Id. (citation omitted) (emphasis added). In United States v. Lindsay , 931 F.3d 852, 864 (9th Cir. 2019), we applied Lukashov and rejected a challenge to a jury instruction delineating the intent requirements for a conviction under 18 U.S.C. § 2423. In that case, the district court instructed the jury that:
For both statutes, the government must prove that the improper purpose was a "dominant, significant, or motivating purpose" of the defendant's travel. Lukashov, 694 F.3d at 1118-19 (discussing § 2241(c)); United States v. Lindsay, 931 F.3d 852, 864 (9th Cir. 2019) (discussing § 2423(b)); see also United States v. Flucas, 22 F.4th 1149, 1156-57 (9th Cir.) (noting that although the court in Lindsay reviewed the district court for plain error, the court "found none"), cert. denied, — U.S. —, 143 S. Ct. 320, 214 L.Ed.2d 143 (2022)
Also helpful on this score are several appellate court decisions addressing Foreign Commerce Clause challenges to 18 U.S.C. § 2423(c) and § 1591(a)(1). See, e.g., United States v. Park, 938 F.3d 354, 370-74 (D.C. Cir. 2019); United States v. Lindsay, 931 F.3d 852, 860-63 (9th Cir. 2019); United States v. Durham, 902 F.3d 1180, 1192-1217 (10th Cir. 2018); United States v. Baston, 818 F.3d 651, 666-669 (11th Cir. 2016); United States v. Bollinger, 798 F.3d 201, 20819 (4th Cir. 2015); United States v. Al-Maliki, 787 F.3d 784, 790-94 (6th Cir. 2015); United States v. Pendleton, 658 F.3d 299, 305-11 (3d Cir. 2011); United States v. Bianchi, 386 Fed.Appx. 156, 160-62 (3d Cir. 2010); United States v. Clark, 435 F.3d 1100, 1110-17 (9th Cir. 2006). To analyze such challenges, most of these courts relied upon the Interstate Commerce Clause framework announced in United States v. Lopez, 514 U.S. 549 (1995).
All circuit courts to have considered this issue, save us, have found that the Foreign Commerce Clause provides Congress the power to enact § 2423(c). See Park , 938 F.3d at 375 ; United States v. Lindsay , 931 F.3d 852, 863 (9th Cir. 2019), cert. denied , ––– U.S. ––––, 140 S. Ct. 1288, 206 L.Ed.2d 268 (2020) ; Durham , 902 F.3d at 1216 ; Bollinger , 798 F.3d at 219 ; Pendleton , 658 F.3d at 308. As discussed above, there has not been universal agreement on the proper reach of the Foreign Commerce Clause, especially with respect to the framework established in Interstate Commerce Clause cases.
See United States v. Lindsay, 931 F.3d 852, 862-863 (9th Cir. 2019); see also United States v. Al-Maliki, 787 F.3d 784, 794 (6th Cir. 2015) (“No circuit court has declared § 2423(c) unconstitutional.”).
He did not preserve these claims below, so we review them for plain error.United States v. Lindsay , 931 F.3d 852, 864 (9th Cir. 2019). To be plain, an error must be "clear" or "obvious."
"If Americans believe that traveling to a particular foreign country includes the opportunity for unregulated, non-commercial illicit sexual conduct, they may travel to that country when they otherwise would not ...." United States v. Lindsay , 931 F.3d 852, 863 (9th Cir. 2019) ; see also United States v. Pendleton , 658 F.3d 299, 311 (3d Cir. 2011). The "Constitution does not envision or condone" such "a vacuum" of power in which "citizens may commit acts abroad that would clearly be crimes if committed at home."
Circuit Courts analyzing § 2423 typically uphold it pursuant to Congress's Foreign Commerce Clause powers, Congress's treaty power, or both. SeeUnited States v. Park , 938 F.3d 354 (D.C. Cir. 2019) (finding criminalization of commercial and non-commercial sex acts with minors under § 2423(c) is necessary and proper for the implementation of the Optional Protocol); United States v. Lindsay , 931 F.3d 852 (9th Cir. 2019) (finding § 2423(c) did not exceed Congress's authority under the Foreign Commerce Clause as applied to non-commercial sexual abuse of a minor); United States v. Al-Maliki , 787 F.3d 784 (6th Cir. 2015) (upholding conviction under non-commercial prong of § 2423(c) under plain error review); United States v. Pendleton , 658 F.3d 299, 311 (3rd Cir. 2011) (holding § 2423(c) is a valid exercise of Congress's power to regulate "channels of foreign commerce" under the Foreign Commerce Clause). Mr. Rife argues that neither provides Congress the authority to criminalize conduct like that at issue here.
United States v. Flucas, 22 F.4th 1149, 1164 (9th Cir. 2022). The criminal purpose need not be the "sole purpose" of the interstate travel, id. at 1155, nor a but-for cause of the transportation, United States v. Lindsay, 931 F.3d 852, 864 (9th Cir. 2019) (analyzing 18 U.S.C. § 2423(b)).
Similarly, in United States v. Lindsay , we found no "obvious error" where the district court instructed the jury to apply the "dominant, significant, or motivating" standard to an offense prohibiting travel "for the purpose of" engaging in illicit sex. 931 F.3d 852, 864 (9th Cir. 2019). In sum, we conclude that the jury was properly instructed on Count 1.