United States v. Malek al-Maliki, 787 F.3d 784

Al-Maliki, an Iraq native and U.S. citizen, was charged under 18 U.S.C. § 2423(c) for allegedly sexually abusing his two sons during a 2010 trip to Syria while residing abroad.
The government charged him under § 2423(c) which criminalizes certain noncommercial conduct by a U.S. citizen traveling in foreign commerce.
Trial evidence included testimony from a U.S. Embassy vice consul, DHS agent, and the children, including firsthand accounts by John Doe #1.
The district court denied a Rule 29 directed verdict and sentenced al-Maliki to 292 months on each count, concurrent, after a four-level § 2A3.1(b)(1) enhancement for use of force.
On appeal, al-Maliki challenged the statute’s constitutionality, evidentiary rulings, closing arguments, sufficiency of the evidence, and sentence, all of which the court rejected.
The court affirmed, applying plain-error review to the constitutional challenge and upholding the remaining rulings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 2423(c) is constitutional under the Foreign Commerce Clause	Maliki argues lack of authority to punish intrastate, noncommercial conduct abroad	Government relies on modern commerce-definition to justify § 2423(c)	Not plainly unconstitutional; plain-error review applied and fails
Does § 2423(c) violate Congress’s authority or subject-matter jurisdiction	Statute exceeds Congress’s Foreign Commerce Clause authority	Statutory authority falls within modern Lopez framework	Plain-error review shows no obvious error; upheld on plain-error grounds
Admissibility of Goldrup testimony concerning abuse and culture	Testimony contains improper hearsay and prejudicial stereotypes	Testimony properly explained investigation and credibility	Admissible; not hearsay for truth, and not unduly prejudicial
Sufficiency of the evidence to support convictions	John Doe #1’s testimony could be coached/undermining credibility	Jury could credit firsthand account over defense	Sufficient evidence; rational juror could find guilt beyond a reasonable doubt
Sentencing challenges under § 2A3.1(b)(1) and reasonableness	Enhancement and sentence within guidelines may be error	Sentence aligns with guidelines given evaluator’s risk assessment	Procedurally and substantively reasonable; within guideline range

United States v. Cotton, 535 U.S. 625 (2002) (subject-matter jurisdiction and authority to hear criminal cases)
Union Pac. R. Co. v. Locomotive Engineers, 558 U.S. 67 (2009) (distinction between jurisdictional concepts clarified)
Lopez, United States v., 514 U.S. 549 (1995) (modern definition of the Commerce Clause (three categories))
Kebodeaux, United States v., — U.S.—, 133 S. Ct. 2496 (2013) (discussion of noneconomic activity and commerce power)
Morrison, United States v., 529 U.S. 598 (2000) (noneconomic activity and commerce power limits)
Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434 (1979) (foreign commerce power scope beyond interstate analogies)
Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) (channels/instrumentalities and substantial effects on commerce framework)
United States v. Pendleton, 658 F.3d 299 (2011) (upholding constitutionality of noncommercial conduct provision (3d Cir.))
Clark, United States v., 435 F.3d 1100 (2006) (upholding constitutional challenge to similar framing (9th Cir.))