N.J. businessman set for trial in test of ``sex tourism'' law

By MARYCLAIRE DALE
Associated Press Writer

PHILADELPHIA -- Seven years ago, Russian courts convicted a wealthy American motel owner of molesting children and sent him to prison, but later decided to just expel him.

The experience did little to keep Anthony "Mark" Bianchi stateside. Over the next few years, he traveled to Moldova, Romania, Cambodia and Cuba _ trips all designed, U.S. officials say, to recruit destitute boys for sexual trysts.

Bianchi, 44, of North Wildwood, N.J., was scheduled to go on trial Monday on charges he assaulted nearly a dozen minors on foreign soil. And this time _ under a largely untested 2003 law designed to thwart "sex tourism" _ he will be tried in federal court in Philadelphia.

More than 50 cases have been brought under what's known as the Protect Act, and so far, more than 30 of the defendants have been convicted, the Justice Department says. But only one federal appeals court has reviewed the law, upholding it in a 2-1 ruling.

Critics, including dissenting 9th U.S. Circuit Judge Warren J. Ferguson, charge that Congress reached too far in giving international police power to the U.S. government. Ferguson asked if U.S. agents should likewise round up Americans who buy marijuana in Amsterdam or Cuban cigars in Timbuktu.

"It is a very unusual theory to say that you can prosecute an American citizen in this country for actions taken completely in another country," said Rory Little, a former federal prosecutor and Justice Department official who is now a University of California law professor. "This is not a crime against America, although it's a crime against universal morality."

The majority in the 9th Circuit case found the law to be an appropriate extension of the Constitution's Foreign Commerce Clause, since money changed hands.

The case involved Michael L. Clark, a 70-year-old veteran from Seattle who in 2004 became the first person prosecuted under the law. Clark pleaded guilty to molesting boys in Cambodia, while reserving the right to challenge the law itself.

Beyond the constitutional issues, defense attorneys say the cases are a logistical nightmare to defend, in part because they lack the diplomatic and political clout of the U.S. government.

Before Clark's plea, the defense traveled to Cambodia to interview the reported victims.

"To do this in a foreign country, you have to send an investigator over there, and that person has to make contacts in the community. That may not be possible, given the language differences and cultural differences," said Michael Filipovic, an assistant federal public defender in Seattle.

Investigators believe Clark may have molested as many as 50 children. The U.S. Supreme Court declined to hear his appeal of the 9th Circuit ruling, leaving him to serve a 97-month sentence.

Other Americans charged to date include a teacher, an anesthesiologist, a Peace Corps volunteer and an 85-year-old man in a wheelchair, according to the U.S. Immigration and Customs Enforcement office.

Bianchi's trial, before U.S. District Judge Bruce W. Kauffman, is expected to last three weeks. It is being held in Pennsylvania rather than New Jersey because he flew out of Philadelphia for the alleged sex trips.

Prosecutors charge that Bianchi, through a local translator who helped procure the boys, assaulted nearly a dozen teenagers in exchange for money, liquor, gifts and trips, including trips to Cuba and Romania.

The translator, Ion Gusin, is serving a 20-year sentence in Moldova on related charges, and won't be available to testify in person in Philadelphia.

Prosecutors do plan to bring about 20 potential witnesses to the downtown courthouse from remote parts of Moldova and Romania, seven time zones away. Few speak English.

"Americans go to these countries and create a pretty bad image," said Assistant U.S. Attorney Michael Levy, a prosecutor in the case. "A hundred dollars can buy a lot of food for a pretty long time for a lot of these families. ... This is the kind of case that shows why there's a need for this (law)."

Mark Geragos, the high-profile lawyer representing Bianchi, said the discovery process has shown what defense attorneys are up against in trying to secure a fair trial.

"The majority of potential defense witnesses live in a Moldovan village where indoor plumbing is a luxury, and much of the transport is by horse and carriage," he wrote in a pretrial motion.

"The idea of coming to the U.S. would be akin to an American citizen contemplating a voyage to the moon," he said.

Records make it difficult to even verify the age of the reported victims, he said. He plans to argue that several of the boys recanted their accusations.

Prosecutors said it was Geragos who canceled recent depositions in Moldova that the U.S. government had arranged for him, after a hurried exchange of diplomatic letters. Geragos said authorities had not arranged a video hookup for his jailed client.

Bianchi asked the U.S. to pay his investigative costs. He said the case has left him penniless after 19 months in prison. But prosecutors charge he was worth $2 million before he starting moving assets to family members.

The judge apparently agreed, ordering Bianchi to bear most of his discovery costs.

Little, the law professor, believes defendants face real challenges under the Protect Act that Congress may soon have to sort out, perhaps through new rules of criminal procedure.

Filipovic, the public defender from Seattle, offered another solution.

"I've always wondered why it wouldn't be more efficient to simply help the foreign governments to address these problems themselves," he said.

"The statement you're making when you don't do that is that the governments are so corrupt they can't do it. To me, that's sort of paternalistic."