### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

‐ 3312

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

E UGENE W EARING

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 3:14

‐ CR

‐ 00122

‐ 001

— William M. Conley

, Judge

.

____________________

A RGUED J ULY 7, 2017

— D ECIDED J ULY 26, 2017

____________________

Before W OOD

, Chief Judge

, and B AUER and F LAUM

, Circuit

Judges

.

W OOD

, Chief Judge

. Hoping to earn some money as a pimp,

Eugene Wearing recruited a 15

‐ year

‐ old acquaintance, KV #1,

to earn money as a prostitute. He posted a Craigslist ad with

her photo and twice tried to arrange a rendezvous with a cli

‐

ent. But both assignations fell through, and soon afterward

KV #1 had second thoughts and alerted her mother, who

called the authorities. At a bench trial Wearing was convicted2 No. 16

‐ 3312

of violating 18 U.S.C. § 1591, which makes sex trafficking of

children a federal crime if done “in or affecting interstate or

foreign commerce.” In this appeal Wearing challenges only

the sufficiency of the evidence. He argues that the govern

‐

ment was required to, but did not, prove two critical points:

(1) that KV #1 had engaged in a “commercial sex act,” and

(2) that his recruitment of the victim (as opposed to the

scheme as a whole) affected commerce. We find no merit in

either argument, and so we affirm the conviction.

I

The bench trial was conducted entirely through a written

stipulation. In it, Wearing admitted that he suggested to

KV #1 that she could earn some money by performing oral

sex. He drove her to a hotel and had her “audition” on him,

after which he scheduled a client visit. But police were at the

hotel for an unrelated matter, and no sexual contact took place

because Wearing and the client felt that it was too risky. Later

Wearing photographed KV #1 in her underwear and posted

the pictures on Craigslist. He gave KV #1 a tour of an apart

‐

ment where he said “business” would take place, explaining

that she would “giv[e] blowjobs” or, “if she wanted,” have

intercourse with clients, though no clients joined them at that

time. Wearing later took KV #1 back to the apartment; she

asked to go home, but he refused, saying that she had com

‐

mitted to their arrangement and needed to do what he

wanted. He then had intercourse with her and sent an e

‐ mail

inviting a client (who never responded) to join them at the

apartment. The parties stipulated that before her mother con

‐

tacted authorities, KV #1 had not engaged in a “commercial

sex act,” which 18 U.S.C. § 1591(e)(3) defines as “any sex act,

on account of which anything of value is given to or receivedNo. 16

‐ 3312 3

by any person.” The parties also stipulated that the Craigslist

posting used channels of interstate commerce.

Wearing’s only defenses at trial were that a conviction un

‐

der section 1591 requires proof that the victim actually en

‐ gaged in a commercial sex act, and that the recruitment itself

had to have been (but was not) accomplished through means

affecting commerce. The district court rejected both points. It

held that section 1591 can be violated even if a commercial sex

act is never consummated, and it concluded that all of a de

‐

fendant’s actions, not just his efforts to recruit child prosti

‐

tutes, are relevant in assessing whether the statute’s com

‐

merce element is satisfied. Although violations of sec

‐

tion 1591 typically are described as “human trafficking”—the

label the government used when describing Wearing’s

crime—the district court sentenced him to 180 months’ im

‐ prisonment, well below the guidelines range of 324 to

405 months. The court thought that “child abuse” more accu

‐ rately describes Wearing’s offense and observed that “it’s

hard for me to see this as a classic case of human trafficking.”

II

In this court, Wearing renews his argument that in order

to convict under section 1591 the government must prove that

the victim actually engaged in a commercial sex act. If the

government had included a charge of attempt to traffic under

18 U.S.C. § 1594(a), which carries the same penalties as the

completed offense under section 1591, we would have little to

do. Wearing’s stipulation leaves no doubt that he completed

every step necessary to bring about a commercial sex transac

‐

tion between KV #1 and the client at the hotel; only the fortu

‐

itous presence of the police interrupted the crime. Moreover,

we recognize that Federal Rule of Criminal Procedure 31(c)(3)4 No. 16

‐ 3312

says that a defendant may be found guilty of “an attempt to

commit an offense necessarily included in the offense

charged, if the attempt is an offense in its own right.”

See also United States v. Feinberg

, 89 F.3d 333, 339 (7th Cir.

1996) (explaining that lesser

‐ included offenses, such as at

‐

tempt, need not appear in indictment, so long as any depar

‐

ture from the strict terms of the indictment would neither sur

‐ prise nor prejudice the defendant). It is possible that

Rule 31(c)(3) is satisfied here, since section 1594(a) provides

that whoever “attempts to violate section

... 1591 shall be

punishable in the same manner as a completed violation of

that section.” But no other circuit has excused the failure to

charge under section 1594(a) in a situation such as this one.

Rather than wade into a debate about charging requirements,

surprise, prejudice, and the like, we prefer to turn directly to

the merits.

We begin with the language of the statute. At the time of

the crime, section 1591 read, in relevant part:

(a) Whoever knowingly—

(1) in or affecting interstate or foreign com

‐

merce

... recruits, entices, harbors, trans

‐

ports, provides, obtains, or maintains by any

means a person

...

...

knowing, or in reckless disregard of the fact,

that

... the person has not attained the age of

18 years and will be caused to engage in a

commercial sex act, shall be punished as pro

‐

vided in subsection (b).No. 16

‐ 3312 5

Wearing argues that the use of the future tense of the passive

voice in the phrase “will be caused to engage in a commercial

sex act” implies that Congress intended the completed act to

be a necessary element of the crime. But his suggestion re

‐ quires us to ignore the fact that Congress chose the future

tense—a choice that is inconsistent with the notion that a com

‐

mercial sex act must already have happened before a viola

‐

tion can be shown. A likelier explanation is that Congress

used the passive voice as a way of signaling that the defend

‐

ant was not entitled to a pass if, instead of personally causing

the victim to engage in a sex act, the defendant allowed a cli

‐

ent or a codefendant to do so. See United States v. Adams

,

789 F.3d 903, 906–07 (8th Cir. 2015) (affirming mother’s con

‐

viction under section 1591 where a rational jury could have

inferred that, in exchange for pills, she took daughter to friend

knowing he would order daughter to engage in sex act);

United States v. Jungers

, 702 F.3d 1066, 1073 & n.6 (8th Cir.

2013) (concluding that use of passive voice in section 1591 “re

‐

flects ‘agnoticism

... about who’ causes the child to engage in

the commercial sex act” (quoting Watson v. United States

,

552 U.S. 74, 80 (2007)). Wearing’s argument that “will” im

‐ plies certainty because it is more definite than “may” or

“might” is inaccurate—the amicus curiae brief filed in this case

from a professional linguist even observes that “[i]n its central

function of referencing the future, ‘will’ is vague over a range

of degrees of certainty.”

The more logical reading of the phrase “knowing

... the

person

... will be caused to engage in a commercial sex act” is

that it describes the acts that the defendant intends to take—

that is, that he means to “cause” the minor to engage in com

‐

mercial sex acts. That is the interpretation other circuits have

adopted; they have concluded that the statute uses the future6 No. 16

‐ 3312

tense to describe the defendant’s plan for the victim at the

time he recruits her. See, e.g.

, United States v. Mozie

, 752 F.3d

1271, 1286 (11th Cir. 2014) (accepting evidence that defendant

recruited victims “to engage in commercial sex acts,” even

though those acts never materialized, as sufficient to support

a section 1591 conviction); United States v. Willoughby

,

742 F.3d 229, 241 (6th Cir. 2014) (concluding that section 1591

offense was complete when defendant left victim at client’s

home knowing she would be caused to perform a sex act);

United States v. Garcia

‐ Gonzalez

, 714 F.3d 306, 312 (5th Cir.

2013) (reading section 1591 to require completed sex act as es

‐

sential element “erases the meaning of ‘will be’ from” the stat

‐

ute); Jungers

, 702 F.3d at 1074 (conviction under section 1591

does not require “engaging in a sex act”); United States v. Todd

,

627 F.3d 329, 334 (9th Cir. 2010) (explaining that section 1591’s

knowledge element means that, in committing offense, de

‐

fendant plans to force the victim to engage in a commercial

sex transaction); United States v. Corley

, No. 14

‐ 1709, 2017 WL

549021, at *3 (2d Cir. Feb. 9, 2017) (rejecting contention that

section 1591 requires government to prove victim actually

performed commercial sex act).

Similar wording appears in 18 U.S.C. § 924(h), which pro

‐

hibits transferring a firearm “knowing that such firearm will

be used to commit” a crime of violence or drug trafficking

crime. The words “will be used” cannot logically mean that a

completed crime of violence is an element of section 924(h). If

a gun

‐ shop customer asks to buy a gun suitable for shooting

a public official, the gun dealer who sells that firearm is guilty

of the substantive offense, not just an attempt, if police stop

the customer on his way to shoot the official. See United States

v. Smith

, 792 F.3d 760, 763, 768 (7th Cir. 2015) (affirming sec

‐No. 16

‐ 3312 7

tion 924(h) conviction where defendant had sold firearms ex

‐ pecting that purchaser, an undercover agent posing as drug

dealer, would smuggle guns to Mexico). The gun dealer in the

hypothetical has completed every step of the crime. There is

no reason to believe that Congress intended a conviction to

turn on the customer’s success in carrying out the shooting.

Similarly, Wearing completed his role under section 1591; one

client’s failure to show up and the other’s change of heart say

nothing about Wearing’s own actions.

It is true, as amicus points out, that section 1591 also re

‐ quires knowledge of the victim’s status as a minor. Amicus

reasons that this means that at some point prior to the indict

‐

ment, the commercial sex act must be completed. But it is one

thing to know that a person “is” a minor, and quite another to

know that the defendant “will” bring about an action in the

future. In that critical sense, the two elements of the offense

differ. The statute requires that the defendant recruit the vic

‐

tim knowing her current age and knowing his plan to prosti

‐

tute her after the recruitment. Nothing in the statute signals

that the plan must be fully carried out before conviction is

possible.

Wearing next asserts that the government failed to prove

that his actions affected interstate or foreign commerce as re

‐ quired by section 1591. Based on the statute’s wording, he ar

‐

gues that “in or affecting” commerce modifies only the verbs

immediately following the reference to interstate commerce—

that is, “recruits, entices, harbors,” etc.—and not the remain

‐

der of the statute. As a matter of first principle, one could im

‐ agine this reading of the statute, but we have not interpreted

it in such a cramped way. In United States v. Campbell

, we con

‐8 No. 16

‐ 3312

cluded that a prostitution business affected interstate com

‐

merce by using Internet and telephone services from out

‐ of

‐

state companies, advertising online, purchasing out

‐ of

‐ state

supplies, and employing out

‐ of

‐ state workers. 770 F.3d 556,

574–75 (7th Cir. 2014); see also United States v. Phea

, 755 F.3d

255, 263 (5th Cir. 2014) (noting that defendant had purchased

phone for victim and included phone number in Internet ad

‐

vertisement, clients contacted victim at that number, and de

‐

fendant directed victim to have intercourse with prostitute

from another state); Todd

, 627 F.3d at 333 (concluding that sex

trafficking advertised across state lines affected interstate

commerce). Notably, all of these cases were decided before

Congress amended the list of verbs in section 1591(a)(1) in

2015 to include “advertising” expressly. Wearing does not re

‐ spond directly to these decisions; instead he cites others in

which the commerce link was too attenuated from the defend

‐

ant’s illegal activity to support federal prosecution. The latter

decisions do not help him, because his assertion is that section

1591’s commerce requirement is linked to only one element of

the offense—the recruitment. But there is more to the offense:

the scheme to prostitute the minor. Wearing stipulated that

the Craigslist advertisement—an integral part of his scheme

to prostitute KV #1—affected interstate commerce. This pre

‐

cludes him from successfully maintaining that the effect of his

actions on interstate commerce is so distant from his illegal

activity that his actions do not add up to a federal crime.

The district court thought that this was not the classic case

of human trafficking as described in the statement of purpose

of the Trafficking Victims Protection Act, of which sec

‐

tion 1591 is part. We are not so sure; unfortunately, trafficking

happens, one victim at a time, at the domestic level just as it

does internationally. Congress indicated in the statement ofNo. 16

‐ 3312 9

purpose that it was concerned about the transnational and na

‐

tional effects of human trafficking, the role of sophisticated

criminal enterprises, and the violence and isolation trafficking

visits on poor women and children. 22 U.S.C. § 7101. Wearing

sees his crime as indistinguishable from sexual abuse of a

child or child prostitution, both punishable under the laws of

Wisconsin, where this offense occurred. See W IS

. S TAT

. §§ 948.02, 948.08. Only one victim was involved, Wearing did

not isolate KV #1 from her family, and he did not transport

her to another state or country.

There is no reason why Wisconsin and the federal govern

‐

ment could not both have addressed this problem: overlap

‐ ping state and federal laws are nothing new. Section 1591 is a

statute designed to protect minors—even one minor—from

forced participation in the sex trade. The facts to which Wear

‐ ing stipulated are sufficient to support his conviction and the

district court made no error of law, and so we A FFIRM the

judgment of the district court.