United States v. Sawyer

• Decision Date: 23 October 2013
• Docket Number: No. 12–1912.,12–1912.
• Citation: 733 F.3d 228
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Datqunn SAWYER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

733 F.3d 228

UNITED STATES of America, Plaintiff–Appellee,

v.Datqunn SAWYER, Defendant–Appellant.

No. 12–1912.

United States Court of Appeals,Seventh Circuit.

Argued Sept. 10, 2013.

Decided Oct. 23, 2013.

Marc Krickbaum, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Susan Sherberg Kister, Attorney, Susan S. Kister, P.C., Chesterfield, MO, for Defendant–Appellant.

Before WOOD, Chief Judge, and EASTERBROOK and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

A jury found Datqunn Sawyer guilty of sex trafficking in violation of 18 U.S.C. § 1591(a), and he was sentenced to 50 years in prison. Sawyer admits on appeal that he forced at least seven girls whom he knew to be minors to work as prostitutes for his benefit. He argues, though, that his conviction should be vacated because the jury was instructed improperly on one element of the offense. We reject the argument and affirm his conviction. By agreeing to the relevant instructions at trial, Sawyer waived his argument. Even if he had not waived the point, the instructions were correct on the merits.

The jury instructions explained that the government had to prove beyond a reasonable doubt that Sawyer's conduct affected interstate commerce to prove guilt under section 1591(a). Sawyer stipulated that his conduct had such an effect. The instructions also specified that Sawyer need not have known or intended that his conduct would have an effect on interstate commerce. Sawyer contends on appeal that the jury should have been instructed to acquit if the government did not prove beyond a reasonable doubt that he actually knew or intended that his conduct affected interstate commerce.

The first problem is that this argument has been waived. At trial, Sawyer's attorney replied “no” when asked whether he had objections to the instructions on the interstate commerce element. The attorney's statement that he had no objection was a waiver, not merely a forfeiture, of any future challenge to the instructions. See United States v. Kirklin, 727 F.3d 711, 716 (7th Cir.2013); United States v. Griffin, 493 F.3d 856, 863–64 (7th Cir.2007). The government properly invoked the waiver in its brief, and that doomed Sawyer's appeal.

Even if Sawyer had preserved his claim about the jury instructions, it could not succeed on the merits. We address the merits of his argument both to avoid giving the impression that the attorney's waiver was unwise and to explain our rejection below of Sawyer's terse challenge to the sufficiency of the evidence.

Section 1591 reads in relevant part:

(a) Whoever knowingly—

(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, or maintains by any means a person; or

(2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1)....

Sawyer contends that “knowingly” modifies “in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States.” But this clause merely establishes the basis of Congress's power to legislate and is not subject to any mens rea requirement such as knowledge or intent.

In addressing similar statutory issues, the Supreme Court has established a general presumption that “the existence of the fact that confers federal jurisdiction need not be one in the mind of the actor at the time he perpetrates the act made criminal by the federal statute.” United States v. Feola, 420 U.S. 671, 676 n. 9, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975).¹

Accordingly, this court and others have concluded time and again that the interstate and foreign commerce elements in many other criminal statutes have no mens rea requirements. See, e.g., United States v. Soy, 454 F.3d 766, 769 (7th Cir.2006) (arson under 18 U.S.C. § 844(i)); United States v. Lindemann, 85 F.3d 1232, 1241 (7th Cir.1996) (wire fraud under 18 U.S.C. § 1343); United States v. Hattaway, 740 F.2d 1419, 1427–28 (7th Cir.1984) (transporting a woman for immoral purposes under Mann Act, 18 U.S.C. § 2421); see also, e.g., United States v. Driggers, 559 F.3d 1021, 1024 (9th Cir.2009) (murder for hire under 18 U.S.C. § 1958); United States v. Darby, 37 F.3d 1059, 1067 (4th Cir.1994) (threatening communication under 18 U.S.C. § 875(c)); United States v. Blackmon, 839 F.2d 900, 907–08 (2d Cir.1988) (wire fraud under 18 U.S.C. § 1343); United States v. Thrasher, 569 F.2d 894, 895 (5th Cir.1978) (unlawful possession of a firearm under 18 U.S.C. § 922(h)). The Eleventh Circuit has concluded the same about the interstate commerce element of section 1591(a) itself, for essentially the reasons we adopt here. United States v. Evans, 476 F.3d 1176, 1180 n. 2 (11th Cir.2007).

Sawyer urges us to depart from this reasoning and to treat section 1591(a) as a special case because “knowingly” is placed before rather than after the interstate commerce language in the statute. For two reasons, we disagree and conclude instead that “knowingly” appears in the introductory portion of section 1591(a) simply to supply the mens rea for both paragraphs (a)(1) and (a)(2). The requirement does not apply to the interstate commerce element.

First, we can think of no reason Congress would have gutted the law by limiting prosecutions to the surely trifling number of sex traffickers who know, for example, that using a hotel room or out-of-state condoms affects interstate commerce as that term is understood in constitutional law. Nothing in the statute's legislative history suggests such an intent, and the wrongfulness of a sex trafficker's conduct is not mitigated because he is unfamiliar with the boundaries of Congress's constitutional powers. See Lindemann, 85 F.3d at 1241 (“Whether the defendant knows that his conduct involves an ‘interstate nexus' adds nothing to the gravity of the offense that he is committing.”). Sawyer points us to legislative history showing Congress's focus on international sex trafficking, but we do not see how that advances his position.

Second, the only criminal statute we know of in which Congress has made guilt depend on knowledge that an intrastate action had implications for interstate commerce—7 U.S.C. § 2156(a), which outlaws most “animal fighting venture [s]”—is the exception that proves the general rule. Paragraph (a)(2) of that statute allows the prosecution of people involved with bird fighting in states that permit the practice “only if the person knew that any bird in the fighting venture was knowingly...