United States v. Charles Stokes

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2734

UNITED STATES OF AMERICA ,

Plaintiff-Appellee,

v.

CHARLES TODD STOKES,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 07 CR 590-1— Rebecca R. Pallmeyer, Judge.

ARGUED MARCH 28, 2012—DECIDED AUGUST 1, 2013

Before MANION , SYKES, and HAMILTON , Circuit Judges.

SYKES, Circuit Judge. Charles Todd Stokes was convicted in

Florida state court of misdemeanor battery for indecently

touching two boys at the elementary school where he was a

teacher. A month later, for reasons unknown, Florida authori-

ties permitted him to move to Thailand where he immediately

began enticing adolescent and prepubescent boys for sex. This

went on for several years until someone tipped off the

2 No. 11-2734

U.S. Immigration and Customs Enforcement Service (“ICE”).

In a joint operation with the Royal Thai Police, ICE agents

searched Stokes’s home and recovered a camera, a computer,

and several compact discs containing thousands of images of

Stokes’s sexual activity with Thai boys.

Stokes was extradited to the United States and convicted of

traveling in foreign commerce for the purpose of engaging in

a sex act with a minor. See 18 U.S.C. § 2423(b). Stokes appeals,

raising no fewer than ten claims of error. None are meritorious.

We concentrate our efforts on two: a procedural mistake in the

extradition process and a challenge to the legality of the search.

The extradition error involves the Rule of Specialty, which

holds that a nation securing the return of a person pursuant to

an extradition treaty may prosecute the extradited person only

for the crime or crimes named in the surrendering country’s

extradition grant. Thailand surrendered Stokes to face a charge

under 18 U.S.C. § 2423(c), which makes it a crime for

U.S. citizens and lawful permanent residents to engage in illicit

sexual conduct in a foreign place. Prosecutors later shifted

gears and prosecuted him for violating 18 U.S.C. § 2423(b), a

similar crime but not the one on which Thailand granted

extradition. On a request from the American Embassy, how-

ever, the Thai foreign ministry waived the Rule of Specialty.

This diplomatic action cleared the way for the government to

proceed on the substitute charge.

The challenge to the search raises two questions:

(1) whether an extraterritorial search of an American citizen by

U.S. agents is subject to the Fourth Amendment’s implicit

warrant requirement and the explicit requirements of the

No. 11-2734 3

Warrant Clause; and (2) whether the search by ICE agents was

reasonable. Following the Second Circuit, we hold that the

Fourth Amendment’s warrant requirement and the Warrant

Clause have no extraterritorial application. See In re Terrorist

Bombings of U.S. Embassies in E. Afr., 552 F.3d 157, 171 (2d Cir.

2008). But Stokes remains protected by the Amendment’s

touchstone requirement of reasonableness. See id. at 170 n.7.

Because the search was reasonable, the photographic evidence

was properly admitted at trial.

I. Background

Stokes was a teacher in the Miami-Dade public schools for

more than a decade. On February 25, 2000, he pleaded no

contest to a charge of misdemeanor battery for indecently

touching two boys who were his students. A Florida court

suspended sentence and placed Stokes on probation. As a

condition of his probation, Stokes had to surrender his Florida

teaching license and was barred from unsupervised contact

with minors absent written court permission. Less than a

month after his plea and sentencing, Stokes asked for permis-

sion to complete his probation in Thailand. For reasons not

specified in the record, this request was granted. On March 21,

2000, Stokes moved to Thailand, eventually settling in Pattaya,

about 200 kilometers south of Bangkok.

Within two weeks of his arrival in Thailand, Stokes began

seeking boys for sex. He frequently hired young male prosti-

tutes. He enticed runaways and other boys off the streets to his

home to play video games, and once there, he engaged in

sexual acts with them. He often photographed these sexual

4 No. 11-2734

encounters, transferring the images from his camera to a

computer and compact discs.

This conduct continued undetected for several years. With

the exception of a three-week trip to the United States from

December 25, 2001 to January 14, 2002, Stokes resided continu-

ously in Thailand from March 21, 2000, until his arrest on

July 28, 2006. He supported himself by teaching English. In

December 2002 ICE agents based in Thailand received a tip

that Stokes had been fired from a teaching job in Bangkok for

indecently touching male students. The agents opened an

investigation and learned that Stokes had been fired from

another teaching job at a different school based on similar

allegations. This prompted ICE to request assistance from the

Royal Thai Police in Pattaya.

Thai Police assigned narcotics officers to the investigation

because surveillance was anticipated and the narcotics officers

worked in plain clothes. The Thai officers eventually obtained

a warrant authorizing a search of Stokes’s home “to locate and

seize any illegal items and narcotics … of which possession is

considered illegal, or which was illegally obtained, or which

has been used or is intended to be used to commit a crime.”

Because this was a sex-crimes investigation, the inclusion of

narcotics among the objects of the search was an obvious

anomaly probably attributable to the presence of the local

narcotics officers on the joint law-enforcement team.

Early in the morning of October 9, 2003, ICE agents and the

Royal Thai Police executed the warrant at Stokes’s home.

Stokes was not there when they arrived, so they waited for him

before entering. Once the search was underway, the officers

No. 11-2734 5

recovered a digital camera, multiple compact discs, and a

computer. Together, these items contained more than

6,000 images of Stokes’s sexual activity with adolescent and

prepubescent Thai boys.

Despite the voluminous evidence of serious crimes, Stokes

was not arrested until July 28, 2006, almost three years after the

search. It took another year to return him to the United States.

On July 26, 2007, Thailand granted an extradition request from

the United States and returned Stokes to Miami to face a

charge of violating 18 U.S.C. § 2423(c), which makes it a crime

for U.S. citizens and lawful permanent residents to travel in

foreign commerce and engage in illicit sexual conduct. But that

particular subsection of § 2423 was enacted after Stokes

traveled to Thailand and therefore did not apply to his

conduct. Federal prosecutors in Miami soon realized their

mistake and dropped the charge. Stokes was transferred to the

Northern District of Illinois and indicted on three counts of

violating 18 U.S.C. § 2251A(b)(2)(A), a child-trafficking statute.1

Prosecutors dismissed these charges as well and eventually

indicted Stokes on a single count of violating 18 U.S.C.

§ 2423(b), which at the relevant time prohibited traveling in

interstate or foreign commerce for the purpose of engaging in

a sexual act with a person under 18. See 18 U.S.C. § 2423(b)

(effective Oct. 30, 1998 to Nov. 2, 2002).

1

M ore specifically, 18 U.S.C. § 2251A(b)(2)(A ) provides: “Whoever

purchases or otherwise obtains custody or control of a minor, … with intent

to promote … the engaging in of sexually explicit conduct by such minor

for the purpose of producing any visual depiction of such conduct … shall

be punished by imprisonment for not less than 30 years or for life … .”

6 No. 11-2734

Stokes moved to suppress the evidence recovered in the

search of his home in Thailand. In a comprehensive opinion,

the district court denied the motion. United States v. Stokes,

710 F. Supp. 2d 689 (N.D. Ill. 2009). The judge first held that the

Fourth Amendment’s warrant requirement and Warrant

Clause do not apply overseas. Id. at 697–70. Next, after consid-

ering all the circumstances, the judge found that the search was

reasonable. Id. at 701–02. Finally, the judge held that even if the

search violated the Fourth Amendment, ICE agents relied in

good faith on Thai legal authorities. Id. at 702–03.

After a flurry of additional defense motions, all unsuccess-

ful, the case was tried to a jury. The government introduced

testimony from the ICE agents involved in the investigation

and two Thai boys who were sexually assaulted by Stokes. One

of the victims was a street kid nicknamed “Ice,” who was

11 years old when Stokes first enticed him to his home with a

promise of video games and a place to sleep. “Ice” testified that

Stokes subjected him to various sex acts and gave him money.

He recalled approximately 20 such sexual encounters with

Stokes. The other victim was a runaway nicknamed “Note,”

who also was 11 when he first accepted Stokes’s invitation to

accompany him home. “Note” testified to a similar pattern of

sexual abuse by Stokes.

Finally, the government introduced a representative sample

of the more than 6,000 photographic images recovered during

the search of Stokes’s home. The photographs depicted Stokes

engaged in various sex acts with Thai boys, including “Ice” and

“Note.” An ICE agent testified that approximately 70 different

boys appear in the images, 60 of whom appeared to be under

16. Of those, 30 appeared to be under the age of 12, and the

No. 11-2734 7

youngest looked to be about 7. Several hundred of these

photos were transferred from Stokes’s camera to compact discs

in the months immediately before and after Stokes’s brief trip

to the United States and return to Thailand in December 2001

to January 2002.

The jury found Stokes guilty. The district judge sentenced

him to 15 years in prison, the maximum penalty. Stokes timely

appealed.

II. Discussion

Stokes has taken a scattershot approach to his appeal,

raising ten separate issues, some of which have subparts. We

take this opportunity to reiterate some advice we’ve given

before: “Losers in a trial can go hunting for relief on appeal

with a rifle or a shotgun. The rifle is better. … [T]he shotgun

approach may hit the target with something but it runs the risk

of obscuring significant issues by dilution.” Gagan v. Am.

Cablevision, Inc., 77 F.3d 951, 955 (7th Cir. 1996) (Evans, J.); see

also Fifth Third Mortg. Co. v. Chi. Title Ins. Co., 692 F.3d 507, 509

(6th Cir. 2012) (“When a party comes to us with nine grounds

for reversing the district court, that usually means there are

none.”). Most of Stokes’s arguments are frivolous or so

obviously meritless that we need only address them sum-

marily. Two require more complete discussion.

A. Rule of Specialty

Stokes argues that the Rule of Specialty barred the govern-

ment from prosecuting him for violating § 2423(b) because he

8 No. 11-2734

was extradited for a violation of § 2423(c), a different crime.

The Rule of Specialty, a treaty-law doctrine, holds that a nation

seeking return of a person under the terms of an extradition

treaty may prosecute the extradited person only to the extent

expressly authorized by the surrendering nation in the grant of

extradition. See United States v. Warda, 285 F.3d 573, 575–76 (7th

Cir. 2002) (“[T]he Rule of Specialty … does not allow the

country to which an individual is extradited to prosecute that

person for a crime unless the extraditing nation has expressly

authorized such a prosecution.”). Article 14 of the extradition

treaty between the United States and Thailand incorporates the

rule:

(1) A person extradited under this Treaty

shall not be detained, tried, or punished in the

territory of the Requesting State for an offense

other than that for which extradition has been

granted … , unless:

….

(c) the Requested State has consented to

detention, trial, or punishment of that person

for an offense other than that for which extra-

dition was granted, or to extradition to a

third State. …

Extradition Treaty with Thailand, U.S.-Thailand, art. 14,

Dec. 14, 1983, S. TREATY DOC . No. 98–16 (1984), available at 1983

U.S.T. LEXIS 418 (entered into force May 17, 1991) (emphasis

added). As we will see, the “unless” clause is important here.

No. 11-2734 9

Stokes was extradited on a charge of engaging in illicit

sexual conduct in a foreign place in violation of 18 U.S.C.

§ 2423(c). Adopted as part of the 2003 PROTECT Act, this

statute provides that “[a]ny United States citizen … who

travels in foreign commerce, and engages in any illicit sexual

conduct with another person shall be … imprisoned not more

than 30 years.“ See Prosecutorial Remedies and Tools Against

the Exploitation of Children Today Act of 2003 (“PROTECT

Act”), Pub. L. No. 108–21, 117 Stat. 650 (amending 18 U.S.C.

§ 2423 and adding subsection (c)). However, because Stokes’s

last travel to Thailand occurred in January 2002, § 2423(c) could

not be applied to his conduct. See United States v. Jackson,

480 F.3d 1014, 1018, 1024 (9th Cir. 2007) (holding that § 2423(c)

does not apply to travel occurring prior to the enactment of the

statute and thus finding no need to consider ex post facto

argument).

Prosecutors in Miami quickly realized the mistake and

moved to dismiss the § 2423(c) charge. Stokes was then

transferred to the Northern District of Illinois, and the

government indicted him on three counts of violating

§ 2251A(b), which prohibits child trafficking. This, too, was a

charging misfire, and the charges were dismissed. The govern-

ment eventually obtained an indictment charging Stokes with

a single violation of § 2423(b), which at the relevant time

prohibited traveling in interstate or foreign commerce for the

purpose of engaging in a sexual act with a person under the

age of 18.

Stokes insists that the Rule of Specialty barred the govern-

ment from prosecuting him on the substitute charge. The

government responds that Stokes lacks standing to assert a

10 No. 11-2734

violation of the Rule of Specialty, relying on authority from

this court holding that extradition treaties govern diplomatic

relations only and do not create enforceable personal rights.

See United States v. Burke, 425 F.3d 400, 408 (7th Cir. 2005)

(“[E]xtradition treaties do not create personal rights enforce-

able by criminal defendants. … Instead they create rules for the

relations between nations.” (citing Matta-Ballesteros v. Henman,

896 F.2d 255, 259 (7th Cir. 1990))).

On the face of it, Burke appears to foreclose further inquiry

into the Rule of Specialty. But there is reason to question this

circuit precedent. In United States v. Rauscher, 119 U.S. 407

(1886), the Supreme Court recognized and enforced the Rule of

Specialty in a prosecution of an American seaman captured by

Great Britain on the high seas and surrendered to the United

States to face a charge of murder under the terms of the

extradition treaty between the two countries. After extradition

the government tried and convicted the seaman on a different

charge: infliction of cruel and unusual punishment. The

Supreme Court enforced the doctrine of specialty derived from

treaty law, explaining that

[a] treaty … is a law of the land, as an act of

congress is, whenever its provisions prescribe a

rule by which the rights of the private citizen or

subject may be determined. And, when such

rights are of a nature to be enforced in a court of

justice, that court resorts to the treaty for a rule

of decision for the case before it as it would to a

statute.

No. 11-2734 11

Id. at 419. Under the extradition treaty then in effect between

the United States and Great Britain, murder was an extradit-

able offense but the substitute crime, infliction of cruel and

unusual punishment, was not. Applying the Rule of Specialty,

the Court held that a person brought within the jurisdiction of

the court under an extradition treaty

can only be tried for one of the offenses de-

scribed in that treaty, and for the offense with

which he is charged in the proceedings for his

extradition, until a reasonable time and opportu-

nity have been given him, after his release or trial

upon such charge, to return to the country from

whose asylum he had been forcibly taken under

those proceedings.

Id. at 430.

Our decision in Burke is hard to square with Rauscher, which

though old remains good law today. See United States v.

Alvarez-Machain, 504 U.S. 655, 659 (1992) (recognizing the

continued applicability of Rauscher, but distinguishing it where

the presence of the defendant was secured by forcible abduc-

tion rather than extradition). Indeed, we have specifically

acknowledged Rauscher’s holding in another case, though not

one raising an extradition question. See Jogi v. Voges, 480 F.3d

822, 831 (7th Cir. 2007) (citing Rauscher as holding that the Rule

of Specialty in an extradition treaty may be asserted as a

defense to a prosecution for a crime other than the one on

which extradition was based). Several of our sister circuits have

specifically held that criminal defendants have standing to

raise a violation of the Rule of Specialty. See, e.g., United States

12 No. 11-2734

v. Puentes, 50 F.3d 1567, 1574 (11th Cir. 1995) (“We believe that

Rauscher clearly confers such a right on the extradited defen-

dant.”); United States v. Levy, 905 F.2d 326, 328 n.1 (10th Cir.

1990) (“Levy has standing to raise the issue.”); United States v.

Cuevas, 847 F.2d 1417, 1426 (9th Cir. 1988) (“A person extra-

dited may raise whatever objections the extraditing country

would have been entitled to raise.”); United States v. Thirion,

813 F.2d 146, 151 (8th Cir. 1987) (“[The defendant] may raise

whatever objections to his prosecution that Monaco might

have.” (citing Rauscher, 119 U.S. at 419)).

Although we question whether Burke can be reconciled

with Rauscher, Jogi, and the authority from other circuits, we do

not need to resolve the matter here. It is well-established that

the Rule of Specialty may be waived by the surrendering

country. See United States v. Tse, 135 F.3d 200, 205 (1st Cir. 1998)

(“If Hong Kong consented to the prosecution[,] … Tse’s posi-

tion must fail.”); Puentes, 50 F.3d at 1575 (“As a sovereign, the

requested nation may waive its right to object to a treaty

violation and thereby deny the defendant standing to object to

such an action.”); Thirion, 813 F.2d at 151 (“While the asylum

country may consent to extradite the defendant for offenses

other than those expressly enumerated in the treaty, … it did

not do so here.”); United States v. Najohn, 785 F.2d 1420, 1422

(9th Cir. 1986) (“[T]he protection [of specialty] exists only to the

extent that the surrendering country wishes.”). As we have

noted, the extradition treaty between the United States and

Thailand expressly provides for waivers of the Rule of

Specialty, and diplomatic authorities in the two nations

invoked that waiver procedure here.

No. 11-2734 13

On December 8, 2008, the Thai Ministry of Foreign Affairs

issued a communiqué to the United States Embassy expressly

stating that Thailand

consents to the waiver of the rule of speciality,

viz., to the detention, trial, and punishment of

Mr. Charles Todd Stokes for an offence under

Title 18 of the United States Code,

Section 2423(b) which is technically different

from Title 18 of the United States Code,

Section 2423(c) for which the extradition was

granted.

Stokes argues that we cannot rely on Thailand’s waiver

absent further inquiry into how it was obtained. To the

contrary, Thailand’s waiver of the Rule of Specialty is conclu-

sive on the question. Tse, 135 F.3d at 205; Puentes, 50 F.3d at

1575 (“The extradited individual … enjoys [the Rule of Spe-

cialty] right at the sufferance of the requested nation. As a

sovereign, the requested nation may waive its right to object to

a treaty violation … .“). Further inquiry is unnecessary.

B. The Search of Stokes’s Home in Thailand

Stokes also challenges the district court’s decision denying

his motion to suppress the photographic evidence recovered in

the search of his home in Pattaya. The photographs led to the

identification of the two Thai victims who testified against him,

and the government introduced a representative sample of the

photographs at trial. In denying suppression the district judge

concluded that the Fourth Amendment generally applied but

14 No. 11-2734

the Amendment’s warrant requirement and Warrant Clause

did not. The judge also found the search reasonable under all

the circumstances. Alternatively, the judge held that even if the

search violated the Fourth Amendment, the exclusionary rule

would not apply because the ICE agents relied in good faith on

Thai law-enforcement authorities. We review the district

court’s decision under a split standard of review; factual

findings are reviewed for clear error, and legal conclusions and

the ultimate determination of reasonableness are subject to de

novo review. United States v. Uribe, 709 F.3d 646, 649 (7th Cir.

2013).

1. Extraterritorial Application of the Fourth Amendment

Evidence obtained in a search of an American citizen by

foreign authorities operating within their own country is

generally admissible in the courts of the United States even if

the search does not otherwise comply with our law, including

the law of the Fourth Amendment. See United States v. Emman-

uel, 565 F.3d 1324, 1330 (11th Cir. 2009) (“The general rule is

that evidence obtained from searches carried out by foreign

officials in their own countries is admissible in United States

courts, even if the search would not otherwise comply with

United States law or the law of the foreign country.”); United

States v. Barona, 56 F.3d 1087, 1096 (9th Cir. 1995); United States

v. Peterson, 812 F.2d 486, 490 (9th Cir. 1987); United States v.

Morrow, 537 F.2d 120, 140 (5th Cir. 1976). But if U.S. agents

substantially participate in an extraterritorial search of a

U.S. citizen and the foreign officials were essentially acting as

agents for their American counterparts or the search amounted

No. 11-2734 15

to a joint operation between American and foreign authorities,

the Fourth Amendment generally applies. See Emmanuel,

565 F.3d at 1330; Barona, 56 F.3d at 1096; Peterson, 812 F.2d at

490; cf. United States v. Marzano, 537 F.2d 257, 269–71 (7th Cir.

1976) (holding that FBI agents who merely supplied informa-

tion to Grand Cayman police and observed but did not

participate in the search by authorities in that country did not

trigger Fourth Amendment protection).

The district court held that because the ICE agents initiated

the investigation of Stokes and fully participated in the search

of his home, the search was a joint operation between Ameri-

can and Thai authorities and “some measure” of Fourth

Amendment protection applied. Stokes, 710 F. Supp. 2d at 697.

The government does not contest this ruling, for good reason.

On these facts we agree with the district court that the Fourth

Amendment generally applies.

That conclusion, however, does not answer the more

precise question about the extraterritorial reach of the Amend-

ment’s warrant requirements. The Fourth Amendment

provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirma-

tion, and particularly describing the place to be

searched, and the persons or things to be seized.

U.S. CONST. amend. IV. Stokes argues that the Thai warrant

violated the Warrant Clause because it did not describe the

16 No. 11-2734

items to be seized with particularity and the search exceeded

the scope of the warrant. There is no question that the warrant

used very general language. Stokes’s argument thus requires

us to decide whether an extraterritorial search by U.S. agents

is subject to the Warrant Clause.

The Warrant Clause is phrased as a limitation on the power

to issue warrants and is distinct from the Fourth Amendment’s

“warrant requirement,” which though not expressed in the text

of the Amendment is implied as a matter of long-standing

Supreme Court doctrine.2 See Kentucky v. King, 131 S. Ct. 1849,

1856 (2011) (“Although the text of the Fourth Amendment does

not specify when a search warrant must be obtained, this Court

has inferred that a warrant must generally be secured.”);

Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (“searches and

seizures inside a home without a warrant are presumptively

unreasonable”); Payton v. New York, 445 U.S. 573, 586–87 (1980).

The Supreme Court has never addressed whether the Warrant

Clause or the doctrinal requirement of a warrant applies

extraterritorially. Nor have we.

2

Because warrants immunized government agents against liability for tres-

pass, the Fourth Amendment’s W arrant Clause aimed to limit their

availability by imposing explicit requirements on their issuance. See A K H IL

R EED A M A R , T H E B ILL O F R IGH TS : C REA TIO N A N D R EC O N STRU C TIO N 68–76

(1998); Akhil Reed Amar, Fourth Amendment First Principles, 107 H A RV . L.

R EV . 757, 761–81 (1994); W illiam J. Stuntz, The Substantive Origins of Criminal

Procedure, 105 Y ALE L.J. 393, 409–10 (1995). The “warrant requirement” in

modern Fourth Amendment doctrine arises by implication and operates as

a general presumption that warrantless searches are unreasonable, subject

to certain well-established exceptions. See Kentucky v. King, 131 S. Ct. 1849,

1856 (2011); Brigham City v. Stuart, 547 U.S. 398, 403 (2006); Groh v. Ramirez,

540 U.S. 551, 559 (2004); Payton v. New York, 445 U.S. 573, 586–87 (1980).

No. 11-2734 17

The Supreme Court’s reasoning in United States v. Verdugo-

Urquidez, 494 U.S. 259 (1990), sheds some light on the question.

In Verdugo-Urquidez the Court held that the Fourth Amend-

ment has no application to a warrantless search by U.S. agents

of a nonresident alien’s property located in a foreign coun-

try—there, Mexico. Id. at 261. The Court based its holding on

“the text of the Fourth Amendment, its history, and [the

Court’s] cases discussing the application of the Constitution to

aliens and extraterritorially.” Id. at 274. Because the Amend-

ment did not apply at all, the Court had no need to separately

address whether the warrant requirement and the Warrant

Clause applied to foreign searches by American agents. But the

Court noted in passing that any warrant issued by a judicial

officer in this country “would be a dead letter outside the

United States.” Id. Justice Kennedy’s concurring opinion was

more direct:

The absence of local judges or magistrates avail-

able to issue warrants, the differing and perhaps

unascertainable conceptions of reasonableness

and privacy that prevail abroad, and the need to

cooperate with foreign officials all indicate that

the Fourth Amendment’s warrant requirement

should not apply in Mexico as it does in this

country.

Id. at 278 (Kennedy, J., concurring). Justice Stevens echoed the

point in his concurrence, as did Justice Blackmun in dissent. See

id. at 279 (Stevens, J., concurring in the judgment) (“I do not

believe the Warrant Clause has any application to searches of

noncitizens’ homes in foreign jurisdictions because American

18 No. 11-2734

magistrates have no power to authorize such searches.”); id. at

297 (Blackmun, J., dissenting) (“[A]n American magistrate’s

lack of power to authorize a search abroad renders the Warrant

Clause inapplicable to the search of a noncitizen’s residence

outside this country.”).

Among the circuit courts of appeals, only the Second has

addressed whether the Fourth Amendment’s warrant require-

ment applies to searches conducted by U.S. agents overseas,

concluding that it does not. See In re Terrorist Bombings,

552 F.3d at 167 (“[W]e hold that the Fourth Amendment’s

warrant requirement does not govern searches conducted

abroad by U.S. agents; such searches of U.S. citizens need only

satisfy the Fourth Amendment’s requirement of reasonable-

ness.”). The Second Circuit took its cues from Verdugo-

Urquidez, in which no fewer than “seven justices of the

Supreme Court endorsed the view that U.S. courts are not

empowered to issue warrants for foreign searches.” Id. at 169.

Beyond reading the clear signals from the Supreme Court

in Verdugo-Urquidez, the Second Circuit noted the absence of

any historical support for the argument that the Fourth Amend-

ment’s warrant requirement applies to searches carried out by

U.S. agents overseas. Id. (“[T]here is nothing in our history or

our precedents suggesting that U.S. officials must first obtain

a warrant before conducting an overseas search.”). The court

also considered the foreign-policy implications of extending

the warrant requirement to extraterritorial searches, noting

that “nothing in the history of the foreign relations of the

United States would require that U.S. officials obtain warrants

from foreign magistrates … or, indeed, to suppose that all

No. 11-2734 19

other states have search and investigation rules akin to our

own.” Id. at 170.

Finally, the court returned to the basic difficulty that “if

U.S. judicial officers were to issue search warrants intended to

have extraterritorial effect, such warrants would have dubious

legal significance, if any, in a foreign nation.” Id. at 171. And “it

is by no means clear that U.S. judicial officers could be autho-

rized to issue warrants for overseas searches.” Id. For these

reasons, the court concluded that “the Fourth Amendment’s

Warrant Clause has no extraterritorial application,” and

“foreign searches of U.S. citizens conducted by U.S. agents are

subject only to the Fourth Amendment’s requirement of

reasonableness.” Id.

Stokes has no response to In re Terrorist Bombings. Nor does

he grapple with the clear implication of the Supreme Court’s

statements in Verdugo-Urquidez. We agree with the Second

Circuit’s reasoning and now hold that the Fourth Amend-

ment’s warrant requirement, and by extension the strictures of

the Warrant Clause, do not apply to extraterritorial searches by

U.S. agents. The search of Stokes’s home in Thailand is

governed by the Amendment’s basic requirement of reason-

ableness, see In re Terrorist Bombings, 552 F.3d at 170 n.7, to

which we now turn.

2. Reasonableness of the Search

Whether a search is reasonable under the Fourth Amend-

ment depends on the totality of the circumstances and requires

the court to weigh the intrusion on individual privacy against

20 No. 11-2734

the government’s need for information and evidence. Samson

v. California, 547 U.S. 843, 848 (2006). On the individual side of

the ledger, the privacy of the home is central to the Fourth

Amendment right. See Kyllo v. United States, 533 U.S. 27, 31

(2001). Against that core individual right is the government’s

strong interest in preventing the sexual exploitation of chil-

dren.

In finding the search reasonable, the district court was

heavily influenced by the fact that the joint investigation by

ICE and the Royal Thai Police had produced information that

“almost certainly” would have been sufficient to establish

probable cause that Stokes had committed a crime and evi-

dence of it would be found in his home. Stokes, 710 F. Supp. 2d

at 701. We agree but omit the qualifier “almost.” Probable

cause requires a commonsense “assessment of probabilities in

particular factual contexts,” Illinois v. Gates, 462 U.S. 213, 232

(1983), and here the district court marshaled the compelling

evidence supporting probable cause:

Stokes had been fired from two Thai schools in

one year for touching children inappropriately.

His colleagues at a third school told investigators

that he continued to engage in similar behavior.

Stokes had a history of sexually assaulting

children[] and a criminal conviction for inappro-

priately touching a child in the United States. He

was seen regularly hugging and kissing one

particular male student. Two credible informants

separately indicated that Stokes, an unmarried,

middle-aged man, intimated that he was sexually

attracted to children and boasted about living

No. 11-2734 21

with young Thai boys. ICE Investigators also

verified through cooperation with Thai authori-

ties that a witness had, on at least one occasion,

seen young boys reporting to Stokes’s private

quarters.

Stokes, 710 F. Supp. 2d at 701.

Moreover, the search was executed in a reasonable manner.

The law-enforcement team acted pursuant to a valid Thai

search warrant. The search took place during the daytime

hours. Although Stokes was not at home when the officers

arrived early in the morning, they waited for him before

entering the home. Stokes was not restrained during the

search, containers were not broken open, and Stokes received

an inventory of the items seized. The entire search lasted only

about two hours. In the district court’s view, “Thai and

U.S. officials acted reasonably to minimize the intrusiveness of

the search.” Id. at 702. Again, we agree. Because the search of

Stokes’s home was reasonable, the district court properly

denied suppression of the evidence recovered there.

C. Remaining Claims

Stokes raises a bevy of additional arguments, some down-

right frivolous and the rest simply meritless. We move through

the remaining issues with more dispatch.

22 No. 11-2734

1. Commerce Clause Challenge to 18 U.S.C. § 2423(b)

Relying on United States v. Lopez, 514 U.S. 549 (1995), and

United States v. Morrison, 529 U.S. 598 (2000), Stokes argues that

§ 2423(b) exceeds Congress’s power under the Commerce

Clause.3 Neither Lopez nor Morrison is helpful here. In Lopez the

Supreme Court explained that Congress is authorized under

the Commerce Clause to regulate three categories of activity:

(1) the use of the channels of interstate commerce; (2) the use

of the instrumentalities of interstate commerce, or persons or

things in interstate commerce; and (3) activities that have a

substantial relation to interstate commerce (that is, that

substantially affect interstate commerce). See Lopez, 514 U.S. at

558–59. Lopez and Morrison raised questions about the limits of

the third category—the “substantial effects” power—but

§ 2423(b) fits comfortably within the first category, the

“channels power.” The statute makes it a crime to travel in

interstate or foreign commerce “for the purpose of engaging in

any sexual act … with a person under 18 years of age.”

18 U.S.C. § 2423(b) (effective Oct. 30, 1998 to Nov. 1, 2002).

In keeping with these general principles, several circuits

have held that § 2423(b) is a proper exercise of the channels

power. See, e.g., United States v. Tykarsky, 446 F.3d 458, 470 (3d

Cir. 2006); United States v. Han, 230 F.3d 560, 562–63 (2d Cir.

2000). It’s worth emphasizing here that Stokes’s case does not

implicate the usual federalism concerns that animate most

Commerce Clause challenges. “Foreign commerce is

3

The Commerce Clause provides: “The Congress shall have Power … To

regulate Commerce with foreign Nations, and among the several States, and

with Indian Tribes … .” U.S. C O N ST . art. 1, § 8, cl. 3.

No. 11-2734 23

pre-eminently a matter of national concern.” Japan Line, Ltd. v.

County of Los Angeles, 441 U.S. 434, 448 (1979). In this regard,

the Fifth Circuit has affirmed a conviction under § 2423(b) on

almost identical facts. See United States v. Bredimus, 352 F.3d

200, 208 (5th Cir. 2003). In Bredimus the defendant was con-

victed of traveling to Thailand for the purpose of engaging in

sexual acts with minors. Id. at 201. The court rejected the

defendant’s Commerce Clause challenge to § 2423(b). Id. at

204–08.

Relatedly, Stokes contends that § 2423(b) is unconstitutional

because it criminalizes “mere thought” in interstate or foreign

commerce. Not so. The statute targets the use of the channels

of interstate and foreign commerce for a particular illicit

purpose—the purpose of engaging in a sexual act with a

minor—and not just “mere thought” in interstate or foreign

commerce. As the First Circuit noted in rejecting a similar

argument, “[p]roof of intent naturally means proving state of

mind, but that does not mean that one is punishing ‘mere

thought’ any more than that the requirement of proving mens

rea in most crimes means that one is solely punishing ‘mere

thought.’ ” United States v. Gamache, 156 F.3d 1, 8 (1st Cir. 1998).

Section 2423(b) lies well within Congress’s power under the

Commerce Clause.

2. Vagueness Challenge to 18 U.S.C. § 2423(b)

Stokes also contends that § 2423(b) is unconstitutionally

vague. This argument requires an examination of the full text

of § 2423(b) as it stood at the time of Stokes’s travel:

24 No. 11-2734

A person who travels in interstate commerce, or

conspires to do so, or a United States citizen or

an alien admitted for permanent residence in the

United States who travels in foreign commerce,

or conspires to do so, for the purpose of engag-

ing in any 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 shall be fined

under this title, imprisoned not more than

15 years, or both.

18 U.S.C. § 2423(b) (effective Oct. 30, 1998 to Nov. 1, 2002).

Stokes focuses on the phrase “sexual act … with a person

under 18 years of age that would be in violation of

chapter 109A.” He claims that this cross-reference renders the

statute unconstitutionally vague because some of the crimes

listed in chapter 109A (18 U.S.C. §§ 2241–2244) involve victims

under the age of 16, making the age requirements contradic-

tory and confusing.

Stokes’s vagueness challenge sounds in the Fifth Amend-

ment’s guarantee of due process. “A conviction or punishment

fails to comply with due process if the statute or regulation

under which it is obtained ‘fails to provide a person of ordi-

nary intelligence fair notice of what is prohibited … . ’ ” FCC v.

Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012) (quoting

United States v. Williams, 553 U.S. 285, 304 (2008)); see also

United States v. Jones, 689 F.3d 696, 701 (7th Cir. 2012) (“Vague-

ness doctrine rests on concerns about fair notice and arbitrary

enforcement.”); United States v. Plummer, 581 F.3d 484, 488 (7th

No. 11-2734 25

Cir. 2009) (A statute is unconstitutionally vague if it “ ‘does not

provide a person of ordinary intelligence a reasonable oppor-

tunity to know what is prohibited.’ ” (quoting United States v.

Lim, 444 F.3d 910, 915 (7th Cir. 2006))).

With respect to the intended victim’s age, the version of

§ 2423(b) under which Stokes was convicted has two basic

requirements: (1) the sought-after victim must be a person

under 18 years of age; and (2) the intended conduct must

qualify as an offense under chapter 109A if the conduct had

taken place within the special maritime and territorial jurisdic-

tion of the United States. Chapter 109A creates a series of sex

crimes, some of which do not contain victim-age requirements

at all and some of which pertain only to minor victims under

the age of 16. For example, under 18 U.S.C. § 2241(a), which

defines aggravated sexual assault, it is a federal crime to cause

another to engage in a sexual act by the use of force or threat

if the conduct occurs in the special maritime and territorial

jurisdiction of the United States. Section 2241(c), a different

subsection of the same statute, criminalizes sexual acts with a

person under the age of 12 within the same jurisdictional

limits. Under § 2243(a) it is a federal crime to engage in a

sexual act with a person older than 12 but younger than 16

within the same jurisdictional limits if the perpetrator is at least

four years older than the victim.4

The cross-reference, though perhaps awkwardly phrased,

does not introduce confusion. Together, § 2423(b) and the

4

There are other crimes listed in chapter 109A, but they are not relevant to

Stokes’s argument.

26 No. 11-2734

crimes listed in chapter 109A criminalize interstate and foreign

travel undertaken for any of the following purposes: (1) engag-

ing in a sexual act with a minor under the age of 12, see

§ 2241(c); (2) engaging in a sexual act with a minor between the

ages of 12 and 16 if the perpetrator is at least four years older

than the victim, see § 2243(a); and (3) engaging in a sexual act

with a minor between the ages of 16 and 18 by the use of force

or threat, see § 2241(a). The statute is not unconstitutionally

vague.5

3. Evidentiary Claims

i. Other-acts evidence under Rules 404(b), 413, and 414

Stokes objects to the admission at trial of his 2000 Florida

conviction for molesting two boys and the testimonial and

5

Stokes also argues that the indictment was unconstitutionally vague. The

indictment closely tracked the language of 18 U.S.C. § 2423(b), so this

argument overlaps with the challenge to the statute. Because the statute is

not unconstitutionally vague, the indictment isn’t either. And the indict-

ment was otherwise legally sufficient. An indictment

must accomplish three functions: [I]t must state each of the

elements of the crim e charged; it must provide adequate

notice of the nature of the charges so that the accused may

prepare a defense; and it must allow the defendant to raise

the judgment as a bar to future prosecutions for the same

offense.

United States v. Fassnacht, 332 F.3d 440, 444–45 (7th Cir. 2003). The indict-

ment met these requirements. Finally, the district court gave the jury clear

instructions on the age-of-victim issue as it pertained to the facts of this

case.

No. 11-2734 27

photographic evidence of his sexual abuse of Thai boys. The

district court allowed this evidence as proof of Stokes’s intent

in traveling to Thailand, as is permitted under Rule 404(b) of

the Federal Rules of Evidence. The district court also admitted

the evidence under Rules 413 and 414, which expressly permit

the introduction of the defendant’s prior acts of sexual assault

or child molestation in a prosecution for sexual assault or child

molestation.

Stokes first claims that Rules 413 and 414 are unconstitu-

tional under the Due Process Clause and the equal-protection

component of the Fifth Amendment. We have already rejected

this argument, see United States v. Julian, 427 F.3d 471, 487 (7th

Cir. 2005), as has the Tenth Circuit, see United States v. Castillo,

140 F.3d 874, 883 (10th Cir. 1998). We see no reason to revisit

the issue here.

Stokes also insists that the other-acts evidence was admitted

in violation of Rule 404(b). This argument is frivolous. Stokes’s

sexual abuse of young boys both before and after his travel to

Thailand was directly and centrally relevant to his intent at the

time of his travel, an element of the crime and a permitted

purpose for the admission of other-acts evidence under

Rule 404(b). See FED . R. EVID . 404(b)(2) (other-acts evidence

“may be admissible for [a nonpropensity] purpose, such as

proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident”).

Indeed, Stokes’s intent was the key disputed issue at trial. If

that were not enough, as we have noted, Rules 413 and 414

expressly permit the introduction of prior acts of sexual assault

or sexual molestation in a prosecution for sexual assault or

28 No. 11-2734

sexual molestation, overriding the propensity bar in Rule 404(a)(1).

Moreover, in a case quite similar to this one involving a

§ 2423(b) prosecution, we have upheld the admission of the

defendant’s past acts of child molestation under Rules 404(b),

413, and 414. See United States v. McGuire, 627 F.3d 622, 626–27

(7th Cir. 2010) (holding that “[t]he testimony [of the child

victims] was admissible as evidence of the defendant’s modus

operandi (and thus not excludable under Rule 404(b) of the

Federal Rules of Evidence), and it was also admissible under

Rules 413 and 414 as evidence of the defendant’s previous

crimes” (citation omitted)). We have also upheld the admission

of the defendant’s past acts of child molestation to show

motive in child-pornography cases. See, e.g., United States v.

Russell, 662 F.3d 831, 846–47 (7th Cir. 2011) (holding that prior

molestation was allowed under Rule 404(b) to show defen-

dant’s motive in taking obscene photographs of children);

United States v. Sebolt, 460 F.3d 910, 917 (7th Cir. 2006) (holding

that prior acts of sexual misconduct with a child are admissible

to establish defendant’s sexual interest in children and motive

under Rule 404(b)).

Finally, this evidence was not unfairly prejudicial to Stokes

under Rule 403. The government limited its photographic

evidence to 20 representative images and presented the

testimony of only two of Stokes’s many victims.

ii. Evidence of Stokes’s changed lifestyle

Stokes sought to introduce evidence that he dramatically

changed his lifestyle following the search of his home in 2003.

No. 11-2734 29

Recall that three years passed between the October 2003 search

and Stokes’s arrest in 2006. Stokes wanted to testify that during

this time, he got married, moved to a different area of Thai-

land, held a respectable position in a university, and estab-

lished strong relations with his wife’s family. The district court

excluded this evidence as irrelevant. This ruling was sound.

Any change in Stokes’s ways after October 2003 was utterly

irrelevant to his purpose in traveling to Thailand in March 2000

and January 2002.

4. Sufficiency of the Evidence

Stokes next claims that the government’s evidence was

insufficient to convict him. This argument is frivolous. A

defendant challenging the sufficiency of the evidence faces an

intimidating standard of review. We ask only “whether after

reviewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979). Stokes plows ahead

undeterred, arguing that the evidence was insufficient because

it “only established a general propensity to engage in illicit

sexual activity” and did not “in any way speak to his specific

intent on the relevant date” of his travel.

The illicit purpose of Stokes’s travel was unmistakably

established by the abundant evidence of what he did before

and after the travel. Immediately after being convicted of

misdemeanor battery for molesting two young boys in Florida,

he sought and received permission to move to Thailand. Less

than a month later he made the move, and within two weeks

30 No. 11-2734

of arriving in Thailand, began enticing young Thai boys for

sex. This activity continued unabated for three years, with a

brief hiatus for a three-week trip to the United States in

December 2001. His return trip to Thailand in January 2002

was marked by an immediate resumption of his sexual activity

with young Thai boys. The evidence was overwhelming and

easily sufficient to convict Stokes under § 2423(b).

5. Ineffective Assistance of Counsel

Stokes also argues that his counsel had insufficient time to

prepare for trial and was constitutionally ineffective. Chal-

lenges to trial counsel’s performance are best brought on

collateral review rather than direct appeal. See Massaro v.

United States, 538 U.S. 500, 504–05 (2003) (“When an ineffective-

assistance claim is brought on direct appeal, appellate counsel

and the court must proceed on a trial record not developed

precisely for the object of litigating or preserving the claim and

thus often incomplete or inadequate for this purpose.”). Stokes

raised the issue of counsel’s ineffectiveness in an underdevel-

oped argument on motions after verdict. The district court

denied relief, and Stokes asks us to address the issue now. We

can’t think of a good reason for that strategy. “Circuit law is

clear … that a ‘defendant who complains on direct appeal

about the quality of his lawyer can’t try again on collateral

attack unless there has been an intervening change of law.’ ”

Peoples v. United States, 403 F.3d 844, 846 (7th Cir. 2005)

(quoting Ryan v. United States, 214 F.3d 877, 879 (7th Cir. 2000)).

We think it best to leave the issue for collateral review.

No. 11-2734 31

6. Sentencing Arguments

In the first of several sentencing arguments, Stokes claims

that the district court erred by increasing his offense level

under U.S.S.G. § 2G2.1(b)(1)(A) because some of his victims

were under 12 years old. This argument, based on Apprendi v.

New Jersey, 530 U.S. 466, 490 (2000), is frivolous and has been

for some time. The argument “ignores the effect that [United

States v. Booker, 543 U.S. 220 (2005)] had on federal sentencing.”

United States v. White, 472 F.3d 458, 464 (7th Cir. 2006). Because

Booker rendered the sentencing guidelines advisory, “sentenc-

ing enhancements need not be found by a jury beyond a

reasonable doubt because they no longer alter the statutory

maximum.” Id. Stokes also relies on United States v. O’Brien,

130 S. Ct. 2169 (2010), but we cannot tell why. O’Brien involved

a statutory penalty provision.

Stokes also objects to the imposition of a guidelines

adjustment for obstruction of justice under U.S.S.G. § 3C1.1. He

has misunderstood the district court’s guidelines calculation.

The court did not in fact apply the obstruction adjustment

because with or without it, Stokes’s advisory guidelines range

was life, exceeding the statutory maximum of 15 years.

Finally, Stokes’s sentence is unaffected by the Supreme

Court’s recent decision in Peugh v. United States, 133 S. Ct. 2072

(2013). To calculate Stokes’s advisory sentencing range, the

district court used the 2010 guidelines manual in effect at the

time of sentencing. This approach was consistent with then-

existing circuit precedent. See United States v. Demaree, 459 F.3d

791 (7th Cir. 2006). In Peugh, however, the Supreme Court

abrogated Demaree.

32 No. 11-2734

Peugh addressed “whether there is an ex post facto violation

when a defendant is sentenced under Guidelines promulgated

after he committed his criminal acts and the new version

provides a higher applicable Guidelines sentencing range than

the version in place at the time of the offense.” 133 S. Ct. at

2078. The Court held that “[a] retrospective increase in the

Guidelines range applicable to a defendant creates a sufficient

risk of a higher sentence to constitute an ex post facto violation.”

Id. at 2084. But the Court also noted that an ex post facto error

may be harmless in “cases in which the record makes clear that

the District Court would have imposed the same sentence

under the older, more lenient Guidelines tha[n] it imposed

under the newer, more punitive ones.” Id. at 2088 n.8.

The parties submitted supplemental briefs on the effect of

Peugh on Stokes’s sentence. They agree that the adjusted

offense level would have been lower under the guidelines in

effect in 2002, the time of Stokes’s last travel to Thailand. But

even with the reduced offense level, the advisory guidelines

range would have been 210 to 262 months, still well above the

statutory maximum of 15 years.

Moreover, the district judge made it abundantly clear that

she would impose the 15-year maximum no matter what the

guidelines advised her to do:

I am of the view that nothing short of the

maximum penalty is appropriate here. I am

imposing a sentencing of 180 months, which is

what the statute calls for.

….

No. 11-2734 33

I am satisfied that Mr. Stokes needs to be

separated from society for as long as I have it in

my power to do that. 180 months.

The judge could not have been clearer. Accordingly, Peugh

does not affect this case for two reasons. Stokes’s sentencing

range exceeded the statutory maximum no matter which

guidelines manual applied, so Stokes never actually faced a

“retrospective increase in the Guidelines range applicable to

[him].” Id. at 2084. And because the judge would have imposed

the statutory maximum regardless, any arguable ex post facto

error was harmless.

AFFIRMED .