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Constitutional law - foreign commerce clause sucks the life from Dracula through giving restitution to foreign sex trafficking victims.

CONSTITUTIONAL LAW--Foreign Commerce Clause Sucks the Life from Dracula Through Giving Restitution to Foreign Sex Trafficking Victims--United States v. Baston, 818 F.3d 651 (11th Cir. 2016).

Article I, Section 8 of the Constitution gives Congress the power to regulate commerce to foreign nations, the several states, and Indian tribes, but while the United States Supreme Court has interpreted both the regulation among states and with Indian tribes, it has not decided as many cases dealing with foreign nations. (1) The Trafficking Victims Protection Act of 2008 (TVPA) is one of the few statutes regulated by the Foreign Commerce Clause (FCC) and it is used to punish sex traffickers by restoring their victims with the income they made while they were forced to prostitute. (2) In United States v. Baston, (3) the United States Court of Appeals for the Eleventh Circuit decided whether the FCC allows Congress to give restitution to sex trafficking victims even when the sex acts happened in international territory. (4) The Eleventh Circuit held that the FCC, through [section] 1596(a)(2) of the TVPA, gives Congress the authority to punish sex traffickers by providing for a victim's full restitution even when the victim's prostitution happened in another country. (5)

Damion St. Patrick Baston immigrated to the United States from Jamaica in 1985 and was arrested and convicted of an aggravated felony leading to his removal from the country in 1998. (6) After about seven years, Baston re-entered the U.S. with a false name that he had purchased, which he also used to travel around the world and meet women. (7) In the summer of 2011, he traveled to Australia and met one of his future victims, K.L., at a nightclub and lured her into prostituting for him in Australia, the United Arab Emirates, Florida, and Texas. (8) He kept her under his control with threats of violence against her and her family, forcing her to transfer all of her earnings to a bank account in Miami. (9) In May 2012, K.L.'s aunt informed the U.S. Embassy in Australia that K.L. was a sex trafficking victim, which caused the Embassy to reject K.L.'s U.S. visa allowing her to escape from Baston. (10) Following K.L.'s escape, on December 17, 2013, Baston was finally arrested at his mother's house in New York and was subsequently indicted on twenty-one counts of sex trafficking and money laundering. (11)

Baston was convicted in the United States District Court for the Southern District of Florida on all twenty-one counts of sex trafficking and money laundering. (12) He was sentenced to twenty-seven years in prison followed by a lifetime of supervised release. (13) A separate hearing was held for determining restitution amounts for K.L. and his other victims. (14) Baston argued that his victims should only receive restitution for the income they made while prostituting in the United States. (15) The district court agreed and ordered Baston to pay K.L. USD78,000 for her forced prostitution in the United States, but she would not receive any of the income she made for Baston in Australia. (16) The Eleventh Circuit reversed the decision and held that the FCC, through the TVPA and [section] 1596(a)(2), did give the power to restore K.L. with the money that she made while prostituting overseas. (17)

The Commerce Clause can be found in Article I, Section 8 of the United States Constitution and is comprised of three subclauses: (1) the Interstate Commerce Clause; (2) the Foreign Commerce Clause; and (3) the Indian Commerce Clause. (18) The FCC is used to regulate commerce with foreign nations, but unlike the Interstate Commerce Clause and the Indian Commerce Clause, it has not been interpreted as readily or as easily. (19) Tools, such as the Federalist Papers, have been used in interpreting the FCC as broader than the Interstate Commerce Clause. (20) Nevertheless, because of the lack of judicial opinion on the FCC's own interpretation, most courts have found that the FCC was at least meant to be as broad as the Interstate Commerce Clause allowing them to adopt the framework outlined in Gonzales v. Raich. (21) The three category framework allows for statutes that: "(1) regulate the use of channels in interstate commerce; (2) regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce; and (3) regulate activities that substantially affect interstate commerce." (22)

Courts, using the Raich framework, have held that trafficking in persons falls into the "substantially affects" commerce category. (23) Relying on the Commerce Clause, Congress used its power to introduce the TVPA of 2000 to combat sex trafficking. (24) Section 1591 of the TVPA made "trafficking by force, fraud, or coercion," into crimes, which helped to entice more prosecutions of traffickers resulting in restitution for their victims. (25) The goal of the TVPA was to combat human trafficking around the world through the increased number of prosecutions and provide services for the victims once they escaped. (26) As the problem of sex trafficking increased, Congress saw the need for continued provisions including financial and immigration assistance for victims. (27)

Moreover, the TVPA was reauthorized with slight changes in 2003, 2005, and 2008. (28) Congress used [section] 1596(a)(2), under the TVPA of 2003, to increase its jurisdiction over human trafficking that occurred overseas and affected foreign commerce with the U.S. (29) In the TVPA of 2005, more changes were made including allowing the prosecution of federal government employees who helped traffic persons abroad, as well as creating studies to discover how many people were actually being trafficked around the world. (30) In the latest authorization of the TVPA in 2008, Congress again broadened their scope concerning human trafficking by providing more services and easier access to legal help for international victims in the United States. (31) Congress also authorized federal courts to exercise extra territorial jurisdiction over persons, no matter their nationality, who are present in the United States, and engaging in sex trafficking offenses. (32)

In United States v. Baston, (33) the Eleventh Circuit exercised its extra territorial jurisdiction over Baston by having him pay his victims restitution as part of his punishment. (34) The Court chose to incorporate the FCC's neighboring sub-clauses, the Indian Commerce Clause and the Interstate Commerce Clause, to guide it in its reasoning due to a lack of case law and judicial opinion surrounding the interpretation of the FCC. (35) The Court explains that the FCC could adopt the Indian Commerce Clause rationale because both the "Indian Tribes" and "Foreign Nations" are their own sovereign states outside the coverage of United States law. (36) The Court explained that while the federal government has federalism concerns, sovereign states do not because of their independence from the limitations imposed by the Constitution. (37) It also stated that the FCC was similar to the Indian Commerce Clause in that it was broad, but plenary. (38) The Court articulated that the FCC was meant to be interpreted broadly and have unlimited power in regulating commerce with foreign nations. (39)

Furthermore, the Court rationalized that the FCC was not as similar to its other neighboring sub-clause, namely the Interstate Commerce Clause, because it is limited by the federalism concerns that do not plague the FCC. (40) The Interstate Commerce Clause's language stating that it regulates commerce "among the several states" is interpreted as restricting the boundaries between the state and federal governments, which each have their own laws when it comes to regulating commerce within state borders. (41) These boundaries limit how broadly the Interstate Commerce Clause can be interpreted making the FCC broader than its counterpart. (42) Despite these differences, the Court ultimately gives the FCC the same scope as the Interstate Commerce Clause and relies on the Raich test in deciding the case. (43) Using United States v. Evans (44) as precedent, it concluded that [section] 1596(a)(2), under the TVPA, substantially affected commerce because it modifies [section] 1591, the statute that makes human trafficking a crime, reasoning that "trafficking in persons has an aggregate economic impact on interstate and foreign commerce." (45) The Court then elaborates adding that because [section] 1591 regulates human trafficking through the TVPA, and the TVPA is part of "a comprehensive regulatory scheme," then [section] 1596(a)(2), as a modifier of [section] 1591, is also part of the TVPA's regulatory scheme. (46)

The Eleventh Circuit was correct in concluding that the FCC should be interpreted using the Interstate Commerce Clause's framework because it used what little precedent was available, but it could have supported its conclusion using precedent from other jurisdictions. (47) The Evans case is quintessential precedent because in both cases the defendants were convicted using the TVPA, however, Evans trafficked women domestically whereas Baston trafficked internationally. (48) It follows logically, however, that if domestic trafficking under the TVPA is considered a regulatory scheme that "substantially affects commerce," then foreign trafficking under the TVPA would also belong in that same category, partially because the same framework is used for both interstate and foreign commerce. (49) Despite this positive aspect of the decision, the Court could have bolstered its reasoning behind choosing the Interstate Commerce Clause framework as the avenue of interpretation for the FCC with additional case law and explanation. (50)

Although the Court went into exceptional detail about the similarities and differences between the FCC and its neighboring clauses, it neglected to rationalize why it chose the Interstate Commerce Clause framework over that of the Indian Commerce Clause. (51) The Court did use one case to explain itself, but it also should have followed other courts, including its own precedent, in giving a more detailed and thorough explanation behind choosing the Interstate Commerce Clause framework in interpreting the FCC. (52) For example, the Fourth Circuit has said that the Interstate Commerce Clause is an adequate starting place, but other courts need to delve deeper into the foreign context as it has in creating its own three category framework. (53) The Fourth Circuit's framework includes: 1) using the Interstate Commerce Clause as it is, 2) expanding on the original framework to incorporate it in a foreign setting, and 3) adopting the

Third and Ninth Circuits' standard, which only calls for a nexus to foreign commerce. (54) The Court would have benefitted from looking into the Fourth Circuit's categorical explanations as a way to rationalize its own opinion or even to revoke those categories, but it should have at least addressed the other ways of interpreting the FCC aside from the Interstate Commerce Clause framework. (55) As more cases emerge surrounding the issue of interpreting the FCC and its scope, it will become increasingly important to thoroughly explain the reasoning behind each court's decision by including the existing case law. (56)

As the world becomes more globalized, the interpretation of the FCC will become more solidified particularly as new case law comes out dealing with international commerce issues, such as other sex trafficking cases. (57) This will occur as foreign commerce becomes a larger part of everyday life, creating more legal issues and forcing courts to start making decisions regarding the limitations on the FCC's reach. (58) Courts will have to stop relying on the modest amount of case law available and will have to start digging deeper into the actual meaning behind the FCC. (59) For now, the Eleventh Circuit's FCC interpretation of the TVPA, and [section] 1596(a)(2), will open the door to prosecuting other foreign criminals, like firearms traffickers and child kidnappers, when they are under the extra territorial jurisdiction of the United States. (60)

In United States v. Baston, (61) the Eleventh Circuit decided whether the Foreign Commerce Clause allows Congress to give restitution to sex trafficking victims based on the commercial sex acts they performed in international territory. The Court gave the impression that it was following precedent from other jurisdictions, but neglected to explain which precedent it used and why. While the Court has some merit from the little case law it applies, the fact that it transitions from conclusion to conclusion overrides the little explanation it does give for its reasoning. The Court should have included a majority of the existing case law on the FCC instead of only selecting fixed areas to explain. Despite the lack of explanation, the holding, that restitution should be given to victims, even when their commercial sex acts happened abroad, is accurate and will advance Congress's goal of preventing the spread of sex trafficking.

(1.) See U.S. Const, art. I, [section] 8 (granting Congress power to regulate commerce). "The Congress shall have power ... to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes." Id. See also United States v. Bollinger, 798 F.3d 201, 211 (4th Cir. 2015) (discussing distinct interpretation of Interstate and Indian Commerce Clauses). The United States Supreme Court has interpreted the Indian Commerce Clause distinctly and has respected Congress's decisions on the Interstate Commerce Clause. Id. at 209. Anthony J. Colangelo, The Foreign Commerce Clause, 96 Va. L. Rev. 949, 950 (2010) (describing Foreign Commerce Clause and siblings). The Commerce Clause itself is the overarching clause containing the three sub-clauses known as the Foreign Commerce Clause, the Interstate Commerce Clause, and the Indian Commerce Clause. Id. There is a difference, though, between the FCC and the Interstate Commerce Clause. Id. The difference between the two clauses is described as:
   Congress's power '[t]o regulate Commerce with foreign Nations,'
   known as the Constitution's Foreign Commerce Clause, underlies a
   tremendously broad and varied array of U.S. Legislation. Yet unlike
   its Article I, Section 8 sibling, the Interstate Commerce Clause,
   which has been scrutinized by generations of lawyers, scholars, and
   judges, the Foreign Commerce Clause has received little sustained
   analytical attention.


Id.

(2.) See 22 U.S.C.A [section] 7101(b) (defining crime of sex trafficking). "Trafficking includes all the elements of the crime of forcible rape when it involves the involuntary participation of another person in sex acts by means of fraud, force, or coercion." Id. at [section] (b)(9). "Trafficking in persons is a transnational crime with national implications." Id. at [section] (b)(24). See also 18 U.S.C. [section][section] 1593(b)(l)-(b)(3) (stating defendant must pay victim full amount of losses).

(3.) 818 F.3d 651, 666 (11th Cir. 2016) (stating issue).

(4.) Id. (deciding on restitution for victims as main issue). The defendant, Baston. appealed his convictions to the Eleventh Circuit. Id. One of the issues on appeal dealt with the victim's restitution. Id. Baston contended that he should not have to pay for any of the commercial sex acts outside of the United States, hut the government disagreed. Id. The government argued that Baston should be responsible for repaying his victims for all of the money that they earned for him because the William Wilberforce Trafficking Protection Reauthorization Act of 2008 gives federal courts extra territorial jurisdiction over non-citizens charged with sex trafficking. Id. See also 18 U.S.C.A. [section] 1596(a)(2) (providing extra territorial jurisdiction to non-citizens inside United States).

(5.) Baston, 818 F.3d at 657 (stating Court's holding). "[S]ection 1596(a)(2) is a constitutional exercise of Congress's authority under the Foreign Commerce Clause." Id.

(6.) See Principle and Response Brief for the United States at 5, United States v. Baston, 818 F.3d 651 (11th Cir. 2016) (No. 14-14444-EE) (describing Baston's appearance and aliases). Baston removed himself from the country to Canada before trying to re-enter on September 11, 1999. Id. He was detained by an immigration inspector and was wearing "yellow contacts and a gold dental plate that had incisors to look like Dracula teeth." Id. The immigration inspector reviewed his 1-296 Notice of Removal and had a van take him back to Canada. Id. See also Baston, 818 F.3d at 651 (describing how Baston dressed like Dracula with yellow contacts and gold fangs). Baston liked to be called "Drac," which was short for "Dracula," his sometimes alter ego. Id.

(7.) See Principle and Response Brief for the United States, supra note 6, at 6 (detailing how Baston received his false identity). Baston purchased the false name, Rayshawn Bryant, from Bryant's family. Id. He was given Bryant's birth certificate and social security number, which he used to get a Florida ID Card and driver's license, as well as an Australian driver's license and a U.S. passport. Id. See also Baston, 818 F.3d at 651 (identifying Baston's other aliases as "R.A.B.", "Drac", "D", and "Daddy").

(8.) See Brief of the Appellant Damion St. Patrick Baston at 7, United States v. Baston, 818 F.3d 651 (11th Cir. 2016) (No. 14-14444-EE) (summarizing how Baston met key victim). Baston and K.L. had a sexual relationship after he met her at the nightclub and before he forced her into prostitution. Id. See also Baston, 818 F.3d at 657 (detailing how Baston would trap his victims into prostituting for him). Baston would lure his victims into prostitution by promising to help them achieve their dreams. Id. In K.L.'s case, Baston promised to help her open her own restaurant. Id. Instead of helping them, Baston trafficked his victims in various cities and countries around the world including in Dubai, where K.L. would prostitute in hotels with another of Baston's victims. Id. at 8. In Miami, K.L. would fulfill bookings for sex at strip clubs that Baston had arranged for her. Id.

(9.) Baston, 818 F.3d at 657-58 (describing many acts of violence Baston perpetuated on his victims). Baston's threats of violence often ended in real violence including backhanding K.L. for not cooking him breakfast or telling others how much money she made as a prostitute. Id. One night, Baston thought K.L. was cheating on him and punished her by waking her up in the middle of the night, punching her in the pelvis, throwing her on the ground and strangling her. Id. While she was on the ground, he threatened her with knives after holding them over a flame. Id. Another instance of violence includes when Baston brought K.L. to a bathroom, threw her against a wall by her throat, and "bit her cheek until she bled." Id. Some of his other victims testified that he instructed them "not to 'f*ck with him"' and if they did, he threatened to cut them up and put the pieces into the everglades. Baston, at 658. A victim known as T.M. described an incident where Baston took her to an empty park where he backhanded her so hard she fell over and he then told her that he would bury her, "so no one would find her." Id. He also had a habit of punishing the girls for being disrespectful by strangling them with a belt, forcing them to crawl around on the floor like dogs and begging for forgiveness. Id.

(10.) See Principle and Response Brief for the United States, supra note 6, at 4 (detailing how Baston's victim escaped from him). The U.S. Embassy in Australia cancelled K.L.'s visa to stop her from returning to the United States with Baston. Id. The Department of State then interviewed K.L., who told them that a man named Rayshawn Bryant, who also went by "Drac" was the man who had forced her into sex trafficking. Id. The Department of State later determined that Rayshawn Bryant a.k.a. "Drac," short for "Dracula," was Baston's alias. Id. at 4-5.

(11.) See Principle and Response Brief for the United States, supra note 6, at 17 (summarizing events of Baston's arrest). During Baston's arrest, the arresting agents took custody of his iPhone, MacBook, and a Rayshawn Bryant passport. Id. These items contained evidence of his sex trafficking and money laundering activities including ledgers, emails, photos of the victims, Internet advertisements for the victims, bank records, and more information that proved the victim's statements. Id.

(12.) Baston, 818 F.3d at 659 (describing charges against Baston). See also Brief of the Appellant Damion St. Patrick Baston, supra note 8, at 8-10 (detailing each count against Baston). Counts 1-3 were for the Commercial Sex Trafficking of K.L. as well as two other victims known as T.C.M. and J.R. Id. Counts 4-9 charged for Importation and Transportation of Persons for Prostitution. Id. at 10-12. Counts 10 and 11 were for the Use of Passport and Aggravated Identity Theft. Id. at 12. Count 12 was for Baston's Illegal Re-Entry into the country. Id. at 13. Counts 12-21 charged for the money laundering. Id.

(13.) Baston, 818 F.3d at 659 (stating Baston's sentence following his conviction).

(14.) See id. at 659-60 (outlining how court determined restitution amounts). The District Court determined the restitution amounts using worksheets from the government. Id. at 660. The worksheets multiplied the working hours of the victims from when they prostituted, by the amounts that Baston charged the customers, and subtracted the victim's living expenses. Id. The district court used the victims' testimonies from trial to decipher how many hours they worked and for what rate. Id.

(15.) Id. at 666 (highlighting Baston's argument against giving restitution for overseas prostitution).

(16.) Id. at 660 (qualifying Baston's argument as correct by detailing court's conclusion). K.L. was to receive USD78,000 for her prostitution in the United States, T.M. would receive USD11,200, and J.R. would be restored for the USD10.070 that she earned. Id. K.L. missed out on USD400,000 that she earned prostituting in Australia for Baston. Id.

(17.) Baston, 818 F.3d at 669 (reversing district court's judgment and stating Eleventh Circuit's holding).

(18.) See U.S. Const, art I, [section] 8 (granting Congress power to regulate commerce). See also Gonzales v. Raich, 545 U.S. 1 (2005) (outlining Interstate Commerce Clause framework); United States v. Lopez, 514 U.S. 549 (1995) (holding regulation under Commerce Clause must substantially affect interstate commerce); United States v. Morrison, 529 U.S. 598 (2000) (analyzing VAWA using three broad categories of commerce power); Perez v. United States, 402 U.S. 146 (1971) (discussing Commerce Clause's authorization to regulate misused channels of commerce); Wickard v. Filburn, 317 U.S. 111 (1942) (holding Commerce Clause extends to intrastate activities in larger regulatory scheme effecting interstate commerce).

(19.) See Colangelo, supra note 1, at 950 (discussing lack of judicial scrutiny on Foreign Commerce Clause). The Foreign Commerce Clause has not been interpreted as much as its accompanying clauses, but it has been used to create many broad pieces of legislation including the Sherman Antitrust Act, the Foreign Trade Antitrust Improvements Act, the Aircraft Sabotage Act, the Computer Fraud and Abuse Act, the Child Pornography Prevention Act of 1996, and the Protection of Children Against Sexual Exploitation (PROTECT) Act. Id. at n. 3. Moreover, the Foreign Commerce Clause is causing fear among lawmakers that Congress will encroach on foreign sovereignty leading to international strife unless the clause has limits added to it. Id. at 981; Ninth Circuit Holds that Congress can Regulate Sex Crimes Committed by U.S. Citizens Abroad, 119 HARV. L. REV. 2612 (2006) (hereinafter "Sex Crimes") (stating Foreign Commerce Clause has not undergone great scrutiny). The FCC is one of the last clauses in the Constitution that still needs to undergo judicial interpretation. Id. Due to its lack of interpretation, most circuit courts and the United States Supreme Court have given it a broad and almost unlimited power in creating and upholding legislation. Id. As the United States' economy becomes more globalized, however, the need for regulation of the Foreign Commerce Clause will become increasingly apparent. Id. See generally Bd. of Trustees of Univ. of Ill. v. United States, 289 U.S. 48 (1993) (finding Foreign Commerce Clause as an exclusive plenary power).

(20.) See United States v. Baston, 818 F.3d 651, 668 (11th Cir. 2016) (citing Federalist No. 42, at 283 (Jacob E. Cooke ed., 1961) (using Federalist Papers to describe breadth of FCC). The Federalist Papers gave the United States Supreme Court an indication that the FCC should be interpreted as greater than its neighboring clauses. Id. In the Federalist Papers, James Madison explained that the FCC was a "great and essential power." Id. He also said that the FCC is broader than the Interstate Commerce Clause because the Interstate Commerce Clause merely "supplements" the FCC. Id. Madison also explained that despite the two clauses being neighbors under the umbrella of the Commerce Clause, they were meant to be interpreted as their own entities. Id.

(21.) Gonzales v. Raich, 545 U.S. 1 (2005) (providing Interstate Commerce Clause framework). See also United States v. Bredimus, 352 F.3d 200 (5th Cir. 2003) (discussing act punishing those who travel in foreign commerce and engage in sexual conduct with minors). The Fifth Circuit held that any act that punishes someone who knowingly travels in foreign commerce, for the purpose of having sexual relations with a minor, is constitutional under the Foreign Commerce Clause. Id. at 210. The court used case law that interpreted the Interstate Commerce Clause to decipher the FCC, which included imposing the Raich framework from the Interstate Commerce Clause onto the Foreign Commerce Clause. Id. at 205. Specifically, this court used the "channels of interstate commerce" and the "substantially affecting interstate commerce" approaches to rule on the constitutionality of the act. Id. at 205-06; United States v. Cummings, 281 F.3d 1046, 1047 (9th Cir. 2002) (stating International Parental Kidnapping Crime Act as constitutional under Foreign Commerce Clause). The Ninth Circuit also uses the generally used Raich framework from the Interstate Commerce Clause and applies it to the Foreign Commerce Clause during its analysis of an act prohibiting international kidnapping. Id. at 1049. It holds that a parent who kidnaps their own child and travels with that child in foreign commerce can be punished under the International Parental Kidnapping Crime Act because traveling through foreign commerce qualifies as using a channel, which is one of the three Raich categories of authorized regulation. Id. See generally United States v. Shahani-Jahromi, 286 F. Supp. 2d 723 (E.D. Va. 2003) (analyzing International Parental Kidnapping Crime Act under Foreign Commerce Clause). Colangelo, supra note 1, at 991 (discussing Ninth Circuit's decision regarding PROTECT Act and Foreign Commerce Clause). Sex Crimes, supra note 19, at 2614 (analyzing Ninth Circuit's decision on scope of Foreign Commerce Clause in Child Sex Trafficking).

(22.) Baston, 818 F.3d at 666 (asserting Interstate Commerce Clause's three categorical framework).

(23.) See United States v. Evans, 476 F.3d 1176 (11th Cir. 2007) (holding enticement of prostitution derails regulation of interstate and foreign commerce). The Eleventh Circuit found that human trafficking does substantially affect the regulation of foreign commerce because it is part of a larger regulatory scheme to prevent people from becoming enslaved. Id. at 1179. See also Gonzales, 545 U.S. at 17. "We have reiterated that when 'a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.'" Id. Colangelo, at 991 (discussing PROTECT Act and child sex tourism under Foreign Commerce Clause). This article suggests changing the Interstate Commerce Clause framework slightly to incorporate the international aspects of the Foreign Commerce Clause. It suggests changing the language of the framework to:

(1) regulate the use of channels of foreign commerce with the United States; (2) regulate and protect the instrumentalities of foreign commerce with the United States, or persons or things in foreign commerce with the United States, even though the threat may come only from intra-national activities; and (3) regulate activities having a substantial relation to foreign commerce with the United States.

Id. at 986. Sex Crimes, supra note 19, at 2614 (reasoning travel in foreign channels to engage in illegal sexual conduct falls under Foreign Commerce Clause).

(24.) Lindsay Strauss, Adult Domestic Trafficking and the William Wilberforce Trafficking Victims Protection Reauthorization Act, 19 CORNELL J.L. & PUB. POL'Y 495 (2010) (analyzing various authorizations of TVPA). The TVPA was created because of the growing globalized issue of human trafficking. Id. at 500. Internationally, there have been 700,000 people trafficked for sexual and labor abuse. Id. Domestically, that number changes to 50,000. Id. Most of those people are women and children. Id.

(25.) 22 U.S.C.A. [section] 7101(b)(9), (10) (describing elements of sex trafficking as criminal).
   Trafficking includes all the elements of the crime of forcible rape
   when it involves the involuntary participation of another person in
   sex acts by means of fraud, force, or coercion. Trafficking also
   involves violations of other laws, including labor and immigration
   codes and laws against kidnapping, slavery, false imprisonment,
   assault, battery, pandering, fraud, and extortion.


Id. See 18 U.S.C.A. [section] 1591 (describing offense of sex trafficking of children using force, fraud, or coercion). "Whoever knowingly in or affecting interstate or foreign commerce ... recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person; or benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described ..." Id. See also 18 U.S.C.A [section] 1593(b)(1) - (3), supra note 2 (detailing disbursement and calculation of restitution to sex trafficking victims). "The order of restitution under this section shall direct the defendant to pay the victim ... the full amount of the victim's losses, as determined by the court ..." Id. at 501.

(26.) See Strauss, supra note 24, at 501-02 (discussing services and protections offered to victims under TVPA). The main goal of this first authorization of the TVPA was to increase prosecutions of traffickers and to help their victims by giving restitution based on the income they made during their captivity. Id.

(27.) Id. (explaining the needs of victims). The first authorization of the TVPA also helped victims through financial and immigration assistance including granting T-visas for cooperation in prosecutions of their traffickers. Id.

(28.) See Strauss, supra note 24 (detailing various authorizations of TVPA). With each authorization of the TVPA, Congress adds more provisions to help both foreign and domestic victims of human trafficking. Id. at 497. Some would argue, however, that Congress is doing too much to help foreign victims and not enough to help domestic victims, who are United States citizens and who are trafficked within the United States. Id. at 497-08. See Theodore R. Sangalis, Elusive Empowerment: Compensating the Sex Trafficked Person under the Trafficking Victims Protection Act, 80 FORDHAM L. REV. 403 (2011) (discussing various compensation methods for sex trafficking victims).

(29.) See Strauss, supra note 24 (broadening federal jurisdiction and definition of what constitutes trafficking). The expanded definition of human trafficking now includes, "enticing, recruiting, harboring, providing, obtaining, or transporting a person for sex trafficking." Id. at 502-03. See also Sangalis, supra note 28 (discussing increased penalty for convicted sex traffickers).

(30.) See Strauss, supra note 24 (creating larger jurisdictional net for sex traffickers abroad). The authorization of the TVPA in 2005 was mainly to address the issue of domestic human trafficking. Id. at 503. Its new goal was to reduce human trafficking in the United States through "reducing the demand of commercial sex acts." Id. It accomplished this by increasing the penalties for traffickers and giving grants for research to see the rate of domestic trafficking and how new law enforcement techniques would reduce it. Id. at 503-04.

(31.) See 18 U.S.C.A. [section] 1596(a)(2), supra note 4 (explaining jurisdictions that try trafficking offenses). "In addition to any domestic or extra-territorial jurisdiction otherwise provided by law, the courts of the United States have extra-territorial jurisdiction over any offense or any attempt or conspiracy to commit an offense ... if ... an alleged offender is present in the United States, irrespective of the nationality of the alleged offender." Id. See also Sangalis, supra note 28, at 422 (characterizing William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 as formal name for TVPA).

(32.) See 18 U.S.C.A. [section] 1596(a)(2), supra note 4 (detailing reach of statute over noncitizens). See generally Sangalis, supra note 28 (detailing new goals of TVPA and expanding jurisdiction to include more traffickers).

(33.) Baston, 818 F.3d 651, 669 (11th Cir. 2016) (describing Baston's punishment).

(34.) Id. at 669 (restating holding). The court held that [section]1596(a)(2), the statute giving courts extra territorial jurisdiction over non-citizens, who are present in the United States, was Constitutional under the Foreign Commerce Clause. Id. It stated that "section 1596(a)(2) is constitutional at the least as a regulation of activities that have a 'substantial effect' on foreign commerce." Id. at 668.

(35.) Baston, 818 F.3d at 667 (illustrating reasons behind using FCC's neighboring clauses to interpret it). The Court discloses that both the United States Supreme Court and the Eleventh Circuit itself have not expounded on the scope of the Foreign Commerce Clause. Id. It then details how the Interstate Commerce Clause and the Indian Commerce Clause have been interpreted in numerous decisions including stating that when interpreting the Interstate Commerce Clause, courts should be careful of creating "a general federal authority" and that the Indian Commerce Clause is a broad power that allows Congress to have unlimited power over Native Americans. Id. See Bollinger, 798 F.3d at 209 (stating Supreme Court has not interpreted FCC like other clauses). The Fourth Circuit states that the Supreme Court has not interpreted the Foreign Commerce Clause in terms of its limitations like it has with its neighboring clauses. Id. One of the more important aspects of the Foreign Commerce Clause that has been left up to courts' discretion is the jurisdictional limitations over United States citizens who are abroad. Id. The court goes on to discuss how even in its own circuit, the issue of interpreting the FCC has only come up one other time in a case discussing trade regulations. Id. (citing Int'l Bancorp, LLC v. Societe des Bains de Mer et du Cercle des Etrangers a Monaco, 329 F.3d 359 (4th Cir. 2003)); Sex Crimes, supra note 19, at 2612 (describing FCC as one of few clauses still open for interpretation).

(36.) Boston, 818 F.3d at 667 (explaining three parts of Commerce Clause interpretation). The Court gives the full language of the Commerce Clause stating, "Article I gives Congress the power '[t]o regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes,'" before explaining how each of the three clauses are interpreted differently in case law. Id. It explains how the Interstate Commerce Clause and the Indian Commerce Clause are interpreted extremely differently because of the targeted group that each of the clauses deals with, meaning the "several states" have different concerns than the "Indian Tribes" when it comes to trade and commerce. Id. The "several states" would tend to be more interested in "the unique role of the States in our constitutional system" than the "Indian Tribes" would because the "Indian Tribes" do not have any stake in how the States are handled in the Constitution. Id. But see Bredimus, 352 F.3d at 205 (discussing how Fifth Circuit did not break Commerce Clause down). In Bredimus, the Fifth Circuit did not break the overarching Commerce Clause up into its three sub-clauses, but rather it chose to apply the framework of the Interstate Commerce Clause generally. Id. at 204-8. Throughout the opinion, it does not refer to each of the sub-clauses of the Commerce Clause, but just refers to them collectively as "The Commerce Clause" and discusses the whole clause as one entity following the same framework whenever there is a commerce regulation issue. Id.

(37.) See Bollinger, 798 F.3d at 210-11 (describing federalism concerns as abundant in Interstate Commerce Clause). The Fourth Circuit discusses how the Interstate Commerce Clause has always been limited in judicial opinions by its federalism concerns, whereas the Foreign Commerce Clause and the Indian Commerce Clause do not have those issues. Id. It explains that even though the commerce power is given to Congress by the larger Commerce Clause, each of the sub-clauses are distinct with their own power to grant. Id. The Interstate Commerce Clause has to worry about stepping on the boundaries between the state and federal governments because each of those governments has their own roles in regulating commerce within the state borders. Id. at 212. The Foreign Commerce Clause, on the other hand, does not need to worry about such boundaries because there is nothing in the Constitution limiting it to the power of another government. Id. It must only worry about the federal government and not the states. Id. The Fourth Circuit also discusses the Indian Commerce Clause and its non-existent federalism concerns stating that courts cannot use the Interstate Commerce Clause framework when regulating commerce "with Indian tribes" because it is inappropriate to use the same framework to regulate "among" an entity than "with" a different entity. Bollinger, 798 F.3d at 212. See also Shahani-Jahromi, 286 F. Supp. 2d at 736 (discussing how FCC deals with international affairs without separation of powers).

(38.) Baston, 818 F.3d at 668 (comparing neighboring clauses' specific interpretations to FCC). The Court discusses how the FCC should be interpreted broadly and have its power be unlimited. Id. This differs from the Interstate Commerce Clause that has limitations on it from the states' powers given in the Constitution. Id.

(39.) See supra note 20 and accompanying text (discussing Founding Fathers' interpretation of FCC).

(40.) See supra note 37 and accompanying text (explaining Interstate Commerce Clause's federalism concerns in comparison to FCC).

(41.) See cases cited, supra note 1 (explaining federalism concerns of Interstate Commerce Clause in helping to decide case). The biggest difference between the FCC and the Interstate Commerce Clause is the lack of federalism concerns in the foreign context. Id. at 211. The language is different in the two sub-clauses, meaning "among the several States" and "with foreign Nations," because the FCC does not have the same limits on its powers. Id. at 212.

(42.) See cases cited, supra note 1 (discussing how Federalist Papers give clues to FCC's breadth). Without the constraints of federalism, the FCC is able to take on an unlimited role in determining commerce regulations abroad. Id.

(43.) See Baston, 818 F.3d at 668 (describing Congress's power under Commerce Clause to regulate certain kinds of commerce). The court states:
   We can evaluate the constitutionality of section 1596(a)(2) by
   assuming, for the sake of argument, that the Foreign Commerce
   Clause has the same scope as the Interstate Commerce Clause. In
   other words. Congress's power under the Foreign Commerce Clause
   includes at least the power to regulate the "channels" of commerce
   between the United States and other countries, the
   "instrumentalities" of commerce between the United States and other
   countries, and activities that have a "substantial effect" on
   commerce between the United States and other countries.


Id. The Court then used these categories to analyze [section] 1596(a)(2) and decide whether Congress had the authority under the Commerce Clause to regulate it. Id. See generally Bollinger, 798 F.3d 201 (regulating foreign illicit sexual conduct with minor using Interstate Commerce Clause framework); Bredimus, 352 F.3d 200 (using Interstate framework to regulate traveling in foreign commerce to engage in sexual acts with minor); Cummings, 281 F.3d 1046 (regulating international parental kidnapping meaning removal and retention using Interstate framework); Shahani-Jahromi, 286 F. Supp. 2d 723 (regulating international parental kidnapping using Interstate Framework).

(44.) Evans. 476 F.3d at 1179 (stating holding).

(45.) See cases cited, supra note 23 (analyzing how each of TVPA statutes fit into FCC framework).

(46.) Baston, 818 F.3d at 668-69 (concluding [section] 1596(a)(2) substantially affected commerce and Congress could regulate it). But see Colangelo, supra note 1, at 1014 (questioning how activity "substantially affects" foreign commerce). The difference between the sub-clauses' introductory words of "among" the several states compared to "with" foreign nations matters the most when distinguishing the "substantially affects" category from the other two regulatory categories. Id. There is an argument that the use of "with" is substantial because foreign nations have their own sovereigns causing the United States to have less power in regulating activity inside them. Id. This issue poses a question for judicial scholars on how the Interstate Commerce Clause's third category can be placed in an international context. Id. at 1015. To be in the third category, the non-commercial activity usually affects commerce through a comprehensive regulatory scheme. Id. If the activity being regulated has to affect intrastate commerce before it can be part of "a comprehensive regulatory scheme," which it must be part of in order to pass constitutional muster, then when it comes to foreign commerce, it is almost impossible for anything to fit into this third category due to the lack of Congressional power in intrastate affairs abroad. Id. at 1019-21.

(47.) See Baston, 818 F.3d at 667-68 (stating Supreme Court gives little guidance on how to interpret FCC). The Court goes on to discuss the specific guidance it does get from the United States Supreme Court and that becomes the basis of their analysis for the decision. Id. See Bollinger, supra note 1 (describing lack of Supreme Court direction when it comes to FCC); Sex Crimes, supra note 19 (explaining FCC as scrutinized far less than its cousins). "Compared to the number of forests felled in delineating the scope of its considerably more famous interstate commerce cousin, the Foreign Commerce Clause has generated very little copy since publication of The Federalist No. 11 in New York newspapers in 1787." Id.

(48.) See Evans, 476 F.3d at 1178 (establishing facts of case where woman was trafficked in Florida). The Evans case is slightly different from the Baston case in that the defendant in Evans only placed his victim into intrastate commerce rather than placing them into foreign and interstate commerce like Baston did with his victims. Id. Both cases, however, do use the "substantially affects" category despite that factual difference because Evans actions effected intrastate activity, which is a part of "an economic 'class of activities' that have a substantial effect on interstate commerce" just as Baston's activities had a substantial effect on both foreign and interstate commerce. Id. at 1179. The Eleventh Circuit concludes that trafficking in persons is a comprehensive regulatory scheme by discussing another case involving possession of child pornography. Id. It reasons that this is similar to human trafficking because both, while on the local level, have a connection to a larger issue. Id. Both actions could lead to others possessing child porn or engaging in human trafficking and those in turn, could lead to larger criminal activities on the national and international scale. Id. The Evans court concluded that like the defendant in the possession of child pornography case, Evans' actions contributed to a commercial market that the congressional act sought to prevent. Id.

(49.) Baston, 818 F.3d at 668-9 (11th Cir. 2016) (citing United States v. Evans, 476 F.3d 1176 (11th Cir. 2007)). The Court used the Evans case to explain how the TVPA, and its various sections including [section] 1591 and [section] 1596(a)(2), fit into the "substantially affects" category. Id. It takes a quote from Evans, which states:
   Section 1591 was enacted as part of the [TVPA] of 2000 ... [T]he
   TVPA is part of a comprehensive regulatory scheme. The TVPA
   criminalizes and attempts to prevent slavery, involuntary
   servitude, and human trafficking for commercial gain. Congress
   recognized that human trafficking, particularly of women and
   children in the sex industry, "is a modern form of slavery, and it
   is the largest manifestation of slavery today." Congress found that
   trafficking of persons has an aggregate economic impact on
   interstate and foreign commerce and we cannot say that this finding
   is irrational.


Id. The court finishes its analysis with this explanation and concludes with the holding of the decision. Id. at 669.

(50.) See Bredimus, 352 F.3d at 206 (detailing how Fifth Circuit considered other circuits' decisions in deciding FCC's authority). The Fifth Circuit makes a point of noting that there are other circuits that have found certain statutes, similar to the one in issue, as constitutional using the Commerce Clause. Id. The Fifth Circuit goes into detail about the various statutes, including the Violence Against Women Act of 1994, and another domestic violence statute (18 U.S.C. [section] 2261), and how the other circuits decided on their constitutionality using the Commerce Clause. Id. See also Evans, supra note 23, at 1179 (discussing how Eleventh Circuit used reasoning from similar, but different, statute to interpret TVPA). The Evans court, which was decided in the same circuit court as the Baston case, used precedent from a possession of child pornography statute to help bolster its reasoning behind holding that the Commerce Clause allowed for regulation of intrastate human trafficking. Id. See also Bollinger, 798 F.3d at 209-12 (analyzing Commerce Clause from first interpretations to use in present case). The Fourth Circuit began with the broadest interpretation of the Commerce Clause from the Lopez and Morrison cases, and then took small inferential steps to guide the reader through its reasoning from the large commerce clause down to the "substantially affects" category in the Interstate Commerce Clause framework. Id.

(51.) See Baston, 818 F.3d at 668 (concluding Court would use Interstate Commerce Clause framework). The Court went from discussing the similarities and differences between the FCC and its neighbors right to choosing the Interstate Commerce Clause framework with no real explanation. Id. It seemed like the Court was going to choose the Indian Commerce Clause framework because it had so many more similarities to the FCC than the Interstate Commerce Clause did, but the Court somehow decided against it. Id. The Court noted that the Indian Commerce Clause and the FCC were both broad and plenary as well as lacking any federalism concerns, whereas the Interstate Commerce Clause was thoroughly restricted by its federalism responsibilities and therefore, lacked as broad an interpretation as the other two. Id. As an explanation, it stated, "we can evaluate the constitutionality of section 1596(a)(2) by assuming, for the sake of argument, that the [FCC] has the same scope as the Interstate Commerce Clause." Id.

(52.) See cases cited, supra note 21 and accompanying text (discussing various jurisdictions using Interstate Commerce Clause to interpret FCC). The Fourth, Fifth, Ninth, and Eleventh Circuit Courts, as well as the United States District Court for the Eastern District of Virginia, have all used the Interstate Commerce Clause to interpret the FCC with much more explanation than what the court in Baston has provided. Id. Each of these courts, which includes the Eleventh Circuit (the court that decided Baston), gives detailed and thorough explanation behind why it chose the Interstate Commerce Clause framework as the interpretive tool for FCC cases. Id. The circuit courts also use each of the other circuits' cases as persuasive authority for their own cases, particularly when there are no cases from their own circuit to act as precedent. Id. See also Colangelo, supra note 1, at 983-86 (discussing new framework for FCC). In Colangelo's article, he discusses how the Interstate Commerce Clause's framework should be changed starting with adapting its language to the foreign stage. Id. His theory is that because the FCC states that commerce can be regulated "with foreign Nations" that framework category should incorporate this relationship in some way. Id. The proposed framework in the article creates an obvious nexus between the United States and the foreign nations, which it purports to regulate commerce with using the FCC. Id.

(53.) See Bollinger, 798 F.3d at 211 (discussing reasoning behind interpreting FCC distinctly based on other clauses' case law). Because the United States Supreme Court has interpreted the Interstate Commerce Clause and the Indian Commerce Clause distinctly, the FCC should be interpreted distinctly as well. Id. The Fourth Circuit stated, "the conclusion that the [FCC] demands its own interpretative framework is only further confirmed by the Supreme Court's distinct treatment of the Indian Commerce Clause." Id. The Bollinger court also set up a detailed framework for the FCC using holdings from the few courts, which have tried to interpret the FCC. Id. at 215. The Baston court could have benefitted greatly from this opinion because it goes into especially great detail in how to apply the third category, "substantially affecting" commerce, to the FCC. Id. The Fourth Circuit reasoned that the way the third category is written for interstate commerce is too challenging in a foreign arena and should be changed to "demonstrably affects" commerce to allow for a more expansive, but rational, analysis of the clause. Id. at 215-16.

(54.) See cases cited, supra note 53 and accompanying text (detailing Fourth Circuit's three part test for FCC).

(55.) See Bollinger, 798 F.3d at 215-16 (discussing "substantially affects" category as it applies to FCC). The Fourth Circuit proposes changing the language of the third category from "substantially affects" commerce to "demonstrably effects" commerce in an effort to show how expansive the FCC really is due to its lack of federalism concerns. Id. See also Evans, 476 F.3d at 1179 (discussing reasoning Eleventh Circuit used in deciding TVPA "substantially affected" category). The court in Baston could have used its own precedent even more than it did in the opinion to help bolster its reasoning like in the Evans decisions, in offering more insight into the reasoning behind offering the TVPA as a regulatory scheme and therefore, an activity that "substantially affects" commerce. Id.

(56.) See Bollinger, 798 F.3d at n. 3 (detailing developing FCC jurisprudence as especially ripe right now). "Developing that jurisprudence is particularly important in an age of increasingly permeable national borders, economic interdependence, inexpensive international travel, and the resulting illicit industries like sex tourism and child trafficking." Id. Sex Crimes, supra note 19, at 2612 (explaining consequences for FCC as world becomes more globalized). Interpreting the FCC is becoming increasingly important as the world becomes more globalized and various governments are forced to deal with legal issues in foreign borders. Id.

(57.) See Colangelo, supra note 1, at 950 (discussing FCC's future economy becomes more enmeshed in globalization). The FCC has not received much attention from courts as it has not really been a hot button issue until now. Id. See also Sex Crimes, supra note 19, at 2612 (discussing increasingly present global concerns that will lead to more vigorous interpretation of FCC).

(58.) See Colangelo, supra note 1 (elaborating on FCC's future analysis as world becomes more global).

(59.) See Sex Crimes, supra note 19, at 2612 (articulating how more global world will need more detailed interpretation of FCC).

(60.) See Strauss, supra note 24, at 523 (showcasing TVPA of 2008 as first step towards improving victim services and prosecuting traffickers). "The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 is a laudable piece of legislation because it increases the United States' efforts against human trafficking worldwide, provides increased penalties for traffickers and their accomplices, and ensures greater support for their victims." Id. But see Sangalis, supra note 28, at 435 (concluding protecting victims not on Congress's agenda). There is an argument that Congress is more concerned with helping foreign trafficking victims, then domestic trafficking victims within the United States' own borders. Id. Some also believe that Congress's support of trafficking victims in general, whether foreign or domestic, is not a high priority. Id. See Bollinger, 798 F.3d at 209 (using FCC for jurisdiction over illicit non-commercial sexual conduct with minor). Trademark regulations and polygamy have also been regulated as commerce using the FCC and the Interstate Commerce Clause Framework. Id. Bredimus, 352 F.3d at 202 (giving jurisdiction to punish traveling in foreign commerce to promote sexually explicit conduct with minors). The Violence Against Women Act of 1994 as well as 18 U.S.C. [section] 2261, which is another statute regarding domestic violence, have both been upheld under the Commerce Clause. Id. Cummings, 281 F.3d at 1047 (upholding International Parental Kidnapping Crime Act using FCC). Statutes prohibiting the possession of machine guns and firearms have also been upheld using the FCC and Interstate Commerce Clause framework. Id. at 1050; see also Sex Crimes, supra note 19, at 2612 (discussing FCC regulating PROTECT Act). International child sex tourism, illicit sexual conduct with minors abroad, and sex tourism in general have all been regulated using the FCC. Id. at 2613.

(61.) Baston, 818 F.3d at 657 (stating holding).
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Author:O'Neill, Colleen M.
Publication:Suffolk Transnational Law Review
Date:Jan 1, 2017
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