United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE.
settlement of the court's primary instructions at the
pretrial conference, defense counsel orally objected to the
use of the word “trafficking” in describing the
offense charged in count I. The defendant argues using the
phrase “attempted commercial sex trafficking” in
the instructions creates a prejudicial impression the
defendant was allegedly engaged in multiple offenses of
recruiting or soliciting a minor for a commercial sex act and
by that conduct became a trafficker. Defendant's oral
argument cited to Florida Department of Revenue v.
Piccadilly Cafeterias, Inc., 554 U.S. 33, 47 (2008), as
authority for his argument that the title of the statute
cannot be substituted for the text of the statute which
actually defines the offense. For that reason, defendant
contends at the very least the word “trafficking”
should be removed from the instructions.
government objects to the removal of the word
“trafficking.” (Docket 34 at p. 1). The
government argues Florida Department of Revenue is
not the authority to remove “[t]he statutory title,
Commercial Sex Trafficking, ” and to differentiate the
separate offenses as merely count I and count II.
Id. at p. 2. The government submits jury confusion
would occur. It contends “[a]lthough penalizing
different criminal conduct, Commercial Sex Trafficking and
Enticement of a Minor Using the Internet do contain
overlapping concepts. Without the ability to refer to each
crime by name, the jury may become confused regarding which
charge is which.” Id. at pp. 2-3.
reply brief, the defendant objects “to use of the term
‘sex trafficking' because it is not part of the
offense statutes under which he is charged and carries an
extreme pejorative connotation giving rise to significant but
easily avoidable prejudice to the Defendant.” (Docket
35 at p. 1). Defendant suggests that instead of the current
title, count I should be described as “attempted
enticing a child to engage in a commercial sex act” or
the “commercial sex act count . . . .”
Id. Defendant contends “sex trafficking [is
identified] with forced prostitution, sexual enslavement, and
sexual exploitation by forced labor or services . . . [or] a
crime when women, men and/or children are forcefully involved
in commercial sex acts.” Id. at p. 2. He
submits the charges against him “do not fit the
commonly understood meaning of ‘sex trafficking'
” Id. For these reasons, defendant asserts the
phrase is highly prejudicial and “the term ‘sex
trafficking' [should] not be used in any of the
instructions . . . and . . . the United States and its
witnesses [should] be prohibited from using the term during
their arguments and testimony at trial.” Id.
at pp. 3-4.
indictment in count I charges the defendant with attempted
commercial sex trafficking of children in violation of 18
U.S.C. §§ 1591(a)(1), 1591(b)(2) and
1594(a). (Docket 15 at p. 1). The court's
proposed primary instructions incorporate that phrase in
identifying the offense charged in count I.
in the text of § 1591 expressly limits its provisions to
suppliers or suggests Congress intended categorically to
exclude purchasers or consumers (johns) of commercial sex
acts whose conduct otherwise violates § 1591.”
United States v. Jungers, 702 F.3d 1066, 1070 (8th
Cir. 2013). “To the contrary, the expansive language of
§ 1591 ‘criminalizes a broad spectrum' of
conduct relating to the sex trafficking of children.”
Id. “Section 1591(a)(1) makes no distinction
between suppliers or purchasers of commercial sex acts with
children-it prohibits acts of trafficking regardless of the
identity or status of the trafficker.” Id. at
1071. “[T]he TVPA definition of ‘sex
trafficking'- broadly defined as ‘the recruitment,
harboring, transportation, provision, or obtaining of a
person for the purpose of a commercial sex
act'-readily includes the actions of a purchaser
whose sole purpose is obtaining a child for sex.”
Id. at 1072 (emphasis in original) (citing 22 U.S.C.
§ 7102(9)). In conclusion, the Junger court
The unambiguous text of § 1591 makes no distinction
between suppliers and purchasers of commercial sex acts with
children, and the defendants have failed to persuade us
Congress intended a supplier-only limitation or a purchaser
exception in § 1591 that Congress never stated. We hold
§ 1591 applies to a purchaser of commercial sex acts who
violates the statute's terms.
Id. at 1072.
court finds defendant's argument without merit. The
primary instructions will remain as proposed and otherwise as
settled during the pretrial conference.
on the above analysis, it is
that defendant's objection to the court's proposed
primary instructions is denied.