U.S. v. Marcus

• Citation: 487 F.Supp.2d 289
• Decision Date: 17 May 2007
• Docket Number: No. 05-CR-457 (ARR).,05-CR-457 (ARR).
• Parties: UNITED STATES of America, v. Glenn MARCUS, Defendant.
• Court: U.S. District Court — Eastern District of New York

Page 289

487 F.Supp.2d 289

UNITED STATES of America, v. Glenn MARCUS, Defendant.

No. 05-CR-457 (ARR).

United States District Court, E.D. New York.

May 17, 2007.

COPYRIGHT MATERIAL OMITTED

Pamela Ki Mai Chen, United States Attorney, Brooklyn, NY, Attorney for the United States.

Maurice, Secarz, Sercarz & Rioplle, New York, NY, Attorney for the Defendant.

OPINION AND ORDER

ROSS, United States District Judge.

Defendant Glenn Marcus was tried before a jury on charges of sex trafficking, in violation of 18 U.S.C. § 1591; forced labor, in violation of 18 U.S.C. § 1589; and dissemination of obscene materials through an interactive computer service, in violation of 18 U.S.C. § 1462. The charges arose out of conduct related to an alternative sexual lifestyle, known as bondage, dominance/discipline, submission/sadism, and masochism ("BDSM"). At trial, the complaining witness testified that she entered into a consensual BDSM relationship with the defendant, who subsequently used force and coercion to prevent her from leaving when she sought to do so. She testified that she remained with the defendant against her will for nearly two years, during which period she created and maintained the defendant's website and engaged in BDSM conduct with the defendant and others that was photographed and placed on the website. On March 5, 2007, a jury found the defendant guilty of sex trafficking and forced labor and not guilty of dissemination of obscene materials. The jury also found that the government had proved the defendant committed aggravated sexual abuse in relation to the forced labor count, a statutory aggravating factor.

Defendant now renews his Fed. R.Crim.P. 29 motion for judgment of acquittal on the sex trafficking and forced labor counts, which he made initially at the close of the government's case and renewed at the end of all the evidence. The defendant raises three grounds for setting aside his conviction. First, he contends that the Trafficking Victims Protection Act of 2000 ("TVPA") — the legislation enacting both statutes at issue — was not intended to apply to conduct that took place as part of an "intimate, domestic relationship" or to consensual BDSM activities. Second, he claims that the term "commercial sex act" in 18 U.S.C. § 1591 does not apply when the defendant received revenue for photographic depictions of sex acts as opposed to the acts themselves. Third, he argues that the government has failed to present sufficient evidence for a reasonable jury to find a nexus between the force or coercion employed by the defendant and the commercial sex act element of his sex trafficking conviction or the labor or services element of his forced labor conviction. In the alternative, defendant moves for a new trial pursuant to Fed.R.Crim.P. 33 so that the jury may be instructed that a conviction requires that the dominant purpose of the defendant's use of force or coercion is to cause the victim to engage in a commercial sex act or to obtain her labor or services. For the reasons stated below, the defendant's motions are denied.

BACKGROUND

Viewing the evidence in the light most favorable to the government, see United States v. Autuori, 212 F.3d 105, 108 (2d Cir.2000), the relevant evidence adduced at trial is as follows.¹

1. Events from 1998 to June 1999

In 1998, Jodi,² the complaining witness, learned about BDSM on the internet and began visiting online chatrooms to find out more information. (Trial Transcript [hereinafter "Tr."] at 70-71.) at the time, Jodi understood BDSM to be a type of relationship in which, within certain guidelines and limits, one person is dominant and the other submissive. (Id.) After two relatively brief BDSM relationships, Jodi met the defendant online in the fall of 1998. (Id. at 71-73.) The defendant — identified by the screen name "GMYourGod" — called himself the only true "master" and referred to the women in BDSM relationships with him as "slaves" who "served" him. (See id. at 73, 75-76.) He explained to Jodi that, in the type of BDSM he practiced, he did not allow the use of any limits or safe words.³ (Id. at 74.) By way of example, he explained that he could decide to cut off a slave's limb or order her to kill a small child. (Id at 74-75.) Two of the defendant's slaves involved in the online conversation — Joanna, identified by the screen name "GMsdogg," and Celia, identified by the screen name "nameless" — assured-Jodi that the defendant had never engaged in behavior of this nature previously, and Joanna told Jodi that she did not believe he would do so in the future. (Id. at 75.) In subsequent conversations by telephone, the defendant communicated to Jodi that she belonged to him and needed to serve him. (Id. at 75-76.) During these early encounters with the defendant, Jodi shared intimate details about her life experiences, including that she had been physically and emotionally abused by her mother and had struggled with an eating disorder. (See id. at 76-77.)

In October 1998, Jodi traveled from her home in the Midwest⁴ to Joanna's apartment in Maryland to meet the defendant. (Id. at 76.) Over the three to four days that she was there, the defendant whipped her and carved the word "slave" on her stomach with a knife. (Id.) In November 1998, Jodi again traveled to Maryland to meet the defendant. (Id. at 77.) During these two visits, the defendant complimented Jodi on her looks and performance of BDSM activities. (Id. at 77-78.) He also continued to emphasize that she belonged to him and needed to be with him. (Id.)

After Jodi's second visit, the defendant informed her that he wanted her to move to Joanna's apartment in Maryland and Jodi agreed to do so. (Id. at 78.) Prior to moving, Jodi submitted a petition, which she drafted and Joanna edited, in which she asked the defendant to allow her to serve him as his slave. (Id. at 79-81; see also Govt. Ex. 2C,⁵ at 1051.) In the petition she referred to herself as "pooch" (Govt. Ex. 2C, at 1051), a name given to her by the defendant to signify that she was his property (Tr. at 82.) In relevant part, the petition read: "I am begging to serve you Sir, completely, with no limitations. ... If I beg you for my release, Sir, please ignore these words." (Govt. Ex. 2C, at 1051.) Despite this request, however, Jodi believed that she would be able to leave if she wanted to do so, because the defendant had previously told her that he never wanted to have a slave who did not want to serve him. (See Tr. at 108.)

In January 1999, Jodi moved to Maryland, where she stayed with Joanna in Joanna's apartment. (Id. at 83, 86.) The defendant, who lived in Long Island, New York at the time (id. at 75), would visit Joanna's apartment every one to two weeks for three to four days (id. at 86-87). During these visits, he would engage in BDSM activities with Jodi, Joanna and sometimes other women. (Id.) When the defendant was present, Jodi and any other women present were not allowed to wear clothing, could not eat, drink or speak without permission, were only allowed to sleep for a couple of hours at a time, and were expected to follow the defendant's instructions. (Id. at 87.) Soon after Jodi arrived, the defendant took steps to reinforce the notion that he considered Jodi to be his property, including shaving her head and branding a "G" into her buttocks with a coat hanger. (See id. at 83-84.) The branded skin subsequently developed into a severe burn, but the defendant did not permit Jodi to seek medical attention. (Id. at 86.) The defendant also prohibited Jodi from maintaining any of her prior friendships and required her to receive permission from him to speak with her family. (Id. at 83-84.) He told her that she was ugly, stupid, and disobedient and did not deserve to be his slave. (Id. at 87-88.) Jodi called the defendant "sir," while he referred to her as "it," "pooch" or by other derogatory names and expected her to refer to herself only in the third person. (Id. at 88.)

The defendant instructed Jodi to engage in a series of BDSM activities with him and other women, which the defendant photographed and posted on a website maintained by Joanna known as "Subspace." (Id. at 91-93.) For example, Jodi was whipped, choked, and had sexual intercourse while tied to a wall. (Id. at 90.) At the time, Jodi found some of these activities to be sexually gratifying. (Id.) She and the other women were required to write diary entries to post on the defendant's website describing the BDSM activities they engaged in with the defendant and expressing the joy and gratitude the "slaves" felt about serving their "master." (Id. at 91.)

When the defendant was not present at the apartment, Jodi and Joanna were expected to ensure that each was complying with his instructions. (Id. at 93-94.) For example, they were told to recite daily the "Master's Expectations," which outlined the expected conduct of the defendant's slaves. (Id. at 94-95; see also Govt. Ex. 2C, at 1014-20.) The defendant would also direct Joanna or Jodi to wear butt plugs⁶ or breast clamps for long periods of time. (Id. at 95.) If either failed to follow instructions the other one would inform the defendant and he would either administer punishments himself or order one to punish the other. (Id. at 96.) Jodi was punished nearly every time she saw the defendant, including being whipped or placed in a large, metal dog cage in the apartment. (Id. at 97-98.)

Several months after Jodi began living at Joanna's apartment, the punishments inflicted by the defendant became increasingly severe, and Jodi began feeling depressed. (Id. at 98.) In June 1999, she burned her arm twice with a cigarette. (Id.) Fearing that the defendant would notice the burns when he visited from New York, she told him on the telephone what she had done. (Id.) He instructed Joanna to burn herself with a cigarette on her arm and then to punish Jodi by defecating on her face in the bathtub and making her clean the...