Date: 08-30-2018

Case Style:

Case Number: 16-6075

Judge: Matheson

Court: United States Court of Appeals for the Tenth Circuit on appeal from the Western District of Oklahoma (Oklahoma County)

Plaintiff's Attorney: Steven W. Creager, Assistant United States Attorney (David P. Petermann, Assistant
United States Attorney, and Mark Yancey, United States Attorney, with him on the
brief), Oklahoma City, Oklahoma, for Plaintiff - Appellee.

Defendant's Attorney: Stephen Jones (Ashley Morey with him on the brief)

Description: Matthew Durham appeals his convictions and sentence on four counts for illicit
sex with minors in Kenya after travelling there from the United States. This opinion
addresses the following eight issues presented for appellate review.
1. Is 18 U.S.C. § 2423(c), the statute on which the convictions
were based, unconstitutional on its face and as applied to Mr.
Durham because it exceeds Congress’s power under the
Foreign Commerce Clause in Article 1, Section 8, Clause 3 of
the Constitution? We hold that § 2423(c) is constitutional
because Congress could rationally conclude that travel abroad
followed by illicit sex with a minor, in the aggregate,
substantially affects foreign commerce.
2. Did the district court err when it denied Mr. Durham’s
supplemental motion for a new trial alleging that the
Government suppressed exculpatory evidence in violation of
Brady v. Maryland, 373 U.S. 83 (1963)? We affirm because
Mr. Durham has not shown that nondisclosure of the evidence
prejudiced his case.
3. Did the district court err under Federal Rules of Evidence
401, 403, and 404(b) when it allowed admission of Mr.
Durham’s statements about his struggles with child
pornography and homosexuality? We affirm. The district
court did not abuse its discretion in determining the evidence
was intrinsic, relevant, and not unduly prejudicial.
4. Did the district court err when it denied Mr. Durham’s motion
for a new trial alleging that the Government made improper
statements about his struggle with homosexuality during
cross-examination of Mr. Durham and during closing
argument? We affirm under plain error review because Mr.
Durham cannot show that the prosecutor’s statements affected
his substantial rights.
5. Did the district court err in admitting cellphone video
recordings because they were not properly authenticated? We
affirm. The district court did not abuse its discretion because
the Government presented sufficient foundation evidence for
authentication.
2
6. Did the district court err when it admitted the victims’ entire
medical records? We affirm because Mr. Durham invited any
error and because his arguments alleging lack of
authentication, inadmissible hearsay, and unfair prejudice do
not show that the district court erred in admitting the records.
7. Did the district court abuse its discretion and impose a
substantively unreasonable sentence when it sentenced Mr.
Durham to 480 months in prison? We affirm because Mr.
Durham cannot overcome the presumption that the district
court reasonably weighed the sentencing factors under 18
U.S.C. § 3553(a) or show that its sentencing decision exceeds
the bounds of permissible choice.
8. Should the convictions be reversed because the errors,
considered cumulatively, deprived him of a fair trial? Mr.
Durham cannot show that any errors that may be eligible for
cumulative error review cumulatively affected his substantial
rights.
Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we
therefore affirm Mr. Durham’s convictions and sentence.
I. BACKGROUND
A. Factual Background
On May 1, 2014, Mr. Durham, then 19 years old, arrived in Kenya on his fourth
Christian missionary trip there. ROA, Vol. 12 at 1818 (TT 1204); ROA, Vol. 10a at 25.1
In Kenya, he volunteered at the Upendo Children’s Home (“Upendo”), where 33 children
from impoverished backgrounds live. ROA, Vol. 12 at 695-97, 787 (TT 81-83, 173).
Upendo Kids International, an Oklahoma non-profit founded and directed by Eunice
Menja, operates Upendo. Id. at 787, 960 (TT 173, 346), Aplee. Br. at 3. Ms. Menja’s
1 “ROA” denotes “Record on Appeal.” “TT” denotes “Trial Transcript.”
3
sister, Josephine Wambugu,2 is the manager of Upendo. ROA, Vol. 12 at 695, 788 (TT
81, 174).
On his previous trips to Kenya, Mr. Durham had stayed with a host family, but on
the fourth trip, he asked to stay at Upendo instead. Id. at 1811 (TT 1197). On June 12,
2014, Ms. Wambugu entered one of the girls’ bedrooms and saw Mr. Durham lying on a
bed with one of the girls. Id. at 705, (TT 91). When Ms. Wambugu came into the room,
Mr. Durham left quickly. Id. at 705-06 (TT 91-92). Ms. Wambugu then spoke to some
of the girls, who said they had “been doing bad manners” with Mr. Durham. ROA, Vol.
12 at 710-11 (TT 96-97). The children used “bad manners” to mean engaging in sexual
acts. See id. at 662 (TT 48); 1412 (TT 798); 1443-44 (TT 829-30).
On June 13, Ms. Menja, Ms. Wambugu, Jason Jeffries (another American
volunteer at the home), and Tom Mutonga (a local supporter of Upendo) met with Mr.
Durham at Upendo. Id. at 817, 825 (TT 203, 211). When he entered the meeting, Mr.
Durham yelled, “You can fire me, fire me now.” Id. at 825 (TT 211). Ms. Menja
accused him of hurting the girls and asked for his response. Id. at 826 (TT 212). Mr.
Durham said he did not remember, and asked to speak to Ms. Wambugu alone. Id. at
826-27 (TT 212-13).
Once alone, he asked Ms. Wambugu to defend him, and she asked him whether he
had done the acts reported by the girls. Id. at 723 (TT 109). He said, “Yes, I did it. Yes,
I did.” Id. at 723 (TT 109). But when he went back to talk to the group, Mr. Durham
2 The trial transcript spells Ms. Wambugu’s first name as “Josphine,” but court
records refer to her as “Josephine.” See ROA, Vol. 1 at 40. We therefore assume her
name is properly spelled “Josephine.”
4
again said he could not remember assaulting the children. He added that he had been
struggling with child pornography and homosexuality. Id. at 724, 828 (TT 110, 214).
Ms. Menja told Mr. Durham she was going to take him to a different location, explaining
that, for the safety of the children, she did not want him to stay at the children’s home.
Id. at 829 (TT 215). He spent the next three days at an empty house owned by Ms.
Menja’s father-in-law. Id. at 830 (TT 216). One of the volunteers had taken Mr.
Durham’s passport after hearing about the allegations. Id. at 1052 (TT 438).
During his time away from Upendo, Mr. Durham sent his father text messages
stating: “I don’t want to live anymore” and “I hate myself. I deserve to burn in hell.”
ROA, Vol. 9 at 78 (Gov’t Exh. 29). He sent a text to Ms. Menja saying: “Tell all the kids
how sorry i am, and i am praying for their forgiveness every hour.” Id. at 18 (Gov’t Exh.
10) (errors in original).
Mr. Durham’s great-uncle arranged for Mr. Durham to fly back to Oklahoma.
ROA, Vol. 12 at 1682-83 (TT 1068-69). On June 17, before he flew out, Mr. Durham
met with Ms. Menja, Ms. Wambugu, and Mr. Mutonga at the Seagull restaurant. Id. at
855 (TT 241). Ms. Menja video recorded some of the ensuing conversation in multiple
videos on her cellphone (the “Seagull Confession Videos”). Id. at 856 (TT 242). Mr.
Durham knew that he was being recorded and asked that the video be kept on. Gov’t
Exh. 4 at 12:09. On the longest video, Ms. Menja asked Mr. Durham about the
allegations. He responded that he had struggled with a “temptation to touch children and
to be with other men.” Gov’t Exh. 4 at 1:55-2:01. When Ms. Menja started asking about
5
specific children who had accused him of abuse, Mr. Durham admitted to assaulting
those children. See, e.g., id. at 5:39-6:15.
After Ms. Menja stopped recording the video, she said she could not listen any
more, and Mr. Durham offered to write down his confession. ROA, Vol. 12 at 865 (TT
251). He wrote detailed statements about how he abused or otherwise engaged in
inappropriate behavior with over ten of the children. ROA, Vol. 9 at 8-16. The
following relate to three of the four charges of conviction and each concerns a different
victim:
 “I would take her to the bathroom at night and hold her down
and rape her. This happened on several occasions. I also
made her watch me do things to [another girl]. I told her
never to tell anyone, and that I loved her.” ROA, Vol. 9 at 8
(Gov’t Exh. 9).
 “I would take her to the bathroom and have her take off her
clothes. I would touch myself and her. I don’t know how
many times it occurred. Also, when we had our sleepovers
Friday night, [she] always made a point to sleep by me. I
would spoon with her until I woke up.” Id. at 15 (Gov’t Exh.
9).
 “I took her to the bathroom and force[d] her to have sex with
me. This happened on more than one occasion. I made her
swear to never tell anyone . . . . Any time I try to read the
bible or pray, this image comes to my [head].” Id. at 16
(Gov’t Exh. 9).
Ms. Wambugu next spoke to the Kenyan police, who told her they could not arrest
Mr. Durham. ROA, Vol. 12 at 873-74 (TT 259-60). Ms. Menja returned Mr. Durham’s
passport to him, and he flew out of Kenya the night of June 17. Id. at 874-75 (TT 260-
61).
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Ms. Menja took six victims to a doctor the next day, June 18. Id. at 875 (TT 261).
Medical workers examined them and determined five out of six had perforated hymens.
Id. at 1187-88 (TT 574-75). Ms. Menja later reported what had happened to the U.S.
Embassy. Id. at 875 (TT 261).
B. Procedural Background
Mr. Durham was arrested in the United States on July 18, 2014. ROA, Vol. 1 at
77. A grand jury returned an original indictment on August 5, 2014, charging three
counts. Id. at 130-31. It later returned two superseding indictments. Id. at 248, 467.
The second, the operative indictment, was returned in April 2015 and charged Mr.
Durham with eight counts of interstate travel with intent to engage in a sexual act with a
child, in violation of 18 U.S.C. § 2241(c), and eight counts of traveling in foreign
commerce and engaging in illicit sexual conduct with a minor, in violation of 18 U.S.C. §
2423(c). Id. at 467-76. The indictment identified eight victims by their initials. Id. Mr.
Durham also was charged with one count of traveling in foreign commerce with intent to
engage in illicit sexual conduct in violation of 18 U.S.C. § 2423(b).
Trial was held between June 10, 2015, and June 18, 2015. Five of the eight
alleged victims testified, including the victims associated with each of the four
convictions. ROA, Vol. 12 at 658, 1406, 1426, 1440, 1458. Dr. Alawiya Abdulkadir
Mohamed, who prepared some of the medical documentation in Kenya, also testified for
the prosecution. Id. at 1186-88 (TT 572-74). Mr. Durham’s written and videotaped
confessions and his text messages were admitted into evidence. Id. at 737, 857, 1248 (TT
123, 243, 634).
7
Mr. Durham testified in his defense. ROA, Vol. 12 at 1792 (TT 1178). The
defense also presented testimony from a professional counselor about forensic interviews
with victims of sexual assault, id. 1506, 1515 (TT 892, 901), and from a sexual assault
nurse examiner, Lisa Dunson, about the medical findings in the case, id. at 1581 (TT
967). Mr. Durham’s mother, father, and great-uncle also testified in his defense. Id. at
1638, 1721, 1759 (TT 1024, 1107, 1145).
The jury found Mr. Durham guilty on seven counts of traveling in foreign
commerce and engaging in illicit sexual conduct with a minor in violation of 18 U.S.C.
§ 2423(c). ROA, Vol. 3 at 193-94. It found him not guilty of the remaining counts. Id.
Mr. Durham moved for arrest of judgment, arguing that 18 U.S.C. § 2423(c) is
unconstitutional. Id. at 229. He also moved for acquittal and a new trial. Id. at 277, 305.
Mr. Durham supplemented his motion for a new trial when he learned the prosecution
had failed to disclose information favorable to the accused during trial. Id. at 489.
The district court denied the motions for arrest of judgment and a new trial. Id. at
752, 760, 776, 811. It granted acquittal on three of the § 2423(c) counts because the
Government had not shown Mr. Durham engaged in “sexual conduct” as defined by the
statute, but it denied acquittal on the other four counts. Id. at 762-67, 774-75.
The final Presentence Investigation Report (“PSR”) calculated a recommended
sentence of 1,440 months in prison under the United States Sentencing Guidelines (the
“Guidelines”), based on Mr. Durham’s total offense level and criminal history category.
ROA, Vol. 7 at 142. This represented the statutory maximum of 30 years for each count
of conviction, running consecutively. Id. at 142 n.3. The district court sentenced Mr.
8
Durham to 480 months in prison, a sentence it characterized as a variance below the
Guidelines range. ROA, Vol. 3 at 844; ROA, Vol. 7 at 477; ROA, Vol. 13 at 158.
II. DISCUSSION
Mr. Durham raises eight issues on appeal. As to each issue, we present the
applicable standard of review and also provide additional factual, procedural, and
legal background, as needed.
A. Issue One: Constitutionality of 18 U.S.C. § 2423(c) under the
Foreign Commerce Clause
Mr. Durham challenges the constitutionality of 18 U.S.C. § 2423(c), arguing that
Congress exceeded its authority under the Foreign Commerce Clause. See U.S. Const.
art. I, § 8, cl. 3. Section 2423(c) makes it a crime for “[a]ny United States citizen or alien
admitted for permanent residence [to] travel[] in foreign commerce . . . and engage[] in
any illicit sexual conduct with another person.” 18 U.S.C. § 2423(c). “Illicit sexual
conduct” includes any commercial or noncommercial sexual act with a person under the
age of 18, id. § 2423(f)(1)-(2), and the production of child pornography, id. § 2423(f)(3).
Mr. Durham was charged under § 2423(c) for traveling abroad and engaging in
noncommercial sexual acts with minors. He argues that, because noncommercial illicit
sexual activity abroad has no relation to foreign commerce, the statute is unconstitutional
on its face and as applied to him and his conviction therefore cannot stand.3 We review
3 Mr. Durham brings both a facial and an as-applied challenge. See Aplt. Br.
at 48. The Government contends he has waived his as-applied challenge, but even if
this is so, we may resolve a facial challenge by conducting an as-applied analysis.
We previously have said that “we need not and do not address [a] facial
challenge” when “we conclude the as-applied challenge fails.” United States v.
9
his challenge de novo. United States v. Pompey, 264 F.3d 1176, 1179 (10th Cir. 2001)
(“We review challenges to the constitutionality of a statute de novo.” (quotations
omitted)); see also People for Ethical Treatment of Prop. Owners v. U.S. Fish & Wildlife
Serv. (PETPO), 852 F.3d 990, 1000 (10th Cir. 2017), cert. denied, 138 S. Ct. 649 (2018).
We reject Mr. Durham’s constitutional challenge to § 2423(c). Congress adopted
this provision and several others in 2003 as part of a broad regulatory effort that started in
1907 to combat international sex trafficking. As the following discussion shows,
Congress could reasonably conclude that United States citizens and permanent residents
who, in the aggregate, travel to foreign countries and commit illicit sex acts there
substantially affect foreign commerce. As a result, we must defer to congressional
judgment and uphold § 2423(c).
1. Section 2423(c) and Congress’s Efforts to Combat Sex Trafficking
Section 2423(c) makes it a crime for “[a]ny United States citizen or alien admitted
for permanent residence [to] travel[] in foreign commerce . . . and engage[] in any illicit
Morgan, 748 F.3d 1024, 1031 (10th Cir. 2014). For a statute to be facially
unconstitutional, Mr. Durham “must establish that [the] law is unconstitutional in all
of its applications.” City of Los Angeles v. Patel, 135 S. Ct. 2443, 2451 (2015)
(quotations omitted); cf. United States v. Stevens, 559 U.S. 460, 473 (2010) (“In the
First Amendment context . . . this Court recognizes a second type of facial challenge,
whereby a law may be invalidated as overbroad if a substantial number of its
applications are unconstitutional . . . .” (quotations omitted)).
We therefore address Mr. Durham’s facial challenge through an as-applied
analysis. Under § 2423(c), Mr. Durham was convicted of engaging in illicit sexual
conduct abroad after traveling in foreign commerce, the paradigmatic conduct
targeted under the provision. See, e.g., United States v. Bollinger, 798 F.3d 201,
203-04 (4th Cir. 2015), cert. denied, 136 S. Ct. 2448 (2016); United States v.
Pendleton, 658 F.3d 299, 301-02 (3d Cir. 2011). Because we conclude that § 2423(c)
is constitutional as applied to Mr. Durham, he cannot succeed on either a facial or
as-applied challenge.
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sexual conduct with another person.” 18 U.S.C. § 2423(c). It is situated within a broad
anti-sex trafficking statutory scheme that Congress constructed through a century of
legislation. Congress attempted to address sex trafficking in the early 1900’s by
prohibiting the importation of women and girls for sexual exploitation. Expanding on
these efforts, it enacted legislation for the prosecution of individuals who traveled abroad
intending to engage in sex tourism. But proving intent was difficult. In response,
Congress passed § 2423(c), which targets individuals who travel abroad and engage in
illicit sexual conduct regardless of intent. When reviewed in historical context and the
overall legislative scheme, Congress reasonably viewed § 2423(c) as playing an
important role in its broader efforts to combat international sex tourism.
The following discussion describes how § 2423(c) facilitates Congress’s efforts to
combat international sex tourism. We provide a brief overview of Chapter 117 in Title
18 of the United States Code, which contains 18 U.S.C § 2423 and other anti-trafficking
provisions; chart the historical development of § 2423; and review the legislative history
leading to the enactment of § 2423(c).
a. Provisions of the statutory scheme
Chapter 117 criminalizes various activities related to sex trafficking. See 18
U.S.C. §§ 2421-2428 (titled “Transportation for Illegal Sexual Activity and Related
Crimes”). It generally prohibits the knowing transport of “any individual in interstate or
foreign commerce . . . with [the] intent that such individual engage in prostitution, or in
any sexual activity for which any person can be charged with a criminal offense.” Id.
§ 2421 (titled “Transportation generally”). It also targets other activities that facilitate
11
sex trafficking. See, e.g., id. § 2422 (coercion or enticement of individuals to engage in
prostitution or illicit sexual activity); id. § 2424 (harboring individuals for purpose of
prostitution); id. § 2425 (transmission of information to entice individuals into illicit
sexual activity).4
Title 18 U.S.C. § 2423, which falls within Chapter 117, deals specifically with the
trafficking and sexual exploitation of minors. See id. § 2423 (titled “Transportation of
minors”). Its seven provisions criminalize activities that involve illicit sexual contact
with minors. See id. § 2423(a)-(g); see, e.g., id. § 2423(a) (the transportation of minors
for prostitution or illicit sexual activity). Three of its provisions—§ 2423(b), § 2423(c),
and § 2423(d)—address international sex tourism. Section 2423(b) makes it a crime to
travel with the intent to engage in illicit sex. See id. § 2423(b). Section 2423(c) targets
individuals who travel abroad and engage in illicit sex—regardless of intent. See id.
§2423(c). Section 2423(d) targets businesses that “arrange[], induce[], procure[] or
facilitate[] the travel of a person” intending to engage in illicit sexual conduct abroad for
4 Chapter 117 also includes sections on sentencing individuals for such
offenses, definitions of illicit sexual activity, and forfeiture options once an
individual is convicted. See 18 U.S.C § 2426 (sentencing for repeat offenders); id.
§ 2427 (definition of “sexual activity for which any person can be charged with a
criminal offense” to include production of child pornography); id. § 2428 (forfeiture
of property that was used in the commission of crimes or derived from the proceeds
of crimes).
12
financial gain. Id. § 2423(d). “Illicit sexual conduct” includes commercial and
noncommercial sex acts5 with a “person under 18 years of age.” Id. § 2423(f)(1)-(2).6
b. Early efforts to combat sex trafficking
Section 2423 developed through a century of legislation addressing international
sex trafficking. In the early 1900’s, Congress was concerned about the growing sex
trafficking industry from Europe in particular. In 1907, it prohibited the “importation” of
women or girls into the United States “for the purpose of prostitution, or for any other
immoral purpose.” Act of Feb. 20, 1907, Pub. L. No. 59-96, § 3, 34 Stat. 898, 899
(“1907 Act”) (regulating “the immigration of aliens into the United States”).7 Congress
recognized this practice as a “present-day existing evil of widespread dimensions” that
must be stopped. S. Rep. No. 61-702, at 14 (1910).
Two years later, congressional investigators released a report concluding that the
1907 Act had failed to stem sex trafficking into the United States. See Importing Women
5 For a noncommercial sex act, the conduct would also have to “be in violation
of Chapter 109A,” which contains various sexual abuse offenses. See 18 U.S.C.
§§ 2241-2248.
6 In the original 1994 version, § 2423(b) criminalized “any sexual act . . . with
a person under 18 years of age.” See 18 U.S.C. § 2423(b) (1994). The Prosecutorial
Remedies and Tools Against the Exploitation of Children Today Act of 2003
(“PROTECT Act”) replaced this phrase with “any illicit sexual conduct with another
person” and added the definition section in § 2423(f), which includes a definition of
“illicit sexual conduct” as “a sexual act with a person under 18 years of age.” Pub. L.
No. 108-21, § 105, 117 Stat. 650, 654 (2003).
7 The 1907 Act also prohibited anyone from “keep[ing], maintain[ing],
control[ling], support[ing], or harbor[ing] in any house or other place” women for the
purpose of prostitution. § 3, 34 Stat. at 899.
13
for Immoral Purposes, S. Doc. No. 61-196, at 33-36 (1909) (recommending a number of
policy changes addressing the unsolved problem of sex trafficking); H.R. Rep. No. 61-47,
at 12 (1909). The 1907 Act had focused on stopping the flow of trafficked women at the
border, but it failed to address the problem of women passing through immigration
channels undetected. See S. Doc. No. 61-196, at 33-34; see also Ariela R. Dubler,
Immoral Purposes: Marriage and the Genus of Illicit Sex, 115 Yale L.J. 756, 787 (2006).
The report recommended criminalizing the interstate transportation of women and girls
for the purpose of prostitution. S. Doc. No. 61-196, at 36; see also H.R. Rep. No. 61-47,
at 10 (explaining this change was necessary to prevent the “evil” of importing women
from foreign nations; otherwise prostitution “can not [sic] be met comprehensively and
effectively”).
In response, Congress passed the Mann Act of 1910, attempting to “put a stop to a
villainous interstate and international traffic in women and girls.” H.R. Rep. No. 61-47,
at 9; see White-Slave Traffic (Mann) Act, Pub. L. No. 61-277, §§ 2-8, 36 Stat. 825,
825-27 (1910) (codified at 18 U.S.C. §§ 397-404 (1940)). Section 2 of the Mann Act
prohibited the transportation of women or girls across state or international lines for the
purpose of illicit sexual acts. See § 2, 36 Stat. at 825. It is the precursor of the current
§ 2423.8
8 The Mann Act has been recodified and amended as 18 U.S.C. §§ 2421-2424.
Section 2 of the Mann Act parallels 18 U.S.C. § 2423(a), which criminalizes
knowingly transporting individuals for the purposes of prostitution or illicit sexual
activity. Compare § 2, 36 Stat. at 825 (codified at 18 U.S.C. § 398 (1940))
(“[K]nowingly transport[ing] . . . in interstate or foreign commerce . . . any woman or
girl for the purpose of prostitution or debauchery, or for any other immoral
14
In 1978 and 1986, Congress broadened the provisions of the Mann Act to fight sex
trafficking. In 1978, Congress expanded the law preventing the commercial sexual
exploitation of girls to include all children. See The Protection of Children Against
Sexual Exploitation Act of 1977, Pub. L. No. 95-225, § 3, 92 Stat. 7, 8 (1978) (codified at
18 U.S.C. § 2423(a)(1)-(2) (1982)); see also H.R. Rep. No. 99-910, at 4 (1986). But, as
Congress acknowledged less than a decade later, the 1978 Act failed to address
noncommercial exploitation—such as transporting children for the purpose of producing
child pornography for private rather than commercial use. See H.R. Rep. No. 99-910,
at 7. In response, Congress passed amendments in 1986 to encompass noncommercial
sexual exploitation. Child Sexual Abuse and Pornography Act of 1986, Pub. L. No.
99-628, § 5, 100 Stat. 3510, 3511 (1986) (codified at 18 U.S.C. § 2423 (1988)).
c. Legislative history leading to passage of § 2423(c)
The next two major revisions to § 2423 occurred in 1994 and 2003. Congress
added § 2423(b) and § 2423(c) to target sex tourism.
i. Enactment of § 2423(b)
In 1994, Congress enacted § 2423(b) as part of the Violent Crime Control and
Law Enforcement Act of 1994 (“Violent Crime Act”), making it a crime for “a United
States citizen . . . [to] travel[] in foreign commerce . . . for the purpose of engaging in any
purpose . . . .”), with 18 U.S.C. § 2423(a) (“[K]nowingly transport[ing] an individual
who has not attained the age of 18 years in interstate or foreign commerce . . . with
intent that the individual engage in prostitution, or in any sexual activity for which
any person can be charged with a criminal offense . . . .”). Section 2423 also
contains other provisions to address international sex tourism. See 18 U.S.C. §§
2423(b)-(f).
15
sexual act . . . with a person under 18 years of age . . . .” Pub. L. No. 103-322,
§ 160001(g), 108 Stat. 1796, 2037 (1994) (codified at 18 U.S.C. §§ 2423(a)-(b) (1994)).
Its passage marked the first time Congress addressed sex tourism as part of its larger
effort against international sex trafficking.
Section 2423(b) originated from Senator Charles Grassley’s amendment to the
Violent Crime Act. In a floor statement, Senator Grassley explained that its purpose was
to combat child prostitution in the multibillion dollar child pornography and international
sex tourism industries. See 139 Cong. Rec. 30,391 (1993). He recognized the problem of
“Americans . . . travel[ing] overseas to places where children are readily available for
purchase and abuse.” Id. This practice, he noted, allowed for “profit from the rape of
children.” Id. at 30,391-92. Representative Jim Ramstad, who proposed a similar
amendment in the House, see The Child Sexual Abuse Prevention Act of 1994, H.R.
3993, 103rd Cong. (1994), explained in his floor statement that his amendment was
intended to “strike a blow at ‘pedophile sex tourism,’ by making it a crime to travel
overseas for the purpose of sexually abusing children.” 140 Cong. Rec. 6,073 (1994).
ii. Enactment of § 2423(c)
Section 2423(b)’s reach was limited to individuals who traveled abroad intending
to engage in illicit sex acts. But proving intent was difficult. See H.R. Rep. No. 107-525,
at 2 (2002). In 2003, Congress enacted § 2423(c) to permit the prosecution of individuals
who travel abroad and engage in illicit sex acts—regardless of whether they intended to
do so at the time of travel.
16
Section 2423(c) was passed as part of the Prosecutorial Remedies and Tools
Against the Exploitation of Children Today Act of 2003 (“PROTECT Act”), which
targeted various aspects of the sex tourism industry. See Pub. L. No. 108-21, § 105, 117
Stat. 650, 654 (2003) (codified at 18 U.S.C. §§ 2423(b)-(g) (2006)). Section 2423(c)
adopted language from a previous bill—the Sex Tourism Prohibition Improvement Act of
2002 (“STPIA”)—which had failed to pass, but its history helps in understanding
§ 2423(c). See Child Abduction Prevention Act and the Child Obscenity and
Pornography Prevention Act of 2003: Hearing Before the Subcomm. on Crime,
Terrorism, and Homeland Sec. of the H. Comm. on the Judiciary, 108th Cong. 25 (2003)
(“Hearings”).9 A House Judiciary Committee Report on STPIA noted that a large
number of developing countries had “fallen prey to the serious problem of international
sex tourism.” H.R. Rep. No. 107-525, at 2. It acknowledged that § 2423(b)’s intent
requirement limited the law’s effectiveness. Id. at 3, 13. Eliminating the intent
9 STPIA’s version of the provision read:
(c) Engaging in Illicit Sexual Conduct in Foreign Places.
Any United States citizen or alien admitted for permanent
residence who travels in foreign commerce, and engages in
any illicit sexual conduct with another person shall be
fined under this title or imprisoned not more than 15 years,
or both.
H.R. 4477, § 2, 107th Cong. (2002).
17
requirement, it found, would “close significant loopholes in the law [regarding] persons
who travel to foreign countries seeking sex with children.” Id. at 3.10
STPIA’s language was incorporated into the PROTECT Act and ultimately
became law in § 2423(c). The sponsor of § 2423(c), Representative Jim Sensenbrenner,
who authored § 2423(c) in both the PROTECT Act and STPIA, explained that sex
tourism supported one of the “fastest growing areas of international criminal activity”—
human trafficking. 149 Cong. Rec. 7,625 (2003). The PROTECT Act’s purpose was to
curb that industry by punishing “persons who travel to foreign countries to engage in
illegal sexual relations with minors.” Id. at 7,633. But unlike § 2423(b), it would do so
by criminalizing this conduct, “regardless of what [the perpetrator’s] intentions may have
been when he left the United States.” Hearings at 25 (statement of Daniel P. Collins,
Associate Deputy Att’y Gen., U.S. Dep’t of Justice). Congress thus passed § 2423(c) to
fill the enforcement gap created by § 2423(b)’s intent requirement.
* * * *
In sum, Congress has worked to combat sex trafficking—particularly of minors—
for over a century, developing a statutory scheme targeting sexual exploitation for both
commercial and noncommercial purposes. Part of this effort included passage of
§ 2423(b), which made it a crime to travel abroad intending to have illicit sex. Because
the intent requirement limited the statute’s effectiveness, Congress passed § 2423(c) to
10 Congressional discussion of STPIA also emphasized the size of the
international sex trafficking market. Representative Lamar Smith commented that
“[t]his world sex market is a multi-billion dollar industry that denies children their
rights, their dignity, and their childhood.” 148 Cong. Rec. 11,222 (2002).
18
allow for prosecution regardless of intent. Congress viewed this provision as a critical
part of its broader efforts to combat the multibillion dollar international sex trafficking
market.11
2. The Commerce Clause
The Commerce Clause delegates power to Congress “[t]o regulate Commerce with
foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const.
art. I, § 8, cl. 3. The following discussion summarizes the Supreme Court’s case law on
the Interstate Commerce Clause (“ICC”) and Foreign Commerce Clause (“FCC”).
Although there is “rich case law interpreting the [ICC], the Supreme Court has yet to
examine the [FCC] in similar depth.” United States v. Bollinger, 798 F.3d 201, 209 (4th
Cir. 2015), cert. denied, 136 S. Ct. 2448 (2016); see also United States v. Clark, 435 F.3d
1100, 1102 (9th Cir. 2006) (noting the FCC’s “scope has yet to be subjected to judicial
scrutiny”).
11 Section 2423(c)’s more recent legislative history bolsters this understanding.
In 2013, Congress passed the, Violence Against Women Reauthorization Act
(“VAWRA”), Pub. L. No. 113-4, 127 Stat. 54 (2013). The Act added the “residing
clause” to § 2423(c): individuals who “reside[], either temporarily or permanently in
a foreign country” and engage in illicit sexual conduct may also be prosecuted. Id.
§ 1211, 127 Stat. at 142 (codified at 18 U.S.C. § 2423(c)). Senator Patrick Leahy
introduced the “residing clause” to VAWRA through his amendment. See S. Amend.
21, 113th Cong. (2013) (amending S. 47, 113th Cong. (2013) (enacted)); 159 Cong.
Rec. 1137 (2013) (statement of Sen. Leahy). He emphasized the amendment targeted
the global sex trafficking market: “We know that young women and girls often just
11, 12, or 13 years old are being bought and sold,” and that “millions around the
world are counting on us.” Id. at 1138.
19
a. ICC case law
The Supreme Court has recognized that the ICC empowers Congress to regulate
(1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce,
and (3) activities that substantially affect interstate commerce. United States v. Lopez,
514 U.S. 549, 558-59 (1995); Perez v. United States, 402 U.S. 146, 150 (1971).
In Lopez, the Court considered whether Congress exceeded its authority under the
ICC when it prohibited guns near schools in the Gun-Free School Zones Act. See Lopez,
514 U.S. at 551. The Court explained that Congress’s power to regulate commerce
among the states is broad, but federalism concerns limit it. Congressional power “may
not be extended so as to . . . obliterate the distinction between what is national and what
is local.” Id. at 557 (quotations omitted). “[The ICC’s scope] must be considered in the
light of our dual system of government.” Id. (quotations omitted). The Court laid out the
three categories of regulation, demarcating the ICC’s outer limits. See id. at 557-59.
i. Channels
Congress may regulate the channels of interstate commerce. United States v.
Patton, 451 F.3d 615, 620 (10th Cir. 2006). It may prohibit the transportation of goods
and people in interstate channels, effectively halting their interstate movements. See,
e.g., Caminetti v. United States, 242 U.S. 470 (1917) (upholding statute prohibiting the
interstate transportation of women for “immoral” purposes); Champion v. Ames, 188 U.S.
321 (1903) (upholding statute prohibiting the transportation of lottery tickets across
interstate lines). Congress need not be motivated by commercial concerns; it may also
stop the movement of goods and people to prevent immoral or injurious activities. See,
20
e.g., United States v. Darby, 312 U.S. 100 (1941) (upholding a ban on the “injurious”
transportation of goods produced in substandard labor conditions).
ii. Instrumentalities
Congress may regulate the instrumentalities of interstate commerce, or the “means
of interstate commerce, such as ships and railroads.” Patton, 451 F.3d at 621 (citing
Lopez, 514 U.S. at 558; Perez, 402 U.S. at 150). Regulation “may extend to intrastate
activities that threaten these instrumentalities,” such as criminalizing the destruction of a
grounded aircraft. Id. at 622.
Congress also may regulate “the persons or things that the instrumentalities are
moving,” such as criminalizing the theft of goods from an interstate carrier, like a train.
Id. But “not all people and things that have ever moved across state lines” qualify as
permissible targets of regulation. Id. The regulation of goods and people extends only to
the duration of their transport. See id. Thus, under this category, Congress may regulate
goods or people while they are on a ship or plane, but not necessarily once they are
unloaded or disembark.
iii. Substantial effect
Finally, Congress may regulate activity—including intrastate activity—that
“substantially affects” interstate commerce. Lopez, 514 U.S. at 559. The Court has
upheld, for example, federal regulation of intrastate coal mining, see Hodel v. Va. Surface
Min. & Reclamation Ass’n, 452 U.S. 264 (1981); intrastate public accommodation
practices, see Katzenbach v. McClung, 379 U.S. 294 (1964); and homegrown wheat
production, see Wickard v. Filburn, 317 U.S. 111 (1942). In each instance, the Court
21
determined the laws under review regulated activity that had a substantial effect on
interstate commerce. In making such a determination, courts need decide only whether
Congress had a “rational basis” that such activities substantially affect interstate
commerce. Gonzales v. Raich, 545 U.S. 1, 22 (2005) (quotations omitted).
In deciding whether federal legislation is constitutional under the ICC, courts
consider congressional findings or the legislative record regarding the effect of a
regulated activity. See id. at 21. Legislative findings, however, are neither necessary nor
determinative in a court’s rational-basis decision. See United States v. Morrison, 529
U.S. 598, 612 (2000) (congressional findings are helpful, but not required nor sufficient
for upholding a statute); Raich, 545 U.S. at 21 (particularized findings not necessary).
In assessing a regulated activity’s effect on interstate commerce, courts need not
examine the activity in isolation, but may aggregate it. For example, courts may consider
the effect of not just one farmer’s wheat production on the national grain market, but may
consider the cumulative effect of all farmers’ production. See Wickard, 317 U.S. at
127-28. But courts should do so when the activity is economic as opposed to
noneconomic. See Morrison, 529 U.S. at 613 (holding that the effect of domestic
violence, a noneconomic activity, could not be considered in the aggregate).12 The
economic-noneconomic distinction arises from federalism concerns and serves to
preserve “what is truly national and what is truly local.” Lopez, 514 U.S. at 567-68.
12 Although the Court has discouraged the aggregation of noneconomic
activity, it has not prohibited it. In Morrison, the Court did not “adopt a categorical
rule against aggregating the effects of any noneconomic activity.” 529 U.S. at 613.
22
Courts would otherwise “pile inference upon inference” to determine a regulated activity
substantially affects commerce. Id. at 567.
Finally, courts also consider whether the statute contains an express jurisdictional
element relating to interstate commerce. Id. at 561. Congress may explicitly “require an
additional nexus to interstate commerce” in its statute. Id. at 562. For example, a statute
that criminalizes the possession of a firearm that has traveled in interstate commerce
contains an express jurisdictional element because violation of the statute hinges on the
firearm’s connection to interstate commerce. Id. (using what was formerly 18 U.S.C.
§ 1202(a) as an example).
b. FCC case law
Under the FCC, Congress may regulate commerce “with foreign Nations.” U.S.
Const. art. I, § 8, cl. 3. There is “precious little case law” on the FCC. United States v.
Pendleton, 658 F.3d 299, 307 (3d Cir. 2011); see Clark, 435 F.3d at 1102 (noting
“[c]ases involving the reach of the [FCC] . . . are few and far between”). Two Supreme
Court cases, however, provide some guidance.
First, in Board of Trustees of University of Illinois v. United States, 289 U.S. 48
(1933), the Court upheld a federal tariff under the FCC. The University of Illinois argued
that the tariff interfered with its importation of goods and was thus unconstitutional. Id.
at 56. The Court disagreed, holding that Congress had acted within its “constitutional
authority to regulate Commerce with foreign nations,” id. (quotations omitted), which
includes imposing duties on imports, “pass[ing] embargo and non-intercourse laws,” and
making “all other regulations necessary to navigation, to the safety of passengers, and the
23
protection of property,” id. at 58 (quotations omitted). This power “comprehend[s] every
species of commercial intercourse between the United States and foreign nations,” id. at
56 (quoting Gibbons v. Ogden, 22 U.S. 1, 193 (1824)), and is “exclusive and plenary,” id.
The Court further explained that the federalism constraints limiting Congress’s
ICC power do not apply in the FCC context. “The principle of duality in our system of
government does not touch the authority of Congress in the regulation of foreign
commerce.” Id. at 57. The university had argued that the Constitution prohibited the
taxation of state entities, in particular that federal taxation “is subject to the constitutional
limitation that the Congress may not tax so as to impose a direct burden upon an
instrumentality of a state used in the performance of a governmental function.” Id. at
57-58. The tariff, however, was not a tax passed under the Congress’s taxing power, but
was instead a regulation passed under its FCC power. Because “the immunity of state
instrumentalities . . . [was] implied from the necessity of maintaining our dual system,”
this constitutional limitation did not extend to statutes regulating foreign commerce. Id.
at 59. Rather, as in international relations, the “United States act[s] through a single
government with unified and adequate power” in the foreign commerce arena. Id.
Second, in Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434 (1979), the
Court struck down California’s property tax on shipping containers as a violation of the
dormant FCC.13 Japan Line, a Japanese shipping company, owed more than $550,000 in
13 As with the ICC, the Court has recognized that, in addition to delegating
express power to regulate foreign commerce, the FCC implicitly restricts the states
from regulating foreign commerce. See Japan Line, 441 U.S. at 449 (discussing the
“negative implications” of Congress’s power under the FCC).
24
taxes on its shipping containers under California law. Id. at 437. The company
challenged the state tax’s constitutionality. Id. at 440-41. It argued that because the
containers traveled only in foreign commerce, they were foreign instrumentalities—as
opposed to interstate instrumentalities—and the dormant FCC protected foreign
commerce from state interference such as the California tax. See id. at 437-38.
The Court agreed with Japan Line and concluded the state tax “may impair federal
uniformity in an area where federal uniformity is essential.” Id. at 448. Normally, if a
state tax is “applied to an activity with a substantial nexus with the taxing State, is fairly
apportioned, [and] does not discriminate against interstate commerce, . . . no
impermissible burden on interstate commerce will be found.” Id. at 444-45 (quotations
omitted). State taxes on foreign entities are different, however, because there is a “need
for uniformity in treating with other nations.” Id. at 448. States imposing their own taxes
might create “asymmetry in the international tax structure,” and foreign governments
may retaliate in their trade policies with the United States. Id. at 450. Compared with the
ICC, “the Founders intended the scope of the foreign commerce power to be the greater,”
id. at 448, and thus states are more likely to offend the FCC—rather than the ICC—with
their taxation policy, see id. at 448-49. California’s tax was therefore unconstitutional
under the dormant FCC. Id. at 453-54.
3. Congressional Authority Broader Under the FCC than the ICC
“[The] scope [of the FCC] has yet to be subjected to judicial scrutiny.” Clark, 435
F.3d at 1102. This section compares the boundaries of congressional authority under the
25
FCC and the ICC. It describes how the FCC, unconstrained by federalism considerations,
provides Congress broader authority to regulate commerce than the ICC.
Congressional authority under the FCC is broad because Congress must speak
with “one voice” in the foreign commerce context. Japan Line, 441 U.S. at 449
(quotations omitted). Moreover, as the dissent appears to agree, federalism limits
congressional authority under the ICC, but not the FCC. See Dissent Op. at 27. And, as
the Supreme Court has stated, “[a]lthough the Constitution, Art. I, § 8, cl. 3, grants
Congress power to regulate commerce ‘with foreign Nations’ and ‘among the several
States’ in parallel phrases, there is evidence that the Founders intended the scope of the
foreign commerce power to be the greater.” Japan Line, 441 U.S. at 448; see also Atl.
Cleaners & Dyers v. United States, 286 U.S. 427, 434 (1932) (“[Congressional] power
when exercised in respect of foreign commerce may be broader than when exercised as to
interstate commerce.”).
Because the FCC concerns commerce “with foreign Nations”—as opposed to
commerce “among the several States”— the federalism considerations that constrain
Congress’s authority under the ICC do not apply to the FCC, which therefore confers
broader authority on Congress. Bd. of Trustees, 289 U.S. at 57 (“The principle of duality
in our system of government does not touch the authority of Congress in the regulation of
foreign commerce.”). History, text, and purpose support this conclusion.
a. History
For the Founders, expansive congressional control over foreign commerce was
imperative. They wanted the federal government to have enough authority to promote
26
foreign commerce, which comprised most of the early American economy. See Scott
Sullivan, The Future of the Foreign Commerce Clause, 83 Fordham L. Rev. 1955,
1962-65 (2015). An 1877 report from the Treasury Department noted that at the time of
the founding, “our foreign commerce . . . attracted public attention much more than did
the comparatively small internal commerce.” Joseph Nimmo, Jr., Department of
Treasury, Report on the Internal Commerce of the United States 8 (1877). Under the
Articles of Confederation, state interference had disrupted foreign commerce, and federal
power to tax and to regulate commerce was completely absent. See Sullivan at 1962-64.
States circumvented federal trade agreements with foreign nations by negotiating their
own. Id.
Because foreign commerce was so vital to the American economy, the Founders
sought to bolster federal power over international trade and ensure that the federal
government could “speak with one voice when regulating commercial relations with
foreign governments.” Japan Line, 441 U.S. at 449 (quotations omitted). The FCC was
designed as the “great and essential power” that the ICC merely “supplement[s].” The
Federalist No. 42, at 283 (James Madison) (J. Cooke ed. 1961); see also United States v.
Baston, 818 F.3d 651, 668 (11th Cir. 2016), cert. denied, 137 S. Ct. 850 (2017).
b. Text
The FCC’s text reflects the Founders’ objective to provide broader authority than
under the ICC. Again, the Commerce Clause delegates power to Congress “[t]o regulate
Commerce with foreign Nations, and among the several States, and with the Indian
Tribes.” U.S. Const. art. I, § 8, cl. 3 (emphases added). The difference between “with”
27
and “among” affects the scope of the FCC and the ICC. See Sullivan at 1966-67
(describing how the difference allows states to retain some lawmaking authority under
the ICC, but Congress retains full authority under the FCC and Indian Commerce
Clause).
In Gibbons v. Ogden, the Supreme Court discussed the word “among” when it
acknowledged that Congress may regulate intrastate activity under the ICC. 22 U.S. 1,
194 (1824). It said “[t]he word ‘among’ means intermingled with,” and “[c]ommerce
among the States[] cannot stop at the external boundary line of each State, but may be
introduced into the interior.” Id. But the Court also recognized limits to ICC authority.
“Comprehensive as the word ‘among’ is, it may very properly be restricted to that
commerce which concerns more States than one.” Id. The word “among” restricts
Congress from regulating “those [internal concerns] which are completely within a
particular State.” Id. at 195; see also Lopez, 514 U.S. at 553 (“The Gibbons Court . . .
acknowledged that limitations on the commerce power are inherent in the very language
of the Commerce Clause.”).
After its discussion of commerce “among the several States,” the Gibbons Court
contrasted commerce “with foreign nations.” Gibbons, 22 U.S. at 195. “[I]n regulating
commerce with foreign nations, the power of Congress does not stop at the jurisdictional
lines of several States.” Id. Though the Court did not elaborate on the word “with,” it
pointed to the textual difference in the two clauses. “Among” in the ICC restrains
Congress in regulating intrastate matters—a restraint not present in the FCC.
28
Both the FCC and the Indian Commerce Clause contain the preposition “with,”
and the Court has drawn comparisons between the two. The Indian Commerce Clause
provides broad “plenary power” to Congress in regulating commerce with Indian tribes.
United States v. Lara, 541 U.S. 193, 200 (2004) (quotations omitted). The Court has
recognized a similar breadth of authority under the FCC. “The power to regulate foreign
commerce is certainly as efficacious as that to regulate commerce with the Indian tribes.”
Buttfield v. Stranahan, 192 U.S. 470, 493 (1904); see also United States v. Forty-Three
Gallons of Whiskey, 93 U.S. 188, 194 (1876) (“Congress now has the exclusive and
absolute power to regulate commerce with the Indian tribes[]—a power as broad and as
free from restrictions as that to regulate commerce with foreign nations.”).14
c. Purpose
Both the FCC and the ICC empower Congress to address national interests, but
federalism concerns do not constrain the FCC as they do the ICC. The ICC’s purpose is
14 The dissent counters that the “difference in prepositions indicates the
opposite.” Dissent Op. at 20. It posits that “[i]f the [FCC] permitted regulation of
commerce ‘among foreign nations’ . . . then Congress would be empowered to
regulate commerce among France, England, and Italy,” suggesting that “among” is
broader than “with.” Id. But the relevant comparison is not between the FCC’s use
of “with” and a hypothetical FCC’s use of “among.” Rather, it is between the FCC’s
use of “with” and the ICC’s use of “among.” Looking at these words in context
supports our interpretation. In Gibbons, after discussing how “among” prevented
Congress from regulating “those [internal concerns] which are completely within a
particular State,” the Court stated that the phrase “with foreign nations” means “the
power of Congress does not stop at the jurisdictional lines of the several States.”
Gibbons, 22 U.S. at 195. Because “with foreign nations” allows for federal regulation of
activity within states without limitation, the Court in Gibbons suggests the phrase confers
broader authority. Moreover, the use of “with” in the Indian Commerce Clause suggests
broader authority, granting “plenary power” in regulating commerce with Indian tribes.
See Lara, 541 U.S. at 200 (quotations omitted).
29
to enable Congress to regulate interstate commerce in a federal system. It empowers
Congress to regulate on behalf of national economic concerns as long as the regulation
does not interfere with “truly local” affairs. Lopez, 514 U.S. at 568. The ICC permits
Congress to ensure that “[i]nterstate trade [i]s not left to be destroyed or impeded by the
rivalries of local government,” The Shreveport Rate Case, 234 U.S. 342, 350 (1914), but
federalism concerns cabin Congress’s power to regulate. “[T]he scope of the interstate
commerce power must be considered in the light of our dual system of government and
may not be extended so as to embrace effects upon interstate commerce so indirect and
remote that to embrace them . . . would effectually obliterate the distinction between what
is national and what is local . . . .” Lopez, 514 U.S. at 557 (quotations omitted).
The FCC’s purpose is to enable Congress—and thus the nation—to speak with one
voice on international matters. “In international relations and with respect to foreign
intercourse and trade the people of the United States act through a single government
with unified and adequate national power.” Bd. of Trustees, 289 U.S. at 59. Unlike with
the ICC, federalism concerns do not limit FCC authority. See Japan Line, 441 U.S. at
448 n.13 (stating that “Congress’[s] power to regulate foreign commerce” is not limited
by “considerations of federalism and state sovereignty”).
d. The dissent’s view
The dissent questions whether congressional authority is broader under the FCC
than the ICC. See Dissent Op. at 27. It concedes that the FCC is broader than the ICC in
certain situations. See id. at 21. But it disagrees we have such a situation here. First, it
argues that the FCC’s scope is broader only when applied to restricting state regulation in
30
the dormant FCC context. Second, it argues that the sovereignty of other nations
constrains FCC authority.15
i. Japan Line and the scope of FCC power
The dissent attempts to limit Japan Line’s statement that the “scope of the foreign
commerce power [is] greater” than the interstate power. Japan Line, 441 U.S. at 448. It
appears to argue that any suggestion in Japan Line that the FCC delegates broader
authority to Congress than the ICC is limited to the context of that case—a dormant
commerce doctrine challenge to state regulation. See Dissent Op. 16-18. Distinguishing
between the FCC’s grant of “congressional power to regulate” and the dormant FCC’s
“restriction on the States” to legislate, id. at 17, the dissent argues that the Court in Japan
Line examined the latter, not the former. But the scope of FCC authority is the same
regardless of whether a case involves a challenge to a state’s power to regulate commerce
15 The dissent starts with a line in Gibbons: “[Commerce] carr[ies] the same
meaning throughout the [Commerce Clause] . . . unless there be some plain
intelligible cause which alters it.” Dissent Op. at 5 (quoting Gibbons, 22 U.S. at
194). The dissent also “infer[s] that the same proposition applies to the word
regulate in the Clause.” Id.
It assumes the Indian Commerce, Foreign Commerce, and Interstate
Commerce Clauses convey the same power absent a “plain, intelligible cause.” But
even though “commerce” and “regulate” may “carry the same meaning” throughout
the Commerce Clause, each modifier—Indian, Foreign, and Interstate—and its
accompanying preposition—“among” and “with”—describe a different context. See
Atlantic Cleaners & Dyers, 286 U.S. at 434 (Although “the power to regulate commerce
is conferred by the same words of the commerce clause with respect both to foreign
commerce and interstate commerce . . . the power when exercised in respect of foreign
commerce may be broader than when exercised as to interstate commerce.”). As the
dissent acknowledges, for example, the Indian Commerce Clause grants Congress a
broader power than the ICC, despite the meaning of commerce and regulate
remaining the same in both provisions. See Dissent Op. at 5-6 (quoting Lara, 541
U.S. at 200).
31
or to the federal government’s power to legislate. Supreme Court precedent makes this
clear.
By way of background, the Constitution does not contain a dormant Commerce
Clause. The doctrine derives from the Commerce Clause itself, which provides that
“Congress shall have [the] power . . . [t]o regulate commerce . . . among the several
States.” U.S. Const. art. I, § 8, cl. 3. As to matters within the scope of the Commerce
Clause power, Congress may choose to regulate, thereby preempting the states from
doing so, see Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 96-98 (1992); Rice v.
Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), or to authorize the states to regulate,
see In re Rahrer, 140 U.S. 545, 555-56 (1891); Prudential Ins. Co. v. Benjamin, 328 U.S.
408, 429-31 (1946).
If Congress is silent—neither preempting nor consenting to state regulation—and
a state attempts to regulate in the face of that silence, the Supreme Court, going back to
Gibbons, 22 U.S. at 236-37 (1824) (Johnson, J., concurring), and Cooley v. Bd. of Port
Wardens, 53 U.S. 299, 318-19 (1851), has interpreted the Commerce Clause to limit state
regulation of interstate commerce by applying the negative implications of the Commerce
Clause—“these great silences of the Constitution,” H.P. Hood & Sons, Inc. v. Du Mond,
336 U.S. 525, 535 (1949); see White v. Mass. Council of Constr. Emp’rs, Inc., 460 U.S.
204, 213 (1983). Accordingly, the Commerce Clause is both an express grant of power
to Congress and an implicit limit on the power of state and local government. See
Comptroller of the Treasury of Md. v. Wynne, 135 S. Ct. 1787, 1794 (2015); Kleinsmith
v. Shurtleff, 571 F.3d 1033, 1039 (10th Cir. 2009). The dormant Commerce Clause
32
doctrine extends to state regulation that may conflict with Congress’s foreign commerce
regulatory authority. See, e.g., Japan Line, 441 U.S. 434.
When the Supreme Court has considered dormant commerce doctrine challenges
to state regulation, it has recognized that the scope of Congress’s affirmative powers
under the Commerce Clause and the scope of commerce subject to the dormant
Commerce Clause are coextensive. See, e.g., Lewis v. BT Inv. Managers, Inc., 447 U.S.
27, 39 (1980); Philadelphia v. New Jersey, 437 U.S. 617, 622-23 (1978). It follows,
contrary to the dissent, that if the Supreme Court, in a dormant Commerce Clause case,
recognizes, as it did in Japan Line, that the FCC confers broader authority on Congress
than the ICC, then Congress’s authority is broader under the FCC in general.
The dissent is correct that the Court in Japan Line “did not say that the term
commerce has a broader meaning in the foreign-commerce context,” Dissent Op. at
16, but it did say “the Founders intended the scope of the foreign commerce power to
be greater,” Japan Line, 441 U.S. at 448. The Court’s statement thus sheds light on
the FCC’s outer limits for both its grant of congressional authority and its restriction
on states.
ii. Sovereignty of other nations
Although the dissent concedes that state sovereignty does not limit the FCC, it
“reject[s] the notion that . . . the power under the [FCC] to regulate conduct in foreign
nations is unconstrained,” Dissent Op. at 27, and suggests that the sovereignty of other
nations limits the FCC. The dissent presents no relevant authority—text, history, or
33
precedent—that the sovereignty of foreign nations limits Congress’s authority under the
FCC.
An enumerated power both confers and constrains legislative authority. See
Richard Primus, The Limits of Enumeration, 124 Yale L.J. 576, 578 (2014). Internal
limits “are the boundaries of Congress’s powers taken on their own terms,” id., that is,
based on the language of the text itself. For example, an internal limit on Congress’s
power under the Commerce Clause is the meaning of the word “commerce.” By contrast,
external limits “are affirmative prohibitions that prevent Congress from doing things that
would otherwise be permissible exercises of its powers.” Id. Federalism and the Bill of
Rights, for example, externally limit legislative authority under the Constitution’s
enumerated powers. See, e.g., Lopez, 514 U.S. at 557 (“[T]he scope of the interstate
commerce power must be considered in the light of our dual system of government.”
(quotations omitted)); New York v. United States, 505 U.S. 144, 156 (1992) (“[U]nder the
Commerce Clause Congress may regulate publishers engaged in interstate commerce, but
Congress is constrained in the exercise of that power by the First Amendment.”).
First, the FCC is an enumerated power and therefore defines and limits that power
by its own terms. The FCC’s internal limits derive from the words “commerce,”
“regulate,” and “with foreign nations.”16 The Framers did not think, nor do we, that the
FCC conferred “plenary power to police the behavior of Americans in foreign
countries.” Dissent Op. at 23. The power to regulate foreign commerce, like all of
16 These limits are reflected in the doctrinal framework we draw from the third
Lopez category and adapt for the foreign commerce context. See infra Part II.A.4.
34
Congress’s enumerated powers, “[is] defined, and limited.” Marbury v. Madison, 5 U.S.
137, 176 (1803). But because federalism concerns do not apply in the foreign commerce
context, congressional authority is broader under the FCC than the ICC.
Second, the dissent’s suggestion that the sovereignty of foreign nations is an
“external limit” on the FCC finds no traction. No provision in the Constitution restricts
the FCC in this manner. Unlike federalism, an integral part of our constitutional
structure, and unlike the Bill of Rights, an express set of limits on government power,
foreign nation sovereignty appears nowhere in the constitutional scheme—either in the
Constitution itself or the cases interpreting it.17
17 To support its foreign state sovereignty theory, the dissent quotes The
Schooner Exchange v. McFaddon, 11 U.S. 116 (1812), and Alexander Hamilton’s The
Defence, Dissent Op. at 23-24 (quoting Schooner Exch., 11 U.S. at 136 and Alexander
Hamilton, The Defence No. XXXVI (Jan. 2, 1796), in 20 The Papers of Alexander
Hamilton (Harold C. Syrett ed. 1974)), but their relevance to congressional authority
under the FCC is unclear.
First, The Schooner Exchange established that foreign sovereigns and their
instruments may not be hailed into American courts, which hardly speaks to
congressional authority to regulate foreign commerce under the FCC. See Verlinden
B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486 (1983) (describing foreign
sovereign immunity as a matter of comity and grace and not a constitutional
restriction). Second, the dissent’s Hamilton quote comes from his thirty-sixth essay
in 1796 advocating for adoption of the proposed Jay Treaty with Great Britain and
explaining why the treaty was constitutional. The essay mentions the FCC in its
discussion distinguishing treaties and laws. But it sheds little light on our issue here,
other than perhaps Hamilton’s comment that the power to make laws for the nation
under the FCC reaches its citizens abroad. See The Defence No. XXXVI (Jan. 2,
1796), in 20 The Papers of Alexander Hamilton (Harold C. Syrett ed. 1974) (the power to
make laws “acts . . . upon its own citizens . . . without its territory in certain cases and
under certain limitations. But it can have no obligatory action whatsoever upon a
foreign nation or any person or thing within the jurisdiction of such foreign Nation.”
(emphasis added)). Mr. Durham was charged when he returned to the jurisdiction of
the United States.
35
International rules of sovereignty and jurisdiction do not affect the scope of
Congress’s authority under the Constitution. They concern issues of international law,
custom, and politics, not constitutional ones. See, e.g., Verlinden B.V. v. Central Bank of
Nigeria, 461 U.S. 480, 486 (1983) (“The Schooner Exchange made clear . . . foreign
sovereign immunity is a matter of grace and comity on the part of the United States, and
not a restriction imposed by the Constitution.”). Whether a statute conflicts with a
foreign law or policy may implicate international law and politics, not whether Congress
may pass such a statute under the FCC.
Moreover, the Court has long recognized Congress’s authority to pass
extraterritorial laws that apply to conduct in foreign countries. The dissent suggests any
law with application in a foreign country “would imply a diminution of [the foreign
country’s] sovereignty . . . .” Dissent Op. at 23 (quoting The Schooner Exch., 11 U.S. at
136). But the Supreme Court has recognized “Congress has the authority to enforce its
laws beyond the territorial boundaries of the United States.” E.E.O.C. v. Arabian Am. Oil
Co., 499 U.S. 244, 248 (1991). Indeed, the application of a federal statute “so far as
citizens of the United States in foreign countries are concerned, is one of construction,
not of legislative power.” Blackmer v. United States, 284 U.S. 421, 437 (1932).
Finally, the statute at issue in this case, § 2423(c), does not impinge on the
sovereignty of other nations. It does not prevent another country from enforcing its child
sex abuse laws against an American traveling there. For example, in Pendleton, 658 F.3d
at 301, Thomas Pendleton was first arrested, convicted, and sentenced in Germany—
where he had molested a 15-year-old boy—under German law. After he had served his
36
19 months in a German prison, the United States then charged him under § 2423(c) for
his illicit conduct. Id.
iii. Summary
The dissent attempts to argue that congressional authority under the FCC is not
broader than under the ICC by (1) restricting Japan Line’s statement about the breadth of
FCC authority to the dormant FCC context and (2) suggesting foreign state sovereignty
as an external limit on FCC authority. We disagree. As we have shown, the Japan Line
statement is relevant, binding, and speaks to the reach of the FCC generally. See Gaylor
v. United States, 74 F.3d 214, 217 (10th Cir. 1996) (“While these statements are dicta,
this court considers itself bound by Supreme Court dicta almost as firmly as by the
Court’s outright holdings.”). And the dissent’s foreign state sovereignty theory lacks
merit or support.
* * * *
Congressional authority under the FCC is broader than under the ICC. The
Founders wanted to boost foreign trade—the early nation’s economic engine—through a
broad delegation of authority to Congress under the FCC. They did so in the Commerce
Clause, distinguishing the ICC and FCC by using the terms “among” and “with,”
respectively. Though Congress may advance national interests under both clauses,
federalism interests limit congressional authority under the ICC and not the FCC.
4. The Lopez Categories in the Foreign Commerce Context
The three Lopez categories provide a useful starting point in analyzing challenges
under the FCC. The following explains why the third category applies to this case, traces
37
its evolution in the interstate commerce context, and explains how it should be analyzed
in the foreign commerce context. Because the federalism concerns limiting the third
Lopez category do not apply to the foreign commerce context, the substantial-effect
analysis is different under the FCC than the ICC. See Bollinger, 798 F.3d at 215
(Without alteration, “the third Lopez category . . . [would be] unduly demanding in the
foreign context.”).
a. The ICC’s three categories as a starting point
The dissent agrees that we “can adopt the Interstate Commerce Clause
doctrine[’s] . . . three types of regulation” to consider constitutional challenges under the
FCC. Dissent Op. at 27; see also Pendleton, 658 F.3d at 308 (finding “Lopez’s ‘timetested’
framework” suitable for the foreign commerce context). The few Supreme Court
decisions about the FCC also describe similar categories—channels, instrumentalities,
and activities affecting commerce with foreign nations. See Bd. of Trustees, 289 U.S. at
57 (upholding a tariff under the FCC based on Congress’s authority to regulate the
movement of goods in foreign commerce); Japan Line, 441 U.S. at 454-55 (invalidating a
state’s tax on the “instrumentalities of foreign commerce” under the dormant FCC); Bd.
of Trustees, 289 U.S. at 58 (recognizing Congress’s authority to legislate under the FCC
and “consider the conditions of foreign trade in all its aspects and effects”) (emphasis
added)).
Although the three Lopez categories “provide a useful starting point in defining
Congress’s powers under the [FCC],” Bollinger, 798 F.3d at 215, they are not an end
point. In light of the FCC’s broader grant of authority, we consider the third Lopez
38
category, how it has evolved, and whether its analysis needs to be adapted for application
in the foreign commerce context. See id.; see also United States v. Bredimus, 352 F.3d
200, 204-08 (5th Cir. 2003) (recognizing the FCC’s broader grant of authority while also
applying the ICC framework); United States v. Cummings, 281 F.3d 1046, 1049 n.1 (9th
Cir. 2002) (same).
b. The substantial-effect category is applicable here
To determine which Lopez categories apply to this case, we must consider the
nature of the regulation under § 2423(c). In passing this statute, Congress criminalized
the combination of “travel in foreign commerce” and “engag[ing] in any illicit sexual
conduct.” See 18 U.S.C. § 2423(c). The third Lopez category concerns a wide range of
statutes that purport to regulate “activities” substantially affecting interstate commerce.
See Morrison, 529 U.S. at 609; Lopez, 514 U.S. at 558-59. Because § 2423(c) regulates
the activity of illicit sexual conduct, we analyze its constitutionality under the third
category. See Morrison, 529 U.S. at 609.18
c. Evolution of the third Lopez category
This section traces the evolution of the third Lopez category as the foundation to
explain how it applies in the foreign commerce context. The Court has developed the
third category’s jurisprudence in three important cases—Wickard, 317 U.S 111, Lopez,
18 Because we determine that § 2423(c) is constitutional under the third
category, we need not analyze it under the first and second. We note that § 2423(c)
does not regulate the instrumentalities of foreign commerce and that the Third Circuit
has upheld the constitutionality of § 2423(c) as a valid regulation of the channels of
foreign commerce. See Pendleton, 658 F.3d at 311.
39
514 U.S. 549, and Morrison, 529 U.S. 598—and has applied it in Raich, 545 U.S. 1, in a
manner particularly relevant to this case. Federalism considerations have played a
pivotal role.
In Wickard, the Court upheld the Agricultural Adjustment Act’s quota for wheat
production, which had been enacted to maintain wheat prices, by applying an aggregateeffects
analysis to “those activities intrastate which so affect interstate commerce.” 317
U.S at 114, 128 (quoting United States v. Wrightwood Dairy Co., 315 U.S. 110, 119
(1942)). Under the Act, Roscoe Filburn had exceeded his allotment, which he had
harvested for personal consumption, and was fined. Id. at 114-15. Even though his
wheat production had only a de minimis effect on interstate commerce, the Court found
the cumulative effect of all farmers’ home-grown wheat production substantially affected
the interstate wheat market and upheld the Act. Id. at 127-28. Through its use of this
aggregation analysis, Wickard “ushered in an era of Commerce Clause jurisprudence that
greatly expanded the previously defined authority of Congress under the Clause.” Lopez,
514 U.S. at 556.
Between 1937 and 1995, the Court did not invalidate one federal law under the
ICC. See Erwin Chemerinsky, Constitutional Law § 3.4.4 (5th ed. 2015). But in Lopez,
514 U.S. 549, it struck down the Gun-Free School Zones Act of 1990, which made it a
crime to have a gun within 1,000 feet of a school, as exceeding congressional authority
under the ICC. Id. at 551, 567-68. The Court determined the gun legislation attempted to
regulate in the third category and concluded that gun possession near schools did not
substantially affect interstate commerce. Id. at 559, 561. It noted that the statute had
40
“nothing to do with commerce” and was “not an essential part of a larger regulation of
economic activity,” which distinguished this case from Wickard. Id. at 561 (quotations
omitted). Further, the Court pointed out that neither the statute nor its legislative history
contained express legislative findings that the regulated activity substantially affected
interstate commerce. Id. at 562-63. Accordingly, “[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.
In Lopez, federalism shaped the outer limit of the substantial-effect ICC analysis.
The Court declined to aggregate the noneconomic activity of gun possession near
schools. Id. at 561. It rejected the government’s arguments that gun possession near
schools would adversely affect students’ learning environments, which, in turn, would
have a negative effect on the national economy. Id. at 564. The connection was too
tenuous for the Court. To have upheld the statute by “pil[ing] inference upon inference”
would mean “there [would] never [] be a distinction between what is truly national and
what is truly local.” Id. at 567-68. If the Court were to follow such logic, the ICC would
grant Congress a general police power over such areas as education, a traditional concern
of the states. Id. at 565-66.
Five years later, the Court in Morrison struck down the Violence Against Women
Act of 1994, which authorized victims of gender-motivated crimes to sue for damages.
529 U.S. at 601-02. Although Congress had made detailed findings that gender-based
violence substantially affected interstate commerce, including deterrence of interstate
travel, the Court declined to draw the connection. Id. at 614-15. It declined to do so
41
because it regarded gender-based violence as noneconomic activity. Id at 617. The
Court discouraged “aggregating the effects of any noneconomic activity.” Id. at 613
(noting that “our cases have upheld Commerce Clause regulation of intrastate activity
only where that activity is economic in nature”). As in Lopez, the Court refused to accept
the “but-for causal chain from the initial occurrence of violent crime . . . to every
attenuated effect upon interstate commerce.” Id. at 615.
The Court said the federalism “concern that [it] expressed in Lopez that Congress
might use the Commerce Clause to completely obliterate the Constitution’s distinction
between national and local authority seems well founded.” Id. at 615. Were the Court to
accept aggregated noneconomic activity, Congress could potentially regulate purely
intrastate matters, such as violent crime and family affairs. Id. at 615-17.
Finally, in Raich, the Court upheld the application of the Controlled Substances
Act (“CSA”) to the home cultivation and possession of marijuana. 545 U.S. at 21-22.
Even though the CSA contained no particularized congressional findings, the Court
determined from the legislative history and the statutory scheme that Congress could
reasonably conclude noncommercial marijuana production and possession substantially
affects the interstate market for illicit drugs and that the prohibition is an essential part of
a broader economic regulation. Id. at 22, 27. As discussed further below, this case
supports upholding § 2423(c).
* * * *
In sum, the Court has limited congressional authority under the third Lopez
category due to federalism concerns. In Lopez and Morrison, it refused to aggregate
42
noneconomic activities to determine whether the regulated activity had a substantial
effect on interstate commerce. It feared that such reasoning would obliterate the
distinction between local and national interests in our system of dual federalism and
allow congressional regulation of purely intrastate matters.
d. Adapting the third Lopez category to the FCC
For legislation under the FCC that regulates activity, the federalism constraints
developed for ICC challenges do not apply. The Lopez category-three analysis must
therefore be modified for the foreign commerce context.
Congressional authority under the third Lopez category extends further in the FCC
context. Because the federalism considerations underlying the ICC do not arise in the
regulation of foreign commerce, the economic and noneconomic distinction, which
otherwise discourages the aggregation of noneconomic activity, is unnecessary.
In Lopez, Morrison, and Raich, the Supreme Court recognized limits on
Congress’s power under the ICC based on federalism concerns. To preserve “the
distinction between what is national and what is local,” Lopez, 514 U.S. at 557, the
Court distinguished between commercial and noncommercial activity and between
economic and noneconomic activity. It discouraged aggregating noneconomic
activities to determine whether an activity has a substantial effect on interstate commerce.
These distinctions are therefore tied to the external federalism limit on Congress’s
ICC power.
Federalism limits do not apply to Congress’s FCC power and therefore do not
constrain application of the substantial-effect analysis in the FCC context. “It has
43
never been suggested that Congress’[s] power to regulate foreign commerce could be so
limited” by “considerations of federalism and state sovereignty.” Japan Line, 441 U.S. at
448 n.13. The FCC provides Congress broader authority to regulate activity that
substantially affects foreign commerce. See id. (collecting cases). Relatedly, the
Supreme Court has recognized the need for broader authority because Congress must
speak with one unified voice abroad. See Bd. of Trustees, 289 U.S. at 59.
FCC analysis thus does not require the distinction between economic and
noneconomic activity. Courts consequently may aggregate both economic and
noneconomic activity—and consider congressional findings of substantial effect based on
aggregation—in determining whether Congress had a rational basis to determine that an
activity substantially affects foreign commerce and is therefore subject to federal
regulation.
5. Constitutionality of § 2423(c)
Section 2423(c) is constitutional under the third Lopez category as applied to Mr.
Durham. Under the substantial-effect category, we must determine whether Congress
had a rational basis for concluding that travel abroad followed by noncommercial, illicit
sexual conduct with a minor, “taken in the aggregate, substantially affect[s]” foreign
commerce. Raich, 545 U.S. at 22. We conclude that Congress had such a rational basis.
Congress passed § 2423(c) as an essential part of its broader effort to combat
international sex trafficking—specifically sex tourism. Under § 2423(b), prosecuting
individuals who traveled abroad to have illicit sex—whether commercial or
noncommercial—required intent. Because proving intent was too onerous, Congress
44
omitted intent in § 2423(c) to achieve the broader regulatory goals of § 2423 aimed at
international sex tourism. Congress therefore had a rational basis to determine that travel
to a foreign country followed by illicit sexual conduct with minors substantially affects
the international sex tourism industry.
Section 2423(c)’s (1) legislative history, (2) role in the broader statutory scheme,
and (3) jurisdictional hook together support the statute’s constitutionality. The Supreme
Court’s analysis in Gonzales v. Raich lends further support.
a. Section 2423(c)’s legislative history supports rational basis
By 2002, Congress had recognized the problem of sex tourism was growing
despite previous efforts to address it. See H.R. Rep. No. 107-525, at 2 (“[C]hild-sex
tourism . . . is increasing,” especially in many “developing countries”). For many
developing countries, sex tourism had become a source of income, and “[b]ecause poor
countries are often under economic pressure to develop tourism, those governments often
turn a blind eye towards [the problem of sex tourism] because of the income it produces.”
Id. The legislative record contains statements expressing concern that the sex tourism
industry “support[s] one of the fastest growing areas of international criminal activity.”
149 Cong. Rec. 7,625 (2003) (statement of Rep. Sensenbrenner).
The 2003 PROTECT Act sought to stop this problem. § 105, 117 Stat. at 654. It
added a statutory scheme to dismantle sex tourism. See id. In addition to § 2423(c),
three of the Act’s other provisions also targeted the industry. Section 2423(d) punished
sex tourism operators and their businesses; § 2423(e) criminalized conspiracies or
45
attempts to engage in sex tourism; and § 2423(f) defined commercial acts,
noncommercial acts, and the production of child pornography as activities of sex tourism.
One of the PROTECT Act’s critical additions was § 2423(c). This provision
addressed a problem with one of Congress’s previous attempts to curb sex tourism—
§ 2423(b)’s stringent mens rea requirement. Section 2423(b) required the prosecution to
show an individual traveled with the “inten[t]” to engage in illicit sexual contact with
minors, which was “difficult to prove.” Hearings at 25 (statement of Daniel P. Collins,
Associate Deputy Att’y Gen., U.S. Dep’t of Justice). Section 2423(c) closed this gap; it
targeted “persons who travel to foreign countries to engage in illegal sexual relations with
minors” regardless of intent. 149 Cong. Rec. 7,633 (2003) (statement of Rep.
Sensenbrenner).
The dissent correctly observes that congressional findings “can inform the
analysis” but also are “not dispositive.” Dissent Op. at 41. The dissent also accurately
notes that the PROTECT Act did not contain congressional findings on the impact of
noncommercial sex on foreign commerce. See id. at 42. But “the absence of
particularized findings does not call into question Congress’[s] authority to legislate.”
Raich, 545 U.S. at 21. Courts may look to the legislative history more broadly in
determining whether Congress had a rational basis to conclude that an activity
substantially affects foreign commerce. See id. at 22.
b. Section 2423(c) is an essential part of a broader statutory scheme
Section 2423(c) not only bolstered § 2423(b), it joined a long lineage of legislation
aimed at sex trafficking. Beginning with the Act of 1907, the United States banned the
46
“importation” of foreign prostitutes into the United States. § 3, 34 Stat. at 899. Congress
expanded its efforts to end international sex trafficking by passing the Mann Act in 1910
to prevent interstate trafficking, 36 Stat. 825; the Protection of Children Against Sexual
Exploitation Act in 1978 to prevent the trafficking of boys as well as girls, § 3, 92 Stat. at
8; and the Child Sex Abuse and Pornography Act in 1986 to prevent the noncommercial
sexual exploitation of children, § 5, 100 Stat. at 3511. The 1994 Violent Crime Control
and Law Enforcement Act, § 160001(g), 108 Stat. at 2037, and the 2003 PROTECT Act,
§ 105, 117 Stat. at 654—adding § 2423(b) and § 2423(c) to 18 U.S.C. § 2423,
respectively—were Congress’s most recent attempts to combat sex trafficking through
criminalization of sex tourism.
The pathway to the enactment of § 2423(c) manifests a purpose to address the
foreign commerce problem of the international sex trade. Unlike the gun possession
provision in Lopez, which was “not an essential part of a larger regulation of economic
activity,” 514 U.S. at 561, Congress viewed § 2423(c) as a necessary part of the broader
effort to combat the sex tourism market. It determined that 2423(b)’s gap limited
18 U.S.C. § 2423’s efficacy. Thus, in criminalizing illicit sexual conduct abroad,
whether commercial or noncommercial and regardless of intent, Congress determined
that such activity, in the aggregate, substantially affects foreign commerce. Congress had
a rational basis to conclude that the conduct § 2423(c) addresses substantially affects
foreign commerce—in this instance, the international sex trade.
The dissent argues that “the great bulk of [the long history of federal legislation
governing interstate and international travel for sex offenses] is irrelevant because it does
47
not speak to the specific regulation at issue here.” Dissent Op. at 42. But this history is
the predicate for showing that § 2423(c) is an essential part of the broader regulatory
scheme. Although we do not rely on formal legislative findings for this point, we
properly rely, as have other courts, on the legislative history leading up to and
including the enactment of § 2423(c). See Raich, 545 U.S. at 10-15 (discussing drug
legislation from 1906 to 1970, which “culminated in the passage of” the act
containing the CSA); Fullilove v. Klutznick, 448 U.S. 448, 475 (1980) (plurality
opinion) (stating “[t]he legislative history of the [statute] shows that there was a
rational basis for Congress to conclude that the [regulated activity] . . . has an effect
on interstate commerce” and that “Congress could take necessary and proper action
to remedy the situation”). The legislative history demonstrates that Congress
regarded § 2423(c) as an essential part of the broader regulation resulting from a long
history of combatting international sex tourism.19
19 The dissent also suggests that there must be congressional findings
demonstrating that a larger “regulatory scheme could be undercut unless the
intrastate activity were regulated.” Dissent Op. at 40 (quoting Lopez, 514 U.S. at
561). Because, the dissent contends, Congress made no findings that the “failure to
control noncommercial illicit sexual conduct would ‘undercut’ [the regulation of
commercial sex],” id. at 40-41, § 2423(c) was not an essential part of the broader
regulation. We disagree.
First, as already stated, “the absence of particularized findings does not call
into question Congress’[s] authority to legislate.” Raich, 545 U.S. at 21. The Court
has never required legislative findings, let alone findings showing that a regulatory
scheme would be undercut without regulation of a particular activity.
Second, the legislative history demonstrates that § 2423(c) was an essential
part of the broader regulatory scheme. The intent requirement in § 2423(b) was
undercutting sex tourism prosecutions. By shedding the mens rea requirement,
Congress enabled the prosecution of individuals who travel abroad and have illicit
sex—whether commercial or noncommercial—with minors. Congress could
48
c. Section 2423(c)’s jurisdictional element supports rational basis
The dissent recognizes that § 2423(c) contains an “express jurisdictional element”
tying § 2423(c) to foreign commerce. Dissent Op. at 45. In addition to “engag[ing] in
illicit sexual conduct,” § 2423(c) requires “travel[] in foreign commerce” as an element
of the offense. 18 U.S.C. § 2423(c). An express element limits the statute’s reach by
linking the prohibited illicit activity to foreign commerce. See Morrison, 529 U.S. at
611-12; Patton, 451 F.3d at 632-34. The dissent properly points out that “[a]
jurisdictional hook is not, however, a talisman that wards off constitutional challenges.”
See Dissent Op. at 45 (quoting Patton, 451 F.3d at 632). But § 2423(c)’s jurisdictional
hook nonetheless points to Congress’s explicitly limiting the statute to “foreign
commerce” and to having a rational basis for its enactment. Although the presence of a
jurisdictional element is “neither necessary nor sufficient,” it is “certainly helpful” in
determining whether “the prohibited activity has a substantial effect on” foreign
commerce. Patton, 451 F.3d at 632.
d. Raich supports rational basis for § 2423(c)
The Supreme Court’s 2005 decision in Gonzales v. Raich supports the foregoing
analysis. After Lopez and Morrison, Raich was the first Supreme Court case to uphold a
federal statute on interstate commerce grounds.
The CSA classified marijuana as a Schedule I drug, making its manufacture,
distribution, or possession a criminal offense. Raich, 545 U.S.at 14; see 21 U.S.C.
rationally believe that without § 2423(c), these same individuals would continue to
fuel the international sex tourism market.
49
§§ 812(c), 841(a)(1). State law allowed California residents Angel Raich and Diane
Monson to cultivate or possess marijuana for personal medical purposes. Raich, 545 U.S.
at 5. They challenged § 841(a)(1) of the CSA, arguing it exceeded congressional
authority under the ICC as applied to them. Id. at 22; see 21 U.S.C. §§ 812(c), 841(a)(1)
(2000). The Court upheld § 841(a)(1) as applied to Ms. Raich and Ms. Monson, finding
it was part of a larger regulation of economic activity and that Congress had a rational
basis to conclude that home-grown marijuana for medical use substantially affected
interstate commerce. Raich, 545 U.S. at 22; see 21 U.S.C. § 812 (2000) (CSA section
categorizing controlled substances); id. §§ 821-830 (CSA sections specifying
requirements for registering, producing, labeling, packaging, and recordkeeping for
controlled substances).
The Court upheld the CSA despite the lack of a congressional finding concerning
the impact of noncommercial marijuana cultivation on interstate commerce. Raich, 545
U.S. at 21. The Court stressed that it need only determine whether Congress had a
“rational basis” for determining that these activities taken in the aggregate substantially
affect interstate commerce. Id. at 22. It had “no difficulty concluding that Congress had
a rational basis for believing that failure to regulate the intrastate manufacture and
possession of marijuana would leave a gaping hole in the CSA.” Id. The Court
determined that the provision is part of the CSA’s larger regulatory scheme that regulated
the market for controlled substances. Id. at 15, 20-21. Section 841(a)(1) was one part of
the CSA, which classifies drugs into five schedules, each with a distinct set of controls.
Id. at 13-14. The CSA’s purpose is to control the supply of and demand for both legal
50
and illegal drugs. See id. at 19. Thus, the Court determined that personally cultivated
marijuana for medical purposes, taken in the aggregate, substantially affected the illicit
market for drugs, and was subject to regulation under the ICC. Id. at 22, 28-29.20
Two aspects of the Raich analysis are noteworthy.
First, the Court observed that the CSA was the product of decades of legislation.
Congress “set out to enact legislation that would . . . provide meaningful regulation over
legitimate sources of drugs to prevent diversion into illegal channels.” Id. at 10. Like
Congress’s early attempts to regulate sex trafficking, Congress attempted to regulate the
national drug market early on, passing the Pure Food and Drug Act of 1906 and the
Harrison Narcotics Act of 1914. Id. It also attempted to regulate the market for
20 We have recently interpreted Raich as supporting congressional “regulation
of noncommercial, purely intrastate activity that is an essential part of a broader
regulatory scheme that, as a whole, substantially affects interstate commerce (i.e., has
a substantial relation to interstate commerce).” PETPO, 852 F.3d at 1002. In
PETPO, we upheld the provisions of the Endangered Species Act (“ESA”) that allow
the U.S. Fish and Wildlife Service (“FWS”) to promulgate regulations protecting
threatened or endangered species. Id. at 994. Under these provisions, the FWS
prohibited the “take”—or the harassment, harm, pursuit, hunting, shooting,
wounding, killing, trapping, capturing, or collecting—of Utah prairie dogs, a purely
intrastate species, on nonfederal lands. Id. PETPO, an organization of property
owners affected by the regulation, argued that Congress exceeded its authority under
the ICC in authorizing the FWS to promulgate regulations prohibiting the “take” of
prairie dogs—a noncommercial activity. Id. at 996.
We upheld the provisions because, under Raich, they were “an essential part of
the ESA’s broader regulatory scheme which, in the aggregate, substantially affects
interstate commerce.” Id. at 1002. Even though the regulation protecting prairie
dogs concerned noncommercial activity, we recognized that Congress had a rational
basis to conclude that the regulated activity had a substantial relationship to interstate
commerce. “Congress had a rational basis to believe that providing for the regulation
of take of purely intrastate species like the Utah prairie dog is essential to the ESA’s
comprehensive regulatory scheme.” Id. at 1006-07.
51
marijuana with the Marihuana Tax Act in 1937. Id. at 11. From these piecemeal
attempts, Congress finally passed the Comprehensive Drug Abuse Prevention and
Control Act of 1970—which contained the CSA—to regulate the illegal and legal drug
markets. Id. at 10.
Congress followed a similar course in passing the PROTECT Act, building on
previous attempts to regulate the international market for sex trafficking. Beyond
criminalizing the transport of prostitutes under the Mann Act, for example, the
PROTECT Act attempted to address sex tourism comprehensively. It also closed gaps by
targeting sex tourism operators and not requiring intent for travelers who engage in illicit
sex. Just as legislative lineage supported a rational basis for congressional action in
Raich, it also does so for § 2423(c).
Second, the Court in Raich examined the home-grown marijuana provision within
the broader statute and recognized that it was part of the CSA’s larger scheme to regulate
commerce. Id. at 23 (noting the CSA was a “valid statutory scheme” regulating the illicit
drug market). It was “of no moment” that this larger scheme both envisioned and
captured some purely intrastate activity. Id. at 22. Because § 841(a)(1) was one
component of a regulatory framework, the Court “refuse[d] to excise individual
components of that larger scheme.” Id. Thus, the Court upheld the CSA’s regulation of
noncommercial cultivation of medical marijuana as a valid part of a larger scheme to
regulate the controlled substances market.
Similarly, § 2423(c) is part of the PROTECT Act’s larger scheme to combat sex
tourism. Congress passed § 2423(c) as a vital component to regulate the illicit
52
international market for sex. The § 2423 provisions work together to curb the trafficking
and sexual exploitation of minors abroad. Section 2423(a) targets the trafficking of
minors across state and international borders; section 2423(b) targets those who travel
abroad with the intent to engage in illicit sexual acts with minors; section 2423(c) targets
those who travel without intent to engage in such acts; and § 2423(d) targets those who
operate businesses that facilitate such illicit sexual conduct abroad. Together, the
provisions curb the supply and demand in the sex tourism industry. That § 2423(c)
captures intranational, noncommercial activity is “of no moment,” see id. at 22, because
it is a part of a statutory structure aimed at regulating foreign commerce—the
international sex tourism industry.21
e. Rational basis standard
Rational basis is a deferential standard. The dissent mistakenly suggests that
because the regulated activity must have a substantial effect on commerce and because
noncommercial sex is noneconomic, such an effect is impossible. See Dissent Op. at 37-
21 The Raich Court recognized that Congress exercised its authority under the ICC
and the Necessary and Proper Clause to pass “comprehensive legislation to regulate” the
illicit substances market. Raich, 545 U.S. at 22. “Congress was acting well within its
authority to ‘make all Laws which shall be necessary and proper’ to ‘regulate
Commerce . . . among the several States.’” Id. (quoting U.S. Const. art. I, § 8, cl. 3 and
cl. 18). Because Congress had “a rational basis for believing that failure to regulate the
intrastate manufacture and possession of marijuana would leave a gaping hole in the
CSA,” the regulation of noncommercial, intrastate activity—home cultivation and
possession of medical marijuana—was “of no moment.” Id. The Court refused to
“excise individual components of that larger scheme.” Id. It was therefore “necessary
and proper” under Congress’s ICC power to regulate the noncommercial, intrastate
activity. Id. Because the Government does not rely on the Necessary and Proper Clause
to defend § 2423(c), we do not address that provision.
53
38. The dissent criticizes the government for its failure to show that “noneconomic
sex abuse will affect the market in commercial sex trafficking,” id. at 38, or that the
“regulation is ‘an essential part’ of the regulation of commercial sex tourism,” id. at
40. It demands “data [] that [show] prosecutions of noncommercial child sexual abuse
reduce the incidence of commercial abuse” because noncommercial sex is not a “fungible
commodit[y].” Id.22
But under the proper standard of review, “[w]e ask not whether, as judges, we
believe the challenged statute has a substantial effect on interstate commerce, but
whether Congress could reasonably have thought so.” Patton, 451 F.3d at 625. As
the Court emphasized in Raich: “[W]e stress that the task before us is a modest one.
We need not determine whether respondents’ activities, taken in the aggregate,
substantially affect interstate commerce in fact, but only whether a ‘rational basis’
exists for so concluding.” Raich, 545 U.S. at 22. Here, the legislative history, the
overall statutory scheme, and jurisdictional hook all evince that Congress had a
rational basis for concluding that, in the aggregate, Americans who travel abroad and
22 The dissent emphasizes the economic and noneconomic distinction. See
Dissent Op. at 34 (“The fact that noncommercial nonconsensual sexual activity is not
economic activity is extremely important, probably dispositive, in determining
whether it is subject to the third category of regulation of commerce.”). But this
distinction arose from federalism concerns in the ICC context, and those concerns do
not apply here.
Even in the ICC context, the Court has never “adopt[ed] a categorical rule
against aggregating the effects of any noneconomic activity.” Morrison, 529 U.S. at
613. The Court has upheld congressional regulation of noncommercial activity, see
Raich, 541 U.S. at 21-22, and this court has upheld laws regulating what appeared to
be noneconomic activity. See PETPO, 852 F.3d at 1002 (upholding the protection of
prairie dogs under the ESA).
54
have noncommercial sex with minors substantially affect the international sex
tourism market.23 Congress determined, after years of experience with the evolving
legislative framework, that it needed § 2423(c) to complete the package. We cannot
say this choice was unreasonable.
6. Legal Landscape
Both of the circuits that have examined the constitutionality of § 2423(c)’s
criminalization of noncommercial illicit sexual conduct abroad under the FCC have
upheld it. See Bollinger, 798 F.3d at 218 (the Fourth Circuit upholding § 2423(c)
because of its “demonstrable” effect on foreign commerce); Pendleton, 658 F.3d at 311
(the Third Circuit upholding § 2423(c) because of its express connection to the channels
of foreign commerce); see also United States v. Flath, 845 F. Supp. 2d 951, 956 (E.D.
Wis. 2012) (upholding under the FCC); United States v. Martinez, 599 F. Supp. 2d 784,
808 (W.D. Tex. 2009) (upholding under the FCC and the necessary and proper clause).
But see United States v. Al-Maliki, 787 F.3d 784, 791-92 (6th Cir. 2015) (not deciding the
issue, but expressing doubt about § 2423(c)’s constitutionality under the FCC).24
23 The dissent relies on the three-factor framework laid out in Patton, but
eschews a holistic analysis. It recognizes that three factors—(1) the activity’s
relation to commerce, (2) congressional findings, and (3) jurisdictional hook—are
relevant to our substantial-effect analysis, see Dissent Op. at 35-36, but analyzes
them separately from each other, see id. at 36-48. Here, we consider the legislative
history, the regulatory scheme, and the jurisdictional hook together in “answer[ing]
[the] question” of “whether Congress had a rational basis to find that the regulated
activity, taken in the aggregate, would substantially affect interstate commerce.”
Patton, 451 F.3d at 623; see also Raich, 545 U.S. at 10-11, 22-23.
24 The Ninth Circuit also has upheld § 2423(c) under the FCC in a challenge to
the provision’s prohibition of commercial illicit sexual conduct. See Clark, 435 F.3d
55
Two district court opinions in the District of Columbia have held otherwise. See
United States v. Reed, No. CR 15-188 (APM), 2017 WL 3208458, at *14 (D.D.C. July
27, 2017) (unpublished) (finding § 2423(c)’s application to noncommercial conduct
unconstitutional under the FCC); United States v. Park, 297 F. Supp. 3d 170, 179 (D.D.C.
2018) (using Reed, 2017 WL 3208458, to come to the same conclusion). But, unlike
here, these cases concerned individuals charged under § 2423(c)’s “residing clause.” See
18 U.S.C. § 2423(c) (“Any United States citizen . . . who travels in foreign commerce or
resides, either temporarily or permanently, in a foreign country, and engages in any illicit
sexual conduct . . . .” (emphasis added)). The district courts lacked a jurisdictional hook
to “foreign commerce,” which is present in our case. See, e.g., Reed, 2017 WL 3208458,
at *12. Moreover, the district courts emphasized the sexual abuse at issue was
noneconomic and its connection to international sex tourism was too attenuated to have a
“substantial effect” on foreign commerce. See, e.g., id. In coming to this conclusion,
they focused on a lack of particularized legislative findings and history. As explained
above, the Supreme Court has never required “particularized findings,” and such a
limited focus overlooks the legislative history laid out in this opinion and § 2423(c)’s
place in a broader regulatory scheme. Raich, 545 U.S. at 21; see also Heart of Atlanta
Motel, Inc. v. United States, 379 U.S. 241, 252 (1964) (upholding the Civil Rights Act
even without congressional findings).
1100. It also recently interpreted the language of § 2423(c) without addressing its
constitutionality. See United States v. Pepe, 895 F.3d 679 (9th Cir. 2018).
56
7. Conclusion
In passing § 2423(c), Congress had a rational basis to conclude it was regulating
activity that substantially affects foreign commerce. In particular, it could reasonably
decide that foreign travel followed by noncommercial sex with minors—in the
aggregate—substantially affects the international market for sex tourism. We therefore
uphold § 2423(c) as applied to Mr. Durham as a permissible exercise of congressional
authority under the FCC.
Section 2423(c)’s legislative history, place in the broader regulatory scheme, and
jurisdictional hook indicate Congress’s rational basis for determining the activity’s
substantial connection to foreign commerce. In 2002, the congressional sponsors of
§ 2423(c) recognized that the sex tourism industry was expanding and that the
“growing . . . industry” fueled human sex trafficking, a massive illicit international
market. 149 Cong. Rec. 7,625 (2003) (statement of Rep. Sensenbrenner). Congress
attempted to curtail such markets with the PROTECT Act in 2003. Section 2423(c)—and
its accompanying provisions—target sex tourists and operators, commercial and
noncommercial acts, and travel with and without intent to engage in illicit sexual acts.
Specifically, § 2423(c) closed the enforcement gap created by § 2423(b)’s intent
requirement. Congress had a rational basis to conclude that, without § 2423(c), the
failure to capture such behavior would substantially affect foreign commerce—here sex
tourism.
Thus, under the FCC, Congress permissibly exercised its authority in passing
§ 2423(c).
57
B. Issue Two: Brady Claim
In his supplemental motion for new trial under Federal Rule of Criminal
Procedure 33, Mr. Durham alleged that the Government suppressed evidence
favorable to the accused in violation of Brady v. Maryland, 373 U.S. 83 (1963). The
district court denied the motion, and Mr. Durham appeals the Brady ruling. We
affirm because Mr. Durham has not shown by a preponderance of the evidence that
nondisclosure of the evidence prejudiced his case.
1. Additional Procedural Background
a. Trial testimony
At trial, Dr. Alawiya Abdulkadir Mohamed testified about the victims’
medical records. ROA, Vol. 12 at 1178 (TT 564). In June 2014, Dr. Abdulkadir
supervised the outpatient clinic in Kenya where the victims were examined. Id. at
1179-80 (TT 565-66). Although she did not examine the children, she reviewed the
Post Rape Care (“PRC”) forms prepared by the clinician who did on June 18, 2014.
Id. at 1182-83, 1188-89 (TT 568-69, 574-75). Dr. Abdulkadir prepared Medical
Examination Reports based on the PRCs. Id. at 1183 (TT 569). Her testimony
included the following:
Q. [C]an you explain to the jury what the hymen is on a
female?
A. Okay. So the hymen is a membrane which covers the
vagina and it’s -- it doesn’t fully cover the vagina, so
there’s a portion which is slightly open to allow the
menstrual flow. So it’s a membrane which is usually
most people get born with it and it’s usually present in
kids and -- yes.
Q. If a hymen is perforated, what does that mean?
58
A. Okay. We -- the hymen could be perforated due to
several reasons. One of them would be due to sexual
assault. The others would be due to extraneous
exercises involving the groin region or falling astride,
like falling on a wall, having bicycle accidents and
horseback riding. Those are the common things which
break the hymen.
Id. at 1185-86 (TT 571-72). She further testified that five of the six girls had a
perforated hymen and that would not be normal for girls their ages. Id. at 1187-88
(TT 573-74). On cross-examination Dr. Abdulkadir testified:
Q. Now, you talked a lot about a perforated hymen?
A. Yes.
Q. Now, a hymen -- a hymen can be in very different
shapes; is that right?
A. True.
Q. It can be flat; is that right?
A. Yes.
Q. It can be round, some are bigger and some are smaller?
A. Bigger in terms of?
Q. Of their size. Some women will have a bigger hymen
than others?
A. It’s a membrane, so it’s more thickness than bigger, it’s
not --
Q. More thickness?
A. The dimensions are not three-dimensional.
Q. If a woman has not started menstruating yet, would her
hymen -- it’s called non-estrogenized; is that right?
A. Yes.
Q. And that means that the hymen is more rigid and hard?
A. Yes.
Q. And so that would be the situation for children who
have not yet hit their menstrual cycle; is that right?
A. Yes.
Id. at 1198-99 (TT 584-85); see also id. at 1220-21 (TT 606-07) (answering in the
negative when asked if a 7, 6, 13 or 11-year-old should have a perforated hymen).
59
Dr. Abdulkadir testified that even if the assaults occurred a month before the
examinations, the exams were conducted because “[t]he hymen doesn’t come back.
So we’re looking out for the hymen. It doesn’t regenerate, so --.” Id. at 1214 (TT
600), see also id. at 1221 (TT 607). She agreed that “there’s no way you can be
certain that Mr. Durham committed the assaults.” Id. at 1215 (TT 601); see also id.
at 1222 (TT 608).
Later in the trial, the defense called Lisa Dunson, a sexual assault nurse
examiner, who was present in the courtroom when Dr. Abdulkadir testified. Id. at
1581, 1585 (TT 967, 971). Nurse Dunson testified that all hymens have a hole in
them, that preadolescent children do not usually have physical injuries following a
sexual assault, and that hymens have different shapes and sizes. Id. at 1594-96 (TT
980-82). As for the term “perforated hymens,” she testified:
Q. Now, what about -- what was the term used on the
medical records as far as the hymen; do you recall?
A. Yes. They used the word “perforated.”
Q. And the examiner who conducted -- who viewed the
children didn’t testify. What in your mind is -- does
that mean, “perforated hymen”?
A. Truthfully, I don’t know. We don’t use that term
anymore. It hasn’t been used since I’ve been doing
exams, which is since 2003. I think when the general
population hears the word “perforated,” we think of a
tear or a hole that’s not supposed to be there, so I don’t
know what that means because I don’t use that.
***
Q. So “perforated” could mean a tear, it could mean just
the natural opening of the hymen. We don’t know at
this point; is that right?
A. I wouldn’t speculate what that means.
60
Id. at 1596-97 (TT 982-83). She conceded that the term “perforated hymen” might
be commonly used elsewhere, and that it appears in the Kenyan protocol for sexual
assault examinations. Id. at 1621, 1626 (TT 1007, 1012). Although the term had not
been used since she started doing examinations in 2003, she said it was once used in
the United States. Id. at 1626 (TT 1012).
Nurse Dunson testified, contrary to Dr. Abdulkadir, that hymen tissue can
repair itself. Id. at 1598 (TT 984). She had reviewed an article that said “minor
abrasions and lacerations usually heal within about three to four days.” Id. She said
that “statistics say that 90 to 95 percent of all children exams, regardless of what the
disclosure, are normal.” Id. at 1599 (TT 985). She also testified that in examinations
of children who have been sexually assaulted, “there usually isn’t an injury. Children
are usually not injured.” Id. at 1616 (TT 1002). She also agreed that a “positive
finding” for five of the six children would be unlikely. Id. at 1617-18 (TT 1003-04).
She said that an acute injury of the hymen is from blunt force trauma. Id. at 1625
(TT 1011).
b. Supplemental motion for new trial
On October 2, 2015, Mr. Durham moved for leave to file a supplemental
motion for a new trial, which was granted, and he filed his memorandum in support
on October 27. Mr. Durham alleged the Government violated his right to due process
under Brady because the prosecutor in the case, Assistant United States Attorney
61
(“AUSA”) Robert Don Gifford, failed to disclose evidence favorable to the accused.
ROA, Vol. 3 at 505-06.25
The supplemental motion stemmed from two memoranda that the Oklahoma
County District Attorney, David Prater, sent to the district court after the trial. On
September 28, 2015, the court sent them to the parties’ counsel. ROA, Vol. 3 at 812.
The memoranda recounted telephone conversations on the evening of June 15, 2015,
the day the prosecution rested its case-in-chief.
On August 16, 2015, Oklahoma County Assistant District Attorney (“ADA”)
Gayland Geiger wrote the first memorandum. It described his June 15 telephone
conversation with AUSA Gifford:
I asked Gifford about the facts of his case. He said there
were 5 or 6 or 7 (don’t remember the exact number) of
female victims ages 6 to 14. All but one of them had a
perforated hymen. He indicated this evidence was
presented by the government’s medical witness. . . . A
reviewing doctor actually testified to the perforated
hymens. He said as best as they could tell, the sexual
assault exams were done about 6 weeks after the abuse
occurred. He said the defense was calling a sexual assault
expert, and he did not know what the expert would say. . . .
I told him that I have not heard the term perforated hymen.
I told him it is very unusual to have physical findings in
children; that it is extremely unusual to have physical
findings 6 weeks after the event; that even if there were an
injury, it would have healed in that amount of time; and,
that it is extremely unusual and almost unheard of to have
physical findings in 5 of 6 or 6 of 7 victims. I called
[Physician Assistant] Donaldson and joined her for a three-
25 Mr. Durham also alleged in his initial motion for new trial that the
Government violated Brady because it suppressed video data of his conversation with
Ms. Menja, in which he confessed to certain allegations against him. The district
court rejected this claim, and Mr. Durham has not pursued it on appeal.
62
way conversation with Gifford. She told him the same
things. We together told him that there are legitimate
medical studies showing even pregnant girls have normal
exams. Donaldson explained the anatomy and that a
perforated hymen is a normal finding. . . . I expressed my
opinion to him that [] he cannot cross examine the defense
expert in good faith on those issues, because medical
research and the legitimate medical community share those
opinions. I encouraged him to instead contact Dr. Brown
to be a rebuttal witness to use to say even if the African
exams are incorrect, it still does not mean sexual abuse did
not occur.
Id. at 813.
At ADA Geiger’s request, Dr. Ryan Brown, Chair of the Child Protection
Committee at the University of Oklahoma Children’s Hospital, wrote the second
memorandum about his discussions with AUSA Gifford on the night of June 15:
We had discussed what a performed hymen meant to me. I
had told him that to me, it meant that the hymen had a hole
in it, which is normal. I didn’t know if that was what the
African physician had meant by it, but we don’t normally
use that language to describe hymens here in the US. . . . I
had also stated that an imperforate hymen, is still normal,
but is actually not a common finding. He had stated to me
that the African physician had stated that he had found 5 of
the 6 young ladies in the case to have perforated hymens
and that the physician was calling that an abnormal
finding. I spoke with him that actually it is rare to have
findings in sexual abuse exams, especially in your
preadolescent children. I told him that about 95% of the
time we will have a normal finding, and of the 5%, 2/3 of
the evidence is found on the clothing or bed. I also
reiterated that a normal exam does not rule in or rule out a
sexual encounter. Also, that it would be quite rare for 5
individuals to have the same findings on exam in regards
to a sexual assault, unless the perpetrator was using some
type of instrumentation, I also spoke about how quickly
findings on exams can heal, IF there were findings to begin
with. . . . Again I stated that it would be a small chance to
63
have abnormal findings on a preadolescent sexual abuse
exam, and to have multiple children with the same finding,
other than normal, would be rare. I also stated again that
time is of the essence and rape exams done after a week
could be normal even if there was a finding to begin with
since the tissue heals so quickly.
Id. at 816.
In his supplemental motion, Mr. Durham argued that AUSA Gifford had failed
to disclose the information he learned in his June 15, 2015 conversations in violation
of Brady. In opposition, the Government argued there was no Brady violation
because the information at issue was available to the defense and because it was not
material in light of Nurse Dunson’s testimony.
The district court denied the Brady claim based on the Government’s second
argument. It first said that, although the information provided by Dr. Brown was
available from other sources, the fact it came from Dr. Brown was not. But the court
concluded that the Government’s failure to apprise Mr. Durham of Dr. Brown’s
statements did not deprive him of a fair trial because of Nurse Dunson’s “vigorous
opposition” to Dr. Abdulkadir’s testimony. ROA, Vol. 3 at 810.26
26 The motion also alleged that AUSA Gifford had failed to correct Dr.
Abdulkadir’s false testimony in violation of Napue v. Illinois, 360 U.S. 264 (1959).
ROA, Vol. 3 at 500-04. The district court denied the Napue claim, concluding there
was no evidence that Dr. Abdulkadir committed perjury rather than testified
inconsistently with Mr. Durham’s expert, Nurse Dunson. Id. at 808-09. On appeal,
Mr. Durham does not present a Napue argument. He concedes that he “cannot prove
that Dr. Abdulkadir herself knew [her testimony] was false” and thus that his Napue
claim is foreclosed by United States v. Garcia, 793 F.3d 1194 (10th Cir. 2015). Aplt.
Reply Br. at 6 n.1; see Garcia, 793 F.3d at 1207 (“A Napue violation occurs when
(1) a government witness committed perjury, (2) the prosecution knew the testimony
to be false, and (3) the testimony was material.” (emphasis added)); see also United
64
2. Analysis
a. Standard of Review
“Our review of a Brady claim asserted in the context of a Rule 33 motion for a
new trial is de novo, with any factual findings reviewed for clear error.” United
States v. Torres, 569 F.3d 1277, 1281 (10th Cir. 2009); see United States v. Garcia,
793 F.3d 1194, 1205 (10th Cir. 2015). “[W]hether suppressed evidence is material is
a mixed question of law and fact which we also review de novo.” Douglas v.
Workman, 560 F.3d 1156, 1172 (10th Cir. 2009).
b. Legal Background
Under Federal Rule of Criminal Procedure 33, “the court may vacate any
judgment and grant a new trial if the interest of justice so requires.” Mr. Durham’s
Rule 33 motion was based, in part, on an alleged Brady violation.
In Brady, the Supreme Court held “that the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” 373 U.S. at 87. The Court later held that the duty to
disclose such evidence applies even when the accused has made no request. United
States v. Agurs, 427 U.S. 97, 107 (1976). Brady applies to impeachment evidence, or
evidence affecting witness credibility, “[w]hen the reliability of a given witness may
well be determinative of guilt or innocence.” Giglio v. United States, 405 U.S. 150,
States v. Caballero, 277 F.3d 1235, 1244 (10th Cir. 2002) (“Even postulating tension
between [a witness]’s responses on direct and cross, such inconsistency alone does
not establish the knowing use of perjured testimony.” (emphasis added)).
65
154-55 (1972) (quotations omitted); see also United States v. Bagley, 473 U.S. 667,
676-77 (1985).
To establish a Brady violation, “[1] [t]he evidence at issue must be favorable
to the accused, either because it is exculpatory, or because it is impeaching; [2] that
evidence must have been suppressed by the State, either willfully or inadvertently;
and [3] prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82
(1999); see United States v. DeLuna, 10 F.3d 1529, 1534 (10th Cir. 1993). The
defense needs to establish these elements by a preponderance of the evidence.
McCormick v. Parker, 821 F.3d 1240, 1246 (10th Cir. 2016). In Strickler, the Court
said the third element concerns “whether petitioner has established the prejudice
necessary to satisfy the ‘materiality’ inquiry.” 527 U.S. at 282. The evidence is
material and its nondisclosure is prejudicial “only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different.” Bagley, 473 U.S. at 682; see also Kyles v. Whitley, 514
U.S. 419, 433-434 (1995); Garcia, 793 F.3d at 1205.
c. No prejudice for a Brady violation
The information that AUSA Gifford learned from the June 15 conversations
was favorable to the defense, and he did not disclose the conversations to defense
counsel. 27 But even assuming Mr. Durham could show the first two elements of
27 In this regard, the concerns of DA Prater and ADA Geiger were well taken.
See ROA, Vol. 3, at 813-15.
66
Brady were met,28 he has not established prejudice because the information was not
material in light of Nurse Dunson’s testimony. We therefore affirm the district
court’s denial of Mr. Durham’s Brady motion.
AUSA Gifford’s June 15, 2015 conversations with ADA Geiger, Ms.
Donaldson, and Dr. Brown were was not material in light of the trial record. On June
16, Mr. Durham called Nurse Dunson to testify. She said there are “usually not
injuries with children” following a sexual assault, ROA, Vol. 12 at 1598 (TT 984),
that a physical finding was less likely if the exam occurred five days after an assault,
id. at 1597 (TT 983), that “minor abrasions and lacerations usually heal within about
three to four days,” id. at 1598 (TT 984), that “perforated hymen” was an antiquated
term no longer in use, id. at 1626 (TT 1012), and that “statistics say that 90 to 95
percent of all children exams, regardless of what the disclosure, are normal,” id. at
1599 (TT 985). Nurse Dunson therefore testified to the information AUSA Gifford
learned during his June 15 conversations, including the rarity of physical findings in
cases of child sexual assault and that lacerations to the hymen heal quickly. ROA,
Vol. 3 at 813-15.
As the district court said, Mr. Durham has not shown prejudice due to “Ms.
Dunson’s vigorous opposition to Dr. Abdulkadir’s testimony.” ROA, Vol. 3 at 810.
The jury received the information from Mr. Durham’s own expert, Nurse Dunson.
28 The Government argues it did not suppress because the defendant knew or
could have acquired the information from another source. Aplee. Br. at 22. Due to
our disposition of the Brady issue on lack of prejudice, we do not address this
argument.
67
She provided testimony that was the same as or comparable to the information from
Dr. Brown about perforated hymens, the likelihood of findings during sexual abuse
examinations, that normal findings do not rule out sexual assault, the rarity of the
same findings in multiple children, and the speed of healing. Compare ROA, Vol. 3
at 816 with ROA, Vol. 12 at 1595-96, 1598-99, 1616-18, 1626, 1631 (TT 981-82,
984-85, 1002-04, 1012, 1017).
Mr. Durham cannot show prejudice because Nurse Dunson rebutted each of
Dr. Abdulkadir’s points that may otherwise have been impeached by the information
that AUSA Gifford learned in the June 15 conversations. Indeed, Mr. Durham admits
on appeal that Nurse Dunson’s testimony “largely rebutted Dr. Abdulkadir’s claims.”
Aplt. Br. at 23-24. Taking the differences between the experts’ opinions into
account, we still conclude that there was no Brady violation because Mr. Durham has
not shown “a reasonable probability that, had [Dr. Brown’s information] been
disclosed to the defense, the result of the proceeding would have been different.”
Bagley, 473 U.S. at 682.
We therefore affirm the district court’s denial of the part of the supplemental
motion for a new trial alleging a Brady violation.
C. Issue Three: Mr. Durham’s Statements about Child Pornography
and Homosexuality
Mr. Durham argues that the district court’s admission of his out-of-court
statements that he had struggled with child pornography and homosexuality violated
(1) Federal Rule of Evidence 404(b) because the statements were used to show
68
propensity to commit the charged offenses, (2) Federal Rule of Evidence 401 because
the statements were irrelevant, and (3) Federal Rule of Evidence 403 because the
statements were unfairly prejudicial. Because the district court did not abuse its
discretion, we affirm.
1. Standard of Review
We review the admission of evidence for abuse of discretion “and will not reverse
if the district court’s ruling falls within the bounds of permissible choice in the
circumstances and is not arbitrary, capricious or whimsical.” United States v. Willis, 826
F.3d 1265, 1270 (10th Cir. 2016) (quotations omitted).
2. Additional Factual Background
a. Evidence about child pornography and homosexuality
The prosecution presented evidence at trial about two separate times when Mr.
Durham said he had struggled with child pornography or homosexuality.
First, Ms. Wambugu, Ms. Menja, Mr. Mutonga, and Mr. Jeffries testified about
statements made at the June 13, 2014 meeting at Upendo. They each said that during the
meeting, Mr. Durham went outside to talk to Ms. Wambugu, ROA, Vol. 12 at 721, 827,
998, 1132, and that, upon returning with Ms. Wambugu to the sitting room, Mr. Durham
said he had struggled with child pornography and homosexuality. Id. at 724, 828, 999.
According to Ms. Wambugu, Mr. Durham said he could not remember molesting the
children, but could “only remember . . . he ha[d] been struggling with child pornography
and homosexuality.” ROA, Vol. 12 at 724 (TT 110). Ms. Menja testified that Mr.
Durham “said that he needed help because he has been struggling with child pornography
69
and homosexuality.” Id. at 828 (TT 214). Mr. Mutonga testified that Mr. Durham said
he “needed to apologize, he needed to be forgiven,” and that he “struggled with
homosexuality and child pornography.” Id. at 1133 (TT 519). In his testimony, Mr.
Durham admitted saying at this meeting that he struggled with homosexuality, but denied
mentioning child pornography. Id. at 1848-49 (TT 1234-35).
Second, the jury was shown the Seagull Confession Videos that were recorded on
June 17. At the beginning of one of the videos, Mr. Durham stated he could not
remember what happened. Ms. Menja responded that if Mr. Durham did not have a
memory of the events and could not describe them, they would “want the police [t]here to
deal with it first.” Gov’t Exh. 4 at 1:03-1:10. Mr. Durham said, “I’ve told you the truth,
I’ve told you that I’ve struggled with this my whole life . . . .” id. at 1:32-1:37, and
described a “temptation to touch children and to be with other men,” id. at 1:57-2:01.
b. District court rulings
Before trial, Mr. Durham moved to exclude evidence about his alleged struggles
with “wanting to touch children”29 or “erotic pornography,” ROA, Vol. 2 at 282, and also
moved to exclude evidence “regarding [his] sexual history and sexual orientation,” id. at
345. The district court denied these motions at a pre-trial hearing. On the pornography,
the Government argued the statement was “inherent as a part of [Mr. Durham’s]
confession,” and the court seemed to agree. ROA, Vol. 12 at 523. The court admitted
the statements about homosexuality because “when a defendant is ostensibly explaining
29 Although Mr. Durham sought to exclude the statement about a temptation to
touch children before trial, he does not challenge its admission on appeal.
70
what he’s done, that . . . would be very relevant and probative and admissible.” Id. at
531.
When Ms. Wambugu testified at trial about the June 13 statements, the court asked
if Mr. Durham would like a limiting instruction to the jury that Mr. Durham was “not on
trial for child pornography or homosexuality.” Id. at 725 (TT 111). Defense counsel
declined, saying he “d[idn’t] see how there c[ould] be any limiting instruction that
cure[d] [the testimony’s] prejudice,” so none was given. Id. at 725-26 (TT 111-12).
Mr. Durham based his motion for a new trial in part on the admission of the
evidence about his statements concerning child pornography and homosexuality. See
ROA, Vol. 3 at 316-324. The district court ruled he was not entitled to a new trial based
on the admission of the statements. Id. at 785. It said the statement about child
pornography was relevant “because it was offered by Defendant as a justification for the
behavior of which he was accused,” and found any prejudicial effect of the evidence did
not substantially outweigh its probative value. ROA, Vol. 3 at 786. As to the statements
about homosexuality, the court found “that the potential prejudice of admitting
Defendant’s statements did not outweigh their probative value.” Id. at 785. “[D]espite
the potential for prejudice to Defendant . . . the evidence herein was relevant, largely
because it was offered by Defendant as some type of explanation or justification when he
was accused of engaging in inappropriate sexual activity with children at Upendo.” Id. at
785-86.
71
3. Legal Background
a. Rule 404(b)
Federal Rule of Evidence 404(b) prohibits evidence of a “crime, wrong, or
other act . . . to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.”
“When we apply Rule 404(b), we distinguish between evidence that is
extrinsic or intrinsic to the charged crime.” United States v. Kupfer, 797 F.3d 1233,
1238 (10th Cir. 2015). Rule 404(b) prohibits evidence of “other acts,” “but this rule
does not cover evidence that is considered intrinsic” to the charged crime. Id.
(quotations omitted). Evidence is intrinsic when it is “directly connected to the
factual circumstances of the crime and provides contextual or background
information to the jury.” Id. (quotations omitted).
b. Rules 401 and 402
Evidence is admissible only if it is relevant. Fed. R. Evid. 402. Evidence is
relevant if “it has any tendency to make a fact more or less probable than it would be
without the evidence; and . . . the fact is of consequence in determining the action.” Fed.
R. Evid. 401.
c. Rule 403
Otherwise admissible evidence may be excluded under Rule 403 if its
“probative value is substantially outweighed by . . . unfair prejudice.” Fed. R. Evid.
403. “‘Unfair prejudice’ within its context means an undue tendency to suggest [a]
decision on an improper basis, commonly, though not necessarily, an emotional
72
one.” United States v. Silva, 889 F.3d 704, 712 (10th Cir. 2018) (quoting Fed. R.
Evid. 403 advisory committee note to 1972 proposed rules). “[A]s to a criminal
defendant, [it] speaks to the capacity of some concededly relevant evidence to lure
the factfinder into declaring guilt on a ground different from proof specific to the
offense charged.” Old Chief v. United States, 519 U.S. 172, 180 (1997).
“The district court has considerable discretion in performing the Rule 403
balancing test, but exclusion of evidence under Rule 403 that is otherwise admissible
under the other rules is an extraordinary remedy and should be used sparingly.”
Silva, 889 F.3d at 712 (quotations omitted).
4. Analysis
The district court did not abuse its discretion when it determined the challenged
statements were (1) intrinsic to the charged crimes, (2) relevant, and (3) not unfairly
prejudicial.
a. Rule 404(b)
The district court did not abuse its discretion by holding the statements were
intrinsic rather than Rule 404(b) evidence.30 Although the district court did not use
the word “intrinsic,” it viewed the statements as intrinsic to the charged crimes
because they were part of Mr. Durham’s denials and eventual confession to the
crimes. See ROA, Vol. 12 at 523, 531; ROA, Vol. 3 at 785-86.
30 Although the statements at issue “are party admissions under [Federal Rule
of Evidence] 801(d) and thus not hearsay, they must nevertheless also be analyzed
for admissibility under Rule 404(b)” because they reference other acts that could
have been used as propensity evidence. United States v. Oberle, 136 F.3d 1414, 1418
(10th Cir. 1998).
73
Mr. Durham made both statements at issue when the Upendo volunteers
confronted him about the children’s allegations. The statements were intrinsic
evidence because they provided “contextual or background information” regarding
his actions when confronted with the allegations against him and his confession at the
Seagull on June 17. Kupfer, 797 F.3d at 1238.
The fact that the statements were made after the charged conduct had occurred
does not make them extrinsic. For example, in United States v. Bajoghli, 785 F.3d 957
(4th Cir. 2015), the Fourth Circuit held it was an abuse of discretion for the district court
to exclude evidence of a defendant’s post-scheme conduct, id. at 966. In that case, the
government sought to introduce evidence that the defendant had halted his fraudulent
scheme after he was interviewed by law enforcement. Id. at 964. The court held this
evidence was admissible intrinsic evidence, not 404(b) evidence, because it showed the
defendant’s knowledge and intent to defraud. Id. at 965. Although Mr. Durham made
his statements after the charged conduct, they were nonetheless intrinsic evidence
because they “bear[] directly” on his response to the allegations against him. Id. at 964
(alteration and quotations omitted).
The district court did not abuse its discretion by holding the statements were
intrinsic evidence and not subject to the Rule 404(b) bar.
b. Rules 401 and 402
As intrinsic evidence, the statements satisfied Rule 401’s “any tendency”
relevance standard. See Daubert v. Merrell Dow Pharm., 509 U.S. 579,587 (1993)
(calling Rule 401’s standard as “liberal”). In the face of allegations that he had
74
molested children and that two of his alleged victims were male, Mr. Durham’s
statements that he had struggled with both child pornography and homosexuality
provided context and explanation, making them relevant and admissible under Rules
401 and 402. Mr. Durham has not presented any persuasive argument on appeal that
the district court abused its discretion in determining the statements not only
constituted intrinsic evidence but also met “the minimal relevance requirements of
Rule 401.” United States v. Spence, 721 F.3d 1224, 1229 (10th Cir. 2013); see
United States v. Breton, 740 F.3d 1, 14 (1st Cir. 2014) (recognizing “the low bar of
relevancy set out in Rule 401”).
c. Rule 403
The district court did not abuse its discretion in admitting the statements over Mr.
Durham’s Rule 403 challenge.
As described, the statements were probative as intrinsic to Mr. Durham’s
explanation for his conduct. The district court acted within its discretion to determine
that the potential for unfair prejudice did not substantially outweigh the statements’
probative value.31
We affirm the district court’s admission of the statements about struggles with
child pornography and homosexuality.
31 We note the district court offered a limiting instruction on this evidence,
which defense counsel rejected. ROA, Vol. 12 at 725-26 (TT 111-12). The
instruction likely would have lowered the prejudicial effect of the evidence, and Mr.
Durham should not now benefit from declining it.
75
D. Issue Four: Prosecutorial Misconduct
Mr. Durham contends that the district court erred when it denied the part of his
Rule 33 motion for a new trial which alleged that the Government made improper
propensity statements about his struggle with homosexuality. Aplt. Br. at 34-39. The
statements occurred during the Government’s cross-examination of Mr. Durham and its
closing argument. Because Mr. Durham failed to contemporaneously object to the
alleged improper statements on prosecutorial misconduct grounds, we review for plain
error. We find none and affirm the district court’s denial of Mr. Durham’s motion for a
new trial on this issue.
1. Standard of Review
“Ordinarily, we review the trial court’s decision to grant or deny a new trial for
abuse of discretion, and will reverse the denial of a motion for a new trial only if the trial
court made a clear error of judgment or exceeded the bounds of permissible choice in the
circumstances.” United States v. Toro-Pelaez, 107 F.3d 819, 828 (10th Cir. 1997). But
where the defendant “failed to contemporaneously object regarding the . . . reasons he
asserts as justification for a new trial[,] . . . we . . . may only reach the issue if we find
plain error.” Id.
“Plain error occurs when there is (1) error, (2) that is plain, which (3) affects the
defendant’s substantial rights, and which (4) seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Fleming, 667 F.3d 1098,
1103 (10th Cir. 2011) (quotations omitted). “To show that an error affected his
substantial rights, [the defendant] must establish a reasonable probability that, but for the
76
error claimed, the result of the proceeding would have been different.” United States v.
Uscanga-Mora, 562 F.3d 1289, 1295 (10th Cir. 2009) (quotations omitted). “When
evaluating allegedly inappropriate remarks of counsel for plain error, we must view the
remarks in the context of the entire trial.” Fleming, 667 F.3d at 1103 (quotations
omitted).
2. Additional Factual Background
As described in Issue Three above, the jury heard evidence that Mr. Durham had
twice stated that he struggled with homosexuality. We now provide additional factual
background on the two alleged instances in which the prosecution made improper
propensity arguments relating to these statements.
a. The Government’s cross-examination of Mr. Durham
During the cross-examination of Mr. Durham, the prosecutor questioned him
about his struggle with homosexuality. After replaying part of one of the Seagull
Confession Videos, the prosecutor asked Mr. Durham: “[W]hat do you struggle with?”
ROA, Vol. 12 at 1999 (TT 1385). Mr. Durham’s counsel objected to the question on the
ground that “this is repetitious,” and the trial court sustained the objection. Id. The
prosecutor continued: “Mr. Durham, you struggle with homosexuality?” Id. Mr.
Durham answered, “I did, yes,” after which his counsel objected, again because “[i]t’s
repetitious.” Id. The Court again sustained the objection. Id. The prosecution resumed
playing the Seagull Confession Video, and defense counsel “object[ed] to continually
replaying it after Your Honor has ruled.” Id. The court sustained the objection,
remarking that “[i]t has been played before.” Id. at 2000 (TT 1386).
77
b. The Government’s closing argument
During rebuttal closing argument, the prosecutor twice referred to Mr. Durham’s
“life-long struggle with touching children and homosexuality.” Id. at 2087 (TT 1473),
2096 (TT 1482).
First, the prosecutor argued:
There is always a first victim to a crime, a first time when you
go to Upendo, long before your mother does, 24 days, a first
time when you ask to stay at Upendo among the little children
that you’re going to be with . . . while you have a life-long
struggle with touching children and homosexuality.
Id. at 2087 (TT 1473).
Second, the prosecutor argued:
[Mr. Durham] insisted on going to Kenya weeks before
anyone else. He insisted on living at Upendo when he knew
he had a life-long struggle with touching children and
homosexuality. He put himself there knowing he couldn’t
resist, knowing it was all likelihood that he would get what he
always wanted, and that was to be with children.
Id. at 2096-97 (TT 1482-83).
Mr. Durham’s counsel did not object to either of these statements. See ROA, Vol.
12 at 2087-2103 (TT 1473-89).
3. Additional Procedural Background
After the jury rendered its verdict, Mr. Durham filed a motion for new trial on
various grounds. One ground was that the prosecution had “implied . . . that [his]
struggles with homosexuality make it more likely that [he] sexually assaulted and
molested children.” ROA, Vol. 3 at 321.
78
The district court denied the motion. In doing so, it did not separately address Mr.
Durham’s claim that the prosecution had improperly suggested he had a propensity to
commit the charged conduct. Instead, within its discussion of the admissibility of Mr.
Durham’s statements about struggling with homosexuality, the court stated that “[t]he
United States never argued that Defendant engaged in sexual activity with the children
because he is homosexual, rather the prosecution noted in closing argument that when
confronted, he proffered an excuse.” Id. at 785.32
4. Legal Background
“We analyze whether a statement constitutes prosecutorial misconduct using a
two-step process.” Fleming, 667 F.3d at 1103. “First, we determine whether the
prosecutor’s statements were improper.” Id. (quotations omitted). “Second, we
determine whether the prosecutor’s improper statements were harmless beyond a
reasonable doubt.” Id. (quotations omitted).
“The Government generally bears the burden of proving that an improper
statement is harmless beyond a reasonable doubt.” Id. But “when, as here, a defendant
fails to object to a prosecutor’s statement, reversal is warranted only when: (1) the
prosecutor’s statement is plainly improper and (2) the defendant demonstrates that the
improper statement affected his or her substantial rights.” Id.
32 Mr. Durham does not contend that the district court did not rule on the
prosecutorial misconduct ground raised in his motion for a new trial. See Aplt. Br. at
34-39. Regardless of whether the district court ruled on this issue, the record is
sufficiently developed to show that any error did not affect Mr. Durham’s substantial
rights under our plain error standard of review, as we explain below.
79
5. Analysis
Mr. Durham contends that “[t]he Government committed prosecutorial
misconduct by arguing Mr. Durham was more likely to commit the alleged crimes
because he struggled with homosexuality and Mr. Durham was irreparably prejudiced.”
Aplt. Br. at 39. Because, as we explain below, Mr. Durham failed to preserve either of
the alleged instances of prosecutorial misconduct for appellate review, we review for
plain error only. See Toro-Pelaez, 107 F.3d at 828. We begin and end our analysis at the
third step of the plain error test—whether the error affected Mr. Durham’s substantial
rights. We conclude that Mr. Durham has failed to satisfy the substantial rights step, and
we therefore affirm the district court’s denial of his motion for a new trial.
a. Preservation
Mr. Durham failed to preserve either of the alleged instances of prosecutorial
misconduct for appellate review by contemporaneously objecting on prosecutorial
misconduct grounds.33 We address each alleged instance of prosecutorial misconduct
separately.
i. Alleged misconduct during cross-examination of Mr. Durham
Although defense counsel contemporaneously objected to the prosecution’s crossexamination
of Mr. Durham about struggling with homosexuality, defense counsel
33 Mr. Durham “submits he properly preserved the [issue of prosecutorial
misconduct] and that the standard of review is abuse of discretion” because he
“raised the issue . . . in his motion for new trial.” Aplt. Br. at 34. Our precedent
forecloses this argument. See Toro-Pelaez, 107 F.3d at 828 (when the defendant
“failed to contemporaneously object regarding the . . . reasons he asserts as
justification for a new trial[,] . . . we . . . may only reach the issue if we find plain
error”).
80
objected on the ground that the questioning was repetitious—not on the ground of
prosecutorial misconduct for making a propensity argument. See ROA, Vol. 12 at 1999
(TT 1385). The district court therefore “did not have notice that defense counsel believed
the prosecutor’s questioning of [Mr. Durham] to be an inappropriate attempt at [making a
propensity argument] or to rise to the level of prosecutorial misconduct.” United States v.
Baldridge, 559 F.3d 1126, 1135 (10th Cir. 2009).34
ii. Alleged misconduct during closing argument
The record shows—and Mr. Durham concedes—that defense counsel did not
contemporaneously object to the prosecution’s references to his struggle with
homosexuality in its closing argument. See ROA, Vol. 12 at 2087-2103 (TT 1473-89);
Aplt. Br. at 34 (“Defendant . . . did not contemporaneously object during closing
argument.”).
b. Plain error—substantial rights
Because Mr. Durham failed to preserve either of the alleged instances of
prosecutorial misconduct for appellate review, we review for plain error only. We find
no plain error because Mr. Durham has failed to show that the alleged misconduct
affected his substantial rights. We address each alleged instance of prosecutorial
misconduct separately.
34 Even if we were to conclude that the objections on the ground of
repetitiousness sufficed to put the district court on notice that defense counsel
believed the Government was making a propensity argument, Mr. Durham would still
not be entitled to relief. Our reasons, discussed below, for determining that any error
in the prosecution’s questioning did not affect Mr. Durham’s substantial rights would
also persuade us that any error was harmless beyond a reasonable doubt.
81
i. Alleged misconduct during cross-examination of Mr. Durham
Even assuming error in the prosecutor’s references to homosexuality during crossexamination
of Mr. Durham, any error did not affect Mr. Durham’s substantial rights.
“To show that an error affected his substantial rights, Mr. [Durham] must establish a
reasonable probability that, but for the error claimed, the result of the proceeding would
have been different.” Uscanga-Mora, 562 F.3d at 1295 (quotations omitted).
As discussed above, defense counsel objected to the prosecutor’s questioning on
Mr. Durham’s struggle with homosexuality on the ground of repetitiousness. The district
court sustained defense counsel’s objections. Moreover, the court’s preliminary
instructions to the jury at the trial’s outset had included the following: “If an objection is
sustained, ignore the question.” ROA, Vol. 12 at 623 (TT 9). Additionally, the jury’s
acquittal of Mr. Durham on several counts, despite the prosecutor’s questions, suggests
that the jury’s verdict was “based on reason, rather than emotion.” United States v.
Archuleta, 737 F.3d 1287, 1296 (10th Circuit 2013). Under these circumstances, Mr.
Durham has not shown a reasonable probability that, but for the prosecutor’s questions,
the jury would have rendered a different verdict. See United States v. Lane, 883 F.2d
1484, 1498 (10th Cir. 1989) (“As a general rule, we presume that juries follow [limiting]
instructions.”).
ii. Alleged misconduct during closing argument
Even assuming error in the prosecutor’s references to homosexuality during
closing argument, the error did not affect Mr. Durham’s substantial rights. Mr. Durham
contends otherwise, citing United States v. Schene, 543 F.3d 627 (10th Cir. 2008). Aplt.
82
Reply Br. at 14.35 In Schene, this court said that a prosecutor’s question about whether
the defendant had visited “websites with homosexual themes” was “arguably improper.”
543 F.3d at 641-42.
Mr. Durham’s argument fails because it does not consider the prosecution’s
remarks “in the context of the entire trial.” Fleming, 667 F.3d at 1103 (quotations
omitted). Despite acknowledging the potentially prejudicial impact of the prosecutor’s
conduct, we held in Schene that, “even assuming, arguendo, that [the defendant]
preserved this argument for appeal . . . the district court did not abuse its discretion in
failing to grant a mistrial based on the prosecutorial misconduct.” 543 F.3d at 642. We
reasoned that, “[g]iven the evidence against [the defendant], . . . the alleged prosecutorial
misconduct was not flagrant enough to influence the jury to convict on grounds other
than the evidence presented.” Id. (quotations omitted).
Even more so here under plain error review, when “it is the defendant rather than
the Government who bears the burden of persuasion with respect to prejudice,” Fleming,
667 F.3d at 1103 (quotations omitted), relief is not warranted based on the prosecution’s
closing argument. As summarized above, the Government presented ample independent
evidence to show that Mr. Durham committed the offenses on which the jury convicted.
For example, the trial evidence supporting the jury’s verdict included victim testimony
and detailed written confessions by Mr. Durham. ROA, Vol. 9 at 8, 15, 16; ROA, Vol.
35 Mr. Durham’s argument assumes that the jury harbored biases about sexual
orientation. He has not provided any evidence that it did, but to the extent his
assumption holds, we nevertheless conclude Mr. Durham has not shown that any
error affected his substantial rights, as we explain below.
83
12 at 658, 1406, 1440, 1458. And again, the jury’s acquittal of Mr. Durham on the
remaining counts further supports the harmlessness of any improper prosecutorial
argument. See Archuleta, 737 F.3d at 1296. So even if we could read the prosecutor’s
closing argument as improperly suggesting that Mr. Durham’s struggle with
homosexuality made him more likely to act on his temptation to touch children, Mr.
Durham is not entitled to relief on plain error review.
* * * *
Mr. Durham has not shown that the alleged improper prosecutorial statements,
individually or taken together, affected his substantial rights under the plain error test.
We therefore affirm the district court’s denial of Mr. Durham’s motion for a new trial on
grounds of prosecutorial misconduct.
E. Issue Five: Cellphone Videos Authentication
Mr. Durham challenges the admission of Ms. Menja’s cellphone-recorded videos
of his confession as improperly authenticated. Aplt. Br. at 42. He argues the
“Government did not sufficiently address [his] contention that the recordings had been
altered.” Aplt. Br. at 45. He contends the videos were admitted in error due to Mr.
Durham’s “specific showing of irregularities” and inability to inspect the cellphone itself.
[Id. at 46.] Because Ms. Menja’s testimony laid a sufficient foundation for
authentication, we find that the district court did not abuse its discretion when it
admitted her cellphone videos and affirm.
84
1. Standard of Review
Whether the Government laid a sufficient foundation for the videos to be admitted
at trial is reviewed for abuse of discretion. United States v. Green, 175 F.3d 822, 829
(10th Cir. 1999). Abuse of discretion is defined as “an arbitrary, capricious, whimsical,
or manifestly unreasonable judgment.” United States v. Cardenas, 864 F.2d 1528, 1530
(10th Cir. 1989).
2. Additional Background
On June 17, 2014, Ms. Menja recorded part of her conversation with Mr. Durham
at the Seagull restaurant on her cellphone. The Government’s trial exhibits included the
five Seagull Confession Videos recorded by Ms. Menja that day. See Gov’t Exs. 3-7.
Each was admitted and played for the jury.36 Videos played in ROA, Vol. 12, 858-870
(TT 244-56). Ms. Menja initially turned over her cellphone to the Government so that
investigators could copy the data. ROA, Vol. 12 at 433. The Government made copies
and returned the phone to her. Id.
a. Pre-Trial
Before trial, Mr. Durham moved in limine to inspect the cellphone used to record
his statements and to have an expedited chain of custody hearing. ROA, Vol. 1 at 631.
The court held a hearing on the motion. ROA, Vol. 12 at 427. At the hearing, the
36 Gov’t Exh. 3, 1 minute, 49 seconds (preliminary conversation); Gov’t Exh.
4, 12 minutes 10 seconds (Mr. Durham describing his interactions with various
children); Gov’t Exh. 5, 29 seconds (Mr. Durham calling his mother to discuss his
actions); Gov’t Exh. 6, 20 seconds (Mr. Durham writing out his interactions with
various children); Gov’t Exh. 7, 10 seconds (another video of Mr. Durham writing
out his interactions with various children.)
85
Government explained that it would be providing Mr. Durham a “mirror image” of Ms.
Menja’s phone, but not the cellphone itself. ROA, Vol. 12 at 433; ROA, Vol. 2 at 543.
The Government described the mirror image as follows:
When you make a video with a phone, unbeknownst to the
person who is filming, images are embedded into the phone
called LBLs. If you go back to that video and you cut off a
portion of the recording, a forensic examiner would show
that those LBLs still exist. More or less, it’s like a
fingerprint. In this case, the only way to get to that is to
look at the actual phone. So based upon the defendant’s
concerns, we asked to receive the phone and we made a
mirror image. That way, we can return the phone and do a
forensic review on the computer, it would be just like we
had her phone.
ROA, Vol. 12 at 427-28.
The Government explained that the mirror image would allow defense counsel to
analyze whether the videos had been altered: “[a forensic examiner] would be able to
look at the LBLs to make sure there’s no outstanding LBL missing video.” Id. at 429.
Defense counsel responded that the mirror image would not be sufficient to inspect for
alterations. Id. at 430.
The court ordered the Government to turn over the mirror image to defense
counsel. It denied without prejudice Mr. Durham’s “Motion to Compel Production,
Inspection and Imaging of Cell Phone and Expedite Chain of Custody Hearing,” allowing
Mr. Durham to renew the motion if necessary following his counsel’s inspection of the
mirror image. ROA, Vol. 12 at 435; ROA,Vol. 2 at 40.
After his forensic expert, Donovan Farrow, analyzed the mirror image, Mr.
Durham filed a “Renewed Motion to Compel Production, Inspection, and Imaging of Cell
86
Phone.” ROA, Vol. 2 at 533.37 In support of the motion, Mr. Farrow submitted an
affidavit arguing that the mirror image “cannot be considered a true representation of the
evidence at the time the videos were recorded” and that “[i]t appears the Government is
attempting to piecemeal the cell phone evidence and only provide Defense Counsel with
limited information regarding the videos.” Id. at 543. More specifically, he opined:
[A] type of data scrubbing had occurred on some of the video
files. Data scrubbing is a technique used to erase metadata
that is related to a file. This technique has to be done by a
person with knowledge and is not something that can occur
unintentionally. Thus, this evidence has been compromised
as it was intentionally tampered with to the point the video’s
metadata was deleted.
Id. at 544.
Before the hearing on the renewed motion to compel, the court arranged for a
meeting between the parties’ forensic experts. ROA, Vol. 12 at 592-596. At that
meeting, Mr. Farrow requested a “logical image” from the Government, which he later
received and analyzed. ROA, Vol. 12 at 595.38
At the pretrial hearing on the renewed motion to compel, Mr. Durham’s counsel
argued, “[W]e stated last time we were here in court that the metadata had been scrubbed.
. . . After looking at the logical image, which is just a portion of the cell phone, [Mr.
Farrow] found that the videos had, in fact, been split up. They had been cut. He can tell
that from the file names.” ROA, Vol. 12 at 595. The court concluded Mr. Durham could
37 Mr. Durham also renewed his motion for an “expedited chain of custody
hearing.” ROA, Vol. 2 at 533 (capitalization altered).
38 Defense counsel described a “logical image” as “a smaller portion of a
forensic image.” ROA, Vol. 12 at 595.
87
call Mr. Farrow as a witness to testify that the videos had been altered, but it declined to
exclude the videos entirely. ROA, Vol. 12 at 596. The court also noted that the
Government “will have to lay the proper foundation for the introduction of these videos,
and, obviously, cross-examination could be fruitful.” ROA, Vol. 12 at 596.
b. Trial
At trial, the court overruled Mr. Durham’s contemporaneous objection to
admission of the Seagull Confession Videos. ROA, Vol. 12 at 857 (TT 243). The
Government first showed one of the videos during its direct examination of Ms. Menja,
who had recorded the video on her cellphone. Before showing the video, the
Government asked Ms. Menja if she had reviewed the cellphone videos on both her
phone and on a computer. She responded that she had and that the videos were
“identical.” ROA, Vol. 12 at 856-57 (TT 242-43). The Government then moved to
admit the cellphone videos. Id. at 857 (TT 243). Before the court ruled, it asked Ms.
Menja whether the videos “accurately reflect[ed] [her] memory of what occurred on that
date.” Id. at 857 (TT 243). She said that they did, and the court admitted the videos.
Id.
During the direct examination of Ms. Menja, the Government asked her several
times whether she manipulated, changed, or edited the footage in any way. ROA, Vol.
12 at 859, 861, 865 (TT 245, 247, 251). Each time, she responded that she had not. Id.
The defense neither cross-examined Ms. Menja about alteration of the videos nor called
88
Mr. Farrow or any other forensic expert to testify about the Seagull videos.39 ROA, Vol.
12, at 893-961 (TT 279-347).
3. Legal Background
To authenticate evidence for admission at trial, “the proponent must produce
evidence sufficient to support a finding that the item is what the proponent claims it is.”
Fed. R. Evid. 901(a).
“When evidence is unique, readily identifiable and relatively resistant to change,
the foundation need only consist of testimony that the evidence is what its proponent
claims.” United States v. Johnson, 977 F.2d 1360, 1367 (10th Cir. 1992) (quotations
omitted); see also United States v. McIntyre, 836 F.2d 467, 470 (10th Cir. 1987)
(audiotape of statement admissible in trial where witness who heard statement also
testifies and gives independent support for testimony).
On the other hand, when evidence “is not readily identifiable and is susceptible to
alteration by tampering or contamination, the trial court requires a more stringent
foundation entailing a chain of custody of the item with sufficient completeness to render
it improbable that the original item has either been exchanged with another or been
contaminated or tampered with.” Johnson, 977 F.2d at 1367 (quotations omitted). A
videotape that has been altered in some form may still be “readily identifiable” and “not
susceptible to alteration by tampering” for purposes of authentication. See, e.g., United
States v. Mills, 194 F.3d 1108, 1112 (10th Cir. 1999) (allowing videotape into evidence,
39 On cross-examination, Mr. Durham’s counsel asked Ms. Menja about the
context of the videos and why some were started or stopped when they were, but not
about alterations. ROA, Vol. 12, at 893-961.
89
finding it “readily identifiable” and “sufficient[ly] complete[] to render it improbable
[that it had] . . . been contaminated or tampered with,” despite a deletion that did “not
affect the accuracy of the remaining images”). The trial court “need not rule out every
possibility that the evidence underwent alteration; it need only find that the reasonable
probability is that the evidence has not been altered in any material aspect.” Cardenas,
864 F.2d at 1532.
4. Analysis
The district court did not abuse its discretion in determining there was a sufficient
foundation supporting the cellphone videos’ authenticity. Ms. Menja testified that she
had reviewed the videos and that they were a fair and accurate depiction of what she saw.
ROA, Vol. 12 at 857 (TT 243). That testimony gave the court sufficient basis to
determine the videos were authentic. See Mills, 194 F.3d at 1112 (finding no abuse of
discretion for a video’s admission when the person responsible for creating the video
confirmed that it accurately depicted what it claimed to depict); see also United States v.
Cejas, 761 F.3d 717, 723 (7th Cir. 2014) (finding no error in admitting video that the
witness testified was a “fair and accurate depiction” of what he saw). Further supporting
the video’s authenticity was Ms. Menja’s testimony that she had not edited or altered the
videos in any way. ROA, Vol. 12 at 859, 861, 865 (TT 245, 247, 251).40
40 No chain of custody analysis was necessary given that Ms. Menja’s
testimony provided a foundation for the video, which was “unique, readily
identifiable and relatively resistant to change.” Cardenas, 864 F.2d at 1531. Mr.
Durham contends that the videos were “easily subject to manipulation” but did not
choose to present evidence on this point at trial. Aplt. Reply Br. at 16. He otherwise
does not argue in his briefing why the video was not “readily identifiable.”
90
To the extent Mr. Durham believed the videos did not depict what they
claimed to depict, the court gave him an opportunity to cross-examine Ms. Menja on
alterations to the videos and to call his forensic expert to testify on them. He chose
to do neither. See Johnson, 977 F.2d at 1368 (defense counsel’s failure to cross on
an authentication issue cuts against an argument to exclude evidence). The district
court did not abuse its discretion when it admitted the cellphone videos as
sufficiently authenticated.
F. Issue Six: Victims’ Medical Records
Mr. Durham challenges the district court’s admission of the full set of the victims’
medical records, rather than just a portion of those records, on four grounds: (1) the court
admitted all of the records when he had requested admission of only part of them (the “P-
3” records), Aplt. Br. at 47; (2) the additional admitted material lacked authentication,
Aplt. Br. at 47; (3) the full records included inadmissible “double hearsay,” Aplt. Br. at
47-48;41 and (4) admitting the full records was unduly prejudicial. As to the last point,
Mr. Durham alleges the records contained graphic representations that “inflamed the
Jury’s sympathies for the alleged victims” and contained an entry that one child “was
41 Mr. Durham’s hearsay argument in his opening brief consists of two
sentences: “The PRC Forms and clinician notes contain information relayed by the
patient or third parties. This constitutes inadmissible double hearsay. See United
States v. Gwathney, 465 F.3d 1133, 1141 (10th Cir. 2006).” Aplt. Br. at 47-48. In
his reply brief, he maintains that a particular victim’s identification of Mr. Durham
during her examination was “impermissible double hearsay” but contests no other
specific information in the victims’ medical records. Aplt. Reply Br. at 19. We
therefore consider only the abuser identification hearsay argument because Mr.
Durham fails to identify any other information in the medical records he wishes to
challenge on hearsay grounds.
91
defiled by a man named Matthew.” Aplt. Br. at 47-48. Because Mr. Durham invited any
error, and because he cannot show error, his argument fails under plain error review. We
affirm the district court’s admission of the full medical records.
1. Standard of Review
Mr. Durham failed to object to admission of the records at trial, so the plain-error
standard applies. He must accordingly show: “(1) error, (2) that is plain, which (3)
affects the defendant’s substantial rights, and which (4) seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v. Baldridge, 559
F.3d 1126, 1135 (10th Cir. 2009). Mr. Durham’s challenge fails at the first element—
whether the district court erred. We review evidentiary rulings for error under an abuse
of discretion standard. Willis, 826 F.3d at 1270.
2. Additional Background
The medical records that the Government provided to Mr. Durham consisted of:
(1) a Post Rape Care (“PRC”) form; (2) lab requests; (3) clinician notes; and (4) a
Medical Examination Report, also known as a P-3 form. ROA, Vol. 10a at 28-80. The
clinician on call filled out the PRC form for the six children examined. ROA, Vol. 12 at
1182 (TT 568). A supervising physician, Dr. Abdukladir, then reviewed the PRC forms
and prepared P-3 forms based on that review. ROA, Vol. 12 at 1182-85 (TT 568-71).
During cross-examination of Dr. Abdulkadir, defense counsel moved for
admission of a P-3 Form only. See ROA, Vol. 12 at 1202 (moving to admit pages “1
through 4” of Government’s Exhibit 44); ROA, Vol. 10a at 28 (P-3 form). The
Government responded by moving to enter the entire exhibit, which included all four
92
components described above. ROA, Vol. 12 at 1202 (TT 588). Defense counsel then
stated: “I would ask that they move to[sic] Exhibits – enter Exhibit 45, 46, 47, 48, and 49
as well.” ROA, Vol. 12 at 1202 (TT 588). The Court admitted all of the records. Id.
Defense counsel did not object. Id.
3. Legal Background
a. Invited error
It is “fundamental that a defendant cannot complain of error which he invited upon
himself.” United States v. Chavez, 229 F.3d 946, 952 (10th Cir. 2000) (quotations
omitted).
b. Authentication
To authenticate evidence for admission at trial, “the proponent must produce
evidence sufficient to support a finding that the item is what the proponent claims it is.”
Fed. R. Evid. 901(a).
c. The hearsay rule and pertinent exceptions
“Hearsay” is a statement that “the declarant does not make while testifying at the
current trial or hearing” and “a party offers in evidence to prove the truth of the matter
asserted in the statement.” Fed. R. Evid. 801(c). It is inadmissible unless an exception
applies. Fed. R. Evid. 802. One such exception is for business records—“records of a
regularly conducted activity.” Fed. R. Evid. 803(6). “[H]ospital records . . . fit
conceptually within the long-established exception for business records.” Manocchio v.
Moran, 919 F.2d 770, 776 (1st Cir. 1990).
93
Another exception to the hearsay rule is for a “statement that: (A) is made for—
and is reasonably pertinent to—medical diagnosis or treatment; and (B) describes
medical history; past or present symptoms or sensations; their inception; or their general
cause.” Fed. R. Evid. 803(4). This court has recognized that “the Fourth, Eighth and
Ninth Circuits have held that statements made by a child to a physician which identify the
sexual abuser as a member of the family or household are ‘reasonably pertinent to
diagnosis or treatment’ and may therefore be admissible [under Rule 803(4)].” United
States v. Joe, 8 F.3d 1488, 1494 (10th Cir. 1993). Accepting these holdings as valid, we
extended their application to cover abuser identifications during medical examinations
made by adult domestic sexual assault victims. Id. at 1495.
d. Unfair prejudice
Under Federal Rule of Evidence 403, “[t]he court may exclude relevant evidence
if its probative value is substantially outweighed by a danger of . . . unfair prejudice.”
Fed. R. Evid. 403. The graphic nature of evidence does not alone make it inadmissible.
See United States v. Naranjo, 710 F.2d 1465, 1468-69 (10th Cir. 1983) (allowing
photograph of victim shot in the face because it showed the “particulars of the crime
scene” and “was not unduly nor designedly inflammatory”).
4. Analysis
Mr. Durham’s challenge to the court’s admission of the victims’ full medical
records fails. Any error was invited, and he cannot show error on any ground he raises
on appeal. It follows that he cannot show plain error. Baldridge, 559 F.3d at 1135.
94
At trial, following Mr. Durham’s request to admit a P-3 Form, which was part of
the medical records in Government Exhibit 44, the Government requested the admission
of the entire medical record—including the PRC form, lab requests, clinician notes, and
the Medical Examination Report. ROA, Vol. 12 at 1202 (TT 588). Rather than object,
Mr. Durham’s counsel requested to move “Exhibit[s] 45, 46, 47, 48, and 49” into
evidence “as well.” ROA, Vol. 12 at 1202 (TT 588). Those exhibits included entire
medical records, not just P-3 forms. Mr. Durham thus invited any potential error from
admitting the records and cannot establish a plain error warranting reversal. See Chavez,
229 F.3d at 952 (finding no plain error when the appellant invited the complained-of
error). Although invited error alone is sufficient to reject Mr. Durham’s challenge on
appeal to admission of this evidence, we also determine there was no error based on any
of the four grounds Mr. Durham argues.
First, Mr. Durham argues his initial request to admit only the P-3 form showed
“counsel’s intent was to admit only a limited portion of the medical records.” Aplt.
Reply Br. at 17. Even if that were so, counsel switched gears and requested admission of
the entire records.
Second, Mr. Durham’s authenticity argument fails in light of Dr. Abdukladir’s
testimony. See ROA, Vol. 12 at 1179-83 (TT 565-69). She testified that she supervised
the department where the records were created, reviewed the PRCs when they were filled
out to make sure they had been properly completed, and reviewed the records before
testifying. Id.
95
Third, there was no hearsay error. Mr. Durham makes no argument about
admission of the medical records themselves under the business record or some other
exception to the hearsay rule. The only specific reference in the medical records Mr.
Durham challenges based on hearsay is one victim’s identification of “Matthew” during
her examination. That statement, identifying a member of the child’s household as the
abuser, was admissible under Joe. 8 F.3d at 1494-95.42
Fourth, the court did not abuse its discretion under Fed. R. Evid. 403. Mr.
Durham does not question the probativeness of the medical records. Mr. Durham
characterizes the records as including “graphic representations about where the child was
touched and the purported genital injury,” Aplt. Br. at 47. We have reviewed the
evidence and conclude the district court’s balancing of the probative value and prejudicial
effect was reasonable. See Naranjo, 710 F.2d at 1468-69 (graphic image admissible if
highly probative and not designedly inflammatory). The records were highly probative
of the victims’ injuries. The evidence was collected as part of a standardized medical
examination process and was not “designedly inflammatory.” Id. at 1469.
42 Mr. Durham cites United States v. Gwathney, 465 F.3d 1133, 1141 (10th
Cir. 2006), to support his “double hearsay” argument. Aplt. Br. at 47-48. In
Gwathney, we said that “[a]ny information provided by another person, if an outsider
to the business preparing the record, must itself fall within a hearsay exception to be
admissible.” 465 F.3d at 1141. Here, the statement made by the “outsider”—the
victim identifying the abuser—is admissible under the hearsay exception recognized
in Federal Rule of Evidence 803(4).
96
Because Mr. Durham invited error and has not otherwise shown the court erred,
we affirm the records’ admission and reject Mr. Durham’s appeal.43
G. Issue Seven: Substantive Reasonableness of Sentence
Mr. Durham challenges his 480-month sentence as substantively unreasonable.
Aplt. Br. at 58-59. He “does not challenge the district court’s procedure in calculating”
the recommended sentence under the Guidelines. Aplt. Reply Br. at 26. We affirm his
sentence because he has not shown that the district court abused its discretion in weighing
the sentencing factors set forth in 18 U.S.C. § 3553(a).
1. Standard of Review
We “review the substantive reasonableness of a sentence for abuse of discretion.”
United States v. Chavez, 723 F.3d 1226, 1233 (10th Cir. 2013); see also Gall v. United
States, 552 U.S. 38, 51 (2007) (“[T]he appellate court should . . . consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard.”).
We find no abuse unless the sentence “is arbitrary, capricious, whimsical, or
manifestly unreasonable.” United States v. Munoz–Nava, 524 F.3d 1137, 1146 (10th Cir.
2008) (quotations omitted). “That is to say, we recognize that in many cases there will be
a range of possible outcomes the facts and law at issue can fairly support; rather than pick
43 Mr. Durham raises a new argument in reply that, to the extent his counsel
invited error, his counsel was ineffective. Aplt. Reply Br. at 21. Because that
argument was not raised in his opening brief, it is waived. See Silverton Snowmobile
Club v. U.S. Forest Serv., 433 F.3d 772, 783 (10th Cir. 2006) (declining to consider
arguments not raised in opening brief). It would be more appropriate to raise this
argument through a motion under 28 U.S.C. § 2255. See United States v. Galloway,
56 F.3d 1239, 1242 (10th Cir. 1995) (en banc) (“The rule in this circuit . . . is that
claims of constitutionally ineffective counsel should be brought on collateral review,
in the first petition filed under 28 U.S.C. § 2255.”).
97
and choose among them ourselves, we will defer to the district court’s judgment so long
as it falls within the realm of . . . rationally available choices.” United States v. McComb,
519 F.3d 1049, 1053 (10th Cir. 2007).
2. Additional Factual Background
The final PSR calculated a Guidelines sentence of 1,440 months in prison based
on Mr. Durham’s total offense level and criminal history category. ROA, Vol. 7 at 142.44
The PSR identified only one factor potentially warranting a downward departure—that
Mr. Durham was 19 years old when he committed the offenses of conviction. Id. at 145-
46. The district court adopted the PSR’s calculated Guidelines sentence of 1,440 months.
Id. at 475.45
The court sentenced Mr. Durham to 480 months in prison, a sentence it
characterized as a downward variance. ROA, Vol. 3 at 844; ROA, Vol. 7 at 477; ROA,
44 The PSR calculated Mr. Durham’s total offense level to be 49 and his
criminal history category to be I. ROA, Vol. 7 at 135, 136. Under the Guidelines, an
offense level exceeding 43, the highest offense level reflected in the sentencing table,
“is to be treated as an offense level of 43.” U.S.S.G. Ch. 5, Pt. A (Sentencing Table),
Application Note 3. The Guidelines recommend a sentence of “life” for a defendant
with an offense level of 43, regardless of the criminal history category. See U.S.S.G.
Ch. 5, Pt. A (Sentencing Table). The probation officer who prepared Mr. Durham’s
PSR, after consulting with the United States Sentencing Commission, arrived at a
Guidelines sentence of 1,440 months to be consistent with the cumulative statutory
maximum sentence for the four counts of conviction. ROA, Vol. 7 at 142 n.3. Under
these circumstances, the PSR calculated a recommended Guidelines sentence rather
than a sentence range.
45 Based on its finding that Mr. Durham had committed perjury at trial, the
district court applied a two-level enhancement for obstruction of justice, bringing Mr.
Durham’s offense level to 51. ROA, Vol. 7 at 475. Because the offense level
calculated in the PSR already exceeded the maximum offense level of 43, the twolevel
enhancement had no effect on the recommended Guidelines sentence.
98
Vol. 13 at 158.46 The court offered the following explanation of its decision at Mr.
Durham’s sentencing hearing:
The sentence the Court has selected, I’m satisfied, is
sufficient but not greater than necessary, when considering
the sentencing factors set forth in 18 U.S. Code 3553.
18 U.S. Code 3553 requires the Court to consider these
factors:
The nature and circumstance of the offense; and the history
and characteristics of the defendant.
In this regard, pursuant to reading the sentencing
memorandum and what I’ve heard here today, I have
considered the age of the defendant, the fact he is a first-time
offender, his potential for the future, his charitable efforts
prior to this occasion, that this at least appears to be aberrant
behavior, the defendant has asked for mercy from the
Court[,] . . . his success in school, and all the other matters
raised in the defendant’s brief.
The next factor the Court must consider are [sic] the need for
the sentence imposed. This includes to reflect the seriousness
of the offense, to promote respect for the law, and to provide
just punishment for the offense, to afford adequate deterrence
to criminal conduct, to protect the public from further crimes
of the defendant, to provide the defendant with needed
education or vocational training, medical care, or other
correctional treatment in the most effective manner.
The kind of sentence available is number three.
Finally, the kind of sentences and the sentencing range, which
has been established. And the sentencing guidelines call for a
sentence of life in prison.
46 The 480-month sentence consists of 360 months on each of the four counts
of conviction, running partially consecutively and partially concurrently to achieve
the total sentence of 480 months. ROA, Vol. 3 at 844; ROA, Vol. 13 at 158-59.
99
Next, the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct. . . . I read all the cases cited by both
the defendant and the government. And, actually, I didn’t
find these particularly helpful. They went all over the lot, and
circumstances differed from one case to another. There
obviously wasn’t one that fit exactly with this case, and you
wouldn’t expect there to be.
The only time I have had a case of rape . . . I had one sentence
five or six years ago . . . in which the defendant was
convicted of raping his 11-year-old niece. He had a prior
conviction for sexual molestation, and I imposed a sentence
of 50 years’ incarceration.
Finally is the need to provide restitution to any victims of the
offense.
These were heinous crimes committed on the most vulnerable
victims. These darling children, who had been abandoned
and orphaned, looked to the defendant for love and support.
Instead, one by one they were raped. One was but five years
old.
At times he chose to humiliate the children by having one
watch while he abused or raped another. He was their worst
nightmare come true.
Of course, there are other victims, including the children the
defendant molested, but the counts were dismissed because
the acts didn’t technically fit the charge.
And the Upendo home and the people that worked and
volunteered there, they were trying to help the forsaken. This
is now how they are known or what they must deal with.
These violent acts demand a harsh sentence. The victims
must feel secure that he will not touch them again. However,
I also believe, when considering everything, there should be
some light at the end of the tunnel.
100
Hopefully, with appropriate treatment and strict supervision
after release, the defendant can live productively and safely in
society.
ROA, Vol. 13 at 156-58.
3. Legal Background
A substantive reasonableness sentencing challenge asks us to address “whether the
length of the sentence is reasonable given all the circumstances of the case in light of the
factors set forth in 18 U.S.C. § 3553(a).” United States v. Verdin-Garcia, 516 F.3d 884,
895 (10th Cir. 2008) (quotations omitted); see Gall, 552 U.S. at 51.47
47 Courts must consider the following factors in imposing a sentence:
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment
for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational
or vocational training, medical care, or other
correctional treatment in the most effective
manner;
(3) the kinds of sentences available;
(4) [the applicable Guidelines recommended kind and range
of sentence];
(5) [any pertinent Guidelines policy statements];
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found
guilty of similar conduct; and
(7) the need to provide restitution to any victims of the
offense.
18 U.S.C. § 3553(a).
101
When a defendant is sentenced within a properly calculated Guidelines range, the
sentence “is entitled to a rebuttable presumption of reasonableness.” United States v.
Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam). In addition, we have endorsed
“the logical and unremarkable proposition that ‘a below-guideline sentence is also
presumptively reasonable against an attack by a defendant claiming that the sentence is
too high.’” United States v. Balbin-Mesa, 643 F.3d 783, 788 (10th Cir. 2011) (quoting
United States v. Liddell, 543 F.3d 877, 885 (7th Cir. 2008)).
4. Analysis
Mr. Durham challenges his 480-month sentence as substantively unreasonable.
Aplt. Br. at 58-59. Because Mr. Durham “does not challenge the district court’s
procedure in calculating” the Guidelines sentence, Aplt. Reply Br. at 26, which was
determined to be 1,440 months, we presume that his sentence is substantively
reasonable.48 We affirm because Mr. Durham’s arguments fail to overcome the
presumption that his sentence is substantively reasonable in light of the § 3553(a) factors.
First, Mr. Durham appears to argue that he should have been sentenced to no more
than 470 months in prison, citing an online publication by the United States Sentencing
Commission (the “Commission”) for the proposition that “a life sentence is the
equivalent of 470 months.” Aplt. Br. at 58. This argument implicates procedural
reasonableness rather than substantive reasonableness because it relates to the district
48 Mr. Durham’s sentence of 480 months is less than the recommended
Guidelines sentence of 1,440 months, as determined by the district court. Whether
we characterize Mr. Durham’s sentence as within or below the Guidelines range, it is
entitled to a presumption of reasonableness. See Kristl, 437 F.3d at 1054; Balbin-
Mesa, 643 F.3d at 788.
102
court’s calculation of the Guidelines range rather than its weighing of the § 3553(a)
factors. See Gall, 552 U.S. at 51 (“failing to calculate (or improperly calculating) the
Guidelines range” is a procedural error). “To the extent [Mr. Durham] seeks to challenge
the procedural reasonableness of the district court’s sentencing calculation, . . . any such
arguments have been waived by [his] failure either to raise th[is] specific objection[]
below or to make an argument for plain error review on appeal.” United States v.
DeRusse, 859 F.3d 1232, 1236 n.1 (10th Cir. 2017).49
Second, Mr. Durham contends that his sentence is unreasonably high in light of
the need to avoid unwarranted disparities. See Aplt. Br. at 58-59. This argument also
lacks merit. At Mr. Durham’s sentencing hearing, the district court stated that it had
“read all the cases cited by both the defendant and the government [pertaining to the
disparities factor]” but “didn’t find [them] particularly helpful” because “circumstances
differed from one case to another.” ROA, Vol. 13 at 157. On appeal, Mr. Durham has
not challenged the court’s determination that the other cases he presented involved
dissimilarly situated offenders. See United States v. Franklin, 785 F.3d 1365, 1372 (10th
Cir. 2015) (“No two cases are identical, and comparison of an individual sentence with a
few counsel-selected cases involving other defendants sentenced by other judges is
49 In any event, we are not persuaded that the Commission has “state[d] that a
life sentence is the equivalent of 470 months.” Aplt. Br. at 58. Mr. Durham cites an
online publication entitled the “Variable Codebook for Individual Offenders.” Id.
This publication defines the standard codes the Commission applies to the sentencing
data it gathers, including the code “470,” which denotes life sentences. See generally
U.S. Sentencing Comm’n, Variable Codebook for Individual Offenders:
Standardized Research Data Documentation for FY1999-2014 (Rev. Apr. 8, 2015),
available at https://perma.cc/A8X6-8TTF. Contrary to Mr. Durham’s assertion, the
publication nowhere equates a life sentence with 470 months in prison.
103
almost always useless.” (citation and quotations omitted)). Nor has he advanced any
reason to question the court’s weighing of the disparities factor. See United States v.
Barnes, 890 F.3d 910, 921 (10th Cir. 2018) (“Even if the disparities factor weighs in
favor of a higher sentence, the district court considered it alongside other factors and the
facts of this case and did not abuse its discretion in imposing the sentence[] it did.”).
* * * *
Mr. Durham has failed to rebut the presumption that the district court reasonably
weighed the § 3553(a) factors or to show that its sentencing decision exceeds the bounds
of permissible choice. We therefore affirm Mr. Durham’s 480-month sentence.
H. Issue Eight: Cumulative Error
Finally, Mr. Durham argues that the errors he alleges, taken together, deprived him
of a fair trial. Aplt. Br. at 59-60. “To analyze cumulative error, we aggregate all the
errors that we have found to be harmless and determine whether their cumulative effect
on the outcome of the trial mandates reversal.” United States v. Anaya, 727 F.3d 1043,
1060–61 (10th Cir. 2013) (quotations omitted). In conducting our cumulative error
analysis, we consider two of Mr. Durham’s claims: (1) the Brady claim,50 and (2) the
50 We “include[] [Brady claims] in the cumulative-error calculus if they have
been individually denied for insufficient prejudice.” Cargle v. Mullin, 317 F.3d
1196, 1207 (10th Cir. 2003). Here, as discussed above, we held that no Brady
violation occurred because the withheld evidence lacked materiality, which speaks to
prejudice. We therefore include the alleged Brady error in our cumulative error
analysis.
104
prosecutorial misconduct claim.51
“When there are both preserved and unpreserved errors, cumulative-error analysis
should proceed as follows: First, the preserved errors should be considered as a group
under harmless-error review. If, cumulatively, they are not harmless, reversal is
required.” Id. at 1061 (alterations and quotations omitted). “The only potential preserved
error is the [alleged Brady error]. Without other errors to aggregate, there can be no
cumulative harm.” Id. We therefore proceed to the next step of our cumulative error
analysis.
“If the preserved errors are cumulatively harmless, then the court should consider
whether those preserved errors, when considered in conjunction with the unpreserved
errors, are sufficient to overcome the hurdles necessary to establish plain error.” Id.
(quotations omitted). “That is, we look to whether the combination of the [alleged Brady
error] and the prosecutor’s statements regarding [Mr. Durham’s struggle with
homosexuality] affected Mr. [Durham]’s substantial rights or seriously affected the
fairness, integrity, or public reputation of judicial proceedings.” Id. (alterations and
quotations omitted).
Mr. Durham cannot show that the combination of the alleged Brady and
prosecutorial misconduct errors affected his substantial rights. As discussed above, he
51 In our above discussion of the prosecutorial misconduct claim, we “did not
determine whether [the] alleged errors constituted actual errors but instead concluded
that any potential errors did not merit reversal because they did not affect the
outcome of Mr. [Durham’s] case.” Anaya, 727 F.3d at 1061. “For the purposes of
cumulative error analysis, we assume without deciding that these alleged errors were
errors and proceed accordingly.” Id.
105
suffered minimal (if any) prejudice from the alleged Brady error because defense
counsel—through Nurse Dunson—presented an effective rebuttal to Dr. Abdulkadir’s
testimony based on information that was substantially the same as the withheld evidence.
Moreover, the evidence of Mr. Durham’s guilt was strong. For example, the trial
evidence supporting the jury’s verdict included victim testimony and detailed written
confessions by Mr. Durham. ROA, Vol. 9 at 8, 15, 16; ROA, Vol. 12 at 658, 1406, 1440,
1458. “Consequently, even if we aggregate the[] alleged [Brady and prosecutorial
misconduct] errors, there is no cumulative error.” Anaya, 727 F.3d at 1061.
III. CONCLUSION
We affirm Mr. Durham’s convictions and sentence.
16-6075, United States v. Durham
HARTZ, Circuit Judge, dissenting.
In 2014, Defendant, 19 years old at the time, made his fourth missionary trip from
the United States to Kenya to volunteer at a home for impoverished children. A jury
acquitted him of traveling with the intent to engage in illicit sexual conduct. But he did
engage in illicit sexual conduct after his travel to Kenya. While living at the home, he
sexually assaulted a number of the boys and girls he was supposed to be helping. Kenyan
police said they could not arrest him, and he was permitted to return to the United States.
A federal jury convicted him of the offenses he committed after he arrived in Kenya.
Defendant’s offenses were horrific. The only question is whether the United
States could properly prosecute him. The government asserts that Congress had the
authority to criminalize Defendant’s behavior under the Constitution’s Foreign
Commerce Clause because such conduct has a substantial effect on foreign commerce.
The panel majority agrees. I respectfully dissent.
The only foreign “commerce” identified by the government is commercial sex
trafficking of children. I do not dispute that such trafficking is within the purview of the
Foreign Commerce Clause.1 But (1) there is no evidence in this case of any commercial
sexual activity, (2) I fail to see how conduct like that of Defendant has any impact on
commercial sexual activity, and (3) no one has presented to this court any evidence of
1 Congress may also have authority over such trafficking under the Treaty Clause,
because this country has ratified the Optional Protocol to the Convention on the Rights of
the Child regarding the Sale of Children, Child Prostitution and Child Pornography. But
the government has not relied on the Treaty Clause in this case and the Optional Protocol
addresses only commercial activity.
2
such a connection. If Congress has authority under the Foreign Commerce Clause to
criminalize Defendant’s actions, it has power to criminalize any conduct by Americans
abroad.
In my view, the Foreign Commerce Clause does not authorize Congress to
prohibit noncommercial sexual assaults, no matter how heinous, committed by
Americans abroad who formed the intent to commit the acts after arriving abroad. The
Interstate Commerce Clause would not permit Congress to prohibit noncommercial
sexual assaults within a State, even if the perpetrator had traveled from another State, so
long as the perpetrator did not form the intent to commit the act before arriving in the
State where the crime was perpetrated. The majority suggests that even if the Interstate
Commerce Clause would not authorize the domestic statute, a statute governing conduct
abroad would be valid under the Foreign Commerce Clause because it conveys more
expansive power than does the Interstate Commerce Clause and the Foreign Commerce
Clause is not limited by concerns about state sovereignty. But these suggestions are not
persuasive. The limits on congressional authority under the Interstate Commerce Clause
are based on the Supreme Court’s understanding of what it means to regulate commerce
and the understanding that provisions of a constitution creating a government of limited
power should not be interpreted in a way that would confer general police power.
Although federal power under the Foreign Commerce Clause exceeds that under the
Interstate Commerce Clause in some respects—in particular, the Foreign Commerce
Clause restricts state regulation of foreign commerce because of the need for this country
3
to speak with one voice in foreign affairs—this additional power is irrelevant in the
present context.
This dissent will travel much of the same ground as the panel opinion. But, as
might be expected, my description of the terrain will be somewhat different.
I. The Charge
Defendant was convicted under 18 U.S.C. § 2423(c), which is part of the
Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act
(PROTECT Act) enacted in 2003. Section 105 of the Act, entitled “Penalties Against
Sex Tourism,” amended § 2423 to add a subsection (b) entitled “Travel with intent to
engage in illicit sexual conduct”2 and a subsection (c) entitled “Engaging in illicit sexual
conduct in foreign places.”3 In subsection (f) it defines illicit sexual conduct to include
commercial sex acts with persons under 18, production of child pornography, and sexual
2 Subsection (b) states:
Travel with intent to engage in illicit sexual conduct.--A person who
travels in interstate commerce or travels into the United States, or a United
States citizen or an alien admitted for permanent residence in the United
States who travels in foreign commerce, for the purpose of engaging in any
illicit sexual conduct with another person shall be fined under this title or
imprisoned not more than 30 years, or both.
This subsection replaced a somewhat narrower version in the Violent Crime
Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796.
3 Subsection (c) states:
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.
4
acts with persons under 18 that would violate chapter 109A of the federal criminal code if
committed in federal territorial jurisdiction.4 The jury found that Defendant engaged in
conduct described in Chapter 109A. He was not charged with committing any
commercial sex act, which is defined in 18 U.S.C. § 1591 as “any sex act, on account of
which anything of value is given to or received by any person.” And he was acquitted of
a charge under § 2423(b), which requires that the defendant “travel[] in foreign
commerce, for the purpose of engaging in any illicit sexual conduct.”
The question before the court is whether the power to regulate commerce with
foreign nations includes the power to punish Americans who traveled to a foreign nation
and then, in what was not a commercial sex act, decided to and did molest a child there.
To answer the question requires a deep dive into the Foreign Commerce Clause.
II. The Commerce Clause
The Constitution grants Congress the power “[t]o regulate Commerce with foreign
Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art.1,
§ 8, cl. 3. Almost two centuries ago Chief Justice Marshall noted the commonality of the
4 Subsection (f) states:
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;
(2) any commercial sex act (as defined in section 1591) with a person under
18 years of age; or
(3) production of child pornography (as defined in section 256(8)).
5
three clauses within the Commerce Clause—the Foreign Commerce Clause, the Interstate
Commerce Clause, and the Indian Commerce Clause—in an opinion construing the
meaning of the Interstate Commerce Clause. He wrote, “It has been truly said, that
commerce, as the word is used in the constitution, is a unit, every part of which is
indicated by the term.” Gibbons v. Ogden, 22 U.S. 1, 194 (1824). Having previously
stated the accepted meaning of commerce in the context of international trade, he
concluded that “the word . . . must carry the same meaning throughout the sentence, and
remain a unit, unless there be some plain intelligible cause which alters it.” Id. I would
infer that the same proposition applies to the word regulate in the Clause. Thus, when
interpreting the Foreign Commerce Clause to resolve this case, one can look to Supreme
Court doctrine under the other commerce clauses, while recognizing that there may well
be “plain intelligible cause[s]” that require differentiation among the clauses. I begin
with a brief explanation of why I think that doctrine under the Indian Commerce Clause
teaches little about how to interpret the Foreign Commerce Clause in the context of this
case, and then I compare the Foreign Commerce Clause and the Interstate Commerce
Clause.
A. The Indian Commerce Clause
The constitutional provision containing the Interstate Commerce Clause and the
Foreign Commerce Clause also grants congressional power “[t]o regulate Commerce . . .
with the Indian Tribes.” U.S. Const. art. 1, § 8, cl. 3. The Supreme Court has described
the federal power “to legislate in respect to Indian tribes . . . as plenary and exclusive.”
United States v. Lara, 541 U.S. 193, 200 (2004) (internal quotation marks omitted). That
6
plenary power has been exercised so far as to impose federal criminal law within Indian
territory. See, e.g., 18 U.S.C. § 1153 (major crimes by Indians committed in Indian
country). Is similar authority conveyed under the Foreign Commerce Clause? After all,
at first glance the Indian Commerce Clause would appear to be a close relative of the
Foreign Commerce Clause. The relationship between this nation and Indian tribes has
much in common with the relationship between this nation and foreign nations. At the
time of the Founding (and long after), the tribes were treated as sovereignties with which
this country entered into treaties.
On closer inspection, however, the comparison cannot be sustained. Although the
Indian Commerce Clause was juxtaposed with the other two commerce clauses, it was a
late add-on at the constitutional convention, see Albert S. Abel, The Commerce Clause in
the Constitutional Convention and in Contemporary Comment, 25 Minn. L. Rev. 432,
467 (1941) (Abel) (the clauses granting the other two commerce powers “had been
published by the committee of detail two weeks . . . before the subject of the Indian trade
was introduced on the floor of the convention”); and, more importantly, the Indiancommerce
power was a special subject never discussed in relation to the other two
powers, see id. at 468 (“Whatever regulation of commerce might mean in connection
with transactions with the Indians, it was so distinct and specialized a subject [at the
Convention] as to afford no basis for argument as to the meaning of the rest of the
clause.”).
Moreover, congressional power over Indian tribes does not derive just from the
Commerce Clause. As additional sources of “plenary and exclusive” power with respect
7
to Indian tribes, which have been described by the Court as “dependent sovereign[s]” that
are not States, Lara, 541 U.S. at 203 (emphasis added), the Supreme Court has identified
the Treaty Clause, the Property Clause, and “preconstitutional powers necessarily
inherent in any Federal Government, namely, powers that this Court has described as
‘necessary concomitants of nationality,’” id. at 200–01. And it has pointed to the federal
government’s assumption of “guardian-ward” status with respect to Indian Tribes as a
source for Congress’s “plenary power . . . to deal with the special problems of Indians.”
Morton v. Mancari, 417 U.S. 535, 551 (1974). Given this unique status of Indians in our
constitutional system, I think that one can learn very little about Foreign Commerce
Clause power over Americans in foreign nations (the situation presented in this appeal)
by examining congressional authority in Indian country.
B. The Interstate Commerce Clause
The component of the Commerce Clause that has bred the most Supreme Court
doctrine is the Interstate Commerce Clause. Although, as Chief Justice Marshall
suggested, special considerations pertinent to each clause preclude mechanical
application to one clause of doctrine regarding another, I first consider interstatecommerce
doctrine and then address what, if any, adjustments are needed.
I begin with propositions regarding interstate commerce that are derived from
notions of international commerce. Chief Justice Marshall’s description of commerce
was adopted by Chief Justice Rehnquist in United States v. Lopez, 514 U.S. 549 (1995):
“‘Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It
describes the commercial intercourse between nations, and parts of nations, in all its
8
branches, and is regulated by prescribing rules for carrying on that intercourse,’” id. at
553 (quoting Gibbons, 22 U.S. at 189–90). But “limitations on the commerce power are
inherent in the very language of the Commerce Clause.” Id. Again quoting Chief Justice
Marshall:
It is not intended to say that these words comprehend that
commerce, which is completely internal, which is carried on between man
and man in a State, or between different parts of the same State, and which
does not extend to or affect other States. Such a power would be
inconvenient, and is certainly unnecessary.
. . . The enumeration presupposes something not enumerated; and
that something, if I regard the language, or the subject of the sentence, must
be the exclusively internal commerce of a State.
Id. (quoting Gibbons, 22 U.S. at 194–95). In recognition of these limitations, the
Supreme Court has identified “three categories of regulations permitted by the Interstate
Commerce Clause: (1) regulation of “‘use of the channels of interstate commerce’”; (2)
regulation of “‘instrumentalities of interstate commerce, or persons or things in interstate
commerce’”; and (3) regulation of “‘activities that substantially affect interstate
commerce.’” People for Ethical Treatment of Prop. Owners v. United States Fish &
Wildlife Serv., 852 F.3d 990, 1000 (10th Cir. 2017) (quoting Lopez, 514 U.S. at 558–59).
Under the first category Congress can bar a class of goods or people from the
channels of commerce because they are deemed to be tainted by “immoral [or] injurious
uses.” United States v. Patton, 451 F.3d 615, 621 (10th Cir. 2006). Thus, Congress can
ban the interstate transportation of kidnapped persons or stolen goods, see Perez v.
United States, 402 U.S. 146, 150 (1971); of women for the purpose of prostitution, see
Caminetti v. United States, 242 U.S. 470, 491–92 (1917); of plural wives for the purpose
9
of polygamy, see Cleveland v. United States, 329 U.S. 14, 18 (1946); of lottery tickets,
see Champion v. Aims, 188 U.S. 321, 354–55 (1903); or of goods produced by underpaid
workers, see United States v. Darby, 312 U.S. 100, 112–14 (1941). These cases illustrate
that this regulatory authority is not limited to legislation targeting commercial activities.
See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256 (1964).
Under the second category Congress can regulate “the means of interstate
commerce”—such as ships, railroads, airplanes, and the telegraph; can regulate
“intrastate activities that threaten these instrumentalities”; and can protect “the persons or
things that the instrumentalities are moving.” Patton, 451 F.3d at 622. For example,
Congress can ban the destruction of aircraft or theft from interstate shipments. See Perez,
402 U.S. at 150.
Under the third category Congress can regulate activities, even intrastate and
noncommercial activities, if “Congress ha[s] a rational basis to find that the regulated
activity, taken in the aggregate, would substantially affect interstate commerce.” Patton,
451 F.3d at 623. This authority permits Congress to restrict a farmer’s production of
wheat for his own use when the restriction’s purpose is to boost the price of wheat in
commerce. See Wickard v. Filburn, 317 U.S. 111, 127–29 (1942); id. at 115 (the statute
was designed “to control the volume [of wheat] moving in interstate and foreign
commerce in order to avoid surpluses and shortages,” thereby controlling the price). This
authority also permits Congress to control marijuana in national commerce by barring the
noncommercial cultivation, possession, and use of marijuana for personal medical
purposes. See Gonzales v. Raich, 545 U.S. 1, 25–33 (2005). To determine whether a
10
statute is authorized under this 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—a so-called jurisdictional hook. See Patton, 451 F.3d
at 624, 626, 630, 632.
When the regulated activity is commercial, the regulation is generally permissible,
given how integrated our national economy is. See id. at 623. Otherwise, “the last three
factors are significant.” Id. at 624. Because almost any human activity could be said to
have some effect on commerce, the Supreme Court has carefully examined the
relationship of the regulated activity to commerce to be sure that the Commerce Clause
power is not rendered so expansive as to supersede all the other grants of power under the
Constitution. In particular, an effect cannot be considered “substantial” if inclusion of
such effects would as a practical matter confer a plenary police power, contrary to the
notion that the Constitution established a government of limited powers. In United States
v. Lopez, 514 U.S. at 549, the Court invalidated a federal statute prohibiting possession of
a firearm in a school zone, despite arguments that such possession may result in violent
crime, which can affect the national economy (1) because the costs imposed are spread
throughout the population, (2) because fear of violence deters individuals from traveling
to unsafe areas, and (3) because the threat to the educational system will reduce the
productivity of the citizenry. See id. at 567–68 (to expand interstate-commerce power to
encompass the statute “would require us to conclude that the Constitution’s enumeration
11
of powers does not presuppose something not enumerated, and that there never will be a
distinction between what is truly national and what is truly local” (citation omitted)).
And in United States v. Morrison, 529 U.S. 598 (2000), the Court invalidated a federal
civil remedy for the victims of gender-motivated crimes of violence, rejecting arguments
that gender-motivated violence affects interstate commerce because it can deter interstate
travel, engaging in interstate business, etc. See id. at 617–18 (“The Constitution requires
a distinction between what is truly national and what is truly local . . . . The regulation
and punishment of intrastate violence that is not directed at the instrumentalities,
channels, or goods involved in interstate commerce has always been the province of the
States.”). The problem with the statutes in Lopez and Morrison was not that it was
irrational to think that the regulated activities would affect commerce, but that the effect
was so indirect—and therefore not “substantial”—that to uphold the statute would be to
uphold unlimited Commerce Clause power. See Patton, 451 F.3d at 629 (Lopez and
Morrison rejected the government’s arguments “largely on the ground that, if accepted,
similar effects could be invoked in every case, and the Commerce Clause would become,
in effect, a grant of general governing authority”).
It is important to keep in mind this limitation on the third category of regulation
under the Commerce Clause—the regulation of activities that substantially affect
interstate commerce – when considering the scope of the first two categories—(1) the
regulation of the use of the channels of commerce and (2) the regulation of the
instrumentalities of commerce and persons or things in interstate commerce. The first
two categories are qualitatively different from the third. “The first two categories are
12
self-evident, since they are the ingredients of interstate commerce itself.” Raich, 545
U.S. at 34 (Scalia, J., concurring). “[A]ctivities that substantially affect interstate
commerce [, however,] are not themselves part of interstate commerce.” Id. Regulation
in the first two categories can be upheld just by identifying what is being regulated – the
use of the channels of interstate commerce, or instrumentalities of interstate commerce,
or persons or things in interstate commerce. But determining the propriety of regulation
under the third category requires more. The courts must determine whether the activity
being regulated has a causal connection to interstate commerce that can properly be
deemed “substantial.” An improper expansion of either of the first two categories to
encompass regulation that properly belongs within the third category therefore would
evade the constitutional constraints imposed on the third category of regulation. For
example, this court has said that under the channels category, “Congress regulates not
conduct related to interstate commerce but rather interstate commerce itself, barring from
the channels of interstate commerce a class of goods or people”; and the court described
that category of regulation as being “confined to statutes that regulate interstate
transportation itself, not manufacture before shipment or use after shipment.” Patton,
451 F.3d at 621. The court concluded that “[a] prohibition on the mere intrastate
possession of body armor cannot be upheld under Congress’s power to regulate the
channels of interstate commerce.” Id.
Finally, one aspect of the Supreme Court’s three-part test is often overlooked. The
division of interstate-commerce regulation into three categories is less a policy matter
than it is definitional. To my knowledge, no one has suggested that there is some other
13
type of possible regulation outside of those categories. Controversy concerns only
whether one of those types of regulation is permitted at all by the Constitution, see Nat’l
Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 132, 2677 (Thomas, J., dissenting) (stating that
there is no constitutional power to regulate activity simply because it has a “substantial
effect” on commerce), or what is the proper scope of one of the categories (such as the
question of how substantial the effect on commerce must be).
C. The Foreign Commerce Clause
I next consider how much of this Interstate Commerce Clause doctrine translates
to the Foreign Commerce Clause. How much of the doctrine should be carried over and
how much is not applicable because of some special consideration—that is, in the words
of Ogden, 22 U.S. at 194, because of some “plain intelligible cause”? In particular, how
should one analyze congressional authority under the Foreign Commerce Clause over
conduct of Americans abroad, as in the case before us?
The critical question is when, if ever, the terms commerce and regulate have a
different meaning under the Foreign Commerce Clause than they do under the Interstate
Commerce Clause. As previously noted, Chief Justice Marshall indicated the general
rule that they are understood as having the same meaning in the foreign and domestic
context, saying: “Commerce, undoubtedly, is traffic, but it is something more: it is
intercourse. It describes the commercial intercourse between nations, and parts of
nations, in all its branches, and is regulated by prescribing rules for carrying on that
intercourse.” Gibbons, 22 U.S. at 189–90. Unfortunately, however, there are no
14
Supreme Court opinions on whether the terms have distinct meetings in the context of
regulation of the conduct of Americans abroad.
The Court’s only decisions on the Foreign Commerce Clause have concerned the
scope of the Clause with respect to conduct within the borders of the United States and,
consequently, the relative powers of the federal and state governments under the Clause.
Typical of the early opinions interpreting the Clause, in Board of Trustees of University
of Illinois v. United States, 289 U.S. 48, 56 (1933), the Court rejected a claim that a
university could not be required to pay customs duties on imported scientific apparatus
because the school was an instrumentality of the State. See id. at 56–59. The Court
emphasized the preeminence of federal power over states’ rights in this field: “To permit
the states and their instrumentalities to import commodities for their own use, regardless
of the requirements imposed by the Congress, would undermine, if not destroy, the single
control which it was one of the dominant purposes of the Constitution to create.” Id. at
59. In that case there could be no question that the federal law—which imposed a
customs duty on imported equipment—was a regulation of foreign commerce. The
argument to the court was that there should be an exemption from that regulation for state
entities. And the Court rejected the argument, noting the importance of not allowing
variation among the States.
Fifty years later, in Japan Line, Ltd. v. County of Los Angeles, 444 U.S. 434
(1979), the Court considered not the powers of Congress, but the limits that the power
given to Congress under the Foreign Commerce Clause implicitly places on the powers of
the States in the absence of federal legislation—the so-called dormant Foreign Commerce
15
Clause. The State of California sought to assess an ad valorem property tax on cargo
containers aboard Japanese ships temporarily docked in California’s ports. See id. at
436–37. The Japanese owner of the containers objected that the State lacked the power to
burden foreign commerce in this way. See id. at 437–38. The Court agreed, holding that
the dormant Foreign Commerce Clause vests in the federal government the exclusive
power to regulate commerce with foreign nations and forbids the tax. See id. at 453–54.
There was no question that the activity at issue in Japan Lines was regulation of
foreign commerce. The question was the extent to which the States shared this regulatory
power with the federal government. What the Court held was that the dormant Foreign
Commerce Clause limited the powers of States to regulate foreign commerce more than
the Interstate Commerce Clause limits the powers of States to regulate interstate
commerce. Indeed, the Court assumed that the California tax would be lawful if applied
to goods transported in interstate commerce. Under the dormant Interstate Commerce
Clause test set forth in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977), a tax
does not impose an impermissible burden on interstate commerce if it “‘is applied to an
activity with a substantial nexus with the taxing State, is fairly apportioned, does not
discriminate against interstate commerce, and is fairly related to the services provided by
the State.’” Japan Line, 441 U.S. at 444–45 (quoting Complete Auto, 430 U.S. at 279).
The Court said, however, that “two additional considerations” are at play under the
Foreign Commerce Clause. Id. at 446. One is the imperative, mentioned in Board of
Trustees, 289 U.S. at 59, that the country “speak with one voice when regulating
commercial relations with foreign governments.” Japan Line, 441 U.S. at 449 (internal
16
quotation marks omitted). State taxes on foreign commerce could generate international
disputes and result in retaliation against American instrumentalities present in foreign
jurisdictions. See id. at 450. The other consideration is that the “fair apportionment”
component of the Complete Auto test cannot be enforced in the international context. See
id. at 446. That test can prevent multiple taxation of instrumentalities in interstate
commerce because the Supreme Court can “enforce full apportionment by all potential
taxing bodies.” Id. at 447. In the international sphere, however, there is no “authoritative
tribunal capable of ensuring that the aggregation of taxes is computed on no more than
one full value.” Id. at 447–48. “[N]either [the] Court nor this Nation can insure full
apportionment when one of the taxing entities is a foreign sovereign.” Id. at 447; see
Anthony Colangelo, The Foreign Commerce Clause, 96 Va. L. Rev. 949, 966–69 (2010)
(analyzing Japan Line).
One sentence in Japan Line requires careful analysis. In discussing the need for
national uniformity with respect to foreign commerce, the Court said, “Although the
Constitution, Art. I, § 8, cl. 3, grants Congress power to regulate commerce ‘with foreign
Nations’ and ‘among the several States’ in parallel phrases, there is evidence that the
Founders intended the scope of the foreign commerce power to be the greater.” Id. at
448. The government’s brief points to this sentence in support of its argument that
congressional power under the Foreign Commerce Clause is “plenary.” But the sentence
must be read in context. The Court did not say that the term commerce has a broader
meaning in the foreign-commerce context than it does in the interstate-commerce context.
Nor did it say that the term regulate has a broader meaning in the former context. Nor
17
did the Japan Line opinion have occasion to consider congressional power to regulate the
conduct of Americans abroad. Indeed, the question was not the extent of congressional
power; no one was arguing about whether Congress could pass legislation imposing taxes
like those imposed by California, or even authorize states to impose such taxes. Rather,
the question was the exclusivity of congressional power: Could California, in the absence
of federal regulation, impose its own regulations? The one-voice principle in Foreign
Commerce Clause jurisprudence does not expand congressional power. It does not add a
megaphone to magnify the voice of Congress and permit it to enact legislation that it
would not otherwise be permitted to enact. Rather, it is a restriction on the States. It
silences them so that only the voice of the national government is heard on international
matters.
This construction of the meaning of the comment in Japan Lines is consistent
with the “evidence” that the Court referred to in its footnote. See id. at 448 n.12. The
footnote cites to Federalist No. 42, which discusses the powers granted the federal
government to “regulate the intercourse with foreign nations,” such as the powers to
make treaties, to send and receive ambassadors, and to regulate foreign commerce. The
Federalist No. 42, at 231 (Madison) (E.H. Scott ed., 1898). The essay states: “This class
of powers forms an obvious and essential branch of the federal administration. If we are
to be one nation in any respect, it clearly ought to be in respect to other nations.” Id.
18
This passage is certainly support for the exclusivity of federal authority noted in Japan
Line, but it has no relevance to our case.5
The Court’s footnote also cites a law-review article as “concluding, after an
exhaustive survey of contemporary materials: ‘Despite the formal parallelism of the
grants, there is no tenable reason for believing that anywhere nearly so large a range of
action was given over commerce “among the several states” as over that “with foreign
nations.”’” 441 U.S. at 448 n.12 (quoting Abel, supra at 475). Nothing in the article,
however, even hints at the possibility that the Foreign Commerce Clause could be used to
govern noncommercial conduct of Americans abroad. The quotation from the Abel
article is the conclusion of a discussion confirming the accuracy of Madison’s
recollection of the Convention decades afterwards, in which he “explicitly negatives the
suggestion that the [Interstate Commerce Clause] was designed to have as wide an
operation as the companion grant with regard to foreign commerce, and assigns to it
instead merely ‘a negative and preventive’ function, to control state-created
discriminations and preferences.” Abel at 469 (quoting Letter of February 13, 1829, to J.
C. Cabell, as quoted in 3 Farrand 478). In other words, Abel was saying that the
5 The essay also notes the role played by the Interstate Commerce Clause in facilitating
foreign commerce: “[I]t may be added, that without this supplemental provision [the
Interstate Commerce Clause], the great and essential power of regulating foreign
commerce would have been incomplete and ineffectual. A very material object of this
power was the relief of the States which import and export to other States, from the
improper contribution levied on them by the latter.” The Federalist No. 42 at 235. An
1829 letter from James Madison cited in the Japan Line footnote also states this purpose
for the Interstate Commerce Clause. Again, the point being made is the need for
exclusive federal power.
19
Framer’s view, totally contrary to current doctrine, was that the Interstate Commerce
Clause was not considered as a grant of affirmative legislative power to regulate
interstate commerce, but as a means to constrain state interference with such commerce.
See id. at 468–75; see also id. at 471 (“There is thus not a single occasion in the
proceedings of the convention itself where the grant of power over commerce between
the states was advanced as the basis for independent affirmative regulation by the federal
government. Instead, it was uniformly mentioned as a device for preventing obstructive
or partial regulations by the states.”). Moreover, the Abel article points out the limited
scope that the Founders gave to the term commerce even in the foreign-commerce
context: “These three large classes of subjects—fiscal regulation [that is, duties] as to
imports and exports, navigation, ‘mercantile’ enterprises—are the only ones that there is
any evidence for believing were thought of by any one as embraced within ‘commerce’
or affected by the grant of power to regulate it.” Abel, supra at 465; see also id. at 464
(emphasizing the narrow notion of mercantile (or merchant) enterprises at the time of the
Convention, stating that the merchant’s “activities conform nicely to those of the presentday
importer, commission house, and wholesale firm, with just a dash of the commodity
exchange; they hardly embrace those of the jobber, the hawker, or the retailer, who to us
is the merchant par excellence.”). What we now consider to be the scope of the
interstate-commerce power surely exceeds the Founders’ conception of the foreigncommerce
power. See id. at 478 (“Today [that is, 1941] we are accustomed to think of
the arteries of commerce, the highways and the inland streams, harbors, bridges, and the
20
like, as within the ambit of congressional power under the commerce clause. This is not
the way the framers of the constitution looked at the matter.”).6
The panel opinion suggests that the text of the Commerce Clause indicates that
power under the Foreign Commerce Clause exceeds that under the Interstate Commerce
Clause. See Maj. Op. at 27–28. It notes that the Clause speaks of commerce “with
foreign Nations” but “among the several States.” But the difference in prepositions
indicates the opposite. If the Clause permitted regulation of commerce “among foreign
nations”—so that the two clauses used the same preposition—then Congress would be
empowered to regulate commerce among France, England, and Italy, even if the United
States were not involved at all. Thus, use of the preposition with instead of the
preposition among obviously limits the extent of the Foreign Commerce Clause. See
Colangelo supra at 970–71 (explaining the difference between the uses of the two
prepositions in the Commerce Clause).7
In short, the greater-power statement by the Supreme Court in Japan Line should
not be overread. The statement was made in the context of the assertion that the need for
national uniformity under the Foreign Commerce Clause could require greater limitations
6 The Japan Line footnote also cited two student notes that do not affect the analysis.
7 I am perplexed by the statement: “‘Among’ in the [Interstate Commerce
Clause] restrains Congress in regulating intrastate matters—a constraint not
present in the [Foreign Commerce Clause].” Maj. Op. at 27. Since the Foreign
Commerce Clause requires that the commerce be that of a foreign country with the
United States, it obviously restrains the application of that Clause within a foreign
country.
21
on state action than would the Interstate Commerce Clause alone. As Justice Thomas has
observed:
This Court’s statements about the comparative breadth of the Foreign
Commerce Clause are of questionable relevance where the issue is
Congress’ power to regulate, or even criminalize, conduct within another
nation’s sovereign territory. . . . [E]ven if the foreign commerce power
were broader than the interstate commerce power as understood at the
founding, it would not follow that the foreign commerce power is broader
than the interstate commerce power as this Court now construes it.
Baston v. United States, 137 S. Ct. 850, 852 (2017) (Thomas, J., dissenting from denial of
certiorari).
This is not to say that national powers under the Foreign Commerce Clause and
the Interstate Commerce Clause must be identical. After all, Japan Line makes clear that
they are not. When it comes to state taxation of commerce, there are “plain intelligible
cause[s],” Gibbons, 22 U.S. at 194, why States must be more limited in taxing foreign
commerce than in taxing interstate commerce. For one thing, there is the need for the
nation to speak with one voice in relations with other countries. That “cause,” however,
has no purchase in this case. The statutory provision under which Defendant was
convicted was hardly animated by any perceived need to prevent the various States from
engaging in conflicting policies toward foreign nations.
The panel opinion also suggests that some interstate-commerce doctrine—in
particular, the gloss presented in Lopez and Morrison—does not apply because the limits
on interstate-commerce power in that doctrine reflect concerns for the sovereignty of the
States, concerns not present in foreign-commerce doctrine. But surely there is no reason
to define the terms commerce and regulate more broadly in the foreign-commerce
22
context than in the interstate-commerce context. And the majority’s approach overlooks
a key principle underlying Lopez and Morrison: The Court’s concern was not just that an
overbroad conception of the interstate-commerce clause would give the federal
government authority that could override police powers held by the States; it also
expressed a fundamental concern that an overbroad conception would give the federal
government general police powers, contrary to the constitutional framework of a federal
government of limited power. See, e.g., Lopez, 514 U.S. at 564 (“if we were to accept the
Government’s arguments, we are hard pressed to posit any activity by an individual that
Congress is without power to regulate”); id. at 566 (“The Constitution . . . withhold[s]
from Congress a plenary police power that would authorize enactment of every type of
legislation.”); id. at 567 (“To uphold the Government’s 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.”); see also Nat’l Fed’n of Indep. Bus., 567 U.S. 519, 535–36 (Roberts, C.J.,
writing separately) (“This case concerns two powers that the Constitution does grant the
Federal Government, but which must be read carefully to avoid creating a general federal
authority akin to the police power.”).
The real danger lies in overbroad application of the third type of regulation under
the Commerce Clause: the regulation of activities that substantially affect commerce.
Given the reality that in modern times every activity can be said to have some effect on
commerce, courts must set reasonable limits on the meaning of “substantial effect” or
concede that the vision of a Constitution of limited powers, see, e.g., U.S. Const. amend.
23
X, is a mirage and anything can be justified under the Commerce Clause. The power
under the Foreign Commerce Clause is one of the limited powers granted to Congress by
the Constitution. Courts should not construe it in a way that would amount to ceding to
Congress a general police power over Americans with respect to all conduct beyond our
shores.
Unlike the Supreme Court doctrine that the Foreign Commerce Clause embodies
the concept that the country should speak with one voice in foreign affairs, which is
firmly supported by evidence from the Founding, there is nothing—at least nothing
brought to my attention or that I have found—suggesting that the Framers held any idea
remotely like the possibility that the Foreign Commerce Clause would provide plenary
power to police the behavior of Americans in foreign countries. Rather, the evidence is
to the contrary. As Chief Justice Marshall explained:
The jurisdiction of the nation within its own territory is necessarily
exclusive and absolute. It is susceptible of no limitation not imposed by
itself. Any restriction upon it, deriving validity from an external source,
would imply a diminution of its sovereignty to the extent of the restriction,
and an investment of that sovereignty to the same extent in that power
which could impose such restriction.
All exceptions, therefore, to the full and complete power of a nation
within its own territories, must be traced up to the consent of the nation
itself. They can flow from no other legitimate source.
The Schooner Exch. v. McFaddon, 11 U.S. 116, 136 (1812) (emphasis added). And
specifically with respect to trade, Alexander Hamilton wrote the following a few years
after ratification of the Constitution:
Congress . . . may regulate by law our own Trade and that which
foreigners come to carry on with us, but they [that is, Congress] cannot
regulate the Trade which we may go to carry on in foreign countries, they
24
can give to us no rights, no privileges there. This must depend on the will
and regulation of those countries; and consequently it is the province of the
power of Treaty to establish the rule of commercial intercourse between
foreign nations and the U[nited] States. The Legislature may regulate our
own Trade but Treaty only can regulate the mutual Trade between our own
and another Country.
Alexander Hamilton, The Defence No. XXXVI (Jan. 2, 1796), in 20 The Papers of
Alexander Hamilton (Harold C. Syrett ed. 1974), available at
http://founders.archives.gov/documents/Hamilton/01-20-02-00028; see Al-Maliki, 787
F.3d at 793 (“[A]n unbounded reading of the Foreign Commerce Clause allows the
federal government to intrude on the sovereignty of other nations—just as a broad
reading of the Interstate Commerce Clause allows it to intrude on the sovereignty of the
States.”), cert. denied, 136 S. Ct. 204 (2015).
These views of the exclusivity of sovereign jurisdiction are overstated, at least
under current international law. I recognize that international law now generally permits
a nation “to prescribe law with respect to . . . the activities, interests, status, or relations of
its nationals outside as well as within its territory.” Restatement (Third) of the Foreign
8 The panel opinion points to an additional passage from earlier in Hamilton’s essay:
“[A nation’s] power to make laws . . . acts compulsively upon all persons, whether
foreigners or Citizens, and upon all things, within its territory, and it acts in like manner
upon its own citizens and their property without its territory in certain cases and under
certain limitations. But it can have no obligatory action whatsoever upon a foreign nation
or any person or thing within the jurisdiction of such foreign Nation.” The Defence. The
panel opinion reads this passage as permitting prosecution for acts in another country so
long as the prosecution occurs here. See Maj. Op. 34 n.17. This is not an unreasonable
interpretation if the passage is read in isolation, although such a prosecution would seem
to contradict the notion expressed by Hamilton that a nation cannot impose obligations on
someone (that is, on his or her conduct) while in a foreign jurisdiction. But in any event,
any ambiguity in this passage is resolved by the later passage quoted in the above text,
which says that Congress “cannot regulate the trade which we may go to carry on in
foreign countries.” The Defence.
25
Relations Law of the United States § 402 (1986); see United States v. Mitchell, 553 F.2d
996, 1001 (5th Cir. 1977). But see Restatement (Third) §403(1) (“a state may not
exercise jurisdiction to prescribe law with respect to a person or activity having
connections with another state when the exercise of such jurisdiction is unreasonable”);
Colangelo supra at 1035–37. But that is beside the point that is relevant here. This
proposition of international law does not distinguish the Foreign Commerce Clause from
the Interstate Commerce Clause. International law would permit the federal government
to enact the statutes struck down in Lopez and Morrison. The question is what our
Constitution permits. And the statements by Chief Justice Marshall and Alexander
Hamilton, together with the absence of any evidence that the Foreign Commerce Clause
was conceived as providing congressional authority to govern all (or any?) conduct in
foreign nations, strongly suggest that the sovereignty of foreign governments was as
much assumed with respect to the Foreign Commerce Clause as was state sovereignty
with respect to the Interstate Commerce Clause. (It should also be noted that in one
respect the sovereignty of foreign nations was entitled to greater consideration—namely,
the States, by ratifying the Constitution, had voluntarily ceded some of their sovereignty
to the federal government.)
Indeed, Japan Line based its limitations on state power imposed by the Foreign
Commerce Clause in part on the recognition of the limits of the federal government’s
power in other countries. When foreign commerce is taxed by the States, the Supreme
Court cannot prevent multiple taxation by requiring apportionment of the taxes by the
sovereignties imposing them, as the Court can when only interstate commerce is
26
involved, because the Court has no authority over foreign governments. See 441 U.S. at
447–48. And for the same reason, the federal government cannot prevent foreign nations
from retaliating when the States impose such taxes. See id. at 450. Federal power under
the Foreign Commerce Clause should be construed with consideration of the sovereign
power of other nations just as federal power under the Interstate Commerce Clause is
constrained by state sovereignty. See Al-Maliki, 787 F.3d at 793; Anthony J. Colangelo,
The Foreign Commerce Clause, 96 Va. L. Rev. 949, 971–83 (2010) (identifying the
“Foreign Sovereignty Concern” as a limit on congressional power under the Foreign
Commerce Clause).
Further, the Tenth Amendment—“The powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people”—emphasizes that exceeding power under the Foreign
Commerce Clause infringes on the rights of the people. See Al-Maliki, 787 F.3d at 793
(“[A]n overbroad interpretation of the Foreign Commerce Clause allows the government
to intrude on the liberty of individual citizens. And that seems at least as wrong as a
reading of the Commerce Clause that allows the government to intrude on the States. See
U.S. Const. amend. X (reserving power to the States ‘or to the people.’”).
I should emphasize that the point I am making is a limited one. I am not saying
that the Constitution forbids the exercise of any power over conduct in other nations. For
one thing, constitutional provisions other than the Foreign Commerce Clause can be the
source of such power. And my view does not totally foreclose the exercise of such power
under the Foreign Commerce Clause, even as authority for other provisions of the
27
PROTECT Act. For example, what I am saying does not call into question the
constitutionality of the prohibition on travel to a foreign country with the intent to engage
in illicit sexual conduct (the charge Defendant was acquitted of) or the prohibition on
engaging in commercial illicit sexual conduct after travel to a foreign country. I am
merely rejecting the notion that because the Foreign Commerce Clause overrides state
sovereignty, the power under the Clause to regulate conduct in foreign nations is
unconstrained.
To summarize, absent some “plain, intelligible cause”—such as the need for the
nation to speak with one voice in foreign affairs or the limits of national power in a
foreign country—I shall assume that the language “to regulate commerce” has the same
meaning in the Foreign Commerce Clause as in the Interstate Commerce Clause. In
particular, I borrow jurisprudence regarding the Interstate Commerce Clause in two
respects. First, since the power of Congress under both that clause and the Foreign
Commerce Clause is “[t]o regulate Commerce,” I can adopt the Interstate Commerce
Clause doctrine interpreting that language to encompass three types of regulation:
regulation of the channels of commerce, regulation of the instrumentalities of commerce,
and regulation of activities that substantially affect commerce. See Gonzales, 545 U.S. at
16 (“Cases . . . have identified three general categories of regulation in which Congress is
authorized to engage under its commerce power”); United States v. Clark, 435 F.3d 1100,
1118 (9th Cir. 2006) (Ferguson, J., dissenting) (“A fairer understanding of the tricategory
framework is that it has evolved not only in response to federalism concerns that
courts have read into Congress’s Interstate Commerce power, but also to give content to
28
what it means generally ‘[t]o regulate Commerce,’ art. I, § 8, cl. 3.” (brackets in
original)). Other courts and judges have done the same when evaluating congressional
enactments under the Foreign Commerce Clause. See Bollinger, 798 F.3d at 215 (“We
agree that the Lopez categories provide a useful starting point in defining Congress’s
powers under the Foreign Commerce Clause.”); Pendleton, 658 F.3d at 308 (analyzing
constitutionality of PROTECT Act provision under “Lopez’s ‘time-tested’ [Interstate
Commerce Clause] framework” since the “Supreme Court has not yet held that Congress
has greater authority to regulate activity outside the United States than it does within its
borders”); Clark, 435 F.3d at 1118 (Ferguson, J., dissenting) (criticizing majority for
departing from Interstate Commerce Clause framework in resolving issue under Foreign
Commerce Clause); United States v. Reed, No. CR 15-188 (APM), 2017 WL 3208458,
at *7 (D.D.C. July 27, 2017) (“Given the ambiguous contours of this constitutional power
and the dearth of precedent in this jurisdiction, this court will look—as others have
done—to the well-known Interstate Commerce Clause framework to analyze whether
Section 2423(c) is a constitutional exercise of Congress’ Commerce Power.”); cf. United
States v. Baston, 818 F.3d 651, 668 (11th Cir. 2016), cert. denied, 137 S. Ct. 850 (2017)
(upholding statute on assumption “that the Foreign Commerce Clause has the same scope
as the Interstate Commerce Clause”); United States v. Bredimus, 352 F.3d 200, 204–08
(5th Cir. 2003) (analyzing 18 U.S.C. § 2423(b) foreign-commerce issue under framework
of interstate-commerce case law, but stating that under Japan Line greater deference is
owed to regulation of foreign commerce); United States v. Homaune, 898 F. Supp. 2d
153, 159 (D.D.C. 2012) (upholding statute on assumption that the “Foreign Commerce
29
Clause is at least as broad as the more familiar Interstate Commerce Clause,” citing
Japan Line).
Second, I adopt the limiting principle employed by the Court in the interstatecommerce
context that the power conferred by the Clause cannot be construed so broadly
as to encompass everything that can somehow be causally connected to commerce. Such
a construction would be contrary to any notion of the Constitution as the source of only
enumerated powers. See Morrison, 529 U.S. at 615–19; Lopez, 514 U.S. at 566 (“The
Constitution . . . withhold[s] from Congress a plenary police power”); see also Nat’l
Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 554 (2012) (separate opinion of Roberts,
C.J.) (“[O]ur cases have ‘always recognized that the power to regulate commerce, though
broad indeed, has limits.’” (quoting Maryland v. Wirtz, 392 U.S. 183, 196 (1968)); id. at
536 (Congress’s power over commerce “must be read carefully to avoid creating a
general federal authority akin to the police power.”). In the contemporary world, where
everything can be said to be connected in some way to international commerce, the risk
of using the Foreign Commerce Clause to justify plenary police powers (not just at home,
but abroad as well) is every bit as great as the risk of using the Interstate Commerce
Clause for the same purpose. Thus, when I turn to congressional power under the
Foreign Commerce Clause to enact the third category of regulation—regulation of
activities that substantially affect commerce—I will keep in mind the Supreme Court’s
conception of “substantially” to preclude regulation of activities whose connection to
commerce is too indirect.
30
III. Application of Foreign Commerce Clause to This Case
I now proceed to consider whether § 2423(c), as applied to noncommercial illicit
sexual conduct, can be justified under the Foreign Commerce Clause as one of the three
types of permissible regulation.
A. Channels of Commerce
As discussed at length earlier in this opinion, the Commerce Clause grants
Congress the authority “to keep the channels of interstate commerce free from immoral
and injurious uses.” Caminetti, 242 U.S. at 491; see Perez, 402 U.S. at 150 (“The
Commerce Clause reaches . . . the use of channels of interstate or foreign commerce
which Congress deems are being misused.” (emphasis added)). Under this authority the
Supreme Court has affirmed bans on interstate transportation of women who are to be put
to immoral purposes, Caminetti, 242 U.S. at 483; wives for the purpose of polygamy, see
Cleveland, 329 U.S. at 18; kidnapped persons, see Perez, 402 U.S. at 150; stolen
property, see id.; or lottery tickets, see Lottery Case, 188 U.S. at 354–55. In these cases
the person or thing barred from interstate commerce was tainted by either prior immoral
conduct or the intent to engage in such conduct upon completion of the journey.
That channels authority does not extend to the conduct for which Defendant was
convicted. I can assume that it extends to the conduct for which the jury found
Defendant not guilty—traveling in [foreign commerce] with the intent to commit illicit
sexual conduct. But absent that intent, Defendant could not be distinguished from any
ordinary international traveler. The channels of foreign commerce were free of immoral
and injurious uses since his intent was not found to be corrupt. He was not tainted at the
31
time of travel. Cf. Patton, 451 F.3d at 621 n.3 (“[T]he statute [in Caminetti] does not
criminalize the transportation of persons who happen, after crossing state lines, to
become prostitutes.”); Clark, 435 F.3d at 1120 (Ferguson, J., dissenting) (“The mere act
of boarding an international flight, without more, is insufficient to bring all of [a
person’s] downstream activities . . . within the ambit of Congress’s Foreign Commerce
power.”).
The government nevertheless suggests that this court is bound to hold that the
statutory provision before us constitutes channels regulation because of our conclusion in
United States v. Hinckley, 550 F.3d 926, that the Sex Offender Registration and
Notification Act (SORNA) can be upheld as regulation of the channels of commerce.
The rationale for SORNA is that convicted sex offenders pose a particular danger to the
public, the public needs to be warned of their proximity, and they should not be permitted
to misuse the channels of interstate commerce to move from the state of conviction to
another state to avoid this publicity. Under SORNA, sex offenders are not absolutely
prohibited from interstate travel, but they can do so only if they register promptly upon
establishing a new residence.
SORNA is a comfortable fit as channels regulation. The person subject to
regulation is a person who can be identified while in the channels of commerce—the
person has been convicted of a sexual offense. Such persons can be considered tainted
things traveling in the channels of interstate commerce. And the SORNA registration
requirement is an incidental condition for permitting such persons to travel in those
channels. See United States v. Anderson, 771 F.3d 1064, 1070 (8th Cir. 2014) (“[T]he
32
registration requirements of [SORNA] are part of the constitutional power Congress has
to punish sex offenders who cross state lines. Because Congress has the power to punish
sex offenders across state lines, Congress is able to exercise the ‘narrow’ and ‘incidental’
power of requiring those sex offenders to register.” (citation omitted)). That is a very
different situation from the statutory provision here, because the defendant traveling to a
foreign country cannot be singled out for any prior misconduct or even any intent to
commit misconduct in the future. Hinckley does not control this case.
The government has not offered any principled basis, or any basis for that matter,
for upholding channels-of-commerce authority for Defendant’s offense that would not
permit Congress to subject an American to federal prosecution for any offense committed
abroad. Congress could penalize an American who traveled abroad and committed fraud,
gambled (even if lawful where conducted), or merely littered. The federal government
would have plenary police power over all Americans anywhere in the world. This cannot
be the product of a Constitution of limited powers. I respectfully disagree with the Third
Circuit’s reliance on the above-cited channel-of-commerce cases to sustain a similar
conviction. See Pendleton, 658 F.3d at 311.
B. Instrumentalities of Commerce and Persons or Things in
Commerce
Lopez held that “Congress is empowered to regulate and protect the
instrumentalities of interstate commerce, or persons or things in interstate commerce,
even though the threat may come only from intrastate activities.” 514 U.S. at 558. No
court has affirmed the PROTECT Act on this ground. The government, however, argues
33
that Defendant was a person “in [foreign] commerce” and therefore subject to
congressional regulation. But this argument is based on a misconception of what it
means to be “in interstate [or foreign] commerce.” What Lopez was speaking of was
regulation governing persons or things while they are traveling. A law prohibiting
robbing people riding on an interstate stagecoach or thefts of property from trains would
be within this power. See Patton, 451 F.3d at 622 (suggesting that a proper statute under
the Commerce Clause could “protect [an item] while it is moving in interstate
shipment”). Our precedent notes that “[t]he illustrative cases for this category involve
things actually being moved in interstate commerce, not all people and things that have
ever moved across state lines.” Id. Section 2433(c) is obviously not protecting
Defendant while he is moving in foreign commerce, or protecting the instrumentalities of
foreign commerce that he is using. See id.
Although we stated in passing in Hinckley, 550 F.3d at 940, that SORNA would
be constitutional under this category of regulation of interstate commerce, we did not
distinguish the category as applied in that context from the first category of regulation—
regulation of the channels of commerce. And I have already explained how SORNA
differs from § 2423(c) under the first category, so Hinckley is distinguishable on that
score. I am reluctant to read the passing reference in Hinckley as a rejection of the more
thorough analysis provided by Patton of the second category of regulation. Cf. Auraria
Student Hous. v. Campus Vill. Apartments, 843 F.3d 1225, 1235 (10th Cir. 2016) (earlier
circuit precedent ordinarily prevails over later decision).
34
C. Substantial Effects on Commerce
The final source of congressional authority over commerce is the power to
regulate “activities that substantially affect interstate [or foreign] commerce.” Lopez, 514
U.S. at 559. In analyzing this issue, it is first necessary to recognize that noncommercial
sexual activity is not commerce. It is not “the buying, selling, production, or
transportation of products or services, or any activity preparatory to it.” Patton, 451 F.3d
at 624–25. It is not even economic activity, which “refers to the production, distribution,
and consumption of commodities.” Raich, 545 U.S. at 25 (internal quotation marks
omitted)); see Patton at 625 (“[I]n Raich, the [Supreme] Court interpreted the contours of
the third category by reference to ‘economics’ rather than ‘commerce,’ and included the
‘consumption of commodities’ as well as their production and distribution within that
definition.”). Engaging in noncommercial nonconsensual sexual activity is no more an
economic activity than the gender-motivated violence targeted by the statute held
unconstitutional in Morrison. See 529 U.S. at 613 (“Gender-motivated crimes of
violence are not, in any sense of the phrase, economic activity.”).
The fact that noncommercial nonconsensual sexual activity is not economic
activity is extremely important, probably dispositive, in determining whether it is subject
to the third category of regulation of commerce. The Supreme Court thus far has upheld
under the third category only regulation of economic activity. See Raich, 545 U.S. at 17
(“Our case law firmly establishes Congress’ power to regulate purely local activities that
are part of an economic ‘class of activities’ that have a substantial effect on interstate
commerce.”) The panel opinion cites Raich as a case in which the Court “upheld
35
congressional regulation of noncommercial activity.” Maj. Op. at 52 n.21. But the
Supreme Court opinion made clear that the activity, even if not commercial, was
“economic.” It distinguished earlier Court decisions overturning congressional
legislation with the words: “Unlike those at issue in Lopez and Morrison, the activities
regulated by the [Controlled Substances Act] are quintessentially economic.” Raich, 545
U.S. at 25 (emphasis added).
To be sure, the term illicit sexual conduct in § 2423 does include economic, even
commercial, activity. But the broad statutory definition of the term cannot change the
nature of every activity within the definition. Suppose the Controlled Substances Act
also prohibited jogging (because it can produce a runner’s high). That would not place
jogging within the “economic class of activities” of controlled substances and thereby
allow the prohibition. Cf. Sebelius, 567 U.S. at 547–61 (Opinion of Roberts, C.J.)
(failure to purchase medical insurance is not economic activity and cannot be regulated
under the Commerce Clause despite effect on health-insurance market); id. at 646–48
(Scalia, J., joined by three other Justices in concurring on this issue) (“failure to engage in
economic activity (the purchase of health insurance) is [not] subject to regulation under
the Commerce Clause”).
But even if noncommercial illicit sexual conduct could be regulated if it has a
substantial effect on commerce, there is no reason to believe that it has such an effect. As
noted earlier, the Supreme Court has examined three factors in conducting a substantialeffect
analysis: the relation of the regulated activity to commerce; congressional findings
about the activity’s effects on commerce; and the presence in the statute of an express
36
jurisdictional element limiting the reach of the statute. See Morrison, 529 U.S. at 611–
13. I now consider those factors.
1. Relation of Activity to Commerce
Noncommercial activity can affect commerce. The Supreme Court has
recognized, for example, that if the activity involves a good that is identical to (fungible
with) goods in commerce, regulation may be permissible. (Do not forget, though, that
activity with respect to goods is “economic” activity. See Raich, 545 U.S. at 25.) In
Wickard, Congress had authorized quotas on the production of wheat because the
industry had been plagued by large surpluses that depressed prices. See 317 U.S. at 113,
125–28. A farmer who grew wheat in excess of the quota (to feed poultry and livestock
on his farm, to use in making flour for home consumption, and for seeding the following
year) challenged the quota, arguing that it regulated noncommercial conduct. See id. at
114, 118. But the Court upheld the quota as a permissible regulation to protect the price
of a commodity because the aggregate effect of many farmers exceeding the quota would
substantially affect the wheat market. See id. at 127–28. It reasoned that farmers who
grow wheat in excess of the quota purely for home consumption are doing so instead of
buying wheat on the market, thereby decreasing the demand for wheat and undermining
Congress’s goal of boosting the price. See id. at 128–29. “Home-grown wheat in this
sense competes with wheat in commerce.” Id. at 128. Congress therefore had the
authority to regulate wheat grown “wholly for consumption on the farm” to protect the
price of the commodity in commerce. Id. at 118.
37
Six decades later, the Supreme Court addressed a challenge to the federal ban on
marijuana in the Controlled Substances Act (CSA). The CSA, said the Court, “regulates
the production, distribution, and consumption of commodities for which there is an
established, and lucrative, interstate market.” Raich, 545 U.S. at 26. In particular,
Congress had classified marijuana as a drug with a high potential for abuse and no
accepted medical use, which made its manufacture, distribution, or possession a criminal
offense. See id. at 14. The question was whether those prohibitions could encompass
“the intrastate, noncommercial cultivation and possession of cannabis for personal
medical purposes as recommended by a patient’s physician pursuant to a valid California
state law.” Id. at 8 (internal quotation marks omitted). The Court answered the question
affirmatively because Congress “had a rational basis for concluding that leaving homeconsumed
marijuana outside federal control would . . . affect price and market
conditions.” Id. at 19. Just like wheat grown for home consumption, marijuana
cultivated for that purpose overhangs the market, making it likely that “high demand in
the interstate market will draw such marijuana into the market.” Id.
Relying on Wickard and Raich, the government argues that the PROTECT Act is
within congressional power because it was enacted “to close the child-sex-tourism
market.” Aplee. Br. at 62. That rationale may well suffice with respect to the provision
of the Act barring commercial sex. But the analogy to Wickard and Raich fails when it
comes to the provision of the Act under which Defendant was convicted. The regulated
activities in Wickard and Raich may not have been commerce, but they were economic.
Defendant’s illicit sexual conduct, in contrast, was not. To advance regulatory authority
38
from commerce to economic activity is one thing. The step from economic activity to
noneconomic activity may be a step too far. See Morrison, 529 U.S. at 611 (“[I]n those
cases where we have sustained federal regulation of intrastate activity based upon the
activity’s substantial effects on interstate commerce, the activity in question has been
some sort of economic endeavor.”); id. at 613 (“While we need not adopt a categorical
rule against aggregating the effects of any noneconomic activity to decide these cases,
thus far in our Nation’s history our cases have upheld Commerce Clause regulation of
intrastate activity only where that activity is economic in nature.”). At the least, when the
regulation of noneconomic activity is justified under the Commerce Clause on the ground
that it substantially affects commerce, that justification cannot be based on “pil[ing]
inference upon inference” in a way that threatens to make the Clause a source of a
general police power. Lopez, 514 U.S. at 567. Tenuous connections are not
“substantial.” And one must keep firmly in mind that the Court has yet to find a
substantial effect on commerce arising from noneconomic activity. See Morrison, 529
U.S. at 611, 613.
In any event, the government has not offered any reason to believe that control of
noneconomic sex abuse will affect the market in commercial sex trafficking. When
dealing with fungible commodities the connection is clear. See Raich, 545 U.S. at 19
(“In both cases, the regulation is squarely within Congress’ commerce power because
production of the commodity meant for home consumption, be it wheat or marijuana, has
a substantial effect on supply and demand in the national market for that commodity.”)
But here there is no apparent connection. If data show that prosecutions of
39
noncommercial child sexual abuse reduce the incidence of commercial abuse, those data
have not been presented to this court. I cannot agree with the unexplained view of the
Fourth Circuit that “[i]t is eminently rational to believe that prohibiting the noncommercial
sexual abuse of children by Americans abroad has a demonstrable effect on
sex tourism and the commercial sex industry.” Bollinger, 798 F.3d at 218. Contra United
States v. Bianchi, 386 F. App’x 156, 163 (3d Cir. 2010) (Roth, J., dissenting) (“I find that
there is no rational basis to conclude that an illicit sex act with a minor undertaken on
foreign soil, perhaps years after legal travel and devoid of any exchange of value,
substantially affects foreign commerce.”); Reed, 2017 WL 3208458, at *12–13 (the
connection is “too attenuated to rationally qualify as ‘substantial.’”); United States v.
Park, 297 F. Supp. 3d 170, 178–79 (D.D.C. 2018) (following Reed).
In upholding the regulations in Wickard and Raich, the Supreme Court was
dealing with fungible commodities. See Raich, 545 U.S. at 26 (“Prohibiting the intrastate
possession or manufacture of an article of commerce is a rational (and commonly
utilized) means of regulating commerce in that product.” (emphasis added)); id. at 18
(“Like the farmer in Wickard, respondents are cultivating, for home consumption, a
fungible commodity for which there is an established, albeit illegal, interstate market.”
(emphasis added)). Home-grown wheat is essentially indistinguishable from wheat
produced for commerce, and home-grown marijuana for medical purposes is essentially
the same product as commercial marijuana. A “customer” could not distinguish the two
products when eating or smoking them. Here, in contrast, the government has not
suggested that sex tourists who prey on children are indifferent to whether their victims
40
are provided by commercial enterprises or they must seek out their victims at places like
mission schools and assault the children on their own.
Nor is it enough simply to point to the substantial effect on commerce of a great
deal of activity regulated by a statute and then justify regulation of additional activity that
is pasted into the statute on the ground that it is “part of a larger regulation of economic
activity.” Maj. Op. at 40, 46 (internal quotation marks omitted). The fully stated
proposition is that conduct that otherwise could not be regulated can be regulated if it is
“an essential part of a larger regulation of economic activity, in which the regulatory
scheme could be undercut unless the intrastate activity were regulated.” Lopez, 514 U.S.
at 561 (emphasis added). Accord Raich, 545 U.S. at 24–25. For example, the Court in
Wickard “had no difficulty concluding that Congress had a rational basis for believing
that, when viewed in the aggregate, leaving home-consumed wheat outside the regulatory
scheme would have a substantial influence on price and market conditions.” Raich, 545
U.S. at 19. The conclusion is common sense, even obvious. In addition, the record in
that case “made it clear that the aggregate production of wheat for [noncommercial] use
on farms had a significant impact on market prices.” Id. at 20. Likewise in Raich there
were findings by Congress that in effect “established the causal connection between the
production [of marijuana] for local use and the national market.” Id. As the Court said,
“that the . . . exemptions [sought by the respondents] will have a significant impact on
both the supply and demand sides of the market for marijuana . . . is readily apparent.”
Id. at 30; see id. at 22 (“[W]e have no difficulty concluding that Congress had a rational
41
basis for believing that failure to regulate the intrastate manufacture and possession of
marijuana would leave a gaping hole in the CSA.” (emphasis added)).
Translating that precedent to the case before us, regulation of the conduct at issue
here is proper only if such regulation is “an essential part” of the regulation of
commercial sex tourism because failure to control noncommercial illicit sexual conduct
would “undercut” that regulation. Yet neither the government brief nor the panel opinion
explains how this is the case. When products are fungible, the connection is
commonsensical. But the tie between commercial sex with children and noncommercial
nonconsensual sexual assault is a mystery. Nor is the mystery resolved by any findings
by Congress, the subject to which I now turn.
2. Congressional Findings
Congressional findings about the effects of the prohibited activity on commerce
can inform the analysis. See Lopez, 514 U.S. at 562. But they are not dispositive. For
example, in Morrison the Court ruled that the statute providing a civil remedy to victims
of gender-motivated violence was unconstitutional despite “numerous findings regarding
the serious impact that gender-motivated violence has on victims and their families.” 529
U.S. at 614. Those findings, however, relied on the types of attenuated effects between
violence and commerce—violence deters victims from traveling interstate and engaging
in interstate businesses, diminishes national productivity, increases medical and other
costs, and decreases both supply of and demand for interstate products—that the Court
had previously rejected as insubstantial because recognizing such tenuous effects would
eliminate limits on congressional power. See id. at 615 (“Congress’ findings are
42
substantially weakened by the fact that they rely so heavily on a method of reasoning that
we have already rejected as unworkable if we are to maintain the Constitution’s
enumeration of powers.”).
The panel opinion discusses at length the long history of federal legislation
governing interstate and international travel for sex offenses. The great bulk of that
history is irrelevant because it does not speak to the specific regulation at issue here. See
Lopez, 514 U.S. at 563 (“[I]mportation of previous [legislative] findings to justify [the
challenged statutory provision] is especially inappropriate here because the prior federal
enactments or Congressional findings do not speak to the subject matter of [the
provision] or its relationship to interstate commerce.” (original brackets and internal
quotation marks omitted)). Moreover, Congress made no findings when adopting the
PROTECT Act. Congress did do so, however, in debating its failed precursor, the Sex
Tourism Prohibition Improvement Act of 2002 (STPIA). And I will assume that a court
can consider those findings in evaluating the constitutionality of the PROTECT Act.
When considering STPIA, the House Judiciary Committee reported the following:
Many developing countries have fallen prey to the serious problem
of international sex tourism. According to the National Center for Missing
and Exploited Children, child-sex tourism is a major component of the
worldwide sexual exploitation of children and is increasing. There are
more than 100 web sites devoted to promoting teenage commercial sex in
Asia alone. Because poor countries are often under economic pressure to
develop tourism, those governments often turn a blind eye toward this
devastating problem because of the income it produces. Children around
the world have become trapped and exploited by the sex tourism industry.
There would be no need for a sex tourism statute if foreign countries
successfully prosecuted U.S. citizens or resident aliens for the child sex
crimes committed within their borders. However, for reasons ranging from
ineffective law enforcement, lack of resources, corruption, and generally
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immature legal systems, sex tourists often escape prosecution in the host
countries. It is in those instances that the United States has an interest in
pursuing criminal charges in the United States.
The Justice Department, Federal law enforcement agencies, the State
Department and other U.S. entities expend significant resources assisting
foreign countries most afflicted with sex tourism to improve their domestic
response to such criminal offenses. Our assistance encompasses informal
as well as formal training of foreign law enforcement officers and
prosecutors in the investigation and prosecution of sex tourism crimes. By
and large these countries reach out to the United States for help and some
even blame the United States for the problem, “arguing” that many of the
sex tourists are American. Some of the foreign or “host” countries
experiencing significant problems with sex tourism, such as Nicaragua,
Costa Rica, Thailand and the Philippines, have requested that the United
States act to deal with this growing problem.
Current law requires the Government to prove that the defendant
traveled to a foreign country with the intent to engage in sex with a minor.
H.R. 4477 eliminates the intent requirement where the defendant completes
the travel and actually engages in the illicit sexual activity with a minor.
The bill also criminalizes the actions of sex tour operators by prohibiting
persons from arranging, inducing, procuring, or facilitating the travel of a
person knowing that such a person is traveling in interstate or foreign
commerce for the purpose of engaging in illicit sexual conduct with a
minor. This legislation will close significant loopholes in the law that
persons who travel to foreign countries seeking sex with children are
currently using to their advantage in order to avoid prosecution.
H.R. Rep. 107-525, at 2–3 (2002).
What is notably missing from these findings is any statement, much less evidence,
regarding the impact of noncommercial illicit sexual activity by international travelers on
commercial illicit sexual activity. While the above findings may support the
constitutionality of a ban on commercial sex acts with children in foreign countries, they
say nothing about the effects on foreign commerce of noncommercial nonconsensual
molestation of children abroad. There were no findings that noncommercial offenses
affect the child-sex market, or even that Congress cannot adequately control commercial
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offenses unless it also prohibits noncommercial offenses. It is as if when Congress
enacted § 2423(c) to eliminate the requirement that a defendant travel in interstate
commerce with the intent to engage in illicit sexual conduct, it was so focused on those
who engage in commercial illicit sexual conduct that it overlooked the impact of the
change on the prohibition of noncommercial illicit sexual conduct.
In its congressional-findings argument the government also relies on the Optional
Protocol to the Convention on the Rights of the Child regarding the Sale of Children,
Child Prostitution and Child Pornography, stating that “[t]he PROTECT Act was . . .
passed as part of the United States’ obligation under the Optional Protocol.” Aplee. Br.
at 60. The government apparently seeks to impute the reasons that the United States
ratified that treaty to Congress’s decision to enact the PROTECT Act. (It does not argue
that any part of the PROTECT Act was enacted under the authority of the Constitution’s
Treaty Clause, U.S. Const. art. II, § 2, cl. 2.) I question whether one should consider the
Optional Protocol in this context because Congress never mentioned it in the texts or
legislative histories of the PROTECT Act or STPIA. But even if one were to do so, the
government’s reliance would be misplaced. The Optional Protocol covers only
commercial sex offenses against children; it says nothing about the effects of
noncommercial sex offenses on foreign commerce. See Reed, 2017 WL 3208458, at *16
(“The Optional Protocol calls on States Parties to create and enforce laws that prohibit the
exploitation of children for commercial gain.” (emphasis added)).
Thus, the congressional findings “do not speak to the subject matter of [the
provision under which Defendant was convicted] or its relationship to [foreign]
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commerce.” Lopez, 514 U.S. at 563 (brackets and internal quotation marks omitted)).
This is not an inconsequential matter. Although congressional findings are not necessary
to support commerce-clause legislation, they can be significant, “particularly when the
connection to commerce is not self-evident.” Raich, 545 U.S. at 21. Here, the
connection is not self-evident. Without congressional findings, I cannot see how
prevention of noncommercial sexual assault on children would substantially affect
commercially provided sex abuse. See Lopez, 514 U.S at 563 (“[T]o the extent that
congressional findings would enable us to evaluate the legislative judgment that the
activity in question substantially affected interstate commerce, even though no such
substantial effect was visible to the naked eye, they are lacking here.”)
3. Express Jurisdictional Element
There remains the one factor that could support congressional power to punish
Defendant’s offense under the substantial-effects rationale: “travel[ing] in foreign
commerce or resid[ing], either temporarily or permanently, in a foreign country” is an
express element of 18 U.S.C. § 2423(c). See United States v. Jeronimo-Bautista, 425
F.3d 1266, 1269 (10th Cir. 2005) (asking “whether the statute’s reach was limited by an
express jurisdictional element”). “A jurisdictional hook is not, however, a talisman that
wards off constitutional challenges.” Patton, 451 F.3d at 632. What the Supreme Court
has said is that “a jurisdictional element may establish that the enactment is in pursuance
of Congress’ regulation of interstate commerce.” Morrison, 529 U.S. at 612 (emphasis
added). As we stated in Patton, “The ultimate inquiry is whether the prohibited activity
has a substantial effect on interstate [or foreign] commerce, and the presence of a
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jurisdictional hook, though certainly helpful, is neither necessary nor sufficient.” 451
F.3d at 632. Our opinion, see id., endorsed similar views expressed by other circuits:
United States v. Maxwell, 446 F.3d 1210, 1218 (11th Cir. 2006) (“[W]here a
jurisdictional element is required, a meaningful one, rather than a pretextual incantation
evoking the phantasm of commerce, must be offered.” (brackets, citation, and internal
quotation marks omitted)); United States v. Holston, 343 F.3d 83, 88 (2d Cir. 2003)
(expressing unwillingness to rely solely on “the mere existence of jurisdictional language
purporting to tie criminal conduct to interstate commerce”); United States v. Rodia, 194
F.3d 465, 472–73 (3d Cir. 1999) (rejecting a “hard and fast rule that the presence of a
jurisdictional element automatically ensures the constitutionality of a statute”).
In my view, the jurisdictional hook here does not do the trick. I have already
expressed why I believe that the government has not shown any connection between
noncommercial illicit sexual conduct committed by Americans who traveled abroad and
commercial illicit sexual conduct (the only type of “commerce” that it would allegedly
affect). More important are the ramifications of relying on this jurisdictional hook. I do
not see, nor has the government provided, a principled way to distinguish the use of this
hook to justify the statutory provisions under which Defendant was convicted from the
use of an identical hook that would permit Congress to prohibit any misconduct by
Americans abroad, from gambling (even if lawful in the country where conducted) to
jaywalking. All that would be needed is to add the hook that the defendant had traveled
in foreign commerce. At the least there should be evidence or a congressional finding,
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not just speculation, of a direct, not “attenuated,” effect on commercial activity.
Morrison, 529 U.S. at 615.
True, Patton recognized the tension between the analysis of the Interstate
Commerce Clause in Lopez and Morrison and the Supreme Court’s decision in
Scarborough v. United States, 431 U.S. 563, 565 (1977), “which held that Congress
intended a felon-in-possession statute to prohibit possession of any firearm that had
moved in interstate commerce,” Patton, 451 F.3d at 634. Scarborough implicitly
accepted that such a prohibition was constitutional. See id. Feeling bound by
Scarborough, this court upheld the constitutionality of a statute that prohibited “the
intrastate possession by a felon of a bulletproof vest, in the absence of any commercial
transaction or any evidence of a connection to commercial activity other than the fact
that, before it was lawfully purchased by the defendant, the vest had been sold across a
state line,” even though the prohibition could not be justified under the Supreme Court’s
“three-part test for determining the reach of the Commerce Clause.” Id. at 618–19.
But Scarborough cannot be extended so far as to encompass the statute before us.
The jurisdictional hook in Scarborough was interstate travel by a commodity, not by a
person, and certainly not by a person like Defendant—who had not engaged in any
activity before or during the travel that would distinguish him or her from any other
person. If Scarborough stands for the proposition that the Interstate Commerce Clause
authorizes Congress to prohibit any activity occurring after personal travel in interstate
commerce, then it provides a general police power to the federal government that would
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erase the “distinction between what is truly national and what is truly local.” Lopez, 514
U.S. at 567–68. I am confident that such a result was not the teaching of Scarborough.
To sum up, there can be little question that a statutory provision otherwise
identical to the one on which Defendant was convicted could not pass muster under the
Interstate Commerce Clause if travel in interstate commerce were substituted for travel in
foreign commerce. He did not engage in economic activity, and there is no reason to
believe that activity like his has a substantial effect on commerce. Nor can the provision
be upheld under the Foreign Commerce Clause merely on the unfocused proposition that
congressional power under that clause is greater than the power provided by the Interstate
Commerce Clause. To uphold the provision, the Foreign Commerce Clause would need
to be interpreted to confer congressional power to regulate all conduct of Americans
while abroad. Nothing suggests that the Framers had any such concept of the Clause; on
the contrary, the evidence suggests that such power would seem most strange to them.
Moreover, such a power would be wholly inappropriate under a Constitution of
conferred, limited power.
I therefore would hold that the statutory provisions under which Defendant was
convicted cannot be justified under the Foreign Commerce Clause. At the very least, §
2423(c) is unconstitutional as applied in this case. Not only is it uncontroverted that
Defendant was not a sex tourist, he was not even a tourist. The government does not
suggest that he had any tie to commercial sex trafficking. The connection between his
kind of offense and sex tourism is far too attenuated to support regulation under the
Foreign Commerce Clause.
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I agree with Judge Ferguson: “The sexual abuse of children abroad is despicable,
but we should not, and need not, refashion our Constitution to address it.” Clark, 435
F.3d at 1117 (9th Cir. 2006) (Ferguson, J., dissenting); see Reed, 2017 WL 3208458, at
*11, *19 (holding § 2423(c) unconstitutional as applied to a defendant who molested his
daughter while residing abroad); Park, 297 F.Supp.3d at 178–79 (following Reed); see
also Al-Maliki, 787 F.3d at 792–94 (upholding this portion of the statute on plain-error
review, but suggesting that the panel majority would have held it unconstitutional if the
issue had been preserved); United States v. Bianchi, 386 F. App’x 156, 163 (3d Cir.
2010) (Roth, J., dissenting) (“I find that there is no rational basis to conclude that an
illicit sex act with a minor undertaken on foreign soil, perhaps years after legal travel and
devoid of any exchange of value, substantially affects foreign commerce.”); cf. Baston,
137 S. Ct. at 850 (Thomas, J., dissenting from denial of petition for certiorari in criminal
prosecution under Foreign Commerce Clause) (“We should grant certiorari and reaffirm
that our Federal Government is one of limited and enumerated powers, not the world’s
lawgiver.”); Colangelo supra at 1039–40 (doubting the constitutionality of § 2423(c) with
respect to noncommercial sexual abuse of minors).
The Supreme Court has provided little, if any, guidance regarding congressional
power under the Foreign Commerce Clause to regulate the conduct of Americans abroad.
If the Court believes that it is appropriate to cabin that power, this may be as good a
vehicle as any to convey the message.
For the above reasons, I respectfully dissent.

Outcome: We affirm Mr. Durham’s convictions and sentence.

Plaintiff's Experts:

Defendant's Experts:

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