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, Otjen, Davis & Bloyd, 

Enid, Oklahoma, for Defendant - Appellant. 

Steven W. Creager, Assistant United States Attorney (David P. Petermann, Assistant 

United States Attorney, and Mark Yancey, United States Attorney, with him on the 

brief), Oklahoma City, Oklahoma, for Plaintiff - Appellee. 

_________________________________ 

Before HARTZ, MATHESON, and MORITZ, Circuit Judges. 

_________________________________ 

MATHESON, Circuit Judge. 

_________________________________ 

 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 29, 2018

Elisabeth A. Shumaker 

Clerk of Court
i 

TABLE OF CONTENTS

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

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

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

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

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

Foreign Commerce Clause ..................................................................... 8

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

d. Raich supports rational basis for § 2423(c) ..................................... 48
iii 

e. Rational basis standard ................................................................... 52

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

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

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

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

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

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

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

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

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

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

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

and Homosexuality ............................................................................... 67

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

i. Alleged misconduct during cross-examination of Mr. Durham .... 81
v 

ii. Alleged misconduct during closing argument ............................. 81

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III. CONCLUSION ...................................................................................... 105
Matthew Durham appeals his convictions and sentence on four counts for illicit 

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

addresses the following eight issues presented for appellate review. 

1. Is 18 U.S.C. § 2423(c), the statute on which the convictions 

were based, unconstitutional on its face and as applied to Mr. 

Durham because it exceeds Congress’s power under the 

Foreign Commerce Clause in Article 1, Section 8, Clause 3 of 

the Constitution? We hold that § 2423(c) is constitutional 

because Congress could rationally conclude that travel abroad 

followed by illicit sex with a minor, in the aggregate, 

substantially affects foreign commerce. 

2. Did the district court err when it denied Mr. Durham’s 

supplemental motion for a new trial alleging that the 

Government suppressed exculpatory evidence in violation of 

Brady v. Maryland, 373 U.S. 83 (1963)? We affirm because 

Mr. Durham has not shown that nondisclosure of the evidence 

prejudiced his case. 

3. Did the district court err under Federal Rules of Evidence 

401, 403, and 404(b) when it allowed admission of Mr. 

Durham’s statements about his struggles with child 

pornography and homosexuality? We affirm. The district 

court did not abuse its discretion in determining the evidence 

was intrinsic, relevant, and not unduly prejudicial. 

4. Did the district court err when it denied Mr. Durham’s motion 

for a new trial alleging that the Government made improper 

statements about his struggle with homosexuality during 

cross-examination of Mr. Durham and during closing 

argument? We affirm under plain error review because Mr. 

Durham cannot show that the prosecutor’s statements affected 

his substantial rights. 

5. Did the district court err in admitting cellphone video 

recordings because they were not properly authenticated? We 

affirm. The district court did not abuse its discretion because 

the Government presented sufficient foundation evidence for 

authentication. 
2 

6. Did the district court err when it admitted the victims’ entire

medical records? We affirm because Mr. Durham invited any 

error and because his arguments alleging lack of 

authentication, inadmissible hearsay, and unfair prejudice do 

not show that the district court erred in admitting the records. 

7. Did the district court abuse its discretion and impose a 

substantively unreasonable sentence when it sentenced Mr. 

Durham to 480 months in prison? We affirm because Mr. 

Durham cannot overcome the presumption that the district 

court reasonably weighed the sentencing factors under 18 

U.S.C. § 3553(a) or show that its sentencing decision exceeds 

the bounds of permissible choice. 

8. Should the convictions be reversed because the errors, 

considered cumulatively, deprived him of a fair trial? Mr. 

Durham cannot show that any errors that may be eligible for 

cumulative error review cumulatively affected his substantial 

rights. 

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

therefore affirm Mr. Durham’s convictions and sentence. 

I. BACKGROUND

A. Factual Background

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

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

 

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

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

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

Menja, operates Upendo. Id. at 787, 960 (TT 173, 346), Aplee. Br. at 3. Ms. Menja’s 

 1

 “ROA” denotes “Record on Appeal.” “TT” denotes “Trial Transcript.” 
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 host 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 of 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. Wambugu then spoke to some 

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

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

acts. See id. at 662 (TT 48); 1412 (TT 798); 1443-44 (TT 829-30). 

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

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

Durham at Upendo. 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 girls and asked for his response. Id. at 826 (TT 212). Mr. 

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

826-27 (TT 212-13). 

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

had done the acts reported by the girls. Id. at 723 (TT 109). He said, “Yes, I did it. Yes, 

I did.” Id. at 723 (TT 109). But when he went back to talk to the group, Mr. Durham 

 2

 The trial transcript spells Ms. Wambugu’s first name as “Josphine,” but court 

records refer to her as “Josephine.” See ROA, Vol. 1 at 40. We therefore assume her 

name is properly spelled “Josephine.” 
4 

again said he could not remember assaulting the children. He added that he had been 

struggling with child pornography and homosexuality. Id. at 724, 828 (TT 110, 214). 

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

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

Id. at 829 (TT 215). He spent the next three days at an empty house owned by Ms. 

Menja’s father-in-law. Id. at 830 (TT 216). One of the volunteers had taken Mr. 

Durham’s passport after hearing about the allegations. Id. at 1052 (TT 438). 

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

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

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

how sorry i am, and i am praying for their forgiveness every hour.” Id. at 18 (Gov’t Exh. 

10) (errors in original). 

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

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

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

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

videos on her cellphone (the “Seagull Confession Videos”). Id. at 856 (TT 242). Mr. 

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

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

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

to be with other men.” Gov’t Exh. 4 at 1:55-2:01. When Ms. Menja started asking about 
5 

specific children who had accused him of abuse, Mr. Durham admitted 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 write down his confession. ROA, Vol. 12 at 865 (TT 

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

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

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

victim: 

 “I would take her to the bathroom at night and hold her down 

and rape her. This happened on several occasions. I also 

made her watch me do things to [another girl]. I told her 

never to tell anyone, and that I loved her.” ROA, Vol. 9 at 8 

(Gov’t Exh. 9). 

 “I would take her to the bathroom and have her take off her 

clothes. I would touch myself and her. I don’t know how 

many times it occurred. Also, when we had our sleepovers 

Friday night, [she] always made a point to sleep by me. I 

would spoon with her until I woke up.” Id. at 15 (Gov’t Exh. 

9). 

 “I took her to the bathroom and force[d] her to have sex with 

me. This happened on more than one occasion. I made her 

swear to never tell anyone . . . . Any time I try to read the 

bible or pray, this image comes to my [head].” Id. at 16 

(Gov’t Exh. 9). 

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

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

passport to him, and he flew out of Kenya the night of June 17. 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 and determined five out of six had perforated hymens. 

Id. at 1187-88 (TT 574-75). Ms. Menja later reported what had happened 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 original 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 indictment, was returned in April 2015 and charged Mr. 

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

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

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

2423(c). Id. at 467-76. The indictment identified eight victims by their initials. 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. § 2423(b). 

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

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

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

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

the prosecution. Id. at 1186-88 (TT 572-74). Mr. Durham’s written and 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 defense. ROA, Vol. 12 at 1792 (TT 1178). The 

defense also presented testimony from a professional counselor about forensic interviews 

with victims of sexual assault, id. 1506, 1515 (TT 892, 901), and from a sexual assault 

nurse examiner, Lisa Dunson, about the medical findings in the case, id. at 1581 (TT 

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

1638, 1721, 1759 (TT 1024, 1107, 1145). 

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

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

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

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

unconstitutional. Id. at 229. He also moved for acquittal and a new trial. Id. at 277, 305. 

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

had failed to disclose information favorable to the accused during trial. Id. at 489. 

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

752, 760, 776, 811. It granted acquittal on three of the § 2423(c) counts because the 

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

statute, but it denied acquittal on the other four counts. Id. at 762-67, 774-75. 

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

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

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

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

of conviction, running consecutively. 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 844; ROA, Vol. 7 at 477; ROA, Vol. 13 at 158. 

II. DISCUSSION

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

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

legal background, as needed. 

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

Foreign Commerce Clause

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

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

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

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

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

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

age of 18, 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 minors. He argues that, because noncommercial illicit 

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

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

 We review 

 3

 Mr. Durham brings both a facial and an as-applied challenge. See Aplt. Br. 

at 48. The Government contends he has waived his as-applied challenge, but even if 

this is so, we may resolve a facial challenge by conducting an as-applied analysis. 

We previously have said that “we need not and do not address [a] facial 

challenge” when “we conclude the as-applied challenge fails.” United States v. 
9 

his challenge de novo. United States v. Pompey, 264 F.3d 1176, 1179 (10th Cir. 2001) 

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

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

Serv. (PETPO), 852 F.3d 990, 1000 (10th Cir. 2017), cert. denied, 138 S. Ct. 649 (2018). 

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

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

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

Congress could reasonably conclude that United States citizens and permanent residents 

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

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

judgment and uphold § 2423(c). 

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

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

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

 

Morgan, 748 F.3d 1024, 1031 (10th Cir. 2014). For a statute to be facially 

unconstitutional, Mr. Durham “must establish that [the] law is unconstitutional in all 

of its applications.” City of Los Angeles v. Patel, 135 S. Ct. 2443, 2451 (2015) 

(quotations omitted); cf. United States v. Stevens, 559 U.S. 460, 473 (2010) (“In the 

First Amendment context . . . this Court recognizes a second type of facial challenge, 

whereby a law may be invalidated as overbroad if a substantial number of its 

applications are unconstitutional . . . .” (quotations omitted)). 

We therefore address Mr. Durham’s facial challenge through an as-applied 

analysis. Under § 2423(c), Mr. Durham was convicted of engaging in illicit sexual 

conduct abroad after traveling in foreign commerce, the paradigmatic conduct 

targeted under the provision. See, e.g., United States v. Bollinger, 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. 2011). Because we conclude that § 2423(c) 

is constitutional as applied to Mr. Durham, he cannot succeed on either a facial or 

as-applied challenge. 
10 

sexual conduct with another person.” 18 U.S.C. § 2423(c). It is situated within a broad 

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

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

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

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

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

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

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

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

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

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

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

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

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

leading to the enactment of § 2423(c). 

a. Provisions of the statutory scheme 

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

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

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

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

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

§ 2421 (titled “Transportation generally”). It also targets other activities that facilitate 
11 

sex trafficking. See, e.g., id. § 2422 (coercion or enticement of individuals to engage in 

prostitution or illicit sexual activity); id. § 2424 (harboring individuals for purpose of 

prostitution); id. § 2425 (transmission of information to entice individuals into illicit 

sexual activity).4

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

trafficking and sexual exploitation of minors. See id. § 2423 (titled “Transportation of 

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

with minors. See id. § 2423(a)-(g); see, e.g., id. § 2423(a) (the transportation of minors 

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

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

travel with the intent to engage in illicit sex. See id. § 2423(b). Section 2423(c) targets 

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

§2423(c). Section 2423(d) targets businesses that “arrange[], induce[], procure[] or 

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

 4

 Chapter 117 also includes sections on sentencing individuals for such 

offenses, definitions of illicit sexual activity, and forfeiture options once an 

individual is convicted. See 18 U.S.C § 2426 (sentencing for repeat offenders); id.

§ 2427 (definition of “sexual activity for which any person can be charged with a 

criminal offense” to include production of child pornography); id. § 2428 (forfeiture 

of property that was used in the commission of crimes or derived from the proceeds 

of crimes). 
12 

financial gain. Id. § 2423(d). “Illicit sexual conduct” includes commercial and 

noncommercial sex acts5

 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 addressing international 

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

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

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

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

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

 Congress 

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

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

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

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

 5

 For a noncommercial sex act, the conduct would also have to “be in violation 

of Chapter 109A,” which contains various sexual abuse offenses. See 18 U.S.C. 

§§ 2241-2248. 

6

 In the original 1994 version, § 2423(b) criminalized “any sexual act . . . with 

a person under 18 years of age.” See 18 U.S.C. § 2423(b) (1994). The Prosecutorial 

Remedies and Tools Against the Exploitation of Children Today Act of 2003 

(“PROTECT Act”) replaced this phrase with “any illicit sexual conduct with another 

person” and added the definition section in § 2423(f), which includes a definition of 

“illicit sexual conduct” as “a sexual act with a person under 18 years of age.” Pub. L. 

No. 108-21, § 105, 117 Stat. 650, 654 (2003). 

7

 The 1907 Act also prohibited anyone from “keep[ing], maintain[ing], 

control[ling], support[ing], or harbor[ing] in any house or other place” women for the 

purpose of prostitution. § 3, 34 Stat. at 899. 
13 

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

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

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

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

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

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

The report recommended criminalizing the interstate transportation of women and girls 

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

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

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

effectively”). 

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

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

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

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

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

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

§ 2423.8

 

 8

 The Mann Act has been recodified and amended as 18 U.S.C. §§ 2421-2424. 

Section 2 of the Mann Act parallels 18 U.S.C. § 2423(a), which criminalizes 

knowingly transporting individuals for the purposes of prostitution or illicit sexual 

activity. Compare § 2, 36 Stat. at 825 (codified at 18 U.S.C. § 398 (1940)) 

(“[K]nowingly transport[ing] . . . in interstate or foreign commerce . . . any woman or 

girl for the purpose of prostitution or debauchery, or for any other immoral 
14 

In 1978 and 1986, Congress broadened the provisions of the Mann Act to fight sex 

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

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

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

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

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

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

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

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

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

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

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

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

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

i. Enactment of § 2423(b) 

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

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

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

 

purpose . . . .”), with 18 U.S.C. § 2423(a) (“[K]nowingly transport[ing] an individual

who has not attained the age of 18 years in interstate or foreign commerce . . . with 

intent that the individual engage in prostitution, or in any sexual activity for which 

any person can be charged with a criminal offense . . . .”). Section 2423 also 

contains other provisions to address international sex tourism. See 18 U.S.C. §§ 

2423(b)-(f). 
15 

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

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

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

effort against international sex trafficking. 

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

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

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

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

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

purchase and abuse.” Id. This practice, he noted, allowed for “profit from the rape of

children.” Id. at 30,391-92. Representative Jim Ramstad, who proposed a similar 

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

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

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

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

ii. Enactment of § 2423(c) 

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

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

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

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

do so at the time of travel. 
16 

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

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

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

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

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

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

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

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

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

(“Hearings”).

9

 A House Judiciary Committee Report on STPIA noted that a large 

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

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

requirement limited the law’s effectiveness. 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 alien admitted for permanent 

residence who travels in foreign commerce, and engages in 

any illicit sexual conduct with another person shall be 

fined under this title or imprisoned not more than 15 years, 

or both. 

H.R. 4477, § 2, 107th Cong. (2002). 
17 

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

who travel to foreign countries seeking sex with children.” Id. at 3.10

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

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

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

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

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

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

illegal sexual relations with minors.” Id. at 7,633. But unlike § 2423(b), it would do so 

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

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

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

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

* * * * 

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

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

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

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

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

 10 Congressional discussion of STPIA also emphasized the size of the 

international sex trafficking market. Representative Lamar Smith commented that 

“[t]his world sex market is a multi-billion dollar industry that denies children their 

rights, their dignity, and their childhood.” 148 Cong. Rec. 11,222 (2002). 
18 

allow for prosecution regardless of intent. Congress viewed this provision as a critical 

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

market.11

2. The Commerce Clause 

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

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

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

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

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

examine the [FCC] in similar depth.” United States v. Bollinger, 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. 2006) (noting the FCC’s “scope has yet to be subjected to judicial 

scrutiny”). 

 

 11 Section 2423(c)’s more recent legislative history bolsters this understanding. 

In 2013, Congress passed the, Violence Against Women Reauthorization Act 

(“VAWRA”), Pub. L. No. 113-4, 127 Stat. 54 (2013). The Act added the “residing 

clause” to § 2423(c): individuals who “reside[], either temporarily or permanently in 

a foreign country” and engage in illicit sexual conduct may also be prosecuted. Id.

§ 1211, 127 Stat. at 142 (codified at 18 U.S.C. § 2423(c)). Senator Patrick Leahy 

introduced the “residing clause” to VAWRA through his amendment. See S. Amend. 

21, 113th Cong. (2013) (amending S. 47, 113th Cong. (2013) (enacted)); 159 Cong. 

Rec. 1137 (2013) (statement of Sen. Leahy). He emphasized the amendment targeted 

the global sex trafficking market: “We know that young women and girls often just 

11, 12, or 13 years old are being bought and sold,” and that “millions around the 

world are counting on us.” 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 commerce, (2) the instrumentalities of interstate commerce, 

and (3) activities that substantially affect interstate commerce. 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 Congress exceeded its authority under the 

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

514 U.S. at 551. The Court explained that Congress’s power to regulate commerce 

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

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

is local.” Id. at 557 (quotations omitted). “[The ICC’s scope] must be considered in the 

light of our dual system of government.” Id. (quotations omitted). The Court laid out the 

three categories of regulation, demarcating the ICC’s outer limits. See id. at 557-59. 

i. Channels 

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

Patton, 451 F.3d 615, 620 (10th Cir. 2006). It may prohibit the transportation of goods 

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

e.g., Caminetti v. United States, 242 U.S. 470 (1917) (upholding statute prohibiting the 

interstate transportation of women 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 also 

stop the movement of goods and people to prevent immoral or injurious 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 labor conditions). 

ii. Instrumentalities 

Congress may regulate the instrumentalities of interstate commerce, 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 instrumentalities,” such as criminalizing the destruction of a 

grounded aircraft. Id. at 622. 

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

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

Id. But “not all people and things that have ever moved across state 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 necessarily once they are 

unloaded or disembark. 

iii. Substantial effect 

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

“substantially affects” interstate commerce. Lopez, 514 U.S. at 559. The Court has 

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

Min. & Reclamation Ass’n, 452 U.S. 264 (1981); intrastate 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 Court 
21 

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

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

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

commerce. Gonzales v. Raich, 545 U.S. 1, 22 (2005) (quotations omitted). 

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

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

regulated activity. See id. at 21. Legislative findings, however, are neither necessary nor 

determinative in a court’s rational-basis decision. See United States v. Morrison, 529 

U.S. 598, 612 (2000) (congressional findings are helpful, but not required nor sufficient 

for upholding a statute); Raich, 545 U.S. at 21 (particularized findings not necessary).

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

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

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

consider the cumulative effect of all farmers’ production. See Wickard, 317 U.S. at 

127-28. But courts should do so when the activity is economic as opposed to 

noneconomic. See Morrison, 529 U.S. at 613 (holding that the effect of domestic 

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

economic-noneconomic distinction arises from federalism concerns and serves to 

preserve “what is truly national and what is truly local.” Lopez, 514 U.S. at 567-68. 

 12 Although the Court has discouraged the aggregation of noneconomic 

activity, it has not prohibited it. In Morrison, the Court did not “adopt a categorical 

rule against aggregating the effects of any noneconomic activity.” 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 whether the statute contains an express 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 traveled in interstate commerce 

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

firearm’s connection to interstate commerce. Id. (using what was formerly 18 U.S.C. 

§ 1202(a) as an example). 

b. FCC case law

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

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

Pendleton, 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, provide some guidance. 

First, in Board of Trustees of University of Illinois v. United States, 289 U.S. 48 

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

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

at 56. The Court disagreed, holding that Congress had acted within its “constitutional 

authority to regulate Commerce with foreign nations,” id. (quotations omitted), which 

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

making “all other regulations necessary to navigation, to the safety of passengers, and the 
23 

protection of property,” id. at 58 (quotations omitted). This power “comprehend[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 is “exclusive and plenary,” id.

The Court further explained that the federalism constraints limiting Congress’s 

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

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

commerce.” Id. at 57. The university had argued that the Constitution prohibited the 

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

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

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

57-58. The tariff, however, was not a tax passed under the Congress’s taxing power, but 

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

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

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

at 59. Rather, as in international relations, the “United States act[s] through a single 

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

 Second, in Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434 (1979), the 

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

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

 13 As with the ICC, the Court has recognized that, in addition to delegating 

express power to regulate foreign commerce, the FCC implicitly restricts the states 

from regulating foreign commerce. See Japan Line, 441 U.S. at 449 (discussing the 

“negative implications” of Congress’s power under the FCC). 
24 

taxes on its shipping containers 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 foreign commerce, they were foreign instrumentalities—as 

opposed to interstate instrumentalities—and the dormant FCC protected foreign 

commerce from state interference such as the California tax. See id. at 437-38. 

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

uniformity in an area where federal uniformity is essential.” Id. at 448. Normally, if a 

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

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

impermissible burden on interstate commerce will be found.” Id. at 444-45 (quotations 

omitted). State taxes on foreign entities are different, however, 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 international tax structure,” and foreign governments 

may retaliate in their trade policies with the United States. Id. at 450. Compared with the 

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

id. at 448, and thus states are more likely to offend the FCC—rather 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 Broader Under the FCC than the ICC 

“[The] scope [of the FCC] has yet to be subjected to judicial scrutiny.” Clark, 435 

F.3d at 1102. This section compares the boundaries of congressional authority under the 
25 

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

provides Congress broader authority to regulate commerce than the ICC. 

Congressional authority under the FCC is broad because Congress must speak 

with “one voice” in the foreign commerce context. Japan Line, 441 U.S. at 449 

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

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

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

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

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

foreign commerce power to be the greater.” Japan 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 respect of foreign commerce may be broader than when exercised as to 

interstate commerce.”). 

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

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

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

broader authority on Congress. Bd. of Trustees, 289 U.S. at 57 (“The principle of duality 

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

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

a. History 

For the Founders, expansive congressional control over foreign commerce was 

imperative. They wanted the federal government to have enough authority to promote 
26 

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

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

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

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

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

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

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

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

States circumvented federal trade agreements with foreign nations by negotiating their 

own. Id. 

Because foreign commerce was so vital to the American economy, the Founders 

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

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

foreign governments.” Japan Line, 441 U.S. at 449 (quotations omitted). The FCC was 

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

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

Baston, 818 F.3d 651, 668 (11th Cir. 2016), cert. denied, 137 S. Ct. 850 (2017). 

b. Text

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

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

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

Tribes.” U.S. Const. art. I, § 8, cl. 3 (emphases added). The difference between “with”
27 

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

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

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

Clause). 

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

acknowledged that Congress may regulate intrastate activity under the ICC. 22 U.S. 1, 

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

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

introduced into the interior.” Id. But the Court also recognized limits to ICC authority. 

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

commerce which concerns more States than one.” Id. The word “among” restricts 

Congress from regulating “those [internal concerns] which are completely 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 inherent in the very language 

of the Commerce Clause.”). 

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

contrasted commerce “with foreign nations.” Gibbons, 22 U.S. at 195. “[I]n regulating 

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

lines of several States.” Id. Though the Court did not elaborate on the word “with,” it 

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

Congress in regulating intrastate matters—a restraint not present in the FCC. 
28 

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

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

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

United States v. Lara, 541 U.S. 193, 200 (2004) (quotations omitted). The Court has

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

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

Buttfield v. Stranahan, 192 U.S. 470, 493 (1904); see also United States v. Forty-Three 

Gallons of Whiskey, 93 U.S. 188, 194 (1876) (“Congress now has the exclusive and 

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

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

c. Purpose

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

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

 14 The dissent counters that the “difference in prepositions indicates the 

opposite.” Dissent Op. at 20. It posits that “[i]f the [FCC] permitted regulation of 

commerce ‘among foreign nations’ . . . then Congress would be empowered to 

regulate commerce among France, England, and Italy,” suggesting that “among” is 

broader than “with.” 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 use of “among.” Looking at these words in context 

supports our interpretation. In Gibbons, after discussing how “among” prevented 

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

particular State,” the Court stated that the phrase “with foreign nations” means “the 

power of Congress does not stop at the jurisdictional lines of the several States.” 

Gibbons, 22 U.S. at 195. Because “with foreign nations” allows for federal regulation of 

activity within states without limitation, the Court in Gibbons suggests the phrase confers 

broader authority. Moreover, the use of “with” in the Indian Commerce Clause suggests 

broader authority, granting “plenary power” in regulating commerce with Indian tribes. 

See Lara, 541 U.S. at 200 (quotations omitted). 
29 

to enable Congress to regulate interstate commerce in a federal system. It empowers 

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

does not interfere with “truly local” affairs. Lopez, 514 U.S. at 568. The ICC permits 

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

rivalries of local government,” The Shreveport Rate Case, 234 U.S. 342, 350 (1914), but 

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

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

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

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

is national and what is local . . . .” Lopez, 514 U.S. at 557 (quotations omitted). 

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

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

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

with unified and adequate national power.” Bd. of 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 congressional authority is broader under the FCC 

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

certain situations. See id. at 21. But it disagrees we have such a situation here. First, it 

argues that the FCC’s scope is broader only when applied to restricting state regulation in 
30 

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

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

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

“restriction on the States” to legislate, id. at 17, the dissent argues that the Court in Japan 

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

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

 15 The dissent starts with a line in Gibbons: “[Commerce] carr[ies] the same 

meaning throughout the [Commerce Clause] . . . unless there be some plain 

intelligible cause which alters it.” Dissent Op. at 5 (quoting Gibbons, 22 U.S. at 

194). The dissent also “infer[s] that the same proposition applies to the word 

regulate in the Clause.” Id. 

It assumes the Indian Commerce, Foreign Commerce, and Interstate 

Commerce Clauses convey the same power absent a “plain, intelligible cause.” But 

even though “commerce” and “regulate” may “carry the same meaning” throughout 

the Commerce Clause, each modifier—Indian, Foreign, and Interstate—and its 

accompanying preposition—“among” and “with”—describe a different context. See 

Atlantic Cleaners & Dyers, 286 U.S. at 434 (Although “the power to regulate commerce 

is conferred by the same words of the commerce clause with respect both to foreign 

commerce and interstate commerce . . . the power when exercised in respect of foreign 

commerce may be broader than when exercised as to interstate commerce.”). As the 

dissent acknowledges, for example, the Indian Commerce Clause grants Congress a 

broader power than the ICC, despite the meaning of commerce and regulate 

remaining the same in both provisions. See Dissent Op. at 5-6 (quoting Lara, 541 

U.S. at 200). 
31 

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

clear. 

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

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

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

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

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

doing so, see Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 96-98 (1992); Rice v. 

Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), or to authorize the states to regulate, 

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 preempting nor consenting to state regulation—and 

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

Gibbons, 22 U.S. at 236-37 (1824) (Johnson, J., concurring), and Cooley v. Bd. of Port 

Wardens, 53 U.S. 299, 318-19 (1851), has interpreted the Commerce Clause to limit state 

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

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

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 express grant of power 

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

Comptroller of the Treasury of Md. v. Wynne, 135 S. Ct. 1787, 1794 (2015); Kleinsmith 

v. Shurtleff, 571 F.3d 1033, 1039 (10th Cir. 2009). The dormant Commerce Clause 
32 

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

regulatory authority. See, e.g., Japan Line, 441 U.S. 434. 

When the Supreme Court has considered dormant commerce doctrine challenges 

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

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

Commerce Clause are coextensive. See, e.g., Lewis v. BT Inv. Managers, Inc., 447 U.S. 

27, 39 (1980); Philadelphia v. New Jersey, 437 U.S. 617, 622-23 (1978). It follows, 

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

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

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

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

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

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

be greater,” Japan Line, 441 U.S. at 448. The Court’s statement thus sheds light on 

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

on states. 

ii. Sovereignty of other nations 

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

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

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

nations limits the FCC. The dissent presents no relevant authority—text, history, or 
33 

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

FCC. 

An enumerated power both confers and constrains legislative authority. See 

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

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

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

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

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

would otherwise be permissible exercises of its powers.” Id. Federalism and the Bill of 

Rights, for example, externally limit legislative authority under 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 system of government.” 

(quotations omitted)); New York v. United States, 505 U.S. 144, 156 (1992) (“[U]nder the 

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

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

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

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

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

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

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

 16 These limits are reflected in the doctrinal framework we draw from the third 

Lopez category and adapt for the foreign commerce context. See infra Part II.A.4. 
34 

Congress’s enumerated powers, “[is] defined, and limited.” Marbury v. Madison, 5 U.S. 

137, 176 (1803). But because federalism concerns do not apply in the foreign commerce 

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

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

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

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

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

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

Constitution itself or the cases interpreting it.17 

 17 To support its foreign state sovereignty theory, the dissent quotes The 

Schooner Exchange v. McFaddon, 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. 1974)), but their relevance to congressional authority 

under the FCC is unclear. 

First, The Schooner Exchange established that foreign sovereigns and their 

instruments may not be hailed into American courts, which hardly speaks to 

congressional authority to regulate foreign commerce under the FCC. See Verlinden 

B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486 (1983) (describing foreign 

sovereign immunity as a matter of comity and grace and not a constitutional 

restriction). Second, the dissent’s Hamilton quote comes from his thirty-sixth essay 

in 1796 advocating for adoption of the proposed Jay Treaty with Great Britain and 

explaining why the treaty was constitutional. The essay mentions the FCC in its 

discussion distinguishing treaties and laws. But it sheds little light on our issue here, 

other than perhaps Hamilton’s comment that the power to make laws for the nation 

under the FCC reaches its citizens abroad. See The Defence No. XXXVI (Jan. 2, 

1796), in 20 The Papers of Alexander Hamilton (Harold C. Syrett ed. 1974) (the power to 

make laws “acts . . . upon its own citizens . . . without its territory in certain cases and 

under certain limitations. But it can have no obligatory action whatsoever upon a 

foreign nation or any person or thing within the jurisdiction of such foreign Nation.” 

(emphasis added)). Mr. Durham was charged when he returned to the jurisdiction of 

the United States. 
35 

International rules of sovereignty and jurisdiction do not affect the scope of 

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

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

Nigeria, 461 U.S. 480, 486 (1983) (“The Schooner Exchange made clear . . . foreign 

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

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

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

may pass such a statute under the FCC. 

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

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

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

country’s] sovereignty . . . .” Dissent Op. at 23 (quoting The Schooner Exch., 11 U.S. at 

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

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

Co., 499 U.S. 244, 248 (1991). Indeed, the application of a federal statute “so far as 

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

not of legislative power.” Blackmer v. United States, 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 country from enforcing its child 

sex abuse laws against an American traveling there. For example, in Pendleton, 658 F.3d 

at 301, Thomas Pendleton was first arrested, convicted, and sentenced in Germany—

where he had molested a 15-year-old boy—under German law. After he had served his 
36 

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

his illicit conduct. Id. 

iii. Summary 

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

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

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

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

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

v. United States, 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.”). And the dissent’s foreign state sovereignty theory lacks 

merit or support. 

* * * * 

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

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

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

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

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

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

4. The Lopez Categories in the Foreign Commerce Context 

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

under the FCC. The following explains why the third category applies to this case, traces 
37 

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

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

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

analysis is different under the FCC than the ICC. See Bollinger, 798 F.3d at 215 

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

foreign context.”). 

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

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

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

FCC. Dissent Op. at 27; see also Pendleton, 658 F.3d at 308 (finding “Lopez’s ‘timetested’ framework” suitable for the foreign commerce context). The few Supreme Court 

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

and activities affecting commerce with foreign nations. See Bd. of Trustees, 289 U.S. at 

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

movement of goods in foreign commerce); Japan Line, 441 U.S. at 454-55 (invalidating a 

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

of Trustees, 289 U.S. at 58 (recognizing Congress’s authority to legislate under the FCC 

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

added)). 

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

Congress’s powers under the [FCC],” Bollinger, 798 F.3d at 215, they are not an end 

point. In light of the FCC’s broader grant of authority, we consider the third Lopez 
38 

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) (recognizing the FCC’s broader grant 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 statute, Congress criminalized 

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

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

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

See Morrison, 529 U.S. at 609; Lopez, 514 U.S. at 558-59. Because § 2423(c) regulates 

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

category. See Morrison, 529 U.S. at 609.18 

c. Evolution of the third Lopez category

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

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

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

 18 Because we determine that § 2423(c) is constitutional under the third 

category, we need not analyze it under the first and second. We note that § 2423(c) 

does not regulate the instrumentalities of foreign commerce and that the Third Circuit 

has upheld the constitutionality of § 2423(c) as a valid regulation of the channels of 

foreign commerce. See 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 this case. Federalism considerations have played a 

pivotal role. 

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

production, which had been enacted to maintain wheat prices, by applying an aggregateeffects analysis to “those activities intrastate which so affect 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 Filburn had exceeded his allotment, which he had 

harvested for personal consumption, and was fined. Id. at 114-15. Even though his 

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

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

the interstate wheat market and upheld the Act. Id. at 127-28. Through its use of this 

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

greatly expanded the previously defined authority of Congress under the Clause.” 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 1990, which made it a 

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

under the ICC. Id. at 551, 567-68. The Court determined the gun legislation attempted to 

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

substantially affect interstate commerce. Id. at 559, 561. It noted that the statute had 
40 

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

economic activity,” which distinguished this case from Wickard. Id. at 561 (quotations 

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

contained express legislative findings that the regulated activity substantially affected 

interstate commerce. 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, through repetition elsewhere, 

substantially affect any sort of interstate commerce.” Id. at 567. 

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

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

schools. Id. at 561. It rejected the government’s arguments that gun possession near 

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

have a negative effect on the national economy. Id. at 564. The connection was too 

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

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

what is truly local.” Id. at 567-68. If the Court were to follow such logic, the ICC would 

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

of the states. Id. at 565-66. 

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

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

529 U.S. at 601-02. Although Congress had made detailed findings that gender-based 

violence substantially affected interstate commerce, including deterrence of interstate 

travel, the Court declined to draw the connection. Id. at 614-15. It declined to do so 
41 

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

Court discouraged “aggregating the effects of any noneconomic activity.” Id. at 613 

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

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

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

attenuated effect upon interstate commerce.” Id. at 615. 

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

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

between national and local authority seems well founded.” Id. at 615. Were the Court to 

accept aggregated noneconomic activity, Congress could potentially regulate purely 

intrastate matters, such as violent crime and family affairs. Id. at 615-17. 

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

Act (“CSA”) to the home cultivation and possession of marijuana. 545 U.S. at 21-22. 

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

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

reasonably conclude noncommercial marijuana production and possession substantially 

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

a broader economic regulation. Id. at 22, 27. As discussed further below, this case 

supports upholding § 2423(c). 

* * * * 

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

category due to federalism concerns. In Lopez and Morrison, it refused to aggregate 
42 

noneconomic activities to determine whether the regulated activity had a substantial 

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

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

allow congressional regulation of purely intrastate matters.

d. Adapting the third Lopez category to the FCC

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

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

therefore be modified for the foreign commerce context. 

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

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

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

otherwise discourages the aggregation of noneconomic activity, is unnecessary. 

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

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

distinction between what is national and what is local,” Lopez, 514 U.S. at 557, the 

Court distinguished between commercial and noncommercial activity and between 

economic and noneconomic activity. It discouraged aggregating noneconomic 

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

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

ICC power. 

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

constrain application of the substantial-effect analysis in the FCC context. “It has 
43 

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

limited” by “considerations of federalism and state sovereignty.” Japan Line, 441 U.S. at 

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

substantially affects foreign commerce. See id. (collecting cases). Relatedly, the 

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

speak with one unified voice abroad. See Bd. of Trustees, 289 U.S. at 59. 

FCC analysis thus does not require the distinction between economic and 

noneconomic activity. Courts consequently may aggregate both economic and 

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

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

activity substantially affects foreign commerce and is therefore subject to federal 

regulation. 

5. Constitutionality of § 2423(c)

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

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

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

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

commerce. Raich, 545 U.S. at 22. We conclude that Congress had such a rational basis. 

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

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

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

noncommercial—required intent. Because proving intent was too onerous, Congress 
44 

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

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

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

the international sex tourism industry. 

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

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

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

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

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

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

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

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

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

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

Id. The legislative record contains statements expressing concern that the sex tourism 

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

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

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

added a statutory scheme to dismantle sex tourism. See id. In addition to § 2423(c), 

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

sex tourism operators and their businesses; § 2423(e) criminalized conspiracies or 
45 

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

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

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

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

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

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

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

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

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

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

Sensenbrenner). 

The dissent correctly observes that congressional findings “can inform the 

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

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

noncommercial sex on foreign commerce. See 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 look to the legislative history more broadly in 

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

substantially affects foreign commerce. See id. at 22. 

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

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

aimed at sex trafficking. Beginning with the Act of 1907, the United States banned the 
46 

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

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

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

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

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

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

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

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

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

criminalization of sex tourism. 

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

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

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

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 2423(b)’s gap limited 

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

whether commercial or noncommercial and regardless of intent, Congress determined 

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

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

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

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

governing interstate and international travel for sex offenses] is irrelevant because it does 
47 

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

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

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

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

including the enactment of § 2423(c). See Raich, 545 U.S. at 10-15 (discussing drug 

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

containing the CSA); Fullilove v. Klutznick, 448 U.S. 448, 475 (1980) (plurality 

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

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

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

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

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

history of combatting international sex tourism.19

 19 The dissent also suggests that there must be congressional findings 

demonstrating that a larger “regulatory scheme could be undercut unless the 

intrastate activity were regulated.” Dissent Op. at 40 (quoting Lopez, 514 U.S. at 

561). Because, the dissent contends, Congress made no findings that the “failure to 

control noncommercial illicit sexual 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 absence of particularized findings does not call 

into question Congress’[s] authority to legislate.” Raich, 545 U.S. at 21. The Court 

has never required legislative findings, let alone findings showing that a regulatory 

scheme would be undercut without regulation of a particular activity. 

Second, the legislative history demonstrates that § 2423(c) was an essential 

part of the broader regulatory scheme. The intent requirement in § 2423(b) was 

undercutting sex tourism prosecutions. By shedding the mens rea requirement, 

Congress enabled the prosecution of individuals who travel abroad and have illicit 

sex—whether commercial or noncommercial—with minors. Congress could 
48 

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

The dissent recognizes that § 2423(c) contains an “express jurisdictional element” 

tying § 2423(c) to foreign commerce. Dissent Op. at 45. In addition to “engag[ing] in 

illicit sexual conduct,” § 2423(c) requires “travel[] in foreign commerce” as an element 

of the offense. 18 U.S.C. § 2423(c). An express element limits the statute’s reach by 

linking the prohibited illicit activity to foreign commerce. See 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, however, 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 Congress’s explicitly limiting the statute to “foreign 

commerce” and to having a rational basis for its enactment. Although the presence of a 

jurisdictional element is “neither necessary nor sufficient,” it is “certainly helpful” in 

determining whether “the prohibited activity has a substantial effect on” foreign 

commerce. 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 manufacture, 

distribution, or possession a criminal offense. Raich, 545 U.S.at 14; see 21 U.S.C. 

 

rationally believe that without § 2423(c), these same individuals would continue to 

fuel the international sex tourism market. 
49 

§§ 812(c), 841(a)(1). State law allowed California residents Angel Raich and Diane 

Monson to cultivate or possess marijuana for personal medical purposes. Raich, 545 U.S. 

at 5. They challenged § 841(a)(1) of the CSA, arguing it exceeded 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 and Ms. Monson, finding 

it was part of a larger regulation of economic activity and that Congress had a rational 

basis to conclude that home-grown marijuana for medical use substantially affected 

interstate commerce. 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, producing, labeling, packaging, and recordkeeping for 

controlled substances). 

The Court upheld the CSA despite the lack of a congressional finding concerning 

the impact of noncommercial marijuana cultivation on interstate commerce. 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 concluding that Congress had 

a rational basis for believing that failure to regulate the intrastate manufacture and 

possession of marijuana would leave a gaping hole in the CSA.” Id. The Court 

determined that the provision is part of the CSA’s larger regulatory 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 into five schedules, each with a distinct set of controls. 

Id. at 13-14. The CSA’s purpose is to control the supply of and demand for both legal 
50 

and illegal drugs. See id. at 19. Thus, the Court determined that personally cultivated 

marijuana for medical purposes, taken in the aggregate, substantially affected the illicit 

market for drugs, and was subject to regulation under the ICC. 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 legislation. 

Congress “set out to enact legislation that would . . . provide meaningful regulation over 

legitimate sources of drugs to prevent diversion into illegal channels.” Id. at 10. Like 

Congress’s early attempts to regulate sex trafficking, Congress attempted to regulate the 

national drug market early on, passing the Pure Food and Drug Act of 1906 and the 

Harrison Narcotics Act of 1914. Id. It also attempted to regulate the market for 

 20 We have recently interpreted Raich as supporting congressional “regulation 

of noncommercial, purely intrastate activity that is an essential part of a broader 

regulatory scheme that, as a whole, substantially affects interstate commerce (i.e., has 

a substantial relation to interstate commerce).” 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 Service (“FWS”) to promulgate regulations protecting 

threatened or endangered species. Id. at 994. Under these provisions, the FWS 

prohibited the “take”—or the harassment, harm, pursuit, hunting, shooting, 

wounding, killing, trapping, capturing, or collecting—of Utah prairie dogs, a purely 

intrastate species, on nonfederal lands. Id. PETPO, an organization of property 

owners affected by the regulation, argued that Congress exceeded its authority under 

the ICC in authorizing the FWS to promulgate regulations prohibiting the “take” of 

prairie dogs—a noncommercial activity. Id. at 996. 

We upheld the provisions because, under Raich, they were “an essential part of 

the ESA’s broader regulatory scheme which, in the aggregate, substantially affects 

interstate commerce.” Id. at 1002. Even though the regulation protecting prairie 

dogs concerned noncommercial activity, we recognized that Congress had a rational 

basis to conclude that the regulated activity had a substantial relationship to interstate 

commerce. “Congress had a rational basis to believe that providing for the regulation 

of take of purely intrastate species like the Utah prairie dog is essential to the ESA’s 

comprehensive regulatory scheme.” Id. at 1006-07. 
51 

marijuana with the Marihuana Tax Act in 1937. Id. at 11. From these piecemeal 

attempts, Congress finally passed the Comprehensive Drug Abuse Prevention and 

Control Act of 1970—which contained the CSA—to regulate the illegal and legal drug 

markets. Id. at 10. 

Congress followed a similar course in passing the PROTECT Act, building on 

previous attempts to regulate the international market for sex trafficking. Beyond 

criminalizing the transport of prostitutes under the Mann Act, for example, the 

PROTECT Act attempted to address sex tourism comprehensively. It also closed gaps by 

targeting sex tourism operators and not requiring intent for travelers who engage in illicit 

sex. Just as legislative lineage supported a rational basis for congressional action in 

Raich, it also does so for § 2423(c). 

Second, the Court in Raich examined the home-grown marijuana provision within 

the broader statute and recognized that it was part of the CSA’s larger scheme to regulate 

commerce. Id. at 23 (noting the CSA was a “valid statutory scheme” regulating the illicit 

drug market). It was “of no moment” that this larger scheme both envisioned and 

captured some purely intrastate activity. Id. at 22. Because § 841(a)(1) was one 

component of a regulatory framework, the Court “refuse[d] to excise individual 

components of that larger scheme.” Id. Thus, the Court upheld the CSA’s regulation of 

noncommercial cultivation of medical marijuana as a valid part of a larger scheme to 

regulate the controlled substances market.

Similarly, § 2423(c) is part of the PROTECT Act’s larger scheme to combat sex 

tourism. Congress passed § 2423(c) as a vital component to regulate the illicit 
52 

international market for sex. The § 2423 provisions work together to curb the trafficking 

and sexual exploitation of minors abroad. Section 2423(a) targets the trafficking of 

minors across state and international borders; section 2423(b) targets those who travel 

abroad with the intent to engage in illicit sexual acts with minors; section 2423(c) targets 

those who travel without intent to engage in such acts; and § 2423(d) targets those who 

operate businesses that facilitate such illicit sexual conduct abroad. Together, the 

provisions curb the supply and demand in the sex tourism industry. That § 2423(c) 

captures intranational, noncommercial activity is “of no moment,” see id. at 22, because 

it is a part of a statutory structure aimed at regulating foreign commerce—the 

international sex tourism industry.21

e. Rational basis standard 

Rational basis is a deferential standard. The dissent mistakenly suggests that 

because the regulated activity must have a substantial effect on commerce and because 

noncommercial sex is noneconomic, such an effect is impossible. See Dissent Op. at 37-

 21 The Raich Court recognized that Congress exercised its authority under the ICC 

and the Necessary and Proper Clause to pass “comprehensive legislation to regulate” the 

illicit substances market. Raich, 545 U.S. at 22. “Congress was acting well within its 

authority to ‘make all Laws which shall be necessary and proper’ to ‘regulate 

Commerce . . . among the several States.’” Id. (quoting U.S. Const. art. I, § 8, cl. 3 and 

cl. 18). Because Congress had “a rational basis for believing that failure to regulate the 

intrastate manufacture and possession of marijuana would leave a gaping hole in the 

CSA,” the regulation of noncommercial, intrastate activity—home cultivation and 

possession of medical marijuana—was “of no moment.” Id. The Court refused to 

“excise individual components of that larger scheme.” Id. It was therefore “necessary 

and proper” under Congress’s ICC power to regulate the noncommercial, intrastate 

activity. Id. Because the Government does not rely on the Necessary and Proper Clause 

to defend § 2423(c), we do not address that provision. 
53 

38. The dissent criticizes the government for its failure to 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 commercial sex tourism,” id. at 

40. It demands “data [] that [show] prosecutions of noncommercial child sexual abuse 

reduce the incidence of commercial abuse” because noncommercial sex is not a “fungible 

commodit[y].” Id.

22 

But under the proper standard of review, “[w]e ask not whether, as judges, we 

believe the challenged statute has a substantial effect on interstate commerce, but 

whether Congress could reasonably have thought so.” Patton, 451 F.3d at 625. As 

the Court emphasized in Raich: “[W]e stress that the task before us is a modest one. 

We need not determine whether respondents’ activities, taken in the aggregate, 

substantially affect interstate commerce in fact, but only whether a ‘rational basis’ 

exists for so concluding.” Raich, 545 U.S. at 22. Here, the legislative history, the 

overall statutory scheme, and jurisdictional hook all evince that Congress had a 

rational basis for concluding that, in the aggregate, Americans who travel abroad and 

 22 The dissent emphasizes the economic and noneconomic distinction. See 

Dissent Op. at 34 (“The fact that noncommercial nonconsensual sexual activity is not 

economic activity is extremely important, probably dispositive, in determining 

whether it is subject to the third category of regulation of commerce.”). But this 

distinction arose from federalism concerns in the ICC context, and those concerns do 

not apply here. 

Even in the ICC context, the Court has never “adopt[ed] a categorical rule 

against aggregating the effects of any noneconomic activity.” Morrison, 529 U.S. at 

613. The Court has upheld congressional regulation of noncommercial activity, see 

Raich, 541 U.S. at 21-22, and this court has upheld laws regulating what appeared to 

be noneconomic activity. See PETPO, 852 F.3d at 1002 (upholding the protection of 

prairie dogs under the ESA). 
54 

have noncommercial sex with minors substantially affect the international sex 

tourism market.23 Congress determined, after years of experience with the evolving 

legislative framework, that it needed § 2423(c) to complete the package. We cannot 

say this choice was unreasonable.

6. Legal Landscape

Both of the circuits that have examined the constitutionality of § 2423(c)’s 

criminalization of noncommercial illicit sexual conduct abroad under the FCC have 

upheld it. See 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 connection 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) (upholding 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 about § 2423(c)’s constitutionality under the FCC).24 

 23 The dissent relies on the three-factor framework laid out in Patton, but 

eschews a holistic analysis. It recognizes that three factors—(1) the activity’s 

relation to commerce, (2) congressional findings, and (3) jurisdictional hook—are 

relevant to our substantial-effect analysis, see Dissent Op. at 35-36, but analyzes 

them separately from each other, see id. at 36-48. Here, we consider the legislative 

history, the regulatory scheme, and the jurisdictional hook together in “answer[ing] 

[the] question” of “whether Congress had a rational basis to find that the regulated 

activity, taken in the aggregate, would substantially affect interstate commerce.” 

Patton, 451 F.3d at 623; see also Raich, 545 U.S. at 10-11, 22-23. 

24 The Ninth Circuit also has upheld § 2423(c) under the FCC in a challenge to 

the provision’s prohibition of commercial illicit sexual conduct. See Clark, 435 F.3d 
55 

Two district court opinions in the District of Columbia have held 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 noncommercial 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, unlike 

here, these cases concerned individuals charged under § 2423(c)’s “residing clause.” See 

18 U.S.C. § 2423(c) (“Any United States citizen . . . who travels in foreign commerce or 

resides, either temporarily or permanently, in a foreign country, and engages in any illicit 

sexual conduct . . . .” (emphasis added)). The district courts lacked a jurisdictional hook 

to “foreign commerce,” which is present in our case. See, e.g., Reed, 2017 WL 3208458, 

at *12. Moreover, the district courts emphasized the sexual abuse at issue was 

noneconomic and its connection to international sex tourism was too attenuated to have a 

“substantial effect” on foreign commerce. See, e.g., id. In coming to this conclusion, 

they focused on a lack of particularized legislative findings and history. As explained 

above, the Supreme Court has never required “particularized findings,” and such a 

limited focus overlooks the legislative history laid out in this opinion and § 2423(c)’s 

place in a broader regulatory scheme. 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) without addressing its 

constitutionality. See United States v. Pepe, 895 F.3d 679 (9th Cir. 2018). 
56 

7. Conclusion

In passing § 2423(c), Congress had a rational basis to conclude it was regulating 

activity that substantially affects foreign commerce. In particular, it could reasonably 

decide that foreign travel followed by noncommercial sex with minors—in the 

aggregate—substantially affects the international market for sex tourism. We therefore 

uphold § 2423(c) as applied to Mr. Durham as a permissible exercise of congressional 

authority under the FCC. 

Section 2423(c)’s legislative history, place in the broader regulatory scheme, and 

jurisdictional hook indicate Congress’s rational basis for determining the activity’s 

substantial connection to foreign commerce. In 2002, the congressional sponsors of 

§ 2423(c) recognized that the sex tourism industry was expanding and that the 

“growing . . . industry” fueled human sex trafficking, a massive illicit international 

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

attempted to curtail such markets with the PROTECT Act in 2003. Section 2423(c)—and 

its accompanying provisions—target sex tourists and operators, commercial and 

noncommercial acts, and travel with and without intent to engage in illicit sexual acts. 

Specifically, § 2423(c) closed the enforcement gap created by § 2423(b)’s intent 

requirement. Congress had a rational basis to conclude that, without § 2423(c), the 

failure to capture such behavior would substantially affect foreign commerce—here sex 

tourism. 

Thus, under the FCC, Congress permissibly exercised its authority in passing 

§ 2423(c). 
57 

B. Issue Two: Brady Claim

In his supplemental motion for new trial under Federal Rule of Criminal 

Procedure 33, Mr. Durham alleged that the Government suppressed evidence 

favorable to the accused in violation of Brady v. Maryland, 373 U.S. 83 (1963). The 

district court denied the motion, and Mr. Durham appeals the Brady ruling. We 

affirm because Mr. Durham has not shown by a preponderance of the evidence that 

nondisclosure of the evidence prejudiced his case. 

1. Additional Procedural Background

a. Trial testimony

At trial, Dr. Alawiya Abdulkadir Mohamed testified about the victims’ 

medical records. ROA, Vol. 12 at 1178 (TT 564). In June 2014, Dr. Abdulkadir 

supervised the outpatient clinic in Kenya where the victims were examined. Id. at 

1179-80 (TT 565-66). Although she did not examine the children, she reviewed the 

Post Rape Care (“PRC”) forms prepared by the clinician who did on June 18, 2014. 

Id. at 1182-83, 1188-89 (TT 568-69, 574-75). Dr. Abdulkadir prepared Medical 

Examination Reports based on the PRCs. Id. at 1183 (TT 569). Her testimony 

included the following: 

Q. [C]an you explain to the jury what the hymen is on a 

female? 

A. Okay. So the hymen is a membrane which covers the 

vagina and it’s -- it doesn’t fully cover the vagina, so 

there’s a portion which is slightly open to allow the 

menstrual flow. So it’s a membrane which is usually 

most people get born with it and it’s usually present in 

kids and -- yes. 

Q. If a hymen is perforated, what does that mean? 
58 

A. Okay. We -- the hymen could be perforated due to 

several reasons. One of them would be due to sexual 

assault. The others would be due to extraneous 

exercises involving the groin region or falling astride, 

like falling on a wall, having bicycle accidents and 

horseback riding. Those are the common things which 

break the hymen. 

Id. at 1185-86 (TT 571-72). She further testified that five of the six girls had a 

perforated hymen and that would not be normal for girls their ages. Id. at 1187-88 

(TT 573-74). On cross-examination Dr. Abdulkadir testified: 

Q. Now, you talked a lot about a perforated hymen? 

A. Yes. 

Q. Now, a hymen -- a hymen can be in very different 

shapes; is that right? 

A. True. 

Q. It can be flat; is that right? 

A. Yes. 

Q. It can be round, some are bigger and some are smaller? 

A. Bigger in terms of? 

Q. Of their size. Some women will have a bigger hymen 

than others? 

A. It’s a membrane, so it’s more thickness than bigger, it’s 

not -- 

Q. More thickness? 

A. The dimensions are not three-dimensional. 

Q. If a woman has not started menstruating yet, would her 

hymen -- it’s called non-estrogenized; is that right? 

A. Yes. 

Q. And that means that the hymen is more rigid and hard? 

A. Yes. 

Q. And so that would be the situation for children who 

have not yet hit their menstrual cycle; is that right? 

A. Yes. 

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 even if the assaults occurred a month before the 

examinations, the exams were conducted because “[t]he hymen doesn’t come back. 

So we’re looking out for the hymen. It doesn’t regenerate, so --.” Id. at 1214 (TT 

600), see also id. at 1221 (TT 607). She agreed that “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 assault nurse 

examiner, who was present in the courtroom when Dr. Abdulkadir testified. Id. at 

1581, 1585 (TT 967, 971). Nurse Dunson testified that all hymens have a hole in 

them, that preadolescent children do not usually have physical injuries following a 

sexual assault, and that hymens have different shapes and sizes. Id. at 1594-96 (TT 

980-82). As for the term “perforated hymens,” she testified: 

Q. Now, what about -- what was the term used on the 

medical records as far as the hymen; do you recall? 

A. Yes. They used the word “perforated.” 

Q. And the examiner who conducted -- who viewed the 

children didn’t testify. What in your mind is -- does 

that mean, “perforated hymen”? 

A. Truthfully, I don’t know. We don’t use that term 

anymore. It hasn’t been used since I’ve been doing 

exams, which is since 2003. I think when the general 

population hears the word “perforated,” we think of a 

tear or a hole that’s not supposed to be there, so I don’t 

know what that means because I don’t use that. 

*** 

Q. So “perforated” could mean a tear, it could mean just 

the natural opening of the hymen. We don’t know at 

this point; is that right? 

A. I wouldn’t speculate what that means. 
60 

Id. at 1596-97 (TT 982-83). She conceded that the term “perforated hymen” might 

be commonly used elsewhere, and that it appears in the Kenyan protocol for sexual 

assault examinations. Id. at 1621, 1626 (TT 1007, 1012). Although the term had not 

been used since she started doing examinations in 2003, she said it was once used in 

the United States. 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 reviewed an article that said “minor

abrasions and lacerations usually heal within about three to four days.” Id. She said 

that “statistics say that 90 to 95 percent of all children exams, regardless of what the 

disclosure, are normal.” Id. at 1599 (TT 985). She also testified that in examinations 

of children who have been sexually assaulted, “there usually isn’t an injury. Children 

are usually not injured.” Id. at 1616 (TT 1002). She also agreed that a “positive 

finding” for five of the six children 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 moved for leave to file a supplemental 

motion for a new trial, which was granted, and he filed his memorandum in support 

on October 27. Mr. Durham alleged the Government violated his right to due process 

under Brady because the prosecutor in the case, Assistant United States Attorney 
61 

(“AUSA”) Robert Don Gifford, failed to disclose evidence favorable to the accused. 

ROA, Vol. 3 at 505-06.25 

The supplemental motion stemmed from two memoranda that the Oklahoma 

County District Attorney, David Prater, sent to the district court after the trial. On 

September 28, 2015, the court sent them to the parties’ counsel. ROA, Vol. 3 at 812. 

The memoranda recounted telephone conversations on the evening of June 15, 2015, 

the day the prosecution rested its case-in-chief. 

On August 16, 2015, Oklahoma County Assistant District Attorney (“ADA”) 

Gayland Geiger wrote the first memorandum. It described his June 15 telephone 

conversation with AUSA Gifford: 

I asked Gifford about the facts of his case. He said there 

were 5 or 6 or 7 (don’t remember the exact number) of 

female victims ages 6 to 14. All but one of them had a 

perforated hymen. He indicated this evidence was 

presented by the government’s medical witness. . . . A 

reviewing doctor actually testified to the perforated 

hymens. He said as best as they could tell, the sexual 

assault exams were done about 6 weeks after the abuse 

occurred. He said the defense was calling a sexual assault 

expert, and he did not know what the expert would say. . . . 

I told him that I have not heard the term perforated hymen. 

I told him it is very unusual to have physical findings in 

children; that it is extremely unusual to have physical 

findings 6 weeks after the event; that even if there were an 

injury, it would have healed in that amount of time; and, 

that it is extremely unusual and almost unheard of to have 

physical findings in 5 of 6 or 6 of 7 victims. I called 

[Physician Assistant] Donaldson and joined her for a three-

 25 Mr. Durham also alleged in his initial motion for new trial that the 

Government violated Brady because it suppressed video data of his conversation with 

Ms. Menja, in which he confessed to certain allegations against him. The district 

court rejected this claim, and Mr. Durham has not pursued it on appeal. 
62 

way conversation with Gifford. She told him the same 

things. We together told him that there are legitimate 

medical studies showing even pregnant girls have normal 

exams. Donaldson explained the anatomy and that a 

perforated hymen is a normal finding. . . . I expressed my 

opinion to him that [] he cannot cross examine the defense 

expert in good faith on those issues, because medical 

research and the legitimate medical community share those 

opinions. I encouraged him to instead contact Dr. Brown 

to be a rebuttal witness to use to say even if the African 

exams are incorrect, it still does not mean sexual abuse did 

not occur. 

Id. at 813. 

At ADA Geiger’s request, Dr. Ryan Brown, Chair of the Child Protection 

Committee at the University of Oklahoma Children’s Hospital, wrote the second 

memorandum about his discussions with AUSA Gifford on the night of June 15: 

We had discussed what a performed hymen meant to me. I 

had told him that to me, it meant that the hymen had a hole 

in it, which is normal. I didn’t know if that was what the 

African physician had meant by it, but we don’t normally 

use that language to describe hymens here in the US. . . . I 

had also stated that an imperforate hymen, is still normal, 

but is actually not a common finding. He had stated to me 

that the African physician had stated that he had found 5 of 

the 6 young ladies in the case to have perforated hymens 

and that the physician was calling that an abnormal 

finding. I spoke with him that actually it is rare to have 

findings in sexual abuse exams, especially in your 

preadolescent children. I told him that about 95% of the 

time we will have a normal finding, and of the 5%, 2/3 of 

the evidence is found on the clothing or bed. I also 

reiterated that a normal exam does not rule in or rule out a 

sexual encounter. Also, that it would be quite rare for 5 

individuals to have the same findings on exam in regards 

to a sexual assault, unless the perpetrator was using some 

type of instrumentation, I also spoke about how quickly 

findings on exams can heal, IF there were findings to begin 

with. . . . Again I stated that it would be a small chance to 
63 

have abnormal findings on a preadolescent sexual abuse 

exam, and to have multiple children with the same finding, 

other than normal, would be rare. I also stated again that 

time is of the essence and rape exams done after a week 

could be normal even if there was a finding to begin with 

since the tissue heals so quickly. 

Id. at 816. 

In his supplemental motion, Mr. Durham argued that AUSA Gifford had failed 

to disclose the information he learned in his June 15, 2015 conversations in violation 

of Brady. In opposition, the Government argued there was no Brady violation 

because the information at issue was available to the defense and because it was not 

material in light of Nurse Dunson’s testimony. 

The district court denied the Brady claim based on the Government’s second 

argument. It first said that, although the information provided by Dr. Brown was 

available from other sources, the fact it came from Dr. Brown was not. But the court 

concluded that the Government’s failure to apprise Mr. Durham of Dr. Brown’s 

statements did not deprive him of a fair trial because of Nurse Dunson’s “vigorous 

opposition” to Dr. Abdulkadir’s testimony. ROA, Vol. 3 at 810.26

 26 The motion also alleged that AUSA Gifford had failed to correct Dr. 

Abdulkadir’s false testimony in violation of Napue v. Illinois, 360 U.S. 264 (1959). 

ROA, Vol. 3 at 500-04. The district court denied the Napue claim, concluding there 

was no evidence that Dr. Abdulkadir committed perjury rather than testified 

inconsistently with Mr. Durham’s expert, Nurse Dunson. Id. at 808-09. On appeal, 

Mr. Durham does not present a Napue argument. He concedes that he “cannot prove 

that Dr. Abdulkadir herself knew [her testimony] was false” and thus that his Napue 

claim is foreclosed by United States v. Garcia, 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 testimony was material.” (emphasis added)); see also United 
64 

2. Analysis 

a. Standard of Review

“Our review of a Brady claim asserted in the context of a Rule 33 motion for a 

new trial is de novo, with any factual findings reviewed for clear error.” United 

States v. Torres, 569 F.3d 1277, 1281 (10th Cir. 2009); see United States v. Garcia, 

793 F.3d 1194, 1205 (10th Cir. 2015). “[W]hether suppressed evidence is material is 

a mixed question of law and fact which we also review de novo.” Douglas v. 

Workman, 560 F.3d 1156, 1172 (10th Cir. 2009). 

b. Legal Background

Under Federal Rule of Criminal Procedure 33, “the court may vacate any 

judgment and grant a new trial if the interest of justice so requires.” Mr. Durham’s 

Rule 33 motion was based, in part, on an alleged Brady violation. 

In Brady, the Supreme Court held “that the suppression by the prosecution of 

evidence favorable to an accused upon request violates due process where the 

evidence is material either to guilt or to punishment, irrespective of the good faith or 

bad faith of the prosecution.” 373 U.S. at 87. The Court later held that the duty to 

disclose such evidence applies even when the accused has made no request. United 

States v. Agurs, 427 U.S. 97, 107 (1976). Brady applies to impeachment evidence, or 

evidence affecting witness credibility, “[w]hen the reliability of a given witness may 

well be determinative of guilt or innocence.” Giglio v. United States, 405 U.S. 150, 

 

States v. Caballero, 277 F.3d 1235, 1244 (10th Cir. 2002) (“Even postulating tension 

between [a witness]’s responses on direct and cross, such inconsistency alone does 

not establish the knowing use of perjured testimony.” (emphasis added)). 
65 

154-55 (1972) (quotations omitted); see also United States v. Bagley, 473 U.S. 667, 

676-77 (1985). 

To establish a Brady violation, “[1] [t]he evidence at issue must be favorable 

to the accused, either because it is exculpatory, or because it is impeaching; [2] that 

evidence must have been suppressed by the State, either willfully or inadvertently; 

and [3] prejudice must have ensued.” Strickler v. Greene, 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 established the prejudice 

necessary to satisfy the ‘materiality’ inquiry.” 527 U.S. at 282. The evidence is 

material and its nondisclosure is prejudicial “only if there is a reasonable probability 

that, had the evidence been disclosed to the defense, the result of the proceeding 

would have been different.” 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 Gifford learned from the June 15 conversations 

was favorable to the defense, and he did not disclose the conversations to defense 

counsel. 27 But even assuming Mr. Durham could show the first two elements of 

 27 In this regard, the concerns of DA Prater and ADA Geiger were well taken. 

See ROA, Vol. 3, at 813-15. 
66 

Brady were met,28 he has not established prejudice because the information was not 

material in light of Nurse Dunson’s testimony. We therefore affirm the district 

court’s denial of Mr. Durham’s Brady motion. 

AUSA Gifford’s June 15, 2015 conversations with ADA Geiger, Ms.

Donaldson, and Dr. Brown were was not material in light of the trial record. On June 

16, Mr. Durham called Nurse Dunson to testify. She said there are “usually not 

injuries with children” following a sexual assault, ROA, Vol. 12 at 1598 (TT 984), 

that a physical finding was less likely if the exam occurred five days after an assault, 

id. at 1597 (TT 983), that “minor abrasions and lacerations usually heal within about 

three to four days,” id. at 1598 (TT 984), that “perforated hymen” was an antiquated 

term no longer in use, id. at 1626 (TT 1012), and that “statistics say that 90 to 95 

percent of all children exams, regardless of what the disclosure, are normal,” id. at 

1599 (TT 985). Nurse Dunson therefore testified to the information AUSA Gifford 

learned during his June 15 conversations, including the rarity of physical findings in 

cases of child sexual assault and that lacerations to the hymen heal quickly. ROA, 

Vol. 3 at 813-15. 

As the district court said, Mr. Durham has not shown prejudice due to “Ms. 

Dunson’s vigorous opposition to Dr. Abdulkadir’s testimony.” ROA, Vol. 3 at 810. 

The jury received the information from Mr. Durham’s own expert, Nurse Dunson. 

 28 The Government argues it did not suppress because the defendant knew or 

could have acquired the information from another source. Aplee. Br. at 22. Due to 

our disposition of the Brady issue on lack of prejudice, we do not address this 

argument. 
67 

She provided testimony that was the same as or comparable to the information from 

Dr. Brown about perforated hymens, the likelihood of findings during sexual abuse 

examinations, that normal findings do not rule out sexual assault, the rarity of the 

same findings in multiple children, and the speed of healing. Compare ROA, Vol. 3 

at 816 with ROA, Vol. 12 at 1595-96, 1598-99, 1616-18, 1626, 1631 (TT 981-82, 

984-85, 1002-04, 1012, 1017). 

Mr. Durham cannot show prejudice because Nurse Dunson rebutted each of 

Dr. Abdulkadir’s points that may otherwise have been impeached by the information 

that AUSA Gifford learned in the June 15 conversations. Indeed, Mr. Durham admits 

on appeal that Nurse Dunson’s testimony “largely rebutted Dr. Abdulkadir’s claims.” 

Aplt. Br. at 23-24. Taking the differences between the experts’ opinions into 

account, we still conclude that there was no Brady violation because Mr. Durham has 

not shown “a reasonable probability that, had [Dr. Brown’s information] been 

disclosed to the defense, the result of the proceeding would have been different.” 

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 Statements about Child Pornography 

and Homosexuality

Mr. Durham argues that the district court’s admission of his out-of-court 

statements that he had struggled with child pornography and homosexuality violated 

(1) Federal Rule of Evidence 404(b) because the statements were used to show 
68 

propensity to commit the charged offenses, (2) Federal Rule of Evidence 401 because 

the statements were irrelevant, and (3) Federal Rule of Evidence 403 because the 

statements were unfairly prejudicial. Because the district court did not abuse its 

discretion, we affirm. 

1. Standard of Review

We review the admission of evidence for abuse of discretion “and will not reverse 

if the district court’s ruling falls within the bounds of permissible choice in the 

circumstances and is not arbitrary, capricious or whimsical.” United States v. Willis, 826 

F.3d 1265, 1270 (10th Cir. 2016) (quotations omitted). 

2. Additional Factual Background

a. Evidence about child pornography and homosexuality 

The prosecution presented evidence at trial about two separate times when Mr. 

Durham said he had struggled with child pornography or homosexuality. 

First, Ms. Wambugu, Ms. Menja, Mr. Mutonga, and Mr. Jeffries testified about 

statements made at the June 13, 2014 meeting at Upendo. They each said that during the 

meeting, Mr. Durham went outside to talk to Ms. Wambugu, ROA, Vol. 12 at 721, 827, 

998, 1132, and that, upon returning with Ms. Wambugu to the sitting room, Mr. Durham 

said he had struggled with child pornography and homosexuality. Id. at 724, 828, 999. 

According to Ms. Wambugu, Mr. Durham said he could not remember molesting the 

children, but could “only remember . . . he ha[d] been struggling with child pornography 

and homosexuality.” ROA, Vol. 12 at 724 (TT 110). Ms. Menja testified that Mr. 

Durham “said that he needed help because he has been struggling with child pornography 
69 

and homosexuality.” Id. at 828 (TT 214). Mr. Mutonga testified that Mr. Durham said 

he “needed to apologize, he needed to be forgiven,” and that he “struggled with 

homosexuality and child pornography.” Id. at 1133 (TT 519). In his testimony, Mr. 

Durham admitted saying at this meeting that he struggled with homosexuality, but denied 

mentioning child pornography. Id. at 1848-49 (TT 1234-35). 

Second, the jury was shown the Seagull Confession Videos that were recorded on 

June 17. At the beginning of one of the videos, Mr. Durham stated he could not 

remember what happened. Ms. Menja responded that if Mr. Durham did not have a 

memory of the events and could not describe them, they would “want the police [t]here to 

deal with it first.” Gov’t Exh. 4 at 1:03-1:10. Mr. Durham said, “I’ve told you the truth, 

I’ve told you that I’ve struggled with this my whole life . . . .” 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 alleged struggles 

with “wanting to touch children”29 or “erotic pornography,” ROA, Vol. 2 at 282, and also 

moved to exclude evidence “regarding [his] sexual history and sexual orientation,” id. at 

345. The district court denied these motions at a pre-trial hearing. On the pornography, 

the Government argued the statement was “inherent as a part of [Mr. Durham’s] 

confession,” and the court seemed to agree. ROA, Vol. 12 at 523. The court admitted 

the statements about homosexuality because “when a defendant is ostensibly explaining 

 29 Although Mr. Durham sought to exclude the statement about a temptation to 

touch children before trial, he does not challenge its admission on appeal. 
70 

what he’s done, that . . . would be very relevant and probative and admissible.” Id. at 

531. 

When Ms. Wambugu testified at trial about the June 13 statements, the court asked 

if Mr. Durham would like a limiting instruction to the jury that Mr. Durham was “not on 

trial for child pornography or homosexuality.” Id. at 725 (TT 111). Defense counsel 

declined, saying he “d[idn’t] see how there c[ould] be any limiting instruction that 

cure[d] [the testimony’s] prejudice,” so none was given. Id. at 725-26 (TT 111-12). 

Mr. Durham based his motion for a new trial in part on the admission of the 

evidence about his statements concerning child pornography and homosexuality. See 

ROA, Vol. 3 at 316-324. The district court ruled he was not entitled to a new trial based 

on the admission of the statements. Id. at 785. It said the statement about child 

pornography was relevant “because it was offered by Defendant as a justification for the 

behavior of which he was accused,” and found any prejudicial effect of the evidence did 

not substantially outweigh its probative value. ROA, Vol. 3 at 786. As to the statements 

about homosexuality, the court found “that the potential prejudice of admitting 

Defendant’s statements did not outweigh their probative value.” Id. at 785. “[D]espite 

the potential for prejudice to Defendant . . . the evidence herein was relevant, largely 

because it was offered by Defendant as some type of explanation or justification when he 

was accused of engaging in inappropriate sexual activity with children at Upendo.” Id. at 

785-86. 

 
71 

3. Legal Background

a. Rule 404(b)

Federal Rule of Evidence 404(b) prohibits evidence of a “crime, wrong, or 

other act . . . to prove a person’s character in order to show that on a particular 

occasion the person acted in accordance with the character.” 

“When we apply Rule 404(b), we distinguish between evidence that is 

extrinsic or intrinsic to the charged crime.” United States v. Kupfer, 797 F.3d 1233, 

1238 (10th Cir. 2015). Rule 404(b) prohibits evidence of “other acts,” “but this rule 

does not cover evidence that is considered intrinsic” to the charged crime. Id. 

(quotations omitted). Evidence is intrinsic when it is “directly connected to the 

factual circumstances of the crime and provides contextual or background 

information to the jury.” Id. (quotations omitted). 

b. Rules 401 and 402

Evidence is admissible only if it is relevant. Fed. R. Evid. 402. Evidence is 

relevant if “it has any tendency to make a fact more or less probable than it would be 

without the evidence; and . . . the fact is of consequence in determining the action.” Fed. 

R. Evid. 401. 

c. Rule 403

Otherwise admissible evidence may be excluded under Rule 403 if its 

“probative value is substantially outweighed by . . . unfair prejudice.” Fed. R. Evid. 

403. “‘Unfair prejudice’ within its context means an undue tendency to suggest [a] 

decision on an improper basis, commonly, though not necessarily, an emotional 
72 

one.” United States v. Silva, 889 F.3d 704, 712 (10th Cir. 2018) (quoting Fed. R. 

Evid. 403 advisory committee note to 1972 proposed rules). “[A]s to a criminal 

defendant, [it] speaks to the capacity of some concededly relevant evidence to lure 

the factfinder into declaring guilt on a ground different from proof specific to the 

offense charged.” Old Chief v. United States, 519 U.S. 172, 180 (1997). 

“The district court has considerable discretion in performing the Rule 403 

balancing test, but exclusion of evidence under Rule 403 that is otherwise admissible 

under the other rules is an extraordinary remedy and should be used sparingly.” 

Silva, 889 F.3d at 712 (quotations omitted). 

4. Analysis

The district court did not abuse its discretion when it determined the challenged 

statements were (1) intrinsic to the charged crimes, (2) relevant, and (3) not unfairly 

prejudicial. 

a. Rule 404(b)

The district court did not abuse its discretion by holding the statements were 

intrinsic rather than Rule 404(b) evidence.30 Although the district court did not use 

the word “intrinsic,” it viewed the statements as intrinsic to the charged crimes 

because they were part of Mr. Durham’s denials and eventual confession to the 

crimes. See ROA, Vol. 12 at 523, 531; ROA, Vol. 3 at 785-86. 

 30 Although the statements at issue “are party admissions under [Federal Rule 

of Evidence] 801(d) and thus not hearsay, they must nevertheless also be analyzed 

for admissibility under Rule 404(b)” because they reference other acts that could 

have been used as propensity evidence. United States v. Oberle, 136 F.3d 1414, 1418 

(10th Cir. 1998). 
73 

Mr. Durham made both statements at issue when the Upendo volunteers 

confronted him about the children’s allegations. The statements were intrinsic 

evidence because they provided “contextual or background information” regarding 

his actions when confronted with the allegations against him and his confession at the 

Seagull on June 17. Kupfer, 797 F.3d at 1238. 

The fact that the statements were made after the charged conduct had occurred 

does not make them extrinsic. For example, in United States v. Bajoghli, 785 F.3d 957 

(4th Cir. 2015), the Fourth Circuit held it was an abuse of discretion for the district court 

to exclude evidence of a defendant’s post-scheme conduct, id. at 966. In that case, the 

government sought to introduce evidence 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 allegations against him. Id. at 964 

(alteration and quotations omitted). 

The district court did not abuse its discretion by holding the statements were 

intrinsic evidence and not subject to the Rule 404(b) bar. 

b. Rules 401 and 402

As intrinsic evidence, the statements satisfied Rule 401’s “any tendency” 

relevance standard. See Daubert v. Merrell Dow Pharm., 509 U.S. 579,587 (1993) 

(calling Rule 401’s standard as “liberal”). In the face of allegations that he had 
74 

molested children and that two of his alleged victims were male, Mr. Durham’s 

statements that he had struggled with both child pornography and homosexuality 

provided context and explanation, making them relevant and admissible under Rules 

401 and 402. Mr. Durham has not presented any persuasive argument on appeal that 

the district court abused its discretion in determining the statements not only 

constituted intrinsic evidence but also met “the minimal relevance requirements of 

Rule 401.” United States v. Spence, 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 did not abuse its discretion in admitting the statements over Mr. 

Durham’s Rule 403 challenge. 

As described, the statements were probative as intrinsic to Mr. Durham’s 

explanation for his conduct. The district court acted within its discretion to determine 

that the potential for unfair prejudice did not substantially outweigh the statements’ 

probative value.31 

We affirm the district court’s admission of the statements about struggles with 

child pornography and homosexuality. 

 

 31 We note the district court offered a limiting instruction on this evidence, 

which defense counsel rejected. ROA, Vol. 12 at 725-26 (TT 111-12). The 

instruction likely would have lowered the prejudicial effect of the evidence, and Mr. 

Durham should not now benefit from declining it. 
75 

D. Issue Four: Prosecutorial Misconduct

Mr. Durham contends that the district court erred when it denied the part of his 

Rule 33 motion for a new trial which alleged that the Government made improper 

propensity statements about his struggle with homosexuality. Aplt. Br. at 34-39. The 

statements occurred during the Government’s cross-examination of Mr. Durham and its 

closing argument. Because Mr. Durham failed to contemporaneously object to the 

alleged improper statements on prosecutorial misconduct grounds, we review for plain 

error. We find none and affirm the district court’s denial of Mr. Durham’s motion for a 

new trial on this issue. 

1. Standard of Review

“Ordinarily, we review the trial court’s decision to grant or deny a new trial for 

abuse of discretion, and will reverse the denial of a motion for a new trial only if the trial 

court made a clear error of judgment or exceeded the bounds of permissible choice in the 

circumstances.” United States v. Toro-Pelaez, 107 F.3d 819, 828 (10th Cir. 1997). But 

where the defendant “failed to contemporaneously object regarding the . . . reasons he 

asserts as justification for a new trial[,] . . . we . . . may only reach the issue if we find 

plain error.” 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 omitted). “To show that an error affected his 

substantial rights, [the defendant] must establish a reasonable probability that, but for the 
76 

error claimed, the result of the proceeding would have been different.” United States v. 

Uscanga-Mora, 562 F.3d 1289, 1295 (10th Cir. 2009) (quotations omitted). “When 

evaluating allegedly inappropriate remarks of counsel for plain error, we must view the 

remarks in the context of the entire trial.” 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 struggled with homosexuality. We now provide additional factual 

background on the two alleged instances in which the prosecution made improper 

propensity arguments relating to these statements. 

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

During the cross-examination of Mr. Durham, the prosecutor questioned him 

about his struggle with homosexuality. After replaying part of one of the Seagull 

Confession Videos, the prosecutor asked Mr. Durham: “[W]hat do you struggle with?” 

ROA, Vol. 12 at 1999 (TT 1385). Mr. Durham’s counsel objected to the question on the 

ground that “this is repetitious,” and the trial court sustained the objection. Id. The 

prosecutor continued: “Mr. Durham, you struggle with homosexuality?” Id. Mr. 

Durham answered, “I did, yes,” after 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 Video, and defense counsel “object[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 referred to Mr. Durham’s 

“life-long struggle with touching children and homosexuality.” Id. at 2087 (TT 1473), 

2096 (TT 1482). 

First, the prosecutor argued: 

There is always a first victim to a crime, a first time when you 

go to Upendo, long before your mother does, 24 days, a first 

time when you ask to stay at Upendo among the little children 

that you’re going to be with . . . while you have a life-long 

struggle with touching children and homosexuality. 

Id. at 2087 (TT 1473). 

Second, the prosecutor argued: 

[Mr. Durham] insisted on going to Kenya weeks before 

anyone else. He insisted on living at Upendo when he knew 

he had a life-long struggle with touching children and 

homosexuality. He put himself there knowing he couldn’t 

resist, knowing it was all likelihood that he would get what he

always wanted, and that was to be with children. 

Id. at 2096-97 (TT 1482-83). 

 Mr. Durham’s counsel did not object to either of these statements. See ROA, Vol. 

12 at 2087-2103 (TT 1473-89). 

3. Additional Procedural Background

 After the jury rendered its verdict, Mr. Durham filed a motion for new trial on 

various grounds. One ground was that the prosecution had “implied . . . that [his] 

struggles with homosexuality make it more likely that [he] sexually assaulted and 

molested children.” ROA, Vol. 3 at 321. 
78 

 The district court denied the motion. In doing so, it did not separately address Mr. 

Durham’s claim that the prosecution had improperly suggested he had a propensity to 

commit the charged conduct. Instead, within its discussion of the admissibility of Mr. 

Durham’s statements about struggling with homosexuality, the court stated that “[t]he 

United States never argued that Defendant engaged in sexual activity with the children 

because he is homosexual, rather the prosecution noted in closing argument that when 

confronted, he proffered an excuse.” Id. at 785.32 

4. Legal Background

“We analyze whether a statement constitutes prosecutorial misconduct using a 

two-step process.” Fleming, 667 F.3d at 1103. “First, we determine whether the 

prosecutor’s statements were improper.” Id. (quotations omitted). “Second, we 

determine whether the prosecutor’s improper statements were harmless beyond a 

reasonable doubt.” Id. (quotations omitted). 

“The Government generally bears the burden of proving that an improper 

statement is harmless beyond a reasonable doubt.” Id. But “when, as here, a defendant 

fails to object to a prosecutor’s statement, reversal is warranted only when: (1) the 

prosecutor’s statement is plainly improper and (2) the defendant demonstrates that the 

improper statement affected his or her substantial rights.” Id. 

 

 32 Mr. Durham does not contend that the district court did not rule on the 

prosecutorial misconduct ground raised in his motion for a new trial. See Aplt. Br. at 

34-39. Regardless of whether the district court ruled on this issue, the record is 

sufficiently developed to show that any error did not affect Mr. Durham’s substantial 

rights under our plain error standard of review, as we explain below. 
79 

5. Analysis

Mr. Durham contends that “[t]he Government committed prosecutorial 

misconduct by arguing Mr. Durham was more likely to commit the alleged crimes 

because he struggled with homosexuality and Mr. Durham was irreparably prejudiced.” 

Aplt. Br. at 39. Because, as we explain below, Mr. Durham failed to preserve either of 

the alleged instances of prosecutorial misconduct for appellate review, we review for 

plain error only. See Toro-Pelaez, 107 F.3d at 828. We begin and end our analysis at the 

third step of the plain error test—whether the error affected Mr. Durham’s substantial 

rights. We conclude that Mr. Durham has failed to satisfy the substantial rights step, and 

we therefore affirm the district court’s denial of his motion for a new trial. 

a. Preservation

Mr. Durham failed to preserve either of the alleged instances of prosecutorial 

misconduct for appellate review by contemporaneously objecting on prosecutorial 

misconduct grounds.33 We address each alleged instance of prosecutorial misconduct 

separately. 

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

Although defense counsel contemporaneously objected to the prosecution’s crossexamination of Mr. Durham about struggling with homosexuality, defense counsel 

 33 Mr. Durham “submits he properly preserved the [issue of prosecutorial 

misconduct] and that the standard of review is abuse of discretion” because he 

“raised the issue . . . in his motion for new trial.” Aplt. Br. at 34. Our precedent 

forecloses this argument. See Toro-Pelaez, 107 F.3d at 828 (when the defendant 

“failed to contemporaneously object regarding the . . . reasons he asserts as 

justification for a new trial[,] . . . we . . . may only reach the issue if we find plain 

error”). 
80 

objected on the ground that the questioning was repetitious—not on the ground of 

prosecutorial misconduct for making a propensity argument. See ROA, Vol. 12 at 1999 

(TT 1385). The district court therefore “did not have notice that defense counsel believed 

the prosecutor’s questioning of [Mr. Durham] to be an inappropriate attempt at [making a 

propensity argument] or to rise to the level of prosecutorial misconduct.” United States v. 

Baldridge, 559 F.3d 1126, 1135 (10th Cir. 2009).34

ii. Alleged misconduct during closing argument 

The record shows—and Mr. Durham concedes—that defense counsel did not 

contemporaneously object to the prosecution’s references to his struggle with 

homosexuality in its closing argument. See ROA, Vol. 12 at 2087-2103 (TT 1473-89); 

Aplt. Br. at 34 (“Defendant . . . did not contemporaneously object during closing 

argument.”). 

b. Plain error—substantial rights

 Because Mr. Durham failed to preserve either of the alleged instances of 

prosecutorial misconduct for appellate review, we review for plain error only. We find 

no plain error because Mr. Durham has failed to show that the alleged misconduct 

affected his substantial rights. We address each alleged instance of prosecutorial 

misconduct separately. 

 34 Even if we were to conclude that the objections on the ground of 

repetitiousness sufficed to put the district court on notice that defense counsel 

believed the Government was making a propensity argument, Mr. Durham would still 

not be entitled to relief. Our reasons, discussed below, for determining that any error 

in the prosecution’s questioning did not affect Mr. Durham’s substantial rights would 

also persuade us that any error was harmless beyond a reasonable doubt. 
81 

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

Even assuming error in the prosecutor’s references to homosexuality during crossexamination of Mr. Durham, any error did not affect Mr. Durham’s substantial rights. 

“To show that an error affected his substantial rights, Mr. [Durham] must establish a 

reasonable probability that, but for the error claimed, the result of the proceeding would 

have been different.” Uscanga-Mora, 562 F.3d at 1295 (quotations omitted). 

As discussed above, defense counsel objected to the prosecutor’s questioning on 

Mr. Durham’s struggle with homosexuality on the ground of repetitiousness. The district 

court sustained defense counsel’s objections. Moreover, the court’s preliminary 

instructions to the jury at the trial’s outset had included the following: “If an objection is 

sustained, ignore the question.” ROA, Vol. 12 at 623 (TT 9). Additionally, the jury’s 

acquittal of Mr. Durham on several counts, despite the prosecutor’s questions, suggests 

that the jury’s verdict was “based on reason, rather than emotion.” United States v. 

Archuleta, 737 F.3d 1287, 1296 (10th Circuit 2013). Under these circumstances, Mr. 

Durham has not shown a reasonable probability that, but for the prosecutor’s questions, 

the jury would have rendered a different verdict. See United States v. Lane, 883 F.2d 

1484, 1498 (10th Cir. 1989) (“As a general rule, we presume that juries follow [limiting] 

instructions.”). 

ii. Alleged misconduct during closing argument 

Even assuming error in the prosecutor’s references to homosexuality during 

closing argument, the error did not affect Mr. Durham’s substantial rights. Mr. Durham 

contends otherwise, citing United States v. Schene, 543 F.3d 627 (10th Cir. 2008). Aplt. 
82 

Reply Br. at 14.35 In Schene, this court said that a prosecutor’s question about whether 

the defendant had visited “websites with homosexual themes” was “arguably improper.” 

543 F.3d at 641-42. 

Mr. Durham’s argument fails because it does not consider the prosecution’s 

remarks “in the context of the entire trial.” Fleming, 667 F.3d at 1103 (quotations 

omitted). Despite acknowledging the potentially prejudicial impact of the prosecutor’s 

conduct, we held in Schene that, “even assuming, arguendo, that [the defendant] 

preserved this argument for appeal . . . the district court did not abuse its discretion in 

failing to grant a mistrial based on the prosecutorial misconduct.” 543 F.3d at 642. We 

reasoned that, “[g]iven the evidence against [the defendant], . . . the alleged prosecutorial 

misconduct was not flagrant enough to influence the jury to convict on grounds other 

than the evidence presented.” Id. (quotations omitted). 

Even more so here under plain error review, when “it is the defendant rather than 

the Government who bears the burden of persuasion with respect to prejudice,” Fleming, 

667 F.3d at 1103 (quotations omitted), relief is not warranted based on the prosecution’s 

closing argument. As summarized above, the Government presented ample independent 

evidence to show that Mr. Durham committed the offenses on which the jury convicted. 

For example, the trial evidence supporting the jury’s verdict included victim testimony 

and detailed written confessions by Mr. Durham. ROA, Vol. 9 at 8, 15, 16; ROA, Vol. 

 35 Mr. Durham’s argument assumes that the jury harbored biases about sexual 

orientation. He has not provided any evidence that it did, but to the extent his 

assumption holds, we nevertheless conclude Mr. Durham has not shown that any 

error affected his substantial rights, as we explain below. 
83 

12 at 658, 1406, 1440, 1458. And again, the jury’s acquittal of Mr. Durham on the 

remaining counts further supports the harmlessness of any improper prosecutorial 

argument. See Archuleta, 737 F.3d at 1296. So even if we could read the prosecutor’s 

closing argument as improperly suggesting that Mr. Durham’s struggle with 

homosexuality made him more likely to act on his temptation to touch children, Mr. 

Durham is not entitled to relief on plain error review. 

* * * * 

Mr. Durham has not shown that the alleged improper prosecutorial statements, 

individually or taken together, affected his substantial rights under the plain error test. 

We therefore affirm the district court’s denial of Mr. Durham’s motion for a new trial on 

grounds of prosecutorial misconduct. 

E. Issue Five: Cellphone Videos Authentication

Mr. Durham challenges the admission of Ms. Menja’s cellphone-recorded videos 

of his confession as improperly authenticated. Aplt. Br. at 42. He argues the 

“Government did not sufficiently address [his] contention that the recordings had been 

altered.” Aplt. Br. at 45. He contends the videos were admitted in error due to Mr. 

Durham’s “specific showing of irregularities” and inability to inspect the cellphone itself. 

[Id. at 46.] Because Ms. Menja’s testimony laid a sufficient foundation for 

authentication, we find that the district court did not abuse its discretion when it 

admitted her cellphone videos and affirm. 

 
84 

1. Standard of Review

Whether the Government laid a sufficient foundation for the videos to be admitted 

at trial is reviewed for abuse of discretion. United States v. Green, 175 F.3d 822, 829 

(10th Cir. 1999). Abuse of discretion is defined as “an arbitrary, 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 recorded part of her conversation with Mr. Durham 

at the Seagull restaurant on her cellphone. The Government’s trial exhibits included the 

five Seagull Confession Videos recorded by Ms. Menja that day. See Gov’t Exs. 3-7. 

Each was admitted and played for the jury.36 Videos played in ROA, Vol. 12, 858-870 

(TT 244-56). Ms. Menja initially turned over her cellphone to the Government so that 

investigators could copy the data. ROA, Vol. 12 at 433. The Government made copies 

and returned the phone to her. Id. 

a. Pre-Trial 

 Before trial, Mr. Durham moved in limine to inspect the cellphone used to record 

his statements and to have an expedited chain of custody hearing. ROA, Vol. 1 at 631. 

The court held a hearing on the motion. ROA, Vol. 12 at 427. At the hearing, the 

 36 Gov’t Exh. 3, 1 minute, 49 seconds (preliminary conversation); Gov’t Exh. 

4, 12 minutes 10 seconds (Mr. Durham describing his interactions with various 

children); Gov’t Exh. 5, 29 seconds (Mr. Durham calling his mother to discuss his 

actions); Gov’t Exh. 6, 20 seconds (Mr. Durham writing out his interactions with 

various children); Gov’t Exh. 7, 10 seconds (another video of Mr. Durham writing 

out his interactions with various children.) 
85 

Government explained that it would be providing Mr. Durham a “mirror image” of Ms. 

Menja’s phone, but not the cellphone itself. ROA, Vol. 12 at 433; ROA, Vol. 2 at 543. 

The Government described the mirror image as follows: 

When you make a video with a phone, unbeknownst to the 

person who is filming, images are embedded into the phone 

called LBLs. If you go back to that video and you cut off a 

portion of the recording, a forensic examiner would show 

that those LBLs still exist. More or less, it’s like a 

fingerprint. In this case, the only way to get to that is to 

look at the actual phone. So based upon the defendant’s 

concerns, we asked to receive the phone and we made a 

mirror image. That way, we can return the phone and do a 

forensic review on the computer, it would be just like we 

had her phone. 

ROA, Vol. 12 at 427-28. 

The Government explained that the mirror image would allow defense counsel to 

analyze whether the videos had been altered: “[a forensic examiner] would be able to 

look at the LBLs to make sure there’s no outstanding LBL missing video.” Id. at 429. 

Defense counsel responded that the mirror image would not be sufficient to inspect for 

alterations. Id. at 430. 

The court ordered the Government to turn over the mirror image to defense 

counsel. It denied without prejudice Mr. Durham’s “Motion to Compel Production, 

Inspection and Imaging of Cell Phone and Expedite Chain of Custody Hearing,” allowing 

Mr. Durham to renew the motion if necessary following his counsel’s inspection of the 

mirror image. ROA, Vol. 12 at 435; ROA,Vol. 2 at 40. 

After his forensic expert, Donovan Farrow, analyzed the mirror image, Mr. 

Durham filed a “Renewed Motion to Compel Production, Inspection, and Imaging of Cell 
86 

Phone.” ROA, Vol. 2 at 533.37 In support of the motion, Mr. Farrow submitted an 

affidavit arguing that the mirror image “cannot be considered a true representation of the 

evidence at the time the videos were recorded” and that “[i]t appears the Government is 

attempting to piecemeal the cell phone evidence and only provide Defense Counsel with 

limited information regarding the videos.” Id. at 543. More specifically, he opined: 

[A] type of data scrubbing had occurred on some of the video 

files. Data scrubbing is a technique used to erase metadata 

that is related to a file. This technique has to be done by a 

person with knowledge and is not something that can occur 

unintentionally. Thus, this evidence has been compromised 

as it was intentionally tampered with to the point the video’s 

metadata was deleted. 

Id. at 544. 

 Before the hearing on the renewed motion to compel, the court arranged for a 

meeting between the parties’ forensic experts. ROA, Vol. 12 at 592-596. At that 

meeting, Mr. Farrow requested a “logical image” from the Government, which he later 

received and analyzed. ROA, Vol. 12 at 595.38 

At the pretrial hearing on the renewed motion to compel, Mr. Durham’s counsel 

argued, “[W]e stated last time we were here in court that the metadata had been scrubbed. 

. . . After looking at the logical image, which is just a portion of the cell phone, [Mr. 

Farrow] found that the videos had, in fact, been split up. They had been cut. He can tell 

that from the file names.” ROA, Vol. 12 at 595. The court concluded Mr. Durham could 

 37 Mr. Durham also renewed his motion for an “expedited chain of custody 

hearing.” ROA, Vol. 2 at 533 (capitalization altered). 

38 Defense counsel described a “logical image” as “a smaller portion of a 

forensic image.” ROA, Vol. 12 at 595. 
87 

call Mr. Farrow as a witness to testify that the videos had been altered, but it declined to 

exclude the videos entirely. ROA, Vol. 12 at 596. The court also noted that the 

Government “will have to lay the proper foundation for the introduction of these videos, 

and, obviously, cross-examination could be fruitful.” ROA, Vol. 12 at 596. 

b. Trial 

 At trial, the court overruled Mr. Durham’s contemporaneous objection to 

admission of the Seagull Confession Videos. ROA, Vol. 12 at 857 (TT 243). The 

Government first showed one of the videos during its direct examination of Ms. Menja, 

who had recorded the video on her cellphone. Before showing the video, the 

Government asked Ms. Menja if she had reviewed the cellphone videos on both her 

phone and on a computer. She responded that she had and that the videos were 

“identical.” ROA, Vol. 12 at 856-57 (TT 242-43). The Government then moved to 

admit the cellphone videos. Id. at 857 (TT 243). Before the court ruled, it asked Ms. 

Menja whether the videos “accurately reflect[ed] [her] memory of what occurred on that 

date.” Id. at 857 (TT 243). She said that they did, and the court admitted the videos. 

Id. 

During the direct examination of Ms. Menja, the Government asked her several 

times whether she manipulated, changed, or edited the footage in any way. ROA, Vol. 

12 at 859, 861, 865 (TT 245, 247, 251). Each time, she responded that she had not. Id. 

The defense neither cross-examined Ms. Menja about alteration of the videos nor called 
88 

Mr. Farrow or any other forensic expert to testify about the Seagull videos.39 ROA, Vol. 

12, at 893-961 (TT 279-347). 

3. Legal Background

To authenticate evidence for admission at trial, “the proponent must produce 

evidence sufficient to support a finding that the item is what the proponent claims it is.” 

Fed. R. Evid. 901(a). 

 “When evidence is unique, readily identifiable and relatively resistant to change, 

the foundation need only consist of testimony that the evidence is what its proponent 

claims.” United States v. Johnson, 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 admissible in trial where witness who heard statement also 

testifies and gives independent support for testimony). 

 On the other hand, when evidence “is not readily identifiable and is susceptible to 

alteration by tampering or contamination, the trial court requires a more stringent 

foundation entailing a chain of custody of the item with sufficient completeness to render 

it improbable that the original item has either been exchanged with another or been 

contaminated or tampered with.” Johnson, 977 F.2d at 1367 (quotations omitted). A 

videotape that has been altered in some form may still be “readily identifiable” and “not 

susceptible to alteration by tampering” for purposes of authentication. See, e.g., United 

States v. Mills, 194 F.3d 1108, 1112 (10th Cir. 1999) (allowing videotape into evidence, 

 39 On cross-examination, Mr. Durham’s counsel asked Ms. Menja about the 

context of the videos and why some were started or stopped when they were, but not 

about alterations. ROA, Vol. 12, at 893-961. 
89 

finding it “readily identifiable” and “sufficient[ly] complete[] to render it improbable 

[that it had] . . . been contaminated or tampered with,” despite a deletion that did “not 

affect the accuracy of the remaining images”). The trial court “need not rule out every

possibility that the evidence underwent alteration; it need only find that the reasonable 

probability is that the evidence has not been altered in any material aspect.” Cardenas, 

864 F.2d at 1532. 

4. Analysis

 The district court did not abuse its discretion in determining there was a sufficient 

foundation supporting the cellphone videos’ authenticity. Ms. Menja testified that she 

had reviewed the videos and that they were a fair and accurate depiction of what she saw. 

ROA, Vol. 12 at 857 (TT 243). That testimony gave the court sufficient basis to 

determine the videos were authentic. See Mills, 194 F.3d at 1112 (finding no abuse of 

discretion for a video’s admission when the person responsible for creating the video 

confirmed that it accurately depicted what it claimed to depict); see also United States v. 

Cejas, 761 F.3d 717, 723 (7th Cir. 2014) (finding no error in admitting video that the 

witness testified was a “fair and accurate depiction” of what he saw). Further supporting 

the video’s authenticity was Ms. Menja’s testimony that she had not edited or altered the 

videos in any way. ROA, Vol. 12 at 859, 861, 865 (TT 245, 247, 251).40

 40 No chain of custody analysis was necessary given that Ms. Menja’s 

testimony provided a foundation for the video, which was “unique, readily 

identifiable and relatively resistant to change.” Cardenas, 864 F.2d at 1531. Mr. 

Durham contends that the videos were “easily subject to manipulation” but did not 

choose to present evidence on this point at trial. Aplt. Reply Br. at 16. He otherwise 

does not argue in his briefing why the video was not “readily identifiable.” 
90 

To the extent Mr. Durham believed the videos did not depict what they 

claimed to depict, the court gave him an opportunity to cross-examine Ms. Menja on 

alterations to the videos and to call his forensic expert to testify on them. He chose 

to do neither. See Johnson, 977 F.2d at 1368 (defense counsel’s failure to cross on 

an authentication issue cuts against an argument to exclude evidence). The district 

court did not abuse its discretion when it admitted the cellphone videos as 

sufficiently authenticated.

F. Issue Six: Victims’ Medical Records

Mr. Durham challenges the district court’s admission of the full set of the victims’ 

medical records, rather than just a portion of those records, on four grounds: (1) the court 

admitted all of the records when he had requested admission of only part of them (the “P3” records), Aplt. Br. at 47; (2) the additional admitted material lacked authentication, 

Aplt. Br. at 47; (3) the full records included inadmissible “double hearsay,” Aplt. Br. at 

47-48;41 and (4) admitting the full records was unduly prejudicial. As to the last point, 

Mr. Durham alleges the records contained graphic representations that “inflamed the 

Jury’s sympathies for the alleged victims” and contained an entry that one child “was 

 41 Mr. Durham’s hearsay argument in his opening brief consists of two 

sentences: “The PRC Forms and clinician notes contain information relayed by the 

patient or third parties. This constitutes inadmissible double hearsay. See United 

States v. Gwathney, 465 F.3d 1133, 1141 (10th Cir. 2006).” Aplt. Br. at 47-48. In 

his reply brief, he maintains that a particular victim’s identification of Mr. Durham 

during her examination was “impermissible double hearsay” but contests no other 

specific information in the victims’ medical records. Aplt. Reply Br. at 19. We 

therefore consider only the abuser identification hearsay argument because Mr. 

Durham fails to identify any other information in the medical records he wishes to 

challenge on hearsay grounds. 
91 

defiled by a man named Matthew.” Aplt. Br. at 47-48. Because Mr. Durham invited any 

error, and because he cannot show error, his argument fails under plain error review. We 

affirm the district court’s admission of the full medical records. 

1. Standard of Review

 Mr. Durham failed to object to admission of the records at trial, so the plain-error 

standard applies. He must accordingly show: “(1) error, (2) that is plain, which (3) 

affects the defendant’s substantial rights, and which (4) seriously affects the fairness, 

integrity, or public reputation of judicial proceedings.” United States v. Baldridge, 559 

F.3d 1126, 1135 (10th Cir. 2009). Mr. Durham’s challenge fails at the first element—

whether the district court erred. We review evidentiary rulings for error under an abuse 

of discretion standard. Willis, 826 F.3d at 1270. 

2. Additional Background

The medical records that the Government provided to Mr. Durham consisted of: 

(1) a Post Rape Care (“PRC”) form; (2) lab requests; (3) clinician notes; and (4) a 

Medical Examination Report, also known as a P-3 form. ROA, Vol. 10a at 28-80. The 

clinician on call filled out the PRC form for the six children examined. ROA, Vol. 12 at 

1182 (TT 568). A supervising physician, Dr. Abdukladir, then reviewed the PRC forms 

and prepared P-3 forms based on that review. ROA, Vol. 12 at 1182-85 (TT 568-71). 

During cross-examination of Dr. Abdulkadir, defense counsel moved for 

admission of a P-3 Form only. See ROA, Vol. 12 at 1202 (moving to admit pages “1 

through 4” of Government’s Exhibit 44); ROA, Vol. 10a at 28 (P-3 form). The 

Government responded by moving to enter the entire exhibit, which included all four 
92 

components described above. ROA, Vol. 12 at 1202 (TT 588). Defense counsel then 

stated: “I would ask that they move to[sic] Exhibits – enter Exhibit 45, 46, 47, 48, and 49 

as well.” ROA, Vol. 12 at 1202 (TT 588). The Court admitted all of the records. Id. 

Defense counsel did not object. Id. 

3. Legal Background

a. Invited error

It is “fundamental that a defendant cannot complain of error which he invited upon 

himself.” United States v. Chavez, 229 F.3d 946, 952 (10th Cir. 2000) (quotations 

omitted). 

b. Authentication

To authenticate evidence for admission at trial, “the proponent must produce 

evidence sufficient to support a finding that the item is what the proponent claims it is.” 

Fed. R. Evid. 901(a). 

c. The hearsay rule and pertinent exceptions

 “Hearsay” is a statement that “the declarant does not make while testifying at the 

current trial or hearing” and “a party offers in evidence to prove the truth of the matter 

asserted in the statement.” Fed. R. Evid. 801(c). It is inadmissible unless an exception 

applies. Fed. R. Evid. 802. One such exception is for business records—“records of a 

regularly conducted activity.” Fed. R. Evid. 803(6). “[H]ospital records . . . fit 

conceptually within the long-established exception for business records.” Manocchio v. 

Moran, 919 F.2d 770, 776 (1st Cir. 1990). 
93 

 Another exception to the hearsay rule is for a “statement that: (A) is made for—

and is reasonably pertinent to—medical diagnosis or treatment; and (B) describes 

medical history; past or present symptoms or sensations; their inception; or their general 

cause.” Fed. R. Evid. 803(4). This court has recognized that “the Fourth, Eighth and 

Ninth Circuits have held that statements made by a child to a physician which identify the 

sexual abuser as a member of the family or household are ‘reasonably pertinent to 

diagnosis or treatment’ and may therefore be admissible [under Rule 803(4)].” United 

States v. Joe, 8 F.3d 1488, 1494 (10th Cir. 1993). Accepting these holdings as valid, we 

extended their application to cover abuser identifications during medical examinations 

made by adult domestic sexual assault victims. Id. at 1495. 

d. Unfair prejudice

 Under Federal Rule of Evidence 403, “[t]he court may exclude relevant evidence 

if its probative value is substantially outweighed by a danger of . . . unfair prejudice.” 

Fed. R. Evid. 403. The graphic nature of evidence does not alone make it inadmissible. 

See United States v. Naranjo, 710 F.2d 1465, 1468-69 (10th Cir. 1983) (allowing 

photograph of victim shot in the face because it showed the “particulars of the crime 

scene” and “was not unduly nor designedly inflammatory”).

4. Analysis

Mr. Durham’s challenge to the court’s admission of the victims’ full medical 

records fails. Any error was invited, and he cannot show error on any ground he raises 

on appeal. It follows that he cannot show plain error. 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 Government Exhibit 44, the Government requested the admission 

of the entire medical record—including the PRC form, lab requests, clinician notes, and 

the Medical Examination Report. ROA, Vol. 12 at 1202 (TT 588). Rather than object, 

Mr. Durham’s counsel requested to move “Exhibit[s] 45, 46, 47, 48, and 49” into 

evidence “as well.” ROA, Vol. 12 at 1202 (TT 588). Those exhibits included entire 

medical records, not just P-3 forms. Mr. Durham thus invited any potential error from 

admitting the records and cannot establish a plain error warranting reversal. See Chavez, 

229 F.3d at 952 (finding no plain error when the appellant invited the complained-of 

error). Although invited error alone is sufficient to reject Mr. Durham’s challenge on 

appeal to admission of this evidence, we also determine there was no error based on any 

of the four grounds Mr. Durham argues. 

First, Mr. Durham argues his initial request to admit only the P-3 form showed 

“counsel’s intent was to admit only a limited portion of the medical records.” Aplt. 

Reply Br. at 17. Even if that were so, counsel switched gears and requested admission of 

the entire records. 

Second, Mr. Durham’s authenticity argument fails in light of Dr. Abdukladir’s 

testimony. See ROA, Vol. 12 at 1179-83 (TT 565-69). She testified that she supervised 

the department where the records were created, reviewed the PRCs when they were filled 

out to make sure they had been properly completed, and reviewed the records before 

testifying. Id.
95 

Third, there was no hearsay error. Mr. Durham makes no argument about 

admission of the medical records themselves under the business record or some other 

exception to the hearsay rule. The only specific reference in the medical records Mr. 

Durham challenges based on hearsay is one victim’s identification of “Matthew” during 

her examination. That statement, identifying a member of the child’s household as the 

abuser, was admissible under Joe. 8 F.3d at 1494-95.42

Fourth, the court did not abuse its discretion under Fed. R. Evid. 403. Mr. 

Durham does not question the probativeness of the medical records. Mr. Durham 

characterizes the records as including “graphic representations about where the child was 

touched and the purported genital injury,” Aplt. Br. at 47. We have reviewed the 

evidence and conclude the district court’s balancing of the probative value and prejudicial 

effect was reasonable. See Naranjo, 710 F.2d at 1468-69 (graphic image admissible if 

highly probative and not designedly inflammatory). The records were highly probative 

of the victims’ injuries. The evidence was collected as part of a standardized medical 

examination process and was not “designedly inflammatory.” 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 information provided by another person, if an outsider 

to the business preparing the record, must itself fall within a hearsay exception to be 

admissible.” 465 F.3d at 1141. Here, the statement made by the “outsider”—the 

victim identifying the abuser—is admissible under the hearsay exception recognized 

in Federal Rule of Evidence 803(4). 
96 

Because Mr. Durham invited error and has not otherwise shown the court erred, 

we affirm the records’ admission and reject Mr. Durham’s appeal.

43 

G. Issue Seven: Substantive Reasonableness of Sentence

Mr. Durham challenges his 480-month sentence as substantively unreasonable. 

Aplt. Br. at 58-59. He “does not challenge the district court’s procedure in calculating” 

the recommended sentence under the Guidelines. Aplt. Reply Br. at 26. We affirm his 

sentence because he has not shown that the district court abused its discretion in weighing 

the sentencing factors set forth in 18 U.S.C. § 3553(a). 

1. Standard of Review 

We “review the substantive reasonableness of a sentence for abuse of discretion.” 

United States v. Chavez, 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 . . . consider the substantive 

reasonableness of the sentence imposed under an abuse-of-discretion standard.”). 

We find no abuse unless the sentence “is arbitrary, capricious, whimsical, or 

manifestly unreasonable.” United States v. Munoz–Nava, 524 F.3d 1137, 1146 (10th Cir. 

2008) (quotations omitted). “That is to say, we recognize that in many cases there will be 

a range of possible outcomes the facts and law at issue can fairly support; rather than pick 

 43 Mr. Durham raises a new argument in reply that, to the extent his counsel 

invited error, his counsel was ineffective. Aplt. Reply Br. at 21. Because that 

argument was not raised in his opening brief, it is waived. See Silverton Snowmobile 

Club v. U.S. Forest Serv., 433 F.3d 772, 783 (10th Cir. 2006) (declining to consider 

arguments not raised in opening brief). It would be more appropriate to raise this 

argument through a motion under 28 U.S.C. § 2255. See United States v. Galloway, 

56 F.3d 1239, 1242 (10th Cir. 1995) (en banc) (“The rule in this circuit . . . is that 

claims of constitutionally ineffective counsel should be brought on collateral review, 

in the first petition filed under 28 U.S.C. § 2255.”). 
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 choices.” United States v. McComb, 

519 F.3d 1049, 1053 (10th Cir. 2007). 

2. Additional Factual Background

The final PSR calculated a Guidelines sentence of 1,440 months in prison based 

on Mr. Durham’s total offense level and criminal history category. ROA, Vol. 7 at 142.44 

The PSR identified only one factor potentially warranting a downward departure—that 

Mr. Durham was 19 years old when he committed the offenses of conviction. 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 sentence it 

characterized as a downward variance. ROA, Vol. 3 at 844; ROA, Vol. 7 at 477; ROA, 

 44 The PSR calculated Mr. Durham’s total offense level to be 49 and his 

criminal history category to be I. ROA, Vol. 7 at 135, 136. Under the Guidelines, an 

offense level exceeding 43, the highest offense level reflected in the sentencing table, 

“is to be treated as an offense level of 43.” U.S.S.G. Ch. 5, Pt. A (Sentencing Table), 

Application Note 3. The Guidelines recommend a sentence of “life” for a defendant 

with an offense level of 43, regardless of the criminal history category. See U.S.S.G. 

Ch. 5, Pt. A (Sentencing Table). The probation officer who prepared Mr. Durham’s 

PSR, after consulting with the United States Sentencing Commission, arrived at a 

Guidelines sentence of 1,440 months to be consistent with the cumulative statutory 

maximum sentence for the four counts of conviction. ROA, Vol. 7 at 142 n.3. Under 

these circumstances, the PSR calculated a recommended Guidelines sentence rather 

than a sentence range. 

45 Based on its finding that Mr. Durham had committed perjury at trial, the 

district court applied a two-level enhancement for obstruction of justice, bringing Mr. 

Durham’s offense level to 51. ROA, Vol. 7 at 475. Because the offense level 

calculated in the PSR already exceeded the maximum offense level of 43, the twolevel enhancement had no effect on the recommended Guidelines sentence. 

 
98 

Vol. 13 at 158.46 The court offered the following explanation of its decision at Mr. 

Durham’s sentencing hearing: 

The sentence the Court has selected, I’m satisfied, is 

sufficient but not greater than necessary, when considering 

the sentencing factors set forth in 18 U.S. Code 3553. 

18 U.S. Code 3553 requires the Court to consider these 

factors: 

The nature and circumstance of the offense; and the history 

and characteristics of the defendant. 

In this regard, pursuant to reading the sentencing 

memorandum and what I’ve heard here today, I have 

considered the age of the defendant, the fact he is a first-time 

offender, his potential for the future, his charitable efforts 

prior to this occasion, that this at least appears to be aberrant 

behavior, the defendant has asked for mercy from the 

Court[,] . . . his success in school, and all the other matters

raised in the defendant’s brief. 

The next factor the Court must consider are [sic] the need for 

the sentence imposed. This includes to reflect the seriousness

of the offense, to promote respect for the law, and to provide 

just punishment for the offense, to afford adequate deterrence 

to criminal conduct, to protect the public from further crimes 

of the defendant, to provide the defendant with needed 

education or vocational training, medical care, or other 

correctional treatment in the most effective manner. 

The kind of sentence available is number three. 

Finally, the kind of sentences and the sentencing range, which 

has been established. And the sentencing guidelines call for a

sentence of life in prison. 

 46 The 480-month sentence consists of 360 months on each of the four counts 

of conviction, running partially consecutively and partially concurrently to achieve 

the total sentence of 480 months. ROA, Vol. 3 at 844; ROA, Vol. 13 at 158-59. 
99 

Next, the need to avoid unwarranted sentence disparities 

among defendants with similar records who have been found 

guilty of similar conduct. . . . I read all the cases cited by both 

the defendant and the government. And, actually, I didn’t 

find these particularly helpful. They went all over the lot, and 

circumstances differed from one case to another. There 

obviously wasn’t one that fit exactly with this case, and you 

wouldn’t expect there to be. 

The only time I have had a case of rape . . . I had one sentence 

five or six years ago . . . in which the defendant was 

convicted of raping his 11-year-old niece. He had a prior 

conviction for sexual molestation, and I imposed a sentence 

of 50 years’ incarceration. 

Finally is the need to provide restitution to any victims of the 

offense. 

These were heinous crimes committed on the most vulnerable 

victims. These darling children, who had been abandoned 

and orphaned, looked to the defendant for love and support. 

Instead, one by one they were raped. One was but five years 

old. 

At times he chose to humiliate the children by having one 

watch while he abused or raped another. He was their worst 

nightmare come true. 

Of course, there are other victims, including the children the 

defendant molested, but the counts were dismissed because 

the acts didn’t technically fit the charge. 

And the Upendo home and the people that worked and 

volunteered there, they were trying to help the forsaken. This

is now how they are known or what they must deal with. 

These violent acts demand a harsh sentence. The victims 

must feel secure that he will not touch them again. However, 

I also believe, when considering everything, there should be 

some light at the end of the tunnel. 
100 

Hopefully, with appropriate treatment and strict supervision 

after release, the defendant can live productively and safely in 

society. 

ROA, Vol. 13 at 156-58. 

3. Legal Background

A substantive reasonableness sentencing challenge asks us to address “whether the 

length of the sentence is reasonable given all the circumstances of the case in light of the 

factors set forth in 18 U.S.C. § 3553(a).” United States v. Verdin-Garcia, 516 F.3d 884, 

895 (10th Cir. 2008) (quotations omitted); see Gall, 552 U.S. at 51.47

 47 Courts must consider the following factors in imposing a sentence: 

(1) the nature and circumstances of the offense and the history 

and characteristics of the defendant; 

(2) the need for the sentence imposed— 

(A) to reflect the seriousness of the offense, to promote 

respect for the law, and to provide just punishment 

for the offense; 

(B) to afford adequate deterrence to criminal conduct; 

(C) to protect the public from further crimes of the 

defendant; and 

(D) to provide the defendant with needed educational 

or vocational training, medical care, or other 

correctional treatment in the most effective 

manner; 

(3) the kinds of sentences available; 

(4) [the applicable Guidelines recommended kind and range 

of sentence]; 

(5) [any pertinent Guidelines policy statements]; 

(6) the need to avoid unwarranted sentence disparities among 

defendants with similar records who have been found 

guilty of similar conduct; and 

(7) the need to provide restitution to any victims of the 

offense. 

 

18 U.S.C. § 3553(a). 
101 

When a defendant is sentenced within a properly calculated Guidelines range, the 

sentence “is entitled to a rebuttable presumption of reasonableness.” United States v. 

Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam). In addition, we have endorsed 

“the logical and unremarkable proposition that ‘a below-guideline sentence is also 

presumptively reasonable against an attack by a defendant claiming that the sentence is 

too high.’” United States v. Balbin-Mesa, 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-month sentence as substantively unreasonable. 

Aplt. Br. at 58-59. Because Mr. Durham “does not challenge the district court’s 

procedure in calculating” the Guidelines sentence, Aplt. Reply Br. at 26, which was 

determined to be 1,440 months, we presume that his sentence is substantively 

reasonable.48 We affirm because Mr. Durham’s arguments fail to overcome the

presumption that his sentence is substantively reasonable in light of the § 3553(a) factors. 

First, Mr. Durham appears to argue that he should have been sentenced to no more 

than 470 months in prison, citing an online publication by the United States Sentencing 

Commission (the “Commission”) for the proposition that “a life sentence is the 

equivalent of 470 months.” Aplt. Br. at 58. This argument implicates procedural 

reasonableness rather than substantive reasonableness because it relates to the district 

 48 Mr. Durham’s sentence of 480 months is less than the recommended 

Guidelines sentence of 1,440 months, as determined by the district court. Whether 

we characterize Mr. Durham’s sentence as within or below the Guidelines range, it is 

entitled to a presumption of reasonableness. See Kristl, 437 F.3d at 1054; BalbinMesa, 643 F.3d at 788. 
102 

court’s calculation of the Guidelines range rather than its weighing of the § 3553(a) 

factors. See Gall, 552 U.S. at 51 (“failing to calculate (or improperly calculating) the 

Guidelines range” is a procedural error). “To the extent [Mr. Durham] seeks to challenge 

the procedural reasonableness of the district court’s sentencing calculation, . . . any such 

arguments have been waived by [his] failure either to raise th[is] specific objection[] 

below or to make an argument for plain error review on appeal.” United States v. 

DeRusse, 859 F.3d 1232, 1236 n.1 (10th Cir. 2017).49

Second, Mr. Durham contends that his sentence is unreasonably high in light of 

the need to avoid unwarranted disparities. See Aplt. Br. at 58-59. This argument also 

lacks merit. At Mr. Durham’s sentencing hearing, the district court stated that it had 

“read all the cases cited by both the defendant and the government [pertaining to the 

disparities factor]” but “didn’t find [them] particularly helpful” because “circumstances 

differed from one case to another.” ROA, Vol. 13 at 157. On appeal, Mr. Durham has 

not challenged the court’s determination that the other cases he presented involved 

dissimilarly situated offenders. See United States v. Franklin, 785 F.3d 1365, 1372 (10th 

Cir. 2015) (“No two cases are identical, and comparison of an individual sentence with a 

few counsel-selected cases involving other defendants sentenced by other judges is 

 49 In any event, we are not persuaded that the Commission has “state[d] that a 

life sentence is the equivalent of 470 months.” Aplt. Br. at 58. Mr. Durham cites an 

online publication entitled the “Variable Codebook for Individual Offenders.” Id. 

This publication defines the standard codes the Commission applies to the sentencing 

data it gathers, including the code “470,” which denotes life sentences. See generally 

U.S. Sentencing Comm’n, Variable Codebook for Individual Offenders: 

Standardized Research Data Documentation for FY1999-2014 (Rev. Apr. 8, 2015), 

available at https://perma.cc/A8X6-8TTF. Contrary to Mr. Durham’s assertion, the 

publication nowhere equates a life sentence with 470 months in prison. 
103 

almost always useless.” (citation and quotations omitted)). Nor has he advanced any 

reason to question the court’s weighing of the disparities factor. See United States v. 

Barnes, 890 F.3d 910, 921 (10th Cir. 2018) (“Even if the disparities factor weighs in 

favor of a higher sentence, the district court considered it alongside other factors and the 

facts of this case and did not abuse its discretion in imposing the sentence[] it did.”). 

* * * * 

Mr. Durham has failed to rebut the presumption that the district court reasonably 

weighed the § 3553(a) factors or to show that its sentencing decision exceeds the bounds 

of permissible choice. We therefore affirm Mr. Durham’s 480-month sentence. 

H. Issue Eight: Cumulative Error

Finally, Mr. Durham argues that the errors he alleges, taken together, deprived him 

of a fair trial. Aplt. Br. at 59-60. “To analyze cumulative error, we aggregate all the 

errors that we have found to be harmless and determine whether their cumulative effect 

on the outcome of the trial mandates reversal.” United States v. Anaya, 727 F.3d 1043, 

1060–61 (10th Cir. 2013) (quotations omitted). In conducting our cumulative error 

analysis, we consider two of Mr. Durham’s claims: (1) the Brady claim,50 and (2) the 

 50 We “include[] [Brady claims] in the cumulative-error calculus if they have 

been individually denied for insufficient prejudice.” Cargle v. Mullin, 317 F.3d 

1196, 1207 (10th Cir. 2003). Here, as discussed above, we held that no Brady 

violation occurred because the withheld evidence lacked materiality, which speaks to 

prejudice. We therefore include the alleged Brady error in our cumulative error 

analysis. 

 
104 

prosecutorial misconduct claim.51 

“When there are both preserved and unpreserved errors, cumulative-error analysis 

should proceed as follows: First, the preserved errors should be considered as a group 

under harmless-error review. If, cumulatively, they are not harmless, reversal is 

required.” Id. at 1061 (alterations and quotations omitted). “The only potential preserved 

error is the [alleged Brady error]. Without other errors to aggregate, there can be no 

cumulative harm.” Id. We therefore proceed to the next step of our cumulative error 

analysis. 

“If the preserved errors are cumulatively harmless, then the court should consider 

whether those preserved errors, when considered in conjunction with the unpreserved 

errors, are sufficient to overcome the hurdles necessary to establish plain error.” Id. 

(quotations omitted). “That is, we look to whether the combination of the [alleged Brady 

error] and the prosecutor’s statements regarding [Mr. Durham’s struggle with 

homosexuality] affected Mr. [Durham]’s substantial rights or seriously affected the 

fairness, integrity, or public reputation of judicial proceedings.” 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 prosecutorial misconduct claim, we “did not 

determine whether [the] alleged errors constituted actual errors but instead concluded 

that any potential errors did not merit reversal because they did not affect the 

outcome of Mr. [Durham’s] case.” Anaya, 727 F.3d at 1061. “For the purposes of 

cumulative error analysis, we assume without deciding that these 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—presented an effective rebuttal to Dr. Abdulkadir’s 

testimony based on information that was substantially the same as the withheld evidence. 

Moreover, the evidence of Mr. Durham’s guilt was strong. For example, the trial 

evidence supporting the jury’s verdict included victim testimony and detailed written 

confessions by Mr. Durham. ROA, Vol. 9 at 8, 15, 16; ROA, Vol. 12 at 658, 1406, 1440, 

1458. “Consequently, even if we aggregate the[] alleged [Brady and prosecutorial 

misconduct] errors, there is no cumulative error.” Anaya, 727 F.3d at 1061. 

III. CONCLUSION

We affirm Mr. Durham’s convictions 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 volunteer at a home for impoverished children. A jury 

acquitted him of traveling with the intent to engage in illicit sexual conduct. But he did 

engage in illicit sexual conduct after his travel to Kenya. While living at the home, he 

sexually assaulted a number of the boys and girls he was supposed to be helping. Kenyan 

police said they could not arrest him, and he was permitted to return to the United States. 

A federal jury convicted him of the offenses he committed after he arrived in Kenya. 

 Defendant’s offenses were horrific. The only question is whether the United 

States could properly prosecute him. The government asserts that Congress had the 

authority to criminalize Defendant’s behavior under the Constitution’s Foreign 

Commerce Clause because such conduct has a substantial effect on foreign commerce. 

The panel majority agrees. I respectfully dissent. 

 The only foreign “commerce” identified by the government is commercial sex 

trafficking of children. I do not dispute that such trafficking is within the purview of the 

Foreign Commerce Clause.1

 But (1) there is no evidence in this case of any commercial 

sexual activity, (2) I fail to see how conduct like that of Defendant has any impact on 

commercial sexual activity, and (3) no one has presented to this court any evidence of 

 

1

 Congress may also have authority over such trafficking under the Treaty Clause, 

because this country has ratified the Optional Protocol to the Convention on the Rights of 

the Child regarding the Sale of Children, Child Prostitution and Child Pornography. But 

the government has not relied on the Treaty Clause in this case and the Optional Protocol 

addresses only commercial activity. 
2 

such a connection. If Congress has authority under the Foreign Commerce Clause to 

criminalize Defendant’s actions, it has power to criminalize any conduct by Americans 

abroad. 

In my view, the Foreign Commerce Clause does not authorize Congress to 

prohibit noncommercial sexual assaults, no matter how heinous, committed by 

Americans abroad who formed the intent to commit the acts after arriving abroad. The 

Interstate Commerce Clause would not permit Congress to prohibit noncommercial 

sexual assaults within a State, even if the perpetrator had traveled from another State, so 

long as the perpetrator did not form the intent to commit the act before arriving in the 

State where the crime was perpetrated. The majority suggests that even if the Interstate 

Commerce Clause would not authorize the domestic statute, a statute governing conduct 

abroad would be valid under the Foreign Commerce Clause because it conveys more 

expansive power than does the Interstate Commerce Clause and the Foreign Commerce 

Clause is not limited by concerns about state sovereignty. But these suggestions are not 

persuasive. The limits on congressional authority under the Interstate Commerce Clause 

are based on the Supreme Court’s understanding of what it means to regulate commerce 

and the understanding that provisions of a constitution creating a government of limited 

power should not be interpreted in a way that would confer general police power. 

Although federal power under the Foreign Commerce Clause exceeds that under the 

Interstate Commerce Clause in some respects—in particular, the Foreign Commerce 

Clause restricts state regulation of foreign commerce because of the need for this country 
3 

to speak with one voice in foreign affairs—this additional power is irrelevant in the 

present context. 

 This dissent will travel much of the same ground as the panel opinion. But, as 

might be expected, my description of the terrain will be somewhat different. 

I. The Charge 

Defendant was convicted under 18 U.S.C. § 2423(c), which is part of the 

Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act 

(PROTECT Act) enacted in 2003. Section 105 of the Act, entitled “Penalties Against 

Sex Tourism,” amended § 2423 to add a subsection (b) entitled “Travel with intent to 

engage in illicit sexual conduct”2

 and a subsection (c) entitled “Engaging in illicit sexual 

conduct in foreign places.”3

 In subsection (f) it defines illicit sexual conduct to include 

commercial sex acts with persons under 18, production of child pornography, and sexual 

 

2

 Subsection (b) states: 

Travel with intent to engage in illicit sexual conduct.--A person who 

travels in interstate commerce or travels into the United States, or a United 

States citizen or an alien admitted for permanent residence in the United 

States who travels in foreign commerce, for the purpose of engaging in any 

illicit sexual conduct with another person shall be fined under this title or 

imprisoned not more than 30 years, or both. 

This subsection replaced a somewhat narrower version in the Violent Crime 

Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796. 

3

 Subsection (c) states: 

Engaging in illicit sexual conduct in foreign places.--Any United 

States citizen or alien admitted for permanent residence who travels in 

foreign commerce or resides, either temporarily or permanently, in a 

foreign country, and engages in any illicit sexual conduct with another 

person shall be fined under this title or imprisoned not more than 30 years, 

or both. 
4 

acts with persons under 18 that would violate chapter 109A of the federal criminal code if 

committed in federal territorial jurisdiction.4

 The jury found that Defendant engaged in 

conduct described in Chapter 109A. He was not charged with committing any 

commercial sex act, which is defined in 18 U.S.C. § 1591 as “any sex act, on account of 

which anything of value is given to or received by any person.” And he was acquitted of 

a charge under § 2423(b), which requires that the defendant “travel[] in foreign 

commerce, for the purpose of engaging in any illicit sexual conduct.” 

The question before the court is whether the power to regulate commerce with 

foreign nations includes the power to punish Americans who traveled to a foreign nation 

and then, in what was not a commercial sex act, decided to and did molest a child there. 

To answer the question requires a deep dive into the Foreign Commerce Clause. 

II. The Commerce Clause 

The Constitution grants Congress the power “[t]o regulate Commerce with foreign 

Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art.1, 

§ 8, cl. 3. Almost two centuries ago Chief Justice Marshall noted the commonality of the 

 

4

 Subsection (f) states: 

Definition.--As used in this section, the term “illicit sexual conduct” 

means- 

(1) a sexual act (as defined in section 2246) with a person under 18 years of 

age that would be in violation of chapter 109A if the sexual act occurred in 

the special maritime and territorial jurisdiction of the United States; 

(2) any commercial sex act (as defined in section 1591) with a person under 

18 years of age; or 

(3) production of child pornography (as defined in section 256(8)). 
5 

three clauses within the Commerce Clause—the Foreign Commerce Clause, the Interstate 

Commerce Clause, and the Indian Commerce Clause—in an opinion construing the 

meaning of the Interstate Commerce Clause. He wrote, “It has been truly said, that 

commerce, as the word is used in the constitution, is a unit, every part of which is 

indicated by the term.” Gibbons v. Ogden, 22 U.S. 1, 194 (1824). Having previously 

stated the accepted meaning of commerce in the context of international trade, he 

concluded that “the word . . . must carry the same meaning throughout the sentence, and 

remain a unit, unless there be some plain intelligible cause which alters it.” Id. I would 

infer that the same proposition applies to the word regulate in the Clause. Thus, when 

interpreting the Foreign Commerce Clause to resolve this case, one can look to Supreme 

Court doctrine under the other commerce clauses, while recognizing that there may well 

be “plain intelligible cause[s]” that require differentiation among the clauses. I begin 

with a brief explanation of why I think that doctrine under the Indian Commerce Clause 

teaches little about how to interpret the Foreign Commerce Clause in the context of this 

case, and then I compare the Foreign Commerce Clause and the Interstate Commerce 

Clause. 

 A. The Indian Commerce Clause 

The constitutional provision containing the Interstate Commerce Clause and the 

Foreign Commerce Clause also grants congressional power “[t]o regulate Commerce . . . 

with the Indian Tribes.” U.S. Const. art. 1, § 8, cl. 3. The Supreme Court has described 

the federal power “to legislate in respect to Indian tribes . . . as plenary and exclusive.” 

United States v. Lara, 541 U.S. 193, 200 (2004) (internal quotation marks omitted). That 
6 

plenary power has been exercised so far as to impose federal criminal law within Indian 

territory. See, e.g., 18 U.S.C. § 1153 (major crimes by Indians committed in Indian 

country). Is similar authority conveyed under the Foreign Commerce Clause? After all, 

at first glance the Indian Commerce Clause would appear to be a close relative of the 

Foreign Commerce Clause. The relationship between this nation and Indian tribes has 

much in common with the relationship between this nation and foreign nations. At the 

time of the Founding (and long after), the tribes were treated as sovereignties with which 

this country entered into treaties. 

On closer inspection, however, the comparison cannot be sustained. Although the 

Indian Commerce Clause was juxtaposed with the other two commerce clauses, it was a 

late add-on at the constitutional convention, see Albert S. Abel, The Commerce Clause in 

the Constitutional Convention and in Contemporary Comment, 25 Minn. L. Rev. 432, 

467 (1941) (Abel) (the clauses granting the other two commerce powers “had been 

published by the committee of detail two weeks . . . before the subject of the Indian trade 

was introduced on the floor of the convention”); and, more importantly, the Indiancommerce power was a special subject never discussed in relation to the other two 

powers, see id. at 468 (“Whatever regulation of commerce might mean in connection 

with transactions with the Indians, it was so distinct and specialized a subject [at the 

Convention] as to afford no basis for argument as to the meaning of the rest of the 

clause.”). 

Moreover, congressional power over Indian tribes does not derive just from the 

Commerce Clause. As additional sources of “plenary and exclusive” power with respect 
7 

to Indian tribes, which have been described by the Court as “dependent sovereign[s]” that 

are not States, Lara, 541 U.S. at 203 (emphasis added), the Supreme Court has identified 

the Treaty Clause, the Property Clause, and “preconstitutional powers necessarily 

inherent in any Federal Government, namely, powers that this Court has described as 

‘necessary concomitants of nationality,’” id. at 200–01. And it has pointed to the federal 

government’s assumption of “guardian-ward” status with respect to Indian Tribes as a 

source for Congress’s “plenary power . . . to deal with the special problems of Indians.” 

Morton v. Mancari, 417 U.S. 535, 551 (1974). Given this unique status of Indians in our 

constitutional system, I think that one can learn very little about Foreign Commerce 

Clause power over Americans in foreign nations (the situation presented in this appeal) 

by examining congressional authority in Indian country. 

 B. The Interstate Commerce Clause 

The component of the Commerce Clause that has bred the most Supreme Court 

doctrine is the Interstate Commerce Clause. Although, as Chief Justice Marshall 

suggested, special considerations pertinent to each clause preclude mechanical 

application to one clause of doctrine regarding another, I first consider interstatecommerce doctrine and then address what, if any, adjustments are needed. 

I begin with propositions regarding interstate commerce that are derived from 

notions of international commerce. Chief Justice Marshall’s description of commerce 

was adopted by Chief Justice Rehnquist in United States v. Lopez, 514 U.S. 549 (1995): 

“‘Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It 

describes the commercial intercourse between nations, and parts of nations, in all its 
8 

branches, and is regulated by prescribing rules for carrying on that intercourse,’” id. at 

553 (quoting Gibbons, 22 U.S. at 189–90). But “limitations on the commerce power are 

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 internal, which is carried on between man 

and man in a State, or between different parts of the same State, and which 

does not extend to or affect other States. Such a power would be 

inconvenient, and is certainly unnecessary. 

. . . The enumeration presupposes something not enumerated; and

that something, if I regard the language, or the subject of the sentence, must 

be the exclusively internal commerce of a State. 

Id. (quoting Gibbons, 22 U.S. at 194–95). In recognition of these limitations, the

Supreme Court has identified “three categories of regulations permitted by the Interstate 

Commerce Clause: (1) regulation of “‘use of the channels of interstate commerce’”; (2) 

regulation of “‘instrumentalities of interstate commerce, or persons or things in interstate 

commerce’”; and (3) regulation of “‘activities that substantially affect interstate 

commerce.’” People for Ethical Treatment of Prop. Owners v. United States Fish & 

Wildlife Serv., 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 people 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, 621 (10th Cir. 2006). Thus, Congress can 

ban the interstate transportation of kidnapped persons or stolen goods, see Perez v. 

United States, 402 U.S. 146, 150 (1971); of women for the purpose of prostitution, see 

Caminetti v. United States, 242 U.S. 470, 491–92 (1917); of plural wives for the purpose 
9 

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 (1903); or of goods produced by underpaid 

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 targeting 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 interstate 

commerce”—such as ships, railroads, airplanes, and the telegraph; can regulate 

“intrastate activities that threaten these instrumentalities”; and can protect “the persons or 

things that the instrumentalities are moving.” Patton, 451 F.3d at 622. For example, 

Congress can ban the destruction of aircraft or theft from interstate shipments. See Perez, 

402 U.S. at 150. 

Under the third category Congress can regulate activities, even intrastate and 

noncommercial activities, if “Congress ha[s] a rational basis to find that the regulated 

activity, taken in the aggregate, would substantially affect interstate commerce.” Patton, 

451 F.3d at 623. This authority permits Congress to restrict a farmer’s production of 

wheat for his own use when the restriction’s purpose is to boost the price of wheat in 

commerce. See Wickard v. Filburn, 317 U.S. 111, 127–29 (1942); id. at 115 (the statute 

was designed “to control the volume [of wheat] moving in interstate and foreign 

commerce in order to avoid surpluses and shortages,” thereby controlling the price). This 

authority also permits Congress to control marijuana in national commerce by barring the 

noncommercial cultivation, possession, and use of marijuana for personal medical 

purposes. See Gonzales v. Raich, 545 U.S. 1, 25–33 (2005). To determine whether a 
10 

statute is authorized under this category, courts consider (1) whether the regulated 

activity is commercial or economic; (2) the relation of the regulated activity to interstate 

commerce; (3) congressional findings about the effects of the regulated activity on 

commerce; and (4) whether the statute is limited to activities having an explicit 

connection to interstate commerce—a so-called jurisdictional hook. See Patton, 451 F.3d 

at 624, 626, 630, 632. 

When the regulated activity is commercial, the regulation is generally permissible, 

given how integrated our national economy is. See id. at 623. Otherwise, “the last three 

factors are significant.” Id. at 624. Because almost any human activity could be said to 

have some effect on commerce, the Supreme Court has carefully examined the 

relationship of the regulated activity to commerce to be sure that the Commerce Clause 

power is not rendered so expansive as to supersede all the other grants of power under the 

Constitution. In particular, an effect cannot be considered “substantial” if inclusion of 

such effects would as a practical matter confer a plenary police power, contrary to the 

notion that the Constitution established a government of limited powers. In United States 

v. Lopez, 514 U.S. at 549, the Court invalidated a federal statute prohibiting possession of 

a firearm in a school zone, despite arguments that such possession may result in violent 

crime, which can affect the national economy (1) because the costs imposed are spread 

throughout the population, (2) because fear of violence deters individuals from traveling 

to unsafe areas, and (3) because the threat to the educational system will reduce the 

productivity of the citizenry. See id. at 567–68 (to expand interstate-commerce power to 

encompass the statute “would require us to conclude that the Constitution’s enumeration 
11 

of powers does not presuppose something not enumerated, and that there never will be a 

distinction between what is truly national and what is truly local” (citation omitted)). 

And in United States v. Morrison, 529 U.S. 598 (2000), the Court invalidated a federal 

civil remedy for the victims of gender-motivated crimes of violence, rejecting arguments 

that gender-motivated violence affects interstate commerce because it can deter interstate 

travel, engaging in interstate business, etc. See id. at 617–18 (“The Constitution requires 

a distinction between what is truly national and what is truly local . . . . The regulation 

and punishment of intrastate violence that is not directed at the instrumentalities, 

channels, or goods involved in interstate commerce has always been the province of the 

States.”). The problem with the statutes in Lopez and Morrison was not that it was 

irrational to think that the regulated activities would affect commerce, but that the effect 

was so indirect—and therefore not “substantial”—that to uphold the statute would be to 

uphold unlimited Commerce Clause power. See Patton, 451 F.3d at 629 (Lopez and 

Morrison rejected the government’s arguments “largely on the ground that, if accepted, 

similar effects could be invoked in every case, and the Commerce Clause would become, 

in effect, a grant of general governing authority”).

It is important to keep in mind this limitation on the third category of regulation 

under the Commerce Clause—the regulation of activities that substantially affect 

interstate commerce – when considering the scope of the first two categories—(1) the 

regulation of the use of the channels of commerce and (2) the regulation of the 

instrumentalities of commerce and persons or things in interstate commerce. The first 

two categories are qualitatively different from the third. “The first two categories are 
12 

self-evident, since they are the ingredients of interstate commerce itself.” Raich, 545 

U.S. at 34 (Scalia, J., concurring). “[A]ctivities that substantially affect interstate 

commerce [, however,] are not themselves part of interstate commerce.” Id. Regulation 

in the first two categories can be upheld just by identifying what is being regulated – the 

use of the channels of interstate commerce, or instrumentalities of interstate commerce, 

or persons or things in interstate commerce. But determining the propriety of regulation 

under the third category requires more. The courts must determine whether the activity 

being regulated has a causal connection to interstate commerce that can properly be 

deemed “substantial.” An improper expansion of either of the first two categories to 

encompass regulation that properly belongs within the third category therefore would 

evade the constitutional constraints imposed on the third category of regulation. For 

example, this court has said that under the channels category, “Congress regulates not 

conduct related to interstate commerce but rather interstate commerce itself, barring from 

the channels of interstate commerce a class of goods or people”; and the court described 

that category of regulation as being “confined to statutes that regulate interstate 

transportation itself, not manufacture before shipment or use after shipment.” Patton, 

451 F.3d at 621. The court concluded that “[a] prohibition on the mere intrastate 

possession of body armor cannot be upheld under Congress’s power to regulate the 

channels of interstate commerce.” Id. 

Finally, one aspect of the Supreme Court’s three-part test is often overlooked. The 

division of interstate-commerce regulation into three categories is less a policy matter 

than it is definitional. To my knowledge, no one has suggested that there is some other 
13 

type of possible regulation outside of those categories. Controversy concerns only 

whether one of those types of regulation is permitted at all by the Constitution, see Nat’l 

Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 132, 2677 (Thomas, J., dissenting) (stating that 

there is no constitutional power to regulate activity simply because it has a “substantial 

effect” on commerce), or what is the proper scope of one of the categories (such as the 

question of how substantial the effect on commerce must be).

C. The Foreign Commerce Clause

I next consider how much of this Interstate Commerce Clause doctrine translates 

to the Foreign Commerce Clause. How much of the doctrine should be carried over and 

how much is not applicable because of some special consideration—that is, in the words 

of Ogden, 22 U.S. at 194, because of some “plain intelligible cause”? In particular, how 

should one analyze congressional authority under the Foreign Commerce Clause over 

conduct of Americans abroad, as in the case before us? 

The critical question is when, if ever, the terms commerce and regulate have a 

different meaning under the Foreign Commerce Clause than they do under the Interstate 

Commerce Clause. As previously noted, Chief Justice Marshall indicated the general 

rule that they are understood as having the same meaning in the foreign and domestic 

context, saying: “Commerce, undoubtedly, is traffic, but it is something more: it is 

intercourse. It describes the commercial intercourse between nations, and parts of 

nations, in all its branches, and is regulated by prescribing rules for carrying on that 

intercourse.” Gibbons, 22 U.S. at 189–90. Unfortunately, however, there are no 
14 

Supreme Court opinions on whether the terms have distinct meetings in the context of 

regulation of the conduct of Americans abroad. 

The Court’s only decisions on the Foreign Commerce Clause have concerned the 

scope of the Clause with respect to conduct within the borders of the United States and, 

consequently, the relative powers of the federal and state governments under the Clause. 

Typical of the early opinions interpreting the Clause, in Board of Trustees of University 

of Illinois v. United States, 289 U.S. 48, 56 (1933), the Court rejected a claim that a 

university could not be required to pay customs duties on imported scientific apparatus 

because the school was an instrumentality of the State. See id. at 56–59. The Court 

emphasized the preeminence of federal power over states’ rights in this field: “To permit 

the states and their instrumentalities to import commodities for their own use, regardless 

of the requirements imposed by the Congress, would undermine, if not destroy, the single 

control which it was one of the dominant purposes of the Constitution to create.” Id. at 

59. In that case there could be no question that the federal law—which imposed a 

customs duty on imported equipment—was a regulation of foreign commerce. The 

argument to the court was that there should be an exemption from that regulation for state 

entities. And the Court rejected the argument, noting the importance of not allowing 

variation among the States.

Fifty years later, in Japan Line, Ltd. v. County of Los Angeles, 444 U.S. 434 

(1979), the Court considered not the powers of Congress, but the limits that the power 

given to Congress under the Foreign Commerce Clause implicitly places on the powers of 

the States in the absence of federal legislation—the so-called dormant Foreign Commerce 
15 

Clause. The State of California sought to assess an ad valorem property tax on cargo 

containers aboard Japanese ships temporarily docked in California’s ports. See 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 Clause vests in the federal government the exclusive 

power to regulate commerce with foreign nations and forbids the tax. See id. at 453–54. 

There was no question that the activity at issue in Japan Lines was regulation of 

foreign commerce. The question was the extent to which the States shared this regulatory 

power with the federal government. What the Court held was that the dormant Foreign 

Commerce Clause limited the powers of States to regulate foreign commerce more than 

the Interstate Commerce Clause limits the powers of States to regulate interstate 

commerce. Indeed, the Court assumed that the California tax would be lawful if applied 

to goods transported in interstate commerce. Under the dormant Interstate Commerce 

Clause test set forth in Complete Auto Transit, Inc. v. Brady, 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 with the taxing State, is fairly apportioned, does not 

discriminate against interstate commerce, and is fairly related to the services provided by 

the State.’” Japan Line, 441 U.S. at 444–45 (quoting Complete Auto, 430 U.S. at 279). 

The Court said, however, that “two additional considerations” are at play under the 

Foreign Commerce Clause. Id. at 446. One is the imperative, mentioned in Board of 

Trustees, 289 U.S. at 59, that the country “speak with one voice when regulating 

commercial relations with foreign governments.” Japan Line, 441 U.S. at 449 (internal 
16 

quotation marks omitted). State taxes on foreign commerce could generate international 

disputes and result in retaliation against American instrumentalities present in foreign 

jurisdictions. See id. at 450. The other consideration is that the “fair apportionment” 

component of the Complete Auto test cannot be enforced in the international context. See 

id. at 446. That test can prevent multiple taxation of instrumentalities in interstate 

commerce because the Supreme Court can “enforce full apportionment by all potential 

taxing bodies.” Id. at 447. In the international sphere, however, there is no “authoritative 

tribunal capable of ensuring that the aggregation of taxes is computed on no more than 

one full value.” Id. at 447–48. “[N]either [the] Court nor this Nation can insure full 

apportionment when one of the taxing entities is a foreign sovereign.” 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 to foreign commerce, the Court said, “Although the 

Constitution, Art. I, § 8, cl. 3, grants Congress power to regulate commerce ‘with foreign 

Nations’ and ‘among the several States’ in parallel phrases, there is evidence that the 

Founders intended the scope of the foreign commerce power to be the greater.” Id. at 

448. The government’s brief points to this sentence in support of its argument that 

congressional power under the Foreign Commerce Clause is “plenary.” But the sentence 

must be read in context. The Court did not say that the term commerce has a broader 

meaning in the foreign-commerce context than it does in the interstate-commerce context. 

Nor did it say that the term regulate has a broader meaning in the former context. Nor 
17 

did the Japan Line opinion have occasion to consider congressional power to regulate the 

conduct of Americans abroad. Indeed, the question was not the extent of congressional 

power; no one was arguing about whether Congress could pass legislation imposing taxes 

like those imposed by California, or even authorize states to impose such taxes. Rather, 

the question was the exclusivity of congressional power: Could California, in the absence 

of federal regulation, impose its own regulations? The one-voice principle in Foreign 

Commerce Clause jurisprudence does not expand congressional power. It does not add a 

megaphone to magnify the voice of Congress and permit it to enact legislation that it 

would not otherwise be permitted to enact. Rather, it is a restriction on the States. It 

silences them so that only the voice of the national government is heard on international 

matters. 

 This construction of the meaning of the comment in Japan Lines is consistent 

with the “evidence” that the Court referred to in its footnote. See id. at 448 n.12. The 

footnote cites to Federalist No. 42, which discusses the powers granted the federal 

government to “regulate the intercourse with foreign nations,” such as the powers to 

make treaties, to send and receive ambassadors, and to regulate foreign commerce. The 

Federalist No. 42, at 231 (Madison) (E.H. Scott ed., 1898). The essay states: “This class 

of powers forms an obvious and essential branch of the federal administration. If we are 

to be one nation in any respect, it clearly ought to be in respect to other nations.” Id. 
18 

This passage is certainly support for the exclusivity of federal authority noted in Japan 

Line, but it has no relevance to our case.5

 

The Court’s footnote also cites a law-review article as “concluding, after an 

exhaustive survey of contemporary materials: ‘Despite the formal parallelism of the 

grants, there is no tenable reason for believing that anywhere nearly so large a range of 

action was given over commerce “among the several states” as over that “with foreign 

nations.”’” 441 U.S. at 448 n.12 (quoting Abel, supra at 475). Nothing in the article, 

however, even hints at the possibility that the Foreign Commerce Clause could be used to 

govern noncommercial conduct of Americans abroad. The quotation from the Abel 

article is the conclusion of a discussion confirming the accuracy of Madison’s 

recollection of the Convention decades afterwards, in which he “explicitly negatives the 

suggestion that the [Interstate Commerce Clause] was designed to have as wide an 

operation as the companion grant with regard to foreign commerce, and assigns to it 

instead merely ‘a negative and preventive’ function, to control state-created 

discriminations and preferences.” Abel at 469 (quoting Letter of February 13, 1829, to J. 

C. Cabell, as quoted in 3 Farrand 478). In other words, Abel was saying that the 

 

5

 The essay also notes the role played by the Interstate Commerce Clause in facilitating 

foreign commerce: “[I]t may be added, that without this supplemental provision [the 

Interstate Commerce Clause], the great and essential power of regulating foreign 

commerce would have been incomplete and ineffectual. A very material object of this 

power was the relief of the States which import and export to other States, from the 

improper contribution levied on them by the latter.” The Federalist No. 42 at 235. An 

1829 letter from James Madison cited in the Japan Line footnote also states this purpose 

for the Interstate Commerce Clause. Again, the point being made is the need for 

exclusive federal power. 
19 

Framer’s view, totally contrary to current doctrine, was that the Interstate Commerce 

Clause was not considered as a grant of affirmative legislative power to regulate 

interstate commerce, but as a means to constrain state interference with such commerce. 

See id. at 468–75; see also id. at 471 (“There is thus not a single occasion in the 

proceedings of the convention itself where the grant of power over commerce between 

the states was advanced as the basis for independent affirmative regulation by the federal 

government. Instead, it was uniformly mentioned as a device for preventing obstructive 

or partial regulations by the states.”). Moreover, the Abel article points out the limited 

scope that the Founders gave to the term commerce even in the foreign-commerce 

context: “These three large classes of subjects—fiscal regulation [that is, duties] as to 

imports and exports, navigation, ‘mercantile’ enterprises—are the only ones that there is 

any evidence for believing were thought of by any one as embraced within ‘commerce’ 

or affected by the grant of power to regulate it.” Abel, supra at 465; see also id. at 464 

(emphasizing the narrow notion of mercantile (or merchant) enterprises at the time of the 

Convention, stating that the merchant’s “activities conform nicely to those of the presentday importer, commission house, and wholesale firm, with just a dash of the commodity 

exchange; they hardly embrace those of the jobber, the hawker, or the retailer, who to us 

is the merchant par excellence.”). What we now consider to be the scope of the 

interstate-commerce power surely exceeds the Founders’ conception of the foreigncommerce power. See id. at 478 (“Today [that is, 1941] we are accustomed to think of 

the arteries of commerce, the highways and the inland streams, harbors, bridges, and the 
20 

like, as within the ambit of congressional power under the commerce clause. This is not 

the way the framers of the constitution looked at the matter.”).

6

 

The panel opinion suggests that the text of the Commerce Clause indicates that 

power under the Foreign Commerce Clause exceeds that under the Interstate Commerce 

Clause. See Maj. Op. at 27–28. It notes that the Clause speaks of commerce “with

foreign Nations” but “among the several States.” But the difference in prepositions 

indicates the opposite. If the Clause permitted regulation of commerce “among foreign 

nations”—so that the two clauses used the same preposition—then Congress would be 

empowered to regulate commerce among France, England, and Italy, even if the United 

States were not involved at all. Thus, use of the preposition with instead of the 

preposition among obviously limits the extent of the Foreign Commerce Clause. See

Colangelo supra at 970–71 (explaining the difference between the uses of the two 

prepositions in the Commerce Clause).7

 

 In short, the greater-power statement by the Supreme Court in Japan Line should 

not be overread. The statement was made in the context of the assertion that the need for 

national uniformity under the Foreign Commerce Clause could require greater limitations 

 

6

 The Japan Line footnote also cited two student notes that do not affect the analysis. 

7

 I am perplexed by the statement: “‘Among’ in the [Interstate Commerce 

Clause] restrains Congress in regulating intrastate matters—a constraint not 

present in the [Foreign Commerce Clause].” Maj. Op. at 27. Since the Foreign 

Commerce Clause requires that the commerce be that of a foreign country with the 

United States, it obviously restrains the application of that Clause within a foreign 

country. 
21 

on state action than would the Interstate Commerce Clause alone. As Justice Thomas has 

observed: 

This Court’s statements about the comparative breadth of the Foreign 

Commerce Clause are of questionable relevance where the issue is 

Congress’ power to regulate, or even criminalize, conduct within another 

nation’s sovereign territory. . . . [E]ven if the foreign commerce power 

were broader than the interstate commerce power as understood at the 

founding, it would not follow that the foreign commerce power is broader 

than the interstate commerce power as this Court now construes it. 

Baston v. United States, 137 S. Ct. 850, 852 (2017) (Thomas, J., dissenting from denial of 

certiorari). 

 This is not to say that national powers under the Foreign Commerce Clause and 

the Interstate Commerce Clause must be identical. After all, Japan Line makes clear that 

they are not. When it comes to state taxation of commerce, there are “plain intelligible 

cause[s],” Gibbons, 22 U.S. at 194, why States must be more limited in taxing foreign 

commerce than in taxing interstate commerce. For one thing, there is the need for the 

nation to speak with one voice in relations with other countries. That “cause,” however, 

has no purchase in this case. The statutory provision under which Defendant was 

convicted was hardly animated by any perceived need to prevent the various States from 

engaging in conflicting policies toward foreign nations. 

The panel opinion also suggests that some interstate-commerce doctrine—in 

particular, the gloss presented in Lopez and Morrison—does not apply because the limits 

on interstate-commerce power in that doctrine reflect concerns for the sovereignty of the 

States, concerns not present in foreign-commerce doctrine. But surely there is no reason 

to define the terms commerce and regulate more broadly in the foreign-commerce 
22 

context than in the interstate-commerce context. And the majority’s approach overlooks 

a key principle underlying Lopez and Morrison: The Court’s concern was not just that an 

overbroad conception of the interstate-commerce clause would give the federal 

government authority that could override police powers held by the States; it also 

expressed a fundamental concern that an overbroad conception would give the federal 

government general police powers, contrary to the constitutional framework of a federal 

government of limited power. See, e.g., Lopez, 514 U.S. at 564 (“if we were to accept the 

Government’s arguments, we are hard pressed to posit any activity by an individual that 

Congress is without power to regulate”); id. at 566 (“The Constitution . . . withhold[s] 

from Congress a plenary police power that would authorize enactment of every type of 

legislation.”); id. at 567 (“To uphold the Government’s contentions here, we would have 

to pile inference upon inference in a manner that would bid fair to convert congressional 

authority under the Commerce Clause to a general police power of the sort retained by 

the States.”); see also Nat’l Fed’n of Indep. Bus., 567 U.S. 519, 535–36 (Roberts, C.J., 

writing separately) (“This case concerns two powers that the Constitution does grant the 

Federal Government, but which must be read carefully to avoid creating a general federal 

authority akin to the police power.”). 

The real danger lies in overbroad application of the third type of regulation under 

the Commerce Clause: the regulation of activities that substantially affect commerce. 

Given the reality that in modern times every activity can be said to have some effect on 

commerce, courts must set reasonable limits on the meaning of “substantial effect” or 

concede that the vision of a Constitution of limited powers, see, e.g., U.S. Const. amend. 
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 not construe it in a way that would amount to ceding to 

Congress a general police power over Americans with respect to all conduct beyond our 

shores. 

Unlike the Supreme Court doctrine that the Foreign Commerce Clause embodies 

the concept that the country should speak with one voice in foreign affairs, which is 

firmly supported by evidence from the Founding, there is nothing—at least nothing 

brought to my attention or that I have found—suggesting that the Framers held any idea 

remotely like the possibility that the Foreign Commerce Clause would provide plenary 

power to police the behavior of Americans in foreign countries. Rather, the evidence is 

to the contrary. As Chief Justice Marshall explained: 

 The jurisdiction of the nation within its own territory is necessarily 

exclusive and absolute. It is susceptible of no limitation not imposed by 

itself. Any restriction upon it, deriving validity from an external source, 

would imply a diminution of its sovereignty to the extent of the restriction, 

and an investment of that sovereignty to the same extent in that power 

which could impose such restriction. 

 All exceptions, therefore, to the full and complete power of a nation 

within its own territories, must be traced up to the consent of the nation 

itself. They can flow from no other legitimate source. 

The Schooner Exch. v. McFaddon, 11 U.S. 116, 136 (1812) (emphasis added). And 

specifically with respect to trade, Alexander Hamilton wrote the following a few years 

after ratification of the Constitution: 

Congress . . . may regulate by law our own Trade and that which

foreigners come to carry on with us, but they [that is, Congress] cannot 

regulate the Trade which we may go to carry on in foreign countries, they 
24 

can give to us no rights, no privileges there. This must depend on the will 

and regulation of those countries; and consequently it is the province of the 

power of Treaty to establish the rule of commercial intercourse between 

foreign nations and the U[nited] States. The Legislature may regulate our 

own Trade but Treaty only can regulate the mutual Trade between our own 

and another Country. 

Alexander Hamilton, The Defence No. XXXVI (Jan. 2, 1796), in 20 The Papers of 

Alexander Hamilton (Harold C. Syrett ed. 1974), available at 

http://founders.archives.gov/documents/Hamilton/01-20-02-00028

; see Al-Maliki, 787 

F.3d at 793 (“[A]n unbounded reading of the Foreign Commerce Clause allows the 

federal government to intrude on the sovereignty of other nations—just as a broad 

reading of the Interstate Commerce Clause allows it to intrude on the sovereignty of the 

States.”), cert. denied, 136 S. Ct. 204 (2015). 

 These views of the exclusivity of sovereign jurisdiction are overstated, at least 

under current international law. I recognize that international law now generally permits 

a nation “to prescribe law with respect to . . . the activities, interests, status, or relations of 

its nationals outside as well as within its territory.” Restatement (Third) of the Foreign 

 

8

 The panel opinion points to an additional passage from earlier in Hamilton’s essay: 

“[A nation’s] power to make laws . . . acts compulsively upon all persons, whether 

foreigners or Citizens, and upon all things, within its territory, and it acts in like manner 

upon its own citizens and their property without its territory in certain cases and under 

certain limitations. But it can have no obligatory action whatsoever upon a foreign nation 

or any person or thing within the jurisdiction of such foreign Nation.” The Defence. The 

panel opinion reads this passage as permitting prosecution for acts in another country so 

long as the prosecution occurs here. See Maj. Op. 34 n.17. This is not an unreasonable 

interpretation if the passage is read in isolation, although such a prosecution would seem 

to contradict the notion expressed by Hamilton that a nation cannot impose obligations on 

someone (that is, on his or her conduct) while in a foreign jurisdiction. But in any event, 

any ambiguity in this passage is resolved by the later passage quoted in the above text, 

which says that Congress “cannot regulate the trade which we may go to carry on in 

foreign countries.” The Defence. 
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 when the exercise of such jurisdiction is unreasonable”); 

Colangelo supra at 1035–37. But that is beside the point that is relevant here. This 

proposition of international law does not distinguish the Foreign Commerce Clause from 

the Interstate Commerce Clause. International law would permit the federal government 

to enact the statutes struck down in Lopez and Morrison. The question is what our 

Constitution permits. And the statements by Chief Justice Marshall and Alexander 

Hamilton, together with the absence of any evidence that the Foreign Commerce Clause 

was conceived as providing congressional authority to govern all (or any?) conduct in 

foreign nations, strongly suggest that the sovereignty of foreign governments was as 

much assumed with respect to the Foreign Commerce Clause as was state sovereignty 

with respect to the Interstate Commerce Clause. (It should also be noted that in one 

respect the sovereignty of foreign nations was entitled to greater consideration—namely, 

the States, by ratifying the Constitution, had voluntarily ceded some of their sovereignty 

to the federal government.) 

Indeed, Japan Line based its limitations on state power imposed by the Foreign 

Commerce Clause in part on the recognition of the limits of the federal government’s 

power in other countries. When foreign commerce is taxed by the States, the Supreme 

Court cannot prevent multiple taxation by requiring apportionment of the taxes by the 

sovereignties imposing them, as the Court can when only interstate commerce is 
26 

involved, because the Court has no authority over foreign governments. See 441 U.S. at 

447–48. And for the same reason, the federal government cannot prevent foreign nations 

from retaliating when the States impose such taxes. See id. at 450. Federal power under 

the Foreign Commerce Clause should be construed with consideration of the sovereign 

power of other nations just as federal power under the Interstate Commerce Clause is 

constrained by state sovereignty. See 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” as a limit on congressional power under the Foreign 

Commerce Clause). 

Further, the Tenth Amendment—“The powers not delegated to the United States 

by the Constitution, nor prohibited by it to the States, are reserved to the States 

respectively, or to the people”—emphasizes that exceeding power under the Foreign 

Commerce Clause infringes on the rights of the people. See 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 individual citizens. And that seems at least as wrong as a 

reading of the Commerce Clause that allows the government to intrude on the States. See

U.S. Const. amend. X (reserving power to the States ‘or to the people.’”). 

I should emphasize that the point I am making is a limited one. I am not saying 

that the Constitution forbids the exercise of any power over conduct in other nations. For 

one thing, constitutional provisions other than the Foreign Commerce Clause can be the 

source of such power. And my view does not totally foreclose the exercise of such power 

under the Foreign Commerce Clause, even as authority for other provisions of the 
27 

PROTECT Act. For example, what I am saying does not call into question the 

constitutionality of the prohibition on travel to a foreign country with the intent to engage 

in illicit sexual conduct (the charge Defendant was acquitted of) or the prohibition on 

engaging in commercial illicit sexual conduct after travel to a foreign country. I am 

merely rejecting the notion that because the Foreign Commerce Clause overrides state 

sovereignty, the power under the Clause to regulate conduct in foreign nations is 

unconstrained. 

To summarize, absent some “plain, intelligible cause”—such as the need for the 

nation to speak with one voice in foreign affairs or the limits of national power in a 

foreign country—I shall assume that the language “to regulate commerce” has the same 

meaning in the Foreign Commerce Clause as in the Interstate Commerce Clause. In 

particular, I borrow jurisprudence regarding the Interstate Commerce Clause in two 

respects. First, since the power of Congress under both that clause and the Foreign 

Commerce Clause is “[t]o regulate Commerce,” I can adopt the Interstate Commerce 

Clause doctrine interpreting that language to encompass three types of regulation: 

regulation of the channels of commerce, regulation of the instrumentalities of commerce, 

and regulation of activities that substantially affect commerce. See Gonzales, 545 U.S. at 

16 (“Cases . . . have identified three general categories of regulation in which Congress is 

authorized to engage under its commerce power”); United States v. Clark, 435 F.3d 1100, 

1118 (9th Cir. 2006) (Ferguson, J., dissenting) (“A fairer understanding of the tricategory framework is that it has evolved not only in response to federalism concerns that 

courts have read into Congress’s Interstate Commerce power, but also to give content to 
28 

what it means generally ‘[t]o regulate Commerce,’ art. I, § 8, cl. 3.” (brackets in 

original)). Other courts and judges have done the same when evaluating congressional 

enactments under the Foreign Commerce Clause. See Bollinger, 798 F.3d at 215 (“We 

agree that the Lopez categories provide a useful starting 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] framework” since the “Supreme Court has not yet held that Congress 

has greater authority to regulate activity outside the United States than it does within its 

borders”); Clark, 435 F.3d at 1118 (Ferguson, J., dissenting) (criticizing majority for 

departing from Interstate Commerce Clause framework in resolving issue under Foreign 

Commerce Clause); United States v. Reed, No. CR 15-188 (APM), 2017 WL 3208458, 

at *7 (D.D.C. July 27, 2017) (“Given the ambiguous contours of this constitutional power 

and the dearth of precedent in this jurisdiction, this court will look—as others have 

done—to the well-known Interstate Commerce Clause framework to analyze whether 

Section 2423(c) is a constitutional exercise of Congress’ Commerce Power.”); cf. United 

States v. Baston, 818 F.3d 651, 668 (11th Cir. 2016), cert. denied, 137 S. Ct. 850 (2017) 

(upholding statute on assumption “that the Foreign Commerce Clause 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 law, but stating that under Japan Line greater deference is 

owed to regulation of foreign commerce); United States v. Homaune, 898 F. Supp. 2d 

153, 159 (D.D.C. 2012) (upholding statute on assumption that the “Foreign Commerce 
29 

Clause is at least as broad as the more familiar Interstate Commerce Clause,” citing 

Japan Line). 

Second, I adopt the limiting principle employed by the Court in the interstatecommerce context that the power conferred by the Clause cannot be construed so broadly 

as to encompass everything that can somehow be causally connected to commerce. Such 

a construction would be contrary to any notion of the Constitution as the source of only 

enumerated powers. See Morrison, 529 U.S. at 615–19; Lopez, 514 U.S. at 566 (“The 

Constitution . . . withhold[s] from Congress a plenary police power”); see also Nat’l 

Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 554 (2012) (separate opinion of Roberts, 

C.J.) (“[O]ur cases have ‘always recognized that the power to regulate commerce, though 

broad indeed, has limits.’” (quoting Maryland v. Wirtz, 392 U.S. 183, 196 (1968)); id. at 

536 (Congress’s power over commerce “must be read carefully to avoid creating a 

general federal authority akin to the police power.”). In the contemporary world, where 

everything can be said to be connected in some way to international commerce, the risk 

of using the Foreign Commerce Clause to justify plenary police powers (not just at home, 

but abroad as well) is every bit as great as the risk of using the Interstate Commerce 

Clause for the same purpose. Thus, when I turn to congressional power under the 

Foreign Commerce Clause to enact the third category of regulation—regulation of 

activities that substantially affect commerce—I will keep in mind the Supreme Court’s 

conception of “substantially” to preclude regulation of activities whose connection to 

commerce is too indirect. 
30 

III. Application of Foreign Commerce Clause to This Case 

I now proceed to consider whether § 2423(c), as applied to noncommercial illicit 

sexual conduct, can be justified under the Foreign Commerce Clause as one of the three 

types of permissible regulation. 

A. Channels of Commerce 

As discussed at length earlier in this opinion, the Commerce Clause grants 

Congress the authority “to keep the channels of interstate commerce free from immoral 

and injurious uses.” 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)). Under this authority the 

Supreme Court has affirmed bans 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 barred from interstate commerce was tainted by either prior immoral 

conduct or the intent to engage in such conduct upon completion of the journey. 

That channels authority does not extend to the conduct for which Defendant was 

convicted. I can assume that it extends to the conduct for which the jury found 

Defendant not guilty—traveling in [foreign commerce] with the intent to commit illicit 

sexual conduct. But absent that intent, Defendant could not be distinguished from any 

ordinary international traveler. The channels of foreign commerce were free of immoral 

and injurious uses since his intent was not found to be corrupt. He was not tainted at the 
31 

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 crossing state lines, to 

become prostitutes.”); Clark, 435 F.3d at 1120 (Ferguson, J., dissenting) (“The mere act 

of boarding an international flight, without more, is insufficient to bring all of [a 

person’s] downstream activities . . . within the ambit of Congress’s Foreign Commerce 

power.”). 

 The government nevertheless suggests that this court is bound to hold that the 

statutory provision before us constitutes channels regulation because of our conclusion in 

United States v. Hinckley, 550 F.3d 926, that the Sex Offender Registration and 

Notification Act (SORNA) can be upheld as regulation of the channels of commerce. 

The rationale for SORNA is that convicted sex offenders pose a particular danger to the 

public, the public needs to be warned of their proximity, and they should not be permitted 

to misuse the channels of interstate commerce to move from the state of conviction to 

another state to avoid this publicity. Under SORNA, sex offenders are not absolutely 

prohibited from interstate travel, but they can do so only if they register promptly upon 

establishing a new residence. 

SORNA is a comfortable fit as channels regulation. The person subject to 

regulation is a person who can be identified while in the channels of commerce—the 

person has been convicted of a sexual offense. Such persons can be considered tainted 

things traveling in the channels of interstate commerce. And the SORNA registration 

requirement is an incidental condition for permitting such persons to travel in those 

channels. See United States v. Anderson, 771 F.3d 1064, 1070 (8th Cir. 2014) (“[T]he 
32 

registration requirements of [SORNA] are part of the constitutional power Congress has 

to punish sex offenders who cross state lines. Because Congress has the power to punish 

sex offenders across state lines, Congress is able to exercise the ‘narrow’ and ‘incidental’ 

power of requiring those sex offenders to register.” (citation omitted)). That is a very 

different situation from the statutory provision here, because the defendant traveling to a 

foreign country cannot be singled out for any prior misconduct or even any intent to 

commit misconduct in the future. Hinckley does not control this case. 

The government has not offered any principled basis, or any basis for that matter, 

for upholding channels-of-commerce authority for Defendant’s offense that would not 

permit Congress to subject an American to federal prosecution for any offense committed 

abroad. Congress could penalize an American who traveled abroad and committed fraud, 

gambled (even if lawful where conducted), or merely littered. The federal government 

would have plenary police power over all Americans anywhere in the world. This cannot 

be the product of a Constitution of limited powers. I respectfully disagree with the Third 

Circuit’s reliance on the above-cited channel-of-commerce cases to sustain a similar 

conviction. See Pendleton, 658 F.3d at 311. 

B. Instrumentalities of Commerce and Persons or Things in 

 Commerce 

Lopez held that “Congress is empowered to regulate and protect the 

instrumentalities of interstate commerce, or persons or things in interstate commerce, 

even though the threat may come only from intrastate activities.” 514 U.S. at 558. No 

court has affirmed the PROTECT Act on this ground. The government, however, argues 
33 

that Defendant was a person “in [foreign] commerce” and therefore subject to 

congressional regulation. But this argument is based on a misconception of what it 

means to be “in interstate [or foreign] commerce.” What Lopez was speaking of was 

regulation governing persons or things while they are traveling. A law prohibiting 

robbing people riding on an interstate stagecoach or thefts of property from trains would 

be within this power. See Patton, 451 F.3d at 622 (suggesting that a proper statute under 

the Commerce Clause could “protect [an item] while it is moving in interstate 

shipment”). Our precedent notes that “[t]he illustrative cases for this category involve 

things actually being moved in interstate commerce, not all people and things that have 

ever moved across state lines.” 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, that SORNA would 

be constitutional under this category of regulation of interstate commerce, we did not 

distinguish the category as applied in that context from the first category of regulation— 

regulation of the channels of commerce. And I have already explained how SORNA 

differs from § 2423(c) under the first category, so Hinckley is distinguishable on that 

score. I am reluctant to read the passing reference in Hinckley as a rejection of the more 

thorough analysis provided by Patton of the second category of regulation. Cf. Auraria 

Student Hous. v. Campus Vill. Apartments, 843 F.3d 1225, 1235 (10th Cir. 2016) (earlier 

circuit precedent ordinarily prevails over later decision).
34 

C. Substantial Effects on Commerce 

The final source of congressional authority over commerce is the power to 

regulate “activities that substantially affect interstate [or foreign] commerce.” Lopez, 514 

U.S. at 559. In analyzing this issue, it is first necessary to recognize that noncommercial 

sexual activity is not commerce. It is not “the buying, selling, production, or 

transportation of products or services, or any activity preparatory to it.” 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 interpreted the contours of 

the third category by reference to ‘economics’ rather than ‘commerce,’ and included the 

‘consumption of commodities’ as well as their production and distribution within that 

definition.”). Engaging in noncommercial nonconsensual sexual activity is no more an 

economic activity than the gender-motivated violence targeted by the statute held 

unconstitutional in Morrison. See 529 U.S. at 613 (“Gender-motivated crimes of 

violence are not, in any sense of the phrase, economic activity.”). 

The fact that noncommercial nonconsensual sexual activity is not economic 

activity is extremely important, probably dispositive, in determining whether it is subject 

to the third category of regulation of commerce. The Supreme Court thus far has upheld 

under the third category only regulation of economic activity. See Raich, 545 U.S. at 17 

(“Our case law firmly establishes Congress’ power to regulate purely local activities that 

are part of an economic ‘class of activities’ that have a substantial effect on interstate 

commerce.”) The panel opinion cites Raich as a case in which the Court “upheld 
35 

congressional regulation of noncommercial activity.” Maj. Op. at 52 n.21. But the 

Supreme Court opinion made clear that the activity, even if not commercial, was 

“economic.” It distinguished earlier Court decisions overturning congressional 

legislation with the words: “Unlike those at issue in Lopez and Morrison, the activities 

regulated by the [Controlled Substances Act] are quintessentially economic.” 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 the term cannot change the 

nature of every activity within the definition. Suppose the Controlled Substances Act 

also prohibited jogging (because it can produce a runner’s high). That would not place 

jogging within the “economic class of activities” of controlled substances and thereby 

allow the prohibition. Cf. Sebelius, 567 U.S. at 547–61 (Opinion of Roberts, C.J.) 

(failure to purchase medical insurance is not economic activity and cannot be regulated 

under the Commerce Clause despite effect on health-insurance market); id. at 646–48 

(Scalia, J., joined by three other Justices in concurring on this issue) (“failure to engage in 

economic activity (the purchase of health insurance) is [not] subject to regulation under 

the Commerce Clause”). 

But even if noncommercial illicit sexual conduct could be regulated if it has a 

substantial effect on commerce, there is no reason to believe that it has such an effect. As 

noted earlier, the Supreme Court has examined three factors in conducting a substantialeffect analysis: the relation of the regulated activity to commerce; congressional findings 

about the activity’s effects on commerce; and the presence in the statute of an express 
36 

jurisdictional element limiting 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 if the activity involves a good that is identical to (fungible 

with) goods in commerce, regulation may be permissible. (Do not forget, though, that 

activity with respect to goods is “economic” activity. See Raich, 545 U.S. at 25.) In 

Wickard, Congress had authorized quotas on the production of wheat because the 

industry had been plagued by large surpluses that depressed prices. See 317 U.S. at 113, 

125–28. A farmer who grew wheat in excess of the quota (to feed poultry and livestock 

on his farm, to use in making flour for home consumption, and for seeding the following 

year) challenged the quota, arguing that it regulated noncommercial conduct. See id. at 

114, 118. But the Court upheld the quota as a permissible regulation to protect the price 

of a commodity because the aggregate effect of many farmers exceeding the quota would 

substantially affect the wheat market. See id. at 127–28. It reasoned that farmers who 

grow wheat in excess of the quota purely for home consumption are doing so instead of 

buying wheat on the market, thereby decreasing the demand for wheat and undermining 

Congress’s goal of boosting the price. See 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 the farm” to protect the 

price of the commodity in commerce. Id. at 118. 
37 

Six decades later, the Supreme Court addressed a challenge to the federal ban on 

marijuana in the Controlled Substances Act (CSA). The CSA, said the Court, “regulates 

the production, distribution, and consumption of commodities for which there is an 

established, and lucrative, interstate market.” Raich, 545 U.S. at 26. In particular, 

Congress had classified marijuana as a drug with a high potential for abuse and no 

accepted medical use, which made its manufacture, distribution, or possession a criminal 

offense. See id. at 14. The question was whether those prohibitions could encompass 

“the intrastate, noncommercial cultivation and possession of cannabis for personal 

medical purposes as recommended by a patient’s physician pursuant to a valid California 

state law.” Id. at 8 (internal quotation marks omitted). The Court answered the question 

affirmatively because Congress “had a rational basis for concluding that leaving homeconsumed marijuana outside federal control would . . . affect price and market 

conditions.” Id. at 19. Just like wheat grown for home consumption, marijuana 

cultivated for that purpose overhangs the market, making it likely that “high demand in 

the interstate market will draw such marijuana into the market.” Id. 

Relying on Wickard and Raich, the government argues that the PROTECT Act is 

within congressional power because it was enacted “to close the child-sex-tourism 

market.” Aplee. Br. at 62. That rationale may well suffice with respect to the provision 

of the Act barring commercial sex. But the analogy to Wickard and Raich fails when it 

comes to the provision of the Act under which Defendant was convicted. The regulated 

activities in Wickard and Raich may not have been commerce, but they were economic. 

Defendant’s illicit sexual conduct, in contrast, was not. To advance regulatory authority 
38 

from commerce to economic activity is one thing. The step from economic activity to 

noneconomic activity may be a step too far. See Morrison, 529 U.S. at 611 (“[I]n those 

cases where we have sustained federal regulation of intrastate activity based upon the 

activity’s substantial effects on interstate commerce, the activity in question has been 

some sort of economic endeavor.”); id. at 613 (“While we need not adopt a categorical 

rule against aggregating the effects of any noneconomic activity to decide these cases, 

thus far in our Nation’s history our cases have upheld Commerce Clause regulation of 

intrastate activity only where that activity is economic in nature.”). At the least, when the 

regulation of noneconomic activity is justified under the Commerce Clause on the ground 

that it substantially affects commerce, that justification cannot be based on “pil[ing] 

inference upon inference” in a way that threatens to make the Clause a source of a 

general police power. Lopez, 514 U.S. at 567. Tenuous connections are not 

“substantial.” And one must keep firmly in mind that the Court has yet to find a 

substantial effect on commerce arising from noneconomic activity. See Morrison, 529 

U.S. at 611, 613. 

In any event, the government has not offered any reason to believe that control of 

noneconomic sex abuse will affect the market in commercial sex trafficking. When 

dealing with fungible commodities the connection is clear. See Raich, 545 U.S. at 19 

(“In both cases, the regulation is squarely within Congress’ commerce power because 

production of the commodity meant for home consumption, be it wheat or marijuana, has 

a substantial effect on supply and demand in the national market for that commodity.”) 

But here there is no apparent connection. If data show that prosecutions of 
39 

noncommercial child sexual abuse reduce the incidence of commercial abuse, those data 

have not been presented to this court. I cannot agree with the unexplained view of the 

Fourth Circuit that “[i]t is eminently rational to believe that prohibiting the noncommercial sexual abuse of children by Americans abroad has a demonstrable 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. 2010) (Roth, J., dissenting) (“I find that 

there is no rational basis to conclude that an illicit sex act with a minor undertaken on 

foreign soil, perhaps years after legal travel and devoid of any exchange of value, 

substantially affects foreign commerce.”); Reed, 2017 WL 3208458, at *12–13 (the 

connection is “too attenuated to rationally qualify as ‘substantial.’”); 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 (“Prohibiting the intrastate 

possession or manufacture of an article of commerce is a rational (and commonly 

utilized) means of regulating commerce in that product.” (emphasis added)); id. at 18 

(“Like the farmer in Wickard, respondents are cultivating, for home consumption, a 

fungible commodity for which there is an established, albeit illegal, interstate market.” 

(emphasis added)). Home-grown wheat is essentially indistinguishable from wheat 

produced for commerce, and home-grown marijuana for medical purposes is essentially 

the same product as commercial marijuana. A “customer” could not distinguish the two 

products when eating or smoking them. Here, in contrast, the government has not 

suggested that sex tourists who prey on children are indifferent to whether their victims 
40 

are provided by commercial enterprises or they must seek out their victims at places like 

mission schools and assault the children on their own. 

Nor is it enough simply to point to the substantial effect on commerce of a great 

deal of activity regulated by a statute and then justify regulation of additional activity that 

is pasted into the statute on the ground that it is “part of a larger regulation of economic 

activity.” Maj. Op. at 40, 46 (internal quotation marks omitted). The fully stated 

proposition is that conduct that otherwise could not be regulated can be regulated if it is 

“an essential part of a larger regulation of economic activity, in which the regulatory 

scheme could be undercut unless the intrastate activity were regulated.” Lopez, 514 U.S. 

at 561 (emphasis added). Accord Raich, 545 U.S. at 24–25. For example, the Court in 

Wickard “had no difficulty concluding that Congress had a rational basis for believing 

that, when viewed in the aggregate, leaving home-consumed wheat outside the regulatory 

scheme would have a substantial influence on price and market conditions.” Raich, 545 

U.S. at 19. The conclusion is common sense, even obvious. In addition, the record in 

that case “made it clear that the aggregate production of wheat for [noncommercial] use 

on farms had a significant impact on market prices.” Id. at 20. Likewise in Raich there 

were findings by Congress that in effect “established the causal connection between the 

production [of marijuana] for local use and the national market.” Id. As the Court said, 

“that the . . . exemptions [sought by the respondents] will have a significant impact on 

both the supply and demand sides of the market for marijuana . . . is readily apparent.” 

Id. at 30; see id. at 22 (“[W]e have no difficulty concluding that Congress had a rational 
41 

basis for believing that failure to regulate the intrastate manufacture and possession of 

marijuana would leave a gaping hole in the CSA.” (emphasis added)). 

Translating that precedent to the case before us, regulation of the conduct at issue 

here is proper only if such regulation is “an essential part” of the regulation of 

commercial sex tourism because failure to control noncommercial illicit sexual conduct 

would “undercut” that regulation. Yet neither the government brief nor the panel opinion 

explains how this is the case. When products are fungible, the connection is 

commonsensical. But the tie between commercial sex with children and noncommercial 

nonconsensual sexual assault is a mystery. Nor is the mystery resolved by any findings 

by Congress, the subject to which I now turn. 

2. Congressional Findings 

Congressional findings about the effects of the prohibited activity on commerce 

can inform the analysis. See Lopez, 514 U.S. at 562. But they are not dispositive. For 

example, in Morrison the Court ruled that the statute providing a civil remedy to victims 

of gender-motivated violence was unconstitutional despite “numerous findings regarding 

the serious impact that gender-motivated violence has on victims and their families.” 529 

U.S. at 614. Those findings, however, relied on the types of attenuated effects between 

violence and commerce—violence deters victims from traveling interstate and engaging 

in interstate businesses, diminishes national productivity, increases medical and other 

costs, and decreases both supply of and demand for interstate products—that the Court 

had previously rejected as insubstantial because recognizing such tenuous effects would 

eliminate limits on congressional power. See id. at 615 (“Congress’ findings are 
42 

substantially weakened by the fact that they rely so heavily on a method of reasoning that 

we have already rejected as unworkable if we are to maintain the Constitution’s 

enumeration of powers.”). 

The panel opinion discusses at length the long history of federal legislation 

governing interstate and international travel for sex offenses. The great bulk of that 

history is irrelevant because it does not speak to the specific regulation at issue here. See 

Lopez, 514 U.S. at 563 (“[I]mportation of previous [legislative] findings to justify [the 

challenged statutory provision] is especially inappropriate here because the prior federal 

enactments or Congressional findings do not speak to the subject matter of [the 

provision] or its relationship to interstate commerce.” (original brackets and internal 

quotation marks omitted)). Moreover, Congress made no findings when adopting the 

PROTECT Act. Congress did do so, however, in debating its failed precursor, the Sex 

Tourism Prohibition Improvement Act of 2002 (STPIA). And I will assume that a court 

can consider those findings in evaluating the constitutionality of the PROTECT Act. 

When considering STPIA, the House Judiciary Committee reported the following: 

Many developing countries have fallen prey to the serious problem 

of international sex tourism. According to the National Center for Missing 

and Exploited Children, child-sex tourism is a major component of the 

worldwide sexual exploitation of children and is increasing. There are 

more than 100 web sites devoted to promoting teenage commercial sex in 

Asia alone. Because poor countries are often under economic pressure to 

develop tourism, those governments often turn a blind eye toward this 

devastating problem because of the income it produces. Children around 

the world have become trapped and exploited by the sex tourism industry. 

There would be no need for a sex tourism statute if foreign countries 

successfully prosecuted U.S. citizens or resident aliens for the child sex 

crimes committed within their borders. However, for reasons ranging from 

ineffective law enforcement, lack of resources, corruption, and generally 
43 

immature legal systems, sex tourists often escape prosecution in the host 

countries. It is in those instances that the United States has an interest in 

pursuing criminal charges in the United States. 

The Justice Department, Federal law enforcement agencies, the State 

Department and other U.S. entities expend significant resources assisting 

foreign countries most afflicted with sex tourism to improve their domestic 

response to such criminal offenses. Our assistance encompasses informal 

as well as formal training of foreign law enforcement officers and 

prosecutors in the investigation and prosecution of sex tourism crimes. By 

and large these countries reach out to the United States for help and some 

even blame the United States for the problem, “arguing” that many of the 

sex tourists are American. Some of the foreign or “host” countries 

experiencing significant problems with sex tourism, such as Nicaragua, 

Costa Rica, Thailand and the Philippines, have requested that the United 

States act to deal with this growing problem. 

Current law requires the Government to prove that the defendant

traveled to a foreign country with the intent to engage in sex with a minor. 

H.R. 4477 eliminates the intent requirement where the defendant completes 

the travel and actually engages in the illicit sexual activity with a minor. 

The bill also criminalizes the actions of sex tour operators by prohibiting 

persons from arranging, inducing, procuring, or facilitating the travel of a 

person knowing that such a person is traveling in interstate or foreign 

commerce for the purpose of engaging in illicit sexual conduct with a 

minor. This legislation will close significant loopholes in the law that 

persons who travel to foreign countries seeking sex with children are 

currently using to their advantage in order to avoid prosecution. 

H.R. Rep. 107-525, at 2–3 (2002). 

What is notably missing from these findings is any statement, much less evidence, 

regarding the impact of noncommercial illicit sexual activity by international travelers on 

commercial illicit sexual activity. While the above findings may support the 

constitutionality of a ban on commercial sex acts with children in foreign countries, they 

say nothing about the effects on foreign commerce of noncommercial nonconsensual 

molestation of children abroad. There were no findings that noncommercial offenses 

affect the child-sex market, or even that Congress cannot adequately control commercial 
44 

offenses unless it also prohibits noncommercial offenses. It is as if when Congress 

enacted § 2423(c) to eliminate the requirement that a defendant travel in interstate 

commerce with the intent to engage in illicit sexual conduct, it was so focused on those 

who engage in commercial illicit sexual conduct that it overlooked the impact of the 

change on the prohibition of noncommercial illicit sexual conduct. 

In its congressional-findings argument the government also relies on the Optional 

Protocol to the Convention on the Rights of the Child regarding the Sale of Children, 

Child Prostitution and Child Pornography, stating that “[t]he PROTECT Act was . . . 

passed as part of the United States’ obligation under the Optional Protocol.” Aplee. Br. 

at 60. The government apparently seeks to impute the reasons that the United States 

ratified that treaty to Congress’s decision to enact the PROTECT Act. (It does not argue 

that any part of the PROTECT Act was enacted under the authority of the Constitution’s 

Treaty Clause, U.S. Const. art. II, § 2, cl. 2.) I question whether one should consider the 

Optional Protocol in this context because Congress never mentioned it in the texts or 

legislative histories of the PROTECT Act or STPIA. But even if one were to do so, the 

government’s reliance would be misplaced. The Optional Protocol covers only 

commercial sex offenses against children; it says nothing about the effects of 

noncommercial sex offenses on foreign commerce. See Reed, 2017 WL 3208458, at *16 

(“The Optional Protocol calls on States Parties to create and enforce laws that prohibit the 

exploitation of children for commercial gain.” (emphasis added)). 

Thus, the congressional findings “do not speak to the subject matter of [the 

provision under which Defendant was convicted] or its relationship to [foreign] 
45 

commerce.” Lopez, 514 U.S. at 563 (brackets and internal quotation marks omitted)). 

This is not an inconsequential matter. Although congressional findings are not necessary 

to support commerce-clause legislation, they can be significant, “particularly when the 

connection to commerce is not self-evident.” Raich, 545 U.S. at 21. Here, the 

connection is not self-evident. Without congressional findings, I cannot see how 

prevention of noncommercial sexual assault on children would substantially affect 

commercially provided sex abuse. See Lopez, 514 U.S at 563 (“[T]o the extent that 

congressional findings would enable us to evaluate the legislative judgment that the 

activity in question substantially affected interstate commerce, even though no such 

substantial effect was visible to the naked eye, they are lacking here.”) 

3. Express Jurisdictional Element 

There remains the one factor that could support congressional power to punish 

Defendant’s offense under the substantial-effects rationale: “travel[ing] in foreign 

commerce or resid[ing], either temporarily or permanently, in a foreign country” is an 

express element of 18 U.S.C. § 2423(c). See United States v. Jeronimo-Bautista, 425 

F.3d 1266, 1269 (10th Cir. 2005) (asking “whether the statute’s reach was limited by an 

express jurisdictional element”). “A jurisdictional hook is not, however, a talisman that 

wards off constitutional challenges.” Patton, 451 F.3d at 632. What the Supreme Court 

has said is that “a jurisdictional element may establish that the enactment is in pursuance 

of Congress’ regulation of interstate commerce.” Morrison, 529 U.S. at 612 (emphasis 

added). As we stated in Patton, “The ultimate inquiry is whether the prohibited activity 

has a substantial effect on interstate [or foreign] commerce, and the presence of a 
46 

jurisdictional hook, though certainly helpful, is neither necessary 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 required, a meaningful one, rather than a pretextual incantation 

evoking the phantasm of commerce, must be offered.” (brackets, citation, and internal 

quotation marks omitted)); United States v. Holston, 343 F.3d 83, 88 (2d Cir. 2003) 

(expressing unwillingness to rely solely on “the mere existence of jurisdictional language 

purporting to tie criminal conduct to interstate commerce”); United States v. Rodia, 194 

F.3d 465, 472–73 (3d Cir. 1999) (rejecting a “hard and fast rule that the presence of a 

jurisdictional element automatically ensures the constitutionality of a statute”). 

In my view, the jurisdictional hook here does not do the trick. I have already 

expressed why I believe that the government has not shown any connection between 

noncommercial illicit sexual conduct committed by Americans who traveled abroad and 

commercial illicit sexual conduct (the only type of “commerce” that it would allegedly 

affect). More important are the ramifications of relying on this jurisdictional hook. I do 

not see, nor has the government provided, a principled way to distinguish the use of this 

hook to justify the statutory provisions under which Defendant was convicted from the 

use of an identical hook that would permit Congress to prohibit any misconduct by 

Americans abroad, from gambling (even if lawful in the country where conducted) to 

jaywalking. All that would be needed is to add the hook that the defendant had traveled 

in foreign commerce. At the least there should be evidence or a congressional finding, 
47 

not just speculation, of a direct, 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), “which held that Congress 

intended a felon-in-possession statute to prohibit possession of any firearm that had 

moved in interstate commerce,” Patton, 451 F.3d at 634. Scarborough implicitly 

accepted that such a prohibition was constitutional. See id. Feeling bound by 

Scarborough, this court upheld the constitutionality of a statute that prohibited “the 

intrastate possession by a felon of a bulletproof vest, in the absence of any commercial 

transaction or any evidence of a connection to commercial activity other than the fact 

that, before it was lawfully purchased by the defendant, the vest had been sold across a 

state line,” even though the prohibition could not be justified under the Supreme Court’s 

“three-part test for determining the reach of the Commerce Clause.” Id. at 618–19. 

But Scarborough cannot be extended so far as to encompass the statute before us. 

The jurisdictional hook in Scarborough was interstate travel by a commodity, not by a 

person, and certainly not by a person like Defendant—who had not engaged in any 

activity before or during the travel that would distinguish him or her from any other 

person. If Scarborough stands for the proposition that the Interstate Commerce Clause

authorizes Congress to prohibit any activity occurring after personal travel in interstate 

commerce, then it provides a general police power to the federal government that would 
48 

erase the “distinction between what is truly national and what is truly local.” Lopez, 514 

U.S. at 567–68. I am confident that such a result was not the teaching of Scarborough. 

To sum up, there can be little question that a statutory provision otherwise 

identical to the one on which Defendant was convicted could not pass muster under the 

Interstate Commerce Clause if travel in interstate commerce were substituted for travel in 

foreign commerce. He did not engage in economic activity, and there is no reason to 

believe that activity like his has a substantial effect on commerce. Nor can the provision 

be upheld under the Foreign Commerce Clause merely on the unfocused proposition that 

congressional power under that clause is greater than the power provided by the Interstate 

Commerce Clause. To uphold the provision, the Foreign Commerce Clause would need 

to be interpreted to confer congressional power to regulate all conduct of Americans 

while abroad. Nothing suggests that the Framers had any such concept of the Clause; on 

the contrary, the evidence suggests that such power would seem most strange to them. 

Moreover, such a power would be wholly inappropriate under a Constitution of 

conferred, limited power. 

I therefore would hold that the statutory provisions under which Defendant was 

convicted cannot be justified under the Foreign Commerce Clause. At the very least, § 

2423(c) is unconstitutional as applied in this case. Not only is it uncontroverted that 

Defendant was not a sex tourist, he was not even a tourist. The government does not 

suggest that he had any tie to commercial sex trafficking. The connection between his 

kind of offense and sex tourism is far too attenuated to support regulation under the 

Foreign Commerce Clause. 
49 

I agree with Judge Ferguson: “The sexual abuse of children abroad is despicable, 

but we should not, and need not, refashion our Constitution to address it.” Clark, 435 

F.3d at 1117 (9th Cir. 2006) (Ferguson, J., dissenting); see Reed, 2017 WL 3208458, at 

*11, *19 (holding § 2423(c) unconstitutional as applied to a defendant 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 this portion of the statute on plain-error 

review, but suggesting that the panel majority would have held it unconstitutional if the 

issue had been preserved); United States v. Bianchi, 386 F. App’x 156, 163 (3d Cir. 

2010) (Roth, J., dissenting) (“I find that there is no rational basis to conclude that an 

illicit sex act with a minor undertaken on foreign soil, perhaps years after legal travel and 

devoid of any exchange of value, substantially affects foreign commerce.”); cf. Baston, 

137 S. Ct. at 850 (Thomas, J., dissenting from denial of petition for certiorari in criminal 

prosecution under Foreign Commerce Clause) (“We should grant certiorari and reaffirm 

that our Federal Government is one of limited and enumerated powers, not the world’s 

lawgiver.”); Colangelo supra at 1039–40 (doubting the constitutionality of § 2423(c) with 

respect to noncommercial sexual abuse of minors). 

The Supreme Court has provided little, if any, guidance regarding congressional 

power under the Foreign Commerce Clause to regulate the conduct of Americans abroad. 

If the Court believes that it is appropriate to cabin that power, this may be as good a 

vehicle as any to convey the message. 

For the above reasons, I respectfully dissent.