This appeal and cross-appeal require us to review the convictions and sentence of Damion Bastón, an international sex trafficker nicknamed “Drac” (short for Dracula) who sometimes dressed up as a vampire, "complete with yellow contact lenses and gold-plated fangs. Bastón forced numerous women to prostitute for him by beating them, humiliating them, and threatening to kill them, and he pimped them around the world, from Florida to Australia to the United Aab Emirates.
The government argues that the district court erred when it refused to award restitution to a victim of Baston’s'sex trafficking in Australia. The district court ruled that an award of restitution for Baston’s extraterritorial conduct would exceed the power of Congress under Article I of the Constitution, U.S. Const. Art. I, and the Due Process Clause of the Fifth Amendment, id. Amend. V. To decide those issues, we must examine the scope of the Foreign Commerce Clause, id. Art. I, § 8, cl. 3, a question of first' impression in this Circuit, and the constitutionality of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 § 223, 18 U.S.C. § 1596(a)(2), a question of first impression in any circuit. We conclude that Congress has the constitutional authority to punish sex trafficking by force, fraud, or coercion that occurs overseas. We affirm Baston’s convictions and sentence, but we vacate his order of restitution and remand with an instruction for the district court to increase his restitution obligation.
I. BACKGROUND
Bastón immigrated to the United States from' Jamaica in 1989. After he was convicted of an aggravated felony, Bastón was ordered removed in 1998. But Bastón illegally reentered the country by purchasing the identity of a citizen of the United States. Under this assumed identity, Ba-stón opened bank accounts, started businesses, and rented apartments in Florida. He also obtained a Florida driver’s license and a United States passport. Bastón, traveled the world under the assumed identity, visiting Australia, New Zealand, Indonesia, the United Arab Emirates, Russia, China, arid Brazil,- among other places. Bastón funded his lavish lifestyle by forcing numerous women to prostitute for him.
Bastón learned how to be a pimp from Pimpology, a book written by Pimpin’ Ken. Consistent with the fifth law of Pim-pology, Bastón “prey[ed] on the weak” by recruiting women who ' were sexually abused as children. See Pimpin’ Ken, Pimpology: The 48 Laws of the Game 21 (2008). Bastón also forced his victims to refer to him as “Daddy,” see id., and took all of the money they earned, see id. at 20.
But Bastón was not always faithful to the laws ■ of Pimpology. Unlike Pimpin’ Ken who rejected" the use of violence, see id. at 2-3, Bastón punched, slapped, choked, arid threatened to kill his victims whenever they got “out of line.” And his victims took those threats ■ seriously. In addition to his Transylvanian tendencies, Bastón maintained a muscular physique aided by having his victims inject him with steroids on a regular basis. He also claimed to b'e a member of the Bloods gang. . ■
K.L., an Australian, met Bastón at' a .nightclub in Gold ..Coast, Australia, .when she was 24 years old. . She. dreamed of opening her own restaurant, and Bastón offered to help her. But K.L.,soon discovered that Baston’s real business was pimping women. Bastón sent K.L. to have,sex with clients throughout Australia at prices he determined. When Bastón was not in Australia, he had K.L. wire her earnings to his bank accounts in Miami., K.L. also prostituted for Bastón in the United Arab Emirates, Florida, and Texas.....
K.L. testified that Bastón beat her “often” and that -he threatened to hurt her
T.M. was 21 years old when she met Bastón. She was attending Georgia Southern University and needed money for college. She sent pictures of herself to one of Baston’s associates, who convinced her to come to Miami to work as an escort. After she arrived in Miami, T.M. met Ba-stón at a nightclub. He convinced her to work at various strip clubs in Miami, where she would meet clients and have sex with them at prices set by Bastón. T.M. also prostituted for Bastón in Texas and Australia.
Bastón often reminded T.M. that, if she ever left him, “it wouldn’t be good” for her or her family. One night, Bastón thought that T.M. was flirting too much with a client. He drove her to a secluded park and backhanded her so hard that she fell to the ground. He reminded T.M. that he could bury her in the park and no one would ever find her. On another occasion, Bastón thought T.M. was being “disrespectful,” so he wrapped a belt around her neck and made her beg for forgiveness while she crawled around on her hands and knees like a dog. T.M. mustered the courage to flee from Bastón when he temporarily left the country to visit Jamaica.
J.R. met Bastón in 2013. She was 21 years old at the time, living with her mother in Georgia and working at a Little Caesars restaurant. But J.R. dreamed of being a model. Bastón saw her modeling pictures on Instagram and began communicating with her over the Internet and phone. Bastón promised to help her modeling career and convinced her to take a bus from Georgia to Miami. When she arrived, Bastón forced her to prostitute for him at various strip clubs. J.R. also prostituted for him in Georgia, Louisiana, Texas, Tennessee, and New York. Bastón and J.R. typically stayed in hotels, most often a Marriott in Miami, and Bastón advertised her services on Backpage.com. Whenever J.R. was supposed to be working for Ba-stón, she had to call him “[e]very hour on the hour” and text him regularly.
If J.R. disobeyed his orders, Bastón would punch her in the face. One night, Bastón drove J.R. to a secluded parking lot and told her not to “fuck with him” or he would “chop ... [her] body up and have [her] thrown in the Everglades.” On another occasion, J.R. and Bastón got into an argument and, although J.R. was pregnant at the time, Bastón punched her in the side and threatened to stab her with a broken broom. Bastón later forced J.R. to have an abortion because he “didn’t want to have a baby by a punk bitch.”
Bastón was arrested at his mother’s house in New York. A grand jury indicted him on 21 counts, including sex trafficking of KL. by force, fraud, or coercion, 18 U.S.C. § 1591(a)(1), “in the Southern District of Florida, Australia, the United Arab Emirates, and elsewhere”; sex trafficking of T.M., id., “in the Southern District of Florida[] and elsewhere”; sex trafficking of J.R., id., “in the Southern District of Florida[] and elsewhere”; and several
The government called several of Ba-ston’s victims as witnesses, including K.L., T.M., and J.R. The women testified about how they met Bastón, how their relationships progressed, and how Bastón used violence and coercion to force them into prostitution. They also testified about how often they prostituted for Bastón and how much they charged their clients.
After the government presented its case-in-chief, Bastón filed a motion for a judgment of acquittal. He challenged the sufficiency of the evidence “on the indictment as a whole” by raising-specific arguments against each count. With respect to the charge of sex trafficking J.R., Bastón argued that he never coerced J.R. into prostitution: she was already a prostitute when he met her, and their relationship was nothing but amicable. The district court denied Baston’s motion.
Bastón called three witnesses: his sister, his mother, and himself. Baston’s defense to the counts of sex trafficking was that he did not coerce any of the victims into prostitution; they did it freely and voluntarily. Bastón argued that K.L. and T.M., for example, prostituted in Australia because it is legal there and they could make a lot of money doing it. With respect to the eounts of money laundering, Bastón argued in closing that' “money made in Australia from a legal brothel is legal” so “sending the money by ... wire transfer is not money laundering because there is nothing illegal about that money.”
After the close of all evidence,. Bastón renewed his motion for a judgment of acquittal “for the reasons that were previously indicated.” The district court again denied it. Before the district court instructed the jury, Bastón stated that he had “[n]o problems” with the instructions and was “in agreement” with them.
On the second day of deliberations, the jury submitted the following note to the district court:
If prostitution is legal in [Australia, and money was made, there by those means, would it be . illegal to transfer funds abroad? Specifieal[l]y the. United States? Which laws are we to consider?
The district court answered the jury’s question with the following supplemental instruction:
With respect to Counts 13-21 [the counts of money laundering]-, ... the unlawful activity in question is the recruiting, énticing, harboring, transportation, providing, obtaining, or maintaining 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 would be Used to cause that person to engage in a commercial sex act, in' violation of U.S. federal law, that is, 18 U.S.C. sections 1591 and 1596. Under U.S. law, such conduct is illegal, even if it took place outside the United States, if the defendant was present in the United States at the time he was charged. As always, you should consider all of my instructions as a whole.
Bastón objected to this instruction because it “involved a legal interpretation of the Statutes not includ[ed in] the Jury Instructions” and “introduced new theories to the case without the Defense being given the opportunity to argue [them].” The district court rejected these arguments.
The jury convicted Bastón of all 21 counts. The district court sentenced him to 27 years of imprisonment and a lifetime of supervised release. . It ordered a separate hearing on restitution.
The $78,000 award to K.L. included the money she earned while prostituting for Bastón in the United States, but excluded the $400,000 she earned while prostituting for Bastón in Australia. Bastón objected that a restitution award based on conduct that occurred wholly overseas would exceed the authority of , .Congress under .the Foreign Commerce Clause and the Due Process Clause. The district court sustained the objection by stating that “the government is overreaching and seeking amounts in restitution that aren’t supported by ... the constitution.”
II. STANDARDS OF REVIEW
Several standards of review govern this appeal and cross-appeal. We review the sufficiency of the evidence de novo. United States v. Hernandez,
Ill, DISCUSSION
We divide our discussion into two main parts. We address Baston’s appeal first. We then address the cross-appeal by the government.
A. Baston’s Appeal
Bastón raises three arguments on appeal. First, Bastón argues that the district court abused its discretion when it issued the supplemental jury instruction. Second,- Bastón contends that the district court should have, granted his motion for a judgment of acquittal because the government provided insufficient. evidence that his trafficking of J.R. was “in or affecting interstate ... commerce,” 18 U.S.C. § 1591(a)(1). Third, he contends that the district court used unreliable testimony to calculate his restitution obligations. We address each argument in turn.
1. The District Court Did Not Abuse Its Discretion by Issuing the Supplemental Jury Instruction. .
Bastón argues that the supplemental jury .instruction was an abuse of discretion for three reasons: it did not answer the jury’s question, it misled the jury, and it misstated the law. But Bastón has a problem: he made none of these arguments in the district court.
Because Bastón is challenging the supplemental jury instruction for the first time on appeal, we review his arguments for plain error. Fed.R.Crim.P. 52(b). The government argues that we should not review Baston’s arguments at all because he affirmatively agreed to the
We now turn to Baston’s three challenges to the supplemental jury instruction. None identifies an abuse of discretion by -the- district court. ■ “[T]he court’s- supplemental instruction[] w[as] sufficiently clear and responsive to the jury’s inquiry to fall squarely within the trial court’s range of discretion in this area.” United States v. Fuiman,
a. The Supplemental Jury Instruction Answered the Jury’s Question. , ,.
Bastón contends that the supplemental jury instruction did not answer the jury’s question. “When a jury makes explicit its difficulties,” the district court “should -clear them away with concrete accuracy.” Bollenbach v. United States,
The problem with Bastbn’s argument is that the jury did not ask about séx traf-fickiñg. The jury asked about money laundering: its note asked whether it would be “illegal to transfer funds” to the United States “[i]f- prostitution is legal in [A]ustralia[ ] and money was made there by those means.” (Emphases added.) And the note asked a legal question about choice of law — “Which laws are we to consider?” — not a factual question about the victims’ motives for prostituting in Australia. Tellingly, the jury’s question mirrored the choice-of-law • argument that Bastón made in his closing argument.
The district court answered this question, and its answer must-have been satisfactory because the jury asked no further questions about money laundering or sex trafficking after receiving the ..supplemental instruction.-1 “[T]hat there was no further- inquiry after the judge’s response to the note [ ] indicates that the judge’s response cleared the jury’s difficulty- with concrete accuracy.” United States v. Parr,
b. The Supplemental Jury Instruction Did Not Mislead the Jury.
Bastón argues that the supplemental jury instruction misled the jury by suggesting it no longer needed to find that Baston’s conduct was “in or affecting” commerce, 18 U.S.C. § 1591(a)(1), an essential element of sex trafficking. ■ The supplemental instruction essentially erased this element, according to Bastón, by not repeating it and by stating that he could be convicted so long as he “was present in the United States at the time he was charged.” We disagree.
The jury was not misled by the supplemental jury instruction because the supplemental-instruction said nothing about the elements of sex trafficking. As explained above, the jury’s note asked only about money laundering, and the supplemental instruction addressed only that offense. Indeed, the instruction began with a prefatory clause — “With respect, to Counts 13-21” — that specifically referred to the counts of money laundering. The jury would not have understood the supplemental instruction as saying anything about the elements of sex trafficking.
Nor did the supplemental jury instruction need to repeat the elements of sex trafficking. Although sex trafficking was the “specified unlawful activity” for the counts of money laundering, id. § 1956, “[a] conviction for money laundering does not require proof that the defendant committed the specific predicate offense,” United States v. De La Mata,
c. The Supplemental Jury Instruction Did Not Misstate the Law.
Bastón contends that the supplemental jury instruction misstated the law because it failed to explain that he could not be convicted of sex trafficking unless he knew his conduct was in or affecting commerce. We rejected this argument in United States v. Evans,
Even if Evans was wrongly decided (which we doubt), Bastón would still lose. As explained above, the jury’s note asked about money laundering, not sex trafficking. If the supplemental jury instruction had discussed the knowledge element of sex trafficking, it would have been nonresponsive and confusing. When a jury requests a supplemental instruction, the district court should answer “within the specific limits of the question presented.” United States v. Martin,
2. The District Court Did Not-Err When It Denied Baston’s Motion for a Judgment of Acquittal.
Bastón contends that his conviction of sex trafficking J.R. was supported by insufficient evidence. A defendant is guilty of sex trafficking by force, fraud, or coercion if he “knowingly in or affecting interstate or foreign commerce ... recruits, entices,. harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person ... knowing ... that means of force, threats of force, fraud, [or] coercion ... will be used to cause the person to engage in; a commercial sex act.” 18 U.S.C. § 1591(a)(1) (emphasis added). Bastón contends that his trafficking of J.R. was not “in or affecting” interstate commerce. The question for our review is “whether, after -viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found [this element] beyond a reasonable doubt.” Musacchio v. United States, — U.S. -,
The parties dispute our standard of review. The government argues that, because Bastón did not contest the commerce element in .the district court, we should review his challenge to the sufficiency of the evidence only for a “manifest miscarriage of justice.” Bastón contends that we should, review: his argument de novo because he raised, a “general” challenge to the sufficiency of the evidence in the district court. Neither party is. correct: we review Baston’s argument for plain error. Fed.R.Crim.P. 52(b).
Our review is not- limited- to correcting a “manifest miscarriage of justice,” contrary to the government’s argument. That standard does not apply unless the defendant makes nq challenge to the sufficiency of the evidence after the close of all evidence. See United States v. House,
But our review is not de novo either, contrary to Baston’s argument. He failed to raise the specific challenge to the sufficiency of the • evidence that he now raises on appeal.-- Other circuits have held that a defendant preserves all challenges to the sufficiency of the evidence if he raises a “general” challenge in the district
Turning to the merits, we conclude that a rational juror could have found, beyond a ‘reasonable doubt, that Baston’s trafficking of J.R, was “in or affecting” interstate commerce. Because there was no error, there was no plain error either. Franklin,
Baston’s conduct was in commerce. The phrase “in commerce” refers to the “channels” and the “instrumentalities” of interstate commerce. United States v. Ballinger,
Bastón argues that none pf his interstate conduct involved force, fraud, or coercion — the actus reus of the statute — and that his actual trafficking of J.R. occurred exclusively in Florida, > but we disagree. Bastón also trafficked J.R. in Louisiana, Texas,, Tennessee, and New York. And even if we were .to assume that Bastón trafficked J.R. exclusively in Florida, we have held That a defendant whose, “illegal acts ultimately occur intrastate” still acts “in commerce” if he “uses the channels or instrumentalities of interstate commerce to facilitate their commission.” Ballinger,
Alternatively; Baston’s conduct affected' commerce. The phrase “affecting commerce” is a term of art that “ordinarily signal[s] the broadest permissible exercise of Congress’ Commerce Clause power.” Citizens Bank v. Alafabco, Inc.,
3. The District Court Did Not Clearly Err or Abuse Its Discretion in Calculating Baston’s Restitution Obligations.
Baston’s' final argument' on appeal' is that the district court used unreliable evidence to calculate his restitution obligations to K.L., J.R., and T.M. The district court calculated the obligations based on the victims’ testimony at trial: it multiplied how often the victims said they worked by how much - they said they charged and then subtracted their estimated living expenses. Bastón does not challenge the math; instead, he complains that the victims’ testimony was unreliable because it- was not subjected to rigorous cross-examination. Bastón maintains that he had no occasion to cross-examine the victims about their earnings at trial because--their earnings were not relevant to his guilt or innocence. --Bastón contends that the district court should have forced the victims to testify -a second time at the restitution hearing so he could cross-examine them. This argument is meritless.
The district court did nbt clearly err or abuse its discretion by relying on the victims’ ‘ trial testimony. In calculating a victim’s losses, ‘district courts can rely on any evidence “bearing ‘sufficient indicia of reliability to support' its probable- accuracy.’” United States v. Singletary,
B. The, Cross-Appeal
•In its cross-appeal, ■ the government argues that the district court erred by re
Bastón argues that he does not owe restitution to K.L. for her prostitution in Australia because the jury did not convict him of that conduct, but that argument is baffling. The indictment charged Bastón with trafficking K.L. “in ,.. Australia,” and thé'jury convicted him of that offense. Plenty of evidence supported its verdict, especially K.L.’s lengthy testimony about how she prostituted for Bastón in Australia.
Bastón, also argues that the restitution statute cannot reach his extraterritorial conduct without exceeding Congress’s authority under Article I.of the Constitution or violating the Due Process Clause of the Fifth Amendment. Although Bastón frames his arguments as challenges to the constitutionality of the restitution statute, his arguments instead challenge the constitutionality of section 1596(a)(2), which confers extraterritorial jurisdiction over sex trafficking by force, fraud, or coercion. If section 1596(a)(2) is constitutional, then the restitution statute is constitutional. Cf. United States v. Belfast,
1. Section 1596(a)(2) Is a Valid Exercise of Congress’s Authority Under Article I of the Constitution.
“The powers of the legislature are defined, and limited,” Marburg v. Madison,
Bastón argues that Congress cannot enact extraterritorial laws under the Foreign Commerce Clause; it can do so only under the Offences Clause, id. cl. 10 (granting Congress the power “[t]o define and punish ... Offences against the Law of Nations”). Bastón also argues that section 1596(a)(2) exceeds the scope of the Foreign Commerce Clause. He is wrong on both accounts.
Congress’s power to enact extraterritorial laws is not limited to the Offences Clause. Bastón misreads our decision in United States v. Bellaizac-Hurtado,
Contrary to Baston’s argument, this Court has upheld extraterritorial criminal laws under provisions of Article I other than the Offences Clause. See, e.g., Belfast,
Article I gives Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. Art. I, § 8, cl. 3 (emphasis added). Neither this Court nor the Supreme Court has thoroughly explored the scope of the Foreign Commerce Clause. But many decisions have interpreted its neighbors: the Interstate Commerce Clause and the Indian Commerce Clause. For example, the Supreme Court has cautioned that the Interstate Commerce Clause “must be read carefully to avoid creating a general federal authority akin to the police power.” NFIB v. Sebelius, — U.S. -,
What little guidance we have from the Supreme Court establishes that the Foreign Commerce Clause provides
We need not demarcate the outer bounds of the Foreign Commerce Clause in this opinion. We can evaluate the constitutionality of section 1596(a)(2) by assuming, for the sake of argument, that the Foreign Commerce Clause has the same scope' as the Interstate Commerce Clause. In other words, Congress’s power under the Foreign Commerce Clause includes at least the power to regulate the “channels” of commerce between the United States and other countriés, the “instrumentalities” of commerce between the United States and other countries, and activities that have a “substantial effect” on commerce between the United States and other countries. Cf. Raich,
Section 1596(a)(2) is constitutional at the least as a regulation of activities that have a “substantial effect” on foreign commerce. Section 1596(a)(2) gives extraterritorial effect to section 1591, the statute that defines the crime of sex trafficking by force, fraud, or coercion. And Gongress had a “rational basis” to conclude that such conduct — even when it occurs' exclusively overseas — is “part of an economic ‘class of activities’ that have a substantial effect on ... commerce” between the United States and other countries. Cf. Raich,
Section 1591 was enacted as part of the Trafficking Victims Protection Act of 2000..... [T]he TVPA is part of a comprehensive regulatory scheme. The*669 ■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.” 22 U.S.C. § 7101(b)(1); see also id at ,§ 7101(b)(2), (4), (9), (11). .Congress found that trafficking, of persons has .an aggregate economic impact on interstate and foreign commerce, id § 7101(b)(12), and -we cannot say that this -finding is irrational.-
2. Section 1596(a)(2) Does Not Violate the Due Frocess Clause.
Bastón . argues that section 1596(a)(2) violates the Due Process Clause of the Fifth Amendment because he is,a noncitizen and his sex trafficking of K.L. occurred exclusively in Australia. The Due Process. Clause prohibits the exercise of extraterritorial jurisdiction over a defendant when. it would be “arbitrary or fundamentally unfair.” United States v. Ibarguen-Mosquera,
To determine whether an éxer-cise of extraterritorial jurisdiction satisfies due process, we have sometimes consulted international law, see, e.g., id.; United States v. Banjoko,
It is neither arbitrary nor fundamentally unfair to extercise extraterritorial jurisdiction over -Bastón. The Due Process Clause requires “at least some minimal contact between a State and the regulated subject.” Am. Charities for Reasonable Fundraising Regulation, Inc. v. Pinellas County,
Alternatively, exercising extraterritorial jurisdiction over Bastón is consistent with international law. The government invokes several principles of international law, but we will discuss only one. Under the “protective principle” of international law, a country can enact extraterritorial criminal laws to punish conduct that “threatens its security as a state or the operation. of its governmental functions” and “is generally recognized as a crime under the law of states that have reasonably developed legal systems.” Restatement (Second) of Foreign Relations Law § 33(1); accord United States v. Gonzalez,
Countries with developed legal systems recognize sex trafficking by force, fraud, or coercion as a crime. As Congress has explained, “The international community has repeatedly condemned slavery and involuntary servitude, violence against women, and other elements of trafficking, through declarations, treaties, and United Nations resolutions and reports.” 22 U.S.C. § 7101(b)(23). For example, more than 150 countries, including Australia, have-ratified the Palermo' Protocol on human trafficking, which requires its participants to establish sex trafficking by force, fraud, or coercion as a criminal offense. See Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, Arts. 5, 3(a), Nov. 15, 2000, 2237 U.N.T.S. 319, 344-45.
Sex trafficking by force, fraud; or coercion also implicates the national security of the United States. The political branches, who are the experts in these matters, see Holder v. Humanitarian Law Project,
Congress has the power to require international sex traffickers to pay restitution to their victims even when the sex trafficking occurs exclusively in another country. Bastón must pay restitution to K.L. for her prostitution in Australia. The district court erred when it reduced her restitution award.
IV. CONCLUSION
We AFFIRM Baston’s judgment of convictions and sentence and VACATE the order of restitution and REMAND -with an instruction to increase the award of restitution for KL.’s prostitution in Australia.