Todd

Opinion by Judge NOONAN; Concurrence by Judge MILAN D. SMITH, JR.

OPINION

Jerome Eugene Todd appeals his conviction of three counts of sex trafficking in violation of 18 U.S.C. § 1591 (a)(1) and one count of conspiracy to engage in sex trafficking in violation of 18 U.S.C. § 371 . We affirm the convictions.

The statute, captioned the Trafficking Victim’s Protection Act (TVPA), is a new effort to deal with a social ill whose international as well as interstate dimensions have invited federal attention and action. The TVPA was enacted in December 2000 and amended, as relevant here, in December 2003, July 2006 and December 2008. The statute focuses on those (usually men) who make money out of selling the sexual *331 services of human beings (usually women) they control and treat as their profit-producing property.

Subtitled “Sex trafficking of children or by force, fraud, or coercion,” the law strikes at two particularly vicious permutations of commercialized sex: at the exploitation of minors in the business of selling sex and at the use of criminal means to produce the product being sold. This case falls into the second slot.

FACTS

We state the facts as to Todd’s treatment of…

concurring:

I join in full the panel’s amended opinion affirming Todd’s convictions and sentence for sex trafficking in violation of 18 U.S.C. § 1591 , and conspiracy to engage in sex trafficking in violation of 18 U.S.C. § 371 . I write separately only to explain my decision to join in the amended opinion. We previously held, sua sponte, that Todd’s sentence violated United States v. Booker, 543 U.S. 220, 236 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), because the jury was not asked whether “the offense was effected by force, fraud, or coercion.” See United States v. Todd, 584 F.3d 788, 793-94 (9th Cir.2009). Having reconsidered the issue in light of the government’s petition for rehearing, I have changed my perspective. 1

As I read 18 U.S.C. § 1591 , there is no “hole in the statute.” Contra Todd, 584 F.3d at 793 . Rather, 18 U.S.C. § 1591 (a) covers only those instances of sex trafficking in which force, fraud, or coercion was actually used, or where the trafficking involved children under the age of 14 or between ages 14 and 18. Subsection (b)(1) simply establishes the punishment for those offenses. Where a defendant engages in sex trafficking without the use of force, fraud,…

Suzanne Lee Elliott, Esq., Seattle, WA, for the defendant-appellant.

Ye-Ting Woo, Assistant United States Attorney, Seattle, WA, for the plaintiff-appellee.

Before: HARRY PREGERSON, JOHN T. NOONAN and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge NOONAN; Concurrence by Judge MILAN D. SMITH, JR.

NOONAN, Circuit Judge:

Jerome Eugene Todd appeals his conviction of three counts of sex trafficking in violation of 18 U.S.C. § 1591 (a)(1) and one count of conspiracy to engage in sex trafficking in violation of 18 U.S.C. § 371 . We affirm the convictions.

The statute, captioned the Trafficking Victim's Protection Act (TVPA), is a new effort to deal with a social ill whose international as well as interstate dimensions have invited federal attention and action. The TVPA was enacted in December 2000 and amended, as relevant here, in December 2003, July 2006 and December 2008. The statute focuses on those (usually men) who make money out of selling the sexual services of human beings (usually women) they control and treat as their profit-producing property.

Subtitled "Sex trafficking of children or by force, fraud, or coercion," the law strikes at two particularly vicious…