United States Court of Appeals
For the First Circuit
No. 04-1146
No. 04-1147
UNITED STATES OF AMERICA,
Appellee,
v.
TIMOTHY H. BRADLEY and KATHLEEN MARY O'DELL,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Saris,* District Judge.
William E. Christie with whom Shaheen & Gordon, P.A. was on
consolidated brief for appellants.
Bradley J. Schlozman, Deputy Assistant Attorney General, with
whom R. Alexander Acosta, Assistant Attorney General, Thomas P.
Colantuono, United States Attorney, Jessica Dunsay Silver and Karl
N. Gellert, Department of Justice, Civil Rights Division, Appellate
Section, were on brief for appellee.
December 8, 2004
*
Of the District of Massachusetts, sitting by designation.
BOUDIN, Chief Judge. Timothy H. Bradley and Kathleen
Mary O'Dell appeal from convictions for forced labor and related
crimes. The gist of the charges was that the defendants lured
Jamaican laborers to New Hampshire through fraud, mistreated them
during their employ and coerced them to stay. From the evidence
presented at trial, the jury could reasonably have found that the
following events occurred.
In 1999, Bradley and O'Dell traveled to Jamaica to
recruit seasonal workers for Bradley Tree Service, a tree removal
company that they operated in New Hampshire. In Jamaica, the
defendants convinced two men--Livingston Wilson and Garth Clarke--
to come to work for them in the United States. The men were
promised wages of $15-20 per hour and lodging in one of two houses
on Bradley and O'Dell's property.
When Wilson and Clarke arrived in New Hampshire to begin
their work, they were provided a camping trailer--initially without
running water, electricity or heat. Both Jamaicans were paid $7
per hour rather than the $15-20 they had been promised. At work,
yells, curses and intimidation were directed at them.1 After a
week, Clarke fled to New York where he received a phone call from
1
There was also evidence that Bradley was indifferent to
injuries of the two men, failing to take them for doctor or
hospital care when seemingly required. However, the evidence was
ambiguous as to the degree of medical need and the extent to which
it was requested.
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O'Dell, who threatened to "kick his ass"--as well as call the
police, the FBI, and the immigration service--if he did not return.
Bradley stated in front of Wilson that he planned to
"take his gun and go to New York and look for [Clarke]." After
Clarke's departure, the defendants also seized Wilson's passport
and plane tickets. Bradley frequently got angry and yelled at
Wilson on the job site, occasionally pushing him down. Clarke
never returned to New Hampshire but instead went on from New York
to Jamaica. Wilson eventually returned to Jamaica when his work
visa expired in October 2000.
Shortly after Wilson's departure, the defendants again
traveled to Jamaica and recruited Martin Sadler, Andrew Flynn and
David Hutchinson to work for Bradley Tree Service from April to
October 2001, promising each of the latter two men wages of at
least $11 per hour. When the men arrived in New Hampshire, O'Dell
took all three of their passports, explaining that in the previous
year a worker had run away--and that Bradley would hire someone in
Jamaica to "destroy" that man. Flynn and Hutchinson were both
frightened by this statement, believing that murder for hire was
quite feasible in Jamaica.
As with their predecessors, the three men were badly
housed and ill-treated. They were paid $8 per hour rather than the
$11 promised and were charged $50 a week in rent. When Hutchinson
argued with Bradley about pay and rent, he was told that he only
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needed to stay and work long enough to repay $1,000 allegedly spent
on his ticket--money that Hutchinson did not have. The defendants
hindered the men when they sought treatment for injuries or medical
care, and O'Dell kept tabs on the men's whereabouts although they
traveled on their own in the neighborhood and elsewhere.
In September 2001, the local police visited in response
to an anonymous tip that Jamaican laborers were being held against
their will. When interviewed, Flynn and Hutchinson complained
about their treatment; O'Dell told the officers that the men were
free to leave but would have to pay for their return tickets. When
the police left, Bradley browbeat the men and pushed one of them,
seeking to learn who had called the police.
During this encounter Bradley grabbed Hutchinson by the
neck and started to choke him. Flynn fled to a neighbor's house.
O'Dell reported this to Bradley and then herself began to hit
Hutchinson. After a struggle with Bradley and O'Dell, Hutchinson
also fled to the neighbor's house; from there both men went to the
police and spent the evening in a shelter. They remained in the
United States until the time of Bradley and O'Dell's trial, working
at other jobs and apparently receiving assistance from the
government.
In April 2003, a federal grand jury in New Hampshire
returned a 21-count indictment against Bradley and O'Dell. Counts
1-9 consisted of one count of conspiracy to commit forced labor, 18
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U.S.C. §§ 371 & 1589 (2000); two counts of forced labor, 18 U.S.C.
§ 1589; two counts of attempted forced labor, 18 U.S.C. § 1594
(2000); two counts of trafficking into forced labor, 18 U.S.C. §
1590 (2000); and two counts of document servitude, 18 U.S.C. § 1592
(2000). These counts dealt solely with Bradley and O'Dell's
treatment of Flynn and Hutchinson.2
Counts 10-14 were for wire fraud, 18 U.S.C. § 1343
(2000), arising out of the recruitment and employment of Clarke and
Wilson. Counts 15-20 were for wire fraud arising out of the 2001
recruitment and employment of Flynn and Hutchinson. Count 21
charged O'Dell with making a false statement to an FBI agent
regarding her role in Bradley Tree Service. 18 U.S.C. § 1001
(2000).
After trial in August 2003, the jury convicted the
defendants on all counts except for the false statement charge and
the attempted forced labor charges (which the jury did not consider
after convicting on the underlying offenses). In January 2004, the
district judge sentenced Bradley and O'Dell each to 70 months'
imprisonment (the bottom of the calculated Guidelines range), fined
Bradley $12,500 and ordered the defendants to pay $13,052 in
restitution.
2
The statute proscribing forced labor, Victims of Trafficking
and Violence Protection Act of 2000, Pub. L. No. 106-386, §
112(a)(2), 114 Stat. 1464, 1486-87 (codified at 18 U.S.C. § 1589),
was not enacted until October 28, 2000--after the defendants'
relationship with Clarke and Wilson had ended.
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On appeal, Bradley and O'Dell contest both their
convictions and their sentences. In particular, they challenge a
number of alleged errors in the district court's jury instructions;
the introduction of evidence regarding their treatment of Wilson
and Clarke in 1999-2000; and the application of two sentencing
enhancements under U.S.S.G. § 2H4.1.
We begin with the jury instructions. The main statute
under which the defendants were charged is captioned "Forced
Labor"; so far as relevant here, the statute makes it a criminal
act for anyone "knowingly" to "provide[] or obtain[] the labor or
services of a person"
(1) by threats of serious harm to, or
physical restraint against, that person or
another person; [or]
(2) by means of any scheme, plan, or pattern
intended to cause the person to believe that,
if the person did not perform such labor or
services, that person or another person would
suffer serious harm or physical restraint.
18 U.S.C. § 1589.
The defendants' first challenge is to the district
court's instruction defining "serious harm," which read as follows:
The term "serious harm" includes both
physical and non-physical types of harm.
Therefore, a threat of serious harm includes
any threats--includes threats of any
consequences, whether physical or non-
physical, that are sufficient under all of the
surrounding circumstances to compel or coerce
a reasonable person in the same situation to
provide or to continue providing labor or
services.
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Bradley and O'Dell claim that this definition expands the meaning
of serious harm beyond the limits contemplated by 18 U.S.C. § 1589.
Section 1589 is a recent addition to the chapter that
makes criminal acts of slavery, peonage and holding to involuntary
servitude, 18 U.S.C. §§ 1581-1594 (2000). Adopted in 2000 as part
of a broader set of provisions--the Victims of Trafficking and
Violence Protection Act of 2000, 114 Stat. 1464--section 1589 was
intended expressly to counter United States v. Kozminski, 487 U.S.
931 (1988). See H.R. Conf. Rep. No. 106-939, at 100-01 (2000). In
Kozminski the Supreme Court had interpreted the pre-existing ban on
"involuntary servitude" in section 1584 to prohibit only conduct
involving the use or threatened use of physical or legal coercion.
487 U.S. at 949-52.
In glossing the new statute, the conference report said
"serious harm" was intended to encompass not only physical
violence, but also more subtle psychological methods of coercion--
"such as where traffickers threaten harm to third persons, restrain
their victims without physical violence or injury, or threaten dire
consequences by means other than overt violence." H.R. Conf. Rep.
No. 106-939, at 101. It continued: "The term 'serious harm' as
used in this Act refers to a broad array of harms, including both
physical and nonphysical . . . ." Id.
Bradley and O'Dell argue that the conference report's
reference to "dire consequences" stands in sharp contrast to the
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district court's instruction, which states that serious harm can
include "any consequences." They further claim that the district
court's definition could apply to a broad range of innocent
conduct, such as employers who legitimately convince their
"victims" to continue working, for example, by threatening to
withhold future pay that is sorely needed by a worker.
Starting with the extent of pressure, we note that
Congress did not use "dire consequences" in the statute; it said
"serious harm" and the district court properly charged in those
words. We read the instruction's reference to "any consequences"
as explaining that non-physical as well as physical consequences
should be considered. Instructions must be read as a whole, see
United States v. Serino, 835 F.2d 924, 930 (1st Cir. 1987), and no
jury, taking the above-quoted paragraph as a whole, could think
that trivial consequences would suffice.
We do agree that the phrase "serious harm," as extended
to non-physical coercion, creates a potential for jury
misunderstanding as to the nature of the pressure that is
proscribed. Taken literally, Congress' "threats" and "scheme"
language could be read to encompass conduct such as the employer's
"threat" not to pay for passage home if an employee left early.
Depending upon the contract, surely such a "threat" could be a
legitimate stance for the employer and not criminal conduct.
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Thus, in an appropriate case we think that the court in
instructing the jury would be required to draw a line between
improper threats or coercion and permissible warnings of adverse
but legitimate consequences. However, Bradley and O'Dell do not
appear to have sought any such instruction. Instead, the
instructions sought so badly understated the reach of the statute
that it would have been improper to have given them.3
The question, then, is whether the district court should
as a matter of course have included qualifying language explaining
that some warnings from the employer could be legitimate and to
differentiate such warnings from illicit threats. Arguably, a
standard instruction should embody such a caveat; it is also
arguable that the caveat would be required only on evidence that
might bring the case within the caveat. But we need not decide the
point here because seemingly no appropriate objection was made on
the record.
Neither the defendants' proffered instructions nor any
prior discussion on the record suggests that defendants were
3
Merely as examples, one instruction included the statement
that the proscribed threat must be one "that involves a substantial
risk to death, extreme physical pain, protracted and obvious
disfigurement, or the protracted loss or impairment of the function
of a bodily member, organ or mental faculty." Another said in
part: "[T]he use of psychological coercion to force someone to work
is not enough to find a defendant guilty of Forced Labor. . . . The
Government must prove that [the victims] reasonably believed they
had no alternative to continue working other than imprisonment or
worse."
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seeking to exclude innocent warnings from the class of threats that
would violate the statute. The defendants' only pertinent on-the-
record objection was that the court had "expanded the forced labor
statute beyond its writing and incorporated areas that are not
envisioned by the statute." Without further elaboration this does
not satisfy the specificity required by Fed. R. Crim. P. 30(d), and
review is available only for plain error. See United States v.
Olano, 507 U.S. 725, 731-37 (1993).
The defendants' brief suggests that the plain error test
can be avoided because of counsel's "off-the-record" discussion
with the district judge about the instructions. If this discussion
had included an objection to the "any consequences" language on the
specific ground that the phrase required a caveat to exclude
legitimate warnings (e.g., of no future wages), we would be faced
with three interesting issues: whether the claim of error was
thereby preserved, whether on these facts there was error in
omitting the caveat, and whether any such error was harmless.
Off-the-record chambers conferences with counsel on jury
instructions are not uncommon in civil cases, but are perhaps less
usual in criminal ones. They are not forbidden by the Court
Reporter's Act, 28 U.S.C. § 753(b) (2000),4 although the Second
4
Accord United States v. Murphy, 768 F.2d 1518, 1535-36 (7th
Cir. 1985), cert. denied, 475 U.S. 1012 (1986); United States v.
Jenkins, 442 F.2d 429, 438 (5th Cir. 1971); cf. Wright v. Smith,
569 F.2d 1188, 1190-91 (2d Cir. 1978) (off-the-record bench
conference in state proceedings).
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Circuit has pointed out that they can create difficulties for a
reviewing court, especially where any effort is made thereafter to
rely on matters that allegedly took place in the off-the-record
conference. See Wright, 569 F.2d at 1190 n.5. Whether or not an
off-the-record conference occurs, counsel remains obligated--as we
have clearly held--to put requests for instructions and objections
on the record. United States v. Coady, 809 F.2d 119, 123 (1st Cir.
1987); see also Fed. R. Crim. P. 30.
The problem is compounded here because the district
court, in eliciting post-charge objections in the courtroom,
suggested that counsel did not need to elaborate upon earlier
objections already discussed off the record. If there were any
suggestion that the defendants had objected to the lack of language
protecting "innocent threats" in their earlier off-the-record
conference, we could be faced with a serious difficulty, but no
such suggestion is present in this case: the defendants' brief
carefully avoids saying that trial counsel raised such a specific
objection in chambers, and the evidence and closing arguments do
not suggest that a caveat regarding "innocent threats" had been
sought.5
5
Some circuits are indulgent where an objection on the record
cross-references what was said in an off-the-record charge
conference, see United States v. Purvis, 21 F.3d 1128, 1130 (D.C.
Cir. 1994); see also United States v. Murphy, 768 F.2d 1518,
1535-36 (7th Cir. 1985), cert. denied, 475 U.S. 1012 (1986). This
circuit has been less sympathetic, see, e.g., United States v.
Santana-Rosa, 132 F.3d 860, 863 n.1 (1st Cir. 1998); United States
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There was no plain error here. No evidence was offered
at trial that the defendants made "legitimate" threats, so there is
no risk that the jury convicted them for such threats. The
defendants' arguable threats or coercion involved the taking of
passports and mentions of violence, combined with what the jury
could have found to be complementary scrutiny of, or restrictions
on, the victims' local travel. So even if the instruction was
overbroad, it did not "likely" affect the outcome or threaten a
miscarriage of justice, as plain error doctrine requires. See
United States v. Sotomayor-Vazquez, 249 F.3d 1, 19 (1st Cir. 2001).
Bradley and O'Dell also claim that the district court's
instructions adopted an overly subjective test for whether
Hutchinson and Flynn felt compelled to work by the defendants'
actions. In particular, they point to the following statement:
You may also consider Mr. Hutchinson's and Mr.
Flynn's special vulnerabilities, if any. In
this regard you may consider whether or not
all persons are of the same courage or
firmness. You may consider, for example, Mr.
Hutchinson's and Mr. Flynn's background,
physical and mental condition, experience,
education, socioeconomic status, and any
inequalities between Mr. Hutchinson and Mr.
Flynn and the defendants with respect to these
considerations, including their relative
stations in life. You may consider and weigh
whether or not Mr. Hutchinson and Mr. Flynn
were vulnerable in some way so that the
v. Nason, 9 F.3d 155, 160-61 (1st Cir. 1993), cert. denied, 510
U.S. 1207 (1994); Coady, 809 F.2d at 123, and counsel would be well
advised to insist upon putting fully on the record any request or
objection sought to be preserved on appeal.
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actions of the defendant, even if not
sufficient to compel another person to work,
were enough to compel Mr. Hutchinson and Mr.
Flynn to work.
This and the rest of the defendants' remaining claims of
instructional error are also subject to only plain error review for
the reason described above, but as to each we find no error at all,
plain or otherwise.
The test of undue pressure is an objective one, asking
how a reasonable employee would have behaved; to rely upon some
hidden emotional flaw or weakness unknown to the employer would
raise various problems (e.g., scienter). But, as the defendants
concede, known objective conditions that make the victim especially
vulnerable to pressure (such as youth or immigrant status) bear on
whether the employee's labor was "obtain[ed]" by forbidden means.
See H.R. Conf. Rep. No. 106-939, at 101; see also Kozminski, 487
U.S. at 952; United States v. Alzanki, 54 F.3d 994, 1000-01 (1st
Cir. 1995), cert. denied, 516 U.S. 1111 (1996).
Viewed with the rest of the charge, the district court's
instruction makes clear that any fear of serious harm on the part
of Hutchinson or Flynn needed to be reasonable for an individual
with his special vulnerabilities.6 Nor did the evidence or
6
For example, the same paragraph of the instructions cited by
the defendants also directed the jurors to "determine whether [the
threat of serious harm] was sufficient to cause Mr. Hutchinson or
Mr. Flynn reasonably to believe that he had no choice but to work
or to remain working for Bradley Tree Service."
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arguments indicate that there were, or that the jury should
consider, any peculiar vulnerabilities of the victims not fairly
apparent from their objective circumstances (immigrant status, lack
of local ties). There is also no indication that the defendants
asked for an instruction to deal with hidden vulnerabilities.
Bradley and O'Dell's third objection is to the district
court's instruction on Hutchinson and Flynn's opportunity to flee,
which read:
The government . . . need not prove
physical restraint; such as, the use of
chains, barbed wire, or locked doors, in order
to establish the offense of forced labor. The
fact that Mr. Hutchinson or Mr. Flynn may have
had an opportunity to flee is not
determinative of the question of forced labor
if either or both of the defendants placed Mr.
Hutchinson or Mr. Flynn in such fear or
circumstances that he did not reasonably
believe he could leave.
Pointing to the Eleventh Circuit's pattern jury instructions for
involuntary servitude, the defendants claim that the opportunity to
flee is determinative of forced labor--and that the district
court's instruction once again erroneously replaces objective
analysis with a subjective standard for coercion.
The Eleventh Circuit's pattern instruction is not in
conflict with the charge just quoted; it tells the jury to
"consider . . . any reasonable means the person may have had to
escape" in deciding whether the person reasonably believed that he
was being compelled to serve. Eleventh Circuit Pattern Jury
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Instructions (Criminal Cases) 2003 at 365. We see nothing wrong
with the pattern instruction; but the defendants did not ask for
the pattern instruction and the language that the court used in
this case is not erroneous.
The defendants' fourth objection is to the district
court's instruction on the payment of wages to victims:
[W]hether a person is paid a salary or a wage
is not determinative of the question of
whether that person has been held in forced
labor. In other words, if a person is
compelled to labor against his will by any one
of the means prohibited by the forced labor
statute, such service is forced, even if he is
paid or compensated for the work.
Noting that Hutchinson and Flynn were both paid above the minimum
wage, Bradley and O'Dell claim that the district court should have
instructed the jury to consider whether payment of wages was the
reason for the victims' decision to work.
Once again, the instruction given is correct. The
defendants were free to ask for their own version as a complement
to the charge given but they did not. Of course, they were free to
argue to the jury (as they did) that the reason the victims
remained was because of pay rather than threats. The charge as a
whole made amply clear that the defendants could be convicted only
if their threats and abusive conduct reasonably coerced or forced
Flynn or Hutchinson to provide labor.
We turn next to an entirely separate claim of error.
Over the course of the eight-day trial, slightly over one day of
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testimony concerned the defendants' treatment of Wilson and Clarke.
This included their recruitment by the defendants, their experience
at the defendants' hands, and Clarke's flight and the subsequent
seizure of Wilson's passport. On this appeal, the defendants claim
that the testimony was irrelevant, prejudicial and comprised
forbidden character evidence. Fed R. Evid. 401, 403, 404.
The evidence of the recruitment, low wages and bad
housing of Wilson and Clarke was plainly relevant to the charges in
the indictment that the defendants had defrauded both men.
However, no forced labor counts were based upon their treatment,
see note 2 above. Thus one might fairly ask why certain portions
of the testimony as to Wilson and Clarke were relevant--
specifically, those parts concerning verbal abuse, the apparent
indifference to Wilson and Clarke's medical needs, and the
circumstances of Clarke's flight.
Evidence of prior bad acts to show bad character, and so
a propensity to commit crimes, is forbidden for reasons of policy;
but prior bad acts that are otherwise specially relevant are still
permitted so long as prejudice does not substantially outweigh
probative value. See Fed. R. Evid. 403, 404; United States v. Van
Horn, 277 F.3d 48, 57 (1st Cir. 2002). Unfortunately for the
defendants, most of the key evidence of the treatment of Wilson and
Clarke is relevant to the forced labor charges concerning Flynn and
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Hutchinson--independent of the forbidden inferences as to the
defendants' character.
This is assuredly so of what is the most damaging
evidence--that Clarke fled, was pursued by threats, and that
Wilson's passport was then seized. These circumstances give a
malign motive for, and provide the context of, the later seizure of
Flynn and Hutchinson's passports and of the initial threat made to
them based on Bradley's supposed intention to "destroy" a former
worker. Motive evidence is a settled exception to Rule 404's
general ban. See Fed. R. Evid. 404(b); United States v. Cintolo,
818 F.2d 980, 1000 (1st Cir.), cert. denied, 484 U.S. 913 (1987).
The abusive treatment of Wilson and Clarke, apart from
their bad housing, is closer to the margin. A showing of bad acts
is permitted to demonstrate a defendant's intent or plan, see,
e.g., United States v. Spinosa, 982 F.2d 620, 628 (1st Cir. 1992);
United States v. Wood, 924 F.2d 399, 401 (1st Cir. 1991), and the
intimidation of Wilson and Clarke, including their isolation from
medical care, was arguably part of a pattern of intimidation that
carried over to Flynn and Hutchinson. Yet bad acts comprising most
criminal careers form a pattern so, taken too broadly, the
exception could be made to swallow the rule.
Because none of the laborers was held in formal
captivity, the government in this case faced inevitable doubts as
to whether the defendants were merely abusive employers or
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deliberately sought to compel forced labor. Arguably the
defendants' prior treatment of Wilson and Clarke, so far as it
showed efforts to intimidate them and minimize their outside
contact, tended to reinforce the inference that the later, similar
treatment of Flynn and Hutchinson was part of a deliberate scheme
to hold laborers by intimidation. There is certainly precedent for
such reasoning.7
The main issue, then, is not relevance (over and above
propensity) but how much prejudice was added by the less necessary
detail as to the abuse suffered by Wilson and Clarke. For the most
part, it was not different than the treatment meted out to Flynn
and Hutchinson and so was unlikely to inflame the jury. And, of
course, Rules 403 and 404 weigh the decision in the government's
favor by saying that evidence is excluded only if probative value
is substantially outweighed by prejudice.
We note, finally, that the judge gave the customary
limiting instruction. Without being naive about the effect of such
7
See, e.g., United States v. Decicco, 370 F.3d 206, 212-13
(1st Cir. 2004) (evidence of previous warehouse fire in arson
prosecution); United States v. Burgos, 254 F.3d 8, 15 (1st Cir.)
(evidence of defendant's history of narcotics trafficking probative
of knowledge or intent to arrange drug transaction), cert. denied,
534 U.S. 1010 (2001); Spinosa, 982 F.2d at 628 (past drug crimes
"probative of the fact that [the defendant] was not merely an
innocent driver who was involved in the transaction by accident");
United States v. Hadfield, 918 F.2d 987, 994 (1st Cir. 1990) ("We
have often upheld the admission of evidence of prior narcotics
involvement in drug trafficking cases to prove knowledge and
intent."), cert. denied, 500 U.S. 936 (1991).
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instructions, they are still worth something--especially where, as
here, the fairly debatable evidence had at least some relevance and
was not dramatically prejudicial. See Van Horn, 277 F.3d at 58-59.
Perhaps more pruning would have been suitable, but on close calls
of this kind we will not interfere with the district judge's
reasonable judgment.
This brings us to the last set of issues in the case,
which relate to sentencing. The district court used the 2003
edition of the guidelines and sentenced Bradley and O'Dell under
the provisions of U.S.S.G. § 2H4.1, captioned "Peonage, Involuntary
Servitude, and Slave Trade." The base offense level for this
offense as to either victim was 22 and, under the grouping rules,
this trumped the lower levels generated by the fraud offenses
against Flynn and Hutchinson. U.S.S.G. § 3D1.3(a).
Offense-specific enhancements added three more levels--
one level because Flynn and Hutchinson had been held for more than
30 days, U.S.S.G. § 2H4.1(b)(3)(C), and two levels more because
another felony (here, fraud) had been committed in connection with
the main offense. U.S.S.G. § 2H4.1(b)(4)(A). These enhancements,
which raised the offense level from 22 to 25, are the subject of
the defendants' remaining claims of error.
The fact that the crimes were committed against two
victims--Flynn and Hutchinson--doubled the number of crimes but
does not double the final offense level; instead, it results, in
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this case, in an upward adjustment of two more levels under the
table provided by U.S.S.G. § 3D1.4, yielding a combined final
offense level of 27 for each defendant. The defendants'
convictions for defrauding Wilson and Clarke generated no
additional upward adjustment. With criminal history categories of
I, both Bradley and O'Dell were sentenced to 70 months'
imprisonment--the bottom of the applicable Guidelines range.
On appeal, Bradley and O'Dell contest the application of
the guidelines on two substantive grounds: first, that the
enhancements under 2H4.1(b)(3) and (4) are not intended to apply to
forced labor offenses; and second, that 2H4.1(b)(4)'s enhancement
for the related commission of wire fraud constitutes an
impermissible "double-counting" of their conduct. The defendants
also say that Blakely v. Washington, 124 S. Ct. 2531 (2004),
renders the Guidelines--and in particular the enhancements--
unconstitutional.
The caption of section 2H4.1 and some of its internal
language refer to "peonage" and "involuntary servitude" but not
forced labor. The defendants concede that the section itself does
encompass forced labor under 18 U.S.C. § 1589--and Guideline
Amendment 627 (Nov. 1, 2001) so declares--but they point out that
the guideline clauses imposing enhancements for length of time and
commission of another offense refer explicitly to peonage and
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involuntary servitude and were never amended to refer to forced
labor.
Despite some initial appeal, the defendants' literal
language argument is undermined by an understanding of the history
and the underlying policy objectives of Congress and the Sentencing
Commission. In the 2000 statutory amendment adding forced labor as
an offense, Congress' premise was that the Supreme Court had
mistakenly narrowed the definition of involuntary servitude by
limiting to it physical coercion. Indeed, the Senate bill handled
the matter by redefining and enlarging the offense of involuntary
servitude. See S. Amend. 4027, 106th Cong. § 12 (2000); S. Amend.
4028, 106th Cong. § 12 (2000).
Ultimately Congress adopted the House format for
remedying Kozminski by creating a new forced labor offense. See
H.R. Conf. Rep. No. 106-939, at 99-101. But this new nomenclature
does not alter the fact that Congress thought of forced labor as a
species of involuntary servitude. Indeed, the 2000 statute made
other changes to Title 22 of the U.S. Code that make this crystal
clear. It there described "involuntary servitude" in the same
terms used for the new "forced labor" offense, calling the former:
a condition of servitude induced by means of .
. . any scheme, plan, or pattern intended to
cause a person to believe that, if the person
did not enter into or continue in such
condition, that person or another person would
suffer serious harm or physical restraint . .
. .
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Victims of Trafficking and Violence Protection Act of 2000, §
103(5), 114 Stat. at 1469 (codified at 22 U.S.C. § 7102(5) (2000)).
Similarly, the Act's purposes state that "[i]nvoluntary servitude
statutes are intended to reach cases in which persons are held in
a condition of servitude through nonviolent coercion." Id. §
102(13), 114 Stat. at 1467 (codified at 22 U.S.C. § 7101(b)(13)
(2000)).
Thus, Congress' evident purpose, properly attributed to
the Commission, was to treat forced labor as a form of involuntary
servitude. It follows that an enhancement applicable to the latter
reaches the former--just as section 2H4.1 of the Guidelines
embraces "forced labor" despite its narrower caption ("Peonage,
Involuntary Servitude, and Slave Trade"). Against this background,
the defendants place too much reliance on the Commission's failure
to update the language in the caption and enhancements by adding
the words "forced labor.”
The defendants next dispute the application of the two-
level enhancement based on the wire fraud counts. They say that
because the wire fraud also comprised an overt act in furtherance
of the forced labor conspiracy, "impermissible double-counting"
would result from imposing an upward adjustment because of the wire
fraud. For this view they rely upon United States v. Sedoma, 332
F.3d 20 (1st Cir. 2003).
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An event or action occurring in the course of an offense
can readily result in a separate enhancement or penalty; witness
the use of gun during a theft of drugs. 18 U.S.C. § 924(c)(1)(A)
(2000); see also United States v. Adams, 375 F.3d 108, 111 (1st
Cir. 2004). And, from a policy standpoint, the fact that a
separate crime was committed as part of the forced labor conspiracy
gives good reason for extra punishment. Double-counting is not
automatically forbidden, see United States v. Lilly, 13 F.3d 15, 19
(1st Cir. 1994), but here there was none.
Sedoma is inapposite. In that case, the issue was
whether the same conduct (a police officer's fraud upon Rhode
Island and its police department) should result in two separate
upward adjustments--once as a specific offense characteristic for
abuse of a position of trust, and again as a separate offense group
under U.S.S.G. § 3D1.4. Sedoma, 332 F.3d at 28. Here the wire
fraud counts did not result in any additional adjustment under the
grouping rules of section 3D1.4. The concern present in Sedoma is
absent here.
Finally, Bradley and O'Dell's Blakely challenges, which
contest both the constitutionality of the district court's
sentencing enhancements and the validity of the Guidelines
themselves, were forfeit, having been raised neither in the
district court nor in the defendants' initial briefs in this court.
Under governing precedent in this circuit, there was no plain error
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in adhering to the Guidelines, as the Supreme Court has not yet
declared them invalid. See United States v. Cordoza-Estrada, 385
F.3d 56, 60 (1st Cir. 2004); United States v. Morgan, 384 F.3d 1,
8 (1st Cir. 2004).
As to the sentencing enhancements, the result would not
differ even if the Supreme Court ultimately holds that such
enhancements must be based on facts found by a jury. The district
court's two "independent findings" upon which the enhancements
relied--the length of time Hutchinson and Flynn were held in
involuntary servitude and the involvement of the wire fraud
offenses--were amply supported and not even contested at
sentencing. See Cordoza-Estrada, 385 F.3d at 59-60; Morgan, 384
F.3d at 8.
Affirmed.
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