United States v. Al-Maliki

• Decision Date: 27 May 2015
• Docket Number: No. 14–3386.,14–3386.
• Citation: 787 F.3d 784
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Malek M. AL–MALIKI, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

787 F.3d 784

UNITED STATES of America, Plaintiff–Appellee

v.Malek M. AL–MALIKI, Defendant–Appellant.

No. 14–3386.

United States Court of Appeals, Sixth Circuit.

Argued: March 5, 2015.

Decided and Filed: May 27, 2015.

ARGUED:Travis Alan Rossman, Rossman Law, PLLC, Barbourville, Kentucky, for Appellant. Daniel R. Ranke, United States Attorney's Office, Cleveland, Ohio, for Appellee. ON BRIEF:Travis Alan Rossman, Rossman Law, PLLC, Barbourville, Kentucky, for Appellant. Daniel R. Ranke, United States Attorney's Office, Cleveland, Ohio, for Appellee.

Before: GIBBONS, SUTTON, and McKEAGUE, Circuit Judges.

McKEAGUE, J., delivered the opinion of the court in which SUTTON, J., joined, and GIBBONS, J., joined except for Part II.B.1. GIBBONS, J. (pg. 797), delivered a separate opinion concurring in part and in the judgment.

OPINION

McKEAGUE, Circuit Judge.

A jury of his peers found Malek al-Maliki guilty of a heinous crime: sexually abusing his own two children, ages twelve and three. Al–Maliki challenges several aspects of his conviction and sentence. His constitutional challenge to his conviction is a close call, but it ultimately fails under plain-error review. The rest of his challenges fail as well. We affirm.

I

Iraq native Malek al-Maliki had his first child, John Doe # 1, with Hinda al-Rhannai in 1998. Two years later, the couple had a civil marriage and al-Maliki (but not his wife) became a United States citizen. Their physical union did not last long. Although they remained legally married, the couple has been separated since 2000 or 2002. Despite the separation, they had one more child, John Doe # 2, in 2007. Since around 2000, al-Maliki has lived alone on the west side of Cleveland, Ohio, and al-Rhannai has lived in Morocco and then Syria with the two sons.

Al–Maliki visited his family on a few occasions over the years. The United States claims that during one trip from August to November 2010, he sexually abused his two children (then ages twelve and three), violating 18 U.S.C. §§ 2423(c) and (e). A grand jury indicted him under that statute, which at the time punished any United States citizen “[1] who travels in foreign commerce, and [2] engages in any illicit sexual conduct,” which includes noncommercial sexual acts with a minor, or any attempts to do the same.

Al–Maliki denied all of the charges, and a trial began. The jury heard from Mark Goldrup, a vice consul at the U.S. Embassy in Damascus, Syria. He testified that he put al-Rhannai and her children in a safe shelter after al-Rhannai came to the embassy seeking assistance for injuries consistent with domestic abuse. The jury also heard from Department of Homeland Security Special Agent Gabriel Hagan. She testified that she observed the sons' open affection toward their mother, but that al-Maliki insisted his wife abused the sons. She also testified about a live interview she saw of John Doe # 1, where the boy cried and hid his face while struggling to recount the sexual abuse (the “sin,” he called it) that he suffered.

Most critically, the jury heard John Doe # 1 himself. He told of the horrible things that his father did to him on several occasions, including during al-Maliki's August–to–November 2010 trip to Syria. Early in the trip, John Doe # 1 woke abruptly to his mother screaming at al-Maliki for touching the boy's upper thigh while he slept. Al–Maliki “[did not] care,” exclaiming, “He is my son.... I will touch him. I will do whatever I want.” R. 97 at 70. Several days later, al-Maliki lifted his son onto his lap and tried to take off his boxers. John Doe # 1 resisted and his mother intervened. Al–Maliki then beat his wife. The abuse only got worse. Later, al-Maliki pinned John Doe # 1's arms to his sides with one hand, covered his mouth with the other, and anally raped him. On another occasion, John Doe # 1 observed his father masturbating into food items, which were then given to the boy to eat or drink. Al–Maliki also attempted to trick John Doe # 2—his three-year-old son—into performing oral sex on him.

With these proofs, the government rested. Al–Maliki moved for a Rule 29 directed verdict (arguing that the government had not established all of the elements of the offense). But the district court denied the motion.

The defense called one witness: al-Maliki. He testified about his “very bad” relationship with his “very disrespect[ful]” and “stubborn” wife. R. 97 at 191. She neglected their children, he said. As for his oldest son, al-Maliki said that he loved him despite the boy's “hate in his heart.” Id. at 192. Al–Maliki denied ever committing the sexual abuse. He thought his son was “coached by his mom,” who “tried to build ... some hate” between al-Maliki and the boy. Id. at 195.

The jury didn't buy al-Maliki's story. It found him guilty beyond a reasonable doubt of engaging and/or attempting to engage in illicit sexual conduct in a foreign place with both John Doe # 1 (Count 1) and John Doe # 2 (Count 2).

The district court prepared to sentence al-Maliki. It ordered a psychological evaluation, which deemed al-Maliki “manipulative and dishonest” and assessed his “risk for future sexual acting out” as “moderate to high.” R. 57 at 10. Over al-Maliki's objection, the district court applied a four-level increase for use of force to engage in his sexual crimes, U.S.S.G. § 2A3.1(b)(1). Considering the nature of the offense, the negative psychological evaluation, and al-Maliki's age and limited criminal record, the court sentenced him at the bottom of the guidelines' range: 292 months in prison on each count, to be served concurrently.

Al–Maliki appealed, raising issues relating to the constitutionality of the statute, the admissibility of some of Goldrup's testimony, the prosecutor's statements in closing, the sufficiency of the evidence, and the reasonableness of the sentence. We reject them all.

II

Al–Maliki argues for the first time on appeal that § 2423(c) is unconstitutional because it exceeds Congress's authority under the Foreign Commerce Clause. It follows, he argues, that federal courts lack “jurisdiction” over the case. Before addressing the statute's constitutionality, we must clarify what kind of jurisdiction is at issue where, as here, a litigant challenges Congress's authority to pass a criminal law.

A

Al–Maliki argues that an unconstitutional criminal statute deprives federal courts of subject-matter jurisdiction over the criminal case. But he confuses the “many, too many, meanings” of the term “jurisdiction.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 90, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

Under 18 U.S.C. § 3231, federal courts “plainly ha [ve] authority over” all offenses against the laws of the United States, United States v. Lucido, 612 F.3d 871, 874 (6th Cir.2010), including § 2423(c). In al-Maliki's parlance, § 3231 gives federal courts subject-matter jurisdiction over criminal cases. United States v. Cotton, 535 U.S. 625, 630–31, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). Other so-called jurisdictional matters involved in the case—like the statute's “jurisdictional nexus” to commerce or Congress's “jurisdiction” to pass the law—demonstrate courts' and litigants' “profligate use of the term [jurisdiction].” Union Pac. R. Co. v. Locomotive Engineers, 558 U.S. 67, 81, 130 S.Ct. 584, 175 L.Ed.2d 428 (2009). They deal not with our power to hear a case but with Congress's authority to regulate certain conduct. When Congress lacks constitutional authority to pass a law, it acts ultra vires. And when litigants properly challenge laws passed beyond Congress's power, courts have a duty to void those laws as repugnant with the People's Law: the Constitution. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803).

The distinction between these two types of “jurisdiction”—a court's subject-matter jurisdiction and Congress's authority (jurisdiction, if you must) to pass a law—makes an enormous practical difference. Challenges to subject-matter jurisdiction cannot be waived or forfeited. Cotton, 535 U.S. at 630, 122 S.Ct. 1781. But challenges to Congress's authority to pass a law can be forfeited by litigants, United States v. Suarez, 263 F.3d 468, 476 (6th Cir.2001), and indeed, can be outright waived (as when a defendant pleads guilty). United States v. Corp, 668 F.3d 379, 384–85 (6th Cir.2012) (collecting cases).

Now back to al-Maliki's challenge. He argues that Congress exceeded its Foreign Commerce Clause authority when passing § 2423(c). That goes not to our power but to Congress's, so it is not a challenge to subject-matter jurisdiction. Al–Maliki can and did forfeit the challenge by failing to raise it below, but he did not waive it because he did not intentionally relinquish it. See United States v. Olano, 507 U.S. 725, 732–33, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We accordingly review this constitutional challenge for plain error under Rule 52(b).

Under plain-error review, al-Maliki must show “(1) error (2) that was obvious or clear, (3) that affected [his] substantial rights[,] and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir.2008) (en banc). Assuming al-Maliki can show an obvious error (a too-generous assumption, we shall see), we “should correct [it]” because it would affect a substantial right (liberty) and would “seriously affect[ ] the fairness, integrity or public reputation of judicial proceedings” (enforcing an “obvious [ly]” unconstitutional statute). Olano, 507 U.S. at 736, 113 S.Ct. 1770. So the key questions are whether there was any error (is the statute unconstitutional?), and if so, whether that error was plain (is the statute “obvious[ly] or clear[ly]” unconstitutional?).

B

The Constitution authorizes Congress “[t]o regulate Commerce with foreign Nations.” U.S. Const. art. I, § 8, cl. 3. Does that include the power to punish a citizen's noncommercial conduct while the citizen resides in a foreign...