3 Trafficking Offenses 3 Trafficking Offenses
3.1 International drug trafficking 3.1 International drug trafficking
United States v. Campbell United States v. Campbell
Protective Principle
Restatement (4th) § 412 Jurisdiction Based on the Protective Principle
International law recognizes a state's jurisdiction to prescribe law with respect to certain conduct outside its territory by persons not its nationals that is directed against the security of the state or against a limited class of other fundamental state interests, such as espionage, certain acts of terrorism, murder of government officials, counterfeiting of the state's seal or currency, falsification of official documents, perjury before consular officials, and conspiracy to violate immigration or customs laws.
UNITED STATES of America, Plaintiff-Appellee, v. Christopher Patrick CAMPBELL, Defendant-Appellant.
No. 12-13647
Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
Feb. 20, 2014.
*803Robin J. Farnsworth, Daryl Elliott Wilcox, Federal Public Defender’s Office, Fort Lauderdale, FL, Michael Caruso, Federal Public Defender, Federal Public Defender’s Office, Miami, FL, for Defendant-Appellant.
Before PRYOR, JORDAN, and FAY, Circuit Judges.
Two changes in law — a statutory change and a decisional change — require us to reconsider whether the admission of a certification of the Secretary of State to establish extraterritorial jurisdiction for a prosecution of drug trafficking on the high seas violates a defendant’s right to confront the witnesses against him at trial. U.S. Const. Amend. VI. In United States v. Rojas, we held that the admission at trial of a certification to establish jurisdiction over a Panamanian vessel laden with cocaine and seized on the high seas did not violate the Confrontation Clause of the Sixth Amendment. 53 F.3d 1212, 1216 (11th Cir.1995). After we decided Rojas, Congress amended the Maritime Drug Law Enforcement Act to provide that “jurisdictional issues arising under this chapter are preliminary questions of law to be determined solely by the trial judge,” and that the “[jjurisdiction of the United States with respect to a vessel subject to this chapter is not an element of an offense.” Pub.L. 104-324, § 1138, *804110 Stat. 3901, 3988-89 (1996) (codified as amended at 46 U.S.C. § 70604(a)). Also after we decided Rojas, the Supreme Court overruled its decision in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), and held that the Confrontation Clause bars the admission of a testimonial statement by “a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford, v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177 (2004). In the light of these changes in law, we reach the same decision we reached in Rojas, but for a different reason. Because the certification proves jurisdiction, as a diplomatic courtesy to a foreign nation, and does not prove an element of a defendant’s culpability, we conclude that the pretrial admission of the certification does not violate the Confrontation Clause.
I. BACKGROUND
On October 26, 2011, the United States Coast Guard observed a vessel in the international waters off the eastern coast of Jamaica. While the Coast Guard was pursuing the vessel, the three individuals aboard the vessel discarded dozens of bales into the water, which the Coast Guard later determined to be approximately 997 kilograms of marijuana. The vessel lacked all indicia of nationality: it displayed no flag, port, or registration number. Glen-roy Parchment identified himself as the master of the vessel and claimed the vessel was registered in Haiti. The Coast Guard then contacted the Republic of Haiti to inquire whether the vessel was of Haitian nationality. The government of Haiti responded that it could neither confirm nor deny the registry. The other two individuals aboard the vessel, Christopher Patrick Campbell and Pierre Nadin Alegrand, as well as Parchment later admitted that they knew they were illegally transporting marijuana.
After a federal grand jury indicted Campbell, Alegrand, and Parchment under the Maritime Drug Law Enforcement Act, 46 U.S.C. § 70501 et seq., for conspiracy to possess and for possession with intent to distribute 100 kilograms or more of marijuana, id. §§ 70503(a)(1), 70506(a), 70506(b); 21 U.S.C. § 960(b)(2)(G), Campbell filed a motion to dismiss for lack of jurisdiction on three grounds: (1) that admission of a certification of the Secretary of State to prove a response to a claim of registry, see 46 U.S.C. § 70502(d)(2), would violate Campbell’s right under the Confrontation Clause and that there was insufficient evidence to prove that Campbell was aboard a vessel subject to the jurisdiction of the United States; (2) that the Act violated Campbell’s right to due process of law under the Fifth Amendment because he had no contacts with the United States; and (3) that Congress exceeded its constitutional power to define and punish felonies committed on the high seas when it enacted the Act. Campbell conceded that our precedents foreclosed his last two arguments, but he stated his intent to preserve his objections for further review.
The district court referred the motion to a magistrate judge, who held a hearing about whether the certification of the Secretary of State established jurisdiction. At the hearing, the United States introduced into evidence the certification of the Secretary of State, which included the statement of Commander Daniel Deptula of the United States Coast Guard that he had contacted the Republic of Haiti to inquire whether the vessel was registered there and that Haiti responded that it could neither confirm nor deny the registry of the vessel. Campbell objected to *805the admission of the certification on the ground that it violated his right under thé Confrontation Clause, but the magistrate judge overruled the objection because the certification was “self-authenticating” and “whether there should be further proof beyond the State Department document is really a separate question and does not go to the admissibility of the certification.” The magistrate judge issued a report and recommendation that the certification of the Secretary of State established extraterritorial jurisdiction over the vessel and that the Act was constitutional both on its face and as applied to Campbell. The district court adopted the report and recommendation.
Campbell waived his right to a trial by jury in a written statement signed by him, his counsel, the prosecutor, and the district court judge, and at a bench trial, the parties stipulated to the material facts. But Campbell maintained at trial that the stipulation about the communication between Commander Deptula and Haiti proved only the representation by the Coast Guard that a Haitian official could neither confirm nor deny the registration of the vessel and not that the communication from a Haitian official actually occurred. Campbell acknowledged that the district court had already determined its jurisdiction based only on the certification of the Secretary of State, but he argued “that there was nobody from Haiti that actually signed a certificate or provided any documents.” The district court found Campbell guilty on both the conspiracy and possession counts.
II. STANDARDS OF REVIEW
We review questions of law de novo and findings of fact for clear error. For example, we review “de novo a district court’s interpretation and application of statutory provisions that go to whether the court has subject matter jurisdiction.... The district court’s factual findings with respect to jurisdiction, however, are reviewed for clear error.” United States v. Tinoco, B04 F.3d 1088, 1114 (11th Cir.2002) (internal quotation marks omitted). “We review de novo the legal question of whether a statute is constitutional.” Id. at 1099. ’ And we review constitutional objections de novo. United States v. Brown, 364 F.3d 1266, 1268 (11th Cir.2004).
III. DISCUSSION
The Constitution empowers Congress “[t]o define and punish Piracies and Felonies committed on the high Seas, and Of-fences against the Law of Nations.” U.S. Const. Art. I, § 8, cl. 10. The Supreme Court has interpreted that Clause to contain three distinct grants of power: to define and punish piracies, to define and punish felonies committed on the high seas, and to define and punish offenses against the law of nations. United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1248 (11th Cir.2012). This appeal involves a conviction for an offense defined by an act of Congress under the second grant of power.
Congress enacted the Maritime Drug Law Enforcement Act to prohibit any person from “knowingly or intentionally ... possessing]'With intent to manufacture or distribute, a controlled substance on board ... a vessel subject to the jurisdiction of the United States.” 46 U.S.C. § 70503(a)(1). In 1996, Congress amended the Act to provide that' “jurisdiction of the United States with respect to a vessel subject to this chapter is not an element of an offense.” 46 U.S.C. § 70504(a). The section continues that “jurisdictional issues arising under this chapter are preliminary questions of law to be determined solely by the trial judge.” Id.
*806The Act declares “a vessel without nationality” as subject to the jurisdiction of the United States and defines a stateless vessel as including “a vessel aboard which the master or individual in charge makes a claim of registry and for which the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality.” Id. § 70502(c)(1)(A), (d)(1)(C). Congress made clear that the Act “applies even though the act is committed outside the territorial jurisdiction of the United States.” Id. § 70503(b). The Act permits several methods for obtaining a response from a foreign nation to a claim of registry and provides that a certification of the Secretary of State is conclusive proof of a response to a claim of registry by a foreign nation: “The response of a foreign nation to a claim of registry under paragraph (1)(A) or (C) may.be made by radio, telephone, or similar oral or electronic means, and is proved conclusively by certification of the Secretary of State or the Secretary’s designee.” Id. § 70502(d)(2). The Act does not require the certification of the Secretary of State to include the details of how an official received or from whom the official received the'response to a claim of registry from a foreign nation.
Campbell challenges his convictions on five grounds, four of which attack the constitutionality of the Act. First, Campbell argues that the admission of the certification of the Secretary of State to establish extraterritorial jurisdiction violated his right under the Confrontation Clause. Second, Campbell contends that the pretrial determination of jurisdiction under the Act violated his rights under the Fifth and Sixth Amendments to have a jury determine that issue. Third, Campbell argues that the certification of the Secretary of State provided insufficient evidence for the district court to determine that it had jurisdiction. Fourth, Campbell argues that Congress lacked the power under the Felonies Clause to define his conduct as a criminal offense. Fifth, Campbell argues that his conviction violated his right to due process under the Fifth Amendment because he had no contacts with the United States. These arguments fail.
A The Confrontation Clause Does Not Bar the Admission of a Certification of the Secretary of State To Establish Extraterritorial Jurisdiction.
Campbell argues that the admission of the certification of the Secretary of State without the ability to cross-examine a Haitian witness violated his right under the Confrontation Clause, but that argument fails. The Confrontation Clause does not bar the admission of hearsay to make a pretrial determination of jurisdiction when that hearsay does not pertain to an element of the offense. Because the stateless nature of .Campbell’s vessel was not an element of his offense to be proved at trial, the admission of the certification did not violate his right to confront the witnesses against him.
The Confrontation Clause provides that “[i]n all criminal prosecutions, thé accused shall enjoy the right ... to be confronted with the witnesses against him....” U.S. Const. Amend. VI. In Crawford, the Supreme Court ruled that the Confrontation Clause bars the admission of a testimonial statement by “a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” 541 U.S. at 53-54, 124 S.Ct. at 1365 (emphasis added). The Supreme Court explained that a testimonial statement “is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact,” such as an affidavit, custodial examination, or prior testimony at a preliminary hearing. Id. at 51, 124 S.Ct. at *8071364 (internal quotation marks omitted). But the Supreme Court has never extended the reach of the Confrontation Clause beyond the confines of a trial. See Bullcoming v. New Mexico, — U.S.-, 131 S.Ct. 2705, 2713, 180 L.Ed.2d 610 (2011) (“As a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had an opportunity to confront that witness.” (emphasis added)); Michigan v. Bryant, — U.S. -, 131 S.Ct. 1143, 1162, 179 L.Ed.2d 93 (2011) (“[W]hen a court must determine whether the Confrontation Clause bars the admission of a statement at trial, it should determine the primary purpose of the interrogation by objectively evaluating the statements and actions of the parties to the encounter, in light of the circumstances in which the interrogation occurs.” (emphasis added) (internal quotation marks omitted)); Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S.Ct. 989, 999, 94 L.Ed.2d 40 (1987) (opinion of Powell, J.) (“The opinions of this Court show that the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination.”); California v. Green, 399 U.S. 149, 157, 90 S.Ct. 1930, 1934-35, 26 L.Ed.2d 489 (1970) (“Our own decisions seem to have recognized at an early date that it is this literal right to ‘confront’ the witnesses at the time of trial that forms the core of the values furthered by the Confrontation Clause.” (emphasis added)); Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968) (“The right to confrontation is basically a trial right.” (emphasis added)).
In Rojas, we rejected a challenge, under the Confrontation Clause, to the introduction of a certification of the Secretary of State under the Act, 53 F.3d at 1216, but we decided that issue before Congress made the determination of extraterritorial jurisdiction a pretrial issue of law for the district court and before the Supreme Court decided Crawford. Our decision in Rojas relied on the pre-Crawford standard that permitted the admission of hearsay if it was sufficiently reliable. Id.; Roberts, 448 U.S. at 66,100 S.Ct. at 2539, abrogated by Crawford, 541 U.S. at 61-62, 124 S.Ct. at 1370-71. And Congress amended the Act to provide that extraterritorial jurisdiction is “not an element of an offense,” but is instead a “preliminary question[ ] of law to be determined solely by the trial judge.” 46 U.S.C. § 70504(a).
Although these changes in law mean that Rojas no longer controls this issue, the admission of the certification of the Secretary of State did not violate Campbell’s right under the Confrontation Clause. In United States v. Tinoco, we held that Congress was entitled to remove the jurisdictional requirement from consideration by the jury because that requirement “does not raise factual questions that traditionally would have been treated as elements of an offense under the common law,” such as the actus reus, causation, and the mens rea elements. 304 F.3d at 1108. Instead, the jurisdictional requirement serves as a “diplomatic courtesy to foreign nations and as a matter of international comity.” Id. Proof of jurisdiction “does not affect the defendant’s blameworthiness or culpability, which is based on the defendant’s participation in drug trafficking activities, not on the smoothness of international relations between countries.” Id. at 1109; see also United States v. Rendon, 354 F.3d 1320, 1327 (11th Cir.2003) (reiterating that extraterritorial jurisdiction is not an element of the offense). And, unlike some federal crimes in which the jurisdictional element provides Congress with the authority to proscribe the offense un*808der Article I, the Act makes the determination of jurisdiction a discretionary “statutory hurdle[ ] to a court’s subject matter jurisdiction.” Tinoco, 304 F.3d at 1104 n. 18; see also id. at 1110 n. 21 (explaining that many federal criminal statutes, such as the Hobbs Act, 18 U.S.C. § 1951(a), and the Travel Act, id. § 1952(a), “require! ] a particularized, case-by-case factual finding that some product or activity of the defendant relate in some way to interstate commerce”). This jurisdictional requirement “is unique because it is not meant to have any bearing on the individual defendant, but instead is meant to bear only on the diplomatic relations between the United States and foreign governments.” Id. at 1109. The Confrontation Clause protects a defendant’s trial right to confront testimony offered against him to establish his guilt, and the Supreme Court has never extended the reach of the Confrontation Clause beyond the confines of a trial. And, because a pretrial determination of extraterritorial jurisdiction does not implicate the Confrontation Clause, we need not decide whether the certification of the Secretary of State is testimonial in nature. Cf. United States v. Mitchell-Hunter, 663 F.3d 45, 52 (1st Cir.2011) (expressing doubt that a certification of the Secretary of State is testimonial hearsay because “an objective State Department designee would not expect that the certifications would be used at trial, as they are relegated by statute to the pretrial jurisdiction determination”); United States v. Angulo-Hernandez, 565 F.3d 2, 12 (1st Cir.2009) (questioning whether a certification of the Secretary of State under the Act is testimonial within the meaning of the Confrontation Clause).
Our analysis aligns with other authorities too. For example, faced with the same issue raised by Campbell, the First Circuit held that, “in this non-trial context, where evidence does not go to guilt or innocence, the Confrontation Clause does not apply.” United States v. Nueci-Peña, 711 F.3d 191, 199 (1st Cir.2013) (internal quotation marks omitted); see also Mitchell-Hunter, 663 F.3d at 51. And both this Court and other courts have declined to extend the right to confront witnesses to other pre- and post-trial proceedings that do not concern the adjudication of a defendant’s guilt or innocence. See, e.g., United States v. Powell, 650 F.3d 388, 392-93 (4th Cir.2011) (holding that the Confrontation Clause does not apply at sentencing and noting that all other federal circuit courts that hear criminal appeals agree); United States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir.2005) (holding that, even after Crawford, the confrontation right does not apply at a non-capital sentencing hearing); United States v. Smith, 79 F.3d 1208, 1210 (D.C.Cir.1996) (holding that the confrontation right does not apply at a pretrial detention hearing because the purpose is to determine whether accused may remain at large, and it “is neither a discovery device for the defense nor a trial on the merits”); United States v. Andrus, 775 F.2d 825, 836 (7th Cir.1985) (holding that the Sixth Amendment does not provide a confrontation right at a preliminary hearing); LaChappelle v. Moran, 699 F.2d 560, 564-65 (1st Cir.1983) (holding that the confrontation right does not apply at an in camera conference to determine the reason a witness refuses to answer a question because such a judicial proceeding “is not a stage of the trial at which an accused must be present”); United States v. Harris, 458 F.2d 670, 677-78 (5th Cir.1972), (holding that the confrontation right does not apply at a preliminary hearing); see also Wolff v. McDonnell, 418 U.S. 539, 567-68, 94 S.Ct. 2963, 2980, 41 L.Ed.2d 935 (1974) (“[Confrontation and cross-examination] are essential in criminal trials where the accused, if found guilty, may be sub*809jected to the most serious deprivations _But they are not rights universally applicable to all hearings[,] ... and it does not appear that confrontation and cross-examination are generally required in [disciplinary hearings in prisons].”); cf. United States v. Clark, 475 F.2d 240, 247 (2d Cir.1973) (holding that the confrontation right applies at a pretrial suppression hearing because “the suppression hearing centers upon the validity of the search for and seizure of evidence which the government plans to use later in seeking to prove guilt”). We need not decide whether the Confrontation Clause could ever apply to a pretrial determination and conclude only that it does not apply to this pretrial determination of jurisdiction where the certification does not implicate either the guilt or innocence of a defendant charged with an offense under the Act.
B.The Pretrial Determination of Jurisdiction Does Not Violate the ' Fifth or Sixth Amendment.
Campbell argues that the Fifth and Sixth Amendments require a jury to determine whether extraterritorial jurisdiction exists, but Campbell’s argument fails for two reasons. First, Campbell waived his right to a jury trial in a signed,- written filing. Second, as explained in the preceding section, we have rejected the argument that a jury must determine jurisdiction under the Act. See Rendon, 354 F.3d at 1327; Tinoco, 304 F.3d at 1109-10. Campbell acknowledges that these precedents foreclose his argument. After all, the Supreme Court long ago held, in a case about a ship seized at sea for carrying contraband (liquor during Prohibition), that a district court could decide before trial the jurisdictional issue about the location of the vessel without submitting that issue to a jury. Ford v. United States, 273 U.S. 593, 606, 47 S.Ct. 531, 535, 71 L.Ed. 793 (1927). The Supreme Court explained that the issue of jurisdiction “was necessarily preliminary to th[e] trial” because “[t]he issue whether the ship was seized within the prescribed limit did not affect the question of the defendants’ guilt or innocence. It only affected the right of the court to hold their persons for trial.” Id.
C. The District Court Did Not Err When It Determined It Had Jurisdiction ' Based on the Certification of the Secretary of State.
Campbell argues that the district court erred when it determined that extraterritorial jurisdiction existed. He argues that the certification of the Secretary of State lacked details about the communications between the Coast Guard and Haiti and that the United States did not offer any testimony to corroborate the certification. The district court did not err.
Campbell stipulated to the admission of the representations by the Coast Guard in the certification, and the Act provides that the certification is conclusive proof of a response to a claim of registry. The certification contained the statements of Commander Deptula, who explained that he had asked the Haitian government whether the suspect vessel was registered in Haiti and that Haiti responded that it could neither confirm nor deny the registry. The certification therefore provided conclusive proof that the vessel was within the jurisdiction of the United States under the Act.
D. The Act Is a Constitutional Exercise of Congressional Power under the Felonies Clause.
Campbell argues that Congress exceeded its authority under the Felonies Clause when it enacted the Act because his drug trafficking offense lacked any nexus *810to the United States and because drug trafficking was not a capital offense during the Founding era, but he acknowledges that his arguments are foreclosed by our precedents. “[W]e have always upheld extraterritorial convictions under our drug trafficking laws as an exercise of power under the Felonies Clause.” See Bellaizac-Hurtado, 700 F.3d at 1257. And we have long upheld the authority of Congress to “extend[ ] the criminal jurisdiction of this country to any stateless vessel in international waters engaged in the distribution of controlled substances.” United States v. Marino-Garcia, 679 F.2d 1373, 1383 (11th Cir.1982). Moreover, in United States v. Estupinan, we rejected an argument “that Congress exceeded its authority under the Piracies and Felonies Clause in enacting the [Maritime Drug Law Enforcement Act].” 453 F.3d 1336, 1338 (11th Cir.2006).
We also have recognized that the conduct proscribed by the Act need not have a nexus to the United States because universal and protective principles support its extraterritorial reach. See United States v. Saac, 632 F.3d 1203, 1209-11 (11th Cir. 2011); Estupinan, 453 F.3d at 1338 (“[T]his circuit and other circuits have not embellished the [Act] with the requirement of a nexus between a defendant’s criminal conduct and the United States.” (internal quotation marks and alterations omitted) (quoting Rendon, 354 F.3d at 1325)). The Felonies Clause empowers Congress to punish crimes committed on the high seas. Saac, 632 F.3d at 1210. And “inasmuch as the trafficking of narcotics is condemned universally by law-abiding nations, we see no reason to conclude that it is 'fundamentally unfair’ for Congress to provide for the punishment of persons apprehended with narcotics on the high seas.” Estupinan, 453 F.3d at 1339 (internal quotation marks omitted). Congress “may assert extraterritorial jurisdiction over vessels in the high seas that are engaged in conduct that ‘has a potentially adverse effect and is generally recognized as a crime by nations that have reasonably developed legal systems.’ ” Tinoco, 304 F.3d at 1108 (quoting United States v. Gonzalez, 776 F.2d 931, 939 (11th Cir.1985)). And “[t]he protective principle does not require that there be proof of an actual or intended effect inside the United States.” Gonzalez, 776 F.2d at 939. Congress also may assert extraterritorial jurisdiction because “the law places no restrictions upon a nation’s right to subject stateless vessels to its jurisdiction.” United States v. Ibarguen-Mosquera, 634 F.3d 1370, 1379 (11th Cir.2011) (internal quotation marks omitted). Stateless vessels, such as the one Campbell boarded, are “international pariahs” that have “no internationally recognized right to navigate freely on the high seas.” Marino-Garcia, 679 F.2d at 1382; see also United States v. Perlaza, 439 F.3d 1149, 1161 (9th Cir.2006) (discussing that for stateless vessels, no proof of nexus is required); Rendon, 354 F.3d at 1325 (“Because stateless vessels do not fall within the veil of another sovereign’s territorial protection, all nations can treat them as their own territory and subject them to their laws.” (internal quotation marks omitted)).
Campbell argues that Congress cannot proscribe drug trafficking on the high seas under the Felonies Clause because only capital crimes were considered felonies at the Founding, but we disagree. Although we have recognized that “there is a dearth of authority interpreting the scope of Congress’s power under the [Felonies] Clause,” Saac, 632 F.3d at 1209, the First Congress understood its power under the Felonies Clause to include proscribing criminal conduct on the high seas that did not warrant capital punishment. In the Crimes Act of 1790, the First Congress made it a crime at sea to “entertain or *811conceal any such pirate or robber, or receive or take into his custody any ship, vessel, goods or chattels, which have been by any such pirate or robber piratically and feloniously taken” and punished that conduct with “imprison[ment] not exceeding three years,” Ch. 9, § 11, 1 Stat. 112, 114; imposed a three-year maximum sentence, if convicted, for “any seaman or other person [who] commit[s] manslaughter upon the high seas,” id. § 12, 1 Stat. at 115; and imposed a seven-year maximum sentence for intending to “maim or disfigure” a person “upon the high seas,” id. § 13, 1 Stat. at 115.
At the time of the Founding, there was “ambiguity in the meaning of [a] felony.” Will Tress, Unintended Collateral Consequences: Defining Felony in the Early American Republic, 57 Clev. St. L.Rev. 461, 465 (2009). “At common law, [a felony was] an offense for which conviction resulted] in forfeiture of the defendant’s lands or goods (or both) to the Crown, regardless of whether any capital or other punishment [was] mandated.” Black’s Law Dictionary 651 (8th ed.2004); see also 4 William Blackstone, Commentaries *94 (1769) (“Felony, in the general acceptation of our English law, comprizefd] every species of crime, which occasioned at common law the forfeiture of lands or goods.”); Giles Jacob, A New Law Dictionary (10th ed. 1782) (listing types of punishment for felonies at common law, including death, loss of inheritance, and forfeiture of goods and lands). “By the late seventeenth century, felony had come to mean any very serious crime, especially those punishable by death.” Eugene Kontorovich, The “Define and Punish” Clause and the Limits of Universal Jurisdiction, 103 Nw. U.L.Rev. 149, 160 (2009) (quoting Blackstone, supra, at *94); see also Jacob, supra (“Felony is distinguished from lighter offenses, in that the punishment of it is death: but not always, for petit larceny is felony, ... yet it is not punished by death, though it be loss of goods....”). And at the time of the Founding, felony was “a multi-defi-nitional term” with “so many meanings from so many parts of the common law[ ] and so many statutes ... that it is impossible to know precisely in what sense we are to understand this word.” Tress, supra, at 463, 465 (quoting 6 Nathan Dane, Digest of American Law 715 (1823)); see 2 Timothy Cunningham, A New and Complete Law Dictionary (3d ed. 1783) (explaining that, “by the law at this day,” felonies included treason, murder, homicide, burning of houses, burglary, robbery, rape, chance-medley, and petit larceny and that punishments for felonies ranged from death and forfeiture of goods and chattels to terms of imprisonment and hard labor). As James Madison explained, in defense of the power of Congress to define felonies on the high seas, the term “felony” has a “loose signification.” The Federalist No. 12, at 262 (James Madison) (Clinton Rossiter ed., 1961); see also United States v. Smith, 18 U.S. (5 Wheat.) 153, 159, 5 L.Ed. 57 (1820) (acknowledging the “indeterminate” definition of felony under the Felonies Clause). Campbell’s argument that only capital crimes were felonies at the time of the Founding fails because the Founding generation would have understood the term to include a broader range of crimes.
Campbell cites United States v. Palmer, 16 U.S. (3 Wheat.) 610, 4 L.Ed. 471 (1818), to support his argument that Congress may punish only capital offenses under the Felonies Clause, but Palmer did not address this issue. In Palmer, the Supreme Court upheld a law enacted by Congress under the Piracies and Felonies Clause that prohibited “murder or robbery, or any other offence, which, if committed within the body of a county, would by the laws of the United States, be punishable with death.” Id. at 626-27. But the Court *812explained that “punishable with death” served solely to identify which other crimes were included in the statute even though not particularly recited. Id. at 628. Palmer did not address whether Congress could exercise its power, under the Felonies Clause, to proscribe conduct not punishable by death. Although Palmer did not address this issue, we have repeatedly held that Congress has the power, under the Felonies Clause, to proscribe drug trafficking on the high seas. See, e.g., Estupinan, 453 F.3d at 1339; Rendon, 354 F.3d at 1326.
E. Campbell’s Conviction Did Not Violate His Right to Due Process.
Campbell argues that his convictions violated his right to due process because his offense of drug trafficking lacked a nexus to the United States, but he concedes that our precedents foreclose this argument too. We held in Rendon that the Due Process Clause of the Fifth Amendment does not prohibit the trial and conviction of an alien captured on the high seas while drug trafficking, because the Act provides clear notice that all nations prohibit and condemn drug trafficking aboard stateless vessels on the high seas. 354 F.3d at 1326. And “this [Circuit and other circuits have not embellished the [Act] with the requirement of a nexus between a defendant’s criminal conduct and the United States.” Estupinan, 453 F.3d at 1338 (internal quotation marks and alterations omitted). Campbell’s conviction did not violate his right to due process under the Fifth Amendment.
IV. CONCLUSION
We AFFIRM Campbell’s judgment of convictions.
3.2 Human trafficking 3.2 Human trafficking
Trafficking Victims Protection Act overview Trafficking Victims Protection Act overview
The ABA's Human Trafficking Project provides an accessible overview of human trafficking legislation and executive orders.
Claudia G. Catalano, ... Trafficking Victims Protection Act ..., 75 A.L.R. Fed. 2d 467 (2022) (Lexis link), includes the following overview:
When it enacted the Trafficking Victims Protection Act in 2000, … Congress intended to reach cases in which persons were held in a condition of servitude through nonviolent coercion. … [I]t was enacted to combat trafficking across international borders and into the United States …. [T]he TVPA created four new federal crimes.
18 U.S.C.A. § 1589 … proscribed "forced labor" or knowingly providing or obtaining a person's labor or services by three means: (1) threats of serious harm to, or physical restraint against, that person or another person; (2) any scheme, plan, or pattern intended to cause the person to believe that, if the person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint; or (3) the abuse or threatened abuse of law or the legal process. The section also provides for a maximum sentence of imprisonment.
In 2008, the section was revised to permit one or any combination of four means: (1) force, threats of force, physical restraint, or threats of physical restraint to that person or another person; (2) serious harm or threats of serious harm to that person or another person; (3) the abuse or threatened abuse of law or legal process; or (4) any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint. At 18 U.S.C.A. § 1589(b), the current version provides punishment also for those who "knowingly [benefit], financially or by receiving anything of value, from participation in a venture" that engaged in forced labor while" knowing or in reckless disregard of the fact" that the venture was doing so. …
18 U.S.C.A. § 1590 prohibits knowingly recruiting, harboring, transporting, providing, or obtaining by any means, any person for labor or services in violation of the chapter, that is, for purposes of peonage, slavery, involuntary servitude, or forced labor. It also provides for sentencing. The 2008 and current version subjects to the same penalties at 18 U.S.C.A. § 1590(b) "whoever obstructs, attempts to obstruct, or in any way interferes with or prevents the enforcement of this section."
18 U.S.C.A. § 1591 prohibits sex trafficking of children or by force, fraud or coercion. The elements of the offense in 2000 were knowingly and "in or affecting interstate commerce" recruiting, enticing, harboring, transporting, providing, or obtaining by any means a person knowing that force, fraud, or coercion would be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, or knowingly benefiting, financially or by receiving anything of value, from participation in a venture which has engaged these act. It provided for sentencing and defined "commercial sex act," "coercion," and "venture."
In 2008, this provision was amended to also prohibit "maintaining" the victim, the "reckless disregard" of the fact, that means of force, threats of force, fraud, coercion or any combination of such means" might be used to cause the sex act and to relieve the government from proving knowledge of the victim's age if the defendant had a reasonable opportunity to observe that person. Also added were definitions of "abuse or threatened abuse of law or legal process" and "serious harm." …
[18 U.S.C.A. § 1592 covers] "document servitude," or "unlawful conduct with respect to documents in furtherance of trafficking, peonage, slavery, involuntary servitude, or forced labor” …. It applies to "whoever knowingly destroys, conceals, removes, confiscates, or possesses any actual or purported passport or other immigration document, or any other actual or purported government identification document, of another person" with the intent to violate another offense found in the chapter or in the course of doing so, or "to prevent or restrict or to attempt to prevent or restrict, without lawful authority, the person's liberty to move or travel, in order to maintain the labor or services of that person, when the person is or has been a victim of a severe form of trafficking in persons." It provides for punishment and excepts from its application a victim of a severe form of trafficking in persons if that conduct is caused by, or incident to, that trafficking.
In 2008, the provision was amended to subject to punishment "whoever obstructs, attempts to obstruct, or in any way interferes with or prevents the enforcement of this section." Also added was a provision at 18 U.S.C.A. § 1593A which criminalizes knowingly benefitting, financially or by receiving anything of value, from participation in a venture which violated §§ 1581(a), 1592, or 1595(a). …
[Finally, 18 U.S.C. § 1596 gives] U.S. courts extraterritorial jurisdiction over any offense (or any attempt or conspiracy ...) under §§ 1581, 1583, 1584, 1589, 1590, or 1591 if the alleged offender is a national of the United States, an alien lawfully admitted for permanent residence or an offender present in the United States, irrespective of his nationality ….
For the State Department's anti-human trafficking policy, titled "Prosecution, Protection, and Prevention," see Department's Office to Combat Trafficking in Persons here.
Selected Trafficking Statutes Selected Trafficking Statutes
18 U.S.C. § 1581:
(a) Whoever holds or returns any person to a condition of peonage ... shall be fined under this title or imprisoned not more than 20 years, or both....
The next four statutes are part of the Trafficking Victims Protection Act:
18 U.S.C. § 1589:
(a) Whoever knowingly provides or obtains the labor or services of a person by any one of, or by any combination of, the following means—
(1) by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person;
(2) by means of serious harm or threats of serious harm to that person or another person;
(3) by means of the abuse or threatened abuse of law or legal process; or
(4) by means of any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint,
shall be punished as provided under subsection (d).
(b) Whoever knowingly benefits, financially or by receiving anything of value, from participation in a venture which has engaged in the providing or obtaining of labor or services by any of the means described in subsection (a), knowing or in reckless disregard of the fact that the venture has engaged in the providing or obtaining of labor or services by any of such means, shall be punished as provided in subsection (d).
(c) In this section:
(1) The term “abuse or threatened abuse of law or legal process” means the use or threatened use of a law or legal process, whether administrative, civil, or criminal, in any manner or for any purpose for which the law was not designed, in order to exert pressure on another person to cause that person to take some action or refrain from taking some action.
(2) The term “serious harm” means any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm.
18 U.S.C. § 1590:
(a) Whoever knowingly recruits, harbors, transports, provides, or obtains by any means, any person for labor or services in violation of this chapter shall be fined under this title or imprisoned not more than 20 years, or both. If death results from the violation of this section, or if the violation includes kidnapping or an attempt to kidnap, aggravated sexual abuse, or the attempt to commit aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title or imprisoned for any term of years or life, or both.
(b) Whoever obstructs, attempts to obstruct, or in any way interferes with or prevents the enforcement of this section, shall be subject to the penalties under subsection (a).
18 U.S.C. § 1591:
(a) Whoever knowingly recruits, harbors, transports, provides, or obtains by any means, any person for labor or services in violation of this chapter shall be fined under this title or imprisoned not more than 20 years, or both. If death results from the violation of this section, or if the violation includes kidnapping or an attempt to kidnap, aggravated sexual abuse, or the attempt to commit aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title or imprisoned for any term of years or life, or both.
(b) Whoever obstructs, attempts to obstruct, or in any way interferes with or prevents the enforcement of this section, shall be subject to the penalties under subsection (a).
18 U.S.C. § 1592:
(a) Whoever knowingly destroys, conceals, removes, confiscates, or possesses any actual or purported passport or other immigration document, or any other actual or purported government identification document, of another person ... in the course of a violation of [§§ 1581, 1589, and 1594(a), or] with intent to violate [§§ 1581, 1589, and 1594(a)] ... shall be fined under this title or imprisoned ….
18 U.S.C. § 1596:
(a) In General.—In addition to any domestic or extra-territorial jurisdiction otherwise provided by law, the courts of the United States have extra-territorial jurisdiction over any offense (or any attempt or conspiracy to commit an offense) under section 1581, 1583, 1584, 1589, 1590, or 1591 if—
(1) an alleged offender is a national of the United States or an alien lawfully admitted for permanent residence (as those terms are defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)); or
(2) an alleged offender is present in the United States, irrespective of the nationality of the alleged offender.
18 U.S.C. § 3271:
(a) Whoever, while employed by or accompanying the Federal Government outside the United States, engages in conduct outside the United States that would constitute an offense under chapter 77 or 117 of this title if the conduct had been engaged in within the United States or within the special maritime and territorial jurisdiction of the United States shall be punished as provided for that offense.
United States v. Backman (9th Cir. 2016) United States v. Backman (9th Cir. 2016)
United States v. Backman, 817 F.3d 662 (9th Cir. 2016)
GRABER, Circuit Judge:
Defendant Chang Ru Meng Backman appeals her conviction and sentence on one count of sex trafficking by force, fraud, or coercion, in violation of 18 U.S.C. § 1591(a). The jury convicted Defendant of forcing into prostitution a Chinese woman who had been tricked into flying to Saipan [in the Northern Mariana Islands, and thus in U.S. jurisdiction] on promises of a work visa and a legal job, when in fact the victim received only a tourist visa, was effectively imprisoned, and was told repeatedly that she had nowhere to turn and must engage in prostitution. On appeal, Defendant argues that, under two recent Supreme Court decisions, the jury instructions were improper; that there was insufficient evidence to support the conviction; that the district court erred in denying her motion under Federal Rule of Evidence 412 to admit evidence of the victim's sexual conduct after the indictment period; and that the district court erred by applying a sentencing enhancement for a "vulnerable victim" under U.S.S.G. § 3A1.1(b)(1). We affirm.
FACTUAL AND PROCEDURAL HISTORY
The Trafficking Victims Protection Act of 2000 ("TVPA") criminalizes, among other acts, sex trafficking by force, fraud, or coercion. 18 U.S.C. § 1591(a). The 2012 version of the statute, which applies here, provides:
Whoever knowingly—
(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, or maintains by any means a person; or
(2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1),
knowing, or in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, [is guilty of a crime].
18 U.S.C. § 1591(a) (2012). At trial, the government introduced evidence that the victim was tricked into flying from China to Saipan on promises of a work visa and a legal job but that, upon arrival, she was taken to Defendant's brothel, had her travel documents taken from her, and was coerced into prostitution by Defendant. A jury acquitted Defendant on two counts concerning two other alleged victims. But the jury convicted her on the count pertaining to the victim discussed in this opinion.
At sentencing, the district court adopted the presentence report's calculated Guideline range, 188 to 235 months, and imposed a high-end sentence of 235 months' imprisonment. Defendant timely appeals.…
DISCUSSION
Defendant challenges (A) the jury instructions; (B) the sufficiency of the evidence; … and (D) the district court's application of a "vulnerable victim" sentencing enhancement. We reject each of Defendant's arguments.
A. Jury Instructions
Defendant argues that the jury instructions were erroneous because (1) the instructions did not require "but-for causation" pursuant to Burrage v. United States, 134 S. Ct. 881 (2014); and (2) the instructions did not require knowledge of an effect on interstate or foreign commerce pursuant to Flores-Figueroa v. United States, 556 U.S. 646 (2009). Because Defendant did not object to the instructions before the district court, we review for plain error. Moreland, 622 F.3d at 1165-66. We conclude at step one of the plain error inquiry that there was no error. Accordingly, we do not reach the other prongs, such as whether the error was "plain."
- But-for Causation
In Burrage, 134 S. Ct. at 885, 892, the Supreme Court held that a statute criminalizing drug distribution when "death or serious bodily injury results from the use of such substance" required proof of but-for causation. Here, the statute requires that the defendant harbor a person (or take another specified action) "knowing, or in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act." 18 U.S.C. § 1591(a) (emphasis added). Defendant asserts that, under the reasoning of Burrage, the district court erred by not giving an instruction requiring the jury to find that the alleged coercion was the but-for cause of the victim's commercial sex acts.
The district court did not err by declining to apply Burrage here. Causation is not an element in a § 1591(a) prosecution, because a commercial sex act need not even occur: "Case law makes clear that 'commission of a sex act or sexual contact' is not an element of a conviction under 18 U.S.C. § 1591." United States v. Hornbuckle, 784 F.3d 549, 553 (9th Cir. 2015). "What the statute requires is that the defendant know in the sense of being aware of an established modus operandi that will in the future coerce a prostitute to engage in prostitution." United States v. Brooks, 610 F.3d 1186, 1197 n.4 (9th Cir. 2010). Because the statute does not require commission of a sex act, the court correctly refused to require the jury to find that Defendant caused a sex act to occur.
- Knowledge of an Effect on Interstate Commerce
In Flores-Figueroa, 556 U.S. at 647, the Supreme Court considered a criminal statute punishing a person who "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person." (Emphasis omitted.) The Court held that the adverb "knowingly" applies to "means of identification of another person" so that a conviction requires that the defendant knew that the identification belonged to another person. Id. at 657. The Court reached its conclusion primarily because of "strong textual reasons": "As a matter of ordinary English grammar, it seems natural to read the statute's word 'knowingly' as applying to all the subsequently listed elements of the crime." Id. at 650.
Here, the statute requires proof that Defendant "knowingly — (1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, or maintains by any means a person." 18 U.S.C. § 1591(a) (emphasis added). Defendant asserts that, under the reasoning of Flores-Figueroa, the district court erred by not giving an instruction requiring the jury to find that Defendant knew that her actions affected interstate or foreign commerce. In essence, Defendant argues that, for every criminal statute, the word "knowingly" must apply to all subsequent phrases in the statutory text.
We previously have rejected that general argument. In United States v. Stone, 706 F.3d 1145, 1146-47 (9th Cir. 2013), the defendant argued that Flores-Figueroa required that we apply the adverb "knowingly" to the commerce element of a firearm statute. We disagreed: "[T]he Court in Flores-Figueroa did not announce an 'inflexible rule of construction.' Rather, statutory interpretation remains a contextual matter." Stone, 706 F.3d at 1147 (citation omitted). Because of the firearm statute's context and the fact that the interstate commerce element is purely jurisdictional, we held that the adverb "knowingly" did not apply to the commerce element of the firearm statute. Id.
Here, it is most natural to read the adverb "knowingly" in § 1591(a) to modify the verbs that follow: "recruits, entices, harbors, transports, provides, obtains, or maintains." The phrase "in or affecting interstate or foreign commerce" describes the nature or extent of those actions but, grammatically, does not tie to "knowingly." …
Moreover, we agree with and adopt the Seventh Circuit's persuasive explanation for rejecting the argument that the reasoning of Flores-Figueroa applies specifically to the commerce element in § 1591(a). United States v. Sawyer, 733 F.3d 228 (7th Cir. 2013). The longstanding presumption is that the jurisdictional element of a criminal statute has no mens rea. Id. at 229 (citing United States v. Feola, 420 U.S. 671, 676 n.9 (1975)). Nothing in the statute's text or legislative history suggests that Congress meant to upend that presumption in this statute. Id. at 229-31; cf. United States v. Maciel-Alcala, 612 F.3d 1092, 1101 (9th Cir. 2010) ("These practical considerations [about the application of the criminal statute at issue] are markedly different from those involved in Flores-Figueroa."). We hold that the commerce element in § 1591(a)(1) has no mens rea requirement.
B. Sufficiency of the Evidence
Defendant argues that the evidence was insufficient on the interstate or foreign commerce element. We must ask "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). Here, sufficient evidence demonstrated an effect on both foreign and interstate commerce. "[A]ny individual instance of conduct regulated by the TVPA need only have a de minimis effect on interstate commerce." United States v. Walls, 784 F.3d 543, 548 (9th Cir.), cert. denied, 136 S. Ct. 226 (2015). "[A]n act or transaction that is economic in nature and affects the flow of money in the stream of commerce to any degree affects interstate commerce." Id. at 548-49. Here, Defendant knew that the victim had flown, in foreign commerce, from China to Saipan. Also, one of the victim's customers paid for the sex acts by checks drawn on an out-of-state bank. Sufficient evidence therefore supported the jury's finding of an effect on interstate or foreign commerce.
C. Exclusion of Evidence under Federal Rule of Evidence 412 …
D. "Vulnerable Victim" Enhancement
The district court imposed a two-level sentencing enhancement under U.S.S.G. § 3A1.1(b)(1): "If the defendant knew or should have known that a victim of the offense was a vulnerable victim, increase by 2 levels." The district court found that the victim qualified as a vulnerable victim for many reasons: She was tricked into arriving on the false promise of a work visa, when all she actually had was a tourist visa that prevented her from working legally; she "had no ties or family or friends on Saipan"; she "did not speak or read or understand any English whatsoever"; she needed to earn money for "her son, due to an injury he sustained"; "she was effectively under lock and key, in that she was limited in her movement, when and where she could go [and she] was always accompanied by [Defendant] or her agent"; and "she was repeatedly informed of the fact that she had nowhere else to turn to, and that if she did not comply, she would not be able to earn any other income, because of her illegal Immigration status." See United States v. Peters, 962 F.2d 1410, 1417 (9th Cir. 1992) (holding that, in determining vulnerability under U.S.S.G. § 3A1.1, the sentencing court may consider "the characteristics of the defendant's chosen victim, the victim's reaction to the criminal conduct, and the circumstances surrounding the criminal act").
The Guideline "applies to offenses involving an unusually vulnerable victim in which the defendant knows or should have known of the victim's unusual vulnerability." U.S.S.G. § 3A1.1 cmt. n.2. Vulnerability is not measured against the general population. United States v. Castellanos, 81 F.3d 108, 110 (9th Cir. 1996). Instead, an "unusually vulnerable victim is one who is less able to resist than the typical victim of the offense of conviction." United States v. Castaneda, 239 F.3d 978, 980 (9th Cir. 2001) (internal quotation marks omitted).
Here, the offense of conviction is "[s]ex trafficking . . . by force, fraud, or coercion," and the statute is part of the Trafficking Victims Protection Act. Defendant correctly points out that, in Castaneda, 239 F.3d at 982-83, we held that victims of a Mann Act sex-trafficking crime were not unusually vulnerable because "indebtedness, low income, and lack of financial resources or other options that would permit [the victims] to support themselves or pay for their passage back to the Philippines if they left the club" do not "distinguish them from the typical victims of a Mann Act violator." We also acknowledge that, in enacting the TVPA, Congress recognized that victims of sex trafficking often have some of the same vulnerabilities that the district court found here. 22 U.S.C. § 7101. We nevertheless conclude that the vulnerability enhancement was proper—both because of the high number of vulnerabilities and the depth of the individual vulnerabilities. For example, the victim was not only estranged from her home community, she had no ties at all on the geographically remote island of Saipan. Similarly, she did not merely have poor English skills; she "did not speak or read or understand any English whatsoever," and she was illiterate in her native language as well. (Emphasis added.) And she had more than typical indebtedness because of her injured son. Viewing all the circumstances, the district court correctly applied the vulnerability enhancement. Affirmed.
United States v. Sabhnani (2d Cir. 2010) United States v. Sabhnani (2d Cir. 2010)
United States v. Sabhnani, 599 F.3d 215 (2d Cir. 2010)
Debra Ann Livingston, Circuit Judge:
Defendants-Appellants Mahender Murlidhar Sabhnani ("Mahender") and Varsha Mahender Sabhnani ("Varsha") (collectively "the Sabhnanis" or "appellants") appeal from judgments … following a jury trial … convicting them of two counts each of forced labor in violation of 18 U.S.C. § 1589(a), harboring aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii), holding a person in a condition of peonage in violation of 18 U.S.C. § 1581(a), and document servitude in violation of 18 U.S.C. § 1592(a), as well as conspiracy to commit each of these substantive offenses.…
BACKGROUND
Mahender Sabhnani, a naturalized citizen of the United States born in India, lived with his wife, Varsha Sabhnani, a naturalized United States citizen born in Indonesia, in a single-family home in Syosset, New York with their four children. The jury found beyond a reasonable doubt that the Sabhnanis conspired to harbor in their Syosset home two aliens who were unlawfully in the United States—specifically, two domestic servants the couple brought from Indonesia. The jury further found that the Sabhnanis conspired to hold these two women in peonage, keeping their travel documents, and to have the aliens perform forced labor on the Sabhnanis' behalf. The jury also convicted the Sabhnanis of substantive counts of harboring, peonage, forced labor, and document servitude based upon the evidence of their mistreatment of the two women, Samirah and Enung. The evidence at the Sabhnanis' trial, viewed in the light most favorable to the government, demonstrated the following:
In 2001 and 2002, Varsha's mother, known as "Mrs. Joti," arranged for Samirah, a 53-year old woman from Indonesia, to obtain an Indonesian passport and United States visa in order to travel to the United States to work in the Sabhnanis' home. Samirah, a rice vender who spoke no English, did not know what a visa was. She did not know how to drive a car or use an American telephone. Samirah agreed to work in the United States as a domestic servant for $200 per month. She traveled to the United States in February 2002 in the company of Mrs. Joti, who carried Samirah's passport, and Varsha's brother Naresh. Mahender and Varsha Sabhnani met them at John F. Kennedy International Airport and drove them to the couple's home. Varsha Sabhnani took Samirah's passport and other related documents and kept them until approximately April 2007, about one year after Samirah's passport had expired. Mrs. Joti returned to her home in Indonesia shortly after delivering Samirah.
Samirah worked as a domestic servant for Varsha and Mahender Sabhnani from February 2002 through May 2007, even though the visa that Mrs. Joti obtained for her authorized Samirah to enter the United States solely as Mrs. Joti's employee and to work for her in this country only until May 2002. During her time with the Sabhnanis, Samirah was responsible for cooking, cleaning, laundry, and other chores at the couple's large three-story residence, which included about seven bedrooms, seven baths, and separate offices from which Mahender Sabhnani operated PVM International and Eternal Love Parfums, the two companies that together constituted his international perfume and toiletry business. Varsha told Samirah that her $200 per month salary was being paid to her daughter Lita in Indonesia. Lita was in fact paid only $100 per month. Samirah received no money herself.
The circumstances of Samirah's employment were more than severe. While at the Sabhnanis' home, Samirah, who had slept in her own bed at home in Indonesia, was required to sleep first on the carpet outside the bedroom of one of the children and then on a mat on the floor of one of the residence's kitchens. Samirah was not given adequate food to eat—to the point that she was often forced by hunger to eat from the garbage. She worked for extremely long hours per day and was often deprived of sleep. On one occasion in 2003, William Hespeler, an electrician performing work at the home, observed Samirah dressed in "raggedy clothes," following Mahender Sabhnani as she carried a food and beverage tray. Her meager dress that day was not atypical. Indeed, beginning around March 2007, Varsha Sabhnani refused to provide Samirah with even the semblance of adequate clothing, requiring her to wear tattered sweat pants and a top made from old rags and the cut remnants of a dress. Various witnesses testified that Samirah wore "torn or tattered," "messy" clothing, rags "used for cleaning the floor" and clothing that left her "private part . . . visible."
Samirah was subjected to extremely harsh physical and psychological treatment in the Sabhnanis' home. On one occasion sometime before 2005, for example, Samirah drank milk directly from a container, without using a glass; the incident was reported to Varsha Sabhnani by one of her daughters. Varsha responded by beating Samirah and pouring scalding hot water on her arm. At her mother's instruction, one of Varsha's daughters took a photograph of Samirah with the milk container. Varsha Sabhnani told Samirah that the photo would be sent to Samirah's family in Indonesia to prove that Samirah was a thief. The photo, which Varsha thereafter kept in a locked cabinet in a closet adjoining the Sabhnanis' bedroom, was introduced into evidence at the trial. It depicts the discoloration on Samirah's arm from the scalding.
The milk incident was not an isolated one. Samirah was beaten by Varsha Sabhnani with various household objects, such as a broom, an umbrella, and a rolling pin. She was punished for sleeping late, for not receiving permission to throw out the garbage, for stealing food from the trash, and for failing to clean the garage. Varsha threw boiling water on Samirah on at least three separate occasions. She also mutilated Samirah, pulling on Samirah's ears until they bled, causing scabs and scars, and cutting Samirah with a knife, leaving scars on her face and various parts of her body. Wearing plastic supermarket bags on her hands, Varsha Sabhnani on more than one occasion pulled on Samirah's ears and dug her fingernails into the flesh behind them, causing blood to trickle down Samirah's neck. She punished Samirah for various alleged misdeeds by forcing her to eat large quantities of hot chili peppers until Samirah vomited or moved her bowels uncontrollably. Varsha forced Samirah to walk up and down flights of stairs many times in succession. Samirah was required to bathe several times in a row, sometimes with her clothes on, and was not infrequently made to work while wearing wet clothing. Varsha Sabhnani also cut Samirah's hair with scissors and shaved her pubic hair, threatening Samirah that if she resisted her children in Indonesia would be murdered by Mahender Sabhnani and by the couple's teenage son. Samirah "never fought back," according to her own testimony, "because [Varsha Sabhnani] always said, mind you, if you fight me off, then you [will] be killed by the mister," referring to Mahender Sabhnani. The abuse suffered by Samirah caused her to become so fearful that she would sometimes urinate on herself.
On at least three occasions, Varsha Sabhnani forced Samirah to write letters to Samirah's family in Indonesia that Varsha dictated and then took from Samirah and kept. These letters contained statements to the effect that Samirah was a "crazy person," that she walked around naked, urinated and defecated on herself, and wished to die. They also contained a statement that, when translated, was interpreted to mean that Samirah purported to curse or cast a spell on her son, Erwin, who was deceased. Varsha threatened to send these letters to Samirah's family in Indonesia, but she actually kept them in the same locked cabinet in the closet adjoining the Sabhnanis' bedroom that contained Samirah's photograph with the milk container, as well as her passport and related documents.
Subject to this recurrent abuse, Samirah often asked to return to Indonesia or to be "give[n] . . . away" to another person. When she did so, Varsha Sabhnani told her that she would have to pay money to make up for the expenses the Sabhnanis had incurred in bringing her to the United States. Varsha told Samirah that Samirah's children would be killed if she escaped. Varsha also threatened Samirah that if she ran away, Varsha would falsely report to the police that Samirah had stolen food and jewelry and by this means have Samirah sent to prison.
Most of Samirah's day-to-day supervision came from Varsha Sabhnani, who ran the Sabhnanis' household and also spoke Indonesian, Samirah's native language. However, Samirah served not only Varsha, but also Mahender Sabhnani, who often scolded her and who at least on occasion directly required Samirah to undertake various jobs, including cleaning the bathroom in his office. Samirah testified that one of the Sabhnanis' daughters "maybe . . . [felt] pity" for her and intervened on her behalf one day after Samirah was hit with a telephone, telling her mother that she would watch Samirah eat a raw chili pepper but then helping Samirah to throw it away. Mahender Sabhnani, in contrast, reported on Samirah's supposed misdeeds to his wife:
Q. Did you sometimes get punished for things that you did that the Missus didn't see you do?
A. Yes.
Yes. The Mister would report to the Missus that I slept in the bathroom upstairs and the Missus would immediately hit me.
Tr. 1848.
Mahender informed Varsha Sabhnani on one occasion that he had seen Samirah eating food from the garbage and on at least one other that he had found Samirah sleeping in a bathroom. These incidents resulted in Varsha's physically abusing the maid. Insofar as the record reveals, Mahender Sabhnani was not present on the occasions of Varsha Sabhnani's most violent physical abuse. He was present, however, when Samirah was forced to wear dripping wet or grossly inadequate clothing that left her body exposed. He saw his wife tear paper on which she had forced Samirah to write into small pieces and then throw it on the floor, only to require Samirah to pick the pieces up, one by one. Moreover, various marks on Samirah's body resulting from Varsha's maltreatment, as well as Samirah's swollen and mutilated face, were clearly visible to Mahender Sabhnani during the time Samirah lived in his home and served him.
In late 2004 and early 2005, the Sabhnanis acquired the services of Enung, another woman from Indonesia. Forty-seven years old, Enung, who had completed only the first grade and who, like Samirah, spoke no English, was also recruited by Mrs. Joti. A sister of Varsha's, Kareena Deepak Kirpalani, trained Enung at Kirpalani's residence in Indonesia and, along with Mrs. Joti and Kirpalani's husband, helped Enung acquire the necessary travel documents to come to the United States. Enung's I-94 Departure Form authorized only a brief stay of no more than six months. Nevertheless, Enung began work for the Sabhnanis immediately upon her arrival in the United States. She was met by Varsha and Mahender Sabhnani at the airport in January 2005. Varsha took Enung's passport and related travel documents and kept them in the same locked cupboard in the closet adjacent to the Sabhnanis' bedroom in which she also kept Samirah's passport and related documents, the photo of Samirah with the milk container, and the letters Samirah was required to write. Enung's passport remained there until discovered by law enforcement agents in May 2007, nearly two years after Enung was required to depart the country and two-and-one-half years after she began work for the Sabhnanis.
Enung, like Samirah, testified that she was made to work lengthy hours—from about 4:00 or 5:00 A.M. until late at night, seven days a week—and that she was generally denied food, sleep, and even medical care when sick or injured. Both Samirah and Enung testified to numerous occasions on which they were driven by hunger to eat food from the trash.
Enung was also a witness to Samirah's maltreatment at Varsha Sabhnani's hands—maltreatment that appears to have worsened during the period after Enung's arrival. Enung observed Varsha hit Samirah with various household implements, pull on Samirah's ears, and throw hot water on her. She, like Samirah, testified that Samirah was required to wear eyeglasses with tape and plastic obscuring the lenses. Enung was present on many occasions when Varsha Sabhnani forced Samirah to eat whole raw chili peppers or chili powder mixed with salt, often until Samirah became violently ill. On one occasion Samirah refused to eat chili peppers. Varsha Sabhnani first threatened to have her drink cleaning fluid and then required her to take off her clothes and stand naked while Enung put tape on Samirah's body and ripped it off, causing Samirah to scream in pain.
Enung herself was not immune from these more atrocious forms of abuse. Varsha Sabhnani forced Enung to walk up and down stairs repeatedly as punishment for supposed misconduct. She required Enung to cut up her own clothing. On one occasion, after Enung was accused of stealing two pieces of chocolate, she was forced to stand in one place for approximately ten hours—from early in the morning until about 4:00 in the afternoon. Varsha and Mahender Sabhnani, as well as their son, laughed at her while she was being punished in this manner. On another occasion when Varsha Sabhnani was cooking, Enung handed her the wrong spice. Varsha hit Enung in the face with a metal spoon, causing Enung's face to bleed and leaving a scar. Varsha also struck Enung with her fist and with a glass Pyrex cooking dish.
The Sabhnanis left the country for about two months each summer. So far as the record shows, the maids did not leave the residence or otherwise attempt to escape during these periods. Varsha told Enung that if she ran away, the police would shoot her. She also threatened that if Enung left, Enung's husband in Indonesia, who had received advance payment for Enung's services, would be arrested. During at least one of these summer absences, the Sabhnanis' large refrigerator was chained shut. The Sabhnanis on more than one occasion failed either to leave adequate food for the maids or to arrange for its provision. Samirah and Enung begged for food in these instances from both Deborah Litras, who worked for Mahender Sabhnani as the export manager of his businesses, and Anthony Pascarella, the Sabhnani's gardener, both of whom had brief contact with the maids on a few occasions and both of whom testified at trial.
In addition to providing the maids with food, Litras also mailed several letters on their behalf. After receiving the first of these letters, posted in July 2006, from the maids, Litras obliterated the return address on the envelope, concerned that if the letter was returned to the Sabhnanis, "that it might present a problem" for the maids, and she "really didn't want them to be in any kind of trouble if this was something that they weren't supposed to be doing." After posting this first letter on their behalf, Litras thereafter saw the maids only rarely: "Then I didn't see them ever, outside, by a shed, or else anything. I started noticing that I was never seeing them at all."
The letter posted in July 2006 was received by Samirah's children in Indonesia and was introduced at trial. In it, Samirah inquired after her children and pleaded for their help: "[Y]ou must do the midnight prayers if you want your mother to live and be together with you again." She informed them that she was being tortured, not allowed to eat or sleep, that she was forced to take repeated baths, and that she was not permitted to wear adequate clothing in the cold. She stated, "I don't have the strength to work here anymore." Samirah asked her children to pray for her return and also to seek out a witch doctor to cast a spell "so that the Missus would send me home and pay for it." She advised her daughter, Lita, to seek her return by contacting Varsha Sabhnanis' relations, but not to disclose the true reason:
Lita, don't say that your mother told you of being tortured, denied food, deprived of sleep, told to take a bath 30 times, clothes are torn to shreds, not allowed to wear double clothing in the winter. Lita, just say this, the children are grown, and working. So it's my turn to rest.
Tr. 2056. Samirah testified that she gave these instructions "[b]ecause if the Missus found out" she was complaining to her children, she would "get beat up some more."
Samirah and Enung approached Litras again in April 2007, some nine months after this letter was posted, when Litras was alone in Mahender Sabhnani's office and the Sabhnanis were not at home. The maids were "disturbed and rushed," "[u]pset." They came in together and threw raw chili peppers on the ground. Using gestures, they appeared to communicate that they were forced to eat them. Samirah, whose hair Litras described as "chopped up," showed Litras a large gash behind Samirah's right ear and a bruise below her left shoulder. According to Litras, "[t]he language barrier was very difficult," but the maids appeared to act out a scenario in which one maid was hit with an object and then was made to hit the other. Both maids were crying. Samirah and Enung provided Litras with another letter, which she also posted, resolving to herself that she "had to try to find out what was happening here." A few weeks later, on a morning on which Mahender Sabhnani was present in the office, Litras saw Samirah crouching at the office door that led down to the basement with blood dripping from her hairline. Litras gestured Samirah away so that Mahender Sabhnani would not see her.
Finally, on the evening of May 12, 2007, Samirah, who had been beaten about the face by Varsha in the preceding days and who testified that she was fearful she would soon be killed, ran away from the Sabhnanis' house carrying the expired Indonesian passport that Varsha had returned to her the previous month. Samirah entered a Dunkin' Donuts store in Syosset early the next morning. The people inside the Dunkin' Donuts were unable to communicate with Samirah because she did not speak English, but Samirah attempted to tell them of her plight. Witnesses testified that Samirah showed them the marks, bruises, cuts, and scars on her face and arms and made gestures as if she were pinching or slapping herself. A security videotape introduced at trial captured Samirah motioning towards her ears and pointing out her other injuries. The mother of the store manager, a certified nursing assistant, saw the wounds behind Samirah's ears and the marks on her forearms and told her son to call the police. Samirah was taken to the Nassau University Medical Center, where her treating physician diagnosed "[m]ultiple physical abuse." Doctors and nurses treated her ear wounds, which were infected, and Samirah, through an interpreter, told her treating physician about the abuse she had suffered. Police officers recovered from Samirah her passport, as well as a plastic bag Samirah had taken with her when she fled the Sabhnani's house, containing a piece of paper with Varsha's name and address on it, a number of other papers, and a single chili pepper. Police took a number of photographs of Samirah's injuries, including pictures of her ears, face, forearms, chest, neck, and back, which were admitted into evidence during the trial.
In the course of the resulting investigation, agents from Immigration and Customs Enforcement ("ICE") executed two search warrants at the Sabhnanis' home. During the first search, Varsha and one of her daughters told Enung to run away and hide, and agents discovered her in a small closet underneath the basement stairs. Enung provided agents with a knife stained with Samirah's blood and tissues; both of these Enung had secreted away on Samirah's departure. Enung also showed agents a broom and rolling pin with which Varsha had beaten Samirah, and gestured to the agents that this was their use. Agents also found a blood stain on the door leading from the basement to Mahender Sabhnani's office—the location at which Litras testified that she had observed Samirah crouching, with blood dripping from her hairline. DNA testing confirmed that the blood found on the door was Samirah's.
Agents also discovered that the Sabhnanis had placed dead bolt locks on the outside of both doors to the basement bathroom. This bathroom was used solely by Samirah and Enung. Samirah testified that at the time the locks were installed, Varsha told her that she intended to lock Samirah up in the bathroom because she was expecting a guest from the Indies and was embarrassed about having someone in her home "who [didn't] look good." Enung testified that Varsha threatened to lock Samirah in the bathroom with no food and to give both maids an "injection" there that would "dry up the blood" or make them "go crazy." Enung testified that she was rendered so fearful by virtue of this threat that she couldn't eat.
The Sabhnanis were arrested on May 14, 2007 … [and] charged with the following crimes: (1) two counts of forced labor or attempted forced labor in violation of 18 U.S.C. §§ 1589(a) and 1594(a)[which prohibits attempts to violate offenses in this Chapter] ; (2) one count of conspiracy to commit forced labor in violation of 18 U.S.C. §§ 371 and 1589(a); (3) two counts of harboring aliens or attempting to harbor aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and (v)(II); (4) one count of conspiracy to harbor aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and (v)(I); (5) two counts of peonage or attempted peonage in violation of 18 U.S.C. §§ 1581(a) and 1594(a); (6) one count of conspiracy to commit peonage in violation of 18 U.S.C. §§ 371 and 1581(a); (7) two counts of document servitude in violation of 18 U.S.C. §§ 1592 and 1594(a); and (8) one count of conspiracy to commit document servitude in violation of 18 U.S.C. §§ 371 and 1592. A seven-week trial followed; the evidence consisted of testimony from many witnesses, including Samirah, Enung, Hespeler, Litras, Pascarella, Samirah's relatives from Indonesia, Samirah's treating physician, and law enforcement agents, as well as physical evidence recovered from the house and numerous photographs.
The defense case consisted primarily of the testimony of visitors to the residence who observed the maids and noted nothing unusual. During summation, counsel for both Varsha and Mahender Sabhnani contended that Samirah's and Enung's testimony could not be believed, and that, despite her denials, there was reason to believe that the marks on Samirah's body were the product of kerokan, an Indonesian folk remedy practiced by Enung that involved rubbing a hard object on the skin. Defense counsel suggested that Samirah was consumed with hatred of Varsha Sabhnani because she believed Varsha had cast a spell on her adult son, Erwin, who died in 2006, while Samirah was working for the Sabhnanis. Seeking financial reward, Enung supposedly manipulated Samirah's mental state to the point that Samirah was willing to testify about abuses that never occurred, while Enung falsely corroborated her story. Following the trial, both Varsha and Mahender Sabhnani were convicted on all counts.
DISCUSSION
II. Mahender Sabhnani's Jury Instruction and Sufficiency Challenges
Mahender Sabhnani raises two claims of error with regard specifically to his convictions. First, he contends that the charge to the jury on aiding and abetting erroneously allowed the jury to convict him on an omissions theory of liability, rather than on any affirmative acts he might have taken to aid and abet his wife's criminal conduct. This error, he contends, infected every count on which he was convicted and requires that all of his convictions be vacated. Second, he contends that the evidence was insufficient to sustain the convictions on any of the twelve counts on which the jury convicted him. We disagree with both claims.
A. Mahender Sabhnani's Jury Instruction Challenge
The government charged both defendants under the aiding and abetting statute, 18 U.S.C. § 2, as well as under the specific substantive statutes at issue. Mahender Sabhnani asserts error in approximately forty words in Judge Spatt's 792-word instruction on aiding and abetting. In particular, he contends that the district court's instruction on willfulness permitted the jury to convict him for failing to act. [The instruction reads in its entirety: “Participation in a crime is willful if action is taken voluntarily and intentionally or in the case of a failure to act with the specific intent to fail to do something the law requires to be done, that is to say, with a bad purpose either to disobey or to disregard the law.”] Because none of the statutes pursuant to which he was charged predicates liability on a failure to act, he argues, and because no common law duty to act is at issue in this case, or was part of the jury charge, this instruction was erroneous, requiring his convictions to be vacated. For the following reasons, we disagree.
A defendant challenging a jury instruction as erroneous must show "both error and ensuing prejudice," and we review the jury instructions "de novo . . . viewing the charge as a whole," United States v. Quattrone, 441 F.3d 153, 177 (2d Cir. 2006) ….
At the start, we find dubious the government's claims that aiding and abetting liability may generally be predicated upon a failure to act unconnected to any legal duty to do so, that the statutes at issue created an affirmative duty to act, or that Mahender Sabhnani was properly found by the jury to have violated a common law duty that required him to act. It is a long-established principle that criminal law generally regulates action, rather than omission, and that "[f]or criminal liability to be based upon a failure to act it must first be found that there is a duty to act—a legal duty and not simply a moral duty." …. This general principle, that omissions may serve as the basis of criminal liability only if there is an affirmative duty to act, is equally applicable when the crime charged is aiding and abetting. Here, none of the statutes pursuant to which Mahender was convicted expressly impose an affirmative duty to take action, lest a crime be committed. And even assuming, arguendo, that Mahender Sabhnani owed a common law duty to the maids that was sufficiently well established in our legal tradition and practice that it constitutes part of the background common law against which these statutes should be interpreted, the jury here was not charged on the nature of this duty nor instructed as to the factors it should consider in determining whether the duty was discharged.
[Nevertheless,] … we reject his claim that the district court's instruction on willfulness, considered in the context of the aiding and abetting instruction as a whole, rendered the instructions so confusing as to permit the jury to convict him on this basis. To be clear, the jury was instructed that participation in a crime is willful if action is taken voluntarily and intentionally, or in the case of a failure to act, with specific intent to fail to do something the law requires. Drawn nearly verbatim from the model jury instruction in the leading treatise on the subject, this instruction was not inaccurate, however, but simply extraneous to this case—at least absent further instruction as to a legal theory that would support liability based on a failure to act.
… Here, the jury was never told that either Mahender or Varsha Sabhnani could be convicted of aiding and abetting based upon a failure to act. Indeed, immediately before the instruction on willfulness, the jury was informed that "[i]n order to aid or abet another to commit a crime, it is necessary that the defendant willfully and knowingly associate herself in some way with the crime and that she or he willfully and knowingly seek by some act to help make the crime succeed." Tr. 5035 (emphasis added). Immediately after the challenged language, the jury was instructed that the "mere presence of a defendant where a crime is being committed, even coupled with knowledge by the defendant that a crime is being committed, or the mere acquiescence by a defendant in the criminal conduct of others, even with guilty knowledge, is not sufficient to establish aiding and abetting." An aider and abettor, the district court said, must "know that the crime is being committed and act in a way which is intended to bring about [its] success." (emphasis added).
The repeated emphasis in the instructions on the proposition that an aider and abettor must "seek by some act to make the crime succeed" was further stressed in the judge's summary of the charge. The district court instructed the jury to ask itself three questions to determine whether a defendant aided or abetted the commission of a crime:
Did the defendant participate in the crime charged as something she or he wished to bring about?
Did the defendant associate herself or himself with the criminal venture knowingly and willfully?
Did the defendant seek by her or his actions to make the criminal venture succeed?
Tr. 5036 (emphasis added). If the government proved beyond a reasonable doubt that the defendant did these things, the district court instructed, "then the defendant is an aider and abettor and therefore guilty of the offense." But "if on the other hand your answers to any one of these series of questions . . . is no," Judge Spatt continued, "then the defendant is not an aider and abettor and you must find him or her not guilty as to aiding and abetting." Tr. 5036-37.
We conclude that the charge's repeated emphasis on the necessity of acting in order to aid and abet, coupled with the crystal clear summary, was sufficient to ameliorate any possible confusion that might conceivably have arisen from the willfulness instruction. This was not a case in which the jury instructions were insufficiently detailed as to an essential element of the crime and were never clarified by other language, such that the jury could have convicted based on a legally erroneous theory.… Here, the instructions clarified what was required to convict, and the judge's three-question summary of the charge was perfectly clear, removing the possibility of any confusion on the jury's part….
Mahender Sabhnani makes two arguments in reply. First, he contends that Judge Spatt erroneously believed that he could be convicted for aiding and abetting based solely on his failures to act. To be sure, when counsel objected to the instruction on willfulness during the charging conference, Judge Spatt did overrule the objection, suggesting that the employer of a domestic servant does have an obligation to act when he allows "for five years . . . beatings, deprivation, lack of food, sleeping on the floor, wearing tattered gowns, [and] hit[s] with a stick" to take place in his home. Notably, however, in denying Mahender's Rule 29 motion, the judge noted that "there was sufficient evidence at the trial to prove that Mahender affirmatively acted with the specific intent to advance the crimes alleged in the indictment." Even more importantly, the jury only heard the instructions, not Judge Spatt's opinion at the charging conference, and our concern on appeal is the effect of jury instructions, not "the district court's purpose in stating the jury instructions as it did." Hassan, 578 F.3d at 132. Mahender points next to the government's summation. In his sole reference to the necessary requirements for aiding and abetting, the government attorney stated without objection during the main summation that:
You don't have to have actually committed the crime to be an aider and abettor. All that needs to be established is that somebody else committed the crime, and that you knowingly and willfully associated yourself with that other person in some way to help with the crime. Help with the crime. And that can be done by actions, or it can be done by a failure to act.
A failure to act with specific intent, to fail to do something the law requires.
Tr. 4693. Mahender contends that these words created a "not insubstantial" risk that the willfulness instruction led the jurors to convict him on an invalid basis. Here, however, we have already determined that the jury instructions, read as a whole, clearly apprised the jury of what it was required to find in order to convict. We agree that a party's summation can heighten the already present risk that an erroneous jury instruction may mislead the jury. See, e.g., United States v. Joseph, 542 F.3d 13, 18-19 (2d Cir. 2008). But that situation is not this case. The jury instructions, which we presume that jurors follow, see, e.g., United States v. Stewart, 433 F.3d 273, 310 (2d Cir. 2006), were clear that Mahender could not be convicted solely because he knew of Varsha's crimes or acquiesced in her actions, without acting himself. And to the extent the prosecutor's summation did misstate the applicable law, Mahender raised no objection below and does not press the issue here in those terms.
Given our conclusion that the instructions as a whole adequately conveyed to the jury the law it was to apply, we need not and do not address Mahender's argument that the error he alleges was sufficiently prejudicial to taint each of his convictions, including the four separate conspiracy convictions to which the challenged instructions did not apply. We conclude simply that the aiding and abetting instruction, considered as a whole, adequately conveyed to the jury the necessary and applicable requirements for aiding and abetting, and that Mahender's argument to the contrary is without merit.
B. Sufficiency of the Evidence
Mahender also challenges the sufficiency of the evidence to support his convictions for forced labor, peonage, document servitude, and conspiracy to commit these crimes. We review de novo challenges to the sufficiency of the evidence….
Mahender's main contention on appeal is that the trial evidence was insufficient to show he had knowledge that Varsha was threatening or physically abusing the maids—and thus a fortiori that the evidence was inadequate to establish his intent to participate in the crimes of forced labor and peonage, whether as a principal, an aider and abettor, or a conspirator. Mahender does not directly challenge the sufficiency of the evidence to support his convictions for document servitude and conspiracy to commit document servitude, but instead argues that because the evidence was insufficient to sustain his forced labor and peonage convictions, he cannot be guilty of these "derivative" offenses. For the following reasons, we disagree with these contentions.
- Forced Labor and Peonage Convictions
With regard to the forced labor charges, 18 U.S.C. § 1589 at the time of the Sabhnanis' convictions prohibited "knowingly provid[ing] or obtain[ing] the labor or services of a person by," inter alia, "threats of serious harm to, or physical restraint against, that person," "by means of any scheme, plan or pattern intended to cause the person to believe that, if the person did not perform such labor . . . that person or another person would suffer serious harm or physical restraint," or "by means of the abuse or threatened abuse of law or the legal process." 18 U.S.C. § 1589(a)(1)-(3) (2000). The jury convicted Mahender of obtaining the labor or services of Samirah and Enung both "through threats of serious harm or physical restraint against [them]" and "through a scheme, plan or pattern intended to cause [them] to believe that non-performance would result in serious harm." Verdict Sheet 2-4. The peonage statute, 18 U.S.C. § 1581(a), prohibits "hold[ing] or return[ing] any person to a condition of peonage . . . ." To prove peonage, "the government must show that the defendant intentionally held a person against his or her will and coerced that person to work in order to satisfy a debt by (1) physical restraint or force, (2) legal coercion, or (3) threats of legal coercion or physical force." United States v. Farrell, 563 F.3d 364, 372 (8th Cir. 2009).
At the start, the jury had a more than ample basis on which to conclude that Mahender knew of both the threatened and actual maltreatment of Samirah and Enung. "[J]urors are entitled, and routinely encouraged, to rely on their common sense and experience in drawing inferences" of a defendant's knowledge and his criminal intent. United States v. Huezo, 546 F.3d 174, 182 (2d Cir. 2008). Here, Samirah and Enung lived and worked in Mahender's home—a home from which he also operated his business—for five and two-and-a-half years, respectively. The jury was entitled to credit the maids' testimony that during this time Mahender witnessed his wife humiliate them—when, for instance, Enung was required to stand in one place until she confessed to stealing chocolate and Samirah was forced to pick up one by one the tiny pieces of paper that Varsha Sabhnani had just thrown to the ground. There was substantial evidence, moreover, that Mahender observed Samirah eat from the trash and wear rags that were inadequate even to cover her body. Indeed, Enung identified one such rag and confirmed that Mahender, along with the rest of the family, observed Samirah wear it every day—even after it had been repeatedly cut up and resewn at Varsha's command, "every time [Samirah] made [a] mistake." Samirah testified that Mahender saw her "every day" between 2005 and 2007, Tr. 2367—a period during which Varsha repeatedly cut Samirah on the face with a knife and, indeed, on one occasion (after a report from her husband) beat Samirah about the face with an umbrella, leaving Samirah's face bleeding and swollen. Tr. 1855-57. Samirah testified that Mahender saw her wearing rags and that he "[saw her] face, . . . the clothings . . . [and] all the marks from the beating from missus. I would cry and the mister would look at me." Litras, Mahender's employee, did not live in the Sabhnani household and saw the maids only infrequently. Tellingly, however, even apart from the injuries the maids directly showed her in April 2007, she testified to noticing their "very messy . . . tattered and torn" clothing and, on one occasion, blood dripping from Samirah's hairline. The jury clearly had more than ample evidence from which to infer Mahender's awareness of the maids' plight.
There was also sufficient evidence of Mahender's intent to use Varsha's threats and maltreatment against the maids in order to obtain their labor. Samirah testified that on one occasion when she fell asleep cleaning a bathroom of one of the children, "mister told missus that Sami [Samirah] was not washing, but . . . was sleeping in the bathroom" and Varsha Sabhnani "came with something to hit." Samirah, afraid, ran away and urinated by the stairs, soiling Mahender's shoes as two of the children cried. Samirah further testified as follows:
Q. Did you sometimes get punished for things that you did that the Missus didn't see you do?
A. Yes.
Yes. The Mister would report to the Missus that I slept in the bathroom upstairs and the Missus would immediately hit me. And another time . . . it was during the fasting months for the Muslims. I couldn't fast because I didn't eat in—I ate [food] from the garbage, and the Mister saw it, and told the Missus about it, and immediately the Missus got very angry. "You again stole the food?" And I said I found it in the garbage, and I was hit.
Tr. 1848-49. It is of no importance that, as Mahender points out, Samirah testified that he was not present when Varsha hit Samirah for eating the food, nor does it matter whether he was present on the other occasions when she was punished after he reported her misdeeds. The jury was not required, as Mahender contends, to infer that he was acting charitably by reporting the maids' conduct to his wife. On the contrary, the jury was entitled to infer from these incidents and from the other evidence of Mahender's knowledge of abuse that when Mahender reported Samirah's conduct to Varsha, he knew how she would react.
Mahender contends that even if there is sufficient evidence to support his conviction for forced labor, his peonage conviction is infirm because there was no direct evidence that he held Samirah and Enung in involuntary servitude in satisfaction of a real or alleged debt. Samirah, Enung, and Samirah's daughter, Lita, testified that Varsha told them repeatedly that if the maids wanted to be returned to Indonesia they would have to reimburse the costs of bringing them to the United States. Enung specifically testified that she did not run away from the Sabhnanis' residence in part because she "still owe[d]" months of work to Mahender and Varsha. "I was very frightened. I didn't dare to go out of the house prior to the debt being paid off." Mahender concedes that this testimony, if credited, might be adequate to support his wife's conviction. He contends, however, that it is insufficient to establish his intent to hold the maids in satisfaction of a debt because he "was not present during any conversation about repaying money." We disagree that this is the relevant question, and that the evidence was insufficient in any respect.
18 U.S.C. § 1581(a) prohibits the holding of a person in "a condition of peonage." Peonage is compulsory service in payment of a debt that can be real or artificially created. See Bailey v. Alabama, 219 U.S. 219, 242 (1911); Pierce v. United States, 146 F.2d 84, 86 (5th Cir. 1944). Here, the jury was entitled to infer first that Mahender knowingly participated in the creation of an obligation on the maids' part to work. The jury was entitled to infer that the appellants paid for the maids' travel to the United States based not only on the involvement of Varsha Sabhnani's family, but also upon Varsha's statements that this money had to be repaid if the maids were to leave. Samirah testified, for instance, that when she begged to be given away she was told by Varsha that she was brought to the United States in an airplane and that if she was to be given to someone else, that cost would have to be paid back: "[T]he missus answered, you think I have money tree? You came here with money. If you had 100 million [rupiahs], I'll give you to someone else." Enung also testified that her salary was paid "up-front" in its entirety, and that Varsha was supposed to be the one paying it. The jury was permitted reasonably to infer that Mahender knew of these payments, and that they evinced an intent to create a debt-like obligation on the maids to work. Cf. Pierce, 146 F.2d at 85-86 (evidence sufficient to support peonage conviction when defendant, among other acts, paid the full fine owed by incarcerated women in exchange for them agreeing to work for him); Bernal v. United States, 241 F. 339, 341 (5th Cir. 1917) (defendant convicted of peonage paid for victims' transportation to come to work for her).
Second, the evidence also sufficiently demonstrated that Mahender, who benefitted from the maids' labor, knew that the maids were being forced to work and that the maids were completely dependent on the Sabhnanis for food, clothing, and shelter, the family's provision of which contributed to the maids' obligated status. Cf. Pierce, 146 F.2d at 85-86 (defendant contributed to victims' indebtedness by buying them clothes and other gifts). Indeed, the record shows that during the summer months when the Sabhnanis departed, neglecting to leave adequate provisions for the maids, it was Mahender who called Litras to put her in touch with his wife, who instructed Litras to obtain food—usually many loaves of bread—for the maids, and to pay for it with petty cash from Mahender's office. From the evidence that Mahender reported on Samirah when she foraged in the garbage for something to eat, the jury was entitled to infer both that Mahender knew the maids were in a condition of abject dependence, and that he both intended and acted to keep them in that state. Under these circumstances, the evidence supported the conclusion that Mahender, having knowingly contributed to the creation of the maids' indebted situation and knowing of their dependence on the family, forced the maids to work through the threat of violence from his wife. We therefore conclude that there was sufficient circumstantial evidence from which the jury could infer that Mahender acted to aid and abet the holding of the maids in satisfaction of their "obligations" to the Sabhnanis.
For substantially the same reasons, we also reject Mahender's claim that the evidence was insufficient to support his convictions for conspiracy to commit forced labor and peonage. The existence of a criminal agreement between two persons can be inferred from circumstantial evidence. Huezo, 546 F.3d at 180; see also United States v. Borelli, 336 F.2d 376, 384 (2d Cir. 1964) (Friendly, J.) ("Although it is usual and often necessary in conspiracy cases for the agreement to be proved by inference from acts, the gist of the offense remains the agreement, and it is therefore essential to determine what kind of agreement or understanding existed as to each defendant."); United States v. Amiel, 95 F.3d 135, 144 (2d Cir. 1996) ("A tacit understanding will suffice to show agreement for purposes of a conspiracy conviction. There need not be any written statement or even a speaking of words which expressly communicates agreement."). As to a defendant's participation, even "a single act may be sufficient for an inference of involvement . . . if the act is of a nature justifying an inference of knowledge of the broader conspiracy." Huezo, 546 F.3d at 180 (quoting United States v. Tramunti, 513 F.2d 1087, 1112 (2d Cir. 1975)) (internal quotation marks omitted). Here, the evidence is ample that Mahender assisted his wife in bringing the maids to his home, that he did so to benefit from their labor, which he helped to direct, and that, knowing of his wife's threats and punishments, he aided her in meting them out. This evidence provides more than a sufficient basis on which to conclude that there was a "tacit understanding" between Mahender and Varsha that the maids would be held in involuntary servitude and peonage in the Sabhnanis' home.
- Other Convictions
As already noted, Mahender does not directly challenge the sufficiency of the evidence to support his convictions for document servitude and conspiracy to commit document servitude. Instead, he argues that, because the evidence was insufficient to support his forced labor and peonage convictions, he necessarily cannot be guilty of the "derivative" offense of document servitude. Mahender's argument is based on a fundamental misreading of the document servitude statute. Section 1592 of Title 18 provides that "[w]hoever knowingly destroys, conceals, removes, confiscates, or possesses any actual or purported passport or other immigration document, or any other actual or purported government identification document, of another person" either "in the course of" a violation of one of a number of statutes, including the forced labor and peonage statutes, or "with the intent to violate" the same statutes, is guilty of a crime. 18 U.S.C. §§ 1592(a)(1)-(2). Mahender continually refers to this crime as an offense that is merely "derivative" of the forced labor and peonage crimes. This is incorrect: a defendant may be convicted under § 1592 for knowingly concealing immigration documents merely "with intent to violate" the forced labor or peonage statutes. 18 U.S.C. § 1592(a)(2).
In any event, we have already determined that Mahender's convictions for forced labor and peonage were supported by sufficient evidence. Here, the evidence that Samirah's and Enung's passports and other immigration documents were kept in a locked cupboard in the closet adjacent to the Sabhnanis' master bedroom was ample. The jury could infer Mahender's knowing possession of Samirah's and Enung's passports and other immigration documents from the fact that his own passport was kept in the same cupboard, and from the closet's position in the house. Therefore, Mahender's convictions for document servitude and conspiracy to commit document servitude are supported by sufficient evidence.
Finally, without challenging the sufficiency of the evidence to support his conviction, Mahender suggests that his conviction for harboring illegal aliens should be vacated because the harboring statute, 8 U.S.C. § 1324(a)(1)(A), was not "designed" to cover a situation in which a defendant forces an alien who wishes to leave the country to remain here. Such conduct is "outside the scope" of the statute, which was only intended to criminalize conduct facilitating an alien's illegal presence in the United States. Suffice it to say that the text of the statute cannot support such limitations. The statute renders guilty of a crime any person who, "knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation." 8 U.S.C. § 1324(a)(1)(A)(iii). The statute does not attempt to distinguish among various reasons why an alien has "come to, entered, or remains" in the country illegally, nor does it distinguish among various motives a defendant might have for "concealing, harboring, or shielding" the alien. "[Section] 1324, on its face, does not restrict the persons within its reach." United States v. Kim, 193 F.3d 567, 573 (2d Cir. 1999). We decline Mahender's invitation to read words into the statute that are not there.…
For the foregoing reasons, we … affirm the district court's judgments ….
United States v. Baston, 818 F.3d 651 (11th Cir. 2016) United States v. Baston, 818 F.3d 651 (11th Cir. 2016)
William Pryor, Circuit Judge:
This appeal and cross-appeal require us to review the convictions and sentence of Damion Baston, an international sex trafficker nicknamed “Drac” (short for Dracula) who sometimes dressed up as a vampire, complete with yellow contact lenses and gold-plated fangs. Baston forced numerous women to prostitute for him by beating them, humiliating them, and threatening to kill them, and he pimped them around the world, from Florida to Australia to the United Arab Emirates. Baston challenges the sufficiency of the evidence for one conviction, a supplemental jury instruction, and the award of restitution to his victims. Those challenges fail, but the cross-appeal by the government about a refusal to award one victim increased restitution has merit.
The government argues that the district court erred when it refused to award restitution to a victim of Baston’s sex trafficking in Australia. The district court ruled that an award of restitution for Baston’s extraterritorial conduct would exceed the power of Congress under Article I of the Constitution, U.S. Const. Art. I, and the Due Process Clause of the Fifth Amendment, id. Amend. V. To decide those issues, we must examine the scope of the Foreign Commerce Clause, id. Art. I, § 8, cl. 3, a question of first impression in this Circuit, and the constitutionality of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 § 223, 18 U.S.C. § 1596(a)(2), a question of first impression in any circuit. We conclude that Congress has the constitutional authority to punish sex trafficking by force, fraud, or coercion that occurs overseas. We affirm Baston’s convictions and sentence, but we vacate his order of restitution and remand with an instruction for the district court to increase his restitution obligation.
- BACKGROUND
Baston immigrated to the United States from Jamaica in 1989. After he was convicted of an aggravated felony, Baston was ordered removed in 1998. But Baston illegally reentered the country by purchasing the identity of a citizen of the United States. Under this assumed identity, Baston opened bank accounts, started businesses, and rented apartments in Florida. He also obtained a Florida driver’s license and a United States passport. Baston traveled the world under the assumed identity, visiting Australia, New Zealand, Indonesia, the United Arab Emirates, Russia, China, and Brazil, among other places. Baston funded his lavish lifestyle by forcing numerous women to prostitute for him.
Baston learned how to be a pimp from Pimpology, a book written by Pimpin’ Ken. Consistent with the fifth law of Pimpology, Baston “prey[ed] on the weak” by recruiting women who were sexually abused as children. See Pimpin’ Ken, Pimpology: The 48 Laws of the Game 21 (2008). Baston also forced his victims to refer to him as “Daddy,” see id., and took all of the money they earned.
But Baston was not always faithful to the laws of Pimpology. Unlike Pimpin’ Ken who rejected the use of violence, Baston punched, slapped, choked, and threatened to kill his victims whenever they got “out of line.” And his victims took those threats seriously. In addition to his Transylvanian tendencies, Baston maintained a muscular physique aided by having his victims inject him with steroids on a regular basis.
K.L., an Australian, met Baston at a nightclub in Gold Coast, Australia, when she was 24 years old. She dreamed of opening her own restaurant, and Baston offered to help her. But K.L. soon discovered that Baston’s real business was pimping women. Baston sent K.L. to have sex with clients throughout Australia at prices he determined. When Baston was not in Australia, he had K.L. wire her earnings to his bank accounts in Miami. K.L. also prostituted for Baston in the United Arab Emirates, Florida, and Texas.
K.L. testified that Baston beat her “often” and that he threatened to hurt her and her family if she ever stopped working for him. Baston would backhand K.L. whenever she committed any perceived slight, like failing to cook him breakfast or telling a bouncer how much money she made. One night, Baston suspected that K.L. was cheating on him. He woke her up, punched her hard in the pelvis, threw her to the ground, and strangled her. He heated up kitchen knives over an open flame and threatened to slit her throat. On another occasion, Baston took K.L. to the bathroom, held her against the wall by her throat, and bit her cheek until she bled. K.L. eventually escaped Baston’s control after her family contacted the American embassy, which refused to let her return to Baston in the United States.
T.M. was 21 years old when she met Baston. She was attending Georgia Southern University and needed money for college. She sent pictures of herself to one of Baston’s associates, who convinced her to come to Miami to work as an escort. After she arrived in Miami, T.M. met Baston at a nightclub. He convinced her to work at various strip clubs in Miami, where she would meet clients and have sex with them at prices set by Baston. T.M. also prostituted for Baston in Texas and Australia.
Baston often reminded T.M. that, if she ever left him, “it wouldn’t be good” for her or her family. One night, Baston thought that T.M. was flirting too much with a client. He drove her to a secluded park and backhanded her so hard that she fell to the ground. He reminded T.M. that he could bury her in the park and no one would ever find her. On another occasion, Baston thought T.M. was being “disrespectful,” so he wrapped a belt around her neck and made her beg for forgiveness while she crawled around on her hands and knees like a dog. T.M. mustered the courage to flee from Baston when he temporarily left the country to visit Jamaica.
J.R. met Baston in 2013. She was 21 years old at the time, living with her mother in Georgia and working at a Little Caesars restaurant. But J.R. dreamed of being a model. Baston saw her modeling pictures on Instagram and began communicating with her over the Internet and phone. Baston promised to help her modeling career and convinced her to take a bus from Georgia to Miami. When she arrived, Baston forced her to prostitute for him at various strip clubs. J.R. also prostituted for him in Georgia, Louisiana, Texas, Tennessee, and New York. Baston and J.R. typically stayed in hotels, most often a Marriott in Miami, and Baston advertised her services on Backpage.com. Whenever J.R. was supposed to be working for Baston, she had to call him “[e]very hour on the hour” and text him regularly.
If J.R. disobeyed his orders, Baston would punch her in the face. One night, Baston drove J.R. to a secluded parking lot and told her not to “fuck with him” or he would “chop ... [her] body up and have [her] thrown in the Everglades.” On another occasion, J.R. and Baston got into an argument and, although J.R. was pregnant at the time, Baston punched her in the side and threatened to stab her with a broken broom. Baston later forced J.R. to have an abortion because he “didn’t want to have a baby by a punk bitch.”
Baston was arrested at his mother’s house in New York. A grand jury indicted him on 21 counts, including sex trafficking of K.L. by force, fraud, or coercion, 18 U.S.C. § 1591(a)(1), “in the Southern District of Florida, Australia, the United Arab Emirates, and elsewhere”; sex trafficking of T.M., “in the Southern District of Florida[ ] and elsewhere”; sex trafficking of J.R., “in the Southern District of Florida[ ] and elsewhere”; and several counts of money laundering, id. § 1956, based on the sex-trafficking proceeds that Baston wired from Australia to Miami.
The government called several of Baston’s victims as witnesses, including K.L., T.M., and J.R. The women testified about how they met Baston, how their relationships progressed, and how Baston used violence and coercion to force them into prostitution. They also testified about how often they prostituted for Baston and how much they charged their clients.
After the government presented its case-in-chief, Baston filed a motion for a judgment of acquittal. He challenged the sufficiency of the evidence “on the indictment as a whole” by raising specific arguments against each count. With respect to the charge of sex trafficking J.R., Baston argued that he never coerced J.R. into prostitution: she was already a prostitute when he met her, and their relationship was nothing but amicable. The district court denied Baston’s motion.
Baston called three witnesses: his sister, his mother, and himself. Baston’s defense to the counts of sex trafficking was that he did not coerce any of the victims into prostitution; they did it freely and voluntarily. Baston argued that K.L. and T.M., for example, prostituted in Australia because it is legal there and they could make a lot of money doing it. With respect to the counts of money laundering, Baston argued in closing that “money made in Australia from a legal brothel is legal” so “sending the money by ... wire transfer is not money laundering because there is nothing illegal about that money.”
After the close of all evidence, Baston renewed his motion for a judgment of acquittal. The district court again denied it. Before the district court instructed the jury, Baston stated that he had “[n]o problems” with the instructions and was “in agreement” with them.
On the second day of deliberations, the jury submitted the following note to the district court:
If prostitution is legal in [A]ustralia, and money was made there by those means, would it be illegal to transfer funds abroad? Specifical[l]y the United States? Which laws are we to consider?
The district court answered the jury’s question with the following instruction:
With respect to Counts 13–21 [the counts of money laundering], ... the unlawful activity in question is the recruiting, enticing, harboring, transportation, providing, obtaining, or maintaining a person, knowing, or in reckless disregard of the fact that means of force, threats of force, fraud, coercion, or any combination of such means would be used to cause that person to engage in a commercial sex act, in violation of U.S. federal law, that is, 18 U.S.C. sections 1591 and 1596. Under U.S. law, such conduct is illegal, even if it took place outside the United States, if the defendant was present in the United States at the time he was charged. As always, you should consider all of my instructions as a whole.
Baston objected to this instruction because it “involved a legal interpretation of the Statutes not includ[ed in] the Jury Instructions” and “introduced new theories to the case without the Defense being given the opportunity to argue [them].” The district court rejected these arguments.
The jury convicted Baston of all 21 counts. The district court sentenced him to 27 years of imprisonment and a lifetime of supervised release. It ordered a separate hearing on restitution.
The district court ordered Baston to pay $99,270 in restitution: $78,000 to K.L., $11,200 to T.M., and $10,070 to J.R. The district court calculated these amounts based on worksheets provided by the government, which multiplied the hours that the victims prostituted for Baston by the amounts that they charged and then subtracted their estimated living expenses. The victims’ earnings were calculated based on their testimony from trial; the district court did not require the victims to testify a second time at the restitution hearing.
The $78,000 award to K.L. included the money she earned while prostituting for Baston in the United States, but excluded the $400,000 she earned while prostituting for Baston in Australia. Baston objected that a restitution award based on conduct that occurred wholly overseas would exceed the authority of Congress under the Foreign Commerce Clause and the Due Process Clause. The district court sustained the objection by stating that “the government is overreaching and seeking amounts in restitution that aren’t supported by ... the constitution.”
- DISCUSSION
- Baston’s Appeal
Baston argues that the district court abused its discretion when it issued the supplemental jury instruction [and] that the district court should have granted his motion for a judgment of acquittal because the government provided insufficient evidence that his trafficking of J.R. was “in or affecting interstate ... commerce,” 18 U.S.C. § 1591(a)(1). … [The court of appeals found no error in the district court’s supplemental jury instruction.]
- District Court Did Not Err [by Denying] Baston’s Motion for Judgment of Acquittal.
Baston contends that his conviction of sex trafficking J.R. was supported by insufficient evidence. A defendant is guilty of sex trafficking by force, fraud, or coercion if he “knowingly in or affecting interstate or foreign commerce ... recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person ... knowing ... that means of force, threats of force, fraud, [or] coercion ... will be used to cause the person to engage in a commercial sex act.” 18 U.S.C. § 1591(a)(1) (emphasis added). Baston contends that his trafficking of J.R. was not “in or affecting” interstate commerce. The question for our review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found [this element] beyond a reasonable doubt.” Musacchio v. United States, 136 S. Ct. 709, 715 (2016). … [W]e review Baston’s argument for plain error. Fed. R. Crim. P. 52(b). … When a defendant raises specific challenges to the sufficiency of the evidence in the district court, but not the specific challenge he tries to raise on appeal, we review his argument for plain error. …
Turning to the merits, we conclude that a rational juror could have found, beyond a reasonable doubt, that Baston’s trafficking of J.R. was “in or affecting” interstate commerce. Because there was no error, there was no plain error either. The district court correctly denied Baston’s motion for a judgment of acquittal.
Baston’s conduct was in commerce. The phrase “in commerce” refers to the “channels” and the “instrumentalities” of interstate commerce. United States v. Ballinger, 395 F.3d 1218, 1233 (11th Cir. 2005) (en banc). Baston used both when he trafficked J.R. He communicated with her by phone, text message, and Instagram; he convinced her to cross state lines on a bus; he advertised her services on Backpage.com; and he stayed with her in various hotels. Any one of these is sufficient to prove that Baston’s conduct was “in commerce.”
Baston argues that none of his interstate conduct involved force, fraud, or coercion—the actus reus of the statute—and that his actual trafficking of J.R. occurred exclusively in Florida, but we disagree. Baston also trafficked J.R. in Louisiana, Texas, Tennessee, and New York. And even if we were to assume that Baston trafficked J.R. exclusively in Florida, we have held that a defendant whose “illegal acts ultimately occur intrastate” still acts “in commerce” if he “uses the channels or instrumentalities of interstate commerce to facilitate their commission.” Ballinger, 395 F.3d at 1226. Baston’s use of phones, the Internet, hotels, and buses facilitated his trafficking of J.R., so his conduct was “in commerce.”
Alternatively, Baston’s conduct affected commerce. The phrase “affecting commerce” is a term of art that “ordinarily signal[s] the broadest permissible exercise of Congress’ Commerce Clause power.” Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56 (2003). That power reaches “purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce.” Gonzales v. Raich, 545 U.S. 1, 17 (2005). As we explained in Evans, sex trafficking by force, fraud, or coercion—even when it occurs “solely in Florida”—“ha[s] the capacity when considered in the aggregate ... to frustrate Congress’s broader regulation of interstate and foreign economic activity.” 476 F.3d at 1179. Baston argues that Evans involved the sex trafficking of children, not women, but the reasoning in Evans cannot be limited to children. The statute prohibiting sex trafficking by force, fraud, or coercion is a valid exercise of Congress’s full commerce power, so the government can satisfy the commerce element in that statute by proving that the defendant’s conduct had “a minimal effect on interstate commerce.” United States v. Rodriguez, 218 F.3d 1243, 1244 (11th Cir.2000). That standard is easily satisfied here. Because Baston’s conduct was in commerce, it necessarily affected commerce as well. …
- The Cross–Appeal
In its cross-appeal, the government argues that the district court erred by refusing to award an additional $400,000 in restitution to K.L. based on her prostitution in Australia. A person convicted of sex trafficking by force, fraud, or coercion must pay “the full amount of the victim’s losses.” 18 U.S.C. § 1593(b)(1). The full amount includes “the gross income or value to the defendant of the victim’s services or labor,” id. § 1593(b)(3), including any money that the victim earned while prostituting for the defendant. The government contends that the defendant must repay that money even if the prostitution occurred overseas because, under the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, federal courts have “extra-territorial jurisdiction” over sex trafficking by a noncitizen who “is present in the United States.” Id. § 1596(a)(2).
Baston argues that he does not owe restitution to K.L. for her prostitution in Australia because the jury did not convict him of that conduct, but that argument is baffling. The indictment charged Baston with trafficking K.L. “in ... Australia,” and the jury convicted him of that offense. Plenty of evidence supported its verdict, especially K.L.’s lengthy testimony about how she prostituted for Baston in Australia.
Baston also argues that the restitution statute cannot reach his extraterritorial conduct without exceeding Congress’s authority under Article I of the Constitution or violating the Due Process Clause of the Fifth Amendment. Although Baston frames his arguments as challenges to the constitutionality of the restitution statute, his arguments instead challenge the constitutionality of section 1596(a)(2), which confers extraterritorial jurisdiction over sex trafficking by force, fraud, or coercion. If section 1596(a)(2) is constitutional, then the restitution statute is constitutional. Cf. United States v. Belfast, 611 F.3d 783, 815 (11th Cir.2010). We first address Baston’s argument under Article I and then address his argument under the Due Process Clause.
- Section 1596(a)(2) Is a Valid Exercise of Congress’s Authority Under Article I.
“The powers of the legislature are defined, and limited,” Marbury v. Madison, 5 U.S. 137, 176 (1803), and “[e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution,” United States v. Morrison, 529 U.S. 598, 607 (2000). The government defends section 1596(a)(2) under the Foreign Commerce Clause, U.S. Const. Art. I, § 8, cl. 3.
Baston argues that Congress cannot enact extraterritorial laws under the Foreign Commerce Clause; it can do so only under the Offences Clause, id. cl. 10 (granting Congress the power “[t]o define and punish ... Offences against the Law of Nations”). Baston also argues that section 1596(a)(2) exceeds the scope of the Foreign Commerce Clause. He is wrong on both accounts.
Congress’s power to enact extraterritorial laws is not limited to the Offences Clause. Baston misreads our decision in United States v. Bellaizac–Hurtado, 700 F.3d 1245 (11th Cir.2012), where we held that the Maritime Drug Law Enforcement Act, as applied to extraterritorial drug trafficking, exceeded Congress’s authority under the Offences Clause. Id. at 1247. We did not hold that the Offences Clause is the only power that can support an extraterritorial criminal law; our decision was limited to the Offences Clause because the government failed to offer “any alternative ground upon which the Act could be sustained as constitutional.” Id. at 1258. If the government had invoked the Foreign Commerce Clause in Bellaizac–Hurtado, we might have reached a different result.
Contrary to Baston’s argument, this Court has upheld extraterritorial criminal laws under provisions of Article I other than the Offences Clause. See, e.g., Belfast, 611 F.3d at 813 (Interstate Commerce Clause). And nothing in the Foreign Commerce Clause limits Congress’s authority to enact extraterritorial criminal laws. See Hartford Fire Ins. Co. v. California, 509 U.S. 764, 813–14 (1993) (Scalia, J., dissenting) (“Congress has broad power under [the Foreign Commerce Clause], and this Court has repeatedly upheld its power to make laws applicable to persons or activities beyond our territorial boundaries where United States interests are affected.”); Gary B. Born & Peter B. Rutledge, International Civil Litigation in United States Courts 606 (5th ed. 2011) (“A fairly natural component of [the Foreign Commerce Clause] is the power to regulate conduct that occurs outside of U.S. territory.”). In fact, nothing in Article I limits Congress’s power to enact extraterritorial laws. See EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991). For purposes of Article I, we ask the same question of an extraterritorial law that we ask of any law—that is, whether it falls within one of Congress’s enumerated powers.
Article I gives Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. Art. I, § 8, cl. 3. Neither this Court nor the Supreme Court has thoroughly explored the scope of the Foreign Commerce Clause. But many decisions have interpreted its neighbors: the Interstate Commerce Clause and the Indian Commerce Clause. For example, the Supreme Court has cautioned that the Interstate Commerce Clause “must be read carefully to avoid creating a general federal authority akin to the police power.” NFIB v. Sebelius, 567 U.S. 519 (2012). The Interstate Commerce Clause permits Congress to enact “three general categories of regulation”: Congress can “regulate the channels of interstate commerce”; “regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce”; and “regulate activities that substantially affect interstate commerce,” including “purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce.” Raich, 545 U.S. at 16–17. In contrast, the Supreme Court has described the Indian Commerce Clause as a “broad power,” Ramah Navajo Sch. Bd., Inc. v. Bureau of Rev. of N.M., 458 U.S. 832, 837 (1982), that grants Congress “plenary” authority over Indian affairs.
What little guidance we have from the Supreme Court establishes that the Foreign Commerce Clause provides Congress a broad power. The Supreme Court has described the Foreign Commerce Clause, like the Indian Commerce Clause, as granting Congress a power that is “plenary,” Bd. of Trustees of Univ. of Ill. v. United States, 289 U.S. 48, 56 (1933), and “broad,” United States v. Forty–Three Gallons of Whiskey, 93 U.S. 188, 194 (1876). Also like the Indian Commerce Clause, the Foreign Commerce Clause does not pose the federalism concerns that limit the scope of the Interstate Commerce Clause. … Indeed, the Supreme Court has suggested that “the power to regulate commerce ... when exercised in respect of foreign commerce may be broader than when exercised as to interstate commerce.” Atl. Cleaners & Dyers v. United States, 286 U.S. 427, 434 (1932). “Although the Constitution grants Congress power to regulate commerce ‘with foreign Nations’ and ‘among the several States’ in parallel phrases,” the Supreme Court has explained, “there is evidence that the Founders intended the scope of the foreign commerce power to be the greater.” Japan Line, 441 U.S. at 448 (citation omitted). The Supreme Court has cited James Madison, for example, who described the Foreign Commerce Clause as a “great and essential power” that the Interstate Commerce Clause merely “supplement[s],” The Federalist No. 42, at 283 (Jacob E. Cooke ed., 1961).
We need not demarcate the outer bounds of the Foreign Commerce Clause in this opinion. We can evaluate the constitutionality of section 1596(a)(2) by assuming, for the sake of argument, that the Foreign Commerce Clause has the same scope as the Interstate Commerce Clause. In other words, Congress’s power under the Foreign Commerce Clause includes at least the power to regulate the “channels” of commerce between the United States and other countries, the “instrumentalities” of commerce between the United States and other countries, and activities that have a “substantial effect” on commerce between the United States and other countries.
Section 1596(a)(2) is constitutional at the least as a regulation of activities that have a “substantial effect” on foreign commerce. Section 1596(a)(2) gives extraterritorial effect to section 1591, the statute that defines the crime of sex trafficking by force, fraud, or coercion. And Congress had a “rational basis” to conclude that such conduct—even when it occurs exclusively overseas—is “part of an economic ‘class of activities’ that have a substantial effect on ... commerce” between the United States and other countries Cf. Raich, 545 U.S. at 16–17. We explained in Evans, 476 F.3d at 1179, the comprehensive nature of this regulatory scheme:
Section 1591 was enacted as part of the Trafficking Victims Protection Act of 2000.... [T]he TVPA is part of a comprehensive regulatory scheme. The TVPA criminalizes and attempts to prevent slavery, involuntary servitude, and human trafficking for commercial gain. Congress recognized that human trafficking, particularly of women and children in the sex industry, “is a modern form of slavery, and it is the largest manifestation of slavery today.” 22 U.S.C. § 7101(b)(1); see also id. at § 7101(b)(2), (4), (9), (11). Congress found that trafficking of persons has an aggregate economic impact on interstate and foreign commerce, id. § 7101(b)(12), and we cannot say that this finding is irrational.
Accordingly, section 1596(a)(2) is a constitutional exercise of Congress’s authority under the Foreign Commerce Clause.
- Section 1596(a)(2) Does Not Violate the Due Process Clause.
Baston argues that section 1596(a)(2) violates the Due Process Clause of the Fifth Amendment because he is a noncitizen and his sex trafficking of K.L. occurred exclusively in Australia. The Due Process Clause prohibits the exercise of extraterritorial jurisdiction over a defendant when it would be “arbitrary or fundamentally unfair.” United States v. Ibarguen–Mosquera, 634 F.3d 1370, 1378 (11th Cir.2011). The government responds that, under basic principles of due process and international law, it is fair to hold Baston accountable for trafficking K.L. in Australia. We agree with the government.
To determine whether an exercise of extraterritorial jurisdiction satisfies due process, we have sometimes consulted international law, but due process requires only that an exercise of extraterritorial jurisdiction not be arbitrary or fundamentally unfair, a question of domestic law, see United States v. Davis, 905 F.2d 245, 248–49 & n. 2 (9th Cir.1990). Compliance with international law satisfies due process because it puts a defendant “on notice” that he could be subjected to the jurisdiction of the United States. United States v. Marino–Garcia, 679 F.2d 1373, 1384 n. 19 (11th Cir.1982). But compliance with international law is not necessary to satisfy due process. See Hartford Fire, 509 U.S. at 815 (explaining that Congress “clearly has constitutional authority” to confer extraterritorial jurisdiction in violation of international law); Born & Rutledge, supra, at 604 (“If Congress enacts legislation in violation of [the limits of international law on legislative jurisdiction], it is well settled that U.S. courts must disregard international law and apply the domestic statute.”).
It is neither arbitrary nor fundamentally unfair to exercise extraterritorial jurisdiction over Baston. The Due Process Clause requires “at least some minimal contact between a State and the regulated subject.” Am. Charities for Reasonable Fundraising Regulation, Inc. v. Pinellas County, 221 F.3d 1211, 1216 (11th Cir. 2000). Baston’s contacts with the United States, to borrow the word the government used at oral argument, are “legion.” Baston portrayed himself as a citizen of the United States. He resided in Florida, where he rented property, started businesses, and opened bank accounts. He was present at his mother’s home in New York when arrested. … Baston used a Florida driver’s license and a United States passport to facilitate his criminal activities. Cf. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475–76 (1985). He trafficked K.L. in both the United States and Australia, and when he trafficked her in Australia, he wired the proceeds back to Miami. … In short, Baston used this country as a home base and took advantage of its laws; he cannot now complain about being subjected to those laws.
Alternatively, exercising extraterritorial jurisdiction over Baston is consistent with international law. The government invokes several principles of international law, but we will discuss only one. Under the “protective principle” of international law, a country can enact extraterritorial criminal laws to punish conduct that “threatens its security as a state or the operation of its governmental functions” and “is generally recognized as a crime under the law of states that have reasonably developed legal systems.” Restatement (Second) of Foreign Relations Law § 33(1); accord United States v. Gonzalez, 776 F.2d 931, 938–39 (11th Cir.1985). The citizenship of the defendant is irrelevant. See United States v. Benitez, 741 F.2d 1312, 1316 (11th Cir.1984). And it does not matter whether the conduct had “an actual or intended effect inside the United States”; “[t]he conduct may be forbidden if it has a potentially adverse effect.” Gonzalez, 776 F.2d at 939 (emphasis added). The requirements of the protective principle are satisfied here.
Countries with developed legal systems recognize sex trafficking by force, fraud, or coercion as a crime. As Congress has explained, “The international community has repeatedly condemned slavery and involuntary servitude, violence against women, and other elements of trafficking, through declarations, treaties, and United Nations resolutions and reports.” 22 U.S.C. § 7101(b)(23). For example, more than 150 countries, including Australia, have ratified the Palermo Protocol on human trafficking, which requires its participants to establish sex trafficking by force, fraud, or coercion as a criminal offense. See Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing UN Convention Against Transnational Organized Crime, Arts. 5, 3(a), Nov. 15, 2000, 2237 U.N.T.S. 319, 344–45.
Sex trafficking by force, fraud, or coercion also implicates the national security of the United States. The political branches, who are the experts in these matters, see Holder v. Humanitarian Law Project, 561 U.S. 1, 33–34 (2010), have identified sex trafficking as a threat to national security. According to Congress, “Trafficking in persons ... is the fastest growing source of profits for organized criminal enterprises worldwide.” 22 U.S.C. § 7101(b)(8). Those criminal enterprises, in turn, destabilize other countries and fund terrorist groups. See id.; White House, National Security Presidential Directive/NSPD–22 (Dec. 16, 2002); National Security Council, Transnational Organized Crime: A Growing Threat to National and International Security. Sex trafficking also risks the spread of communicable diseases, see 22 U.S.C. § 7101(b)(11); Arthur Rizer & Sheri R. Glaser, Breach: The National Security Implications of Human Trafficking, 17 Widener L. Rev. 69, 89–91 (2011), and supports underground networks that can be used to smuggle drugs, weapons, and terrorists into the United States, Sandra Keefer, Human Trafficking and the Impact on National Security for the United States, U.S. Army War College 3–4 (2006). These threats are more than sufficient to invoke the protective principle.
Congress has the power to require international sex traffickers to pay restitution to their victims even when the sex trafficking occurs exclusively in another country. Baston must pay restitution to K.L. for her prostitution in Australia. The district court erred when it reduced her restitution award.
We affirm Baston’s judgment of convictions and sentence and vacate the order of restitution and remand with an instruction to increase the award of restitution for K.L.’s prostitution in Australia.
Ghislaine Maxwell indictment
Link to Maxwell indictment on Justice Department website.
See Benjamin Weiser, Rebecca Davis O’Brien &Colin Moynihan, Maxwell Sentenced to 20 Years in Prison for Aiding Epstein’s Abuse, N.Y. Times, June 28, 2022.