USA v. Eugene Wearing
Filing
Filed opinion of the court by Chief Judge Wood. AFFIRMED. Diane P. Wood, Chief Judge; William J. Bauer, Circuit Judge and Joel M. Flaum, Circuit Judge. [6856827-1] [6856827] [16-3312]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐3312
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
EUGENE WEARING,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:14‐CR‐00122‐001 — William M. Conley, Judge.
____________________
ARGUED JULY 7, 2017 — DECIDED JULY 26, 2017
____________________
Before WOOD, Chief Judge, and BAUER and FLAUM, Circuit
Judges.
WOOD, Chief Judge. Hoping to earn some money as a pimp,
Eugene Wearing recruited a 15‐year‐old acquaintance, KV #1,
to earn money as a prostitute. He posted a Craigslist ad with
her photo and twice tried to arrange a rendezvous with a cli‐
ent. But both assignations fell through, and soon afterward
KV #1 had second thoughts and alerted her mother, who
called the authorities. At a bench trial Wearing was convicted
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of violating 18 U.S.C. § 1591, which makes sex trafficking of
children a federal crime if done “in or affecting interstate or
foreign commerce.” In this appeal Wearing challenges only
the sufficiency of the evidence. He argues that the govern‐
ment was required to, but did not, prove two critical points:
(1) that KV #1 had engaged in a “commercial sex act,” and
(2) that his recruitment of the victim (as opposed to the
scheme as a whole) affected commerce. We find no merit in
either argument, and so we affirm the conviction.
I
The bench trial was conducted entirely through a written
stipulation. In it, Wearing admitted that he suggested to
KV #1 that she could earn some money by performing oral
sex. He drove her to a hotel and had her “audition” on him,
after which he scheduled a client visit. But police were at the
hotel for an unrelated matter, and no sexual contact took place
because Wearing and the client felt that it was too risky. Later
Wearing photographed KV #1 in her underwear and posted
the pictures on Craigslist. He gave KV #1 a tour of an apart‐
ment where he said “business” would take place, explaining
that she would “giv[e] blowjobs” or, “if she wanted,” have
intercourse with clients, though no clients joined them at that
time. Wearing later took KV #1 back to the apartment; she
asked to go home, but he refused, saying that she had com‐
mitted to their arrangement and needed to do what he
wanted. He then had intercourse with her and sent an e‐mail
inviting a client (who never responded) to join them at the
apartment. The parties stipulated that before her mother con‐
tacted authorities, KV #1 had not engaged in a “commercial
sex act,” which 18 U.S.C. § 1591(e)(3) defines as “any sex act,
on account of which anything of value is given to or received
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by any person.” The parties also stipulated that the Craigslist
posting used channels of interstate commerce.
Wearing’s only defenses at trial were that a conviction un‐
der section 1591 requires proof that the victim actually en‐
gaged in a commercial sex act, and that the recruitment itself
had to have been (but was not) accomplished through means
affecting commerce. The district court rejected both points. It
held that section 1591 can be violated even if a commercial sex
act is never consummated, and it concluded that all of a de‐
fendant’s actions, not just his efforts to recruit child prosti‐
tutes, are relevant in assessing whether the statute’s com‐
merce element is satisfied. Although violations of sec‐
tion 1591 typically are described as “human trafficking”—the
label the government used when describing Wearing’s
crime—the district court sentenced him to 180 months’ im‐
prisonment, well below the guidelines range of 324 to
405 months. The court thought that “child abuse” more accu‐
rately describes Wearing’s offense and observed that “it’s
hard for me to see this as a classic case of human trafficking.”
II
In this court, Wearing renews his argument that in order
to convict under section 1591 the government must prove that
the victim actually engaged in a commercial sex act. If the
government had included a charge of attempt to traffic under
18 U.S.C. § 1594(a), which carries the same penalties as the
completed offense under section 1591, we would have little to
do. Wearing’s stipulation leaves no doubt that he completed
every step necessary to bring about a commercial sex transac‐
tion between KV #1 and the client at the hotel; only the fortu‐
itous presence of the police interrupted the crime. Moreover,
we recognize that Federal Rule of Criminal Procedure 31(c)(3)
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says that a defendant may be found guilty of “an attempt to
commit an offense necessarily included in the offense
charged, if the attempt is an offense in its own right.”
See also United States v. Feinberg, 89 F.3d 333, 339 (7th Cir.
1996) (explaining that lesser‐included offenses, such as at‐
tempt, need not appear in indictment, so long as any depar‐
ture from the strict terms of the indictment would neither sur‐
prise nor prejudice the defendant). It is possible that
Rule 31(c)(3) is satisfied here, since section 1594(a) provides
that whoever “attempts to violate section … 1591 shall be
punishable in the same manner as a completed violation of
that section.” But no other circuit has excused the failure to
charge under section 1594(a) in a situation such as this one.
Rather than wade into a debate about charging requirements,
surprise, prejudice, and the like, we prefer to turn directly to
the merits.
We begin with the language of the statute. At the time of
the crime, section 1591 read, in relevant part:
(a) Whoever knowingly—
(1) in or affecting interstate or foreign com‐
merce … recruits, entices, harbors, trans‐
ports, provides, obtains, or maintains by any
means a person …
…
knowing, or in reckless disregard of the fact,
that … the person has not attained the age of
18 years and will be caused to engage in a
commercial sex act, shall be punished as pro‐
vided in subsection (b).
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Wearing argues that the use of the future tense of the passive
voice in the phrase “will be caused to engage in a commercial
sex act” implies that Congress intended the completed act to
be a necessary element of the crime. But his suggestion re‐
quires us to ignore the fact that Congress chose the future
tense—a choice that is inconsistent with the notion that a com‐
mercial sex act must already have happened before a viola‐
tion can be shown. A likelier explanation is that Congress
used the passive voice as a way of signaling that the defend‐
ant was not entitled to a pass if, instead of personally causing
the victim to engage in a sex act, the defendant allowed a cli‐
ent or a codefendant to do so. See United States v. Adams,
789 F.3d 903, 906–07 (8th Cir. 2015) (affirming mother’s con‐
viction under section 1591 where a rational jury could have
inferred that, in exchange for pills, she took daughter to friend
knowing he would order daughter to engage in sex act);
United States v. Jungers, 702 F.3d 1066, 1073 & n.6 (8th Cir.
2013) (concluding that use of passive voice in section 1591 “re‐
flects ‘agnoticism … about who’ causes the child to engage in
the commercial sex act” (quoting Watson v. United States,
552 U.S. 74, 80 (2007)). Wearing’s argument that “will” im‐
plies certainty because it is more definite than “may” or
“might” is inaccurate—the amicus curiae brief filed in this case
from a professional linguist even observes that “[i]n its central
function of referencing the future, ‘will’ is vague over a range
of degrees of certainty.”
The more logical reading of the phrase “knowing … the
person … will be caused to engage in a commercial sex act” is
that it describes the acts that the defendant intends to take—
that is, that he means to “cause” the minor to engage in com‐
mercial sex acts. That is the interpretation other circuits have
adopted; they have concluded that the statute uses the future
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tense to describe the defendant’s plan for the victim at the
time he recruits her. See, e.g., United States v. Mozie, 752 F.3d
1271, 1286 (11th Cir. 2014) (accepting evidence that defendant
recruited victims “to engage in commercial sex acts,” even
though those acts never materialized, as sufficient to support
a section 1591 conviction); United States v. Willoughby,
742 F.3d 229, 241 (6th Cir. 2014) (concluding that section 1591
offense was complete when defendant left victim at client’s
home knowing she would be caused to perform a sex act);
United States v. Garcia‐Gonzalez, 714 F.3d 306, 312 (5th Cir.
2013) (reading section 1591 to require completed sex act as es‐
sential element “erases the meaning of ‘will be’ from” the stat‐
ute); Jungers, 702 F.3d at 1074 (conviction under section 1591
does not require “engaging in a sex act”); United States v. Todd,
627 F.3d 329, 334 (9th Cir. 2010) (explaining that section 1591’s
knowledge element means that, in committing offense, de‐
fendant plans to force the victim to engage in a commercial
sex transaction); United States v. Corley, No. 14‐1709, 2017 WL
549021, at *3 (2d Cir. Feb. 9, 2017) (rejecting contention that
section 1591 requires government to prove victim actually
performed commercial sex act).
Similar wording appears in 18 U.S.C. § 924(h), which pro‐
hibits transferring a firearm “knowing that such firearm will
be used to commit” a crime of violence or drug trafficking
crime. The words “will be used” cannot logically mean that a
completed crime of violence is an element of section 924(h). If
a gun‐shop customer asks to buy a gun suitable for shooting
a public official, the gun dealer who sells that firearm is guilty
of the substantive offense, not just an attempt, if police stop
the customer on his way to shoot the official. See United States
v. Smith, 792 F.3d 760, 763, 768 (7th Cir. 2015) (affirming sec‐
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tion 924(h) conviction where defendant had sold firearms ex‐
pecting that purchaser, an undercover agent posing as drug
dealer, would smuggle guns to Mexico). The gun dealer in the
hypothetical has completed every step of the crime. There is
no reason to believe that Congress intended a conviction to
turn on the customer’s success in carrying out the shooting.
Similarly, Wearing completed his role under section 1591; one
client’s failure to show up and the other’s change of heart say
nothing about Wearing’s own actions.
It is true, as amicus points out, that section 1591 also re‐
quires knowledge of the victim’s status as a minor. Amicus
reasons that this means that at some point prior to the indict‐
ment, the commercial sex act must be completed. But it is one
thing to know that a person “is” a minor, and quite another to
know that the defendant “will” bring about an action in the
future. In that critical sense, the two elements of the offense
differ. The statute requires that the defendant recruit the vic‐
tim knowing her current age and knowing his plan to prosti‐
tute her after the recruitment. Nothing in the statute signals
that the plan must be fully carried out before conviction is
possible.
Wearing next asserts that the government failed to prove
that his actions affected interstate or foreign commerce as re‐
quired by section 1591. Based on the statute’s wording, he ar‐
gues that “in or affecting” commerce modifies only the verbs
immediately following the reference to interstate commerce—
that is, “recruits, entices, harbors,” etc.—and not the remain‐
der of the statute. As a matter of first principle, one could im‐
agine this reading of the statute, but we have not interpreted
it in such a cramped way. In United States v. Campbell, we con‐
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cluded that a prostitution business affected interstate com‐
merce by using Internet and telephone services from out‐of‐
state companies, advertising online, purchasing out‐of‐state
supplies, and employing out‐of‐state workers. 770 F.3d 556,
574–75 (7th Cir. 2014); see also United States v. Phea, 755 F.3d
255, 263 (5th Cir. 2014) (noting that defendant had purchased
phone for victim and included phone number in Internet ad‐
vertisement, clients contacted victim at that number, and de‐
fendant directed victim to have intercourse with prostitute
from another state); Todd, 627 F.3d at 333 (concluding that sex
trafficking advertised across state lines affected interstate
commerce). Notably, all of these cases were decided before
Congress amended the list of verbs in section 1591(a)(1) in
2015 to include “advertising” expressly. Wearing does not re‐
spond directly to these decisions; instead he cites others in
which the commerce link was too attenuated from the defend‐
ant’s illegal activity to support federal prosecution. The latter
decisions do not help him, because his assertion is that section
1591’s commerce requirement is linked to only one element of
the offense—the recruitment. But there is more to the offense:
the scheme to prostitute the minor. Wearing stipulated that
the Craigslist advertisement—an integral part of his scheme
to prostitute KV #1—affected interstate commerce. This pre‐
cludes him from successfully maintaining that the effect of his
actions on interstate commerce is so distant from his illegal
activity that his actions do not add up to a federal crime.
The district court thought that this was not the classic case
of human trafficking as described in the statement of purpose
of the Trafficking Victims Protection Act, of which sec‐
tion 1591 is part. We are not so sure; unfortunately, trafficking
happens, one victim at a time, at the domestic level just as it
does internationally. Congress indicated in the statement of
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purpose that it was concerned about the transnational and na‐
tional effects of human trafficking, the role of sophisticated
criminal enterprises, and the violence and isolation trafficking
visits on poor women and children. 22 U.S.C. § 7101. Wearing
sees his crime as indistinguishable from sexual abuse of a
child or child prostitution, both punishable under the laws of
Wisconsin, where this offense occurred. See WIS. STAT.
§§ 948.02, 948.08. Only one victim was involved, Wearing did
not isolate KV #1 from her family, and he did not transport
her to another state or country.
There is no reason why Wisconsin and the federal govern‐
ment could not both have addressed this problem: overlap‐
ping state and federal laws are nothing new. Section 1591 is a
statute designed to protect minors—even one minor—from
forced participation in the sex trade. The facts to which Wear‐
ing stipulated are sufficient to support his conviction and the
district court made no error of law, and so we AFFIRM the
judgment of the district court.
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