UNITED STATES OF AMERICA, PETITIONER V. IKE KOZMINSKI, ET AL. No. 86-2000 In the Supreme Court of the United States October Term, 1987 On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit Reply Brief for the United States 1. Respondents adopt the court of appeals' view that involuntary servitude must result from physical or legal coercion unless the victim is a minor, immigrant, or mental incompetent, in which case coercive means that are fraudulent or deceitful in character may form the basis of a prosecution for involuntary servitude. Amicus International Society for Krishna Consciousness of California, Inc., appears at times to embrace the position taken by the Second Circuit in United States v. Shackney, 333 F.2d 475 (1964), that the Thirteenth Amendment and Section 1584 are concerned only with physical or legal force (see Amicus Br. 7, 8). Amicus, however, ultimately contends (id. at 11) only that the threat of physical or legal force must be the "principal feature" of the prosecution; "other forms of coercion," it admits, may be relevant and "the psychological element of the (victim's) alleged circumstances cannot be ignored" (Amicus Br. 1, 10 n.4, 11). Neither respondents nor amicus offers any evidence that Congress or the framers of the Thirteenth Amendment intended to impose the arbitrary limitations they would place on the meaning of "involuntary servitude." The language of both laws is inconsistent with the proposed restrictive readings. As explained in our opening brief (at 15-21), both laws broadly condemn the intentional creation of a result -- involuntary servitude -- without limiting the means by which that result is achieved. In particular, there is no merit to the claim made by amicus (Br. 9) that the word "hold()" in Section 1584 supports the view that Congress intended to confine the scope of that statutory provision to physical or legal force. The plain meaning of "hold" in this context is to "retain in one's keepiing," "maintain possession of," or "not give up or relinquish" (see Webster's Third New International Dictionary 1078 (1976)). "Hold" does not address, let alone dictate, the manner by which involuntary servitude is created. Indeed, amicus concedes as much in acknowledging that our proposed construction of Section 1584 is "within the letter of the statute" and in relying principally on its view that the "spirit" of the law rather than its "letter" should govern (see Amicus Br. 5, citing Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892)). 4 The legislative history of the predecessor to Section 1584 also does not support a restrictive reading of that statute. Although legal and physical force were undoubtedly among Congress's principal concerns when it enacted the Slave Trade statute and the Padrone statute, the legislative history of neither law suggests that those were Congress's exclusive concerns. Rather, as explained in our opening brief (at 22-32), the background of both statutes supports our view that Congress was concerned then, as it was when it subsequently enacted Section 1584, with more subtle forms of coercion as well. Respondents and the court of appeals admit as much, by conceding that fraud and deceit can result in involuntary servitude even in the absence of legal and physical force. But they arbitrarily confine any consideration of fraud and deceit to a narrow class of cases, without any support in the language of Section 1584. /1/ In addition, contrary to respondents' claim (Br. 6-9), an abstract desire for "objectiv(ity)" does not justify a court undertaking the inherently legislative task of replacing the deliberately broad language of the Thirteenth Amendment and Section 1584 with a complex and sharply qualified formula. Nor, in any event, does respondents' asserted desire for "objectiv(ity)" justify the categories themselves. For example, respondents concede (Br. 6-7) that a court can "objectively" determine that a defendant has, through fraud and deceit, held a minor, immigrant, or mental incompetent to involuntary servitude. The judicial inquiry, however, is no less objective when the victim is other than a minor, immigrant, or mental incompetent. Yet the court of appeals and respondents would not allow consideration of fraud and deceit in those circumstances. Nor do the "difficulties of applying a statute which calls for 'an appraisal of the state of the human mind'" justify construing the law more narrowly than its plain meaning requires (see Amicus Br. 18 (footnote omitted), quoting United States v. Shackney, 333 F.2d at 488 (Dimock, J., concurring)). Such difficulties are inherent in any statute that makes particular conduct unlawful in the absence of the victim's consent (see, e.g., Estrich, Rape, 95 Yale L. J. 1087 (1986)), and courts have properly not shied away from committing such issues to the finder of fact. Cf. Pullman-Standard v. Swint, 456 U.S. 273, 288 (1982) ("Treating issues of intent as factual matters for the trier of fact is commonplace."); Commissioner v. Duberstein, 363 U.S. 278, 286 (1960) (intent or motive is a factual issue "that inquires what the basic reason for his conduct was in fact"); Edgington v. Fitzmaurice, 29 L.R.-Ch. D. 459, 483 (1885) ("(T)he state of a man's mind is as much a fact as the state of his digestion."). There is, moreover, nothing inherently suspect about permitting criminal liability to turn on the victim's subjective state of mind rather than on the state of mind of a "reasonable individual" in the victim's circumstances, particularly where, as in the instant case, the government must establish that the defendant specifically intended to induce that state of mind. It is long settled that many criminal prohibitions "are designed to protect not only the ordinarily wary and prudent, but also the ignorant, credulous, and foolish." See, e.g., State v. Foot, 100 Mont. 33, 40, 48 P.2d 1113, 1115 (1935) (larceny by false pretenses). Indeed, the Thirteenth Amendment is especially concerned with the exploitation of persons who are poor and ignorant. See Bailey v. Alabama, 219 U.S. 219, 245 (1911); United States v. Reynolds, 235 U.S. 133, 150 (1914) (Holmes, J., concurring). The limiting principle proposed by amicus -- that physical or legal force must be the "principal feature" of the government's evidence of coercion -- is equally unsatisfactory. As a practical matter, evidence of physical or legal coercion will, as in this case, almost always be present in cases resulting in prosecution under Section 1584 or Section 241 (18 U.S.C.) and the Thirteenth Amendment (see U.S. Br. 14-15 & n.4). There is no logical reason, however, why physical or legal coercion must be the primary cause of the victim's involuntary servitude. If it is correct, as amicus asserts, that an individual's labor cannot be compelled against his will in the absence of physical or legal coercion, then that is true as a factual matter, and any prosecution brought in those circumstances will fail for that reason. That, however, is a matter for a properly instructed jury to decide. There is nothing in the language or the historical background of the Thirteenth Amendment or Section 1584 to suggest that Congress meant to exclude from the jury's consideration factors other than physical or legal coercion. The reliance by amicus (Br. 11) on the common law tort of false imprisonment is also misplaced. It is well settled that physical and legal force are not the only means by which the common law tort of false imprisonment may be committed. Indeed, the restraints necessary to trigger tort liability for false imprisonment are less demanding than what we suggest must be established to prove the crime of holding another to involuntary servitude. To establish false imprisonment, it is sufficient to show that the confinement is by "submission to duress other than threats of physical force, where such duress is sufficient to make the consent given ineffective to bar the action." 1 Restatement (Second) of Torts Section 40A comment a, at 61 (1965); see 1 F. Harper, F. James & O. Gray, The Law of Torts Section 3.8, at 293 (2d ed. 1986) (footnote omitted; emphasis added) ("the confinement may take place by means of threats of force or by other means of intimidation or fear of violence"); see also 4 Restatement (Second) of Torts Section 892B comment j, at 375-376 (1979) (duress sufficient to render consent ineffective could be a threat to property). To establish false imprisonment, unlike involuntary servitude, it is also sufficient to show that the only means of escape from confinement would be "offensive to a reasonable sense of decency or personal dignity" (1 Restatement (Second) of Torts, supra, Section 36 comment a, illustration 5, at 55). The government's burden is considerably greater in the case of involuntary servitude; as we explained in our opening brief (at 33), the government must establish that, as a result of the master's intentional and deliberate conduct, either the victim's power to choose not to serve the master has been destroyed or the victim's only choice besides working for the master is to suffer death, physical injury, or a consequence that the victim regards as equally or more intolerable. 2. For similar reasons, the contention (Resp. Br. 7-10; Amicus Br. 13-16) that "brainwashing" cannot provide the basis for involuntary servitude is misdirected. If, as respondents and amicus assert, there is no way that one individual can "brainwash" another into working against his will, the government will not prevail in any case in which it relies on such a theory. /2/ In any event, the attack on the "brainwashing" theory is a red herring. We are not proposing "some insidious new form of involuntary servitude," as amicus suggests (Br. 4). The issue presented by this case is quite simple: whether physical and legal force constitute the only legally cognizable causes of involuntary servitude. Our position is that coercive conduct can take forms other than physical and legal force. Indeed, respondents admit as much by conceding that in certain settings other forms of coercion -- such as fraudulent and deceitful conduct -- can play a role in compelling an individual to work against his will. The possibility that a party may in a particular case rely on conduct that is not coercive in that context does not justify construing the statute or the Thirteenth Amendment in a manner that precludes proof of conduct that is coercive in other settings. The proscribed result, which under both provisions is the same, is a simple one: compelling an individual to work against his will. If the defendant's conduct -- whether it be called "brainwashing" or characterized in some other way -- is designed to, and does, have the effect of compelling work by the victim against his will, the defendant is guilty of holding the victim to involuntary servitude. Otherwise, he is not. The denomination of particular conduct as "brainwashing" is thus unilluminating; the question is whether the conduct is coercive. /3/ 3. Respondents and amicus both assert (Resp. Br. 12-13; Amicus Br. 17-28) that the Court should ignore the plain meaning of the term "involuntary servitude" to avoid misapplication of the Thirteenth Amendment and Section 1584 to the day-to-day activities of certain groups, such as religious organizations. As a threshold matter, because both respondents and amicus agree that threats of physical violence may cause involuntary servitude, that potential problem may still arise. In any event, as we explained in our opening brief (at 32-40), the elements that the government must prove -- that a victim is working against his will, and that the defendant both specifically intended to, and did, cause that result -- provide protection against the risk that a defendant will be convicted on the basis of innocent conduct, whether grounded in religious beliefs or otherwise. There is no basis for the concern expressed by amicus (Br. 9) that under our view a person is held to involuntary servitude if he decides to work for another based on "affection, loyalty, dedication to principle or devotion to higher ideals." As amicus elsewhere acknowledges (Br. 15), those are all instances of a person's deciding to work for another by his own volition. They therefore fall outside the reach of the Thirteenth Amendment and Section 1584. /4/ However, while religious beliefs can explain an alleged victim's conduct in these cases and show why it is voluntary, the defendant's religious beliefs do not provide a defense to a prosecution for involuntary servitude. A defendant cannot justify forcing another to labor against his will on the ground that the defendant believes forced labor is consistent with or compelled by the tenets of a particular religion. "However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation." Davis v. Beason, 133 U.S. 333, 342-343 (1890). "Crime is not the less odious because sanctioned by what any particular sect may designate as religion" (id. at 345; see also Reynolds v. United States, 98 U.S. 145, 166 (1878)). Otherwise, a defendant would be immune from prosecution even when, consistently with his sincere religious beliefs, he uses physical force (conduct that amicus acknowledges is within the scope of the Thirteenth Amendment and Section 1584) to compel the labor of another. See United States v. Lewis, 649 F. Supp. 1109 (W.D. Mich. 1986), appeal pending, No. 87-1041 (6th Cir.), cert. denied, No. 87-5772 (Jan. 19, 1988); cf. Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 303 (1985). In any event, religion played no role in this case. For that reason, the question presented in this case -- whether involuntary servitude must be viewed as caused solely by physical or legal coercion -- does not turn on the possibility that the First Amendment might limit its application in a future case involving behavior allegedly induced by the victim's religious beliefs. Where religious beliefs are involved, of course, well-settled principles of First Amendment law may affect the analysis. For instance, any law, including a criminal statute, must justify any incidental effect it might have on a fundamental constitutional right, such as the free exercise of religion. See Wisconsin v. Yoder, 406 U.S. 205, 213-215 (1972). In addition, the First Amendment restricts judicial inquiry into the truth, validity, or reasonableness of a person's religious beliefs. See United States v. Lee, 455 U.S. 252, 257 (1982); Thomas v. Review Board, 450 U.S. 707, 716 (1981); cf. Hobbie v. Unemployment Appeals Comm'n, No. 85-993 (Feb. 25, 1987), slip op. 7 & n.9. Because that restriction would apply to the religious beliefs of the victim in an involuntary servitude prosecution, the First Amendment may affect a factfinder's ability to determine whether a victim is working against his will in cases where the victim's behavior is allegedly induced by his religious beliefs. None of these considerations, however, is present in this case. For the foregoing reasons, and the reasons stated in our opening brief, it is respectfully submitted that the judgment of the court of appeals should be vacated and the case should be remanded for retrial under standards consistent with the views expressed herein and in our opening brief. CHARLES FRIED Solicitor General JANUARY 1988 /1/ Likewise lacking any support in the statutory language is amicus's assertion that consideration of "other forms of coercion" must be confined to cases where physical or legal coercion is the "principal feature" of the prosecution. /2/ Contrary to the suggestion made by respondent and amicus (Resp. Br. 8-9; Amicus Br. 14-15), it was not the government's primary contention in this case that respondents' conduct created a dependency akin to "captivity syndrome," a psychological phenomenon which supposedly arises from prolonged physical captivity. The government more broadly contended that respondents had, through a combination of coercive measures, caused their victims to believe they had no alternative but to labor for respondents. As described in our opening brief (at 14-15; see id. at 4-7), those measures included physical and verbal abuse, subjection to substandard living conditions, denial of pay, threats of institutionalization, isolation, and false claims to others of legal authority (guardianship). In any event, the court of appeals held inadmissible the captivity syndrome testimony "because a foundation was not laid to establish its conformity to a generally accepted explanatory theory" (Pet. App. 15a) and we have not challenged that ruling in this case (see U.S. Br. 10 n.2). /3/ There is no merit to the repeated suggestion by amicus (Br. 2, 5, 12) that we, like the court of appeals, have imposed arbitrary limits on the reach of Section 1584 by our acknowledgement that "'(a) person does not hold another to involuntary servitude when the coercion stems from societal conditions rather than (from) the defendant's own conduct'" (id. at 12 (quoting U.S. Br. 36)). The reason for our statement is quite clear. As we explained in our opening brief (at 36-37), an essential element of any criminal prosecution is that the defendant caused the result. In the context of Section 1584, that means that the government must show that the defendant's conduct, not societal conditions, caused the victim to work against his will. For this reason, amicus is mistaken in suggesting (Br. 6) that under our view "economic necessity" and the fear of "being blackballed" by others, both of which presumably result from societal conditions and not from the defendant's conduct, would support a prosecution under Section 1584. /4/ Thus, in Chatwin v. United States, 326 U.S. 455 (1946), the Court concluded that a 15-year-old girl who left her family to live with members of a religious group where she could abide "by the law of God rather than the law of man" had done so voluntarily and therefore was not the victim of an unlawful kidnapping (see id. at 458, 460-461, 464). See U.S. Br. 34 n.20.