United States v. Alzanki

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1645

UNITED STATES OF AMERICA,

Appellee,

v.

TALAL H. ALZANKI,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Selya, Cyr and Stahl,

Circuit Judges.

Michael A. Collora, with whom David A. Bunis and Dwyer & Collora

were on brief for appellant.
S. Theodore Merritt, Assistant United States Attorney, with whom

Deval L. Patrick, Assistant Attorney General, Donald K. Stern, United

States Attorney, and Steven M. Dettelbach, Trial Attorney, United

States Department of Justice, were on brief for appellee.

June 1, 1995

CYR, Circuit Judge. Defendant Talal H. Alzanki appeals
CYR, Circuit Judge

from a district court judgment convicting and sentencing him

under 18 U.S.C. 371 and 1584, for holding a household employee

in involuntary servitude. We affirm.

I
I

BACKGROUND1
BACKGROUND

At the end of the Gulf War, Vasantha Katudeniye Gedara

("Gedara"), a native of Sri Lanka, was employed by appellant

Talal Alzanki's family for a brief time as a domestic servant in

their Kuwaiti residence. The Alzanki family prevented Gedara

from leaving their residence, by retaining her passport and

warning her that she would be subject to arrest and physical

abuse by the Kuwaiti police should she venture outside. Gedara

was informed that she soon would be sent to the United States to

work for appellant Talal Alzanki and his wife, Abair, at a

monthly salary of $250, which was reduced to $120 before she

departed Kuwait.

Immediately upon her arrival at appellant's apartment

in Quincy, Massachusetts, on August 28, 1992, Gedara's passport

was confiscated by appellant, who told her that she was not to

leave the apartment alone. She was not permitted to use the

1The facts are related in the light most favorable to the
verdicts. See United States v. Tejeda, 974 F.2d 210, 212 (1st

Cir. 1992).

telephone or the mails, speak with anyone other than the Alzan-

kis, nor even to venture onto the balcony or look out the apart-

ment windows. Appellant told Gedara that the American police, as

well as the neighbors, would shoot undocumented aliens who

ventured out alone.

During the four months she remained in the apartment,

Gedara was assaulted twice. On one occasion, when Gedara asked

that the volume be turned down on the television while she was

trying to sleep, appellant grabbed and threw her bodily against

the wall. On another occasion, Abair Alzanki slapped Gedara and

spat in her face when she failed to turn off a monitor.

The Alzankis deliberately risked Gedara's health by

compelling her to work fifteen hours a day at hard, repetitive

tasks. She was required to clean the apartment on a constant

basis with caustic and noxious chemicals, without the benefit of

respiratory protection, and her requests for rubber gloves were

refused. Later, after the noxious fumes caused Gedara to faint,

fall, and injure her ribs, the Alzankis withheld medical treat-

ment. They also refused to let Gedara have dental treatment for

an abscessed tooth.

Finally, though affluent, the Alzankis denied Gedara

adequate food, which resulted in serious symptoms of malnourish-

ment, including enlarged abdomen, massive hair loss, and cessa-

tion of menstrual cycles. She was provided with only two house-

coats to wear and allowed to sleep and sit only on the floor.

3
3

Once, after Gedara accidentally broke a humidifier, the Alzankis

threatened to withhold all her wages.

In addition to the physical abuse and inhumane treat-

ment, Gedara was threatened on almost a daily basis with

deportation, death or serious harm should she disobey the Alzan-

kis' orders. On numerous occasions, the Alzankis threatened to

deport her to Kuwait, and not allow her to return to Sri Lanka.

Appellant threatened to kill her if the Alzankis' newborn child

suffering from spina bifida were to die while appellant was

away in New York. The climate of fear was enhanced by Gedara's

witnessing one incident involving Talal Alzanki's physical abuse

of Abair, and by learning from Abair that he had struck Abair

again shortly thereafter. On another occasion, Abair Alzanki

threatened to sew up Gedara's mouth with a needle and thread, and

throw her into the ocean.

On December 17, 1992, after confiding her plight to

nurses who came to the apartment to care for the Alzankis' sick

child, Gedara fled the apartment and reported her ordeal to the

local police. Appellant later complained to the police that

Gedara should be returned, because she "belonged to him" and "he

had a contract for her."

A federal grand jury returned a two-count indictment,

charging the Alzankis with conspiring to hold, and holding,

Gedara in involuntary servitude, in violation of 18 U.S.C. 371

and 1584. At trial, the Alzankis testified in their own behalf;

Gedara testified for the prosecution. Due to a medical emergen-

4
4

cy, a mistrial was declared as to Abair Alzanki, prior to her

cross-examination. The government nonetheless agreed to permit

her direct testimony to remain in evidence. The jury returned

guilty verdicts against Talal Alzanki on both counts. The

district court sentenced him to one year and one day, which

represented a downward departure from the 18-to-24 month guide-

line sentencing range, and to a modest restitutionary sentence.

II
II

DISCUSSION
DISCUSSION

Appellant challenges certain jury instructions; the

sufficiency of the evidence supporting both convictions; various

evidentiary rulings; the government's closing argument; and the

$13,403.00 restitutionary sentence imposed by the district court.

A. The Scope of the Involuntary Servitude Statute
A. The Scope of the Involuntary Servitude Statute

Section 1584 proscribes involuntary servitude.2 It is

not to be read so narrowly as to pose Thirteenth Amendment

problems. United States v. Kozminski, 487 U.S. 931, 945 (1988)

("Congress' use of the constitutional language in a statute

enacted pursuant to its constitutional authority to enforce the

2At the time of the offense, the statute provided:

Whoever knowingly and willfully holds to
involuntary servitude or sells into any con-
dition of involuntary servitude, any other
person for any term, or brings within the
United States any person so held, shall be
fined not more than $5,000 or imprisoned not
more than five years, or both.

18 U.S.C. 1584 (1992).

5
5

Thirteenth Amendment guarantee makes the conclusion that Congress

intended the phrase to have the same meaning in both places

logical, if not inevitable. In the absence of any contrary

indications, we therefore give effect to congressional intent by

construing 'involuntary servitude' in a way consistent with the

understanding of the Thirteenth Amendment that prevailed at the

time of 1584's enactment."); see also United States v. Booker,

655 F.2d 562, 564-65 (4th Cir. 1981); United States v. Shackney,

333 F.2d 475, 481-86 (2d Cir. 1964).3 The government need not

prove physical restraint. See, e.g., United States v. King, 840

F.2d 1276, 1278-79 (6th Cir. 1988) (upholding cult leaders'

convictions for holding occupants in involuntary servitude,

despite absence of fencing or other physical barriers); United

States v. Warren, 772 F.2d 827-33 (11th Cir. 1985) (upholding

involuntary servitude conviction even though victim had opportu-

nity to escape), cert. denied, 475 U.S. 1022 (1986); United

States v. Bibbs, 564 F.2d 1165, 1167 (5th Cir.) (recognizing that

various forms of physical force and/or threats of violence may

establish requisite coercion), cert. denied, 435 U.S. 1007

(1977).

3Most peonage and involuntary servitude cases in recent
years have involved migrant agricultural workers. See, e.g.,

Kozminski, 487 U.S. 931 (dairy farm workers); United States v.

Harris, 701 F.2d 1095, 1098 (4th Cir. 1982) (migrant truck-farm

workers), cert. denied, 463 U.S. 1214 (1983); Booker, 655 F.2d

562 (migrant farm-labor camp); United States v. Bibbs, 564 F.2d

1165, 1167 (5th Cir. 1977) (fruit harvesting crews), cert.

denied, 435 U.S. 1007 (1978); Shackney, 333 F.2d 475 (chicken-

farm workers).

6
6

Absent proof of physical restraint, a finding of

involuntary servitude is not warranted, however, unless the

government establishes that the victim could only extricate

herself by risking "imprisonment or worse." Shackney, 333 F.2d

at 486. Thus, compulsion is an essential element of involuntary

servitude under section 1584. See Flood v. Kuhn, 316 F. Supp.

271, 281 (S.D.N.Y. 1970), aff'd, 443 F.2d 264 (2d Cir. 1971),

aff'd, 407 U.S. 258 (1972). In sum, the requisite compulsion

under section 1584 obtains when an individual, through an actual

or threatened use of physical or legal coercion, intentionally

causes the oppressed person reasonably to believe, given her

"special vulnerabilities," that she has no alternative but to

remain in involuntary service for a time. See Kozminski, 487

U.S. at 952-53; United States v. Mussry, 726 F.2d 1448, 1451-52

(9th Cir.), cert. denied, Singman v. United States, 469 U.S. 855

(1984).

A sustainable conviction under section 1584 therefore

requires sufficient evidence to enable a finding, inter alia,

that the defendant used or threatened physical restraint, bodily

harm or legal coercion. Kozminski, 487 U.S. at 952 ("This

definition encompasses those cases in which the defendant holds

the victim in servitude by placing the victim in fear of such

physical restraint or injury or legal coercion.") (emphasis

added). Moreover, in assessing whether the government has

succeeded in establishing the requisite compulsion, the jury is

to consider the victim's "special vulnerabilities," with a view

7
7

to "whether the physical or legal coercion or threats thereof

could plausibly have compelled the victim to serve [against her

will]." Id.4 In other words, conviction under section 1584 is

precluded absent proof, inter alia, that the victim was inten-

tionally held in service against her will (i) by actual physical

restraint or physical force or (ii) by legal coercion or (iii) by

plausible threats of physical harm or legal coercion.

B. Jury Instructions
B. Jury Instructions

We review the challenged jury instructions against the

backdrop of the entire charge, see United States v. Tutiven, 40

F.3d 1, 8 (1st Cir. 1994) (citing United States v. Serino, 835

F.2d 924, 930 (1st Cir. 1987)), cert. denied, 115 S.Ct. 1391

(1995), focusing our inquiry on whether the instructions ade-

quately explained the law or "'whether they tended to confuse or

mislead the jury on the controlling issues.'" Brown v. Trustees

4The Kozminski Court elaborated on the evidentiary role of

the victim's "special vulnerabilities":

[A] child who is told he can go home late at
night in the dark through a strange area may
be subject to physical coercion that results
in his staying, although a competent adult
plainly would not be. Similarly, it is pos-
sible that threatening an incompetent with
institutionalization or an immigrant with
deportation could constitute the threat of
legal coercion that induces involuntary ser-
vitude, even though such a threat made to an
adult citizen of normal intelligence would be
too implausible to produce involuntary ser-
vitude.

487 U.S. at 948.

8
8

of Boston Univ., 891 F.2d 337, 353 (1st Cir. 1989) (citation

omitted), cert. denied, 496 U.S. 937 (1990).

1. The Instruction on Involuntary Servitude
1. The Instruction on Involuntary Servitude

Appellant asserts three challenges to the jury instruc-

tion defining the substantive offense of involuntary servitude.

First, he argues that the court misled the jury into believing

that psychological pressure alone could establish the requisite

element of compulsion, by defining "physical force" as encompass-

ing "the notion of compulsion, coercion, power, violence." The

district court's instruction stated:

[T]he government has to prove that the defen-
dant held Ms. Gedara in involuntary servitude
by using or threatening physical force, or
using or threatening legal coercion.

Physical force includes restraint, physical
restraint, locking somebody up, or in some
other way restraining the person. It in-
cludes physically injuring the person. It
includes the notion of compulsion, coercion,
power, violence. And the government has to

prove that the defendant held or participated
in holding Ms. Gedara by using physical
force, or by threatening to use physical
force.

(Emphasis added.) Appellant theorizes that the jury may have

misinterpreted the term "power," in light of the expert testimony

proffered by the government, see infra Section II.D.1, that "[a]n

unequal power relationship is where there is a subordinate and a

dominant person. It is generally defined by the authority

person, and it is unequal because of that authority relationship

that exists between the two parties."

9
9

The argument is without merit. The challenged instruc-

tion, viewed against the backdrop of the entire charge, see

Tutiven, 40 F.3d at 8, left no doubt whatever that psychological

pressure alone would not satisfy the "force or threat" element of

the involuntary servitude offense.5

Second, appellant claims that the district court failed

to instruct the jury that any fear engendered in Gedara must be

shown to have been "reasonable." But, in fact, the court in-

structed the jury to decide "whether the service was involun-

tary[] [and] whether Ms. Gedara reasonably believed that she had

no choice except to remain in the service of the Alzankis." The

district court's references to subjective considerations, such as

"whether [Gedara] was personally in fear of physical or other

means of coercion," occurred in the course of its discussion of

the types of evidence the jury could weigh in deciding whether

Gedara's belief that she had no other choice was reason-

able. See also infra note 6. The trial judge assuredly did not

suggest that a mere finding that Gedara harbored fears however

unreasonably was enough to establish compulsion under section

1584. It was entirely proper to instruct the jury to consider

5In the final jury charge, the trial judge provided un-
mistakably clear guidance against any such misunderstanding:
"But [Talal Alzanki] cannot be convicted if you find he used only

psychological means to compel her, if he played mind games with
her. That's not enough. The government does have to prove that

he used . . . or threatened physical or legal coercion."
Moreover, the preliminary jury instructions explained:
"Now, involuntary servitude . . . means a condition of servitude
in which the victim is forced to work for the defendant by the
use or threat of physical restraint or physical injury or by the

use or threat of coercion through law or legal process."

10
10

Gedara's background and experience in assessing whether her fears

were reasonable.6

The final instructional challenge relates to an uncer-

tified transcript of the jury charge containing a clerical

error made available to the jury during its deliberations.

The transcript mistakenly stated: "The government does not have

to prove that [Alzanki] used, . . . or threatened physical or

legal coercion." Thus, there can be no question that the tran-

script misstated an essential element of the crime charged.

6Similarly, appellant suggests that the jury instruction
invited the impression that "extremely poor working conditions
and/or special vulnerabilities of the servant" might serve as a
proxy for actual or threatened use of physical force or legal
coercion. However, the trial judge correctly instructed the jury
that

[the charged offense, involuntary servitude,]
encompasses situations in which one person
holds another in servitude by placing that
person in fear of such physical restraint or

injury or legal coercion. It may be shown by

evidence of extremely poor working conditions

and/or special vulnerabilities of the ser-
vant.
In addition, the jury received proper instructions on the roles
of "legal coercion" and "physical coercion":

[Legal coercion] simply means the use of the
law, the legal process, or legal institutions
to compel service. The question here that
you will need to determine is: Did the gov-
ernment prove beyond a reasonable doubt that
the defendant used or threatened physical or
legal coercion to compel Ms. Gedara's service
in the household?

Of course, the jury is presumed to have followed the instruc-
tions. Tutiven, 40 F.3d at 7 (citing Yates v. Evatt, 500 U.S.

391, 403-04 (1991)).

11
11

The jury had been deliberating for seven hours by the

time it requested the transcript for the explicit purpose of

reviewing witness testimony.7 Thus, there is but a remote pos-

sibility that the jury even consulted the portion of the tran-

script containing the typographical error. Furthermore, even

assuming the jury consulted the relevant portion of the tran-

script, it is virtually inconceivable that it would have credited

this lone typographical error over four correctly transcribed

statements, and the five correct oral statements it had been

given in the courtroom earlier, especially since the transcript

itself alerted the jury with the imprint: "Rough Draft-Not Cer-

tified." Cf. United States v. DeMasi, 40 F.3d 1306, 1317-1318

(1st Cir. 1994) ("Our review of the instructions reveals that the

district court referred to the 'beyond a reasonable doubt'

standard no less than twelve times in the nine pages of jury

instructions preceding the isolated section challenged here.

This overwhelming number of correct references negated any chance

that the contested statements were misconstrued by the jury as

somehow reducing the government's burden of proof"), cert.

denied, Bonasia v. United States, 115 S.Ct. 947 (1995); United

States v. Glenn, 828 F.2d 855, 861 (1st Cir. 1987) ("This [cha-

llenged] phrase [in the jury instructions] . . . 'may not be

judged in artificial isolation, but must be viewed in the context

7Despite the government's recommendation that the transcript
be proofread, the defense suggested that it be submitted to the
jury prior to proofreading or certification by the court report-
er.

12
12

of the overall charge.'") (quoting United States v. DeVincent,

632 F.2d 147, 152 (1st Cir.), cert. denied, 449 U.S. 986 (19-

80)).8

Given the fact that the trial judge correctly and

repeatedly explained this element to the jury earlier in the

courtroom, and absent any indication that the jury even noted,

let alone credited, the isolated misstatement in the transcript,

we find no prejudice. Cf. United States v. Griley, 814 F.2d 967,

975 (4th Cir. 1987) (where deliberating jury received tape

recording of jury instructions at defendant's criminal trial, as

well as instructions given in unrelated civil case, conviction

upheld on grounds that appellant failed to demonstrate prejudice

and trial court gave proper curative instruction); United States

v. North, 746 F.2d 627, 631-32 (9th Cir.) (affirming conviction

even though a search warrant affidavit, excluded from evidence,

was sent to jury room by mistake; finding "no reasonable possi-

bility that [the warrant] could have affected the verdict"),

cert. denied, 470 U.S. 1058 (1984), overruled on other grounds,

Jacobson v. United States, 503 U.S. 540 (1992). There was no

reversible error.

2. The Conspiracy Instruction
2. The Conspiracy Instruction

Appellant claims that the district court incorrectly

instructed the jury on an essential element of the conspiracy

charge, by stating that he could be found guilty even if his only

8The "force or threat" element was described correctly in
the preliminary jury instructions as well. See supra note 5.

13
13

alleged coconspirator, Abair Alzanki, involuntarily cooperated

under duress. Apparently unclear on this point, the jury later

requested further instructions: "[I]s there a conspiracy if the

second person [the wife] . . . joined the agreement not volun-

tarily but in fear?" The trial judge instructed:

The answer is yes. If she agreed with him to
do an act that is unlawful, the first ele-
ment, an agreement, is satisfied. You must,
however, then go on and consider the second
element, and determine whether [the husband,
Talal Alzanki], the only person who is a
defendant before you, joined into that agree-
ment knowingly and willfully as I have de-
fined it to you.

Appellant correctly asserts that a viable conspiracy

charge under 18 U.S.C. 371 requires at least two conspirators,

each possessed of the requisite criminal intent. See, e.g.,

United States v. Penagaricano-Soler, 911 F.2d 833, 841 (1st Cir.

1990). He argues that his wife could not have been the indis-

pensable second willing party, because he coerced her into

participating. For the latter proposition, he relies on cases

which hold that a conspiracy charge will not lie if the putative

coconspirator turned out to be an undercover law enforcement

agent. See, e.g., United States v. Nason, 9 F.3d 155, 161 & n.2

(1st Cir. 1993), cert. denied, 114 S.Ct. 1331 (1994).

As the present claim is raised for the first time on

appeal, we review only for plain error. DeMasi, 40 F.3d at 1318;

United States v. Griffin, 818 F.2d 97, 100 (1st Cir.), cert.

denied, 484 U.S. 844 (1987). The burden therefore rests with

appellant to establish that the error was "clear," in the sense

14
14

that it was "obvious," that it affected "substantial rights," and

that failure to vacate the conspiracy conviction would result in

a "miscarriage of justice." United States v. Olano, 113 S.Ct.

1770, 1776-79 (1993).

We note at the outset that a "generalized fear" of harm

would not have afforded Abair Alzanki a viable defense to the

conspiracy charge. See, e.g., United States v. Stevens, 985 F.2d

1175, 1182 (2d Cir. 1993) (district court properly rejected

request to instruct jury that generalized fear of harm, without

more, would compel acquittal). Moreover, neither defendant

contended at trial that Abair Alzanki conformed her will or

behavior in response to duress. Indeed, nothing in the trial

record intimates a causal link between Talal Alzanki's abusive

behavior and Abair's participation in the conspiracy. Cf. Slater

v. United States, 562 F.2d 58, 62 (1st Cir. 1976) (defendant con-

victed of Kickback Act violation, an essential element of which

is the intimidation of others, was properly convicted as well of

conspiring with those whom he intimidated). Thus, the district

court correctly advised the jury that the appropriate inquiry was

whether Talal Alzanki "joined . . . that agreement knowingly and

willfully." As the evidence plainly supported such a finding,

there was no error, let alone plain error.

C. Sufficiency of the Evidence
C. Sufficiency of the Evidence

Appellant next contends that the evidence was insuf-

ficient to convict on the substantive "involuntary servitude"

charge. We review "the evidence in the light most favorable to

15
15

the verdict, in order to determine whether a rational trier of

fact could have found guilt beyond a reasonable doubt. All

reasonable inferences are drawn in favor of the verdict and any

credibility determination must be compatible with the judgment of

conviction." United States v. Tuesta-Toro, 29 F.3d 771, 776 (1st

Cir. 1994) (quoting United States v. Tejeda, 974 F.2d 210, 212

(1st Cir. 1992)), cert. denied, 115 S.Ct. 947 (1995). There was

ample evidence to enable a rational jury to find, beyond a

reasonable doubt, each essential element of the substantive

offense.

Appellant argues that the record discloses only a few

isolated instances in which any physical force whatever was used

against Gedara. These incidents, he argues, did not approach,

either in frequency or severity, but see supra p.3, the level of

physical abuse present in the typical involuntary servitude case.

Furthermore, he says, conditions in the Alzanki apartment were

neither squalid nor jail-like; whereas in the typical involuntary

servitude case, the victim is exposed to severe physical abuse,

as well as confinement in extremely uncomfortable quarters. See,

e.g., Kozminski, 821 F.2d 1186, 1188-89 (6th Cir. 1987) (squalid

lodgings, without plumbing; rotten food; numerous instances of

slapping, choking, kicking), aff'd, 487 U.S. 931 (1988); United

States v. Harris, 701 F.2d 1095, 1098 (4th Cir. 1982) (beatings

with a rubber hose and confinement to quarters ("the jail") in

retaliation for attempted escape), cert. denied, 463 U.S. 1214

(1983); Booker, 655 F.2d at 565-66 (numerous retaliatory beatings

16
16

following escape attempts); Bibbs, 564 F.2d at 1167 (holding

victims at gunpoint; beating and threatening to kill any who

attempted escape).

Gedara testified that during her four-month ordeal in

their apartment she was physically assaulted by the Alzankis on

two occasions and contemporaneously informed that their purpose

was to keep her "in her place." The physical violence appellant

directed at Gedara was by no means trifling in degree. The

evidence revealed that appellant punished Gedara merely for

asking him to turn down the television by throwing her bodily

against the wall. Moreover, she was kept in a serious state of

malnutrition, deprived of medical care, and subjected to threats

of deportation, physical harm and even death. Given her experi-

ence as a domestic servant in Kuwait, see supra p.2,9 and in the

Alzanki apartment in Quincy, the jury was entitled to infer that

Gedara reasonably believed these threats.

Appellant correctly asserts that the requisite "compul-

sion" is not established in circumstances where an available

alternative to continued service is merely "exceedingly bad."

9Gedara testified to her understanding of Kuwaiti police
practices toward household servants:

Q. Ms. Gedara, what was your state of mind regarding the
police in Kuwait?

A. I heard if we go alone out in the street, they're going
to catch us and hit [us] and put into jail.

She testified that she believed that the American police
would treat her much the same way were she to venture outside the
Alzanki apartment.

17
17

See Kozminski, 487 U.S. at 938 (quoting Shackney, 333 F.2d at

486). Instead, the evidence must establish that the victim

reasonably believed she was left with no alternative to continued

servitude that was not the equivalent of "imprisonment or worse."

Shackney, 333 F.2d at 486. See, e.g., Steirer v. Bethlehem Area

Sch. Dist., 987 F.2d 989, 1000 (3d Cir.) (community service

requirement for high school graduation not a form of involuntary

servitude, as student has choice of foregoing graduation) (citing

Shackney, 333 F.2d at 486), cert. denied, 114 S.Ct. 85 (1993).

The evidence that Gedara herself was well aware of the

severely restrictive conditions encountered by household servants

in Kuwait would enable the jury rationally to conclude that

Gedara threatened with deportation to Kuwait and no prospect

of returning to Sri Lanka and her family confronted an alter-

native to continued involuntary service which she reasonably

considered at least as severe as imprisonment, particularly when

viewed in light of her "special vulnerabilities."10 Moreover,

the reasonableness of her fear of deportation was substantiated

by the undisputed evidence that she would become deportable

10Evidence of other threats and warnings provided further
support for the verdict. These included warnings that the
American police would shoot Gedara if she left the apartment
alone. Though such a prospect might not have seemed credible to
a competent adult American, the "special vulnerabilities" of the
victim must be taken into consideration. See Kozminski, 487 U.S.

at 948, 956. To a foreign worker familiar with Kuwaiti customs
and practices (for example, at trial there was evidence that
Kuwaiti soldiers manned checkpoints to enforce restrictions on
noncitizen movement, especially household servants), a threat of
deportation in these circumstances plausibly may equate with
imprisonment. See supra note 9.

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18

immediately upon loss of her "B-1" visa status, which allowed her

lawfully to remain in the United States only while in the employ

of the Alzankis. See 8 U.S.C. 1184(a)(1) ("[U]pon failure to

maintain the status under which [s]he was admitted, . . . such

alien will depart from the United States." ); 22 C.F.R. 41.31.

Although the defense presented contrary testimony, the

jury fairly could infer that the most efficacious threats are

those the victim reasonably believes can be carried out. Shack-

ney, 333 F.2d at 486-87. Cf. Booker, 655 F.2d 562 (threats,

substantiated by severe beatings and assaults with firearms,

coerced abductees into remaining at labor camp). The jury was

entitled to make its own credibility determinations, Tuesta-Toro,

29 F.3d at 776, and to find, beyond a reasonable doubt, that

Gedara believed appellant's deportation threats to be plausible

and that the alternative to continued involuntary servitude was

at least as severe as imprisonment.

D. Evidentiary Rulings
D. Evidentiary Rulings

1. The "victimologist" testimony
1. The "victimologist" testimony

Appellant filed an unsuccessful motion in limine to

preclude the government from calling Ann Burgess, a "victim-

ologist," as an expert witness. At trial, the government used

Burgess to refute the Alzankis' principal "defense"; viz., that

Gedara often ventured outside their unlocked apartment during her

alleged involuntary servitude, and given the normal human in-

stinct for self-preservation, one would expect an unrestrained

19
19

person faced with actual or threatened physical abuse to flee

from her abuser at the first opportunity. Burgess countered this

evidence with testimony that abuse victims often harbor the

opposite impulse overwhelmed by fear they remain with their

abusers.

Appellant contends that Burgess's expert qualifications

related only to sexual abuse victimology, not the behavioral

responses of domestic workers subjected to involuntary servitude.

Thus, appellant argues, the expert testimony presented by Burgess

was irrelevant and unhelpful to the jury, see Fed. R. Evid.

104(a), 702 (permitting use of expert testimony "[i]f scientific,

technical, or other specialized knowledge will assist the trier

of fact") or, at the very least, its minimal probative value was

substantially outweighed by the danger of unfair prejudice, see

Fed. R. Evid. 403. Finally, appellant argues that the jury was

swayed by Burgess's professional credentials, and her testimony

amounted to impermissible "bolstering" of the allegations of

abuse made by Gedara.

We review challenges to expert-witness qualification

only for manifest abuse of discretion. See, e.g., United States

v. Sepulveda, 15 F.3d 1161, 1183 (1st Cir. 1993), cert. denied,

114 S.Ct. 2714 (1994); United States v. Echeverri, 982 F.2d 675,

677 (1st Cir. 1993).11 The "gatekeeping function" contemplated

11We reject the government's contention that the Rule 702
claim should be reviewed only for plain error, since only Abair
Alzanki objected at trial. See United States v. Reed, 977 F.2d

14, 16 (1st Cir. 1992) (motion in limine must be "renewed" by
timely objection at trial). At the outset, the trial judge

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by Rule 702 essentially requires the trial judge to assess

whether it is "reasonably likely that the expert possesses

specialized knowledge which will assist the trier better to

understand a fact in issue." Sepulveda, 15 F.3d at 1183 (citing

Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786

(1993)) (emphasis added); Apostol v. United States, 838 F.2d 595,

599 (1st Cir. 1988) (noting that Rule 702 rulings invite a "case-

specific inquiry"). We find no error.

The central fallacy in appellant's claim is its implic-

it assumption that no one other than an "involuntary servitude"

victimologist could have qualified as an expert under Rule 702 in

the present case. This thesis obviously focuses only on the

"specialized knowledge" requirement under Rule 702, to the total

exclusion of the ultimate standard for admission whether the

"specialized knowledge" possessed by the witness "will assist the

trier of fact to understand the evidence or to determine a fact

in issue . . . ." Fed. R. Evid. 702. It is one matter to

acknowledge that a witness steeped in the behavioral reactions of

Sri Lankan domestic servants abused by Kuwaiti nationals in the

United States could be instructive (if not inordinately so) to a

jury. It is quite another to suggest that it is not "reasonably

likely," see Echeverri, 982 F.2d at 677, that a somewhat less

specialized victimologist might "assist" a generalist factfinder

in assessing evidence of the exceedingly uncommon phenomenon of

announced that an objection by either defendant would preserve
the claim for both. See, e.g., Sepulveda, 15 F.3d at 1180

(noting practice as common protocol).

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domestic servant abuse in the present-day United States. Id. at

783 (Rule 702 demands "common sense inquiry"). While the more

generalized nature of the proffered testimony may temper its

probative value to the factfinder, we do not think it can be said

that its relevance is negated entirely.12

The record reflects that the trial judge carefully

evaluated Ms. Burgess's professional qualifications following a

lengthy voir dire. Burgess testified that her principal training

and experience related to victims of sexual abuse, but that she

had researched comparable clinical behavior manifested by victims

of physical abuse of a non-sexual nature in so-called "unequal

power" relationships (e.g., battered spouses and children).

Based on her general research and her personal interaction with

hundreds of victims of sexual abuse, Burgess testified that

Gedara's behavioral response to the non-sexual abuse administered

by the Alzankis was consistent with the behavior of abuse victims

generally. It seems to us that expert testimony on this subject

which the defense was free to contradict was "reasonably

likely" to assist the jury in understanding and assessing the

evidence, in that the matter at issue was highly material,

12The rationale for the trial judge's ruling was much the
same:

It seems . . . that one doesn't have to be so
specialized as to be an expert on the res-
ponse of a slavery victim to the master rath-
er than a victim of other kinds of abuse of
power in unequal relationships.

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somewhat technical, and beyond the realm of acquired knowledge

normally possessed by lay jurors.

Finally, appellant cites no federal case law for the

contention that allowing an expert to testify to her empirical

findings on the behavioral reactions of abuse victims impermis-

sibly suggests to the jury that the putative victim's allegations

of abuse should be believed. The overwhelming weight of authori-

ty suggests otherwise. See, e.g., United States v. Hadley, 918

F.2d 848, 852 (9th Cir. 1990) (upholding admission of expert

testimony by child psychiatrist as to "general behavior charac-

teristics that may be exhibited in children who have been sexual-

ly abused"), cert. dismissed, 113 S.Ct. 486 (1992); Server v.

Mizell, 902 F.2d 611, 615 (7th Cir. 1990); United States v.

Pierre, 812 F.2d 417, 419 (8th Cir. 1987). Moreover, the able

trial judge left no room for doubting that the jury remained

perfectly free to reject Burgess's expert opinion, as well as its

predicate assumption.13

2. "Other Acts" Evidence (Rule 404(b))
2. "Other Acts" Evidence (Rule 404(b))

13The judge firmly cautioned the jury immediately before
Burgess testified:

The witness who is about to testify is what
we call an expert witness. She does not know
what occurred at the Alzanki household. She
wasn't there, she didn't see any of that. . .
. [O]ne of the ways in which witnesses are
very often examined, expert witnesses are
very often examined, is that they are asked
to make certain assumptions . . . that have
to do with the facts in the case. . . . [I]f
the facts are different from the assumptions,
then the opinions based on the assumption are
of absolutely no value to you.

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Appellant next contends that the district court erred

in admitting Gedara's testimony concerning appellant's abusive

behavior toward his wife, Abair Alzanki, because Rule 404(b)

absolutely bars "other acts" evidence relevant only to prove

criminal propensity or bad character. See Tuesta-Toro, 29 F.3d

at 775. We disagree.

The Rule 404(b) bar is not implicated unless the chal-

lenged "other crimes, wrongs, or acts are relevant exclusively to

instigate an inference that the defendant is more likely to have

acted in similar fashion by committing the offense for which he

is on trial." Tutiven, 40 F.3d at 5 (emphasis added). By

contrast, the evidence admitted below bore special relevance to a

pivotal element of the alleged offense quite apart from appel-

lant's propensity to commit wrongful acts; viz., the "reasonable-

ness" of Gedara's stated fear that she would be a target of

appellant's physical violence should she disobey him. See United

States v. Oreto, 37 F.3d 739, 749 (1st Cir. 1994) (evidence of

victim's awareness of defendant's prior bad acts against third

parties is especially relevant to an element of the offense,

i.e., the reasonableness of the stated basis for the victim's

fear) (citing United States v. DeVincent, 546 F.2d 452, 456-57

(1st Cir. 1976), cert. denied, 431 U.S. 903 (1977)), cert.

denied, 115 S.Ct. 1161 (1995).

3. Evidence of Ethnic Background and National Origin
3. Evidence of Ethnic Background and National Origin

Appellant now claims that the government deliberately

introduced evidence of repressive Kuwaiti customs and practices

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toward domestic workers primarily to inflame any ethnic bias

among the jurors.14 Since he asserted no contemporaneous ob-

jection, we review for plain error. See United States v. Figuer-

oa, 976 F.2d 1446, 1455 (1st Cir. 1992), cert. denied, 113 S. Ct.

1346 (1993) (finding claim of ethnic bias waived, and no plain

error). We will reverse "only if the error 'seriously affect[ed]

the fundamental fairness and basic integrity of the proceed-

ings.'" Tuesta-Toro, 29 F.3d at 775 (citing United States v.

Carty, 993 F.2d 1005, 1012 n.9 (1st Cir. 1993)). We find no

error.

The government itself cautioned the jury during closing

argument that appellant's mere status as a foreign national

should play no part in their deliberations. Further, at no point

during the trial did the government make any inflammatory remark

relating to the Alzankis' ethnic background or national origin.

See United States v. Ovalle-Marquez, 36 F.3d 212, 221-22 (1st

Cir. 1994) (finding remarks not inflammatory because, inter alia,

they "serve [a] purpose other than to inflame"), cert. denied,

115 S.Ct. 1322 (1995). Finally, unlike cases in which evidence

of this type has been found marginally relevant at best, see,

e.g., United States v. Rodriguez Cortes, 949 F.2d 532, 541-42

(1st Cir. 1991) (finding that admission of defendant's Colombian

identification card impermissibly invited jury to conclude that

14During jury impanelment, the trial judge scrupulously
inquired of each prospective juror whether the ethnic background
or national origin of the defendants would affect the juror's
capacity to serve impartially. Certain prospective jurors were
excused for cause on these grounds.

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25

"a person . . . born in Colombia . . . must be involved in drug

trafficking"); see also United States v. Doe, 903 F.2d 16, 18

(D.C. Cir. 1990) (noting that prosecutor frequently referred to

defendants as "Jamaicans" and stressed expert testimony to the

effect that "Jamaicans" were known to be deeply involved in drug

trafficking), prevailing Kuwaiti customs were highly probative on

at least three issues material to the section 1584 prosecution.

See, e.g., Figueroa, 976 F.2d at 1455 (no plain error where

evidence related to true source of large bank deposits in defen-

dant's name, corroborated certain admissions by defendant, and

bolstered credibility of important government witness whose

credibility was challenged by defense).

First, it could be inferred that Gedara as a former

domestic servant in Kuwait developed a "special vulnerability"

to the Alzankis' threats, even though an American domestic worker

might not have been placed "reasonably" in fear thereby. See

Kozminski, 487 U.S. at 952. For example, the evidence relating

to Kuwaiti customs and practices clearly tended to buttress the

reasonableness of Gedara's stated belief in appellant's warnings

that the American police, like their Kuwaiti counterparts, were

under orders to shoot undocumented domestic workers who ventured

out alone. Gedara likewise would have been especially vulnerable

to the coercive force of appellant's frequent threats to punish

her disobedience by returning her to Kuwait, rather than to her

native home in Sri Lanka. Moreover, appellant's own familiarity

with Kuwaiti customs could generate the reasonable inference that

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26

appellant played on Gedara's isolation and vulnerabilities,

making it more probable that he acted with the requisite specific

intent to subject her to involuntary servitude. Indeed, appel-

lant sought to capitalize on the very same evidence by arguing to

the jury that he should not be convicted since his experiences

growing up in Kuwait had never put him on fair notice that his

treatment of Gedara might be considered criminal in other cul-

tures.

4. Hearsay Testimony
4. Hearsay Testimony

Appellant next challenges, as inadmissible hearsay, the

testimony given by several nurses and a respiratory specialist

who came to the Alzankis' apartment to care for their ailing

child, and by a police officer who interviewed Gedara immediately

after she fled the apartment. These witnesses related various

contemporaneous statements Gedara made to them concerning the

harsh conditions and inhumane treatment she experienced at the

hands of the Alzankis. The government offered their testimony

under Rule 801(d)(1)(B) (prior consistent statements offered to

rebut charge of recent fabrication). The district court admitted

their testimony under Rule 803(3) (statements of declarant's

then-existing state of mind). We review for abuse of discretion.

United States v. Paulino, 13 F.3d 20, 24 (1st Cir. 1994).

Some of the challenged testimony clearly was admissible

under Rule 803(3), such as Gedara's contemporaneous statements as

to her state of mind that she was afraid, hungry, exhausted.

On the other hand, Rule 803(3) has been held not to allow more

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expansive statements elaborating upon the underlying reasons for

the declarant's state of mind. See, e.g., United States v.

Fontenot, 14 F.3d 1364, 1371 (9th Cir.), cert. denied, 115 S.Ct.

431 (1994); United States v. Cohen, 631 F.2d 1223, 1225 (5th Cir.

1980). In any event, we may affirm the district court ruling on

any ground apparent from the appellate record. United States v.

Norton, 26 F.3d 240, 244 (1st Cir. 1994).

The government was entitled to introduce the challenged

testimony to establish the truth of the matter asserted, if (1)

the declarant (viz., Gedara) testified at trial and was subject

to cross-examination; (2) the challenged statements and her trial

testimony were consistent; and (3) the challenged statements were

offered to rebut an express or implied charge that the declarant

recently fabricated her story, or became subject to some improper

influence or motive to falsify after making the challenged state-

ment. See Tome v. United States, 115 S. Ct. 696 (1995); United

States v. Arias-Santana, 964 F.2d 1262, 1264 (1st Cir. 1992);

United States v. Piva, 870 F.2d 753, 758 (1st Cir. 1989). All

three criteria for admission under Rule 801(d)(1)(B) were met.

At trial, Gedara testified consistently with her

previous statements to the nurses, therapist, and police officer.

By suggesting, on cross-examination, that Gedara recently had met

with a Hollywood producer interested in purchasing the film

rights to her "story," that she was engaged in a Hollywood

bidding war, and that she had been interviewed by Boston newspa-

pers to drum up publicity for her "story," defense counsel

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plainly impugned Gedara's motives and just as clearly invited the

government to respond as it did with corroborative evidence

that Gedara had made statements consistent with her trial testi-

mony long before the motivations attributed to her by the defense

had ever arisen. See United States v. Montague, 958 F.2d 1094,

1095 (D.C. Cir. 1992).

E. The Restitutionary Sentence
E. The Restitutionary Sentence

Finally, appellant contends that the restitutionary

sentence imposed pursuant to the Victim and Witness Protection

Act, 18 U.S.C. 3663(b)(2)(A), constituted error because it

reimbursed Gedara for (1) lost overtime wages to which she was

not entitled under the applicable law, see Fair Labor Standards

Act, 29 U.S.C. 213; Massachusetts Wage and Hour Act, Mass. Gen.

L. Ann. ch. 151; (2) lost wages for time she took off from her

job to assist the government in prosecuting its case against the

Alzankis, but see Ratliff v. United States, 999 F.2d 1023, 1026

(6th Cir. 1993); and (3) psychological counseling for chronic

stress symptoms attributable to her abusive treatment, but cf. 18

U.S.C. 3663(b)(2)(A) (restitution only for "bodily injury").

We decline to address appellant's challenges to the

restitutionary sentence since these claims were never raised

below. See United States v. Dietz, 950 F.2d 50, 55 (1st Cir.

1991).15 Appellant's utter failure to object disabled the

15Indeed, as concerns the first contention, appellant flatly
stated at sentencing that he "would leave it up to the Court to

determine what is an appropriate restitution figure." Nor did he

cite to the two statutes upon which he now relies. Rather, he
left the district court with the clear impression that some

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sentencing court from making a reasoned assessment of the present

claims in the first instance, and from making the predicate

factual findings upon which the claims depend. For example, as

concerns appellant's second claim, the government responds that

the restitutionary sentence did not include reimbursement to

offset leave time Gedara took to help the government prepare its

case, but merely to reimburse her for lost wages occasioned by

having to leave her new employment to obtain treatment for the

debilitating stress she experienced during her four-month ordeal.

The government concedes that reimbursement for Gedara's assis-

tance in preparing for trial would be problematic as a matter of

law, but appellant's failure to alert the district court to the

claim, raised for the first time on appeal, prevented the sen-

tencing court from clarifying the factual basis for its resti-

tutionary sentence. Lastly, appellant's only attempt at address-

ing the government's waiver argument that he promptly appealed

the restitutionary sentence is no answer at all. Nor did he

request reconsideration of the restitutionary sentence. See Fed.

R. Crim. P. 35(c); cf. United States v. Heilprin, 910 F.2d 471,

474 n.5 (7th Cir. 1990).

III
III

CONCLUSION
CONCLUSION

The district court judgment must be affirmed.

Affirmed.
Affirmed.

overtime wages might be appropriate as a matter of law.

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