Eleventh Circuit Clarifies Non-Jurisdictional Nature of Interstate-Commerce Element in Child-Sex-Trafficking Prosecutions

Introduction

In United States v. Ralph Kevin Tovar, No. 23-10755 (11th Cir. Aug. 8, 2025), the Eleventh Circuit confronted three post-trial challenges to a conviction for attempted sex-trafficking of minors and attempted enticement of a minor. The defendant, posing as a customer of child sex, was caught in an undercover sting and argued on appeal that:

The Government failed to prove that his conduct was “in or affecting” interstate commerce under 18 U.S.C. § 1591(a)(1);
The jury instructions improperly converted the interstate-commerce requirement into a per se rule; and
The prosecutor committed misconduct by telling the jury that the interstate-commerce element was “not in dispute.”

While each issue carried doctrinal significance, the panel (Chief Judge William Pryor, and Judges Grant and Luck, with Judge Grant writing) seized the opportunity to settle a recurring question: does the interstate-commerce clause attached to a federal criminal statute limit the Court’s power (i.e., subject-matter jurisdiction), or is it merely an element of the offense to be proved to the fact-finder? Declaring the latter, the Court aligned itself squarely with Supreme Court guidance that statutory coverage limits are ordinarily non-jurisdictional unless Congress unmistakably says otherwise.

Summary of the Judgment

1. Standard of Review — Plain Error. Relying on Arbaugh v. Y&H Corp. and McIntosh v. United States, the panel held that the interstate-commerce language in § 1591(a) is non-jurisdictional. Because Mr. Tovar did not raise his commerce challenge in the district court, only plain-error review applied.
2. Sufficiency of the Evidence. Evidence that the defendant used a cellphone and the internet to arrange illegal sex was sufficient, under circuit precedent, to prove that the conduct was “in commerce.”
3. Jury Instructions. The trial court’s clarification that scienter is unnecessary for the commerce element was correct and tracked Eleventh Circuit Pattern Instruction language; no error occurred.
4. Prosecutorial Misconduct. The prosecutor’s comment that commerce was “not in dispute” was factually accurate and, even if imperfect, neither plain nor outcome-determinative error.
5. Disposition. Conviction AFFIRMED in all respects.

Analysis

A. Precedents Cited and Their Influence

Arbaugh v. Y&H Corp., 546 U.S. 500 (2006) – Created the bright-line rule that statutory requirements are non-jurisdictional unless Congress labels them jurisdictional. The Eleventh Circuit invoked this as the analytic anchor.
McIntosh v. United States, 144 S. Ct. 980 (2024) – Reaffirmed Arbaugh in the criminal context.
United States v. Alikhani, 200 F.3d 732 (11th Cir. 2000) & United States v. Viscome, 144 F.3d 1365 (11th Cir. 1998) – Prior Eleventh Circuit cases treating interstate-commerce clauses as elements rather than jurisdictional prerequisites.
United States v. Baston, 818 F.3d 651 (11th Cir. 2016) – Held that use of internet, cellphone, or hotel facilities satisfies § 1591’s commerce element; the Tovar panel deemed this controlling.
United States v. Evans, 476 F.3d 1176 (11th Cir. 2007) – Telephone use alone meets an interstate-commerce nexus in child-pornography cases.
Conflicting line: United States v. Clay, 355 F.3d 1281 (11th Cir. 2004) and others that loosely described commerce language as “jurisdictional.” The panel invoked the “earliest-precedent” rule to give controlling weight to the earlier decisions (e.g., Hyde, 5th Cir. 1971).

By synthesizing these authorities, the Court resolved an intra-circuit tension: earlier statements branding commerce clauses “jurisdictional” were linguistic carry-overs rather than holdings, and cannot overcome the formal ruling that they are mere elements.

B. Legal Reasoning

Textual Silence → Non-Jurisdictional. Congress gave district courts jurisdiction over “all offenses against the laws of the United States” in 18 U.S.C. § 3231. Section 1591 contains no express jurisdictional language. Applying Arbaugh’s bright line, the panel concluded that the commerce phrase limits statutory coverage, but not adjudicatory competence.
Merits vs. Power Distinction. Relying on Morrison v. National Australia Bank and Steel Co. v. Citizens, the opinion separates merits (did the statute reach this conduct?) from subject-matter jurisdiction (power to hear the case).
Plain-Error Framework. Because the element is non-jurisdictional, failure to object at trial forfeits the issue; reversal requires (1) legal error, (2) obviousness, (3) effect on substantial rights, and (4) serious impact on fairness.
Evidence Sufficiency. The defendant used a cellphone and the internet (instrumentalities of interstate commerce) to arrange the commercial sexual exploitation of minors. Eleventh-Circuit precedent deems any one of those uses sufficient.
Instructional Accuracy. The supplemental jury instruction merely clarified that the Government need not prove the defendant’s knowledge of the commerce nexus – mirroring the statute’s mens-rea structure.
Prosecutorial Comments. Because the commerce point was factually conceded (stipulations + evidence), labeling it “not in dispute” was accurate and, in any event, cured by the court’s admonition that argument is not evidence.

C. Impact on Future Litigation and Policy

Standard-of-Review Consistency. Litigants in the Eleventh Circuit can no longer invoke de-novo review of commerce challenges they failed to raise below; the issue is squarely treated as forfeitable.
Streamlined Prosecutions. Prosecutors need only show use of phones, internet ads, hotel rooms, banks or other commerce channels to satisfy § 1591(a)’s commerce clause, minimizing evidentiary fights over interstate movement.
Clarification for District Courts. Trial judges may confidently give pattern instructions indicating that scienter is not required for the commerce element and that use of instrumentalities suffices.
Effect on Other Statutes. The reasoning applies broadly to any federal criminal statute that contains a commerce-clause hook (e.g., Hobbs Act, § 922(g) firearms cases, child-pornography statutes), signaling an analytic shift away from describing such language as “jurisdictional.”
Precedent Hierarchy. The Court’s reliance on the “earliest-precedent” rule provides a methodological roadmap for reconciling conflicting intra-circuit statements on jurisdiction.

Complex Concepts Simplified

Subject-Matter Jurisdiction vs. Element of the Offense.
• Jurisdiction refers to a court’s legal authority to decide a case.
• An element is a fact the Government must prove to the jury for conviction.
The Tovar panel says the commerce language is an element—not a gatekeeper to the courthouse.
“In or Affecting Interstate Commerce.”
Congress often uses this phrase to tether a statute to its constitutional Commerce Clause power. It covers (a) activity within channels of commerce (phones, internet, highways), and (b) activity that substantially affects interstate trade.
Plain-Error Review.
Four-part test: (1) error, (2) clear/obvious, (3) affects defendant’s rights, (4) seriously affects fairness. If any prong fails, the conviction stands.
Stipulation.
A formal agreement between parties that a fact is true. Here, Tovar stipulated he used a cellphone and internet, but did not stipulate that such use satisfied the statutory element.

Conclusion

United States v. Tovar cements two doctrinal guideposts in Eleventh Circuit criminal practice: (1) Interstate-commerce clauses in federal offenses are ordinarily elements, not jurisdictional prerequisites, and therefore subject to forfeiture and plain-error review when not raised below; and (2) Minimal use of modern communication technology—cellphones, internet ads, banking—can satisfy the “in commerce” component of 18 U.S.C. § 1591(a). The ruling harmonises circuit precedent with Supreme Court teaching and provides clear instructions for trial courts, prosecutors, and defense counsel alike. Practitioners should now focus their litigation strategy on the mens rea and factual components of commerce usage, rather than on threshold jurisdictional objections unlikely to succeed.