Riding Along In My Automobile Ain’t Necessarily Interstate Commerce – Update for October 9, 2025

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8^TH CIRCUIT NOT DRIVEN TO FIND INTERSTATE NEXUS IN SEX CRIME

Muhammad Arif ran a little convenience store in rural Arkansas. He had a handyman employee, a guy who worked hard but could barely support his kids on what he made.

Mo wanted to throw a few extra bucks the family’s way. Great idea. He figured he could do that by soliciting the handyman’s young daughter to engage in sex with him. Not so great an idea. Twice while Mo was driving the 15-year-old home, he pitched her for sex in exchange for money. Twice she refused. Twice he gave her $20.00 to keep her mouth shut about his indecent pitch.

The young lady was short of money but not of brains. She secretly recorded Mo both times and turned him in. The Feds charged Mo with commercial sex trafficking of a minor in violation of 18 USC § 1591(a)(1).

The statute requires that the prohibited act was done “in or affecting interstate commerce.” At trial, a detective testified that Mo drove a 2016 Nissan that had been built in Mississippi. The government offered no evidence about how Mo’s use of the Nissan otherwise affected interstate commerce but argued that because Mo had propositioned the girl while driving in a car built in another state, his crime affected interstate commerce.

Mo argued the government failed to prove that what he did met the “interstate commerce” element. The district court agreed, holding that driving a car on a road, without more, is not evidence of “an actual rather than potential effect on interstate commerce.” The government appealed, arguing that committing a crime that affects interstate commerce, like commercial sex trafficking, satisfies the commerce element of § 1591(a)(1) even if the offense was committed without traveling across state lines.

Last week, the 8^th Circuit upheld the district court’s dismissal of Mo’s case. While the case is sex-related, the “interstate commerce” element – common to many federal criminal statutes – makes the analysis interesting and applicable to a variety of statutes that depend on “affecting commerce” for validity.

The Constitution’s Commerce Clause grants Congress the power to “regulate Commerce… among the several states.” For more than a century, the 8^th observed, “Supreme Court decisions have mechanically recited that the Commerce Clause permits congressional regulation of three categories: (1) the channels of interstate commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and (3) activities that ‘substantially affect’ interstate commerce.” This third category includes “purely local activities that are part of an economic class of activities that have a substantial effect on interstate commerce.”

The Circuit had previously held “that Congress’s use of ‘affecting’ in § 1591(a)(1)… suggests that there must be evidence of an actual rather than potential effect on interstate commerce.” The 8^th admitted that “it does not take much for a criminal act to affect interstate commerce. Any actual impact, no matter how minor, will do.” However, while “a probability of affecting commerce is sufficient in some cases… the probability must be realistic rather than merely speculative.”

Congress may prohibit conduct committed “through the use of the mail, telephone, telegraph, or other instrument of interstate or foreign commerce,” such as in the arson statute (18 USC § 844). But § 1591(a) is textually different than § 844. “The commerce element in § 1591(a)(1) is conduct ‘in or affecting interstate commerce,’ not use of an instrumentality of interstate commerce,” the appellate court wrote. “Merely using the channels or instrumentalities of interstate commerce is relevant but does not necessarily demonstrate an actual effect on commerce that satisfies the jurisdictional element.”

The government argued that, because a car is an instrumentality of commerce, proof of any use of a car in committing commercial sex trafficking of a minor is sufficient evidence of an actual impact. The Circuit disagreed: “Merely driving a car on a road, without more, does not establish a sufficient interstate commerce nexus. The use of an instrumentality of commerce for a 20-minute intrastate trip in this case is simply not the same as connecting to a multi-state cellular network or the internet, a system that is inexorably intertwined with interstate commerce.”

Mo’s Nissan was certainly linked to interstate commerce, but “the government’s evidence failed to establish that Arif’s use of the car in soliciting [the girl] during two short intrastate drives to her home had an identifiable actual effect on intrastate commerce.”

United States v. Arif, Case No. 24-2323, 2025 U.S. App. LEXIS 25582 (8th Cir. October 2, 2025)

~ Thomas L. Root