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Eleventh Circuit reviews conviction of an international pimp, whether relevant laws apply extraterritorially.

The following case involves the international pimp Damian Baston, whose antics include his own "Pimp Manifesto," bizarre golden vampire teeth and yellow contact lenses, luxury cars, as well as selfie-style photographs in which large amounts of cash are brandished.

In 1989, Damion Baston immigrated to the United States from Jamaica. In 1998, he was convicted of an aggravated felony and was ordered removed. However, he purchased the identity of a United States citizen and illegally reentered the country. Under this assumed identity, Baston obtained a United States passport and traveled the world. He also opened bank accounts, started businesses, rented apartments in Florida and obtained a Florida driver's license. Baston funded his lavish lifestyle by forcing numerous women to prostitute for him by beating them, humiliating them, and threatening to kill them. He pimped them around the world, from Florida to Australia to the United Arab Emirates.

Baston was arrested in New York. A grand jury indicted him on 21 counts, including sex trafficking and money laundering. Several of Baston's victims testified in regards to how they met him, how their relationships progressed, how Baston used violence and coercion to force them into prostitution, how often they prostituted for Baston, and how much they charged their clients. Baston testified that he did not force the women into prostitution, and that his activities in Australia were legal because prostitution is legal there.

Baston was convicted by the jury of all 21 counts, and sentenced by the district court to 27 years of imprisonment and a lifetime of supervised release. The district court ordered Baston to pay restitution to a few of his victims. For one of his victims, K.L., the court included the money she earned while prostituting for Baston in the United States, but excluded the money she earned while prostituting for Baston in Australia. The district court sustained Baston's objection that restitution be awarded based on conduct that occurred wholly overseas would exceed the authority of Congress under the Foreign Commerce Clause and the Due Process Clause. The United States government argued that the district court erred in its decision.

The United States Court of Appeals for the Eleventh Circuit affirms Baston's convictions and sentence, but vacates his order of restitution and remands with an instruction for the district court to increase his restitution obligation.

The Court reviewed the case de novo.

Baston argued that Congress cannot enact extraterritorial laws under the Foreign Commerce Clause. In his opinion, Congress can do so only under the Offences Clause. He additionally argued that section 1596(a)(2) exceeds the scope of the Foreign Commerce Clause. The Court did not agree.

"Congress's power to enact extraterritorial laws is not limited to the Offences Clause. Baston misreads our decision in United States v. Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2012), where we held that the Maritime Drug Law Enforcement Act, as applied to extraterritorial drug trafficking, exceeded Congress's authority under the Offences Clause. Id. at 1247., we did not hold that the Offences Clause is the only power that can support an extraterritorial criminal law; our decision was limited to the Offences Clause because the government failed to offer 'any alternative ground upon which the Act could be sustained as constitutional.' Id. at 1258. If the government had invoked the Foreign Commerce Clause in Bellaizac-Hurtado, we might have reached a different result."

"Contrary to Baston's argument, this Court has upheld extraterritorial criminal laws under provisions of Article I other than the Offences Clause. See, e.g., Belfast, 611 F.3d at 813 (Interstate Commerce Clause). And nothing in the Foreign Commerce Clause limits Congress's authority to enact extraterritorial criminal laws." See Hartford Fire Ins. Co. v. California, 509 U.S. 764, 813-14 (1993) (Scalia, J., dissenting) ('Congress has broad power under [the Foreign Commerce Clause], and this Court has repeatedly upheld its power to make laws applicable to persons or activities beyond our territorial boundaries where United States interests are affected.'); Gary B. Born & Peter B. Rutledge, International Civil Litigation in United States Courts 606 (5th ed. 2011) (A fairly natural component of [the Foreign Commerce Clause] is the power to regulate conduct that occurs outside of U.S. territory.'). In fact, nothing in Article I limits Congress's power to enact extraterritorial laws. See EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991); United States v. Baker, 609 F.2d 134, 136 (5th Cir. 1980). For purposes of Article I, we ask the same question of an extraterritorial law that we ask of any law--that is, whether it falls within one of Congress's enumerated powers."

"[...] The Interstate Commerce Clause permits Congress to enact 'three general categories of regulation': Congress can 'regulate the channels of interstate commerce'; 'regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce'; and 'regulate activities that substantially affect interstate commerce,' including 'purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce.' Raich, 545 U.S. at 16-17. [...]"

"[...] [T]he Supreme Court has suggested that 'the power to regulate commerce ... when exercised in respect of foreign commerce may be broader than when exercised as to interstate commerce.' Atl. Cleaners & Dyers v. United States, 286 U.S. 427, 434 (1932); accord, 236 U.S. 216, 218-19 (1915). 'Although the Constitution grants Congress power to regulate commerce 'with foreign Nations' and 'among the several States' in parallel phrases,' the Supreme Court has explained, '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 (citation omitted). The Supreme Court has cited James Madison, for example, id. at 448 n.12, who described the Foreign Commerce Clause as a 'great and essential power' that the Interstate Commerce Clause merely 'supplement [s],' The Federalist No. 42, at 283 (Jacob E. Cooke ed., 1961)."

"Section 1596(a)(2) is constitutional at the least as a regulation of activities that have a 'substantial effect' on foreign commerce. Section 1596(a)(2) gives extraterritorial effect to section 1591, the statute that defines the crime of sex trafficking by force, fraud, or coercion. And Congress had a 'rational basis' to conclude that such conduct--even when it occurs exclusively overseas--is 'part of an economic 'class of activities' that have a substantial effect on ... commerce' between the United States and other countries. Cf. Raich, 545 U.S. at 17, 19. We explained in Evans the comprehensive nature of this regulatory scheme:

Section 1591 was enacted as part of the Trafficking Victims Protection Act 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.' 22 U.S.C. [section] 7101(b)(1); see also id. at [section] 7101(b)(2), (4), (9), (11). Congress found that trafficking of persons has an aggregate economic impact on interstate and foreign commerce, id. [section] 7101(b)(12), and we cannot say that this finding is irrational."

"476 F.3d at 1179 (footnote omitted). Accordingly, section 1596(a)(2) is a constitutional exercise of Congress's authority under the Foreign Commerce Clause."

Baston also argued that section 1596(a) (2) violates the Due Process Clause of the Fifth Amendment because he is a noncitizen and his sex trafficking of K.L. occurred exclusively in Australia. However, the Court agreed with government's response that, under basic principles of due process and international law, it is fair to hold Baston accountable for trafficking K.L. in Australia.

"To determine whether an exercise of extraterritorial jurisdiction satisfies due process, we have sometimes consulted international law, see, e.g., id.; United States v. Banjoko, 590 F.3d 1278, 1281 (11th Cir. 2009), but due process requires only that an exercise of extraterritorial jurisdiction not be arbitrary or fundamentally unfair, a question of domestic law, see United States v. Davis, 905 F.2d 245, 248-49 & n.2 (9th Cir. 1990). Compliance with international law satisfies due process because it puts a defendant 'on notice' that he could be subjected to the jurisdiction of the United States. United States v. Marino-Garcia, 679 F.2d 1373, 1384 n.19 (11th Cir. 1982); see also United States v. Tinoco, 304 F.3d 1088, 1110 n.21 (11th Cir. 2002) (explaining that compliance with international law is 'sufficient' to satisfy due process). But compliance with international law is not necessary to satisfy due process. See Hartford Fire, 509 U.S. at 815 (explaining that Congress 'clearly has constitutional authority' to confer extraterritorial jurisdiction in violation of international law if it so chooses); Born & Rutledge, supra, at 604 ('If Congress enacts legislation in violation of [the limits of international law on legislative jurisdiction], it is well settled that U.S. courts must disregard international law and apply the domestic statute.')."

"It is neither arbitrary nor fundamentally unfair to exercise extraterritorial jurisdiction over Baston. The Due Process Clause requires 'at least some minimal contact between a State and the regulated subject.' Am. Charities for Reasonable Fundraising Regulation, Inc. v. Pinellas County, 221 F.3d 1211, 1216 (11th Cir. 2000) (quoting Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 314 n.2 (1970) (Harlan, J., dissenting)). [...]"

"[...] Under the "protective principle" of international law, a country can enact extraterritorial criminal laws to punish conduct that "threatens its security as a state or the operation of its governmental functions" and "is generally recognized as a crime under the law of states that have reasonably developed legal systems." Restatement (Second) of Foreign Relations Law [section] 33(1); accord United States v. Gonzalez, 776 F.2d 931, 938-39 (11th Cir. 1985). The citizenship of the defendant is irrelevant. See United States v. Benitez, 741 F.2d 1312, 1316 (11th Cir. 1984). And it does not matter whether the conduct had "an actual or intended effect inside the United States"; "[t]he conduct may be forbidden if it has a potentially adverse effect." Gonzalez, 776 F.2d at 939 (emphasis added). The requirements of the protective principle are satisfied here."

"Countries with developed legal systems recognize sex trafficking by force, fraud, or coercion as a crime. As Congress has explained, 'The international community has repeatedly condemned slavery and involuntary servitude, violence against women, and other elements of trafficking, through declarations, treaties, and United Nations resolutions and reports.' 22 U.S.C. [section] 7101(b)(23). For example, more than 150 countries, including Australia, have ratified the Palermo Protocol on human trafficking, which requires its participants to establish sex trafficking by force, fraud, or coercion as a criminal offense. See Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, Arts. 5, 3(a), Nov. 15, 2000, 2237 U.N.T.S. 319, 344-45."

"Sex trafficking by force, fraud, or coercion also implicates the national security of the United States. The political branches, who are the experts in these matters, see Holder v. Humanitarian Law Project, 561 U.S. 1, 33-34 (2010), have identified sex trafficking as a threat to national security. [...] These threats are more than sufficient to invoke the protective principle. See United States v. Saac, 632 F.3d 1203, 1211 (11th Cir. 2011)."

The Court concluded that "Congress has the power to require international sex traffickers to pay restitution to their victims even when the sex trafficking occurs exclusively in another country."

The Court vacated the order of restitution and remanded to the district court with an instruction to increase the award of restitution for K.L.'s prostitution in Australia.

CITATION: U.S. v. Baston, 818 F.3d 651 (11th Cir. 2016).
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Title Annotation:Extraterritoriality
Publication:International Law Update
Date:Jan 1, 2016
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