United States v. Baston

• Citation: 818 F.3d 651
• Decision Date: 24 March 2016
• Docket Number: 15–10923.,Nos. 14–14444,s. 14–14444
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Parties: UNITED STATES of America, Plaintiff–Appellee–Cross Appellant, v. Damion St. Patrick BASTON, a.k.a. R.A.B., a.k.a. Drac, a.k.a. "D", a.k.a. Daddy, Defendant–Appellant–Cross Appellee.

818 F.3d 651

UNITED STATES of America, Plaintiff–Appellee–Cross Appellant,

v.Damion St. Patrick BASTON, a.k.a. R.A.B., a.k.a. Drac, a.k.a. "D", a.k.a. Daddy, Defendant–Appellant–Cross Appellee.

Nos. 14–14444

15–10923.

United States Court of Appeals, Eleventh Circuit.

March 24, 2016.

Lisa Tobin Rubio, Roy K. Altman, Olivia Choe, Wifredo A. Ferrer, Kathleen Mary Salyer, Emily M. Smachetti, U.S. Attorney's Office, Miami, FL, Ann Marie Christine Villafana, U.S. Attorney's Office, West Palm Beach, FL, for Plaintiff–Appellee–Cross Appellant.

Michael Caruso, Federal Public Defender, Federal Public Defender's Office, Miami, FL, Timothy Cone, Federal Public Defender's Office, Fort Pierce, FL, for Defendant–Appellant–Cross Appellee.

Before WILLIAM PRYOR and FAY, Circuit Judges, and ROBRENO,^* District Judge.

WILLIAM PRYOR

, Circuit Judge:

This appeal and cross-appeal require us to review the convictions and sentence of Damion Baston, an international sex trafficker nicknamed "Drac" (short for Dracula) who sometimes dressed up as a vampire, complete with yellow contact lenses and gold-plated fangs. Baston forced numerous women to prostitute for him by beating them, humiliating them, and threatening to kill them, and he pimped them around the world, from Florida to Australia to the United Arab Emirates.

Baston challenges the sufficiency of the evidence for one conviction, a supplemental jury instruction, and the award of restitution to his victims. Those challenges fail, but the cross-appeal by the government about a refusal to award one victim increased restitution has merit.

The government argues that the district court erred when it refused to award restitution to a victim of Baston's sex trafficking in Australia. The district court ruled that an award of restitution for Baston's extraterritorial conduct would exceed the power of Congress under Article I of the Constitution, U.S. Const. Art. I, and the Due Process Clause of the Fifth Amendment, id. Amend. V. To decide those issues, we must examine the scope of the Foreign Commerce Clause, id. Art. I, § 8, cl. 3, a question of first impression in this Circuit, and the constitutionality of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 § 223, 18 U.S.C. § 1596(a)(2)

, a question of first impression in any circuit. We conclude that Congress has the constitutional authority to punish sex trafficking by force, fraud, or coercion that occurs overseas. We affirm Baston's convictions and sentence, but we vacate his order of restitution and remand with an instruction for the district court to increase his restitution obligation.

I. BACKGROUND

Baston immigrated to the United States from Jamaica in 1989. After he was convicted of an aggravated felony, Baston was ordered removed in 1998. But Baston illegally reentered the country by purchasing the identity of a citizen of the United States. Under this assumed identity, Baston opened bank accounts, started businesses, and rented apartments in Florida. He also obtained a Florida driver's license and a United States passport. Baston traveled the world under the assumed identity, visiting Australia, New Zealand, Indonesia, the United Arab Emirates, Russia, China, and Brazil, among other places. Baston funded his lavish lifestyle by forcing numerous women to prostitute for him.

Baston learned how to be a pimp from Pimpology, a book written by Pimpin' Ken. Consistent with the fifth law of Pimpology, Baston "prey[ed] on the weak" by recruiting women who were sexually abused as children. See Pimpin' Ken, Pimpology: The 48 Laws of the Game 21 (2008). Baston also forced his victims to refer to him as "Daddy," see id., and took all of the money they earned, see id. at 20.

But Baston was not always faithful to the laws of Pimpology. Unlike Pimpin' Ken who rejected the use of violence, see id. at 2–3, Baston punched, slapped, choked, and threatened to kill his victims whenever they got "out of line." And his victims took those threats seriously. In addition to his Transylvanian tendencies, Baston maintained a muscular physique aided by having his victims inject him with steroids on a regular basis. He also claimed to be a member of the Bloods gang.

K.L., an Australian, met Baston at a nightclub in Gold Coast, Australia, when she was 24 years old. She dreamed of opening her own restaurant, and Baston offered to help her. But K.L. soon discovered that Baston's real business was pimping women. Baston sent K.L. to have sex with clients throughout Australia at prices he determined. When Baston was not in Australia, he had K.L. wire her earnings to his bank accounts in Miami. K.L. also prostituted for Baston in the United Arab Emirates, Florida, and Texas.

K.L. testified that Baston beat her "often" and that he threatened to hurt her and her family if she ever stopped working for him. Baston would backhand K.L. whenever she committed any perceived slight, like failing to cook him breakfast or telling a bouncer how much money she made. One night, Baston suspected that K.L. was cheating on him. He woke her up, punched her hard in the pelvis, threw her to the ground, and strangled her. He heated up kitchen knives over an open flame and threatened to slit her throat. On another occasion, Baston took K.L. to the bathroom, held her against the wall by her throat, and bit her cheek until she bled. K.L. eventually escaped Baston's control after her family contacted the American embassy, which refused to let her return to Baston in the United States.

T.M. was 21 years old when she met Baston. She was attending Georgia Southern University and needed money for college. She sent pictures of herself to one of Baston's associates, who convinced her to come to Miami to work as an escort. After she arrived in Miami, T.M. met Baston at a nightclub. He convinced her to work at various strip clubs in Miami, where she would meet clients and have sex with them at prices set by Baston. T.M. also prostituted for Baston in Texas and Australia.

Baston often reminded T.M. that, if she ever left him, "it wouldn't be good" for her or her family. One night, Baston thought that T.M. was flirting too much with a client. He drove her to a secluded park and backhanded her so hard that she fell to the ground. He reminded T.M. that he could bury her in the park and no one would ever find her. On another occasion, Baston thought T.M. was being "disrespectful," so he wrapped a belt around her neck and made her beg for forgiveness while she crawled around on her hands and knees like a dog. T.M. mustered the courage to flee from Baston when he temporarily left the country to visit Jamaica.

J.R. met Baston in 2013. She was 21 years old at the time, living with her mother in Georgia and working at a Little Caesars restaurant. But J.R. dreamed of being a model. Baston saw her modeling pictures on Instagram and began communicating with her over the Internet and phone. Baston promised to help her modeling career and convinced her to take a bus from Georgia to Miami. When she arrived, Baston forced her to prostitute for him at various strip clubs. J.R. also prostituted for him in Georgia, Louisiana, Texas, Tennessee, and New York. Baston and J.R. typically stayed in hotels, most often a Marriott in Miami, and Baston advertised her services on Backpage.com. Whenever J.R. was supposed to be working for Baston, she had to call him "[e]very hour on the hour" and text him regularly.

If J.R. disobeyed his orders, Baston would punch her in the face. One night, Baston drove J.R. to a secluded parking lot and told her not to "fuck with him" or he would "chop ... [her] body up and have [her] thrown in the Everglades." On another occasion, J.R. and Baston got into an argument and, although J.R. was pregnant at the time, Baston punched her in the side and threatened to stab her with a broken broom. Baston later forced J.R. to have an abortion because he "didn't want to have a baby by a punk bitch."

Baston was arrested at his mother's house in New York. A grand jury indicted him on 21 counts, including sex trafficking of K.L. by force, fraud, or coercion, 18 U.S.C. § 1591(a)(1)

, "in the Southern District of Florida, Australia, the United Arab Emirates, and elsewhere"; sex trafficking of T.M., id., "in the Southern District of Florida[ ] and elsewhere"; sex trafficking of J.R., id., "in the Southern District of Florida[ ] and elsewhere"; and several counts of money laundering, id. § 1956, based on the sex-trafficking proceeds that Baston wired from Australia to Miami. Baston proceeded to trial on all 21 counts.

The government called several of Baston's victims as witnesses, including K.L., T.M., and J.R. The women testified about how they met Baston, how their relationships progressed, and how Baston used violence and coercion to force them into prostitution. They also testified about how often they prostituted for Baston and how much they charged their clients.

After the government presented its case-in-chief, Baston filed a motion for a judgment of acquittal. He challenged the sufficiency of the evidence "on the indictment as a whole" by raising specific arguments against each count. With respect to the charge of sex trafficking J.R., Baston argued that he never coerced J.R. into prostitution: she was already a prostitute when he met her, and their relationship was nothing but amicable. The district court denied Baston's motion.

Baston called three witnesses: his sister, his mother, and himself. Baston's defense to the counts of sex trafficking was that he did not coerce any of the victims into prostitution; they did it freely and voluntarily. Baston argued that K.L. and T.M., for example, prostituted in Australia because it is legal there and they could make a lot of money doing it. With respect to the counts of money laundering, Baston argued in closing that "money made in Australia from a legal brothel is legal" so "sending the money by ... wire transfer is not money laundering because...