Ditullio v. Boehm

• Decision Date: 07 November 2011
• Docket Number: No. 10–36012.,10–36012.
• Citation: 11 Cal. Daily Op. Serv. 13637,662 F.3d 1091,2011 Daily Journal D.A.R. 16310
• Parties: Miranda DITULLIO, Plaintiff–Appellant, v. Josef F. BOEHM, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

11 Cal. Daily Op. Serv. 13,637

2011 Daily Journal D.A.R. 16,310

662 F.3d 1091

Miranda DITULLIO, Plaintiff–Appellant,

v.Josef F. BOEHM, Defendant–Appellee.

No. 10–36012.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 25, 2011.Filed Nov. 7, 2011.

Darryl L. Jones, Law Office of Darryl Jones, Anchorage, Alaska, for the plaintiff-appellant.

W. Sherman Ernouf, Law Offices of Ernouf and Coffey, P.C., Anchorage, Alaska, for the defendant-appellee.

Appeal from the United States District Court for the District of Alaska, John W. Sedwick, District Judge, Presiding. D.C. No. 3:09–cv–00113–JWS.

Before: BETTY B. FLETCHER, ANDREW J. KLEINFELD, and CONSUELO M. CALLAHAN, Circuit Judges.

Opinion by Judge B. FLETCHER; Dissent by Judge CALLAHAN.

OPINION

B. FLETCHER, Circuit Judge:

In November 2004, appellee Josef Boehm pled guilty to one count of conspiracy to engage in human trafficking, and admitted that between 2001 and December 22, 2003, he conspired with others to provide controlled substances to several minors and recruited them to engage in sexual activity. Appellant Miranda Ditullio alleges that she is one of the victims identified in Boehm's plea agreement and seeks compensatory and punitive damages under the Trafficking Victims Protection Act, 18 U.S.C. § 1589 et seq. (hereinafter “TVPA”). Ditullio's complaint requests compensatory damages in excess of $5 million, punitive damages of up to $20 million, interests, costs, and attorney's fees.

After denying Ditullio's motion for summary judgment, and Boehm's motion to dismiss for failure to state a claim, the district court certified an interlocutory appeal on two questions of first impression: (1) whether the TVPA permits recovery of punitive damages, and (2) whether the TVPA's civil action provision, 18 U.S.C. § 1595 (which became effective on December 19, 2003), applies retroactively to conduct occurring before its effective date, particularly when the perpetrator may have engaged in sex trafficking after the statute's effective date. We hold that the TVPA permits recovery of punitive damages because it creates a cause of action that sounds in tort and punitive damages are available in tort actions under the common law. We also hold that 18 U.S.C. § 1595 cannot be applied retroactively to conduct that occurred before its effective date.

I.

When it enacted the Trafficking Victims Protection Act in 2000, Congress declared that the purposes of the TVPA are to “combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims.” Pub.L. No. 106–386, § 102, 114 Stat. 1488 (2000) (codified as amended at 18 U.S.C. § 1589 et seq.). As relevant here, the TVPA makes it a federal crime to knowingly:

recruit[ ], entice[ ], harbor[ ], transport[ ], provide[ ], obtain[ ] or maintain[ ] by any means 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 will be used to cause the person to engage in a commercial sex act.

18 U.S.C. § 1591(a). In 2003, Congress reauthorized appropriations for the TVPA and amended it in order to “enhanc[e] provisions on prevention of trafficking, protection of victims of trafficking, and prosecution of traffickers.” H.R.Rep. No. 108–264(I), at 8 (2003), 2004 U.S.C.C.A.N. 2408, 2408. In particular, Congress created a private right of civil action for victims of trafficking. 18 U.S.C. § 1595 (hereinafter “ § 1595” or “civil remedy provision”). The civil remedy provision currently provides:

An individual who is a victim of a violation may bring a civil action against the perpetrator (or whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter) in an appropriate district court of the United States and may recover damages and reasonable attorneys fees.

18 U.S.C. § 1595(a).¹ Section 1595 became effective on December 19, 2003. See Pub.L. 108–193, 117 Stat. 2878 (2003) (codified as amended at 18 U.S.C. § 1589 et seq.).

II.

In November 2004, Boehm pled guilty to one count of conspiracy to commit sex trafficking of children in violation of 18 U.S.C. §§ 371 ² and 1591(a)(1) and one count of conspiracy to distribute controlled substances to persons under twenty-one years old, in violation of 21 U.S.C. §§ 846, 841(a)(1). Boehm specifically admitted the truth of the allegations contained in the factual basis for his pleas, including the following:

Beginning in late 2001 and continuing until December 22, 2003, BOEHM conspired with BOLLING, WILLIAMS, and TYREE to recruit persons under 18 (“ juveniles ”) to engage in sexual acts. The juveniles were recruited by offering them cocaine, which was manufactured outside of Alaska and effected interstate commerce. The following juveniles were knowingly recruited by the defendants to engage in sex: S.P., E.A., J.M., K.W., L.H., C.R., L.B., and M.D. These juveniles had sex with one or more of the defendants, and received money and/or controlled substances from the defendants. The defendants knew the juveniles ages when they recruited the juveniles. To effect the purposes of the conspiracy, the defendant purchased cocaine and distributed cocaine to one or more juveniles, including S.P. in or about the fall of 2001.(emphasis added).

Ditullio filed suit in federal district court in June 2009, and amended her complaint in October 2009. She alleged involuntary servitude in violation of the Thirteenth Amendment, violations of the TVPA, sexual assault, and intentional infliction of emotional distress. Ditullio moved for summary judgment on Boehm's liability for compensatory and punitive damages. She attached to the motion a copy of Boehm's 2004 plea agreement and an affidavit.

Ditullio declared that she is the victim identified by the initials “M.D.” in Boehm's plea agreement. She claims to have first met Boehm in the fall of 2002 when she was fifteen years old. Ditullio claims that Boehm gave her crack cocaine “on a daily basis so that Mr. Boehm could have his way with me at any given time” and that she lived with him in order to obtain drugs on a regular basis. She declares that Boehm enticed her with drugs to perform sexual acts on others, including his co-conspirators and other female victims. Ditullio also claims that she became pregnant in 2003, and that Boehm could be the father of the child (who was taken into state custody due to Ditullio's drug addiction). Ditullio states that she “suffered severe emotional upset” and has been unable to maintain steady employment as a result of Boehm's actions. In reply, Boehm generally denied Ditullio's allegations and argued that her affidavit should be stricken, but offered no contradictory evidence.

The district court denied Ditullio's motion for partial summary judgment, despite its acknowledgment that the affidavit and plea agreement together established that Ditullio was a victim of sex trafficking and Boehm was the perpetrator. The district court concluded that “because § 1595 imposed a new form of civil damages on defendants who violated § 1591 and Congress did not indicate that it intended § 1595 to apply retroactively, the presumption against retroactivity applies.” (citing Landgraf v. USI Film Products, 511 U.S. 244, 269, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)). The district court stated that “there is no evidence on the record showing that Ditullio was a victim of Boehm's sex trafficking after December 19, 2003,” although the plea agreement established that Boehm and his co-conspirators engaged in sex trafficking until “at least December 22, 2003.” Accordingly, Ditullio was not entitled to summary judgment on the liability issue. The district court also rejected Ditullio's motion for summary judgment on her claim for punitive damages, stating that “Ditullio fails to cite any authority for the proposition that punitive damages are available under 18 U.S.C. § 1595(a), and if so, what legal standard applies.”

Boehm then moved to dismiss under Federal Rule of Civil Procedure 12(c) and Ditullio moved for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The district court denied the 12(c) motion, but granted the motion for an interlocutory appeal, reasoning that the fact that Boehm's sex trafficking “did extend beyond December 19, 2003 ... yields an interesting and genuinely debatable legal issue over whether in these circumstances the statute can be used to sweep in acts in the course of Boehm's conduct which took place prior to December 2003.” Ditullio appeals the district court's rulings that section 1595 does not permit recovery of punitive damages and that section 1595 of the TVPA does not apply retroactively to conduct that occurred prior to the date it became effective.

The district court granted Ditullio's motion to certify these issues of first impression for interlocutory appeal. We have jurisdiction under 28 U.S.C. § 1292(b).

The availability of punitive damages is reviewed de novo. Hangarter v. Provident Life and Accident Ins. Co., 373 F.3d 998, 1013 (9th Cir.2004). Whether a statute may be applied retroactively is a question of law that is reviewed de novo. Saravia–Paguada v. Gonzales, 488 F.3d 1122, 1129 n. 10 (9th Cir.2007).

III.

The district court concluded, without analysis, that punitive damages are not available under the TVPA. The TVPA's civil remedy provision provides that a victim “may recover damages and reasonable attorneys fees” in a civil action against the perpetrator. 18 U.S.C. § 1595. Standing alone, the term “damages” is ambiguous: it could refer to compensatory damages, punitive damages, nominal damages, or some combination of the three.³ Black's Law Dictionary 445–48 (9th ed. 2009) (defining damages as “money claimed by, or ordered...