Case: 3:19-cr-00010-GFVT-EBA Doc #: 27 Filed: 03/13/19 Page: 1 of 2 - Page ID#: 94

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT FRANKFORT

ELECTRONICALLY FILED

CRIMINAL ACTION NO. 3:19-10-GFVT-MAS

UNITED STATES OF AMERICA )

)
PLAINTIFF )
) DEFENDANT’S MOTION TO DISMISS
v. ) THE INDICTMENT
)
MICKY RIFE )
)
DEFENDANT )

Comes the Defendant, Micky Rife, by counsel, and moves the Court to dismiss the

Indictment pursuant to Fed. R. Crim. P. 12(b). The statute under which Mr. Rife is

charged, 18 U.S.C. § 2423(c), is an unconstitutional exercise of Congressional authority

under the Foreign Commerce Clause, as applied to him.

Mr. Rife has filed contemporaneously herewith a memorandum of law in support

of this motion.

GREEN CHESNUT & HUGHES, PLLC

Chase Tower
201 East Main Street, Suite 800
Lexington, KY 40507
Tel: (859) 475-1471
Fax: (859) 455-3332

BY: /s/ James M. Inman

JAMES M. INMAN
ATTORNEY FOR DEFENDANT,
MICKY RIFE
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CERTIFICATE OF SERVICE

I hereby certify that on this day, Wednesday, March 13, 2019, I electronically filed

the foregoing with the clerk of the court by using the CM/ECF system, which will send an

electronic notice to all counsel of record in this matter.

/s/ James M. Inman

COUNSEL FOR DEFENDANT

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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT FRANKFORT

ELECTRONICALLY FILED

CRIMINAL ACTION NO. 3:19-10-GFVT-MAS

UNITED STATES OF AMERICA )

)
PLAINTIFF )
) DEFENDANT’S MEMORANDUM IN
v. ) SUPPORT OF MOTION TO DISMISS
) INDICTMENT
MICKY RIFE )
)
DEFENDANT )

MAY IT PLEASE THE COURT:

Comes the Defendant, Micky Rife, by counsel, and in support of his motion to

dismiss the Indictment, states as follows:

BACKGROUND

On February 8, 2019, Mr. Rife was indicted on two counts of violating 18 U.S.C. §

2423(c). DE 12. The Counts identically allege that Mr. Rife “traveled in foreign

commerce, and between on or about March 7, 2013 and on or about December 9, 2018,

resided in Cambodia, a foreign country, and engaged and attempted to engage in illicit

sexual conduct . . . with another person under 18 years of age . . . .” Id. Mr. Rife is alleged

to have engaged in noncommercial sex acts involving the two alleged minor victims. Id.

(citing § 2423(f)(1)).

Mr. Rife moved to Cambodia where he lived and worked as a teacher at a

Cambodian elementary school. DE 1-1. He is originally from Magoffin County, Kentucky.

Id. In 2015, Mr. Rife and his common law partner Reaksmey Pal, a Cambodian citizen,
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adopted a daughter. Id. After Mr. Rife separated from Ms. Pal, he cohabited with another

Cambodian woman and his adopted daughter in Cambodia. While Mr. Rife established

residence in Cambodia previously, he last traveled to Cambodia from the United States

in 2012. Id.

Mr. Rife’s trial is currently set for April 9, 2019, although he recently filed a motion

to continue the trial date and all other deadlines.

ARGUMENT

The Court should dismiss the Indictment because the statute under which he is

indicted is an unconstitutional exercise of Congressional authority. Specifically, the

statute exceeds Congress’s authority under Article I, § 8, clause 3 (hereinafter, the

“Foreign Commerce Clause”), as applied. Section 2423(c) at issue here provides in

relevant part:

(c) Engaging in illicit sexual conduct in foreign places.--

Any United States citizen or alien admitted for permanent
residence 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 shall be fined
under this title or imprisoned not more than 30 years, or both.

* * *
(f) Definition.--As used in this section, the term “illicit sexual
conduct” means-
(1) a sexual act (as defined in section 2246) with a person
under 18 years of age that would be in violation of chapter
109A if the sexual act occurred in the special maritime and
territorial jurisdiction of the United States; . . . .

18 U.S.C. § 2423(c), (f)(1). Subsection (c) was originally enacted in 2003 as part of the

PROTECT Act. Publ. L. No. 108-21 §105, 117 Stat. 650 (2003). The statute was

originally intended primarily to address sex tourism. In 2013, Congress added the clause

“or resides, either temporarily or permanently, in a foreign country.” Pub. L. No. 113-4 §

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1211, 127 Stat. 54 (2013). Subsection (c) was added to remove the “intent” element of

proof because it was difficult to prove the intent existed prior to travel in order to prosecute

sex tourists. H.R. Rep. No. 108-66, at 51-52 (2003). In contrast, subsection (b), for

example, proscribes traveling in interstate or foreign commerce with a motivating purpose

of engaging in any illicit sexual conduct. 18 U.S.C. § 2423(b). All that is required to prove

the crime under (c) is that a citizen at one point traveled in foreign commerce with no

unlawful intent or resided in a foreign country and committed a regulated, noncommercial

sex act. United States v. Al-Maliki, 787 F.3d 784, 792 (6th Cir. 2015).

In enacting § 2423(c) as applied to noncommercial sex acts, such as Mr. Rife is

accused of having committed, Congress exceeded its authority under the Foreign

Commerce Clause. The Foreign Commerce Clause is found alongside the Constitution’s

other grants of authority to Congress to regulate commerce. “The Congress shall have

Power . . . To regulate Commerce with foreign Nations, and among the several States,

and with the Indian Tribes[.]” U.S. Const. art. I, § 8, cl. 3. “Regulate” and “commerce”

must have the same meaning throughout. Gibbons v. Ogden, 22 U.S. 1, 194 (1824).

But section 2423(c) as applied to Mr. Rife punishes conduct that occurred wholly within a

foreign country solely on the basis that he is a U.S. citizen living there. If Congress has

authority under the Foreign Commerce Clause to criminalize Mr. Rife’s alleged actions, it

has power to criminalize anything Americans do while abroad.

In United States v. Al-Maliki, 787 F.3d 784, 792 (6th Cir. 2015), a panel of the Sixth

Circuit discussed with great concern Congress’s ultra vires use of the Foreign Commerce

Clause in enacting § 2423(c). Judges Sutton and McKeague analyzed the constitutional

implications of the statute, but ultimately determined that the defendant in that case had

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failed to preserve his constitutional objections, and under plain error review upheld his

conviction. Al-Maliki is an important case insofar as its analysis is deeply persuasive on

this issue, despite not having reached a binding conclusion.

There are few cases interpreting the Foreign Commerce Clause and what

“regulate” or “commerce” mean in that Clause, or the scope of it outside the dormant

Foreign Commerce Clause. Al-Maliki is the closest authority in the Sixth Circuit. In the

absence of controlling caselaw, the Court should look to the text of the Commerce Clause

alone. The Al-Maliki Court also began its analysis with the original meaning of the Foreign

Commerce Clause, observing, “[u]nder the original meaning of the Constitution, the

Foreign Commerce Clause did not give Congress the power to punish the conduct at

issue here.” Id. at 792.

Al-Maliki acknowledged that the modern definition of what it means to “regulate

commerce” has changed over the years in the arena of interstate commerce. See United

States v. Lopez, 514 U.S. 549 (1995). Other courts have applied the Lopez criteria in

examining the Foreign Commerce Clause, presumably because the terms “regulate” and

“commerce” are used to modify the subsequent arenas where Congressional authority

lies. See Al-Maliki, 787 F.3d at 792; United States v. Park, 297 F. Supp. 3d 170, 179

(D.D.C. 2018); United States v. Reed, No. CR 15-188 (APM), 2017 WL 3208458, at *8

(D.D.C. July 27, 2017). Likewise, the Interstate Commerce Clause owes its existence to

foreign commerce, the “intercourse” between nations. Lopez, 514 U.S. at 553; see also

The Federalist No. 42 (James Madison), Jan. 22, 17881 (the Interstate Commerce Clause

1https://www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-42

(last visited Mar. 12, 2019)

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was added to supplement the “great and essential power of regulating foreign

commerce”).

In Lopez, the Supreme Court examined the constitutionality of the Gun-Free

School Zones Act under the Interstate Commerce Clause. Lopez, 514 U.S. at 551.

Ultimately, the court concluded that “[t]he possession of a gun in a local school zone is in

no sense an economic activity that might, through repetition elsewhere, substantially

affect any sort of interstate commerce.” Id. at 567. The court helpfully identified the “three

broad categories of activity that Congress may regulate under its commerce power.” Id.

at 558. Congress may regulate (1) the use of the channels of interstate commerce, (2)

the instrumentalities of commerce, or persons or things in interstate commerce, and (3)

those activities having a “substantial affect” on interstate commerce. Id. at 558-59. The

court noted that the Gun-Free School Zones Act was “a criminal statute that by its terms

has nothing to do with ‘commerce’ or any sort of economic enterprise . . . .” Id. at 561.

Regarding the “channels” and “instrumentalities” of commerce, Al-Maliki instructs

that “subpart (c) is different” from other cases where criminal conduct used the

channels—the highways, airspace, and navigable waters—for an illegal purpose or the

instrumentalities—the ships, planes, and trains--of commerce were used. Al-Maliki, 787

F.3d at 792. “That's not regulating the channels of, or people in, commerce; it's regulating

purely intracountry conduct—after the lawful traveling in commerce has ended.” Id.

Moreover, the Lopez categories do not apply to “all people and things that have ever

moved across state lines.” United States v. Patton, 451 F.3d 615, 622 (10th Cir. 2006)

(citing Lopez, 514 U.S. at 559).

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Thus, the Lopez category regarding activities having a “substantial affect” on

foreign commerce remains. Under this third category, courts consider (1) whether the

regulated activity is commercial or economic, (2) the relation of the regulated activity to

interstate commerce, (3) congressional findings about the effects of the regulated activity

on commerce, and (4) whether the statute is limited to activities having an explicit

connection to interstate commerce. Lopez, 514 U.S. at 561.

None of these criteria support a substantial effect on foreign commerce.

Noncommercial sex acts are not commerce or economic, and sexual abuse is not an

economic commodity. Eliminating noncommercial sex acts with minors does not force

perpetrators into a government regulated commercial market for sex acts with minors

because no such market exists. Justice Thomas, as the Al-Maliki Court noted, has

expressed skepticism that “noneconomic activity, such as sex crimes” can have an effect

on commerce such that Congress may regulate it. United States v. Kebodeaux, 570 U.S.

387, 411 (2013) (Thomas, J., dissenting). In United States v. Morrison, 529 U.S. 598,

617 (2000), the Supreme Court “reject[ed] the argument that Congress may regulate

noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on

interstate commerce” when it invalidated the Violence Against Women Act. The risk here

is that construing the statute as a lawful exercise of congressional authority premises

commercial effects on any human activity. In any event, Lopez counsels that the effect

has to be substantial. 514 U.S. at 559. Further, if this final category is read so

expansively, it effectively grants the federal government plenary police powers without

regard to international borders, superseding other grants of power in the Constitution. Al-

Maliki, 787 F.3d at 793. To paraphrase the Lopez Court, “[t]o uphold the Government's

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contentions here, we would have to pile inference upon inference in a manner that would

bid fair to convert congressional authority under the Commerce Clause to a general police

power of the sort retained by the States.” Lopez, 514 U.S. at 567. Congress cannot

aggregate noneconomic effects, such as crime. United States v. Morrison, 529 U.S. 598,

615 (2000).

In enacting the PROTECT Act, Congress made no findings regarding the effects

of noncommercial sexual activity on foreign commerce. H.R. Rep. No. 108-66 (2003).

“Indeed, Congress included neither a jurisdictional statement nor a constitutional authority

statement in passing this subpart.” Al-Maliki, 787 F.3d at 793. The PROTECT Act was

largely based on a prior piece of failed legislation, the Sex Tourism Prohibition

Improvement Act of 2002 (STPIA). Congressional findings regarding the STPIA failed to

include any finding regarding the effects, aggregate or otherwise, of noncommercial

sexual activity on foreign commerce. H.R. Rep. 107-525 (2002). Instead, it cited the

problems of international sex tourism, and “web sites devoted to promoting teenage

commercial sex.” Id. at 2. The stated purpose for implementing subpart (c) was to

eliminate the intent requirement to make it easier to prosecute sex tourism, not

noncommercial sex acts in foreign countries. Id. There is no congressional finding linking

the conduct proscribed in subpart (c) with foreign commerce, and no finding that the Act

was intended to punish those Americans who move abroad. Id. The legislative history

of § 2423 supports that Congress has never considered the effects of noncommercial

sexual acts on foreign commerce and was focused on commercial acts such as sex

tourism, prostitution, child trafficking, and other “commercial” acts. See, e.g., Protection

of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95–225 § 3(a), 92 Stat 7

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(1978). The Al-Maliki Court noted “Congress’s failure to even try to show the aggregate

effect of noncommercial sexual activity on foreign commerce[,] highlight[ing] its lack of

power here.” Al-Maliki, 787 F.3d at 793. “There isn't—and can't be—a generalized

federal crime for traveling in interstate commerce with no illicit purpose and then, after a

few months, committing illicit sexual conduct with a minor.” Id.

In Mr. Rife’s case, he lived in Cambodia for many years. He is alleged to have

molested students there after having lived there for some time and establishing a family

and home. He was not a tourist. He did not travel for the purpose of engaging in these

acts. Mr. Rife is not alleged to have given anything of value to the victims. See 18 U.S.C.

§ 1591 (a commercial sex act is “any sex act, on account of which anything of value is

given to or received by any person.”). Mr. Rife did not use the channels or

instrumentalities of foreign commerce to accomplish these alleged crimes. He was not in

foreign commerce when the alleged acts were committed. There is no support for his

alleged acts having a substantial effect on or any relation to foreign commerce. His

noncommercial, noneconomic alleged sex acts cannot be regulated by Congress.

Such authority is unconstitutional and furthermore would violate the sovereignty of

other nations. The Clause itself states that Congress has only the power to regulate

commerce “with” foreign nations, not “within.” Noncommercial sex acts such as Mr. Rife

are accused of having committed are not commerce “with” foreign nations. There is no

grant of general police powers across international borders without constitutional

authority. See United States v. Reed, No. CR 15-188 (APM), 2017 WL 3208458, at *7

(D.D.C. July 27, 2017) (“it is a bold proposition to suggest the same word in the same

Clause in our Constitution—‘Commerce’—grants Congress unfettered authority to

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criminalize Americans' activities abroad that it restricts Congress from criminalizing at

home. Some limits must exist.”). The sovereignty of foreign nations was intended as a

limit on the Foreign Commerce Clause as much as federalism was intended to limit the

Interstate Commerce Clause. See U.S. Const. amend. X; The Schooner Exchange v.

McFaddon, 11 U.S. 116, 136 (1812) (“The jurisdiction of the nation within its own territory

is necessarily exclusive and absolute.”); Alexander Hamilton’s The Defence No. XXXVI,

Jan. 2, 1796, in The Papers of Alexander Hamilton available at

http://founders.archives.gov/documents/Hamilton/01-20-02-0002 (last visited Mar. 12,

2019) (“Congress (to pursue still the case of regulating Trade) may regulate by law our

own Trade and that which foreigners come to carry on with us, but they cannot regulate

the Trade which we may go to carry on in foreign countries, they can give to us no rights

no privileges there.” (italics added)).

“When Congress lacks constitutional authority to pass a law, it acts ultra vires. And

when litigants properly challenge laws passed beyond Congress’s power, courts have a

duty to void those laws as repugnant with the People’s law: the Constitution.” Al-Maliki,

787 F.3d at 791 (citing Marbury v. Madison, 5 U.S. 137 (1803)).

CONCLUSION

The two-count Indictment against Defendant Micky Rife must be dismissed

because Congress acted beyond its constitutional authority in enacting 18 U.S.C. §

2423(c).

GREEN CHESNUT & HUGHES, PLLC

Chase Tower
201 East Main Street, Suite 800
Lexington, KY 40507

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Tel: (859) 475-1471

Fax: (859) 455-3332

BY: /s/ James M. Inman

JAMES M. INMAN
ATTORNEY FOR DEFENDANT,
MICKY RIFE

CERTIFICATE OF SERVICE

I hereby certify that on this day, Wednesday, March 13, 2019, I electronically filed

the foregoing with the clerk of the court by using the CM/ECF system, which will send an

electronic notice to all counsel of record in this matter.

/s/ James M. Inman

COUNSEL FOR DEFENDANT

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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT FRANKFORT

CRIMINAL ACTION NO. 3:19-10-GFVT-MAS

UNITED STATES OF AMERICA )

)
PLAINTIFF )
)
v. ) ORDER
)
MICKY RIFE )
)
DEFENDANT )

This matter is before the Court on Defendant’s Motion to Dismiss the Indictment.

Having considered the motion, and being otherwise sufficiently advised, IT IS ORDERED

that the Motion be, and the same hereby is, GRANTED. The Indictment is DISMISSED.