United States v. Mohammed Ali Liton

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-11614 ELEVENTH CIRCUIT
FEBRUARY 12, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00066-CR-4-RH/WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MOHAMMED ALI LITON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(February 12, 2009)
Before CARNES, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Mohammed Ali Liton appeals his conviction for using the internet, a facility
or means of interstate commerce, to induce or entice a minor to engage in sexual
activity, in violation of 18 U.S.C. § 2422(b). The evidence at trial proved that
Liton, while in Florida, used the internet to set up a sexual liaison with someone
else, also in Florida, whom he thought was a fourteen-year-old female. The person
was actually a law enforcement officer posing as a fourteen year old. Liton was
arrested after he showed up at the meeting place in Florida. Liton contends that the
district court erred in denying his motion for a judgment of acquittal because
neither the Commerce Clause nor the Necessary and Proper Clause of the
Constitution authorized the application of 18 U.S.C. § 2422(b) to activities that
occurred wholly within a single state.
When, as here, a constitutional argument is raised for the first time on
appeal, we review only for plain error. See United States v. Peters, 403 F.3d 1263,
1270-71 (11th Cir. 2005). To demonstrate plain error, Liton “must show that: (1)
an error occurred; (2) the error was plain; (3) it affected his substantial rights; and
(4) it seriously affected the fairness of the judicial proceedings.” See United States
v. Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003). An error is not plain unless it
is contrary to precedent directly resolving a legal issue. United States v.
Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).
The United States Constitution gives Congress the power “[t]o regulate
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Commerce with foreign Nations, and among the several States, and with the Indian
Tribes.” U.S. Const. Art. I, § 8, Cl 3. The Supreme Court has identified the
following three broad categories of activity that Congress may regulate under its
Commerce power: (1) “the use of the channels of interstate commerce;” (2) “the
instrumentalities of interstate commerce, or persons or things in interstate
commerce;” and (3) “activities that substantially affect interstate commerce.”
United States v. Lopez, 514 U.S. 549, 558-559, 115 S. Ct. 1624, 1629-1630, 131 L.
Ed. 2d 626, 637 (1995) (internal citations omitted).
We have held that the internet is an instrumentality of interstate commerce
and that “Congress clearly has the power to regulate the internet, as it does other
instrumentalities and channels of interstate commerce, and to prohibit its use for
harmful or immoral purposes regardless of whether those purposes would have a
primarily intrastate impact.” United States v. Hornday, 392 F.3d 1306, 1311 (11th
Cir. 2004). Moreover, use of an instrumentality of interstate commerce alone, even
without evidence that such use involved an interstate system, is “sufficient to
satisfy 18 U.S.C. § 2422(b)’s interstate-commerce element.” United States v.
Evans, 476 F.3d 1176, 1181 (11th Cir.), cert. denied, 218 S.Ct. (2007).
Regarding the Necessary and Proper Clause, U.S. Const. Art. I, § 8, Cl. 18,
we have granted Congress “substantial leeway” to regulate purely intrastate
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activity, whether economic or not, that it deems to have the potential, in the
aggregate, to thwart the broader regulation of interstate economic activity. United
States v. Maxwell, 446 F.3d 1210, 1215 (11th Cir. 2006). In a case involving
possession of child pornography, we held that 18 U.S.C. § 2252A was a valid
exercise of Congress’s authority under the Necessary and Proper Clause to
effectuate its power to regulate commerce among the several states, regardless of
whether the pornography ever traveled in, or was produced using materials that had
ever traveled in, interstate commerce. Id. at 1218-19.
This means that the district court did not err, much less plainly err, in
denying Liton’s motion for a judgment of acquittal on interstate commerce
grounds. The internet is an instrument or facility of interstate commerce and the
use of it, even if confined to purely intrastate transmissions, is sufficient to satisfy
§ 2422(b)’s interstate-commerce element. Moreover, Congress has the clear
authority under the Necessary and Proper Clause to proscribe Liton’s conduct,
even if it did occur purely within one state.
AFFIRMED.
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