Man Accused of Soliciting Teen Girl Walks Because of Federal Overreach
The DOJ tried to claim jurisdiction because he drove on a road.
In its zeal to ratchet up more sex trafficking prosecutions, the Department of Justice (DOJ) overreached—and it backfired. Now, a seeming sexual predator may escape conviction because the feds couldn't just leave local crime to local authorities.
The DOJ tried to invoke jurisdiction because the potential predator—an adult man who tried to pay his friend's teen daughter for sex on multiple occasions—used money, used a car that was made out of state, and drove on a road.
No dice, the U.S. Court of Appeals for the 8th Circuit said in an October 2 decision. Allowing this would put us on the path to letting Congress usurp police power retained by the states and federalize virtually any crime.
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A Slam Dunk State Case
The case involves an Arkansas convenience store owner named Muhammad Arif. He often drove a handyman who serviced his stores to and from job sites, according to the 8th Circuit, and sometimes the handyman's 15-year-old daughter, P.W., came along. In May 2019, Arif offered to take P.W. home after dropping her father off at work. During this ride, "Arif offered P.W. $100 to perform sexual acts," the court said in a summary of the government's case. "She declined and began recording the conversation. Arif pressured P.W. to engage in sexual activity but she did not acquiesce. When they reached P.W.'s home, Arif gave her $20, telling her she could use the money to buy her boyfriend a gift and asking her to promise not to tell anyone about the conversation."
This happened again about a month later. Again, P.W. declined and recorded the conversation. The girl then told her parents what had happened, and they reported Arif's actions to local police.
Under Arkansas law, Arif's actions constitute sex trafficking. The state includes in the crime's definition anyone who "recruits, entices, solicits, isolates, harbors, transports, provides, maintains, or obtains a minor for commercial sexual activity."
I have, in the past, criticized the idea that offering to pay a minor for sex—especially in cases where a person may not even know the person being solicited is underage—should be lumped into the same category as violently forcing someone into prostitution, and I maintain that criticism. We could criminalize knowingly trying to pay a minor for sex without equating it to sex trafficking. But for our purposes here, all that matters is that Arkansas does consider this sex trafficking, and Arif could have been punished as a sex trafficker under Arkansas law.
The reason Arif was not prosecuted as a sex trafficker under Arkansas law is that the feds decided to make it their case.
Federal sex trafficking laws can be important in cases where a victim is transported across state lines or victimized in multiple states or a trafficking enterprise is spread out across different states. None of that applies in Arif's case. It should have been a clear-cut case for state, not federal, authorities.
Arkansas' Kensett Police Department detective did originally bring state charges against Arif. With P.W.'s recordings, and Arif admitting to police that he knew she was under age 18, it seems like it could have been a pretty slam dunk case.
The Feds Take Over
But for some reason, "the federal government took over, and the state proceedings were dismissed," notes the 8th Circuit.
Arif was charged with violating federal sex trafficking law, which states that "whoever knowingly…in or affecting interstate or foreign commerce…recruits, entices…or solicits by any means…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 punished."
Arif argued that his actions did not fit this definition because they were not "in or affecting interstate or foreign commerce."
A federal jury found him guilty anyway.
He moved for the court to acquit him, again arguing that his actions had nothing to do with foreign or interstate commerce, and a U.S. District Court granted the motion.
The government then appealed.
Now, the 8th Circuit has affirmed the lower court's decision to acquit Arif.
'A Constitutionally Important Inquiry'
"This is a constitutionally important inquiry," the court stated. It gets at long-fought-over elements of the Commerce Clause, that part of the Constitution that grants Congress power to regulate commerce among the states. Supreme Court decisions have clarified that this includes the right to regulate channels of interstate commerce and people or things in interstate commerce, as well as activities that "substantially affect" interstate commerce even when they're purely local activities.
Federal courts must be on guard against applications of the commerce clause that would "convert congressional authority…to a general police power of the sort retained by the States," states the 8th Circuit (quoting the 2000 case Jones v. United States).
At trial, a government witness testified that Arif drove a car manufactured in Canton, Mississippi. Prosecutors also pointed out that he gave the girl a $20 bill. Both money and cars have been recognized as "instrumentalities of interstate commerce," the government noted, arguing that these elements were sufficient to establish that this crime affected interstate commerce.
In granting Arif's acquittal motion, the district court rejected this argument. "If simply giving money to someone qualifies as affecting interstate commerce, that…demonstrates that a federal police power exists, contrary to the Constitution's letter," it said. Furthermore, the government failed to prove "that Arif's use of his vehicle had any effect, even a minor one, on interstate commerce."
The district court suggested the feds let this one go and let Arkansas refile state charges. That seems logical, right?
But if there's one thing the past decade has made clear, it's that federal authorities are desperate to get more federal sex trafficking prosecutions. They will get intimately involved in all sorts of matters that should be left to local police, conduct elaborate sting operations with fake victims, spend all sorts of money, turn Homeland Security agents into massage parlor police, and more in service of this aim. (I could write a dissertation on why but the short answer centers on some combination of trying to prove government propaganda about a sex trafficking epidemic right and realizing that sex trafficking—like the drug war—could prove very useful for expanding federal policing power.)
Combine this with the federal government's general tendency to try and endlessly expand the Commerce Clause until there's nothing it can't police or regulate, and here we are.
But…He Used a Road
"Rather than allow the state charges to be refiled, the Department of Justice filed this appeal in mid-2024," noted the 8th Circuit in its decision:
On appeal, the government significantly expands its broad assertion of federal criminal jurisdiction over conduct within the core of the States' police power -- soliciting a minor for unwanted sex in a vehicle:
Under the Commerce Clause, Congress has the ability to regulate the instrumentalities and channels of interstate commerce. . . . Arif used a vehicle and public roadways to solicit sex from a minor. His use of an instrumentality and channel of interstate commerce as the means to commit his offense places his conduct in commerce.
Let's just make sure everyone got that: Federal prosecutors argued that they had jurisdiction because Arif used a road in the commission of his crime. If this argument were allowed to stand, then the federal government could claim jurisdiction over any local crime in which the criminals at some point used a street.
And this is in addition to the government's earlier contention that any crime in which any federal currency is involved is also open to federal jurisdiction.
Thankfully, the appeals court wasn't having it. The text of the federal sex trafficking statute says it covers conduct "in or affecting interstate commerce," it pointed out. "Merely using the channels or instrumentalities of interstate commerce is relevant but does not necessarily demonstrate an actual effect on commerce that satisfies the jurisdictional element." And "merely driving a car on a road, without more, does not establish a sufficient interstate commerce nexus."
"Turning to the second alleged instrumentality, the transfer of $20 of United States currency, the government on appeal again has no authority supporting its assertion that the Commerce Clause federalizes any criminal action in which money played any role," the court said.
The 8th Circuit mentions multiple times how using a cellphone or the internet is enough to satisfy the commerce clause—a sorry situation in its own right. But at least it's nice to see the court acknowledge that some limits on the Commerce Clause do still exist.
Sacrificing Justice and Due Process in a Bid for Total Police Power
So, here we have what could have been a quick and easy local case botched because the feds couldn't just let a state have this one. That doesn't seem right.
The state could, and might, still refile the charges against Arif, but…that doesn't seem right, either. Arif's acts of solicitation now took place more than six years ago. If the state refiles charges now, his prosecution could drag on for a year or perhaps years more, and Arif would have to twice stand trial for the same crime. It hardly seems within the bounds of due process to subject him to that.
Whatever ultimately happens here, it's been an illuminating case, showcasing (once again) just how far the feds are willing to try and stretch the bounds of the Commerce Clause in their quest for total policing power.
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