When the FBI Comes Calling…®
HUMAN TRAFFICKING AND SMUGGLING (continued)
Trafficking in Persons (continued)
Trafficking For Sexual Activity (continued)
Case Law Interpreting Section 1591.
Most cases that have mentioned 18 U.S.C. § 1591 do so to use the definition of "criminal sex act," in conjunction with a violation of another section of the United States Code. See Singh v. Ashcroft, 383 F.3d 144, 148 n.1 (3rd Cir. 2004) (in determining whether defendant committed aggravated felony, court mentioned section 1591 is included in definition); United States v. Murrell, 368 F.3d 1283, 1289 n. 7 (11th Cir. 2004) (in determining sentencing enhancement, court quotes section 1591's definition of "commercial sex act").
United States v. Kum, 309 F. Supp. 2d 1084 (E.D.Wis. 2004).
Kum is primarily about wildlife smuggling and money laundering, but the facts of the case, and the judge's discussion of section 1591 make this a very compelling case to discuss.The defendant was a Singaporean citizen, residing in Thailand. He was charged with, and pleaded guilty to, among other things, conspiring to smuggle rare and endangered tortoises from Thailand to the United States and Europe. Kum at 1086. He was arrested because one of the people who received the defendant's shipments was caught by federal agents and agreed to cooperate with the government, allowing access to emails between himself and the defendant. The defendant was arrested when he made a trip to Florida, met with undercover agents, and described his smuggling practices.
Section 1591 becomes involved because the government wanted to use emails-in which the defendant discussed his desire to start a prostitution scheme where Thai "girls" would be smuggled into Singapore-as a basis for upward departure in sentencing. Kum at 1089-92. The judge agreed, noting that the emails should a conspiracy to traffic in sexual activity by force, fraud, or coercion, as is required in section 1591, but that the use of the term "girls" could have also meant women over the age of 18. Id. at 1092.
While the defendant was not convicted of a violation of section 1591, it is rather amazing that a circuit judge in Wisconsin enhanced the sentence of a Singaporean citizen based on emails of conduct that would have occurred between Thailand and Singapore. It also remains to be seen whether the government could have sustained a prosecution in the United States under section 1591 based on conduct that happened entirely outside of the United States. Some recent case law suggests that perhaps the government could do so. See United States v. Clark, 315 F. Supp. 2d 1127, 1131 n.7 (W.D. Wash. 2004) (suggesting in dicta that child prostitution is universally condemned and therefore subject to universal jurisdiction), discussed in conjunction with 18 U.S.C. § 2423.
18 U.S.C. § 2421.
The Crime
Under section 2421, part of the Mann Act (also known as the White Slave Traffic Act), it is a crime to "knowingly" transport, or attempt to transport, "any" individual:
- with the intent that that individual engage
- in prostitution, or
- in any sexual activity for which any person can be charged with a criminal offense. 18 U.S.C. § 2421.
The Punishment Jurisdiction Case Law Interpreting Section 2421 Wyatt v. United States, 362 U.S. 535 (1960). United States v. Holland, 381 F.3d 80 (2d Cir. 2004). United States v. Castaneda, 239 F.3d 978 (9th Cir. 2001). In a later case, United States v. Williams, 291 F.3d 1180 (9th Cir. 2002), a vulnerable victim enhancement was allowable when one of the victims of a Mann Act violation was "particularly vulnerable because of her 'mental condition,' which followed from the facts that she had been raped by her mother's boyfriend when she was seven and that her mother had a serious problem with chemical dependency." Williams at 1196.
In this case, which primarily concerned the forced testimony of a spouse against her husband, involved a man who transported his wife across state lines for purposes of prostitution. Wyatt at 525-26. The primary purpose of the Mann Act is to protect women who are weak from men who are bad. Id. at 530. Because of this "supposition that the women with whom [the Act] sought to deal often had no independent will of their own, and … in effect … must be protected against themselves," the Court held that a woman could be ordered to testify against her spouse. Id.
In Holland, the defendant, a madam, recruited young women, some of them under 18, in Vermont and had them transported to New York. Holland at 80. Some of the women went by bus, although some were driven by the defendant's accomplices. Id. She was convicted and on appeal, she challenged the application of the phrase "knowingly transports any individual" since she did not personally drive the women she recruited into prostitution. Id. at 86. The court rejected her argument. "We cannot agree with the proposition that an operator of a prostitution ring may escape liability by accepting a bus company's offer to 'Leave the Driving to Us.' Inviting travel, purchasing tickets, and accompanying individuals on trips is more than sufficient to establish that a defendant 'transport[ed]' the individuals within the meaning of [s]ection 2421." Id. at 86-87.
In Castaneda, the defendant pleaded guilty to recruiting and transporting a woman from the Philippines to work in her Mariana Islands night club for purposes of criminal sexual activity. Castaneda at 979. At sentencing, the district judge imposed a vulnerable victim enhancement, stating that the women recruited were particularly vulnerable due to their economic situation. Id. at 979-80. The defendant appealed the imposition of the vulnerable victim enhancement. The appeals court stated that the "theory behind the vulnerable victim enhancement is that conduct against the particular victim or group of victims is more blameworthy than the conduct of other offenders and thus deserves greater punishment." Id. at 980. Citing United States v. Sabatino, 943 F.2d 94, 103 (1st Cir. 1991) the court determined that the vulnerable victim enhancement did not apply because the "'vulnerable'" factors were typical of the victims the Mann Act was designed to protect, and therefore that an enhancement was inappropriate. Castaneda at 981-82. This is the case even when, as here, the victim is transported internationally. "[T]he legislative history of the Mann Act makes it clear that it was precisely such international victims of prostitution whose problems underlay the passage of the Act and who were the very class of victims that the Act's provisions were designed to protect." Id. at 983.