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...