54 F.3d 994 (1st Cir. 1995), 94-1645, United States v. Alzanki

• Docket Nº: 94-1645.
• Citation: 54 F.3d 994
• Party Name: UNITED STATES of America, Appellee, v. Talal H. ALZANKI, Defendant, Appellant.
• Case Date: June 01, 1995
• Court: United States Courts of Appeals, Court of Appeals for the First Circuit

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54 F.3d 994 (1st Cir. 1995)

UNITED STATES of America, Appellee,

v.

Talal H. ALZANKI, Defendant, Appellant.

No. 94-1645.

United States Court of Appeals, First Circuit

June 1, 1995

Heard Nov. 8, 1994.

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Michael A. Collora, with whom David A. Bunis and Dwyer & Collora, Boston, MA, were on brief, for appellant.

S. Theodore Merritt, Asst. U.S. Atty., with whom Deval L. Patrick, Asst. Atty. Gen., Donald K. Stern, U.S. Atty., Boston, MA, and Steven M. Dettelbach, Trial Atty., U.S. Dept. of Justice, Washington, DC, were on brief, for appellee.

Before SELYA, CYR and STAHL, Circuit Judges.

CYR, Circuit Judge.

Defendant Talal H. Alzanki appeals from a district court judgment convicting and sentencing him under 18 U.S.C. Secs. 371 and 1584, for holding a household employee in involuntary servitude. We affirm.

I

BACKGROUND ¹

At the end of the Gulf War, Vasantha Katudeniye Gedara ("Gedara"), a native of

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Sri Lanka, was employed by appellant Talal Alzanki's family for a brief time as a domestic servant in their Kuwaiti residence. The Alzanki family prevented Gedara from leaving their residence, by retaining her passport and warning her that she would be subject to arrest and physical abuse by the Kuwaiti police should she venture outside. Gedara was informed that she soon would be sent to the United States to work for appellant Talal Alzanki and his wife, Abair, at a monthly salary of $250, which was reduced to $120 before she departed Kuwait.

Immediately upon her arrival at appellant's apartment in Quincy, Massachusetts, on August 28, 1992, Gedara's passport was confiscated by appellant, who told her that she was not to leave the apartment alone. She was not permitted to use the telephone or the mails, speak with anyone other than the Alzankis, nor even to venture onto the balcony or look out the apartment windows. Appellant told Gedara that the American police, as well as the neighbors, would shoot undocumented aliens who ventured out alone.

During the four months she remained in the apartment, Gedara was assaulted twice. On one occasion, when Gedara asked that the volume be turned down on the television while she was trying to sleep, appellant grabbed and threw her bodily against the wall. On another occasion, Abair Alzanki slapped Gedara and spat in her face when she failed to turn off a monitor.

The Alzankis deliberately risked Gedara's health by compelling her to work fifteen hours a day at hard, repetitive tasks. She was required to clean the apartment on a constant basis with caustic and noxious chemicals, without the benefit of respiratory protection, and her requests for rubber gloves were refused. Later, after the noxious fumes caused Gedara to faint, fall, and injure her ribs, the Alzankis withheld medical treatment. They also refused to let Gedara have dental treatment for an abscessed tooth.

Finally, though affluent, the Alzankis denied Gedara adequate food, which resulted in serious symptoms of malnourishment, including enlarged abdomen, massive hair loss, and cessation of menstrual cycles. She was provided with only two housecoats to wear and allowed to sleep and sit only on the floor. Once, after Gedara accidentally broke a humidifier, the Alzankis threatened to withhold all her wages.

In addition to the physical abuse and inhumane treatment, Gedara was threatened--on almost a daily basis--with deportation, death or serious harm should she disobey the Alzankis' orders. On numerous occasions, the Alzankis threatened to deport her to Kuwait, and not allow her to return to Sri Lanka. Appellant threatened to kill her if the Alzankis' newborn child--suffering from spina bifida--were to die while appellant was away in New York. The climate of fear was enhanced by Gedara's witnessing one incident involving Talal Alzanki's physical abuse of Abair, and by learning from Abair that he had struck Abair again shortly thereafter. On another occasion, Abair Alzanki threatened to sew up Gedara's mouth with a needle and thread, and throw her into the ocean.

On December 17, 1992, after confiding her plight to nurses who came to the apartment to care for the Alzankis' sick child, Gedara fled the apartment and reported her ordeal to the local police. Appellant later complained to the police that Gedara should be returned, because she "belonged to him" and "he had a contract for her."

A federal grand jury returned a two-count indictment, charging the Alzankis with conspiring to hold, and holding, Gedara in involuntary servitude, in violation of 18 U.S.C. Secs. 371 and 1584. At trial, the Alzankis testified in their own behalf; Gedara testified for the prosecution. Due to a medical emergency, a mistrial was declared as to Abair Alzanki, prior to her cross-examination. The government nonetheless agreed to permit her direct testimony to remain in evidence. The jury returned guilty verdicts against Talal Alzanki on both counts. The district court sentenced him to one year and one day, which represented a downward departure from the 18-to-24 month guideline sentencing range, and to a modest restitutionary sentence.

II

DISCUSSION

Appellant challenges certain jury instructions; the sufficiency of the evidence supporting

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both convictions; various evidentiary rulings; the government's closing argument; and the $13,403.00 restitutionary sentence imposed by the district court.

A. The Scope of the Involuntary Servitude Statute

Section 1584 proscribes involuntary servitude. ² It is not to be read so narrowly as to pose Thirteenth Amendment problems. United States v. Kozminski, 487 U.S. 931, 945, 108 S.Ct. 2751, 2761, 101 L.Ed.2d 788 (1988) ("Congress' use of the constitutional language in a statute enacted pursuant to its constitutional authority to enforce the Thirteenth Amendment guarantee makes the conclusion that Congress intended the phrase to have the same meaning in both places logical, if not inevitable. In the absence of any contrary indications, we therefore give effect to congressional intent by construing 'involuntary servitude' in a way consistent with the understanding of the Thirteenth Amendment that prevailed at the time of Sec. 1584's enactment."); see also United States v. Booker, 655 F.2d 562, 564-65 (4th Cir.1981); United States v. Shackney, 333 F.2d 475, 481-86 (2d Cir.1964). ³ The government need not prove physical restraint. See, e.g., United States v. King, 840 F.2d 1276, 1278-79 (6th Cir.1988) (upholding cult leaders' convictions for holding occupants in involuntary servitude, despite absence of fencing or other physical barriers); United States v. Warren, 772 F.2d 827-33 (11th Cir.1985) (upholding involuntary servitude conviction even though victim had opportunity to escape), cert. denied, 475 U.S. 1022, 106 S.Ct. 1214, 89 L.Ed.2d 326 (1986); United States v. Bibbs, 564 F.2d 1165, 1167 (5th Cir.) (recognizing that various forms of physical force and/or threats of violence may establish requisite coercion), cert. denied, 435 U.S. 1007, 98 S.Ct. 1877, 56 L.Ed.2d 388 (1978).

Absent proof of physical restraint, a finding of involuntary servitude is not warranted, however, unless the government establishes that the victim could only extricate herself by risking "imprisonment or worse." Shackney, 333 F.2d at 486. Thus, compulsion is an essential element of involuntary servitude under section 1584. See Flood v. Kuhn, 316 F.Supp. 271, 281 (S.D.N.Y.1970), aff'd, 443 F.2d 264 (2d Cir.1971), aff'd, 407 U.S. 258, 92 S.Ct. 2099, 32 L.Ed.2d 728 (1972). In sum, the requisite compulsion under section 1584 obtains when an individual, through an actual or threatened use of physical or legal coercion, intentionally causes the oppressed person reasonably to believe, given her "special vulnerabilities," that she has no alternative but to remain in involuntary service for a time. See Kozminski, 487 U.S. at 952-53, 108 S.Ct. at 2764-65; United States v. Mussry, 726 F.2d 1448, 1451-52 (9th Cir.), cert. denied, Singman v. United States, 469 U.S. 855, 105 S.Ct. 180, 83 L.Ed.2d 114 (1984).

A sustainable conviction under section 1584 therefore requires sufficient evidence to enable a finding, inter alia, that the defendant used or threatened physical restraint, bodily harm or legal coercion. Kozminski, 487 U.S. at 952, 108 S.Ct. at 2765 ("This definition encompasses those cases in which the defendant holds the victim in servitude by placing the victim in fear of such physical restraint or injury or legal coercion.") (emphasis added). Moreover, in assessing whether the government has succeeded in establishing the requisite compulsion, the jury is to consider the victim's "special vulnerabilities," with a view to "whether the physical or legal coercion or

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threats thereof could plausibly have compelled the victim to serve [against her will]." Id. ⁴ In other words, conviction under section 1584 is precluded absent proof, inter alia, that the victim was intentionally held in service against her will (i) by actual physical restraint or physical force or (ii) by legal coercion or (iii) by plausible threats of physical harm or legal coercion.

B. Jury Instructions

We review the challenged jury instructions against the backdrop of the entire charge, see United States v. Tutiven, 40 F.3d 1, 8 (1st Cir.1994) (citing United States v. Serino, 835 F.2d 924, 930 (1st Cir.1987)), cert. denied, --- U.S. ----, 115 S.Ct. 1391, 131 L.Ed.2d 243 (1995), focusing our inquiry on whether the instructions adequately explained the law or " 'whether they tended to confuse or mislead the jury on the controlling issues.' " Brown v. Trustees of Boston Univ., 891 F.2d 337, 353 (1st Cir.1989) (citation omitted), cert. denied, 496 U.S. 937, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990).

1. The Instruction on Involuntary Servitude

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