The defense for Doug Perlitz ’92, the Fairfield alumnus who is currently facing 10 counts of charges relating to travel to a foreign country and engagement in illicit sexual conduct, filed a motion to dismiss the charges on several grounds.

The defense argued four main points to dismiss the case in a memorandum in support of their motion to dismiss the charges:

  1. The indictment fails to allege the necessary elements of the crimes, mainly the travel aspect of the statues in question.
  2. There is a lack of a proper venue because the crimes did not occur in Conn.
  3. The statues are unconstitutional because they exceed Congress’s authority to regulate commerce.
  4. There are international law and Sixth Amendment issues.

First, the defense argued, “The indictment is insufficient on its face, as it fails to allege necessary elements of the crimes in question, and therefore should be dismissed.”

There are two statues involved in the crimes charged to Perlitz. The first applies to counts one through seven and applies to a U.S. citizen “who travels in foreign commerce, for the purpose of engaging in any illicit sexual conduct.” The second applies to counts eight through 10 and applies to a U.S. citizen “who travels in foreign commerce, and engages in any illicit sexual conduct.”

They are similar, but also very different. The first statue involves the intent of the travel, while the second only needs to prove the sexual conduct. Both, however, require the “travel in foreign commerce” element.

The defense asked in their memorandum, “How can Mr. Perlitz be expected to defend himself against allegations regarding foreign travel, and particularly his intent in doing so, if he cannot even know what act of travel is the focus of the charge in question?”

Yale Law School professor Steven Duke, who writes and teaches on criminal law and procedure, was reluctant to opine on the arguments without first seeing the government’s response, but he did say, “In most federal crimes requiring a particular intent or motive it is not a defense that there were other motives as well as the prohibited one. It is surely not necessary that the Government prove that the defendant’s sole purpose in travel to Haiti was to have sex with boys.”

The defense also argued that the indictment failed to adequately allege the elements of foreign travel, instead using broad dates and timeframes. The defense argued that the omission of particulars could allow for double jeopardy to occur if Perlitz is later indicted with travel to engage in illicit sexual conduct on specific dates.

The second main argument of the defense was that the indictment should be dismissed for lack of a proper venue.  It argued that the crimes did not occur in Connecticut and the only ties are the fact the Haiti Fund was founded in Connecticut and the fund raising took place in Connecticut.

However, according to Duke, if the case is dismissed due to lack of a proper venue, double jeopardy does not apply and Perlitz could be indicted in any venue which is proper.

Thirdly, the defense raised the issue of the constitutionality of the statues in question and argued that they exceed Congress’s authority to regulate commerce. The defense acknowledged that other courts have rejected challenges, but “makes this argument largely to preserve the issue for possible further review at a later date.”

If the court did find the statutes were unconstitutional, the result would be a direct appeal to the U.S. Supreme Court, according to Duke.

Finally, the defense argued that there are international law and Sixth Amendment rights issues raised by this indictment. The defense said that the crimes occurred in Haiti and had no effect on the United States or its citizens, so it would be difficult for the U.S. to permit an extraterritorial application of a criminal statute. The defense also argued that Perlitz faces an enormous hurdle in trying to assemble witnesses in his defense due to the distance of the courtroom from Haiti. Perlitz’s team also worried how the recent earthquake in Haiti will affect the ability for the proceedings to continue.

If the court does not dismiss the charges, the defense also filed a motion for a bill of particulars, which asks the government to specify the dates and times of all travel and the dates and times of all alleged abuse.

According to Thomas Carson of the U.S. Attorney’s Office, the government will respond in court filings.

Check back for updates in the coverage of this trial.

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