865 F.3d 553
7th Cir.2017Background
- Defendant Eugene Wearing recruited a 15-year-old ("KV #1") to engage in prostitution, photographed her, posted ads on Craigslist, and arranged client meetings.
- At a hotel audition and subsequent client rendezvous no commercial sex transaction occurred (police presence and client withdrawal); parties stipulated KV #1 had not engaged in a "commercial sex act" before her mother contacted authorities.
- Wearing admitted driving KV #1, describing that she would perform oral sex or intercourse for clients, photographing her in underwear, showing her an apartment for "business," having intercourse with her, and emailing a potential client; he also stipulated the Craigslist posting used channels of interstate commerce.
- Charged and convicted at a bench trial under 18 U.S.C. § 1591 (sex trafficking of children "in or affecting interstate or foreign commerce"); he challenged only sufficiency of evidence on appeal.
- Wearing argued (1) § 1591 requires that the victim actually engaged in a commercial sex act, and (2) the recruitment itself must affect interstate commerce; the district court rejected both and imposed a 180-month sentence.
- The Seventh Circuit affirmed, holding the statute covers the defendant’s completed scheme/planned causation of commercial sex and that the stipulated Craigslist advertisement satisfied the commerce element.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1591 requires proof that the victim actually engaged in a commercial sex act | Government: statute criminalizes recruiting/maintaining a minor to be caused to engage in commercial sex; conviction can rest on defendant's plan/intent | Wearing: conviction requires completed commercial sex act; here none occurred | Court: No. § 1591 covers defendants who knowingly plan and take steps to cause a minor to engage in commercial sex even if the act never occurs |
| Whether the statute's "in or affecting interstate commerce" element must attach only to the recruitment verb | Government: commerce element can be satisfied by the scheme as a whole (e.g., online ads); internet use and ad are integral to the offense | Wearing: "in or affecting" modifies only the recruitment verbs, so his recruitment (not the broader scheme) must affect commerce | Court: The scheme (including Craigslist ad using interstate channels) affected commerce; stipulation of interstate use sufficed to meet commerce element |
| Whether failure to charge attempt under § 1594(a) prejudices conviction under § 1591 | Government: not raised as central in opinion; conviction under § 1591 on stipulated facts stands on merits | Wearing: should have been charged with attempt; absence of attempt charge matters | Court: Declined to decide charge/Rule 31(c)(3) debate and resolved case on § 1591 merits instead |
| Scope of § 1591 relative to traditional state child-sex offenses | Government: § 1591 protects minors from being forced into sex trade; federal interest includes transnational/national effects | Wearing: conduct resembles state child sexual-abuse/prostitution, not classic human trafficking | Court: Overlapping state and federal jurisdiction is permissible; § 1591 covers even single-victim, domestic schemes that affect interstate commerce |
Key Cases Cited
- United States v. Feinberg, 89 F.3d 333 (7th Cir. 1996) (Rule 31(c)(3) and lesser-included/attempt issues)
- United States v. Adams, 789 F.3d 903 (8th Cir. 2015) (passive voice in § 1591 shows defendant need not personally cause the sex act)
- United States v. Jungers, 702 F.3d 1066 (8th Cir. 2013) (§ 1591 conviction does not require that the victim actually engage in a sex act)
- United States v. Mozie, 752 F.3d 1271 (11th Cir. 2014) (recruiting victims to engage in commercial sex supports § 1591 conviction even if acts never materialize)
- United States v. Willoughby, 742 F.3d 229 (6th Cir. 2014) (offense complete when defendant left victim knowing she would be caused to perform a sex act)
- United States v. Garcia-Gonzalez, 714 F.3d 306 (5th Cir. 2013) (reading § 1591 to require a completed sex act would nullify the statute's future-tense language)
- United States v. Todd, 627 F.3d 329 (9th Cir. 2010) (advertising across state lines can satisfy § 1591 commerce element)
- United States v. Smith, 792 F.3d 760 (7th Cir. 2015) (analogy to § 924(h): "will be used" does not require the subsequent crime to be completed)
- United States v. Campbell, 770 F.3d 556 (7th Cir. 2014) (prostitution business affecting interstate commerce via internet, telephone, out-of-state supplies/workers)
- United States v. Phea, 755 F.3d 255 (5th Cir. 2014) (use of phone/Internet linking prostitution activity across state lines satisfies commerce requirement)