FILED
                                                                   United States Court of Appeals
                                    PUBLISH                                Tenth Circuit

                     UNITED STATES COURT OF APPEALS                      August 29, 2018

                                                                       Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                          Clerk of Court
                        _________________________________

UNITED STATES OF AMERICA,

     Plaintiff - Appellee,

v.                                                       No. 16-6075

MATTHEW LANE DURHAM,

     Defendant - Appellant.
                     _________________________________

                    Appeal from the United States District Court
                       for the Western District of Oklahoma
                           (D.C. No. 5:14-CR-00231-R-1)
                      _________________________________

Stephen Jones (Ashley Morey with him on the brief), Jones, Otjen, Davis & Bloyd,
Enid, Oklahoma, for Defendant - Appellant.

Steven W. Creager, Assistant United States Attorney (David P. Petermann, Assistant
United States Attorney, and Mark Yancey, United States Attorney, with him on the
brief), Oklahoma City, Oklahoma, for Plaintiff - Appellee.
                       _________________________________

Before HARTZ, MATHESON, and MORITZ, Circuit Judges.
                 _________________________________

MATHESON, Circuit Judge.
                   _________________________________
                                  TABLE OF CONTENTS	



I. BACKGROUND .......................................................................................... 2 

   A. Factual Background ................................................................................ 2 

   B. Procedural Background ........................................................................... 6 

II. DISCUSSION ............................................................................................. 8 

   A. Issue One: Constitutionality of 18 U.S.C. § 2423(c) under the  
       Foreign Commerce Clause ..................................................................... 8 

      1. Section 2423(c) and Congress’s Efforts to Combat Sex Trafficking .... 9 

         a. Provisions of the statutory scheme .................................................. 10 

         b. Early efforts to combat sex trafficking ........................................... 12 

         c. Legislative history leading to passage of § 2423(c) ........................ 14 

             i. Enactment of § 2423(b) ............................................................... 14 

             ii. Enactment of § 2423(c) .............................................................. 15 

      2. The Commerce Clause ....................................................................... 18 

         a. ICC case law ................................................................................... 19 

             i. Channels ...................................................................................... 19 

             ii. Instrumentalities ......................................................................... 20 

             iii. Substantial effect ....................................................................... 20 


                                                   i
   b. FCC case law .................................................................................. 22 

3. Congressional Authority Broader Under the FCC than the ICC ......... 24 

   a. History ............................................................................................ 25 

   b. Text ................................................................................................ 26 

   c. Purpose ........................................................................................... 28 

   d. The dissent’s view .......................................................................... 29 

      i. Japan Line and the scope of FCC power ..................................... 30 

      ii. Sovereignty of other nations ....................................................... 32 

      iii. Summary ................................................................................... 36 

4. The Lopez Categories in the Foreign Commerce Context ................... 36 

   a. The ICC’s three categories as a starting point ................................. 37 

   b. The substantial-effect category is applicable here .......................... 38 

   c. Evolution of the third Lopez category ............................................. 38 

   d. Adapting the third Lopez category to the FCC ................................ 42 

5. Constitutionality of § 2423(c) ............................................................ 43 

   a. Section 2423(c)’s legislative history supports rational basis ........... 44 

   b. Section 2423(c) is an essential part of a broader statutory scheme . 45 

   c. Section 2423(c)’s jurisdictional element supports rational basis ..... 48 

   d. Raich supports rational basis for § 2423(c)..................................... 48 
                                             ii
      e. Rational basis standard ................................................................... 52 

   6. Legal Landscape ................................................................................. 54 

   7. Conclusion ......................................................................................... 56 

B. Issue Two: Brady Claim ....................................................................... 57 

   1. Additional Procedural Background .................................................... 57 

      a. Trial testimony................................................................................ 57 

      b. Supplemental motion for new trial ................................................. 60 

   2. Analysis ............................................................................................. 64 

      a. Standard of Review ......................................................................... 64 

      b. Legal Background .......................................................................... 64 

      c. No prejudice for a Brady violation.................................................. 65 

C. Issue Three: Mr. Durham’s Statements about Child Pornography  
    and Homosexuality ............................................................................... 67 

   1. Standard of Review ............................................................................ 68 

   2. Additional Factual Background .......................................................... 68 

      a. Evidence about child pornography and homosexuality ................... 68 

      b. District court rulings ....................................................................... 69 

   3. Legal Background .............................................................................. 71 

      a. Rule 404(b) ..................................................................................... 71 


                                               iii
     b. Rules 401 and 402 .......................................................................... 71 

     c. Rule 403 ......................................................................................... 71 

  4. Analysis ............................................................................................. 72 

     a. Rule 404(b) ..................................................................................... 72 

     b. Rules 401 and 402 .......................................................................... 73 

     c. Rule 403 ......................................................................................... 74 

D. Issue Four: Prosecutorial Misconduct .................................................. 75 

  1. Standard of Review ............................................................................ 75 

  2. Additional Factual Background .......................................................... 76 

     a. The Government’s cross-examination of Mr. Durham .................... 76 

     b. The Government’s closing argument .............................................. 77 

  3. Additional Procedural Background .................................................... 77 

  4. Legal Background .............................................................................. 78 

  5. Analysis ............................................................................................. 79 

     a. Preservation .................................................................................... 79 

        i. Alleged misconduct during cross-examination of Mr. Durham .... 79 

        ii. Alleged misconduct during closing argument ............................. 80 

     b. Plain error—substantial rights ........................................................ 80 

        i. Alleged misconduct during cross-examination of Mr. Durham .... 81 
                                              iv
        ii. Alleged misconduct during closing argument ............................. 81 

E. Issue Five: Cellphone Videos Authentication ....................................... 83 

  1. Standard of Review ............................................................................ 84 

  2. Additional Background ...................................................................... 84 

     a. Pre-Trial ......................................................................................... 84 

     b. Trial ................................................................................................ 87 

  3. Legal Background .............................................................................. 88 

  4. Analysis ............................................................................................. 89 

F. Issue Six: Victims’ Medical Records .................................................... 90 

  1. Standard of Review ............................................................................ 91 

  2. Additional Background ...................................................................... 91 

  3. Legal Background .............................................................................. 92 

     a. Invited error .................................................................................... 92 

     b. Authentication ................................................................................ 92 

     c. The hearsay rule and pertinent exceptions ...................................... 92 

     d. Unfair prejudice .............................................................................. 93 

  4. Analysis ............................................................................................. 93 

G. Issue Seven: Substantive Reasonableness of Sentence ......................... 96 

  1. Standard of Review ............................................................................ 96 

                                               v
      2. Additional Factual Background .......................................................... 97 

      3. Legal Background ............................................................................ 100 

      4. Analysis ........................................................................................... 101 

   H. Issue Eight: Cumulative Error ............................................................ 103 

III. CONCLUSION ...................................................................................... 105 




                                                  vi
      Matthew Durham appeals his convictions and sentence on four counts for illicit

sex with minors in Kenya after travelling there from the United States. This opinion

addresses the following eight issues presented for appellate review.

          1. Is 18 U.S.C. § 2423(c), the statute on which the convictions
             were based, unconstitutional on its face and as applied to Mr.
             Durham because it exceeds Congress’s power under the
             Foreign Commerce Clause in Article 1, Section 8, Clause 3 of
             the Constitution? We hold that § 2423(c) is constitutional
             because Congress could rationally conclude that travel abroad
             followed by illicit sex with a minor, in the aggregate,
             substantially affects foreign commerce.

          2. Did the district court err when it denied Mr. Durham’s
             supplemental motion for a new trial alleging that the
             Government suppressed exculpatory evidence in violation of
             Brady v. Maryland, 

(1963)? We affirm because
             Mr. Durham has not shown that nondisclosure of the evidence
             prejudiced his case.

          3. Did the district court err under Federal Rules of Evidence
             401, 403, and 404(b) when it allowed admission of Mr.
             Durham’s statements about his struggles with child
             pornography and homosexuality? We affirm. The district
             court did not abuse its discretion in determining the evidence
             was intrinsic, relevant, and not unduly prejudicial.

          4. Did the district court err when it denied Mr. Durham’s motion
             for a new trial alleging that the Government made improper
             statements about his struggle with homosexuality during
             cross-examination of Mr. Durham and during closing
             argument? We affirm under plain error review because Mr.
             Durham cannot show that the prosecutor’s statements affected
             his substantial rights.

          5. Did the district court err in admitting cellphone video
             recordings because they were not properly authenticated? We
             affirm. The district court did not abuse its discretion because
             the Government presented sufficient foundation evidence for
             authentication.
           6. Did the district court err when it admitted the victims’ entire
              medical records? We affirm because Mr. Durham invited any
              error and because his arguments alleging lack of
              authentication, inadmissible hearsay, and unfair prejudice do
              not show that the district court erred in admitting the records.

           7. Did the district court abuse its discretion and impose a
              substantively unreasonable sentence when it sentenced Mr.
              Durham to 480 months in prison? We affirm because Mr.
              Durham cannot overcome the presumption that the district
              court reasonably weighed the sentencing factors under 18
              U.S.C. § 3553(a) or show that its sentencing decision exceeds
              the bounds of permissible choice.

           8. Should the convictions be reversed because the errors,
              considered cumulatively, deprived him of a fair trial? Mr.
              Durham cannot show that any errors that may be eligible for
              cumulative error review cumulatively affected his substantial
              rights.

      Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we

therefore affirm Mr. Durham’s convictions and sentence.

                                   I. BACKGROUND

                                 A. Factual Background

      On May 1, 2014, Mr. Durham, then 19 years old, arrived in Kenya on his fourth

Christian missionary trip there. ROA, Vol. 12 at 1818 (TT 1204); ROA, Vol. 10a at 25.1

In Kenya, he volunteered at the Upendo Children’s Home (“Upendo”), where 33 children

from impoverished backgrounds live. ROA, Vol. 12 at 695-97, 787 (TT 81-83, 173).

Upendo Kids International, an Oklahoma non-profit founded and directed by Eunice

Menja, operates Upendo. 

960 (TT 173, 346), Aplee. Br. at 3. Ms. Menja’s



      1
          “ROA” denotes “Record on Appeal.” “TT” denotes “Trial Transcript.”
                                             2
sister, Josephine Wambugu,2 is the manager of Upendo. ROA, Vol. 12 at 695, 788 (TT

81, 174).

       On his previous trips to Kenya, Mr. Durham had stayed with a host family, but on

the fourth trip, he asked to stay at Upendo instead. 

(TT 1197). On June 12,

2014, Ms. Wambugu entered one of the girls’ bedrooms and saw Mr. Durham lying on a

bed with one of the girls. 

(TT 91). When Ms. Wambugu came into the room,

Mr. Durham left quickly. 

(TT 91-92). Ms. Wambugu then spoke to some

of the girls, who said they had “been doing bad manners” with Mr. Durham. ROA, Vol.

12 at 710-11 (TT 96-97). The children used “bad manners” to mean engaging in sexual

acts. See 

(TT 48); 1412 (TT 798); 1443-44 (TT 829-30).

       On June 13, Ms. Menja, Ms. Wambugu, Jason Jeffries (another American

volunteer at the home), and Tom Mutonga (a local supporter of Upendo) met with Mr.

Durham at Upendo. 

825 (TT 203, 211). When he entered the meeting, Mr.

Durham yelled, “You can fire me, fire me now.” 

(TT 211). Ms. Menja

accused him of hurting the girls and asked for his response. 

(TT 212). Mr.

Durham said he did not remember, and asked to speak to Ms. Wambugu alone. 

-27 (TT 212-13).

       Once alone, he asked Ms. Wambugu to defend him, and she asked him whether he

had done the acts reported by the girls. 

(TT 109). He said, “Yes, I did it. Yes,

I did.” 

(TT 109). But when he went back to talk to the group, Mr. Durham

       2
        The trial transcript spells Ms. Wambugu’s first name as “Josphine,” but court
records refer to her as “Josephine.” See ROA, Vol. 1 at 40. We therefore assume her
name is properly spelled “Josephine.”
                                             3
again said he could not remember assaulting the children. He added that he had been

struggling with child pornography and homosexuality. 

828 (TT 110, 214).

Ms. Menja told Mr. Durham she was going to take him to a different location, explaining

that, for the safety of the children, she did not want him to stay at the children’s home.

(TT 215). He spent the next three days at an empty house owned by Ms.

Menja’s father-in-law. 

(TT 216). One of the volunteers had taken Mr.

Durham’s passport after hearing about the allegations. 

(TT 438).

       During his time away from Upendo, Mr. Durham sent his father text messages

stating: “I don’t want to live anymore” and “I hate myself. I deserve to burn in hell.”

ROA, Vol. 9 at 78 (Gov’t Exh. 29). He sent a text to Ms. Menja saying: “Tell all the kids

how sorry i am, and i am praying for their forgiveness every hour.” 

(Gov’t Exh.

10) (errors in original).

       Mr. Durham’s great-uncle arranged for Mr. Durham to fly back to Oklahoma.

ROA, Vol. 12 at 1682-83 (TT 1068-69). On June 17, before he flew out, Mr. Durham

met with Ms. Menja, Ms. Wambugu, and Mr. Mutonga at the Seagull restaurant. 

(TT 241). Ms. Menja video recorded some of the ensuing conversation in multiple

videos on her cellphone (the “Seagull Confession Videos”). 

(TT 242). Mr.

Durham knew that he was being recorded and asked that the video be kept on. Gov’t

Exh. 4 at 12:09. On the longest video, Ms. Menja asked Mr. Durham about the

allegations. He responded that he had struggled with a “temptation to touch children and

to be with other men.” Gov’t Exh. 4 at 1:55-2:01. When Ms. Menja started asking about



                                              4
specific children who had accused him of abuse, Mr. Durham admitted to assaulting

those children. See, e.g., 

       After Ms. Menja stopped recording the video, she said she could not listen any

more, and Mr. Durham offered to write down his confession. ROA, Vol. 12 at 865 (TT

251). He wrote detailed statements about how he abused or otherwise engaged in

inappropriate behavior with over ten of the children. ROA, Vol. 9 at 8-16. The

following relate to three of the four charges of conviction and each concerns a different

victim:

            “I would take her to the bathroom at night and hold her down
             and rape her. This happened on several occasions. I also
             made her watch me do things to [another girl]. I told her
             never to tell anyone, and that I loved her.” ROA, Vol. 9 at 8
             (Gov’t Exh. 9).

            “I would take her to the bathroom and have her take off her
             clothes. I would touch myself and her. I don’t know how
             many times it occurred. Also, when we had our sleepovers
             Friday night, [she] always made a point to sleep by me. I
             would spoon with her until I woke up.” 

(Gov’t Exh.
             9).

            “I took her to the bathroom and force[d] her to have sex with
             me. This happened on more than one occasion. I made her
             swear to never tell anyone . . . . Any time I try to read the
             bible or pray, this image comes to my [head].” 

             (Gov’t Exh. 9).

       Ms. Wambugu next spoke to the Kenyan police, who told her they could not arrest

Mr. Durham. ROA, Vol. 12 at 873-74 (TT 259-60). Ms. Menja returned Mr. Durham’s

passport to him, and he flew out of Kenya the night of June 17. 

(TT 260-

61).

                                               5
       Ms. Menja took six victims to a doctor the next day, June 18. 

(TT 261).

Medical workers examined them and determined five out of six had perforated hymens.

(TT 574-75). Ms. Menja later reported what had happened to the U.S.

Embassy. 

(TT 261).

                                B. Procedural Background

       Mr. Durham was arrested in the United States on July 18, 2014. ROA, Vol. 1 at

77. A grand jury returned an original indictment on August 5, 2014, charging three

counts. 

It later returned two superseding indictments. 

467.

The second, the operative indictment, was returned in April 2015 and charged Mr.

Durham with eight counts of interstate travel with intent to engage in a sexual act with a

child, in violation of 18 U.S.C. § 2241(c), and eight counts of traveling in foreign

commerce and engaging in illicit sexual conduct with a minor, in violation of 18 U.S.C. §

2423(c). 

The indictment identified eight victims by their initials. 

also was charged with one count of traveling in foreign commerce with intent to

engage in illicit sexual conduct in violation of 18 U.S.C. § 2423(b).

       Trial was held between June 10, 2015, and June 18, 2015. Five of the eight

alleged victims testified, including the victims associated with each of the four

convictions. ROA, Vol. 12 at 658, 1406, 1426, 1440, 1458. Dr. Alawiya Abdulkadir

Mohamed, who prepared some of the medical documentation in Kenya, also testified for

the prosecution. 

(TT 572-74). Mr. Durham’s written and videotaped

confessions and his text messages were admitted into evidence. 

857, 1248 (TT

123, 243, 634).

                                             6
       Mr. Durham testified in his defense. ROA, Vol. 12 at 1792 (TT 1178). The

defense also presented testimony from a professional counselor about forensic interviews

with victims of sexual assault, 

(TT 892, 901), and from a sexual assault

nurse examiner, Lisa Dunson, about the medical findings in the case, 

(TT

967). Mr. Durham’s mother, father, and great-uncle also testified in his defense. 

38, 1721, 1759 (TT 1024, 1107, 1145).

       The jury found Mr. Durham guilty on seven counts of traveling in foreign

commerce and engaging in illicit sexual conduct with a minor in violation of 18 U.S.C.

§ 2423(c). ROA, Vol. 3 at 193-94. It found him not guilty of the remaining counts. 

moved for arrest of judgment, arguing that 18 U.S.C. § 2423(c) is

unconstitutional. 

He also moved for acquittal and a new trial. 

305.

Mr. Durham supplemented his motion for a new trial when he learned the prosecution

had failed to disclose information favorable to the accused during trial. 

       The district court denied the motions for arrest of judgment and a new trial. 

760, 776, 811. It granted acquittal on three of the § 2423(c) counts because the

Government had not shown Mr. Durham engaged in “sexual conduct” as defined by the

statute, but it denied acquittal on the other four counts. 

774-75.

       The final Presentence Investigation Report (“PSR”) calculated a recommended

sentence of 1,440 months in prison under the United States Sentencing Guidelines (the

“Guidelines”), based on Mr. Durham’s total offense level and criminal history category.

ROA, Vol. 7 at 142. This represented the statutory maximum of 30 years for each count

of conviction, running consecutively. 

n.3. The district court sentenced Mr.

                                              7
Durham to 480 months in prison, a sentence it characterized as a variance below the

Guidelines range. ROA, Vol. 3 at 844; ROA, Vol. 7 at 477; ROA, Vol. 13 at 158.

                                    II. DISCUSSION

       Mr. Durham raises eight issues on appeal. As to each issue, we present the

applicable standard of review and also provide additional factual, procedural, and

legal background, as needed.

           A. Issue One: Constitutionality of 18 U.S.C. § 2423(c) under the
                            Foreign Commerce Clause

       Mr. Durham challenges the constitutionality of 18 U.S.C. § 2423(c), arguing that

Congress exceeded its authority under the Foreign Commerce Clause. See U.S. Const.

art. I, § 8, cl. 3. Section 2423(c) makes it a crime for “[a]ny United States citizen or alien

admitted for permanent residence [to] travel[] in foreign commerce . . . and engage[] in

any illicit sexual conduct with another person.” 18 U.S.C. § 2423(c). “Illicit sexual

conduct” includes any commercial or noncommercial sexual act with a person under the

age of 18, 

and the production of child pornography, 

Mr. Durham was charged under § 2423(c) for traveling abroad and engaging in

noncommercial sexual acts with minors. He argues that, because noncommercial illicit

sexual activity abroad has no relation to foreign commerce, the statute is unconstitutional

on its face and as applied to him and his conviction therefore cannot stand.3 We review


       3
         Mr. Durham brings both a facial and an as-applied challenge. See Aplt. Br.
at 48. The Government contends he has waived his as-applied challenge, but even if
this is so, we may resolve a facial challenge by conducting an as-applied analysis.
        We previously have said that “we need not and do not address [a] facial
challenge” when “we conclude the as-applied challenge fails.” United States v.
                                              8
his challenge de novo. United States v. Pompey, 

, 1179 (10th Cir. 2001)

(“We review challenges to the constitutionality of a statute de novo.” (quotations

omitted)); see also People for Ethical Treatment of Prop. Owners v. U.S. Fish & Wildlife

Serv. (PETPO), 

, 1000 (10th Cir. 2017), cert. denied, 

(2018).

       We reject Mr. Durham’s constitutional challenge to § 2423(c). Congress adopted

this provision and several others in 2003 as part of a broad regulatory effort that started in

1907 to combat international sex trafficking. As the following discussion shows,

Congress could reasonably conclude that United States citizens and permanent residents

who, in the aggregate, travel to foreign countries and commit illicit sex acts there

substantially affect foreign commerce. As a result, we must defer to congressional

judgment and uphold § 2423(c).

1. Section 2423(c) and Congress’s Efforts to Combat Sex Trafficking

       Section 2423(c) makes it a crime for “[a]ny United States citizen or alien admitted

for permanent residence [to] travel[] in foreign commerce . . . and engage[] in any illicit

Morgan, 

, 1031 (10th Cir. 2014). For a statute to be facially
unconstitutional, Mr. Durham “must establish that [the] law is unconstitutional in all
of its applications.” City of Los Angeles v. Patel, 

, 2451 (2015)
(quotations omitted); cf. United States v. Stevens, 

, 473 (2010) (“In the
First Amendment context . . . this Court recognizes a second type of facial challenge,
whereby a law may be invalidated as overbroad if a substantial number of its
applications are unconstitutional . . . .” (quotations omitted)).
        We therefore address Mr. Durham’s facial challenge through an as-applied
analysis. Under § 2423(c), Mr. Durham was convicted of engaging in illicit sexual
conduct abroad after traveling in foreign commerce, the paradigmatic conduct
targeted under the provision. See, e.g., United States v. Bollinger, 

,
203-04 (4th Cir. 2015), cert. denied, 

(2016); United States v.
Pendleton, 

, 301-02 (3d Cir. 2011). Because we conclude that § 2423(c)
is constitutional as applied to Mr. Durham, he cannot succeed on either a facial or
as-applied challenge.
                                              9
sexual conduct with another person.” 18 U.S.C. § 2423(c). It is situated within a broad

anti-sex trafficking statutory scheme that Congress constructed through a century of

legislation. Congress attempted to address sex trafficking in the early 1900’s by

prohibiting the importation of women and girls for sexual exploitation. Expanding on

these efforts, it enacted legislation for the prosecution of individuals who traveled abroad

intending to engage in sex tourism. But proving intent was difficult. In response,

Congress passed § 2423(c), which targets individuals who travel abroad and engage in

illicit sexual conduct regardless of intent. When reviewed in historical context and the

overall legislative scheme, Congress reasonably viewed § 2423(c) as playing an

important role in its broader efforts to combat international sex tourism.

       The following discussion describes how § 2423(c) facilitates Congress’s efforts to

combat international sex tourism. We provide a brief overview of Chapter 117 in Title

18 of the United States Code, which contains 18 U.S.C § 2423 and other anti-trafficking

provisions; chart the historical development of § 2423; and review the legislative history

leading to the enactment of § 2423(c).

       a. Provisions of the statutory scheme

       Chapter 117 criminalizes various activities related to sex trafficking. See 18

U.S.C. §§ 2421-2428 (titled “Transportation for Illegal Sexual Activity and Related

Crimes”). It generally prohibits the knowing transport of “any individual in interstate or

foreign commerce . . . with [the] intent that such individual engage in prostitution, or in

any sexual activity for which any person can be charged with a criminal offense.” 

(titled “Transportation generally”). It also targets other activities that facilitate

                                              10
sex trafficking. See, e.g., 

(coercion or enticement of individuals to engage in

prostitution or illicit sexual activity); 

(harboring individuals for purpose of

prostitution); 

(transmission of information to entice individuals into illicit

sexual activity).4

       Title 18 U.S.C. § 2423, which falls within Chapter 117, deals specifically with the

trafficking and sexual exploitation of minors. See 

(titled “Transportation of

minors”). Its seven provisions criminalize activities that involve illicit sexual contact

with minors. See 

(a)-(g); see, e.g., 

(a) (the transportation of minors

for prostitution or illicit sexual activity). Three of its provisions—§ 2423(b), § 2423(c),

and § 2423(d)—address international sex tourism. Section 2423(b) makes it a crime to

travel with the intent to engage in illicit sex. See 

(b). Section 2423(c) targets

individuals who travel abroad and engage in illicit sex—regardless of intent. See 

2423(d) targets businesses that “arrange[], induce[], procure[] or

facilitate[] the travel of a person” intending to engage in illicit sexual conduct abroad for




       4
        Chapter 117 also includes sections on sentencing individuals for such
offenses, definitions of illicit sexual activity, and forfeiture options once an
individual is convicted. See 18 U.S.C § 2426 (sentencing for repeat offenders); 

(definition of “sexual activity for which any person can be charged with a
criminal offense” to include production of child pornography); 

(forfeiture
of property that was used in the commission of crimes or derived from the proceeds
of crimes).

                                              11
financial gain. 

“Illicit sexual conduct” includes commercial and

noncommercial sex acts5 with a “person under 18 years of age.” 

       b. Early efforts to combat sex trafficking

       Section 2423 developed through a century of legislation addressing international

sex trafficking. In the early 1900’s, Congress was concerned about the growing sex

trafficking industry from Europe in particular. In 1907, it prohibited the “importation” of

women or girls into the United States “for the purpose of prostitution, or for any other

immoral purpose.” Act of Feb. 20, 1907, Pub. L. No. 59-96, § 3, 34 Stat. 898, 899

(“1907 Act”) (regulating “the immigration of aliens into the United States”).7 Congress

recognized this practice as a “present-day existing evil of widespread dimensions” that

must be stopped. S. Rep. No. 61-702, at 14 (1910).

       Two years later, congressional investigators released a report concluding that the

1907 Act had failed to stem sex trafficking into the United States. See Importing Women


       5
       For a noncommercial sex act, the conduct would also have to “be in violation
of Chapter 109A,” which contains various sexual abuse offenses. See 18 U.S.C.
§§ 2241-2248.
       6
          In the original 1994 version, § 2423(b) criminalized “any sexual act . . . with
a person under 18 years of age.” See 18 U.S.C. § 2423(b) (1994). The Prosecutorial
Remedies and Tools Against the Exploitation of Children Today Act of 2003
(“PROTECT Act”) replaced this phrase with “any illicit sexual conduct with another
person” and added the definition section in § 2423(f), which includes a definition of
“illicit sexual conduct” as “a sexual act with a person under 18 years of age.” Pub. L.
No. 108-21, § 105, 117 Stat. 650, 654 (2003).
       7
        The 1907 Act also prohibited anyone from “keep[ing], maintain[ing],
control[ling], support[ing], or harbor[ing] in any house or other place” women for the
purpose of prostitution. § 3, 34 Stat. at 899.

                                            12
for Immoral Purposes, S. Doc. No. 61-196, at 33-36 (1909) (recommending a number of

policy changes addressing the unsolved problem of sex trafficking); H.R. Rep. No. 61-47,

at 12 (1909). The 1907 Act had focused on stopping the flow of trafficked women at the

border, but it failed to address the problem of women passing through immigration

channels undetected. See S. Doc. No. 61-196, at 33-34; see also Ariela R. Dubler,

Immoral Purposes: Marriage and the Genus of Illicit Sex, 115 Yale L.J. 756, 787 (2006).

The report recommended criminalizing the interstate transportation of women and girls

for the purpose of prostitution. S. Doc. No. 61-196, at 36; see also H.R. Rep. No. 61-47,

at 10 (explaining this change was necessary to prevent the “evil” of importing women

from foreign nations; otherwise prostitution “can not [sic] be met comprehensively and

effectively”).

       In response, Congress passed the Mann Act of 1910, attempting to “put a stop to a

villainous interstate and international traffic in women and girls.” H.R. Rep. No. 61-47,

at 9; see White-Slave Traffic (Mann) Act, Pub. L. No. 61-277, §§ 2-8, 36 Stat. 825,

825-27 (1910) (codified at 18 U.S.C. §§ 397-404 (1940)). Section 2 of the Mann Act

prohibited the transportation of women or girls across state or international lines for the

purpose of illicit sexual acts. See § 2, 36 Stat. at 825. It is the precursor of the current

§ 2423.8


       8
         The Mann Act has been recodified and amended as 18 U.S.C. §§ 2421-2424.
Section 2 of the Mann Act parallels 18 U.S.C. § 2423(a), which criminalizes
knowingly transporting individuals for the purposes of prostitution or illicit sexual
activity. Compare § 2, 36 Stat. at 825 (codified at 18 U.S.C. § 398 (1940))
(“[K]nowingly transport[ing] . . . in interstate or foreign commerce . . . any woman or
girl for the purpose of prostitution or debauchery, or for any other immoral
                                              13
       In 1978 and 1986, Congress broadened the provisions of the Mann Act to fight sex

trafficking. In 1978, Congress expanded the law preventing the commercial sexual

exploitation of girls to include all children. See The Protection of Children Against

Sexual Exploitation Act of 1977, Pub. L. No. 95-225, § 3, 92 Stat. 7, 8 (1978) (codified at

18 U.S.C. § 2423(a)(1)-(2) (1982)); see also H.R. Rep. No. 99-910, at 4 (1986). But, as

Congress acknowledged less than a decade later, the 1978 Act failed to address

noncommercial exploitation—such as transporting children for the purpose of producing

child pornography for private rather than commercial use. See H.R. Rep. No. 99-910,

at 7. In response, Congress passed amendments in 1986 to encompass noncommercial

sexual exploitation. Child Sexual Abuse and Pornography Act of 1986, Pub. L. No.

99-628, § 5, 100 Stat. 3510, 3511 (1986) (codified at 18 U.S.C. § 2423 (1988)).

       c. Legislative history leading to passage of § 2423(c)

       The next two major revisions to § 2423 occurred in 1994 and 2003. Congress

added § 2423(b) and § 2423(c) to target sex tourism.

              i. Enactment of § 2423(b)

       In 1994, Congress enacted § 2423(b) as part of the Violent Crime Control and

Law Enforcement Act of 1994 (“Violent Crime Act”), making it a crime for “a United

States citizen . . . [to] travel[] in foreign commerce . . . for the purpose of engaging in any

purpose . . . .”), with 18 U.S.C. § 2423(a) (“[K]nowingly transport[ing] an individual
who has not attained the age of 18 years in interstate or foreign commerce . . . with
intent that the individual engage in prostitution, or in any sexual activity for which
any person can be charged with a criminal offense . . . .”). Section 2423 also
contains other provisions to address international sex tourism. See 18 U.S.C. §§
2423(b)-(f).

                                              14
sexual act . . . with a person under 18 years of age . . . .” Pub. L. No. 103-322,

§ 160001(g), 108 Stat. 1796, 2037 (1994) (codified at 18 U.S.C. §§ 2423(a)-(b) (1994)).

Its passage marked the first time Congress addressed sex tourism as part of its larger

effort against international sex trafficking.

       Section 2423(b) originated from Senator Charles Grassley’s amendment to the

Violent Crime Act. In a floor statement, Senator Grassley explained that its purpose was

to combat child prostitution in the multibillion dollar child pornography and international

sex tourism industries. See 139 Cong. Rec. 30,391 (1993). He recognized the problem of

“Americans . . . travel[ing] overseas to places where children are readily available for

purchase and abuse.” 

he noted, allowed for “profit from the rape of

children.” 

Representative Jim Ramstad, who proposed a similar

amendment in the House, see The Child Sexual Abuse Prevention Act of 1994, H.R.

3993, 103rd Cong. (1994), explained in his floor statement that his amendment was

intended to “strike a blow at ‘pedophile sex tourism,’ by making it a crime to travel

overseas for the purpose of sexually abusing children.” 140 Cong. Rec. 6,073 (1994).

              ii. Enactment of § 2423(c)

       Section 2423(b)’s reach was limited to individuals who traveled abroad intending

to engage in illicit sex acts. But proving intent was difficult. See H.R. Rep. No. 107-525,

at 2 (2002). In 2003, Congress enacted § 2423(c) to permit the prosecution of individuals

who travel abroad and engage in illicit sex acts—regardless of whether they intended to

do so at the time of travel.



                                                15
       Section 2423(c) was passed as part of the Prosecutorial Remedies and Tools

Against the Exploitation of Children Today Act of 2003 (“PROTECT Act”), which

targeted various aspects of the sex tourism industry. See Pub. L. No. 108-21, § 105, 117

Stat. 650, 654 (2003) (codified at 18 U.S.C. §§ 2423(b)-(g) (2006)). Section 2423(c)

adopted language from a previous bill—the Sex Tourism Prohibition Improvement Act of

2002 (“STPIA”)—which had failed to pass, but its history helps in understanding

§ 2423(c). See Child Abduction Prevention Act and the Child Obscenity and

Pornography Prevention Act of 2003: Hearing Before the Subcomm. on Crime,

Terrorism, and Homeland Sec. of the H. Comm. on the Judiciary, 108th Cong. 25 (2003)

(“Hearings”).9 A House Judiciary Committee Report on STPIA noted that a large

number of developing countries had “fallen prey to the serious problem of international

sex tourism.” H.R. Rep. No. 107-525, at 2. It acknowledged that § 2423(b)’s intent

requirement limited the law’s effectiveness. 

13. Eliminating the intent




       9
           STPIA’s version of the provision read:

                (c) Engaging in Illicit Sexual Conduct in Foreign Places.
                Any United States citizen or alien admitted for permanent
                residence who travels in foreign commerce, and engages in
                any illicit sexual conduct with another person shall be
                fined under this title or imprisoned not more than 15 years,
                or both.

H.R. 4477, § 2, 107th Cong. (2002).

                                            16
requirement, it found, would “close significant loopholes in the law [regarding] persons

who travel to foreign countries seeking sex with children.” 

       STPIA’s language was incorporated into the PROTECT Act and ultimately

became law in § 2423(c). The sponsor of § 2423(c), Representative Jim Sensenbrenner,

who authored § 2423(c) in both the PROTECT Act and STPIA, explained that sex

tourism supported one of the “fastest growing areas of international criminal activity”—

human trafficking. 149 Cong. Rec. 7,625 (2003). The PROTECT Act’s purpose was to

curb that industry by punishing “persons who travel to foreign countries to engage in

illegal sexual relations with minors.” 

But unlike § 2423(b), it would do so

by criminalizing this conduct, “regardless of what [the perpetrator’s] intentions may have

been when he left the United States.” Hearings at 25 (statement of Daniel P. Collins,

Associate Deputy Att’y Gen., U.S. Dep’t of Justice). Congress thus passed § 2423(c) to

fill the enforcement gap created by § 2423(b)’s intent requirement.

                                          ****

       In sum, Congress has worked to combat sex trafficking—particularly of minors—

for over a century, developing a statutory scheme targeting sexual exploitation for both

commercial and noncommercial purposes. Part of this effort included passage of

§ 2423(b), which made it a crime to travel abroad intending to have illicit sex. Because

the intent requirement limited the statute’s effectiveness, Congress passed § 2423(c) to


       10
          Congressional discussion of STPIA also emphasized the size of the
international sex trafficking market. Representative Lamar Smith commented that
“[t]his world sex market is a multi-billion dollar industry that denies children their
rights, their dignity, and their childhood.” 148 Cong. Rec. 11,222 (2002).
                                            17
allow for prosecution regardless of intent. Congress viewed this provision as a critical

part of its broader efforts to combat the multibillion dollar international sex trafficking

market.11

2. The Commerce Clause

       The Commerce Clause delegates power to Congress “[t]o regulate Commerce with

foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const.

art. I, § 8, cl. 3. The following discussion summarizes the Supreme Court’s case law on

the Interstate Commerce Clause (“ICC”) and Foreign Commerce Clause (“FCC”).

Although there is “rich case law interpreting the [ICC], the Supreme Court has yet to

examine the [FCC] in similar depth.” United States v. Bollinger, 

, 209 (4th

Cir. 2015), cert. denied, 

(2016); see also United States v. Clark, 

, 1102 (9th Cir. 2006) (noting the FCC’s “scope has yet to be subjected to judicial

scrutiny”).




       11
         Section 2423(c)’s more recent legislative history bolsters this understanding.
In 2013, Congress passed the, Violence Against Women Reauthorization Act
(“VAWRA”), Pub. L. No. 113-4, 127 Stat. 54 (2013). The Act added the “residing
clause” to § 2423(c): individuals who “reside[], either temporarily or permanently in
a foreign country” and engage in illicit sexual conduct may also be prosecuted. 

127 Stat. at 142 (codified at 18 U.S.C. § 2423(c)). Senator Patrick Leahy
introduced the “residing clause” to VAWRA through his amendment. See S. Amend.
21, 113th Cong. (2013) (amending S. 47, 113th Cong. (2013) (enacted)); 159 Cong.
Rec. 1137 (2013) (statement of Sen. Leahy). He emphasized the amendment targeted
the global sex trafficking market: “We know that young women and girls often just
11, 12, or 13 years old are being bought and sold,” and that “millions around the
world are counting on us.” 

                                             18
       a. ICC case law

       The Supreme Court has recognized that the ICC empowers Congress to regulate

(1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce,

and (3) activities that substantially affect interstate commerce. United States v. Lopez,

, 558-59 (1995); Perez v. United States, 

, 150 (1971).

       In Lopez, the Court considered whether Congress exceeded its authority under the

ICC when it prohibited guns near schools in the Gun-Free School Zones Act. See 

. The Court explained that Congress’s power to regulate commerce

among the states is broad, but federalism concerns limit it. Congressional power “may

not be extended so as to . . . obliterate the distinction between what is national and what

is local.” 

(quotations omitted). “[The ICC’s scope] must be considered in the

light of our dual system of government.” 

The Court laid out the

three categories of regulation, demarcating the ICC’s outer limits. See 

              i. Channels

       Congress may regulate the channels of interstate commerce. United States v.

Patton, 

, 620 (10th Cir. 2006). It may prohibit the transportation of goods

and people in interstate channels, effectively halting their interstate movements. See,

e.g., Caminetti v. United States, 

(1917) (upholding statute prohibiting the

interstate transportation of women for “immoral” purposes); Champion v. Ames, 

(1903) (upholding statute prohibiting the transportation of lottery tickets across

interstate lines). Congress need not be motivated by commercial concerns; it may also

stop the movement of goods and people to prevent immoral or injurious activities. See,

                                             19
e.g., United States v. Darby, 

(1941) (upholding a ban on the “injurious”

transportation of goods produced in substandard labor conditions).

              ii. Instrumentalities

       Congress may regulate the instrumentalities of interstate commerce, or the “means

of interstate commerce, such as ships and railroads.” 

(citing

; 

). Regulation “may extend to intrastate

activities that threaten these instrumentalities,” such as criminalizing the destruction of a

grounded aircraft. 

       Congress also may regulate “the persons or things that the instrumentalities are

moving,” such as criminalizing the theft of goods from an interstate carrier, like a train.

all people and things that have ever moved across state lines” qualify as

permissible targets of regulation. 

of goods and people extends only to

the duration of their transport. See 

this category, Congress may regulate

goods or people while they are on a ship or plane, but not necessarily once they are

unloaded or disembark.

              iii. Substantial effect

       Finally, Congress may regulate activity—including intrastate activity—that

“substantially affects” interstate commerce. 

. The Court has

upheld, for example, federal regulation of intrastate coal mining, see Hodel v. Va. Surface

Min. & Reclamation Ass’n, 

(1981); intrastate public accommodation

practices, see Katzenbach v. McClung, 

(1964); and homegrown wheat

production, see Wickard v. Filburn, 

(1942). In each instance, the Court

                                             20
determined the laws under review regulated activity that had a substantial effect on

interstate commerce. In making such a determination, courts need decide only whether

Congress had a “rational basis” that such activities substantially affect interstate

commerce. Gonzales v. Raich, 

, 22 (2005) (quotations omitted).

       In deciding whether federal legislation is constitutional under the ICC, courts

consider congressional findings or the legislative record regarding the effect of a

regulated activity. See 

Legislative findings, however, are neither necessary nor

determinative in a court’s rational-basis decision. See United States v. Morrison, 

, 612 (2000) (congressional findings are helpful, but not required nor sufficient

for upholding a statute); 

(particularized findings not necessary).

       In assessing a regulated activity’s effect on interstate commerce, courts need not

examine the activity in isolation, but may aggregate it. For example, courts may consider

the effect of not just one farmer’s wheat production on the national grain market, but may

consider the cumulative effect of all farmers’ production. See 

. But courts should do so when the activity is economic as opposed to

noneconomic. See 

(holding that the effect of domestic

violence, a noneconomic activity, could not be considered in the aggregate).12 The

economic-noneconomic distinction arises from federalism concerns and serves to

preserve “what is truly national and what is truly local.” 

.



       12
          Although the Court has discouraged the aggregation of noneconomic
activity, it has not prohibited it. In Morrison, the Court did not “adopt a categorical
rule against aggregating the effects of any noneconomic 

.
                                             21
Courts would otherwise “pile inference upon inference” to determine a regulated activity

substantially affects commerce. 

       Finally, courts also consider whether the statute contains an express jurisdictional

element relating to interstate commerce. 

Congress may explicitly “require an

additional nexus to interstate commerce” in its statute. 

For example, a statute

that criminalizes the possession of a firearm that has traveled in interstate commerce

contains an express jurisdictional element because violation of the statute hinges on the

firearm’s connection to interstate commerce. 

was formerly 18 U.S.C.

§ 1202(a) as an example).

       b. FCC case law

       Under the FCC, Congress may regulate commerce “with foreign Nations.” U.S.

Const. art. I, § 8, cl. 3. There is “precious little case law” on the FCC. United States v.

Pendleton, 

, 307 (3d Cir. 2011); see 

(noting

“[c]ases involving the reach of the [FCC] . . . are few and far between”). Two Supreme

Court cases, however, provide some guidance.

       First, in Board of Trustees of University of Illinois v. United States, 

(1933), the Court upheld a federal tariff under the FCC. The University of Illinois argued

that the tariff interfered with its importation of goods and was thus unconstitutional. 

The Court disagreed, holding that Congress had acted within its “constitutional

authority to regulate Commerce with foreign nations,” 

which

includes imposing duties on imports, “pass[ing] embargo and non-intercourse laws,” and

making “all other regulations necessary to navigation, to the safety of passengers, and the

                                              22
protection of property,” 

(quotations omitted). This power “comprehend[s] every

species of commercial intercourse between the United States and foreign nations,” 

(quoting Gibbons v. Ogden, 

, 193 (1824)), and is “exclusive and plenary,” 

further explained that the federalism constraints limiting Congress’s

ICC power do not apply in the FCC context. “The principle of duality in our system of

government does not touch the authority of Congress in the regulation of foreign

commerce.” 

The university had argued that the Constitution prohibited the

taxation of state entities, in particular that federal taxation “is subject to the constitutional

limitation that the Congress may not tax so as to impose a direct burden upon an

instrumentality of a state used in the performance of a governmental function.” 

The tariff, however, was not a tax passed under the Congress’s taxing power, but

was instead a regulation passed under its FCC power. Because “the immunity of state

instrumentalities . . . [was] implied from the necessity of maintaining our dual system,”

this constitutional limitation did not extend to statutes regulating foreign commerce. 

Rather, as in international relations, the “United States act[s] through a single

government with unified and adequate power” in the foreign commerce arena. 

Japan Line, Ltd. v. County of Los Angeles, 

(1979), the

Court struck down California’s property tax on shipping containers as a violation of the

dormant FCC.13 Japan Line, a Japanese shipping company, owed more than $550,000 in


       13
         As with the ICC, the Court has recognized that, in addition to delegating
express power to regulate foreign commerce, the FCC implicitly restricts the states
from regulating foreign commerce. See Japan 

(discussing the
“negative implications” of Congress’s power under the FCC).
                                               23
taxes on its shipping containers under California law. 

The company

challenged the state tax’s constitutionality. 

It argued that because the

containers traveled only in foreign commerce, they were foreign instrumentalities—as

opposed to interstate instrumentalities—and the dormant FCC protected foreign

commerce from state interference such as the California tax. See 

The Court agreed with Japan Line and concluded the state tax “may impair federal

uniformity in an area where federal uniformity is essential.” 

Normally, if a

state tax is “applied to an activity with a substantial nexus with the taxing State, is fairly

apportioned, [and] does not discriminate against interstate commerce, . . . no

impermissible burden on interstate commerce will be found.” 

(quotations

omitted). State taxes on foreign entities are different, however, because there is a “need

for uniformity in treating with other nations.” 

States imposing their own taxes

might create “asymmetry in the international tax structure,” and foreign governments

may retaliate in their trade policies with the United States. 

Compared with the

ICC, “the Founders intended the scope of the foreign commerce power to be the greater,”

and thus states are more likely to offend the FCC—rather than the ICC—with

their taxation policy, see 

California’s tax was therefore unconstitutional

under the dormant FCC. 

3. Congressional Authority Broader Under the FCC than the ICC

       “[The] scope [of the FCC] has yet to be subjected to judicial scrutiny.” 

. This section compares the boundaries of congressional authority under the



                                              24
FCC and the ICC. It describes how the FCC, unconstrained by federalism considerations,

provides Congress broader authority to regulate commerce than the ICC.

       Congressional authority under the FCC is broad because Congress must speak

with “one voice” in the foreign commerce context. Japan 

(quotations omitted). Moreover, as the dissent appears to agree, federalism limits

congressional authority under the ICC, but not the FCC. See Dissent Op. at 27. And, as

the Supreme Court has stated, “[a]lthough the Constitution, Art. I, § 8, cl. 3, grants

Congress power to regulate commerce ‘with foreign Nations’ and ‘among the several

States’ in parallel phrases, there is evidence that the Founders intended the scope of the

foreign commerce power to be the greater.” Japan 

; see also Atl.

Cleaners & Dyers v. United States, 

, 434 (1932) (“[Congressional] power

when exercised in respect of foreign commerce may be broader than when exercised as to

interstate commerce.”).

       Because the FCC concerns commerce “with foreign Nations”—as opposed to

commerce “among the several States”— the federalism considerations that constrain

Congress’s authority under the ICC do not apply to the FCC, which therefore confers

broader authority on Congress. Bd. of 

(“The principle of duality

in our system of government does not touch the authority of Congress in the regulation of

foreign commerce.”). History, text, and purpose support this conclusion.

       a. History

       For the Founders, expansive congressional control over foreign commerce was

imperative. They wanted the federal government to have enough authority to promote

                                             25
foreign commerce, which comprised most of the early American economy. See Scott

Sullivan, The Future of the Foreign Commerce Clause, 83 Fordham L. Rev. 1955,

1962-65 (2015). An 1877 report from the Treasury Department noted that at the time of

the founding, “our foreign commerce . . . attracted public attention much more than did

the comparatively small internal commerce.” Joseph Nimmo, Jr., Department of

Treasury, Report on the Internal Commerce of the United States 8 (1877). Under the

Articles of Confederation, state interference had disrupted foreign commerce, and federal

power to tax and to regulate commerce was completely absent. See Sullivan at 1962-64.

States circumvented federal trade agreements with foreign nations by negotiating their

own. 

commerce was so vital to the American economy, the Founders

sought to bolster federal power over international trade and ensure that the federal

government could “speak with one voice when regulating commercial relations with

foreign governments.” Japan 

(quotations omitted). The FCC was

designed as the “great and essential power” that the ICC merely “supplement[s].” The

Federalist No. 42, at 283 (James Madison) (J. Cooke ed. 1961); see also United States v.

Baston, 

, 668 (11th Cir. 2016), cert. denied, 

(2017).

       b. Text

       The FCC’s text reflects the Founders’ objective to provide broader authority than

under the ICC. Again, the Commerce Clause delegates power to Congress “[t]o regulate

Commerce with foreign Nations, and among the several States, and with the Indian

Tribes.” U.S. Const. art. I, § 8, cl. 3 (emphases added). The difference between “with”

                                            26
and “among” affects the scope of the FCC and the ICC. See Sullivan at 1966-67

(describing how the difference allows states to retain some lawmaking authority under

the ICC, but Congress retains full authority under the FCC and Indian Commerce

Clause).

       In Gibbons v. Ogden, the Supreme Court discussed the word “among” when it

acknowledged that Congress may regulate intrastate activity under the ICC. 

,

194 (1824). It said “[t]he word ‘among’ means intermingled with,” and “[c]ommerce

among the States[] cannot stop at the external boundary line of each State, but may be

introduced into the interior.” 

Court also recognized limits to ICC authority.

“Comprehensive as the word ‘among’ is, it may very properly be restricted to that

commerce which concerns more States than one.” 

“among” restricts

Congress from regulating “those [internal concerns] which are completely within a

particular State.” 

see also 

(“The Gibbons Court . . .

acknowledged that limitations on the commerce power are inherent in the very language

of the Commerce Clause.”).

       After its discussion of commerce “among the several States,” the Gibbons Court

contrasted commerce “with foreign nations.” 

. “[I]n regulating

commerce with foreign nations, the power of Congress does not stop at the jurisdictional

lines of several States.” 

Court did not elaborate on the word “with,” it

pointed to the textual difference in the two clauses. “Among” in the ICC restrains

Congress in regulating intrastate matters—a restraint not present in the FCC.



                                            27
       Both the FCC and the Indian Commerce Clause contain the preposition “with,”

and the Court has drawn comparisons between the two. The Indian Commerce Clause

provides broad “plenary power” to Congress in regulating commerce with Indian tribes.

United States v. Lara, 

, 200 (2004) (quotations omitted). The Court has

recognized a similar breadth of authority under the FCC. “The power to regulate foreign

commerce is certainly as efficacious as that to regulate commerce with the Indian tribes.”

Buttfield v. Stranahan, 

, 493 (1904); see also United States v. Forty-Three

Gallons of Whiskey, 

, 194 (1876) (“Congress now has the exclusive and

absolute power to regulate commerce with the Indian tribes[]—a power as broad and as

free from restrictions as that to regulate commerce with foreign nations.”).14

       c. Purpose

       Both the FCC and the ICC empower Congress to address national interests, but

federalism concerns do not constrain the FCC as they do the ICC. The ICC’s purpose is


       14
          The dissent counters that the “difference in prepositions indicates the
opposite.” Dissent Op. at 20. It posits that “[i]f the [FCC] permitted regulation of
commerce ‘among foreign nations’ . . . then Congress would be empowered to
regulate commerce among France, England, and Italy,” suggesting that “among” is
broader than “with.” 

relevant comparison is not between the FCC’s use
of “with” and a hypothetical FCC’s use of “among.” Rather, it is between the FCC’s
use of “with” and the ICC’s use of “among.” Looking at these words in context
supports our interpretation. In Gibbons, after discussing how “among” prevented
Congress from regulating “those [internal concerns] which are completely within a
particular State,” the Court stated that the phrase “with foreign nations” means “the
power of Congress does not stop at the jurisdictional lines of the several States.”

. Because “with foreign nations” allows for federal regulation of
activity within states without limitation, the Court in Gibbons suggests the phrase confers
broader authority. Moreover, the use of “with” in the Indian Commerce Clause suggests
broader authority, granting “plenary power” in regulating commerce with Indian tribes.
See 

(quotations omitted).
                                            28
to enable Congress to regulate interstate commerce in a federal system. It empowers

Congress to regulate on behalf of national economic concerns as long as the regulation

does not interfere with “truly local” affairs. 

. The ICC permits

Congress to ensure that “[i]nterstate trade [i]s not left to be destroyed or impeded by the

rivalries of local government,” The Shreveport Rate Case, 

, 350 (1914), but

federalism concerns cabin Congress’s power to regulate. “[T]he scope of the interstate

commerce power must be considered in the light of our dual system of government and

may not be extended so as to embrace effects upon interstate commerce so indirect and

remote that to embrace them . . . would effectually obliterate the distinction between what

is national and what is local . . . .” 

(quotations omitted).

       The FCC’s purpose is to enable Congress—and thus the nation—to speak with one

voice on international matters. “In international relations and with respect to foreign

intercourse and trade the people of the United States act through a single government

with unified and adequate national power.” Bd. of 

. Unlike with

the ICC, federalism concerns do not limit FCC authority. See Japan 

n.13 (stating that “Congress’[s] power to regulate foreign commerce” is not limited

by “considerations of federalism and state sovereignty”).

       d. The dissent’s view

       The dissent questions whether congressional authority is broader under the FCC

than the ICC. See Dissent Op. at 27. It concedes that the FCC is broader than the ICC in

certain situations. See 

But it disagrees we have such a situation here. First, it

argues that the FCC’s scope is broader only when applied to restricting state regulation in

                                             29
the dormant FCC context. Second, it argues that the sovereignty of other nations

constrains FCC authority.15

              i. Japan Line and the scope of FCC power

       The dissent attempts to limit Japan Line’s statement that the “scope of the foreign

commerce power [is] greater” than the interstate power. Japan 

. It

appears to argue that any suggestion in Japan Line that the FCC delegates broader

authority to Congress than the ICC is limited to the context of that case—a dormant

commerce doctrine challenge to state regulation. See Dissent Op. 16-18. Distinguishing

between the FCC’s grant of “congressional power to regulate” and the dormant FCC’s

“restriction on the States” to legislate, 

the dissent argues that the Court in Japan

Line examined the latter, not the former. But the scope of FCC authority is the same

regardless of whether a case involves a challenge to a state’s power to regulate commerce

       15
           The dissent starts with a line in Gibbons: “[Commerce] carr[ies] the same
meaning throughout the [Commerce Clause] . . . unless there be some plain
intelligible cause which alters it.” Dissent Op. at 5 (quoting 

). The dissent also “infer[s] that the same proposition applies to the word
regulate in the Clause.” 

the Indian Commerce, Foreign Commerce, and Interstate
Commerce Clauses convey the same power absent a “plain, intelligible cause.” But
even though “commerce” and “regulate” may “carry the same meaning” throughout
the Commerce Clause, each modifier—Indian, Foreign, and Interstate—and its
accompanying preposition—“among” and “with”—describe a different context. See
Atlantic Cleaners & 

(Although “the power to regulate commerce
is conferred by the same words of the commerce clause with respect both to foreign
commerce and interstate commerce . . . the power when exercised in respect of foreign
commerce may be broader than when exercised as to interstate commerce.”). As the
dissent acknowledges, for example, the Indian Commerce Clause grants Congress a
broader power than the ICC, despite the meaning of commerce and regulate
remaining the same in both provisions. See Dissent Op. at 5-6 (quoting 

).

                                              30
or to the federal government’s power to legislate. Supreme Court precedent makes this

clear.

         By way of background, the Constitution does not contain a dormant Commerce

Clause. The doctrine derives from the Commerce Clause itself, which provides that

“Congress shall have [the] power . . . [t]o regulate commerce . . . among the several

States.” U.S. Const. art. I, § 8, cl. 3. As to matters within the scope of the Commerce

Clause power, Congress may choose to regulate, thereby preempting the states from

doing so, see Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 

, 96-98 (1992); Rice v.

Santa Fe Elevator Corp., 

, 230 (1947), or to authorize the states to regulate,

see In re Rahrer, 

, 555-56 (1891); Prudential Ins. Co. v. Benjamin, 

, 429-31 (1946).

         If Congress is silent—neither preempting nor consenting to state regulation—and

a state attempts to regulate in the face of that silence, the Supreme Court, going back to

(1824) (Johnson, J., concurring), and Cooley v. Bd. of Port

Wardens, 

, 318-19 (1851), has interpreted the Commerce Clause to limit state

regulation of interstate commerce by applying the negative implications of the Commerce

Clause—“these great silences of the Constitution,” H.P. Hood & Sons, Inc. v. Du Mond,

, 535 (1949); see White v. Mass. Council of Constr. Emp’rs, Inc., 

, 213 (1983). Accordingly, the Commerce Clause is both an express grant of power

to Congress and an implicit limit on the power of state and local government. See

Comptroller of the Treasury of Md. v. Wynne, 

, 1794 (2015); Kleinsmith

v. Shurtleff, 

, 1039 (10th Cir. 2009). The dormant Commerce Clause

                                             31
doctrine extends to state regulation that may conflict with Congress’s foreign commerce

regulatory authority. See, e.g., Japan Line, 

.

       When the Supreme Court has considered dormant commerce doctrine challenges

to state regulation, it has recognized that the scope of Congress’s affirmative powers

under the Commerce Clause and the scope of commerce subject to the dormant

Commerce Clause are coextensive. See, e.g., Lewis v. BT Inv. Managers, Inc., 

, 39 (1980); Philadelphia v. New Jersey, 

, 622-23 (1978). It follows,

contrary to the dissent, that if the Supreme Court, in a dormant Commerce Clause case,

recognizes, as it did in Japan Line, that the FCC confers broader authority on Congress

than the ICC, then Congress’s authority is broader under the FCC in general.

       The dissent is correct that the Court in Japan Line “did not say that the term

commerce has a broader meaning in the foreign-commerce context,” Dissent Op. at

16, but it did say “the Founders intended the scope of the foreign commerce power to

be greater,” Japan 

. The Court’s statement thus sheds light on

the FCC’s outer limits for both its grant of congressional authority and its restriction

on states.

              ii. Sovereignty of other nations

       Although the dissent concedes that state sovereignty does not limit the FCC, it

“reject[s] the notion that . . . the power under the [FCC] to regulate conduct in foreign

nations is unconstrained,” Dissent Op. at 27, and suggests that the sovereignty of other

nations limits the FCC. The dissent presents no relevant authority—text, history, or



                                             32
precedent—that the sovereignty of foreign nations limits Congress’s authority under the

FCC.

       An enumerated power both confers and constrains legislative authority. See

Richard Primus, The Limits of Enumeration, 124 Yale L.J. 576, 578 (2014). Internal

limits “are the boundaries of Congress’s powers taken on their own terms,” 

based on the language of the text itself. For example, an internal limit on Congress’s

power under the Commerce Clause is the meaning of the word “commerce.” By contrast,

external limits “are affirmative prohibitions that prevent Congress from doing things that

would otherwise be permissible exercises of its powers.” 

the Bill of

Rights, for example, externally limit legislative authority under the Constitution’s

enumerated powers. See, e.g., 

(“[T]he scope of the interstate

commerce power must be considered in the light of our dual system of government.”

(quotations omitted)); New York v. United States, 

, 156 (1992) (“[U]nder the

Commerce Clause Congress may regulate publishers engaged in interstate commerce, but

Congress is constrained in the exercise of that power by the First Amendment.”).

       First, the FCC is an enumerated power and therefore defines and limits that power

by its own terms. The FCC’s internal limits derive from the words “commerce,”

“regulate,” and “with foreign nations.”16 The Framers did not think, nor do we, that the

FCC conferred “plenary power to police the behavior of Americans in foreign

countries.” Dissent Op. at 23. The power to regulate foreign commerce, like all of

       16
        These limits are reflected in the doctrinal framework we draw from the third
Lopez category and adapt for the foreign commerce context. See infra Part II.A.4.

                                            33
Congress’s enumerated powers, “[is] defined, and limited.” Marbury v. Madison, 

, 176 (1803). But because federalism concerns do not apply in the foreign commerce

context, congressional authority is broader under the FCC than the ICC.

       Second, the dissent’s suggestion that the sovereignty of foreign nations is an

“external limit” on the FCC finds no traction. No provision in the Constitution restricts

the FCC in this manner. Unlike federalism, an integral part of our constitutional

structure, and unlike the Bill of Rights, an express set of limits on government power,

foreign nation sovereignty appears nowhere in the constitutional scheme—either in the

Constitution itself or the cases interpreting it.17



       17
          To support its foreign state sovereignty theory, the dissent quotes The
Schooner Exchange v. McFaddon, 

(1812), and Alexander Hamilton’s The
Defence, Dissent Op. at 23-24 (quoting Schooner 

and Alexander
Hamilton, The Defence No. XXXVI (Jan. 2, 1796), in 20 The Papers of Alexander
Hamilton (Harold C. Syrett ed. 1974)), but their relevance to congressional authority
under the FCC is unclear.
       First, The Schooner Exchange established that foreign sovereigns and their
instruments may not be hailed into American courts, which hardly speaks to
congressional authority to regulate foreign commerce under the FCC. See Verlinden
B.V. v. Central Bank of Nigeria, 

, 486 (1983) (describing foreign
sovereign immunity as a matter of comity and grace and not a constitutional
restriction). Second, the dissent’s Hamilton quote comes from his thirty-sixth essay
in 1796 advocating for adoption of the proposed Jay Treaty with Great Britain and
explaining why the treaty was constitutional. The essay mentions the FCC in its
discussion distinguishing treaties and laws. But it sheds little light on our issue here,
other than perhaps Hamilton’s comment that the power to make laws for the nation
under the FCC reaches its citizens abroad. See The Defence No. XXXVI (Jan. 2,
1796), in 20 The Papers of Alexander Hamilton (Harold C. Syrett ed. 1974) (the power to
make laws “acts . . . upon its own citizens . . . without its territory in certain cases and
under certain limitations. But it can have no obligatory action whatsoever upon a
foreign nation or any person or thing within the jurisdiction of such foreign Nation.”
(emphasis added)). Mr. Durham was charged when he returned to the jurisdiction of
the United States.
                                               34
       International rules of sovereignty and jurisdiction do not affect the scope of

Congress’s authority under the Constitution. They concern issues of international law,

custom, and politics, not constitutional ones. See, e.g., Verlinden B.V. v. Central Bank of

Nigeria, 

, 486 (1983) (“The Schooner Exchange made clear . . . foreign

sovereign immunity is a matter of grace and comity on the part of the United States, and

not a restriction imposed by the Constitution.”). Whether a statute conflicts with a

foreign law or policy may implicate international law and politics, not whether Congress

may pass such a statute under the FCC.

       Moreover, the Court has long recognized Congress’s authority to pass

extraterritorial laws that apply to conduct in foreign countries. The dissent suggests any

law with application in a foreign country “would imply a diminution of [the foreign

country’s] sovereignty . . . .” Dissent Op. at 23 (quoting The Schooner 

). But the Supreme Court has recognized “Congress has the authority to enforce its

laws beyond the territorial boundaries of the United States.” E.E.O.C. v. Arabian Am. Oil

Co., 

, 248 (1991). Indeed, the application of a federal statute “so far as

citizens of the United States in foreign countries are concerned, is one of construction,

not of legislative power.” Blackmer v. United States, 

, 437 (1932).

       Finally, the statute at issue in this case, § 2423(c), does not impinge on the

sovereignty of other nations. It does not prevent another country from enforcing its child

sex abuse laws against an American traveling there. For example, in 

, Thomas Pendleton was first arrested, convicted, and sentenced in Germany—

where he had molested a 15-year-old boy—under German law. After he had served his

                                             35
19 months in a German prison, the United States then charged him under § 2423(c) for

his illicit conduct. 

       The dissent attempts to argue that congressional authority under the FCC is not

broader than under the ICC by (1) restricting Japan Line’s statement about the breadth of

FCC authority to the dormant FCC context and (2) suggesting foreign state sovereignty

as an external limit on FCC authority. We disagree. As we have shown, the Japan Line

statement is relevant, binding, and speaks to the reach of the FCC generally. See Gaylor

v. United States, 

, 217 (10th Cir. 1996) (“While these statements are dicta,

this court considers itself bound by Supreme Court dicta almost as firmly as by the

Court’s outright holdings.”). And the dissent’s foreign state sovereignty theory lacks

merit or support.

                                         ****

       Congressional authority under the FCC is broader than under the ICC. The

Founders wanted to boost foreign trade—the early nation’s economic engine—through a

broad delegation of authority to Congress under the FCC. They did so in the Commerce

Clause, distinguishing the ICC and FCC by using the terms “among” and “with,”

respectively. Though Congress may advance national interests under both clauses,

federalism interests limit congressional authority under the ICC and not the FCC.

4. The Lopez Categories in the Foreign Commerce Context

       The three Lopez categories provide a useful starting point in analyzing challenges

under the FCC. The following explains why the third category applies to this case, traces

                                            36
its evolution in the interstate commerce context, and explains how it should be analyzed

in the foreign commerce context. Because the federalism concerns limiting the third

Lopez category do not apply to the foreign commerce context, the substantial-effect

analysis is different under the FCC than the ICC. See 

(Without alteration, “the third Lopez category . . . [would be] unduly demanding in the

foreign context.”).

       a. The ICC’s three categories as a starting point

       The dissent agrees that we “can adopt the Interstate Commerce Clause

doctrine[’s] . . . three types of regulation” to consider constitutional challenges under the

FCC. Dissent Op. at 27; see also 

(finding “Lopez’s ‘time-

tested’ framework” suitable for the foreign commerce context). The few Supreme Court

decisions about the FCC also describe similar categories—channels, instrumentalities,

and activities affecting commerce with foreign nations. See Bd. of 

(upholding a tariff under the FCC based on Congress’s authority to regulate the

movement of goods in foreign commerce); Japan 

(invalidating a

state’s tax on the “instrumentalities of foreign commerce” under the dormant FCC); Bd.

of 

(recognizing Congress’s authority to legislate under the FCC

and “consider the conditions of foreign trade in all its aspects and effects”) (emphasis

added)).

       Although the three Lopez categories “provide a useful starting point in defining

Congress’s powers under the [FCC],” 

, they are not an end

point. In light of the FCC’s broader grant of authority, we consider the third Lopez

                                             37
category, how it has evolved, and whether its analysis needs to be adapted for application

in the foreign commerce context. See id.; see also United States v. Bredimus, 

, 204-08 (5th Cir. 2003) (recognizing the FCC’s broader grant of authority while also

applying the ICC framework); United States v. Cummings, 

, 1049 n.1 (9th

Cir. 2002) (same).

       b. The substantial-effect category is applicable here

       To determine which Lopez categories apply to this case, we must consider the

nature of the regulation under § 2423(c). In passing this statute, Congress criminalized

the combination of “travel in foreign commerce” and “engag[ing] in any illicit sexual

conduct.” See 18 U.S.C. § 2423(c). The third Lopez category concerns a wide range of

statutes that purport to regulate “activities” substantially affecting interstate commerce.

See 

; 

-59. Because § 2423(c) regulates

the activity of illicit sexual conduct, we analyze its constitutionality under the third

category. See 

.18

       c. Evolution of the third Lopez category

       This section traces the evolution of the third Lopez category as the foundation to

explain how it applies in the foreign commerce context. The Court has developed the

third category’s jurisprudence in three important cases—Wickard, 317 U.S 111, Lopez,


       18
         Because we determine that § 2423(c) is constitutional under the third
category, we need not analyze it under the first and second. We note that § 2423(c)
does not regulate the instrumentalities of foreign commerce and that the Third Circuit
has upheld the constitutionality of § 2423(c) as a valid regulation of the channels of
foreign commerce. See 

.

                                              38


, and Morrison, 

—and has applied it in Raich, 

, in a

manner particularly relevant to this case. Federalism considerations have played a

pivotal role.

       In Wickard, the Court upheld the Agricultural Adjustment Act’s quota for wheat

production, which had been enacted to maintain wheat prices, by applying an aggregate-

effects analysis to “those activities intrastate which so affect interstate commerce.” 317

U.S at 114, 128 (quoting United States v. Wrightwood Dairy Co., 

, 119

(1942)). Under the Act, Roscoe Filburn had exceeded his allotment, which he had

harvested for personal consumption, and was fined. 

Even though his

wheat production had only a de minimis effect on interstate commerce, the Court found

the cumulative effect of all farmers’ home-grown wheat production substantially affected

the interstate wheat market and upheld the Act. 

Through its use of this

aggregation analysis, Wickard “ushered in an era of Commerce Clause jurisprudence that

greatly expanded the previously defined authority of Congress under the Clause.” 

.

       Between 1937 and 1995, the Court did not invalidate one federal law under the

ICC. See Erwin Chemerinsky, Constitutional Law § 3.4.4 (5th ed. 2015). But in Lopez,

, it struck down the Gun-Free School Zones Act of 1990, which made it a

crime to have a gun within 1,000 feet of a school, as exceeding congressional authority

under the ICC. 

567-68. The Court determined the gun legislation attempted to

regulate in the third category and concluded that gun possession near schools did not

substantially affect interstate commerce. 

561. It noted that the statute had

                                             39
“nothing to do with commerce” and was “not an essential part of a larger regulation of

economic activity,” which distinguished this case from Wickard. 

(quotations

omitted). Further, the Court pointed out that neither the statute nor its legislative history

contained express legislative findings that the regulated activity substantially affected

interstate commerce. 

Accordingly, “[t]he possession of a gun in a local

school zone is in no sense an economic activity that might, through repetition elsewhere,

substantially affect any sort of interstate commerce.” 

       In Lopez, federalism shaped the outer limit of the substantial-effect ICC analysis.

The Court declined to aggregate the noneconomic activity of gun possession near

schools. 

It rejected the government’s arguments that gun possession near

schools would adversely affect students’ learning environments, which, in turn, would

have a negative effect on the national economy. 

The connection was too

tenuous for the Court. To have upheld the statute by “pil[ing] inference upon inference”

would mean “there [would] never [] be a distinction between what is truly national and

what is truly local.” 

If the Court were to follow such logic, the ICC would

grant Congress a general police power over such areas as education, a traditional concern

of the states. 

       Five years later, the Court in Morrison struck down the Violence Against Women

Act of 1994, which authorized victims of gender-motivated crimes to sue for 

. Although Congress had made detailed findings that gender-based

violence substantially affected interstate commerce, including deterrence of interstate

travel, the Court declined to draw the connection. 

It declined to do so

                                             40
because it regarded gender-based violence as noneconomic activity. Id at 617. The

Court discouraged “aggregating the effects of any noneconomic activity.” 

(noting that “our cases have upheld Commerce Clause regulation of intrastate activity

only where that activity is economic in nature”). As in Lopez, the Court refused to accept

the “but-for causal chain from the initial occurrence of violent crime . . . to every

attenuated effect upon interstate commerce.” 

       The Court said the federalism “concern that [it] expressed in Lopez that Congress

might use the Commerce Clause to completely obliterate the Constitution’s distinction

between national and local authority seems well founded.” 

Were the Court to

accept aggregated noneconomic activity, Congress could potentially regulate purely

intrastate matters, such as violent crime and family affairs. 

       Finally, in Raich, the Court upheld the application of the Controlled Substances

Act (“CSA”) to the home cultivation and possession of 

.

Even though the CSA contained no particularized congressional findings, the Court

determined from the legislative history and the statutory scheme that Congress could

reasonably conclude noncommercial marijuana production and possession substantially

affects the interstate market for illicit drugs and that the prohibition is an essential part of

a broader economic regulation. 

27. As discussed further below, this case

supports upholding § 2423(c).

                                            ****

       In sum, the Court has limited congressional authority under the third Lopez

category due to federalism concerns. In Lopez and Morrison, it refused to aggregate

                                               41
noneconomic activities to determine whether the regulated activity had a substantial

effect on interstate commerce. It feared that such reasoning would obliterate the

distinction between local and national interests in our system of dual federalism and

allow congressional regulation of purely intrastate matters.

       d. Adapting the third Lopez category to the FCC

       For legislation under the FCC that regulates activity, the federalism constraints

developed for ICC challenges do not apply. The Lopez category-three analysis must

therefore be modified for the foreign commerce context.

       Congressional authority under the third Lopez category extends further in the FCC

context. Because the federalism considerations underlying the ICC do not arise in the

regulation of foreign commerce, the economic and noneconomic distinction, which

otherwise discourages the aggregation of noneconomic activity, is unnecessary.

       In Lopez, Morrison, and Raich, the Supreme Court recognized limits on

Congress’s power under the ICC based on federalism concerns. To preserve “the

distinction between what is national and what is local,” 

, the

Court distinguished between commercial and noncommercial activity and between

economic and noneconomic activity. It discouraged aggregating noneconomic

activities to determine whether an activity has a substantial effect on interstate commerce.

These distinctions are therefore tied to the external federalism limit on Congress’s

ICC power.

       Federalism limits do not apply to Congress’s FCC power and therefore do not

constrain application of the substantial-effect analysis in the FCC context. “It has

                                            42
never been suggested that Congress’[s] power to regulate foreign commerce could be so

limited” by “considerations of federalism and state sovereignty.” Japan 

n.13. The FCC provides Congress broader authority to regulate activity that

substantially affects foreign commerce. See 

Relatedly, the

Supreme Court has recognized the need for broader authority because Congress must

speak with one unified voice abroad. See Bd. of 

.

       FCC analysis thus does not require the distinction between economic and

noneconomic activity. Courts consequently may aggregate both economic and

noneconomic activity—and consider congressional findings of substantial effect based on

aggregation—in determining whether Congress had a rational basis to determine that an

activity substantially affects foreign commerce and is therefore subject to federal

regulation.

5. Constitutionality of § 2423(c)

       Section 2423(c) is constitutional under the third Lopez category as applied to Mr.

Durham. Under the substantial-effect category, we must determine whether Congress

had a rational basis for concluding that travel abroad followed by noncommercial, illicit

sexual conduct with a minor, “taken in the aggregate, substantially affect[s]” foreign

commerce. 

. We conclude that Congress had such a rational basis.

       Congress passed § 2423(c) as an essential part of its broader effort to combat

international sex trafficking—specifically sex tourism. Under § 2423(b), prosecuting

individuals who traveled abroad to have illicit sex—whether commercial or

noncommercial—required intent. Because proving intent was too onerous, Congress

                                            43
omitted intent in § 2423(c) to achieve the broader regulatory goals of § 2423 aimed at

international sex tourism. Congress therefore had a rational basis to determine that travel

to a foreign country followed by illicit sexual conduct with minors substantially affects

the international sex tourism industry.

       Section 2423(c)’s (1) legislative history, (2) role in the broader statutory scheme,

and (3) jurisdictional hook together support the statute’s constitutionality. The Supreme

Court’s analysis in Gonzales v. Raich lends further support.

       a. Section 2423(c)’s legislative history supports rational basis

       By 2002, Congress had recognized the problem of sex tourism was growing

despite previous efforts to address it. See H.R. Rep. No. 107-525, at 2 (“[C]hild-sex

tourism . . . is increasing,” especially in many “developing countries”). For many

developing countries, sex tourism had become a source of income, and “[b]ecause poor

countries are often under economic pressure to develop tourism, those governments often

turn a blind eye towards [the problem of sex tourism] because of the income it produces.”

record contains statements expressing concern that the sex tourism

industry “support[s] one of the fastest growing areas of international criminal activity.”

149 Cong. Rec. 7,625 (2003) (statement of Rep. Sensenbrenner).

       The 2003 PROTECT Act sought to stop this problem. § 105, 117 Stat. at 654. It

added a statutory scheme to dismantle sex tourism. See 

to § 2423(c),

three of the Act’s other provisions also targeted the industry. Section 2423(d) punished

sex tourism operators and their businesses; § 2423(e) criminalized conspiracies or



                                             44
attempts to engage in sex tourism; and § 2423(f) defined commercial acts,

noncommercial acts, and the production of child pornography as activities of sex tourism.

       One of the PROTECT Act’s critical additions was § 2423(c). This provision

addressed a problem with one of Congress’s previous attempts to curb sex tourism—

§ 2423(b)’s stringent mens rea requirement. Section 2423(b) required the prosecution to

show an individual traveled with the “inten[t]” to engage in illicit sexual contact with

minors, which was “difficult to prove.” Hearings at 25 (statement of Daniel P. Collins,

Associate Deputy Att’y Gen., U.S. Dep’t of Justice). Section 2423(c) closed this gap; it

targeted “persons who travel to foreign countries to engage in illegal sexual relations with

minors” regardless of intent. 149 Cong. Rec. 7,633 (2003) (statement of Rep.

Sensenbrenner).

       The dissent correctly observes that congressional findings “can inform the

analysis” but also are “not dispositive.” Dissent Op. at 41. The dissent also accurately

notes that the PROTECT Act did not contain congressional findings on the impact of

noncommercial sex on foreign commerce. See 

But “the absence of

particularized findings does not call into question Congress’[s] authority to legislate.”

. Courts may look to the legislative history more broadly in

determining whether Congress had a rational basis to conclude that an activity

substantially affects foreign commerce. See 

       b. Section 2423(c) is an essential part of a broader statutory scheme

       Section 2423(c) not only bolstered § 2423(b), it joined a long lineage of legislation

aimed at sex trafficking. Beginning with the Act of 1907, the United States banned the

                                             45
“importation” of foreign prostitutes into the United States. § 3, 34 Stat. at 899. Congress

expanded its efforts to end international sex trafficking by passing the Mann Act in 1910

to prevent interstate trafficking, 36 Stat. 825; the Protection of Children Against Sexual

Exploitation Act in 1978 to prevent the trafficking of boys as well as girls, § 3, 92 Stat. at

8; and the Child Sex Abuse and Pornography Act in 1986 to prevent the noncommercial

sexual exploitation of children, § 5, 100 Stat. at 3511. The 1994 Violent Crime Control

and Law Enforcement Act, § 160001(g), 108 Stat. at 2037, and the 2003 PROTECT Act,

§ 105, 117 Stat. at 654—adding § 2423(b) and § 2423(c) to 18 U.S.C. § 2423,

respectively—were Congress’s most recent attempts to combat sex trafficking through

criminalization of sex tourism.

       The pathway to the enactment of § 2423(c) manifests a purpose to address the

foreign commerce problem of the international sex trade. Unlike the gun possession

provision in Lopez, which was “not an essential part of a larger regulation of economic

, Congress viewed § 2423(c) as a necessary part of the broader

effort to combat the sex tourism market. It determined that 2423(b)’s gap limited

18 U.S.C. § 2423’s efficacy. Thus, in criminalizing illicit sexual conduct abroad,

whether commercial or noncommercial and regardless of intent, Congress determined

that such activity, in the aggregate, substantially affects foreign commerce. Congress had

a rational basis to conclude that the conduct § 2423(c) addresses substantially affects

foreign commerce—in this instance, the international sex trade.

       The dissent argues that “the great bulk of [the long history of federal legislation

governing interstate and international travel for sex offenses] is irrelevant because it does

                                             46
not speak to the specific regulation at issue here.” Dissent Op. at 42. But this history is

the predicate for showing that § 2423(c) is an essential part of the broader regulatory

scheme. Although we do not rely on formal legislative findings for this point, we

properly rely, as have other courts, on the legislative history leading up to and

including the enactment of § 2423(c). See 

(discussing drug

legislation from 1906 to 1970, which “culminated in the passage of” the act

containing the CSA); Fullilove v. Klutznick, 

, 475 (1980) (plurality

opinion) (stating “[t]he legislative history of the [statute] shows that there was a

rational basis for Congress to conclude that the [regulated activity] . . . has an effect

on interstate commerce” and that “Congress could take necessary and proper action

to remedy the situation”). The legislative history demonstrates that Congress

regarded § 2423(c) as an essential part of the broader regulation resulting from a long

history of combatting international sex tourism.19


       19
          The dissent also suggests that there must be congressional findings
demonstrating that a larger “regulatory scheme could be undercut unless the
intrastate activity were regulated.” Dissent Op. at 40 (quoting 

). Because, the dissent contends, Congress made no findings that the “failure to
control noncommercial illicit sexual conduct would ‘undercut’ [the regulation of
commercial sex],” 

§ 2423(c) was not an essential part of the broader
regulation. We disagree.
       First, as already stated, “the absence of particularized findings does not call
into question Congress’[s] authority to legislate.” 

. The Court
has never required legislative findings, let alone findings showing that a regulatory
scheme would be undercut without regulation of a particular activity.
       Second, the legislative history demonstrates that § 2423(c) was an essential
part of the broader regulatory scheme. The intent requirement in § 2423(b) was
undercutting sex tourism prosecutions. By shedding the mens rea requirement,
Congress enabled the prosecution of individuals who travel abroad and have illicit
sex—whether commercial or noncommercial—with minors. Congress could
                                             47
       c. Section 2423(c)’s jurisdictional element supports rational basis

       The dissent recognizes that § 2423(c) contains an “express jurisdictional element”

tying § 2423(c) to foreign commerce. Dissent Op. at 45. In addition to “engag[ing] in

illicit sexual conduct,” § 2423(c) requires “travel[] in foreign commerce” as an element

of the offense. 18 U.S.C. § 2423(c). An express element limits the statute’s reach by

linking the prohibited illicit activity to foreign commerce. See 

; 

. The dissent properly points out that “[a]

jurisdictional hook is not, however, a talisman that wards off constitutional challenges.”

See Dissent Op. at 45 (quoting 

). But § 2423(c)’s jurisdictional

hook nonetheless points to Congress’s explicitly limiting the statute to “foreign

commerce” and to having a rational basis for its enactment. Although the presence of a

jurisdictional element is “neither necessary nor sufficient,” it is “certainly helpful” in

determining whether “the prohibited activity has a substantial effect on” foreign

commerce. 

.

       d. Raich supports rational basis for § 2423(c)

       The Supreme Court’s 2005 decision in Gonzales v. Raich supports the foregoing

analysis. After Lopez and Morrison, Raich was the first Supreme Court case to uphold a

federal statute on interstate commerce grounds.

       The CSA classified marijuana as a Schedule I drug, making its manufacture,

distribution, or possession a criminal offense. Raich, 545 U.S.at 14; see 21 U.S.C.


rationally believe that without § 2423(c), these same individuals would continue to
fuel the international sex tourism market.
                                              48
§§ 812(c), 841(a)(1). State law allowed California residents Angel Raich and Diane

Monson to cultivate or possess marijuana for personal medical purposes. 

. They challenged § 841(a)(1) of the CSA, arguing it exceeded congressional

authority under the ICC as applied to them. 

see 21 U.S.C. §§ 812(c), 841(a)(1)

(2000). The Court upheld § 841(a)(1) as applied to Ms. Raich and Ms. Monson, finding

it was part of a larger regulation of economic activity and that Congress had a rational

basis to conclude that home-grown marijuana for medical use substantially affected

interstate commerce. 

; see 21 U.S.C. § 812 (2000) (CSA section

categorizing controlled substances); 

(CSA sections specifying

requirements for registering, producing, labeling, packaging, and recordkeeping for

controlled substances).

       The Court upheld the CSA despite the lack of a congressional finding concerning

the impact of noncommercial marijuana cultivation on interstate commerce. 

. The Court stressed that it need only determine whether Congress had a

“rational basis” for determining that these activities taken in the aggregate substantially

affect interstate commerce. 

It had “no difficulty concluding that Congress had

a rational basis for believing that failure to regulate the intrastate manufacture and

possession of marijuana would leave a gaping hole in the CSA.” 

determined that the provision is part of the CSA’s larger regulatory scheme that regulated

the market for controlled substances. 

, 20-21. Section 841(a)(1) was one part of

the CSA, which classifies drugs into five schedules, each with a distinct set of controls.

The CSA’s purpose is to control the supply of and demand for both legal

                                             49
and illegal drugs. See 

Thus, the Court determined that personally cultivated

marijuana for medical purposes, taken in the aggregate, substantially affected the illicit

market for drugs, and was subject to regulation under the ICC. 

28-29.20

       Two aspects of the Raich analysis are noteworthy.

       First, the Court observed that the CSA was the product of decades of legislation.

Congress “set out to enact legislation that would . . . provide meaningful regulation over

legitimate sources of drugs to prevent diversion into illegal channels.” 

Like

Congress’s early attempts to regulate sex trafficking, Congress attempted to regulate the

national drug market early on, passing the Pure Food and Drug Act of 1906 and the

Harrison Narcotics Act of 1914. 

attempted to regulate the market for


       20
          We have recently interpreted Raich as supporting congressional “regulation
of noncommercial, purely intrastate activity that is an essential part of a broader
regulatory scheme that, as a whole, substantially affects interstate commerce (i.e., has
a substantial relation to interstate commerce).” 

. In
PETPO, we upheld the provisions of the Endangered Species Act (“ESA”) that allow
the U.S. Fish and Wildlife Service (“FWS”) to promulgate regulations protecting
threatened or endangered species. 

Under these provisions, the FWS
prohibited the “take”—or the harassment, harm, pursuit, hunting, shooting,
wounding, killing, trapping, capturing, or collecting—of Utah prairie dogs, a purely
intrastate species, on nonfederal lands. 

organization of property
owners affected by the regulation, argued that Congress exceeded its authority under
the ICC in authorizing the FWS to promulgate regulations prohibiting the “take” of
prairie dogs—a noncommercial activity. 

       We upheld the provisions because, under Raich, they were “an essential part of
the ESA’s broader regulatory scheme which, in the aggregate, substantially affects
interstate commerce.” 

Even though the regulation protecting prairie
dogs concerned noncommercial activity, we recognized that Congress had a rational
basis to conclude that the regulated activity had a substantial relationship to interstate
commerce. “Congress had a rational basis to believe that providing for the regulation
of take of purely intrastate species like the Utah prairie dog is essential to the ESA’s
comprehensive regulatory scheme.” 

                                             50
marijuana with the Marihuana Tax Act in 1937. 

From these piecemeal

attempts, Congress finally passed the Comprehensive Drug Abuse Prevention and

Control Act of 1970—which contained the CSA—to regulate the illegal and legal drug

markets. 

       Congress followed a similar course in passing the PROTECT Act, building on

previous attempts to regulate the international market for sex trafficking. Beyond

criminalizing the transport of prostitutes under the Mann Act, for example, the

PROTECT Act attempted to address sex tourism comprehensively. It also closed gaps by

targeting sex tourism operators and not requiring intent for travelers who engage in illicit

sex. Just as legislative lineage supported a rational basis for congressional action in

Raich, it also does so for § 2423(c).

       Second, the Court in Raich examined the home-grown marijuana provision within

the broader statute and recognized that it was part of the CSA’s larger scheme to regulate

commerce. 

(noting the CSA was a “valid statutory scheme” regulating the illicit

drug market). It was “of no moment” that this larger scheme both envisioned and

captured some purely intrastate activity. 

Because § 841(a)(1) was one

component of a regulatory framework, the Court “refuse[d] to excise individual

components of that larger scheme.” 

Court upheld the CSA’s regulation of

noncommercial cultivation of medical marijuana as a valid part of a larger scheme to

regulate the controlled substances market.

       Similarly, § 2423(c) is part of the PROTECT Act’s larger scheme to combat sex

tourism. Congress passed § 2423(c) as a vital component to regulate the illicit

                                             51
international market for sex. The § 2423 provisions work together to curb the trafficking

and sexual exploitation of minors abroad. Section 2423(a) targets the trafficking of

minors across state and international borders; section 2423(b) targets those who travel

abroad with the intent to engage in illicit sexual acts with minors; section 2423(c) targets

those who travel without intent to engage in such acts; and § 2423(d) targets those who

operate businesses that facilitate such illicit sexual conduct abroad. Together, the

provisions curb the supply and demand in the sex tourism industry. That § 2423(c)

captures intranational, noncommercial activity is “of no moment,” see 

because

it is a part of a statutory structure aimed at regulating foreign commerce—the

international sex tourism industry.21

       e. Rational basis standard

       Rational basis is a deferential standard. The dissent mistakenly suggests that

because the regulated activity must have a substantial effect on commerce and because

noncommercial sex is noneconomic, such an effect is impossible. See Dissent Op. at 37-


       21
           The Raich Court recognized that Congress exercised its authority under the ICC
and the Necessary and Proper Clause to pass “comprehensive legislation to regulate” the
illicit substances market. 

. “Congress was acting well within its
authority to ‘make all Laws which shall be necessary and proper’ to ‘regulate
Commerce . . . among the several States.’” 

Const. art. I, § 8, cl. 3 and
cl. 18). Because Congress had “a rational basis for believing that failure to regulate the
intrastate manufacture and possession of marijuana would leave a gaping hole in the
CSA,” the regulation of noncommercial, intrastate activity—home cultivation and
possession of medical marijuana—was “of no moment.” 

refused to
“excise individual components of that larger scheme.” 

therefore “necessary
and proper” under Congress’s ICC power to regulate the noncommercial, intrastate
activity. 

Government does not rely on the Necessary and Proper Clause
to defend § 2423(c), we do not address that provision.

                                             52
38. The dissent criticizes the government for its failure to show that “noneconomic

sex abuse will affect the market in commercial sex trafficking,” 

or that the

“regulation is ‘an essential part’ of the regulation of commercial sex tourism,” 

It demands “data [] that [show] prosecutions of noncommercial child sexual abuse

reduce the incidence of commercial abuse” because noncommercial sex is not a “fungible

commodit[y].” Id.22

      But under the proper standard of review, “[w]e ask not whether, as judges, we

believe the challenged statute has a substantial effect on interstate commerce, but

whether Congress could reasonably have thought so.” 

. As

the Court emphasized in Raich: “[W]e stress that the task before us is a modest one.

We need not determine whether respondents’ activities, taken in the aggregate,

substantially affect interstate commerce in fact, but only whether a ‘rational basis’

exists for so concluding.” 

. Here, the legislative history, the

overall statutory scheme, and jurisdictional hook all evince that Congress had a

rational basis for concluding that, in the aggregate, Americans who travel abroad and

      22
          The dissent emphasizes the economic and noneconomic distinction. See
Dissent Op. at 34 (“The fact that noncommercial nonconsensual sexual activity is not
economic activity is extremely important, probably dispositive, in determining
whether it is subject to the third category of regulation of commerce.”). But this
distinction arose from federalism concerns in the ICC context, and those concerns do
not apply here.
       Even in the ICC context, the Court has never “adopt[ed] a categorical rule
against aggregating the effects of any noneconomic activity.” 

. The Court has upheld congressional regulation of noncommercial activity, see

, and this court has upheld laws regulating what appeared to
be noneconomic activity. See 

(upholding the protection of
prairie dogs under the ESA).

                                           53
have noncommercial sex with minors substantially affect the international sex

tourism market.23 Congress determined, after years of experience with the evolving

legislative framework, that it needed § 2423(c) to complete the package. We cannot

say this choice was unreasonable.

6. Legal Landscape

      Both of the circuits that have examined the constitutionality of § 2423(c)’s

criminalization of noncommercial illicit sexual conduct abroad under the FCC have

upheld it. See 

(the Fourth Circuit upholding § 2423(c)

because of its “demonstrable” effect on foreign commerce); 

(the Third Circuit upholding § 2423(c) because of its express connection to the channels

of foreign commerce); see also United States v. Flath, 

, 956 (E.D.

Wis. 2012) (upholding under the FCC); United States v. Martinez, 

,

808 (W.D. Tex. 2009) (upholding under the FCC and the necessary and proper clause).

But see United States v. Al-Maliki, 

, 791-92 (6th Cir. 2015) (not deciding the

issue, but expressing doubt about § 2423(c)’s constitutionality under the FCC).24


      23
          The dissent relies on the three-factor framework laid out in Patton, but
eschews a holistic analysis. It recognizes that three factors—(1) the activity’s
relation to commerce, (2) congressional findings, and (3) jurisdictional hook—are
relevant to our substantial-effect analysis, see Dissent Op. at 35-36, but analyzes
them separately from each other, see 

Here, we consider the legislative
history, the regulatory scheme, and the jurisdictional hook together in “answer[ing]
[the] question” of “whether Congress had a rational basis to find that the regulated
activity, taken in the aggregate, would substantially affect interstate commerce.”

; see also 

, 22-23.
      24
         The Ninth Circuit also has upheld § 2423(c) under the FCC in a challenge to
the provision’s prohibition of commercial illicit sexual conduct. See Clark, 

       Two district court opinions in the District of Columbia have held otherwise. See

United States v. Reed, No. CR 15-188 (APM), 

, at *14 (D.D.C. July

27, 2017) (unpublished) (finding § 2423(c)’s application to noncommercial conduct

unconstitutional under the FCC); United States v. Park, 

, 179 (D.D.C.

2018) (using Reed, 

, to come to the same conclusion). But, unlike

here, these cases concerned individuals charged under § 2423(c)’s “residing clause.” See

18 U.S.C. § 2423(c) (“Any United States citizen . . . who travels in foreign commerce or

resides, either temporarily or permanently, in a foreign country, and engages in any illicit

sexual conduct . . . .” (emphasis added)). The district courts lacked a jurisdictional hook

to “foreign commerce,” which is present in our case. See, e.g., Reed, 

,

at *12. Moreover, the district courts emphasized the sexual abuse at issue was

noneconomic and its connection to international sex tourism was too attenuated to have a

“substantial effect” on foreign commerce. See, e.g., 

to this conclusion,

they focused on a lack of particularized legislative findings and history. As explained

above, the Supreme Court has never required “particularized findings,” and such a

limited focus overlooks the legislative history laid out in this opinion and § 2423(c)’s

place in a broader regulatory scheme. 

; see also Heart of Atlanta

Motel, Inc. v. United States, 

, 252 (1964) (upholding the Civil Rights Act

even without congressional findings).




1100. It also recently interpreted the language of § 2423(c) without addressing its
constitutionality. See United States v. Pepe, 

(9th Cir. 2018).
                                             55
7. Conclusion

       In passing § 2423(c), Congress had a rational basis to conclude it was regulating

activity that substantially affects foreign commerce. In particular, it could reasonably

decide that foreign travel followed by noncommercial sex with minors—in the

aggregate—substantially affects the international market for sex tourism. We therefore

uphold § 2423(c) as applied to Mr. Durham as a permissible exercise of congressional

authority under the FCC.

       Section 2423(c)’s legislative history, place in the broader regulatory scheme, and

jurisdictional hook indicate Congress’s rational basis for determining the activity’s

substantial connection to foreign commerce. In 2002, the congressional sponsors of

§ 2423(c) recognized that the sex tourism industry was expanding and that the

“growing . . . industry” fueled human sex trafficking, a massive illicit international

market. 149 Cong. Rec. 7,625 (2003) (statement of Rep. Sensenbrenner). Congress

attempted to curtail such markets with the PROTECT Act in 2003. Section 2423(c)—and

its accompanying provisions—target sex tourists and operators, commercial and

noncommercial acts, and travel with and without intent to engage in illicit sexual acts.

Specifically, § 2423(c) closed the enforcement gap created by § 2423(b)’s intent

requirement. Congress had a rational basis to conclude that, without § 2423(c), the

failure to capture such behavior would substantially affect foreign commerce—here sex

tourism.

       Thus, under the FCC, Congress permissibly exercised its authority in passing

§ 2423(c).

                                             56
                            B. Issue Two: Brady Claim

      In his supplemental motion for new trial under Federal Rule of Criminal

Procedure 33, Mr. Durham alleged that the Government suppressed evidence

favorable to the accused in violation of Brady v. Maryland, 

(1963). The

district court denied the motion, and Mr. Durham appeals the Brady ruling. We

affirm because Mr. Durham has not shown by a preponderance of the evidence that

nondisclosure of the evidence prejudiced his case.

1. Additional Procedural Background

      a. Trial testimony

      At trial, Dr. Alawiya Abdulkadir Mohamed testified about the victims’

medical records. ROA, Vol. 12 at 1178 (TT 564). In June 2014, Dr. Abdulkadir

supervised the outpatient clinic in Kenya where the victims were examined. 

(TT 565-66). Although she did not examine the children, she reviewed the

Post Rape Care (“PRC”) forms prepared by the clinician who did on June 18, 2014.

1188-89 (TT 568-69, 574-75). Dr. Abdulkadir prepared Medical

Examination Reports based on the PRCs. 

(TT 569). Her testimony

included the following:

             Q. [C]an you explain to the jury what the hymen is on a
                female?
             A. Okay. So the hymen is a membrane which covers the
                vagina and it’s -- it doesn’t fully cover the vagina, so
                there’s a portion which is slightly open to allow the
                menstrual flow. So it’s a membrane which is usually
                most people get born with it and it’s usually present in
                kids and -- yes.
             Q. If a hymen is perforated, what does that mean?

                                          57
             A. Okay. We -- the hymen could be perforated due to
                several reasons. One of them would be due to sexual
                assault. The others would be due to extraneous
                exercises involving the groin region or falling astride,
                like falling on a wall, having bicycle accidents and
                horseback riding. Those are the common things which
                break the hymen.

(TT 571-72). She further testified that five of the six girls had a

perforated hymen and that would not be normal for girls their ages. 

(TT 573-74). On cross-examination Dr. Abdulkadir testified:

             Q. Now, you talked a lot about a perforated hymen?
             A. Yes.
             Q. Now, a hymen -- a hymen can be in very different
                shapes; is that right?
             A. True.
             Q. It can be flat; is that right?
             A. Yes.
             Q. It can be round, some are bigger and some are smaller?
             A. Bigger in terms of?
             Q. Of their size. Some women will have a bigger hymen
                than others?
             A. It’s a membrane, so it’s more thickness than bigger, it’s
                not --
             Q. More thickness?
             A. The dimensions are not three-dimensional.
             Q. If a woman has not started menstruating yet, would her
                hymen -- it’s called non-estrogenized; is that right?
             A. Yes.
             Q. And that means that the hymen is more rigid and hard?
             A. Yes.
             Q. And so that would be the situation for children who
                have not yet hit their menstrual cycle; is that right?
             A. Yes.

(TT 584-85); see also 

(TT 606-07) (answering in the

negative when asked if a 7, 6, 13 or 11-year-old should have a perforated hymen).



                                           58
      Dr. Abdulkadir testified that even if the assaults occurred a month before the

examinations, the exams were conducted because “[t]he hymen doesn’t come back.

So we’re looking out for the hymen. It doesn’t regenerate, so --.” 

(TT

600), see also 

(TT 607). She agreed that “there’s no way you can be

certain that Mr. Durham committed the assaults.” 

(TT 601); see also 

(TT 608).

      Later in the trial, the defense called Lisa Dunson, a sexual assault nurse

examiner, who was present in the courtroom when Dr. Abdulkadir testified. 

81, 1585 (TT 967, 971). Nurse Dunson testified that all hymens have a hole in

them, that preadolescent children do not usually have physical injuries following a

sexual assault, and that hymens have different shapes and sizes. 

94-96 (TT

980-82). As for the term “perforated hymens,” she testified:

             Q. Now, what about -- what was the term used on the
                medical records as far as the hymen; do you recall?
             A. Yes. They used the word “perforated.”
             Q. And the examiner who conducted -- who viewed the
                children didn’t testify. What in your mind is -- does
                that mean, “perforated hymen”?
             A. Truthfully, I don’t know. We don’t use that term
                anymore. It hasn’t been used since I’ve been doing
                exams, which is since 2003. I think when the general
                population hears the word “perforated,” we think of a
                tear or a hole that’s not supposed to be there, so I don’t
                know what that means because I don’t use that.

                                                ***

             Q. So “perforated” could mean a tear, it could mean just
                the natural opening of the hymen. We don’t know at
                this point; is that right?
             A. I wouldn’t speculate what that means.

                                          59


96-97 (TT 982-83). She conceded that the term “perforated hymen” might

be commonly used elsewhere, and that it appears in the Kenyan protocol for sexual

assault examinations. 

21, 1626 (TT 1007, 1012). Although the term had not

been used since she started doing examinations in 2003, she said it was once used in

the United States. 

26 (TT 1012).

      Nurse Dunson testified, contrary to Dr. Abdulkadir, that hymen tissue can

repair itself. 

98 (TT 984). She had reviewed an article that said “minor

abrasions and lacerations usually heal within about three to four days.” 

that “statistics say that 90 to 95 percent of all children exams, regardless of what the

disclosure, are normal.” 

99 (TT 985). She also testified that in examinations

of children who have been sexually assaulted, “there usually isn’t an injury. Children

are usually not injured.” 

16 (TT 1002). She also agreed that a “positive

finding” for five of the six children would be unlikely. 

17-18 (TT 1003-04).

She said that an acute injury of the hymen is from blunt force trauma. 

25

(TT 1011).

      b. Supplemental motion for new trial

      On October 2, 2015, Mr. Durham moved for leave to file a supplemental

motion for a new trial, which was granted, and he filed his memorandum in support

on October 27. Mr. Durham alleged the Government violated his right to due process

under Brady because the prosecutor in the case, Assistant United States Attorney




                                            60
(“AUSA”) Robert Don Gifford, failed to disclose evidence favorable to the accused.

ROA, Vol. 3 at 505-06.25

      The supplemental motion stemmed from two memoranda that the Oklahoma

County District Attorney, David Prater, sent to the district court after the trial. On

September 28, 2015, the court sent them to the parties’ counsel. ROA, Vol. 3 at 812.

The memoranda recounted telephone conversations on the evening of June 15, 2015,

the day the prosecution rested its case-in-chief.

      On August 16, 2015, Oklahoma County Assistant District Attorney (“ADA”)

Gayland Geiger wrote the first memorandum. It described his June 15 telephone

conversation with AUSA Gifford:

             I asked Gifford about the facts of his case. He said there
             were 5 or 6 or 7 (don’t remember the exact number) of
             female victims ages 6 to 14. All but one of them had a
             perforated hymen. He indicated this evidence was
             presented by the government’s medical witness. . . . A
             reviewing doctor actually testified to the perforated
             hymens. He said as best as they could tell, the sexual
             assault exams were done about 6 weeks after the abuse
             occurred. He said the defense was calling a sexual assault
             expert, and he did not know what the expert would say. . . .
             I told him that I have not heard the term perforated hymen.
             I told him it is very unusual to have physical findings in
             children; that it is extremely unusual to have physical
             findings 6 weeks after the event; that even if there were an
             injury, it would have healed in that amount of time; and,
             that it is extremely unusual and almost unheard of to have
             physical findings in 5 of 6 or 6 of 7 victims. I called
             [Physician Assistant] Donaldson and joined her for a three-

      25
         Mr. Durham also alleged in his initial motion for new trial that the
Government violated Brady because it suppressed video data of his conversation with
Ms. Menja, in which he confessed to certain allegations against him. The district
court rejected this claim, and Mr. Durham has not pursued it on appeal.
                                           61
              way conversation with Gifford. She told him the same
              things. We together told him that there are legitimate
              medical studies showing even pregnant girls have normal
              exams. Donaldson explained the anatomy and that a
              perforated hymen is a normal finding. . . . I expressed my
              opinion to him that [] he cannot cross examine the defense
              expert in good faith on those issues, because medical
              research and the legitimate medical community share those
              opinions. I encouraged him to instead contact Dr. Brown
              to be a rebuttal witness to use to say even if the African
              exams are incorrect, it still does not mean sexual abuse did
              not occur.

       At ADA Geiger’s request, Dr. Ryan Brown, Chair of the Child Protection

Committee at the University of Oklahoma Children’s Hospital, wrote the second

memorandum about his discussions with AUSA Gifford on the night of June 15:

              We had discussed what a performed hymen meant to me. I
              had told him that to me, it meant that the hymen had a hole
              in it, which is normal. I didn’t know if that was what the
              African physician had meant by it, but we don’t normally
              use that language to describe hymens here in the US. . . . I
              had also stated that an imperforate hymen, is still normal,
              but is actually not a common finding. He had stated to me
              that the African physician had stated that he had found 5 of
              the 6 young ladies in the case to have perforated hymens
              and that the physician was calling that an abnormal
              finding. I spoke with him that actually it is rare to have
              findings in sexual abuse exams, especially in your
              preadolescent children. I told him that about 95% of the
              time we will have a normal finding, and of the 5%, 2/3 of
              the evidence is found on the clothing or bed. I also
              reiterated that a normal exam does not rule in or rule out a
              sexual encounter. Also, that it would be quite rare for 5
              individuals to have the same findings on exam in regards
              to a sexual assault, unless the perpetrator was using some
              type of instrumentation, I also spoke about how quickly
              findings on exams can heal, IF there were findings to begin
              with. . . . Again I stated that it would be a small chance to

                                           62
              have abnormal findings on a preadolescent sexual abuse
              exam, and to have multiple children with the same finding,
              other than normal, would be rare. I also stated again that
              time is of the essence and rape exams done after a week
              could be normal even if there was a finding to begin with
              since the tissue heals so quickly.

       In his supplemental motion, Mr. Durham argued that AUSA Gifford had failed

to disclose the information he learned in his June 15, 2015 conversations in violation

of Brady. In opposition, the Government argued there was no Brady violation

because the information at issue was available to the defense and because it was not

material in light of Nurse Dunson’s testimony.

       The district court denied the Brady claim based on the Government’s second

argument. It first said that, although the information provided by Dr. Brown was

available from other sources, the fact it came from Dr. Brown was not. But the court

concluded that the Government’s failure to apprise Mr. Durham of Dr. Brown’s

statements did not deprive him of a fair trial because of Nurse Dunson’s “vigorous

opposition” to Dr. Abdulkadir’s testimony. ROA, Vol. 3 at 810.26


       26
          The motion also alleged that AUSA Gifford had failed to correct Dr.
Abdulkadir’s false testimony in violation of Napue v. Illinois, 

(1959).
ROA, Vol. 3 at 500-04. The district court denied the Napue claim, concluding there
was no evidence that Dr. Abdulkadir committed perjury rather than testified
inconsistently with Mr. Durham’s expert, Nurse Dunson. 

On appeal,
Mr. Durham does not present a Napue argument. He concedes that he “cannot prove
that Dr. Abdulkadir herself knew [her testimony] was false” and thus that his Napue
claim is foreclosed by United States v. Garcia, 

(10th Cir. 2015). Aplt.
Reply Br. at 6 n.1; see 

(“A Napue violation occurs when
(1) a government witness committed perjury, (2) the prosecution knew the testimony
to be false, and (3) the testimony was material.” (emphasis added)); see also United
                                          63
2. Analysis

      a. Standard of Review

      “Our review of a Brady claim asserted in the context of a Rule 33 motion for a

new trial is de novo, with any factual findings reviewed for clear error.” United

States v. Torres, 

, 1281 (10th Cir. 2009); see United States v. Garcia,

, 1205 (10th Cir. 2015). “[W]hether suppressed evidence is material is

a mixed question of law and fact which we also review de novo.” Douglas v.

Workman, 

, 1172 (10th Cir. 2009).

      b. Legal Background

      Under Federal Rule of Criminal Procedure 33, “the court may vacate any

judgment and grant a new trial if the interest of justice so requires.” Mr. Durham’s

Rule 33 motion was based, in part, on an alleged Brady violation.

      In Brady, the Supreme Court held “that the suppression by the prosecution of

evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment, irrespective of the good faith or

bad faith of the 

. The Court later held that the duty to

disclose such evidence applies even when the accused has made no request. United

States v. Agurs, 

, 107 (1976). Brady applies to impeachment evidence, or

evidence affecting witness credibility, “[w]hen the reliability of a given witness may

well be determinative of guilt or innocence.” Giglio v. United States, 

,

States v. Caballero, 

, 1244 (10th Cir. 2002) (“Even postulating tension
between [a witness]’s responses on direct and cross, such inconsistency alone does
not establish the knowing use of perjured testimony.” (emphasis added)).
                                           64
154-55 (1972) (quotations omitted); see also United States v. Bagley, 

,

676-77 (1985).

      To establish a Brady violation, “[1] [t]he evidence at issue must be favorable

to the accused, either because it is exculpatory, or because it is impeaching; [2] that

evidence must have been suppressed by the State, either willfully or inadvertently;

and [3] prejudice must have ensued.” Strickler v. Greene, 

, 281-82

(1999); see United States v. DeLuna, 

, 1534 (10th Cir. 1993). The

defense needs to establish these elements by a preponderance of the evidence.

McCormick v. Parker, 

, 1246 (10th Cir. 2016). In Strickler, the Court

said the third element concerns “whether petitioner has established the prejudice

necessary to satisfy the ‘materiality’ 

. The evidence is

material and its nondisclosure is prejudicial “only if there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding

would have been different.” 

; see also Kyles v. Whitley, 

, 433-434 (1995); 

.

      c. No prejudice for a Brady violation

      The information that AUSA Gifford learned from the June 15 conversations

was favorable to the defense, and he did not disclose the conversations to defense

counsel. 27 But even assuming Mr. Durham could show the first two elements of



      27
       In this regard, the concerns of DA Prater and ADA Geiger were well taken.
See ROA, Vol. 3, at 813-15.

                                           65
Brady were met,28 he has not established prejudice because the information was not

material in light of Nurse Dunson’s testimony. We therefore affirm the district

court’s denial of Mr. Durham’s Brady motion.

      AUSA Gifford’s June 15, 2015 conversations with ADA Geiger, Ms.

Donaldson, and Dr. Brown were was not material in light of the trial record. On June

16, Mr. Durham called Nurse Dunson to testify. She said there are “usually not

injuries with children” following a sexual assault, ROA, Vol. 12 at 1598 (TT 984),

that a physical finding was less likely if the exam occurred five days after an assault,

(TT 983), that “minor abrasions and lacerations usually heal within about

three to four days,” 

(TT 984), that “perforated hymen” was an antiquated

term no longer in use, 

(TT 1012), and that “statistics say that 90 to 95

percent of all children exams, regardless of what the disclosure, are normal,” 

(TT 985). Nurse Dunson therefore testified to the information AUSA Gifford

learned during his June 15 conversations, including the rarity of physical findings in

cases of child sexual assault and that lacerations to the hymen heal quickly. ROA,

Vol. 3 at 813-15.

      As the district court said, Mr. Durham has not shown prejudice due to “Ms.

Dunson’s vigorous opposition to Dr. Abdulkadir’s testimony.” ROA, Vol. 3 at 810.

The jury received the information from Mr. Durham’s own expert, Nurse Dunson.


      28
         The Government argues it did not suppress because the defendant knew or
could have acquired the information from another source. Aplee. Br. at 22. Due to
our disposition of the Brady issue on lack of prejudice, we do not address this
argument.
                                           66
She provided testimony that was the same as or comparable to the information from

Dr. Brown about perforated hymens, the likelihood of findings during sexual abuse

examinations, that normal findings do not rule out sexual assault, the rarity of the

same findings in multiple children, and the speed of healing. Compare ROA, Vol. 3

at 816 with ROA, Vol. 12 at 1595-96, 1598-99, 1616-18, 1626, 1631 (TT 981-82,

984-85, 1002-04, 1012, 1017).

      Mr. Durham cannot show prejudice because Nurse Dunson rebutted each of

Dr. Abdulkadir’s points that may otherwise have been impeached by the information

that AUSA Gifford learned in the June 15 conversations. Indeed, Mr. Durham admits

on appeal that Nurse Dunson’s testimony “largely rebutted Dr. Abdulkadir’s claims.”

Aplt. Br. at 23-24. Taking the differences between the experts’ opinions into

account, we still conclude that there was no Brady violation because Mr. Durham has

not shown “a reasonable probability that, had [Dr. Brown’s information] been

disclosed to the defense, the result of the proceeding would have been different.”

.

      We therefore affirm the district court’s denial of the part of the supplemental

motion for a new trial alleging a Brady violation.

         C. Issue Three: Mr. Durham’s Statements about Child Pornography
                               and Homosexuality

      Mr. Durham argues that the district court’s admission of his out-of-court

statements that he had struggled with child pornography and homosexuality violated

(1) Federal Rule of Evidence 404(b) because the statements were used to show


                                           67
propensity to commit the charged offenses, (2) Federal Rule of Evidence 401 because

the statements were irrelevant, and (3) Federal Rule of Evidence 403 because the

statements were unfairly prejudicial. Because the district court did not abuse its

discretion, we affirm.

1. Standard of Review

        We review the admission of evidence for abuse of discretion “and will not reverse

if the district court’s ruling falls within the bounds of permissible choice in the

circumstances and is not arbitrary, capricious or whimsical.” United States v. Willis, 

, 1270 (10th Cir. 2016) (quotations omitted).

2. Additional Factual Background

       a. Evidence about child pornography and homosexuality

       The prosecution presented evidence at trial about two separate times when Mr.

Durham said he had struggled with child pornography or homosexuality.

       First, Ms. Wambugu, Ms. Menja, Mr. Mutonga, and Mr. Jeffries testified about

statements made at the June 13, 2014 meeting at Upendo. They each said that during the

meeting, Mr. Durham went outside to talk to Ms. Wambugu, ROA, Vol. 12 at 721, 827,

998, 1132, and that, upon returning with Ms. Wambugu to the sitting room, Mr. Durham

said he had struggled with child pornography and homosexuality. 

828, 999.

According to Ms. Wambugu, Mr. Durham said he could not remember molesting the

children, but could “only remember . . . he ha[d] been struggling with child pornography

and homosexuality.” ROA, Vol. 12 at 724 (TT 110). Ms. Menja testified that Mr.

Durham “said that he needed help because he has been struggling with child pornography

                                              68
and homosexuality.” 

(TT 214). Mr. Mutonga testified that Mr. Durham said

he “needed to apologize, he needed to be forgiven,” and that he “struggled with

homosexuality and child pornography.” 

(TT 519). In his testimony, Mr.

Durham admitted saying at this meeting that he struggled with homosexuality, but denied

mentioning child pornography. 

48-49 (TT 1234-35).

       Second, the jury was shown the Seagull Confession Videos that were recorded on

June 17. At the beginning of one of the videos, Mr. Durham stated he could not

remember what happened. Ms. Menja responded that if Mr. Durham did not have a

memory of the events and could not describe them, they would “want the police [t]here to

deal with it first.” Gov’t Exh. 4 at 1:03-1:10. Mr. Durham said, “I’ve told you the truth,

I’ve told you that I’ve struggled with this my whole life . . . .” 

and

described a “temptation to touch children and to be with other men,” 

       b. District court rulings

       Before trial, Mr. Durham moved to exclude evidence about his alleged struggles

with “wanting to touch children”29 or “erotic pornography,” ROA, Vol. 2 at 282, and also

moved to exclude evidence “regarding [his] sexual history and sexual orientation,” 

The district court denied these motions at a pre-trial hearing. On the pornography,

the Government argued the statement was “inherent as a part of [Mr. Durham’s]

confession,” and the court seemed to agree. ROA, Vol. 12 at 523. The court admitted

the statements about homosexuality because “when a defendant is ostensibly explaining


       29
        Although Mr. Durham sought to exclude the statement about a temptation to
touch children before trial, he does not challenge its admission on appeal.
                                              69
what he’s done, that . . . would be very relevant and probative and admissible.” 

       When Ms. Wambugu testified at trial about the June 13 statements, the court asked

if Mr. Durham would like a limiting instruction to the jury that Mr. Durham was “not on

trial for child pornography or homosexuality.” 

(TT 111). Defense counsel

declined, saying he “d[idn’t] see how there c[ould] be any limiting instruction that

cure[d] [the testimony’s] prejudice,” so none was given. 

-26 (TT 111-12).

       Mr. Durham based his motion for a new trial in part on the admission of the

evidence about his statements concerning child pornography and homosexuality. See

ROA, Vol. 3 at 316-324. The district court ruled he was not entitled to a new trial based

on the admission of the statements. 

It said the statement about child

pornography was relevant “because it was offered by Defendant as a justification for the

behavior of which he was accused,” and found any prejudicial effect of the evidence did

not substantially outweigh its probative value. ROA, Vol. 3 at 786. As to the statements

about homosexuality, the court found “that the potential prejudice of admitting

Defendant’s statements did not outweigh their probative value.” 

“[D]espite

the potential for prejudice to Defendant . . . the evidence herein was relevant, largely

because it was offered by Defendant as some type of explanation or justification when he

was accused of engaging in inappropriate sexual activity with children at Upendo.” 

                                             70
3. Legal Background

       a. Rule 404(b)

       Federal Rule of Evidence 404(b) prohibits evidence of a “crime, wrong, or

other act . . . to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.”

       “When we apply Rule 404(b), we distinguish between evidence that is

extrinsic or intrinsic to the charged crime.” United States v. Kupfer, 

,

1238 (10th Cir. 2015). Rule 404(b) prohibits evidence of “other acts,” “but this rule

does not cover evidence that is considered intrinsic” to the charged crime. 

Evidence is intrinsic when it is “directly connected to the

factual circumstances of the crime and provides contextual or background

information to the jury.” 

       b. Rules 401 and 402

       Evidence is admissible only if it is relevant. Fed. R. Evid. 402. Evidence is

relevant if “it has any tendency to make a fact more or less probable than it would be

without the evidence; and . . . the fact is of consequence in determining the action.” Fed.

R. Evid. 401.

       c. Rule 403

       Otherwise admissible evidence may be excluded under Rule 403 if its

“probative value is substantially outweighed by . . . unfair prejudice.” Fed. R. Evid.

403. “‘Unfair prejudice’ within its context means an undue tendency to suggest [a]

decision on an improper basis, commonly, though not necessarily, an emotional

                                            71
one.” United States v. Silva, 

, 712 (10th Cir. 2018) (quoting Fed. R.

Evid. 403 advisory committee note to 1972 proposed rules). “[A]s to a criminal

defendant, [it] speaks to the capacity of some concededly relevant evidence to lure

the factfinder into declaring guilt on a ground different from proof specific to the

offense charged.” Old Chief v. United States, 

, 180 (1997).

       “The district court has considerable discretion in performing the Rule 403

balancing test, but exclusion of evidence under Rule 403 that is otherwise admissible

under the other rules is an extraordinary remedy and should be used sparingly.”

(quotations omitted).

4. Analysis

       The district court did not abuse its discretion when it determined the challenged

statements were (1) intrinsic to the charged crimes, (2) relevant, and (3) not unfairly

prejudicial.

       a. Rule 404(b)

       The district court did not abuse its discretion by holding the statements were

intrinsic rather than Rule 404(b) evidence.30 Although the district court did not use

the word “intrinsic,” it viewed the statements as intrinsic to the charged crimes

because they were part of Mr. Durham’s denials and eventual confession to the

crimes. See ROA, Vol. 12 at 523, 531; ROA, Vol. 3 at 785-86.

       30
         Although the statements at issue “are party admissions under [Federal Rule
of Evidence] 801(d) and thus not hearsay, they must nevertheless also be analyzed
for admissibility under Rule 404(b)” because they reference other acts that could
have been used as propensity evidence. United States v. Oberle, 

, 1418
(10th Cir. 1998).
                                             72
       Mr. Durham made both statements at issue when the Upendo volunteers

confronted him about the children’s allegations. The statements were intrinsic

evidence because they provided “contextual or background information” regarding

his actions when confronted with the allegations against him and his confession at the

Seagull on June 17. 

.

       The fact that the statements were made after the charged conduct had occurred

does not make them extrinsic. For example, in United States v. Bajoghli, 

(4th Cir. 2015), the Fourth Circuit held it was an abuse of discretion for the district court

to exclude evidence of a defendant’s post-scheme conduct, 

In that case, the

government sought to introduce evidence that the defendant had halted his fraudulent

scheme after he was interviewed by law enforcement. 

The court held this

evidence was admissible intrinsic evidence, not 404(b) evidence, because it showed the

defendant’s knowledge and intent to defraud. 

Although Mr. Durham made

his statements after the charged conduct, they were nonetheless intrinsic evidence

because they “bear[] directly” on his response to the allegations against him. 

(alteration and quotations omitted).

       The district court did not abuse its discretion by holding the statements were

intrinsic evidence and not subject to the Rule 404(b) bar.

       b. Rules 401 and 402

       As intrinsic evidence, the statements satisfied Rule 401’s “any tendency”

relevance standard. See Daubert v. Merrell Dow Pharm., 509 U.S. 579,587 (1993)

(calling Rule 401’s standard as “liberal”). In the face of allegations that he had

                                             73
molested children and that two of his alleged victims were male, Mr. Durham’s

statements that he had struggled with both child pornography and homosexuality

provided context and explanation, making them relevant and admissible under Rules

401 and 402. Mr. Durham has not presented any persuasive argument on appeal that

the district court abused its discretion in determining the statements not only

constituted intrinsic evidence but also met “the minimal relevance requirements of

Rule 401.” United States v. Spence, 

, 1229 (10th Cir. 2013); see

United States v. Breton, 

, 14 (1st Cir. 2014) (recognizing “the low bar of

relevancy set out in Rule 401”).

       c. Rule 403

       The district court did not abuse its discretion in admitting the statements over Mr.

Durham’s Rule 403 challenge.

       As described, the statements were probative as intrinsic to Mr. Durham’s

explanation for his conduct. The district court acted within its discretion to determine

that the potential for unfair prejudice did not substantially outweigh the statements’

probative value.31

       We affirm the district court’s admission of the statements about struggles with

child pornography and homosexuality.




       31
         We note the district court offered a limiting instruction on this evidence,
which defense counsel rejected. ROA, Vol. 12 at 725-26 (TT 111-12). The
instruction likely would have lowered the prejudicial effect of the evidence, and Mr.
Durham should not now benefit from declining it.
                                             74
                           D. Issue Four: Prosecutorial Misconduct

       Mr. Durham contends that the district court erred when it denied the part of his

Rule 33 motion for a new trial which alleged that the Government made improper

propensity statements about his struggle with homosexuality. Aplt. Br. at 34-39. The

statements occurred during the Government’s cross-examination of Mr. Durham and its

closing argument. Because Mr. Durham failed to contemporaneously object to the

alleged improper statements on prosecutorial misconduct grounds, we review for plain

error. We find none and affirm the district court’s denial of Mr. Durham’s motion for a

new trial on this issue.

1. Standard of Review

       “Ordinarily, we review the trial court’s decision to grant or deny a new trial for

abuse of discretion, and will reverse the denial of a motion for a new trial only if the trial

court made a clear error of judgment or exceeded the bounds of permissible choice in the

circumstances.” United States v. Toro-Pelaez, 

, 828 (10th Cir. 1997). But

where the defendant “failed to contemporaneously object regarding the . . . reasons he

asserts as justification for a new trial[,] . . . we . . . may only reach the issue if we find

plain error.” 

occurs when there is (1) error, (2) that is plain, which (3) affects the

defendant’s substantial rights, and which (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Fleming, 

,

1103 (10th Cir. 2011) (quotations omitted). “To show that an error affected his

substantial rights, [the defendant] must establish a reasonable probability that, but for the

                                               75
error claimed, the result of the proceeding would have been different.” United States v.

Uscanga-Mora, 

, 1295 (10th Cir. 2009) (quotations omitted). “When

evaluating allegedly inappropriate remarks of counsel for plain error, we must view the

remarks in the context of the entire trial.” 

(quotations

omitted).

2. Additional Factual Background

       As described in Issue Three above, the jury heard evidence that Mr. Durham had

twice stated that he struggled with homosexuality. We now provide additional factual

background on the two alleged instances in which the prosecution made improper

propensity arguments relating to these statements.

       a. The Government’s cross-examination of Mr. Durham

       During the cross-examination of Mr. Durham, the prosecutor questioned him

about his struggle with homosexuality. After replaying part of one of the Seagull

Confession Videos, the prosecutor asked Mr. Durham: “[W]hat do you struggle with?”

ROA, Vol. 12 at 1999 (TT 1385). Mr. Durham’s counsel objected to the question on the

ground that “this is repetitious,” and the trial court sustained the objection. 

continued: “Mr. Durham, you struggle with homosexuality?” 

answered, “I did, yes,” after which his counsel objected, again because “[i]t’s

repetitious.” 

again sustained the objection. 

resumed

playing the Seagull Confession Video, and defense counsel “object[ed] to continually

replaying it after Your Honor has ruled.” 

sustained the objection,

remarking that “[i]t has been played before.” 

(TT 1386).

                                             76
b. The Government’s closing argument

      During rebuttal closing argument, the prosecutor twice referred to Mr. Durham’s

“life-long struggle with touching children and homosexuality.” 

(TT 1473),

2096 (TT 1482).

      First, the prosecutor argued:

             There is always a first victim to a crime, a first time when you
             go to Upendo, long before your mother does, 24 days, a first
             time when you ask to stay at Upendo among the little children
             that you’re going to be with . . . while you have a life-long
             struggle with touching children and homosexuality.

(TT 1473).

      Second, the prosecutor argued:

             [Mr. Durham] insisted on going to Kenya weeks before
             anyone else. He insisted on living at Upendo when he knew
             he had a life-long struggle with touching children and
             homosexuality. He put himself there knowing he couldn’t
             resist, knowing it was all likelihood that he would get what he
             always wanted, and that was to be with children.

(TT 1482-83).

      Mr. Durham’s counsel did not object to either of these statements. See ROA, Vol.

12 at 2087-2103 (TT 1473-89).

3. Additional Procedural Background

      After the jury rendered its verdict, Mr. Durham filed a motion for new trial on

various grounds. One ground was that the prosecution had “implied . . . that [his]

struggles with homosexuality make it more likely that [he] sexually assaulted and

molested children.” ROA, Vol. 3 at 321.

                                           77
       The district court denied the motion. In doing so, it did not separately address Mr.

Durham’s claim that the prosecution had improperly suggested he had a propensity to

commit the charged conduct. Instead, within its discussion of the admissibility of Mr.

Durham’s statements about struggling with homosexuality, the court stated that “[t]he

United States never argued that Defendant engaged in sexual activity with the children

because he is homosexual, rather the prosecution noted in closing argument that when

confronted, he proffered an excuse.” 

32

4. Legal Background

       “We analyze whether a statement constitutes prosecutorial misconduct using a

two-step process.” 

. “First, we determine whether the

prosecutor’s statements were improper.” 

“Second, we

determine whether the prosecutor’s improper statements were harmless beyond a

reasonable doubt.” 

       “The Government generally bears the burden of proving that an improper

statement is harmless beyond a reasonable doubt.” 

as here, a defendant

fails to object to a prosecutor’s statement, reversal is warranted only when: (1) the

prosecutor’s statement is plainly improper and (2) the defendant demonstrates that the

improper statement affected his or her substantial rights.” 

Durham does not contend that the district court did not rule on the
prosecutorial misconduct ground raised in his motion for a new trial. See Aplt. Br. at
34-39. Regardless of whether the district court ruled on this issue, the record is
sufficiently developed to show that any error did not affect Mr. Durham’s substantial
rights under our plain error standard of review, as we explain below.
                                            78
5. Analysis

       Mr. Durham contends that “[t]he Government committed prosecutorial

misconduct by arguing Mr. Durham was more likely to commit the alleged crimes

because he struggled with homosexuality and Mr. Durham was irreparably prejudiced.”

Aplt. Br. at 39. Because, as we explain below, Mr. Durham failed to preserve either of

the alleged instances of prosecutorial misconduct for appellate review, we review for

plain error only. See 

. We begin and end our analysis at the

third step of the plain error test—whether the error affected Mr. Durham’s substantial

rights. We conclude that Mr. Durham has failed to satisfy the substantial rights step, and

we therefore affirm the district court’s denial of his motion for a new trial.

       a. Preservation

       Mr. Durham failed to preserve either of the alleged instances of prosecutorial

misconduct for appellate review by contemporaneously objecting on prosecutorial

misconduct grounds.33 We address each alleged instance of prosecutorial misconduct

separately.

              i. Alleged misconduct during cross-examination of Mr. Durham

       Although defense counsel contemporaneously objected to the prosecution’s cross-

examination of Mr. Durham about struggling with homosexuality, defense counsel

       33
          Mr. Durham “submits he properly preserved the [issue of prosecutorial
misconduct] and that the standard of review is abuse of discretion” because he
“raised the issue . . . in his motion for new trial.” Aplt. Br. at 34. Our precedent
forecloses this argument. See 

(when the defendant
“failed to contemporaneously object regarding the . . . reasons he asserts as
justification for a new trial[,] . . . we . . . may only reach the issue if we find plain
error”).
                                             79
objected on the ground that the questioning was repetitious—not on the ground of

prosecutorial misconduct for making a propensity argument. See ROA, Vol. 12 at 1999

(TT 1385). The district court therefore “did not have notice that defense counsel believed

the prosecutor’s questioning of [Mr. Durham] to be an inappropriate attempt at [making a

propensity argument] or to rise to the level of prosecutorial misconduct.” United States v.

Baldridge, 

, 1135 (10th Cir. 2009).34

               ii. Alleged misconduct during closing argument

       The record shows—and Mr. Durham concedes—that defense counsel did not

contemporaneously object to the prosecution’s references to his struggle with

homosexuality in its closing argument. See ROA, Vol. 12 at 2087-2103 (TT 1473-89);

Aplt. Br. at 34 (“Defendant . . . did not contemporaneously object during closing

argument.”).

       b. Plain error—substantial rights

       Because Mr. Durham failed to preserve either of the alleged instances of

prosecutorial misconduct for appellate review, we review for plain error only. We find

no plain error because Mr. Durham has failed to show that the alleged misconduct

affected his substantial rights. We address each alleged instance of prosecutorial

misconduct separately.


       34
         Even if we were to conclude that the objections on the ground of
repetitiousness sufficed to put the district court on notice that defense counsel
believed the Government was making a propensity argument, Mr. Durham would still
not be entitled to relief. Our reasons, discussed below, for determining that any error
in the prosecution’s questioning did not affect Mr. Durham’s substantial rights would
also persuade us that any error was harmless beyond a reasonable doubt.
                                            80
              i. Alleged misconduct during cross-examination of Mr. Durham

       Even assuming error in the prosecutor’s references to homosexuality during cross-

examination of Mr. Durham, any error did not affect Mr. Durham’s substantial rights.

“To show that an error affected his substantial rights, Mr. [Durham] must establish a

reasonable probability that, but for the error claimed, the result of the proceeding would

have been different.” 

(quotations omitted).

       As discussed above, defense counsel objected to the prosecutor’s questioning on

Mr. Durham’s struggle with homosexuality on the ground of repetitiousness. The district

court sustained defense counsel’s objections. Moreover, the court’s preliminary

instructions to the jury at the trial’s outset had included the following: “If an objection is

sustained, ignore the question.” ROA, Vol. 12 at 623 (TT 9). Additionally, the jury’s

acquittal of Mr. Durham on several counts, despite the prosecutor’s questions, suggests

that the jury’s verdict was “based on reason, rather than emotion.” United States v.

Archuleta, 

, 1296 (10th Circuit 2013). Under these circumstances, Mr.

Durham has not shown a reasonable probability that, but for the prosecutor’s questions,

the jury would have rendered a different verdict. See United States v. Lane, 

, 1498 (10th Cir. 1989) (“As a general rule, we presume that juries follow [limiting]

instructions.”).

              ii. Alleged misconduct during closing argument

       Even assuming error in the prosecutor’s references to homosexuality during

closing argument, the error did not affect Mr. Durham’s substantial rights. Mr. Durham

contends otherwise, citing United States v. Schene, 

(10th Cir. 2008). Aplt.

                                              81
Reply Br. at 14.35 In Schene, this court said that a prosecutor’s question about whether

the defendant had visited “websites with homosexual themes” was “arguably 

.

       Mr. Durham’s argument fails because it does not consider the prosecution’s

remarks “in the context of the entire trial.” 

(quotations

omitted). Despite acknowledging the potentially prejudicial impact of the prosecutor’s

conduct, we held in Schene that, “even assuming, arguendo, that [the defendant]

preserved this argument for appeal . . . the district court did not abuse its discretion in

failing to grant a mistrial based on the prosecutorial 

. We

reasoned that, “[g]iven the evidence against [the defendant], . . . the alleged prosecutorial

misconduct was not flagrant enough to influence the jury to convict on grounds other

than the evidence presented.” 

       Even more so here under plain error review, when “it is the defendant rather than

the Government who bears the burden of persuasion with respect to prejudice,” 

(quotations omitted), relief is not warranted based on the prosecution’s

closing argument. As summarized above, the Government presented ample independent

evidence to show that Mr. Durham committed the offenses on which the jury convicted.

For example, the trial evidence supporting the jury’s verdict included victim testimony

and detailed written confessions by Mr. Durham. ROA, Vol. 9 at 8, 15, 16; ROA, Vol.

       35
         Mr. Durham’s argument assumes that the jury harbored biases about sexual
orientation. He has not provided any evidence that it did, but to the extent his
assumption holds, we nevertheless conclude Mr. Durham has not shown that any
error affected his substantial rights, as we explain below.

                                              82
12 at 658, 1406, 1440, 1458. And again, the jury’s acquittal of Mr. Durham on the

remaining counts further supports the harmlessness of any improper prosecutorial

argument. See 

. So even if we could read the prosecutor’s

closing argument as improperly suggesting that Mr. Durham’s struggle with

homosexuality made him more likely to act on his temptation to touch children, Mr.

Durham is not entitled to relief on plain error review.

                                            ****
       Mr. Durham has not shown that the alleged improper prosecutorial statements,

individually or taken together, affected his substantial rights under the plain error test.

We therefore affirm the district court’s denial of Mr. Durham’s motion for a new trial on

grounds of prosecutorial misconduct.

                     E. Issue Five: Cellphone Videos Authentication

       Mr. Durham challenges the admission of Ms. Menja’s cellphone-recorded videos

of his confession as improperly authenticated. Aplt. Br. at 42. He argues the

“Government did not sufficiently address [his] contention that the recordings had been

altered.” Aplt. Br. at 45. He contends the videos were admitted in error due to Mr.

Durham’s “specific showing of irregularities” and inability to inspect the cellphone itself.

[Id. at 46.] Because Ms. Menja’s testimony laid a sufficient foundation for

authentication, we find that the district court did not abuse its discretion when it

admitted her cellphone videos and affirm.




                                              83
1. Standard of Review

       Whether the Government laid a sufficient foundation for the videos to be admitted

at trial is reviewed for abuse of discretion. United States v. Green, 

, 829

(10th Cir. 1999). Abuse of discretion is defined as “an arbitrary, capricious, whimsical,

or manifestly unreasonable judgment.” United States v. Cardenas, 

, 1530

(10th Cir. 1989).

2. Additional Background

       On June 17, 2014, Ms. Menja recorded part of her conversation with Mr. Durham

at the Seagull restaurant on her cellphone. The Government’s trial exhibits included the

five Seagull Confession Videos recorded by Ms. Menja that day. See Gov’t Exs. 3-7.

Each was admitted and played for the jury.36 Videos played in ROA, Vol. 12, 858-870

(TT 244-56). Ms. Menja initially turned over her cellphone to the Government so that

investigators could copy the data. ROA, Vol. 12 at 433. The Government made copies

and returned the phone to her. 

       Before trial, Mr. Durham moved in limine to inspect the cellphone used to record

his statements and to have an expedited chain of custody hearing. ROA, Vol. 1 at 631.

The court held a hearing on the motion. ROA, Vol. 12 at 427. At the hearing, the

       36
          Gov’t Exh. 3, 1 minute, 49 seconds (preliminary conversation); Gov’t Exh.
4, 12 minutes 10 seconds (Mr. Durham describing his interactions with various
children); Gov’t Exh. 5, 29 seconds (Mr. Durham calling his mother to discuss his
actions); Gov’t Exh. 6, 20 seconds (Mr. Durham writing out his interactions with
various children); Gov’t Exh. 7, 10 seconds (another video of Mr. Durham writing
out his interactions with various children.)

                                           84
Government explained that it would be providing Mr. Durham a “mirror image” of Ms.

Menja’s phone, but not the cellphone itself. ROA, Vol. 12 at 433; ROA, Vol. 2 at 543.

The Government described the mirror image as follows:

              When you make a video with a phone, unbeknownst to the
              person who is filming, images are embedded into the phone
              called LBLs. If you go back to that video and you cut off a
              portion of the recording, a forensic examiner would show
              that those LBLs still exist. More or less, it’s like a
              fingerprint. In this case, the only way to get to that is to
              look at the actual phone. So based upon the defendant’s
              concerns, we asked to receive the phone and we made a
              mirror image. That way, we can return the phone and do a
              forensic review on the computer, it would be just like we
              had her phone.

ROA, Vol. 12 at 427-28.

       The Government explained that the mirror image would allow defense counsel to

analyze whether the videos had been altered: “[a forensic examiner] would be able to

look at the LBLs to make sure there’s no outstanding LBL missing video.” 

Defense counsel responded that the mirror image would not be sufficient to inspect for

alterations. 

       The court ordered the Government to turn over the mirror image to defense

counsel. It denied without prejudice Mr. Durham’s “Motion to Compel Production,

Inspection and Imaging of Cell Phone and Expedite Chain of Custody Hearing,” allowing

Mr. Durham to renew the motion if necessary following his counsel’s inspection of the

mirror image. ROA, Vol. 12 at 435; ROA,Vol. 2 at 40.

       After his forensic expert, Donovan Farrow, analyzed the mirror image, Mr.

Durham filed a “Renewed Motion to Compel Production, Inspection, and Imaging of Cell

                                           85
Phone.” ROA, Vol. 2 at 533.37 In support of the motion, Mr. Farrow submitted an

affidavit arguing that the mirror image “cannot be considered a true representation of the

evidence at the time the videos were recorded” and that “[i]t appears the Government is

attempting to piecemeal the cell phone evidence and only provide Defense Counsel with

limited information regarding the videos.” 

More specifically, he opined:

              [A] type of data scrubbing had occurred on some of the video
              files. Data scrubbing is a technique used to erase metadata
              that is related to a file. This technique has to be done by a
              person with knowledge and is not something that can occur
              unintentionally. Thus, this evidence has been compromised
              as it was intentionally tampered with to the point the video’s
              metadata was deleted.

       Before the hearing on the renewed motion to compel, the court arranged for a

meeting between the parties’ forensic experts. ROA, Vol. 12 at 592-596. At that

meeting, Mr. Farrow requested a “logical image” from the Government, which he later

received and analyzed. ROA, Vol. 12 at 595.38

       At the pretrial hearing on the renewed motion to compel, Mr. Durham’s counsel

argued, “[W]e stated last time we were here in court that the metadata had been scrubbed.

. . . After looking at the logical image, which is just a portion of the cell phone, [Mr.

Farrow] found that the videos had, in fact, been split up. They had been cut. He can tell

that from the file names.” ROA, Vol. 12 at 595. The court concluded Mr. Durham could


       37
         Mr. Durham also renewed his motion for an “expedited chain of custody
hearing.” ROA, Vol. 2 at 533 (capitalization altered).
       38
         Defense counsel described a “logical image” as “a smaller portion of a
forensic image.” ROA, Vol. 12 at 595.
                                              86
call Mr. Farrow as a witness to testify that the videos had been altered, but it declined to

exclude the videos entirely. ROA, Vol. 12 at 596. The court also noted that the

Government “will have to lay the proper foundation for the introduction of these videos,

and, obviously, cross-examination could be fruitful.” ROA, Vol. 12 at 596.

       b. Trial

       At trial, the court overruled Mr. Durham’s contemporaneous objection to

admission of the Seagull Confession Videos. ROA, Vol. 12 at 857 (TT 243). The

Government first showed one of the videos during its direct examination of Ms. Menja,

who had recorded the video on her cellphone. Before showing the video, the

Government asked Ms. Menja if she had reviewed the cellphone videos on both her

phone and on a computer. She responded that she had and that the videos were

“identical.” ROA, Vol. 12 at 856-57 (TT 242-43). The Government then moved to

admit the cellphone videos. 

(TT 243). Before the court ruled, it asked Ms.

Menja whether the videos “accurately reflect[ed] [her] memory of what occurred on that

date.” 

(TT 243). She said that they did, and the court admitted the videos.

direct examination of Ms. Menja, the Government asked her several

times whether she manipulated, changed, or edited the footage in any way. ROA, Vol.

12 at 859, 861, 865 (TT 245, 247, 251). Each time, she responded that she had not. 

neither cross-examined Ms. Menja about alteration of the videos nor called




                                             87
Mr. Farrow or any other forensic expert to testify about the Seagull videos.39 ROA, Vol.

12, at 893-961 (TT 279-347).

3. Legal Background

       To authenticate evidence for admission at trial, “the proponent must produce

evidence sufficient to support a finding that the item is what the proponent claims it is.”

Fed. R. Evid. 901(a).

       “When evidence is unique, readily identifiable and relatively resistant to change,

the foundation need only consist of testimony that the evidence is what its proponent

claims.” United States v. Johnson, 

, 1367 (10th Cir. 1992) (quotations

omitted); see also United States v. McIntyre, 

, 470 (10th Cir. 1987)

(audiotape of statement admissible in trial where witness who heard statement also

testifies and gives independent support for testimony).

       On the other hand, when evidence “is not readily identifiable and is susceptible to

alteration by tampering or contamination, the trial court requires a more stringent

foundation entailing a chain of custody of the item with sufficient completeness to render

it improbable that the original item has either been exchanged with another or been

contaminated or tampered with.” 

(quotations omitted). A

videotape that has been altered in some form may still be “readily identifiable” and “not

susceptible to alteration by tampering” for purposes of authentication. See, e.g., United

States v. Mills, 

, 1112 (10th Cir. 1999) (allowing videotape into evidence,

       39
         On cross-examination, Mr. Durham’s counsel asked Ms. Menja about the
context of the videos and why some were started or stopped when they were, but not
about alterations. ROA, Vol. 12, at 893-961.
                                             88
finding it “readily identifiable” and “sufficient[ly] complete[] to render it improbable

[that it had] . . . been contaminated or tampered with,” despite a deletion that did “not

affect the accuracy of the remaining images”). The trial court “need not rule out every

possibility that the evidence underwent alteration; it need only find that the reasonable

probability is that the evidence has not been altered in any material aspect.” 

.

4. Analysis

       The district court did not abuse its discretion in determining there was a sufficient

foundation supporting the cellphone videos’ authenticity. Ms. Menja testified that she

had reviewed the videos and that they were a fair and accurate depiction of what she saw.

ROA, Vol. 12 at 857 (TT 243). That testimony gave the court sufficient basis to

determine the videos were authentic. See 

(finding no abuse of

discretion for a video’s admission when the person responsible for creating the video

confirmed that it accurately depicted what it claimed to depict); see also United States v.

Cejas, 

, 723 (7th Cir. 2014) (finding no error in admitting video that the

witness testified was a “fair and accurate depiction” of what he saw). Further supporting

the video’s authenticity was Ms. Menja’s testimony that she had not edited or altered the

videos in any way. ROA, Vol. 12 at 859, 861, 865 (TT 245, 247, 251).40


       40
         No chain of custody analysis was necessary given that Ms. Menja’s
testimony provided a foundation for the video, which was “unique, readily
identifiable and relatively resistant to change.” 

. Mr.
Durham contends that the videos were “easily subject to manipulation” but did not
choose to present evidence on this point at trial. Aplt. Reply Br. at 16. He otherwise
does not argue in his briefing why the video was not “readily identifiable.”
                                             89
       To the extent Mr. Durham believed the videos did not depict what they

claimed to depict, the court gave him an opportunity to cross-examine Ms. Menja on

alterations to the videos and to call his forensic expert to testify on them. He chose

to do neither. See 

(defense counsel’s failure to cross on

an authentication issue cuts against an argument to exclude evidence). The district

court did not abuse its discretion when it admitted the cellphone videos as

sufficiently authenticated.

                         F. Issue Six: Victims’ Medical Records

       Mr. Durham challenges the district court’s admission of the full set of the victims’

medical records, rather than just a portion of those records, on four grounds: (1) the court

admitted all of the records when he had requested admission of only part of them (the “P-

3” records), Aplt. Br. at 47; (2) the additional admitted material lacked authentication,

Aplt. Br. at 47; (3) the full records included inadmissible “double hearsay,” Aplt. Br. at

47-48;41 and (4) admitting the full records was unduly prejudicial. As to the last point,

Mr. Durham alleges the records contained graphic representations that “inflamed the

Jury’s sympathies for the alleged victims” and contained an entry that one child “was


       41
          Mr. Durham’s hearsay argument in his opening brief consists of two
sentences: “The PRC Forms and clinician notes contain information relayed by the
patient or third parties. This constitutes inadmissible double hearsay. See United
States v. Gwathney, 

, 1141 (10th Cir. 2006).” Aplt. Br. at 47-48. In
his reply brief, he maintains that a particular victim’s identification of Mr. Durham
during her examination was “impermissible double hearsay” but contests no other
specific information in the victims’ medical records. Aplt. Reply Br. at 19. We
therefore consider only the abuser identification hearsay argument because Mr.
Durham fails to identify any other information in the medical records he wishes to
challenge on hearsay grounds.
                                             90
defiled by a man named Matthew.” Aplt. Br. at 47-48. Because Mr. Durham invited any

error, and because he cannot show error, his argument fails under plain error review. We

affirm the district court’s admission of the full medical records.

1. Standard of Review

       Mr. Durham failed to object to admission of the records at trial, so the plain-error

standard applies. He must accordingly show: “(1) error, (2) that is plain, which (3)

affects the defendant’s substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United States v. Baldridge, 

, 1135 (10th Cir. 2009). Mr. Durham’s challenge fails at the first element—

whether the district court erred. We review evidentiary rulings for error under an abuse

of discretion standard. 

.

2. Additional Background

       The medical records that the Government provided to Mr. Durham consisted of:

(1) a Post Rape Care (“PRC”) form; (2) lab requests; (3) clinician notes; and (4) a

Medical Examination Report, also known as a P-3 form. ROA, Vol. 10a at 28-80. The

clinician on call filled out the PRC form for the six children examined. ROA, Vol. 12 at

1182 (TT 568). A supervising physician, Dr. Abdukladir, then reviewed the PRC forms

and prepared P-3 forms based on that review. ROA, Vol. 12 at 1182-85 (TT 568-71).

       During cross-examination of Dr. Abdulkadir, defense counsel moved for

admission of a P-3 Form only. See ROA, Vol. 12 at 1202 (moving to admit pages “1

through 4” of Government’s Exhibit 44); ROA, Vol. 10a at 28 (P-3 form). The

Government responded by moving to enter the entire exhibit, which included all four

                                             91
components described above. ROA, Vol. 12 at 1202 (TT 588). Defense counsel then

stated: “I would ask that they move to[sic] Exhibits – enter Exhibit 45, 46, 47, 48, and 49

as well.” ROA, Vol. 12 at 1202 (TT 588). The Court admitted all of the records. 

did not object. 

Background

       a. Invited error

       It is “fundamental that a defendant cannot complain of error which he invited upon

himself.” United States v. Chavez, 

, 952 (10th Cir. 2000) (quotations

omitted).

       b. Authentication

       To authenticate evidence for admission at trial, “the proponent must produce

evidence sufficient to support a finding that the item is what the proponent claims it is.”

Fed. R. Evid. 901(a).

       c. The hearsay rule and pertinent exceptions

       “Hearsay” is a statement that “the declarant does not make while testifying at the

current trial or hearing” and “a party offers in evidence to prove the truth of the matter

asserted in the statement.” Fed. R. Evid. 801(c). It is inadmissible unless an exception

applies. Fed. R. Evid. 802. One such exception is for business records—“records of a

regularly conducted activity.” Fed. R. Evid. 803(6). “[H]ospital records . . . fit

conceptually within the long-established exception for business records.” Manocchio v.

Moran, 

, 776 (1st Cir. 1990).



                                             92
       Another exception to the hearsay rule is for a “statement that: (A) is made for—

and is reasonably pertinent to—medical diagnosis or treatment; and (B) describes

medical history; past or present symptoms or sensations; their inception; or their general

cause.” Fed. R. Evid. 803(4). This court has recognized that “the Fourth, Eighth and

Ninth Circuits have held that statements made by a child to a physician which identify the

sexual abuser as a member of the family or household are ‘reasonably pertinent to

diagnosis or treatment’ and may therefore be admissible [under Rule 803(4)].” United

States v. Joe, 

, 1494 (10th Cir. 1993). Accepting these holdings as valid, we

extended their application to cover abuser identifications during medical examinations

made by adult domestic sexual assault victims. 

       d. Unfair prejudice

       Under Federal Rule of Evidence 403, “[t]he court may exclude relevant evidence

if its probative value is substantially outweighed by a danger of . . . unfair prejudice.”

Fed. R. Evid. 403. The graphic nature of evidence does not alone make it inadmissible.

See United States v. Naranjo, 

, 1468-69 (10th Cir. 1983) (allowing

photograph of victim shot in the face because it showed the “particulars of the crime

scene” and “was not unduly nor designedly inflammatory”).

4. Analysis

       Mr. Durham’s challenge to the court’s admission of the victims’ full medical

records fails. Any error was invited, and he cannot show error on any ground he raises

on appeal. It follows that he cannot show plain error. 

.


                                              93
       At trial, following Mr. Durham’s request to admit a P-3 Form, which was part of

the medical records in Government Exhibit 44, the Government requested the admission

of the entire medical record—including the PRC form, lab requests, clinician notes, and

the Medical Examination Report. ROA, Vol. 12 at 1202 (TT 588). Rather than object,

Mr. Durham’s counsel requested to move “Exhibit[s] 45, 46, 47, 48, and 49” into

evidence “as well.” ROA, Vol. 12 at 1202 (TT 588). Those exhibits included entire

medical records, not just P-3 forms. Mr. Durham thus invited any potential error from

admitting the records and cannot establish a plain error warranting reversal. See 

(finding no plain error when the appellant invited the complained-of

error). Although invited error alone is sufficient to reject Mr. Durham’s challenge on

appeal to admission of this evidence, we also determine there was no error based on any

of the four grounds Mr. Durham argues.

       First, Mr. Durham argues his initial request to admit only the P-3 form showed

“counsel’s intent was to admit only a limited portion of the medical records.” Aplt.

Reply Br. at 17. Even if that were so, counsel switched gears and requested admission of

the entire records.

       Second, Mr. Durham’s authenticity argument fails in light of Dr. Abdukladir’s

testimony. See ROA, Vol. 12 at 1179-83 (TT 565-69). She testified that she supervised

the department where the records were created, reviewed the PRCs when they were filled

out to make sure they had been properly completed, and reviewed the records before

testifying. 

there was no hearsay error. Mr. Durham makes no argument about

admission of the medical records themselves under the business record or some other

exception to the hearsay rule. The only specific reference in the medical records Mr.

Durham challenges based on hearsay is one victim’s identification of “Matthew” during

her examination. That statement, identifying a member of the child’s household as the

abuser, was admissible under 

.42

       Fourth, the court did not abuse its discretion under Fed. R. Evid. 403. Mr.

Durham does not question the probativeness of the medical records. Mr. Durham

characterizes the records as including “graphic representations about where the child was

touched and the purported genital injury,” Aplt. Br. at 47. We have reviewed the

evidence and conclude the district court’s balancing of the probative value and prejudicial

effect was reasonable. See 

(graphic image admissible if

highly probative and not designedly inflammatory). The records were highly probative

of the victims’ injuries. The evidence was collected as part of a standardized medical

examination process and was not “designedly inflammatory.” 

       42
         Mr. Durham cites United States v. Gwathney, 

, 1141 (10th
Cir. 2006), to support his “double hearsay” argument. Aplt. Br. at 47-48. In
Gwathney, we said that “[a]ny information provided by another person, if an outsider
to the business preparing the record, must itself fall within a hearsay exception to be

. Here, the statement made by the “outsider”—the
victim identifying the abuser—is admissible under the hearsay exception recognized
in Federal Rule of Evidence 803(4).

                                            95
       Because Mr. Durham invited error and has not otherwise shown the court erred,

we affirm the records’ admission and reject Mr. Durham’s appeal.43

               G. Issue Seven: Substantive Reasonableness of Sentence

       Mr. Durham challenges his 480-month sentence as substantively unreasonable.

Aplt. Br. at 58-59. He “does not challenge the district court’s procedure in calculating”

the recommended sentence under the Guidelines. Aplt. Reply Br. at 26. We affirm his

sentence because he has not shown that the district court abused its discretion in weighing

the sentencing factors set forth in 18 U.S.C. § 3553(a).

1. Standard of Review

       We “review the substantive reasonableness of a sentence for abuse of discretion.”

United States v. Chavez, 

, 1233 (10th Cir. 2013); see also Gall v. United

States, 

, 51 (2007) (“[T]he appellate court should . . . consider the substantive

reasonableness of the sentence imposed under an abuse-of-discretion standard.”).

       We find no abuse unless the sentence “is arbitrary, capricious, whimsical, or

manifestly unreasonable.” United States v. Munoz–Nava, 

, 1146 (10th Cir.

2008) (quotations omitted). “That is to say, we recognize that in many cases there will be

a range of possible outcomes the facts and law at issue can fairly support; rather than pick

       43
          Mr. Durham raises a new argument in reply that, to the extent his counsel
invited error, his counsel was ineffective. Aplt. Reply Br. at 21. Because that
argument was not raised in his opening brief, it is waived. See Silverton Snowmobile
Club v. U.S. Forest Serv., 

, 783 (10th Cir. 2006) (declining to consider
arguments not raised in opening brief). It would be more appropriate to raise this
argument through a motion under 28 U.S.C. § 2255. See United States v. Galloway,

, 1242 (10th Cir. 1995) (en banc) (“The rule in this circuit . . . is that
claims of constitutionally ineffective counsel should be brought on collateral review,
in the first petition filed under 28 U.S.C. § 2255.”).
                                            96
and choose among them ourselves, we will defer to the district court’s judgment so long

as it falls within the realm of . . . rationally available choices.” United States v. McComb,

, 1053 (10th Cir. 2007).

2. Additional Factual Background

       The final PSR calculated a Guidelines sentence of 1,440 months in prison based

on Mr. Durham’s total offense level and criminal history category. ROA, Vol. 7 at 142.44

The PSR identified only one factor potentially warranting a downward departure—that

Mr. Durham was 19 years old when he committed the offenses of conviction. 

46. The district court adopted the PSR’s calculated Guidelines sentence of 1,440 months.

       The court sentenced Mr. Durham to 480 months in prison, a sentence it

characterized as a downward variance. ROA, Vol. 3 at 844; ROA, Vol. 7 at 477; ROA,

       44
          The PSR calculated Mr. Durham’s total offense level to be 49 and his
criminal history category to be I. ROA, Vol. 7 at 135, 136. Under the Guidelines, an
offense level exceeding 43, the highest offense level reflected in the sentencing table,
“is to be treated as an offense level of 43.” U.S.S.G. Ch. 5, Pt. A (Sentencing Table),
Application Note 3. The Guidelines recommend a sentence of “life” for a defendant
with an offense level of 43, regardless of the criminal history category. See U.S.S.G.
Ch. 5, Pt. A (Sentencing Table). The probation officer who prepared Mr. Durham’s
PSR, after consulting with the United States Sentencing Commission, arrived at a
Guidelines sentence of 1,440 months to be consistent with the cumulative statutory
maximum sentence for the four counts of conviction. ROA, Vol. 7 at 142 n.3. Under
these circumstances, the PSR calculated a recommended Guidelines sentence rather
than a sentence range.
       45
          Based on its finding that Mr. Durham had committed perjury at trial, the
district court applied a two-level enhancement for obstruction of justice, bringing Mr.
Durham’s offense level to 51. ROA, Vol. 7 at 475. Because the offense level
calculated in the PSR already exceeded the maximum offense level of 43, the two-
level enhancement had no effect on the recommended Guidelines sentence.

                                             97
Vol. 13 at 158.46 The court offered the following explanation of its decision at Mr.

Durham’s sentencing hearing:

              The sentence the Court has selected, I’m satisfied, is
              sufficient but not greater than necessary, when considering
              the sentencing factors set forth in 18 U.S. Code 3553.

              18 U.S. Code 3553 requires the Court to consider these
              factors:

              The nature and circumstance of the offense; and the history
              and characteristics of the defendant.

              In this regard, pursuant to reading the sentencing
              memorandum and what I’ve heard here today, I have
              considered the age of the defendant, the fact he is a first-time
              offender, his potential for the future, his charitable efforts
              prior to this occasion, that this at least appears to be aberrant
              behavior, the defendant has asked for mercy from the
              Court[,] . . . his success in school, and all the other matters
              raised in the defendant’s brief.

              The next factor the Court must consider are [sic] the need for
              the sentence imposed. This includes to reflect the seriousness
              of the offense, to promote respect for the law, and to provide
              just punishment for the offense, to afford adequate deterrence
              to criminal conduct, to protect the public from further crimes
              of the defendant, to provide the defendant with needed
              education or vocational training, medical care, or other
              correctional treatment in the most effective manner.

              The kind of sentence available is number three.

              Finally, the kind of sentences and the sentencing range, which
              has been established. And the sentencing guidelines call for a
              sentence of life in prison.



       46
          The 480-month sentence consists of 360 months on each of the four counts
of conviction, running partially consecutively and partially concurrently to achieve
the total sentence of 480 months. ROA, Vol. 3 at 844; ROA, Vol. 13 at 158-59.
                                             98
Next, the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct. . . . I read all the cases cited by both
the defendant and the government. And, actually, I didn’t
find these particularly helpful. They went all over the lot, and
circumstances differed from one case to another. There
obviously wasn’t one that fit exactly with this case, and you
wouldn’t expect there to be.

The only time I have had a case of rape . . . I had one sentence
five or six years ago . . . in which the defendant was
convicted of raping his 11-year-old niece. He had a prior
conviction for sexual molestation, and I imposed a sentence
of 50 years’ incarceration.

Finally is the need to provide restitution to any victims of the
offense.

These were heinous crimes committed on the most vulnerable
victims. These darling children, who had been abandoned
and orphaned, looked to the defendant for love and support.
Instead, one by one they were raped. One was but five years
old.

At times he chose to humiliate the children by having one
watch while he abused or raped another. He was their worst
nightmare come true.

Of course, there are other victims, including the children the
defendant molested, but the counts were dismissed because
the acts didn’t technically fit the charge.

And the Upendo home and the people that worked and
volunteered there, they were trying to help the forsaken. This
is now how they are known or what they must deal with.

These violent acts demand a harsh sentence. The victims
must feel secure that he will not touch them again. However,
I also believe, when considering everything, there should be
some light at the end of the tunnel.




                                99
                Hopefully, with appropriate treatment and strict supervision
                after release, the defendant can live productively and safely in
                society.

ROA, Vol. 13 at 156-58.

3. Legal Background

       A substantive reasonableness sentencing challenge asks us to address “whether the

length of the sentence is reasonable given all the circumstances of the case in light of the

factors set forth in 18 U.S.C. § 3553(a).” United States v. Verdin-Garcia, 

,

895 (10th Cir. 2008) (quotations omitted); see 

.47


       47
            Courts must consider the following factors in imposing a sentence:
               (1) the nature and circumstances of the offense and the history
                   and characteristics of the defendant;
               (2) the need for the sentence imposed—
                       (A) to reflect the seriousness of the offense, to promote
                           respect for the law, and to provide just punishment
                           for the offense;
                       (B) to afford adequate deterrence to criminal conduct;
                       (C) to protect the public from further crimes of the
                           defendant; and
                       (D) to provide the defendant with needed educational
                           or vocational training, medical care, or other
                           correctional treatment in the most effective
                           manner;
               (3) the kinds of sentences available;
               (4) [the applicable Guidelines recommended kind and range
                   of sentence];
               (5) [any pertinent Guidelines policy statements];
               (6) the need to avoid unwarranted sentence disparities among
                   defendants with similar records who have been found
                   guilty of similar conduct; and
               (7) the need to provide restitution to any victims of the
                   offense.

       18 U.S.C. § 3553(a).

                                              100
       When a defendant is sentenced within a properly calculated Guidelines range, the

sentence “is entitled to a rebuttable presumption of reasonableness.” United States v.

Kristl, 

, 1054 (10th Cir. 2006) (per curiam). In addition, we have endorsed

“the logical and unremarkable proposition that ‘a below-guideline sentence is also

presumptively reasonable against an attack by a defendant claiming that the sentence is

too high.’” United States v. Balbin-Mesa, 

, 788 (10th Cir. 2011) (quoting

United States v. Liddell, 

, 885 (7th Cir. 2008)).

4. Analysis

       Mr. Durham challenges his 480-month sentence as substantively unreasonable.

Aplt. Br. at 58-59. Because Mr. Durham “does not challenge the district court’s

procedure in calculating” the Guidelines sentence, Aplt. Reply Br. at 26, which was

determined to be 1,440 months, we presume that his sentence is substantively

reasonable.48 We affirm because Mr. Durham’s arguments fail to overcome the

presumption that his sentence is substantively reasonable in light of the § 3553(a) factors.

       First, Mr. Durham appears to argue that he should have been sentenced to no more

than 470 months in prison, citing an online publication by the United States Sentencing

Commission (the “Commission”) for the proposition that “a life sentence is the

equivalent of 470 months.” Aplt. Br. at 58. This argument implicates procedural

reasonableness rather than substantive reasonableness because it relates to the district

       48
          Mr. Durham’s sentence of 480 months is less than the recommended
Guidelines sentence of 1,440 months, as determined by the district court. Whether
we characterize Mr. Durham’s sentence as within or below the Guidelines range, it is
entitled to a presumption of reasonableness. See 

; Balbin-

.
                                            101
court’s calculation of the Guidelines range rather than its weighing of the § 3553(a)

factors. See 

(“failing to calculate (or improperly calculating) the

Guidelines range” is a procedural error). “To the extent [Mr. Durham] seeks to challenge

the procedural reasonableness of the district court’s sentencing calculation, . . . any such

arguments have been waived by [his] failure either to raise th[is] specific objection[]

below or to make an argument for plain error review on appeal.” United States v.

DeRusse, 

, 1236 n.1 (10th Cir. 2017).49

       Second, Mr. Durham contends that his sentence is unreasonably high in light of

the need to avoid unwarranted disparities. See Aplt. Br. at 58-59. This argument also

lacks merit. At Mr. Durham’s sentencing hearing, the district court stated that it had

“read all the cases cited by both the defendant and the government [pertaining to the

disparities factor]” but “didn’t find [them] particularly helpful” because “circumstances

differed from one case to another.” ROA, Vol. 13 at 157. On appeal, Mr. Durham has

not challenged the court’s determination that the other cases he presented involved

dissimilarly situated offenders. See United States v. Franklin, 

, 1372 (10th

Cir. 2015) (“No two cases are identical, and comparison of an individual sentence with a

few counsel-selected cases involving other defendants sentenced by other judges is

       49
          In any event, we are not persuaded that the Commission has “state[d] that a
life sentence is the equivalent of 470 months.” Aplt. Br. at 58. Mr. Durham cites an
online publication entitled the “Variable Codebook for Individual Offenders.” 

defines the standard codes the Commission applies to the sentencing
data it gathers, including the code “470,” which denotes life sentences. See generally
U.S. Sentencing Comm’n, Variable Codebook for Individual Offenders:
Standardized Research Data Documentation for FY1999-2014 (Rev. Apr. 8, 2015),
available at https://perma.cc/A8X6-8TTF. Contrary to Mr. Durham’s assertion, the
publication nowhere equates a life sentence with 470 months in prison.
                                            102
almost always useless.” (citation and quotations omitted)). Nor has he advanced any

reason to question the court’s weighing of the disparities factor. See United States v.

Barnes, 

, 921 (10th Cir. 2018) (“Even if the disparities factor weighs in

favor of a higher sentence, the district court considered it alongside other factors and the

facts of this case and did not abuse its discretion in imposing the sentence[] it did.”).

                                           ****
       Mr. Durham has failed to rebut the presumption that the district court reasonably

weighed the § 3553(a) factors or to show that its sentencing decision exceeds the bounds

of permissible choice. We therefore affirm Mr. Durham’s 480-month sentence.


                            H. Issue Eight: Cumulative Error

       Finally, Mr. Durham argues that the errors he alleges, taken together, deprived him

of a fair trial. Aplt. Br. at 59-60. “To analyze cumulative error, we aggregate all the

errors that we have found to be harmless and determine whether their cumulative effect

on the outcome of the trial mandates reversal.” United States v. Anaya, 

,

1060–61 (10th Cir. 2013) (quotations omitted). In conducting our cumulative error

analysis, we consider two of Mr. Durham’s claims: (1) the Brady claim,50 and (2) the




       50
          We “include[] [Brady claims] in the cumulative-error calculus if they have
been individually denied for insufficient prejudice.” Cargle v. Mullin, 

, 1207 (10th Cir. 2003). Here, as discussed above, we held that no Brady
violation occurred because the withheld evidence lacked materiality, which speaks to
prejudice. We therefore include the alleged Brady error in our cumulative error
analysis.

                                             103
prosecutorial misconduct claim.51

       “When there are both preserved and unpreserved errors, cumulative-error analysis

should proceed as follows: First, the preserved errors should be considered as a group

under harmless-error review. If, cumulatively, they are not harmless, reversal is

required.” 

(alterations and quotations omitted). “The only potential preserved

error is the [alleged Brady error]. Without other errors to aggregate, there can be no

cumulative harm.” 

proceed to the next step of our cumulative error

analysis.

       “If the preserved errors are cumulatively harmless, then the court should consider

whether those preserved errors, when considered in conjunction with the unpreserved

errors, are sufficient to overcome the hurdles necessary to establish plain error.” 

“That is, we look to whether the combination of the [alleged Brady

error] and the prosecutor’s statements regarding [Mr. Durham’s struggle with

homosexuality] affected Mr. [Durham]’s substantial rights or seriously affected the

fairness, integrity, or public reputation of judicial proceedings.” 

quotations omitted).

       Mr. Durham cannot show that the combination of the alleged Brady and

prosecutorial misconduct errors affected his substantial rights. As discussed above, he


       51
         In our above discussion of the prosecutorial misconduct claim, we “did not
determine whether [the] alleged errors constituted actual errors but instead concluded
that any potential errors did not merit reversal because they did not affect the
outcome of Mr. [Durham’s] case.” 

. “For the purposes of
cumulative error analysis, we assume without deciding that these alleged errors were
errors and proceed accordingly.” 

minimal (if any) prejudice from the alleged Brady error because defense

counsel—through Nurse Dunson—presented an effective rebuttal to Dr. Abdulkadir’s

testimony based on information that was substantially the same as the withheld evidence.

Moreover, the evidence of Mr. Durham’s guilt was strong. For example, the trial

evidence supporting the jury’s verdict included victim testimony and detailed written

confessions by Mr. Durham. ROA, Vol. 9 at 8, 15, 16; ROA, Vol. 12 at 658, 1406, 1440,

1458. “Consequently, even if we aggregate the[] alleged [Brady and prosecutorial

misconduct] errors, there is no cumulative error.” 

.

                                 III. CONCLUSION

      We affirm Mr. Durham’s convictions and sentence.




                                          105
16-6075, United States v. Durham

HARTZ, Circuit Judge, dissenting.

       In 2014, Defendant, 19 years old at the time, made his fourth missionary trip from

the United States to Kenya to volunteer at a home for impoverished children. A jury

acquitted him of traveling with the intent to engage in illicit sexual conduct. But he did

engage in illicit sexual conduct after his travel to Kenya. While living at the home, he

sexually assaulted a number of the boys and girls he was supposed to be helping. Kenyan

police said they could not arrest him, and he was permitted to return to the United States.

A federal jury convicted him of the offenses he committed after he arrived in Kenya.

       Defendant’s offenses were horrific. The only question is whether the United

States could properly prosecute him. The government asserts that Congress had the

authority to criminalize Defendant’s behavior under the Constitution’s Foreign

Commerce Clause because such conduct has a substantial effect on foreign commerce.

The panel majority agrees. I respectfully dissent.

       The only foreign “commerce” identified by the government is commercial sex

trafficking of children. I do not dispute that such trafficking is within the purview of the

Foreign Commerce Clause.1 But (1) there is no evidence in this case of any commercial

sexual activity, (2) I fail to see how conduct like that of Defendant has any impact on

commercial sexual activity, and (3) no one has presented to this court any evidence of

1
  Congress may also have authority over such trafficking under the Treaty Clause,
because this country has ratified the Optional Protocol to the Convention on the Rights of
the Child regarding the Sale of Children, Child Prostitution and Child Pornography. But
the government has not relied on the Treaty Clause in this case and the Optional Protocol
addresses only commercial activity.
such a connection. If Congress has authority under the Foreign Commerce Clause to

criminalize Defendant’s actions, it has power to criminalize any conduct by Americans

abroad.

       In my view, the Foreign Commerce Clause does not authorize Congress to

prohibit noncommercial sexual assaults, no matter how heinous, committed by

Americans abroad who formed the intent to commit the acts after arriving abroad. The

Interstate Commerce Clause would not permit Congress to prohibit noncommercial

sexual assaults within a State, even if the perpetrator had traveled from another State, so

long as the perpetrator did not form the intent to commit the act before arriving in the

State where the crime was perpetrated. The majority suggests that even if the Interstate

Commerce Clause would not authorize the domestic statute, a statute governing conduct

abroad would be valid under the Foreign Commerce Clause because it conveys more

expansive power than does the Interstate Commerce Clause and the Foreign Commerce

Clause is not limited by concerns about state sovereignty. But these suggestions are not

persuasive. The limits on congressional authority under the Interstate Commerce Clause

are based on the Supreme Court’s understanding of what it means to regulate commerce

and the understanding that provisions of a constitution creating a government of limited

power should not be interpreted in a way that would confer general police power.

Although federal power under the Foreign Commerce Clause exceeds that under the

Interstate Commerce Clause in some respects—in particular, the Foreign Commerce

Clause restricts state regulation of foreign commerce because of the need for this country



                                             2
to speak with one voice in foreign affairs—this additional power is irrelevant in the

present context.

        This dissent will travel much of the same ground as the panel opinion. But, as

might be expected, my description of the terrain will be somewhat different.

        I.      The Charge

        Defendant was convicted under 18 U.S.C. § 2423(c), which is part of the

Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act

(PROTECT Act) enacted in 2003. Section 105 of the Act, entitled “Penalties Against

Sex Tourism,” amended § 2423 to add a subsection (b) entitled “Travel with intent to

engage in illicit sexual conduct”2 and a subsection (c) entitled “Engaging in illicit sexual

conduct in foreign places.”3 In subsection (f) it defines illicit sexual conduct to include

commercial sex acts with persons under 18, production of child pornography, and sexual


2
    Subsection (b) states:
                 Travel with intent to engage in illicit sexual conduct.--A person who
        travels in interstate commerce or travels into the United States, or a United
        States citizen or an alien admitted for permanent residence in the United
        States who travels in foreign commerce, for the purpose of engaging in any
        illicit sexual conduct with another person shall be fined under this title or
        imprisoned not more than 30 years, or both.

This subsection replaced a somewhat narrower version in the Violent Crime
Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796.
3
    Subsection (c) states:
               Engaging in illicit sexual conduct in foreign places.--Any United
        States citizen or alien admitted for permanent residence who travels in
        foreign commerce or resides, either temporarily or permanently, in a
        foreign country, and engages in any illicit sexual conduct with another
        person shall be fined under this title or imprisoned not more than 30 years,
        or both.

                                               3
acts with persons under 18 that would violate chapter 109A of the federal criminal code if

committed in federal territorial jurisdiction.4 The jury found that Defendant engaged in

conduct described in Chapter 109A. He was not charged with committing any

commercial sex act, which is defined in 18 U.S.C. § 1591 as “any sex act, on account of

which anything of value is given to or received by any person.” And he was acquitted of

a charge under § 2423(b), which requires that the defendant “travel[] in foreign

commerce, for the purpose of engaging in any illicit sexual conduct.”

         The question before the court is whether the power to regulate commerce with

foreign nations includes the power to punish Americans who traveled to a foreign nation

and then, in what was not a commercial sex act, decided to and did molest a child there.

To answer the question requires a deep dive into the Foreign Commerce Clause.

         II.    The Commerce Clause

         The Constitution grants Congress the power “[t]o regulate Commerce with foreign

Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art.1,

§ 8, cl. 3. Almost two centuries ago Chief Justice Marshall noted the commonality of the

4
    Subsection (f) states:

          Definition.--As used in this section, the term “illicit sexual conduct”
          means-

         (1) a sexual act (as defined in section 2246) with a person under 18 years of
         age that would be in violation of chapter 109A if the sexual act occurred in
         the special maritime and territorial jurisdiction of the United States;

         (2) any commercial sex act (as defined in section 1591) with a person under
         18 years of age; or

         (3) production of child pornography (as defined in section 256(8)).

                                                4
three clauses within the Commerce Clause—the Foreign Commerce Clause, the Interstate

Commerce Clause, and the Indian Commerce Clause—in an opinion construing the

meaning of the Interstate Commerce Clause. He wrote, “It has been truly said, that

commerce, as the word is used in the constitution, is a unit, every part of which is

indicated by the term.” Gibbons v. Ogden, 

, 194 (1824). Having previously

stated the accepted meaning of commerce in the context of international trade, he

concluded that “the word . . . must carry the same meaning throughout the sentence, and

remain a unit, unless there be some plain intelligible cause which alters it.” 

infer that the same proposition applies to the word regulate in the Clause. Thus, when

interpreting the Foreign Commerce Clause to resolve this case, one can look to Supreme

Court doctrine under the other commerce clauses, while recognizing that there may well

be “plain intelligible cause[s]” that require differentiation among the clauses. I begin

with a brief explanation of why I think that doctrine under the Indian Commerce Clause

teaches little about how to interpret the Foreign Commerce Clause in the context of this

case, and then I compare the Foreign Commerce Clause and the Interstate Commerce

Clause.

                      A. The Indian Commerce Clause

       The constitutional provision containing the Interstate Commerce Clause and the

Foreign Commerce Clause also grants congressional power “[t]o regulate Commerce . . .

with the Indian Tribes.” U.S. Const. art. 1, § 8, cl. 3. The Supreme Court has described

the federal power “to legislate in respect to Indian tribes . . . as plenary and exclusive.”

United States v. Lara, 

, 200 (2004) (internal quotation marks omitted). That

                                               5
plenary power has been exercised so far as to impose federal criminal law within Indian

territory. See, e.g., 18 U.S.C. § 1153 (major crimes by Indians committed in Indian

country). Is similar authority conveyed under the Foreign Commerce Clause? After all,

at first glance the Indian Commerce Clause would appear to be a close relative of the

Foreign Commerce Clause. The relationship between this nation and Indian tribes has

much in common with the relationship between this nation and foreign nations. At the

time of the Founding (and long after), the tribes were treated as sovereignties with which

this country entered into treaties.

       On closer inspection, however, the comparison cannot be sustained. Although the

Indian Commerce Clause was juxtaposed with the other two commerce clauses, it was a

late add-on at the constitutional convention, see Albert S. Abel, The Commerce Clause in

the Constitutional Convention and in Contemporary Comment, 

. Rev. 432,

467 (1941) (Abel) (the clauses granting the other two commerce powers “had been

published by the committee of detail two weeks . . . before the subject of the Indian trade

was introduced on the floor of the convention”); and, more importantly, the Indian-

commerce power was a special subject never discussed in relation to the other two

powers, see 

(“Whatever regulation of commerce might mean in connection

with transactions with the Indians, it was so distinct and specialized a subject [at the

Convention] as to afford no basis for argument as to the meaning of the rest of the

clause.”).

       Moreover, congressional power over Indian tribes does not derive just from the

Commerce Clause. As additional sources of “plenary and exclusive” power with respect

                                              6
to Indian tribes, which have been described by the Court as “dependent sovereign[s]” that

are not States, 

(emphasis added), the Supreme Court has identified

the Treaty Clause, the Property Clause, and “preconstitutional powers necessarily

inherent in any Federal Government, namely, powers that this Court has described as

‘necessary concomitants of nationality,’” 

And it has pointed to the federal

government’s assumption of “guardian-ward” status with respect to Indian Tribes as a

source for Congress’s “plenary power . . . to deal with the special problems of Indians.”

Morton v. Mancari, 

, 551 (1974). Given this unique status of Indians in our

constitutional system, I think that one can learn very little about Foreign Commerce

Clause power over Americans in foreign nations (the situation presented in this appeal)

by examining congressional authority in Indian country.

                     B. The Interstate Commerce Clause

       The component of the Commerce Clause that has bred the most Supreme Court

doctrine is the Interstate Commerce Clause. Although, as Chief Justice Marshall

suggested, special considerations pertinent to each clause preclude mechanical

application to one clause of doctrine regarding another, I first consider interstate-

commerce doctrine and then address what, if any, adjustments are needed.

       I begin with propositions regarding interstate commerce that are derived from

notions of international commerce. Chief Justice Marshall’s description of commerce

was adopted by Chief Justice Rehnquist in United States v. Lopez, 

(1995):

“‘Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It

describes the commercial intercourse between nations, and parts of nations, in all its

                                              7
branches, and is regulated by prescribing rules for carrying on that intercourse,’” 

(quoting 

–90). But “limitations on the commerce power are

inherent in the very language of the Commerce Clause.” 

Chief Justice

Marshall:

              It is not intended to say that these words comprehend that
       commerce, which is completely internal, which is carried on between man
       and man in a State, or between different parts of the same State, and which
       does not extend to or affect other States. Such a power would be
       inconvenient, and is certainly unnecessary.
              . . . The enumeration presupposes something not enumerated; and
       that something, if I regard the language, or the subject of the sentence, must
       be the exclusively internal commerce of a State.

Id. (quoting 

–95). In recognition of these limitations, the

Supreme Court has identified “three categories of regulations permitted by the Interstate

Commerce Clause: (1) regulation of “‘use of the channels of interstate commerce’”; (2)

regulation of “‘instrumentalities of interstate commerce, or persons or things in interstate

commerce’”; and (3) regulation of “‘activities that substantially affect interstate

commerce.’” People for Ethical Treatment of Prop. Owners v. United States Fish &

Wildlife Serv., 

, 1000 (10th Cir. 2017) (quoting 

–59).

       Under the first category Congress can bar a class of goods or people from the

channels of commerce because they are deemed to be tainted by “immoral [or] injurious

uses.” United States v. Patton, 

, 621 (10th Cir. 2006). Thus, Congress can

ban the interstate transportation of kidnapped persons or stolen goods, see Perez v.

United States, 

, 150 (1971); of women for the purpose of prostitution, see

Caminetti v. United States, 

, 491–92 (1917); of plural wives for the purpose


                                              8
of polygamy, see Cleveland v. United States, 

, 18 (1946); of lottery tickets,

see Champion v. Aims, 

, 354–55 (1903); or of goods produced by underpaid

workers, see United States v. Darby, 

, 112–14 (1941). These cases illustrate

that this regulatory authority is not limited to legislation targeting commercial activities.

See Heart of Atlanta Motel, Inc. v. United States, 

, 256 (1964).

       Under the second category Congress can regulate “the means of interstate

commerce”—such as ships, railroads, airplanes, and the telegraph; can regulate

“intrastate activities that threaten these instrumentalities”; and can protect “the persons or

things that the instrumentalities are moving.” 

. For example,

Congress can ban the destruction of aircraft or theft from interstate shipments. See 

.

       Under the third category Congress can regulate activities, even intrastate and

noncommercial activities, if “Congress ha[s] a rational basis to find that the regulated

activity, taken in the aggregate, would substantially affect interstate commerce.” 

. This authority permits Congress to restrict a farmer’s production of

wheat for his own use when the restriction’s purpose is to boost the price of wheat in

commerce. See Wickard v. Filburn, 

, 127–29 (1942); 

(the statute

was designed “to control the volume [of wheat] moving in interstate and foreign

commerce in order to avoid surpluses and shortages,” thereby controlling the price). This

authority also permits Congress to control marijuana in national commerce by barring the

noncommercial cultivation, possession, and use of marijuana for personal medical

purposes. See Gonzales v. Raich, 

, 25–33 (2005). To determine whether a

                                              9
statute is authorized under this category, courts consider (1) whether the regulated

activity is commercial or economic; (2) the relation of the regulated activity to interstate

commerce; (3) congressional findings about the effects of the regulated activity on

commerce; and (4) whether the statute is limited to activities having an explicit

connection to interstate commerce—a so-called jurisdictional hook. See 

, 626, 630, 632.

       When the regulated activity is commercial, the regulation is generally permissible,

given how integrated our national economy is. See 

Otherwise, “the last three

factors are significant.” 

Because almost any human activity could be said to

have some effect on commerce, the Supreme Court has carefully examined the

relationship of the regulated activity to commerce to be sure that the Commerce Clause

power is not rendered so expansive as to supersede all the other grants of power under the

Constitution. In particular, an effect cannot be considered “substantial” if inclusion of

such effects would as a practical matter confer a plenary police power, contrary to the

notion that the Constitution established a government of limited powers. In United States

v. 

, the Court invalidated a federal statute prohibiting possession of

a firearm in a school zone, despite arguments that such possession may result in violent

crime, which can affect the national economy (1) because the costs imposed are spread

throughout the population, (2) because fear of violence deters individuals from traveling

to unsafe areas, and (3) because the threat to the educational system will reduce the

productivity of the citizenry. See 

7–68 (to expand interstate-commerce power to

encompass the statute “would require us to conclude that the Constitution’s enumeration

                                             10
of powers does not presuppose something not enumerated, and that there never will be a

distinction between what is truly national and what is truly local” (citation omitted)).

And in United States v. Morrison, 

(2000), the Court invalidated a federal

civil remedy for the victims of gender-motivated crimes of violence, rejecting arguments

that gender-motivated violence affects interstate commerce because it can deter interstate

travel, engaging in interstate business, etc. See 

(“The Constitution requires

a distinction between what is truly national and what is truly local . . . . The regulation

and punishment of intrastate violence that is not directed at the instrumentalities,

channels, or goods involved in interstate commerce has always been the province of the

States.”). The problem with the statutes in Lopez and Morrison was not that it was

irrational to think that the regulated activities would affect commerce, but that the effect

was so indirect—and therefore not “substantial”—that to uphold the statute would be to

uphold unlimited Commerce Clause power. See 

(Lopez and

Morrison rejected the government’s arguments “largely on the ground that, if accepted,

similar effects could be invoked in every case, and the Commerce Clause would become,

in effect, a grant of general governing authority”).

       It is important to keep in mind this limitation on the third category of regulation

under the Commerce Clause—the regulation of activities that substantially affect

interstate commerce – when considering the scope of the first two categories—(1) the

regulation of the use of the channels of commerce and (2) the regulation of the

instrumentalities of commerce and persons or things in interstate commerce. The first

two categories are qualitatively different from the third. “The first two categories are

                                             11
self-evident, since they are the ingredients of interstate commerce itself.” 

(Scalia, J., concurring). “[A]ctivities that substantially affect interstate

commerce [, however,] are not themselves part of interstate commerce.” 

the first two categories can be upheld just by identifying what is being regulated – the

use of the channels of interstate commerce, or instrumentalities of interstate commerce,

or persons or things in interstate commerce. But determining the propriety of regulation

under the third category requires more. The courts must determine whether the activity

being regulated has a causal connection to interstate commerce that can properly be

deemed “substantial.” An improper expansion of either of the first two categories to

encompass regulation that properly belongs within the third category therefore would

evade the constitutional constraints imposed on the third category of regulation. For

example, this court has said that under the channels category, “Congress regulates not

conduct related to interstate commerce but rather interstate commerce itself, barring from

the channels of interstate commerce a class of goods or people”; and the court described

that category of regulation as being “confined to statutes that regulate interstate

transportation itself, not manufacture before shipment or use after shipment.” 

. The court concluded that “[a] prohibition on the mere intrastate

possession of body armor cannot be upheld under Congress’s power to regulate the

channels of interstate commerce.” 

aspect of the Supreme Court’s three-part test is often overlooked. The

division of interstate-commerce regulation into three categories is less a policy matter

than it is definitional. To my knowledge, no one has suggested that there is some other

                                              12
type of possible regulation outside of those categories. Controversy concerns only

whether one of those types of regulation is permitted at all by the Constitution, see Nat’l

Fed’n of Indep. Bus. v. Sebelius, 

, 2677 (Thomas, J., dissenting) (stating that

there is no constitutional power to regulate activity simply because it has a “substantial

effect” on commerce), or what is the proper scope of one of the categories (such as the

question of how substantial the effect on commerce must be).

                           C. The Foreign Commerce Clause

       I next consider how much of this Interstate Commerce Clause doctrine translates

to the Foreign Commerce Clause. How much of the doctrine should be carried over and

how much is not applicable because of some special consideration—that is, in the words

of 

, because of some “plain intelligible cause”? In particular, how

should one analyze congressional authority under the Foreign Commerce Clause over

conduct of Americans abroad, as in the case before us?

       The critical question is when, if ever, the terms commerce and regulate have a

different meaning under the Foreign Commerce Clause than they do under the Interstate

Commerce Clause. As previously noted, Chief Justice Marshall indicated the general

rule that they are understood as having the same meaning in the foreign and domestic

context, saying: “Commerce, undoubtedly, is traffic, but it is something more: it is

intercourse. It describes the commercial intercourse between nations, and parts of

nations, in all its branches, and is regulated by prescribing rules for carrying on that

intercourse.” 

–90. Unfortunately, however, there are no



                                              13
Supreme Court opinions on whether the terms have distinct meetings in the context of

regulation of the conduct of Americans abroad.

       The Court’s only decisions on the Foreign Commerce Clause have concerned the

scope of the Clause with respect to conduct within the borders of the United States and,

consequently, the relative powers of the federal and state governments under the Clause.

Typical of the early opinions interpreting the Clause, in Board of Trustees of University

of Illinois v. United States, 

, 56 (1933), the Court rejected a claim that a

university could not be required to pay customs duties on imported scientific apparatus

because the school was an instrumentality of the State. See 

–59. The Court

emphasized the preeminence of federal power over states’ rights in this field: “To permit

the states and their instrumentalities to import commodities for their own use, regardless

of the requirements imposed by the Congress, would undermine, if not destroy, the single

control which it was one of the dominant purposes of the Constitution to create.” 

In that case there could be no question that the federal law—which imposed a

customs duty on imported equipment—was a regulation of foreign commerce. The

argument to the court was that there should be an exemption from that regulation for state

entities. And the Court rejected the argument, noting the importance of not allowing

variation among the States.

       Fifty years later, in Japan Line, Ltd. v. County of Los Angeles, 

(1979), the Court considered not the powers of Congress, but the limits that the power

given to Congress under the Foreign Commerce Clause implicitly places on the powers of

the States in the absence of federal legislation—the so-called dormant Foreign Commerce

                                             14
Clause. The State of California sought to assess an ad valorem property tax on cargo

containers aboard Japanese ships temporarily docked in California’s ports. See 

The Japanese owner of the containers objected that the State lacked the power to

burden foreign commerce in this way. See 

The Court agreed, holding that

the dormant Foreign Commerce Clause vests in the federal government the exclusive

power to regulate commerce with foreign nations and forbids the tax. See 

       There was no question that the activity at issue in Japan Lines was regulation of

foreign commerce. The question was the extent to which the States shared this regulatory

power with the federal government. What the Court held was that the dormant Foreign

Commerce Clause limited the powers of States to regulate foreign commerce more than

the Interstate Commerce Clause limits the powers of States to regulate interstate

commerce. Indeed, the Court assumed that the California tax would be lawful if applied

to goods transported in interstate commerce. Under the dormant Interstate Commerce

Clause test set forth in Complete Auto Transit, Inc. v. Brady, 

(1977), a tax

does not impose an impermissible burden on interstate commerce if it “‘is applied to an

activity with a substantial nexus with the taxing State, is fairly apportioned, does not

discriminate against interstate commerce, and is fairly related to the services provided by

the State.’” Japan 

–45 (quoting Complete 

).

The Court said, however, that “two additional considerations” are at play under the

Foreign Commerce Clause. 

One is the imperative, mentioned in Board of

, that the country “speak with one voice when regulating

commercial relations with foreign governments.” Japan 

(internal

                                             15
quotation marks omitted). State taxes on foreign commerce could generate international

disputes and result in retaliation against American instrumentalities present in foreign

jurisdictions. See 

The other consideration is that the “fair apportionment”

component of the Complete Auto test cannot be enforced in the international context. See

That test can prevent multiple taxation of instrumentalities in interstate

commerce because the Supreme Court can “enforce full apportionment by all potential

taxing bodies.” 

In the international sphere, however, there is no “authoritative

tribunal capable of ensuring that the aggregation of taxes is computed on no more than

one full value.” 

“[N]either [the] Court nor this Nation can insure full

apportionment when one of the taxing entities is a foreign sovereign.” 

see

Anthony Colangelo, The Foreign Commerce Clause, 

. Rev. 949, 966–69 (2010)

(analyzing Japan Line).

       One sentence in Japan Line requires careful analysis. In discussing the need for

national uniformity with respect to foreign commerce, the Court said, “Although the

Constitution, Art. I, § 8, cl. 3, grants Congress power to regulate commerce ‘with foreign

Nations’ and ‘among the several States’ in parallel phrases, there is evidence that the

Founders intended the scope of the foreign commerce power to be the greater.” 

The government’s brief points to this sentence in support of its argument that

congressional power under the Foreign Commerce Clause is “plenary.” But the sentence

must be read in context. The Court did not say that the term commerce has a broader

meaning in the foreign-commerce context than it does in the interstate-commerce context.

Nor did it say that the term regulate has a broader meaning in the former context. Nor

                                             16
did the Japan Line opinion have occasion to consider congressional power to regulate the

conduct of Americans abroad. Indeed, the question was not the extent of congressional

power; no one was arguing about whether Congress could pass legislation imposing taxes

like those imposed by California, or even authorize states to impose such taxes. Rather,

the question was the exclusivity of congressional power: Could California, in the absence

of federal regulation, impose its own regulations? The one-voice principle in Foreign

Commerce Clause jurisprudence does not expand congressional power. It does not add a

megaphone to magnify the voice of Congress and permit it to enact legislation that it

would not otherwise be permitted to enact. Rather, it is a restriction on the States. It

silences them so that only the voice of the national government is heard on international

matters.

       This construction of the meaning of the comment in Japan Lines is consistent

with the “evidence” that the Court referred to in its footnote. See 

n.12. The

footnote cites to Federalist No. 42, which discusses the powers granted the federal

government to “regulate the intercourse with foreign nations,” such as the powers to

make treaties, to send and receive ambassadors, and to regulate foreign commerce. The

Federalist No. 42, at 231 (Madison) (E.H. Scott ed., 1898). The essay states: “This class

of powers forms an obvious and essential branch of the federal administration. If we are

to be one nation in any respect, it clearly ought to be in respect to other nations.” 

passage is certainly support for the exclusivity of federal authority noted in Japan

Line, but it has no relevance to our case.5

       The Court’s footnote also cites a law-review article as “concluding, after an

exhaustive survey of contemporary materials: ‘Despite the formal parallelism of the

grants, there is no tenable reason for believing that anywhere nearly so large a range of

action was given over commerce “among the several states” as over that “with foreign

n.12 (quoting Abel, supra at 475). Nothing in the article,

however, even hints at the possibility that the Foreign Commerce Clause could be used to

govern noncommercial conduct of Americans abroad. The quotation from the Abel

article is the conclusion of a discussion confirming the accuracy of Madison’s

recollection of the Convention decades afterwards, in which he “explicitly negatives the

suggestion that the [Interstate Commerce Clause] was designed to have as wide an

operation as the companion grant with regard to foreign commerce, and assigns to it

instead merely ‘a negative and preventive’ function, to control state-created

discriminations and preferences.” Abel at 469 (quoting Letter of February 13, 1829, to J.

C. Cabell, as quoted in 3 Farrand 478). In other words, Abel was saying that the


5
  The essay also notes the role played by the Interstate Commerce Clause in facilitating
foreign commerce: “[I]t may be added, that without this supplemental provision [the
Interstate Commerce Clause], the great and essential power of regulating foreign
commerce would have been incomplete and ineffectual. A very material object of this
power was the relief of the States which import and export to other States, from the
improper contribution levied on them by the latter.” The Federalist No. 42 at 235. An
1829 letter from James Madison cited in the Japan Line footnote also states this purpose
for the Interstate Commerce Clause. Again, the point being made is the need for
exclusive federal power.

                                              18
Framer’s view, totally contrary to current doctrine, was that the Interstate Commerce

Clause was not considered as a grant of affirmative legislative power to regulate

interstate commerce, but as a means to constrain state interference with such commerce.

See 

–75; see also 

(“There is thus not a single occasion in the

proceedings of the convention itself where the grant of power over commerce between

the states was advanced as the basis for independent affirmative regulation by the federal

government. Instead, it was uniformly mentioned as a device for preventing obstructive

or partial regulations by the states.”). Moreover, the Abel article points out the limited

scope that the Founders gave to the term commerce even in the foreign-commerce

context: “These three large classes of subjects—fiscal regulation [that is, duties] as to

imports and exports, navigation, ‘mercantile’ enterprises—are the only ones that there is

any evidence for believing were thought of by any one as embraced within ‘commerce’

or affected by the grant of power to regulate it.” Abel, supra at 465; see also 

(emphasizing the narrow notion of mercantile (or merchant) enterprises at the time of the

Convention, stating that the merchant’s “activities conform nicely to those of the present-

day importer, commission house, and wholesale firm, with just a dash of the commodity

exchange; they hardly embrace those of the jobber, the hawker, or the retailer, who to us

is the merchant par excellence.”). What we now consider to be the scope of the

interstate-commerce power surely exceeds the Founders’ conception of the foreign-

commerce power. See 

(“Today [that is, 1941] we are accustomed to think of

the arteries of commerce, the highways and the inland streams, harbors, bridges, and the



                                             19
like, as within the ambit of congressional power under the commerce clause. This is not

the way the framers of the constitution looked at the matter.”).6

        The panel opinion suggests that the text of the Commerce Clause indicates that

power under the Foreign Commerce Clause exceeds that under the Interstate Commerce

Clause. See Maj. Op. at 27–28. It notes that the Clause speaks of commerce “with

foreign Nations” but “among the several States.” But the difference in prepositions

indicates the opposite. If the Clause permitted regulation of commerce “among foreign

nations”—so that the two clauses used the same preposition—then Congress would be

empowered to regulate commerce among France, England, and Italy, even if the United

States were not involved at all. Thus, use of the preposition with instead of the

preposition among obviously limits the extent of the Foreign Commerce Clause. See

Colangelo supra at 970–71 (explaining the difference between the uses of the two

prepositions in the Commerce Clause).7

         In short, the greater-power statement by the Supreme Court in Japan Line should

not be overread. The statement was made in the context of the assertion that the need for

national uniformity under the Foreign Commerce Clause could require greater limitations



6
    The Japan Line footnote also cited two student notes that do not affect the analysis.
7
  I am perplexed by the statement: “‘Among’ in the [Interstate Commerce
Clause] restrains Congress in regulating intrastate matters—a constraint not
present in the [Foreign Commerce Clause].” Maj. Op. at 27. Since the Foreign
Commerce Clause requires that the commerce be that of a foreign country with the
United States, it obviously restrains the application of that Clause within a foreign
country.

                                              20
on state action than would the Interstate Commerce Clause alone. As Justice Thomas has

observed:

       This Court’s statements about the comparative breadth of the Foreign
       Commerce Clause are of questionable relevance where the issue is
       Congress’ power to regulate, or even criminalize, conduct within another
       nation’s sovereign territory. . . . [E]ven if the foreign commerce power
       were broader than the interstate commerce power as understood at the
       founding, it would not follow that the foreign commerce power is broader
       than the interstate commerce power as this Court now construes it.

Baston v. United States, 

, 852 (2017) (Thomas, J., dissenting from denial of

certiorari).

       This is not to say that national powers under the Foreign Commerce Clause and

the Interstate Commerce Clause must be identical. After all, Japan Line makes clear that

they are not. When it comes to state taxation of commerce, there are “plain intelligible

cause[s],” 

, why States must be more limited in taxing foreign

commerce than in taxing interstate commerce. For one thing, there is the need for the

nation to speak with one voice in relations with other countries. That “cause,” however,

has no purchase in this case. The statutory provision under which Defendant was

convicted was hardly animated by any perceived need to prevent the various States from

engaging in conflicting policies toward foreign nations.

       The panel opinion also suggests that some interstate-commerce doctrine—in

particular, the gloss presented in Lopez and Morrison—does not apply because the limits

on interstate-commerce power in that doctrine reflect concerns for the sovereignty of the

States, concerns not present in foreign-commerce doctrine. But surely there is no reason

to define the terms commerce and regulate more broadly in the foreign-commerce

                                            21
context than in the interstate-commerce context. And the majority’s approach overlooks

a key principle underlying Lopez and Morrison: The Court’s concern was not just that an

overbroad conception of the interstate-commerce clause would give the federal

government authority that could override police powers held by the States; it also

expressed a fundamental concern that an overbroad conception would give the federal

government general police powers, contrary to the constitutional framework of a federal

government of limited power. See, e.g., 

(“if we were to accept the

Government’s arguments, we are hard pressed to posit any activity by an individual that

Congress is without power to regulate”); 

6 (“The Constitution . . . withhold[s]

from Congress a plenary police power that would authorize enactment of every type of

legislation.”); 

7 (“To uphold the Government’s contentions here, we would have

to pile inference upon inference in a manner that would bid fair to convert congressional

authority under the Commerce Clause to a general police power of the sort retained by

the States.”); see also Nat’l Fed’n of Indep. Bus., 

, 535–36 (Roberts, C.J.,

writing separately) (“This case concerns two powers that the Constitution does grant the

Federal Government, but which must be read carefully to avoid creating a general federal

authority akin to the police power.”).

       The real danger lies in overbroad application of the third type of regulation under

the Commerce Clause: the regulation of activities that substantially affect commerce.

Given the reality that in modern times every activity can be said to have some effect on

commerce, courts must set reasonable limits on the meaning of “substantial effect” or

concede that the vision of a Constitution of limited powers, see, e.g., U.S. Const. amend.

                                            22
X, is a mirage and anything can be justified under the Commerce Clause. The power

under the Foreign Commerce Clause is one of the limited powers granted to Congress by

the Constitution. Courts should not construe it in a way that would amount to ceding to

Congress a general police power over Americans with respect to all conduct beyond our

shores.

       Unlike the Supreme Court doctrine that the Foreign Commerce Clause embodies

the concept that the country should speak with one voice in foreign affairs, which is

firmly supported by evidence from the Founding, there is nothing—at least nothing

brought to my attention or that I have found—suggesting that the Framers held any idea

remotely like the possibility that the Foreign Commerce Clause would provide plenary

power to police the behavior of Americans in foreign countries. Rather, the evidence is

to the contrary. As Chief Justice Marshall explained:

               The jurisdiction of the nation within its own territory is necessarily
       exclusive and absolute. It is susceptible of no limitation not imposed by
       itself. Any restriction upon it, deriving validity from an external source,
       would imply a diminution of its sovereignty to the extent of the restriction,
       and an investment of that sovereignty to the same extent in that power
       which could impose such restriction.
               All exceptions, therefore, to the full and complete power of a nation
       within its own territories, must be traced up to the consent of the nation
       itself. They can flow from no other legitimate source.

The Schooner Exch. v. McFaddon, 

, 136 (1812) (emphasis added). And

specifically with respect to trade, Alexander Hamilton wrote the following a few years

after ratification of the Constitution:

              Congress . . . may regulate by law our own Trade and that which
       foreigners come to carry on with us, but they [that is, Congress] cannot
       regulate the Trade which we may go to carry on in foreign countries, they

                                             23
       can give to us no rights, no privileges there. This must depend on the will
       and regulation of those countries; and consequently it is the province of the
       power of Treaty to establish the rule of commercial intercourse between
       foreign nations and the U[nited] States. The Legislature may regulate our
       own Trade but Treaty only can regulate the mutual Trade between our own
       and another Country.

Alexander Hamilton, The Defence No. XXXVI (Jan. 2, 1796), in 20 The Papers of

Alexander Hamilton (Harold C. Syrett ed. 1974), available at

http://founders.archives.gov/documents/Hamilton/01-20-02-00028; see 

(“[A]n unbounded reading of the Foreign Commerce Clause allows the

federal government to intrude on the sovereignty of other nations—just as a broad

reading of the Interstate Commerce Clause allows it to intrude on the sovereignty of the

States.”), cert. denied, 

(2015).

       These views of the exclusivity of sovereign jurisdiction are overstated, at least

under current international law. I recognize that international law now generally permits

a nation “to prescribe law with respect to . . . the activities, interests, status, or relations of

its nationals outside as well as within its territory.” Restatement (Third) of the Foreign

8
  The panel opinion points to an additional passage from earlier in Hamilton’s essay:
“[A nation’s] power to make laws . . . acts compulsively upon all persons, whether
foreigners or Citizens, and upon all things, within its territory, and it acts in like manner
upon its own citizens and their property without its territory in certain cases and under
certain limitations. But it can have no obligatory action whatsoever upon a foreign nation
or any person or thing within the jurisdiction of such foreign Nation.” The Defence. The
panel opinion reads this passage as permitting prosecution for acts in another country so
long as the prosecution occurs here. See Maj. Op. 34 n.17. This is not an unreasonable
interpretation if the passage is read in isolation, although such a prosecution would seem
to contradict the notion expressed by Hamilton that a nation cannot impose obligations on
someone (that is, on his or her conduct) while in a foreign jurisdiction. But in any event,
any ambiguity in this passage is resolved by the later passage quoted in the above text,
which says that Congress “cannot regulate the trade which we may go to carry on in
foreign countries.” The Defence.
                                                24
Relations Law of the United States § 402 (1986); see United States v. Mitchell, 

, 1001 (5th Cir. 1977). But see Restatement (Third) §403(1) (“a state may not

exercise jurisdiction to prescribe law with respect to a person or activity having

connections with another state when the exercise of such jurisdiction is unreasonable”);

Colangelo supra at 1035–37. But that is beside the point that is relevant here. This

proposition of international law does not distinguish the Foreign Commerce Clause from

the Interstate Commerce Clause. International law would permit the federal government

to enact the statutes struck down in Lopez and Morrison. The question is what our

Constitution permits. And the statements by Chief Justice Marshall and Alexander

Hamilton, together with the absence of any evidence that the Foreign Commerce Clause

was conceived as providing congressional authority to govern all (or any?) conduct in

foreign nations, strongly suggest that the sovereignty of foreign governments was as

much assumed with respect to the Foreign Commerce Clause as was state sovereignty

with respect to the Interstate Commerce Clause. (It should also be noted that in one

respect the sovereignty of foreign nations was entitled to greater consideration—namely,

the States, by ratifying the Constitution, had voluntarily ceded some of their sovereignty

to the federal government.)

       Indeed, Japan Line based its limitations on state power imposed by the Foreign

Commerce Clause in part on the recognition of the limits of the federal government’s

power in other countries. When foreign commerce is taxed by the States, the Supreme

Court cannot prevent multiple taxation by requiring apportionment of the taxes by the

sovereignties imposing them, as the Court can when only interstate commerce is

                                             25
involved, because the Court has no authority over foreign governments. 

–48. And for the same reason, the federal government cannot prevent foreign nations

from retaliating when the States impose such taxes. See 

Federal power under

the Foreign Commerce Clause should be construed with consideration of the sovereign

power of other nations just as federal power under the Interstate Commerce Clause is

constrained by state sovereignty. See 

; Anthony J. Colangelo,

The Foreign Commerce Clause, 

. Rev. 949, 971–83 (2010) (identifying the

“Foreign Sovereignty Concern” as a limit on congressional power under the Foreign

Commerce Clause).

       Further, the Tenth Amendment—“The powers not delegated to the United States

by the Constitution, nor prohibited by it to the States, are reserved to the States

respectively, or to the people”—emphasizes that exceeding power under the Foreign

Commerce Clause infringes on the rights of the people. See 

(“[A]n overbroad interpretation of the Foreign Commerce Clause allows the government

to intrude on the liberty of individual citizens. And that seems at least as wrong as a

reading of the Commerce Clause that allows the government to intrude on the States. See

U.S. Const. amend. X (reserving power to the States ‘or to the people.’”).

       I should emphasize that the point I am making is a limited one. I am not saying

that the Constitution forbids the exercise of any power over conduct in other nations. For

one thing, constitutional provisions other than the Foreign Commerce Clause can be the

source of such power. And my view does not totally foreclose the exercise of such power

under the Foreign Commerce Clause, even as authority for other provisions of the

                                              26
PROTECT Act. For example, what I am saying does not call into question the

constitutionality of the prohibition on travel to a foreign country with the intent to engage

in illicit sexual conduct (the charge Defendant was acquitted of) or the prohibition on

engaging in commercial illicit sexual conduct after travel to a foreign country. I am

merely rejecting the notion that because the Foreign Commerce Clause overrides state

sovereignty, the power under the Clause to regulate conduct in foreign nations is

unconstrained.

       To summarize, absent some “plain, intelligible cause”—such as the need for the

nation to speak with one voice in foreign affairs or the limits of national power in a

foreign country—I shall assume that the language “to regulate commerce” has the same

meaning in the Foreign Commerce Clause as in the Interstate Commerce Clause. In

particular, I borrow jurisprudence regarding the Interstate Commerce Clause in two

respects. First, since the power of Congress under both that clause and the Foreign

Commerce Clause is “[t]o regulate Commerce,” I can adopt the Interstate Commerce

Clause doctrine interpreting that language to encompass three types of regulation:

regulation of the channels of commerce, regulation of the instrumentalities of commerce,

and regulation of activities that substantially affect commerce. See 

(“Cases . . . have identified three general categories of regulation in which Congress is

authorized to engage under its commerce power”); United States v. Clark, 

,

1118 (9th Cir. 2006) (Ferguson, J., dissenting) (“A fairer understanding of the tri-

category framework is that it has evolved not only in response to federalism concerns that

courts have read into Congress’s Interstate Commerce power, but also to give content to

                                             27
what it means generally ‘[t]o regulate Commerce,’ art. I, § 8, cl. 3.” (brackets in

original)). Other courts and judges have done the same when evaluating congressional

enactments under the Foreign Commerce Clause. See 

(“We

agree that the Lopez categories provide a useful starting point in defining Congress’s

powers under the Foreign Commerce Clause.”); 

(analyzing

constitutionality of PROTECT Act provision under “Lopez’s ‘time-tested’ [Interstate

Commerce Clause] framework” since the “Supreme Court has not yet held that Congress

has greater authority to regulate activity outside the United States than it does within its

borders”); 

(Ferguson, J., dissenting) (criticizing majority for

departing from Interstate Commerce Clause framework in resolving issue under Foreign

Commerce Clause); United States v. Reed, No. CR 15-188 (APM), 

,

at *7 (D.D.C. July 27, 2017) (“Given the ambiguous contours of this constitutional power

and the dearth of precedent in this jurisdiction, this court will look—as others have

done—to the well-known Interstate Commerce Clause framework to analyze whether

Section 2423(c) is a constitutional exercise of Congress’ Commerce Power.”); cf. United

States v. Baston, 

, 668 (11th Cir. 2016), cert. denied, 

(2017)

(upholding statute on assumption “that the Foreign Commerce Clause has the same scope

as the Interstate Commerce Clause”); United States v. Bredimus, 

, 204–08

(5th Cir. 2003) (analyzing 18 U.S.C. § 2423(b) foreign-commerce issue under framework

of interstate-commerce case law, but stating that under Japan Line greater deference is

owed to regulation of foreign commerce); United States v. Homaune, 

, 159 (D.D.C. 2012) (upholding statute on assumption that the “Foreign Commerce

                                             28
Clause is at least as broad as the more familiar Interstate Commerce Clause,” citing

Japan Line).

       Second, I adopt the limiting principle employed by the Court in the interstate-

commerce context that the power conferred by the Clause cannot be construed so broadly

as to encompass everything that can somehow be causally connected to commerce. Such

a construction would be contrary to any notion of the Constitution as the source of only

enumerated powers. See 

–19; 

(“The

Constitution . . . withhold[s] from Congress a plenary police power”); see also Nat’l

Fed’n of Indep. Bus. v. Sebelius, 

, 554 (2012) (separate opinion of Roberts,

C.J.) (“[O]ur cases have ‘always recognized that the power to regulate commerce, though

broad indeed, has limits.’” (quoting Maryland v. Wirtz, 

, 196 (1968)); 

(Congress’s power over commerce “must be read carefully to avoid creating a

general federal authority akin to the police power.”). In the contemporary world, where

everything can be said to be connected in some way to international commerce, the risk

of using the Foreign Commerce Clause to justify plenary police powers (not just at home,

but abroad as well) is every bit as great as the risk of using the Interstate Commerce

Clause for the same purpose. Thus, when I turn to congressional power under the

Foreign Commerce Clause to enact the third category of regulation—regulation of

activities that substantially affect commerce—I will keep in mind the Supreme Court’s

conception of “substantially” to preclude regulation of activities whose connection to

commerce is too indirect.



                                            29
       III.   Application of Foreign Commerce Clause to This Case

       I now proceed to consider whether § 2423(c), as applied to noncommercial illicit

sexual conduct, can be justified under the Foreign Commerce Clause as one of the three

types of permissible regulation.

                     A.     Channels of Commerce

       As discussed at length earlier in this opinion, the Commerce Clause grants

Congress the authority “to keep the channels of interstate commerce free from immoral

and injurious uses.” 

; see 

(“The

Commerce Clause reaches . . . the use of channels of interstate or foreign commerce

which Congress deems are being misused.” (emphasis added)). Under this authority the

Supreme Court has affirmed bans on interstate transportation of women who are to be put

to immoral purposes, 

; wives for the purpose of polygamy, see

; kidnapped persons, see 

; stolen

property, see id.; or lottery tickets, see Lottery 

–55. In these cases

the person or thing barred from interstate commerce was tainted by either prior immoral

conduct or the intent to engage in such conduct upon completion of the journey.

       That channels authority does not extend to the conduct for which Defendant was

convicted. I can assume that it extends to the conduct for which the jury found

Defendant not guilty—traveling in [foreign commerce] with the intent to commit illicit

sexual conduct. But absent that intent, Defendant could not be distinguished from any

ordinary international traveler. The channels of foreign commerce were free of immoral

and injurious uses since his intent was not found to be corrupt. He was not tainted at the

                                             30
time of travel. Cf. 

n.3 (“[T]he statute [in Caminetti] does not

criminalize the transportation of persons who happen, after crossing state lines, to

become prostitutes.”); 

(Ferguson, J., dissenting) (“The mere act

of boarding an international flight, without more, is insufficient to bring all of [a

person’s] downstream activities . . . within the ambit of Congress’s Foreign Commerce

power.”).

       The government nevertheless suggests that this court is bound to hold that the

statutory provision before us constitutes channels regulation because of our conclusion in

United States v. Hinckley, 

, that the Sex Offender Registration and

Notification Act (SORNA) can be upheld as regulation of the channels of commerce.

The rationale for SORNA is that convicted sex offenders pose a particular danger to the

public, the public needs to be warned of their proximity, and they should not be permitted

to misuse the channels of interstate commerce to move from the state of conviction to

another state to avoid this publicity. Under SORNA, sex offenders are not absolutely

prohibited from interstate travel, but they can do so only if they register promptly upon

establishing a new residence.

       SORNA is a comfortable fit as channels regulation. The person subject to

regulation is a person who can be identified while in the channels of commerce—the

person has been convicted of a sexual offense. Such persons can be considered tainted

things traveling in the channels of interstate commerce. And the SORNA registration

requirement is an incidental condition for permitting such persons to travel in those

channels. See United States v. Anderson, 

, 1070 (8th Cir. 2014) (“[T]he

                                              31
registration requirements of [SORNA] are part of the constitutional power Congress has

to punish sex offenders who cross state lines. Because Congress has the power to punish

sex offenders across state lines, Congress is able to exercise the ‘narrow’ and ‘incidental’

power of requiring those sex offenders to register.” (citation omitted)). That is a very

different situation from the statutory provision here, because the defendant traveling to a

foreign country cannot be singled out for any prior misconduct or even any intent to

commit misconduct in the future. Hinckley does not control this case.

       The government has not offered any principled basis, or any basis for that matter,

for upholding channels-of-commerce authority for Defendant’s offense that would not

permit Congress to subject an American to federal prosecution for any offense committed

abroad. Congress could penalize an American who traveled abroad and committed fraud,

gambled (even if lawful where conducted), or merely littered. The federal government

would have plenary police power over all Americans anywhere in the world. This cannot

be the product of a Constitution of limited powers. I respectfully disagree with the Third

Circuit’s reliance on the above-cited channel-of-commerce cases to sustain a similar

conviction. See 

.

                     B.     Instrumentalities of Commerce and Persons or Things in
                            Commerce

       Lopez held that “Congress is empowered to regulate and protect the

instrumentalities of interstate commerce, or persons or things in interstate commerce,

even though the threat may come only from intrastate 

. No

court has affirmed the PROTECT Act on this ground. The government, however, argues


                                             32
that Defendant was a person “in [foreign] commerce” and therefore subject to

congressional regulation. But this argument is based on a misconception of what it

means to be “in interstate [or foreign] commerce.” What Lopez was speaking of was

regulation governing persons or things while they are traveling. A law prohibiting

robbing people riding on an interstate stagecoach or thefts of property from trains would

be within this power. See 

(suggesting that a proper statute under

the Commerce Clause could “protect [an item] while it is moving in interstate

shipment”). Our precedent notes that “[t]he illustrative cases for this category involve

things actually being moved in interstate commerce, not all people and things that have

ever moved across state lines.” 

is obviously not protecting

Defendant while he is moving in foreign commerce, or protecting the instrumentalities of

foreign commerce that he is using. See 

stated in passing in 

, that SORNA would

be constitutional under this category of regulation of interstate commerce, we did not

distinguish the category as applied in that context from the first category of regulation—

regulation of the channels of commerce. And I have already explained how SORNA

differs from § 2423(c) under the first category, so Hinckley is distinguishable on that

score. I am reluctant to read the passing reference in Hinckley as a rejection of the more

thorough analysis provided by Patton of the second category of regulation. Cf. Auraria

Student Hous. v. Campus Vill. Apartments, 

, 1235 (10th Cir. 2016) (earlier

circuit precedent ordinarily prevails over later decision).



                                             33
                     C.      Substantial Effects on Commerce

       The final source of congressional authority over commerce is the power to

regulate “activities that substantially affect interstate [or foreign] commerce.” 

. In analyzing this issue, it is first necessary to recognize that noncommercial

sexual activity is not commerce. It is not “the buying, selling, production, or

transportation of products or services, or any activity preparatory to it.” 

–25. It is not even economic activity, which “refers to the production, distribution,

and consumption of commodities.” 

(internal quotation marks

omitted)); see Patton at 625 (“[I]n Raich, the [Supreme] Court interpreted the contours of

the third category by reference to ‘economics’ rather than ‘commerce,’ and included the

‘consumption of commodities’ as well as their production and distribution within that

definition.”). Engaging in noncommercial nonconsensual sexual activity is no more an

economic activity than the gender-motivated violence targeted by the statute held

unconstitutional in Morrison. 

(“Gender-motivated crimes of

violence are not, in any sense of the phrase, economic activity.”).

       The fact that noncommercial nonconsensual sexual activity is not economic

activity is extremely important, probably dispositive, in determining whether it is subject

to the third category of regulation of commerce. The Supreme Court thus far has upheld

under the third category only regulation of economic activity. See 

(“Our case law firmly establishes Congress’ power to regulate purely local activities that

are part of an economic ‘class of activities’ that have a substantial effect on interstate

commerce.”) The panel opinion cites Raich as a case in which the Court “upheld

                                              34
congressional regulation of noncommercial activity.” Maj. Op. at 52 n.21. But the

Supreme Court opinion made clear that the activity, even if not commercial, was

“economic.” It distinguished earlier Court decisions overturning congressional

legislation with the words: “Unlike those at issue in Lopez and Morrison, the activities

regulated by the [Controlled Substances Act] are quintessentially economic.” 

(emphasis added).

       To be sure, the term illicit sexual conduct in § 2423 does include economic, even

commercial, activity. But the broad statutory definition of the term cannot change the

nature of every activity within the definition. Suppose the Controlled Substances Act

also prohibited jogging (because it can produce a runner’s high). That would not place

jogging within the “economic class of activities” of controlled substances and thereby

allow the prohibition. Cf. 

–61 (Opinion of Roberts, C.J.)

(failure to purchase medical insurance is not economic activity and cannot be regulated

under the Commerce Clause despite effect on health-insurance market); 

(Scalia, J., joined by three other Justices in concurring on this issue) (“failure to engage in

economic activity (the purchase of health insurance) is [not] subject to regulation under

the Commerce Clause”).

       But even if noncommercial illicit sexual conduct could be regulated if it has a

substantial effect on commerce, there is no reason to believe that it has such an effect. As

noted earlier, the Supreme Court has examined three factors in conducting a substantial-

effect analysis: the relation of the regulated activity to commerce; congressional findings

about the activity’s effects on commerce; and the presence in the statute of an express

                                              35
jurisdictional element limiting the reach of the statute. See 

–

13. I now consider those factors.

                     1.     Relation of Activity to Commerce

       Noncommercial activity can affect commerce. The Supreme Court has

recognized, for example, that if the activity involves a good that is identical to (fungible

with) goods in commerce, regulation may be permissible. (Do not forget, though, that

activity with respect to goods is “economic” activity. See 

.) In

Wickard, Congress had authorized quotas on the production of wheat because the

industry had been plagued by large surpluses that depressed prices. 

,

125–28. A farmer who grew wheat in excess of the quota (to feed poultry and livestock

on his farm, to use in making flour for home consumption, and for seeding the following

year) challenged the quota, arguing that it regulated noncommercial conduct. See 

118. But the Court upheld the quota as a permissible regulation to protect the price

of a commodity because the aggregate effect of many farmers exceeding the quota would

substantially affect the wheat market. See 

It reasoned that farmers who

grow wheat in excess of the quota purely for home consumption are doing so instead of

buying wheat on the market, thereby decreasing the demand for wheat and undermining

Congress’s goal of boosting the price. See 

“Home-grown wheat in this

sense competes with wheat in commerce.” 

Congress therefore had the

authority to regulate wheat grown “wholly for consumption on the farm” to protect the

price of the commodity in commerce. 

                                             36
       Six decades later, the Supreme Court addressed a challenge to the federal ban on

marijuana in the Controlled Substances Act (CSA). The CSA, said the Court, “regulates

the production, distribution, and consumption of commodities for which there is an

established, and lucrative, interstate market.” 

. In particular,

Congress had classified marijuana as a drug with a high potential for abuse and no

accepted medical use, which made its manufacture, distribution, or possession a criminal

offense. See 

The question was whether those prohibitions could encompass

“the intrastate, noncommercial cultivation and possession of cannabis for personal

medical purposes as recommended by a patient’s physician pursuant to a valid California

state law.” 

(internal quotation marks omitted). The Court answered the question

affirmatively because Congress “had a rational basis for concluding that leaving home-

consumed marijuana outside federal control would . . . affect price and market

conditions.” 

Just like wheat grown for home consumption, marijuana

cultivated for that purpose overhangs the market, making it likely that “high demand in

the interstate market will draw such marijuana into the market.” 

Wickard and Raich, the government argues that the PROTECT Act is

within congressional power because it was enacted “to close the child-sex-tourism

market.” Aplee. Br. at 62. That rationale may well suffice with respect to the provision

of the Act barring commercial sex. But the analogy to Wickard and Raich fails when it

comes to the provision of the Act under which Defendant was convicted. The regulated

activities in Wickard and Raich may not have been commerce, but they were economic.

Defendant’s illicit sexual conduct, in contrast, was not. To advance regulatory authority

                                             37
from commerce to economic activity is one thing. The step from economic activity to

noneconomic activity may be a step too far. See 

(“[I]n those

cases where we have sustained federal regulation of intrastate activity based upon the

activity’s substantial effects on interstate commerce, the activity in question has been

some sort of economic endeavor.”); 

(“While we need not adopt a categorical

rule against aggregating the effects of any noneconomic activity to decide these cases,

thus far in our Nation’s history our cases have upheld Commerce Clause regulation of

intrastate activity only where that activity is economic in nature.”). At the least, when the

regulation of noneconomic activity is justified under the Commerce Clause on the ground

that it substantially affects commerce, that justification cannot be based on “pil[ing]

inference upon inference” in a way that threatens to make the Clause a source of a

general police power. 

. Tenuous connections are not

“substantial.” And one must keep firmly in mind that the Court has yet to find a

substantial effect on commerce arising from noneconomic activity. See 

, 613.

       In any event, the government has not offered any reason to believe that control of

noneconomic sex abuse will affect the market in commercial sex trafficking. When

dealing with fungible commodities the connection is clear. See 

(“In both cases, the regulation is squarely within Congress’ commerce power because

production of the commodity meant for home consumption, be it wheat or marijuana, has

a substantial effect on supply and demand in the national market for that commodity.”)

But here there is no apparent connection. If data show that prosecutions of

                                             38
noncommercial child sexual abuse reduce the incidence of commercial abuse, those data

have not been presented to this court. I cannot agree with the unexplained view of the

Fourth Circuit that “[i]t is eminently rational to believe that prohibiting the non-

commercial sexual abuse of children by Americans abroad has a demonstrable effect on

sex tourism and the commercial sex industry.” 

. Contra United

States v. Bianchi, 386 F. App’x 156, 163 (3d Cir. 2010) (Roth, J., dissenting) (“I find that

there is no rational basis to conclude that an illicit sex act with a minor undertaken on

foreign soil, perhaps years after legal travel and devoid of any exchange of value,

substantially affects foreign commerce.”); Reed, 

, at *12–13 (the

connection is “too attenuated to rationally qualify as ‘substantial.’”); United States v.

Park, 

, 178–79 (D.D.C. 2018) (following Reed).

        In upholding the regulations in Wickard and Raich, the Supreme Court was

dealing with fungible commodities. See 

(“Prohibiting the intrastate

possession or manufacture of an article of commerce is a rational (and commonly

utilized) means of regulating commerce in that product.” (emphasis added)); 

(“Like the farmer in Wickard, respondents are cultivating, for home consumption, a

fungible commodity for which there is an established, albeit illegal, interstate market.”

(emphasis added)). Home-grown wheat is essentially indistinguishable from wheat

produced for commerce, and home-grown marijuana for medical purposes is essentially

the same product as commercial marijuana. A “customer” could not distinguish the two

products when eating or smoking them. Here, in contrast, the government has not

suggested that sex tourists who prey on children are indifferent to whether their victims

                                             39
are provided by commercial enterprises or they must seek out their victims at places like

mission schools and assault the children on their own.

       Nor is it enough simply to point to the substantial effect on commerce of a great

deal of activity regulated by a statute and then justify regulation of additional activity that

is pasted into the statute on the ground that it is “part of a larger regulation of economic

activity.” Maj. Op. at 40, 46 (internal quotation marks omitted). The fully stated

proposition is that conduct that otherwise could not be regulated can be regulated if it is

“an essential part of a larger regulation of economic activity, in which the regulatory

scheme could be undercut unless the intrastate activity were regulated.” 

(emphasis added). Accord 

–25. For example, the Court in

Wickard “had no difficulty concluding that Congress had a rational basis for believing

that, when viewed in the aggregate, leaving home-consumed wheat outside the regulatory

scheme would have a substantial influence on price and market conditions.” 

. The conclusion is common sense, even obvious. In addition, the record in

that case “made it clear that the aggregate production of wheat for [noncommercial] use

on farms had a significant impact on market prices.” 

Likewise in Raich there

were findings by Congress that in effect “established the causal connection between the

production [of marijuana] for local use and the national market.” 

Court said,

“that the . . . exemptions [sought by the respondents] will have a significant impact on

both the supply and demand sides of the market for marijuana . . . is readily apparent.”

see 

(“[W]e have no difficulty concluding that Congress had a rational



                                              40
basis for believing that failure to regulate the intrastate manufacture and possession of

marijuana would leave a gaping hole in the CSA.” (emphasis added)).

       Translating that precedent to the case before us, regulation of the conduct at issue

here is proper only if such regulation is “an essential part” of the regulation of

commercial sex tourism because failure to control noncommercial illicit sexual conduct

would “undercut” that regulation. Yet neither the government brief nor the panel opinion

explains how this is the case. When products are fungible, the connection is

commonsensical. But the tie between commercial sex with children and noncommercial

nonconsensual sexual assault is a mystery. Nor is the mystery resolved by any findings

by Congress, the subject to which I now turn.

                     2.      Congressional Findings

       Congressional findings about the effects of the prohibited activity on commerce

can inform the analysis. See 

. But they are not dispositive. For

example, in Morrison the Court ruled that the statute providing a civil remedy to victims

of gender-motivated violence was unconstitutional despite “numerous findings regarding

the serious impact that gender-motivated violence has on victims and their 

. Those findings, however, relied on the types of attenuated effects between

violence and commerce—violence deters victims from traveling interstate and engaging

in interstate businesses, diminishes national productivity, increases medical and other

costs, and decreases both supply of and demand for interstate products—that the Court

had previously rejected as insubstantial because recognizing such tenuous effects would

eliminate limits on congressional power. See 

(“Congress’ findings are

                                             41
substantially weakened by the fact that they rely so heavily on a method of reasoning that

we have already rejected as unworkable if we are to maintain the Constitution’s

enumeration of powers.”).

       The panel opinion discusses at length the long history of federal legislation

governing interstate and international travel for sex offenses. The great bulk of that

history is irrelevant because it does not speak to the specific regulation at issue here. See

(“[I]mportation of previous [legislative] findings to justify [the

challenged statutory provision] is especially inappropriate here because the prior federal

enactments or Congressional findings do not speak to the subject matter of [the

provision] or its relationship to interstate commerce.” (original brackets and internal

quotation marks omitted)). Moreover, Congress made no findings when adopting the

PROTECT Act. Congress did do so, however, in debating its failed precursor, the Sex

Tourism Prohibition Improvement Act of 2002 (STPIA). And I will assume that a court

can consider those findings in evaluating the constitutionality of the PROTECT Act.

When considering STPIA, the House Judiciary Committee reported the following:

               Many developing countries have fallen prey to the serious problem
       of international sex tourism. According to the National Center for Missing
       and Exploited Children, child-sex tourism is a major component of the
       worldwide sexual exploitation of children and is increasing. There are
       more than 100 web sites devoted to promoting teenage commercial sex in
       Asia alone. Because poor countries are often under economic pressure to
       develop tourism, those governments often turn a blind eye toward this
       devastating problem because of the income it produces. Children around
       the world have become trapped and exploited by the sex tourism industry.
               There would be no need for a sex tourism statute if foreign countries
       successfully prosecuted U.S. citizens or resident aliens for the child sex
       crimes committed within their borders. However, for reasons ranging from
       ineffective law enforcement, lack of resources, corruption, and generally

                                             42
       immature legal systems, sex tourists often escape prosecution in the host
       countries. It is in those instances that the United States has an interest in
       pursuing criminal charges in the United States.
              The Justice Department, Federal law enforcement agencies, the State
       Department and other U.S. entities expend significant resources assisting
       foreign countries most afflicted with sex tourism to improve their domestic
       response to such criminal offenses. Our assistance encompasses informal
       as well as formal training of foreign law enforcement officers and
       prosecutors in the investigation and prosecution of sex tourism crimes. By
       and large these countries reach out to the United States for help and some
       even blame the United States for the problem, “arguing” that many of the
       sex tourists are American. Some of the foreign or “host” countries
       experiencing significant problems with sex tourism, such as Nicaragua,
       Costa Rica, Thailand and the Philippines, have requested that the United
       States act to deal with this growing problem.
              Current law requires the Government to prove that the defendant
       traveled to a foreign country with the intent to engage in sex with a minor.
       H.R. 4477 eliminates the intent requirement where the defendant completes
       the travel and actually engages in the illicit sexual activity with a minor.
       The bill also criminalizes the actions of sex tour operators by prohibiting
       persons from arranging, inducing, procuring, or facilitating the travel of a
       person knowing that such a person is traveling in interstate or foreign
       commerce for the purpose of engaging in illicit sexual conduct with a
       minor. This legislation will close significant loopholes in the law that
       persons who travel to foreign countries seeking sex with children are
       currently using to their advantage in order to avoid prosecution.

H.R. Rep. 107-525, at 2–3 (2002).

       What is notably missing from these findings is any statement, much less evidence,

regarding the impact of noncommercial illicit sexual activity by international travelers on

commercial illicit sexual activity. While the above findings may support the

constitutionality of a ban on commercial sex acts with children in foreign countries, they

say nothing about the effects on foreign commerce of noncommercial nonconsensual

molestation of children abroad. There were no findings that noncommercial offenses

affect the child-sex market, or even that Congress cannot adequately control commercial


                                            43
offenses unless it also prohibits noncommercial offenses. It is as if when Congress

enacted § 2423(c) to eliminate the requirement that a defendant travel in interstate

commerce with the intent to engage in illicit sexual conduct, it was so focused on those

who engage in commercial illicit sexual conduct that it overlooked the impact of the

change on the prohibition of noncommercial illicit sexual conduct.

       In its congressional-findings argument the government also relies on the Optional

Protocol to the Convention on the Rights of the Child regarding the Sale of Children,

Child Prostitution and Child Pornography, stating that “[t]he PROTECT Act was . . .

passed as part of the United States’ obligation under the Optional Protocol.” Aplee. Br.

at 60. The government apparently seeks to impute the reasons that the United States

ratified that treaty to Congress’s decision to enact the PROTECT Act. (It does not argue

that any part of the PROTECT Act was enacted under the authority of the Constitution’s

Treaty Clause, U.S. Const. art. II, § 2, cl. 2.) I question whether one should consider the

Optional Protocol in this context because Congress never mentioned it in the texts or

legislative histories of the PROTECT Act or STPIA. But even if one were to do so, the

government’s reliance would be misplaced. The Optional Protocol covers only

commercial sex offenses against children; it says nothing about the effects of

noncommercial sex offenses on foreign commerce. See Reed, 

, at *16

(“The Optional Protocol calls on States Parties to create and enforce laws that prohibit the

exploitation of children for commercial gain.” (emphasis added)).

       Thus, the congressional findings “do not speak to the subject matter of [the

provision under which Defendant was convicted] or its relationship to [foreign]

                                            44
commerce.” 

(brackets and internal quotation marks omitted)).

This is not an inconsequential matter. Although congressional findings are not necessary

to support commerce-clause legislation, they can be significant, “particularly when the

connection to commerce is not self-evident.” 

. Here, the

connection is not self-evident. Without congressional findings, I cannot see how

prevention of noncommercial sexual assault on children would substantially affect

commercially provided sex abuse. See Lopez, 514 U.S at 563 (“[T]o the extent that

congressional findings would enable us to evaluate the legislative judgment that the

activity in question substantially affected interstate commerce, even though no such

substantial effect was visible to the naked eye, they are lacking here.”)

                     3.     Express Jurisdictional Element

       There remains the one factor that could support congressional power to punish

Defendant’s offense under the substantial-effects rationale: “travel[ing] in foreign

commerce or resid[ing], either temporarily or permanently, in a foreign country” is an

express element of 18 U.S.C. § 2423(c). See United States v. Jeronimo-Bautista, 

, 1269 (10th Cir. 2005) (asking “whether the statute’s reach was limited by an

express jurisdictional element”). “A jurisdictional hook is not, however, a talisman that

wards off constitutional challenges.” 

. What the Supreme Court

has said is that “a jurisdictional element may establish that the enactment is in pursuance

of Congress’ regulation of interstate commerce.” 

(emphasis

added). As we stated in Patton, “The ultimate inquiry is whether the prohibited activity

has a substantial effect on interstate [or foreign] commerce, and the presence of a

                                             45
jurisdictional hook, though certainly helpful, is neither necessary nor 

. Our opinion, see 

views expressed by other circuits:

United States v. Maxwell, 

, 1218 (11th Cir. 2006) (“[W]here a

jurisdictional element is required, a meaningful one, rather than a pretextual incantation

evoking the phantasm of commerce, must be offered.” (brackets, citation, and internal

quotation marks omitted)); United States v. Holston, 

, 88 (2d Cir. 2003)

(expressing unwillingness to rely solely on “the mere existence of jurisdictional language

purporting to tie criminal conduct to interstate commerce”); United States v. Rodia, 

, 472–73 (3d Cir. 1999) (rejecting a “hard and fast rule that the presence of a

jurisdictional element automatically ensures the constitutionality of a statute”).

       In my view, the jurisdictional hook here does not do the trick. I have already

expressed why I believe that the government has not shown any connection between

noncommercial illicit sexual conduct committed by Americans who traveled abroad and

commercial illicit sexual conduct (the only type of “commerce” that it would allegedly

affect). More important are the ramifications of relying on this jurisdictional hook. I do

not see, nor has the government provided, a principled way to distinguish the use of this

hook to justify the statutory provisions under which Defendant was convicted from the

use of an identical hook that would permit Congress to prohibit any misconduct by

Americans abroad, from gambling (even if lawful in the country where conducted) to

jaywalking. All that would be needed is to add the hook that the defendant had traveled

in foreign commerce. At the least there should be evidence or a congressional finding,



                                             46
not just speculation, of a direct, not “attenuated,” effect on commercial activity.

.

       True, Patton recognized the tension between the analysis of the Interstate

Commerce Clause in Lopez and Morrison and the Supreme Court’s decision in

Scarborough v. United States, 

, 565 (1977), “which held that Congress

intended a felon-in-possession statute to prohibit possession of any firearm that had

moved in interstate commerce,” 

. Scarborough implicitly

accepted that such a prohibition was constitutional. See 

by

Scarborough, this court upheld the constitutionality of a statute that prohibited “the

intrastate possession by a felon of a bulletproof vest, in the absence of any commercial

transaction or any evidence of a connection to commercial activity other than the fact

that, before it was lawfully purchased by the defendant, the vest had been sold across a

state line,” even though the prohibition could not be justified under the Supreme Court’s

“three-part test for determining the reach of the Commerce Clause.” 

       But Scarborough cannot be extended so far as to encompass the statute before us.

The jurisdictional hook in Scarborough was interstate travel by a commodity, not by a

person, and certainly not by a person like Defendant—who had not engaged in any

activity before or during the travel that would distinguish him or her from any other

person. If Scarborough stands for the proposition that the Interstate Commerce Clause

authorizes Congress to prohibit any activity occurring after personal travel in interstate

commerce, then it provides a general police power to the federal government that would



                                             47
erase the “distinction between what is truly national and what is truly local.” 

–68. I am confident that such a result was not the teaching of Scarborough.

       To sum up, there can be little question that a statutory provision otherwise

identical to the one on which Defendant was convicted could not pass muster under the

Interstate Commerce Clause if travel in interstate commerce were substituted for travel in

foreign commerce. He did not engage in economic activity, and there is no reason to

believe that activity like his has a substantial effect on commerce. Nor can the provision

be upheld under the Foreign Commerce Clause merely on the unfocused proposition that

congressional power under that clause is greater than the power provided by the Interstate

Commerce Clause. To uphold the provision, the Foreign Commerce Clause would need

to be interpreted to confer congressional power to regulate all conduct of Americans

while abroad. Nothing suggests that the Framers had any such concept of the Clause; on

the contrary, the evidence suggests that such power would seem most strange to them.

Moreover, such a power would be wholly inappropriate under a Constitution of

conferred, limited power.

       I therefore would hold that the statutory provisions under which Defendant was

convicted cannot be justified under the Foreign Commerce Clause. At the very least, §

2423(c) is unconstitutional as applied in this case. Not only is it uncontroverted that

Defendant was not a sex tourist, he was not even a tourist. The government does not

suggest that he had any tie to commercial sex trafficking. The connection between his

kind of offense and sex tourism is far too attenuated to support regulation under the

Foreign Commerce Clause.

                                             48
       I agree with Judge Ferguson: “The sexual abuse of children abroad is despicable,

but we should not, and need not, refashion our Constitution to address it.” 

(9th Cir. 2006) (Ferguson, J., dissenting); see Reed, 

, at

*11, *19 (holding § 2423(c) unconstitutional as applied to a defendant who molested his

daughter while residing abroad); 

–79 (following Reed); see

also 

–94 (upholding this portion of the statute on plain-error

review, but suggesting that the panel majority would have held it unconstitutional if the

issue had been preserved); United States v. Bianchi, 386 F. App’x 156, 163 (3d Cir.

2010) (Roth, J., dissenting) (“I find that there is no rational basis to conclude that an

illicit sex act with a minor undertaken on foreign soil, perhaps years after legal travel and

devoid of any exchange of value, substantially affects foreign commerce.”); cf. 

(Thomas, J., dissenting from denial of petition for certiorari in criminal

prosecution under Foreign Commerce Clause) (“We should grant certiorari and reaffirm

that our Federal Government is one of limited and enumerated powers, not the world’s

lawgiver.”); Colangelo supra at 1039–40 (doubting the constitutionality of § 2423(c) with

respect to noncommercial sexual abuse of minors).

       The Supreme Court has provided little, if any, guidance regarding congressional

power under the Foreign Commerce Clause to regulate the conduct of Americans abroad.

If the Court believes that it is appropriate to cabin that power, this may be as good a

vehicle as any to convey the message.

       For the above reasons, I respectfully dissent.



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