexus between the conduct and the United States. (46) In response to Bianchi's Foreign Commerce Clause arguments, the District Court upheld the constitutionality of the provision based on [section] 2423(c)'s requirement that a defendant "travel in foreign commerce" combined with Bianchi's failure to make a plain showing that Congress exceeded its constitutional authority in enacting the statute. (47)

The court also noted the presence of a treaty, the Optional Protocol, in its opinion. (48) Portions of the Optional Protocol, which was adopted by the United Nations in 2000, are aimed at curtailing global child sex tourism. (49) But while the court noted that 119 countries, including the United States, ratified the Optional Protocol, the court did not explicitly use the treaty to uphold the constitutionality of the statute. (50) Rather, the court used the treaty to further emphasize that the illicit sex acts that Bianchi engaged in were "vigorously and uniformly condemned" and thus worthy of punishment. (51)

After the denial of Bianchi's motion to dismiss, he was tried during a three-week jury trial. (52) During trial, Bianchi did not dispute the charges but did raise several evidentiary-related issues. (53) The jury convicted Bianchi on all counts, (54) and the District Court later sentenced him to concurrent 300-month terms of incarceration on each count of conviction. (55)

On direct appeal, Bianchi again claimed that Congress had exceeded its constitutional authority in criminalizing activity occurring outside of the United States. (56) The government, responding to Bianchi's constitutional challenge, noted the "temporary nature of Bianchi's foreign excursion," his use of an American travel agent to book his trips, and his use of American credit cards while abroad to charge for good and services. (57) Indeed, Bianchi did travel in foreign commerce, as he travelled from the United States to Moldova and Romania over the course of several months. (58) Bianchi also had future travel planned, as he booked a trip to visit Thailand with one of the young boys he met while in Romania. (59)

The Third Circuit upheld the District Court's ruling and again relied on the "strong presumption of constitutionality and the statute's express requirement of travel in foreign commerce." (60) The court was satisfied that the travel component of Bianchi's exploits had a sufficient nexus to his illegal conduct and implicated foreign commerce to a constitutionally adequate degree. (61)

But what if the connection between Bianchi's international travel and his illegal conduct did not exist? For example, what if Bianchi traveled from the United States five, ten, or fifteen years before he committed any illicit sexual acts abroad? What if Bianchi maintained a long-term residence in Moldova and did not use an American travel agent or American credit cards? What if a United States citizen becomes a permanent foreign resident before engaging in child sex tourism?

In March of 2013, Congress amended 18 U.S.C. [section] 2423(c), broadened its scope, and created a tool for addressing scenarios where the connection between a predator's international travel and illicit sexual conduct becomes attenuated. (62) Creating a law enforcement tool with greater reach came at an opportune time, as despite the implementation of the PROTECT Act in 2003, the child sex tourism industry showed little sign of slowing. (63) In 2013, the United Nations Children's Fund estimated that about two million children were affected by sexual exploitation. (64)...

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