IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 10, 2009
No. 08-10461 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES CORNELL CLARK, Reverend;
MOUNT VERNON FAITH-IN-ACTION OUTREACH PROJECT;
MOUNT VERNON UNITED METHODIST COMMUNITY DEVELOPMENT;
TRINITY CHRISTIAN OUTREACH MINISTRIES;
MOUNT VERNON UNITED METHODIST CHURCH COMMUNITY
OUTREACH CORPORATION;
CLARK EVANGELISTIC OUTREACH MINISTRIES, INC.,
Defendants-Appellants.
********************
No. 08-10467
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REVEREND JAMES CORNELL CLARK,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of Texas
No. 5:07-CR-16-1
Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
James Clark appeals his conviction, asserting a novel due process chal-
lenge to a federal statute. We affirm.
I.
Clark, a minister of a church in Lubbock, Texas, met Carolyne Njau in
August 2005 while on a trip to Kenya. Clark approached Njau, a prostitute at
the time, in a hotel coffee shop. He falsely claimed to be a Texas Tech University
professor and a minister and, after chatting with Njau, invited her to his room
to talk further. Njau and Clark discussed her education,1 and Clark volunteered
that his church might be able to provide her a scholarship for study in the Unit-
ed States.
Once inside his hotel room, Clark encouraged Njau to shower in his bath-
room and, as she was showering, pulled back the curtain and complimented her
body. After her shower, Njau left the bathroom to find Clark in his underwear.
She testified that he touched her sexually as they watched a movie, and he had
her pose while he took a picture of her genitals.2 As Njau left his hotel room,
Clark gave her $100, instructing her to have herself tested for sexually trans-
1
Njau carried her school transcript with her at all times, hoping she would meet some-
one to help her find work or education.
2
That picture was recovered from Clark’s computer and introduced at his trial.
2
Nos. 08-10461, 08-10467
mitted diseases. She complied and reported back with the negative results.
In November 2005, after he left Kenya, Clark told Njau that his church
would sponsor her education in the United States. 3 In the following months,
they communicated frequently in preparation for her trip to the United States
and her enrollment at a college in Levelland, Texas, near Lubbock. When Njau
informed Clark that she would be unable to afford her airfare, he agreed to pay
it but suggested that she could pay him back by “serv[ing]” his friends. Njau
took that to imply sexual services in return for money, and she feared that Clark
would lead her back to prostitution; she accepted the airline ticket anyway.
From Njau’s first day in the United States in January 2006, Clark con-
trolled her every move. He spoke to her abusively when he picked her up at the
airport and instructed her to stay on campus each week from Monday to Friday,
when he would take her to his house for the weekend. He warned that “in this
country, if you do somebody wrong, they will just shoot you,” that “white people
don’t like black people,” and that Njau “should not . . . indulge into things [sic]
that will get [her] in trouble.” Njau felt frightened and intimidated and worried
that Clark could kill her.
Clark’s sexual advances continued. He forced her into his bed that first
night and sexually assaulted her in various ways. She told him to stop and that
he was hurting her, but he did not listen. Before taking her to the college
campus for the first time, he had her tested for sexually transmitted diseases
once again, accompanying her to the clinic and representing himself on clinic
forms as her uncle.4
Even after Njau moved into her dormitory, Clark communicated with her
every day by phone or e-mail, frequently demanded sex, and often came to cam-
3
Clark’s church was not in fact involved with his criminal activities. Rather, Clark
used money from shell entities he had set up to defraud the federal government.
4
On another occasion, Clark introduced Njau as his daughter.
3
Nos. 08-10461, 08-10467
pus to look for her. He required her to keep him informed of where she was and
what she did. A college dean encountered him once at Njau’s dormitory and no-
ticed that Clark knew surprisingly a lot about Njau’s whereabouts and activities.
When Njau refused sex, Clark threatened, in e-mails and phone conversa-
tions, to have her deported. He began calling the scholarship he had arranged
a “loan” of his own money and made it evident that he expected sex as repay-
ment.5 He said that he expected her to continue prostitution in the United
States, evidently with himself as her sole client. Despite Njau’s continued refus-
als, his threats of deportation eventually led to another sexual encounter.
Njau finally confided in a school administrator, who contacted authorities.
The district attorney asked Njau to record a phone conversation with Clark,
which she did on April 3, 2006. In the recording, Clark said in explicit terms
that he would allow Njau to stay in the country only if she provided him and his
friends with sexual favors. The next day, Clark was arrested on the state charge
of compelling prostitution.
Clark was convicted of importation of an alien for prostitution or other
immoral purposes under 8 U.S.C. § 1328.6 He was also convicted of several
counts of fraud and money laundering. On appeal, he challenges only his § 1328
conviction, but because of the effect of that conviction on his sentencing guideline
range, he requests that this court vacate his entire sentence. Clark attacks
§ 1328 as both overbroad and vague.
5
Clark had Njau and other Kenyan students clean his house. He paid the other stu-
dents but not Njau.
6
Section 1328 reads, in relevant part,“The importation into the United States of any
alien for the purpose of prostitution, or for any other immoral purpose, is forbidden.” It is the
international counterpart of the Mann Act, 18 U.S.C. § 2421, which when originally enacted
applied the same prohibition to movement across state lines.
4
Nos. 08-10461, 08-10467
II.
Clark argues that § 1328 is facially invalid, at least as it relates to “im-
moral purposes.” Although he does not challenge the statute’s prohibition of im-
porting aliens for purposes of prostitution, he observes that the general verdict
could have been on either basis. “We review questions of law de novo. Because
a facial challenge to the constitutionality of a statute presents a pure question
of law, we employ that standard here as we examine the merits.” Ctr. for Indi-
vidual Freedom v. Carmouche, 449 F.3d 655, 662 (5th Cir. 2006) (citation
omitted). As we recognized in Roark & Hardee LP v. City of Austin, 522 F.3d
533, 548 (5th Cir. 2008), “in Village of Hoffman Estates [v. Flipside, Hoffman Es-
tates, Inc., 455 U.S. 489, 494-95 (1982) (“Hoffman”),] the Supreme Court an-
nounced the proper procedure for analyzing a facial vagueness challenge.” The
first step is the overbreadth analysis, in which the court must
to determine whether the enactment reaches a substantial amount
of constitutionally protected conduct. If it does not, then the over-
breadth challenge must fail. The court should then examine the fa-
cial vagueness challenge and, assuming the enactment implicates
no constitutionally protected conduct, should uphold the challenge
only if the enactment is impermissibly vague in all of its applica-
tions.
Hoffman 455 U.S. at 494-95 (footnote omitted).
A.
So we begin with the overbreadth challenge. It requires little discussion,
because the overbreadth doctrine is applicable only to First Amendment chal-
lenges,7 and § 1328 does not even arguably implicate First Amendment rights.
7
See Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973); United States v. Salerno, 481
U.S. 739, 745 (1987) (“[W]e have not recognized an ‘overbreadth’ doctrine outside the limited
context of the First Amendment.”); United States v. Mazurie, 419 U.S. 544, 550 (1975) (“[C]hal-
lenges to statutes which do not involve First Amendment freedoms must be examined in light
(continued...)
5
Nos. 08-10461, 08-10467
Even if, arguendo, the decision in City of Chicago v. Morales, 527 U.S. 41, 52
(1999) (plurality), were read to expand the overbreadth doctrine to protected lib-
erty interests,8 § 1328, as we will show infra, does not infringe on any constitu-
tional rights.
B.
We move therefore to Clark’s vagueness challenge. As we have said, to be
unconstitutionally vague, a statute must be “impermissibly vague in all its appli-
cations,” Hoffman, 455 U.S. at 495, including its application to the party bring-
ing the vagueness challenge, Roark & Hardee, 522 F.3d at 546-47, 551 n.19.
“Objections to vagueness under the Due Process Clause rest on the lack of notice
and hence may be overcome in any specific case where reasonable persons would
know that their conduct is at risk.” Maynard v. Cartwright, 486 U.S. 356, 361
(1988). On the other hand, an ordinance is vague in all its applications where
“it subjects the exercise of [a] right . . . to an unascertainable standard,” Coates
v. City of Cincinnati, 402 U.S. 611, 614 (1971), or if, in other words, “‘men of com-
mon intelligence must necessarily guess at its meaning,’” id. (quoting Connally
v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)).
When considering whether a statute is vague in all its applications, “a re-
viewing court should examine the complainant’s conduct before analyzing other
hypothetical applications of the law because a [party] who engages in some con-
duct that is clearly proscribed cannot complain of the vagueness of the law as ap-
plied to the conduct of others.” Roark & Hardee, 522 F.3d at 546 (quoting Hoff-
man, 455 U.S. at 497) (quotation marks and alterations omitted). Where consti-
7
(...continued)
of the facts of the case at hand.”).
8
See Roark & Hardee, 522 F.3d at 551 n.19.
6
Nos. 08-10461, 08-10467
tutionally protected conduct is not threatened and “at least some of [the de-
fendant’s] conduct is clearly proscribed” by the statute under review, it cannot
be void for vagueness. Id. at 547.
III.
With the above framework in mind, we proceed to consideration of § 1328.
It is constitutionally sound.
A.
The first question, as explained above, is the overbreadth question: Does
the statute reach a substantial amount of constitutionally protected activity? As
we have said, overbreadth is relevant only to First Amendment challenges, Sa-
lerno, 481 U.S. at 745, but assuming arguendo that overbreadth applied in this
case, we examine Clark’s contention that the statute’s reference to “immoral
purposes” threatens to chill a constitutional right to engage in fornication and
similar sexual activity. Specifically, Clark marshals cases such as Eisenstadt v.
Baird, 405 U.S. 438 (1972) (creating a right to contraceptives under the Equal
Protection Clause), and Lawrence v. Texas, 539 U.S. 558 (2003) (creating a Due
Process Clause right to homosexual sodomy), for the proposition that the im-
moral purposes § 1328 covers are protected.
In United States v. Bitty, 208 U.S. 393 (1908), the Court construed § 1328
“in accordance with the familiar rule of ejusdem generis,” concluding that “the
immoral purpose referred to by the words ‘any other immoral purpose,’ must be
one of the same general class or kind as the particular purpose of ‘prostitution’
specified in the same clause of the statute.” Id. at 402.9 The Bitty Court held
9
In Bitty, 208 U.S. at 401, the Court adopted a broad definition of “prostitution,” taking
it to “refer[] to women who, for hire or without hire, offer their bodies to indiscriminate inter-
(continued...)
7
Nos. 08-10461, 08-10467
that “concubinage” (“cohabitation,” roughly, in modern terms) was an example
of female sexual degradation in the same class as prostitution. Later decisions
construing § 1328 in light of Bitty reasoned that simple fornication is not similar
enough to prostitution to fall within the statute’s ambit, see Hansen v. Haff, 291
U.S. 559, 562 (1934), but that importation of aliens for polygamy does qualify as
an immoral purpose, Cleveland v. United States, 329 U.S. 14, 18-19 (1946)
(Mann Act). Clark argues that even with Bitty and Hansen in place, § 1328
threatens to inhibit the exercise of constitutionally protected sexual freedoms.
We disagree. Even if Bitty created confusion and left now-protected con-
duct within the statute’s reach, the Court in Lawrence preserved Bitty and reme-
died its potential shortcomings. The best way to read Bitty, in light of recent de-
velopments in the constitutional treatment of sexuality, is not to sweep it away
altogether but to graft Lawrence onto it. The Lawrence majority, at the end of
its opinion, 539 U.S. at 578, in explaining the limited breadth of the right it was
recognizing, carefully pointed out that the case did “not involve public conduct
or prostitution” or “persons who might be injured or coerced.” That self-imposed
limitation on the breadth of Lawrence saves Bitty and § 1328.
Thus, in summary, the Court in Bitty limited “immoral purpose[s]” in
§ 1328 to activities like prostitution. There is no overbreadth problem with
§1328, because that section, on its face and as limited by Bitty, does not “reach
a substantial amount of constitutionally protected conduct.” Roark & Hardee,
522 F.3d at 548.
Therefore, we move to the vagueness challenge. As a threshold matter,
Clark must show that the statute is vague in his case and that he could not have
known that transporting a woman from Africa into virtual sex slavery in the
United States was an “immoral purpose.” See Roark & Hardee, 522 F.3d at 547.
9
(...continued)
course with men.” That is the definition the district court used in its jury instruction.
8
Nos. 08-10461, 08-10467
That does not strike us as a hard question. There was ample evidence that
Clark tricked his victim into coming to the United States for education, then
used fear to control her. He paid for her tuition but expected her to be sexually
accessible in exchange, and he appeared to be in the process of manipulating her
into becoming a plaything—a concubine, one might say—for himself and his
friends. His behavior falls squarely within the scope of the statute as defined by
Bitty, even in the wake of Lawrence.
Nor would Clark fare any better if we were to reach the statute’s facial val-
idity. To establish that the statute is facially vague, Clark must show that an
ordinary person cannot understand what conduct it prohibits or that the statute
encourages arbitrariness and discrimination by law enforcement.10 It is obvious
that most people are capable of analogizing prostitution to other sexual conduct
according to criteria of economic exchange, exploitation, and coercion. The defi-
nition of “immoral” conduct resembling prostitution may be “imprecise,” even as
limited by Bitty, but it is surely not “[in]comprehensible.” Coates, 402 U.S. at
614. 11 Unlike the ordinance challenged in Morales or Coates, § 1328 does not
10
Grayned, 408 U.S. at 108-09; Monroe, 178 F.3d at 308 (quoting Kolender v. Lawson,
461 U.S. 352, 357 (1983)).
11
The government provides a list of statutory phrases that have been saved from vague-
ness challenges.
The phrase ‘crime involving moral turpitude’ presents no greater uncertainty
or difficulty than language found in many other statutes repeatedly sanctioned
by the Court. The Sherman Act provides the most obvious example, ‘restraint
of trade’ as construed to mean ‘unreasonable or undue restraint of trade[.]’ Com-
pare other statutory language which has survived attack under the vagueness
doctrine in this Court: ‘in excess of the number of employees needed by such li-
censee to perform actual services’, ‘any offensive, derisive or annoying word’,
‘connected with or related to the national defense’, ‘psychopathic personality,’
‘willfully overvalues any security,’ ‘fair and open competition’, ‘reasonable var-
iations shall be permitted,’ ‘unreasonable waste of natural gas’, ‘political pur-
poses,’ ‘range usually occupied by any cattle grower[.]’
(continued...)
9
Nos. 08-10461, 08-10467
leave the decision of what constitutes an immoral act entirely in the discretion
of law enforcement,12 for the Supreme Court has, again, repeatedly restricted the
statute’s application to acts resembling prostitution. Clark has certainly not
brought any evidence that enforcement of the statute is arbitrary or discrimina-
tory. His own actions fall squarely within § 1328’s proscriptions, and the statute
is constitutionally valid and was validly applied here.
IV.
Clark objects to the jury instructions. We review instructions for abuse of
discretion, determining whether they provide a correct statement of the law, ade-
quately instruct the jurors, and are factually supportable. In determining
whether the evidence supports a given instruction, we evaluate that evidence in
the light most favorable to the government. United States v. Skilling, 554 F.3d
529, 547 (5th Cir. 2009), pet. for cert. filed, 77 U.S.L.W. 3645 (May 11, 2009). To
decide whether the instructions gave the jurors an adequate picture of the rele-
vant law, we consider all the evidence in context, including the lawyers’ argu-
ments to the jury. United States v. Chagra, 807 F.2d 398, 402-03 (5th Cir. 1986).
The court quoted the language from Bitty referring to “conduct of the same
general class or kind as prostitution.” That class, the district court said, “in-
cludes importing an alien for the purpose of sexual exploitation.” Sexual exploi-
tation, the court then explained, is “to use a person unjustly for one’s advantage
in a manner associated with or related to sex.”
Clark makes strained semantic arguments to the effect that the instruc-
tions left the jury with unfettered discretion to convict based on its own views
11
(...continued)
Jordan v. DeGeorge, 341 U.S. 223, 231 n.15 (1951). If those statutes could stand, then § 1328
surely does.
12
See Morales, 527 U.S. at 61-63; Coates, 402 U.S. at 614.
10
Nos. 08-10461, 08-10467
of sexual morality. All the evidence presented at trial (as well as the govern-
ment’s jury arguments), however, pointed to Clark’s importing an alien for pur-
poses of prostitution and “sexual exploitation” as the district court defined it.
The government never argued that Clark and Njau were in an immoral
but consensual relationship, and the prosecution elicited no evidence from Njau
to support such an argument. To the contrary, the government consistently em-
phasized Njau’s fear and suffering. In closing, it argued that Clark had gone to
Kenya looking for a prostitute and that he had believed that Njau would be
willing to repay her scholarship with sex. At voir dire, furthermore, the govern-
ment asked questions calculated to eliminate from the jury persons who were in-
clined to convict defendants based on fornication alone.
“Sexual exploitation,” of course, is a fair description of several categories
of sexual relationships left unprotected by Lawrence, and, in light of the entire
record, the chance that the jury convicted Clark of importing Njau for purposes
of extramarital consensual sex—which is what Clark seems to be implying—is
small indeed. See Chagra, 807 F.2d at 402-03. Those instructions are therefore
perfectly supportable under the facts and the caselaw; certainly it was within
the district court’s “substantial latitude” to phrase the charge in that way. Skil-
ling, 554 F.3d at 547 (quoting United States v. Pettigrew, 77 F.3d 1500, 1510 (5th
Cir. 1996)).
Clark also complains that the jury instruction was vague because it de-
fined sexual exploitation with reference to the concept of “justice.” The instruc-
tion, however, was not a simple exhortation to “justice” or “reasonableness.” See
United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921). When fleshed out by
context and record evidence, references to general concepts of good conduct do
not necessarily create vagueness in statements of the law.13 References to social
13
See United States v. Escalante, 239 F.3d 678, 680 (5th Cir. 2001) (upholding a statute
(continued...)
11
Nos. 08-10461, 08-10467
standards are permissible by the same token.14 Though views on sexual morality
obviously vary widely, the district court anchored the statute’s reference to “im-
morality” to prostitution and coercion. That adequately set the jury’s frame of
reference.
V.
Clark objects to an evidentiary ruling. At trial, a congregant at the church
where he was a minister testified that Clark had spoken in his public sermons
of having shot “hoodlums” for revenge and of being narrowly dissuaded from
shooting other people who had hurt a family member. Clark’s counsel objected
on relevance grounds, but the court admitted the testimony. Clark argues that
the testimony was evidence of prior bad acts that served only to illustrate his
character and so was inadmissible under Federal Rule of Evidence 404(b).
Evidence of prior bad acts is admissible if relevant for a rule 404(b) per-
missible purpose and not unduly prejudicial under rule 403 balancing. United
States v. Pompa, 434 F.3d 800, 805 (5th Cir. 2005). A general “relevance” objec-
tion, however, does not adequately implicate rule 404(b).15 We therefore review
admission of the bad acts testimony for plain error only.
“To prove plain error, [Clark] must show (1) there was error, (2) the error
was plain, (3) the error affected his substantial rights, and (4) the error seriously
affected the fairness, integrity or public reputation of judicial proceedings.”
13
(...continued)
forbidding “careless or imprudent [driving] . . . without due regard for [road conditions gener-
ally]”).
14
Id. (“This ubiquitous standard does not defy common understanding but relies on it.
In the context of rules of the road, few people misapprehend what constitutes careful driving
and what does not.”).
15
United States v. Greenwood, 974 F.2d 1449, 1462 (5th Cir. 1992); United States v.
Marrero, 904 F.2d 251, 259 & n.8 (5th Cir. 1990).
12
Nos. 08-10461, 08-10467
United States v. Jackson, 549 F.3d 963, 975 (5th Cir. 2008) (quotation marks
omitted), petition for cert. filed (Feb. 12, 2009) (No. 08-8714). Even if such an er-
ror occurred, the decision to grant relief is entirely discretionary. United States
v. Olano, 507 U.S. 725, 735-36 (1993).
The government contends, and we agree, that the congregant’s testimony
substantiated Njau’s report that Clark had implied that he would shoot her if
she did not comply with his demands. The fact that he has threatened to shoot
people before was relevant to show his intent to threaten Njau. That, in turn,
makes it more likely that Clark brought Njau to the United States to exploit
her.16 Thus the testimony was probative of more than Clark’s character. Cer-
tainly any error was not plain.
In summary, there is no reversible error, and the judgment of conviction
is AFFIRMED.
16
See United States v. Jamison, 299 F.3d 114, 121 n.3 (5th Cir. 2002) (holding evidence
of prior armed robbery relevant to show intent to “commit [another] robbery or to possess a
weapon illegally”).
13