Sex Trafficking: An Overview of Federal Criminal Law

Sex Trafficking: An Overview of Federal Criminal Law
Sex Trafficking: An Overview
of Federal Criminal Law
Charles Doyle
Senior Specialist in American Public Law
June 25, 2015
Congressional Research Service
7-5700
www.crs.gov
R43597
Sex Trafficking: An Overview of Federal Criminal Law
Summary
Sex trafficking is a state crime. Federal law, however, makes it a federal crime to conduct the
activities of a sex trafficking enterprise in a way that affects interstate or foreign commerce or
that involves travel in interstate or foreign commerce. Section 1591 of Title 18 of the United
States Code outlaws sex trafficking activities that affect interstate or foreign commerce. The
Mann Act outlaws sex trafficking activities that involve travel in interstate or foreign commerce.
The Justice for Victims of Trafficking Act of 2015 (Victims Justice Act; P.L. 114-22/S. 178)
amended both §1591 and the Mann Act.
Section 1591 now provides in part the following: “Whoever knowingly in or affecting interstate
or foreign commerce, or within the special maritime and territorial jurisdiction of the United
States, recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or
solicits by any means a person; knowing, or in reckless disregard of the fact, that means of force,
threats of force, fraud, coercion ... , or any combination of such means will be used to cause the
person to engage in a commercial sex act, or that the person has not attained the age of 18 years
and will be caused to engage in a commercial sex act,” shall be imprisoned not less than 15 years
(not less than 10 years, if the victim is 14 years of age or older and the offender is less than 18
years of age).
The Mann Act outlaws prostitution and unlawful sexual activities that involve interstate or
foreign travel. It consists of three principal substantive sections. Section 2421 proscribes the
interstate or foreign transportation of someone for purposes of prostitution or unlawful sexual
activity; misconduct which is punishable by imprisonment for not more than 10 years. Section
2422 condemns coercing or enticing another person to travel in interstate or foreign commerce to
engage in prostitution or unlawful sexual activity, or using interstate communications to coerce or
entice a child to engage in such conduct. The communications offense is punishable by
imprisonment for not less than 10 years; the travel offense by imprisonment for not more than 20
years. Section 2423 outlaws four distinct offenses: (1) §2423(a)—transportation of a child in
interstate or foreign commerce for purposes of prostitution or unlawful sexual purposes; (2)
§2423(b)—interstate or foreign travel for purposes of unlawful sexual abuse of a child; (3)
§2423(c)—foreign travel and subsequent unlawful sexual abuse of a child; and (4) §2423(d)—
arranging, for profit, the travel outlawed in any of these offenses. The first is punishable by
imprisonment for not less than 10 years, each of the others by imprisonment for not more than 30
years.
An offender also faces the prospect of a fine of not more than $250,000 (not more than $500,000
for an organization); unless indigent, to a special assessment of $5,000; a term of supervised
release of not less than five years; an order to pay the victim restitution; and the confiscation of
any property derived from, or used to facilitate commission of, any of the offenses.
This report is available in an abridged version without the footnotes and most of the citations to
authority found here under the title CRS Report R43598, Sex Trafficking: An Abbreviated
Overview of Federal Criminal Law.
Congressional Research Service
Sex Trafficking: An Overview of Federal Criminal Law
Contents
Introduction...................................................................................................................................... 1
Section 1591 .................................................................................................................................... 1
Section 1591(a)(1) ..................................................................................................................... 1
Section 1591(a)(2): Profiteering ................................................................................................ 8
Obstruction ................................................................................................................................ 9
Attempt and Conspiracy .......................................................................................................... 10
Attempt .............................................................................................................................. 10
Conspiracy......................................................................................................................... 10
Aiding and Abetting ................................................................................................................ 11
Extraterritorial Application ...................................................................................................... 12
Forfeiture ................................................................................................................................. 12
Restitution................................................................................................................................ 13
Civil Cause of Action .............................................................................................................. 14
Mann Act ....................................................................................................................................... 15
Section 2421 (Transportation in General) ............................................................................... 16
Section 2422 (Coercion and Enticement) ................................................................................ 18
Section 2422(a)(Interstate Travel) ..................................................................................... 18
Section 2422(b)(Facilities of Interstate Commerce) ......................................................... 20
Section 2423 (Transportation Involving Children) .................................................................. 22
Section 2423(a)(Transporting a Child) .............................................................................. 22
Section 2423(b)(Travel With Intent) ................................................................................. 24
Section 2423(c)(Travel Followed by Illicit Sex) ............................................................... 26
Section 2423(d)(Travel Agents) ........................................................................................ 28
Contacts
Author Contact Information........................................................................................................... 29
Congressional Research Service
Sex Trafficking: An Overview of Federal Criminal Law
Introduction
Sex trafficking is a state crime.1 Nevertheless, it is also a federal crime when it involves
conducting the activities of a sex trafficking enterprise in a way that affects interstate or foreign
commerce or that involves travel in interstate or foreign commerce.2 Section 1591 of Title 18 of
the United States Code outlaws the activities of sex trafficking enterprise that affects interstate or
foreign commerce, including patronizing such an enterprise. The Mann Act outlaws sex
trafficking activities that involve travel in interstate or foreign commerce.3
Section 1591
Section 1591 makes criminal several of the activities associated with the creation or operation of
a commercial sex trafficking enterprise which uses children or coerced or deceived adults.4 It also
proscribes profiting from such an enterprise or obstructing investigation of its activities.5 A
subsequent section prohibits attempting or conspiring to violate §1591.6
Section 1591(a)(1)
Divided into elements, §1591(a)(1) declares that
(1) Whoever
(2) knowingly
(3) (a) in or affecting interstate or foreign commerce, or
1
E.g., ALA. CODE §§13A-6-151 to 13A-6-160; ALASKA STAT. §§11.66.100 to 11.66.150; ARIZ. REV. STAT. ANN. §131307; ARK. CODE ANN. §§5-18-101 to 5-18-105; CAL. PENAL CODE §§236.1 to 237; CONN. GEN. STAT. ANN. §53a192a; Del. Code Ann. tit.11 §787; FLA. STAT. ANN. §787.06; GA. CODE §16-5-46; HAWAII REV. STAT. §§712-1201 to
712-1209.6; IDAHO CODE §§18-8601to 19-8605; 720 ILL. COMP. STAT. ANN. §5/10-9; IND. CODE ANN. §§35-42-3.5-1 to
35.-42-3.5-2; IOWA CODE ANN. §§710A.1 to 710A.5; KAN. STAT. ANN. §21-5426; KY. REV. STAT. ANN. §§529.010 to
529.150; LA. REV. STAT. ANN. §§14:46.2, 14:46.3; ME. REV. STAT. ANN. tit.17-A §§851 to 855; MD. CODE ANN. Crim.
Law §§11-301 to 11-306; MASS. GEN. LAWS ANN. ch. 265 §§49-57; Mich. Comp. Laws Ann. §§750.462a to 750.462j;
MINN. STAT. ANN. §§609.321 to 609.3241; MISS. CODE ANN. §§97-3-54.1 to 97-3-54.9; MO. ANN. STAT. §§566.200 to
566.223; MONT. CODE ANN. §§45-5-305 to 45-5-311; NEB. REV. STAT. §§28-803 to 28-833; NEV. REV. STAT.
§§201.295 to 201.352; N.H. REV. STAT. ANN. §§633.6 to 633.10; N.J. STAT. ANN. §§2C:13-8 to 2C:13-12; N.MEX.
STAT. ANN. §§30-52-1 to 30-52-3; N.Y. PENAL LAW §§230.00 to 230.40; N.C. GEN. STAT. §§14-43.10 to 14-43.20;
N.D. CENT. CODE §§12.1-40-01 to 12.1-40-02; OHIO REV. CODE ANN. §§2905.31, 2905.32; OKLA. STAT. ANN. tit.21
§§748 to 748.2; ORE. REV. STAT. §167.017; R.I. GEN. LAWS §§11-67-1 to 11-67-8; S.C. CODE ANN. §§16-3-2010 to 163-2090; S.D. COD. LAWS §§22-49-1 to 22-49-3; TENN. CODE ANN. §§39-13-309 to 39-13-315; TEX. PENAL CODE ANN.
§§20A.01 to 20A.03; UTAH CODE ANN. §§76-5-307 to 76-5-310; VT. STAT. ANN. tit.13 §§2651 to 2658; VA. CODE
§§18.2-346 to 18.2-357; WASH. REV. CODE ANN. §§9A.40.090 to 9A.40.100; W.VA. CODE ANN. §61-2-17; WIS. STAT.
ANN. §940.302; WYO. STAT. §§6-2-701 - 6-2-710. Analysis of state law is beyond the scope of this report.
2
For a discussion of related policy issues and the proposals addressing those issues, see CRS Report RL34317,
Trafficking in Persons: U.S. Policy and Issues for Congress, by Alison Siskin and Liana W. Rosen; CRS Report
R41878, Sex Trafficking of Children in the United States: Overview and Issues for Congress, by Kristin Finklea,
Adrienne L. Fernandes-Alcantara, and Alison Siskin; and CRS Report R43555, Domestic Human Trafficking
Legislation in the 113th Congress, coordinated by Alison Siskin.
3
18 U.S.C. 2421 to 2428.
4
18 U.S.C. 1591(a)(1).
5
18 U.S.C. 1591(a)(2), (d).
6
18 U.S.C. 1594(a), (c).
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Sex Trafficking: An Overview of Federal Criminal Law
(b) within the special maritime and territorial jurisdiction of the United States,
(4)(a) recruits,
(b) entices,
(c) harbors,
(d) transports,
(e) provides,
(f) obtains,
(g) advertises,
(h) maintains,
(i) patronizes, or
(j) solicits
by any means
(5) a person;
(6) (a) knowing, or
(b) in reckless disregard of the fact,
(7) (a) that
(A) (i) means of force,
(ii) threats of force,
(iii) fraud,
(iv) coercion ... , or
(v) any combination of such means
(B) will be used to cause the person to
(C) engage in a commercial sex act, or
(b) that (A) the person has not attained the age of 18 years and
(B) will be caused to engage in a commercial sex act,
(8) shall be punished as provided in subsection (b).7
Subsection (b) makes violations punishable by imprisonment for any term of years not less than
15 years or for life (not less than 10 years imprisonment, if the victim is 14 years of age or older
and the offender is less than 18 years of age, provided neither force nor deception were used).8
Offenders also face a fine of not more than $250,000 (not more than $500,000 when the offender
is an organization);9 and unless indigent, to a special assessment of $5,000.10 In addition,
offenders are subject to a term of supervised release of not less than five years.11 An offender may
also be subject to a restitution order.12 Moreover, property derived from a violation or used to
7
18 U.S.C. 1591(a)(language which the Victims Justice Act added in italics). A summary of the criminal law
provisions of the Victims Justice Act appears in CRS Report R 44064, Justice for Victims of Trafficking Act: A Legal
Analysis of the Criminal Provisions of P.L. 114-22 by Charles Doyle.
8
18 U.S.C. 1591(b)(“The punishment for an offense under subsection (a) is- (1) if the offense was effected by means of
force, threats of force, fraud, or coercion described in subsection (e)(2), or by any combination of such means, or if the
person recruited, enticed, harbored, transported, provided, or obtained had not attained the age of 14 years at the time of
such offense, by a fine under this title and imprisonment for any term of years not less than 15 or for life; or (2) if the
offense was not so effected, and the person recruited, enticed, harbored, transported, provided, or obtained had attained
the age of 14 years but had not attained the age of 18 years at the time of such offense, by a fine under this title and
imprisonment for not less than 10 years or for life”).
9
Id. and 18 U.S.C. 3571, 3581.
10
18 U.S.C. 3014.
11
18 U.S.C. 3583(k). For a discussion of federal law relating to supervised release, see CRS Report RL31653,
Supervised Release (Parole): An Overview of Federal Law, by Charles Doyle.
12
18 U.S.C. 3663. For a discussion of federal law in the area of restitution generally, see CRS Report RL34138,
Restitution in Federal Criminal Cases, by Charles Doyle.
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facilitate a violation may be forfeited.13 Finally, unless they are indigent, offenders are subject to a
$5,000 special assessment upon conviction.14
The courts have construed the offense’s elements as follows:
Whoever: When used in an act of Congress and unless the context demands another
interpretation, the word “‘whoever’ include[s] corporations, companies, associations, firms,
partnerships, societies, and joint stock companies, as well as individuals.”15 Thus, corporations
and other legal entities may be held criminally liable for the misconduct of their employees,
officers, or agents within the scope of their authority and committed at least in part for the benefit
of the entity.16
Knowingly: Knowingly ordinarily means that the individual was aware of the fact that he was
engaging in the conduct proscribed.17 In this case, it means that he knew he was recruiting,
enticing, harboring, transporting, providing, obtaining, or maintaining a person. The prosecution,
however, need not prove that he knew his conduct occurred in United States territory or that it
occurred in, or affected, interstate or foreign commerce.18
In or affecting interstate or foreign commerce: Congress enjoys only those legislative powers that
may be traced to the Constitution.19 One such power is the power “to regulate Commerce with
foreign Nations, and among the several States.”20 The Supreme Court has explained that
Congress’s authority under the Commerce Clause embodies “the power to regulate activities that
substantially affect interstate commerce,” including “purely local activities that have a substantial
13
18 U.S.C. 1593(b)(4), 1594(d), (e). For a discussion of federal law in the area of forfeiture generally, see CRS Report
97-139, Crime and Forfeiture, by Charles Doyle. Violations of §1591 or of the Mann Act may serve as predicate
offenses for racketeering prosecution, 18 U.S.C. 1961(1), or for a money laundering prosecution, 18 U.S.C.
1956(c)(7)(1), 1957(f)(3); see generally CRS Report 96-950, RICO: A Brief Sketch, by Charles Doyle; CRS Report
RL33315, Money Laundering: An Overview of 18 U.S.C. 1956 and Related Federal Criminal Law, by Charles Doyle.
Federal courts may issue electronic surveillance orders in connection with the investigation of either §1591 or Mann
Act violations, 18 U.S.C. 2516(c); see generally CRS Report 98-326, Privacy: An Overview of Federal Statutes
Governing Wiretapping and Electronic Eavesdropping, by Gina Stevens and Charles Doyle.
14
18 U.S.C. 3014.
15
1 U.S.C. 1.
16
United States v. Singh, 518 F.3d 236, 249-52 (4th Cir. 2008)(holding corporate entity criminally liable for the Mann
Act violations of its employees); see generally CRS Report R43293, Corporate Criminal Liability: An Overview of
Federal Law, by Charles Doyle.
17
United States v. Dixon, 548 U.S. 1, 5 (2006); United States v. O’Malley, 739 F.3d 1001, 1006-1007 (7th Cir. 2014);
United States v. Tobin, 676 F.3d 1264, 1280 n.6 (11th Cir. 2013), citing inter alia, Bryant v. United States, 524 U.S.
186, 193 (1998)(“[T]he term ‘knowingly’ means that the act was performed voluntarily and intentionally, and not
because of a mistake or accident. This state of mind merely requires proof of knowledge of that the facts that constitute
the offense, not knowledge of the lawfulness of the action”).
18
United States v. Sawyer, 733 F.3d 228, 230 (7th Cir. 2013)(“‘[K]nowingly’ appears in the introductory portion of
section 1591(a) simply to supply the mens rea for both paragraphs (a)(1) and (a)(2). The requirements does not apply to
the interstate commerce element”); United States v. Anderson, 560 F.3d 275, 279 (5th Cir. 2009)(“It is not necessary for
the Government to show that the defendant actually intended or anticipated ... that commerce was actually affected”);
United States v. Evans, 476 f.3d 1176, 1180 n.2 (11th Cir. 2007)(“[W]e reject Evans’s request to construe §1591(a) as
requiring knowledge by a defendant that his actions are in or affecting interstate commerce”).
19
U.S. CONST. Amend. X (“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”); United States v. Lopez, 514 U.S. 549, 552 (1995).
20
U.S. CONST. Art. I, §8, cl.3; see also, U.S. CONST. Art. I, §8, cl. 18 (“The Congress shall have Power ... To make all
Laws which shall be necessary and proper for carrying into Execution the foregoing Powers ...”) .
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effect on interstate commerce.”21 Various appellate courts have explained that the “substantial
effect” test judges the impact of a category of regulated activity, for example, sex trafficking.22
Individual instances need have no more than a de minimis impact on interstate commerce.23 The
government has shown that the defendant’s commercial sex trafficking had such an effect on
interstate commerce when the defendant used the facilities of an interstate hotel chain, or when he
used advertising that reached across state lines, or when he used products that had traveled in
interstate commerce or the instrumentalities of interstate communications, for example, cell
phones.24
21
Gonzales v. Raich, 545 U.S. 1, 17 (2005).
United States v. Walls, 784 F.3d 543, 547-48 (9th Cir. 2015); United States v. Evans, 476 F.3d 1176, 1179 (11th Cir.
2007)(internal citations omitted)(“We have no difficulty concluding that Raich ... foreclose[s] Evans’s challenge to the
constitutionality of §1591(a) as applied to his activities occurring solely within Florida. Section 1591 was enacted as
part of the Trafficking Victims Protection Act of 2000 (TVPA).... [T]he TVPA is part of a comprehensive regulatory
scheme. The TVPA 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. Congress found that trafficking of
persons has an aggregate economic impact on interstate and foreign commerce and we cannot say that his finding
irrational”).
23
United States v. Walls, 784 F.3d at 548 (emphasis in the original)(“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 ‘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’)”).
24
United States v. Evans, 476 F.3d at 1179 (“Evans’s use of hotels that served interstate travelers and distribution of
condoms that traveled in interstate commerce are further evidence that Evans’s conduct substantially affected interstate
commerce. See also, United States v. Pipkins, 378 F.3d 1281, 1295 (11th Cir. 2004)(holding that evidence that pimps
furnished their prostitutes with condoms manufactured out of state ... supports a finding that the activities of the
enterprise affected interstate commerce”); United States v. Anderson, 560 F.3d 275, 280 (5th Cir 2009)(“[T]he
Government emphasized to the jury the evidence that it had presented—hotel bills, cell phone bills, and clothing
purchases—to prove an actual affect on interstate commerce.... We are persuaded that the charge as a whole and as
framed by the jury arguments correctly conveyed the law—the Government had to prove Anderson’s illegal activities
had some degree of affect on interstate commerce”); United States v. Todd, 627 F.3d 329, 333 (9th Cir.
2010)(“Congress concluded that prostitution ibn American cities encouraged and enlarged the market for this traffic
from abroad. Sex traffic is a global matter. In addition to effect on foreign commerce, sex traffic in this case was
conducted by advertising across state lines and so affected interstate commerce”); United States v. Willoughby, 742
F.3d 229, 240 (6th Cir. 2014)(internal citations omitted)(“The phrase ‘affecting commerce’ indicates Congress’ intent to
regulate to the outer limits of its authority under the Commerce Clause. Here, the government’s proofs included that
Willoughby purchased condoms and clothes specifically for SW to use while prostituting, and that all of these items
were manufactured out-of-state. The proofs also included that Willoughby used a Chinese-made cellphone in
furtherance of his sex-trafficking activities. Moreover, Congress has specifically found that, in the aggregate, sextrafficking activities ‘substantially affect’ interstate and foreign commerce. Thus, considering the record as a whole, the
government proved that Willoughby’s activities were ‘in or affecting’ interstate commerce. (We also note that
Congress’s authority to regulate interstate commerce includes the authority to regulate the instrumentalities thereof.
Willoughby’s cell phone is such an instrumentality and he used it in furtherance of his sex trafficking)”); United States
v. Campbell, 770 F.3d 556, 574 (7th Cir. 2014)(The defendant “advertised online, purchased supplies and promotional
materials from out-of-state companies, and employed workers from out-of-state”).
22
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Within the special maritime or territorial jurisdiction of the United States: The Constitution also
vests Congress with the power to “define and punish ... Felonies committed on the high Seas,”
and to exercise legislative jurisdiction retained or acquired over federal territories and enclaves.25
Congress has exercised this authority to claim federal criminal jurisdiction over sex trafficking
and other crimes when committed on American vessels, within national parks or national forests,
and other places “within the special maritime and territorial jurisdiction of the United States.”26
Recruits, ... obtains, advertises, maintains, patronizes, or solicits: Prior to enactment of the
Victims Justice Act in 2015, each of the verbs in §1591(a)(1)’s action element—recruits, entices,
harbors, transports, supplies, obtains, maintains—seemed to refer to activities on the supply side
of a prostitution operation. At least one federal appellate court held, however, that the verbs
applied to the demand side as well. That is, the section applied to the customers, the Johns, of a
prostitution operation.27 The Victims Justice Act confirmed the court’s understanding by adding
“patroniz[ing]” and “solicit[ing]” as alternatives in the section’s action element. At the same time,
it inserted “advertis[ing]” as another potential action element.
A person: Its sweeping terms notwithstanding, it appears unlikely that the courts will always read
§1591 literally. For example, on its face, the section appears to criminalize minors who engage in
“survival sex.”28 Runaway juveniles who use sex to secure food, shelter, or the other necessities
of life could be said to have “maintained ... a person,” themselves, knowing they have “not
attained the age of 18 years and will be caused to engage in a commercial sex act.” No prosecutor
is likely to bring, no jury is likely to convict, and no judge is likely to sustain, such a case.29
Knowing or in reckless disregard of the fact: This element of the offense requires proof that the
defendant knew, or recklessly disregarded, either (A) the fact that an (i) underage child (ii) would
be caused to engage in a commercial sex act or (B) the fact that an adult victim (i) had been
threatened, deceived, or coerced (ii) in order to cause the victim to engage in a commercial sex
act. Subsection 1591(c), however, mitigates the government’s burden with respect to knowledge
25
U.S. CONST. Art. I, §8, cls.10, 17; U.S. CONST. Art. IV, §3. c.2.
E.g., 18 U.S.C. 1111 (murder); 18 U.S.C. 81 (arson); 18 U.S.C. 2241 (aggravated sexual assault). The term “special
maritime and territorial jurisdiction” is defined in 18 U.S.C. 7.
27
United States v. Jungers, 702 F.3d 1066, 1075 (8th Cir. 2013)(emphasize added)(“The unambiguous text of §1591
makes no distinction between suppliers and purchasers of commercial sex act with children, and the defendants have
failed to persuade us Congress intended a supplier-only limitation or a purchaser exception in §1591 that Congress
never stated. We hold §1591 applies to a purchaser of commercial sex acts who violates the statute’s terms.... The
uncontested evidence adduced at Jungers’s trial ... showed Jungers attempted to obtain an eleven-year old girl for an
hour so she could perform oral sex on him”).
28
“‘Survival sex’ refers to the exchange of sex for food, money, shelter, drugs, and other needs and wants by homeless
youth,” K. Elysse Stolpe, MS-13 and Domestic Juvenile Sex Trafficking: Causes, Correlates, and Solutions, 21
VIRGINIA JOURNAL OF SOCIAL POLICY AND THE LAW 341, 350 n.60 (2014); Cynthia Godsoe, Contempt, Status, and the
Criminalization of Non-Conforming Girls, 35 CARDOZO LAW REVIEW 1091, 1113 (2014)(“Similarly, a recent New
York State study reported that 61% of runaway girls had engaged in survival sex”).
29
This does not mean that uncooperative juvenile victims would not be threatened with, or would not claimed to have
been threatened with, such a prosecution, consider e.g., United States v. Tavares, 705 F.3d 4, 21 (1st Cir.2013)(“K.S.
was a Government witness. She testified that she met Mr. Jones when she was sixteen and began working for him as a
prostitute.... K.S. admitted that she did not want to testify.... [S]he agreed with defense counsel that she had been
arrested for failing to appear as required by a [grand jury] subpoena and with losing custody of her daughter if she did
not do what they wanted her to do. She also agreed she was just going to tell the prosecution what they wanted to hear
so she could move on with her life. On direct, K.S. stated that she had been threatened by the FBI and federal
prosecutors when she had been required to appear before the grand jury four years earlier and admitted that she had not
told the district court that she had been threatened”).
26
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of the age of a child victim: “In a prosecution under subsection (a)(1) in which the defendant had
a reasonable opportunity to observe the person so recruited, enticed, harbored, transported,
provided, obtained or maintained, the Government need not prove that the defendant knew that
the person had not attained the age of 18 years.”30
Otherwise, the prosecution must prove that the defendant knew, or recklessly disregarded, the fact
that the victim would be caused to engage in a commercial sex act, and in the case of an adult
victim, that “force, threats of force, fraud, or coercion” had been used to cause the victim to
engage in such an act. As a practical matter, the distinction between knowledge and reckless
disregard of the facts may be more technical than real. One speaks of efforts to avoid discovery of
a fact and the other to indifference as to the existence of a fact. In most instances, evidence of one
will implicate the other.
More specifically, in a criminal context, a defendant who claims a lack of guilty knowledge may
be convicted when the evidence presented to the jury supports an inference that his ignorance was
deliberate, a matter of conscious avoidance or willful blindness.31 In a civil context, “[r]eckless
disregard ... is an extreme version of ordinary negligence;”32 it encompasses those instances of
gross negligence where the defendant fails to seek out the facts that would be reasonable and
prudent under the circumstances.33 Similarly, in a criminal context, “[t]o act with ‘regardless
disregard’ means to be aware of, but consciously and carelessly ignore, [clearly guilty] facts and
circumstances.”34
30
18 U.S.C. 1591(c); United States v. Robinson, 702 F.3d 22, 32 (2d Cir. 2012)(“Accordingly, just as the District Court
instructed, §1591(a) and §1591(c) provide the government with three distinct options—prove beyond a reasonable
doubt that (1) the defendant had knowledge of the victim’s underage status; (2) that the defendant recklessly
disregarded that fact; or (3) that the defendant had an reasonable opportunity to observe the victim”); United States v.
Mozie, 752 F.3d 1271, 1282 (11th Cir. 2014)(“The government must prove beyond a reasonable doubt all elements of
the §1591 crime, including the mens rea. If the government proves by that standard that the defendant had a reasonable
opportunity to observe the victim, it need prove only that he recklessly disregarded the fact that she was under the age
of eighteen, not that the defendant knew she was”).
31
United States v. Zayyad, 741 F.3d 452, 463 (4th Cir. 2014); United States v. St. Junius, 739 F.3d 193, 205 (5th Cir.
2013)(“The deliberate ignorance instruction should be given when a defendant claims a lack of guilty knowledge and
the proof at trial supports a reasonable inference of deliberate ignorance. Submission of a deliberate ignorance
instruction is proper where the evidence shows (1) subjective awareness of a high probability of the existence of illegal
conduct, and (2) purposeful contrivance to avoid learning of the illegal conduct”); United States v. Goffer, 721 F.3d
113, 126-27 (2d Cir. 2013)(“A conscious avoidance [jury] instruction may be given if (1) the defendant asserts the lack
of some specific aspect of knowledge required for conviction and (2) the appropriate factual predicate for the charge
exists, i.e., the evidence is such that a rational juror may reach the conclusion beyond a reasonable doubt that the
defendant was aware of a high probability of the fact in dispute and consciously avoided confirming that fact”); United
States v. Yi, 704 F.3d 800, 804 (9th Cir. 2013)(“Willful blindness is inconsistent with actual knowledge, and thus a
deliberate ignorance instruction is appropriate only where the jury could rationally find willful blindness even though it
has rejected the government’s evidence of actual knowledge. Deliberate ignorance contains two prongs: (1) a subjective
belief that there is a high probability a fact exists; and (2) deliberate actions take to avoid learning the truth”).
32
United States ex rel. K & R Limited Partnership v. Massachusetts Housing Finance Agency, 530 F.3d 980, 983
(D.C.Cir. 2008); see also, RESTATEMENT (SECOND) OF THE LAW OF TORTS §500 (1965).
33
United States v. King-Vassel, 728 F.3d 707, 712-13 (7th Cir. 2013)(some internal citations omitted)(“Congress added
‘reckless disregard’ to the FCA [False Claims Act] in 1986. The Senate Report that accompanied that change evinced
an intent to hold liable ‘[o]nly those who act in gross negligence,’ that is, those who failed ‘to make such inquiry as
would be reasonably prudent to conduct under the circumstances.’ S. Rep. No. 99-345, at 20”).
34
United States v. Kendrick, 682 F.3d 974, 984 (11th Cir. 2012); see also, United States v. Gifford, 727 F.3d 92, 98 (1st
Cir. 2014)(“An allegation [in the application for a search warrant] is made with ‘reckless disregard for the truth’ ...
where circumstances evinced obvious reasons to doubt the veracity of the allegations in the application”).
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Means of force ... coercion: Section 1591 expands the reach that the words “force, threats of
force, fraud, or coercion” might ordinarily convey, with a definition of “coercion” that envelops
threats of physical harm, abuse of legal process, as well as “psychological, financial, or
reputational harm.”35
Will be caused: The courts have concluded that the “will be caused” element of the offense
indicates that the Congress intended the section to apply regardless of whether any commercial
sex act ever occurs36 and regardless of whether the victim previously engaged in commercial sex
acts unrelated to the defendant’s involvement.37
Commercial sex act: Section 1591(e)(3) defines the “commercial” component of the commercial
sex act element as “any sex act on account of which anything of value is given to or received by
any person.” The terms “thing of value” or “anything of value” appear with some regularity in
federal criminal law,38 and are often understood to include both tangible and intangible
remuneration.39
Section 1591, however, supplies no corresponding definition of “sex act.” The phrase is not a
term of art. The provisions that outlaw other sex offenses in the special maritime and territorial
jurisdiction of the United States define the term “sexual act”40 and the less severely punished
35
18 U.S.C. 1591(2)(A), (B), (4)(emphasis added)(“(2) The term ‘coercion’ means—(A) threats of serious harm to or
physical restraint against any person; [or] (B) any scheme, plan, or pattern intended to cause a person to believe that
failure to perform an act would result in serious harm to or physical restraint against any person ... (4) The term
‘serious harm’ means any harm, whether physical or nonphysical, including psychological, financial, or reputational
harm, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same
background and in the same circumstances to perform or to continue performing commercial sexual activity in order to
avoid incurring that harm or to continue performing commercial sexual activity in order to avoid incurring that harm”);
18 U.S.C. 1591(2)(C), (1)(“(2) The term ‘coercion’ means ... (C) the abuse or threatened abuse of law or the legal
process.... (1) The term ‘abuse or threatened abuse of law or legal process’ means the use or threatened use of a law or
legal process, whether administrative, civil, or criminal, in any manner or for any purpose for which the law was not
designed, in order to exert pressure on another person to cause that person to take some action or refrain from taking
some action”).
36
United States v. Hornbuckle, 784 F.3d 549, 553-54 (9th Cir. 2015), citing in accord, United States v. Willoughby, 742
F.3d 229, 241 (6th Cir. 2014); United States v. Jungers, 702 F.3d 1066, 1073-74 (8th Cir. 2013); see also, United States
v. Garcia-Gonzalez, 714 F.3d 306, 312 & n.3 (5th Cir. 2013).
37
United States v. Elbert, 561 F.3d 771, 777 (8th Cir. 2009).
38
E.g., 18 U.S.C. 201(b)(1)(bribery of federal officials and witnesses); 18 U.S.C. 641 (theft of federal property); 18
U.S.C. 666(a)(1)(B)(bribery in relation to federally funded programs).
39
E.g., United States v. Townsend, 630 F.3d 1003, 1010 (11th Cir. 2011)(“The four other courts of appeals that have
addressed this issue have all held that intangibles can be things of value for this purpose [i.e., 18 U.S.C. 666(a)(1)(B)].
See United States v. Hines, 541 F.3d 833, 836-37 (8th Cir. 2008)(deputy sheriff’s prompt assistance in offering his
services for evictions was a thing of value); United States v. Zimmermann, 509 F.3d 920, 926-27 (8th Cir. 2007)(city
councilman’s favorable recommendation to zoning committee was a thing of value); United States v. Fernandez, 272
F.3d 938, 944 (7th Cir. 2010)(prosecutor’s expungement of convictions constituted a thing of value; United States v.
Zwich, 199 F.3d 672, 690 (3d Cir. 1999)(township commissioner’s vote to approve permits was a thing of value); ...
United States v. Marmolejo, 89 F.3d 1185, 1191-93 (5th Cir. 1996)(holding that the plain meaning of 18 U.S.C.
666(a)(1)(B) includes transactions involving intangibles within the term ‘anything of value’ and collecting cases
construing ‘anything of value’ in other criminal statutes to include intangibles”).
40
18 U.S.C. 2246(2)(“the term ‘sexual act’ means- (A) contact between the penis and the vulva or the penis and the
anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; (B)
contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; (C) the penetration,
however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or (D) the intentional touching, not
through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse,
(continued...)
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“sexual contact.”41 Given the breadth of §1591 in other areas, it may be that Congress anticipated
the section would apply to both commercial sexual acts and commercial sexual contact as
understood in those provisions.
Section 1591(a)(2): Profiteering
Section 1591(a)(2) outlaws profiting from sex trafficking using many of the same elements as the
underlying offense:
(1) Whoever
(2) knowingly
(3) benefits
(4) (a) financially or
(b) by receiving anything of value,
(5) from participation in a venture
(6) which has engaged in an act described in paragraph [1591(a)](1)
(7) (a) knowing, or
(b) any case other than one triggered by advertising, in reckless disregard of the fact,
(8) (a) that
(A) (i) means of force,
(ii) threats of force,
(iii) fraud,
(iv) coercion ... , or
(v) any combination of such means
(B) will be used to cause the person to
(C) engage in a commercial sex act, or
(b) that (A) the person has not attained the age of 18 years and
(B) will be caused to engage in a commercial sex act,
(9) shall be punished as provided in subsection (b).
Section 1591(a)(2) covers the customers of a sex trafficking enterprise who, at least one court has
concluded, receive a “thing of value” by virtue of their patronage.42
The penalties for profiting from a sex trafficking venture are the same as those for the underlying
offense: imprisonment for any term of years not less than 15 years or for life (not less than 10
years’ imprisonment, if the victim is 14 years of age or older and the offender is less than 18 years
of age, provided neither force nor deception were used).43 In addition, conviction carries a term of
(...continued)
humiliate, harass, degrade, or arouse or gratify the sexual desire of any person”).
41
18 U.S.C. 2246(3)(“the term ‘sexual contact’ means the intentional touching, either directly or through the clothing,
of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person”). While sexual abuse and aggravated sexual abuse are
punishable by imprisonment for any term of years or for life, 18 U.S.C. 2242, 2241(a), aggravated sexual contact is
punishable by imprisonment for not more than 10 years, 18 U.S.C. 2244.
42
United States v. Cook, 782 F.3d 983, 987-89 (8th Cir. 2015).
43
18 U.S.C. 1591(b)(“The punishment for an offense under subsection (a) is- (1) if the offense was effected by means
of force, threats of force, fraud, or coercion described in subsection (e)(2), or by any combination of such means, or if
the person recruited, enticed, harbored, transported, provided, or obtained had not attained the age of 14 years at the
time of such offense, by a fine under this title and imprisonment for any term of years not less than 15 or for life; or (2)
(continued...)
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supervised release of not less than five years.44 Offenders also face a fine of not more than
$250,000 (not more than $500,000 when the offender is an organization);45 and unless indigent, to
a special assessment of $5,000.46
Obstruction
Section 1591(d) condemns obstruction and attempted obstruction of the investigation of a §1591
violation and makes the offense punishable by imprisonment for not more than 20 years, and fine
of not more than $250,000 (not more than $500,000 for organizations).47 Even absent a
prosecution under §1591(d), obstruction may lead to a sentencing enhancement if the offender is
convicted of trafficking.48 It may also be prosecuted as a violation of the general obstruction of
justice statutes.49
(...continued)
if the offense was not so effected, and the person recruited, enticed, harbored, transported, provided, or obtained had
attained the age of 14 years but had not attained the age of 18 years at the time of such offense, by a fine under this title
and imprisonment for not less than 10 years or for life”).
44
18 U.S.C. 3583(k).
45
Id. and 18 U.S.C. 3571, 3581.
46
18 U.S.C. 3014.
47
18 U.S.C. 1591(d)(“Whoever obstructs, attempts to obstruct, or in any way interferes with or prevents the
enforcement of this section, shall be fined under this title, imprisoned for a term not to exceed 20 years, or both”); see
also 18 U.S.C. 3571, 3581; United States v. Farah, 766 F.3d 599, (6th Cir. 2014)(affirming a recalcitrant witness’s
attempting to obstruct conviction based on the witness’s refusal to testify).
48
U.S.S.G. §3C1.1(“If (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of
conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant
conduct; or (B) a closely related offense, increase the offense level by 2 levels”); e.g., United States v. Anderson, 560
F.3d 275, 283 (5th Cir. 2009).
49
E.g., 18 U.S.C. 1512: “(a)(1) Whoever kills or attempts to kill another person, with intent to ... (C) prevent the
communication by any person to a law enforcement officer or judge of the United States of information relating to the
commission or possible commission of a Federal offense ... ; shall be punished as provided in paragraph (3). (2)
Whoever uses physical force or the threat of physical force against any person, or attempts to do so, with intent to ...
(C) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of
information relating to the commission or possible commission of a Federal offense ... ; shall be punished as provided
in paragraph (3). (3) The punishment for an offense under this subsection is ... (A) in the case of a killing, the
punishment provided in sections 1111 and 1112; (B) in the case of- (i) an attempt to murder; or (ii) the use or attempted
use of physical force against any person; imprisonment for not more than 30 years; and (C) in the case of the threat of
use of physical force against any person, imprisonment for not more than 20 years.
“(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or
engages in misleading conduct toward another person, with intent to- (1) influence, delay, or prevent the testimony of
any person in an official proceeding; (2) cause or induce any person to- (A) withhold testimony, or withhold a record,
document, or other object, from an official proceeding; (B) alter, destroy, mutilate, or conceal an object with intent to
impair the object’s integrity or availability for use in an official proceeding; (C) evade legal process summoning that
person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or (D) be
absent from an official proceeding to which such person has been summoned by legal process; or (3) hinder, delay, or
prevent the communication to a law enforcement officer or judge of the United States of information relating to the
commission or possible commission of a Federal offense ... shall be fined under this title or imprisoned not more than
20 years, or both.
“(c) Whoever corruptly- (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts
to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise
obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or
imprisoned not more than 20 years, or both.”
18 U.S.C. 1513 imposes similar penalties for retaliatory witness tampering. 18 U.S.C. 1503 outlaws obstructing the due
(continued...)
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Attempt and Conspiracy
Section 1594 declares that “[w]hoever attempts to violate section ... 1591 shall be punished in the
same manner as a completed violation of the section, [and] [w]hoever conspires with another to
violate §1591 shall be fined under title, imprisoned for any term years or for life, or both.”50 The
general conspiracy statute also outlaws conspiracy to violate §1591.51
Attempt
The crime of attempting to commit another federal offense consists of intent to commit the
underlying offense and a substantial step towards the accomplishment of that objective.52 The
requisite substantial step must be some act which strongly corroborates the defendant’s intent to
commit the intended offense.53 It is no defense that it was factually impossible for the defendant
to commit the underlying offense, as for example, a defendant who believes he is enticing a 14year-old to engage in sexual activity when in fact he is communicating by phone or email with an
adult undercover officer.54
Conspiracy
In essence, “[c]onspiracy is an agreement to commit an unlawful act.”55 When prosecuted under
the general conspiracy statute, the government must show that one of the conspirators committed
an overt act in furtherance of the conspiracy.56 The government ordinarily bears no such burden
when prosecuting under statutes, like §1594, which have no explicit overt act element.57
(...continued)
administration of justice with respect to federal judicial proceedings, and 18 U.S.C. 1505 provides coverage for
obstructing the due administration of agency proceedings.
50
18 U.S.C. 1594(a), (c).
51
18 U.S.C. 371.
52
United States v. Brinson, 772 F.3d 1314, 1326 (10th Cir. 2014)(“For this offense, a person must ‘attempt’ to commit
the crime of sex trafficking.... Thus, the prosecution had to prove that Mr. Brinson intended to commit the substantive
offense, and took a ‘substantial step’ toward the commission of that offense”); see generally, United States v.
Aldawsari, 740 F.3d 1015, 1019-20 (5th Cir. 2014); United States v. Muratovic, 719 F.3d 809, 815 (7th Cir. 2013);
United States v. Villarreal, 707 F.3d 942, 960 (8th Cir. 2013); United States v. Desposito, 704 F.3d 221, 230 (2d Cir.
2013).
53
United States v. Aldawsari, 740 F.3d at 1019-20; United States v. Villarreal, 707 F.3d at 960; United States v.
Desposito, 704 F.3d at 231. For a general discussion of federal law in the area, see CRS Report R42001, Attempt: An
Overview of Federal Criminal Law, by Charles Doyle.
54
United States v. Bauer, 626 F.3d 1004, 1007 (8th Cir. 2010); see also, United States v. Williams, 553 U.S. 285, 300
(2008); United States v. Mehanna, 735 F.3d 32, 53 (1st Cir. 2013); United States v. Engle, 676 F.3d 405, 420 (4th Cir.
2012).
55
United States v. Jimenez Recio, 537 U.S. 270, 274 (2003). United States v. Mozie, 752 F.3d 1271, 1287 (11th Cir.
2014)(“To convict Mozie on the conspiracy charge, ... the government had to prove that (1) two or more persons agreed
to violation §1591, (2) Mozie knew of that conspiratorial goal, and (3) he voluntarily assisted in accomplishing that
goal”). For a general discussion of federal conspiracy law, see CRS Report R41223, Federal Conspiracy Law: A Brief
Overview, by Charles Doyle.
56
18 U.S.C. 371(emphasis added) (“If two or more persons conspire either to commit any offense against the United
States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of
such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not
more than five years, or both ...”).
57
Whitfield v. United States, 543 U.S. 209, 214 (2004); Salinas v. United States, 522 U.S. 52, 64 (1997); United States
(continued...)
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Moreover, the general conspiracy statute carries a maximum five-year term of imprisonment
rather than the “any term of years or for life” alternative that §1594 favors.58 Conspirators are
liable for any criminal offenses committed in the foreseeable furtherance of the plot.59
Aiding and Abetting
Aiding and abetting is somewhat akin to conspiracy. A person who “aids, abets, counsels,
commands, induces or procures” a crime committed by someone else is treated as if he committed
the crime himself.60 “To aid and abet another to commit a crime it is necessary that a defendant in
some sort associate himself with the venture that he participate in it as in something that he
wishes to bring about, and that he seek by his action to make it succeed.”61 Deciding whether
someone has in some way associated himself with a criminal venture is easier said than done.62 In
some instances, the courts have used a modest standard: “All that is necessary is to show some
affirmative participation which at least encourages the principal offender to commit the
offense.”63 Occasionally, they assert a more exacting standard: “[T]he elements necessary for an
aiding and abetting conviction are: (1) that the accused had the specific intent to facilitate the
commission of a crime by another, (2) that the accused had the requisite intent of the underlying
substantive offense, (3) that the accused assisted or participated in the commission of the
underlying substantive offense, and (4) that someone committed the underlying substantive
offense.”64
Courts agree, however, that unlike conspiracy, there can be no liability as an aider and abettor
until after someone else has the commit the underlying crime.65
(...continued)
v. Shabani, 513 U.S. 10, 13-4 (1994).
58
See 18 U.S.C. 371(quoted above).
59
Pinkerton v. United States, 328 U.S. 640, 646-47 (1946); United States v. Blackman, 746 F.3d 137, 141 (4th Cir.
2014); United States v. Grasso, 724 F.3d 1077, 1089 (9th Cir. 2013).
60
18 U.S.C. 2(a)(“ (a) Whoever commits an offense against the United States or aids, abets, counsels, commands,
induces or procures its commission, is punishable as a principal”).
61
United States v. Rufal, 732 F.3d 1174, 1190 (10th Cir. 2013), quoting, Nye & Nissen v. United States, 336 U.S. 613,
619 (1949).
62
To paraphrase United States v. Brown, 726 F.3d 993, 998 (7th Cir. 2013).
63
United States v. Ali, 718 F.3d 929, 936 (D.C. Cir. 2013); see also, United States v. Rufal, 732 F.3d 1175, 1190 (10th
Cir. 2013)(“[T]he Government must prove that the defendant (1) willfully associated with the charged criminal venture
and (2) aided the venture through affirmative action”); United States v. Lyons, 740 F.3d 702, 715 (1st Cir. 2014)(“An
aider and abettor is punishable as a principal if, first, someone else actually committed the offense, and second, the
aider and abettor became associated with the endeavor and took part in it, intending to ensure its success”); United
States v. Pringler, 765 F.3d 445, 449 (5th Cir. 2014)(“To hold a defendant liable for aiding and abetting an offense, the
government must show that elements of the substantive offense occurred and that the defendant associated with the
criminal activity, participated in it, and act ed to help it succeed”).
64
United States v. Shorty, 741 F.3d 961, 970 (9th Cir. 2013).
65
Id.; United States v. Lyons, 740 F.3d 702, 715 (1st Cir. 2014); United States v. Rufal, 732 F.3d 1197, 1190 (10th Cir.
2013); United States v. Capers, 708 F.3d 1286, 1306 (11th Cir. 2013); United States v. Litwok, 678 F.3d 208, 213 (2d
Cir. 2012).
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Extraterritorial Application
Federal law is presumed to apply only within this country.66 Congress may expressly negate the
presumption and has done so for §1591 and the other human trafficking offenses when the
offender is a U.S. national or permanent resident alien or when the offender is present in the
United States.67 When Congress uses the phrase “found in the United States” in an extraterritorial
provision, the courts understand the term to include both those whom authorities have brought to
this country for prosecution and those who are here voluntarily.68 There is some indication that
the terms are considered interchangeable.69
Forfeiture
Property derived from, involved in, traceable to, or used to facilitate, a violation of §1591 is
subject to confiscation under one of two forfeiture procedures.70 Federal law recognizes two kinds
of forfeiture, classified according the nature of the procedures to which confiscation is
accomplished.71 Civil forfeiture ordinarily employs a procedure under which the offending
property is treated as the defendant.72 If the government establishes the statutorily required nexus
between the property and triggering offense, the court will order the property forfeited to the
United States.73 The property owner need not have been convicted.74 In fact, the owner’s
66
Morrison v. National Australia Bank Ltd., 561 U.S. 247, 257 (2010)(“It is a longstanding principle of American law
that legislation of Congress, unless a contrary intent appears, is meant to apply only with the territorial jurisdiction of
the United States”), citing inter alia, EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991).
67
18 U.S.C. 1596(“(a) In General.-In addition to any domestic or extra-territorial jurisdiction otherwise provided by
law, the courts of the United States have extra-territorial jurisdiction over any offense (or any attempt or conspiracy to
commit an offense) under section 1581, 1583, 1584, 1589, 1590, or 1591 if- (1) an alleged offender is a national of the
United States or an alien lawfully admitted for permanent residence (as those terms are defined in section 101 of the
Immigration and Nationality Act ( 8 U.S.C. 1101)); or (2) an alleged offender is present in the United States,
irrespective of the nationality of the alleged offender. (b) Limitation on Prosecutions of Offenses Prosecuted in Other
Countries.-No prosecution may be commenced against a person under this section if a foreign government, in
accordance with jurisdiction recognized by the United States, has prosecuted or is prosecuting such person for the
conduct constituting such offense, except upon the approval of the Attorney General or the Deputy Attorney General
(or a person acting in either such capacity), which function of approval may not be delegated”).
68
United States v. Shi, 525 F.3d 709, 724-25 (9th Cir. 2008); United States v. Yousef, 327 F.3d 56, 88-89 (2d Cir. 2003);
United States v. Rezaq, 134 F.3d 1121, 1132 (D.C. Cir. 1998).
69
E.g., United States v. Yousef, 927 F.Supp. 673, 680-81, aff’d, 327 F.3d 56 (2d Cir. 2003)(emphasis added)(“Yousef
argues that he was not properly ‘found’ within the United States as that term is used in section 32(b). Yousef argues that
the sole reason he was present in the United States was because the government brought him to the United States to
stand trial for the other charges in the indictment related to the bombing of the World Trade Center. Yousef argues that
the government knowingly delayed indicting him on the airliner bombing plot until he was brought to the United
States, in order to establish his presence in the United States for purposes of this count of the indictment. Therefore,
according to Yousef, he was not present within the United States voluntarily, and jurisdiction cannot be asserted over
him pursuant to Section 32(b).... The circumstances by which Yousef was ‘found’ within the United States satisfy the
statutory jurisdictional requirements”).
70
18 U.S.C. 1593(b)(4); 18 U.S.C. 1594(d), (e).
71
See generally CRS Report 97-139, Crime and Forfeiture, by Charles Doyle.
72
United States v. Ursery, 518 U.S. 267, 275 (1996), quoting, Various Items of Personal Property v. United States,
2782 U.S. 577, 584 (1931)(“This ‘forfeiture proceeding ... is in rem. It is the property which is proceeded against, and
by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient);
see also, United States v. Funds in the Amount of $574,850, 719 F.3d 648, 652 (7th Cir. 2013); United States v.
$8,440190 in U.S. Currency, 719 F.3d 49, 57 (1st Cir. 2013).
73
18 U.S.C. 983(c).
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innocence may be irrelevant.75 In the case of sex trafficking, any property derived from or used to
facilitate a trafficking offense is subject to civil forfeiture.76
Criminal forfeiture is forfeiture that occurs as a consequence of the property owner’s conviction
and the role of the property in the offense.77 Here too, property derived from or used to facilitate a
sex trafficking offense is subject to confiscation.78
Restitution
Federal courts enjoy the authority to order convicted defendants to pay restitution to the victims
of their crimes under a number of statutes. There are general statutes and those that supplement
them. Sections 3663A and 3664 establish the general boundaries for mandatory restitution and its
implementing procedures.79 The courts acquire additional restitution authority when they approve
a plea bargain or set conditions for supervised release.80 The sex trafficking mandatory restitution
section, 18 U.S.C. 1593, supplements these generally applicable statutes.81
Section 1593 applies to the victims of §1591 offenses, both children and adults, as well as to the
victims of other trafficking offenses.82 Victims are entitled to restitution to the extent of the “full
amount” of their losses.83 Section 1593 mentions two categories of losses included within the
term “full amount.” First, it includes the greater of the income from their services as prostitutes or
of minimum wage and overtime compensation due under federal labor laws.84 Second, it includes
the costs mentioned in child pornography restitution section,85 that is:
(...continued)
74
Bennis v. Michigan, 516 U.S. 442, 453 (1996); United States v. Liquidators of European Federal Credit Bank, 630
F.3d 1139, 1150 (9th Cir. 2011).
75
Federal law generally recognizes an innocent owner defense in civil forfeiture cases, but only if the owner was
unaware of the criminal use of the property or did everything he could to prevent its illegal use, 18 U.S.C. 983(d).
76
18 U.S.C. 1594(e)(1)(“The following shall be subject to forfeiture to the United States and no property right shall
exist in them: (A) Any property, real or personal, involved in, used, or intended to be used to commit or to facilitate the
commission of any violation of this chapter, and any property traceable to such property; and (B) Any property, real or
personal, which constitutes or is derived from proceeds traceable to any violation of this chapter”).
77
E.g., 18 U.S.C. 982.
78
18 U.S.C. 1594(d)(“The court, in imposing sentence on any person convicted of a violation of this chapter, shall
order, in addition to any other sentence imposed and irrespective of any provision of State law, that such person shall
forfeit to the United States—(1) such person’s interest in any property, real or personal, that was involved in, used, or
intended to be used to commit or to facilitate the commission of such violation, and any property traceable to such
property; and (2) any property, real or personal, constituting or derived from, any proceeds that such person obtained,
directly or indirectly, as a result of such violation, or any property traceable to such property”).
79
18 U.S.C. 3663A; 18 U.S.C. 3664.
80
18 U.S.C. 3663A(a)(3); 18 U.S.C. 3583(d).
81
18 U.S.C. 1593(a), (b)(2)(“(a) Notwithstanding section 3663 or 3663A, and in addition to any other civil or criminal
penalties authorized by law, the court shall order restitution for any offense under this chapter. (b) ... (2) An order of
restitution under this section shall be issued and enforced in accordance with section 3664 in the same manner as an
order under section 3663A”).
82
18 U.S.C. 1593(a).
83
18 U.S.C. 1593(b)(1)(“The order of restitution under this section shall direct the defendant to pay the victim (through
the appropriate court mechanism) the full amount of the victim’s losses, as determined by the court under paragraph (3)
of this subsection”).
84
18 U.S.C. 1593(b)(3)(“As used in this subsection, the term ‘full amount of the victim’s losses’ ... shall ... include the
(continued...)
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any costs incurred by the victim for—
(A) medical services relating to physical, psychiatric, or psychological care;
(B) physical and occupational therapy or rehabilitation;
(C) necessary transportation, temporary housing, and child care expenses;
(D) lost income;
(E) attorneys’ fees, as well as other costs incurred; and
(F) any other losses suffered by the victim as a proximate result of the offense.86
The Supreme Court recently held that individuals guilty of possession of child pornography may
be ordered to pay restitution, under §2259, for their relative contribution to the harm caused the
child.87 In light of §1593’s adoption of the §2259’s restitution formula, it may be that courts will
apply the same logic to the customers of the sex trafficking victims.
Finally, in the case of most other offenses, the Attorney General may use forfeited proceeds for
victim restitution.88 In the case of §1591 and other trafficking offenses, he is obligated to do so.89
Civil Cause of Action
Victims of sex trafficking may bring a civil suit to recover damages and reasonable attorneys’
fees.90 Successful plaintiffs may also be able to recover punitive damages under some
circumstances.91 The cause of action comes with a 10-year statute of limitations.92 Civil liability
under §1595, however, does not extend to those guilty of aiding or abetting a sex trafficking
(...continued)
greater of the gross income or value to the defendant of the victim’s services or labor or the value of the victim’s labor
as guaranteed under the minimum wage and overtime guarantees of the Fair Labor Standards
Act (29 U.S.C. 201 et seq.)”).
85
18 U.S.C. 1593(b)(3) As used in this subsection, the term “full amount of the victim’s losses” has the same meaning
as provided in section 2259(b)(3) ...”).
86
18 U.S.C. 2259(b)(3).
87
Paroline v. United States, 134 S.Ct. 1710, 1727 (2014)(“The required restitution would be a reasonable and
circumscribed award imposed in recognition of the indisputable role of the offender in the causal process underlying
the victim’s losses and suited to the relative size of that causal role”).
88
18 U.S.C. 981(e)(6), 982(b)(1).
89
18 U.S.C. 1594(f)(captions omitted)(“(1) Notwithstanding any other provision of law, the Attorney General shall
transfer assets forfeited pursuant to this section, or the proceeds derived from the sale thereof, to satisfy victim
restitution orders arising from violations of this chapter. (2) Transfers pursuant to paragraph (1) shall have priority over
any other claims to the assets or their proceeds. (3) Transfers pursuant to paragraph (1) shall not reduce or otherwise
mitigate the obligation of a person convicted of a violation of this chapter to satisfy the full amount of a restitution
order through the use of non-forfeited assets or to reimburse the Attorney General for the value of assets or proceeds
transferred under this subsection through the use of nonforfeited assets”).
90
18 U.S.C. 1595(a)(“An individual who is a victim of a violation of this chapter may bring a civil action against the
perpetrator (or whoever knowingly benefits, financially or by receiving anything of value from participation in a
venture which that person knew or should have known has engaged in an act in violation of this chapter) in an
appropriate district court of the United States and may recover damages and reasonable attorneys fees”).
91
Ditullio v. Boehm, 662 F.3d 1091, 1098 (9th Cir. 2011)(“Punitive damages are generally appropriate under the TVPA
civil remedy provision because it creates a cause of action for tortious conduct that is ordinarily intentional and
outrageous”).
92
18 U.S.C. 1595(c)(“ No action may be maintained under this section unless it is commenced not later than 10 years
after the cause of action arose”).
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offense.93 Moreover, §230 of the Communications Decency Act affords interactive computer
service providers with immunity from civil suit for material created by third parties.94 This
apparently extends to immunity from suit under §1591.95
Finally, §1595 calls for a stay of any civil action pending a corresponding criminal investigation
and prosecution.96
Mann Act
Section 1591 and the various sections of the Mann Act overlap. Where §1595 outlaws
commercial sexual enterprises operated in or affecting interstate or foreign commerce that use
underage or coerced victims, the Mann Act outlaws prostitution and unlawful sexual activities
that involve interstate or foreign travel. The Mann Act consists of three principal substantive
sections.97 Section 2421 proscribes interstate or foreign transporting someone for purposes of
prostitution or unlawful sexual activity. Section 2422 condemns coercing or enticing another
person to travel in interstate or foreign commerce for purposes of prostitution or unlawful sexual
activity, using a means of interstate communication to coerce or entice a child to engage in such
conduct. Section 2423 criminalizes interstate or foreign travel associated with prostitution, “illicit
sexual activity,” or unlawful sexual purposes. Under some circumstances, an accused may be
prosecuted for violation of both §1591 and one or more of the Mann Act offenses.98
93
Jean-Charles v. Perlitz, 937 F.Supp.2d 276, 287 (D.Conn. 2013)(“Plaintiffs claim that Father Carrier and Ms. Carter
can be held liable under §1595 because they aided and abetted Perlitz in violating §1591. Plaintiffs urge that §1595
incorporates secondary liability under 18 U.S.C. §§2 and 3. However, the text of the statute does not support such a
reading and thus the argument fails under Central Bank [of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511
U.S. 164 (1994)]”); see also, Boim v. Holy Land Foundation for Relief & Development, 549 F.3d 685 F.3d 685, 689 (7th
Cir. 2008)(“Statutory silence on the subject of secondary liability means there is none”).
94
47 U.S.C. 230(c)(“(1)No provider or user of an interactive computer service shall be treated as the publisher or
speaker of any information provided by another information content provider. (2) No provider or user of an interactive
computer service shall be held liable on account of ... (B) any action taken to enable or make available to information
content providers or others the technical means to restrict access to material described in paragraph (1)”).
95
M.A. v. Village Voice Media Holdings, LLC, 809 F.Supp.2d 1041, 1055-56 (E.D.Mo. 2011)(“M.A. next argues that
she has a cause of action under §1595 against Backpage.... Assuming, without deciding, that M.A.’s characterization of
the statute is correct, ... Backpage remains immune under §230 for her claims”).
96
18 U.S.C. 1595(b)(“(1) Any civil action filed under this section shall be stayed during the pendency of any criminal
action arising out of the same occurrence in which the claimant is the victim. (2) In this subsection, a ‘criminal action’
includes investigation and prosecution and is pending until final adjudication in the trial court”).
The Eleventh Circuit has declined to immediately review a district court’s lifting of a §1595(b) stay at the behest of a
defendant who argued that failure to continue the stay exposed him to unfair inferences if he assert his Fifth
Amendment privilege in the civil proceedings while criminal proceedings were pending, Plaintiff A v. Schair, 744 F.3d
1247, 1254-255 (11th Cir. 2014).
97
Other Mann Act prohibitions address false statements in connection with the immigration of foreign prostitutes, 18
U.S.C. 2424, and the use of the facilities of interstate commerce to disclose information concerning a child for illicit
sexual purposes, 18 U.S.C. 2425.
98
E.g. United States v. Tavares, 705 F.3d 4, 11 (1st Cir. 2013)(affirming a conviction for violations of 18 U.S.C. 1591,
2421 and 2423); United States v. Dean, 705 F.3d 745, 750 n.4 (7th Cir. 2013)(affirming a conviction for violation of 18
U.S.C. 1591 and 2422); United States v. Cephus, 684 F.3d 703, 705 (7th Cir. 2012)(affirming convictions for violation
of 18 U.S.C. 1591, 2421 and 2423); United States v. O’Connor, 650 F.3d 839, 843-44 (2d Cir. 2011)( affirming
convictions for violation of 18 U.S.C. 1591 and 2423); United States v. Brooks, 610 F.3d 1186, 1196-198 (9th Cir.
2010)(same).
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Section 2421 (Transportation in General)
Section 2421outlaws knowingly transporting an individual in interstate or foreign transportation
for purposes of prostitution or other unlawful sexual activity.99 The courts have construed the
offense’s elements as follows:
Knowingly: The government must prove that the defendant was aware that he is transporting an
individual but also that he was aware of the interstate or foreign nature of the transportation.100
Transport: The transportation element does not require the defendant to have personally
transported a victim. What he must have done to satisfy the element is less clear. “A defendant
will be deemed to have transported an individual under Section 2421 where evidence shows that
the defendant personally or through an agent performed the proscribed act of transportation.”101
For some courts, no more is required than defendant-induced interstate travel and defendantprovided in-state transportation—at least when aiding and abetting is taken into account.102 On
the other hand, at least one court has held supplying prostitutes with marketing opportunities
(“dates”) that require interstate travel is not enough.103
Purpose: A violation occurs when an individual is transported for purposes of prostitution or other
illicit sexual purposes. Prostitution or other unlawful sex need not be the only purpose for the
99
18 U.S.C. 2421(“Whoever knowingly transports any individual in interstate or foreign commerce, or in any Territory
or Possession of the United States, with intent that such individual engage in prostitution, or in any sexual activity for
which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or
imprisoned not more than 10 years, or both”).
100
United States v. Kim, 584 F.3d 394, 395-96 (2d Cir. 2009)(emphasis in the original)(“[I]f we were to say that a
person knowingly transported women in interstate commerce, one would normally assume she knew both that she was
transporting the women and that she was transporting them in interstate commerce. Accordingly, we hold that
‘knowingly’ qualifies ‘interstate commerce’; the Government was obligated to prove that element beyond a reasonable
doubt, and the court was obligated to charge the jury to that effect”).
101
United States v. Cho, 713 F.3d 716, 720 (2d Cir. 2013).
102
Id. at 720-21 (“[T]he district court instructed the jury that Cho could be found guilty under 18 U.S.C. §2(b) even if
she acted through someone who was entirely innocent of the crimes charged in the indictment, even if she acted
through a government agent ... Viewed in the light most favorable to the government, the evidence at trial established
that Jun called Cho from Atlantic City, seeking a job as a prostitute. Cho put Jin in contact with CI [the government
agent] who spoke with her about traveling to New York to engage in prosecution. Jin traveled from Atlantic City to
New York where Cho and the CI picked her up. Cho then had the CI drive Jin to Manhattan so that Jin could work in a
brothel. Cho ... contends, however, that she did not arrange Jin’s interstate travel because she did not pay for Jin’s ticket
or book her passage. We disagree. By agreeing ... to provide a prostitution job for Jin, and by coordinating and
prearranging the date and time on which she would travel, Cho arranged for Jin to travel from New Jersey to New York
to engage in prostitution. Moreover, by providing the CI to drive Jin on the last intrastate leg of her interstate trip, Cho
directly organized Jin’s transportation in interstate commerce. Like the Firth Circuit ... we conclude that this is
sufficient.... See, e.g., United States v. Clemones, 577 F.2d 1247, 1253 (5th Cir. 1978)(holding that defendant
transported prostitute under 18 U.S.C. §2421, where defendant arranged via telephone for prostitute to cross state line,
then drove prostitute to defendant’s brothel upon her arrival in defendant’s state)”).
103
United States v. Jones, 909 F.2d 533, 536 (D.C.Cir. 1990)(“With regard to the element of interstate transportation
required under the Mann Act, the Government attempted to show that the [escort] business, with the male appellant’s
aid, caused the transportation of the escorts, by providing the names and addresses of customers and the financial
incentive to travel interstate.... [T]he male appellant’s principal argument is that the evidence failed to show that he
‘transported’ the female escorts interstate as required by the statute; he contends that the escorts physically transported
themselves and that his mere provision of the inducement for such auto-motion is legally insufficient. We reverse all of
the convictions upon these grounds ...”).
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travel, but it must be a principal or dominant purpose.104 Section 2421 bans transportation for
purpose of prostitution or other unlawful sexual activity. This includes transportation to a location
where prostitution is lawful;105 as well as unlawful sexual activity that does not constitute
prostitution.106
Consequences of Conviction: Violation of §2421 is punishable by imprisonment for not more than
10 years, for not more than 20 years if the defendant is a repeat offender;107by a fine of not more
than $250,000;108 and unless indigent, to a special assessment of $5,000.109 Offenders are also
subject to a post-imprisonment term of supervised release of not less than five years.110 The
offender may be ordered to pay the victim restitution.111 Property generated by the offense or used
to facilitate the offense may be confiscated under either civil or criminal forfeiture procedures.112
Attempt, Conspiracy, and Aiding and Abetting: Section 2421 specifically proscribes attempts to
transport. Attempted violations carry the same penalties.113 It has no individual conspiracy
component, but §371, the general conspiracy statute, makes it a federal crime to conspire to
violate any federal law, §2421 included.114 As with any other federal crime, aiding and abetting a
violation of §2421 exposes the offender to the same penalties that the transporter faces.115
Section 2421(b) directs the Attorney General to use cross designated state attorneys to prosecute
§2421 or to explain why she has not done so.116 Cross designate state prosecutors presumably
operate under the direction of United States Attorney.117
104
United States v. Julian, 427 F.3d 471, 485 (7th Cir. 2005)(principal); United States v. Campbell, 49 F.3d 1079, 108384 (5th Cir. 1995)(one of the dominant purposes).
105
United States v. Pelton, 578 F.2d 701, 712 (8th Cir. 1978).
106
United States v. Lowe, 145 F.3d 45, 52 (1st Cir. 1998)(kidnapping and rape); United States v. Mitchell, 778 F.2d
1271, 1275 (7th Cir. 1985)(same).
107
18 U.S.C. 2421, 2426.
108
18 U.S.C. 2421, 3571, 3781.
109
18 U.S.C. 3014.
110
18 U.S.C. 3583(k).
111
18 U.S.C. 3663A(c)(mandatory restitution for crimes of violence), 3663(discretionary restitution), 3583(d)
(discretionary restitution as a condition of supervised release).
112
18 U.S.C. 2428.
113
18 U.S.C. 2421(“... or attempts to do so, shall be fined under this title or imprisoned not more than 10 years, or
both”).
114
18 U.S.C. 371(“If two or more persons conspire ... to commit any offense against the United States ... and one or
more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned
not more than five years, or both ...”); conspiracy to transport cases include, United States v. Cho, 713 F.3d 716, 718
(2d Cir. 2013); United States v. Liu, 538 F.3d 1078, 1081 (9th Cir. 2008); United States v. Footman, 215 F.3d 145, 148
(1st Cir. 2000).
115
18 U.S.C. 2 (“(a) Whoever commits an offense against the United States or aids, abets, counsels, commands,
induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which
if directly performed by him or another would be an offense against the United States, is punishable as a principal”);
cases involving aiding and abetting a violation of §2421 include, United States v. Cho, 713 F.3d 716, 718 (2d Cir.
2013); United States v. Julian, 427 F.3d 471, 475 (7th Cir. 2005); United States v. Footman, 215 F.3d 145, 148 (1st Cir.
2000).
116
18 U.S.C. 2421(b)(caption omitted)(“(1) The Attorney General shall grant a request by a State attorney general that
a State or local attorney be cross designated to prosecute a violation of this section unless the Attorney General
determines that granting the request would undermine the administration of justice. (2) If the Attorney General denies a
request under paragraph (1), the Attorney General shall submit to the State attorney general a detailed reason for the
(continued...)
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Section 2422 (Coercion and Enticement)
Section 2422 consists of two offenses. One, §2422(b), is general. It condemns efforts to coerce or
entice an individual to engage in prostitution or unlawful sexual activity. The other, §2422(b),
focuses on child sex abuse. It condemns and punishes more severely efforts to coerce or entice a
child to engage in prostitution or unlawful sexual activity.
Section 2422(a)(Interstate Travel)
Section 2422(a), parsed into its constituent elements, states the following:
(1) Whoever,
(2) knowingly
(3) (a) persuades,
(b) induces,
(c) entices, or
(d) coerces
(4) an individual
(5) (a) to travel in interstate or foreign commerce, or
(b) in any Territory or Possession of the United States
(6) to engage in
(a) prostitution, or
(b) in any sexual activities for which any person can be charged with a criminal offenses,
or
(7) attempts to do so
shall be fined [not more than $250,000] under this title or imprisoned not more than 20 years, or
both. The courts have construed the offenses elements as follows:
Whoever: The term “whoever” encompasses both individuals and legal entities.118 Corporations
and other legal entities are criminally liable for crimes committed for their benefit by their agents
or employees within the scope of their authority.119
Knowingly: The government must show that the defendant was aware that he was engaged in the
conduct that constitutes coercion or enticement but need not know that the sexual activity
involved was unlawful.120
(...continued)
denial not later than 60 days after the date on which a request is received”).
117
See U.S. Const. Art. II, §3; Morrison v. Olson, 487 U.S. 654 (1988); 28 U.S.C. 547.
118
1 U.S.C. 1.
119
E.g., United States v. Singh, 518 F.3d 236, 250 (4th Cir. 2008)(“[T]he district court apparently perceived that the
evidence failed to establish Jalaram’s corporate criminal liability based on the conduct of Patel.... [T]he court erred in
failing to recognize that Patel, as manager of the Scottish Inn, was an agent of Jalaram, and was acting within the scope
of that relationship when he rented rooms to the Gold Club’s prostitutes”).
120
United States v. Evans, 272 F.3d 1069, 1086 (8th Cir. 2001).
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Coerces or Entices: It is the defendant’s intent to encourage or coerce that constitutes an element
of the offense. It is no defense that the individual enticed was pre-disposed to travel in order to
engage in prostitution upon arrival.121
Travel: Elsewhere in the Mann Act, the term “travel in foreign commerce,” does not refer to
“travel occurring wholly between two foreign countries and without any nexus to the United
States.”122 Presumably, the same can be said with regard to §2422(a).
Prostitution or Unlawful Activity: By the same token, Congress should probably be thought to
have used common terms to have common meaning. Speaking of the prostitution or unlawful
activity element of §2422(b), the courts have said that the concept of unlawful activity describes
activity contrary to applicable state or federal law, misdemeanor or felony.123 The courts disagree
over the question of whether the activity proscribed under §2422(b) must consist of contact
between two people.124
Attempt, Conspiracy, Aiding and Abetting: Section 2422(a) specifically outlaws attempts to
persuade or coerce another to travel interstate in order to engage in prostitution or illegal sexual
conduct.125 Attempt consists of the intent to commit the contemplated offense and a substantial
step towards final commission. Attempt by its nature lends itself to law enforcement “sting”
operations, which in turn implicate a possible defense of entrapment. The defense requires the
accused to establish that the government induced him to commit to crime he was not otherwise
predisposed to commit.126 Section 371 makes it a crime to conspire to commit any federal offense
as long as one of the conspirators does something in furtherance of the conspiracy.127 The
conspirators share in the liability for any crime committed by one of their number in furtherance
of the scheme.128 The aiding and abetting provisions apply with equal force to violations of
§2422(a).129 Anyone who knowingly assists in a violation of §2422(a) faces the same penalties he
would had he committed the crime himself.130
121
United States v. Rashkovski, 301 F.3d 1133, 1136-137 (9th Cir. 2002).
United States v. Weingarten, 632 F.3d 60, 71 (2d Cir. 2011)(construing the term as used in 18 U.S.C. 2423(b)).
123
United States v. Shill, 740 F.3d 1347, 1354 (9th Cir. 2014)(state misdemeanor); United States v. Davila-Nieves, 670
F.3d 1, 7 (1st Cir. 2012)(state law).
124
Compare, United States v. Taylor, 640 F.3d 255, 259 (7th Cir. 2011)(“If ‘sexual activity’ and ‘sexual act’ are
synonymous in Title 18, as they appear to be, then ‘sexual activity’ requires contact [between two people] because
‘sexual act,’ we know does”), with, United States v. Fugit, 703 F.3d 248, 254-55 (4th Cir. 2012)(“[W]e hold that
interpersonal physical contact is not a requirement of §2422(b)’s ‘sexual activity’ element.... [W]e believe that the
Seventh Circuit’s decision in United States v. Taylor ... was mistaken”).
125
18 U.S.C. 2422(a); e.g., United States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012).
126
United States v. Orr, 622 F.3d 864, 868 (7th Cir. 2010).
127
18 U.S.C. 371; e.g., United States v. Evans, 314 F.3d 329, 330 (8th Cir. 2002).
128
United States v. Singh, 518 F.3d 236, 252 (4th Cir. 2008).
129
18 U.S.C. 2.
130
18 U.S.C. 2. Courts have said in the case of aiding and abetting other Mann Act offenses, that “the Government
must prove that the defendant (1) willfully associated with the charged criminal venture and (2) aided the venture
through affirmative action,” United States v. Rufal, 732 F.3d 1175, 1190 (10th Cir. 2013), and in the same vein that, “an
aider and abettor is punishable as a principal if, first, someone else actually committed the offense, and second, the
aider and abettor became associated with the endeavor and took part in it, intending to ensure its success,” United
States v. Lyons, 740 F.3d 702, 715 (1st Cir. 2014).
122
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Consequences of Conviction: The penalty for §2422(a) offense is imprisonment for not more than
20 years (not more than 40 years for a repeat offender);131 a fine of more than $250,000 (not more
than $500,000 for an organization);132 and unless indigent, to a special assessment of $5,000.133
The sentence must include a term of supervised release of not less than five years,134 and may
include an order for victim restitution.135 Moreover, any property attributable to the offense or
used to commit the offense may be forfeited.136
Section 2422(b)(Facilities of Interstate Commerce)
Section 2422(b), parsed into its constituent elements, states, using many of same elements found
in §2422(b), the following:
(1) Whoever,
(2)(a) using the mail or
(b) [using] any facility or means of interstate or foreign commerce, or
(c) within the special maritime and territorial jurisdiction of the United States
(3) knowingly
(4) (a) persuades,
(b) induces,
(c) entices, or
(d) coerces
(5) an individual who has not attained the age of 18 years,
(6) to engage in
(a) prostitution or
(b) any sexual activity for which any person can be charged with a criminal offense, or
(7) attempts to do so,
shall be fined under this title and imprisoned not less than 10 years or for life.137 Again, the case
law arising under the elements of the offense suggests the following:
Whoever: The term “whoever” encompasses both individuals and legal entities. Corporations and
other legal entities are criminally liable for crimes committed for their benefit by their agents or
employees with the scope of their authority.138
131
18 U.S.C. 2422(a), 2426.
18 U.S.C. 2422(a), 3571, 3581.
133
18 U.S.C. 3014.
134
18 U.S.C. 3583(k).
135
18 U.S.C. 3663.
136
18 U.S.C. 2428.
137
18 U.S.C. 2422(b); see also, United States v. Fugit, 703 F.3d 248, 254 (4th Cir. 2012)(“[Section] 2422(b) comprises
four elements: (1) use of a facility of interstate commerce; (2) to knowing persuade, induce, entice, or coerce; (3) a
person who is younger than eighteen; (4) to engage in an illegal sexual activity”).
138
E.g., United States v. Singh, 518 F.3d 236, 250 (4th Cir. 2008)(“[T]he district court apparently perceived that the
evidence failed to establish Jalaram’s corporate criminal liability based on the conduct of Patel.... [T]he court erred in
failing to recognize that Patel, as manager of the Scottish Inn, was an agent of Jalaram, and was acting within the scope
of that relationship when he rented rooms to the Gold Club’s prostitutes”).
132
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Communication: The cases make it clear that the “mail, or any facility or means of interstate or
foreign commerce” element of the offense can be satisfied by use of the phone,139 email,140 or
Internet chat rooms.141
Knowingly: The government must show that the defendant was aware that he was engaged in the
conduct that constitutes coercion or enticement but need not know that the sexual activity
involved was unlawful.142 Nor need the government prove that the defendant knew the victim was
underage.143
Coerces or Entices: The action element of §2422(b) does not require that either prostitution or
unlawful sexual activity actually occur.144 It is enough that the defendant enticed or coerced, or
attempted to entice or coerce, its occurrence.145 Except for coercion, the words in the element—
persuade, induce, and entice—“are effectively synonymous.”146 It is the defendant’s intent to
encourage or coerce that constitutes an element of the offense. It is no defense that the individual
enticed was predisposed to travel in order to engage in prostitution upon arrival.147
Child: A defendant’s communication need not be addressed directly to a child. The element may
be satisfied with evidence that the defendant used an intermediary to persuade a child to engage
in prostitution or unlawful sexual conduct.148 Moreover, since the section proscribes attempts as
well as the completed offense, it does not matter that the “child” the defendant sought to entice
was, unbeknownst to him, an adult.149
Prostitution or Unlawful Activity: The unlawful sexual activity element demands conduct that is
unlawful under applicable state or federal law including offenses that are misdemeanors.150 The
139
United States v. Pawlowski, 682 F.3d 205, 207-208 (3d Cir. 2012)(phone, chat room, and e-mail).
United States v. McMillan, 744 F.3d 1033, 1034 (7th Cir. 2014); United States v. Shill, 740 F.3d 1347, 1350 (9th Cir.
2014); United States v. Olvera, 687 F.3d 645, 646 (5th Cir. 2012)
141
United States v. Fugit, 703 F.3d 248, 251 (4th Cir. 2012); United States v. Zobel, 696 F.3d 558, 564 (6th Cir. 2012);
United States v. Lebowitz, 676 F.3d 1000, 1006 (11th Cir. 2012).
142
United States v. Evans, 272 F.3d 1069, 1086 (8th Cir. 2001).
143
United States v. Daniels, 685 F.3d 1237, 1248 & n.14 (11th Cir. 2012), citing in accord, United States v. Daniels,
653 F.3d 399, 410 (6th Cir. 2011); United States v. Cox, 577 F.3d 833, 837-38 (7th Cir. 2009); United States v. Jones,
471 F.3d 535, 539 (4th Cir. 2006); United States v. Griffith, 284 F.3d 338, 350-51 (2d Cir. 2002); and United States v.
Taylor, 239 F.3d 994, 997 (9th Cir. 2001).
144
United States v. Engle, 676 F.3d 405, 412 (4th Cir. 2012); United States v. Barlow, 568 F.3d 215, 219 n.10 (5th Cir.
2009).
145
United States v. Berk, 652 F.3d 132, 140 (6th Cir. 2011)(“Section 2422(b) criminalizes an intentional attempt to
achieve a mental state—a minor’s asset—regardless of the accused’s intentions vis-a-vis the actual consummation of
sexual activities with the minor”).
146
United States v. Engle, 676 F.3d 405, 411 n.3 (4th Cir. 2012).
147
United States v. Rashkovski, 301 F.3d 1133, 1136-137 (9th Cir. 2002)(construing identical term in §2423(a)).
148
United States v. McMillan, 744 F.3d 1033, 1035-36 (7th Cir. 2014), citing in accord inter alia, United States v.
Caudill, 709 F.3d 444 (5th Cir. 2013); United States v. Laureys, 653 F.3d 27 (D.C.Cir. 2011); United States v. Berk, 652
F.3d 132 (1st Cir. 2011); United States v. Douglas, 626 F.3d 161 (2d Cir. 2010).
149
United States v. Slaughter, 708 F.3d 1208, 1215 (11th Cir. 2013); United States v. Lundy, 676 F.3d 444, 448 (5th Cir.
2012)(“[F]actual impossibility to complete a criminal act does not preclude a conviction for attempting to break the
law”).
150
United States v. Shill, 740 F.3d 1347, 1354 (9th Cir. 2014)(state misdemeanor); United States v. Davila-Nieves, 670
F.3d 1, 7 (1st Cir. 2012)(state law).
140
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lower federal appellate courts are divided over the question of whether the activity must consist
of contact between two people.151
Attempt: Attempted violation of §2422(b) consists of an intent to entice or coerce a child to
engage in prostitution or unlawful sexual activity and a substantial step towards the commission
of the crime.152 Entrapment defense implications arise when a defendant has become ensnarled in
a law enforcement sting operation. A defendant is entitled to jury instructions on entrapment if
there is evidence that “(i) government actors induced him to commit the charged crime and (ii) he
was not predisposed to commit that crime.”153
Consequences of Conviction: Conviction for a violation or attempted violation of §2422(b) is
punishable by imprisonment for not less than 10 years or for life; a fine of not more than
$250,000 (not more than $500,000 for an organization);154 and unless indigent, to a special
assessment of $5,000.155 Individuals are also subject to a term of supervised release of not less
than five years.156 They may be compelled to pay restitution.157 Property generated by the offense
or used to facilitate its commission may be subject to confiscation.158
Section 2423 (Transportation Involving Children)
Section 2423 outlaws four distinct offenses: (1) §2423(a)—transportation of a child in interstate
or foreign commerce for purposes of prostitution or unlawful sexual purposes; (2) §2423(b)—
interstate or foreign travel for purposes of unlawful sexual abuse of a child; (3) §2423(c)—
foreign travel and subsequent unlawful sexual abuse of a child; and (4) §2423(d)—arranging, for
profit, the travel outlawed in any of these offenses.
Section 2423(a)(Transporting a Child)
“To secure a conviction under §2423(a), the government thus must prove beyond a reasonable
doubt that the defendant: (1) knowingly transported a minor across state lines and (2) with the
151
Compare, United States v. Taylor, 640 F.3d 255, 259 (7th Cir. 2011)(“If ‘sexual activity’ and ‘sexual act’ are
synonymous in Title 18, as they appear to be, then ‘sexual activity’ requires contact [between two people] because
‘sexual act,’ we know does”), with, United States v. Fugit, 703 F.3d 248, 254-55 (4th Cir. 2012)(“[W]e hold that
interpersonal physical contact is not a requirement of §2422(b)’s ‘sexual activity’ element.... [W]e believe that the
Seventh Circuit’s decision in United States v. Taylor ... was mistaken”).
152
United States v. Pawlowski, 682 F.3d 205, 211 (3d Cir. 2012); United States v. Shinn, 681 F.3d 924, 931 (8th Cir.
2012); United States v. Engle, 676 F.3d 405, 491-20 (4th Cir. 2012)(“[I]n order to convict a defendant of attempt, the
government prove beyond a reasonable doubt, that (1) he had culpable intent to commit the crime and (2) he took a
substantial step towards completion of the crime that strongly corroborates that intent”); United States v. Broussard,
669 F.3d 537, 547 (5th Cir. 2012).
153
United States v. Davila-Nieves, 670 F.3d 1, 9 (1st Cir. 2012); see also, United States v. Shinn, 681 F.3d 924, 930 (8th
Cir. 2012)(“Inducement focuses on the government’s actions, whereas predisposition focuses on whether the defendant
was an unwary innocent or instead, an unwary criminal who readily availed himself of the opportunity to perpetrate the
crime”).
154
18 U.S.C. 2422(b), 3571, 3581.
155
18 U.S.C. 3014.
156
18 U.S.C. 3583(k).
157
18 U.S.C. 3663, 3583.
158
18 U.S.C. 2428
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intent that the minor engage in sexual activity for which some person could be criminally
charged.”159
Knowledge: Guilty knowledge consists of an awareness that an individual is transported; “the
knowledge requirement does not apply to the victim’s age,”160 nor to the fact that a state line has
been crossed.161
Transportation: The transportation element, that is causing another to be transported, can be met
without evidence that the defendant accompanied the victim during the journey.162
Purpose: Prostitution or unlawful sexual activity must be a dominant purpose for the
transportation, but it need not be the sole purpose.163
Prostitution or Unlawful Activity: Conviction does not require proof that an underlying act of
prostitution or unlawful sexual activity with a child actually occurred.164
Attempt, Conspiracy, Aiding and Abetting: Section 2423(e) outlaws attempt and conspiracy to
violate §2423(a).165 Conspiracy charges may also be prosecuted under the general conspiracy
statute, 18 U.S.C 371.166 Here, as elsewhere, conspirators are liable for foreseeable crimes
committed by their fellows in furtherance of the scheme.167 The conviction on a conspiracy
charge becomes complicated when one of the necessary parties is the individual transported.168
Aiding and abetting in this context, as in others, demands proof that the defendant “participated in
the illegal venture and sought by his actions to make it succeed.169
159
United States v. Vargas-Cordon, 733 F.3d 366, 375 (2d Cir. 2013). The text of §2423(a) reads: “A person who
knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce, or in any
commonwealth, territory or possession of the United States, with intent that the individual engage in prostitution, or in
any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title and
imprisoned not less than 10 years or for life.”
160
United States v. Washington, 743 F.3d 938, 943 (4th Cir. 2014), citing in accord, United States v. Tavares, 705 F.3d
4, 19-20 (1st Cir. 2013); United States v. Daniels, 685 F.3d 1237, 1248 (11th Cir. 2012); United States v. Daniels, 653
F.3d 399, 410(6th Cir. 2011); United States v. Cox, 577 F.3d 833, 838 (7th Cir. 2009).
161
United States v. Al-Cholan, 619 F.3d 945, 952 n.2 (6th Cir. 2010).
162
United States v. Weingarten, 713 F.3d 704, 708-709 (2d Cir. 2013); United States v. Holland, 381 F.3d 80, 86-7 (2d
Cir. 2004).
163
United States v. Vargas-Cordon, 733 F.3d 366, 375-76 (2d Cir. 2013).
164
United States v. Vargas-Cordon, 733 F.3d 366, 375 (2d Cir. 2013).
165
18 U.S.C. 2423(e)(“Whoever attempts or conspires to violate subsection (a), (b), (c), or (d) shall be punishable in
the same manner as a completed violation of that subsection”).
166
E.g., United States v. Tavares, 705 F.3d 4, 15-7 (1st Cir. 2013).
167
United States v. Cephus, 684 F.3d 703, 707 (7th Cir. 2012).
168
E.g., United States v. Footman, 215 F.3d 145, 151 (1st Cir. 2000)(“Footman says Tes was a mere victim and that a
woman who simply prostitutes herself under the control of a pimp and consents to being transported across state lines
cannot be a co-conspirator under the Mann Act. There is law to this effect. See Gebardi v. United States, 297 U.S. 112,
123 [1932].... The real question is whether the jury had adequate evidence to conclude that Tes was more than a
victim—that she was in fact a co-conspirator. The dividing line is an important one. There is an inherent policy
judgment in the Mann Act not to prosecute women who do no more than consent to being transported across state lines
for the purpose of prostitution. But that policy simply does not apply when the women assume roles in running the
business.”).
169
United States v. Tavares, 705 F.3d 4, 20 (1st Cir. 2013).
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Consequences of Conviction: Conviction carries a mandatory minimum term of imprisonment of
not less than 10 years (not less than 20 years for repeat offenders);170 a mandatory term of
supervised release of not less than 5 years;171 a fine of not more than $250,000 (not more than
$500,000 for an organization);172 and unless indigent, to a special assessment of $5,000.173 The
offender may be ordered to pay restitution as well.174 Property generated by the offense or used to
facilitate its commission may be forfeited to the United States.175
Section 2423(b)(Travel With Intent)
A violation of §2423(b) occurs when someone travels in interstate commerce, comes to this
country, or when a U.S. citizen or permanent resident alien travels in foreign commerce—for the
purpose of engaging in illicit sexual activity with a child.176
Travel: Section 2423(b) extends to interstate travel, to travel into the United States, and travel in
foreign commerce. Travel in foreign commerce, however, does not include between two foreign
countries with no territorial connection to the United States.177 There may also be some doubt
whether the section applies to foreign travel for purposes of child sexual abuse other than child
prostitution.178
Purpose: Speaking of prostitution and unlawful sexual purposes under §2423(a), the courts have
declared that prostitution or some other form of unlawful sexual activity must be a dominant
purpose for the transportation, but it need not be the sole purpose.179 One court has conceded the
prevalence of this construction, but has taken exception to it, because it does not comport with the
language of the statute (“the purpose”).180
170
18 U.S.C. 2423(a); 18 U.S.C. 2426 (“(a) Maximum Term of Imprisonment.-The maximum term of imprisonment
for a violation of this chapter after a prior sex offense conviction shall be twice the term of imprisonment otherwise
provided by this chapter, unless section 3559(e) applies. (b) Definitions.-In this section- (1) the term “prior sex offense
conviction” means a conviction for an offense- (A) under this chapter, chapter 109A, chapter 110, or section 1591; or
(B) under State law for an offense consisting of conduct that would have been an offense under a chapter referred to in
paragraph (1) if the conduct had occurred within the special maritime and territorial jurisdiction of the United States;
and (2) the term “State” means a State of the United States, the District of Columbia, and any commonwealth, territory,
or possession of the United States”).
171
18 U.S.C. 3583(k).
172
18 U.S.C. 2423(a), 3571, 3581.
173
18 U.S.C. 3014.
174
18 U.S.C. 3663.
175
18 U.S.C. 2428.
176
18 U.S.C. 2423(b)(“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”).
177
United States v. Weingarten, 632 F.3d 60, 71 (2d Cir. 2011).
178
United States v. al-Maliki, ___ F.3d ___, ___ *4-*5 (6th Cir. May 27, 2015)(expressing doubt in a case of parental
sexual abuse whether the proscriptions of 18 U.S.C. 2423(c)(illicit sexual abuse following foreign travel) rest beyond
Congress’s legislative authority under the Foreign Commerce Clause).
179
E.g., United States v. Vargas-Cordon, 733 F.3d 366, 375-76 (2d Cir. 2013). The cases under §2421 of the Mann Act
reflect a similar view, e.g., United States v. Julian, 427 F.3d 471, 485 (7th Cir. 2005)(principal purpose); United States
v. Campbell, 49 F.3d 1079, 1083-84 (5th Cir. 1995)(one of the dominant purposes).
180
United States v. McGuire, 627 F.3d 622, 624-25 (7th Cir. 2010)(“The courts have had trouble dealing with cases in
(continued...)
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Illicit Sexual Activity: Section 2423(f) supplies a statutory definition of “illicit sexual activity”
that applies to both §2423(b) and §2423(c).181 The term covers “commercial sex activity” with an
individual who is under 18 years of age as defined in 18 U.S.C. 1591.182 It also covers sexual acts
with such a child (aggravated sexual assault) that would be punishable had they occurred within
the U.S. special maritime and territorial jurisdiction, i.e., 18 U.S.C. 2241(a), 2241(c), or 2423(b).
Thus, §2423(b) “criminalizes interstate and foreign travel undertaken for any of the following
purposes: (1) engaging in a sexual act with a minor under the age of 12, see §2241(c); (2)
engaging in a sexual act with a minor between the ages of 12 and 16 if the perpetrator is at least
four years older than the victim, see §2243(a); and (3) engaging in a sexual act with a minor
between the ages of 16 and 18 by the use of force or threat, see §2241(a).”183
The crime is one of travel and purpose, and thus “the government need not prove an actual minor
was placed at risk in order to secure a conviction under §2423(b).”184
Age of the Victim: Section 2423(g) provides a limited affirmative defense to prosecution of child
prostitution cases under both §2423(b) and §2423(c), where the defendant can prove by clear and
convincing evidence that he reasonably believed the victim, with whom he engaged in
commercial sex, was an adult.185
Attempt, Conspiracy, Aiding and Abetting: Section 2423(e) outlaws attempt or conspiracy to
violate §2423(b) under the same penalties as apply to the underlying offense, noted below. Recall
(...continued)
which the travel prosecuted under section 2423(b) may have had dual purposes, only one of which was to have sex with
minors. The statute says ‘the’ purpose must be sex rather than “a” purpose, but in United States v. Vang, 128 F.3d
1065, 1068 (7th Cir. 1997), we approved a jury instruction which said that sex didn't have to be ‘the sole purpose’ of the
travel, though it did have to be ‘a dominant purpose, as opposed to an incidental one. A person may have more than one
dominant purpose for traveling across a state line.’ To speak of multiple dominant purposes is not idiomatic, but given
the evidence in Vang the precise wording of the instruction hardly mattered. Other cases, too, fasten on ‘dominant,’ but
then define it down to mean ‘significant,’ ‘efficient and compelling,’ ‘predominat[ing],’ ‘motivating,’ not ‘incidental,’
or not ‘an incident’ to the defendant’s purpose in traveling. E.g., United States v. Julian, 427 F.3d 471, 485 (7th Cir.
2005); United States v. Hitt, 473 F.3d 146, 152 (5th Cir. 2006); United States v. Hayward, 359 F.3d 631, 637-38 (3d
Cir. 2004); United States v. Meacham, 115 F.3d 1488, 1495-496 (10th Cir. 1997); United States v. Campbell, 49 F.3d
1079, 1083-84 (5th Cir. 1995); United States v. Ellis, 935 F.2d 385, 390 (1st Cir. 1991); United States v. Bennett, 364
F.2d 77, 79 (4th Cir. 1996). These verbal formulas are strained; the courts turn handsprings trying to define ‘dominant’
as if it were a statutory term, see, e.g., United States v. Miller, 148 F.3d 207, 212-13 (2d Cir. 1998), which it is not. It
would be better to ask whether, had a sex motive not been present, the trip would not have taken place or would have
differed substantially”).
181
18 U.S.C. 2423(f)(“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 2256(8))”).
182
18 U.S.C. 1591(e)(3)(“The term ‘commercial sex act’ means any sex act, on account of which anything of value is
given to or received by any person”).
183
United States v. Stokes, 726 F.3d 880, 896 (7th Cir. 2013).
United States v. Kelly, 510 F.3d 433, 441 & n.7 (4th Cir. 2007), citing in accord, United States v. Hicks, 457 F.3d
838, 841 (8th Cir. 2006); United States v. Tykarsky, 446 F.3d 458, 469 (3d Cir. 2005); United States v. Sims, 428 F.3d
945, 959 (10th Cir. 2005); United States v. Root, 296 F.3d 1065, 1069 (7th Cir. 1997).
185
18 U.S.C. 2423(g)(“In a prosecution under this section based on illicit sexual conduct as defined in subsection (f)(2),
it is a defense, which the defendant must establish by clear and convincing evidence, that the defendant reasonably
believed that the person with whom the defendant engaged in the commercial sex act had attained the age of 18 years”).
Prior to the 2015 Victims Justice Act, defendant’s burden of proof stood at proof by a preponderance of the evidence,
18 U.S.C. 2423(g)(2012 ed.).
184
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that attempt consists of the intent to commit the underlying offense coupled with a substantial
step, corroborative of that intent.186 Here and elsewhere, conspiracy exposes the schemers to
punishment for any foreseeable offenses committed by any of their number in furtherance of the
common plot.187 An accused has aided and abetted in the crime of another, and merits comparable
punishment, when he has assisted in its commission with the intent to do so.188
Consequences of Conviction: Violation of §2423(b) is punishable by imprisonment for more than
30 years (not more than 60 years for repeat offenders);189 a mandatory term of supervised release
of not less than 5 years;190 a fine of not more than $250,000 (not more than $500,000 for an
organization);191 and unless indigent, to a special assessment of $5,000.192 The offender may be
ordered to pay restitution as well.193 Property derived from the offense or used to facilitate its
commission may be forfeited to the United States.194
Section 2423(c)(Travel Followed by Illicit Sex)
Section 2423(c) “comprises three elements: (1) being a United States citizen or permanent
resident; (2) traveling in foreign commerce; and (3) engaging in illicit sexual conduct.”195
Illicit Sexual Activity: As noted above, §2423(f) supplies a statutory definition of “illicit sexual
activity” that governs both §2423(b), §2423(c), and §2423(c).196 It encompasses commercial
sexual activity as understood in the case of commercial sex trafficking under 18 U.S.C. 1591,197
aggravated assault against children provisions found in 18 U.S.C. ch. 109A, and the production of
186
United States v. Aldawsari, 740 F.3d 1015, 1019-20 (5th Cir. 2014); United States v. Muratovic, 719 F.3d 809, 815
(7 Cir. 2013); United States v. Villarreal, 707 F.3d 942, 960 (8th Cir. 2013); United States v. Desposito, 704 F.3d 221,
230 (2d Cir. 2013).
187
Pinkerton v. United States, 328 U.S. 640, 646-47 (1946); United States v. Blackman, 746 F.3d 137, 141 (4th Cir.
2014); United States v. Grasso, 724 F.3d 1077, 1089 (9th Cir. 2013).
188
18 U.S.C. 2; United States v. Ali, 718 F.3d 929, 936 (D.C. Cir. 2013); United States v. Rufal, 732 F.3d 1175, 1190
(10th Cir. 2013)(“[T]he Government must prove that the defendant (1) willfully associated with the charged criminal
venture and (2) aided the venture through affirmative action”); United States v. Lyons, 740 F.3d 702, 715 (1st Cir.
2014)(“An aider and abettor is punishable as a principal if, first, someone else actually committed the offense, and
second, the aider and abettor became associated with the endeavor and took part in it, intending to ensure its success”).
189
18 U.S.C. 2423(b); 18 U.S.C. 2426.
190
18 U.S.C. 3583(k).
191
18 U.S.C. 2423(a), 3571, 3581.
192
18 U.S.C. 3014.
193
18 U.S.C. 3663.
194
18 U.S.C. 2428.
195
United States v. Pendleton, 658 F.3d 299, 304 (3d Cir. 2011). With the recently added residential alternative to the
travel element, the section now reads: “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”.
196
18 U.S.C. 2423(f)(“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 2256(8))”).
197
18 U.S.C. 1591(e)(3)(“The term ‘commercial sex act’ means any sex act, on account of which anything of value is
given to or received by any person”); see e.g., United States v. Frank, 599 F.3d 1221, 1233 (11th Cir. 2010).
th
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child pornography.198 Unlike the “travel with a purpose” prohibition, the violation of §2423(c) is
not complete until illicit sexual activity occurs.199
Travel or Reside: Section 2423(c) originally outlawed illicit sexual activity by a defendant who
had travelled from the United States.200 Although the travel and illicit sexual activity did not have
to closely coincide,201 the section did not reach travel occurring prior to enactment even if the
illicit sexual activity occurred thereafter.202 The section now provides a residential alternative to
the travel element. A U.S. citizen who resides overseas and engages in illicit sexual activity
violates §2423(c) regardless of when he travelled abroad.203 There may be some doubt whether
§2423(c) covers overseas illicit sexual activity other than child prostitution.204
Age of the Victim: Section 2423(g) provides a limited affirmative defense to prosecution under
§2423(c), where the defendant can prove by clear and convincing evidence that he reasonably
believed that he was engaging in commercial sex with an adult.
Attempt, Conspiracy, Aiding and Abetting: Attempting to violate §2423(c) or conspiring to do so
subjects the offender to the same consequences as flow from the breach of the underlying
offense.205 The same can be said of one who aids and abets commission of the underlying
offense.206 Conspiracy is complete once the corrupt agreement is joined; no further step or overt
act is required.207 Attempt is complete when a substantial guilty step is taken.208 Aiding and
abetting is complete only when someone else has committed the underlying offense.209
198
18 U.S.C. 2423(f); United States v. Stokes, 726 F.3d 880, 896 (7th Cir. 2013).
United States v. Pendleton, 658 F.3d 299, 304 (3d Cir. 2011).
200
18 U.S.C. 2423(c)(2006 ed.).
201
United States v. Clark, 435 F.3d 1100, 1107 (9th Cir. 2006)(“The statute ... does not require that the conduct occur
while traveling in foreign commerce. In Clark’s case, the lapse in time between his most recent transit between the
United States and Cambodia and his arrest was less than two months. We see no plausible reading of the statute that
would exclude its application to Clark’s conduct because of this limited gap”).
202
United States v. Stokes, 726 F.3d 880, 888 (7th Cir. 2013), citing in accord, United States v. Jackson, 480 F.3d 1014,
1018, 1024 (9th Cir. 2007).
203
18 U.S.C. 2423(c)(emphasis added)(“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”).
204
United States v. al-Maliki, ___ F.3d ___, ___ *4-*5 (6th Cir. May 27, 2015)(expressing doubt in a case of parental
sexual abuse whether the proscriptions of 18 U.S.C. 2423(c)(illicit sexual abuse following foreign travel) rest beyond
Congress’s legislative authority under the Foreign Commerce Clause).
205
18 U.S.C. 2423(e).
206
18 U.S.C. 3.
207
The general conspiracy prohibition is only complete when one of the conspirators “do[es] an[] act to effect the
object of the conspiracy,” 18 U.S.C. 371. Because the conspiracy provision here, §2423(e), has no comparable
language, the completion need not await the commission of an overt act, Whitfield v. United States, 543 U.S. 209, 214
(2004)(“Nash and Singer give Congress a formulary: by choosing a text modeled on §371, it gets an over-act
requirement; by choosing a text modeled on the Sherman Act ... it dispenses with such a requirement); Salinas v.
United States, 522 U.S. 52, 64 (1997); United States v. Shabani, 513 U.S. 10, 13-4 (1994).
208
United States v. Aldawsari, 740 F.3d 1015, 1019-20 (5th Cir. 2014)(“The district court’s instruction properly
emphasized that a conviction for attempt requires proof beyond a reasonable doubt that the Defendant ... did an act
constituting a substantial step towards the commission of that crime which strongly corroborates the Defendant’s
criminal intent ...”)(5th Cir. 2014); United States v. Muratovic, 719 F.3d 809, 815 (7th Cir. 2013); United States v.
Villarreal, 707 F.3d 942, 960 (8th Cir. 2013); United States v. Desposito, 704 F.3d 221, 230 (2d Cir. 2013).
209
United States v. Lyons, 740 F.3d 702, 715 (1st Cir. 2014)(“An aider and abettor is punishable as a principal if, first,
(continued...)
199
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Consequences of Conviction: The consequences under §2423(c) are the same as those under
§2423(b): imprisonment for not more than 30 years (not more than 60 years for repeat
offenders);210 a mandatory term of supervised release of not less than 5 years;211 a fine of not
more than $250,000 (not more than $500,000 for an organization);212 and unless indigent, to a
special assessment of $5,000.213 The offender may be ordered to pay restitution as well.214
Property generated by the offense or used to facilitate its commission may be forfeited to the
United States.215
Section 2423(d)(Travel Agents)
Section 2423(d) creates a separate offense for a profiteer who arranges the travel outlawed in
§2423(b) or §2423(c): “Whoever, for the purpose of commercial advantage or private financial
gain, arranges, induces, procures, or facilitates the travel of a person knowing that such a person
is traveling in interstate commerce or foreign commerce for the purpose of engaging in illicit
sexual conduct shall be fined under this title, imprisoned not more than 30 years, or both.”216
Although written somewhat cryptically, the section’s use of the “illicit sexual conduct” limits its
application to the only two other offenses where the statutorily defined term is used:
§2423(b)(travel with intent to engage in specific unlawful sexual activity with a child) and
§2423(c)(travel followed by specific unlawful sexual activity with a child).
Attempt, Conspiracy, Aiding and Abetting: Conspiring or attempting to commit any of the
transportation crimes described in §2423 is also a federal crime and subject to the same penalty as
the underlying offense.217 Aiding and abetting a §2423(d) offense warrants the same treatment.218
Consequences of Conviction: The offense thus carries the same penalties as the underlying
crimes. Defendants are subject to imprisonment for not more than 30 years (for not more than 60
years for repeat offenders);219 a mandatory term of supervised release of not less than 5 years;220 a
fine of not more than $250,000 (not more than $500,000 for an organization);221 and unless
indigent, to a special assessment of $5,000.222 The court may order the defendant to pay
(...continued)
someone else has committed the offense and, second the aider and abettor became associated with endeavor and took
part in it, intending to ensure its success”); United States v. Rufal, 732 F.3d 1197, 1190 (10th Cir. 2013); United States
v. Capers, 708 F.3d 1286, 1306 (11th Cir. 2013); United States v. Litwok, 678 F.3d 208, 213 (2d Cir. 2012).
210
18 U.S.C. 2423(c); 18 U.S.C. 2426.
211
18 U.S.C. 3583(k).
212
18 U.S.C. 2423(c), 3571, 3581.
213
18 U.S.C. 3014.
214
18 U.S.C. 3663.
215
18 U.S.C. 2428.
216
18 U.S.C. 2423(d).
217
18 U.S.C. 2423(e).
218
18 U.S.C. 2.
219
18 U.S.C. 2423(d); 18 U.S.C. 2426.
220
18 U.S.C. 3583(k).
221
18 U.S.C. 2423(d), 3571, 3581.
222
18 U.S.C. 3014.
Congressional Research Service
28
Sex Trafficking: An Overview of Federal Criminal Law
restitution.223 Property realized through the offense or used to facilitate its commission may be
forfeited to the United States.224
Author Contact Information
Charles Doyle
Senior Specialist in American Public Law
[email protected], 7-6968
223
224
18 U.S.C. 3663.
18 U.S.C. 2428.
Congressional Research Service
29
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