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United States v. Wearing

United States Court of Appeals, Seventh Circuit

July 26, 2017

United States of America, Plaintiff-Appellee,
Eugene Wearing, Defendant-Appellant.

          Argued July 7, 2017

         Appeal from the United States District Court for the Western District of Wisconsin. No. 3:14-CR-00122-001 - William M. Conley, Judge.

          Before Wood, Chief Judge, and Bauer and Flaum, Circuit Judges.

          WOOD, Chief Judge.

         Hoping to earn some money as a pimp, Eugene Wearing recruited a 15-year-old acquaintance, KV #1, to earn money as a prostitute. He posted a Craigslist ad with her photo and twice tried to arrange a rendezvous with a client. But both assignations fell through, and soon afterward KV #1 had second thoughts and alerted her mother, who called the authorities. At a bench trial Wearing was convicted of violating 18 U.S.C. § 1591, which makes sex trafficking of children a federal crime if done "in or affecting interstate or foreign commerce." In this appeal Wearing challenges only the sufficiency of the evidence. He argues that the government was required to, but did not, prove two critical points: (1) that KV #1 had engaged in a "commercial sex act, " and (2) that his recruitment of the victim (as opposed to the scheme as a whole) affected commerce. We find no merit in either argument, and so we affirm the conviction.


         The bench trial was conducted entirely through a written stipulation. In it, Wearing admitted that he suggested to KV #1 that she could earn some money by performing oral sex. He drove her to a hotel and had her "audition" on him, after which he scheduled a client visit. But police were at the hotel for an unrelated matter, and no sexual contact took place because Wearing and the client felt that it was too risky. Later Wearing photographed KV #1 in her underwear and posted the pictures on Craigslist. He gave KV #1 a tour of an apartment where he said "business" would take place, explaining that she would "giv[e] blowjobs" or, "if she wanted, " have intercourse with clients, though no clients joined them at that time. Wearing later took KV #1 back to the apartment; she asked to go home, but he refused, saying that she had committed to their arrangement and needed to do what he wanted. He then had intercourse with her and sent an e-mail inviting a client (who never responded) to join them at the apartment. The parties stipulated that before her mother contacted authorities, KV #1 had not engaged in a "commercial sex act, " which 18 U.S.C. § 1591(e)(3) defines as "any sex act, on account of which anything of value is given to or received by any person." The parties also stipulated that the Craigslist posting used channels of interstate commerce.

         Wearing's only defenses at trial were that a conviction under section 1591 requires proof that the victim actually engaged in a commercial sex act, and that the recruitment itself had to have been (but was not) accomplished through means affecting commerce. The district court rejected both points. It held that section 1591 can be violated even if a commercial sex act is never consummated, and it concluded that all of a defendant's actions, not just his efforts to recruit child prostitutes, are relevant in assessing whether the statute's commerce element is satisfied. Although violations of section 1591 typically are described as "human trafficking"-the label the government used when describing Wearing's crime-the district court sentenced him to 180 months' imprisonment, well below the guidelines range of 324 to 405 months. The court thought that "child abuse" more accurately describes Wearing's offense and observed that "it's hard for me to see this as a classic case of human trafficking."


         In this court, Wearing renews his argument that in order to convict under section 1591 the government must prove that the victim actually engaged in a commercial sex act. If the government had included a charge of attempt to traffic under 18 U.S.C. § 1594(a), which carries the same penalties as the completed offense under section 1591, we would have little to do. Wearing's stipulation leaves no doubt that he completed every step necessary to bring about a commercial sex transaction between KV #1 and the client at the hotel; only the fortuitous presence of the police interrupted the crime. Moreover, we recognize that Federal Rule of Criminal Procedure 31(c)(3) says that a defendant may be found guilty of "an attempt to commit an offense necessarily included in the offense charged, if the attempt is an offense in its own right." See also United States v. Feinberg, 89 F.3d 333, 339 (7th Cir. 1996) (explaining that lesser-included offenses, such as attempt, need not appear in indictment, so long as any departure from the strict terms of the indictment would neither surprise nor prejudice the defendant). It is possible that Rule 31(c)(3) is satisfied here, since section 1594(a) provides that whoever "attempts to violate section ... 1591 shall be punishable in the same manner as a completed violation of that section." But no other circuit has excused the failure to charge under section 1594(a) in a situation such as this one. Rather than wade into a debate about charging requirements, surprise, prejudice, and the like, we prefer to turn directly to the merits.

         We begin with the language of the statute. At the time of the crime, section 1591 read, in relevant part:

(a) Whoever knowingly-
(1) in or affecting interstate or foreign commerce ... recruits, entices, harbors, transports, provides, obtains, or maintains by any means a person ...
knowing, or in reckless disregard of the fact, that... the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be ...

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