     Case: 16-20125      Document: 00513798046         Page: 1    Date Filed: 12/14/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                     United States Court of Appeals

                                      No. 16-20125
                                                                              Fifth Circuit

                                                                            FILED
                                                                    December 14, 2016

UNITED STATES OF AMERICA,                                              Lyle W. Cayce
                                                                            Clerk
              Plaintiff - Appellee

v.

LUISA VARGAS, also known as Christina, also known as Cristi, also known
as Rocio,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CR-387-2


Before KING, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant Luisa Vargas (“Vargas”) appeals her conviction for engaging
in child sex trafficking under 18 U.S.C. § 1591. Because there was evidence to
support the conviction, we AFFIRM.
                                     I. Background
       Vargas operated a brothel out of an apartment complex in Houston,
Texas. Although it is not clear exactly how many prostitutes worked there, all

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 16-20125
appear to have been Hispanic and undocumented, including E.R.J., a fourteen-
year-old Mexican national who testified that she came to Texas to work as a
prostitute. E.R.J. explained that, as part of the arrangement, she would split
her daily earnings evenly with Vargas and that Vargas charged about $100 for
rent.
         Vargas also employed A.L.T. Like E.R.J., A.L.T. was undocumented.
A.L.T. testified that she also worked and lived at the apartment complex. She
said the girls working for Vargas “were from different countries,” including
Honduras, Colombia, and El Salvador. When asked if any were from the
United States, she replied, “I never saw any American.”
         Adriana Carrillo Martinez, another undocumented immigrant, testified
that she was approached by Vargas to work for her, but she instead chose to
work for Vargas’s sister, Laura, who ran her own brothel at the same
apartment complex. When asked about the girls working for Vargas, she
testified that they were from Mexico, Honduras, and El Salvador. She also
stated that the majority of the girls were not lawfully present in the United
States.
         Lleyton Rengifo Orozco, a Colombian national, also testified.        He
marketed the business and provided security.         Like every other Vargas
employee to testify, Orozco came to Houston as an undocumented immigrant
through Mexico. After discerning that some of the girls were underage, Orozco
called a hotline and informed law enforcement.
         The only other witness who testified was Houston Police Department
Officer Antonio Gracia. He was part of the team that raided the apartment
complex as a result of Orozco’s tip that underage prostitutes were employed
there.


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                                   No. 16-20125
      The Government indicted Vargas on charges of conspiracy to commit sex
trafficking, in violation of 18 U.S.C. § 1594(c) (“Count 1”), one count of sex
trafficking A.L.T. in violation of § 1591(a)(1), (a)(2) and (b)(2) (“Count 2”), one
count of sex trafficking E.R.J. in violation of § 1591(a)(1), (a)(2) and (b)(2)
(“Count 3”), and one count of harboring undocumented aliens in violation
of 8 U.S.C. § 1324(a)(1)(A)(v)(I), 1324(a)(1)(A)(iii), 1324(a)(1)(B)(i) (“Count 4”).
      After a bench trial, the district court acquitted Vargas of the conspiracy
(Count 1) and of the count of sex trafficking A.L.T (Count 2), but the court
convicted Vargas of the counts of sex trafficking E.R.J. (Count 3) and harboring
undocumented aliens (Count 4). In deciding the case, the district court found
that Vargas “knew she was dealing with people who were illegal immigrants.”
      In response to the court’s decision, Vargas questioned whether the
Government adduced evidence of interstate or foreign commerce. The district
court replied that “in a perfect world, you would be right . . . [But] I am
constrained to say that . . . they’re in interstate commerce since they’re
foreigners coming here for business.” Vargas timely filed a notice of appeal.
                             II. Standard of Review
      We review a district court’s finding of guilt after a bench trial to
determine whether it is supported by “any substantial evidence.”            United
States v. Shelton, 325 F.3d 553, 557 (5th Cir. 2003) (quoting United States v.
Rosas-Fuentes, 970 F.2d 1379, 1381 (5th Cir. 1992)). Because there was a
bench trial, this standard applies regardless of whether there was a formal
motion for a judgment of acquittal at the close of the evidence. See Rosas-
Fuentes, 970 F.2d at 1381; Hall v. United States, 286 F.2d 676, 677 (5th Cir.
1960) (holding that there is no need for a formal motion for a judgment of
acquittal in a bench trial because the “plea of not guilty asks the court for a
judgment of acquittal”).
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      “Evidence is sufficient to sustain a conviction if any rational trier of fact
could have found that the evidence established guilt beyond a reasonable
doubt.” Shelton, 325 F.3d at 557. We review the evidence in the light most
favorable to the verdict without ourselves making credibility choices or
weighing the evidence.     Rosas–Fuentes, 970 F.2d at 1381 (quoting United
States v. Jennings, 726 F.2d 189, 190 (5th Cir. 1984)). The district court’s legal
conclusions, however, are reviewed de novo. Shelton, 325 F.3d at 557.
      “The commerce clause nexus element in [a] statute is not ‘jurisdictional’
in the sense that a failure of proof would divest the federal courts of
adjudicatory power over [a] case.” United States v. Moreland, 665 F.3d 137,
144 n.3 (5th Cir. 2011).   Rather, the interstate commerce nexus element “is
‘jurisdictional’ only in the shorthand sense that without that nexus, there can
be no federal crime . . . under the statute.” United States v. Sealed Appellant,
526 F.3d 241, 243 (5th Cir. 2008) (quoting United States v. Martin, 147 F.3d
529, 531–32 (7th Cir. 1998)). Accordingly, Vargas’s challenge to the interstate
commerce element of § 1591 is simply a challenge to the sufficiency of the
evidence supporting that element. Id. at 243 n.4.
                                 III. Discussion
      Vargas argues that the evidence presented at trial is insufficient to
convict her of Count 3, sex trafficking of a minor. Specifically, she contends
that there is no evidence of the interstate commerce nexus, i.e., that her actions
were “in or affecting interstate or foreign commerce,” as the statute requires.
18 U.S.C. § 1591(a)(1). Vargas argues that, unlike in similar prosecutions, the
Government did not put forth evidence that she used interstate hotel chains or
telephone communication, or that she purchased condoms or clothing from out-
of-state manufacturers. See United States v. Phea, 755 F.3d 255, 263 (5th Cir.
2014); United States v. Anderson, 560 F.3d 275, 280 (5th Cir. 2009); United
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                                       No. 16-20125
States v. Willoughby, 742 F.3d 229, 240 (6th Cir. 2014); United States v. Evans,
476 F.3d 1176, 1179 (11th Cir. 2007). Citing Phea, Vargas also contends that
we have previously held that any evidence about a victim’s origin is irrelevant
to the question of whether the defendant’s actions occurred in or affected
interstate commerce, and thus, evidence that Vargas hired E.R.J. and A.L.T.,
who both illegally entered the country, is irrelevant to this case. 755 F.3d at
266.
        We disagree. Although the Government failed to present the specific
types of evidence mentioned above, it nonetheless presented other evidence
sufficient to sustain the conviction. 1 In Phea, the defendant challenged a jury
instruction that the Government meets its interstate nexus burden if it “proves
beyond a reasonable doubt that any of the acts of harboring a person . . .
affected the flow of money, goods or services in interstate commerce to any
degree.” 755 F.3d at 264. He argued that the instruction was in error because
it referred to “‘harboring a person’ generally, rather than specific acts of Phea
harboring [the victim].”        Id. at 266.       We disagreed with the defendant’s
interpretation of the charge and concluded that, viewing the instruction as a
whole, it was clear that it referred to his conduct. Id. Thus we recognized the
obvious conclusion that a defendant’s conduct is relevant to whether that
defendant’s actions affected interstate or foreign commerce.                  However, in




        1The Government did present evidence of interstate telephone communications in
Vargas’s effort to recruit A.L.T., however, the district court acquitted Vargas of that count.
Therefore, Vargas argues that the evidence of her recruitment of A.L.T. is irrelevant and
inadmissible for the purpose of showing that Vargas’s sex trafficking of E.R.J. affected
interstate or foreign commerce. See FED. R. EVID. 402, 403. Because we conclude that other
evidence is sufficient to support the interstate/foreign commerce nexus, we need not address
this argument.

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                                    No. 16-20125
making this conclusion, we did not hold, as Vargas contends, that a victim’s
movement in foreign commerce is irrelevant to the interstate nexus analysis. 2
      Here, as the district court found, it was clear that Vargas “knew she was
dealing with people who were illegal immigrants.” In fact, the Government
put forth evidence that almost all of the people involved in Vargas’s
prostitution business were undocumented. In addition, all of the witnesses to
testify, besides Officer Gracia, were or had been undocumented immigrants
when they began working for Vargas. Such evidence is proof sufficient to
support a finding that Vargas’s “business” model was to employ primarily
undocumented Hispanic immigrants. Arguably, the above evidence alone is
sufficient evidence of a foreign commerce nexus.
      However, we need not decide that issue because the Government
presented undisputed evidence showing that Vargas rented a Houston, Texas
apartment to house her prostitution business. Further, E.R.J. paid Vargas
rent to live and work as a prostitute in the apartment. The Supreme Court
has held that the rental of real estate is “unquestionably” an activity that
affects interstate commerce, as “the local rental of an apartment unit is merely
an element of a much broader commercial market in rental properties.”
Russell v. United States, 471 U.S. 858, 862 (1985). In Russell, the Court held
that an apartment building being rented to tenants constituted property “used
in an activity affecting interstate commerce,” within the meaning of 18 U.S.C.



      2 Cf. United States v. Thomas, 159 F.3d 296, 297 (7th Cir. 1998) (finding that the
Government sufficiently proved an interstate nexus under the Hobbs act by pointing to
evidence that the cocaine an informant had planned to sell to defendants was from South
America); United States v. Chesney, 86 F.3d 564, 570 (6th Cir. 1996) (holding that the
defendant’s stipulation that the gun had moved in interstate commerce was sufficient
evidence to support his conviction under 18 U.S.C. § 922(g)(1)).


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§ 844(i), which prohibits damaging such property by means of a fire or
explosion. Id. Citing Russell, we have stated that “[t]he Supreme Court has
unequivocally held that renting property implicates interstate commerce.”
United States v. Meshack, 225 F.3d 556, 573 (5th Cir. 2000), amended on reh’g
in part, 244 F.3d 367 (5th Cir. 2001), overruled on other grounds, United States
v. Cotton, 535 U.S. 625 (2002). Indeed we have recently applied Russell to
uphold a district court’s finding that an obstruction of an apartment renovation
projected necessarily affected interstate commerce. United States v. Bolar, 483
F. App’x 876, 882 (5th Cir. 2012). 3
       We conclude, therefore, that the Government presented sufficient
evidence of the interstate/foreign commerce nexus.
       AFFIRMED.




       3 Although Bolar is not “controlling precedent,” it “may be [cited as] persuasive
authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).
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