United States v. Alexander Walls

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-30223

Plaintiff-Appellee,

D.C. No.

v. 3:11-cr-05408-

RJB-1

ALEXANDER WALLS, AKA Tip-Toe,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Western District of Washington

Robert J. Bryan, Senior District Judge, Presiding

Argued and Submitted

February 3, 2015—Seattle, Washington

Filed April 21, 2015

Before: Raymond C. Fisher, Carlos T. Bea,

and Mary H. Murguia, Circuit Judges.

Opinion by Judge Bea

2 UNITED STATES V. WALLS

SUMMARY*

Criminal Law

The panel affirmed convictions for sex-trafficking

offenses in violation of the Trafficking Victims Protection

Act.

The panel held that when Congress used the language “in

or affecting interstate or foreign commerce” in the TVPA, it

intended to exercise its full powers under the Commerce

Clause. Consistent with the outer limits of the commerce

power defined in Gonzales v. Raich, 545 U.S. 1 (2005), the

panel held that any individual instance of conduct regulated

by the TVPA need only have a de minimis effect on interstate

commerce, and that the district court therefore did not err

when it instructed the jury that “any act that crosses state

lines is ‘in’ interstate commerce” and “an act or transaction

that is economic in nature” and “affects the flow of money in

the stream of commerce to any degree ‘affects’ interstate

commerce.” The panel rejected the defendant’s argument that

the jury instruction essentially directed a verdict on the

element of interstate commerce.

COUNSEL

Thomas Michael Kummerow, Seattle, Washington, argued

the cause and filed the reply brief for the Defendant-

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. WALLS 3

Appellant. Suzanne Lee Elliott, Seattle, Washington, filed

the opening brief for the Defendant-Appellant.

Teal Luthy Miller, Assistant United State Attorney, Seattle,

Washington, argued the cause and, along with Ye-Ting Woo,

filed the briefs for the United States.

OPINION

BEA, Circuit Judge:

Defendant-appellant Alexander Walls operated as a small-

time pimp. The questions here are (1) whether, under the

Commerce Clause of the United States Constitution,

Congress has the power to regulate his local pimping, and

(2) whether Congress intended a federal criminal statute to

regulate local pimping consistent with the full extent of its

commerce powers. We answer both questions in the

affirmative.

I

Walls was charged by criminal complaint in August 2011

with interstate transportation of a child for the purpose of

prostitution, 18 U.S.C. § 2423(a), and witness tampering,

18 U.S.C. § 1512(b)(1). A grand jury in the Western District

of Washington returned an indictment that same month

charging Walls with the same criminal offenses. After two

superseding indictments, Walls and a codefendant were

charged in March 2012 in a third superseding indictment with

sex-trafficking crimes involving seven victims and witness-

tampering crimes involving three victims. The third

superseding indictment charged Walls with conspiracy to

4 UNITED STATES V. WALLS

transport a juvenile female for prostitution in violation of

18 U.S.C. §§ 371 and 2423(a) (Count 1); interstate

transportation of a child for prostitution in violation of

18 U.S.C. § 2423(a) (Count 2); witness tampering in violation

of 18 U.S.C. §§ 1512(b)(1) and 1512(b)(3) (Count 4);

conspiracy to engage in sex trafficking by force, fraud, and

coercion in violation of 18 U.S.C. §§ 1591(b)(1) and 1594

(Count 6); and sex trafficking through force, fraud, and

coercion in violation of 18 U.S.C. § 1591(a)(1), 1591(b)(1)

(Counts 7, 10, and 16). Walls pleaded not guilty, and the case

went to trial in the Western District of Washington at

Tacoma.

Counts 6, 7, 10, and 16 were brought under the

Trafficking Victims Protection Act (TVPA), 18 U.S.C.

§ 1591 et seq., for Walls’s sex-trafficking conduct relating to

three victims: Heather Acker, Starnesha Glover, and Cali

Florez.1 At trial, these women testified that Walls recruited

and coerced them into prostitution within Washington State.

As to the interstate-nexus element of the TVPA, Acker

testified that Walls showed her how to access a website,

TNABoard.com, to post an advertisement for prostitution

services online. Detective Jacob Martin testified that the

servers for TNABoard.com were located in Texas and

Amsterdam. Florez testified that Walls took photos of her so

that he could post ads on Craigslist for prostitution services

for her; she also testified that she saw Walls access a

computer and upload the photographs that he took of her. A

Craigslist employee, William Clinton Powell, testified that in

2008, Craigslist users in Washington would have had to

1

The TVPA prohibits sex trafficking “in or affecting interstate or

foreign commerce” by “means of force, threats of force, fraud, [or]

coercion.” 18 U.S.C. § 1591(a)(1), (b).

UNITED STATES V. WALLS 5

access Craigslist via servers in Arizona or California. Glover

testified that she used Trojan-brand condoms when she

worked as a prostitute, buying them with money that Walls

had her earn from prostitution acts. Richard Stephens, an

employee of Church & Dwight Company, testified that

Trojan-brand condoms are manufactured in Colonial Heights,

Virginia, and are distributed throughout the country,

including Washington State.

At the close of trial, the United States proposed that the

district court instruct the jury that activity that “is economic

in nature and affects the flow of money in the stream of

commerce to any degree, however minimal, ‘affects’

interstate commerce.” After Walls’s counsel questioned the

accuracy of the instruction (admitting that he “hadn’t done

exhaustive research”), the court struck the words “however

minimal” from the government’s proposed instruction. Prior

to instructing the jury, the court gave counsel copies of the

revised proposed instructions, including the above instruction

(Instruction 24) regarding the requirement that Walls’s

conduct affect interstate commerce. Instruction 24, as

presented to the jury, read in full:

The term “commercial sex act” means any

sex act, on account of which anything of value

is given to or received by any person.

An act or transaction that crosses state

lines is “in” interstate commerce.

An act or transaction that is economic in

nature and affects the flow of money in the

stream of commerce to any degree “affects”

interstate commerce.

6 UNITED STATES V. WALLS

Walls’s counsel did not object to the instruction. Walls’s

counsel stated that he had done additional research, and that,

in light of that research and the modification made by the

court, “the defendant is satisfied with the instructions as they

are written.” The jury found Walls guilty on all counts, and

the district court sentenced him to 23 years of imprisonment

and five years of supervised release. Walls appeals his

convictions as to Counts 6, 7, 10, and 16 for violations of the

TVPA on the ground that the district court misstated the law

and directed a verdict on the element of interstate commerce.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a).

II

Because Walls’s counsel failed to lodge a timely

objection to the jury instructions, whether Instruction 24

misstated the law is reviewed for plain error. See Johnson v.

United States, 520 U.S. 461, 467 (1997). To show plain

error, Walls 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 substantial rights, which in the

ordinary case means it affected the outcome of the district-

court proceedings; and (4) the error seriously affected the

fairness, integrity, or public reputation of judicial

proceedings. United States v. Marcus, 560 U.S. 258, 262

(2010).

III

A

As it pertains to Walls, the TVPA prohibits sex trafficking

“in or affecting interstate or foreign commerce” by “means of

UNITED STATES V. WALLS 7

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

§ 1591(a)(1), (b). The TVPA’s commerce element reveals

the constitutional basis of Congress’s power to regulate sex

trafficking: the Commerce Clause.2 Both this court and the

Supreme Court have held that when Congress uses the

language “affecting interstate commerce,” as it did in the

TVPA, Congress generally intends to regulate to the outer

limits of its authority under the Commerce Clause. Circuit

City Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001) (“The

phrase ‘affecting commerce’ indicates Congress’ intent to

regulate to the outer limits of its authority under the

Commerce Clause.”); United States v. Wright, 625 F.3d 583,

600 (9th Cir. 2010) (“Congress chose to regulate to the outer

limits of its Commerce Clause authority by inserting the

‘affecting interstate commerce’ language [into the Child

Pornography Prevention Act].”). But see Circuit City,

532 U.S. at 118 (cautioning “we do not mean to suggest that

statutory jurisdictional formulations necessarily have a

uniform meaning whenever used by Congress,” and

interpreting a commerce jurisdictional phrase “with reference

to the statutory context in which it is found and in a manner

consistent with the [statute’s] purpose”). But Walls argues

that we must reconsider this standard by which we determine

whether Congress intended to regulate to the limits of its

Commerce Clause authority in light of Bond v. United States,

572 U.S. __, 134 S. Ct. 2077 (2014).

In Bond, defendant Carol Anne Bond attempted to poison

a romantic rival with an arsenic-based compound and

potassium chromate, causing a minor burn readily treated by

2

The Commerce Clause of the United States Constitution assigns to

Congress the authority “[t]o regulate Commerce with foreign Nations, and

among the several States.” U.S. Const. art. I, § 8, cl. 3.

8 UNITED STATES V. WALLS

rinsing with water. 134 S. Ct. at 2085. Despite the small-

scale effects of her offense, she was prosecuted under the

Chemical Weapons Convention Implementation Act of 1998,

which was enacted to implement the Convention on the

Prohibition of the Development, Production, Stockpiling, and

Use of Chemical Weapons and on Their Destruction. Id. at

2084–85. Although the case presented the question whether

and to what extent Congress can enact legislation pursuant to

a treaty of the United States, the Supreme Court avoided that

difficult constitutional issue. See id. at 2087. Instead, it held

that Congress did not intend the Act to apply to Bond’s

purely local conduct: “Absent a clear statement” of

congressional intent, “we will not presume Congress to have

authorized such a stark intrusion into traditional state

authority.” Id. at 2093–94.

Citing Bond, Walls argues this court should not construe

the TVPA as extending to its constitutional limits under the

Commerce Clause, absent a clear statement from Congress

that it intended to intrude into traditional state authority.

Congress made such a statement when it enacted the TVPA.

The Supreme Court has held that when Congress uses the

language “affecting commerce,” as it did in the TVPA, it

generally intends to regulate to the outer limits of its

commerce power. See Circuit City, 532 U.S. at 115.

Although Bond identifies two occasions in which the Court

construed a statute as not reaching purely local conduct

despite the statute’s “affecting commerce” phrase, see 134 S.

Ct. at 2089–90 (discussing United States v. Bass, 404 U.S.

336 (1971), and Jones v. United States, 529 U.S. 848 (2000)),

this case is distinguishable because the congressional findings

incorporated into the TVPA clearly demonstrate Congress’s

intent to enact a criminal statute addressing sex trafficking at

all levels of activity, see 22 U.S.C. § 7101(b)(12) (finding

UNITED STATES V. WALLS 9

that, in the aggregate, sex trafficking “substantially affects

interstate and foreign commerce” and “has an impact on the

nationwide employment network and labor market”); id.

§ 7101(b)(14) (“No comprehensive law exists in the United

States that penalizes the range of offenses involved in the

trafficking scheme.”); see also United States v. Todd,

627 F.3d 329, 333 (9th Cir. 2010) (“Congress concluded that

prostitution in American cities encouraged and enlarged the

market for this traffic from abroad.”). We therefore hold that

when Congress used the language “in or affecting interstate

or foreign commerce” in the TVPA, it intended to exercise its

full powers under the Commerce Clause.

Having concluded that the TVPA extends to the limits of

the Commerce Clause, we must consider whether Instruction

24 lies within those bounds.

B

In United States v. Lopez, 514 U.S. 549 (1995), and

United States v. Morrison, 529 U.S. 598 (2000), the Supreme

Court defined the outer limits of Congress’s authority under

the Commerce Clause, setting out three paradigmatic

categories of permissible regulation of interstate commerce.

Under the Commerce Clause, Congress can regulate (1) “the

channels of interstate commerce,” (2) “the instrumentalities

of interstate commerce,” and (3) “those activities that

substantially affect interstate commerce.” Morrison,

529 U.S. at 609 (quoting Lopez, 514 U.S. at 558–59).

Walls reads Lopez/Morrison’s third category to mean that

Congress cannot regulate, pursuant to its Commerce Clause

powers, acts that have only a de minimis effect on interstate

commerce; rather, Walls contends that effect must be

10 UNITED STATES V. WALLS

“substantial.” But the third category of regulation outlined in

Lopez and Morrison concerns the economic nature of the

class of activity to be regulated, not the effect on interstate

commerce of any individual instance of conduct. The

Supreme Court clarified this distinction in Gonzales v. Raich,

545 U.S. 1 (2005). In Raich, the Court held that Congress has

the power to regulate the purely intrastate cultivation and

possession of marijuana for personal use because the

Commerce Clause power extends to “purely local activities

that are part of an economic ‘class of activities’ that have a

substantial effect on interstate commerce.” 545 U.S. at 18.

That is, Congress’s power to regulate within

Lopez/Morrison’s third category—activities that substantially

affect interstate commerce—extends to individual instances

of conduct with only a de minimis effect on interstate

commerce so long as the class of activity regulated is

economic or commercial in nature. See id. at 17 (“[W]hen a

general regulatory statute bears a substantial relation to

commerce, the de minimis character of individual instances

arising under that statute is of no consequence.” (internal

quotation marks omitted)).

The TVPA is part of a comprehensive regulatory scheme

that criminalizes and attempts to prevent slavery, involuntary

servitude, and human trafficking for commercial gain.

Congress recognized that human trafficking, particularly of

women and children in the sex industry, “is a modern form of

slavery, and it is the largest manifestation of slavery today.”

22 U.S.C. § 7101(b)(1); see also id. § 7101(b)(2), (4), (9),

(11). Congress found that trafficking of persons has a

substantial aggregate economic impact on interstate and

foreign commerce, id. § 7101(b)(12), and that 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) (distinguishing the

UNITED STATES V. WALLS 11

TVPA from the statute struck down in Morrison). Consistent

with the outer limits of the commerce power defined in

Raich, we hold that any individual instance of conduct

regulated by the TVPA need only have a de minimis effect on

interstate commerce.3 Accordingly, the district court did not

err when it instructed the jury that “any act that crosses state

lines is ‘in’ interstate commerce” and “an act or transaction

that is economic in nature” and “affects the flow of money in

the stream of commerce to any degree ‘affects’ interstate

commerce.”

IV

Walls further argues that Instruction 24 “essentially

directed a verdict on the element of interstate commerce in

this case”; that the instruction “is a conclusive statement that

the use of money, credit cards and condoms satisfied the first

element of the crime”; and that “[t]he court removed any

ability for the jury to consider the lack of nexus between

Walls’s acts and interstate commerce.” This argument fails.

An instruction violates due process “if it creates a

mandatory presumption, either conclusive or rebuttable,

which shifts from the prosecution the burden of proving

3

We note that, in contexts other than the TVPA, we have held that an

act having a de minimis effect on commerce satisfies an express statutory

requirement that the act be one affecting interstate commerce if the class

of activities regulated by the statute substantially affects interstate

commerce. See, e.g., United States v. McCalla, 545 F.3d 750, 753, 756

(9th Cir. 2008) (possession of child pornography); United States v. Boyd,

480 F.3d 1178, 1179 (9th Cir. 2007) (per curiam) (Hobbs Act); United

States v. Shryock, 342 F.3d 948, 984 n.6 (9th Cir. 2003) (RICO); United

States v. Serang, 156 F.3d 910, 913–14 (9th Cir. 1998) (federal arson

statute as applied to commercial buildings).

12 UNITED STATES V. WALLS

beyond a reasonable doubt an essential element of a criminal

offense.” United States v. Washington, 819 F.2d 221, 225

(9th Cir. 1987). A jury instruction includes a mandatory

presumption if “reasonable jurors [are] require[d] . . . to find

the presumed fact if the State proves certain predicate facts.”

Carella v California, 491 U.S. 263, 265 (1989). Instruction

24 did not create such a presumption; it merely defined the

language “affecting interstate or foreign commerce” and

correctly stated what the government was required to show.

It left for the jury to decide whether Walls committed conduct

that had at least a de minimis effect on interstate commerce.

V

For the foregoing reasons, we affirm Walls’s convictions.

AFFIRMED.