United States v. Alexander Walls , 784 F.3d 543 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30223
Plaintiff-Appellee,
D.C. No.
v. 3:11-cr-05408-
RJB-1
ALEXANDER WALLS, AKA Tip-Toe,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, Senior District Judge, Presiding
Argued and Submitted
February 3, 2015—Seattle, Washington
Filed April 21, 2015
Before: Raymond C. Fisher, Carlos T. Bea,
and Mary H. Murguia, Circuit Judges.
Opinion by Judge Bea
2 UNITED STATES V. WALLS
SUMMARY*
Criminal Law
The panel affirmed convictions for sex-trafficking
offenses in violation of the Trafficking Victims Protection
Act.
The panel held that when Congress used the language “in
or affecting interstate or foreign commerce” in the TVPA, it
intended to exercise its full powers under the Commerce
Clause. Consistent with the outer limits of the commerce
power defined in Gonzales v. Raich, 545 U.S. 1 (2005), the
panel held that any individual instance of conduct regulated
by the TVPA need only have a de minimis effect on interstate
commerce, and that the district court therefore did not err
when it instructed the jury that “any act that crosses state
lines is ‘in’ interstate commerce” and “an act or transaction
that is economic in nature” and “affects the flow of money in
the stream of commerce to any degree ‘affects’ interstate
commerce.” The panel rejected the defendant’s argument that
the jury instruction essentially directed a verdict on the
element of interstate commerce.
COUNSEL
Thomas Michael Kummerow, Seattle, Washington, argued
the cause and filed the reply brief for the Defendant-
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. WALLS 3
Appellant. Suzanne Lee Elliott, Seattle, Washington, filed
the opening brief for the Defendant-Appellant.
Teal Luthy Miller, Assistant United State Attorney, Seattle,
Washington, argued the cause and, along with Ye-Ting Woo,
filed the briefs for the United States.
OPINION
BEA, Circuit Judge:
Defendant-appellant Alexander Walls operated as a small-
time pimp. The questions here are (1) whether, under the
Commerce Clause of the United States Constitution,
Congress has the power to regulate his local pimping, and
(2) whether Congress intended a federal criminal statute to
regulate local pimping consistent with the full extent of its
commerce powers. We answer both questions in the
affirmative.
I
Walls was charged by criminal complaint in August 2011
with interstate transportation of a child for the purpose of
prostitution, 18 U.S.C. § 2423(a), and witness tampering,
18 U.S.C. § 1512(b)(1). A grand jury in the Western District
of Washington returned an indictment that same month
charging Walls with the same criminal offenses. After two
superseding indictments, Walls and a codefendant were
charged in March 2012 in a third superseding indictment with
sex-trafficking crimes involving seven victims and witness-
tampering crimes involving three victims. The third
superseding indictment charged Walls with conspiracy to
4 UNITED STATES V. WALLS
transport a juvenile female for prostitution in violation of
18 U.S.C. §§ 371 and 2423(a) (Count 1); interstate
transportation of a child for prostitution in violation of
18 U.S.C. § 2423(a) (Count 2); witness tampering in violation
of 18 U.S.C. §§ 1512(b)(1) and 1512(b)(3) (Count 4);
conspiracy to engage in sex trafficking by force, fraud, and
coercion in violation of 18 U.S.C. §§ 1591(b)(1) and 1594
(Count 6); and sex trafficking through force, fraud, and
coercion in violation of 18 U.S.C. § 1591(a)(1), 1591(b)(1)
(Counts 7, 10, and 16). Walls pleaded not guilty, and the case
went to trial in the Western District of Washington at
Tacoma.
Counts 6, 7, 10, and 16 were brought under the
Trafficking Victims Protection Act (TVPA), 18 U.S.C.
§ 1591 et seq., for Walls’s sex-trafficking conduct relating to
three victims: Heather Acker, Starnesha Glover, and Cali
Florez.1 At trial, these women testified that Walls recruited
and coerced them into prostitution within Washington State.
As to the interstate-nexus element of the TVPA, Acker
testified that Walls showed her how to access a website,
TNABoard.com, to post an advertisement for prostitution
services online. Detective Jacob Martin testified that the
servers for TNABoard.com were located in Texas and
Amsterdam. Florez testified that Walls took photos of her so
that he could post ads on Craigslist for prostitution services
for her; she also testified that she saw Walls access a
computer and upload the photographs that he took of her. A
Craigslist employee, William Clinton Powell, testified that in
2008, Craigslist users in Washington would have had to
1
The TVPA prohibits sex trafficking “in or affecting interstate or
foreign commerce” by “means of force, threats of force, fraud, [or]
coercion.” 18 U.S.C. § 1591(a)(1), (b).
UNITED STATES V. WALLS 5
access Craigslist via servers in Arizona or California. Glover
testified that she used Trojan-brand condoms when she
worked as a prostitute, buying them with money that Walls
had her earn from prostitution acts. Richard Stephens, an
employee of Church & Dwight Company, testified that
Trojan-brand condoms are manufactured in Colonial Heights,
Virginia, and are distributed throughout the country,
including Washington State.
At the close of trial, the United States proposed that the
district court instruct the jury that activity that “is economic
in nature and affects the flow of money in the stream of
commerce to any degree, however minimal, ‘affects’
interstate commerce.” After Walls’s counsel questioned the
accuracy of the instruction (admitting that he “hadn’t done
exhaustive research”), the court struck the words “however
minimal” from the government’s proposed instruction. Prior
to instructing the jury, the court gave counsel copies of the
revised proposed instructions, including the above instruction
(Instruction 24) regarding the requirement that Walls’s
conduct affect interstate commerce. Instruction 24, as
presented to the jury, read in full:
The term “commercial sex act” means any
sex act, on account of which anything of value
is given to or received by any person.
An act or transaction that crosses state
lines is “in” interstate commerce.
An act or transaction that is economic in
nature and affects the flow of money in the
stream of commerce to any degree “affects”
interstate commerce.
6 UNITED STATES V. WALLS
Walls’s counsel did not object to the instruction. Walls’s
counsel stated that he had done additional research, and that,
in light of that research and the modification made by the
court, “the defendant is satisfied with the instructions as they
are written.” The jury found Walls guilty on all counts, and
the district court sentenced him to 23 years of imprisonment
and five years of supervised release. Walls appeals his
convictions as to Counts 6, 7, 10, and 16 for violations of the
TVPA on the ground that the district court misstated the law
and directed a verdict on the element of interstate commerce.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).
II
Because Walls’s counsel failed to lodge a timely
objection to the jury instructions, whether Instruction 24
misstated the law is reviewed for plain error. See Johnson v.
United States, 520 U.S. 461, 467 (1997). To show plain
error, Walls must show that (1) there is an error; (2) the error
is clear or obvious, rather than subject to reasonable dispute;
(3) the error affected his substantial rights, which in the
ordinary case means it affected the outcome of the district-
court proceedings; and (4) the error seriously affected the
fairness, integrity, or public reputation of judicial
proceedings. United States v. Marcus, 560 U.S. 258, 262
(2010).
III
A
As it pertains to Walls, the TVPA prohibits sex trafficking
“in or affecting interstate or foreign commerce” by “means of
UNITED STATES V. WALLS 7
force, threats of force, fraud, [or] coercion.” 18 U.S.C.
§ 1591(a)(1), (b). The TVPA’s commerce element reveals
the constitutional basis of Congress’s power to regulate sex
trafficking: the Commerce Clause.2 Both this court and the
Supreme Court have held that when Congress uses the
language “affecting interstate commerce,” as it did in the
TVPA, Congress generally intends to regulate to the outer
limits of its authority under the Commerce Clause. Circuit
City Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001) (“The
phrase ‘affecting commerce’ indicates Congress’ intent to
regulate to the outer limits of its authority under the
Commerce Clause.”); United States v. Wright, 625 F.3d 583,
600 (9th Cir. 2010) (“Congress chose to regulate to the outer
limits of its Commerce Clause authority by inserting the
‘affecting interstate commerce’ language [into the Child
Pornography Prevention Act].”). But see Circuit City,
532 U.S. at 118 (cautioning “we do not mean to suggest that
statutory jurisdictional formulations necessarily have a
uniform meaning whenever used by Congress,” and
interpreting a commerce jurisdictional phrase “with reference
to the statutory context in which it is found and in a manner
consistent with the [statute’s] purpose”). But Walls argues
that we must reconsider this standard by which we determine
whether Congress intended to regulate to the limits of its
Commerce Clause authority in light of Bond v. United States,
572 U.S. __, 134 S. Ct. 2077 (2014).
In Bond, defendant Carol Anne Bond attempted to poison
a romantic rival with an arsenic-based compound and
potassium chromate, causing a minor burn readily treated by
2
The Commerce Clause of the United States Constitution assigns to
Congress the authority “[t]o regulate Commerce with foreign Nations, and
among the several States.” U.S. Const. art. I, § 8, cl. 3.
8 UNITED STATES V. WALLS
rinsing with water. 134 S. Ct. at 2085. Despite the small-
scale effects of her offense, she was prosecuted under the
Chemical Weapons Convention Implementation Act of 1998,
which was enacted to implement the Convention on the
Prohibition of the Development, Production, Stockpiling, and
Use of Chemical Weapons and on Their Destruction. Id. at
2084–85. Although the case presented the question whether
and to what extent Congress can enact legislation pursuant to
a treaty of the United States, the Supreme Court avoided that
difficult constitutional issue. See id. at 2087. Instead, it held
that Congress did not intend the Act to apply to Bond’s
purely local conduct: “Absent a clear statement” of
congressional intent, “we will not presume Congress to have
authorized such a stark intrusion into traditional state
authority.” Id. at 2093–94.
Citing Bond, Walls argues this court should not construe
the TVPA as extending to its constitutional limits under the
Commerce Clause, absent a clear statement from Congress
that it intended to intrude into traditional state authority.
Congress made such a statement when it enacted the TVPA.
The Supreme Court has held that when Congress uses the
language “affecting commerce,” as it did in the TVPA, it
generally intends to regulate to the outer limits of its
commerce power. See Circuit City, 532 U.S. at 115.
Although Bond identifies two occasions in which the Court
construed a statute as not reaching purely local conduct
despite the statute’s “affecting commerce” phrase, see 134 S.
Ct. at 2089–90 (discussing United States v. Bass, 404 U.S.
336 (1971), and Jones v. United States, 529 U.S. 848 (2000)),
this case is distinguishable because the congressional findings
incorporated into the TVPA clearly demonstrate Congress’s
intent to enact a criminal statute addressing sex trafficking at
all levels of activity, see 22 U.S.C. § 7101(b)(12) (finding
UNITED STATES V. WALLS 9
that, in the aggregate, sex trafficking “substantially affects
interstate and foreign commerce” and “has an impact on the
nationwide employment network and labor market”); id.§ 7101(b)(14) (“No comprehensive law exists in the United
States that penalizes the range of offenses involved in the
trafficking scheme.”); see also United States v. Todd,
627 F.3d 329, 333 (9th Cir. 2010) (“Congress concluded that
prostitution in American cities encouraged and enlarged the
market for this traffic from abroad.”). We therefore hold that
when Congress used the language “in or affecting interstate
or foreign commerce” in the TVPA, it intended to exercise its
full powers under the Commerce Clause.
Having concluded that the TVPA extends to the limits of
the Commerce Clause, we must consider whether Instruction
24 lies within those bounds.
B
In United States v. Lopez, 514 U.S. 549 (1995), and
United States v. Morrison, 529 U.S. 598 (2000), the Supreme
Court defined the outer limits of Congress’s authority under
the Commerce Clause, setting out three paradigmatic
categories of permissible regulation of interstate commerce.
Under the Commerce Clause, Congress can regulate (1) “the
channels of interstate commerce,” (2) “the instrumentalities
of interstate commerce,” and (3) “those activities that
substantially affect interstate commerce.” Morrison,
529 U.S. at 609 (quoting Lopez, 514 U.S. at 558–59).
Walls reads Lopez/Morrison’s third category to mean that
Congress cannot regulate, pursuant to its Commerce Clause
powers, acts that have only a de minimis effect on interstate
commerce; rather, Walls contends that effect must be
10 UNITED STATES V. WALLS
“substantial.” But the third category of regulation outlined in
Lopez and Morrison concerns the economic nature of the
class of activity to be regulated, not the effect on interstate
commerce of any individual instance of conduct. The
Supreme Court clarified this distinction in Gonzales v. Raich,
545 U.S. 1 (2005). In Raich, the Court held that Congress has
the power to regulate the purely intrastate cultivation and
possession of marijuana for personal use because the
Commerce Clause power extends to “purely local activities
that are part of an economic ‘class of activities’ that have a
substantial effect on interstate commerce.” 545 U.S. at 18.
That is, Congress’s power to regulate within
Lopez/Morrison’s third category—activities that substantially
affect interstate commerce—extends to individual instances
of conduct with only a de minimis effect on interstate
commerce so long as the class of activity regulated is
economic or commercial in nature. See id. at 17 (“[W]hen 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.” (internal
quotation marks omitted)).
The TVPA is part of a comprehensive regulatory scheme
that 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. § 7101(b)(1); see also id. § 7101(b)(2), (4), (9),
(11). Congress found that trafficking of persons has a
substantial aggregate economic impact on interstate and
foreign commerce, id. § 7101(b)(12), and that finding is not
irrational, see Lopez, 514 U.S. at 557; see also United States
v. Todd, 627 F.3d 329, 333 (9th Cir. 2010) (distinguishing the
UNITED STATES V. WALLS 11
TVPA from the statute struck down in Morrison). Consistent
with the outer limits of the commerce power defined in
Raich, we hold that any individual instance of conduct
regulated by the TVPA need only have a de minimis effect on
interstate commerce.3 Accordingly, the district court did not
err when it instructed the jury that “any act that crosses state
lines is ‘in’ interstate commerce” and “an act or transaction
that is economic in nature” and “affects the flow of money in
the stream of commerce to any degree ‘affects’ interstate
commerce.”
IV
Walls further argues that Instruction 24 “essentially
directed a verdict on the element of interstate commerce in
this case”; that the instruction “is a conclusive statement that
the use of money, credit cards and condoms satisfied the first
element of the crime”; and that “[t]he court removed any
ability for the jury to consider the lack of nexus between
Walls’s acts and interstate commerce.” This argument fails.
An instruction violates due process “if it creates a
mandatory presumption, either conclusive or rebuttable,
which shifts from the prosecution the burden of proving
3
We note that, in contexts other than the TVPA, we have held that an
act having a de minimis effect on commerce satisfies an express statutory
requirement that the act be one affecting interstate commerce if the class
of activities regulated by the statute substantially affects interstate
commerce. See, e.g., United States v. McCalla, 545 F.3d 750, 753, 756
(9th Cir. 2008) (possession of child pornography); United States v. Boyd,
480 F.3d 1178, 1179 (9th Cir. 2007) (per curiam) (Hobbs Act); United
States v. Shryock, 342 F.3d 948, 984 n.6 (9th Cir. 2003) (RICO); United
States v. Serang, 156 F.3d 910, 913–14 (9th Cir. 1998) (federal arson
statute as applied to commercial buildings).
12 UNITED STATES V. WALLS
beyond a reasonable doubt an essential element of a criminal
offense.” United States v. Washington, 819 F.2d 221, 225
(9th Cir. 1987). A jury instruction includes a mandatory
presumption if “reasonable jurors [are] require[d] . . . to find
the presumed fact if the State proves certain predicate facts.”
Carella v California, 491 U.S. 263, 265 (1989). Instruction
24 did not create such a presumption; it merely defined the
language “affecting interstate or foreign commerce” and
correctly stated what the government was required to show.
It left for the jury to decide whether Walls committed conduct
that had at least a de minimis effect on interstate commerce.
V
For the foregoing reasons, we affirm Walls’s convictions.
AFFIRMED.