Threat Analysis: From Raich to Evans to Adult Industry Disaster

Jan. 30 saw an interesting decision come out of the Eleventh U.S. Circuit Court of Appeals. In U.S. v. Justin Evans, the court ruled that the defendant violated federal laws against pimping a minor to engage in prostitution, even though neither the pimp nor his hooker ever left the state of Florida to practice their trade.

And considering that most states prohibit the production of adult videos based on the concept – rejected by the California Supreme Court in People v. Freeman – that performers in the video are prostitutes and that the person hiring them to make the video is a pimp, U.S. v. Evans is a real problem for adult video producers everywhere in the southeastern United States, and potentially, if the case ever reaches the Supreme Court, for producers across the entire country.

Here's how:

Anybody remember the 2005 Supreme Court decision in Gonzales v. Raich? That was the ruling that has allowed, for instance, federal agents to raid 11 medical marijuana clinics in Los Angeles a couple of weeks ago, and several more in San Francisco a few days before that, even though the clinics were completely legal under California law and only supplied cannabis to those whose doctors had prescribed it for them.

What the Supreme Court decided in Raich, in an opinion authored by ofttimes civil libertarian John Paul Stevens, was that despite the fact that the clinics' marijuana (still California's biggest cash crop) never crossed any state boundaries to get to them, the Drug Enforcement Administration (DEA) could still regulate (read: prohibit) its use because of the weed's inevitable effect on interstate commerce.

Normally, the federal government is prohibited from meddling in actions and events that occur only within a particular state, under the Constitution's "states' rights" doctrine, essentially expressed in the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." However, it does have the power to regulate "interstate commerce"; that is, business which involves providing goods or services across state lines.

Essentially, the Raich case involves Angel Raich and co-respondent Diane Monson, both of whom suffer from serious medical conditions – one has full-blown AIDS, the other cancer – which make everyday activities like eating without vomiting very difficult, and they use marijuana to quell the nausea brought on by the drugs used to treat their conditions. Monson at the time was growing her own marijuana, which under California's Compassionate Use Act, she was allowed to do. Such cultivation is illegal under federal law, however, and in 2002, Drug Enforcement Administration agents, together with county deputies, raided Monson's home and destroyed her marijuana plants. Raich and Monson then sued for an injunction to prevent such raids from happening again – an injunction which was eventually granted by the Ninth Circuit Court of Appeals.

In overturning that injunction, the Supreme Court reached all the way back to the 1938 case of Wickard v. Filburn, from the tail end of the "Great Depression" following the stock market collapse of 1929.

"When Congress decides that the "'total incidence'" of a practice poses a threat to a national market, it may regulate the entire class," wrote Justice Stevens. "In this vein, we have reiterated that when "'a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence."' [Citations omitted here and below]

Of course, one might question what "commerce" the high court is referring to, since marijuana is illegal as a cash crop everywhere in the United States, and how easily individual rights – the "de minimis character of individual instances" – get trampled under a "general regulatory statute," but none of that stopped this Court from careening forward.

"In Wickard, we upheld the application of regulations promulgated under the Agricultural Adjustment Act of 1938, 52 Stat. 31, which were designed to control the volume of wheat moving in interstate and foreign commerce in order to avoid surpluses and consequent abnormally low prices," wrote Justice Stevens. "The regulations established an allotment of 11.1 acres for Filburn's 1941 wheat crop, but he sowed 23 acres, intending to use the excess by consuming it on his own farm. Filburn argued that even though  we had sustained Congress' power to regulate the production of goods for commerce, that power did not authorize 'federal regulation [of] production not intended in any part for commerce but wholly for consumption on the  farm.' Justice Jackson's opinion for a unanimous Court rejected this submission. He wrote: 'The effect of the statute before us is to restrict the  amount which may be produced for market and the extent as well to which one may forestall resort to the market by producing to meet his own needs. That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.'"

Okay; so we understand this, what Stevens was saying, using Justice Jackson's logic, was that even though the marijuana was grown in California exclusively for the use of Californians, and ignoring the fact that it's illegal to sell pot anywhere in the U.S. except for medicinal purposes, the fact that Monson (and for all practical purposes, Raich as well) grew her own pot so she wouldn't have to buy it from someone else made Monson's marijuana plants a factor in interstate commerce – even though there is no legal interstate commerce in marijuana!

So essentially, what the Supreme Court did was to take a questionable price-control ruling from the Depression era – nowadays, the government is trying to phase out paying farmers not to grow certain crops – and use it as an excuse for a federal agency (DEA) to override unambiguous state law regarding this particular controlled substance. And while it's not surprising that Justices Ginzburg, Souter and Breyer joined the opinion, Justice Scalia – that rugged originalist – filed a concurring opinion which goes even further than the plurality, deeming Stevens' reasoning "incomplete" because "the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even  those intrastate activities that do not themselves substantially affect interstate commerce." [Emphasis added]

But Scalia's unbridled federalism regarding intrastate commerce is a discussion that will have to wait for another day. The topic at hand is Justin Evans and how the Raich decision affected him ... and will possibly affect us.

Let's be clear: Justin Evans, assuming what's said about him in the Eleventh Circuit opinion is true, is not a good guy. According to the Court's summary of his activities, all of which were agreed to in Evans' conditional guilty plea to charges of enticing a minor to engage in a commercial sex act and enticing a minor to engage in prostitution or came out at the hearing on Evans' motion to dismiss the indictment, Evans employed a 14-year-old girl, "Jane Doe," to work for him as a prostitute in Miami-Dade County from December '04 to May '05.

"Evans arranged 'dates' for Jane Doe at local hotels, and Jane Doe gave the money she earned on these dates to Evans," the Eleventh Circuit's opinion reads. "To inform Jane Doe of dates that he had arranged, Evans called Jane Doe on a cellular telephone that she had acquired from him. Evans also gave Jane Doe's cellular telephone number to customers and told Jane Doe to arrange dates when customers called. During the dates, Evans called Jane Doe on the cellular telephone to 'check up on her.' Evans supplied Jane Doe with condoms for use on the dates. The condoms were usually Lifestyle brand, which are manufactured overseas, imported into Georgia, and then distributed throughout the United States. In February 2005, Jane Doe was hospitalized for eleven days, during which time she was diagnosed with AIDS. A few days after Jane Doe's release from the hospital, Evans called her on a land-line telephone and induced her to resume her work as a prostitute for him. Jane Doe worked for Evans until May 2005, when she was again hospitalized for AIDS treatment."

Definitely not a nice guy – and if justice were all about whether someone is a nice guy or not, this article wouldn't be written. But the question is why Evans was indicted in federal court for crimes that, on the surface, would seem to fall squarely within state statutes.

The Eleventh Circuit decision notes that the district court had determined that Evans' conduct did satisfy the "in or affecting interstate or foreign commerce" requirement of 18 U.S.C. §1591(a)(1), the "enticing a minor to engage in a commercial sex act" statute, and agrees with the district court that the indictment should not be dismissed.

"Applying Raich, our Court recently rejected arguments that purely intrastate conduct could not be prosecuted under the federal Child Pornography Prevention Act of 1996 ('CPPA')," the Eleventh Circuit said. "First, in [U.S. v.] Maxwell, we held that 18 U.S.C. §2252A(a)(5)(B) was not unconstitutional as applied to a defendant's intrastate possession of child pornography, even though no evidence indicated that the defendant's conduct was likely to impact interstate commerce. We noted that the CPPA is part of a comprehensive regulatory scheme criminalizing, inter alia, the production, possession, and sale of child pornography and that Congress could rationally conclude that the cumulative effect of local possession of child pornography would substantially affect the interstate commerce that Congress was seeking to eliminate. Similarly, in United States v. Smith, we rejected the argument that 18 U.S.C. §2251(a) was unconstitutional as applied to the intrastate production of child pornography."

It's noteworthy that Maxwell also involved federal intrusion into a crime that, as far as we know, took place only within a single state, though Maxwell would seem to be clearly distinct from Raich in that Maxwell's child porn possession (and Smith's kiddie porn production) was already illegal under state law, whereas Raich's marijuana possession wasn't. What the Eleventh Circuit importantly draws from Raich, though, is the same flaw contained in Wickard: Interstate trafficking in kiddie porn, like interstate trafficking in marijuana – but unlike interstate trafficking in Wickard's wheat – is already illegal; hence, there is no legitimate "interstate commerce" to be affected by the defendant's crime, and therefore, there should be no federal jurisdiction under the Commerce Clause.

So how did the Eleventh Circuit satisfy itself that a federal crime had been committed?

"Evans's enticement of Jane Doe to commit prostitution, even though his actions occurred solely in Florida, had the capacity when considered in the aggregate with similar conduct by others, to frustrate Congress's broader regulation of interstate and foreign economic activity," the Court wrote, copying Raich almost word-for-word.

But it gets worse.

"Evans's use of hotels that served interstate travelers and distribution of condoms that traveled in interstate commerce are further evidence that Evans's conduct substantially affected interstate commerce," the Court claimed, citing its own decision in United States v. Pipkins, 378 F.3d 1281, 1295 (11th Cir. 2004), holding that evidence that "pimps furnished their prostitutes with condoms manufactured out of state ... supports a finding that the activities of the enterprise affected interstate commerce."

And that's not all: "Count Four of the indictment charged Evans with violating 18 U.S.C. §2422(b), which imposes punishment on anyone who, "using the mail or any facility or means of interstate or foreign commerce, ... knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution," the Court wrote. [Emphasis in original] Remember Evans' use of a cell-phone and land-line phone to contact his employee? To the Eleventh Circuit, that was sufficient to satisfy the "using the mail or any facility or means of interstate or foreign commerce" requirement, because "Telephones and cellular telephones are instrumentalities of interstate commerce."

So let's add it up. First, as far as the adult video/Internet industry is concerned, the fact that Evans is a child prostitution case is irrelevant, aside from the fact that the case involves sex. What is important is that the federal judiciary – or at least the Eleventh Circuit, which is comprised of Florida, Georgia and Alabama – has decided that it has jurisdiction over a case involving sexual intercourse taking place wholly within the state of Florida because, in setting up those instances of sexual intercourse, the participants 1) stayed in hotels serving interstate travelers; 2) used condoms manufactured in Germany and imported to the U.S. for distribution throughout the country (it probably isn't important that the particular brand was Lifestyles); and 3) that the participants communicated with each other by cell and land-line phones. That's it!

Jesus! Is there any video production anywhere in the United States where none of the participants 1) stay in hotels serving interstate travelers; 2) use condoms manufactured outside the country); or 3) communicate with each other by cell and land-line phones? Of course not!

Now, couple that with the fact, as we noted in our earlier article on the Adam Walsh Act (H.R. 4722), the federal criminal code has now been changed to criminalize not only the transportation, distribution and sale of "obscenity," but its production as well. Since no one can know whether a work is "obscene" until a jury returns a verdict, the Walsh Act, coupled with the criteria used by the Eleventh Circuit in the Evans case, could easily be used by federal agents to move into an area where adult production is legal under state law, as in California or New York City, and arrest those involved in the production, alleging that the work is "obscene" even before production has been completed.

Certainly, it can be argued that arcane uses of the Commerce Clause may serve worthwhile purposes, such as to effect civil rights legislation – in one instance in the mid-'60s, a hotel was forced to integrate because its restaurant served food whose raw materials were brought in from out-of-state – but there's no doubt that the Bush administration and its supporters are four-square opposed to all sexually-explicit productions.

It can be expected, therefore, that the administration will use every means at its disposal to prevent, or at least disrupt, the production of such material, and the Justice Department may consider decisions such as the Eleventh Circuit's Evans ruling to be "manna from heaven" in the anti-porn wars.

Consider this a "distant early warning."