Frahm moves to dismiss 1 of 3 charges

Former local high school band teacher David Matthew Frahm has moved to dismiss count three of the superseding indictment filed against him pursuant to a pending sexual misconduct case.

Last Wednesday, Frahm, through his attorney Richard Miller, filed a motion to dismiss count three of the superseding indictment filed against him by the United States Attorney which essentially charged him with engaging in illicit sexual conduct while “residing in … a foreign country”.

Miller, in his motion, poses the question “how far can the federal government reach across the globe to charge and individual?”

“When you travel abroad, it goes without saying that you must obey the laws of the country you are in. If, say, you drive drunk in a foreign country and get into an accident, you can expect to be held accountable for drunk driving in that country’s courts, under that country’s laws. But would you expect, and think it fair, for the United States Government to charge you with DUI? How far can the federal government reach across the globe to charge you, merely because you’re a U.S. citizen, if you’re accused of committing a crime abroad? If you were traveling abroad and the crime affects foreign commerce, it turns out the answer is: Pretty darned far. But what if you weren’t traveling abroad but were actually living abroad? That’s the question defendant David Frahm, by and through counsel, raises in this motion,” he said.

Miller, in defense of Frahm, argues that the U.S. Congress was without power under the Foreign Commerce Clause to enact the 2013 amendment to 18 U.S.C. §2423(c) criminalizing conduct occurring entirely abroad by a person residing abroad merely by virtue of that person’s U.S. citizenship.

“Although Congress’ power to enforce treaties may be broad, this statute, as amended, exceeds the bounds of the Necessary and Proper Clause. For these reasons, count three should be dismissed.,” he said.

Miller states that this case raises the question of whether Congress has the authority to criminalize conduct by American citizens residing abroad that occurs abroad and is not alleged to have any connection to foreign commerce.

“The Ninth Circuit has determined that Congress acted within its powers under the Foreign Commerce Clause when it criminalized travel in foreign commerce coupled with engaging in non-commercial sexual activity while abroad. The Ninth Circuit has not spoken on the whether Congress acted within its constitutional powers in criminalizing such conduct by Americans merely residing abroad. The Foreign Commerce Clause does not grant Congress power to regulate extraterritorial non-commercial activity of U.S. citizens who merely reside abroad,” he said.

According to Saipan Tribune archives, Frahm pleaded guilty before a court in Malaysia earlier this year to possessing child pornography.

In addition, Frahm pleaded not guilty to the sexual harassment charges filed against him after allegedly producing sexual material when he allegedly filmed a minor showering in her home.

Back in April, the U.S. government filed a superseding indictment in the U.S. District Court for the NMI against Frahm after he was arrested in Malaysia.

Frahm allegedly left the CNMI sometime before or after he was charged with one count of attempted sexual exploitation of a child back in 2023.

Following his arrest in Malaysia, assistant U.S. attorney Eric O’Malley filed a superseding indictment against Frahm, adding one count of possession of child pornography and one count of engaging in illicit sexual conduct in foreign places. That’s on top of the existing charge of attempted sexual exploitation of a child.

The superseding indictment replaces the indictment issued last September 2023.

In the “attempted sexual exploitation of a child” charge, the indictment states that Frahm attempted to take a photo of a minor while using the toilet at the high school he worked for, Marianas High School, back in March 2019.

As for the one count of possession of child pornography, Frahm was allegedly caught in March 2019 of possessing a computer file that depicted a minor child engaged in sexually explicit conduct. The indictment states that the image was created in Ukraine and distributed via the internet.

For the one count of illicit sexual conduct in foreign places, Frahm was allegedly caught producing child pornography in Malaysia.