U.S. v. Clark

• Decision Date: 10 September 2009
• Docket Number: No. 08-10461.,No. 08-10467.,08-10461.,08-10467.
• Citation: 582 F.3d 607
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Cornell CLARK, Reverend; Mount Vernon Faith-In-Action Outreach Project; Mount Vernon United Methodist Community Development; Trinity Christian Outreach Ministries; Mount Vernon United Methodist Church Community Outreach Corporation; Clark Evangelistic Outreach Ministries, Inc., Defendants-Appellants. United States of America, Plaintiff-Appellee, v. Reverend James Cornell Clark, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

582 F.3d 607

UNITED STATES of America, Plaintiff-Appellee, v. James Cornell CLARK, Reverend; Mount Vernon Faith-In-Action Outreach Project; Mount Vernon United Methodist Community Development; Trinity Christian Outreach Ministries; Mount Vernon United Methodist Church Community Outreach Corporation; Clark Evangelistic Outreach Ministries, Inc., Defendants-Appellants.

United States of America, Plaintiff-Appellee, v. Reverend James Cornell Clark, Defendant-Appellant.

No. 08-10461.

No. 08-10467.

United States Court of Appeals, Fifth Circuit.

September 10, 2009.

Leigha Amy Simonton (argued), Dallas, TX, C. Richard Baker, Asst. U.S. Atty., Ann Cruce Roberts, Lubbock, TX, for U.S.

Jerry V. Beard, Asst. Fed. Pub. Def. (argued), Fort Worth, TX, William Reynolds Biggs, Dallas, TX, for Clark.

Appeals from the United States District Court for the Northern District of Texas.

Before HIGGINBOTHAM, SMITH and SOUTHWICK, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

James Clark appeals his conviction, asserting a novel due process challenge to a federal statute. We affirm.

I.

Clark, a minister of a church in Lubbock, Texas, met Carolyne Njau in August 2005 while on a trip to Kenya. Clark approached Njau, a prostitute at the time, in a hotel coffee shop. He falsely claimed to be a Texas Tech University professor and a minister and, after chatting with Njau, invited her to his room to talk further. Njau and Clark discussed her education,¹ and Clark volunteered that his church might be able to provide her a scholarship for study in the United States.

Once inside his hotel room, Clark encouraged Njau to shower in his bathroom and, as she was showering, pulled back the curtain and complimented her body. After her shower, Njau left the bathroom to find Clark in his underwear. She testified that he touched her sexually as they watched a movie, and he had her pose while he took a picture of her genitals.² As Njau left his hotel room, Clark gave her $100, instructing her to have herself tested for sexually transmitted diseases. She complied and reported back with the negative results.

In November 2005, after he left Kenya, Clark told Njau that his church would sponsor her education in the United States.³ In the following months, they communicated frequently in preparation for her trip to the United States and her enrollment at a college in Levelland, Texas, near Lubbock. When Njau informed Clark that she would be unable to afford her airfare, he agreed to pay it but suggested that she could pay him back by "serv[ing]" his friends. Njau took that to imply sexual services in return for money, and she feared that Clark would lead her back to prostitution; she accepted the airline ticket anyway.

From Njau's first day in the United States in January 2006, Clark controlled her every move. He spoke to her abusively when he picked her up at the airport and instructed her to stay on campus each week from Monday to Friday, when he would take her to his house for the weekend. He warned that "in this country, if you do somebody wrong, they will just shoot you," that "white people don't like black people," and that Njau "should not ... indulge into things [sic] that will get [her] in trouble." Njau felt frightened and intimidated and worried that Clark could kill her.

Clark's sexual advances continued. He forced her into his bed that first night and sexually assaulted her in various ways. She told him to stop and that he was hurting her, but he did not listen. Before taking her to the college campus for the first time, he had her tested for sexually transmitted diseases once again, accompanying her to the clinic and representing himself on clinic forms as her uncle.⁴

Even after Njau moved into her dormitory, Clark communicated with her every day by phone or e-mail, frequently demanded sex, and often came to campus to look for her. He required her to keep him informed of where she was and what she did. A college dean encountered him once at Njau's dormitory and noticed that Clark knew surprisingly a lot about Njau's whereabouts and activities.

When Njau refused sex, Clark threatened, in e-mails and phone conversations, to have her deported. He began calling the scholarship he had arranged a "loan" of his own money and made it evident that he expected sex as repayment.⁵ He said that he expected her to continue prostitution in the United States, evidently with himself as her sole client. Despite Njau's continued refusals, his threats of deportation eventually led to another sexual encounter.

Njau finally confided in a school administrator, who contacted authorities. The district attorney asked Njau to record a phone conversation with Clark, which she did on April 3, 2006. In the recording, Clark said in explicit terms that he would allow Njau to stay in the country only if she provided him and his friends with sexual favors. The next day, Clark was arrested on the state charge of compelling prostitution.

Clark was convicted of importation of an alien for prostitution or other immoral purposes under 8 U.S.C. § 1328.⁶ He was also convicted of several counts of fraud and money laundering. On appeal, he challenges only his § 1328 conviction, but because of the effect of that conviction on his sentencing guideline range, he requests that this court vacate his entire sentence. Clark attacks § 1328 as both overbroad and vague.

II.

Clark argues that § 1328 is facially invalid, at least as it relates to "immoral purposes." Although he does not challenge the statute's prohibition of importing aliens for purposes of prostitution, he observes that the general verdict could have been on either basis. "We review questions of law de novo. Because a facial challenge to the constitutionality of a statute presents a pure question of law, we employ that standard here as we examine the merits." Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 662 (5th Cir. 2006) (citation omitted). As we recognized in Roark & Hardee LP v. City of Austin, 522 F.3d 533, 548 (5th Cir.2008), "in Village of Hoffman Estates [v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (`Hoffman'),] the Supreme Court announced the proper procedure for analyzing a facial vagueness challenge." The first step is the overbreadth analysis, in which the court must

to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications.

Hoffman, 455 U.S. at 494-95, 102 S.Ct. 1186 (footnote omitted).

A.

So we begin with the overbreadth challenge. It requires little discussion, because the overbreadth doctrine is applicable only to First Amendment challenges,⁷ and § 1328 does not even arguably implicate First Amendment rights. Even if, arguendo, the decision in City of Chicago v. Morales, 527 U.S. 41, 52, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (plurality), were read to expand the overbreadth doctrine to protected liberty interests,⁸ § 1328, as we will show infra, does not infringe on any constitutional rights.

B.

We move therefore to Clark's vagueness challenge. As we have said, to be unconstitutionally vague, a statute must be "impermissibly vague in all its applications," Hoffman, 455 U.S. at 495, 102 S.Ct. 1186, including its application to the party bringing the vagueness challenge, Roark & Hardee, 522 F.3d at 546-47, 551 n. 19. "Objections to vagueness under the Due Process Clause rest on the lack of notice and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk." Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). On the other hand, an ordinance is vague in all its applications where "it subjects the exercise of [a] right ... to an unascertainable standard," Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971), or if, in other words, "`men of common intelligence must necessarily guess at its meaning,'" id. (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926)).

When considering whether a statute is vague in all its applications, "a reviewing court should examine the complainant's conduct before analyzing other hypothetical applications of the law because a [party] who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." Roark & Hardee, 522 F.3d at 546 (quoting Hoffman, 455 U.S. at 497, 102 S.Ct. 1186) (quotation marks and alterations omitted). Where constitutionally protected conduct is not threatened and "at least some of [the defendant's] conduct is clearly proscribed" by the statute under review, it cannot be void for vagueness. Id. at 547.

III.

With the above framework in mind, we proceed to consideration of § 1328. It is constitutionally sound.

The first question, as explained above, is the overbreadth question: Does the statute reach a substantial amount of constitutionally protected activity? As we have said, overbreadth is relevant only to First Amendment challenges, Salerno, 481 U.S. at 745, 107 S.Ct. 2095, but assuming arguendo that overbreadth applied in this case, we examine Clark's contention that the statute's reference to "immoral purposes" threatens to chill a constitutional right to engage in fornication and similar sexual activity. Specifically, Clark marshals cases such as Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) (creating a right to contraceptives under the Equal Protection Clause), and Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (creating a Due Process Clause right to homosexual sodomy), for ...