U.S. v. Marcus

• Decision Date: 14 August 2008
• Docket Number: Docket No. 07-4005-cr.
• Citation: 538 F.3d 97
• Parties: UNITED STATES of America, Appellee, v. Glenn MARCUS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

538 F.3d 97

UNITED STATES of America, Appellee, v. Glenn MARCUS, Defendant-Appellant.

Docket No. 07-4005-cr.

United States Court of Appeals, Second Circuit.

Argued: January 9, 2008.

Decided: August 14, 2008.

Herald Price Fahringer (Erica T. Dubno, on the brief), Fahringer & Dubno, New York, NY, for Defendant-Appellant.

Pamela Chen, Assistant United States Attorney (Peter A. Norling, Assistant United States Attorney, Benton J. Campbell, United States Attorney, Grace Chung Becker, Acting Assistant Attorney General, Jessica Dunsay Silver, Tovah R. Calderon, Attorneys, Department of Justice, Civil Rights Division, Appellate Section, on the brief) Eastern District of New York, Brooklyn, NY, for Appellee.

Before: STRAUB, SOTOMAYOR and WESLEY, Circuit Judges.

Judges SOTOMAYOR and WESLEY concur in a separate opinion.

PER CURIAM:

Defendant-Appellant Glenn Marcus appeals from a September 18, 2007 judgment of conviction and sentence of the United States District Court for the Eastern District of New York (Allyne R. Ross, Judge), sentencing defendant principally to a term of 108 months' imprisonment following conviction after a jury trial of violations of the Trafficking Victims Protection Act ("TVPA"), 18 U.S.C. §§ 1589 and 1591. Marcus argues, inter alia, that his conviction amounted to a violation of the Ex Post Facto Clause of the Constitution. For the reasons set forth below, we agree. The judgment of the District Court is vacated, and the case is remanded to the District Court for proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of this case are exhaustively set forth in the District Court's opinion. See United States v. Marcus, 487 F.Supp.2d 289, 291-97 (E.D.N.Y.2007). We recite only those facts relevant to the Ex Post Facto challenge.

At trial, the government presented evidence that in 1998, Glenn Marcus, who was living in New York at the time, met Jodi,¹ the complaining witness, in an online chat room devoted to an alternative sexual lifestyle, known as bondage, dominance/discipline, submission/sadism, and masochism ("BDSM"). Marcus, with the help of two of his "slaves," Joanna and Celia, convinced Jodi to travel from her home in the Midwest to Joanna's apartment in Maryland, in order to meet Marcus in person, which she did in October 1998. During this visit, Marcus whipped Jodi and carved the word "slave" on her stomach with a knife. Jodi returned to Joanna's apartment in Maryland for a second visit in November 1998.

After her second visit, Marcus convinced Jodi to move from the Midwest to Maryland where she would live with Joanna. Jodi submitted to Marcus a petition, in which she referred to herself as "pooch," a name given to her by Marcus, and stated, among other things, "I am begging to serve you Sir, completely, with no limitations.... If I beg you for my release, Sir, please ignore these words." Despite this petition, Jodi testified that she believed she would be able to leave Marcus if she wanted to.

Jodi moved into Joanna's apartment in January 1999, and Marcus visited them in Maryland every one to two weeks. During these visits, Marcus engaged in BDSM activities with Jodi and Joanna, and sometimes other women. These activities included branding Jodi, requiring her to seek his permission before contacting her family, whipping and choking her during intercourse, photographing her for his website, "Subspace," and requiring her to post diary entries describing the activities on the website. The BDSM activity, along with the "punishments" for disobedience, increased in severity during this time, and Jodi testified that she became increasingly depressed.

At some point, Marcus instructed Jodi to convince her younger sister to travel to Maryland, and when she refused, Marcus told her that she would be severely punished. In October 1999, Marcus arrived in Maryland to inflict Jodi's punishment. He handcuffed her to a wall and left to take a nap, informing her that he would return to inflict the punishment. Jodi testified that at this point, she had a moment of clarity and decided to leave Marcus. She convinced Celia to help her off the wall, but Joanna awakened Marcus. Jodi told Marcus that she wanted to leave, and in response, Marcus inflicted upon Jodi the most severe punishment she had ever received up to this point. The incident was photographed for Marcus's website. Jodi testified that at this point, the relationship became non-consensual, as she felt "completely beaten down," "trapped," and "full of terror."

In November 1999, Joanna informed Marcus, by phone, that she wished to leave him. With Jodi listening on the line, Marcus threatened that he would show Joanna's pictures to her family and that he would harm members of her family if she were to leave him. Jodi testified that, as a result of having heard this conversation, she thought that Marcus would do the same to her were she to leave.

In January 2000, Marcus instructed Jodi to move to New York, where she lived with Rona, another one of Marcus's "slaves." Marcus instructed Jodi to create a new website, called "Slavespace." After creating the site, Jodi worked on it for approximately eight to nine hours per day, updating pictures and diary entries. Marcus received all site-related revenues, which consisted primarily of membership fees and advertising. During the time that Jodi lived with Rona, Marcus continued to engage in violent sexual behavior with her, punishing her severely when he was unhappy with her work on the website. Jodi testified that each of these incidents was non-consensual, but that she was afraid to leave him. At one point, when she told Marcus that she wanted to leave, he threatened to send pictures to her family and the media.

Finally, in March 2001, Marcus told Jodi that she would be allowed to leave him, but that she had to endure one final punishment. He drove her to the home of a woman named Sherry and there inflicted severe punishment upon Jodi, including banging her head against a beam in the ceiling of Sherry's basement, tying her hands and ankles to the beam, beating her and whipping her while she was hanging from the beam, drugging her, and having sexual intercourse with her. He photographed the incident and forced Jodi to write a diary entry about the incident for his website. Jodi continued to live with Rona until August 2001, when Rona told Marcus that she no longer wanted Jodi to live with her. Jodi moved into her own apartment, and her interactions with Marcus became less frequent, although she remained in contact with him until 2003.

On February 9, 2007, the government filed a superceding indictment, charging Marcus with violating the sex trafficking statute, 18 U.S.C. § 1591(a)(1),² and the forced labor statute, 18 U.S.C. § 1589,³ of the Trafficking Victims Protection Act ("TVPA") "[i]n or about and between January 1999 and October 2001." Marcus was convicted, after a jury trial, of both counts.⁴

Although the TVPA was not enacted until October 2000, the government presented evidence at trial with respect to the entire period charged in the indictment, and the District Court did not instruct the jury with respect to the date of the enactment of the statute. At the time, Marcus did not object to the jury instructions on this ground, and he did not raise any argument to this effect in his motion for a judgment of acquittal under Fed.R.Crim.P. 29.

DISCUSSION

Marcus argues for the first time on appeal that the TVPA has been applied retroactively in his case in violation of the Ex Post Facto Clause of the United States Constitution. Because Marcus failed to raise this argument before the District Court, it is reviewed for plain error. See United States v. Torres, 901 F.2d 205, 227-28 (2d Cir.1990). "To establish plain error, the defendant must establish (1) error (2) that is plain and (3) affects substantial rights." United States v. Villafuerte, 502 F.3d 204, 209 (2d Cir.2007). "If the error meets these initial requirements, we then must consider whether to exercise our discretion to correct it, which is appropriate only if the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings." Id. (internal quotation marks omitted).

The Constitution provides that "[n]o ... ex post facto Law shall be passed." U.S. Const. art. I, § 9, cl. 3.

The Supreme Court has interpreted this clause as prohibiting Congress from passing a law that: (1) makes an act a crime that was legal when committed; (2) makes a crime greater than it was when it was committed; (3) increases the punishment for a crime after it has been committed; or (4) deprives the accused of a legal defense that was available at the time the crime was committed.

United States v. Harris, 79 F.3d 223, 228 (2d Cir.1996). "While the Ex Post Facto Clause itself is a restraint on the legislative branch, its protections have been extended to the application of judicial precedent by the courts under the Due Process Clause of the Fifth Amendment." Id. at 228-29.

It is undisputed that the indictment charges Marcus with violating the statute between January 1999 and October 2001, that the government presented evidence at trial with respect to this entire time period, that the TVPA was enacted in October 2000, and that the District Court failed to instruct the jury with respect to this issue. This case, therefore, clearly implicates the Ex Post Facto Clause. However, the government argues that the sex trafficking and forced labor offenses constitute continuing offenses, and that even though the criminal conduct at issue began prior to enactment of the TVPA, it continued after enactment; accordingly, no violation occurred here. "It is well-settled that when a statute is concerned with a continuing offense, the Ex Post Facto Clause is not violated by application of a statute to an enterprise that began prior to, but continued after, the effective date of the statute." Id. at 229 (...