Opposition Brief — Ralph Kevin Tovar, Petitioner v. United States

No. 25-6344

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

RALPH KEVIN TOVAR, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

D. JOHN SAUER

Solicitor General

Counsel of Record

A. TYSEN DUVA

Assistant Attorney General

DAVID M. LIEBERMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether the court of appeals correctly rejected petitioner’s

contention that his attempt to exchange money for sex with two

minors whose services were advertised on the Internet, through

arrangements that petitioner made via cellphone text messages, was

sufficient to show conduct “in or affecting” interstate commerce

for purposes of his convictions for attempted sex trafficking of

minors, in violation of 18 U.S.C. 1591(a)(1) and 1594(a).

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (S.D. Fla.):

United States v. Tovar, No. 22-cr-20205 (Feb. 27, 2023)

United States Court of Appeals (11th Cir.):

United States v. Tovar, No. 23-10755 (Aug. 8, 2025)

(II)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 25-6344

RALPH KEVIN TOVAR, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. A1, at 1-17) 1

is reported at 146 F.4th 1318.

JURISDICTION

The judgment of the court of appeals was entered on August 8,

2025. On October 29, 2025, Justice Thomas extended the time within

which to file a petition for a writ of certiorari to and including

The appendix to the petition for a writ of certiorari is

not consecutively paginated. This brief refers to the appendix as

if it were consecutively paginated.

1

2

December 8, 2025, and the petition was filed on that date.

The

jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Southern District of Florida, petitioner was convicted on

one count of attempted sex trafficking of a minor under age 14, in

violation

of

18

U.S.C.

1591(a)(1)

and

1594(a);

one

count

of

attempted sex trafficking of a minor over age 14, in violation of

18 U.S.C. 1591(a)(1) and 1594(a); and one count of attempted

coercion and enticement of a minor to engage in sexual activity,

in violation of 18 U.S.C. 2422(b).

Judgment 1.

He was sentenced

to 180 months of imprisonment, to be followed by ten years of

supervised release.

Judgment 2-3.

The court of appeals affirmed.

Pet. App. A1, at 1-17.

1.

In early 2022, federal agents placed fake advertisements

for young girls on an Internet website known for sex trafficking.

Pet. App. A1, at 2. Petitioner responded to one such advertisement

shortly after midnight, texting that he was looking for a “unique

experience.”

Id. at 3.

When agents did not immediately respond,

petitioner called the listed number, but no one answered.

Ibid.

Petitioner then sent another text message at 2:01 a.m., asking

“[i]s those girls available sometime tonight or tomorrow?” Ibid.

He did not receive a reply and, after waiting nine hours, he sent

the same message again.

Ibid.

3

Federal agents responded three hours later, explaining that

they had “two young, beautiful girls available.”

3.

Pet. App. A1, at

They stated that one girl was 15 years old and the other girl

was 13 years old.

Ibid.

Petitioner asked how late the girls would

be available and said that he wanted to “make an appointment.”

Ibid.

He

also

requested

photos

and

explained

interested in “two girls at the same time.”

Ibid.

that

he

was

The agents did

not send the requested photos, but reiterated that the two girls

were “15 years old and 13 years old” and stated that they were

“super pretty and are up for almost anything.”

Ibid.

Petitioner

said that was okay and asked “[y]ou are not working for the law or

something.

business

Right?”

very

Ibid.

serious

so

The agents responded, “no, I take my

you

better

not

be

a

cop.”

Ibid.

Petitioner replied that he also was “not a cop” and noted that he

would “bring a lot of cash” to the meetup spot.

Ibid.

Agents set the price at $400 an hour and added that the girls

would “do everything and anything but the 13-year-old doesn’t do

anal.

Is that okay?”

Pet. App. A1, at 3.

Petitioner criticized

the agents for talking about sex acts over text message, but

confirmed that he was “okay” with the restriction.

Id. at 3-4.

Petitioner also stated that he “might text from [a] different

number because you kind [of] messed up by texting about anal.

is very confidential because of their age already.”

This

Id. at 4.

4

Before switching to the new number, petitioner asked if he

could buy extra “services” in exchange for “more cash.”

A1, at 4.

Pet. App.

Agents responded that petitioner could engage in

unprotected sex, anal sex (with the 15-year-old girl), and have

pictures of the encounter for an extra $50 each.

Ibid.

Petitioner

selected all three, confirmed that the total price would be $550,

and again stated that he was “not a cop.”

Ibid.

Petitioner and the agents planned to meet at 9 p.m. at a hotel

in Doral, Florida.

Pet. App. A1, at 4.

at a bank to withdraw the $550.

Petitioner first stopped

Ibid.

undercover agent in the hotel parking lot.

He then met with an

Ibid.

During their

conversation, the agent told petitioner again that the girls were

13 and 15 years old.

Ibid.

Petitioner then handed the agent $550

in exchange for a hotel room key.

petitioner was arrested.

2.

Ibid.

After the exchange,

Ibid.

A grand jury in the Southern District of Florida charged

petitioner with one count of attempted sex trafficking of a minor

under age 14, in violation of 18 U.S.C. 1591(a)(1) and 1594(a);

one count of attempted sex trafficking of a minor over age 14, in

violation of 18 U.S.C. 1591(a)(1) and 1594(a); and one count of

attempted coercion and enticement of a minor to engage in sexual

activity, in violation of 18 U.S.C. 2422(b).

With

respect

to

the

Pet. App. A1, at 4.

sex-trafficking

counts,

Section

1591(a)(1) prohibits sex trafficking “in or affecting interstate

5

or foreign commerce.”

18 U.S.C. 1591(a)(1).

At trial, the

government and petitioner stipulated that the Internet and his

cellphone were each a facility of interstate commerce.

D. Ct.

Doc. 75, at 120.

At the close of the government’s case, petitioner moved for

a judgment of acquittal on all counts under Federal Rule of

Criminal Procedure 29 and argued that the government had failed to

present sufficient evidence “to prove the first element on any of

the three counts” that “he knowingly attempted to recruit [or]

entice” a minor child.

D. Ct. Doc. 75, at 239-240.

court denied the motion.

Id. at 240.

Petitioner testified in his defense.

87.

The district

D. Ct. Doc. 76, at 14-

After testifying, petitioner again moved for a judgment of

acquittal based on “all the grounds that [petitioner] stated

yesterday

plus

the

additional

credible

testimony

that

[he]

presented today.”

Id. at 88.

motion.

The jury subsequently found petitioner guilty

Id. at 89.

on all counts.

3.

The district court denied the

D. Ct. Doc. 43.

The court of appeals affirmed.

Pet. App. A1, at 1-17.

Petitioner principally argued that the district court erred

in denying his motion for a judgment of acquittal on the sextrafficking counts on the theory that his conduct was legally

insufficient to satisfy the interstate-commerce element of 18

U.S.C. 1591(a)(1).

Pet. App. A1, at 5.

The court of appeals

6

reviewed that claim for plain error because petitioner had not

raised the claim in the district court, rejecting petitioner’s

contention that his motion had preserved the claim for appellate

review.

Id. at 11 & n.3.

The court of appeals accordingly required petitioner to show

that “(1) an error occurred, (2) the error was obvious, and (3)

the error affected his substantial rights.”

Pet. App. A1, at 11

(citing Rosales-Mireles v. United States, 585 U.S. 129, 134–135

(2018)). The court also noted its “discretion to correct the error

only if it seriously impaired the ‘fairness, integrity or public

reputation of judicial proceedings.’”

Ibid. (quoting Rosales-

Mireles, 585 U.S. at 135).

And the court ultimately found “[n]o

error”

“no

and,

accordingly,

plain

error”

petitioner’s interstate-commerce challenge.

with

respect

to

Id. at 13; see id. at

11-13.

The court of appeals stated that the statutory “phrase ‘in

commerce’ refers to both the ‘channels within which people and

goods move through the flow of commerce’ and the ‘instrumentalities

used to facilitate that movement.’” Pet. App. A1, at 11-12 (quoting

United States v. Ballinger, 395 F.3d 1218, 1233 (11th Cir.) (en

banc), cert. denied, 546 U.S. 829 (2005)).

The court observed

that the Internet and cellphones -- both of which petitioner “used

* * *

when he tried to purchase sex with two minors” –- qualify

as instrumentalities of interstate commerce.

Id. at 12 (citing

7

United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004),

cert. denied, 545 U.S. 1134 (2005); United States v. Evans, 476

F.3d 1176, 1180 (11th Cir.), cert. denied, 552 U.S. 878 (2007)).

The

court

also

noted

that

“‘a

defendant

whose

illegal

acts

ultimately occur intrastate still acts “in commerce” if he uses

the

channels

or

instrumentalities

facilitate their commission.’”

of

interstate

commerce

to

Ibid. (quoting United States v.

Baston, 818 F.3d 651, 664 (11th Cir. 2016), cert. denied, 580 U.S.

1182 (2017)).

And after reviewing the trial evidence, the court

of appeals found that “[petitioner’s] use of the internet and his

cell phone ‘facilitated’ his attempted trafficking because he

needed these instrumentalities to arrange the transaction -- sex

with a thirteen-year-old and a fifteen-year-old.”

Ibid.

ARGUMENT

Petitioner

contends

that

the

court

of

appeals

erred

in

reviewing his sufficiency claim for plain error (Pet. 5-11) and

finding sufficient evidence to support the jury’s verdict that

petitioner’s

affecting”

attempted

interstate

sex

trafficking

commerce

1591(a)(1) (Pet. 11-26).

as

of

required

minors

was

by

18

of

“in

or

U.S.C.

The decision below is correct and does

not conflict with any decision of this Court or another court of

appeals.

This Court has denied petitions for certiorari raising

similar arguments, see, e.g., Liddy v. United States, 145 S. Ct.

2791 (2025) (No. 24-735) (Internet communications in interstate

8

commerce); Koech v. United States, 142 S. Ct. 371 (2021) (No. 215523) (cellphone communications in or affecting commerce); Ricks

v. United States, 580 U.S. 1001 (2016) (No. 16-5278) (plain error

review of sufficiency claim).

It should follow the same course

here.

1.

Under Federal Rule of Criminal Procedure Rule 29(a), a

defendant may move for judgment of acquittal if “the evidence is

insufficient to sustain a conviction.”

Federal Rule of Criminal

Procedure 51(b) further requires that parties object to asserted

errors and state “the grounds for th[e] objection.”

Errors “not

brought to the court’s attention” are reviewed only for plain

error.

Fed. R. Crim. P. 52(b).

The court of appeals correctly applied that framework.

court

observed

sufficiency

of

that

petitioner

the

evidence

had

failed

addressing

to

Section

challenge

The

the

1591(a)(1)’s

interstate-commerce element in his Rule 29 motion to the district

court.

Pet. App. A1, at 11.

claim for plain error.

And it accordingly reviewed this

Ibid.

Some circuits have taken the view that a general, “broadly

stated” Rule 29 motion is “sufficient to preserve [for de novo

review] the full range of challenges, whether stated or unstated,

to the sufficiency of the evidence.”

United States v. Hammoude,

9

51 F.3d 288, 291 (D.C. Cir.), cert. denied, 515 U.S. 1128 (1995). 2

The court below in this case has declined to definitively embrace

or reject that approach.

See Pet. App. A1, at 11 n.3 (“Our Circuit

has never adopted that rule, and we decline to do so today.”)

(citing United States v. Baston, 818 F.3d 651, 663-664 (11th Cir.

2016)); see Baston, 818 F.3d at 663-664 (“Other circuits have held

that a defendant preserves all challenges to the sufficiency of

the evidence if he raises a ‘general’ challenge in the district

court.

We need not decide whether those decisions are consistent

with the law in this Circuit.”) (citations omitted), cert. denied,

580 U.S. 1182 (2017)).

This case did not present the court of appeals with an

appropriate vehicle -- and does not present this Court with an

appropriate vehicle -- for deciding whether that approach is

correct.

Even in jurisdictions where “a general sufficiency-of-

the-evidence

objection

arguments”

for

emphasized

that

appellate

“a

preserves

review,

motion

all

the

raising

possible

courts

only

of

specific

sufficiency

appeals

have

sufficiency

arguments waives unenumerated arguments,” United States v. Foley,

See United States v. Marston, 694 F.3d 131, 134 (1st Cir.

2012); United States v. Gjurashaj, 706 F.2d 395, 399 (2d Cir.

1983); United States v. Wesley, 417 F.3d 612, 617 (6th Cir. 2005);

United States v. Hosseini, 679 F.3d 544, 550 (7th Cir.), cert.

denied, 568 U.S. 1011 (2012), 568 U.S. 1055 (2012); United States

v. Graf, 610 F.3d 1148, 1166-1167 (9th Cir. 2010); United States

v. Kelly, 535 F.3d 1229, 1234-1235 (10th Cir. 2008), cert. denied,

555 U.S. 1203 (2009); United States v. Hammoude, 51 F.3d 288, 291

(D.C. Cir.), cert. denied, 515 U.S. 1128 (1995).

2

10

783 F.3d 7, 12 (1st Cir. 2015), and restricts appellate review to

plain error,

id. at 12-13; see also, e.g., United States v.

Delano, 55 F.3d 720, 726 (2d Cir. 1995); United States v. Hills,

27 F.4th 1155, 1172 (6th Cir. 2022), cert. denied, 143 S. Ct. 305

(2022); 143 S. Ct. 606 (2023); United States v. Hosseini, 679 F.3d

544, 550 (7th Cir.), cert. denied, 568 U.S. 1011 (2012), 568 U.S.

1055 (2012); United States v. Graf, 610 F.3d 1148, 1166 (9th Cir.

2010); United States v. Leffler, 942 F.3d 1192, 1197 (10th Cir.

2019); United States v. Spinner, 152 F.3d 950, 955-956 (D.C. Cir.

1998).

Under

that

principle,

other

circuits

would

--

like

the

decision below -- have reviewed petitioner’s interstate-commerce

challenge for plain error.

Petitioner did not advance a general

challenge to the sufficiency of the evidence to the district court.

Instead, his Rule 29 motions raised specific challenges that did

not include the contention that the evidence failed to demonstrate

Section 1591(a)(1)’s interstate-commerce element.

See D. Ct. Doc.

75, at 239-240 (“[T]he Government has failed to prove the first

element[.]

* * *

They haven’t established that [petitioner]

knowingly attempted to recruit, entice.

it,

* * *

The ‘knowingly’ aspect of

they haven’t met their burden.”); D. Ct. Doc. 76, at

88 (“We renew all the grounds that we stated yesterday plus the

additional credible testimony that my client presented today.”).

And any potential divergence in the circuits’ analytical paths for

11

applying plain-error review is not the sort of circuit conflict

that warrants certiorari.

See Black v. Cutter Laboratories, 351

U.S. 292, 297 (1956) (This Court “reviews judgments, not statements

in opinions.”)

Furthermore, even if the court of appeals was mistaken to

apply the plain-error standard applied, that error had no effect

on its resolution of this case, because the court ultimately

concluded that the district court had committed no error at all in

denying petitioner’s Rule 29 motion.

error

means

no

plain

error,

interstate-commerce challenge.”).

and

See Pet. App. A1, at 13 (“No

we

reject

[petitioner’s]

Petitioner’s convictions would

have therefore been upheld even if reviewed under the de novo

standard that petitioner advocates here.

Because prevailing on

the first question presented would offer petitioner no practical

relief,

this

case

is

addressing that issue.

at

minimum

an

unsuitable

vehicle

for

See Supervisors v. Stanley, 105 U.S. 305,

311 (1882) (explaining that this Court does not grant a writ of

certiorari to “decide abstract questions of law

* * *

which, if

decided either way, affect no right” of the parties).

2.

Petitioner’s renewed sufficiency claim likewise does not

warrant this Court’s review.

This Court has “identified three broad categories of activity

that Congress may regulate under its commerce power.”

States v. Lopez, 514 U.S. 549, 558 (1995).

United

“First, Congress may

12

regulate the use of the channels of interstate commerce.”

Ibid.

Second, Congress may “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.”

Ibid.

And third, Congress may “regulate those

activities having a substantial relation to interstate commerce,

i.e.,

those

commerce.”

activities

that

substantially

affect

interstate

Id. at 558—559 (citation omitted).

“Congress is aware of the ‘distinction between legislation

limited to activities “in commerce” and an assertion of its full

Commerce Clause power so as to cover all activity substantially

affecting interstate commerce.’”

Scarborough v. United States,

431 U.S. 563, 571 (1977) (citation omitted).

Thus, in prohibiting

sex-trafficking activities “in or affecting” interstate commerce,

18 U.S.C. 1591(a)(1) (emphasis added), Congress “must have meant

more than to outlaw” conduct “that occur[s] in commerce or in

interstate facilities.”

Scarborough, 431 at 572.

In this case, petitioner used the Internet and cellphones to

facilitate

his

attempted

sex

trafficking

of

minors.

“‘Telephones,’” including “landlines and cellphones,” have been

considered “‘instrumentalities of interstate commerce.’”

United

States v. Stackhouse, 105 F.4th 1193, 1199 (9th Cir.) (citation

omitted), cert. denied, 145 S. Ct. 558 (2024); see Pet. App. A1,

at 12.

Likewise, the Internet can readily be described as “an

13

instrumentality

and

channel

of

interstate

commerce.”

United

States v. Sutcliffe, 505 F.3d 944, 953 (9th Cir. 2007); see also

Pet. App. A1, at 12; United States v. Morgan, 748 F.3d 1024, 1033

(10th Cir.) (“[T]he Internet is an instrumentality of interstate

commerce.”), cert. denied, 574 U.S. 915 (2014). Indeed, petitioner

stipulated to both points at trial.

D. Ct. Doc. 75, at 120.

Because petitioner sought to arrange for commercial sex acts

through the use of messages on cellphones that he initiated in

response

to

an

Internet-wide

advertisement,

his

necessarily “in or affecting” interstate commerce.

conduct

was

Petitioner’s

assertion that he remained within one State throughout his course

of conduct accordingly does not entitle him to relief.

Lopez, 514

U.S. at 558; see ibid. (“[T]he authority of Congress to keep the

channels of interstate commerce free from immoral and injurious

uses

* * *

is no longer open to question.”) (citation and

internal quotation marks omitted; brackets in original).

b.

Contrary to petitioner’s contention (Pet. 23-26), the

court of appeals' decision in this case does not conflict with any

decision of another court of appeals.

The other circuits to

confront the issue have likewise recognized that a defendant’s use

of the Internet or a cellphone to facilitate sex-trafficking

activities is sufficient to satisfy Section 1591(a)(1)’s “in or

affecting” commerce element.

See United States v. Taylor, No. 22-

50028, 2024 WL 1108829, at *1 (9th Cir. Mar. 14, 2024), cert.

14

denied, 145 S. Ct. 1064 (2025); United States v. Renteria, 84 F.4th

591, 594 & n.1 (5th Cir. 2023); United States v. Koech, 992 F.3d

686, 693 (8th Cir.), cert. denied, 142 S. Ct. 371 (2021); United

States v. Gray-Sommerville, 618 Fed. Appx. 165, 168 (4th Cir.)

(per curiam), cert. denied, 577 U.S. 894 (2015); United States v.

Willoughby, 742 F.3d 229, 240 (6th Cir. 2014).

Petitioner errs in asserting (Pet. 24-25) that the decision

below conflicts with the Tenth Circuit’s decisions in United States

v. Schaefer, 501 F.3d 1197 (2007), and United States v. Baker, 155

F.4th

1188

(2025).

Schaefer

addressed

the

since-amended

provisions of child-pornography statutes requiring proof that a

visual image “has been mailed, or has been shipped or transported

in interstate or foreign commerce

* * *

by any means including

by computer.” 18 U.S.C. 2252(a)(2) and (a)(4)(B). After the Tenth

Circuit took the view that “an Internet transmission, standing

alone,” did not satisfy “the interstate commerce requirement,”

501 F.3d at 1200, Congress superseded the decision by amending the

statute to clarify that “[t]he transmission of child pornography

using

the

Internet

constitutes

transportation

in

interstate

commerce,” Effective Child Pornography Prosecution Act of 2007,

Pub. L. No. 110—358, § 102(7), 122 Stat. 4002.

And Baker took the

view the wire-fraud statute’s element of “transmit[ting]

caus[ing] to be transmitted by means of wire

in interstate or foreign commerce,”

* * *

or

communication

18 U.S.C. 1343, could not be

15

satisfied by “an individual’s use of the internet, standing alone.”

Baker, 155 F.4th at 1202 (internal quotation marks and citation

omitted).

the

phrase

Neither decision addressed the statute here, which uses

“‘affecting

commerce,’”

which

“indicates

Congress’

intent 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); see 18 U.S.C. 1591(a).

Petitioner also errs in asserting (Pet. 23-24) that the

decision below conflicts with the Ninth Circuit’s decision in

United States v. Wright, 625 F.3d 583 (2010). Wright mirrors

Schaefer, in that it concerned the since-amended child-pornography

laws, which were worded differently from Section 1591(a), at issue

here. Petitioner has accordingly identified no precedent of either

the Tenth or the Ninth Circuit that would have entitled him to

relief in the circumstances of this case.

Cf. United States v.

Tuan Ngoc Luong, 965 F.3d 973, 981 (9th Cir. 2020) (recognizing

that “when Congress chooses to use the words ‘affecting interstate

commerce,’ it intends to regulate to the outer limits of its

Commerce Clause authority”) (internal quotation marks and citation

omitted), cert. denied, 142 S. Ct. 336 (2021).

16

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

A. TYSEN DUVA

Assistant Attorney General

DAVID M. LIEBERMAN

Attorney

APRIL 2026