F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

A L E X A N D E R W A L L S , AKA Tip-Toe, Defendant-Appellant

. N o. 13-30223

D.C. No. 3:11-cr-05408- RJ B -1

OPI NI ON

A ppeal from the United States District Court for the W e stern District of W ashing ton Robert J

. B ry an, Senior District J udg e, Presiding

Arg ued and Submitted F ebruary 3, 2015—Seattle, W ashing ton

F iled April 21, 2015

B efore: Ray

mond C. F isher, Carlos T. B ea, and Mary H. Murg u ia, Circuit J udg es.
Opinion by

J udg e B eaU N I T E D S T A T E S V

. W A L L S 2

SUMMARY *

Crim inal Law

T he panel affirmed convictions for sex -traffickin g offenses in violation of t h e Trafficking Victims Protection Act.

The panel held that when Cong ress used the lang uag e “in or affecting

interstate or foreig

n commerce” in the TVPA, it intended to ex e r c i s e its full powers under the Commerce Clause. Consistent with the o u t e r limits of the commerce power defined in Gonzales v. Raich
, 545 U.S. 1 ( 200 5 )
, the panel held tha t any individual instance of conduct r eg ulated by the TVPA need only have a d e minimis effect on interstate
commerce, and that the district court therefore did not err

w hen it instructed the jury that “any act that crosses stat e l i n es is ‘in’ interstate commerce” and “ an act or transaction that is economic in nature” and “affects the flow of money in the stream o f commerce to any d eg r ee ‘affects’ i n t e r state commerce.” The panel rejected the defendant’s arg ument that the jury instruction essentially directed a verdict on the element of interstate commerce.

COUNSEL

Thomas Michael Kummerow, Seattle
, W ashing ton, a rg u ed the cause and filed the reply b rief for the D efendant-

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. W A L L S 3

Appellant. Suz anne L ee Elliott, Seattle, W ashing ton, filed the opening brief for the Defendant-Appellant.

Te a l L uthy Miller, Assistant United State Attorney
, Seattle, W a shing ton, arg u ed the cause and, along with Ye-Ting Woo, filed the briefs for the United States.

OP INION

B EA, Circuit J udg e:

D efendant-appellant A lex ande r W a l l s o p e r a t e d a s a s m a l l

time pimp. The questions here are (1) w h et h er, under the Commerce Clause of the U nited Stat e s Constitution, Cong r ess has the p ower to reg ulate h is loc a l p i m p ing
, a nd (2) whether Cong ress intended a federal criminal statute to reg ulat e local pimping consistent with the f ull ex tent of its

commerce p o w e r s

. W e answer both questions in the affirmative.

I

W a lls was charg ed by criminal complaint in Aug u st 2011 with interstate transpor t a t ion of a child for the purpose o f prostitution, 18 U.S.C. § 2423(a), and witness tampe r i n g, 18 U.S.C. § 1512(b)(1). A g rand jury in the W estern District of W ashing ton r e t urned an indictment that same month charg ing W alls with the same crimina l offenses. After two superseding indictments, W alls and a codefendant were charg ed in March 2012 in a third superseding indictment with

sex -traffi ck ing crimes involving seven victims and witnesstampering crimes involving three victims. The third superseding in d i c t ment charg e d W alls with conspiracy toU N I T E D S T A T E S V

. W A L L S 4

transport a juven ile female for prostitution in violation o f 18 U.S.C. §§ 371 and 2 423(a) (Co u n t 1); interstate
t r a n sportation of a child for prostitution in v iolation o f 18 U.S.C. § 2423(a) (Count 2); witness tampering in violation of 1 8 U.S.C. § § 1512(b)(1) and 1512(b)(3) ( Count 4 ); conspiracy to eng ag e in sex trafficking by force, fr a u d
, a nd coercion in violation of 1 8 U

. S .C. § § 1591(b)(1) and 1594 (Count 6 ); and sex trafficking throug h force, fraud, a nd coercion in v i o l a tion of 18 U.S.C. § 1591(a)(1), 1591(b)(1) (Counts 7, 10, and 16). W alls pleaded n ot g uilty
, and the case went to trial in the Western District of W ash ing ton at Tacoma.

Counts 6, 7, 10, and 16 were broug ht under t he Trafficking Victims P r o tection Act (TVPA), 18 U .S.C. § 1591 e t seq. , for W a lls’s sex -trafficking conduct relating to three victims: Heather Acker, Starnesha Glover, and Cali F lorez

. 1 At trial, these women te s tified that W a lls recruited and coerced them into prostitution within W ashing ton State. As to the i n t e r state-nex us element of the TVPA, Acker testified that W alls showed her how to access a we bsite, TN AB oard.com, to p ost an advertisement for prostitution services online. Detective J a cob Martin testified that the

servers for TNAB oard.com were located in Tex as a nd Amsterdam. F lorez testified that W alls took photos of her so that he could post ads on Craig slist for prostitution services for h er; she also testified t hat she saw W alls access a computer a

nd upload the photog raphs that he took of h er. A Craig slist e mploy ee, W illiam Clinton Powell, testified that in 2008, Craig slist u s e r s in W ashing ton would have had to

1 T h e T V P A p ro h ib its sex traf f ick in g “ in or af

f ectin g in ter st a t e or f o reig n co m

m erce” b y “ m ean s o f fo r c e, th reats o f f o rce, f rau d
, [o r]

co ercio n .” 1 8 U.S.C. § 1 5 91 (a)(1 ), (b ).U N I T E D S T A T E S V

. W A L L S 5

access Craig slist via servers in Ariz o n a or California. Glover testifi ed t hat she used Trojan-brand condoms when she worked as a prostitute
, b u y ing them w ith money that W alls had her earn from prostitution a cts. Richard Stephens
, an employ e e of Church & Dwig h t Company
, testifie d that Trojan-brand condoms are manufactured in Colonial He i g h ts, Virg inia, and are distributed throug hout the country , including W ashing ton State.

At the close of trial, the United States propose d that the d i s t r i ct court instruct the jury that activity that “is economi c in nature and affe c t s t h e flow of money in the stream o f

commerce to any deg ree, however minimal, ‘affects’ interstate commerce.” After W alls’s counsel questioned the
accuracy of the instruction (admitting that he “hadn’t done

ex h austive research”), the court struck th e w o rds “ however minimal” from the g overnment’s proposed instruction. Prior
to instructing the jury
, the court g ave counsel copies o f the

r evised proposed instructions, including the above instruction (I nstruction 24) reg arding the r equirement that W alls’s conduct affect interstate commerce. I nstruction 24, a s presented to the jury , read in full:

The term “commercial sex a c t” means any

sex act, on account of which a ny thing of value is g iven to or received by any person.

An act or transaction that crosses state lines is “in” interstate commerce.

An act or transaction that is econ o m i c in
nature a n d a ffects the flow of money in the
stream of c ommerce to any deg re e “affects” interstate commerce.U N I T E D S T A T E S V

. W A L L S 6

W a lls’s c ounsel did not object to the instruction. W alls’s counsel stated that he had done a dditional research, and that, in lig ht of that research and the modification made by t h e court, “ the defendant is satisfied with the instructions as they

are written.” T he jury found W a lls g uilty on all counts, a nd the district c ourt sentenced him to 23 y ears of imprisonment and five y ears of supervised r e lease. W alls appeals his convictions as to Counts 6, 7, 10, and 16 for v iolations of the TVPA on the g round that the district c ourt misstated the law and directed a v erdict on the element of interstate commerce. W e have jurisdiction under 28 U.S. C. § 1291 and 18 U .S.C. § 3742(a).

II

B e cause W alls’ s counsel failed to lodg e a timely objection to the jury instructions, wheth e r I nstruction 24 misstated the law is r eviewed f or p lain error. See Johnson v

. United States
, 520 U.S. 461, 467 (1997). To s h o w plain
error, W alls must show that (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected his substa n t ial r ig hts, which in the ordinary c ase means it affe c ted the outcome of the districtcourt proceeding s; a

nd (4) t h e e r ror seriously affected the fa i rness, integ rity
, or public reputation of judicial
proc e ed i n gs. United States v. Marcus
, 560 U.S. 258, 262 (2010).

III

A

As it pertains to W alls, the T VPA prohibits sex trafficking “in or affecting interstate or foreig n c ommerce” by “means o fU N I T E D S T A T E S V

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f orce, threats of force, fraud, [or] coercion.” 18 U .S.C

. § 1591(a)(1)
, (b). The TVPA’s commerce element reveals the con s titutional basis of Cong ress’s power to r eg ulate sex trafficking : the Commerce Clause. 2 Both this court a nd the Supreme Court have held that w hen Cong r ess us e s the lang uag e “affecting interstate commerce,” as it did in the TVPA, Cong ress g enerally i n t e n ds to reg ulate to the outer limits of its au t h o r i ty under the Commerce Clause. Circuit City S tores, Inc. v. Adams
, 532 U .S. 1 05, 115 (20 0 1 ) ( “ T h e phrase ‘affecting commerce’ i ndicates Cong ress’ intent to

re gu late to the o uter limits of its a uthority u nder the Commerce Clause.”); United States v. W right
, 625 F

. 3d 583, 600 (9th Cir. 2010) (“Cong ress c hose to reg ulate to the outer limits of its Commerce C l a u s e authority by inserting the ‘affecting interstate comme rce’ lang uag e [ into the Child Pornog raphy Prevention Act ] .”). B ut see Circuit City
, 532 U.S. at 118 ( cautioning “we do not mean to sug g est that statutory jurisdictional formulation s necessarily have a

u niform meaning w henever used by Cong ress,” a n d interpreting a commerce jurisdictional phrase “ with r e ference
to the statutory contex t in which it is fo und and in a manner consistent with the [statute’s] p u r p ose”). B ut W alls arg ues that we must r econsider this standard by which we determine whether Cong ress intended to reg ul a t e t o the limits of its Commerce Clause authority in lig h t of Bond v. United States
, 572 U.S. __, 134 S. Ct. 2077 (2014).

I n Bond
, defendant Carol Anne B ond attempted to poison

a r o mantic rival with an arsenic-based compound a nd potassium chromate, causing a minor burn readily treated b y

2 T h e Co m

m erce Clau se o f t

h e Un ited States Co n stitu tio n ass ig n s to Co n g ress th e au th o rity “ [t]o reg u l ate Co m m erce w ith f

o reig n Natio n s, an d

am o n g th e sev eral States.” U.S. Co n st. art. I, § 8 , cl. 3

.U N I T E D S T A T E S V

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rinsing with w ate r

. 134 S. Ct. a t 2085. Despite the smalls c a l e effects of her o ffense, she w as prosecuted under t h e Chemical W eapons Convention I mplementation Act of 1998, wh i c h was enacted to implement the Convention on the P rohibition of the Development, Production, Stockpiling
, a n d Use o f Chemical W eapons a n d o n Their Destruction. Id. at 2084–85. Althoug h the c ase presented the question whether and to what e x tent Cong ress can enact leg islation pursuant to

a treaty of the United States, the Supreme Court avoided that difficult constitutional issue. See id. at 2 087. I nstead, it h eld th a t Cong r e ss did not intend the Act to apply to B ond’s purely local conduct: “Absent a cl e a r statement” o f
cong ressional intent, “we will not presume Cong ress to have authoriz ed such a stark i n trusion into traditional state authority .” Id. at 2093–94.

Citing Bond
, W alls arg u es this c ourt should not construe the TVPA as ex tending to its constitutional limits u nder the Commerce Clause, absent a clear statement from Cong ress that it intended to intrude into traditional st a t e a uthority

. Cong r ess made such a statement when it enacted the TVPA. The Supreme Co u r

t has held that when Cong ress uses the lang uag e “affecting c o mmerce,” as it did in the TVP A, it generally intends to reg ulate to the outer limits of i t s

commerce power. See Circuit City
, 532 U.S. at 115. Althoug h Bond identifies two occasions in whi c h t h e Court construed a statute a s not reaching p u rely local conduct despite the statute’s “affecting commerce” phrase, see 134 S. Ct. at 2089–90 (discussing Un i t e d S t ates v. Bass
, 4 04 U.S. 336 (1971), and J

ones v. United States
, 529 U.S. 848 (2000)), this c a s e i s disting uishable because the cong ressional finding s incorporated into the TVPA clearly demonstrate Congr ess’s intent to enact a criminal statute addressing sex trafficking at all levels o f activity
, see 22 U

. S

. C

. § 7101(b)(12) (findingU N I T E D S T A T E S V

. W A L L S 9

that, in the ag g reg ate, sex trafficking “ s u bstantially affects interstate and foreig n commerce” and “has an impact on t he nationwide emplo y

m e nt network a

nd labor market”); id. § 7101(b)(14) (“No comp r e h e nsive law ex ists in the United States that penaliz es the r a n ge of offenses involved in the traffickin g s c heme.”); see also United States v. Todd
, 627 F .3d 3 29, 333 (9th Cir. 2010) (“Cong ress concluded that prostitution in American c ities encourag ed and enlarg ed the market f or this traffic from abroad.”). W e therefore hold that when Cong r e ss used the lang u ag e “in or affecting interstate

or f oreig n c ommerce” in the TVPA, it intended to ex e rcise its full powers under the Commerce Clause.

Having concluded that the TVPA e x tends to the limits o f the Commerce Clause, we must consider whether I nstruction 24 lies within those bounds.

B

I n United States v

. Lopez
, 514 U.S. 5 4 9 (1 9 95), a nd United S tates v. Morrison
, 529 U.S. 598 (2000), the Supreme Court defined the o uter limits of Cong ress’s authority under the Commerce Clause, set t i n g out three p aradig matic categ ories of permissi b l e reg ulation of interstate commerce. Under the Commerce Clause, Cong ress can reg ulate (1) “the channels of interstate commerce,” (2) “the instrumentalities of interstate commerce,” and (3) “ those activities that substantially affect intersta t e commerce.” Morrison
, 529 U.S. at 609 (quoting Lopez
, 514 U.S. at 558–59).

W a lls r eads Lopez/Morrison ’s third categ ory to mean that Cong r ess cannot reg ulate, pursuant to its Commerce C lause
powers, acts that have only a d e minimis effect on interstate
commerce; rather, Wa l l s c ontends that effect must beU N I T E D S T A T E S V

. W A L L S 10

“substantial.” B u t the third categ ory of r eg ulation outlined in Lopez and Morrison concerns the econ omic nature of the class of a ctivity to be reg ulated, not the effect on intersta te

co m m erce of any individual instance of conduct. The Supreme Court clarified this distinction in Gonzales v. Raich
, 545 U.S. 1 (2005). I n Raich
, the Court held that Cong ress has the power to reg ula t e t h e purely intrastate cultivation a nd possession of marijuana for p ersonal use becau s e the Commerce Clause power e x tend s to “purely local activities that are part of an e c o nomic ‘class of activities’ that h ave a substantial effect on inter state commerce.” 545 U.S. at 18. T h a t i s , C o n g r e s s ’ s p o w e r t o r e g u l a t e w i t h i n Lopez/Morrison ’s third categ ory —act i v i t i e s t

h a t s u b s t a n tially affect interstate c ommerce—ex tends to indivi d ual instances of conduct with onl y a d e minimis effect on interstate

commerce so long as the cl a s s o f activity reg ulated is economic or commercial in nature. See id. at 17 (“[ W ] hen a g eneral r eg ulatory statute bears a subst a n t i al relation to
commerce, the de minimis character o f i n d i v idual instances arising under that statute is of no con s e q u ence.” (internal quotation marks omitted)).

The TVPA is part of a comprehensive reg ulatory scheme that criminaliz es and a ttempts to prevent slavery
, involuntary servitude, and human trafficking for commercial g ain. Cong r ess r ecog niz ed t h a t h uman trafficking
, particularly o f

women and children in the sex industry
, “is a modern form o f slavery
, and it is the larg e st manifes t ation of slavery today

. ” 2 2 U.S.C. § 7101(b)(1); see also id. § 7101(b)(2), (4), (9 ), (11). Cong ress found that trafficking of p ersons has a substantial ag g reg ate economic impact on interstate a nd foreig n commerce, id. § 7101(b)(12), and t h at finding is not irrational, see Lopez
, 514 U .S. at 557; see also United States

v. Todd
, 627 F

. 3d 329, 333 (9th Cir. 2010) (disting u ishing theU N I T E D S T A T E S V

. W A L L S 11

TVPA from the statute struck down in Morrison ). Consistent with the outer limits of the c o mmerc e p o w er defined in Raich
, we hold that any individual instance of conduct
reg ulated by the TVPA need only h ave a de m inimis e ffect on interstate commerce. 3 According ly
, the district court did not

err when it instructed the jury that “any act that crosses state lines is ‘in’ in t e r state c ommerce” and “an act or transaction that is economic in nature” and “affects the flow of money in the stream o f commerce to an y d e gree ‘affects’ interstate commerce.”

IV

W a lls f urther arg ues that I nstruction 24 “essentially d i r ected a verdict on the element of interstate commer c e i n this case”; that the instruction “is a conclusive statement that the use o f money , credit c ards and condoms satisfied the first element of the crime”; a nd that “[ t] h e c o urt removed any ability f or the jury to consider the la c k o f n ex us b etween W a lls’s acts and interstate co mmerce.” This arg ument fails.

An instruction violates due process “if it c reates a mandatory p resumption, e ither conclusive or rebuttable, which shifts f

r o m the prosecution the burden of proving

3 W e n ote th at, in co n tex ts o th er th an th e T V P A, w e h av e h eld th at an act h av in g a de min imis ef f ect o n co m

m erce satisf

ies an ex p ress statu to ry req u irem en t th at th e act b e on e af f ectin g in terstate co m

m erce if th e class

o f activ ities reg u lated b y th e statu t e s u b s tan tially af f ects in terstate

co m m erce. S ee, e.g

. , Un ited S ta tes v. McCa lla , 5 4 5 F.3 d 7 5 0
, 75 3
, 7 5 6 (9 th Cir. 2 0 08 ) (p o ssessio n of ch ild po rn o g rap h y ); Un ited S t ates v. Bo yd
, 4 8 0 F.3 d 1 17 8
, 1 1 7 9 (9 th Cir. 20 0 7) ( p e r c u r i am ) (Ho b b s A ct); Un ited S ta tes v. Sh ryo ck
, 3 4 2 F .3 d 9 4 8
, 9 84 n .6 (9 th Cir. 2 0 0 3 ) (RICO); Un ited S ta tes v. S

era n g , 1 5 6 F .3 d 9 1 0
, 9 1 3– 1 4 (9 th Cir. 1 9 98 ) (f ed eral arso n statu te as ap p l ied to co m

m ercial b u ild in g s).U N I T E D S T A T E S V

. W A L L S 12

bey ond a reasonable d oubt an essential element of a criminal offense.” United Sta t e s v. W ashington
, 819 F .2d 221, 225 (9th Cir. 1987). A jury instruction includes a mandatory presumption if “reasonable jurors [ are] r equire[ d]

. . . to find the presumed fact if the State proves certain p redicate f acts.” Carella v California
, 491 U.S. 263, 265 (1989). I nstruction 24 did not create s u ch a presumption; it merely defined the lang uag e “affecting interstate or foreig n commerce” a nd correctly stated what the g overnment was r equired t o s h ow. I t left for the jury to decide whether W alls committed conduct that had at least a de minimis effect on interstate commerce.

V

F or the foreg oing reasons, we affirm W alls’s convictions.

AF F IRMED.