Baston: Foreign Commerce power to apply criminal law extraterritorially is as broad as Interstate Commerce power

In U.S. v. Baston, No. 14-14444 (March 24, 2016), the Court affirmed the convictions and sentence of a defendant convicted of sex trafficking by force, and money laundering the proceeds of this sex trafficking, and, on a government cross-appeal, reversed the district court’s decision not to award restitution to an Australian sex-trafficking victim. On plain error review, the Court found no error in the district court’s response to the jury’s supplemental question during deliberations, that asked whether it would be illegal to transfer funds if prostitution is legal in Australia and money was made there by those means. The Court found that this question asked about money laundering, not sex trafficking. The district court’s answer must have been satisfactory, because the jury asked no further questions after receiving the supplemental instruction. The Court also rejected Baston’s challenge to the sufficiency of the evidence regarding whether his conduct was “in or affecting” interstate commerce. Reviewing the argument for plain error because Baston failed to raise this specific challenge in the district court, the Court found that even if Baston trafficked this victim only in Florida, his use of phones, the Internet, hotels and buses facilitated his trafficking, so his conduct was “in commerce.” Turning to the government’s cross-appeal, the Court agreed with the government that the defendant had to pay restitution to a victim even if the prostitution occurred overseas. The Court noted that in U.S. v. Bellaizac-Hurtado, it had held that the extraterritorial application of a criminal law exceeded Congress’ authority under the Offences Clause of Article I of the Constitution. But the Court noted that it might have reached a different result in Bellaizac-Hurtado if the government had relied on Article I’s Foreign Commerce Clause. “[T]he Foreign Commerce Clause provides Congress a broad power.” The Foreign Commerce Clause has at least “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 activities that have a ‘substantial effect’ on commerce between the United States and other countries.” Here, Congress had a “rational basis” to conclude that sex trafficking by force “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.” Accordingly, the extraterritorial application of the sex trafficking statute is a constitutional exercise of Congress’s authority under the Foreign Commerce Clause.