United States v. Toviave

• Decision Date: 04 August 2014
• Docket Number: No. 13–1441.,13–1441.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jean Claude Kodjo TOVIAVE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

761 F.3d 623

UNITED STATES of America, Plaintiff–Appellee,

v.Jean Claude Kodjo TOVIAVE, Defendant–Appellant.

No. 13–1441.

United States Court of Appeals, Sixth Circuit.

Argued: May 7, 2014.

Decided and Filed: Aug. 4, 2014.

ARGUED:Christopher Keleher, The Keleher Appellate Law Group, Chicago, Illinois, for Appellant. Mollie E. O'Rourke, United States Attorney's Office, Detroit, Michigan, for Appellee. ON BRIEF:Christopher Keleher, The Keleher Appellate Law Group, Chicago, Illinois, for Appellant. Mollie E. O'Rourke, United States Attorney's Office, Detroit, Michigan, for Appellee.

Before: SUHRHEINRICH, ROGERS, and SUTTON, Circuit Judges.

OPINION

ROGERS, Circuit Judge.

Child abuse is a state crime, but not a federal crime. Forced labor is a federal crime, 18 U.S.C. § 1589, but the statute obviously does not extend to requiring one's children to do their homework, babysit on occasion, and do household chores. Only by bootstrapping can this combination of two actions that are not federal crimes—child abuse and requiring children to do household chores—be read as a federal crime.

Defendant Toviave brought four young relatives from Togo to live with him in Michigan. After they arrived, Toviave made the children cook, clean, and do the laundry. He also occasionally made the children babysit for his girlfriend and relatives. Toviave would beat the children if they misbehaved or failed to follow one of Toviave's many rules. While his actions were deplorable, Toviave did not subject the children to forced labor. The mere fact that Toviave made the children complete chores does not convert Toviave's conduct—what essentially amounts to child abuse—into a federal crime. Toviave's federal forced labor conviction must accordingly be reversed.

Toviave immigrated to the United States from Togo in 2001 and eventually settled in Michigan. In 2006, he contacted Helene Adoboe, a girlfriend (sometimes referred to as his wife) from Togo, and asked that she and four children—Gaelle, Rene, Kwami, and Kossiwa—come and live with him in the United States. Kossiwa is Toviave's younger sister, Gaelle and Rene are Toviave's cousins (although their degree of consanguinity is unclear), and Kwami is Adoboe's nephew. Adoboe and the children managed to enter the United States with false immigration documents. Adoboe initially lived with Toviave, but their relationship quickly soured, and the two separated in 2008.

Toviave apparently demanded absolute obedience from the children and was quick to beat them. Toviave hit the children with his hands, and with plunger sticks, ice scrapers, and broomsticks, often for minor oversights or violations of seemingly arbitrary rules. For example, Gaele testified that Toviave hit her in the face for using loose-leaf paper rather than a notebook to do her homework, and Kossiwa recounted an incident where Toviave hit her with a broomstick for throwing a utensil in the sink.

The children were responsible for different household chores. Toviave made the children cook, clean, and do the laundry. He also made the children pack up the house when the family moved to a new apartment, serve food to Toviave's guests, iron Toviave's clothes, and clean his van. Toviave also occasionally made the children babysit for the women he was dating, or for his relatives.

Toviave was not always cruel, however. He provided for the children by working two jobs, and also did yard work. Toviave bought the children sports equipment and let them play soccer. The children also participated in some recreational activities with Toviave: they exercised with him and went on family trips together. Toviave also put significant emphasis on education; many of his punishments appear to have stemmed from problems related to schoolwork. He hired a tutor to teach the children English. He also imposed mandatory study periods: the children had to be at the kitchen studying at 5:30 a.m. on school days. The children always attended school, and Toviave even created extra assignments and drills for the children to complete when they finished their school assignments.

Eventually, the children's teachers began to suspect that the children were being abused. Michigan authorities caught wind of the allegations of abuse and began investigating Toviave. The children were eventually removed from the house. The federal government became involved when a Michigan investigator began to suspect that the children had been brought into the United States illegally. Agents with the Department of Homeland Security obtained a search warrant and discovered false immigration documents in Toviave's home. Some time later, a grand jury indicted Toviave on charges of visa fraud, mail fraud, forced labor, and human trafficking. Toviave pled guilty to the visa and mail fraud charges, and the government dropped the trafficking charge. Toviave proceeded to trial on the forced labor charges. During the trial, a juror asked the court, “Why is this [case] not tried under the child abuse laws?” The court answered, “Child abuse laws are state laws, and there's no reason that it couldn't be tried under both.” Toviave was eventually convicted on four counts with respect to the four children. He appeals.

Although Toviave's treatment of the children was reprehensible, it was not forced labor. Three points compel this conclusion. First, forcing children to do household chores cannot be forced labor without reading the statute as making most responsible American parents and guardians into federal criminals. Second, requiring a child to perform those same chores by means of child abuse does not change the nature of the work. And third, if it did, the forced labor statute would federalize the traditionally state-regulated area of child abuse. In short, treating household chores and required homework as forced labor because that conduct was enforced by abuse either turns the forced labor statute into a federal child abuse statute, or renders the requirement of household chores a federal crime.

Apart from the abuse, the facts here amount to nothing more than household chores. Toviave made the children clean the house weekly. This included washing the floors, windows, and bathrooms, and doing dishes. Toviave also tasked the children with preparing food and doing laundry. On one occasion, the family moved, and Toviave forced the children to do all of the packing. Finally, Toviave made the children babysit for his friends and relatives. None of this conduct goes beyond what a parent or guardian can expect from his child.

An American parent has always had the right to make his child perform household chores. That right is codified in Michigan: “parents ... are ... entitled to the custody, control, services and earnings of [a] minor.” Mich. Comp. Laws § 722.2; see also Rohm v. Stroud, 386 Mich. 693, 194 N.W.2d 307, 308 (1972). A person standing in loco parentis, or “in the place of a parent; instead of a parent; charged, factitiously, with a parent's rights, duties, and responsibilities” also has that right. Hush v. Devilbiss Co., 77 Mich.App. 639, 259 N.W.2d 170, 174 n. 1 (1977). This principle reappears in different areas of the law. For example, child labor laws often do not apply to domestic work or chores. See, e.g.,Mich. Comp. Laws § 409.119(a); 29 C.F.R. § 570.126. A parent is also entitled to compensation for the value of his or her child's services in a tort action. See Rohm, 194 N.W.2d at 309. “In most states, as at common law, gainful employment neither guarantees minor children the right to receive their earnings nor provides them with a cause of action to recover the earnings their parents have taken from them.” Jillian Benbow, Under My Roof: Parents' Rights to Children's Earnings, 16 J. Contemp. Legal Issues 71, 72 (2005); see also Fox v. Schumann, 191 Mich. 331, 158 N.W. 168, 169 (1916).

The government's interpretation of 18 U.S.C. § 1589 would make a federal crime of the exercise of these innocuous, widely accepted parental rights. Take a hypothetical parent who requires his child to take out the garbage, make his bed, and mow the lawn. The child is quarrelsome and occasionally refuses to do his chores. In response, the child's parent sternly warns the child, and if the child still refuses, spanks him. The child then goes about doing his chores. There is no principled way to distinguish between that sort of hypothetical labor and what Toviave made the children do in this case. Both the tasks assigned to the child by the hypothetical parent and the duties assigned by Toviave are “labor” in the economic sense of the word: one could, and people often do, pay employees to perform these types of domestic tasks.

But it has always been true that parents can make their children perform this kind of work. The forced labor statute could not have been intended to overturn this longstanding parental right. Indeed, the Supreme Court has long recognized that the Thirteenth Amendment “was not intended to apply to ‘exceptional’ cases well established in the common law at the time of the Thirteenth Amendment, such as ‘the right of parents and guardians to the custody of their minor children or wards.’ ” United States v. Kozminski, 487 U.S. 931, 944, 108 S.Ct. 2751, 101 L.Ed.2d 788 (1988) (quoting Robertson v. Baldwin, 165 U.S. 275, 282, 17 S.Ct. 326, 41 L.Ed. 715 (1897)). It is true that Toviave sometimes made the children babysit, and kept the money. But requiring one's child to babysit for a girlfriend is not beyond the bounds of what a guardian can reasonably expect from his child.

There are two ways, to be sure, in which Toviave's case is distinguishable from that of ordinary parents requiring chores. One is that Toviave is not actually the victims' parent or legal guardian, and the second is that the chores were enforced by reprehensible, abusive force. Neither distinction makes a difference, however, with respect to the federal crime of forced labor.

First, whether a person...