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United States v. Reed

United States District Court, District of Columbia

July 27, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES MARVIN REED, Defendant.

          MEMORANDUM OPINION AND ORDER

          Amit P Mehta United States District Judge

         Defendant James Marvin Reed is charged in a two-count indictment that alleges he engaged in illicit sexual conduct with two different minors while in a foreign country. In Count One, Defendant is charged with violating 18 U.S.C. § 2423(c), between January and December 2007, by traveling to the Philippines and exchanging money for sex with a minor child. In Count Two, Defendant is charged with violating 18 U.S.C. §§ 2423(c) and 2423(e), between January and August 2016, by residing in the Philippines and molesting and attempting to molest his own minor child.

         Defendant moves the court to dismiss the indictment against him as unconstitutional for several reasons. First, he claims that prosecuting him for a crime purportedly committed more than eight years prior to when he was formally charged constitutes impermissible pre-indictment delay. Second, he argues that the law under which he is charged in Count Two was enacted after part of his alleged conduct took place, making it retroactive legislation that violates the Ex Post Facto Clause. Third, Defendant submits that Congress did not have constitutional authority to enact 18 U.S.C. § 2423(c). Fourth, he moves to sever the Counts and proceed with separate trials if both Counts in the indictment are to stand. Lastly, Defendant asserts that the indictment must be dismissed because the District of Columbia is the wrong venue in which to try him.

         After thorough review of the parties' submissions and applicable law, the court will allow trial to proceed on Count One of the indictment, but not on Count Two. As to Count One, the court concludes that Congress has authority under the Foreign Commerce Clause to criminalize the conduct alleged therein, and Defendant's Due Process Clause rights were not violated by the Government obtaining an indictment years after the events in question. As to Count Two, the court concludes that the charges do not violate the Ex Post Facto Clause, but will dismiss Count Two because Section 2423(c) is unconstitutional as applied to the conduct alleged. Congress does not possess authority under either the Foreign Commerce Clause or the Necessary and Proper Clause to criminalize Defendant's alleged act of sexually molesting and attempting to sexually molest his four-year-old daughter while residing in the Philippines. In light of that conclusion, the court denies Defendant's Motion to Sever as moot. The court also rejects, at this juncture, Defendant's challenge to venue in the District of Columbia.

         I. BACKGROUND

         When ruling on a motion to dismiss an indictment, the district court assumes the truth of the factual allegations in the indictment and the Government's proffered facts. United States v. Ballestas, 795 F.3d 138, 148-49 (D.C. Cir. 2015). Accordingly, in order to resolve the motions to dismiss presently before the court, the court accepts as true the following facts.

         Defendant James Marvin Reed, a citizen of the United States, is a United States Navy veteran who has resided abroad for several years, with occasional trips to the United States. See Gov't's Resp. to Def.'s Mot. to Dismiss the Indictment, ECF No. 25 [hereinafter Gov't's Opp'n, ECF No. 25], at 2 & n.2, 5; Status Conf. Tr. (draft), May 5, 2017, at 9. In particular, Defendant traveled to the Philippines from the United States in January 2007 and remained there until at least 2008. See Gov't's Opp'n, ECF No. 25, at 5. On December 15, 2015, a grand jury indicted Defendant on one count of traveling in foreign commerce and engaging in illicit sexual conduct with a minor child (Minor A), in violation of 18 U.S.C. § 2423(c) (2007). See Indictment, ECF No. 1; Arrest Warrant, ECF No. 9. The grand jury returned a Superseding Indictment on May 4, 2017. See Superseding Indictment, ECF No. 26. The new indictment repeats the original charge (Count One) and adds a second count against Defendant for residing in a foreign country and engaging and attempting to engage in illicit sexual conduct with a different minor victim (Minor B), in violation of 18 U.S.C. § 2423(c), (e) (2016) (Count Two). See Superseding Indictment, ECF No. 26.[1]

         The original Indictment arose from a years-long investigation both in the Philippines and the United States. According to the Government, the department of Homeland Security Investigations (“HSI”) in Manila, Philippines (“HSI Manila”) first received information about the events giving rise to original Indictment in November 2008. See Gov't's Resp. to Def.'s Mot. to Dismiss Indictment Due to Pre-Indictment Delay, ECF No. 24 [hereinafter Gov't's Opp'n, ECF No. 24], at 1. HSI Manila began a covert operation to locate Defendant a few weeks later, but those efforts proved unsuccessful and investigative efforts waned when the original case agent retired between 2010 and 2012. See Id. at 2. In November 2012, after learning the case remained open, HSI agents in Manila and Washington, D.C., re-interviewed Minor A and began actively pursuing Defendant again. Id. Initial efforts to obtain Defendant's DNA from the United States military and when he passed through airport security in San Francisco, California, in December 2012, proved unsuccessful. Id.[2] In the early months of 2013, the Government subpoenaed Camber Corporation-believed to be Defendant's former employer-as well as Citibank and Delta Airlines to provide materials to a grand jury. Id. at 3. In late 2013, investigators successfully obtained DNA samples from Minor A and her child. Id. In April 2014, the Government requested statistical records of live births in the Philippines from the Government of the Philippines, which produced those records in September 2015. Id. Also in 2014, HSI pursued a lead in Guam, believing Defendant might be living there, and made a summons request to Facebook in a further attempt to locate Defendant. Id. Investigators were only able to determine Defendant's general location in 2015, after they identified the internet protocol address affiliated with his e-mail account, which placed him in the Philippines. Id. Defendant was taken into custody in the Philippines in August 2016, at which point he provided HSI Manila agents with a DNA sample and his address in Butuan, Philippines. Id. at 4. He was deported to the United States in September 2016. Id.

         The Government asserts that the evidence pertaining to Count One will show that Defendant traveled from the United States to the Philippines and subsequently engaged in a commercial, sexual relationship with Minor A. See Gov't's Opp'n, ECF No. 25, at 5-6. According to the Government, on January 17, 2007, Defendant boarded a flight in Hartford, Connecticut, to Minneapolis, Minnesota; traveled onward to Narita, Japan; and reached his final destination- Manila, Philippines-on January 18, 2007. Id. at 5. In September 2007, while in the Philippines, a mutual acquaintance introduced Defendant to Minor A and told Defendant that Minor A was 15 years old (though, in reality, she was 14 years old). Id. Defendant gave Minor A his business card and, a few days later, invited her to his residence at the Castle Peak Tower condominium complex, in Cebu City, Philippines. Id. Minor A visited Defendant at his home approximately ten times between September and December 2007 and engaged in sexual intercourse with Defendant during each visit. Id. at 5-6. The first time Minor A visited Defendant at his residence, Defendant gave her a glass of wine, took nude photographs of her, engaged in sexual intercourse with her, and offered her 2, 000 pesos and to pay for her school expenses. Id. at 6. On each visit that followed, Defendant paid Minor A 1, 000 pesos. Id. Minor A gave birth to a child the following year, when she was 15 years old. Id. According to DNA testing, there is a 99.9999% probability that Defendant is the father of Minor A's child. Gov't's Opp'n, ECF No. 24, at 4.

         With respect to Count Two, the Government submits that its evidence will show Defendant resided in the Philippines in 2016 and sexually assaulted his four-year-old daughter, Minor B. See Gov't's Surreply, ECF No. 37, at 2; Status Conf. Tr. (draft), May 5, 2017, at 4 (explaining that Defendant is biologically related to Minor B); Hr'g Tr. (draft), June 15, 2017, at 20.[3] The Government proffers that from January to August 2016, Minor B was in Defendant's care, control, and custody in the Philippines and, during those periods of custody, Defendant contacted and attempted to contact his penis with Minor B's vulva, as well as digitally penetrated Minor B's vaginal opening. Gov't's Opp'n to Def.'s Mot. to Sever, ECF No. 36 [hereinafter Gov't's Opp'n, ECF No. 36], at 3; Gov't's Surreply, ECF No. 37, at 2. Minor B eventually disclosed Defendant's conduct to her mother and grandmother. Gov't's Opp'n, ECF No. 36, at 3.

         II. DISCUSSION

         Defendant has moved to dismiss the Superseding Indictment on the grounds that (1) Count One violates his rights under the Fifth Amendment's Due Process Clause because the Government waited more than eight years to prosecute him; (2) Count Two violates his rights under the Ex Post Facto Clause because it retroactively criminalizes his lawful residency in the Philippines; and (3) both Counts allege violations of a statutory provision, 18 U.S.C. § 2423(c), that Congress lacked constitutional authority to enact. See Def.'s Mot. to Dismiss Indictment Due to Pre-Indictment Delay, ECF No. 18 [hereinafter Def.'s Mot. to Dismiss, ECF No. 18]; Def.'s Mot. to Dismiss Indictment, ECF No. 19 [hereinafter Def.'s Mot. to Dismiss, ECF No. 19]. With respect to the last argument, Defendant challenges the constitutionality of the statute both on its face and as applied to the allegations against him. Hr'g Tr. (draft), June 15, 2017, at 4. He asserts that Congress can rely upon neither the Commerce Clause nor the Necessary and Proper Clause to create the criminal offenses with which he is charged. See Def.'s Mot. to Dismiss, ECF No. 19, at 6-11; Def.'s Reply in Supp. of Mot. to Dismiss Indictment & Def.'s Mot. to Dismiss Superseding Indictment, ECF No. 29 [hereinafter Def.'s Reply, ECF No. 29], at 7-16. In the event the court finds both Counts rest on constitutional applications of Section 2423(c), Defendant moves to sever the charges and proceed in two separate trials. See Def.'s Mot. to Sever, ECF No. 34. Finally, Defendant urges the court to dismiss the Superseding Indictment in its entirety because venue is not proper in the District of Columbia.

         The court addresses each argument in turn.

         A. Pre-Indictment Delay

         Defendant first moves to dismiss Count One of the Superseding Indictment on the ground that the United States violated his due process rights by waiting until December 2015 to file charges against him for conduct that allegedly occurred in 2007. See Def.'s Mot. to Dismiss, ECF No. 18.

         The statutory period of limitations and the Due Process Clause of the Constitution guard against the imposition of stale charges against a criminal defendant. United States v. Lovasco, 431 U.S. 783, 789 (1977); United States v. Marion, 404 U.S. 307, 322-23 (1971). While a defendant's primary protection against a delayed prosecution is the limitations period, a defendant can show that a pre-indictment delay that does not violate the statute of limitations nonetheless violates his rights under the Due Process Clause by demonstrating that the delay (1) substantially prejudiced his right to a fair trial and (2) was used to gain tactical advantage over him. Marion, 404 U.S. at 324; accord United States v. Bridgeman, 523 F.2d 1099, 1111-12 (D.C. Cir. 1975); see United States v. Kilroy, 769 F.Supp. 6, 7 (D.D.C. 1991) (explaining that the defendant bears the burden of demonstrating both elements), aff'd on other ground, 27 F.3d 679 (D.C. Cir. 1994). A prosecutor's decision to delay indictment in order to investigate further does not offend the Constitution. Lovasco, 431 U.S. at 790, 796. Instead, the defendant must demonstrate that delay was a “deliberate prosecution tactic.” Bridgeman, 523 F.2d at 1112.

         Defendant contends that the eight-year period between the conduct alleged in Count One and the charges brought against him has prejudiced his ability to defend himself in this case because a substantial number of witnesses are now unavailable, and those that are available have faded memories. Specifically, Defendant notes that two restaurants in which he and Minor A purportedly were seen together have now closed and, as a result, their former employees and patrons are unavailable to aid in his defense. Def.'s Mot. to Dismiss, ECF No. 18, at 3. Similarly, in light of the substantial gap in time between the alleged conduct and return of the original Indictment, the employees and residents of the Castle Peak Tower condominium complex are no longer available to be interviewed. Id. Additionally, Defendant states that discovery revealed that his driver has “first hand knowledge of the alleged conduct, ” but Defendant cannot locate the driver for an interview in light of the passage of time. Id. at 3-4. Lastly, Defendant notes that the few witnesses he has been able to locate and contact can only provide diminished assistance because the lapse in time since the alleged events has affected their memories. Id. at 4. Collectively, Defendant concludes, the pre-indictment delay fatally undermines his ability to put on an effective defense.

         Defendant has failed to establish both the substantial prejudice and government misconduct necessary to prove that pre-indictment delay violated his due process rights. Although Defendant points to some prejudice resulting from the delay between the events alleged and return of the original Indictment, that prejudice falls short of constituting “substantial prejudice.” See Marion, 404 U.S. at 324. Defendant makes generalized statements about prejudice stemming from witnesses' loss of memory over time and only speculates that unavailable witnesses would be able to contribute to his defense, rather than make a specific claim that any one witness could offer exculpatory evidence. See United States v. Brodie, 326 F.Supp.2d 83, 88 (D.D.C. 2004); Kilroy, 769 F.Supp. at 8. Additionally, Defendant has made no effort to demonstrate that the Government intentionally delayed seeking an indictment in order to gain a tactical advantage in his prosecution. On the record presented, the court sees no evidence of strategic intent on the part of the Government. The Government represents that it first learned of the conduct giving rise to the charge in Count One a year after it allegedly occurred and that there was insufficient or incomplete evidence at that time to pursue criminal charges. See Gov't's Opp'n, ECF No. 24, at 1-2 (explaining inability to locate Defendant). Although the Government could have been more diligent in pursuing the case despite changes in personnel, cf. Id. at 3, that delay does not evidence bad faith. Indeed, the fact that the Government did not believe it had enough evidence to indict Defendant in 2008, or even 2014, and needed to investigate further reflects appropriate prosecutorial restraint, not an effort to take tactical advantage of Defendant.

         Accordingly, the court concludes Defendant did not suffer a violation of his rights under the Due Process Clause due to pre-indictment delay.

         B. Ex Post Facto Clause

         Defendant next moves to dismiss Count Two of the Superseding Indictment on the ground that Section 2423(c), as applied to the conduct alleged in that Count, violates his constitutional right to be free from retroactive legislation. Def.'s Reply, ECF No. 29, at 18-19. Count Two alleges: “Between on or about January 3, 2016, and on or about August 2, 2016, [Defendant] . . . did reside, temporarily and permanently, in the Philippines, a foreign country, and engage and attempt to engage in illicit sexual conduct . . . with another person under 18 years of age (MINOR B).” Superseding Indictment, ECF No. 26, at 2. Defendant submits that he has “resided” in the Philippines since long before 2013, when Congress amended Section 2423(c) to include, as an alternative element to “travel[] in foreign commerce, ” the act of “resid[ing], either temporarily or permanently, in a foreign country.” See Def.'s Reply, ECF No. 29, at 19; see also Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, § 1211, 127 Stat. 54, 142 (2013) (codified as amended at 18 U.S.C. § 2423); supra, at note 1. Consequently, Defendant concludes, to file charges against him in 2016 for a crime that depends on lawful conduct occurring prior to 2013-his residency in the Philippines-violates the Ex Post Facto Clause. See Def.'s Reply, ECF No. 29, at 19.

         The Constitution prohibits Congress from passing any “ex post facto Law, ” U.S. Const. art. I, § 9, cl. 3, which means, in part, that Congress may not punish an individual for committing an act that, at the time, was lawful to commit, Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798); Al Bahlul v. United States, 767 F.3d 1, 17-18 (D.C. Cir. 2014) (en banc). The court assesses whether a statute violates the Ex Post Facto Clause by determining if the statute “attach[es] new legal consequences to events completed before its enactment.” Bartko v. SEC, 845 F.3d 1217, 1223 (D.C. Cir. 2017). “New legal consequences” include (1) “impair[ment] [of] rights a party possessed when he acted”; (2) “increase[] [of] a party's liability for past conduct”; (3) “impos[ition] [of] new duties with respect to transactions already completed”; or (4) “material adjustments to the extent of a party's liability.” Id. (internal quotation marks omitted). However, “[a] statute is not made retroactive merely because it draws upon antecedent facts for its operation.” Cox v. Hart, 260 U.S. 427, 435 (1922); accord United States v. Hemmings, 258 F.3d 587, 594 (7th Cir. 2001) (applying Cox, 260 U.S. 427, to the Ex Post Facto Clause).

         Section 2423(c) does not qualify as an ex post facto law, as applied in Count Two, because the crime alleged did not occur until January 2016, after Congress amended the statute. The charges in Count Two require the Government to prove two elements: (1) residency in a foreign country; and (2) engaging or attempting to engage in noncommercial sexual conduct with a minor. 18 U.S.C. § 2423(c), (e), (f)(1). Both elements occurred simultaneously in January 2016 when Defendant (1) was residing in the Philippines and (2) allegedly engaged or attempted to engage in a sexual act with his minor daughter. It follows, then, that the law does not criminalize Defendant's act of residing in the Philippines prior to the alleged molestation in 2016. Rather, it criminalizes the act of molesting a child while residing in the Philippines. Defendant's residence in the Philippines in 2013 is irrelevant to Count Two and, thus, poses no ex post facto concern.

         Therefore, the court rejects Defendant's challenge to the constitutionality of Count Two based on the Ex Post Facto Clause.

         C. Constitutionality of Counts One and Two

         The heart of Defendant's Motion is that both Counts of the Superseding Indictment are unconstitutional because Congress did not have power to pass the statutory provision upon which they rest: Section 2423(c). Under Rule 12 of the Federal Rules of Criminal Procedure, the defendant in a criminal matter may challenge his or her indictment as unconstitutional at any point prior to trial. See Fed. R. Crim. P. 12(b)(3). In making such a challenge, the defendant may seek to invalidate the indictment as unconstitutional on its face or as applied to the conduct alleged. For the court to hold that a statute is facially unconstitutional, the defendant bears the heavy burden of demonstrating that “no set of circumstances exists under which the [statute] would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). In contrast, to succeed on an as-applied challenge, the defendant need only show that the statute is “an unconstitutional exercise of congressional power” as applied to the conduct set forth in the indictment. United States v. Sullivan, 451 F.3d 884, 887 (D.C. Cir. 2006). Here, Defendant brings both facial and as-applied challenges to each Count in the Superseding Indictment.

         To justify a piece of legislation, the Government must be able to point to an enumerated power in the Constitution that authorized Congress to enact it. It is beyond doubt that, “lacking a police power, ‘Congress cannot punish felonies generally.' A criminal act committed wholly within a State ‘cannot be made an offence against the United States, unless it [has] some relation to the execution of a power of Congress, or to some matter within the jurisdiction of the United States.'” United States v. Bond, 572 U.S.__, __, 134 S.Ct. 2077, 2086 (2014) (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 428 (1821); United States v. Fox, 95 U.S. 670, 672 (1878)). Here, the question is not whether Congress has the authority to criminalize conduct occurring wholly within one of the United States, but, relatedly, whether acts occurring wholly within a foreign country can be made “an offence against the United States” pursuant to one of Congress' enumerated powers.

         The Government asserts that Section 2423(c) is a constitutional exercise of Congress' authority to regulate international commercial activities under the Foreign Commerce Clause and its power to enact legislation that implements a non-self-executing treaty under the Necessary and Proper Clause. First, the Government explains that Section 2423(c), defined to reach either commercial or noncommercial sex acts with children, is a constitutional exercise of Congress' Foreign Commerce Clause power because it regulates conduct linked to a broad, international market in child trafficking and sex tourism. Gov't's Surreply, ECF No. 37, at 10-11. As a general matter, the Government submits that Congress possesses broader authority to regulate its citizens' conduct abroad than their activities at home. See Gov't's Opp'n, ECF No. 25, at 10. To the extent the Interstate Commerce Clause's familiar framework provides a helpful analytical tool, the Government contends that it represents a floor, rather than a ceiling, on Congress' power under the Foreign Commerce Clause. See Id. at 11. The Government believes Section 2423(c) to be a constitutional exercise of Congress' power on the ground that Congress had a rational basis to conclude having sex with minors, irrespective of whether money is exchanged, is part of a class of activities that has a substantial effect on the trafficking of children and sex tourism-commercial markets in which Americans participate-and failing to regulate that conduct would leave a large “gap” in Congress' overarching regulatory scheme. See Id. at 15-16; Gov't's Surreply, ECF No. 37, at 10-11. Second, and separately, the Government submits that the court may uphold Section 2423(c) as a proper exercise of Congress' authority under the Necessary and Proper Clause to pass legislation that implements a non-self-executing treaty to which the United States is a party: the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (“the Optional Protocol”), adopted May 25, 2000, T.I.A.S. No. 13, 095, 2171 U.N.T.S. 227 [hereinafter Optional Protocol]. See Gov't's Opp'n, ECF No. 25, at 20; Gov't's Surreply, ECF No. 37, at 12-13; see also S. Treaty Doc. 106-37 (2000). Whether defined to reach commercial or noncommercial sexual abuse of children, the Government contends, Section 2423(c) is rationally related to the Optional Protocol's broad interest in eliminating sexual harm of children and, therefore, should be upheld as constitutional implementing legislation. Gov't's Surreply, ECF No. 37, at 12-13.

         Defendant challenges Section 2423(c) as unsupported by either power of Congress. First, Defendant submits that, to the extent Congress possesses broader authority to regulate its citizens' conduct under the Foreign Commerce Clause than under the Interstate Commerce Clause, the Foreign Commerce Clause is not an absolute, world-wide police power. See Def.'s Mot. to Dismiss, ECF No. 19, at 4. Consequently, Defendant views the Interstate Commerce Clause's outer bounds as representative of the scope of the Foreign Commerce Clause. Analyzing Section 2423(c) under the Interstate Commerce Clause framework, Defendant asserts that Section 2423(c)'s commercial application-at issue in Count One-cannot survive because it touches neither a channel nor instrumentality of commerce, and “local, intra-national activity unconnected to travel in foreign commerce” is beyond Congress' power to regulate. Id. at 8, 10-11. Further, even if Congress can reach local foreign activity that substantially affects foreign commerce, Congress' authority cannot be construed so broadly as to allow it to “create comprehensive global regulatory schemes among the nations of the world.” Id. With respect to Section 2423(c)'s noncommercial application-at issue in Count Two-Defendant asserts that Congress may not regulate noncommercial conduct based on the effect it might, through a series of inferences, have on foreign commerce. Def.'s Reply, ECF No. 29, at 8-9. And, Defendant claims, Section 2423(c)'s noncommercial application does not fill a gap in a broader regulatory scheme designed to stop child sex trafficking because the only conduct that provision regulates is a local crime that is inherently noneconomic in nature. See Id. at 10-11. Second, as to the Necessary and Proper Clause, Defendant pushes back against the Government's theory that Section 2423(c) implements the Optional Protocol on the grounds that the statute is not implementing legislation, it proscribes conduct not mentioned in the treaty, and it is unrelated to the treaty's objective of preventing child trafficking and sex tourism. See Id. at 12-16.

         Defendant's challenge to Section 2423(c) implicates complicated questions of constitutional law. The court begins with his claim that Congress lacks authority under the Foreign Commerce Clause to pass Section 2423(c), as applied in Count One and Count Two. That inquiry first requires the court to determine the framework that governs such an analysis before it can assess whether Section 2423(c)'s commercial and noncommercial applications are constitutional, as applied to the conduct alleged in each Count. For the reasons that follow, the court concludes Congress can rely on the Foreign Commerce Clause to enact Section 2423(c)'s commercial application, as relevant to Count One, but not Section 2423(c)'s noncommercial application, as relevant to Count Two. Accordingly, the court then turns to whether Section 2423(c)'s noncommercial application may be considered a constitutional exercise of Congress' authority under the Necessary and Proper Clause to implement the Optional Protocol.

         1. Foreign Commerce Clause

         Article I of the United States Constitution authorizes Congress “[t]o regulate 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's interpretation of Congress' Commerce Power has developed through reference to the three sub-clauses within the Clause-the Foreign Commerce Clause, the Interstate Commerce Clause, and the Indian Commerce Clause-such that each occupies a distinct jurisprudential space in case law. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 18 (1831) (noting that “[t]he objects, to which the power of regulating commerce might be directed, are divided into three distinct classes . . . . [and] [w]hen forming this article, the convention considered them as entirely distinct”); accord Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 191-92 (1989) (explaining that the Tribes and States cannot be treated interchangeably for purposes of determining Congress' regulatory authority under the Commerce Clause because each triggers different structural considerations within our constitutional system); United States v. Pendleton, 658 F.3d 299, 306-07 (3d Cir. 2011) (surveying the evolution of the Commerce Power over time); United States v. Clark, 435 F.3d 1100, 1110-13 (9th Cir. 2006) (same). The scope of Congress' power under the Foreign Commerce Clause-“[t]o regulate Commerce with foreign Nations”-is at issue here.

         a. The ...


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