AuthorBurroughs, Alexandra


The Commerce Clause of the United States Constitution grants Congress the power to regulate activities and enforce laws and statutes which relate to or have an effect on commerce. (1) Imbedded in the Commerce Clause is the power to reginterchange of goods or commodities between different countries or between areas of the same country." Id. at 2.

The Tenth Circuit denied the defendant's, Matthew Lane Durham, motion for a new trial and held that Congress acted within its power under the Foreign Commerce Clause in determining that Mr. Durham's conduct substantially affected foreign commerce. (5)

On May 1, 2014, Mr. Durham traveled to Kenya to volunteer at Upendo Children's Home which housed a number of impoverished children. (6) During his visit, he engaged in illicit sexual acts with male and female children at the home. (7) Mr. Durham admitted that he had struggled with temptations to inappropriately touch minors. (8) When the workers at the home realized that Mr. Durham was engaging in these acts, another volunteer confiscated his passport and placed him in an empty house for three days. (1) ' The workers also attempted to reach out to Kenyan police, but the Kenyan police told the workers that they could not arrest Mr. Durham. (10) Mr. Durham's great-uncle flew Mr. Durham back to the United States in June of 2014."

In July of 2014, law enforcement officials arrested Mr. Durham in the United States and his criminal proceedings cornmenced. (12) Beginning August 5, 2014, Mr. Durham presented as the defendant in the United States District Court for the Western District of Oklahoma against the government. (13) In April of 2015, Mr. Durham was initially charged with eight counts of traveling interstate with intent to engage in sexual acts with a minor, eight counts of traveling in foreign commerce and engaging in sexual acts with a minor, and one count of traveling in foreign commerce with intent to engage illicit sexual conduct. (14 ) In June of 2015, during trial, the government presented testimony of the victims and expert witnesses and Mr. Durham presented testimony of himself, other expert witnesses, and family members. (15) The jury acquitted Mr. Durham of the counts requiring an intent to commit the illicit sexual conduct. (16) At trial, the court found Mr. Durham guilty of seven counts of traveling in foreign commerce and engaging in illicit sexual conduct with a minor in violation of 18 U.S.C. [section] 2423(c). (17)

Arguing that 18 U.S.C. [section] 2423(c) was unconstitutional--an issue of first impression for the Tenth Circuit--Mr. Durham moved for acquittal on the seven counts for which he was found guilty and a new trial based on a Brady violation. (18) The Court denied Mr. Durham's motion for a new trial, but ultimately found him guilty of only four counts of traveling in foreign commerce and engaging in illicit sexual conduct with a minor in violation of 18 U.S.C. [section] 2423(c), sentencing him to 480 months in prison. (19) In determining Mr. Durham's sentence, the Court considered various factors regarding Mr. Durham, such as the nature of his offense and his criminal history. (20) The United States Court of Appeals for the Tenth Circuit concluded that Congress has broad authority under the Foreign Commerce Clause, to regulate activities, commercial or noncommercial, which substantially affect foreign commerce. (21) Consequently, the Tenth Circuit ruled that Mr. Durham was constitutionally prosecuted under 18 U.S.C. [section] 2423(c) and the Foreign Commerce Clause because his action of traveling abroad combined with his illicit sexual conduct in a foreign nation substantially affected foreign commerce with the United States. (22)

The Commerce Clause has afforded Congress the power to regulate the conduct of Americans "with foreign nations, and among the several states." (23) Courts have ruled differently on Congress's scope of authority under the Commerce Clause depending on whether the case involved interstate commerce case law or foreign commerce case law. (24) Historically, the scope of power granted to Congress under the Foreign Commerce Clause has been more expansive than that granted under the Interstate Commerce Clause. (25) The reason for this far-reaching authority mostly derives from different interpretations of the text of the Commerce Clause. (26) A broad interpretation of the power under the Foreign Commerce Clause allows Congress to use the Foreign Commerce Clause to combat a wide array of social issues, such as international sex tourism. (27)

The enactment of 18 U.S.C. [section] 2423(c) and its constitutionality under the Foreign Commerce Clause appear to be part of a greater scheme of eliminating international sex trafficking. (28 ) Beginning as early as the 1900s, the United States recognized a growing problem of sex trafficking, specifically of women and girls. (29) In response to this domestic and international dilemma, Congress implemented a number of policies, treaties, and statutes, such as 18 U.S.C. [section] 2423(c), in order to target the origins of international sex trafficking. (30) The enactment of Section 2423(c) demonstrated the legislature's move from addressing the importation of women and children into the United States to addressing citizens' illegal conduct outside of the United States--commercial or noncommercial. (31) Section 2423(c) also lacks an intent requirement, thus making it more likely that a defendant charged with violating this statute would be prosecuted whether or not he or she consciously planned on engaging in noncommercial illicit sexual conduct with a minor when he or she traveled to the foreign country. (12) The lack of an intent requirement and the noncommercial prong of 18 U.S.C. [section] 2423(c) directed at combating international sex trafficking have led to constitutional conflicts, such as the debate over whether a citizen's conduct "substantially affects" foreign commerce. (33)

Activities that "substantially affect" foreign commerce have been analyzed and interpreted throughout the years. (34) Historically, courts have weighed certain factors in determining whether an activity substantially affects commerce, such as the nature of the activity being regulated and any aggregate effects resulting from a combination of the activity and other related circumstances. (35) Courts have debated over the difference beat 556 (mentioning courts" holdings vary depending on commercial or noncommercial nature of activity); Wickard v. Filburn. 317 U.S. Ill, 125 (1942) (holding nature of activity irrelevant when activity has substantial economic effect on commerce). See also United States v. Baston. 818 F.3d 651. 669 (11th Or. 2016) (mentioning courts' rulings regarding economic impacts of conduct). Generally, courts have stayed away from challenging Congress's authority when Congress finds that a certain activity has an aggregate economic impact on interstate and foreign commerce. Id. See also Morrison. 529 U.S. at 602-04 (analyzing effect of legal action and noneconomic activity). In Morrison, the victim of a sexual assault argued for the Court to pass legislation that would allow Congress to regulate provide a federal civil remedy for those affected by gender-motivated violence. Id. The Supreme Court rejected the reasoning of the lower court, which focused on the commercial effect of victims not travelling interstate, engaging in employment, or contributing to businesses, due to fear of gendermotivated violence, Id. at 615. Such aggregate impacts were too attenuated and would give Congress too much power. Id. Compare Morrison. 529 U.S. at 615-16 (rejecting aggregate effects argument), with United Stales v. Baston. 818 F.3d 651. 669 (11th Cir. 2016) (considering aggregate effects of sex trafficking). Compare Brief for Petitioner at 6, United States v. Abramov, 140 S. Ct. 257 (2019) (No. 19-256), 2019 tJ.S. LEXIS 6067, at *1 (arguing application of [section] 2423(c) to purely foreign conduct not sufficient for aggregate effect analysis), with Baston, 818 F.3d at 664 (analyzing application of [section] 2423(c) to purely local activities part of economic class).

  1. See United States v. Bollinger, 798 F.3d 201. 216 (4th Cir. 2015) (requiring demonstrable effect). The court held that, where the defendant moved from the United States to Haiti and sexually molested minor girls, the Foreign Commerce Clause permitted prosecution of such noncommercial acts because the acts sufficiently affected commerce. Id. at 218. The court held that only a demonstrable effect is required, but the standard is not so low that it only requires an effect which may be "hypothetical." Id. at 216. See also Gonzales v. Raich, 545 U.S. 1. 17 (2005) (recognizing Congress' power to regulate economic activities which affect commerce); Japan Line. Ltd. v. Cnty. of L.A.. 441 U.S. 434,436-37 (1979) (using economic analysis of tax and relying on economic effects of taxing on foreign cargo ships). See also Caliendo, supra note 28. at 382 (noting regulation of noncommercial activity). Historically, Congress had succeeded in regulating noncommercial illicit sexual conduct because such regulation has been found to be "constitutional under an economic effects theory." Id. Supporters of regulation of noncommercial activity argue that such regulation falls under an economic analysis because sex tourism is economic in nature. Id. at 384. Sex tourism leads to creation of revenue, which can affect commerce. Id. at 400-01. There is a concern that United States citizens take currency from the United States, bring it to another foreign country, and use that money to contribute to the sex tourism industry, thus creating an economic effect on foreign commerce. Id. at 402.

  2. See Caliendo, supra note 28, at 396...

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