U.S. v. Mussry

Citation726 F.2d 1448
Decision Date01 March 1984
Docket NumberNo. 83-5093,83-5093
PartiesUNITED STATES of America, Plaintiff-Appellant, v. David MUSSRY, Elsa Singman Nee Mussry, Lily Judah Nee Mussry, also known as Lulu, Nasim Mussry, Jack Sassoon Nee Mussry, Moses Aslan, Mordecai Sassoon, also known as Moody Sassoon, also known as Maudy Sassoon, Saul Mizrahie, Al Mizrahie, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Walter Barnett, Louise A. Lerner, Dept. of Justice, Washington, D.C., for plaintiff-appellant.

John D. Vandevelde, Los Angeles, Cal., Harold Greenberg, Sherman Oaks, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before FARRIS and REINHARDT, Circuit Judges, and SOLOMON, * District Judge.

REINHARDT, Circuit Judge:

The defendants were indicted on charges of holding individuals in peonage and involuntary servitude. The district court dismissed most of the counts. It concluded that those counts failed to sufficiently charge the defendants with a "holding" in involuntary servitude under 18 U.S.C. Secs. 1581, 1583, and 1584 (1982) because they failed to allege that the defendants used or threatened to use law or force. We hold that a violation of the peonage and involuntary servitude statutes may occur through conduct other than the use or threatened use of law or force and that all of the counts are sufficient to charge the defendants with the crimes enumerated. Accordingly, we reverse.

The defendants are charged with violating 18 U.S.C. Secs. 1581 (holding in peonage), 1583 (enticement into involuntary servitude), 1584 (holding in involuntary servitude), and 371 (conspiracy). The indictment and bill of particulars allege that the defendants unlawfully held poor, non-English speaking Indonesian servants against their will by enticing them to travel to the United States, paying them little money for their services, and withholding their passports and return airline tickets, while requiring them to work off, as servants, the debts resulting from the costs of their transportation. The government claims that the defendants' conduct effectively coerced the workers into remaining in their service and therefore constituted a holding in involuntary servitude.

According to the indictment and bill of particulars: The Indonesian servants were required to work up to 15 hours per day seven days a week. The defendants routinely denied all requests for vacations. Most of the servants cleaned the defendants' houses, cooked meals for the defendants, massaged them, and served them in a variety of other ways. Some did landscaping and gardening and engaged in household construction for the defendants. All of the servants lived in the defendants' homes.

The district court dismissed all counts under 18 U.S.C. Secs. 1581, 1583, and 1584 which failed to allege that the defendants used, or threatened to use, law or force to hold the workers against their will. 1 The district court also deleted all references to involuntary servitude, peonage, and slavery from the conspiracy count.

The government contends that the district court misconstrued the law when it concluded that a "holding" in involuntary servitude can be accomplished only through the use, or threatened use, of law or physical force. Accordingly, the government urges that the district court erred in holding that the indictment and bill of particulars are not sufficient to charge the defendants with violations of the statutes.

We have jurisdiction to review the dismissal of the substantive counts and the partial dismissal of the conspiracy count under 18 U.S.C. Sec. 3731 (1982). See United States v. Marubeni America Corp., 611 F.2d 763, 764-65 (9th Cir.1980).

"HOLDING" IN INVOLUNTARY SERVITUDE

18 U.S.C. Sec. 1584, in relevant part, provides that "[w]hoever knowingly and willfully holds to involuntary servitude ... any other person for any term ... shall be fined ... or imprisoned ... or both." 2 The question of what is sufficient to constitute a "holding" under 18 U.S.C. Secs. 1581, 1583, and 1584 is a question of law that we address de novo. See, e.g., Donovan v. Southern California Gas Co., 715 F.2d 1405, 1407 (9th Cir.1983) (per curiam). Because we are reviewing a dismissal of the charges, we need only decide whether the indictment and bill of particulars are sufficient to charge the defendants with a criminal offense, rather than whether sufficient facts have been adduced to prove that the defendants committed a crime. See United States v. Buckley, 689 F.2d 893, 897 (9th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1778, 76 L.Ed.2d 349 (1983).

The 13th amendment and its enforcing statutes are designed to apply to a variety of circumstances and conditions. Neither is limited to the classic form of slavery. Both apply to contemporary as well as to historic forms of involuntary servitude. The amendment and statutes were intended

not merely to end slavery but to maintain a system of completely free and voluntary labor throughout the United States.... [I]n general, the defense against oppressive hours, pay, working conditions, or treatment is the right to change employers. When the master can compel and the laborer cannot escape the obligation to go on, there is no power below to redress and no incentive above to relieve a harsh overlordship or unwholesome conditions of work.

Pollock v. Williams, 322 U.S. 4, 17-18, 64 S.Ct. 792, 799, 88 L.Ed. 1095 (1944); see Bailey v. Alabama, 219 U.S. 219, 241, 31 S.Ct. 145, 151, 55 L.Ed. 191 (1911); United States v. Booker, 655 F.2d 562, 564, 566 (4th Cir.1981) ("The amendment and the legislation were intended to eradicate not merely the formal system of slavery that existed in the southern states prior to the Civil War, but all forms of compulsory, involuntary service."; citations omitted); see also Schnapper, Perpetuation of Past Discrimination, 96 Harv.L.Rev. 828, 831-36 (1983) (recounting history surrounding Southern legislatures' enactment of black codes that were designed to " 'lock' former slaves into the service of their old masters"). Because of that purpose, it has long been recognized that "[t]he words involuntary servitude have a 'larger meaning than slavery.' " Bailey v. Alabama, 219 U.S. at 241, 31 S.Ct. at 151 (quoting The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 69, 21 L.Ed. 394 (1872)).

In deciding the issues before us, we must consider the realities of modern economic life: yesterday's slave may be today's migrant worker or domestic servant. See United States v. Booker, 655 F.2d 562, 566 (4th Cir.1981). 3 Today's involuntary servitor The question of what forms of coercion may serve as the basis for a finding of a violation of the involuntary servitude statutes is not a simple one. In United States v. Shackney, 333 F.2d 475, 487 (2d Cir.1964), the Second Circuit held that "[t]here must be 'law or force' that 'compel[led] performance or a continuance of the service' " in order for there to be such a finding. (quoting Clyatt v. United States, 197 U.S. 207, 215-16, 25 S.Ct. 429, 430, 49 L.Ed. 726 (1905)). 5 Relying on Shackney, the defendants claim that, because the indictment and bill of particulars do not allege the use, or threatened use, of law or physical force, the district court was correct in dismissing the charges.

                is not always black;  he or she may just as well be Asian, Hispanic, or a member of some other minority group. 4   Also, the methods of subjugating people's wills have changed from blatant slavery to more subtle, if equally effective, forms of coercion
                

We agree with the defendants that the most reasonable interpretation of Shackney is that a holding in involuntary servitude may occur only when there is the use, or threatened use, of law or physical force. However, while a test that looks to the use of law or physical force attempts to draw a clear line between lawful and unlawful conduct and has the apparent advantage of simplicity, it is too narrow to fully implement the purpose of the 13th amendment and its enforcing statutes. That a broader test is required was recognized in Judge Dimock's concurring opinion:

[the] meaning of "involuntary" ... deal[s] only with the will of the servitor. That word raises the question of whether the will of the servitor has been subjugated, i.e., whether he has been rendered incapable of making a rational choice, and not the question of what were the means by which the servitude was imposed.... Where the subjugation of the will of the servant is so complete as to render him incapable of making a rational choice, the servitude is involuntary within the terms of the statute ....

Shackney, 333 F.2d at 487-88 (Dimock, J., concurring).

The essence of a holding in involuntary servitude is the exercise of control by one individual over another so that the latter is coerced into laboring for the former. See Bailey v. Alabama, 219 U.S. 219, 241, 31 S.Ct. 145, 151, 55 L.Ed. 191 (1911); Wicks v. Southern Pacific Railroad Co., 231 F.2d 130, 138 (9th Cir.), cert. denied, 351 U.S. 946, 76 S.Ct. 845, 100 L.Ed. 1471 (1956). The use, or threatened use, of law or physical force is the most common method of forcing another to enter into or remain in a state of involuntary servitude. See, e.g., United States v. Harris, 701 F.2d 1095, 1098 (4th Cir.), cert. denied, --- U.S. ----, 103 S.Ct Conduct other than the use, or threatened use, of law or physical force may, under some circumstances, have the same effect as the more traditional forms of coercion--or may even be more coercive; such conduct, therefore, may violate the 13th amendment and its enforcing statutes. The crucial factor is whether a person intends to and does coerce an individual into his service by subjugating the will of the other person. A holding in involuntary servitude occurs when an individual coerces another into his service by improper or wrongful conduct that is intended...

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