DAMION ST. PATRICK BASTON
PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
petition for a writ of certiorari is denied.
JUSTICE THOMAS, dissenting from the denial of certiorari.
Constitution, through the Foreign Commerce Clause, grants
Congress authority to "regulate Commerce with foreign
Nations." Art. I, §8, cl. 3. Without guidance from
this Court as to the proper scope of Congress' power
under this Clause, the courts of appeals have construed it
expansively, to permit Congress to regulate economic activity
abroad if it has a substantial effect on this Nation's
foreign commerce. In this case, the Court of Appeals declared
constitutional a restitution award against a non- U.S.
citizen based upon conduct that occurred in Australia. The
facts are not sympathetic, but the principle involved is
fundamental. We should grant certiorari and reaffirm that our
Federal Government is one of limited and enumerated powers,
not the world's lawgiver.
Damion St. Patrick Baston is a citizen of Jamaica. He forced
numerous women to prostitute for him through violence,
threats, and humiliation. One of his victims, K. L., was a
citizen of Australia. She prostituted for petitioner in
Australia, the United States, and the United Arab Emirates
before escaping from his control. While in the United States,
petitioner was arrested and charged with the sex trafficking
of K. L. by force, fraud, or coercion, 18 U.S.C.
§1591(a), "'in the Southern District of
Florida, Australia, the United Arab Emirates, and
elsewhere.'" 818 F.3d 651, 658 (CA11 2016). As
relevant here, §1591(a)(1) states that the sex
trafficking must "affec[t] interstate or foreign
commerce." Congress has granted federal courts
"extra-territorial jurisdiction" over sex
trafficking if the "alleged offender is present in the
United States, irrespective of the nationality of the alleged
offender." § 1596(a)(2).
jury convicted petitioner, the District Court ordered him to
pay K. L. $78, 000 in restitution, which included the money
she earned while prostituting for petitioner in the United
States. See §1593 (requiring sentencing courts to order
restitution in "the full amount of the victim's
losses" for offenses under §1591). But the court
refused to include in the restitution award the $400, 000
that K. L. earned while prostituting in Australia. In the
court's view, the Foreign Commerce Clause did not permit
an award of restitution based on petitioner's
extraterritorial conduct. 818 F.3d, at 657, 660.
Court of Appeals vacated the order of restitution and
remanded with instructions to increase the award by $400, 000
to account for K. L.'s prostitution in Australia. The
court reasoned that whatever the outer bounds of the Foreign
Commerce Clause might be, this Court has suggested that it
has at least the same scope as the Interstate Commerce
Clause. Relying on our Interstate Commerce Clause precedents,
the Court of Appeals concluded that the Foreign Commerce
Clause grants Congress power to regulate "activities
that have a 'substantial effect' on commerce between
the United States and other countries, " including sex
trafficking overseas. Id., at 668 (citing
Gonzales v. Raich, 545 U.S. 1, 16-17 (2005)).
Court of Appeals correctly noted that this Court has never
"thoroughly explored the scope of the Foreign Commerce
Clause." 818 F.3d, at 667; accord, e.g.,
Goodno, When the Commerce Clause Goes International: A Pro-
posed Legal Framework for the Foreign Commerce Clause, 65
Fla. L. Rev. 1139, 1148-1149 (2013) ("The U.S. Supreme
Court has not yet articulated the extent of Congress's
power under the Foreign Commerce Clause to enact laws with
extraterritorial reach. Because of this lack of guidance . .
. lower courts are at a loss for how to analyze Foreign
Commerce Clause issues"). The few decisions from this
Court addressing the scope of the Clause have generally been
confined to laws regulating conduct with a significant
connection to the United States. See, e.g., Board of
Trustees of Univ. of III. v. United States, 289 U.S. 48,
57 (1933) ("The Congress may determine what articles may
be imported into this country and the terms upon which
importation is permitted"); United States ex rel.
Turner v. Williams, 194 U.S. 279, 290 (1904)
("[T]he power to regulate commerce with foreign nations
. . . includes the entrance of ships, the importation of
goods, and the bringing of persons into the ports of the
United States"). This Court has also articulated limits
on the power of the States to regulate commerce with foreign
nations under the so-called dormant Foreign Commerce Clause.
See, e.g., Japan Line, Ltd. v. County of Los
Angeles, 441 U.S. 434, 449-454 (1979). We have not,
however, considered the limits of Congress' power under
the Clause to regulate conduct occurring entirely within the
jurisdiction of a foreign sovereign.
absence of specific guidance, the courts of appeals-including
the court below-have understandably extended this Court's
Interstate Commerce Clause precedents abroad. In United
States v. Lopez, 514 U.S. 549, 558-559 (1995), we held
that Congress is limited to regulating three categories of
interstate activity: "the use of the channels of
interstate commerce, " "the instrumentalities of
interstate commerce, " and "activities that
substantially affect interstate commerce." Some courts
of appeals "have imported the Lopez categories
directly into the foreign context, " some "have
applied Lopez generally but recognized that Congress
has greater power to regulate foreign commerce, " and
others have gone further still, "holding that Congress
has authority to legislate under the Foreign Commerce Clause
when the text of a statute has a constitutionally tenable
nexus with foreign commerce." United States v.
Bollinger, 798 F.3d 201, 215 (CA4 2015) (internal
quotation marks omitted); see also id., at 215-216
("Instead of requiring that an activity have a
substantial effect on foreign commerce, we hold that the
Foreign Commerce Clause allows Congress to regulate
activities that demonstrably affect such commerce").
concerned that language in some of this Court's
precedents has led the courts of appeals into error. At the
very least, the time has come for us to clarify the scope of
Congress' power ...