PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MATTHEW LANE DURHAM, Defendant - Appellant. No. 16-6075

________________ _________________ 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, Otje n, Davis & Bloyd, Enid, Oklahoma, for D efendant - Appellant. Steven W. Creager, Assistant Unite d States Attorney (David P. P etermann, Assistant United States Attorney, and Mark Yancey, United States Attorney , with him on the brief), Oklahoma City, Oklahom a, for Plaintiff - Appellee.

________________ _________________ Before HARTZ , MATHESON , and MORITZ , Circuit Judges.

________________ _________________ MATHESON , Circuit Judge.

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### August 29, 2018
Elisabeth A. Shumaker Clerk of Courti 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 Traffi cking .... 9 a. Provisions of the statutory scheme ........................ .......................... 10 b. Early efforts to co mbat sex trafficking ................... ........................ 12 c. Legislative history leadi ng to passage of § 2423(c) ....... ................. 14 i. Enactment of § 2423(b) .................................... ........................... 14 ii. Enactment of § 2423(c) ................................... ........................... 15
2. The Commerc e Clause ....................................... ................................ 18
a. ICC case law .............................................. ..................................... 19
i. Channels .................................................. .................................... 19
ii. Instrumentalities ........................................ ................................. 20
iii. Substantia l effect ...................................... ................................. 20ii b. FCC case law .............................................. .................................... 22 3. Congressional Authority Broad er 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 categor ies as a starting point ............ ..................... 37
b. The substantial-effect cat egory 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 bas is ........... 44 b. Section 2423(c) is an essenti al part of a bro ader statutory scheme . 45 c. Section 2423(c)’s jurisdicti onal element supports rational basis ..... 48
d. Raich supports rational basis for § 2423(c) ........................ ............. 48iii 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 moti on for new trial ......................... ........................ 60 2. Analysis .................................................. ........................................... 64
a. Standard of Review ........................................ ................................. 64 b. Legal Background .......................................... ................................ 64 c. No prejudice for a Brady violation .................................................. 6 5
C. Issue Three: Mr. Durham’s St atements about Child Pornograp hy and Homosexuality ............................................. .................................. 67
1. Standard of Review ........................................ .................................... 68
2. Additional Factua l Background ............................. ............................. 68 a. Evidence about child por nography and homosexuality ........ ........... 68 b. District court rulings .................................... ................................... 69 3. Legal Background .......................................... .................................... 71 a. Rule 404(b) ............................................... ...................................... 71iv 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 Factua l 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 cro ss-examination of Mr. Durham . ... 79 ii. Alleged misconduct dur ing closing argument ............... .............. 80 b. Plain error—substantial rights ............................ ............................ 80 i. Alleged misconduct during cro ss-examination of Mr. Durham . ... 81v ii. Alleged misconduct dur ing 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. Invite d error ............................................. ....................................... 92
b. Authen tication ............................................ .................................... 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 ........................................ .................................... 96vi 2. Additional Factua l Background ............................. ............................. 97 3. Legal Background .......................................... .................................. 100 4. Analysis .................................................. ......................................... 101 H. Issue Eight: Cumulative Error ............................ ................................ 103

III. CONCLUSION .............................................. ........................................ 105Matthew Durham appeals his conv ictions and sentence on four cou nts for illicit sex with minors in Kenya afte r travelling there from the United States. This opinion addresses the following eight i ssues presented for appellate re view.
1. Is 18 U.S.C. § 2423(c), the sta tute on which the convictions were based, unconstitutional on its face and as applied to Mr. Durham because it exceeds Co ngress’s power under the Foreign Commerce Clause in Artic le 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 w hen it denied Mr. Durham’s supplemental motion for a n ew trial alleging that the Government suppressed exculpator y evidence in violation of Brady v. Maryland , 373 U.S. 83 (1963)? We affirm because Mr. Durham has not shown that no ndisclosure of the evidence prejudiced his case.
3. Did the district court err und er 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 discre tion in determining the evidence was intrinsic, relevant, a nd not unduly prejudicial.
4. Did the district court err when it denied Mr. Durham’s motion for a new trial alleging that t he Government made improper statements about his struggl e with homosexuality during cross-examination of Mr. D urham and du ring closing argument? We affirm under p lain error review because Mr. Durham cannot show that the pr osecutor’s statements affected his substantial rights.
5. Did the district court err i n admitting cellphone video recordings because they were n ot properly authenticated? We affirm. The district court di d not abuse its discretion becaus e the Government presented suffi cient foundati on evidence for authentication.2 6. Did the district court err when it admitted the victims’ entire medical records? We affirm bec ause Mr. Durham invited any error and because his arguments alleging lack of authentication, inadmissible he arsay, 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 s entence when it sentenced Mr. Durham to 480 months in pris on? We affirm because Mr. Durham cannot overcome the p resumption 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 re versed because the errors, considered cumulatively, depri ved him of a fair trial? Mr. Durham cannot show that any errors that may be eligible for cumulative error review cumulativ ely 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 ther e. 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 Ok lahoma non-profit founded and d irected by Eunice Menja, operates Upendo. Id. at 787, 960 (TT 173, 346), Aplee. Br. at 3. Ms. Menja’s

1 “ROA” denotes “Record on Appeal .” “TT” denotes “Trial Transcr ipt.”3 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 ho st family, but on the fourth trip, he asked to stay at Upendo instead. Id. at 1811 (TT 1197). On June 12, 2014, Ms. Wambugu entered one o f the girls’ bedrooms and saw Mr . Durham lying on a bed with one of the girls. Id. at 705, (TT 91). When Ms. Wambugu came into the room, Mr. Durham left quickly. Id. at 705-06 (TT 91-92). Ms. Wam bugu then spoke to some of the girls, who said they had “been doing bad manners” with M r. Durham. ROA, Vol.
12 at 710-11 (TT 96-97). The child ren used “bad manners” to mean engaging in sexual

acts. See id. at 662 (TT 48); 1412 (TT 79 8); 1443-44 (TT 829-30). On June 13, Ms. Menja, Ms. Wambug u, Jason Jeffries (another Ame rican volunteer at the home), and Tom Mu tonga (a local supporter of U pendo) met with Mr. Durham at Upendo. Id. at 817, 825 (TT 203, 211). When he entered the meeting, Mr. Durham yelled, “You can fire me, fire me now.” Id. at 825 (TT 211). Ms. Menja accused him of hurting the girl s and asked for his response. Id. at 826 (TT 212). Mr. Durham said he did not remember , and asked to speak to Ms. Wamb ugu alone. Id. at 826-27 (TT 212-13). Once alone, he asked Ms. Wambugu to defend him, and she asked h im whether he had done the acts reported by the girls. Id. at 723 (TT 109). He sa id, “Yes, I did it. Yes, I did.” Id. at 723 (TT 109). But when he wen t back to talk to the group, M r. Durham

2 The trial transcript spells M s. Wambugu’s first name as “Josph ine,” but court records refer to her as “Josephine.” See ROA, Vol. 1 at 40. We th erefore assume her name is properly spe lled “Josephine.”4 again said he could not rememb er assaulting the children. He a dded that he had been struggling with child porn ography and homosexuality. Id. at 724, 828 (TT 110, 214). Ms. Menja told Mr. Durham she wa s going to take him to a differ ent location, explaining that, for the safety of the child ren, she did not want him to s tay at the children’s home.
Id. at 829 (TT 215). He spent the n ext three days at an empty hous e owned by Ms. Menja’s father-in-law. Id. at 830 (TT 216). One of the volunteers had taken Mr. Durham’s passport after hea ring about the allegations. Id. at 1052 (TT 438). During his time away f rom Upendo, Mr. Durham sent his father te xt 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. Menjasaying: “Tell all the kids how sorry i am, and i am praying for their fo rgiveness every ho ur.” Id. at 18 (Gov’t Exh. 10) (errors in original). Mr. Durham’s great-uncle arrang ed for Mr. Durham to fly back to Oklahoma. ROA, Vol. 12 at 1682- 83 (TT 1068-69). On J une 17, before he fl ew out, Mr. Durham met with Ms. Menja, Ms. Wambugu , and Mr. Mutonga at the Seagull restaurant. Id. at 855 (TT 241). Ms. Menja video r ecorded some of the ensuing con versation in multiple videos on her cellphone (the “ Seagull Confession Videos”). Id. at 856 (TT 242). Mr. Durham knew that he was being r ecorded and asked that the video be kept on. Gov’t Exh. 4 at 12:09. On the longes t video, Ms. Menja asked Mr. Dur ham about the allegations. He responded that h e had struggled with a “tempta tion to touch children and to be with other men .” Gov’t Exh. 4 at 1: 55-2:01. When Ms. Men ja started asking about5 specific children who had accus ed him of abuse, Mr. Durham admi tted to assaulting those children. See, e.g. , id. at 5:39-6:15. After Ms. Menja stopped recording the video, she said she could not listen any more, and Mr. Durham offered to w rite down his confession. ROA , Vol. 12 at 865 (TT 251). He wrote detailed statemen ts about how he abused or othe rwise engaged in inappropriate behavior with ove r ten of the children. ROA, Vol . 9 at 8-16. The following relate to three of the four charges of conviction andeach concerns a different victim:

 “I would take her to the bathro om 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 l oved her.” ROA, Vol. 9 at 8 (Gov’t Exh. 9).

 “I would take her to the bathro om and have her take off her clothes. I would touch myse lf and her. I don’t know how many times it occurred. Also, w hen we had our sleepovers Friday night, [she] always mad e a point to sleep by me. I would spoon with her until I woke up.” Id. at 15 (Gov’t Exh. 9).

 “I took her to the bathroom and fo rce[d] her to have sex with me. This happened on more th an 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].” Id. at 16 (Gov’t Exh. 9). Ms. Wambugu next spoke to the Ke nyan police, who told her they could not arrest Mr. Durham. ROA, Vol. 12 at 873- 74 (TT 259-60). Ms. Menja ret urned Mr. Durham’s passport to him, and he flew out o f Kenya the night of June 17. Id. at 874-75 (TT 260- 61).6 Ms. Menja took six victims to a doctor the next day, June 18. Id. at 875 (TT 261). Medical workers examined them a nd determined five out of six ha d perforated hymens.
Id. at 1187-88 (TT 57 4-75). Ms. Menja later re ported what had happ ened to the U.S. Embassy. Id. at 875 (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 or iginal indictment on August 5, 2014, charging three

counts. Id. at 130-31. It later returned two superseding indictments. Id. at 248, 467. The second, the operative indict ment, was returned in April 201 5 and charged Mr. Durham with eight counts of inter state travel with intent to en gage 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, i n violation of 18 U.S.C. § 2423(c). Id. at 467-76. The indictment iden tified eight victims by their in itials. Id. Mr. Durham 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. § 24 23(b). Trial was held between June 1 0, 2015, and June 18, 2015. Five of the eight alleged victims testified, inclu ding the victims associated wit h 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 Keny a, also testified for the prosecution. Id. at 1186-88 (TT 572-74). Mr. Dur ham’s written a nd videotaped confessions and his text messages were admitted into evidence. Id. at 737, 857, 1248 (TT 123, 243, 634).7 Mr. Durham testified in his def ense. ROA, Vol. 12 at 1792 (TT 1178). The defense also presented testim ony from a professional counselor about forensic interviews with victims of sexual assault, id. 1506, 1515 (TT 892, 901), a nd from a sexual assault nurse examiner, Lisa Dunson, about the medical findings in the case, id. at 1581 (TT 967). Mr. Durham’s mother, fathe r, and great-uncle also testif ied in his defense. Id. at 1638, 1721, 1759 (TT 1024, 1107, 1145). The jury found Mr. Durham guilty on seven counts of traveling i n foreign commerce and engaging in illicit se xual conduct with a minor in violation of 18 U.S.C. § 2423(c). ROA, Vol. 3 at 193-9 4. It found him not guilty of the remaining counts. Id. Mr. Durham moved for arrest of ju dgment, arguing that 18 U.S.C. § 2423(c) is unconstitutional. Id. at 229. He also moved for ac quittal and a new trial. Id. at 277, 305. Mr. Durham supplemented his motio n for a new trial when he lear ned the prosecution had failed to disclose informa tion favorable to the accused dur ing trial. Id. at 489. The district court denied the motions for arrest of judgment a nd a new trial. Id. at 752, 760, 776, 811. It granted a cquittal on three of the § 242 3(c) counts because the Government had not shown Mr. Durha m engaged in “sexual conduct” as defined by the statute, but it denied acquitta l on the other four counts. Id. at 762-67, 774-75. The final Presentence Investiga tion Report (“PSR”) calculated a recommended sentence of 1,440 months in prison under the United States Sent encing Guidelines (the “Guidelines”), based on Mr. Durha m’s total offense level and cr iminal history category. ROA, Vol. 7 at 142. This represen ted the statutory maximum of 30 years for each count of conviction, running consecutively. Id. at 142 n.3. The district court sentenced Mr.8 Durham to 480 months in prison, a sentence it characterized as a variance below the Guidelines range. ROA, Vol. 3 at 8 44; 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 a nd also provide additional factu al, procedural, and legal backgrou nd, as needed.
A. Issue One: Constitutionality of 18 U.S.C. § 2423(c) under the Foreign Commerce Clause Mr. Durham challenges the cons titutionality of 18 U.S.C. § 2423 (c), arguing that Congress exceeded its authority under the Foreign Commerce Clau se. See U.S. Const. art. I, § 8, cl. 3. Section 2423(c) makes it a crime for “[a]n y United States citizen or alien admitted for permanent residence [to] travel[] in foreign comme rce . . . and engage[] in any illicit sexual conduct with ano ther person.” 18 U.S.C. § 2 423(c). “Illicit sexual conduct” includes any commercial or noncommercial sexual act wi th a person under the age of 18, id . § 2423(f)(1)-(2), and the production of child pornography, id . § 2423(f)(3). Mr. Durham was charged under § 2423(c) for traveling abroad and engaging in noncommercial sexual acts with m inors. He argues that, because noncommercial illicit sexual activity abroad has no re lation 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 h e has waived his as-applied ch allenge, but even if this is so, we may res olve a facial challenge by conducting an as-applied analysis. We previously have said that “w e need not and do not address [a ] facial challenge” when “we conclude the a s-applied challenge fails.” United States v.9 his challenge de novo. United States v. Pompey , 264 F.3d 1176, 117 9 (10th Cir. 2001) (“We review challenges to the c onstitutionality of a statute de novo.” (quotations omitted)); see also People for Ethical Treatment of Prop. Owners v. U.S. Fish & Wildlife
Serv. ( PETPO ), 852 F.3d 990, 10 00 (10th Cir. 2017), cert. denied , 138 S. Ct. 649 (2018). We reject Mr. Durham’s constitu tional challenge to § 2423(c). Congress adopted this provision and several othe rs in 2003 as part of a broad re gulatory effort that started in 1907 to combat international se x trafficking. As the following discussion shows, Congress could reasonably conclud e that United States citizens and permanent residents who, in the aggregate, travel to foreign countries and commit i llicit sex acts there substantially affect foreign comme rce. As a result, we must de fer to congressional judgment and uphold § 2423(c).
1. Section 2423(c) and Con gress’s Efforts to C ombat Sex Traffickin g Section 2423(c) makes it a crim e for “[a]ny United States citiz en or alien admitted for permanent residence [to] travel[] in foreign commerce . . . and engage[] in any illicit Morgan , 748 F.3d 1024, 1031 (10th Cir. 2014). For a statute to be fa cially unconstitutional, Mr. Durham “mus t establish that [the] law is unconstitutional in all of its applications.” City of Los Angeles v. Patel , 135 S. Ct. 2443, 2451 (2015) (quotations omitted); cf. United States v. Stevens , 559 U.S. 460, 473 (2010) (“In the First Amendment context . . . t his Court recognizes a second ty pe of facial challenge, whereby a law may be invalidated as overbroad if a substantial number of its applications are unconstitutiona l . . . .” (quotations omitted) ). We therefore address Mr. Durham’ s facial challenge through an a s-applied analysis. Under § 2423(c), Mr. D urham was convicted of engagin g in illicit sexual conduct abroad after traveling in foreign commerce, the paradig matic conduct targeted under the provision. See, e.g. , United States v. Bollinger , 798 F.3d 201, 203-04 (4th Cir. 2015), cert. denied , 136 S. Ct. 2448 (2016); United States v. Pendleton , 658 F.3d 299, 301-02 (3d Cir. 2 011). Because we conclude tha t § 2423(c) is constitutional as applied to M r. Durham, he cannot succeed o n either a facial or as-applied challenge.10 sexual conduct with another per son.” 18 U.S.C. § 2423(c). It is situated w ithin a broad anti-sex trafficking statutory sc heme that Congress constructed through a century of legislation. Congress attempted to address sex trafficking in the early 1900’s by prohibiting the importation of wom en and girls for sexual explo itation. Expanding on these efforts, it enacted legis lation for the prosecution of in dividuals who traveled abroad intending to engage in sex touris m. But proving intent was dif ficult. 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, Congr ess reasonably viewed § 2423(c ) as playing an important role in its broader effo rts to combat international s ex tourism. The following discussi on describes how § 2423(c) facilitates Co ngress’s efforts to combat international sex tourism . We provide a b rief overview of Chapter 117 in Title 18 of the United States Code, whi ch contains 18 U.S.C § 2423 an d other anti-trafficking provisions; chart the historical development of § 2423; and rev iew the legislative history leading to the enactment of § 2423(c).

a. Provisions of the statutory scheme Chapter 117 criminalizes vari ous activities related to sex tra fficking. See 18
U.S.C. §§ 2421-2428 (titled “Transporta tion for Illegal Sexual Activit y and Related Crimes”). It generally prohibits the knowing transport of “any individual in interstate or foreign commerce . . . with [the] intent that such individual e ngage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense.” Id

. § 2421 (titled “Transportation generally”). It also targets ot her activities that facilitate11 sex trafficking. See, e.g. , id. § 2422 (coercion or enticemen t of individuals to engage in prostitution or illicit sexual activity); id . § 2424 (harboring indi viduals for purpose of prostitution); id . § 2425 (transmission of informa tion to entice individuals int o illicit sexual activity). 4 Title 18 U.S.C. § 2423, which fa lls within Chapter 117, deals specifically with the trafficking and sexual exploitation of minors. See id . § 2423 (titled “Transportation of minors”). Its seven provisions criminalize activities that inv olve illicit sexual contact with minors. See id . § 2423(a)-(g); see, e.g. , id . § 2423(a) (the trans portation of minors for prostitution or illicit sexua l activity). Three of its pro visions—§ 2423(b), § 2423(c), and § 2423(d)—address internati onal sex tourism. Section 2423( b) makes it a crime to travel with the intent to engage in illicit sex. See id . § 2423(b). Section 2423(c) targets individuals who trav el abroad and engage in illicit sex—regardl ess of intent. See id

. §2423(c). Section 2423( d) targets businesses that “arrange[], induce[], procure[] or facilitate[] the travel of a per son” intending to engage in ill icit sexual conduct abroad for

4 Chapter 117 also includes sect ions on sentenci ng individuals f or such offenses, definitions of illic it sexual activity, and forfeitur e options once an individual is convicted. See 18 U.S.C § 2426 (sentenci ng for repeat offenders); id. § 2427 (definition of “sexual ac tivity for which any person can be charged with a criminal offense” to include pro duction of child pornography); id. § 2428 (forfeiture of property that was used in the commission of crimes or derive d from the proceeds of crimes).12 financial gain. Id . § 2423(d). “Illicit sexual co nduct” includes commercial and noncommercial sex acts 5 with a “person under 18 years of age.” Id. § 2423(f)(1)-(2). 6
b. Early efforts to combat sex trafficking Section 2423 developed through a century of legislation addres sing international sex trafficking. In the early 1 900’s, Congress was concerned a bout the growing sex trafficking industry from Euro pe in particular. In 1907, it pr ohibited the “importation” of women or girls into the United States “for the purpose of prost itution, 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 immi gration of aliens into the Un ited States”). 7 Congress recognized this practice as a “ present-day existing evil of wid espread dimensions” that must be stopped. S. Rep. N o. 61-702, at 14 (1910). Two years later, congressional investigators released a report concluding that the 1907 Act had failed to stem sex tr afficking into the United Sta tes. See Importing Women

5 For a noncommercial sex act, the conduct would also have to “b e 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 sexu al act . . . with a person under 18 years of age.” See 18 U.S.C. § 2423(b) (1994). The Prosecutorial Remedies and Tools Against the E xploitation of Children Today A ct of 2003 (“PROTECT Act”) replaced this phr ase with “any illicit sexual c onduct with another person” and added the definition section in § 2423(f), which in cludes a definition of “illicit sexual conduc t” as “a sexual act w ith a person under 1 8 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 h arbor[ing] in any house or oth er place” women for the purpose of prostitution. § 3, 34 Stat. at 899.13 for Immoral Purposes , S. Doc. No. 61-196, at 33-36 (1 909) (recommending a number of policy changes addressing the uns olved problem o f sex trafficki ng); H.R. Rep. No. 61-47, at 12 (1909). The 1907 Act had fo cused on stopping the flow of trafficked women at the border, but it failed to address th e problem of women passing t hrough immigration channels undetected. See S. Doc. No. 61-196, at 33-34; see also Ariela R. Dubler , Immoral Purposes: Marriage an d the Genus of Illicit Sex , 115 Yale L.J. 756, 787 (2006). The report recommended criminaliz ing the interstate transportat ion 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 wa s necessary to prevent the “evi l” 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 t o “put a stop to a villainous interstate and inter national traffic in women and gi rls.” 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) (codifie d at 18 U.S.C. §§ 3 97-404 (1940)). Secti on 2 of the Mann Act prohibited the transportation o f women or girls across state or international lines for the purpose of illicit sexual acts. See § 2, 36 Stat. at 825. It is th e precursor of the current § 2423. 8

8 The Mann Act has been recodified and amended as 18 U.S.C. §§ 2 421-2424. Section 2 of the Mann Act parall els 18 U.S.C. § 2423(a), which criminalizes knowingly transporting individuals for the purposes of prostitu tion 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 com merce . . . any woman or girl for the purpose of prostitu tion or debauchery, or for any other immoral14 In 1978 and 1986, Congress broade ned the provisions of the Mann Act to fight sex trafficking. In 1978, Congress e xpanded 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 St at. 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 fa iled to address noncommercial exploitation—such as transporting children for th e purpose of producing child pornography for private ra ther than commercial use. See H.R. Rep. No. 99-910, at 7. In response, Congress passed amendments in 1986 to encom pass noncommercial sexual exploitation. Child Sexua l 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 re visions to § 2423 occu rred in 1994 and 200 3. 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 Crim e Control and Law Enforcement Act of 1994 (“ Violent Crime Act”), making it a crime for “a United States citizen . . . [to] travel[ ] in foreign co mmerce . . . fo r the purpose of engaging in any purpose . . . .”), with 18 U.S.C. § 2423(a) (“[K]nowingl y transport[ing] an individual who has not attained the age of 18 years in interstate or forei gn commerce . . . with intent that the individual enga ge in prostitution, or in any se xual activity for which any person can be charged with a criminal offens e . . . .”). S ection 2423 also contains other provisi ons to address intern ational sex tourism. See 18 U.S.C. §§ 2423(b)-(f).15 sexual act . . . with a person under 18 years of age . . . .” Pub. L. No. 103-322, § 160001(g), 108 Stat. 1 796, 2037 (1994) (codified at 18 U.S.C. §§ 2423(a)-(b) (1994)). Its passage marked the first time Congress addressed sex touris m as part of its larger effort against international sex trafficking. Section 2423(b) o riginated from Senator Charles Grassley’s amen dment to the Violent Crime Act. In a floor sta tement, Senator Grassley expl ained that its purpose was to combat child prostitution in the multibillion dollar child p ornography and international sex tourism industries. See 139 Cong. Rec. 30,391 (1993). He recognized the problem of “Americans . . . travel[ing] overs eas to places where children are readily available for purchase and abuse.” Id. This practice, he noted, allowe d for “profit from the rape of children.” Id. at 30,391-92. Representative Ji m Ramstad, who proposed a simil ar amendment in the House, see The Child Sexual Abuse Pr evention Act of 1994, H.R. 3993, 103rd Cong. (1994), explained in his floor statement that his amendment was intended to “strike a blow at ‘p edophile sex tourism,’ by makin g it a crime to travel overseas for the purpose of sexua lly abusing children.” 140 Co ng. Rec. 6,073 (1994). ii. Enactment of § 2423(c) Section 2423(b)’s reach was limited to indi viduals who traveled abroad intending to engage in illicit sex acts. But proving intent was difficul t. See H.R. Rep. No. 107-525, at 2 (2002). In 2003, Cong ress enacted § 2423( c) to permit the prosecution of individuals who travel abroad an d engage in illicit sex acts—regardless of whether they intended to do so at the time of travel.16 Section 2423(c) was passed as par t of the Prosecutorial Remedie s and Tools Against the Exploitation of Ch ildren Today Act of 2003 (“PROTEC T Act”), which targeted various aspects of t he sex tourism industry. See Pub. L. No. 108-21, § 105, 117 Stat. 650, 654 (2003) (codified a t 18 U.S.C. §§ 2423(b)-(g) (20 06)). Section 2423(c) adopted language from a previous bill—the Sex Tourism Prohibiti on 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: Hear ing Before the Subc omm. on Crime, Terrorism, and Homeland Sec. of the H. Comm. on the Judiciary , 108th Cong. 25 (2003) (“ Hearings ”)

. 9 A House Judiciary Committee Repo rt on STPIA not ed that a larg e number of developing countries ha d “fallen prey to the serious problem of international sex tourism.” H.R. Rep. No. 107- 525, at 2. It acknowledged th at § 2423(b)’s intent requirement limited the law’s effectiveness. Id. at 3, 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 a lien admitted for permanent residence who travels in for eign commerce, and engages in any illicit sexual conduct with another person shall be fined under this title or impris oned not more than 15 years, or both. H.R. 4477, § 2, 107th Cong. (2002).17 requirement, it found, would “clos e significant loopholes in th e law [regarding] persons who travel to foreign countries seeking sex with children.” Id. at 3. 10 STPIA’s language was incorporate d into the PROTECT Act and ulti mately became law in § 2423(c). The s ponsor of § 2423(c), Representat ive Jim Sensenbrenner, who authored § 2423(c) in both th e PROTECT Act and STPIA, expla ined that sex tourism supported one of the “fa stest growing areas of internat ional criminal activity”— human trafficking. 149 Cong. R ec. 7,625 (2003 ). The PROTECT A ct’s purpose was to curb that industry by punishing “persons who travel to foreign countries to engage in illegal sexual relations with minors.” Id . at 7,633. But unlike § 2423(b ), it would do so by criminalizing this conduct, “ regardless of what [the perpetr ator’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 requirem ent. * * * * In sum, Congress has worked to co mbat sex trafficking—particula rly of minors— for over a century, developing a s tatutory scheme targeting sex ual exploitation for both commercial and noncommercial pu rposes. Part of this effort inc luded 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, Con gress passed § 2423(c) to

10 Congressional discussion of STP IA also emphasized the size of the international sex trafficking ma rket. Representative Lamar Smi th commented that “[t]his world sex market is a multi-billion dollar industry tha t denies children their rights, their dignity, and their childhood.” 148 Cong. Rec. 11 ,222 (2002).18 allow for prosecution regardless of intent. Congress viewed th is provision as a critical part of its broader efforts to combat the multibillion dollar i nternational 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 se veral States, and with the Ind ian Tribes.” U.S. Const. art. I, § 8, cl. 3. The following discussion summarizes the Su preme Court’s case law on the Interstate Commer ce Clause (“ICC”) and Foreign Commerce Cla use (“FCC”). Although there is “rich case law interpreting the [ICC], the Su preme Court has yet to examine the [FCC] in similar depth.” United States v. Bollinger , 798 F.3d 201, 209 (4th Cir. 2015), cert. denied , 136 S. Ct. 2448 (2016); see also United States v. Clark , 435 F.3d 1100, 1102 (9th Cir. 2 006) (noting the FCC’ s “scope has yet to be subjected to judicial scrutiny”).

11 Section 2423(c)’s more recent legi slative history bolsters thi s understanding. In 2013, Congress passed the, Vio lence Against Women Reauthoriz ation Act (“VAWRA”), Pub. L. No. 113-4, 127 Stat. 54 (2013). The A ct added the “residing clause” to § 2423(c): individua ls who “reside[], either tempor arily or permanently in a foreign country” and engage i n illicit sexual conduct may als o be prosecuted. Id. § 1211, 127 Stat. at 142 (codifi ed at 18 U.S.C. § 2423(c)). Se nator Patrick Leahy introduced the “residing clause” to VAWRA through his amendment

. See S. Amend. 21, 113th Cong. (2013) (amendi ng S. 47, 113th Cong. (2013) (ena cted)); 159 Cong. Rec. 1137 (2013) (statement of Sen. Leahy). He emphasized the amendment targeted the global sex trafficking marke t: “We know that young women a nd girls often just 11, 12, or 13 years old are bei ng bought and sold,” and that “m illions around the world are counting on us.” Id. at 1138.19 a. ICC case law The Supreme Court has recognized that the ICC empowers Congress to regulate (1) the channels of interstate co mmerce, (2) the instrumentalit ies of interstate commerce, and (3) activities that substantially affect interstate commerc e. United States v. Lopez , 514 U.S. 549, 558-59 (1995); Perez v. United States , 402 U.S. 146, 150 (1971).
In Lopez , the Court considered whether Congre ss exceeded its authority under the ICC when it prohibited guns nea r schools in the Gun-Free School Zones Act. See Lopez , 514 U.S. at 551. The Court exp lained that Congress’s power to regulate commerce among the states is broad, but fe deralism concerns limit it. C ongressional power “may not be extended so as to . . . oblite rate the distinction betwe en what is national and what is local.” Id. at 557 (quotations omitted). “[T he ICC’s scope] must be consid ered in the light of our dual system of government.” Id. (quotations omitted). T he Court laid out the three categories of regulation, demarcating the ICC’s outer lim its. See id. at 557-59. i. Channels Congress may regulate the chan nels of interstate commerce. United States v.
Patton , 451 F.3d 615, 620 (10th Cir. 2 006). It may prohibit the tran sportation of goods and people in interstate chann els, effectively halting their in terstate movements. See,

e.g. , Caminetti v. United States , 242 U.S. 470 (1917 ) (upholding statute prohibiting the interstate transportation of w omen for “immoral” purposes); Champion v. Ames , 188 U.S. 321 (1903) (upholding statute prohibiting the transportation of lottery tickets across interstate lines). Congress need not be motivated by commercial concerns; it may a lso stop the movement of goods and pe ople to prevent immoral or inj urious activities. See,20 e.g. , United States v. Darby , 312 U.S. 100 (1941) (upholding a ban on the “injurious” transportation of goods produced in substandard l abor condition s). ii. Instrumentalities Congress may regulate the instru mentalities of interstate comme rce, or the “means of interstate commerce, such as ships and railroads.” Patton , 451 F.3d at 621 (citing Lopez , 514 U.S. at 558; Perez , 402 U.S. at 150). Regulation “may extend to intrastate activities that threaten these i nstrumentalities,” such as crim inalizing the destruction of a grounded aircraft. Id . at 622. Congress also may regulate “the p ersons or things that the inst rumentalities are moving,” such as criminalizing the theft of goods from an inter state carrier, like a train.
Id . But “not all people and things that have ever moved across s tate lines” qualify as permissible targets of regulation. Id. The regulation of goods and people extends only to the duration of their transport. See id. Thus, under this category, Congress may regulate goods or people while they are on a ship or plane, but not nece ssarily once they are unloaded or disembark. iii. Substantial effect Finally, Congress may regulate ac tivity—including intrastate ac tivity—that “substantially affects” interstate commerce. Lopez , 514 U.S. at 559. The Court has upheld, for example, federal regul ation of intrastate coal mini ng, see Hodel v. Va. Surface
Min. & Reclamation Ass’n , 452 U.S. 264 (1981); intras tate public accommodation practices, see Katzenbach v. McClung , 379 U.S. 294 (1964); and homegrown wheat production, see Wickard v. Filburn , 317 U.S. 111 (1942). In each instance, the Court21 determined the laws under review regulated activity that had a substantial effect on interstate commerce. In making such a determination, courts ne ed decide only whether Congress had a “rational basis” that such activities substantia lly affect interstate

commerce. Gonzales v. Raich , 545 U.S. 1, 22 (2005 ) (quotations omitted). In deciding whether federal legi slation is constitutional under the ICC, courts consider congressional findings or the legislative record regar ding the effect of a regulated activity. See id . at 21. Legislative findings, how ever, are neither necessary nor determinative in a court’s rational-basis decision. See United States v. Morrison , 529 U.S. 598, 612 (2000) (congressiona l findings are helpful, but n ot required nor sufficient for upholding a statute); Raich , 545 U.S. at 21 (particulari zed findings not necessary). In assessing a regulated activity’s effect on interstate commer ce, courts need not examine the activity in isolati on, but may aggregate it. For e xample, courts may consider the effect of not just one farme r’s wheat produc tion on the nat ional grain market, but may consider the cumulative effect of all farmers’ production. See Wickard , 317 U.S. at 127-28. But courts sh ould do so when the a ctivity is economic as opposed to noneconomic. See Morrison , 529 U.S. at 613 (holding t hat the effect of domestic violence, a noneconomic activity, could not be considered in th e aggregate). 12 The economic-noneconomic distinction arises from federalism concern s and serves to preserve “what is truly nationa l and what is truly local.” Lopez , 514 U.S. at 567-68.

12 Although the Court has discourag ed the aggregation of nonecono mic activity, it has not prohibited it. In Morrison , the Court did not “adopt a categorical rule against aggregating the e ffects of any noneconomic activit y.” 529 U.S. at 613.22 Courts would otherwise “pile inference upon inference” to determine a regulated activity substantially affects commerce. Id . at 567. Finally, courts also consider whe ther the statute contains an e xpress jurisdictional element relating to interstate commerce. Id . at 561. Congress may explicitly “require an additional nexus to interstate commerce” in its statute. Id. at 562. For example, a statute that criminalizes the possession of a firearm that has traveledin interstate commerce contains an express jurisdicti onal element because violation of the statute hinges on the firearm’s connection to interstate commerce. Id. (using what was form erly 18 U.S.C. § 1202(a) as an example). b. FCC case law Under the FCC, Congress may regul ate commerce “with foreign Na tions.” U.S. Const. art. I, § 8, cl. 3. There is “precious little case law” on the FCC. United States v.
Pendleton , 658 F.3d 299, 307 (3d Cir. 2011); see Clark , 435 F.3d at 1102 (noting “[c]ases involving the reach of the [FCC] . . . are few and far between”). Two Supreme Court cases, however, pro vide some guidance. First, in Board of Trustees of Universi ty of Illinois v. United States , 289 U.S. 48 (1933), the Court upheld a federal tariff under the FCC. The U niversity of Illinois argued that the tariff interfered with its importation of goods and wa s thus unconstitutional. Id. at 56. The Court disagreed, hol ding that Congress had acted wi thin its “constitutional authority to regulate Commerc e with foreign nations,” id. (quotations om itted), which includes imposing duties on impor ts, “pass[ing] embargo and non -intercourse laws,” and making “all other regulations nece ssary to navigation, to the s afety of passengers, and the23 protection of property,” id. at 58 (quotations om itted). This power “co mprehend[s] every species of commercial intercourse between the United States and foreign nations,” id. at 56 (quoting Gibbons v. Ogden , 22 U.S. 1, 193 (1824)), and i s “exclusive and plenary,” id. The Court further explained that the federalism constraints lim iting Congress’s ICC power do not apply in the F CC context. “The principle of d uality in our system of government does not touch the authority of Congress in the regu lation of foreign
commerce.” Id. at 57. The university had argue d that the Constitution prohib ited 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 dire ct burden upon an instrumentality of a state used in the performance of a governm ental function.” Id . at 57-58. The tariff, however, was not a tax passed under the Con gress’s taxing power, but was instead a regulation passe d under its FCC power. Because “the immunity of state instrumentalities . . . [was] imp lied from the necessity of mai ntaining our dual system,” this constitutional limit ation did not extend to statutes regul ating foreign commerce. Id. at 59. Rather, as in international relations, the “United Stat es act[s] through a single government with unified and ade quate power” in the foreign comm erce arena. Id. Second, in Japan Line, Ltd. v. County of Los Angeles , 441 U.S. 434 (1979), the Court struck down California’s p roperty tax on shipping contain ers 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 forei gn commerce, the FCC implicitly restricts the states from regulating foreign commerce. See Japan Line , 441 U.S. at 449 (discussing the “negative implications” of Cong ress’s power under the FCC).24 taxes on its shipping containe rs under California law. Id. at 437. The company challenged the state tax’s constitutionality. Id. at 440-41. It argued that because the containers traveled only in fore ign commerce, they were foreign instrumentalities—as opposed to interstate instrument alities—and the dormant FCC pro tected foreign commerce from state interference such as the California tax. See id. at 437-38

. The Court agreed with J apan Line and concluded the state tax “m ay impair federal uniformity in an area where fede ral uniformity is essential.” Id. at 448. Normally, if a state tax is “applied to an ac tivity with a substantial nexus w ith the taxing State, is fairly apportioned, [and] does not discr iminate against interstate com merce, . . . no impermissible bur den on interstate commerce will be found.” Id. at 444-45 (quotations omitted). State taxes on foreig n entities are different, howev er, because there is a “need for uniformity in treating with other nations.” Id. at 448. States imposing their own taxes might create “asymmetry in the i nternational tax structure,” an d foreign governments may retaliate in their trade po licies with the United States. Id. at 450. Compared with the ICC, “the Founders intended the scope of the foreign commerce p ower to be the greater,”
id. at 448, and thus states are more likely to offend the FCC—rathe r than the ICC—with their taxation policy, see id. at 448-49

. California’s tax was therefore unconstitutional under the dormant FCC. Id. at 453-54.
3. Congressional Authority Broad er Under the FCC than the ICC “[The] scope [of the FCC] has yet to be subjected to judicial s crutiny.” Clark , 435 F.3d at 1102. This section comp ares the boundaries of congress ional authority under the25 FCC and the ICC. It describes how the FCC, unc onstrained by fe deralism considerations, provides Congress broader autho rity to regulate commerce than t he ICC. Congressional authority under the FCC is broad b ecause Congress must speak with “one voice” in the fo reign commerce context. Japan Line , 441 U.S. at 449 (quotations omitted). Moreover, a s the dissent appears to agre e, federalism limits congressional authority under t he ICC, but not the FCC. See Dissent Op. at 27. And, as the Supreme Court has stated, “ [a]lthough the C onstitution, Art . I, § 8, cl. 3, grants Congress power to regulate comme rce ‘with foreign Nations’ and ‘among the several States’ in parallel phrases, there is evidence that the Founder s intended the scope of the foreign commerce power to be the greater.” Japan Line , 441 U.S. at 448; see also Atl. Cleaners & Dyers v. United States , 286 U.S. 427, 434 (1932 ) (“[Congressional] power when exercised in re spect of foreign commer ce may be broader th an when exercised as to interstate commerce.”). Because the FCC concerns commerc e “with foreign Nations”—as opp osed to commerce “among the several States”— the federalism considerati ons that constrain Congress’s authority under the ICC do not apply to the FCC, whi ch therefore confers broader authority on Congress. Bd. of Trustees , 289 U.S. at 57 (“The principle of duality in our system of gover nment does not touch the authority of Con gress in the regulation of foreign commerce.”). History, t ext, and purpose support this c onclusion.

a. History For the Founders, expansive congr essional control over foreign commerce was imperative. They wanted the fede ral government to have enough authority to promote26 foreign commerce, which comprised most of the early American ec onomy. See Scott Sullivan, The Future of the Foreign Commerce Clause , 83 Fordham L. Rev. 1955, 1962-65 (2015). An 18 77 report from the Treasury Department no ted that at the time of the founding, “our foreign co mmerce . . . attracted public atte ntion much more than did the comparatively small intern al commerce.” Joseph Nimmo, Jr., Department of Treasury, Report on the Internal Commerce of the United States 8 (1877). Under the Articles of Confederation, state i nterference had disrupted for eign commerce, and federal power to tax and to regulate comme rce was completely absent. See Sullivan at 1962-64. States circumvented federal tr ade agreements with foreign natio ns by negotiating their

own. Id. Because foreign commerce was so v ital to the American economy, the Founders sought to bolster federal power o ver international trade and en sure that the federal government could “speak with one voice when regulating commerci al relations with foreign governments.” Japan Line , 441 U.S. at 449 (quotati ons 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 , 818 F.3d 651, 668 (11th Cir. 2016), cert. denied , 137 S. Ct. 850 (2017). b. Text The FCC’s text reflects the Fou nders’ objective to provide broa der authority than under the ICC. Again, the Commerc e Clause delegates power to C ongress “[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”27 and “among” affects the scope of the FCC and the ICC. See Sullivan at 1966-67 (describing how the difference al lows states to retain some law making 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 und er the ICC. 22 U.S. 1, 194 (1824). It said “[t]he wor d ‘among’ means intermingled wit h,” and “[c]ommerce among the States[] cannot stop at the external boundary line of each State, but may be introduced into the interior.” Id . But the Court also recogniz ed 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.” Id. The word “among” restricts Congress from regulating “those [internal concerns] which are c ompletely within a particular State.” Id. at 195; see also Lopez , 514 U.S. at 553 (“The Gibbons Court . . . acknowledged that limitations on the commerce power are inheren t in the very language of the Commerce Clause.”). After its discussion of commerce “among the several States,” th e Gibbons Court contrasted commerce “with foreign nations.” Gibbons , 22 U.S. at 195 . “[I]n regulating commerce with foreign nations, the power of Congress does not s top at the jurisdictional lines of several States.” Id. Though the Court did not ela borate on the word “with,” it pointed to the textual differen ce in the two clauses. “Among” in the ICC restrains Congress in regulating intrastate matters—a restraint not prese nt in the FCC.28 Both the FCC and the Indian Comme rce Clause contain the preposi tion “with,” and the Court has drawn compar isons between the two. The India n Commerce Clause provides broad “plen ary power” to Congress in regulating commer ce with Indian tribes.
United States v. Lara , 541 U.S. 193, 200 (2004) (quot ations omitted). The Court has recognized a similar b readth of authority u nder the FCC. “The power to regulate foreign commerce is certainly a s efficacious as that to regulate commer ce with the Indian tribes.” Buttfield v. Stranahan , 192 U.S. 470, 493 (1904); see also United States v. Forty-Three Gallons of Whiskey , 93 U.S. 188, 194 (1876) (“Cong ress now has the exclusive and absolute power to regulate comme rce with the Indian tribes[]—a power as broad and as free from restrictions as that t o regulate commerce with foreig n nations.”). 14

c. Purpose Both the FCC and the ICC empower Congress to address national i nterests, but federalism concerns do not constr ain the FCC as they do the ICC . The ICC’s purpose is

14 The dissent counters that the “difference in prepositions indi cates the opposite.” Dissent Op. at 20. I t posits that “[i]f the [FCC] permitted regulation of commerce ‘ among foreign nations’ . . . then Co ngress would be empowered to regulate commerce among France, E ngland, and Italy,” suggesting that “among” is broader than “with.” Id . But the 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 us e of “among.” Looking at these w ords in context supports our interpretation. In Gibbons , after discussing how “among” prevented Congress from regulating “those [internal concerns] which are c ompletely within a particular State,” the Court stated that the phrase “with forei gn nations” means “the power of Congress does not stop at the jurisdictional lines of the several States.” Gibbons , 22 U.S. at 195. Because “with foreign nations” allows for fe deral regulation of activity within states withou t limitation, the Court in Gibbons suggests the phrase confers broader authority. Moreover, the u se of “with” in the Indian C ommerce Clause suggests broader authority, granting “ple nary power” in regulating comme rce with Indian tribes. See Lara , 541 U.S. at 200 (quotations omitted).29 to enable Congress to regulate in terstate commerce in a federal system. It empowers Congress to regulate on behalf o f national economic concerns as long as the regulation does not interfere with “truly local” affairs. Lopez , 514 U.S. at 568. The ICC permits Congress to ensure that “[i]nters tate trade [i]s not left to be destroyed or impeded by the rivalries of local government,” The Shreveport Rate Case , 234 U.S. 342, 350 (1914), but federalism concerns cabin Congr ess’s power to regulate. “[T]he scope of the interstate commerce power must be considered in the light of our dual syst em of government and may not be extended so as to emb race effects upon interstate co mmerce so indirect and remote that to embrace them . . . would effectually obliterate the distinction between what is national and what is local . . . .” Lopez , 514 U.S. at 557 (q uotations omitted). The FCC’s purpose is to enable Congress—and thus the nation—to speak with one voice on international matters. “ In international relations an d with respect to foreign intercourse and trade the people of the United States act throu gh a single government with unified and adequate national power.” Bd. of Trustees , 289 U.S. at 59. Unlike with the ICC, federalism concerns do not limit FCC authority. See Japan Line , 441 U.S. at 448 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 co ngressional authority is broade r under the FCC than the ICC. See Dissent Op. at 27. It concedes that the FCC is broader than t he ICC in certain situations. See id. at 21. But it disagrees we hav e such a situation here. First , it argues that the FCC’s scope is broader only when applied to res tricting state regulation in30 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 Line , 441 U.S. at 448. It appears to argue that any suggestion in Japan Line that the FCC delegates broader authority to Congress than the I CC 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 “cong ressional power to regulate” an d the dormant FCC’s “restriction on the States” to legislate, id . at 17, the dissent argues that the Court in Japan
Line examined the latter, not the form er. But the scope of FCC auth ority is the same regardless of whether a case involves a challenge to a state’s power to regulate commerce

15 The dissent start s with a line in Gibbons : “[Commerce] car r[ies] the same meaning throughout the [Commerce Clause] . . . unl ess there be some plain intelligible cause whi ch alters it.” Dissent Op. at 5 (quoting Gibbons , 22 U.S. at 194). The dissent also “infer[s ] that the same proposition app lies to the word regulate in the Clause.” Id

. It assumes the Indian Commerce , Foreign Commerce, and Interstat e Commerce Clauses convey the sam e power absent a “plain, intelli gible cause.” But even though “commerce” and “regul ate” may “carry the same meani ng” throughout the Commerce Clause , each modifier—Indian, Foreign, and Interst ate—and its accompanying preposition—“among” and “with”—describe a differen t context. See Atlantic Cleaners & Dyers , 286 U.S. at 434 (Although “the power to regulate commerce is conferred by the same words of the commerce clause with resp ect both to foreign commerce and interstate commerc e . . . the power when exercised in respect of foreign commerce may be broader than when exercised as to interstate co mmerce.”). As the dissent acknowledges, for example , the Indian Commerce Clause g rants Congress a broader power than the ICC, desp ite the meaning of commerce and regulate remaining the same in both provisions. See Dissent Op. at 5-6 (quoting Lara , 541 U.S. at 200).31 or to the federal government’s p ower to legislate. Supreme Cou rt precedent makes this clear. By way of background, t he Constitution does not contain a dorma nt Commerce Clause. The doctrine derives fro m 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 m atters within the scope of t he Commerce Clause power, Congress may choo se to regulate, thereby preempti ng the states from doing so, see Gade v. Nat’l Solid Wastes Mgmt. Ass’n , 505 U.S. 88, 96-98 (1992); Rice v. Santa Fe Elevator Corp. , 331 U.S. 218, 230 (1947), or to au thorize the states to regul ate, see In re Rahrer , 140 U.S. 545, 555-56 (1891); Prudential Ins. Co. v. Benjamin , 328 U.S. 408, 429-31 (1946). If Congress is silent—neither pre empting nor consenting to stat e regulation—and a state attempts to regulate in the face of that silence, the S upreme Court, going back to
Gibbons , 22 U.S. at 236-37 (1824) (J ohnson, J., concurring), and Cooley v. Bd. of Port
Wardens , 53 U.S. 299, 318-19 (1851), ha s interpreted the Commerce Clau se to limit state regulation of interstate commerc e by applying the negative impl ications of the Commerce Clause—“these great silences of the Constitution,” H.P. Hood & Sons, Inc. v. Du Mond , 336 U.S. 525, 535 (1949); see White v. Mass. Council of Constr. Emp’rs, Inc. , 460 U.S. 204, 213 (1983). Accordingly, the Commerce Clause is both an e xpress grant of power to Congress and an implicit limit on the power of state and loc al government. See Comptroller of the Treasury of Md. v. Wynne , 135 S. Ct. 1787, 1794 (2015); Kleinsmith v. Shurtleff , 571 F.3d 1033, 1039 (10th Cir. 2009). The dormant Commerce C lause32 doctrine extends to state regula tion that may conflict with Con gress’s foreign commerce regulatory authority. See, e.g. , Japan Line , 441 U.S. 434. When the Supreme Court has consid ered dormant commerce doctrine challenges to state regulation, it has rec ognized that the scope of Congre ss’s affirmative powers under the Commerce Clause and th e scope of commerce subject to the dormant Commerce Clause are coextensive. See, e.g. , Lewis v. BT Inv. Managers, Inc ., 447 U.S. 27, 39 (1980); Philadelphia v. New Jersey , 437 U.S. 617, 622-23 (1 978). It follows, contrary to the dissent, that i f the Supreme Court, in a dorman t Commerce Clause case, recognizes, as it did in Japan Line , that the FCC confers bro ader authority on Congress than the ICC, then Congress’s authority is broader under the FC C 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 f oreign-commerce context,” Dissen t Op. at 16, but it did say “the Founders intended the scope of the fore ign commerce power to be greater,” Japan Line , 441 U.S. at 448. The Court’s st atement thus sheds light on the FCC’s outer limits for both its grant of congressional auth ority and its restriction

on states. ii. Sovereignty of other nations Although the dissent concedes tha t state sovereignty does not l imit the FCC, it “reject[s] the notion that . . . t he power under the [FCC] to r egulate conduct in foreign nations is unconstrained,” Disse nt Op. at 27, and suggests that the sovereignty of other nations limits the FCC. The disse nt presents no relevant autho rity—text, history, or33 precedent—that the sovereignty o f foreign nations limits Congre ss’s authority under the
FCC. An enumerated power bot h confers and constrains legislative aut hority. See Richard Primus, The Limits of Enumeration , 124 Yale L.J. 576, 578 (2014). Internal limits “are the boundaries of Co ngress’s powers taken on their own terms,” id. , that is, based on the language of the text itself. For example, an internal limit on Congress’s power under the Commerce Clause i s the meaning of the word “com merce.” By contrast, external limits “are affirmativ e prohibitions that prevent Cong ress from doing things that would otherwise be permissible exercises of its powers.” Id . Federalism and the Bill of Rights, for example, externally limit legislative authority und er the Constitution’s enumerated powers. See, e.g. , Lopez , 514 U.S. at 557 (“[T]he scope of the interstate commerce power must be considered in the light of our dual syst em of government.” (quotations omitted)); New York v. United States , 505 U.S. 144, 156 (1 992) (“[U]nder the Commerce Clause Congress may regul ate publishers engaged in int erstate commerce, but Congress is constrained in the e xercise of that power by the Fi rst Amendment.”). First, the FCC is an enumerated power and therefore defines and limits that power by its own terms. The FCC’s inte rnal limits derive from the wo rds “commerce,” “regulate,” and “with foreign nations.” 16 The Framers did not thi nk, nor do we, that the FCC conferred “plenary power to police the behavior of American s in foreign countries.” Dissent Op. at 23. The power to regulate foreign commerce, like all of

16 These limits are reflected in t he doctrinal framework we draw from the third Lopez category and adapt for the foreign commerce context. See infra Part II.A.4.34 Congress’s enumerated powers , “[is] defined, and limited.” Marbury v. Madison , 5 U.S. 137, 176 (1803). But because fede ralism concerns do not apply in the foreign commerce context, congressional authorit y is broader under the FCC than the ICC. Second, the dissent’s suggesti on that the sovereignty of foreig n nations is an “external limit” on the FCC find s no traction. No provision in the Constitution restricts the FCC in this manner. Unlike fe deralism, an integral part of our constitutional structure, and unlike the Bill o f Rights, an express set of lim its on government power, foreign nation sovere ignty appears nowhere in the constitutiona l scheme—either in the Constitution itself or the cases interpreting it. 17

17 To support its foreig n state sovereignty theory, the dissent q uotes The Schooner Exchange v. McFaddon , 11 U.S. 116 (1812), and Alexander Hamilton’s The Defence , Dissent Op. at 23-24 (quoting Schooner Exch., 11 U.S. at 136 and Alexander Hamilton, The Defence No. XXXVI (Jan. 2, 1796), in 20 The Papers of Alexander Hamilton (Harold C. Syrett ed. 1 974)), but their relevance to c ongressional authority under the FCC is unclear. First, The Schooner Exchange established that forei gn sovereigns and their instruments may not be hailed into American courts, which hardl y speaks to congressional authority to regulat e foreign commerce under the FCC. See Verlinden B.V. v. Central Bank of Nigeria , 461 U.S. 480, 486 (1983) (describing foreign sovereign immunity as a matter of comity and grace and not a co nstitutional 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 mentio ns the FCC in its discussion distinguishing treatie s and laws. But it sheds litt le light on our issue here, other than perhaps Hamilton’s co mment that the power to make la ws for the nation under the FCC reaches its citizens abroad. See The Defence No. XXXVI (Jan. 2, 1796), in 20 The Papers of Alexa nder 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 actio n whatsoever upon a foreign nation or any person or t hing within the jurisdiction o f such foreign Nation.” (emphasis added)). Mr. Durham was charged when he returned to the jurisdiction of the United States.35 International rules of sovereig nty and jurisdiction do not affe ct the scope of Congress’s authority under the C onstitution. Th ey concern issu es of international law, custom, and politics, not constitutional ones. See, e.g. , Verlinden B.V. v. Central Bank of Nigeria , 461 U.S. 480, 486 (1983) (“ The Schooner Exchange made clear . . . foreign sovereign immunity is a matter o f grace and comity on the part of the United States, and not a restriction imposed by th e Constitution.”). Whether a st atute conflicts with a foreign law or policy may implic ate international law and polit ics, not whether Congress may pass such a statute under the FCC. Moreover, the Court has long r ecognized Congress’s authority to pass extraterritorial laws that apply to conduct in fo reign countrie s. The dissent suggests any law with application in a foreign country “would i mply a diminu tion of [the foreign country’s] sovereignty . . . .” D issent Op. at 23 (quoting The Schooner Exch. , 11 U.S. at 136). But the Supreme Court has recogni zed “Congress has the authorit y to enforce its laws beyond the territorial bou ndaries of the United States.” E.E.O.C. v. Arabian Am. Oil
Co. , 499 U.S. 244, 248 (1991). Indeed , the application of a feder al statute “so far as citizens of the United States in foreign countries are concerne d, is one of construction, not of legislative power.” Blackmer v. United States , 284 U.S. 421, 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 coun try from enforcing its child sex abuse laws against an Ameri can traveling there. For exampl e, in Pendleton , 658 F.3d at 301, Thomas Pendleton was firs t arrested, convicted, and sen tenced in Germany— where he had molested a 15-year-o ld boy—under Ger man law. Afte r he had served his36 19 months in a German prison, the United States then charged hi m under § 2423(c) for his illicit conduct. Id. iii. Summary The dissent attempts to argue tha t congressional authority unde r the FCC is not broader than under the I CC by (1) restricting Japan Line ’s statement about the breadth of FCC authority to the dormant FCC context and (2) suggesting for eign state sovereignty as an external limit on FCC au thority. We disagree. As we hav e shown, the Japan Line statement is relevant, binding, a nd speaks to the reach of the FCC generally. See Gaylor
v. United States , 74 F.3d 214, 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.”). A nd 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 econo mic engine—through a broad delegation of authority t o Congress under the FCC. They did so in the Commerce Clause, distinguishing the ICC an d FCC by using the terms “amon g” and “with,” respectively. Though Congress may advance national interests u nder both clauses, federalism interests limit congr essional authority under the IC C and not the FCC.
4. The Lopez Categories in the Fore ign Commerce Context The three Lopez categories provide a useful star ting point in analyzing challen ges under the FCC. The following expla ins why the third category a pplies to this case, traces37 its evolution in the interstate commerce context, and explains how it should be analyzed in the foreign commerce context . Because the federalism concer ns limiting the third Lopez category do not apply to the fore ign commerce context, the subs tantial-effect analysis is different unde r the FCC than the ICC. See Bollinger , 798 F.3d at 215 (Without alteration, “the third Lopez category . . . [would be] un duly demanding in the foreign context.”).

a. The ICC’s three categories as a starting point The dissent agrees that we “can a dopt the Interstate Commerce C lause doctrine[’s] . . . three types of re gulation” to consider const itutional challenges under the FCC. Dissent Op. at 27; see also Pendleton, 658 F.3d at 308 (finding “ Lopez ’s ‘timetested’ framework” suitable for t he foreign commerce context). The few Supreme Court decisions about the FCC also desc ribe similar categories—channe ls, instrumentalities, and activities affecting comme rce with foreign nations. See Bd. of Trustees , 289 U.S. at 57 (upholding a tariff under the FCC based on Congress’s author ity to regulate the movement of goods in foreign commerce); Japan Line , 441 U.S. at 454-55 (invalidating a state’s tax on the “instrumenta lities of foreign commerce” unde r the dormant FCC); Bd. of Trustees , 289 U.S. at 58 (recognizing Cong ress’s authority to legislate under the FCC and “consider the conditions of fo reign trade in all its aspect s and effects ”) (emphasis added)). Although the three Lopez categories “provide a useful starting point in defining Congress’s powers under the [FCC],” Bollinger , 798 F.3d at 215, they are not an end point. In light of the FCC’s broader grant of authority, we co nsider the third Lopez38 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 , 352 F.3d 200, 204-08 (5th Cir. 2003) (rec ognizing the FCC’s broader gran t of authority while also applying the ICC framework); United States v. Cummings , 281 F.3d 1046, 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 stat ute, Congress criminalized the combination of “travel inforeign 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 regulat e “activities” substantially af fecting interstate commerce.
See Morrison , 529 U.S. at 609; Lopez , 514 U.S. at 558-59. Becau se § 2423(c) regulates the activity of illicit sexual c onduct, we analyze its constitu tionality under the third category. See Morrison , 529 U.S. at 609. 18

c. Evolution of the third Lopez category This section traces the e volution of the third Lopez category as the foundation to explain how it applies in the fo reign commerce context. The Co urt 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 th e third category, we need not analyze it under the first and second. W e note that § 2423(c) does not regulate the instrument alities of foreign commerce and that the Third Circuit has upheld the constitutionality o f § 2423(c) as a valid regula tion of the channels of foreign commerce. See Pendleton, 658 F.3d at 311.39 514 U.S. 549, and Morrison , 529 U.S. 598—and has applied it in Raich , 545 U.S. 1, in a manner particularly relevant to th is case. Federalism consider ations have played a pivotal role.
In Wickard , the Court upheld the Agricultura l Adjustment Act’s quota for wh eat production, which had been enacted to maintain wheat prices, by applying an aggregateeffects analysis to “those activ ities intrastate which so affec t interstate commerce.” 317 U.S at 114, 128 (quoting United States v. Wrightwood Dairy Co. , 315 U.S. 110, 119 (1942)). Under the Act, Roscoe Fil burn had exceeded his allotm ent, which he had harvested for personal consumption, and was fined. Id. at 114-15. Even though his wheat production had only a de m inimis effect on interstate com merce, the Court found the cumulative effect of all farm ers’ home-grown wheat producti on substantially affected the interstate wheat market and upheld the Act. Id. at 127-28. Through its use of this aggregation analysis, Wickard “ushered in an era of Commerc e Clause jurisprudence that greatly expanded the previously d efined authority of Congress u nder the Clause.” Lopez , 514 U.S. at 556. 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 , 514 U.S. 549, it struck down the Gun-Free School Zones Act of 1 990, which made it a crime to have a gun within 1,0 00 feet of a school, as exceeding congressional authority under the ICC. Id. at 551, 567-68. The Court determ ined the gun legislation attem pted to regulate in the third category an d concluded that gun possessio n near schools did not substantially affect interstate commerce. Id. at 559, 561. It noted that the statute had40 “nothing to do with commerce” and was “not an essential part of a larger regulation of economic activity,” which d istinguished this case from Wickard

. Id. at 561 (quotations omitted). Further, the Court pointed out that neith er the statute nor its legislat ive history contained express legislative findings that the regulated activ ity substantially affected interstate commerce. Id. at 562-63. Accordingly, “[t]he possession of a gun in a local school zone is in no sense an economic activity that might, thr ough repetition elsewhere, substantially affect any sort of interstate commerce.” Id. at 567.
In Lopez, federalism shaped the outer lim it of the substantial-effect ICC analysis. The Court declined to aggregate the noneconomic activity of gun possession near schools. Id. at 561. It rejected the governmen t’s arguments that gun posses sion near schools would adversely affect s tudents’ learning environments, which, in turn, would have a negative effect on the national economy. Id. at 564. The conne ction was too tenuous for the Court. To have u pheld the statute by “pil[ing] inference upon inference” would mean “there [w ould] never [] be a dist inction between wha t is truly national and what is truly local.” Id. at 567-68. If the Court were to follow such logic, the ICC wo uld grant Congress a general police power over such areas as educat ion, a traditional concern of the states. Id. at 565-66. Five years later, the Court in Morrison struck down the Violence Against Women Act of 1994, which authorized v ictims of gender-motivated crime s to sue for damages. 529 U.S. at 601-02. Although Co ngress had made detailed findin gs that gender-based violence substantially affected i nterstate commerce, including deterrence of interstate travel, the Court declined t o draw the connection. Id . at 614-15. It declined to do so41 because it regarded gender-base d violence as noneconomic activi ty. Id at 617

. The Court discouraged “aggregating the effects of any noneconomic a ctivity.” Id. at 613 (noting that “our cases have up held 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 violen t crime . . . to every attenuated effect upon interstate commerce.” Id. at 615. The Court said the federalism “c oncern that [it] expressed in Lopez that Congress might use the Commerce Clause to completely obliterate the Cons titution’s distinction between national and local authority seems well founded.” Id. at 615. Were the Court to accept aggregated noneconomic activity, Congress could potentia lly regulate purely intrastate matters, such as viol ent crime and family affairs. Id. at 615-17. Finally, in Raich , the Court upheld the applicati on of the Controlled Substances Act (“CSA”) to the home cultivat ion and possession of marijuana . 545 U.S. at 21-22. Even though the CSA contained no particularized congressional f indings, the Court determined from the legislative hi story and the statutory schem e that Congress could reasonably conclude noncommercia l marijuana production and poss ession substantially affects the interstate market for illicit drugs and that the pr ohibition is an essential part of a broader economic regulation. Id. at 22, 27. As discussed further below, this case supports upholding § 2423(c).
* * * * In sum, the Court has limited c ongressional authority under the third Lopez category due to federalism concerns. In Lopez and Morrison , it refused to aggregate42 noneconomic activities to determi ne whether the regulated activ ity had a substantial effect on interstate commerce . It feared that such reasoning w ould obliterate the distinction between local and na tional 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 t hat regulates activity, the fede ralism constraints developed for ICC challe nges 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, t he economic and noneconomic di stinction, which otherwise discourages the aggreg ation of noneconomic activity, is unnecessary.
In Lopez, Morrison , and Raich , the Supreme Court recognized limits on Congress’s power under the ICC ba sed on federalism concerns. T o preserve “the distinction between what is n ational and what is local,” Lopez , 514 U.S. at 557, the Court distinguished between comme rcial and noncommercial activi ty and between economic and noneconomic activity. It discouraged aggregating noneconomic activities to determine whether a n activity has a substantial e ffect on interstate commerce. These distinctions are therefore tied to the external federalis m limit on Congress’s ICC power. Federalism limits do not apply to Congress’s FCC power and ther efore do not constrain application of the subs tantial-effect a nalysis in the FCC context. “It has43 never been suggested that Congre ss’[s] power to regulate foreig n commerce could be so limited” by “considerations of fede ralism and state sovereignty .” Japan Line, 441 U.S. at 448 n.13. The FCC provi des Congress broader authority to regul ate activity that substantially affects foreign commerce. See id . (collecting cases). Relatedly, the Supreme Court has recognized t he need for broade r authority bec ause Congress must speak with one unified voice abroad. See Bd. of Trustees , 289 U.S. at 59. FCC analysis thus does not requir e the distinction between econ omic and noneconomic activity. Courts con sequently may aggregate both e conomic and noneconomic activity—and conside r congressional findings of sub stantial effect based on aggregation—in determining whether Congress had a rational basi s to determine that an activity substantially affects fore ign commerce and is therefor e subject to federal regulation.
5. Constitutionality of § 2423(c) Section 2423(c) is constitu tional under the third Lopez category as applied to Mr. Durham. Under the substantial-e ffect category, we must determi ne whether Congress had a rational basis for conclu ding that travel abroad followed by noncommercial, illicit sexual conduct with a minor, “ta ken in the aggregate, substanti ally affect[s]” foreign

commerce. Raich , 545 U.S. at 22. We conclude t hat Congress had such a rationa l basis. Congress passed § 2423(c) as an e ssential part of its broader e ffort to combat international sex trafficking—sp ecifically sex tourism. Under § 2423(b), prosecuting individuals who traveled abroa d to have illicit sex—whether com mercial or noncommercial—required intent . Because proving intent was too onerous, Congress44 omitted intent in § 2423(c) to ac hieve the broader regulatory g oals of § 2423 aimed at international sex tourism. Congr ess therefore had a rational b asis to determine that travel to a foreign country followed by illicit sexual conduct with mi nors substantially affects the international sex tourism industry. Section 2423(c)’s (1) legislative history, (2) role in the broa der statutory scheme, and (3) jurisdictional hook tog ether support the statute’s cons titutionality. The Supreme Court’s analysis in Gonzales v. Raich lends further support.

a. Section 2423(c)’s legislative hi story 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,” esp ecially in many “developing co untries”). For many developing countries, sex touris m had become a source of income , and “[b]ecause poor countries are often under econom ic pressure to develop tourism, those governments often turn a blind eye towards [the p roblem of sex tourism] because o f the income it produces.”
Id. The legislative record contains s tatements expressing concern t hat the sex tourism industry “support[s] one of the fa stest growing areas of intern ational criminal activity.” 149 Cong. Rec. 7,625 (2003) (state ment of Rep. Sensenbrenner). The 2003 PROTECT Act sought to stop this problem. § 105, 117 S tat. at 654. It added a statutory scheme to dismantle sex tourism. See id. In addition to § 2423(c), three of the Act’s other provisi ons also targeted the industry. Section 2423(d) punished sex tourism operators and their businesses; § 2423(e) criminali zed conspiracies or45 attempts to engage in sex tour ism; and § 2423(f) defined commer cial acts, noncommercial acts, and the prod uction of child pornography as activities of sex tourism. One of the PROTECT Act’s criti cal additions was § 2423(c). Thi s 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) re quired the prosecution to show an individual traveled with the “inten[t]” to engage in il licit sexual contact with minors, which was “difficult to prove.” Hearings at 25 (statement of D aniel P. Collins, Associate Deputy Att’y Gen., U.S . Dep’t of Justice). Section 2 423(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) (sta tement of Rep. Sensenbrenner). The dissent correctly observes that congressi onal findings “can inform the analysis” but also are “not dis positive.” Dissent Op. at 41. The dissent also accurately notes that the PROTECT Act did not contain congressional findin gs on the impact of noncommercial sex on foreign commerce. See id . at 42. But “the absence of particularized findings does not call into question Congress’[s ] authority to legislate.”
Raich , 545 U.S. at 21. Courts may lo ok to the legislative history m ore broadly in determining whether Congress ha d a rational basis to conclude t hat an activity substantially affects foreign commerce. See id. at 22. b. Section 2423(c) is an essential par t of a broader statutory scheme Section 2423(c) not only bolster ed § 2423(b), it joined a long lineage of legislation aimed at sex trafficking. Begi nning with the Act of 1907, the United States banned the46 “importation” of foreign prostitu tes into the United States. § 3, 34 Stat. at 899. Congress expanded its efforts to end intern ational sex trafficking by pa ssing the Mann Act in 1910 to prevent interstate trafficki ng, 36 Stat. 825; the Protection of Children Against Sexual Exploitation Act in 1978 to preve nt the trafficking of boys as well as girls, § 3, 92 Stat. at 8; and the Child Sex Abuse and Pornography Act in 1986 to preve nt the noncommercial sexual exploitation of childre n, § 5, 100 Stat. at 3511. The 1 994 Violent Crime Control and Law Enforcement Act, § 1 60001(g), 108 Stat. at 2037, and th e 2003 PROTECT Act, § 105, 117 Stat. at 654—adding § 2423(b) and § 2423(c) to 18 U. S.C. § 2423, respectively—were Congress’s mo st recent attempts to combat sex trafficking through criminalization of sex tourism. The pathway to the enactment o f § 2423(c) manifests a purpose t o address the foreign commerce problem of the international sex trade. Unlik e the gun possession provision in Lopez , which was “not an essential pa rt of a larger regulation of ec onomic activity,” 514 U.S. at 561, Congress viewed § 2423(c) as a necessary part of the broader effort to combat the sex tourism market. It determined that 24 23(b)’s gap limited 18 U.S.C. § 2423’s efficacy. Thu s, in criminalizing illicit se xual conduct abroad, whether commercial or noncommerc ial and regardless of intent, C ongress determined that such activity, in the aggreg ate, substantially affects for eign commerce. Congress had a rational basis to conclude tha t the conduct § 2423(c) address es substantially affects foreign commerce—in this instan ce, the international sex trade. The dissent argues that “the gr eat bulk of [the l ong history of federal legislation governing interstate and inter national travel for sex offenses] is irrelevant because it does47 not speak to the specific regula tion at issue here.” Dissent O p. at 42. But this history is the predicate for showing that § 2423(c) is an essential part o f the broader regulatory scheme. Although we do not rely on formal legislative findings for this point, we properly rely, as have other cour ts, on the legislative history leading up to and including the enactment of § 2423(c). See Raich , 545 U.S. at 10-15 (discussing drug legislation from 1906 to 1970, whi ch “culminated in the passage of” the act containing the CSA); Fullilove v. Klutznick , 448 U.S. 448, 475 (1980) (plurality opinion) (stating “[t]he legisla tive history of the [statute] s hows that there was a rational basis for Congress to c onclude that the [regulated act ivity] . . . has an effect on interstate commerce” and that “Congress could take necessary and proper action to remedy the situation”). The l egislative history demonstrate s that Congress regarded § 2423(c) as an essential part of the broader regulati on resulting from a long history of combatting inte rnational sex tourism. 19

19 The dissent also suggests that there must be congressional fin dings demonstrating that a larger “ regulatory scheme coul d be undercut unless the intrastate activity were regulated .” Dissent Op. at 40 (quoting Lopez , 514 U.S. at 561). Because, the dissent c ontends, Congress made no findings that the “failure to control noncommercial illicit se xual conduct would ‘undercut’ [ the regulation of commercial sex],” id . at 40-41, § 2423(c) was not an essential part of the broader regulation. We disagree. First, as already stated, “the ab sence of particularized findin gs does not call into question Congress’[s] authority to legislate.” Raich , 545 U.S. at 21. The Court has never required legislative findings, let al one findings sho wing that a regulatory scheme would be undercut without r egulation of a particular act ivity. Second, the legislative history demonstrates that § 2423(c) was an essential part of the broader regulatory sc heme. The intent requirement in § 2423(b) was undercutting sex tourism prosec utions. By shedding the mens re a requirement, Congress enabled the prosecution of individuals who travel abro ad and have illicit sex—whether commercial or nonco mmercial—with minors. Congress could48 c. Section 2423(c)’s juri sdictional element sup ports rational basis The dissent recognizes that § 2423(c) contains an “express juri sdictional element” tying § 2423(c) to foreign comme rce. Dissent Op. at 45. In ad dition to “engag[ing] in illicit sexual conduct,” § 2423(c) requires “travel[] in foreig n commerce” as an element of the offense. 18 U.S.C. § 24 23(c). An express element limit s the statute’s reach by linking the prohibited illicit activity to fore ign commerce. See Morrison , 529 U.S. at 611-12; Patton , 451 F.3d at 632-34. The dissent properly points out that “[a ] jurisdictional hook is not, howev er, a talisman that wards off constitutional challenges.”
See Dissent Op. at 45 (quoting Patton , 451 F.3d at 632). But § 2423(c)’s jurisdictional hook nonetheless points to Congr ess’s explicitly limiting the s tatute to “foreign commerce” and to having a rationa l basis for its enactment. Al though the presence of a jurisdictional element is “neith er necessary nor sufficient,” i t is “certainly helpful” in determining whether “the prohib ited activity has a substantial effect on” foreign

commerce. Patton , 451 F.3d at 632. 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 m anufacture, 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 individua ls would continue to fuel the international sex tourism market.49 §§ 812(c), 841(a)(1). State law all owed California residents A ngel Raich and Diane Monson to cultivate or possess ma rijuana for personal medical p urposes. Raich , 545 U.S. at 5. They challenged § 841(a )(1) of the CSA, arguing it excee ded congressional authority under the ICC as applied to them. Id. at 22; see 21 U.S.C. §§ 812(c), 841(a)(1) (2000). The Court upheld§ 841(a)(1) as applied to Ms. Raich a nd Ms. Monson, finding it was part of a larger regulatio n of economic activity and tha t Congress had a rational basis to conclude that home-gro wn marijuana for m edical use sub stantially affected interstate commerce. Raich , 545 U.S. at 22; see 21 U.S.C. § 812 (2000) (CSA section categorizing controlled substances); id. §§ 821-830 (CSA sections specifying requirements for registering, pro ducing, labeling, packaging, a nd recordkeeping for controlled substances). The Court upheld the CSA despi te the lack of a congressional fi nding concerning the impact of noncommercial mar ijuana cultivation on interstate commerce. Raich , 545
U.S. at 21. 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. Id. at 22. It had “no difficulty c oncluding that Congress had a rational basis for believing that failure to regulate the int rastate manufacture and possession of marijuana would leav e a gaping hole in the CSA.” Id. The Court determined that the provision i s part of the CSA’s larger regul atory scheme that regulated the market for controlled substances. Id. at 15, 20-21. Section 841( a)(1) was one part of the CSA, which classifies drugs i nto five schedules, each with a distinct set of controls.
Id. at 13-14. The CSA’s purpose is to control the supply of and d emand for both legal50 and illegal drugs. See id. at 19. Thus, the Court determine d that personally cultivated marijuana for medical purposes, t aken in the aggregate, substan tially affected the illicit market for drugs, and was subject to regulation under the ICC. Id. at 22, 28-29. 20 Two aspects of the Raich analysis are noteworthy. First, the Court observed that the CSA was the product of decades of l egislation. Congress “set out to enact leg islation that would . . . provide meaningful regulation over legitimate sources of drugs to pr event diversion into illegal c hannels.” Id. at 10. Like Congress’s early attempts to regul ate sex trafficking, Congress attempted to regulate the national drug market early on, p assing the Pure Food and Drug A ct of 1906 and the Harrison Narcotics Act of 1914. Id. It also attempted to regulate the market for

20 We have recently interpreted Raich as supporting congressi onal “regulation of noncommercial, purely intrasta te activity that is an essenti al part of a broader regulatory scheme that, as a whol e, substantially affects inter state commerce (i.e., has a substantial relation to i nterstate commerce).” PETPO , 852 F.3d at 1002. In PETPO , we upheld the provisions of the Endangered Species Act (“ESA”) that allow the U.S. Fish and Wildlife Servi ce (“FWS”) to promulgate regula tions protecting threatened or e ndangered species. Id. at 994. Under these provisions, the FWS prohibited the “take”—or the ha rassment, harm, pursuit, hunting , shooting, wounding, killing, trapping, captu ring, or collecting—of Utah p rairie dogs, a purely intrastate species, on nonfederal lands. Id . PETPO, an organization of property owners affected by the regulati on, argued that Congress exceede d its authority under the ICC in authorizing the FWS to promulgate regulations prohib iting the “take” of prairie dogs—a noncommercial activity. Id . at 996. We upheld the provisions because, under Raich , they were “an essential part of the ESA’s broader regulatory sche me which, in the aggregate, su bstantially affects interstate commerce.” Id . at 1002. Even though the regul ation protecting prairie dogs concerned noncommercial activity, we recognized that Congr ess had a rational basis to conclude that the regul ated activity had a substantial relationship to interstate commerce. “Congress had a rati onal basis to believe that provi ding for the regulation of take of purely intrastate spe cies like the Utah prairie dog is essential to the ESA’s comprehensive regulatory scheme.” Id . at 1006-07

.51 marijuana with the Mari huana Tax Act in 1937. Id. at 11. From these piecemeal attempts, Congress finally passe d the Comprehensive Drug Abuse Prevention and Control Act of 1970—which contain ed the CSA—to regulate the ill egal and legal drug markets. Id. at 10. Congress followed a similar cour se in passing the PROTECT Act, building on previous attempts to regulate th e international market for sex trafficking. Beyond criminalizing the transport o f 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 tr avelers who engage in illicit sex. Just as legislative lineage supported a rational basis fo r congressional action in Raich, it also does so for § 2423(c). Second , the Court in Raich examined the home-grown ma rijuana provision within the broader statute and recognize d that it was part of the CSA’ s larger scheme to regulate

commerce. Id. at 23 (noting the CSA was a “va lid statutory scheme” regulating the illicit drug market). It was “of no mome nt” that this larger scheme bo th envisioned and captured some purely intrastate activity. Id. at 22. Because § 841(a)(1) was one component of a regulatory framewo rk, the Court “refuse[d] to ex cise individual components of that larger scheme.” Id. Thus, the Court upheld t he CSA’s regulation of noncommercial cultivation of med ical marijuana as a valid part of a larger scheme to regulate the controlled substances market. Similarly, § 2423(c) is part of t he PROTECT Act’s larger scheme to combat sex tourism. Congress passed § 2423( c) as a vital co mponent to reg ulate the illicit52 international market f or sex. The § 2423 pr ovisions work toget her to curb the trafficking and sexual exploitation of minor s abroad. Section 2423(a) targ ets the trafficking of minors across state and interna tional 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 indust ry. That § 2423(c) captures intranationa l, noncommercial activ ity is “of no moment ,” see id. at 22, because it is a part of a statutory struc ture aimed at regulating forei gn commerce—the international sex tourism industry. 21

e. Rational basis standard Rational basis is a deferential standard. The dissent mistaken ly suggests that because the regulated activity mus t have a substantial effect o n commerce and because noncommercial sex is noneconomi c, such an effect is impossible. See Dissent Op. at 37-

21 The Raich Court recognized that Congress exercised its authority under t he ICC and the Necessary and Proper Cla use to pass “comprehensive legi slation to regulate” the illicit substances market. Raich , 545 U.S. at 22. “Congress wa s acting well within its authority to ‘make all Laws whi ch shall be necessary and proper ’ to ‘regulate Commerce . . . among the several States.’” Id . (quoting U.S. Const. a rt. 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 noncomme rcial, intrastate activity—home cultivation and possession of medical mariju ana—was “of no moment.” Id . The Court refused to “excise individual components of that larger scheme.” Id . It was therefore “necessary and proper” under Congress’s I CC power to regulate the noncomme rcial, intrastate activity. Id . Because the Government does not rely on the Necessary and Pr oper Clause to defend § 2423(c), we do not address that provision.53 38. The dissent criticizes the government for its failure t o show that “noneconomic sex abuse will affect the market in commercial sex trafficking, ” id . at 38, or that the “regulation is ‘an essential part ’ of the regulation of commerc ial sex tourism,” id . at 40. It demands “data [] that [show] prosecutions of noncommerc ial child sexual abuse reduce the incidence of commercia l 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 ha s a substantial effect on inte rstate commerce, but whether Congress could reas onably have thought so.” Patton , 451 F.3d at 625. As the Court emphasized in Raich : “[W]e stress that the tas k before us is a modest one. We need not determine whether r espondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whet her a ‘rational basis’ exists for so concluding.” Raich , 545 U.S. at 22. Here, the l egislative history, the overall statutory scheme, and jurisdictional hook all evince th at Congress had a rational basis for concluding th at, in the aggregate, Americans who travel abroad and

22 The dissent emphasizes the ec onomic and noneconomic distinctio n. See Dissent Op. at 34 (“The fact t hat noncommercial nonconsensual s exual activity is not economic activity is extremely i mportant, proba bly dispositive, in determining whether it is subject to the thir d category of regulation of co mmerce.”). But this distinction arose from federalism concerns in the ICC context, and those concerns do not apply here. Even in the ICC context, the Cou rt has never “adopt[ed] a categ orical rule against aggregating the effects of any noneconomic activity.” Morrison , 529 U.S. at 613. The Court has upheld congr essional regulation of noncomme rcial activity, see Raich , 541 U.S. at 21-22, and this court has uphe ld laws regulating what appear ed to be noneconomic activity. See PETPO , 852 F.3d at 1002 (uphold ing the protection of prairie dogs under the ESA).54 have noncommercial sex with minor s substantially affect the int ernational sex tourism market. 23 Congress determined, after year s of experience with the evolv ing legislative framework, that it n eeded § 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 o f § 2423(c)’s criminalization of noncommercia l illicit sexual conduct abroad under the FCC have upheld it. See Bollinger , 798 F.3d at 218 (the Fourth Circuit upholding § 2423(c) because of its “demonstrable” effect on foreign commerce); Pendleton , 658 F.3d at 311 (the Third Circuit upholding § 2423(c) because of its express c onnection to the channels of foreign commerce); see also United States v. Flath , 845 F. Supp. 2d 951, 956 (E.D. Wis. 2012) (upholding under the FCC); United States v. Martinez , 599 F. Supp. 2d 784, 808 (W.D. Tex. 2009) (u pholding under the FCC and the necessary and proper clause).
But see United States v. Al-Maliki , 787 F.3d 784, 791-92 (6th Cir. 2015) (not deciding the issue, but expressing doubt a bout § 2423(c)’s constitutionality under the FCC). 24

23 The dissent relies on the thre e-factor framework laid out in Patton , but eschews a holistic ana lysis. It recognizes t hat three factors— (1) the activity’s relation to commerce, (2) congre ssional findings, and (3) juris dictional hook—are relevant to our substan tial-effect analysis, see Dissent Op. at 35-36, but analyzes them separately from each other, see id. at 36-48. Here, we cons ider the legislative history, the regulatory scheme , and the jurisdictional hook together in “answer[ing] [the] question” of “whether Congr ess had a rational basis to fi nd that the regulated activity, taken in the aggregat e, would substantially affect in terstate commerce.” Patton , 451 F.3d at 623; see also Raich , 545 U.S. at 10-11, 22-23.

24 The Ninth Circuit also has uphe ld § 2423(c) under the FCC in a challenge to the provision’s prohibition of c ommercial illicit sexual conduc t. See Clark , 435 F.3d55 Two district court opinions in th e District of Columbia have he ld otherwise. See
United States v. Reed , No. CR 15-188 (APM), 2017 WL 3208458, at *14 (D.D.C. July 27, 2017) (unpublished ) (finding § 2423(c)’s application to non commercial conduct unconstitutional under the FCC); United States v. Park , 297 F. Supp. 3d 170, 179 (D.D.C. 2018) (using Reed , 2017 WL 3208458, to come to the same conclusion). But, unlik e here, these cases concerned indi viduals charged under § 2423(c) ’s “residing clause.” See 18 U.S.C. § 2423(c) (“Any Unite d States citizen . . . who trave ls 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,” whic h is present in our case. See, e.g. , Reed , 2017 WL 3208458, at *12. Moreover, the district c ourts emphasized the sexual ab use 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. , id. In coming to this conclusion, they focused on a lack of particularized legislative findings a nd history. As explained above, the Supreme Court has ne ver required “particularized fin dings,” and such a limited focus overlooks the legis lative history laid out in thi s opinion and § 2423(c)’s place in a broader regulatory scheme. Raich , 545 U.S. at 21; see also Heart of Atlanta Motel, Inc. v. United States , 379 U.S. 241, 252 (1964) (upholding the Civil Rights Act even without congressional findings).

1100. It also recently interpreted the language of § 2423(c) w ithout addressing its constitutionality. See United States v. Pepe , 895 F.3d 679 (9 th Cir. 2018).56 7. Conclusion In passing § 2423(c), Congress ha d a rational basis to conclude it was regulating activity that substantially affect s foreign commerce. In parti cular, it could reasonably decide that foreign travel follo wed by noncommercial sex with m inors—in the aggregate—substantially affects the international market for se x tourism. We therefore uphold § 2423(c) as applied to M r. Durham as a permissible exer cise of congressional authority under the FCC. Section 2423(c)’s legislative hi story, place in the broader reg ulatory scheme, and jurisdictional hook indicate Congr ess’s rational basis for dete rmining the activity’s substantial connection to foreig n commerce. In 2002, the congr essional sponsors of § 2423(c) recognized that the se x tourism industry was expandin g and that the “growing . . . industry” fueled human sex trafficking, a massiv e illicit international market. 149 Cong. Rec. 7,625 (200 3) (statement of Rep. Sensenb renner). Congress attempted to curtail such markets with the PROTECT Act in 2003. Section 2423(c)—and its accompanying provisions—targe t sex tourists and operators, commercial and noncommercial acts, and travel w ith and without intent to engag e in illicit sexual acts. Specifically, § 2423(c) c losed the enforcement gap created by § 2423(b)’s intent requirement. Congress had a rational basis to conclude that, w ithout § 2423(c), the failure to capture such behavio r would substantially affect for eign commerce—here sex tourism. Thus, under the FCC, Congress permis sibly exercised its authori ty in passing § 2423(c).57 B. Issue Two: Brady Claim In his supplemental motion for ne w trial under Federal Rule of Criminal Procedure 33, Mr. Durham allege d that the Government suppressed evidence favorable to the accused in violation of Brady v. Maryland , 373 U.S. 83 (1963). The district court denied the moti on, and Mr. Durham appeals the Brady ruling. We affirm because Mr. Durham has not shown by a preponderance of t he evidence that nondisclosure of the evid ence prejudiced his case.
1. Additional Procedural Background

a. Trial testimony At trial, Dr. Alawiya Abdulkadir Mohamed testified about the vi ctims’ medical records. ROA, Vol. 12 at 1178 (TT 564). In June 2014, Dr. Abdulkadir supervised the outpatient clinic in Kenya where the victims wer e examined. Id. at 1179-80 (TT 565-66). Although sh e did not examine the children , she reviewed the Post Rape Care (“PRC”) forms prep ared by the clinician who did on June 18, 2014.
Id. at 1182-83, 1188-89 ( TT 568-69, 574-75). Dr . Abdulkadir prepar ed Medical Examination Reports based on the PRCs. Id. at 1183 (TT 569). Her testimony included the following: Q. [C]an you explain to the j ury what the hymen is on a female? A. Okay. So the hymen is a m embrane which covers the vagina and it’s -- it doesn’ t fully cover the vagina, so there’s a portion which is s lightly open to allow the menstrual flow. So it’s a m embrane which is usually most people get born with it and it’s usually present in kids and -- yes. Q. If a hymen is perforat ed, what does that mean?58 A. Okay. We -- the hymen c ould be perforated due to several reasons. One of th em would be due to sexual assault. The others woul d be due to extraneous exercises involving the groi n region or falling astride, like falling on a wall, havi ng bicycle accidents and horseback riding. Those are the common things which break the hymen.
Id. at 1185-86 (TT 571-72). She furth er testified that five of the six girls had a perforated hymen and that would not be normal for girls their a ges. Id. at 1187-88 (TT 573-74). On cross-examina tion Dr. Abdulkadir testified: Q. Now, you talked a lot about a perforated hymen? A. Yes. Q. Now, a hymen -- a hymen c an 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 bi gger 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 mo re 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-es trogenized; is that right? A. Yes. Q. And that means that the hym en is more rigid and hard? A. Yes. Q. And so that would be the situation for children who have not yet hit their menst rual cycle; is that right? A. Yes.
Id. at 1198-99 (TT 584-85); see also id. at 1220-21 (TT 606-07) (answering in the negative when asked if a 7, 6, 13 or 11-year-old should have a perforated hymen).59 Dr. Abdulkadir testified that eve n if the assaults occurred a m onth before the examinations, the exams were co nducted because “[t]he hymen doe sn’t come back. So we’re looking out for the hym en. It doesn’t regenerate, so --.” Id. at 1214 (TT 600), see also id. at 1221 (TT 607). She agreed tha t “there’s no way you can be certain that Mr. Durham committed the assaults.” Id. at 1215 (TT 601); see also id.

at 1222 (TT 608). Later in the trial, the defense called Lisa Dunson, a sexual as sault nurse examiner, who was present in t he courtroom when Dr. Abdulkadir testified. Id. at 1581, 1585 (TT 967, 971). Nurse Dunson testified that all hyme ns have a hole in them, that preadolescent childre n do not usually have physical injuries following a sexual assault, and that hymens have different shapes and sizes

. Id. at 1594-96 (TT 980-82). As for the term “perfora ted hymens,” she testified: Q. Now, what about -- what w as the term used on the medical records as far a s the hymen; do you recall? A. Yes. They used the word “perforated.” Q. And the examiner who con ducted -- who viewed the children didn’t testify. Wha t 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 u sed 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 s upposed to be there, so I don’t know what that means b ecause I don’t use that.
*** Q. So “perforated” could mean a tear, it could mean just the natural opening of th e hymen. We don’t know at this point; is that right? A. I wouldn’t specula te what that means.60 Id. at 1596-97 (TT 982-83). She conced ed that the term “perforated hymen” might be commonly used elsewhere, and that it appears in the Kenyan p rotocol for sexual assault examinations. Id. at 1621, 1626 (TT 1007, 1012). Although the term had not been used since she started doi ng examinations in 2003, she sai d it was once used in the United States. Id. at 1626 (TT 1012). Nurse Dunson testified, contrary to Dr. Abdulkadir, that hymen tissue can repair itself. Id. at 1598 (TT 984). She had reviewe d an article that said “minor abrasions and lacerations usua lly heal within about three to fo ur days.” Id . She said that “statistics say that 90 to 95 percent of all children exam s, regardless of what the disclosure, are normal.” Id. at 1599 (TT 985). She also test ified that in examinations of children who have been sexua lly assaulted, “there usually is n’t an injury. Children are usually not injured.” Id. at 1616 (TT 1002). She als o agreed that a “positive finding” for five of the six c hildren would be unlikely. Id. at 1617-18 (TT 1003-04). She said that an acute injury of the hymen is from blunt force trauma. Id. at 1625 (TT 1011). b. Supplemental motion for new trial On October 2, 2015, Mr. Durham m oved for leave to file a supple mental motion for a new trial, which w as granted, and he filed his mem orandum in support on October 27. Mr. Durham allege d the Government violated his right to due process under Brady because the prosecutor in the case, Assista nt United States Att orney61 (“AUSA”) Robert Don Gifford, fai led to disclose evidence favora ble to the accused. ROA, Vol. 3 at 505-06. 25 The supplemental motion stemmed from two memoranda that the Okl ahoma County District Attorn ey, David Prater, sent to the district co urt after the trial. On September 28, 2015, the court se nt 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 re sted its case-in-chief. On August 16, 2015, Oklahoma Coun ty Assistant District Attorney (“ADA”) Gayland Geiger wrote the first memorandum. It de scribed his Ju ne 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 rem ember the exact number) of female victims ages 6 to 14 . All but one of them had a perforated hymen. He indi cated this evidence was presented by the government ’s medical witness. . . . A reviewing doctor actually tes tified to the perforated hymens. He said as best as t hey could tell, the sexual assault exams were done abo ut 6 weeks after the abuse occurred. He said the defense was calling a sexual assault expert, and he did not know wh at the expert would say. . . . I told him that I have not hear d the term perforated hymen. I told him it is very unusual to have physical findings in children; that it is extremel y unusual to have physical findings 6 weeks after the event; that even if there were an injury, it would have healed i n that amount of time; and, that it is extremely unusual a nd almost unheard of to have physical findings in 5 of 6 or 6 of 7 victims. I called [Physician Assistant] Donalds on and joined her for a three-

25 Mr. Durham also alleged in his initial motion for new trial th at the Government violated Brady because it suppressed video da ta 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.62 way conversation with Giffo rd. 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 ca nnot cross examine the defense expert in good faith on thos e issues, because medical research and the legitimate me dical community share those opinions. I encouraged him t o instead contact Dr. Brown to be a rebuttal witn ess to use to say even if the African exams are incorrect, i t still does not mean sexual abuse did not occur. Id. at 813. At ADA Geiger’s request, Dr. Rya n Brown, Chair of the Child Pro tection Committee at the Univ ersity of Oklahoma Ch ildren’s Hospital, wr ote the second memorandum about his discussions with AUSA Gifford on the night of June 15: We had discussed what a perfo rmed hymen meant to me. I had told him that to me, it me ant that the hymen had a hole in it, which is norma l. 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 her e in the US. . . . I had also stated that an imperfo rate 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 cas e to have perforated hymens and that the physician wa s calling that an abnormal finding. I spoke with him that ac tually it is rare to have findings in sexual abuse ex ams, especially in your preadolescent children. I tol d him that about 95% of the time we will have a normal fi nding, and of the 5%, 2/3 of the evidence is found on th e 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 t he same findings on exam in regards to a sexual assault, unless th e perpetrator was using some type of instrumentation, I a lso 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 to63 have abnormal findings on a preadolescent sexual abuse exam, and to have mu ltiple children with the same finding, other than normal, would be rar e. I also stated again that time is of the essence and ra pe exams done after a week could be normal even if ther e was a finding to begin with since the tissue heals so quickly.
Id . at 816. In his supplemental motion, Mr. D urham argued that AUSA Gifford had failed to disclose the information he l earned in his June 15, 2015 con versations in violation of Brady . In opposition, the Governm ent argued there was no Brady violation because the information at issue w as available to the defense a nd 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, a lthough the information provide d by Dr. Brown was available from other sources, th e fact it came from Dr. Brown w as not. But the court concluded that the Government’s failure to apprise Mr. Durham o f Dr. Brown’s statements did not deprive him o f 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 AUS A Gifford had failed to correc t Dr. Abdulkadir’s false tes timony in violation of Napue v. Illinois , 360 U.S. 264 (1959). ROA, Vol. 3 at 500-04. The d istrict court denied the Napue claim, concluding there was no evidence that Dr. Abdulkadi r committed perjury rather th an testified inconsistently with Mr. Durha m’s expert, Nurse Dunson. Id. at 808-09. On appeal, Mr. Durham does not present a Napue argument. He concedes t hat 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 , 793 F.3d 1194 (10th Cir. 2015). Aplt. Reply Br. at 6 n.1; see Garcia , 793 F.3d at 1207 (“A Napue violation occurs when (1) a government witness committed perjury , (2) the prosecution knew the testimony to be false, and (3) the testim ony was material.” (emphasis add ed)); see also United64 2. Analysis

a. Standard of Review “Our review of a Brady claim asserted in the contex t of a Rule 33 motion for a new trial is de novo, with any f actual findings reviewed for cl ear error.” United
States v. Torres , 569 F.3d 1277, 1281 (10th Cir. 2009); see United States v. Garcia , 793 F.3d 1194, 1205 ( 10th Cir. 2015). “[W]hether suppressed ev idence is material is a mixed question of law and fact which we also review de novo.” Douglas v.
Workman , 560 F.3d 1156, 1172 (10th Cir. 2009). b. Legal Background Under Federal Rule of Criminal P rocedure 33, “the court may vac ate any judgment and grant a new trial if the interest of justice so re quires.” Mr. Durham’s Rule 33 motion was based , in part, on an alleged Brady violation.
In Brady , the Supreme Court held “that t he suppression by the prosecution of evidence favorable to an accused upon request violates due proc ess where the evidence is material either to guilt or to punishment, irrespec tive of the good faith or bad faith of the prosecution.” 373 U.S. at 87. The Court late r held that the duty to disclose such evidence applies even when the accused has made n o request. United States v. Agurs , 427 U.S. 97, 107 (1976). Brady applies to impeachme nt evidence, or evidence affecting w itness credibility, “[w]h en the reliability of a given witness may well be determinative of guilt or innocence.” Giglio v. United States , 405 U.S. 150,

States v. Caballero , 277 F.3d 1235, 1244 (10th Cir . 2002) (“Even postulating tensi on between [a witness]’s responses on direct and cross, such incon sistency alone does not establish the knowing use of perjured testimony.” (emphasis added)).65 154-55 (1972) (quot ations omitted); see also United States v. Bagley , 473 U.S. 667, 676-77 (1985). To establish a Brady violation, “[1] [t]he eviden ce at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppresse d by the State, either willful ly or inadvertently; and [3] prejudice must have ensued.” Strickler v. Greene , 527 U.S. 263, 281-82 (1999); see United States v. DeLuna , 10 F.3d 1529, 1534 ( 10th Cir. 1993). The defense needs to establish these elements by a preponderance of the evidence.
McCormick v. Parker , 821 F.3d 1240, 1246 (10th Cir. 2016). In Strickler , the Court said the third element concerns “whether petitioner has establi shed the prejudice necessary to satisfy the ‘mater iality’ inquiry.” 527 U.S. at 2 82. 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 resul t of the proceeding would have been different.” Bagley , 473 U.S. at 682; see also Kyles v. Whitley , 514 U.S. 419, 433-434 (1995); Garcia , 793 F.3d at 1205.

c. No prejudice for a Brady violation The information that AUSA Giffor d learned from the June 15 conv ersations was favorable to the defense, a nd he did not disclose the conve rsations to defense counsel. 27 But even assuming Mr. Durham c ould show the first two element s of

27 In this regard, the concerns o f DA Prater and ADA Geiger were well taken. See ROA, Vol. 3, at 813-15.66 Brady were met, 28 he has not established prejudice because the information was n ot material in light of Nurse Duns on’s testimony. We therefore af firm the district court’s denial of Mr. Durham’s Brady motion. AUSA Gifford’s June 15, 2015 co nversations with ADA Geiger, Ms. Donaldson, and Dr. Brown were wa s not material in light of the trial record. On June 16, Mr. Durham called Nurse Duns on to testify. She said there are “usually not injuries with children” followi ng a sexual assault, ROA, Vol. 1 2 at 1598 (TT 984), that a physical finding was less likely if the exam occurred fi ve days after an assault,
id . at 1597 (TT 983), that “minor a brasions and lacerations usual ly heal within about three to four days,” id. at 1598 (TT 984), that “perfora ted hymen” was an antiquated term no longer in use, id. at 1626 (TT 1012), and that “st atistics say that 90 to 95 percent of all children exams, regardless of what the disclosur e, are normal,” id. at 1599 (TT 985). Nurse D unson therefore testif ied to the informa tion AUSA Gifford learned during his June 15 conve rsations, including the rarity of physical findings in cases of child sexual assault an d 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.” R OA, 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 defendan t knew or could have acquired the inform ation 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.67 She provided testimony that was t he same as or comparable to th e information from Dr. Brown about perforated hymen s, the likelihood of findings d uring sexual abuse examinations, that normal findings do not rule out sexual assau lt, the rarity of the same findings in multiple child ren, 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 981-8 2, 984-85, 1002-04, 1012, 1017). Mr. Durham cannot show prejudice because Nurse Dunson rebutted each of Dr. Abdulkadir’s points that may o therwise have been impeached by the information that AUSA Gifford learned in th e June 15 conversations. Indeed , Mr. Durham admits on appeal that Nurse Dunson’s tes timony “largely rebutted Dr. A bdulkadir’s claims.” Aplt. Br. at 23-24. Taking the di fferences between the experts ’ opinions into account, we still concl ude that there was no Brady violation because Mr. Durham has not shown “a reasonable probability that, had [Dr. Brown’s info rmation] been disclosed to the defense, the result of the proceeding would ha ve been different.” Bagley , 473 U.S. at 682. 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 Stat ements about Ch ild Pornography and Homosexuality Mr. Durham argues that the distric t court’s admission of his ou t-of-court statements that he had struggled with child pornography and hom osexuality violated (1) Federal Rule of Evidence 40 4(b) because the statements were used to show68 propensity to commit the charged offenses, (2) Federal Rule of Evidence 401 because the statements were irrelevant, and (3) Federal Rule of Evidenc e 403 because the statements were unfairly prejudi cial. Because the district cou rt did not abuse its discretion, we affirm.
1. Standard of Review We review the admission of evide nce for abuse of discretion “an d will not reverse if the district court’s ruling falls within the bounds of permi ssible choice in the circumstances and is not arbitrar y, capricious or whimsical.” United States v. Willis , 826 F.3d 1265, 1270 (10th Cir. 2 016) (quotations omitted).
2. Additional Factual Background

a. Evidence about child por nography and homosexuality The prosecution presented eviden ce at trial about two separate times when Mr. Durham said he had struggled with child pornography or homosexu ality. First, Ms. Wambugu, Ms. Menja , Mr. Mutonga, and Mr. Jeffries te stified about statements made at the June 13, 2 014 meeting at Upendo. They e ach said that during the meeting, Mr. Durham went outside to talk to Ms. Wambugu, ROA, V ol. 12 at 721, 827, 998, 1132, and that, upon returnin g with Ms. Wambugu to the sit ting room, Mr. Durham said he had struggled with child pornography and homosexuality. Id. at 724, 828, 999. According to Ms. Wambugu, Mr. Dur ham said he could not remember molesting the children, but could “only reme mber . . . he ha[d] been struggli ng with child pornography and homosexuality.” R OA, Vol. 12 at 724 ( TT 110). Ms. Menja t estified that Mr. Durham “said that he needed help because he has been struggling with child pornography69 and homosexuality.” Id. at 828 (TT 214). Mr. Mutonga te stified that Mr. Durham said he “needed to apologize, he need ed to be forgiven,” and that he “struggled with homosexuality and chil d pornography.” Id. at 1133 (TT 519). In his testimony, Mr. Durham admitted saying at this me eting that he struggled with h omosexuality, but denied mentioning child pornography. Id. at 1848-49 (TT 1234-35). Second, the jury was shown the Se agull Confession Videos that w ere recorded on June 17. At the beginning of one of the videos, Mr. Durham sta ted he could not remember what happened. Ms. Men ja responded that if Mr. Durham did not have a memory of the events and could not describe them, they would “w ant the police [t]here to deal with it first.” Gov’t Exh. 4 at 1:03-1:10. Mr. Durham sa id, “I’ve told you the truth, I’ve told you that I’ve struggled with this my whole life . . . .” id. at 1:32-1:37, and described a “temptation to touch children and to be with other men,” id. at 1:57-2:01. b. District court rulings Before trial, Mr. Durham moved to exclude evidence about his al leged struggles with “wanting to touch children” 29 or “erotic pornography,” ROA, Vol. 2 at 282, and also moved to exclude evidence “regar ding [his] sexual history and s exual orientation,” id. at 345. The district court denied t hese motions at a pre-trial he aring. On the pornography, the Government argued the statem ent was “inherent as a part of [Mr. Durham’s] confession,” and the court seem ed to agree. ROA, Vol. 12 at 52 3. The court admitted the statements about homosexua lity because “when a defendant is ostensibly explaining

29 Although Mr. Durham sought to ex clude the statement about a te mptation to touch children before trial, he does not challenge its admissio n on appeal.70 what he’s done, that . . . would b e very relevant and probative and admissible.” Id. at 531. When Ms. Wambugu testified at t rial about the June 13 statement s, the court asked if Mr. Durham would like a limiti ng instruction to the jury tha t Mr. Durham was “not on trial for child pornogra phy or homosexuality.” Id. at 725 (TT 111). Defense counsel declined, saying he “d[idn’t] see how there c[ould] be any limi ting instruction that cure[d] [the testimony’s] pre judice,” so none was given. Id. at 725-26 (TT 111-12). Mr. Durham based his motion for a new trial in part on the admi ssion of the evidence about his statements con cerning child pornography and homosexuality. See ROA, Vol. 3 at 316-324. The distr ict court ruled he was not en titled to a new trial based on the admission of the statements. Id. at 785. It said the statement about child pornography was relevant “becaus e it was offered by Defendant a s a justification for the behavior of which he was accused, ” and found any prejudicial ef fect of the evidence did not substantially outweigh its probative value. ROA, Vol. 3 at 786. As to the statements about homosexuality, the court fo und “that the potential prejud ice of admitting Defendant’s statements did not outweigh their probative value.” Id. at 785. “[D]espite the potential for prejudice to D efendant . . . the e vidence her ein was relevant, largely because it was offered by Defend ant as some type of explanation or justification when he was accused of engaging in ina ppropriate sexual activity with c hildren at Upendo.” Id. at 785-86.71 3. Legal Background

a. Rule 404(b) Federal Rule of Evidence 404(b) p rohibits 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 acco rdance with the character.” “When we apply Rule 404(b), we di stinguish between evidence tha t is extrinsic or intrinsic t o the charged crime.” United States v. Kupfer , 797 F.3d 1233, 1238 (10th Cir. 2015). Rule 404(b) prohibits evidence of “othe r acts,” “but this rule does not cover evidence that is c onsidered intrinsic” to the ch arged crime. Id. (quotations omitted). Evidence is intrinsic when it is “directly connected to the factual circumstances of the cri me and provides contextual or b ackground information to the jury.” Id. (quotations omitted). b. Rules 401 and 402 Evidence is admissible only i f it is relevant. Fed. R. Evid. 4 02. Evidence is relevant if “it has any tendency to make a fact more or less pr obable than it would be without the eviden ce; and . . . the fact is of consequence in d etermining the action.” Fed. R. Evid. 401.

c. Rule 403 Otherwise admissible evidence ma y be excluded under Rule 403 if its “probative value is substantia lly outweighed by . . . unfair pr ejudice.” Fed. R. Evid. 403. “‘Unfair prejudice’ within its context means an undue ten dency to suggest [a] decision on an improper basis, c ommonly, though not necessarily , an emotional72 one.” United States v. Silva , 889 F.3d 704, 712 (10th Ci r. 2018) (quoting Fed. R. Evid. 403 advisory committee not e to 1972 proposed rules). “[A ]s to a criminal defendant, [it] speaks to the cap acity of some c oncededly relev ant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief v. United States , 519 U.S. 172, 180 (1997). “The district court has consider able discretion in performing t he Rule 403 balancing test, but exclusion of evidence under Rule 403 that i s otherwise admissible under the other rules is an extr aordinary remedy and should be used sparingly.”
Silva , 889 F.3d at 712 (quotations omitted).
4. Analysis The district court did not abuse its discretion when it determi ned the challenged statements were (1) intrinsic t o the charged crimes, (2) releva nt, 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 distri ct court did not use the word “intrinsic,” it viewed the statements as intrinsic to the charged crimes because they were part of Mr. Dur ham’s denials and eventual con fession to the crimes. See ROA, Vol. 12 at 523, 531; ROA, Vol. 3 at 785-86.

30 Although the statements at issu e “are party admissions under [ Federal Rule of Evidence] 801(d) a nd thus not hearsay, t hey must nevertheles s also be analyzed for admissibility under Rule 404(b )” because they reference oth er acts that could have been used as pro pensity evidence. United States v. Oberle , 136 F.3d 1414, 1418 (10th Cir. 1998).73 Mr. Durham made both statements at issue when the Upendo volunt eers confronted him about the childre n’s allegations. The statement s were intrinsic evidence because they provided “c ontextual or background inform ation” regarding his actions when confronted with t he allegations against him an d his confession at the Seagull on June 17. Kupfer , 797 F.3d at 1238. The fact that the statements wer e made after the charged conduc t had occurred does not make them extrinsic. For example, in United States v. Bajoghli , 785 F.3d 957 (4th Cir. 2015), the Fourth Circ uit held it was an abuse of dis cretion for the district court to exclude evidence of a defe ndant’s post-scheme conduct, id. at 966. In that case, the government sought to introduce ev idence that the defendant had halted his fraudulent scheme after he was interviewed by law enforcement. Id. at 964. The court held this evidence was admissible intrinsic evidence, not 404(b) evidence , because it showed the defendant’s knowledge and intent to defraud. Id. at 965. Although Mr. Durham made his statements after the charged conduct, they were nonetheless intrinsic evidence because they “bear[] directly” on his response to the allegatio ns against him. Id. at 964 (alteration and quot ations omitted). The district court did not abus e its discretion by holding the statements were intrinsic evidence and not sub ject to the Rule 404(b) bar. b. Rules 401 and 402 As intrinsic evidence, the state ments 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 all egations that he had74 molested children and that two o f his alleged victims were male , Mr. Durham’s statements that he had struggl ed with both child pornography an d homosexuality provided context and e xplanation, making th em relevant and admi ssible under Rules 401 and 402. Mr. Durham has not p resented any persuasive argum ent on appeal that the district court abused its dis cretion in determining the sta tements not only constituted intrinsic evidence bu t also met “the minimal releva nce requirements of Rule 401.” United States v. Spence , 721 F.3d 1224, 1229 (10th Cir. 2013); see United States v. Breton , 740 F.3d 1, 14 (1st Cir. 2014) (recognizing “the low bar of relevancy set out in Rule 401”).

c. Rule 403 The district court di d not abuse its discretion in admitting th e 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 i ts discretion to determine that the potential for unfair pre judice did not substantially o utweigh the statements’ probative value. 31
We affirm the district court’s admission of the statements abou t struggles with child pornography and homosexuality.

31 We note the district court offe red a limiting instruction on t his evidence, which defense counsel r ejected. ROA, Vol. 12 at 725-26 (TT 111-12). The instruction likely would have low ered the prejudicial effect of the evidence, and Mr. Durham should not now bene fit from declining it.75 D. Issue Four: Prosecutorial Misconduct Mr. Durham contends that the district court erred when it denie d the part of his Rule 33 motion for a new trial w hich alleged that the Governmen t made improper propensity statement s about his struggle with homosexuality. A plt. Br. at 34-39. The statements occurred during the G overnment’s cross-examination o f Mr. Durham and its closing argument. Because Mr. Dur ham failed to contemporaneous ly object to the alleged improper statements on pr osecutorial 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 d eny a new trial for abuse of discretion, and will re verse the denial of a motion fo r a new trial only if the trial court made a clear error of judgm ent or exceeded the bounds of permissible choice in the circumstances.” United States v. Toro-Pelaez , 107 F.3d 819, 828 (10th Cir. 1997). But where the defendant “failed to c ontemporaneously object regardi ng the . . . reasons he asserts as justification for anew trial[,] . . . we . . . may only reach the issue if we find plain error.” Id. “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 , 667 F.3d 1098, 1103 (10th Cir. 2011) (quotations o mitted). “To show that an e rror affected his substantial rights, [the defenda nt] must establish a reasonable probability that, but for the76 error claimed, the result of the p roceeding would have been dif ferent.” United States v. Uscanga-Mora , 562 F.3d 1289, 129 5 (10th Cir. 2009) (quo tations omitted). “ When evaluating allegedly inappropria te remarks of counsel for plain error, we must view the remarks in the context of the entire trial.” Fleming , 667 F.3d at 1103 (quotations omitted).
2. Additional Factual Background As described in Issue Three above, the jury heard evidence that Mr. Durham had twice stated that he struggledwith homosexuality. We now prov ide additional factual background on the two alleged in stances in which the prosecutio n made improper propensity arguments relati ng to these statements.

a. The Government’s cross-examination of Mr. Durham During the cross-examination o f Mr. Durham, the prosecutor ques tioned him about his struggle with homosex uality. After replaying part of one of the Seagull Confession Videos, the prosecu tor 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 sustaine d the objection. Id. The prosecutor continued: “Mr. Durha m, you struggle with homosexua lity?” Id. Mr. Durham answered, “I did, yes,” aft er which his counsel objected , again because “[i]t’s repetitious.” Id. The Court again sustained the objection. Id. The prosecution resumed playing the Seagull Confession Vi deo, and defense counsel “obje ct[ed] to continually replaying it after Your Honor has ruled.” Id. The court sustained the objection, remarking that “[i]t has been played before.” Id. at 2000 (TT 1386).77 b. The Government’s closing argument During rebuttal closing argument , the prosecutor twice referredto Mr. Durham’s “life-long struggle with touchi ng children and homosexuality.” Id. at 2087 (TT 1473), 2096 (TT 1482). First, the prosecutor argued: There is always a first victim t o a crime, a first time when yo u go to Upendo, long before you r 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.
Id. at 2087 (TT 1473). Second, the prosecutor argued: [Mr. Durham] insiste d on going to Kenya weeks before anyone else. He insisted on liv ing 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 like lihood that he would get what he always wanted, and that w as to be with children.
Id. at 2096-97 (TT 1482-83). Mr. Durham’s counsel did not object to either of these stateme nts. See ROA, Vol. 12 at 2087-2103 (TT 1473-89).
3. Additional Procedural Background After the jury rendered its ver dict, Mr. Durham filed a motion for new trial on various grounds. One ground was that the prosecution had “impl ied . . . that [his] struggles with homosexuality make it more likely that [he] sexu ally assaulted and molested children.” ROA, Vol. 3 at 321.78 The district court denied the motion. In doing so, it did not separately address Mr. Durham’s claim that the prosecut ion had improperly suggested he had a propensity to commit the charged conduct. In stead, within its discussion of the admissibility of Mr. Durham’s statements about stru ggling with homosexuality, the co urt stated that “[t]he United States never argued that Defendant engaged in sexual act ivity with the children because he is homosexual, rathe r the prosecution noted in closi ng argument that when confronted, he proffered an excuse.” Id. at 785. 32
4. Legal Background “We analyze whether a statement constitutes prosecutorial misco nduct using a two-step process.” Fleming , 667 F.3d at 1103. “First, w e determine whether the prosecutor’s statements were improper.” Id. (quotations omitte d). “Second, we determine whether the prosecuto r’s improper statements were harmless beyond a reasonable doubt.” Id. (quotations omitted). “The Government generally bears t he burden of proving that an i mproper statement is harmless beyo nd a reasonable doubt.” Id. But “when, as here, a defendant fails to object to a prosecutor’s statement, reversal is warran ted only when: (1) the prosecutor’s statement is plainl y improper and (2) the defendan t demonstrates that the improper statement affected his or her substantial rights.” Id.

32 Mr. Durham does not contend that the district court did not ru le 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 t hat any error did not affect Mr . Durham’s substantial rights under our plain error sta ndard of review, as we explain below.79 5. Analysis Mr. Durham contends tha t “[t]he Government committed prosecutor ial misconduct by arguing Mr. Durham was more likely to commit the alleged crimes because he struggled with homosexuality and Mr. Durham was irre parably prejudiced.” Aplt. Br. at 39. Because, as we e xplain below, Mr. Durham fail ed to preserve either of the alleged instances of prosecu torial misconduct for appellate review, we review for plain error only. See Toro-Pelaez , 107 F.3d at 828. We begin an d end our analysis at the third step of the plain error t est—whether the error affected M r. Durham’s substantial rights. We conclude that Mr. Dur ham has failed to satisfy the substantial rights step, and we therefore affirm the district court’s denial of his motion f or a new trial.

a. Preservation Mr. Durham failed to preserve e ither of the alleged instances o f prosecutorial misconduct for appellate review by contemporaneously objecting on prosecutorial misconduct grounds. 33 We address each alleged instan ce of prosecutorial misconduct separately. i. Alleged misconduct during cro ss-examination of Mr. Durham Although defense counsel contempor aneously objected to the pros ecution’s crossexamination of Mr. Durham about struggling with homosexuality, defense counsel

33 Mr. Durham “submits he properly preserved the [issue of prosec utorial misconduct] and that the standard o f review is abuse of discret ion” because he “raised the issue . . . in his motion for new trial.” Aplt. Br . at 34. Our precedent forecloses this argument. See Toro-Pelaez , 107 F.3d at 828 (when the defendant “failed to contemporaneously obj ect regarding the . . . reasons he asserts as justification for a new trial[ ,] . . . we . . . may only reach the issue if we find plain error”).80 objected on the ground that the questioning was repetitious—not on the ground of prosecutorial misconduct for mak ing a propensity argument. See ROA, Vol. 12 at 1999 (TT 1385). The district court th erefore “did not have notice t hat defense counsel believed the prosecutor’s ques tioning of [Mr. D urham] to be a n inappropr iate attempt at [making a propensity argument] or to rise t o the level of prosecutorial m isconduct.” United States v. Baldridge , 559 F.3d 1126, 11 35 (10th Cir. 2009). 34 ii. Alleged misconduct during closing argument The record shows—and Mr. Durham concedes—that defense counsel d id not contemporaneously object to the prosecution’s references to his struggle with homosexuality in its c losing argument. See ROA, Vol. 12 at 2087-2103 (TT 1473-89); Aplt. Br. at 34 (“Defendant . . . did not contemporaneously obj ect during closing argument.”). b. Plain error—substantial rights Because Mr. Durham failed to prese rve either of the alleged ins tances of prosecutorial misconduct for appe llate review, we review for pl ain error only. We find no plain error because Mr. Durham ha s failed to show that the a lleged misconduct affected his substantial rights . We address each alleged insta nce of prosecutorial misconduct separately.

34 Even if we were to conclude t hat the objections on the ground of repetitiousness sufficed to put t he district court on notice th at defense counsel believed the Government was maki ng a propensity argument, Mr. D urham would still not be entitled to relief. Our reasons, discussed below, for d etermining that any error in the prosecution’s questioning did not affect Mr. Durham’s su bstantial rights would also persuade us that any error was harmless beyond a reasonabl e doubt.81 i. Alleged misconduct during cro ss-examination of Mr. Durham Even assuming error in the prosec utor’s references to homosexua lity during crossexamination of Mr. Durham, anyerror did not affect Mr. Durham’ s substantial rights. “To show that an error affected his substantial rights, Mr. [Du rham] must establish a reasonable probability that, but for the error claimed, the res ult of the proceeding would have been different.” Uscanga-Mora , 562 F.3d at 1295 (q uotations omitted). As discussed above, defense coun sel objected to the prosecutor’ s questioning on Mr. Durham’s struggle with homos exuality on the ground of repet itiousness. The district court sustained defense counse l’s objections. Moreover, the co urt’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 prosecut or’s questions, suggests that the jury’s verdict was “bas ed on reason, rather than emoti on.” United States v.
Archuleta , 737 F.3d 1287, 1296 (10th Ci rcuit 2013). Under these circums tances, Mr. Durham has not shown a reasona ble probability that, but for the prosecutor’s questions, the jury would h ave rendered a different verdict. See United States v. Lane , 883 F.2d 1484, 1498 (10th Cir. 1989) (“As ageneral rule, we presume tha t juries follow [limiting] instructions.”). ii. Alleged misconduct during closing argument Even assuming error in the prosec utor’s references to homosexua lity during closing argument, the error did n ot affect Mr. Durham’s substan tial rights. Mr. Durham contends otherwise, citing United States v. Schene , 543 F.3d 627 (10th Cir. 2008). Aplt.82 Reply Br. at 14. 35 In Schene , this court said that a prosec utor’s question about whether the defendant had visited “webs ites with homosexual themes” was “arguably improper.” 543 F.3d at 641-42. Mr. Durham’s argument fails becau se it does not consider the pr osecution’s remarks “in the context of the entire trial.” Fleming , 667 F.3d at 1103 (quotations omitted). Despite acknowledging the potentially prejudicial im pact of the prosecutor’s conduct, we held in Schene that, “even assuming, arguendo , that [the defendant] preserved this argument for app eal . . . the district court did not abuse its discretion in failing to grant a mistrial base d on the prosecutorial miscondu ct.” 543 F.3d at 642. We reasoned that, “[g]iven the evid ence against [the defendant], . . . the alleged prosecutorial misconduct was not flagrant enough to influence the jury to con vict on grounds other than the evidence presented.” Id. (quotations omitted). Even more so here un der plain error review, when “it is the def endant rather than the Government who bears the bur den of persuasion with respect to prejudice,” Fleming , 667 F.3d at 1103 (quotations om itted), relief is not warranted based on the prosecution’s closing argument. As summarized a bove, the Government presente d ample independent evidence to show that Mr. Durham committed the o ffenses on whic h the jury convicted. For example, the trial evidence supporting the jury’s verdict i ncluded victim testimony and detailed written confession s by Mr. Durham. ROA, Vol. 9 at8, 15, 16; ROA, Vol.

35 Mr. Durham’s argument assumes th at the jury harbored biases ab out sexual orientation. He has not provide d any evidence that it did, but to the extent his assumption holds, we nevertheless conclude Mr. Durham has not s hown that any error affected his s ubstantial rights, as we explain below.83 12 at 658, 1406, 1440, 1458. And again, the jury’s acquittal o f Mr. Durham on the remaining counts further support s the harmlessness of any impro per prosecutorial argument. See Archuleta , 737 F.3d at 1296. So even if we could r ead the prosecutor’s closing argument as improperly suggesting that Mr. Durham’s str uggle 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 th e alleged improper prosecutoria l statements, individually or taken together, a ffected his substantial rights under the plain error test. We therefore affirm the distric t 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 admissi on of Ms. Menja’s cellphone-re corded videos of his confession as improperl y 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 co ntends the videos were admitt ed in error due to Mr. Durham’s “specific showing o f irregularities” and inability to inspect the cellphone itself. [ Id. at 46.] Because Ms. Menja’s tes timony laid a sufficient founda tion for authentication, we find that the district court did not abuse i ts discretion when it admitted her cellphon e videos and affirm.84 1. Standard of Review Whether the Government laid a sufficient foundation for the vid eos to be admitted at trial is reviewed for abuse of discretion. United States v. Green , 175 F.3d 822, 829 (10th Cir. 1999). Abuse of discretion is defined as “an arbitr ary, capricious, whimsical, or manifestly unreasonable judgment.” United States v. Cardenas , 864 F.2d 1528, 1530 (10th Cir. 1989).
2. Additional Background On June 17, 2014, Ms. Menja reco rded part of her conversation with Mr. Durham at the Seagull restaurant on he r cellphone. The Government’s t rial exhibits included the five Seagull Confession Videos re corded 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 t urned over her cellphone to the Government so that investigators could copy the d ata. ROA, Vol. 12 at 433. The G overnment made copies and returned the phone to her. Id.

a. Pre-Trial Before trial, Mr. Durham moved in limine to inspect the cellph one used to record his statements and to have an e xpedited chain of custody hearin g. 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 sec onds (preliminary conversation); Gov’t Exh. 4, 12 minutes 10 seconds (Mr. Dur ham describing his interaction s with various children); Gov’t Exh. 5, 29 sec onds (Mr. Durham calling his mot her 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 M r. Durham writing out his interactions with various children.)85 Government explained that it w ould be providing Mr. Durham a “m irror image” of Ms. Menja’s phone, but not the ce llphone itself. ROA, Vol. 12 at 4 33; ROA, Vol. 2 at 543. The Government described t he 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 fore nsic examiner would show that those LBLs still exist. More or less, it’s like a fingerprint. In this case, the onl y way to get to that is to look at the actual phone. So based upon the defendant’s concerns, we asked to receiv e the phone and we made a mirror image. That way, we can r eturn the phone and do a forensic review on the comput er, it would be just like we had her phone. ROA, Vol. 12 at 427-28. The Government explained that t he mirror image would allow defe nse counsel to analyze whether the videos had be en altered: “[a forensic exam iner] would be able to look at the LBLs to make sure th ere’s no outstanding LBL missin g video.” Id. at 429. Defense counsel responded that t he mirror image would not be su fficient to inspect for alterations. Id. at 430. The court ordered the Government to turn over the mirror image to defense counsel. It denied without prej udice Mr. Durham’s “Motion to C ompel Production, Inspection and Imaging of Cell Ph one and Expedite Chain of Cust ody Hearing,” allowing Mr. Durham to renew the motion i f necessary following his couns el’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 Cell86 Phone.” ROA, Vol. 2 at 533. 37 In support of the motion , Mr. Farrow submitted an affidavit arguing that the mirro r image “cannot be considered atrue representation of the evidence at the time the videos w ere recorded” and that “[i]t a ppears the Government is attempting to piecemeal the cell phone evidence a nd only provid e Defense Counsel with limited information regarding the videos.” Id. at 543. More specif ically, he opined: [A] type of data scrubbing had occurred on some of the video files. Data scrubbing is a tec hnique used to erase metadata that is related to a file. Thi s technique has to be done by a person with knowledge and is n ot something that can occur unintentionally. Thus, this evid ence has been compromised as it was intentionally tampered with to the point the video’s metadata was deleted. Id. at 544. Before the hearing on the rene wed motion to compel, the court arranged for a meeting between the parties’ for ensic experts. ROA, Vol. 12 at 592-596. At that meeting, Mr. Farrow requested a “ logical image” from the Govern ment, which he later received and analyzed . ROA, Vol. 12 at 595. 38 At the pretrial hearing on the renewed motion to compel, Mr. Du rham’s counsel argued, “[W]e stated last time we were here in court that the m etadata had been scrubbed. . . . After looking at the logical image, which is just a porti on of the cell phone, [Mr. Farrow] found that the videos had, in fact, been split up. The y had been cut. He can tell that from the file names.” ROA, V ol. 12 at 595. The court con cluded Mr. Durham could

37 Mr. Durham also renewed his mo tion for an “expedited chain of custody hearing.” ROA, Vol. 2 at 533 (capitalization altered).

38 Defense counsel described a “l ogical image” as “a smaller port ion of a forensic image.” ROA, Vol. 12 at 595.87 call Mr. Farrow as a witness to t estify that the videos had bee n altered, but it declined to exclude the videos entirely. R OA, Vol. 12 at 596. The court a lso noted that the Government “will have to lay the proper foundation for the intr oduction of these videos, and, obviously, cross-examina tion could be fruitful.” ROA, Vol . 12 at 596. b. Trial At trial, the court overruled Mr. Durham’s cont emporaneous obj ection to admission of the Seagull Confe ssion Videos. ROA , Vol. 12 at 85 7 (TT 243). The Government first showedone of the videos du ring its direct exa mination of Ms. Menja, who had recorded the video on her cellphone. Before showing th e video, the Government asked Ms. Menja if she had reviewed the cellphone vi deos on both her phone and on a computer. She resp onded that she had and that t he videos were “identical.” ROA, Vol. 12 at 8 56-57 (TT 242-43 ). The Governme nt then moved to admit the cellphone videos. Id. at 857 (TT 243). Before the court ruled, it asked Ms. Menja whether the videos “accurate ly reflect[ed] [her] memory o f what occurred on that date.” Id. at 857 (TT 243). She said that t hey did, and the court admitte d the videos.
Id. During the direct examination of Ms. Menja, the Government aske d her several times whether she manipulated, cha nged, or edited the footage i n any way. ROA, Vol. 12 at 859, 861, 865 (TT 245, 247, 251). Each time, she respond ed that she had not. Id. The defense neither cross-examin ed Ms. Menja about alteration o f the videos nor called88 Mr. Farrow or any other forensic e xpert to testify about the Se agull videos. 39 ROA, Vol. 12, at 893-961 (TT 279-347).
3. Legal Background To authenticate evidence for adm ission 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 , 977 F.2d 1360, 1367 ( 10th Cir. 1992) (quotations omitted); see also United States v. McIntyre , 836 F.2d 467, 470 (10th Cir. 1987) (audiotape of statement admissibl e in trial where witness who h eard 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 conta mination, the trial court requi res a more stringent foundation entailing a chain o f custody of the item with sufficient completeness to render it improbable that the original item has eith er been exchanged with another or been contaminated or tampered with.” Johnson , 977 F.2d at 1367 (quot ations omitted). A videotape that has been altere d in some form may still be “read ily identifiable” and “not susceptible to alteration by tam pering” for purposes of authent ication. See, e.g., United
States v. Mills , 194 F.3d 1108, 1112 (10th Cir. 1 999) (allowing videotape into evidence,

39 On cross-examination, Mr. Durha m’s counsel asked Ms. Menja abo ut the context of the videos and why so me were started or stopped when they were, but not about alterations. ROA, Vol. 12, at 893-961.89 finding it “readily identifiable” and “sufficient[ly] complete[ ] to render it improbable [that it had] . . . been contaminated or tampered with,” despit e a deletion that did “not affect the accuracy of the remain ing images”). The trial court “need not rule out every possibility that the ev idence underwent alteration; it need onl y find that the reasonable probability is that the evidence has not been altered in any ma terial aspect.” Cardenas , 864 F.2d at 1532.
4. Analysis The district court did not abus e its discretion in determining there was a sufficient foundation supporting the cellphone videos’ authenticity. Ms. Menja testified that she had reviewed the videos and th at they were a fair and accurate depiction of what she saw. ROA, Vol. 12 at 857 ( TT 243). That testimo ny gave the court su fficient basis to determine the videos were authentic. See Mills , 194 F.3d at 1112 (fi nding no abuse of discretion for a video’s admissi on when the person responsible for creating the video confirmed that it accurately depic ted what it claimed to depict ); see also United States v. Cejas , 761 F.3d 717, 723 (7th Cir. 2 014) (finding no error in admitt ing video that the witness testified was a “fair a nd accurate depiction” of what h e saw). Further supporting the video’s authenticity was Ms . Menja’s testimony that she had not edited or altered the videos in any way. R OA, Vol. 12 at 859, 861 , 865 (TT 245, 247, 251). 40

40 No chain of custody analysis was necessary given that Ms. Menj a’s testimony provided a foundation fo r the video, which was “uniqu e, readily identifiable and relatively resistant to change.” Cardenas , 864 F.2d at 1531. Mr. Durham contends that the videos were “easily subject to manipul ation” but did not choose to present evidence on th is point at trial. Aplt. Reply Br. at 16. He otherwise does not argue in his briefing w hy the video was not “readily i dentifiable.”90 To the extent Mr. Durham believed the videos did not depict wha t they claimed to depict, the court ga ve him an opportunity to cross-e xamine Ms. Menja on alterations to the videos and to call his forensic expert to te stify on them. He chose to do neither. See Johnson , 977 F.2d at 1368 (defense c ounsel’s failure to cross on an authentication issue cuts aga inst an argument to exclude evi dence). The district court did not abuse its discreti on when it admitted the cellpho ne videos as sufficiently authenticated.
F. Issue Six: Victims’ Medical Records Mr. Durham challenges the distri ct court’s admission of the ful l set of the victims’ medical records, rather than just a portion of those records, o n four grounds: (1) the court admitted all of the reco rds when he had requested admission of only part of them (the “P3” records), Aplt. Br. at 47; (2) t he additional admitted mater ial lacked authentication, Aplt. Br. at 47; (3) the full record s included inadmissible “do uble 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 c ontained graphic representation s 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 c linician notes contain informat ion relayed by the patient or third parties. This constitutes inadmissible double hearsay. See United States v. Gwathney , 465 F.3d 1133, 1141 (10th Cir . 2006).” Aplt. Br. at 47-48. In his reply brief, he ma intains that a particu lar victim’s identi fication of Mr. Durham during her examination was “imp ermissible double hearsay” but c ontests no other specific information in the victi ms’ medical records. Aplt. Re ply Br. at 19. We therefore consider only the abus er identification hearsay argum ent because Mr. Durham fails to identify any othe r information in the medical r ecords he wishes to challenge on hearsay grounds.91 defiled by a man named Matth ew.” Aplt. Br. at 47-48. Because Mr. Durham invited any error, and because he cannot show error, his argument fails und er plain error review. We affirm the district court’s admi ssion of the full medical recor ds.
1. Standard of Review Mr. Durham failed to object to ad mission of the records at tri al, so the plain-error standard applies. He must acco rdingly show: “(1) error, (2) t hat is plain, which (3) affects the defendant’s substa ntial rights, and which (4) serio usly affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Baldridge , 559 F.3d 1126, 1135 (10th Cir. 2009 ). Mr. Durham’s challenge fails at the first element— whether the district court erre d. We review evidentiary ruling s for error under an abuse of discretion standard. Willis , 826 F.3d at 1270.
2. Additional Background The medical records that the Gov ernment provided to Mr. Durham consisted of: (1) a Post Rape Care (“PRC”) fo rm; (2) lab requests; (3) clinic ian notes; and (4) a Medical Examination Report, als o 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 ph ysician, Dr. Abdukladir, then r eviewed the PRC forms and prepared P-3 forms based on that review. ROA, Vol. 12 at 1 182-85 (TT 568-71). During cross-examination of Dr. A bdulkadir, defense counsel mov ed for admission of a P-3 Form only. See ROA, Vol. 12 at 1202 (moving to admit pages “1 through 4” of Government’s Exhib it 44); ROA, Vol. 10a at 28 (P- 3 form). The Government responded by moving to enter the entire exhibit, whi ch included all four92 components described above. ROA, Vol. 12 at 1202 (TT 588). De fense counsel then stated: “I would ask that they mo ve to[sic] Exhibits – enter Ex hibit 45, 46, 47, 48, and 49 as well.” ROA, Vol. 12 at 1202 (TT 588). The Court admitted a ll of the records. Id. Defense counsel did not object. Id

. 3. Legal Background

a. Invited error It is “fundamental that a defenda nt cannot complain of error wh ich he invited upon himself.” United States v. Chavez , 229 F.3d 946, 952 (10th Cir. 2000) (quotations omitted). b. Authentication To authenticate evidence for adm ission 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 whi le testifying at the current trial or hearing” and “a pa rty offers in evidence to pr ove the truth of the matter asserted in the statement.” F ed. R. Evid. 801(c). It is inadm issible unless an exception applies. Fed. R. Evid. 802. One such exception is for busines s records—“records of a regularly conducted activity.” Fed. R. Evid. 8 03(6). “[H]ospit al records . . . fit conceptually within the long-esta blished exception for business records.” Manocchio v.
Moran , 919 F.2d 770, 776 (1st Cir. 1990).93 Another exception to the hearsa y rule is for a “statement that : (A) is made for— and is reasonably pertinent to—m edical 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 st atements made by a child to a p hysician which identify the sexual abuser as a member of the family or household are ‘reaso nably pertinent to diagnosis or treatment’ and may th erefore be admissible [under Rule 803(4)].” United
States v. Joe , 8 F.3d 1488, 1494 (10th Cir. 1 993). Accepting these holdings as valid, we extended their application to cove r abuser identifications duri ng medical examinations made by adult domestic sexual assault victims. Id. at 1495. d. Unfair prejudice Under Federal Rule of Evidence 403, “[t]he court may exclude r elevant evidence if its probative value is substa ntially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. The graphic nature of evidence does not alo ne make it inadmissible. See United States v. Naranjo , 710 F.2d 1465, 1468-69 (10th Cir. 1983) (allowing photograph of victim shot in the face because it showed the “pa rticulars of the crime scene” and “was not unduly no r designedly inflammatory”).

4. Analysis Mr. Durham’s challenge to the c ourt’s admission of the victims’ full medical records fails. Any error was invite d, and he cannot show error on any ground he raises on appeal. It follows that he cannot show plain error. Baldridge , 559 F.3d at 1135.94 At trial, following Mr. Durham’s request to admit a P-3 Form, which was part of the medical records in Governmen t Exhibit 44, the Government re quested the admission of the entire medical record—inc luding the PRC form, lab reques ts, clinician notes, and the Medical Examination Report. R OA, 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. 1 2 at 1202 (TT 588). Those exhi bits included entire medical records, not just P-3 fo rms. Mr. Durham thus invited a ny potential error from admitting the records and cannot establish a plain error warran ting reversal. See Chavez , 229 F.3d at 952 (finding no pla in error when the appellant invi ted the complained-of error). Although invited error alo ne is sufficient to reject M r. Durham’s challenge on appeal to admission of this evid ence, we also determine there w as no error based on any of the four grounds M r. Durham argues. First, Mr. Durham argues his ini tial request to admit only the P-3 form showed “counsel’s intent was to admit only a limited portion of the me dical 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 record s were created, reviewed the PRC s when they were filled out to make sure they had been p roperly completed, and reviewedthe records before testifying. Id.95 Third, there was no hearsay e rror. Mr. Durham makes no argumen t 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 hearsa y is one victim’s identificati on of “Matthew” during her examination. That statement, identifying a member of the c hild’s household as the abuser, was admissible under Joe . 8 F.3d at 1494-95. 42 Fourth, the court did not abuse its discretion under Fed. R. Ev id. 403. Mr. Durham does not question the prob ativeness of the medical recor ds. Mr. Durham characterizes the records as inc luding “graphic representations about where the child was touched and the purported gen ital injury,” Aplt. Br. at 47. We have reviewed the evidence and conclude the distric t court’s balancing of the pro bative value and prejudicial effect was reasonable. See Naranjo , 710 F.2d at 1468-69 (graphic image admissible if highly probative and not design edly inflammatory). The records were highly probative of the victims’ injuries. The e vidence was collected as part o f a standardized medical examination process and was not “designedly inflammatory.” Id. at 1469.

42 Mr. Durham cites United States v. Gwathney , 465 F.3d 1133, 1141 (10th Cir. 2006), to support his “double hearsay” argument. Aplt. Br . at 47-48. In Gwathney , we said that “[a]ny informati on provided by another person, i f an outsider to the business preparing the record, must itsel f fall within a hearsay exception to be admissible.” 465 F.3d at 1141. H ere, the statement made by th e “outsider”—the victim identifying the abuser—i s admissible under the hearsay e xception recognized in Federal Rule of Evidence 803(4).96 Because Mr. Durham invited error a nd has not otherwise shown th e 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-mont h sentence as substantively u nreasonable. 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 abuse d its discretion in weighing the sentencing factors set fo rth in 18 U.S.C. § 3553(a).
1. Standard of Review We “review the substantive reas onableness of a sentence for abu se of discretion.” United States v. Chavez , 723 F.3d 1226, 1233 (10th Cir. 2013); see also Gall v. United
States , 552 U.S. 38, 51 (2007) (“[T]he appellate court should . . . c onsider the substantive reasonableness of the sentence im posed under an abuse-of-discre tion standard.”). We find no abuse unless the senten ce “is arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. Munoz–Nava , 524 F.3d 1137, 1 146 (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 fai rly support; rather than pick

43 Mr. Durham raises a new argumen t in reply that, to the extent his counsel invited error, his counsel was i neffective. 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. , 433 F.3d 772, 783 (10th Cir. 2006) (declining to consider arguments not raised in opening brief). It would be more appro priate to raise this argument through a motion under 28 U.S.C. § 2255. See United States v. Galloway , 56 F.3d 1239, 1242 (10th Cir. 199 5) (en banc) (“The rule in thi s circuit . . . is that claims of constitutionally ineffec tive counsel should be brough t on collateral review, in the first petition filed under 28 U.S.C. § 2255.”).97 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 choi ces.” United States v. McComb , 519 F.3d 1049, 10 53 (10th Cir. 2007).
2. Additional Factual Background The final PSR calculated a Guide lines sentence of 1,440 months in prison based on Mr. Durham’s total offense leve l and criminal history catego ry. ROA, Vol. 7 at 142. 44 The PSR identified only one fact or potentially warranting a dow nward departure—that Mr. Durham was 19 years old when he committed the offenses of c onviction. Id. at 145- 46. The district court adopted the PSR’s calculated Guidelines sentence of 1,440 months.
Id. at 475. 45
The court sentenced Mr. Durham to 480 months in prison, a sente nce it characterized as a downward vari ance. ROA, Vol. 3 at 844; ROA, Vol. 7 at 477; ROA,

44 The PSR calculated Mr. Durham’s total offense level to be 49 a nd his criminal history category to be I. ROA, Vol. 7 at 135, 136. U nder 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 Guideli nes recommend a sentence of “li fe” for a defendant with an offense level of 43, reg ardless of the c riminal history category. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table). T he probation officer who pre pared Mr. Durham’s PSR, after consulting with the Un ited States Sentencing Commiss ion, arrived at a Guidelines sentence of 1,440 mo nths to be consistent with the c umulative statutory maximum sentence for the four c ounts of conviction. ROA, Vol. 7 at 142 n.3. Under these circumstances, the PSR calcu lated a recommended Guideline s sentence rather than a sentence range.

45 Based on its finding that Mr. D urham had committed perjury at trial, the district court applied a two-le vel 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 ex ceeded the maxim um offense leve l of 43, the twolevel enhancement had no effect on the recommended Guidelines s entence.98 Vol. 13 at 158. 46 The court offered the following explanation of its decision a t Mr. Durham’s sentencing hearing: The sentence the Court has selected, I’m satisfied, is sufficient but not greater tha n necessary, when considering the sentencing factors set fo rth in 18 U.S. Code 3553. 18 U.S. Code 3553 requires t he Court to consider these factors: The nature and circumstance o f 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 defen dant, the fact he is a first-tim e offender, his potential for the fu ture, his charitable efforts prior to this occasion, that this at least appears to be aberra nt behavior, the defendant h as asked for mercy from the Court[,] . . . his success in sch ool, and all the other matters raised in the de fendant’s brief. The next factor the Court must consider are [sic] the need for the sentence imposed. This includ es to reflect the seriousness of the offense, to promote resp ect 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 trai ning, medical care, or other correctional treatment in the most effective manner. The kind of sentence available is number three. Finally, the kind of sentences a nd the sentencing range, which has been established. And the s entencing guidelines call for a sentence of life in prison.

46 The 480-month sentence consists of 360 months on each of the f our counts of conviction, running partially consecutively and partially co ncurrently to achieve the total sentence of 480 mont hs. ROA, Vol. 3 at 844; ROA, Vol . 13 at 158-59.99 Next, the need to avoid unwarranted sentence disparities among defendants with similar r ecords who have been found guilty of similar conduct. . . . I rea d all the cases cited by both the defendant and the gove rnment. And, actually, I didn’t find these particularly helpful . They went all over the lot, a nd 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 cas e of rape . . . I had one sentenc e five or six years ago . . . in which the defendant was convicted of raping his 11-yea r-old niece. He had a prior conviction for sexual molesta tion, and I imposed a sentence of 50 years’ incarceration. Finally is the need to provide restitution to any victims of th e offense. These were heinous crimes comm itted on the most vulnerable victims. These darling childre n, who had been abandoned and orphaned, looked to the def endant for love and support. Instead, one by one they were ra ped. 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 victim s, including the children the defendant molested, but the co unts 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 tryin g 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 consideri ng everything, there should be some light at the end of the tunnel.100 Hopefully, with appropriate tre atment and strict supervision after release, the defendant can live productively and safely i n society. ROA, Vol. 13 at 156-58.
3. Legal Background A substantive reasonableness se ntencing challenge asks us to ad dress “whether the length of the sentence is reasona ble given all the circumstance s of the case in light of the factors set forth in 18 U.S.C. § 3553(a).” United States v. Verdin-Garcia , 516 F.3d 884, 895 (10th Cir. 2008) (quotations omitted); see Gall , 552 U.S. at 51. 47

47 Courts must consider the followi ng factors in imposing a sente nce: (1) the nature and circumstances o f 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, m edical 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 sentenc e disparities among defendants with similar reco rds who have been found guilty of similar conduct; and (7) the need to provide restitu tion to any victims of the offense. 18 U.S.C. § 3553(a).101 When a defendant is sentenced within a properly calculated Guid elines range, the sentence “is entitled to a rebutta ble presumption of reasonable ness.” United States v.
Kristl , 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam). In additi on, we have endorsed “the logical and unremarkable proposition th at ‘a below-guideli ne sentence is also presumptively reasonable against an attack by a defendant claim ing that the sentence is too high.’” United States v. Balbin-Mesa , 643 F.3d 783, 788 (10th Cir. 2011) (quoting
United States v. Liddell , 543 F.3d 877, 885 (7th Cir. 2008)).
4. Analysis Mr. Durham challenges his 480-mont h sentence as substantively u nreasonable. Aplt. Br. at 58-59. Because Mr. D urham “does not challenge the district court’s procedure in calculating” the Gui delines 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 li ght of the § 3553(a) factors. First, Mr. Durham appears to argue that he should have been sen tenced to no more than 470 months in prison, citing an online publication by the United States Sentencing Commission (the “Commission”) for t he proposition that “a life sentence is the equivalent of 470 months.” Ap lt. Br. at 58. This argument imp licates procedural reasonableness rather than substa ntive reasonableness because i t relates to the district

48 Mr. Durham’s sentence of 480 mont hs is less than the recommend ed Guidelines sentence of 1,440 mont hs, as determined by the distr ict court. Whether we characterize Mr. Durham’s se ntence as within or below the Gu idelines range, it is entitled to a presumpti on of reasonableness. See Kristl , 437 F.3d at 1054; BalbinMesa , 643 F.3d at 788.102 court’s calculation of the Gui delines range rather than its wei ghing of the § 3553(a) factors. See Gall , 552 U.S. at 51 (“failing to cal culate (or improperly calculat ing) the Guidelines range” is a procedur al error). “To the extent [Mr. Durham] seeks to challenge the procedural reasonableness of the district court’s sentencin g calculation, . . . any such arguments have been waived by [h is] failure either to raise th[ is] specific objection[] below or to make an argument for plain error review on appeal.” United States v.
DeRusse , 859 F.3d 1232, 1236 n.1 (10th Cir. 2017). 49 Second, Mr. Durham contends that his sentence is unreasonably h igh in light of the need to avoid unwa rranted disparities. See Aplt. Br. at 58-59. This argument also lacks merit. At Mr. Durham’s se ntencing hearing, the district court stated that it had “read all the cases cited by both the defendant and the governm ent [pertaining to the disparities factor]” but “didn’t find [them] particularly helpf ul” because “circumstances differed from one case to anothe r.” ROA, Vol. 13 at 157. On a ppeal, Mr. Durham has not challenged the court’s deter mination that the other cases h e presented involved dissimilarly situated offenders. See United States v. Franklin , 785 F.3d 1365, 1372 (10th Cir. 2015) (“No two cases are ide ntical, and comparison of an i ndividual sentence with a few counsel-selected cases invol ving other defendants sentenced by other judges is

49 In any event, we are not persuad ed that the Commission has “st ate[d] that a life sentence is the equivalent of 470 months.” Aplt. Br. at 5 8. Mr. Durham cites an online publication en titled the “Variable Codebook for Individu al Offenders.” Id. This publication defines the st andard codes the Commission appl ies to the sentencing data it gathers, including the code “470,” which denotes life s entences. 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. Cont rary to Mr. Durham’s assertion , the publication nowhere equates a li fe sentence with 470 months in prison.103 almost always useless.” (citati on and quotations omitted)). No r has he advanced any reason to question the court’s weighing of the disparities fact or. See United States v.
Barnes , 890 F.3d 910, 921 (10th Cir. 2018) (“Even if the disparities factor weighs in favor of a higher sentence, the d istrict court considered it al ongside other factors and the facts of this case and did not ab use its discretion in imposing the sentence[] it did.”).
* * * * Mr. Durham has failed to rebut th e presumption that the distric t court reasonably weighed the § 3553(a) factors o r to show that its sentencing de cision exceeds the bounds of permissible choice. We therefore affirm Mr. Durham’s 480-mo nth sentence.

H. Issue Eight: Cumulative Error Finally, Mr. Durham argues that t he errors he alleges, taken to gether, deprived him of a fair trial. Aplt. Br. at 59- 60. “To analyze cumulative e rror, we aggregate all the errors that we have found to be harmless and determine whether their cumulative effect on the outcome of the tri al mandates reversal.” United States v. Anaya , 727 F.3d 1043, 1060–61 (10th Cir. 2013) (quota tions omitted). In conducting o ur cumulative error analysis, we consider two of M r. Durham’s claims: (1) the Brady claim, 50 and (2) the

50 We “include[] [ Brady claims] in the cumulative-er ror calculus if they have been individually denied for insufficient prejudice.” Cargle v. Mullin , 317 F.3d 1196, 1207 (10th Cir. 2003). Her e, as discussed above, we held that no Brady violation occurred because the w ithheld evidence lacked materia lity, which speaks to prejudice. We therefore include the alleged Brady error in our cumulative error analysis.104 prosecutorial misconduct claim. 51 “When there are both preserved and unpreserved errors, cumulati ve-error analysis should proceed as fo llows: First, the preserved errors should be considered as a group under harmless-error review. If, cumulatively, they are not ha rmless, reversal is required.” Id. at 1061 (alterations a nd quotations omitted ). “The only potent ial preserved error is the [alleged Brady error]. Without other errors to aggregate, there can be no cumulative harm.” Id. We therefore proceed to the next step of our cumulative error analysis. “If the preserved errors are cum ulatively harmless, then the co urt should consider whether those preserved errors, w hen considered in conjunction with the unpreserved errors, are sufficient to overcom e the hurdles necessary to est ablish plain error.” Id. (quotations omitted). “That is, w e look to whether the combina tion of the [alleged Brady error] and the prosecutor’s state ments regarding [Mr. Durham’s struggle with homosexuality] affected Mr. [Durham]’s substantial rights or se riously affected the fairness, integrity, or public re putation of judicial proceedin gs.” Id. (alterations and 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 p rosecutorial misconduct claim, we “did not determine whether [the] alleged errors constituted actual error s but instead concluded that any potential errors did not merit reversal because they d id not affect the outcome of Mr. [Durham’s] case.” Anaya , 727 F.3d at 1061. “For the purposes of cumulative error analysis, we as sume without deciding that thes e alleged errors were errors and proceed accordingly.” Id.105 suffered minimal (if any) prejudice from the alleged Brady error because defense counsel—through Nurse Dunson—pre sented an effective rebuttal to Dr. Abdulkadir’s testimony based on information th at was substantially the same as the withheld evidence. Moreover, the evidence of Mr. Durham’s guilt was strong. For e xample, the trial evidence supporting the jury’s v erdict included victim testimon y and detailed written confessions by Mr. Durham. ROA, V ol. 9 at 8, 15, 16; ROA, Vol. 12 at 658, 1406, 1440, 1458. “Consequently, even if w e aggregate the[] alleged [ Brady and prosecutorial misconduct] errors, there is no cumulative error.” Anaya , 727 F.3d at 1061.
III. CONCLUSION We affirm Mr. Durham’s convi ctions and sentence.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 vo lunteer at a home for impoveris hed children. A jury acquitted him of traveling with the intent to engage in illicit sexual conduct. But he did engage in illicit sexual conduct a fter his travel to Kenya. Wh ile living at the home, he sexually assaulted a number of the boys and girls he was suppos ed 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 o f the offenses he committed after he arrived in Kenya. Defendant’s offenses were horri fic. The only question is whet her the United States could properly prosecute him. The government asserts th at Congress had the authority to criminalize Defenda nt’s behavior under the Constit ution’s Foreign Commerce Clause because such co nduct has a substantial effect o n foreign commerce. The panel majority agrees . I respectfully dissent. The only foreign “commerce” ide ntified by the government is co mmercial sex trafficking of children. I do no t dispute that such traffickin g is within the purview of the Foreign Commerce Clause. 1 But (1) there is no evidence i n this case of any commercial sexual activity, (2) I fail to see ho w conduct like that of Def endant has any impact on commercial sexual activity, and (3 ) no one has presented to thi s court any evidence of

1 Congress may also have author ity 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 o f Children, Child Prostitution an d Child Pornography. But the government has not relied on t he Treaty Clause in this case and the Optional Protocol addresses only commercial activity.2 such a connection. If Congress ha s authority under the Foreign Commerce Clause to criminalize Defendant ’s actions, it has power to criminalize an y conduct by Americans abroad. In my view, the Foreign Commerce Clause does not authorize Cong ress to prohibit noncommercial sexual as saults, no matter how heinous, committed by Americans abroad who fo rmed the intent to c ommit the acts after arriving abroad. The Interstate Commerce Clause would not permit Congress to prohibi t noncommercial sexual assaults within a State, e ven if the perpetrator had tra veled from another State, so long as the perpetrator did not fo rm the intent to commit the a ct before arriving in the State where the crime was perp etrated. The majority suggests t hat even if the Interstate Commerce Clause would not author ize the domestic statute, a sta tute governing conduct abroad would be valid u nder the Foreign Commerce Clause because it conveys more expansive power than does the In terstate Commerce Clause and th e Foreign Commerce Clause is not limited by concerns about state sovereignty. But these suggestions are not persuasive. The limits on cong ressional authority under the In terstate Commerce Clause are based on the Supreme Court’ s understanding of what it means to regulate commerce and the understanding that pr ovisions of a constitution creatin g a government of limited power should not be interpreted i n a way that would confer gene ral police power. Although federal power under the F oreign Commerce Clause exceed s that under the Interstate Commerce Clause in some respects—in particular, the Foreign Commerce Clause restricts state regulatio n of foreign commerce because o f the need for this country3 to speak with one vo ice in foreign affairs—this additional powe r is irrelevant in the present context. This dissent will travel much o f the same ground as the panel opinion. But, as might be expected, my descripti on of the terrain will be somewh at different.
I. The Charge Defendant was convicted under 1 8 U.S.C. § 2423(c), which is par t of the Prosecutorial Remedies and Othe r Tools to End the Exploitation of Children Today Act (PROTECT Act) enacted in 2003 . Section 105 of the Act, entitle d “Penalties Against Sex Tourism,” amende d § 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 u nder 18, production of child pornography, and sexual

2 Subsection (b) states: Travel with intent to engage i n illicit sexual conduct.--A pers on who travels in interstate commerce o r travels into the United State s, or a United States citizen or an alien adm itted for permanent residence in the United States who travels in foreign co mmerce, for the purpose of enga ging in any illicit sexual conduct with anothe r person shall be fined under this title or imprisoned not more than 30 years, or both. This subsection replaced a somew hat narrower version in the Vio lent Crime Control and Law Enforcement Ac t of 1994, Pub. L . No. 103-322, 1 08 Stat. 1796.

3 Subsection (c) states: Engaging in illicit sexual conduct in foreign places.--Any Unit ed States citizen or alien admitted for permanent residence who tr avels in foreign commerce or resides, eith er temporarily or permanently, in a foreign country, and engages in any illicit sexual conduct with another person shall be fined under thi s title or imprisoned not more than 30 years, or both.4 acts with persons under 18 that would violate c hapter 109A of t he 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 com mitting any commercial sex act, which is defined in 18 U.S.C. § 1591 as “an y 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 “tr avel[] in foreign commerce, for the purpose of eng aging in any illicit sexual con duct.” The question before the court is w hether the power to regulate commerce with foreign nations includes the po wer to punish Americans who trav eled to a foreign nation and then, in what was not a comme rcial sex act, decided to and did molest a child there. To answer the question requires a deep dive into the Foreign Co mmerce Clause.
II. The Commerce Clause The Constitution grants Congre ss the power “[t]o regulate Comme rce with foreign Nations, and among the several S tates, and with the Indian Trib es.” U.S. Const. art.1, § 8, cl. 3. Almost two centuri es ago Chief Justice Marshall no ted 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 s ection 2246) with a person und er 18 years of age that would be in violation of chapter 109A if the sexual ac t occurred in the special maritime and territori al jurisdiction of the United States; (2) any commercial sex act (as de fined in section 1591) with a person under 18 years of age; or (3) production of child pornogr aphy (as defined in section 256( 8)).5 three clauses within the Commerc e Clause—the Foreign Commerce C lause, the Interstate Commerce Clause, and the Indian C ommerce Clause—in an opinion c onstruing the meaning of the Interstate Comme rce Clause. He wrote, “It has b een truly said, that commerce, as the word is used i n the constitution, is a unit, e very part of which is indicated by the term.” Gibbons v. Ogden , 22 U.S. 1, 194 (1824). H aving previously stated the accepted meaning of commerce in the context of international trade, he concluded that “the word . . . mus t carry the same meaning thro ughout the sentence, and remain a unit, unless there be s ome plain intelligible cause wh ich alters it.” Id . I would infer that the same propos ition applies to the word regulate in the Clause. Thus, when interpreting the Foreig n Commerce Clause to resolve this case, one can look to Supreme Court doctrine under the other c ommerce clauses, while recogniz ing that there may well be “plain intelligible cause[s]” that require differentiation a mong the clauses. I begin with a brief explanation of why I think that doctrine under the Indian Commerce Clause teaches little about how to inte rpret the Foreign Commerce Clau se in the context of this case, and then I compare the For eign Commerce Clause and the In terstate Commerce Clause.
A. The Indian Commerce Clause The constitutional prov ision containing the Interstate Commerce Clause and the Foreign Commerce Clause also gr ants congressional power “[t]o r egulate 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 , 541 U.S. 193, 200 (2004) (interna l quotation marks omitted). That6 plenary power has been exercised so far as to impose federal cr iminal law within Indian territory. See, e.g. , 18 U.S.C. § 1153 (major crimes by Indians committed in Indian country). Is similar authority con veyed under the Foreign Comm erce Clause? After all, at first glance the Indian Comme rce Clause would appear to be a close relative of the Foreign Commerce Clause. The rela tionship between this nation and Indian tribes has much in common with the relations hip between this nation and fo reign nations. At the time of the Founding (and long aft er), the tribes were treated as sovereignties with which this country entered into treaties. On closer inspection, however, the comparison cannot be sustain ed. Although the Indian Commerce Clause was juxtap osed with the other two commer ce clauses, it was a late add-on at the cons titutional convention, see Albert S. Abel, The Commerce Clause in
the Constitutional Convention and in Contemporary Comment , 25 Minn. L. Rev. 432, 467 (1941) (Abel) (the clauses g ranting the other two commerce powers “had been published by the committee of d etail two weeks . . . before th e subject of the Indian trade was introduced on the floor of t he convention”); and, more impo rtantly, the Indiancommerce power was a special sub ject never discussed in relatio n to the other two
powers, see id. at 468 (“Whatever regulation of commerce might mean in connect ion with transactions with the Indian s, it was so distinct and spec ialized a subject [at the Convention] as to afford no basi s for argument as to the meanin g of the rest of the clause.”). Moreover, congressional power o ver Indian tribes does not deriv e just from the Commerce Clause. As additional s ources of “plenary and exclusi ve” power with respect7 to Indian tribes, which have be en described by the Court as “ dependent sovereign[s]” that are not States, Lara , 541 U.S. at 203 (emphasis adde d), the Supreme Court has identif ied the Treaty Clause, the Propert y Clause, and “preconstitutional powers necessarily inherent in any Federal Governme nt, namely, powers that this Co urt has described as ‘necessary concomitants of nationality,’” id. at 200–01. And it has pointed to the federal government’s assumption of “guar dian-ward” status with respect to Indian Tribes as a source for Congress’s “plenary power . . . to deal with the spe cial problems of Indians.”
Morton v. Mancari , 417 U.S. 535, 551 (1974). Given this unique status of Indian s in our constitutional system, I think th at one can learn very little a bout Foreign Commerce Clause power over Americans in fo reign nations (the situation p resented in this appeal) by examining congressional authority in Indian country.
B. The Interstate Commerce Clause The component of the C ommerce Clause that has bred the most Sup reme Court doctrine is the Interstate Co mmerce Clause. Although, as Chief Justice Marshall suggested, special considerati ons pertinent to each clause prec lude mechanical application to one clause of doctrine regarding another, I firs t consider interstatecommerce doctrine and then addre ss what, if any, adjustments ar e needed. I begin with propo sitions regarding interstate commerce that ar e derived from notions of international commer ce. Chief Justice Marshall’s de scription of commerce was adopted by Chief Justice Rehnquist in United States v. Lopez , 514 U.S. 549 (1995): “‘Commerce, undoubtedly, is traffi c, but it is something more: it is intercourse. It describes the commercial interc ourse between nations, and parts of nations, in all its8 branches, and is regulated by pres cribing rules for carrying on that intercourse,’” id . at 553 (quoting Gibbons , 22 U.S. at 189–90). But “limita tions on the commerce power a re inherent in the very language of the Commerce Clause.” Id. Again quoting Chief Justice Marshall: It is not intended to say that these words comprehend that commerce, which is completely int ernal, which is carried on between man and man in a State, or between different parts of the same Stat e, and which does not extend to or affect othe r States. Such a power would be inconvenient, and is certainly unnecessary. . . . The enumeration presupposes so mething not enumerated; and that something, if I regard the l anguage, or the subject of the sentence, must be the exclusively internal commerce of a State.
Id . (quoting Gibbons , 22 U.S. at 194–95). In recogn ition of these limitations, the Supreme Court has identified “t hree categories of regulations p ermitted by the Interstate Commerce Clause: (1) regulation o f “‘use of the channels of in terstate commerce’”; (2) regulation of “‘instrumentalities of interstate commerce, or pe rsons or things in interstate commerce’”; and (3) regulation o f “‘activities that substantial ly affect interstate
commerce.’” People for Ethical Treatment of Prop. Owners v. United States Fish & Wildlife Serv. , 852 F.3d 990, 1000 (10th Cir. 2017) (quoting Lopez , 514 U.S. at 558–59). Under the first category Congress can bar a class of goods or p eople from the channels of commerce because they are deemed to be tainted by “ immoral [or] injurious
uses.” United States v. Patton , 451 F.3d 615, 6 21 (10th Cir. 2006). Thus, Congress can ban the interstate transportatio n of kidnapped persons or stole n goods, see Perez v. United States , 402 U.S. 146, 150 (1971); of women for the purpose of prostit ution, see Caminetti v. United States , 242 U.S. 470, 491–92 (1 917); of plural wives for the purpose9 of polygamy, see Cleveland v. United States , 329 U.S. 14, 18 (1946) ; of lottery tickets, see Champion v. Aims , 188 U.S. 321, 354–55 (1 903); or of goods produced by underpai d workers, see United States v. Darby , 312 U.S. 100, 112–14 (1941 ). These cases illustrate that this regulatory authority is not limited to legislation ta rgeting commercial activities. See Heart of Atlanta Motel, Inc. v. United States , 379 U.S. 241, 256 (1964). Under the second category Congress can regulate “the means of i nterstate commerce”—such as ships, railroa ds, airplanes, and the telegrap h; can regulate “intrastate activities that thr eaten these instrumentalities”; and can protect “the persons or things that the instrumentalities are moving.” Patton , 451 F.3d at 622. For example, Congress can ban the destructi on of aircraft or theft from inte rstate shipments. See Perez , 402 U.S. at 150. Under the third category Congre ss can regulate activities, even intrastate and noncommercial activities, if “Con gress ha[s] a rational basis t o find that the regulated activity, taken in the aggregate , would substantially affect in terstate commerce.” Patton , 451 F.3d at 623. This authority permits Congress to restrict a farmer’s production of wheat for his own use when the re striction’s purpose is to boos t the price of wheat in

commerce. See Wickard v. Filburn , 317 U.S. 111, 127–29 (1942); id . at 115 (the statute was designed “to control the vol ume [of wheat] moving in inters tate and foreign commerce in order to a void surpluses and shortages,” thereby co ntrolling the price). This authority also permits Congress to control marijuana in nationa l commerce by barring the noncommercial cultivation, posse ssion, and use of marijuana for personal medical
purposes. See Gonzales v. Raich , 545 U.S. 1, 25–33 (2005). To determine whether a10 statute is authorized under thi s category, courts consider (1) whether the regulated activity is commercial or econo mic; (2) the relation of the reg ulated activity to interstate commerce; (3) congressional findi ngs about the effects of the r egulated activity on commerce; and (4) whether the sta tute is limited to activities having an explicit connection to interstate commerc e—a so-called jurisdictional ho ok. See Patton , 451 F.3d at 624, 626, 630, 632. When the regulated activity is commercial, the regulation is ge nerally permissible, given how integrated ou r national economy is. See id. at 623. Otherwise, “the last three factors are significant.” Id. at 624. Because almost any hum an activity could be said to have some effect on commerce, the Supreme Court has carefully e xamined the relationship of the regulated ac tivity to comme rce to be sure that the Commerce Clause power is not rendered so expansi ve as to supersede all the othe r grants of power under the Constitution. In particular, an effect cannot be considered “s ubstantial” if inclusion of such effects would as a practical matter confer a plenary polic e power, contrary to the notion that the Constitution established a government of limite d powers. In United States v. Lopez, 514 U.S. at 549, the Court inva lidated a federal statute prohi biting possession of a firearm in a school zone, desp ite arguments that such possess ion may result in violent crime, which can affect the na tional economy (1) because the co sts imposed are spread throughout the population, (2) be cause fear of violence deters individuals from traveling to unsafe areas, and (3) because t he threat to the educational system will reduce the productivity of the citizenry. See id. at 567–68 (to expand inte rstate-commerce power to encompass the statute “would require us to conclude that the Co nstitution’s enumeration11 of powers does not presuppose something not enumerated, and tha t there never will be a distinction between what is truly national and what is truly lo cal” (citation omitted)). And in United States v. Morrison , 529 U.S. 598 (2000), the C ourt invalidated a federal civil remedy for the victims of g ender-motivated crimes of viol ence, rejecting arguments that gender-motivated v iolence affects inte rstate commerce because it can deter interstate travel, engaging in interstate business, etc. See id. at 617–18 (“The Constitution requires a distinction between what is tr uly national and what is truly local . . . . The regulation and punishment of intrastate viol ence that is not directed at t he instrumentalities, channels, or goods involved in in terstate commerce has always b een the province of the States.”). The problem with the statutes in Lopez and Morrison was not that it was irrational to think that the regul ated 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 Patton , 451 F.3d at 629 ( Lopez and
Morrison rejected the government’s argum ents “largely on the ground tha t, if accepted, similar effects could be invoked in every case, and the Commerc e Clause would become, in effect, a grant of genera l governing authority”). It is important to keep in mind this limitation on the third ca tegory of regulation under the Commerce Clause—the re gulation of activities that sub stantially affect interstate commerce – when considering the scope of the first t wo categories—(1) the regulation of the use of the channels of commerce and (2) the r egulation of the instrumentalities of commerce and persons or things in intersta te commerce. The first two categories are qualitatively different from the third. “Th e first two categories are12 self-evident, since they are the ingredients of interstate comm erce itself.” Raich , 545 U.S. at 34 (Scalia, J., concurri ng). “[A]ctivities that substa ntially affect interstate commerce [, however,] are not the mselves part of interstate com merce.” Id. Regulation in the first two categories can be upheld just by identifying w hat is being regulated – the use of the channels of interstate commerce, or instrumentalitie s of interstate commerce, or persons or things in interst ate commerce. But determining the propriety of regulation under the third category require s more. The courts must determ ine whether the activity being regulated has a causal conn ection to interstate commerce that can properly be deemed “substantial.” An impr oper expansion of either of the f irst two categories to encompass regulation that properl y belongs within the third cat egory therefore would evade the constitutional constrai nts imposed on the third categ ory of regulation. For example, this court has said t hat under the channels category, “Congress regulates not conduct related to interstate commerce but rather interstate commerce itself, bar ring from the channels of interstate comme rce a class of goods or people” ; and the court described that category of regulation as bei ng “confined to statutes that regulate interstate transportation itself, not manufact ure before shipment or use a fter shipment.” Patton , 451 F.3d at 621. The c ourt concluded that “[a] prohibition on the mere intrastate possession of body armor cannot be upheld under Congress’s powe r to regulate the channels of interstate commerce.” Id. Finally, one aspect of the Supreme Court’s three-part test is o ften overlooked. The division of interstate-commerc e regulation into three categorie s is less a policy matter than it is definitional. To my k nowledge, no one has suggested that there is some other13 type of possible regulation outs ide of those categories. Contr oversy concerns only whether one of those types of regu lation is permitted at all by the Constitution, see Nat’l Fed’n of Indep. Bus. v. Sebelius , 567 U.S. 132, 2677 (Thomas, J ., dissenting) (stating that there is no constitutional powe r to regulate activity simply be cause 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 doc trine translates to the Foreign Commerce Clause. H ow much of the doctrine shoul d be carried over and how much is not applicable becau se of some special consideratio n—that is, in the words of Ogden, 22 U.S. at 194, because of some “plain intelligible cause”? In particular, how should one analyze congressional authority under the Foreign Co mmerce Clause over conduct of Americans abroad, as in the case before us? The critical question is w hen, if ever, the terms commerce and regulate have a different meaning under the Forei gn Commerce Clause than they d o under the Interstate Commerce Clause. As previously noted, Chief Justice Marshall i ndicated the general rule that they are understood as having the same meaning in the foreign and domestic context, saying: “Commerce, und oubtedly, is traffic, but it is something more: it is intercourse. It describes the com mercial intercourse between n ations, and parts of nations, in all its branches, and is regulated by prescribing r ules for carrying on that intercourse.” Gibbons , 22 U.S. at 189–90. Unfortuna tely, however, there are no14 Supreme Court opinions on whether the terms have distinct meeti ngs in the context of regulation of the conduct of Americans abroad. The Court’s only decisions on th e 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 power s of the federal and state gove rnments under the Clause. Typical of the early opinions interpreting the Clause, in Board of Trustees of University of Illinois v. United States , 289 U.S. 48, 56 (1933), the Cou rt 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 id. at 56–59. The Court emphasized the preeminence of fe deral power over states’ rights in this field: “To permit the states and their instrumen talities to import commodities fo r their own use, regardless of the requirements imposed by the Congress, would undermine, i f not destroy, the single control which it was one of the dominant purposes of the Consti tution to create.” Id. at 59. In that case there could be no question that the federal l aw—which imposed a customs duty on impor ted equipment—was a regulation of foreign commerce. The argument to the court was that there should be an exemption fro m that regulation for state entities. And the Court rejected t he argument, noting the impo rtance of not allowing variation among the States. Fifty years later, in Japan Line, Ltd. v. County of Los Angeles , 444 U.S. 434 (1979), the Court considered not the powers of Congress, but th e limits that the power given to Congress under the Foreign Commerce Clause implicitly places on the powers of the States in the absence of fede ral legislation—the so-called dormant Foreign Commerce15 Clause. The State of California sought to assess an ad valorem property tax on cargo containers aboard Japanese ships temporarily docked in Californ ia’s ports. See id. at 436–37. The Japanese owner of the containers objected that the State lacked the power to burden foreign commerce in this way. See id. at 437–38. The Court agreed, holding that the dormant Foreign Commerce Cl ause vests in the federal govern ment the exclusive power to regulate commerce with f oreign nations and forbids the tax. See id. at 453–54. There was no question that t he activity at issue in Japan Lines was regulation of foreign commerce. The question wa s the extent to which the Sta tes shared this regulatory power with the federal government . What the Court held was tha t the dormant Foreign Commerce Clause limited the pow ers of States to regulate foreig n commerce more than the Interstate Commer ce Clause limits the powers of States to r egulate interstate commerce. Indeed, the Court assu med that the California tax wo uld be lawful if applied to goods transported in intersta te commerce. Under the dormant Interstate Commerce Clause test set forth in Complete Auto Transit, Inc. v. Brady , 430 U.S. 274 (1977), a tax does not impose an impermissible burden on interstate commerce if it “‘is applied to an activity with a substantial nexus w ith the taxing State, is fai rly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State.’” Japan Line, 441 U.S. at 444–45 (quoting Complete Auto, 430 U.S. at 279). The Court said, however, that “t wo additional considerations” a re at play under the Foreign Commerce Clause. Id. at 446. One is the im perative, mentioned in Board of
Trustees , 289 U.S. at 59, that the countr y “speak with one voice when r egulating commercial relations with fo reign governments.” Japan Line , 441 U.S. at 449 (internal16 quotation marks omitted). State taxes on foreign commerce coul d generate international disputes and result in retaliation against American instrumenta lities present in foreign jurisdictions. See id. at 450. The other consideration is that the “fair apportionmen t” component of the Complete Auto test cannot be enforced in the international context. See
id . at 446. That test can prevent multiple taxation of instrumen talities in interstate commerce because the Supreme Cour t can “enforce full apportionm ent by all potential taxing bodies.” Id . at 447. In the international sphere, however, there is no “a uthoritative tribunal capable of ensuring that the aggregation of taxes is c omputed on no more than one full value.” Id. at 447–48. “[N]either [the] Court nor this Nation can insure f ull apportionment when one of the t axing entities is a foreign sove reign.” Id. at 447; see Anthony Colangelo, The Foreign Commerce Clause, 96 Va. L. 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 t o foreign commerce, the Court said, “Although the Constitution, Art. I, § 8, cl. 3, g rants Congress power to regu late commerce ‘with foreign Nations’ and ‘among the several States’ in parallel phrases, th ere is evidence that the Founders intended the scope of t he foreign commerce power to be the greater.” Id. at 448. The government’s brief poi nts to this sentence in support of its argument that congressional power under the For eign Commerce Clause is “plena ry.” But the sentence must be read in context. The C ourt did not say that the term commerce has a broader meaning in the foreign-commerce context than it does in the int erstate-commerce context. Nor did it say that the term regulate has a broader meaning in the former context. Nor17 did the Japan Line opinion have occasion to conside r congressional power to regula te the conduct of Americans ab road. Indeed, the question was not the extent of congressional power; no one was arguing about whether Congress could pass leg islation imposing taxes like those imposed by California , or even authorize states to i mpose 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-voi ce principle in Foreign Commerce Clause jurisprudence doe s not expand congressional pow er. It does not add a megaphone to magnify the voice of Congress and permit it to ena ct legislation that it would not otherwise be permitted to enact. Rather, it is a res triction on the States. It silences them so that only the voice of the national government is heard on international

matters. This construction of the m eaning of the comment in Japan Lines is consistent with the “evidence” that the Cour t referred to in its footnote. See id. at 448 n.12. The footnote cites to Federalist No . 42, which discusses the powers granted the federal government to “regulate the in tercourse with foreign nations,” such as the powers to make treaties, to send and recei ve ambassadors, and to regulate foreign commerce. The Federalist No. 42, at 231 (M adison) (E.H. Sco tt ed., 1898). Th e 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 resp ect to other nations.” Id.18 This passage is certainly suppo rt for the exclusivity of federa l 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 “conclu ding, after an exhaustive survey of contemporary materials: ‘Despite the form al parallelism of the grants, there is no tenable reas on for believing that anywhere nearly so large a range of action was given over commerce “a mong the several states” as ov er that “with foreign nations.”’” 441 U.S. at 448 n.12 (quoting Abel, supra at 475). Nothing in the article, however, even hints at the possi bility that the Foreign Commerc e Clause could be used to govern noncommercial conduct o f Americans abroad. The quotatio n from the Abel article is the conclusion of a discussion confirming the accura cy of Madison’s recollection of the Convention d ecades afterwards, in which he “explicitly negatives the suggestion that the [Interstate C ommerce Clause] was designed t o have as wide an operation as the companion grant with regard to foreign commerc e, and assigns to it instead merely ‘a negative and pr eventive’ 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 Farra nd 478). In other words, Abel w as saying that the

5 The essay also notes the role played by the Interstate Commer ce Clause in facilitating foreign commerce: “[I]t may be a dded, that without this supple mental provision [the Interstate Commerce Clause], t he great and essential power of r egulating foreign commerce would have b een incomplete and ineffectual. A very ma terial object of this power was the relief of the States which import and export to o ther States, from the improper contribution levied on th em by the latter.” The Feder alist No. 42 at 235. An 1829 letter from James Madison cited in the Japan Line footnote also states this purpose for the Interstate Commerce Clau se. Again, the point being mad e is the need for exclusive federal power.19 Framer’s view, totally contrary t o current doctrine, was that t he Interstate Commerce Clause was not considered as a g rant of affirmative legislative power to regulate interstate commerce, but as a m eans to constrain state interfer ence with such commerce.
See id. at 468–75; see also id. at 471 (“There is thus not a single occasion in the proceedings of the convention its elf where the grant of power o ver commerce between the states was advanced as the basis for independent affirmativ e regulation by the federal government. Instead, it was unifo rmly mentioned as a device fo r preventing obstructive or partial regulations by the states.”). Moreover, the Abel ar ticle points out the limited scope that the Founders gave to the term commerce even in the foreign-commerce context: “These three large cl asses of subjects—fiscal regulat ion [that is, duties] as to imports and exports, navigation, ‘m ercantile’ enterprises—are t he only ones that there is any evidence for believing were thought of by any one as embrac ed within ‘commerce’ or affected by the grant of pow er to regulate it.” Abel, supra at 465; see also id. at 464 (emphasizing the narrow notion of mercantile (or merchant) ente rprises at the time of the Convention, stating that the merchant’s “activities conform nic ely to those of the presentday importer, commission house, a nd wholesale firm, with just a dash of the commodity exchange; they hardly embrace t hose 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’ concepti on of the foreigncommerce power. See id

. at 478 (“Today [that is, 1941] we are accustomed to think of the arteries of commerce, the hig hways and the inland streams, harbors, bridges, and the20 like, as within the ambit of con gressional power under the comm erce clause. This is not the way the framers of the cons titution looked at the matter.”)

. 6 The panel opinion suggests that t he 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 Cla use permitted regulation of commerce “ among foreign nations”—so that the two clause s 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 a ll. 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 differe nce between the uses of the t wo prepositions in the Commerce Clause). 7 In short, the greater-power state ment by the Supreme Court in Japan Line should not be overread. The statement w as made in the context of the assertion that the need for national uniformity under the Foreign Commerce Clause could req uire greater limitations

6 The Japan Line footnote also cited two student notes that do not affect the a nalysis.

7 I am perplexed by the statemen t: “‘Among’ in the [Interstate Commerce Clause] restrains Congress in re gulating intrastate matters—a c onstraint not present in the [Foreign Commerc e Clause].” Maj. Op. at 27. Si nce the Foreign Commerce Clause requires that th e commerce be that of a foreign country with the United States, it obviously restra ins the application of that C lause within a foreign country.21 on state action than would the I nterstate Commerce Clause alone . As Justice Thomas has observed: This Court’s statements about the comparative breadth of the Fo reign Commerce Clause are of questionabl e relevance where the issue i s Congress’ power to regulate, or e ven criminalize, conduct withi n another nation’s sovereign territory . . . . [E]ven if the foreign comm erce power were broader than the interstate commerce power as understood a t the founding, it would not follow th at the foreign commerce power i s broader than the interstate commerce pow er as this Court now construes it.
Baston v. United States , 137 S. Ct. 850, 852 (2017) (Thomas, J., dissenting from denia l of certiorari). This is not to say that nationa l powers under the Foreign Comm erce Clause and the Interstate Comme rce Clause must be identical. After all, Japan Line makes clear that they are not. When it comes to s tate taxation of commerce, the re are “plain intelligible cause[s],” Gibbons , 22 U.S. at 194, why Sta tes must be more lim ited in taxing forei gn commerce than in taxing interst ate commerce. For one thing, th ere is the need for the nation to speak with one voice in relations with other countrie s. That “cause,” however, has no purchase in this case. T he statutory provision under wh ich Defendant was convicted was hardly animated by any perceived need to prevent the various States from engaging in conflicting polic ies toward foreign nations. The panel opinion also suggests that some interstate-commerce d octrine—in particular, the gloss presented in Lopez and Morrison— does not apply because the limits on interstate-commerce power in th at 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-commerce22 context than in the interstate-c ommerce context. And the major ity’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 gi ve the federal government authority that could override police powers held by the States; it also expressed a fundamental concern that an overbroad conception wo uld give the federal government general police power s, contrary to the constitutiona l framework of a federal government of limited power. See, e.g. , Lopez , 514 U.S. at 564 (“if we were to accept the Government’s arguments, we are hard pressed to posit any activi ty by an individual that Congress is without pow er to regulate”); id. at 566 (“The Cons titution . . . withhold[s] from Congress a plenary police po wer that would authorize enact ment of every type of legislation.”); id . at 567 (“To uphold the Governme nt’s contentions here, we woul d have to pile inference upon inference in a manner that would bid fai r to convert congressional authority under the Commerce Clau se to a general police power o f the sort retained by the States.”); see also Nat’l Fed’n of Indep. Bus. , 567 U.S. 519, 535– 36 (Roberts, C.J., writing separately) (“This case concerns two powers that the Co nstitution does grant the Federal Government, but which mus t be read carefully to avoid c reating a general federal authority akin to the police power.”). The real danger lies in overbro ad application of the third type of regulation under the Commerce Clause: the regula tion of activities that substan tially affect commerce. Given the reality that in modern times every activity can be sa id to have some effect on commerce, courts must set reasona ble 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.23 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 no t construe it in a way that would amount to ceding to Congress a general police power o ver Americans with respect to all conduct beyond our shores. Unlike the Supreme Court doctrine that the Foreign Commerce Cla use embodies the concept that the country sh ould speak with one voice in for eign affairs, which is firmly supported by evidence fro m the Founding, there is nothin g—at least nothing brought to my attention or that I have found—suggesting that th e Framers held any idea remotely like the possibility tha t the Foreign Commerce Clause would provide plenary power to police the behavior of A mericans in foreign countries. Rather, the evidence is to the contrary. As Chief J ustice Marshall explained: The jurisdiction of the nation within its own t erritory is nec essarily exclusive and absolute. It is su sceptible of no limitation not imposed by itself. Any restriction upon it , deriving validity from an ext ernal source, would imply a diminution of its s overeignty to the extent of th e restriction, and an investment of that sovere ignty to the same extent in tha t power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, mus t be traced up to the consent of the nation itself. They can flow from no other legitimate source.
The Schooner Exch . v. McFaddon , 11 U.S. 116, 136 (1812) (emphasis added). And specifically with respect to trad e, Alexander Hamilton wrote th e 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 the y [that is, Congress] cannot regulate the Trade which we may go to carry on in foreign countries, they24 can give to us no rights, no priv ileges there. This must depen d on the will and regulation of those countrie s; and consequently it is the p rovince of the power of Treaty to establish the rule of commercial intercourse between foreign nations and t he U[nited] States. T he Legislature may r egulate our own Trade but Treaty only can regul ate the mutual Trade between our own and another Country. Alexander Hamilton, The Defence No. XXXVI (Jan. 2, 1796), i n 20 The Papers of Alexander Hamilton (Harold C. S yrett ed. 1974), available at http://founders.archives.gov/do cuments/Hamilton/01-20-02-0002 8 ; see Al-Maliki , 787 F.3d at 793 (“[A]n unb ounded reading of the Foreign Commerce Cl ause allows the federal government to intrude on the sovereignty of other natio ns—just as a broad reading of the Interstate Commerc e Clause allows it to intrude on the sovereignty of the States.”), cert. denied , 136 S. Ct. 204 (2015). These views of the exclusivity of sovereign jurisdiction are o verstated, at least under current international la w. I recognize that internationa l law now generally permits a nation “to prescribe law w ith respect to . . . the activities , interests, status, or relations of its nationals outside as well as within its territory.” Restat ement (Third) of the Foreign

8 The panel opinion points to a n additional passage from earlie r in Hamilton’s essay: “[A nation’s] power to make laws . . . acts compulsively upon a ll persons, whether foreigners or Citizens, and upon all things, within its territo ry, and it acts in like manner upon its own citizens and their property w ithout its territory in certain cases and under certain limitations. But it can have no obligat ory action what soever upon a foreign nation or any person or thing within the jurisdiction of such foreign Nation.” The Defence . The panel opinion reads this passa ge as permitting prosecution for acts in another country so long as the prosecu tion occurs here. See Maj. Op. 34 n.17

. This is not an unreasonable interpretation if the passage i s read in isolation, although su ch a prosecution would seem to contradict the notion expre ssed by Hamilton that a nation ca nnot impose obligations on someone (that is, on his or her c onduct) while in a foreign jur isdiction. 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 re gulate the trade which we ma y go to carry on in foreign countries.” The Defence

.25 Relations Law of the United States § 402 (1986); see United States v. Mitchell , 553 F.2d 996, 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 whe n the exercise of such jurisd iction is unreasonable”); Colangelo supra at 1035–37. But that is beside the point that is relevant her e. This proposition of international law does not distinguish the Forei gn Commerce Clause from the Interstate Commer ce Clause. International law would permit the federal government to enact the statute s struck down in Lopez and Morrison . The question is what our Constitution permits. And the st atements by Chief Justice Mars hall and Alexander Hamilton, together with the absen ce of any evidence that the Fo reign Commerce Clause was conceived as providing co ngressional authority to govern al l (or any?) conduct in foreign nations, stron gly suggest that the sovereignty of forei gn governments was as much assumed with respect to the F oreign Commerce Clause as was state sovereignty with respect to the Interstate Commerce Clause. (It should als o be noted that in one respect the sovereignty of foreig n nations was entitled to grea ter consideration—namely, the States, by ratifying the Co nstitution, had voluntarily cede d 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 fo reign commerce is taxed by th e States, the Supreme Court cannot prevent multiple tax ation by requiring apportionme nt of the taxes by the sovereignties imposing them, as th e Court can when only interst ate commerce is26 involved, because the C ourt has no authority over foreign gover nments. See 441 U.S. at 447–48. And for the same reason, t he federal government cannot prevent foreign nations from retaliating when the S tates impose such taxes. S ee id. at 450. Federal power under the Foreign Commerce Clause sho uld be construed with considerat ion of the sovereign power of other nations just as fe deral power under the Intersta te Commerce Clause is constrained by state sovereignty. See Al-Maliki , 787 F.3d at 793; Anthony J. Colangelo, The Foreign Commerce Clause , 96 Va. L. Rev. 949, 971–83 (2010) (identifying the “Foreign Sovereignty Concern” a s a limit on congressional power under the Foreign Commerce Clause). Further, the Tenth Amendment—“The powers not delegated to the U nited States by the Constitution, nor prohibite d by it to the States, are re served 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 Al-Maliki , 787 F.3d at 793 (“[A]n overbroad interpretation of the Foreign Commerce Clause allows the government to intrude on the liberty of ind ividual citizens. And that see ms at least as wrong as a reading of the Commerce Clause t hat allows the government to in trude 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 th e exercise of any power over co nduct in other nations. For one thing, constitutional provisions other than the Foreign Com merce Clause can be the source of such power. A nd my view does not totally foreclose t he exercise of such power under the Foreign Commerce Clau se, even as authority for other provisions of the27 PROTECT Act. For example, what I am saying does not call into question the constitutionality of the prohibitio n on travel to a foreign cou ntry with the intent to engage in illicit sexual conduct (the charge Defendant was acquitted o f) or the prohibition on engaging in commercial illicit sexual conduct after travel to a fore ign country. I a m merely rejecting the notion that b ecause the Foreign Commerce C lause 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 t he need for the nation to speak with one voice i n foreign affairs or the limits of national power in a foreign country—I shall assume t hat the language “to regulate c ommerce” has the same meaning in the Foreign Commerce Clause as in the Interstate Com merce Clause. In particular, I borrow jurispruden ce regarding the Interstate Com merce Clause in two respects. First, since the powe r of Congress under both that c lause and the Foreign Commerce Clause is “[t]o regulat e Commerce,” I can adopt the In terstate Commerce Clause doctrine interpreting that language to encompass three t ypes of regulation: regulation of the channels of co mmerce, regulation of the instr umentalities of commerce, and regulation of activities that substantially affect commerce

. See Gonzales , 545 U.S. at 16 (“Cases . . . have identified th ree general categories of re gulation in which Congress is authorized to engage unde r its commerce power”); United States v. Clark , 435 F.3d 1100, 1118 (9th Cir. 2 006) (Ferguson, J., dissen ting) (“A fairer unde rstanding of the tricategory framework is that it ha s evolved not only in response to federalism concerns that courts have read into Congress’ s Interstate Commerce power, but also to give content to28 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 cong ressional enactments under the Foreign Commerce Clause. See Bollinger , 798 F.3d at 215 (“We agree that the Lopez categories provide a useful star ting point in defining Congress ’s powers under the Foreign Commerce Clause.”); Pendleton , 658 F.3d at 308 (analyzing constitutionality of PROTECT Act provision under “ Lopez ’s ‘time-tested’ [Interstate Commerce Clause] framewo rk” since the “Supreme Court has not ye t held that Congress has greater authority to regulate activity outside the United S tates than it does within its borders”); Clark , 435 F.3d at 1118 (Ferguson, J ., dissenting) (criticizing majo rity for departing from Interstate Comme rce Clause framewo rk in resolvin g issue under Foreign Commerce Clause); United States v. Reed , No. CR 15-188 (APM ), 2017 WL 3208458, at *7 (D.D.C. July 27, 2017) (“Give n the ambiguous contours of this constitutional power and the dearth of precedent in th is jurisdiction, this court wi ll look—as others have done—to the well-known Interstate Commerce Clause framework to analyze whether Section 2423(c) is a constitutiona l exercise of Congress’ Comme rce Power.”); cf. United
States v. Baston , 818 F.3d 651, 6 68 (11th Cir. 2016), cert. denied , 137 S. Ct. 850 (2017) (upholding statute on assumption “that the Foreign Commerce Cla use has the same scope as the Interstate Commerce Clause”); United States v. Bredimus , 352 F.3d 200, 204–08 (5th Cir. 2003) (analyzing 18 U.S. C. § 2423(b) foreign-commerce issue under framework of interstate-commerce case la w, but stating that under Japan Line greater deference is owed to regulation o f foreign commerce); United States v. Homaune , 898 F. Supp. 2d 153, 159 (D.D.C. 2012) (upholding statute on assumption that th e “Foreign Commerce29 Clause is at least as broad as the more familiar Interstate Com merce Clause,” citing Japan Line ). Second, I adopt the limiting prin ciple employed by the Court in the interstatecommerce context that the powe r conferred by the Clause cannot be construed so broadly as to encompass everything that can somehow be causally connected to commerce. Such a construction wo uld be contrary to any notion of the Constitut ion as the source of only enumerated powers. See Morrison , 529 U.S. at 615–19; Lopez , 514 U.S. at 566 (“The Constitution . . . withhold[s] from Congress a plenary police p ower”); see also Nat’l Fed’n of Indep. Bus. v. Sebelius , 567 U.S. 519, 554 (2012) (separ ate opinion of Roberts, C.J.) (“[O]ur cases have ‘always recognized that the power to r egulate commerce, though broad indeed, has limits.’” (quoting Maryland v. Wirtz , 392 U.S. 183, 196 (1968)); id. at 536 (Congress’s power over comme rce “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 conn ected in some way to internati onal commerce, the risk of using the Foreign Commerce Cl ause to justify plenary police powers (not just at home, but abroad as well) is every b it as great as the risk of using the Interstate Commerce Clause for the same purpose. Thu s, when I turn to congressiona l power under the Foreign Commerce Clause to enact the third category of regulation—regulation of activities that substantially affe ct commerce—I will keep in mi nd the Supreme Court’s conception of “substantially” to preclude regulation of activit ies whose connection to commerce is too indirect.30 III. Application of Foreign Com merce Clause to This Case I now proceed to consid er whether § 2423(c), as applied to nonc ommercial illicit sexual conduct, can be justifie d 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 Cl ause grants Congress the authority “to keep the channels of interstate comm erce free from immoral and injurious uses.” Caminetti , 242 U.S. at 491; see Perez , 402 U.S. at 150 (“The Commerce Clause reaches . . . the use of channels of interstate or foreign commerce which Congress deems are being misused .” (emphasis added)). Und er this authority the Supreme Court has affirmed ban s on interstate transportation of women who are to be put to immoral purposes, Caminetti , 242 U.S. at 483; wives for the purpose of polygamy, see Cleveland , 329 U.S. at 18; kidnapped persons, see Perez , 402 U.S. at 150; stolen property, see id. ; or lottery tickets, see Lottery Case , 188 U.S. at 354–55. In these cases the person or thing bar red 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 no t extend to the conduct for whic h Defendant was convicted. I can assume that it extends to the conduct for whi ch the jury found Defendant not guilty—traveling in [foreign commerce] with the intent to commit illicit sexual conduct. But absent that i ntent, Defendant could not be distinguished from any ordinary international travel er. The channels of foreign comme rce were free of immoral and injurious uses since his in tent was not found to be corrupt . He was not tainted at the31 time of travel. Cf. Patton , 451 F.3d at 621 n.3 (“[T]he statute [in Caminetti ] does not criminalize the transportation of persons who happen, after cro ssing state lines, to become prostitutes.”); Clark , 435 F.3d at 1120 (Ferguson, J ., dissenting) (“The mere act of boarding an international f light, without more, is insuffici ent to bring all of [a person’s] downstream activities . . . within the ambit of Congr ess’s Foreign Commerce power.”). The government nevertheless s uggests that this court is bound to hold that the statutory provision before us c onstitutes channels regulation b ecause of our conclusion in United States v. Hinckley, 550 F.3d 926, that the Sex Offender Registration and Notification Act (SORNA) can be upheld as regulation of the cha nnels of commerce. The rationale for SORNA is that co nvicted sex offenders pose a particular danger to the public, the public needs to be wa rned of their proximity, and t hey should not be permitted to misuse the channels of inter state commerce to move from the state of conviction to another state to avoi d this publicity. Und er SORNA, sex offend ers are not absolutely prohibited from interstate trav el, but they can do so only if t hey register promptly upon establishing a new residence. SORNA is a comfortable fit as c hannels regulation. The person subject to regulation is a person who can b e identified while in the chann els of commerce—the person has been convicted of a s exual offense. Such persons can be considered tainted things traveling in the channel s of interstate commerce. And t he SORNA registration requirement is an incidental co ndition for permitting such pers ons to travel in those channels. See United States v. Anderson , 771 F.3d 1064, 1070 (8th Cir. 2 014) (“[T]he32 registration requirements of [SORNA] are part of the constituti onal power Congress has to punish sex offenders who cro ss state lines. Because Congres s has the power to punish sex offenders across state lines, Congress is able to exercise the ‘narrow’ and ‘incidental’ power of requiring those sex offe nders to register.” (citation omitted)). That is a very different situation from the sta tutory provision here, because the defendant traveling to a foreign country cannot be singl ed 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 offere d any principled basis, or any basis for that matter, for upholding channels-of-commerc e authority for Defendant’s of fense that would not permit Congress to subject an Amer ican to federal prosecution f or any offense committed abroad. Congress could penalize an American who traveled abroa d 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 respectfu lly disagree with the Third Circuit’s reliance on the above- cited channel-of-commerce cases to sustain a similar conviction. See Pendleton , 658 F.3d at 311.
B. Instrumentalities of Commerce and Persons or Things in Commerce Lopez held that “Congress is empower ed 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 activities .” 514 U.S. at 558. No court has affirmed the PROTECT A ct on this ground. The governm ent, however, argues33 that Defendant was a person “in [foreign] commerce” and therefo re subject to congressional regulation. But thi s argument is based on a misc onception of what it means to be “ in interstate [or foreign] commerce.” What Lopez was speaking of was regulation governing persons or t hings while they are traveling . A law prohibiting robbing people riding on an inter state stagecoach or thefts of property from trains would be within this power. See Patton , 451 F.3d at 622 (suggesting th at a proper statute under the Commerce Clause could “prot ect [an item] while it is moving in interstate shipment”). Our precedent notes t hat “[t]he illustrative cases for this category involve things actually being moved in i nterstate commerce, not all peo ple and things that have ever moved across state lines.” Id . Section 2433(c) is obviously not protecting Defendant while he is moving in foreign commerce, or protecting the instrumentalities of foreign commerce that he is using. See id

. Although we stated in passing in Hinckley , 550 F.3d at 940, t hat SORNA would be constitutional under this cate gory of regulation of intersta te commerce, we did not distinguish the category as app lied in that context from the fi rst category of regulation— regulation of the channels of co mmerce. And I have already exp lained 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. Camp us Vill. Apartments , 843 F.3d 1225, 1235 ( 10th Cir. 2016) (earlier circuit precedent ordinarily p revails over later decision).34 C. Substantial Effects on Commerce The final source of congressional authority over commerce is th e power to regulate “activities that substantially affect interstate [or f oreign] commerce.” Lopez , 514 U.S. at 559. In analyzing this i ssue, it is first necessary to recognize that noncommercial sexual activity is not commerce . It is not “the buying, s elling, production, or transportation of products or s ervices, or any activity prepara tory to it.” Patton , 451 F.3d at 624–25. It is not even economic activity, which “refers to the production, distribution, and consumption of commodities.” Raich , 545 U.S. at 25 (internal quotation marks omitted)); see Patton at 625 (“[I]n Raich , the [Supreme] Court inte rpreted the contours of the third category by reference to ‘economics’ rather than ‘com merce,’ and included the ‘consumption of commodities’ as well as their production and di stribution within that definition.”). Engaging in nonco mmercial nonconsensual sexual activity is no more an economic activity than the gender -motivated violence targeted b y the statute held unconstitutional in Morrison

. See 529 U.S. at 613 (“Gender-motivated crimes of violence are not, in any sense o f the phrase, economic activity .”). The fact that noncommercial nonc onsensual sexual activity is no t economic activity is extremely important, p robably dispos itive, in deter mining whether it is subject to the third categor y of regulation of co mmerce. The Supreme C ourt thus far has upheld under the third category only re gulation of eco nomic activity. See Raich , 545 U.S. at 17 (“Our case law firmly establishe s Congress’ power to regulate p urely local activities that are part of an economic ‘class o f activities’ that have a subst antial effect on interstate commerce.”) The panel opinion cites Raich as a case in which t he Court “upheld35 congressional regulation of non commercial 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 ear lier Court decisions overturni ng congressional legislation with the words: “Unlike those at issue in Lopez and Morrison , the activities regulated by the [Controlle d Substances Act] are quintessentially economic .” Raich , 545 U.S. at 25 (emphasis added). To be sure, the term illicit sexual conduct in § 2423 does include economic, even commercial, activity. But the broad statutory definition of th e term cannot change the nature of every activ ity within the definitio n. Suppose the Co ntrolled Substances Act also prohibited jogging (because it can produce a runner’s high ). That would not place jogging within the “economic c lass of activities” of controlled substances and thereby allow the prohibition. Cf. Sebelius , 567 U.S. at 547–61 (Opinion of Roberts, C.J.) (failure to purchase medical ins urance is not economic activity and cannot be regulated under the Commerce Clause despite effect on health-insurance ma rket); id . at 646–48 (Scalia, J., joined by three othe r Justices in concurring on th is issue) (“failure to engage in economic activity (the purchase o f health insurance) is [not] s ubject to regulation under the Commerce Clause”). But even if nonco mmercial illicit sexual conduct could be regul ated if it has a substantial effect on commerce, there is no reason to believe t hat it has such an effect. As noted earlier, the Supreme Court ha s examined three factors in conducting a substantialeffect analysis: the relation of the regulated activity to com merce; congressional findings about the activity’s effects on co mmerce; and the presence in t he statute of an express36 jurisdictional element limiti ng the reach of the statute. See Morrison , 529 U.S. at 611– 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 i f the activity involves a good t hat is identical to (fungible with) goods in commerce, regula tion may be permissible. (Do no t forget, though, that activity with respect to good s is “economic” activity. See Raich , 545 U.S. at 25.) In
Wickard , Congress had authorized quotas on the production of wheat bec ause the industry had been plagued by larg e surpluses that depressed pri ces. See 317 U.S. at 113, 125–28. A farmer who grew wheat i n excess of the quota (to fee d poultry and livestock on his farm, to use in making fl our for home consumption, and f or seeding the following year) challenged the qu ota, arguing that it regulated noncommer cial conduct. See id. at 114, 118. But the Court upheld t he quota as a permissible regu lation to protect the price of a commodity because the aggreg ate effect of many farmers exc eeding the quota would substantially affect the wheat market. See id. at 127–28. It reasoned that farmers who grow wheat in excess of the quota purely for home consumption are doing s o instead of buying wheat on the market, thereby decreasing the demand for wheat and und ermining Congress’s goal of boosting the price. See id. at 128–29. “Home-grown wheat in this sense competes with wheat in commerce.” Id. at 128. Congress therefore had the authority to regulate wheat grown “wholly for consumption on th e farm” to protect the price of the commodity in commerce. Id. at 118.37 Six decades later, the Supreme C ourt addressed a challenge to t he federal ban on marijuana in the Controlled Subs tances Act (CSA). The CSA, saidthe Court, “regulates the production, distribution, a nd consumption of commodities fo r which there is an established, and lucrative, interstate market.” Raich , 545 U.S. at 26. In particular, Congress had classified marijuan a as a drug with a high potenti al for abuse and no accepted medical use, which made its manufacture, distribution, or possession a criminal offense. See id. at 14. The question was whet her those prohib itions could enco mpass “the intrastate, noncommercial cultivation and possession of ca nnabis for personal medical purposes as recommended by a patient’s physician pursua nt to a valid California state law.” Id. at 8 (internal quotation mark s omitted). The Court answered t he question affirmatively because Congress “had a rationa l basis for conclu ding that leaving homeconsumed marijuana outside fede ral control would . . . affect p rice and market conditions.” Id. at 19. Just like wheat grown fo r home consumption, marijuana cultivated for that purpose overh angs the market, making it lik ely that “high demand in the interstate market will draw s uch marijuana into the market. ” Id. Relying on Wickard and Raich , the government argues that the PROTECT Act is within congressional power becaus e it was enacted “to close the child-sex-tourism market.” Aplee. Br. at 62. That rationale may well suffice wi th respect to the provision of the Act barring commercia l sex. But the analogy to Wickard and Raich fails when it comes to the provision of the Act under which Defendant was con victed. 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 a dvance regulatory authority38 from commerce to economic activ ity is one thing. The step from economic activity to noneconomic activity m ay be a step too far. See Morrison , 529 U.S. at 611 (“[I]n those cases where we have sustained fe deral regulation of intrastate activity based upon the activity’s substantial effects on interstate commerce, the acti vity in question has been some sort of economic endeavor.”); id. at 613 (“While we need not adopt a categorical rule against aggregating the e ffects of any noneconomic activit y to decide these cases, thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where th at activity is economic in nat ure.”). At the least, when the regulation of noneconomic activit y is justified under the Comme rce Clause on the ground that it substantially affects commerce, that justification cann ot be based on “pil[ing] inference upon inference” in a way that threatens to make the C lause a source of a general police power. Lopez, 514 U.S. at 567. Tenuou s 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 activit y. See Morrison , 529 U.S. at 611, 613. In any event, the government ha s not offered any reason to beli eve that control of noneconomic sex abuse will affect the market in commercial sex trafficking. When dealing with fungible commoditie s the connection is clear. See Raich , 545 U.S. at 19 (“In both cases, the regulation is squarely within Congress’ co mmerce power because production of the commodity mea nt for home consumption, be it w heat or marijuana, has a substantial effect on supply a nd demand in the national marke t for that commodity.”) But here there is no apparent c onnection. If data show that pr osecutions of39 noncommercial child sexual abuse reduce the incidence of commer cial 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 em inently rational to believe thatprohibiting the noncommercial sexual abuse of childre n by Americans abroad has a d emonstrable effect on sex tourism and the commercial sex industry.” Bollinger , 798 F.3d at 218. Contra United
States v. Bianchi , 386 F. App’x 156, 163 (3d Cir. 2 010) (Roth, J., dissenting) ( “I find that there is no rational basis to c onclude that an illicit sex act with a minor undertaken on foreign soil, perhaps years afte r legal travel and devoid of an y exchange of value, substantially affects foreign commerce.”); Reed , 2017 WL 3208458 , at *12–13 (the connection is “too attenuated to rationally qualify as ‘substan tial.’”); United States v.
Park , 297 F. Supp. 3d 170, 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 Raich , 545 U.S. at 26 (“Prohib iting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating comme rce in that product.” (emph asis added)); id . at 18 (“Like the farmer in Wickard , respondents are cultivatin g, for home consumption, a fungible commodity for which there is an establishe d, albeit illegal, interstate m arket.” (emphasis added)). Home-grown wh eat is essentially indistingui shable from wheat produced for commerce, and home-gr own marijuana for medical pur poses is essentially the same product as commercial ma rijuana. A “customer” could n ot distinguish the two products when eating or smoking them. Here, in contrast, the g overnment has not suggested that sex tourists who prey on children are indifferen t to whether their victims40 are provided by commercial enterp rises or they must seek out th eir victims at places like mission schools and assault the children on their own. Nor is it enough simply to point t o the substantial effect on c ommerce of a great deal of activity regulated by a s tatute and then justify regula tion of additional activity that is pasted into the statute on th e ground that it is “part of a larger regulation of economic activity.” Maj. Op. at 40, 46 (i nternal quotation marks omitte d). The fully stated proposition is that conduct that otherwise could not be regulat ed can be regulated if it is “an essential part of a larger re gulation of economic activity, in which the regulatory
scheme could be undercut unless the intrastate activity were regulated .” Lopez, 514 U.S. at 561 (emphasis added). Accord Raich , 545 U.S. at 24–25. Fo r example, the Court in
Wickard “had no difficulty concluding th at Congress had a rational bas is for believing that, when viewed in the aggregate, leaving home-consumed wheat outside the regulatory scheme would have a substantial in fluence on price and market c onditions.” Raich , 545 U.S. at 19. The conclusion is c ommon sense, even obvious. In addition, the record in that case “made it clear that th e aggregate production of wheat for [noncommercial] use on farms had a significant impact on market prices.” Id. at 20. Likewise in Raich there were findings by Congress that in effect “established the causa l connection between the production [of marijuana] for loc al use and the national market .” Id. As the Court said, “that the . . . exemptions [sought b y the respondents] will hav e a significant impact on both the supply and demand sides of the market for marijuana . . . is readily apparent.”
Id . at 30; see id. at 22 (“[W]e have no difficulty c oncluding that Congress had a rational41 basis for believing that failure to regulate the intrastate man ufacture 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 regu lation is “an essential part” o f the regulation of commercial sex tourism because fa ilure to control noncommercial illicit sexual conduct would “undercut” that regulation . Yet neither the government b rief nor the panel opinion explains how this is the case. When products are fungible, the connection is commonsensical. But the tie betw een commercial sex with childr en 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 e ffects of the prohibited acti vity on commerce can inform the analysis. See Lopez , 514 U.S. at 562. But they are not dispositive. For example, in Morrison the Court ruled that the statu te providing a civil remedy to v ictims of gender-motivated v iolence was unconstitu tional despite “nume rous findings regarding the serious impact that gender-m otivated violence has on victim s and their families.” 529 U.S. at 614. Those findings, h owever, relied on the types of a ttenuated effects between violence and commerce—violence de ters victims from traveling in terstate and engaging in interstate businesses, dimin ishes national productivity, inc reases medical and other costs, and decreases both supply of and demand for interstate p roducts—that the Court had previously rejected as insubs tantial because recognizing su ch tenuous effects would eliminate limits on congressional power. See id. at 615 (“Congress’ findings are42 substantially weakened by the fa ct that they rely so heavily on a method of reasoning that we have already rejected as unwo rkable if we are to maintain th e Constitution’s enumeration of powers.”). The panel opinion discusses at l ength the long h istory of feder al legislation governing interstate and inter national 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 Lopez , 514 U.S. at 563 (“[I]mportation of previous [legislative] fin dings to justify [the challenged statutory provision] is especially inappropriate her e because the prior federal enactments or Congressional findi ngs do not speak to the subjec t matter of [the provision] or its relationship to interstate commerce.” (origin al brackets and internal quotation marks omitted)). Mor eover, Congress made no findings when adopting the PROTECT Act. Congre ss did do so, however, in debating its fail ed precursor, the Sex Tourism Prohibition Improvement Act of 2002 (STPIA). And I wil l assume that a court can consider those findings in evaluating the constitutionality of the PROTECT Act. When considering STPIA, the Hous e Judiciary Committee reported the following: Many developing countries have fa llen prey to the serious probl em of international sex tourism. A ccording to the National Center for Missing and Exploited Children, child-sex tourism is a major component of the worldwide sexual exploitation of c hildren and is increasing. T here are more than 100 web sites devoted t o promoting teenage commercial sex in Asia alone. Because poor countries are often under economic pr essure to develop tourism, those government s often turn a blind eye towar d this devastating problem because o f the income it produces. Childre n 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 cou ntries successfully prosecuted U.S. citi zens or resident aliens for th e child sex crimes committed within thei r borders. However, for reasons ra nging from ineffective law enforcement, lac k of resources, corruption, and generally43 immature legal systems, sex touris ts often escape prosecution i n the host countries. It is in those instan ces that the United States has an interest in pursuing criminal charges in the United States. The Justice Department, Federal l aw enforcement agencies, the S tate Department and other U.S. entitie s expend significant resources assisting foreign countries most afflicted with sex tourism to improve th eir domestic response to such criminal offens es. Our assistance encompasses informal as well as formal training of fo reign law enforcement officers and prosecutors in the investigation and prosecution of sex tourism crimes. By and large these countries reach o ut to the United States for he lp and some even blame the United States fo r the problem, “arguing” that ma ny of the sex tourists are American. Some of the foreign or “host” count ries experiencing significant proble ms with sex tourism, such as Nic aragua, Costa Rica, Thailand and the Phili ppines, have requested that t he United States act to deal with this growing problem. Current law requires the Governme nt to prove that the defendant traveled to a foreign country w ith 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, induci ng, procuring, or facilitating th e travel of a person knowing that such a person is traveling in interstate or foreign commerce for the purpose of eng aging in illicit sexual conduct with a minor. This legislation will clos e significant loopholes in th e law that persons who travel to foreign coun tries seeking sex with childr en are currently using to their advantag e in order to avoid prosecutio n. H.R. Rep. 107-525 , at 2–3 (2002). What is notably missing from thes e findings is any statement, m uch less evidence, regarding the impact of noncommercial illic it sexual activity b y international travelers on commercial illicit sexual activity . While the above findings m ay support the constitutionality of a ban on commer cial 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 no ncommercial offenses affect the child-sex market, o r even that Congress cannot adequ ately control commercial44 offenses unless it also prohib its noncommercial offenses. It i s 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 overloo ked the impact of the change on the prohib ition of noncommercial illicit sexual condu ct. In its congressional-findings argu ment the government also reli es on the Optional Protocol to the Convention on the Rights of the Child regarding the Sale of Children, Child Prostitution and Child Pornography, sta ting that “[t]he P ROTECT Act was . . . passed as part of the United St ates’ obligation under the Optio nal Protocol.” Aplee. Br. at 60. The government apparent ly seeks to impute the reasons t hat the United States ratified that treaty to Congress’ s decision to enact the PROTEC T Act. (It does not argue that any part of the PROTECT Act was enacted under the authorit y of the Constitution’s Treaty Clause, U.S. Const. art . II, § 2, cl. 2.) I question wh ether one should consider the Optional Protocol in this contex t because Congress never mentio ned it in the texts or legislative histories of the P ROTECT Act or STPIA. But even if one were to do so, the government’s reliance would be m isplaced. The Optional Protoco l covers only commercial sex offenses against c hildren; it says nothing about the effects of noncommercial sex offens es on foreign commerce. See Reed , 2017 WL 3208458, at *16 (“The Optional Protocol calls on States Parties to create and e nforce laws that prohibit the exploitation of children for commercial gain .” (emphasis added)). Thus, the congressional findings “do not speak to the subject m atter of [the provision under which Defendant w as convicted] or its relations hip to [foreign]45 commerce.” Lopez, 514 U.S. at 563 (brackets and internal quotation marks omitted) ). This is not an inconsequentia l matter. Although congressional findings are not necessary to support commerce-clause legis lation, they can be significant , “particularly when the connection to commerce is not self-evident.” Raich, 545 U.S. at 21. Here, the connection is not self-evident . Without congressional findings , I cannot see how prevention of noncommercial sexu al assault on children would su bstantially affect commercially provided sex abuse. See Lopez, 514 U.S at 563 (“[T]o the extent that congressional findings would enab le us to evaluate the legislat ive judgment that the activity in question substantially affected interstate commerce , even though no such substantial effect was visible t o the naked eye, they are lacki ng here.”)
3. Express Jurisdictional Element There remains the one factor tha t could support congressional p ower to punish Defendant’s offense under the sub stantial-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 , 425 F.3d 1266, 1269 (10th Cir. 2005) (a sking “whether the statute’s reach was limited by an express jurisdictional element” ). “A jurisdictional hook is no t, however, a talisman that wards off constitutional challenges.” Patton , 451 F.3d at 632. Wha t the Supreme Court has said is that “a jurisdictional element may establish that the enactment is in pursuance of Congress’ regulation of interstate commerce.” Morrison , 529 U.S. at 612 (emphasis added). As we stated in Patton , “The ultimate inquiry is whet her the prohibited activity has a substantial effect on in terstate [or foreign] commerce, a nd the presence of a46 jurisdictional hook, though certa inly helpful, is neither neces sary nor sufficient.” 451 F.3d at 632. Our opinion, see id. , endorsed similar views expressed by other circuits:
United States v. Maxwell , 446 F.3d 1210, 1218 (11th Cir. 2006) (“[W]here a jurisdictional element is require d, a meaningful one, rather th an a pretextual incantation evoking the phantasm of commerce , must be offered.” (brackets, citation, and internal quotation marks omitted)); United States v. Holston , 343 F.3d 83, 88 (2d Cir. 2003) (expressing unwillingness to rely s olely on “the mere existence of jurisdictional language purporting to tie criminal condu ct to interstate commerce”); United States v. Rodia , 194 F.3d 465, 472–73 (3d Cir. 1999) (re jecting a “hard and fast rul e that the presence of a jurisdictional element automati cally ensures the constitutional ity of a statute”). In my view, the jurisdictional ho ok here does not do the trick. I have already expressed why I believe that the government has not shown any c onnection between noncommercial illicit sexual c onduct committed by Americans who traveled abroad and commercial illicit sexual conduct (the only type of “commerce” that it would allegedly affect). More important are t he ramifications of relying on th is jurisdictional hook. I do not see, nor has the government provided, a principled way to d istinguish the use of this hook to justify the statutory pr ovisions under which Defendant was convicted from the use of an identical hook that w ould 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 t he defendant had traveled in foreign commerce. At th e least there should be evidence or a congressional finding,47 not just speculation, of a dire ct, not “attenuated,” effect on commercial activity.
Morrison , 529 U.S. at 615. 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 , 431 U.S. 563, 565 (1977), “wh ich held that Congress intended a felon-in-possession st atute to prohibit possession o f any firearm that had moved in interstate commerce,” Patton, 451 F.3d at 634. Scarborough implicitly accepted that such a prohib ition was constitutional. See id. Feeling bound by Scarborough , this court upheld the constitu tionality of a statute that pro hibited “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 activ ity other than the fact that, before it was lawfully purch ased by the defendant, the ve st had been sold across a state line,” even though the prohibition coul d not be justified under the Su preme Court’s “three-part test for determining the reach of the Commerce Clau se.” Id. at 618–19.
But Scarborough cannot be extended so far as to encompass the statute before u s. 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 no t engaged in any activity before or during the trav el that would distinguish him or her from any other person. If Scarborough stands for the proposition that t he Interstate Commerce Clause authorizes Congress to prohibit any activity occurring after pe rsonal travel in interstate commerce, then it provides a gene ral police power to the federa l government that would48 erase the “distinction between wha t is truly national and what is truly local.” Lopez , 514 U.S. at 567–68. I am confident th at such a result was not the teaching of Scarborough

. To sum up, there can be little que stion that a statutory provis ion otherwise identical to the one on which De fendant was convicted could not pass muster under the Interstate Commerce Clause if tra vel in interstate commerce wer e substituted for travel in foreign commerce. He did not en gage in economic activity, and there is no reason to believe that activity like his ha s a substantial effect on comm erce. Nor can the provision be upheld under the Foreign Commerc e Clause merely on the unfoc used proposition that congressional power under that clau se is greater than the power provided by the Interstate Commerce Clause. To u phold 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 t hat the Framers had any such c oncept of the Clause; on the contrary, the evidence sugges ts that such power would seem most strange to them. Moreover, such a power would be w holly inappropriate under a Co nstitution of conferred, limited power. I therefore would hold that the statutory provisions under whic h Defendant was convicted cannot be justified unde r the Foreign Commerce Clause . At the very least, § 2423(c) is unconstitutional as a pplied in this case. Not only is it uncontroverted that Defendant was not a sex tourist , he was not even a tourist. Th e government does not suggest that he had any tie to co mmercial sex trafficking. The connection between his kind of offense and sex tourism is far too attenuated to suppor t regulation under the Foreign Commerce Clause.49 I agree with Judge Ferguson: “The sexual abuse of children abr oad is despicable, but we should not, and need no t, refashion our Constitution to address it.” Clark , 435 F.3d at 1117 (9th Cir. 2006 ) (Ferguson, J., dissenting); see Reed , 2017 WL 3208458, at *11, *19 (holding § 24 23(c) unconstitutional as applied to a de fendant who molested his daughter while residing abroad); Park , 297 F.Supp.3d at 178–79 (following Reed ); see also Al-Maliki , 787 F.3d at 792–94 (upholding thi s portion of the statute on plain-error review, but suggesting that the p anel 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 fi nd that there is no rational basis to conclude that an illicit sex act with a minor under taken on foreign soil, perhap s years after legal travel and devoid of any exchange of value, substantially affects foreign commerce.”); cf. Baston , 137 S. Ct. at 850 (Thomas, J., d issenting from denial of petiti on for certiorari in criminal prosecution under Foreign Commerc e Clause) (“We should grant ce rtiorari and reaffirm that our Federal Government is one of limited and enumerated po wers, not the world’s lawgiver.”); Colangelo supra at 1039–40 (doubting the cons titutionality of § 2423(c) with respect to noncommercial sexual abuse of minors). The Supreme Court has provided little, if any, guidance regardi ng 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 powe r, this may be as good a vehicle as any to convey the message. For the above reasons, I respectfully dissent.