In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
Counsel of Record
Acting Assistant Attorney
MICHAEL R. DREEBEN
Deputy Solicitor General
TOBY J. HEYTENS
Assistant to the Solicitor
JESSICA DUNSAY SILVER
TOVAH R. CALDERON
Department of Justice
Washington, D.C. 20530-0001
Whether the court of appeals departed from this Court's interpretation of Rule 52(b) of the Federal Rules of Criminal Procedure by adopting as the appropriate standard for plain-error review of an asserted ex post facto violation whether "there is any possibility, no mat ter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct."
In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of the United States of America, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Second Circuit in this case.
The opinion of the court of appeals (App., infra, 1a- 18a) is reported at 538 F.3d 97. The opinion and order of the district court (App., infra, 19a-64a) is reported at 487 F. Supp. 2d 289.
The judgment of the court of appeals was entered on August 14, 2008. A petition for rehearing was denied on December 8, 2008 (App., infra, 65a-66a). On February 27, 2009, Justice Ginsburg extended the time within which to file a petition for a writ of certiorari to and including April 7, 2009. On March 26, 2009, Justice Ginsburg further extended the time to May 7, 2009. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
CONSTITUTIONAL PROVISION AND RULE INVOLVED
The Ex Post Facto Clause of the United States Con stitution (Art. I, § 9, Cl. 3) provides: "No * * * ex post facto Law shall be passed."
Federal Rule of Criminal Procedure 52(b) provides: "A plain error that affects substantial rights may be considered even though it was not brought to the court's attention."
Following a jury trial in the United States District Court for the Eastern District of New York, respondent was convicted of sex trafficking involving children or force, fraud, or coercion, in violation of 18 U.S.C. 1591(a)(1), and forced labor, in violation of 18 U.S.C. 1589. He was sentenced to 108 months of imprisonment. The court of appeals vacated respondent's convictions and remanded for further proceedings. App., infra, 1a- 18a.
1. In 1998, respondent met a woman named Jodi in an online chat room devoted to bondage, domi nance/discipline, submission/sadism, and masochism (BDSM).1 In October 1998 and again in November 1998, Jodi traveled from her home in the Midwest to Maryland and met respondent, who lived in New York, at an apart ment belonging to a woman named Joanna, who was one of respondent's "slaves." In January 1999, Jodi moved in with Joanna. Following that move, respondent visited Joanna's home every one to two weeks, during which he would engage in violent BDSM activity with Jodi, Joanna, and sometimes other women as well. App., in fra, 2a-3a.
In October 1999, Jodi's relationship with respondent became nonconsensual. That month, Jodi told respon dent that she wanted to terminate her relationship with him. In response, respondent inflicted the most severe "punishment" that Jodi had received to that point. App., infra, 3a; see id. at 26a-27a (describing incident).
In January 2000, respondent ordered Jodi to move to New York and live with a woman named Rona, another of respondent's "slaves." At respondent's direction, Jodi created a sexually explicit BDSM website called "Slave space," and she worked between eight and nine hours per day on the website. Respondent received all reve nues from the website, which consisted principally of membership fees and advertising. During this period, respondent continued to engage in violent and non-con sensual sexual behavior with Jodi. When Jodi told re spondent that she wanted to leave, he threatened to send pictures to her family and the media. App., infra, 4a.
In March 2001, respondent told Jodi that she would be allowed to leave him, but that she would first have to endure one final punishment. Respondent drove Jodi to the home of a woman named Sherry, where he banged Jodi's head against a ceiling beam, tied Jodi's hands and ankles to the beam, beat and whipped Jodi while she was hanging from the beam, drugged her, and had sexual intercourse with her. Respondent photographed the incident and forced Jodi to write a diary entry about it for his website. Jodi continued to live with Rona until August 2001, when Jodi moved into her own apartment. At that point, Jodi's interactions with respondent be came less frequent, although she remained in contact with him until 2003. App., infra, 4a-5a.
2. A grand jury charged respondent with, inter alia, sex trafficking involving children or force, fraud, or co ercion, in violation of 18 U.S.C. 1591(a)(1), and forced labor, in violation of 18 U.S.C. 1589. App., infra, 5a. Both provisions were enacted as part of the Victims of Trafficking and Violence Protection Act of 2000 (TVPA), Pub. L. No. 106-386, 114 Stat. 1464, which became law on October 28, 2000. The superseding indictment, how ever, charged a course of conduct that occurred "be tween January 1999 and October 2001." App., infra, 5a- 6a.
At trial, the government presented evidence about respondent's conduct both before and after the effective date of the TVPA. Respondent did not request an in struction that would have limited the jury's consider ation or use of evidence pertaining to periods before the TVPA's enactment, and he likewise failed to raise this issue in his motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29. The jury found respondent guilty on both the sex-trafficking and forced- labor counts. App., infra, 6a.
3. The court of appeals vacated respondent's convic tions and remanded for further proceedings in a per curiam opinion. App., infra, 1a-18a.
a. The court of appeals observed that respondent "argue[d] for the first time on appeal that the TVPA has been applied retroactively in his case in violation of the Ex Post Facto Clause of the United States Constitu tion." App., infra, 6a; see U.S. Const. Art. I, § 9, Cl. 3. The court stated that, "[b]ecause [respondent] failed to raise this argument before the District Court, it is re viewed for plain error." App., infra, 6a; see Fed. R. Crim. P. 52(b).
The court of appeals concluded that "[t]his case * * * clearly implicates the Ex Post Facto Clause" be cause the jury was permitted to consider evidence of conduct that pre-dated the enactment of the TVPA in reaching its verdict. App., infra, 7a. Relying on its deci sion in United States v. Torres, 901 F.2d 205 (2d Cir.), cert. denied, 498 U.S. 906 (1990), the court of appeals further stated that, "even under plain error review" (App., infra, 8a), a defendant who was convicted after a trial at which evidence of both pre-enactment and post- enactment conduct was presented may obtain relief "whenever there is any possibility, no matter how un likely, that the jury could have convicted based exclu sively on pre-enactment conduct." Id. at 10a. The court of appeals concluded that that standard was met here because the government had "concede[d]" that the jury heard "evidence * * * that established [that] all of the elements of" the sex-trafficking and forced-labor of fenses were present before the effective date of the TVPA. Id. at 8a-9a.
b. Judge Sotomayor filed a concurring opinion, which Judge Wesley joined. App., infra, 10a-18a. In their view, the panel's conclusions were "compelled by the current law of this circuit." Id. at 10a. The concur ring judges stated, however, that the Second Circuit's "precedent with regard to plain-error review of ex post facto violations does not fully align with the principles inhering in the Supreme Court's recent applications of plain-error review." Id. at 10a-11a. In particular, they emphasized that the Torres standard "appears to con flict with [United States v. Cotton, 535 U.S. 625 (2002)] and [Johnson v. United States, 520 U.S. 461 (1997)]." Id. at 11a. Under those cases, "where there is no rea sonable possibility that an error not objected to at trial had an effect on the judgment, the Supreme Court coun sels us against exercising our discretion to notice that error." Id. at 14a. The Second Circuit's standard con flicts with that approach, the concurring judges stated, "because it requires a retrial whenever there is any fac tual possibility that a jury could have convicted a defen dant based exclusively on pre-enactment conduct, even if such a scenario is highly implausible." Ibid. They also observed that the Second Circuit "has never directly addressed this possible conflict. Ibid. The concurring judges stated that "further guidance from the Supreme Court on this issue may be helpful, especially in light of the various plain-error standards applied by our sister circuits for ex post facto violations." Id. at 15a n.2 (cit ing cases).
The concurring judges concluded that the identifica tion of the proper standard for reviewing respondent's forfeited ex post facto claim "affects the outcome of this appeal" with respect to respondent's forced-labor con viction. App., infra, 11a. On that count, they stated that "it is 'essentially uncontroverted' that [respondent's] relevant conduct was materially indistinguishable" dur ing the pre-enactment and post-enactment periods and that respondent had offered no "explanation of how his pre- and post-enactment conduct differed in any rele vant way." Id. at 17a-18a. The concurring judges thus saw "no reasonable possibility that the jury would have convicted [respondent on the forced-labor count] based only on his pre-enactment conduct," and they concluded that the error with respect to that count did not "seri ously affect the fairness, integrity, or public reputation of the judicial proceedings." Id. at 18a. Accordingly, those judges would have affirmed respondent's forced- labor conviction under what they believed to be this Court's standard for plain-error review.
4. The government filed a petition for rehearing, which the court of appeals denied. App., infra, 65a-66a.
REASONS FOR GRANTING THE PETITION
The Second Circuit has adopted an incorrect ap proach for determining when a criminal defendant may obtain relief on a forfeited claim that his conviction was based on conduct that preceded the enactment of the relevant statute. The court of appeals concluded that, "even under plain error review," reversal is mandatory "whenever there is any possibility, no matter how un likely, that the jury could have convicted based exclu sively on pre-enactment conduct." App., infra, 8a, 10a (emphases added). As the two concurring judges ex plained (id. at 10a-15a), that "any possibility" standard squarely conflicts with established law on plain error, which makes clear that a defendant who seeks relief on a forfeited claim bears the burden of establishing preju dice and that the defendant cannot prevail when preju dice is extremely unlikely.
The Second Circuit's approach conflicts with the de cisions of other courts of appeals, and the correction of its error ultimately could warrant this Court's plenary review. But before this Court resorts to that step, an intermediate course is appropriate. The Court should grant this petition for a writ of certiorari, vacate the court of appeals' judgment, and remand for further con sideration (GVR) in light of this Court's intervening de cision in Puckett v. United States, 129 S. Ct. 1423 (2009). Puckett reaffirmed several bedrock propositions about the nature of plain-error review, including the need for a defendant to show prejudice and the role of a review ing court in determining whether the values of the judi cial system warrant reversal. Puckett also makes clear that those principles are relevant and controlling in all plain-error cases. Because this Court's decision in Puckett "reveal[s] a reasonable probability that the deci sion below rests upon a premise that the lower court would reject if given the opportunity for further consid eration," Lawrence v. Chater, 516 U.S. 163, 167 (1996) (per curiam), a GVR is warranted.
A. The Court Of Appeals' Decision Conflicts With This Court's Decisions About The Scope Of Review Of For feited Claims
1. "'No procedural principle is more familiar to this Court than that a constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.'" United States v. Olano, 507 U.S. 725, 731 (1993) (quoting Yakus v. United States, 321 U.S. 414, 444 (1944)). Fed eral Rule of Criminal Procedure 52(b)-the plain-error rule-"tempers the blow of a rigid application of the contemporaneous-objection requirement," United States v. Young, 470 U.S. 1, 15 (1985), by "provid[ing] a court of appeals a limited power to correct errors that were forfeited because not timely raised in district court," Olano, 507 U.S. at 731. Rule 52(b) thus strikes a "care ful balanc[e]" between "our need to encourage all trial participants to seek a fair and accurate trial the first time around [and] our insistence that obvious injustice be promptly redressed." United States v. Frady, 456 U.S. 152, 163 (1982).
Rule 52(b) imposes three "limitation[s] on appellate authority" to grant relief based on forfeited claims. Olano, 507 U.S. at 732. "[B]efore an appellate court can correct an error not raised at trial, there must be (1) 'er ror,' (2) that is 'plain,' and (3) that 'affects substantial rights.'" Johnson v. United States, 520 U.S. 461, 466- 467 (1997) (quoting Olano, 507 U.S. at 732). When all three requirements are satisfied, "the court of appeals has authority to order correction, but is not required to do so." Olano, 507 U.S. at 735. Rather, a reviewing court "may * * * exercise its discretion to notice a for feited error * * * only if (4) the error 'seriously af fect[s] the fairness, integrity or public reputation of ju dicial proceedings.'" Johnson, 520 U.S. at 467 (brackets in original) (citation omitted). Under the plain-error standard, "the tables are turned" from the harmeless- error test, and a "defendant who sat silent at trial has the burden to show [both] that his 'substantial rights' were affected" and that the court of appeals' discretion ary authority to correct the error should be exercised. United States v. Vonn, 535 U.S. 55, 62-63 (2002) (quoting Olano, 507 U.S. at 734-735).
2. As the concurring judges explained, this Court's decisions establish that Rule 52(b) does not authorize reviewing courts "to notice forfeited errors that did not affect the judgment." App., infra, 13a (citing Johnson, 520 U.S. at 470). In Johnson, the jury instructions in a perjury prosecution omitted the materiality element. 520 U.S. at 464. This Court determined that an error had occurred and that it was plain. Id. at 467-468. The Court also assumed for purposes of its decision that the error was "structural" in nature and that it affected the defendant's substantial rights. Id. at 468-469. But the Court held that "the [district] court's action in this case was not 'plain error' of the sort which an appellate court may notice." Id. at 463. The Court explained that "the evidence supporting materiality was 'overwhelming,'" and that the defendant "ha[d] presented no plausible argument that the false statement under oath for which she was convicted * * * was somehow not material." Id. at 470. The Court determined that, under those cir cumstances, "there [was] no basis for concluding that the error 'seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings'"; to the con trary, the Court stated that "it would be the reversal of a conviction such as this which would have that effect." Ibid. (brackets in original).
The Court applied the same analysis in United States v. Cotton, 535 U.S. 625, 632 (2002), where an indictment omitted a fact (drug quantity) that was necessary to au thorize an increase in the defendants' maximum sen tence. As in Johnson, the Court determined that a plain error had been made, and assumed for purposes of its decision that the error had affected the defendants' sub stantial rights. Ibid. The Court held, however, that "the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings" and thus did not satisfy the fourth prong of the Olano test. Id. at 632-633. The Court explained that "[t]he evidence that the conspiracy involved at least 50 grams of cocaine base was 'overwhelming' and 'essentially uncontroverted,'" and concluded that "[s]urely the grand jury, having found that the conspiracy existed, would have also found that the conspiracy involved at least 50 grams of cocaine base." Id. at 633.
3. In this case, the court of appeals concluded that, under its decision in United States v. Torres, 901 F.2d 205 (2d Cir.), cert. denied, 498 U.S. 906 (1990), it was required to grant relief on respondent's forfeited ex post facto claim so long as there was "any possibilility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct." App., infra, 10a (emphases added).2 That standard is plainly inconsistent with the framework established in Olano and this Court's decisions in Cotton and Johnson, which make clear that a defendant may not obtain relief on a forfeited claim "where there is no reasonable possibility that" the unobjected-to error "had an effect on the judg ment." Id. 14a (concurring opinion).
As the concurring judges observed, the Second Cir cuit has "never directly addressed" the conflict between its decision in Torres and the decisions of this Court. App., infra, 14a. Torres was decided more than three years before Olano, more than seven years before John son, and more than 12 years before Cotton. In addition, the court of appeals "had no occasion to evaluate wheth er the Torres standard comports with Johnson and Cot ton" in either United States v. Harris, 79 F.3d 223 (2d Cir.), cert. denied, 519 U.S. 851 (1996), or United States v. Monaco, 194 F.3d 381 (2d Cir. 1999), cert. denied, 529 U.S. 1028, and 529 U.S. 1077 (2000), because it con cluded in both of those cases "that there was no error even under the Torres 'any possibility' standard." App., infra, 15a (concurring opinion).
In Torres, the Second Circuit stated that "errors of constitutional magnitude will be noticed more freely under the plain error rule than less serious errors." 901 F.2d at 228. This Court has made clear, however, that "the seriousness of the error claimed does not remove consideration of it from the ambit of the Federal Rules of Criminal Procedure." Johnson, 520 U.S. at 466. The Court has repeatedly reaffirmed the "longstanding rule 'that a constitutional right may be forfeited,'" Cotton, 535 U.S. at 634 (quoting Yakus, 321 U.S. at 444), and it has applied the analysis outlined in Olano even to the violation of constitutional rights that "serve a vital function" and "act as a check on prosecutorial power," ibid.; accord Johnson, 520 U.S. at 466.
B. The Court Of Appeals' Decision Conflicts With The De cisions Of Other Courts Of Appeals
As the concurring judges explained, the courts of appeals have applied "various plain-error standards * * * for ex post facto violations." App., infra, 15a n.2. As interpreted by the panel in this case, the Second Cir cuit's decision in Torres requires reversal "whenever there is any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-en actment conduct." Id. at 10a. The panel also concluded that that standard is satisfied whenever the evidence of pre-enactment conduct would have been legally suffi cient to support a conviction, regardless of how "remote" the possibility "that the jury relied exclusively on pre- enactment conduct" in reaching its verdict. Ibid.; see id. at 8a-9a. Three other courts of appeals have refused to grant relief on forfeited claims that would have satisfied this standard.
1. In United States v. Muñoz-Franco, 487 F.3d 25 (1st Cir.), cert. denied, 128 S. Ct. 678, 128 S. Ct. 679, and 128 S. Ct. 682 (2007), the defendants argued for the first time on appeal that they were entitled to reversal of a bank fraud conviction because the jury "could have con victed them entirely on the basis of conduct that oc curred prior to th[e] date" on which the statute was en acted. Id. at 54. The First Circuit agreed that the dis trict court's failure to instruct the jury that it "must find that the conduct continued past the enactment date of the bank fraud statute" had been error and that the er ror was plain. Id. at 56.
The First Circuit then turned to the third and fourth prongs of the Olano test. The court declined to grant relief based on the forfeited error because it concluded that "no reasonable jury would have convicted [the de fendants] based exclusively on conduct that occurred prior to the enactment date." Muñoz-Franco, 487 F.3d at 57. The court saw "nothing to differentiate [the defen dants'] pre-enactment conduct from subsequent con duct," and concluded that it was "implausible that the jury would find [the] testimony [of certain key govern ment witnesses] compelling only for events that oc curred prior to" the statute's effective date. Id. at 57- 58.3 In this case, in contrast, the court of appeals re jected, as foreclosed by Torres, the government's argu ment "that [it] should not vacate [respondent's] convic tions because it was a 'remote possibility' that the jury relied exclusively on pre-enactment conduct," App., in fra, 10a, and it declined to attach significance to the fact that respondent's conduct with respect to the forced- labor count "was materially indistinguishable before and after the enactment of the [TVPA]," id. at 18a (concur ring opinion).
2. In United States v. Julian, 427 F.3d 471 (7th Cir. 2005), cert. denied, 546 U.S. 1220 (2006), the question was whether the defendant was subject to an enhanced maximum penalty, which turned on whether his involve ment in a conspiracy continued after the effective date of a penalty-increasing statute. The Seventh Circuit concluded that, by not asking the jury to make that de termination, the district court had violated the defen dant's Sixth Amendment right to a jury trial, id. at 481- 482, but it denied relief under the fourth prong of the plain-error test, id. at 483. The evidence in Julian was sufficient to support the conclusion that the defendant was a member of the conspiracy before the effective date of the penalty-increasing statute, id. at 481-483, and thus would have satisfied the test applied by the Second Circuit in this case. App., infra, 8a-10a. The Seventh Circuit denied relief in Julian, however, be cause it concluded that "no reasonable jury would have found that [the defendant] withdrew from the conspiracy prior to" the effective date of the penalty-increasing statute. 427 F.3d at 483 (emphasis added).
3. Like Julian, United States v. Todd, 735 F.2d 146 (5th Cir. 1984), cert. denied, 469 U.S. 1189 (1985), in volved the applicability of a penalty-increasing statute to a conspiracy that began before the statute's effective date. Id. at 149. In denying relief on the defendants' forfeited ex post facto claim, the court of appeals empha sized that all but two of the alleged overt acts "occurred during the effective period of the amendments," and it determined that "the record * * * clearly establishe[d] violations of the amended act * * * during the relevant time period." Id. at 150. Unlike the court of appeals in this case, the Todd court did not inquire whether the pre-enactment evidence alone would have been legally sufficient to support a conclusion.
C. The Court Of Appeals Should Be Permitted To Recon sider Its Decision In Light Of This Court's Intervening Decision In Puckett v. United States
For the reasons explained above, the Second Cir cuit's decision in this case conflicts with the decisions of this Court and other courts of appeals. Although this Court's plenary review may ultimately be warranted, the appropriate course at this point would be to grant certiorari, vacate the court of appeals' judgment, and remand for reconsideration in light of this Court's inter vening decision in Puckett v. United States, 129 S. Ct. 1423 (2009).
1. In Puckett, this Court held that a forfeited claim that the government breached a plea agreement is sub ject to plain-error review under Federal Rule of Crimi nal Procedure 52(b). At the outset, the Court reaffirmed that the plain-error standard applies whenever a party has forfeited a claim by failing to raise it in the district court, Puckett, 129 S. Ct. at 1428, and that relief under that standard requires four showings: (1) an error, (2) that is obvious, (3) that affects substantial rights, and (4) that warrants relief as a matter of discretion, which should be exercised "only if the error 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id. at 1429 (brackets in original) (quoting Olano, 507 U.S. at 736). The Court stated that, "in the ordinary case," an effect on substantial rights "means [that the defendant] must demonstrate that [the error] 'affected the outcome of the district court proceedings.'" Ibid. (quoting Olano, 507 U.S. at 734). Puckett also em phasized that "[a]ny unwarranted extension of the au thority granted by Rule 52(b) would disturb the careful balance it strikes between judicial efficiency and the redress of injustice" and that "the creation of an unjusti fied exception to the Rule would be [e]ven less appropri ate." Ibid. (brackets in original) (citations omitted).
In elaborating on the third and fourth components of plain-error review, Puckett made two further points that underscore the error in the Second Circuit's analysis in this case. First, in discussing whether the defendant could carry his "usual burden of showing prejudice," Puckett, 129 S. Ct. at 1432, this Court rejected the view that it is enough for a defendant to show a speculative or theoretical possibility that he might have been better off in the absence of the error. Rather, the Court ex plained, "[t]he defendant whose plea agreement has been broken by the Government will not always be able to show prejudice," such as where the defendant "ob tained the benefits contemplated by the deal anyway" or where the defendant "likely would not have obtained those benefits in any event." Id. at 1432-1433 (emphasis added). Puckett thus makes clear that a defendant who shows only that he may have been, but likely was not, prejudiced cannot carry his burden under the third prong of the Olano test. That conclusion is directly con trary to the Second Circuit's view that respondent was entitled to reversal of his convictions here "no matter how unlikely that the jury could have convicted based exclusively on pre-enactment conduct." App., infra, 10a (emphasis added).
Second, Puckett made clear that, regardless of whether a defendant has been able to satisfy the third prong of plain-error review, the fourth prong requires an additional, case-specific, inquiry. See 129 S. Ct. at 1433 ("The fourth prong is meant to be applied on a case-specific and fact-intensive basis."). Here, in con trast, the court of appeals proceeded directly from a finding of error (that is, a violation of the Ex Post Facto Clause) to a conclusion that "a retrial [was] necessary," App., infra, 10a, without conducting any analysis of whether a failure to grant relief would seriously affect the fairness, integrity, or public reputation of judicial proceedings. Most notably, the court entirely failed to examine the evidence establishing the absence of any real possibility that the jury would have found guilt based solely on pre-enactment conduct or to consider respondent's failure "to offer any explanation of how his pre- and post-enactment conduct differed in any rele vant way." Id. at 17a (concurring opinion). The Second Circuit thus failed to exercise discretion in the appropri ate manner that Puckett reaffirmed.
2. Although they recognized the error in circuit law, the concurring judges felt bound to follow the Second Circuit's own previous decisions rather than those of this Court. App., infra, 18a (stating that respondent's conviction on the forced-labor count "should not be va cated," but joining in the per curiam opinion "because the Torres standard remains the law of this circuit"). The Second Circuit's general rule is that "one panel * * * cannot overrule a prior decision of another panel." Consub Del. LLC v. Schahin Engenharia Limitada, 543 F.3d 104, 109 (2d Cir. 2008). But the Sec ond Circuit recognizes an exception for situations where "there has been an intervening Supreme Court decision that casts doubt on [its] controlling precedent." Ibid.
Puckett is an "intervening" decision because it was decided more than seven months after the panel's deci sion in this case. Although Puckett addressed the prop er manner of conducting plain-error review in a differ ent context, the Court's decision in that case, at a mini mum, "casts doubt on" the panel's conclusion that re spondent was not required to show any actual prejudice in order to obtain relief, as well as the panel's failure to conduct any separate analysis under the fourth prong of the Olano test. As a result, there is at least "a reason able probability" that the panel would reach a different result if this Court were to remand for further consider ation in light of Puckett. Chater, 516 U.S. at 166-167.
Giving the panel an opportunity to revise its analysis in this case would serve an important purpose. To be sure, the kind of error at issue here may arise only infre quently and the need for this Court's clarification may not be as pressing as for some other plain-error issues, such as the one resolved in Puckett. But plain-error issues are of great systemic consequence, and the exis tence of a flawed approach to plain-error review in one context holds the potential to destablize plain-error doc trine more broadly. In recent years, this Court fre quently has been required to explicate plain-error analy sis in criminal cases. See Puckett, supra; United States v. Dominguez-Benitez, 542 U.S. 74 (2004); Vonn, supra; Cotton, supra; Johnson, supra; Olano, supra.
This Court should attempt to correct the Second Cir cuit's erroneous approach to plain-error review through a GVR rather than by plenary review. A "GVR order can improve the fairness and accuracy of judicial out comes while at the same time serving as a cautious and deferential alternative to summary reversal in cases whose precedential significance does not merit [this Court's] plenary review." Chater, 516 U.S. at 168. The Second Circuit's decision in this case is out of step with the decisions of this Court and those of other circuits; two members of the panel called for correction of the error, yet the full court declined to rehear the case en banc; and an intervening decision of this Court reaffirms core plain-error principles that the circuit's current pre cedent ignores. In these circumstances, a GVR might well result in the panel concluding that the principles most recently reaffirmed in Puckett require a departure from the approach announced in Torres and applied in this case. That ruling would eliminate the need for this Court to expend its own scarce resources by hearing and resolving this case on the merits.
The petition for a writ of certiorari should be gran ted, the judgment of the court of appeals should be va cated, and the case should be remanded for further con sideration in light of Puckett v. United States, 129 S. Ct. 1423 (2009).
Acting Assistant Attorney
MICHAEL R. DREEBEN
Deputy Solicitor General
TOBY J. HEYTENS
Assistant to the Solicitor
JESSICA DUNSAY SILVER
TOVAH R. CALDERON
1 The district court permitted certain witnesses to testify using their first names only. App., infra, 2a n.1.
2 It is not clear that the error in this case is properly viewed as an ex post facto violation. The indictment charged, and the government's proof showed, a course of conduct that began before the enactment of the forced-labor statute and continued thereafter. Criminal statutes are presumed not to have retroactive effect, see Johnson v. United States, 529 U.S. 694, 701-702 (2000), and the government has not argued in this case that the TVPA criminalizes conduct that occurred before its enactment. If the TVPA does not criminalize respondent's pre- enactment conduct, it would not be an "ex post facto Law" (U.S. Const. Art. I, § 9, Cl. 3). But if the jury relied on non-criminal, pre-enactment conduct in reaching its verdict, then respondent may have been found guilty of a non-crime, which would appear to violate the Due Process Clause. See Burge v. Butler, 867 F.2d 247, 250 (5th Cir. 1989) (sentenc ing a defendant under a statute that did not apply to his crime because his conduct occurred before the statute's effective date violated due process).
The proper characterization of the error in this case, however, does not affect the plain-error analysis. In either case, the jury would have been given the option of finding respondent guilty on both a valid theory (post-enactment violation) or an invalid theory (pre-enactment violation). This Court's recent decision in Hedgpeth v. Pulido, 129 S. Ct. 530 (2008) (per curiam), makes clear that such alternative-theory errors are susceptible to harmless-error analysis, and they are susceptible to plain-error analysis as well. Accordingly, the panel's decision to apply an "any possibility" standard here is wrong, regard less of how the error is characterized.
3 Muñoz-Franco observed that "other circuits have taken varying approaches to applying [the third and fourth] prongs of the plain error test in assessing a claimed ex post facto violation," but stated that it "need not settle on a rule" because it concluded that the defendants lost even under "[t]he plain error analysis used by the Second * * * Circuit." 487 F.3d at 56-57. But, unlike the Second Circuit panel in this case, Muñoz-Franco did not apply the Torres "any possibility" standard because it concluded that Torres "did not explicitly apply [plain error] review." Id. at 57 n.34. But see App., infra, 8a (panel majority stating that the Torres standard applies "even under plain error review"). Instead, Muñoz-Franco applied the test proposed by the concurring judges in this case-that is, whether "there [i]s a 'reasonable possibility' that the jury convicted [the defendants] solely on the basis of pre-enactment conduct." Muñoz-Franco, 487 F.3d at 57; accord App., infra, 14a (concurring opinion) (stating that a defendant must "demonstrat[e] a reasonable possibility that the jury might have convicted him or her based exclusively on pre-enactment conduct").
APPENDIX A UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 07-4005-cr UNITED STATES OF AMERICA, APPELLEE v. GLENN MARCUS, DEFENDANT-APPELLANT Aug. 14, 2008 Before: STRAUB, SOTOMAYOR and WESLEY, Circuit Judges. Judges SOTOMAYOR and WESLEY concur in a sepa rate opinion. PER CURIAM: Defendant-Appellant Glenn Marcus appeals from a September 18, 2007 judgment of conviction and sentence of the United States District Court for the Eastern Dis trict of New York (Allyne R. Ross, Judge), sentencing defendant principally to a term of 108 months' imprison ment following conviction after a jury trial of violations of the Trafficking Victims Protection Act (_TVPA_), 18 U.S.C. §§ 1589 and 1591. Marcus argues, inter alia, that his conviction amounted to a violation of the Ex Post Facto Clause of the Constitution. For the reasons set forth below, we agree. The judgment of the District Court is vacated, and the case is remanded to the Dis trict Court for proceedings consistent with this opinion. FACTUAL AND PROCEDURAL BACKGROUND The facts of this case are exhaustively set forth in the District Court's opinion. See United States v. Marcus, 487 F. Supp. 2d 289, 291-97 (E.D. N.Y. 2007). We recite only those facts relevant to the Ex Post Facto challenge. At trial, the government presented evidence that in 1998, Glenn Marcus, who was living in New York at the time, met Jodi,1 the complaining witness, in an online chat room devoted to an alternative sexual lifestyle, known as bondage, dominance/discipline, submission/sa dism, and masochism (_BDSM_). Marcus, with the help of two of his _slaves,_ Joanna and Celia, convinced Jodi to travel from her home in the Midwest to Joanna's apartment in Maryland, in order to meet Marcus in per son, which she did in October 1998. During this visit, Marcus whipped Jodi and carved the word _slave_ on her stomach with a knife. Jodi returned to Joanna's apartment in Maryland for a second visit in November 1998. After her second visit, Marcus convinced Jodi to move from the Midwest to Maryland, where she would live with Joanna. Jodi submitted to Marcus a petition, in which she referred to herself as _pooch,_ a name given to her by Marcus, and stated, among other things, _I am begging to serve you Sir, completely, with no limi tations. . . . If I beg you for my release, Sir, please ignore these words._ Despite this petition, Jodi testified that she believed she would be able to leave Marcus if she wanted to. Jodi moved into Joanna's apartment in January 1999, and Marcus visited them in Maryland every one to two weeks. During these visits, Marcus engaged in BDSM activities with Jodi and Joanna, and sometimes other women. These activities included branding Jodi, requir ing her to seek his permission before contacting her family, whipping and choking her during intercourse, photographing her for his website, _Subspace,_ and re quiring her to post diary entries describing the activities on the website. The BDSM activity, along with the _punishments_ for disobedience, increased in severity during this time, and Jodi testified that she became in creasingly depressed. At some point, Marcus instructed Jodi to convince her younger sister to travel to Maryland, and when she refused, Marcus told her that she would be severely punished. In October 1999, Marcus arrived in Maryland to inflict Jodi's punishment. He handcuffed her to a wall and left to take a nap, informing her that he would re turn to inflict the punishment. Jodi testified that at this point, she had a moment of clarity and decided to leave Marcus. She convinced Celia to help her off the wall, but Joanna awakened Marcus. Jodi told Marcus that she wanted to leave, and in response, Marcus inflicted upon Jodi the most severe punishment she had ever re ceived up to this point. The incident was photographed for Marcus's website. Jodi testified that at this point, the relationship became non-consensual, as she felt _completely beaten down,_ _trapped,_ and _full of ter ror._ In November 1999, Joanna informed Marcus, by phone, that she wished to leave him. With Jodi listening on the line, Marcus threatened that he would show Jo anna's pictures to her family and that he would harm members of her family if she were to leave him. Jodi testified that, as a result of having heard this conversa tion, she thought that Marcus would do the same to her were she to leave. In January 2000, Marcus instructed Jodi to move to New York, where she lived with Rona, another one of Marcus's _slaves._ Marcus instructed Jodi to create a new website, called _Slavespace._ After creating the site, Jodi worked on it for approximately eight to nine hours per day, updating pictures and diary entries. Marcus received all site-related revenues, which con sisted primarily of membership fees and advertising. During the time that Jodi lived with Rona, Marcus con tinued to engage in violent sexual behavior with her, punishing her severely when he was unhappy with her work on the website. Jodi testified that each of these incidents was non-consensual, but that she was afraid to leave him. At one point, when she told Marcus that she wanted to leave, he threatened to send pictures to her family and the media. Finally, in March 2001, Marcus told Jodi that she would be allowed to leave him, but that she had to en dure one final punishment. He drove her to the home of a woman named Sherry and there inflicted severe pun ishment upon Jodi, including banging her head against a beam in the ceiling of Sherry's basement, tying her hands and ankles to the beam, beating her and whipping her while she was hanging from the beam, drugging her, and having sexual intercourse with her. He photo graphed the incident and forced Jodi to write a diary en try about the incident for his website. Jodi continued to live with Rona until August 2001, when Rona told Mar cus that she no longer wanted Jodi to live with her. Jodi moved into her own apartment, and her interactions with Marcus became less frequent, although she re mained in contact with him until 2003. On February 9, 2007, the government filed a super ceding indictment, charging Marcus with violating the sex trafficking statute, 18 U.S.C. § 1591(a)(1),2 and the forced labor statute, 18 U.S.C. § 1589,3 of the Trafficking Victims Protection Act (_TVPA_) _[i]n or about and be tween January 1999 and October 2001._ Marcus was convicted, after a jury trial, of both counts.4 Although the TVPA was not enacted until October 2000, the government presented evidence at trial with respect to the entire period charged in the indictment, and the District Court did not instruct the jury with re spect to the date of the enactment of the statute. At the time, Marcus did not object to the jury instructions on this ground, and he did not raise any argument to this effect in his motion for a judgment of acquittal under Fed. R. Crim. P. 29. DISCUSSION Marcus argues for the first time on appeal that the TVPA has been applied retroactively in his case in viola tion of the Ex Post Facto Clause of the United States Constitution. Because Marcus failed to raise this argu ment before the District Court, it is reviewed for plain error. See United States v. Torres, 901 F.2d 205, 227-28 (2d Cir. 1990). _To establish plain error, the defendant must establish (1) error (2) that is plain and (3) affects substantial rights._ United States v. Villafuerte, 502 F.3d 204, 209 (2d Cir. 2007). _If the error meets these initial requirements, we then must consider whether to exercise our discretion to correct it, which is appropriate only if the error seriously affected the fairness, integ rity, or public reputation of the judicial proceedings._ Id . (internal quotation marks omitted). The Constitution provides that _[n]o . . . ex post facto Law shall be passed._ U.S. Const. art. I, § 9, cl. 3. The Supreme Court has interpreted this clause as prohibiting Congress from passing a law that: (1) makes an act a crime that was legal when commit ted; (2) makes a crime greater than it was when it was committed; (3) increases the punishment for a crime after it has been committed; or (4) deprives the accused of a legal defense that was available at the time the crime was committed. United States v. Harris, 79 F.3d 223, 228 (2d Cir. 1996). _While the Ex Post Facto Clause itself is a restraint on the legislative branch, its protections have been exten ded to the application of judicial precedent by the courts under the Due Process Clause of the Fifth Amendment._ Id. at 228-29. It is undisputed that the indictment charges Marcus with violating the statute between January 1999 and October 2001, that the government presented evidence at trial with respect to this entire time period, that the TVPA was enacted in October 2000, and that the District Court failed to instruct the jury with respect to this is sue. This case, therefore, clearly implicates the Ex Post Facto Clause. However, the government argues that the sex trafficking and forced labor offenses constitute con tinuing offenses, and that even though the criminal con duct at issue began prior to enactment of the TVPA, it continued after enactment; accordingly, no violation oc curred here. _It is well-settled that when a statute is concerned with a continuing offense, the Ex Post Facto Clause is not violated by application of a statute to an enterprise that began prior to, but continued after, the effective date of the statute._ Id. at 229 (internal quota tions marks and alterations omitted). Marcus argues that the sex trafficking and forced labor offenses do not constitute continuing offenses. We need not decide whether the offenses constitute continuing offenses for Ex Post Facto purposes because, even if they do, the convictions violate the Ex Post Facto Clause. In Torres, we stated that, even in the case of a continuing offense, if it was possible for the jury-who had not been given instructions regarding the date of enactment-to convict exclusively on pre-enactment conduct, then the conviction constitutes a violation of the Ex Post Facto clause. 901 F.2d at 229. See also United States v. Monaco, 194 F.3d 381, 386 (2d Cir. 1999) (_A conviction for a continuing offense straddling enactment of a statute will not run afoul of the Ex Post Facto clause unless it was possible for the jury . . . to convict exclusively on pre-enactment conduct._) (internal quota tion marks omitted) (emphasis in original); Harris, 79 F.3d at 229 (_Because the [ ]statute is a continuing crime statute, we must determine whether it was possible for the jury . . . to convict Harris exclusively on pre-[ ] en actment conduct._) (emphasis in original). This is true even under plain error review. See Torres, 901 F.2d at 229 (holding under plain error review that, although it was unlikely that the jury had based its findings entirely on pre-enactment conduct, because such a scenario was a possibility, the defendant's conviction had to be va cated).5 Here, the government concedes that _the jury could have found that Marcus violated Sections 1591 and 1589 solely by his conduct prior to their effective dates, because there was evidence before it that established all of the elements of these offenses as of that time._ Spe cifically, the government concedes that before enact ment of the statute: (1) Jodi moved from the Midwest to Maryland; (2) Jodi's relationship with Marcus became non-consensual; (3) Marcus threatened Joanna in Jodi's hearing; (4) Marcus forced Jodi to work on his existing website as well as create a new website; and (5) Jodi moved from Maryland to New York. Accordingly, the application of the TVPA in such a manner constituted an Ex Post Facto Clause violation, and the conviction must be vacated under our holding in Torres.6 The government argues that we should not vacate the convictions because it was a _remote possibility_ that the jury relied exclusively on pre-enactment conduct; however, that argument is foreclosed by our decision in Torres, where we held that a retrial is necessary when ever there is any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct.7 CONCLUSION For the foregoing reasons, we VACATE the judgment of the District Court. The case is REMANDED to the Dis trict Court for proceedings consistent with this opinion. SOTOMAYOR, Circuit Judge, with whom Judge WES LEY joins, concurring: Judge Wesley and I concur with the per curiam opin ion because its conclusions are compelled by the current law of this circuit. We write separately because we be lieve this Court's precedent with regard to plain-error review of ex post facto violations does not fully align with the principles inhering in the Supreme Court's re cent applications of plain-error review. Under plain-error review, an appellate court cannot correct an error not raised at trial unless there is _(1) error, (2) that is plain, and (3) that affect[s] substan tial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a for feited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings._ Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997) (internal quotation marks and citation omitted). In its recent ap plications of plain-error review, the Supreme Court has stated that where a trial court commits an error that is plain, that error does not seriously affect the fairness, integrity, or public reputation of the judicial proceedings if the error concerns an _essentially uncontroverted_ issue. United States v. Cotton, 535 U.S. 625, 633, 122 S. Ct. 1781, 152 L. Ed. 2d 860 (2002); Johnson, 520 U.S. at 470, 117 S. Ct. 1544. Our case law appears to conflict with this precedent because it requires a retrial when ever there is any possibility that an improperly instruc ted jury could have convicted a defendant based exclu sively on conduct committed prior to the enactment of the relevant statute, see United States v. Torres, 901 F.2d 205, 229 (2d Cir. 1990), even where it is _essentially uncontroverted_ that the defendant's relevant conduct before and after the statute's enactment was materially indistinguishable. We write to bring this issue to our Court's attention and to explain how this difference af fects the outcome of this appeal.8 In Johnson, the defendant was convicted of perjury under 18 U.S.C. § 1623. One element of that crime-the materiality of the defendant's false statement-was un constitutionally decided by the trial judge, rather than by the jury. See Johnson, 520 U.S. at 463-64, 117 S. Ct. 1544; see also United States v. Gaudin, 515 U.S. 506, 522-23, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995). The Supreme Court nevertheless affirmed the conviction, explaining that the error did not affect the fairness, in tegrity, or public reputation of the judicial proceedings because the evidence of materiality was _overwhelming_ and _essentially uncontroverted._ 520 U.S. at 469-70, 117 S. Ct. 1544. Because Johnson had _no plausible ar gument that the false statement under oath for which she was convicted . . . was somehow not material,_ the Supreme Court concluded there was no _miscarriage of justice_ in not taking notice of the error. Id. at 470, 117 S. Ct. 1544. Likewise, in Cotton, the defendants were convicted of conspiring to distribute and to possess with intent to distribute a detectable amount of cocaine and crack co caine. The indictment, however, failed to allege drug quantity, a fact that increased the statutory maximum penalty, rendering the defendants' enhanced sentences unconstitutional. See Cotton, 535 U.S. at 632, 122 S. Ct. 1781; see also Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (_[A]ny fact (other than prior conviction) that increases the max imum penalty for a crime must be charged in an indict ment, submitted to a jury, and proven beyond a reason able doubt._ (internal quotation marks omitted)). Again, the Supreme Court held this error did not affect the fairness, integrity, or public reputation of the proceed ings because the evidence that the drug conspiracy in volved at least 50 grams of cocaine base was _over whelming_ and _essentially uncontroverted._ Cotton, 535 U.S. at 633, 122 S. Ct. 1781; see also id. (_Surely the grand jury, having found that the conspiracy existed, would have also found that the conspiracy involved at least 50 grams of cocaine base._). _The real threat . . . to the _fairness, integrity, and public reputation of judicial proceedings,__ the Supreme Court explained, _would be if [the defendants], despite the overwhelming and uncontroverted evidence that they were involved in a vast drug conspiracy, were to receive a sentence pre scribed for those committing less substantial drug of fenses because of an error that was never objected to at trial._ Id. at 634, 122 S. Ct. 1781. These cases embody the Supreme Court's view that there is no _miscarriage of justice_ in refusing to notice forfeited errors that did not affect the judgment. See Johnson, 520 U.S. at 470, 117 S. Ct. 1544. This is true even if the errors fall within the _limited class_ of _structural errors_ that _affect[ ] the framework within which the trial proceeds, rather than simply an error in the trial process itself._ Id. at 468, 117 S. Ct. 1544. We see no reason why this principle should not apply to the context of ex post facto violations. While the Ex Post Facto Clause is certainly fundamental to our notions of justice, see Marks v. United States, 430 U.S. 188, 191-192, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977), it is no more so than the Fifth and Sixth Amendment rights at issue in Johnson and Cotton. See, e.g., Duncan v. Loui siana, 391 U.S. 145, 149, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968) (describing the right to trial by jury in serious criminal cases to be _fundamental to the American scheme of justice_). Thus, where there is no reasonable possibility that an error not objected to at trial had an effect on the judg ment, the Supreme Court counsels us against exercising our discretion to notice that error. Within the context of the Ex Post Facto Clause, we believe this means that where the evidence is _overwhelming_ or _essentially uncontroverted_ that the defendant's relevant pre- and post-enactment conduct is materially indistinguishable, such that a reasonable jury would not have convicted the defendant based solely on pre-enactment conduct, a re trial is unwarranted. In other words, the defendant must meet the low threshold of offering a plausible ex planation as to how relevant pre- and post-enactment conduct differed, thereby demonstrating a reasonable possibility that the jury might have convicted him or her based exclusively on pre-enactment conduct. When this requirement is not met, the error does not seriously af fect the fairness, integrity, or public reputation of the judicial proceedings. Our standard-announced in Torres, 901 F.2d at 229, and repeated in United States v. Harris, 79 F.3d 223, 229 (2d Cir. 1996), and United States v. Monaco, 194 F.3d 381, 386 (2d Cir. 1999)-appears to conflict with the Cotton and Johnson decisions because it requires a retrial whenever there is any factual possibility that a jury could have convicted a defendant based exclu sively on pre-enactment conduct, even if such a scenario is highly implausible. Our Court has never directly ad dressed this possible conflict. Indeed, our opinion in Torres preceded the Cotton and Johnson decisions, and we did not apply the Supreme Court's current four-part plain-error analysis in crafting our standard. We have since had no occasion to evaluate whether the Torres standard comports with Johnson and Cotton because we concluded in both Monaco and Harris that there was no error even under the Torres _any possibility_ standard. Accordingly, our Court may wish to reexamine its prece dent to ensure that it does not conflict with Supreme Court precedent.9 Were this Court to adopt a reasonable possibility standard, we believe that we should exercise our discre tion to notice the forfeited ex post facto error for Glenn Marcus's sex-trafficking conviction, but not for his forced-labor conviction.10 With regard to the sex-traf- ficking conviction, Marcus's relevant conduct differed materially before and after October 2000, such that there is a reasonable possibility that the jury may have convicted him based exclusively on pre-enactment con duct. The sex-trafficking statute makes it illegal to knowingly, in or affecting interstate commerce, recruit, entice, harbor, transport, provide, or obtain by any means a person knowing that force, fraud, or coercion will be used to cause the person to engage in a commer cial sex act. 18 U.S.C. § 1591. The government alleged that Marcus engaged in several trafficking activities with the requisite mens rea: (1) that he recruited, en ticed, and obtained Jodi when he met her online in late 1998; (2) that he transported Jodi from Maryland to New York in January 2000; and (3) that he harbored Jodi from 1999 until 2001. Only the harboring activity occurred after the October 2000 effective date of the statute. Thus, if the jury concluded that Marcus did not harbor Jodi within the meaning of the statute,11 but did recruit, entice, or obtain her in 1998 or transport her in 2000, it would have convicted him based only on pre-ena ctment conduct. This material difference in conduct demonstrates a reasonable possibility that the jury may have relied exclusively on pre-enactment conduct. Un der such circumstances, a retrial is necessary. In contrast, with respect to the forced-labor convic tion, Marcus has no plausible argument as to why the jury would have differentiated between his conduct be fore and after the enactment of the statute. Here, the government alleged that from January 2000 until at least the spring of 2001, Marcus forced Jodi, through threat of serious physical harm and actual physical harm, to create and maintain a commercial BDSM web site. Jodi testified that throughout this time period she was forced to work eight to nine hours a day maintaining the website and that Marcus would punish her whenever she failed to update the site quickly enough.12 Marcus has been unable to offer any explanation of how his pre- and post-enactment conduct differed in any relevant way.13 Indeed, his central argument on the forced-labor charge appears to be that _because of the volatile evi dence in the sex trafficking prosecution, which included the admission of highly prejudicial photographs and graphic images, there was a very serious spillover im pact on the forced labor charges._ Because it is _essen tially uncontroverted_ that Marcus's relevant conduct was materially indistinguishable before and after the en actment of the statute, there is no reasonable possibility that the jury would have convicted him based only on his pre-enactment conduct and not on his post-enactment conduct. In other words, a rational jury would have ei ther convicted Marcus for his conduct during this entire period or not at all. Because the district court's error in failing to instruct the jury on the Ex Post Facto Clause did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings, his conviction should not be vacated for this error. Nevertheless, we join the per curiam opinion in va cating both of Marcus's convictions because the Torres standard remains the law of this circuit. See Bd. of Educ. v. Hufstedler, 641 F.2d 68, 70 (2d Cir. 1981) (_A panel of this court is bound by a previous panel's opin ion, until the decision is overruled en banc or by the Su preme Court._). For the reasons discussed, however, we believe that our precedent warrants reexamination.
APPENDIX B UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK No. 05-CR-457 (ARR) UNITED STATES OF AMERICA v. GLENN MARCUS, DEFENDANT May 17, 2007 OPINION AND ORDER ROSS, United States District Judge. Defendant Glenn Marcus was tried before a jury on charges of sex trafficking, in violation of 18 U.S.C. § 1591; forced labor, in violation of 18 U.S.C. § 1589; and dissemination of obscene materials through an interac tive computer service, in violation of 18 U.S.C. § 1462. The charges arose out of conduct related to an alterna tive sexual lifestyle, known as bondage, dominance/dis cipline, submission/sadism, and masochism (_BDSM_). At trial, the complaining witness testified that she en tered into a consensual BDSM relationship with the de fendant, who subsequently used force and coercion to prevent her from leaving when she sought to do so. She testified that she remained with the defendant against her will for nearly two years, during which period she created and maintained the defendant's website and engaged in BDSM conduct with the defendant and oth ers that was photographed and placed on the website. On March 5, 2007, a jury found the defendant guilty of sex trafficking and forced labor and not guilty of dissem ination of obscene materials. The jury also found that the government had proved the defendant committed aggravated sexual abuse in relation to the forced labor count, a statutory aggravating factor. Defendant now renews his Fed. R. Crim. P. 29 mo tion for judgment of acquittal on the sex trafficking and forced labor counts, which he made initially at the close of the government's case and renewed at the end of all the evidence. The defendant raises three grounds for setting aside his conviction. First, he contends that the Trafficking Victims Protection Act of 2000 (_TVPA_)- the legislation enacting both statutes at issue-was not intended to apply to conduct that took place as part of an _intimate, domestic relationship_ or to consensual BDSM activities. Second, he claims that the term _com mercial sex act_ in 18 U.S.C. § 1591 does not apply when the defendant received revenue for photographic depic tions of sex acts as opposed to the acts themselves. Third, he argues that the government has failed to pres ent sufficient evidence for a reasonable jury to find a nexus between the force or coercion employed by the defendant and the commercial sex act element of his sex trafficking conviction or the labor or services element of his forced labor conviction. In the alternative, defen dant moves for a new trial pursuant to Fed. R. Crim. P. 33 so that the jury may be instructed that a conviction requires that the dominant purpose of the defendant's use of force or coercion is to cause the victim to engage in a commercial sex act or to obtain her labor or ser vices. For the reasons stated below, the defendant's motions are denied. BACKGROUND Viewing the evidence in the light most favorable to the government, see United States v. Autuori, 212 F.3d 105, 108 (2d Cir. 2000), the relevant evidence adduced at trial is as follows.14 1. Events from 1998 to June 1999 In 1998, Jodi,15 the complaining witness, learned about BDSM on the internet and began visiting online chatrooms to find out more information. (Trial Tran script [hereinafter _Tr._] at 70-71.) At the time, Jodi un derstood BDSM to be a type of relationship in which, within certain guidelines and limits, one person is domi nant and the other submissive. (Id.) After two rela tively brief BDSM relationships, Jodi met the defendant online in the fall of 1998. (Id. at 71-73.) The defendant -Identified by the screen name _GMYourGod_-called himself the only true _master_ and referred to the women in BDSM relationships with him as _slaves_ who _served_ him. (See id. at 73, 75-76.) He explained to Jodi that, in the type of BDSM he practiced, he did not allow the use of any limits or safe words.16 (Id. at 74.) By way of example, he explained that he could decide to cut off a slave's limb or order her to kill a small child. (Id. at 74-75.) Two of the defendant's slaves involved in the online conversation-Joanna, identified by the screen name _GMsdogg,_ and Celia, identified by the screen name _nameless_-assured Jodi that the defendant had never engaged in behavior of this nature previously, and Joanna told Jodi that she did not believe he would do so in the future. (Id. at 75.) In subsequent conversations by telephone, the defendant communicated to Jodi that she belonged to him and needed to serve him. (Id. at 75-76.) During these early encounters with the defen dant, Jodi shared intimate details about her life experi ences, including that she had been physically and emo tionally abused by her mother and had struggled with an eating disorder. (See id. at 76-77.) In October 1998, Jodi traveled from her home in the Midwest17 to Joanna's apartment in Maryland to meet the defendant. (Id. at 76.) Over the three to four days that she was there, the defendant whipped her and carved the word _slave_ on her stomach with a knife. (Id.) In November 1998, Jodi again traveled to Mary land to meet the defendant. (Id. at 77.) During these two visits, the defendant complimented Jodi on her looks and performance of BDSM activities. (Id. at 77-78.) He also continued to emphasize that she belonged to him and needed to be with him. (Id.) After Jodi's second visit, the defendant informed her that he wanted her to move to Joanna's apartment in Maryland and Jodi agreed to do so. (Id. at 78.) Prior to moving, Jodi submitted a petition, which she drafted and Joanna edited, in which she asked the defendant to allow her to serve him as his slave. (Id. at 79-81; see also Govt. Ex. 2C,18 at 1051.) In the petition, she referred to herself as _pooch_ (Govt. Ex. 2C, at 1051), a name given to her by the defendant to signify that she was his prop erty (Tr. at 82.) In relevant part, the petition read: _I am begging to serve you Sir, completely, with no limita tions. . . . If I beg you for my release, Sir, please ig nore these words._ (Govt. Ex. 2C, at 1051.) Despite this request, however, Jodi believed that she would be able to leave if she wanted to do so, because the defendant had previously told her that he never wanted to have a slave who did not want to serve him. (See Tr. at 108.) In January 1999, Jodi moved to Maryland, where she stayed with Joanna in Joanna's apartment. (Id. at 83, 86.) The defendant, who lived in Long Island, New York at the time (id. at 75), would visit Joanna's apartment every one to two weeks for three to four days (id. at 86-87). During these visits, he would engage in BDSM activities with Jodi, Joanna and sometimes other women. (Id.) When the defendant was present, Jodi and any other women present were not allowed to wear clothing, could not eat, drink or speak without permission, were only allowed to sleep for a couple of hours at a time, and were expected to follow the defendant's instructions. (Id. at 87.) Soon after Jodi arrived, the defendant took steps to reinforce the notion that he considered Jodi to be his property, including shaving her head and brand ing a _G_ into her buttocks with a coat hanger. (See id. at 83-84.) The branded skin subsequently developed into a severe burn, but the defendant did not permit Jodi to seek medical attention. (Id. at 86.) The defendant also prohibited Jodi from maintaining any of her prior friendships and required her to receive permission from him to speak with her family. (Id. at 83-84.) He told her that she was ugly, stupid, and disobedient and did not deserve to be his slave. (Id. at 87-88.) Jodi called the defendant _sir,_ while he referred to her as _it,_ _pooch_ or by other derogatory names and expected her to refer to herself only in the third person. (Id. at 88.) The defendant instructed Jodi to engage in a series of BDSM activities with him and other women, which the defendant photographed and posted on a website main tained by Joanna known as _Subspace._ (Id. at 91-93.) For example, Jodi was whipped, choked, and had sexual intercourse while tied to a wall. (Id. at 90.) At the time, Jodi found some of these activities to be sexually gratify ing. (Id.) She and the other women were required to write diary entries to post on the defendant's website describing the BDSM activities they engaged in with the defendant and expressing the joy and gratitude the _slaves_ felt about serving their _master._ (Id. at 91.) When the defendant was not present at the apart ment, Jodi and Joanna were expected to ensure that each was complying with his instructions. (Id. at 93-94.) For example, they were told to recite daily the _Master's Expectations,_ which outlined the expected conduct of the defendant's slaves. (Id. at 94-95; see also Govt. Ex. 2C, at 1014-20.) The defendant would also direct Joanna or Jodi to wear butt plugs19 or breast clamps for long periods of time. (Id. at 95.) If either failed to follow in structions, the other one would inform the defendant and he would either administer punishments himself or order one to punish the other. (Id. at 96.) Jodi was pun ished nearly every time she saw the defendant, including being whipped or placed in a large, metal dog cage in the apartment. (Id. at 97-98.) Several months after Jodi began living at Joanna's apartment, the punishments inflicted by the defendant became increasingly severe, and Jodi began feeling de pressed. (Id. at 98.) In June 1999, she burned her arm twice with a cigarette. (Id.) Fearing that the defendant would notice the burns when he visited from New York, she told him on the telephone what she had done. (Id.) He instructed Joanna to burn herself with a cigarette on her arm and then to punish Jodi by defecating on her face in the bathtub and making her clean the bathtub with her tongue. (Id.; Govt. Ex. 2C, at 299, 307.) When the defendant arrived at Joanna's apartment, he slapped Jodi so hard she was _seeing stars._ (Tr. at 99.) He then burned her with a cigarette all over her body, in cluding her forehead, arms, the bottom of her feet, the back of her neck, and inside her vagina. (Id. at 99-100.) Jodi testified that _I felt like I was literally in hell_ and _like I was on fire; I couldn't put it out._ (Id. at 100.) While Jodi was miserable because she believed she had disappointed the defendant, she continued to remain in the relationship because she believed she could do better and that she belonged with him. (Id. at 103.) 2. Events from October 1999 to August 2001 At some point, the defendant instructed Jodi to con vince her younger sister to travel to Maryland to visit and, when she arrived, to drug her with _ruffies_ 20 so the defendant could rape her. (See id. at 103-04.) Jodi was also directed to use the internet to recruit a new slave to join them in Maryland. (Id. at 104.) Because Jodi re fused to complete the first task and was unsuccessful with the second, the defendant told her that, the next time he visited, she would be so severely punished that she might not be able to work for some time afterwards. (Id. at 104, 207; Govt. Ex. 31.) In October 1999, the defendant arrived in Maryland, where he handcuffed Jodi to the wall and told her that he would punish her after he took a nap. (Tr. at 104.) While she was on the wall, Jodi testified that she had a moment of clarity and decided that she wanted to leave. (Id. at 104-5.) She told Celia, another woman serving the defendant, and Celia helped her get down. (Id. at 105.) Joanna awakened the defendant, who ordered that Jodi be returned to the wall. (Id.) When Jodi informed the defendant that she wanted to leave, he told her to shut up. (Id.) He then put a whiffle ball inside her mouth, closed her lips shut with surgical needles so that she was unable to speak, and placed a hood over her head. (Id. at 105-7.) While she was on the wall, he whipped and beat her with a cane extremely hard for an extended period of time and had sexual intercourse with her. (Id. at 106.) The defendant then took Jodi off the wall and attached her with handcuffs to a flat board, at which point he attempted to sew Jodi's vagina closed using a sewing needle and thread, only stopping when the needle broke. (Id. at 106-7.) A butt plug was in serted into her anus (Govt. Ex. 2C, at 369, 1223), and the defendant used a knife to carve his initials into the soles of her feet (Tr. at 107). While this incident was taking place, Jodi was crying and screaming. (Id. at 107.) The abuse was photographed and Jodi had to write a diary entry about it, and these were placed on the de fendant's website. (See Tr. at 109; Govt. Ex. 2C at 365-74, 1217-24.) This was the most extreme punish ment to which Jodi had ever been subjected. (Tr. at 123.) Prior to this experience, Jodi believed that she would be able to leave any time she wished. (Id. at 108.) However, after this episode, Jodi testified that she felt _completely beaten down,_ _trapped and full of terror._ (Id. at 108.) She no longer wished to be involved with the defendant and remained with him only out of fear . (Id. at 170.) In November 1999, Joanna told the defendant that she no longer wanted to serve him. (Id. at 125.) While both Jodi and Joanna were on the telephone with the defendant, he threatened to send photographs and a vi deotape of Joanna engaged in sexually explicit behavior to her father and to kill her godson if Joanna did not continue to serve him. (Id. at 127-29; see Govt. Ex. 12.) As a consequence, Jodi became terrified that, if she at tempted to leave the defendant, he would send pictures to her family or harm one of her family members. (Tr. at 128.) In January 2000, the defendant instructed Jodi to move to New York and stay at the apartment of a wo man named Rona, who, Jodi was told, had been his slave since she was 13 years old. (Id. at 134.) As Joanna had taken down the Subspace website, the defendant told Jodi to create and manage a new BDSM website entitled _Slavespace._ (Id.) After creating the website, Jodi worked on it approximately eight to nine hours a day, updating photographs and diary entries and clicking on banner advertisements to increase revenue and enhance its visibility on the internet. (Id. at 148-49.) Although she did not want to work on the website, she continued to do so because she was terrified of the consequences if she refused. (Id. at 149.) The defendant punished Jodi if she failed to post diary entries or pictures quickly enough or if the website made less money than he ex pected. (Id.) In April 2001, when the defendant was dis pleased with Jodi's work on the website, he put a safety pin through her labia and attached a padlock to it, clos ing her vagina. (Id. at 150-51.) In an attempt to stop Jodi from screaming and crying during this incident, Rona put a washcloth in Jodi's mouth and the defendant whipped her with a knife. (Id.) The defendant photo graphed this incident and the pictures were placed on the Slavespace website. (See Govt. Ex. 2C, at 543, 546-50.) All revenues made from the website went to the de fendant. (Tr. at 153.) The website had a section avail able exclusively to members, for which fees of approxi mately $30 per month were charged. (Id. at 145, 148.) The defendant made several hundred dollars per month from the member section of the site and an additional several hundred dollars from advertising. (Id. at 149-50, 153; Govt. Ex. 23.) During this period, the defendant continued to pun ish Jodi severely. For example, he once whipped Jodi so hard that she vomited. (Tr. at 154.) He also held a plas tic bag over her head until she passed out. (Id. at 155.) In another incident, he zipped Jodi into a plastic gar ment bag and choked her through the plastic. (Id. at 156). Each of these incidents was non-consensual and each was photographed for the website. (Id. at 154-57.) However, Jodi continued to stay with the defendant be cause she was terrified of his reaction if she left and feared that he might publicly expose her. (Id. at 158.) At one point, when she expressed to him how unhappy she was, the defendant threatened to send photographs of her to her family and the media. (Id. at 158-59.) In March 2001, Jodi called the defendant and told him that she wanted to leave, and he told her that she would first have to endure one final punishment. (Id. at 159-60.) Even though she was terrified, she agreed to do so because she feared the consequences if she did not comply. (Id. at 159-60.) The defendant drove her to the Long Island residence of a woman named Sherry, in structed her to take off her clothes, and then directed her to go to the basement. (Id.) As she was descending to the basement, Jodi realized that she could not go through with the punishment and the defendant forced her to go down the stairs. (Id. at 161.) Jodi started to scream and the defendant banged her head against a beam in the basement, bound her hands and ankles and attached her to the beam. (Id. at 161-62.) He then beat and whipped her for over an hour. (Id. at 162, 165.) While he was beating her, he told her that she belonged to him and needed to serve him. (Id. at 165) At various times, he removed the chair or box under her feet so that she was suspended from the ceiling by the ropes. (Id. at 162, 164.) He made her take a valium (id. at 164; Govt. Ex. 28) and put a large surgical needle through her tongue (Tr. at 164). Jodi continued to try to scream, even with the needle in her tongue. (Id. at 164.) The defendant then left her suspended for half an hour or 45 minutes, until her feet and hands became completely numb. (Id. at 165.) After letting her down, he took her to a bedroom and had sexual intercourse with her. (Id. at 166.) The defendant photographed Jodi throughout the punishment and forced her to write a diary entry about it to post on his website. (See id. at 165-67; Govt. Ex. 2C at 531-34, 536, 538, 540.) Jodi testified that, after this incident, she felt broken and terrified and as if there was no way she would be able to leave the relationship. (Tr. at 168.) She continued to live in Rona's apartment until August 2001. (Id. at 172.) 3. Events from August 2001 to 2003 In August 2001, Rona communicated to the defen dant that she did not want Jodi to live in her apartment any longer, and the defendant allowed Jodi to move out. (See id.) When Jodi obtained her own apartment, her interactions with the defendant became less frequent and less extreme. (Id. at 173.) However, she continued to stay involved with the defendant in order to maintain a semblance of control over his use of her pictures on the website. (Id. at 173, 175.) During this time period, the defendant posted diary entries on the website exposing personal information that Jodi had told him about her family. (Id. at 174; Govt. Ex. 2C, at 703-05.) He also posted a _Find Pooch_ contest on his website, offering a free membership to any person who photographed her on the street, and he provided information as to Jodi's whereabouts and the location of her apartment. (Tr. at 175, 186; Govt. Ex. 2C, at 3907, 3909.) Jodi maintained contact with the defendant until 2003. (Id. at 176.) DISCUSSION I. Rule 29 Motion The defendant asks the court to set aside his convic tions under Rule 29, contending that (1) the rule of len ity requires that the sex trafficking and forced labor statutes be construed narrowly and, therefore, are inap plicable to the conduct at issue; (2) the sex trafficking statute does not apply when the victim is coerced into pornography as opposed to prostitution; and (3) the evi dence is insufficient to show a nexus between the defen dant's conduct and the commercial sex act element of the sex trafficking statute or the labor or services ele ment of the forced labor statute. A. Standard of Review A defendant seeking a judgment of acquittal on the ground that the evidence was insufficient bears a heavy burden. United States v. Russo, 74 F.3d 1383, 1395 (2d Cir. 1996). The court must _consider the evidence in its totality, not in isolation, and the government need not negate every theory of innocence._ United States v. Au tuori, 212 F.3d 105, 114 (2d Cir. 2000). The court must also give deference to the jury's assessment of the credi bility of the witnesses and to its selection among com peting inferences. United States v. Pelaes, 790 F.2d 254, 259 (2d Cir. 1986). _The court must be careful to avoid usurping the role of the jury,_ Autuori, 212 F.3d at 114 (citation and internal punctuation omitted), and must not substitute its own determination of credibility or relative weight of the evidence for that of the jury. Id. _If the court concludes that either of the two results, a reasonable doubt or no reasonable doubt, is fairly possi ble, the court must let the jury decide the matter._ Id. (citation and internal punctuation omitted). A conviction challenged on sufficiency grounds will be affirmed if, viewing all the evidence in the light most favorable to the prosecution and drawing all reasonable inferences in its favor, a reviewing court finds that _any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt._ Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). _[T]he court may enter a judgment of acquittal only if the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt._ Uni ted States v. Guadagna, 183 F.3d 122, 130 (2d Cir. 1999) (citation and internal quotation marks omitted). B. Applicability of the Trafficking Victims Protection Act to the Conduct for which the Defendant was Con victed The defendant invokes the rule of lenity to contest the applicability of the sex trafficking and forced labor statutes to the conduct about which evidence was ad duced at trial. As the Supreme Court explained, ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity. . . . [W]hen choice has to be made between two readings of what conduct Congress has made a crime, it is appropri ate, before we choose the harsher alternative, to re quire that Congress should have spoken in language that is clear and definite. This principle is founded on two policies that have long been part of our tradi tion. First, a fair warning should be given to the world in language that the common world will under stand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possi ble the line should be clear. Second, because of the seriousness of criminal penalties, and because crimi nal punishment usually represents the moral con demnation of the community, legislatures and not courts should define criminal activity. This policy embodies the instinctive distaste against men lan guishing in prison unless the lawmaker has clearly said they should. Thus, where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant. United States v. Bass, 404 U.S. 336, 347-48, 92 S. Ct. 515, 30 L. Ed. 2d 488 (1971) (internal citations and quo tation marks omitted). The rule of lenity is only applica ble when there is a __grievous ambiguity or uncertainty in the language and structure of the Act.__ Chapman v. United States, 500 U.S. 453, 463, 111 S. Ct. 1919, 114 L. Ed. 2d 524 (1991) (quoting Huddleston v. United States, 415 U.S. 814, 831, 94 S. Ct. 1262, 39 L. Ed. 2d 782 (1974)). The statutes at issue here were enacted as part of the Trafficking Victims Protection Act of 2000 (_TVPA_), a sub-section of the Victims of Trafficking and Violence Protection Act of 2000. See Pub. L. No. 106-386, 114 Stat. 1464 (2000). In relevant part, the statutes provide as follows: 18 U.S.C. § 1589 (_the forced labor statute_) Whoever knowingly obtains the labor or services of another person . . . by threats of serious harm to, or physical restraint against, that person or another person [shall be guilty of a crime.] 18 U.S.C. § 1591(1) (_the sex trafficking statute_) Whoever knowingly . . . in or affecting interstate or foreign commerce . . . recruits, entices, harbors, transports, provides, or obtains by any means a per son . . . knowing that force, fraud, or coercion . . . will be used to cause the person to engage in a commercial sex act [shall be guilty of a crime.] The defendant makes two principal arguments as to why the court should find that these statutes are ambig uous such that the court should invoke the rule of lenity and set aside his convictions. First, the defendant con tends that the TVPA should not apply to _intimate, do mestic relationship[s]_ like the one at issue here. (Def.'s Mem. 1.) Second, the defendant argues that the applica tion of the sex trafficking and forced labor statutes to BDSM activities renders the statutory language ambig uous. (See id. at 17.) For the reasons stated below, the court finds both arguments to be without merit. 1. Applicability of the TVPA to Domestic, Intimate Relationships The defendant relies primarily on the legislative his tory of the TVPA to make the case that the charged statutes are inapplicable to intimate relationships. Ac cording to the defendant, the legislative history demon strates that these statutes were intended to respond to the _problem of international slave trafficking,_ which is _a far cry from acts of violence and abuse that take place in the context of an intimate personal relationship._ (Def.'s Mem. 14.) On this basis, he claims that his inti mate relationship with Jodi renders inapplicable (a) the _labor or services_ element of the forced labor statute and (b) the _commercial sex act_ element of the sex traf ficking statute. The court is not persuaded that the stat utory language of either statute is ambiguous such that a resort to the legislative history is appropriate and, moreover, finds that the legislative history fails to sup port the defendant's reading of the statutory language. Finally, to the extent that there are any ambiguities in the statutory language, the court finds that they are hypothetical only and inapplicable to the instant case. (a) Meaning of _Labor or Services_ in the Forced La bor Statute The defendant urges the court to invoke the rule of lenity to narrowly construe the phrase _labor or servic es_ in the forced labor statute on the ground that the phrase is ambiguous in the context of an intimate rela tionship. According to the defendant, this phrase could be understood to encompass either all forms of work included in the dictionary definition or it could mean on ly those forms of work for which a person would ordi narily be compensated. The defendant argues that the court should limit the ambit of the statute to labor or services for which compensation is ordinarily given in order to exclude household chores performed as part of an intimate living arrangement. (Def.'s Mem. 17.) Ac cording to the defendant, such a narrow interpretation of the term _labor or services_ is required to prevent a wide range of everyday conduct from falling within the reach of the statute. As the defendant's argument implicitly acknowl edges, the plain language of the statute provides no sup port for his contention. __A fundamental canon of statu tory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, con temporary, common meaning.__ Harris v. Sullivan, 968 F.2d 263, 265 (2d Cir. 1992) (quoting Perrin v. United States, 444 U.S. 37, 42, 100 S. Ct. 311, 62 L. Ed. 2d 199 (1979)). The ordinary meaning of the term _labor_ is an _expenditure of physical or mental effort especially when fatiguing, difficult, or compulsory._ Webster's Third New International Dictionary Unabridged (2002), available at http://www.mwu.eb.com; see also Chapman v. United States, 500 U.S. 453, 462, 111 S. Ct. 1919, 114 L. Ed. 2d 524 (1991) (relying on dictionary def inition to determine the ordinary meaning of the term _mixture_). The term _services_ is defined as _useful la bor that does not produce a tangible commodity._ Web ster's Third. These definitions yield scant support for the defendant's contention that the usual presence of compensation for the labor or services at issue should be a requirement for a conviction under the forced labor statute. Accordingly, the court finds no ambiguity in the statutory language. In making his claim that the court should limit the types of labor or services that fall within the statute's reach to those for which compensation is ordinarily giv en, the defendant relies primarily on the TVPA's legisla tive history. However, in the absence of ambiguity, "_[only] the most extraordinary showing of contrary in tentions' in the legislative history will justify a depar ture from [the statutory] language._ United States v. Albertini, 472 U.S. 675, 680, 105 S. Ct. 2897, 86 L. Ed. 2d 536 (1985) (quoting Garcia v. United States, 469 U.S. 70, 75, 105 S. Ct. 479, 83 L. Ed. 2d 472 (1984)). There fore, courts should only look to legislative history to in terpret unambiguous statutes in _rare and exceptional circumstances._21 Garcia, 469 U.S. at 75, 105 S. Ct. 479 (citation and internal quotation marks omitted); see also United States v. Giordano, 442 F.3d 30, 40-41 (2d Cir. 2006) (finding the rule of lenity and use of legislative history inappropriate when the statute unambiguously reaches the conduct at issue). The court does not find the requisite extraordinary circumstances to be present here. The defendant argues that the legislative history of the TVPA shows that the statute was only meant to pro scribe conduct that compels the victim to provide labor or services _for a business purpose._ (Def.'s Reply 3.) However, the court finds no justification for this conten tion. While the legislative history of the TVPA undoubt edly focuses primarily on the need to combat interna tional sex trafficking, the Congressional purpose and findings of the TVPA make clear the intended broad scope of the legislation. The stated purpose of the TVPA is _to combat trafficking in persons, a contempo rary manifestation of slavery whose victims are predom inantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims._ See § 102(a), 114 Stat. at 1466. Among the Congres sional findings are the following: (3) Trafficking in persons is not limited to the sex industry. This growing transnational crime also in cludes forced labor and involves significant violations of labor, public health, and human rights standards worldwide. (4) . . . Traffickers lure women and girls into their networks through false promises of decent working conditions at relatively good pay as nannies, maids, dancers, factory workers, restaurant workers, sales clerks, or models. Traffickers also buy children from poor families and sell them into prostitution or into various types of forced or bonded labor. . . . (6) Victims are often forced through physical vio lence to engage in sex acts or perform slavery-like labor. Such force includes rape and other forms of sexual abuse, torture, starvation, imprisonment, threats, psychological abuse, and coercion. § 102(b), 114 Stat. at 1466-67. While the court observes that Congress did not expressly indicate its desire to regulate labor or services performed within the house hold, the legislative history provides no cause to believe that Congress intended that type of labor to be excluded from the legislation's reach. In fact, the conference re port on the TVPA expressly indicates the intention of Congress that § 1589 be used to regulate such conduct, emphasizing that: it is intended that prosecutors will be able to bring more cases in which individuals have been trafficked into domestic service, an increasingly common occur rence, not only where such victims are kept in ser vice through overt beatings, but also where the traf fickers use more subtle means designed to cause their victims to believe that serious harm will result to themselves or others if they leave, as when a nan ny is led to believe that children in her care will be harmed if she leaves the home. H.R. Conf. Rep. 106-939, 106th Cong. (Oct. 5, 2000). Moreover, while the legislative history does not address situations where traffickers have intimate relationships with their victims, the court's survey of the TVPA's leg islative history reveals no expressed intention to pre clude criminal liability in those contexts.22 Accordingly, the court follows the Supreme Court in Smith v. United States, 508 U.S. 223, 113 S. Ct. 2050, 124 L. Ed. 2d 138 (1993), and concludes that, _[h]ad Congress intended the narrow construction [the defendant] urges, it could have so indicated. It did not, and we decline to introduce that additional requirement on our own._ Id. at 229, 113 S. Ct. 2050. The defendant relies on United States v. Kozminski, 487 U.S. 931, 108 S. Ct. 2751, 101 L. Ed. 2d 788 (1988), for the proposition that the court should invoke the rule of lenity in order to avoid an unduly broad interpreta tion of the statute. (See Def.'s Reply 4-6.) Kozminski involved the convictions of three family members on charges that they had participated in the abduction of two mentally retarded men and then coerced them to work for up to 17 hours a day, seven days a week, ini tially for $15 per week, and later for no pay. 487 U.S. at 934-35, 108 S. Ct. 2751. The Supreme Court held that the term _involuntary servitude_ in 18 U.S.C. § 241 and 18 U.S.C. § 1584 should be construed narrowly to ex clude the use of psychological coercion to compel an indi vidual into working. 487 U.S. at 809, 108 S. Ct. 2667. The Court found that extending the reach of those stat utes beyond physical or legal coercion _would appear to criminalize a broad range of day-to-day activity,_ and _fail [s] to provide fair notice to ordinary people who are required to conform their conduct to the law._ Id. Be cause the district court's instruction on the definition of _involuntary servitude_ could have been interpreted to include the exercise of psychological coercion, the Su preme Court reversed the convictions and ordered a new trial. Id. at 811, 108 S. Ct. 2667. Kozminski does not compel the court to adopt the defen dant's interpretation of the statute. In fact, the TVPA's legislative history makes clear that Congress enacted § 1589 as a response to the Supreme Court's decision in Kozminski. In its findings on enacting the TVPA, Con gress observed: Involuntary servitude statutes are intended to reach cases in which persons are held in a condition of ser vitude through nonviolent coercion. In United States v. Kozminski, 487 U.S. 931, 108 S. Ct. 2751, 101 L. Ed. 2d 788 (1988), the Supreme Court found that sec tion 1584 of title 18, United States Code, should be narrowly interpreted, absent a definition of involun tary servitude by Congress. As a result, that section was interpreted to criminalize only servitude that is brought about through use or threatened use of physical or legal coercion, and to exclude other con duct that can have the same purpose and effect. § 102(b)(13), 114 Stat. at 1467. The conference report on the TVPA further clarifies that: _Section 1589 will pro vide federal prosecutors with the tools to combat severe forms of worker exploitation that do not rise to the level of involuntary servitude as defined in Kozminski._ H.R. Conf. Rep. No. 106-939; see also United States v. Brad ley, 390 F.3d 145, 150 (1st Cir. 2004) (_section 1589 was intended expressly to counter [ Kozminski ]_). Thus, in passing the TVPA, Congress made clear its intent that this statute be applied broadly in order to capture con duct that the Supreme Court had ruled beyond the reach of the statutes prohibiting involuntary servitude. Of course, the quoted language primarily reflects Congress' intention that the _serious harm_ provision of § 1589 be interpreted expansively. Yet, the court also finds this history to be a persuasive indication that courts should be cautious about reading into this statute additional requirements not compelled by either the statute's plain language or its legislative history. The defendant additionally points to Williams v. United States, 458 U.S. 279, 102 S. Ct. 3088, 73 L. Ed. 2d 767 (1982) to support his argument that it is appropriate to narrowly construe an unambiguous statute in order to avoid bringing an overly broad range of conduct within the scope of federal law. However, Williams is clearly distinguishable from the instant case. Williams con cerned the issue of whether knowingly depositing a check not supported by sufficient funds constituted a _false statement_ in violation of 18 U.S.C. § 1014. The Supreme Court observed that this interpretation of the statute ran contrary to its literal meaning because _a check is not a false assertion at all, and therefore cannot be characterized as _true_ or _false.__ Williams, 458 U.S. at 284, 102 S. Ct. 3088. The Williams court acknowl edged that the government's argument to the contrary was plausible but emphasized that it _slights the word ing of the statute._ Id. (quoting United States v. En mons, 410 U.S. 396, 399, 93 S. Ct. 1007, 35 L. Ed. 2d 379 (1973)). Given that the government's suggested inter pretation also lacked support in the statute's legislative history and would greatly expand federal criminal liabil ity, the Supreme Court held that depositing bad checks did not constitute a violation of § 1014. Id. at 290, 102 S. Ct. 3088. In so holding, the Court stressed that the stat ute is _not unambiguous_ and _both readings . . . are plausible._ Id. In contrast, the forced labor statute is unambiguous and the text yields no support for the de fendant's interpretation. Further, the court is unconvinced that relying on the ordinary meaning of _labor or services_ would unduly broaden the statute's reach. As an example of the po tential ramifications of relying on the dictionary defini tion, the defendant explains that such an interpretation would enable a conviction under the statute if a couple jointly operated a bed and breakfast and their relation ship became abusive. (Def.'s Mem. 18.) The defendant argues that, while work performed in relation to the operation of the bed and breakfast or performance of household chores could be considered labor, the statute should not be interpreted to proscribe coerced conduct of this nature. (Def.'s Mem. 18.) The court disagrees. Contrary to the defendant's argument, interpreting the terms _labor_ and _services_ in light of their ordinary, everyday meaning would not extend federal criminal liability to abusive domestic relationships more gener ally because § 1589 requires a link between the physical restraint or threats of serious harm and the obtaining of labor or services. Using the defendant's examples, if one spouse uses the means proscribed by the statute to coerce his spouse into performing domestic chores or tasks related to the operation of the bed and breakfast, a trier of fact would be able to find a violation of the forced labor statute. The court sees no reason why the existence of a domestic partnership between two individ uals should preclude criminal liability if one person knowingly uses _threats of serious harm to, or physical restraint against, that person or another person,_ to obtain labor or services.23 See § 1589. Finally, the defendant's arguments on this claim are purely hypothetical, as the labor or services at issue in the instant case fall within the defendant's proposed definition of the terms. Based on the evidence presen ted at trial, the tasks Jodi performed at the defendant's behest are not household chores but rather labor or ser vices that would, in fact, ordinarily have been compen sated. For example, the jury asked the court to clarify whether the following acts could fall within the meaning of labor in the forced labor count: _setting up and main taining websites, writing diaries, posing for pictures, HTML coding, clicking ads, recruiting services of other trainees, [and] commercial sex acts._ (Tr. at 1428; Ct. Ex. 20.) As outlined in the court's recitation of the facts, the evidence suggests that Jodi engaged in each of these acts and that the defendant profited from displaying the fruits of her labor on the Slavespace website. The de fendant has provided no reasoned explanation why these acts should be excluded from the reach of the phrase _labor or services_ in § 1589, and the court finds none. (b) Meaning of _Commercial Sex Act_ in the Sex Traf ficking Statute The defendant additionally contends that the mean ing of the term _commercial sex act_ in 18 U.S.C. § 1591 is ambiguous because it _may be deemed to include all sexual behavior provided that the defendant somehow profits from it; or, it may be limited to sexual conduct which falls outside the scope of the intimate relationship between the defendant and the complainant._ (Def.'s Mem. 17.) The court finds this argument nonsensical, as the statute's plain language refutes the former interpre tation. Section 1591 proscribes trafficking a person knowing that _force, fraud, or coercion . . . will be used to cause the person to engage in a commercial sex act._ 18 U.S.C. § 1591(a). The statute defines a com mercial sex act as _any sex act, on account of which any thing of value is given to or received by any person._ Id. § 1591(c)(1). So, while a commercial sex act is quite broadly defined in the statute, the requirement that it be a product of force, fraud or coercion precludes the potential broad sweep about which the defendant ex presses concern. As will be discussed below, see infra Section I(D)(1), the government has presented sufficient evidence to show that the commercial sex acts at issue here were not a product of an intimate relationship but, rather, were obtained through force, fraud or coercion. For these reasons, the court rejects the defendant's contention that his conviction should be overturned be cause the TVPA was never meant to regulate conduct that occurs within a domestic, intimate relationship. The court finds that, as long as the evidence is sufficient to establish that the required elements of each statute are present, the mere existence of a past or present do mestic, intimate relationship should not preclude convic tion 2. Applicability of the TVPA to BDSM Conduct The defendant argues that various aspects of the statutes at issue become ambiguous when applied to a BDSM relationship. The court finds that any ambigu ities in the statutes were already resolved in the defen dant's favor at trial and, therefore, a judgment of acquit tal on these grounds is unwarranted. (a) Meaning of _Physical Restraint_ and _Serious Harm_ in the Forced Labor Statute The defendant contends that the terms _physical re straint_ and _serious harm_ in the forced labor statute become ambiguous when applied to BDSM conduct be cause threats of serious harm and physical restraint may be part of a consensual BDSM relationship. (Def.'s Mem. 17.) However, the defendant raised these con cerns in his objections to the government's proposed jury instructions, and the court construed the statute narrowly in order to explicitly exclude consensual BDSM conduct. Accordingly, the court instructed the jury: Throughout the trial, you have heard evidence about sexual practices called Bondage, Discipline/Domina tion, Submission/Sadism, Masochism, or _BDSM,_ that may involve actual physical restraint, such as being tied up or placed in a cage. The mere fact that a person was physically restrained during the course of such acts does not necessarily mean that the stat ute was violated. For example, if the physical re straint was consensual, then it would not constitute a violation of the statute. It is for you to decide, based on a careful consideration of all the facts and surrounding circumstances, whether the acts of physical restraint violated the statute. (Jury Charge, Dkt. No. 202 [hereinafter _Jury Chg._] 21, 17.) With regard to _threats of serious harm,_ the court referred the jury to the definition given in the court's instruction on sex trafficking, where the court instructed the jury that _the threats must be improper and must involve consequences that are sufficient, under all the surrounding circumstances, to compel or coerce the vic tim into engaging in a commercial sex act that the victim would not otherwise have willingly engaged in._ (Id. at 21, 16.) Thus, the court has already adopted the con struction of the statute currently urged by the defen dant in his motion for a judgment of acquittal. As will be discussed below, see infra Section I(D)(2), the evidence is sufficient to support the defendant's forced labor con viction when the statute is construed in a manner that excludes consensual BDSM conduct from its reach. (b) Meaning of _Force_ and _Coercion_ in the Sex Trafficking Statute With respect to the sex trafficking statute, the defen dant similarly contends that the terms _force_ and _co ercion,_ when given their ordinary meaning, may encom pass consensual BDSM conduct. (Def.'s Mem. 17.) Again, the court agrees with the defendant that it is ap propriate to construe these terms narrowly to avoid criminalizing consensual conduct. In the court's instruc tions to the jury, the court defined the term _coer cion_ as _threats of serious harm to or physical restraint against any person, or any scheme, plan, or pattern in tended to cause a person to believe that failure to per form an act would result in serious harm to or physi cal restraint against any person._ (Jury Chg. 16.) The court defined the terms _physical restraint_ and _threats of serious harm_ in the same manner described in the previous section, which explicitly excluded consen sual conduct. (See id.) The court observes that the term _force_ was defined more broadly in the jury instructions, as _any form of violence, compulsion or constraint exercised upon an other person in any degree._ (Id.) However, this defini tion was followed in the same section by the court's ex plicit instruction that physical restraint as part of con sensual BDSM conduct would not constitute grounds for a conviction under the statute (see id. at 17), a caveat that should have cured any ambiguity about the statute's scope vis-á-vis consensual conduct.24 In any event, for the purposes of the defendant's sufficiency challenge, see infra Section I(D)(1), the court will only consider applications of force that the government presented suf ficient evidence to show were non-consensual. (c) Meaning of _Includes_ in the Aggravating Ele ment of the Forced Labor Statute In addition, the defendant contends that the relation ship of the aggravating element of aggravated sexual abuse to the violation of the forced labor statute is am biguous. (Def.'s Mem. 17.) The forced labor statute pro vides a statutory aggravating element when _the viola tion [of the statute] includes . . . aggravated sexual abuse._ 18 U.S.C. § 1589. According to the defendant, it is unclear whether any non-consensual sexual conduct in the course of BDSM activities is sufficient to satisfy this element or whether such conduct must be under taken in order to obtain the labor or services at issue. While the court recognizes that, in other cases, a broad er interpretation of the aggravating element may be ap propriate, the court construed this element quite nar rowly in its jury charge. The court instructed the jury that _the government must prove that the defendant obtained the labor and services of Jodi through the use of, in whole or in part, . . . aggravated sexual abuse._ (Jury Chg. 25.) The court finds that this definition makes clear the requisite nexus between the aggravated sexual abuse and the violation of the statute. The defen dant does not argue that there was insufficient evidence to enable the jury to find that the conduct at issue fit within the court's more narrow construction of the statu tory aggravating factor, so there is no need to address that issue here. C. Photographs of Sex Acts as _Commercial Sex Acts_ under the Sex Trafficking Statute Next, the defendant claims that the government failed to establish that Jodi engaged in a _commercial sex act_ within the meaning of the sex trafficking statute because the commercial gain resulted from the depiction of sex acts rather than from the acts themselves. Essen tially, the defendant's interpretation of the term _com mercial sex act_ would limit the purview of the statute to prostitution and exclude pornography. The court finds no support for this contention. As explained above, see supra Section I(B)(1)(b), the statute broadly defines a commercial sex act as _any sex act, on account of which anything of value is given to or received by any person._ 18 U.S.C. § 1591(c)(1). The statutory language provides no basis for limiting the sex acts at issue to those in which payment was made for the acts themselves; ra ther, the use of the phrase _on account of which_ sug gests that there merely needs to be a causal relationship between the sex act and an exchange of an item of value. If Congress had intended to limit the commercial sex acts reached by the statute to prostitution, it could have easily drafted the statute accordingly. The court's more expansive understanding of the term is supported by the statute's purpose, which was to protect individuals from being victimized by trafficking. In particular, the Congressional findings in the TVPA include the recognition that _[t]he sex industry has rap idly expanded over the past several decades. It involves sexual exploitation of persons, predominantly women and girls, involving activities related to prostitution, pornography, sex tourism, and other commercial sexual services._ § 102(b)(2), 114 Stat. at 1466. The findings also noted the lack of a _comprehensive law . . . that penalizes the range of offenses involved in the traffick ing scheme._ § 102(b)(14), 114 Stat. at 1467. As the gov ernment points out, construing the commercial sex acts included within the ambit of the statute broadly focuses the trier of fact's inquiry on whether a given individual has been sexually exploited for profit, rather than on whether traffickers profited directly or indirectly from the exploitation, and is therefore more consistent with the statute's purpose. (See Govt.'s Resp. 17.) In the absence of any ambiguity in either the statu tory language or the legislative history, the court finds that a narrow construction of the statute restricting its reach to prostitution is unwarranted. Accordingly, the court concludes that, for purposes of criminal liability under the sex trafficking statute, a commercial sex act may include sexual acts that are photographed for com mercial gain. The defendant has not contested that he derived financial benefit from photographs of Jodi en gaging in sex acts as defined in the jury charge25- indeed, the Slavespace website is replete with them (see, e.g., Govt. Ex. 2C, at 522, 525-28, 1223, 1830-35, 1846-49, 1852-69, 2557-2565, 3956)-and, therefore, no further review of the sufficiency of the evidence in this regard is required. D. Sufficiency of the Evidence with Regard to the Nexus between the Defendant's Abuse of the Victim and a Commercial Sex Act or Labor and Services The defendant makes two additional arguments as to why the evidence is insufficient to support his convic tion: (1) the government failed to establish a sufficient nexus between the defendant's conduct and the commer cial sex acts at issue; and (2) the evidence does not show a link between the defendant's abuse of Jodi and the labor and services provided by Jodi. According to the defendant, the evidence establishes, at best, only that the defendant forced Jodi to continue a sexual relation ship with him against her will but not that his abuse was intended to cause her to engage in a commercial sex act or to provide labor or services. (Def.'s Mem. 21-22). The defendant analogizes the instant case to one in which a husband sexually assaults his wife and explains, _[j]ust as the husband's act of sexual assault is not de signed to compel his wife to perform the domestic ser vices that are incidental to most marriages, such as the cooking, shopping and cleaning, the defendant's acts of violence were not designed to compel the complainant's services on his website._ (Id. at 22.) For the reasons stated below, the court dismisses these claims. 1. Nexus between the Defendant's Conduct and a _Commercial Sex Act_ under the Sex Trafficking Statute As the court instructed the jury, the government was required to prove three elements beyond a reasonable doubt in order for the jury to find the defendant guilty of sex trafficking in violation of 18 U.S.C. § 1591. The government had to prove that: (1) the defendant en gaged in a prohibited trafficking activity; (2) the defen dant's trafficking activity affected interstate commerce; and (3) the defendant knowingly used force, fraud or coercion to cause the trafficked individual to engage in a commercial sex act. (Jury Chg. 13-14.) The defendant submits that the government failed to establish the third element of this offense, because the evidence is insuffi cient to show a relationship between the force, fraud, or coercion employed by the defendant and the commercial sex acts at issue. The court finds the defendant's argu ment in this regard unpersuasive. There are at least two instances in which a reason able jury could have found, based on the evidence pre sented at trial, that the defendant's non-consensual ap plication of force directly caused Jodi to engage in a commercial sex act. First, in October 1999, after Jodi communicated to the defendant that she wanted to leave him, he beat her severely and then, while Jodi was hand cuffed to a board with a whiffle ball in her mouth and needles through her lips, he ordered Joanna to insert a butt plug in Jodi's anus. (See Tr. at 105-07; Govt. Ex. 2C, at 368-70.) Because the photograph of Jodi bound and gagged with the butt plug inserted was posted on the Slavespace website (see Govt. Ex. 2C, at 374, 1223) and the defendant received revenue from this site (see Tr. at 149-50, 153; Govt. Ex. 23), a jury could find that this act constitutes a commercial sex act as defined in the previous section. Jodi's testimony that she had just told the defendant she wanted to leave, that she was screaming and crying throughout the incident, and that she was physically restrained is more than sufficient to allow a reasonable jury to draw the inference that the defendant used force to cause her, in whole or in part, to engage in this act. Second, in January 2001, while Jodi's hands were tied with rope, the defendant pierced Jodi's labia with a safety pin and attached a padlock to it (see Tr. at 150-51), and a series of photographs depicting this inci dent were placed on the website (see Govt. Ex. 2C, at 546-51, 1846-59.) A reasonable jury would have been able to draw the conclusion that this constitutes a com mercial sex act as previously defined. The jury would also be able to reasonably infer that the defendant's use of force caused Jodi to engage in this act, based on Jodi's testimony that this incident took place during the time period that she was with the defendant non-consensual ly, that she was bound, that a wash cloth was put in her mouth to silence her screaming, and that the defendant whipped her with a knife to keep her from crying. In addition, the photographs of Jodi's face during the inci dent, in which she appeared to be screaming and experi encing pain (see id. at 1840-43), further support the rea sonableness of such an inference. More generally, the evidence presented at trial was also sufficient to support the inference that the de fendant's use of force, fraud and coercion to prevent Jodi from leaving were not only aimed at preserving their sexual relationship but also intended to main tain her services as a model for his commercial website. Evidence was presented at trial that, on two separate occasions-in October 1999 and March 2001-Jodi told the defendant she wanted to leave the relationship and he severely punished her. (See Tr. at 104-09; 159-68.) Jodi testified that, after both of these experiences, she was unable to leave the defendant because she was ter rorized with fear. (See Tr. at 108, 168, 170.) On the ba sis of this evidence, a jury could find that the defen dant's use of force on these occasions served as a threat of serious harm to Jodi should she try to leave in the future and, thereby, constituted coercion. The jury could have also reasonably concluded that the defendant used non-physical threats to coerce Jodi into maintaining her relationship with the defendant. In particular, Jodi testified that, when she expressed her unhappiness in the relationship and broached the sub ject of leaving, the defendant threatened to send sexu ally explicit pictures to her family and the media. (See Tr. at 158-59.) Given Jodi's testimony that Jodi was on the telephone when the defendant threatened to kill Jo anna's godson and send pictures to Joanna's family, the defendant's threats to Joanna could also be interpreted as intended to coerce Jodi into staying. The evidence further suggests that Jodi's services as a model on the defendant's website were an important part of their relationship. Jodi's testimony and the bin der of excerpts from the Slavespace website indicate that significant numbers of the encounters between Jodi and the defendant were photographed and placed on the site. The government presented evidence that, aside from the Slavespace website, the defendant's only other sources of income during the relevant time period were the women serving him, sales of a small number of comic books, and revenue from another website he owned that was eventually shut down. (See Tr. at 212, 437-38.) Thus, the jury could infer that it was important to the defendant to maintain the several hundred dollars a month earned in membership and advertising revenues from Slavespace. This impression is reinforced by the defendant's statement to Jodi in November 1999 to the effect that he did not want to hear anything from _it_ _except how my site is doing._ (Govt. Ex. 30, at 1.) Fur ther, Jodi testified that the defendant demonstrated an active interest in the site and its earnings, monitoring the site daily and checking on the membership and ad vertisement revenues earned and the website's popular ity ratings. (See Tr. at 401.) Based on this evidence, it would be reasonable to infer that the defendant sought to perpetuate his relationship with Jodi-at least in part-to photograph her BDSM activities, including those that constitute sex acts, in order to place them on his website and earn revenue from them. The defendant argues that the existence of a prior consensual relationship between the defendant and Jodi in which the infliction of punishment and pain was part of their mutual sexual gratification makes it impossible to determine whether the defendant abused Jodi to com pel the performance of a commercial sex act. He argues that the violence inflicted could also have been for pure ly sexual pleasure or as a means to reinforce their previ ously agreed-upon roles in the relationship. (Def.'s Re ply 6.) The court acknowledges that the issue of whe ther the government proved beyond a reasonable doubt that the defendant used non-consensual force, fraud or coercion to cause Jodi to engage in a commercial sex act is difficult and complicated. However, this was precisely the question that the jury was charged with resolving (see Jury Chg. 16), and the evidence was adequate to support its conclusion. The existence of other potential motivations for the defendant's behavior does not alter the court's determination in this regard. 2. Nexus between the Defendant's Conduct and _La bor or Services_ under the Forced Labor Statute A conviction of forced labor under 18 U.S.C. § 1589 required the government to prove beyond a reasonable doubt that (1) the defendant obtained the labor or ser vices of another person; (2) the defendant did so by us ing either (a) threats of serious harm to, or physical re straint against, that person or any other person; or (b) a scheme, plan or pattern intended to cause the per son to believe that non-performance would result in seri ous harm to, or physical restraint against, that person or any other person; and (3) the defendant acted knowing ly. (Jury Chg. 19-20.) The court instructed the jury that the government was not required to link specific threats or actions taken against Jodi to particular labor tasks she performed. (See Jury Chg. 22.) Instead, the gov ernment needed to establish that there was a connection between the threats made or physical restraint by the defendant and the labor and services she rendered. (Id.) Thus, the government could satisfy the second element by showing a connection between punishments imposed by the defendant and the labor or services at issue or a climate of fear that was sufficient to cause her to per form labor or services against her will. (Id.) The defen dant argues that the government's evidence was insuffi cient because the punishments imposed by the defen dant were part of his intimate relationship with Jodi and were unconnected with obtaining her labor or services on the website. This argument is meritless. Based on Jodi's testimony, the jury could have rea sonably found the requisite connection between punish ments imposed by the defendant and her provision of labor and services on the website. Jodi explained that the defendant punished her when she did not upload diary entries or photographs to the website as quickly as the defendant wanted or when the website was not mak ing enough money to please the defendant. (Tr. at 149). When asked to identify the most severe punishment she recalled related to her work on the website, she re counted the April 2001 incident in which the defendant pierced her labia with a safety pin. (Id. at 150-51.) Even though Jodi did not detail precisely what she had done to incur this punishment, the jury could still reasonably believe that this incident was connected to her tasks on the Slavespace website. The ability of a fact finder to reasonably presume that the defendant's punishments compelled Jodi's work on the website is buttressed by her testimony that she only worked on the website be cause she knew she would be severely punished if she refused. (See id. at 149.) Thus, a reasonable jury could find that the defendant obtained Jodi's labor on his website through a persistent pattern of punishing her when he was dissatisfied with her work. The defendant claims that the evidence is insufficient to support a connection between the punishments and Jodi's labor on the website based on Jodi's testimony that she was _always being punished_ for being disobe dient and could be punished _for no reason at all._ (Id. at 207.) According to the defendant, the only reasonable inference that could be drawn is that the defendant's punishments were sexual in nature and intended only to reinforce his status in their BDSM relationship. (Def.'s Mem. 23.) However, that the defendant would, at times, randomly punish Jodi does not prevent a fact finder from crediting Jodi's testimony that there was, on other occasions, a direct connection between the punishments he inflicted and Jodi's performance with regard to the website. Moreover, the occasional randomness of the violence could reasonably be interpreted as an attempt to enhance Jodi's fear of being punished and her desire to minimize instances where she provoked the defen dant's anger. The evidence also suffices to establish that the defen dant's actions to maintain Jodi in a relationship with him were aimed at compelling her to provide labor and ser vices. As described above, see supra I(D)(1), it would be reasonable to believe that the defendant knowingly used force and coercion to maintain a non-consensual rela tionship with Jodi from October 1999 to August 2001. Based on the evidence presented by the government, the defendant also employed force and coercion in an at tempt to maintain his relationship with Joanna, who maintained the Subspace website. When his efforts were unsuccessful, the defendant became reliant on Jodi to create and maintain the Slavespace website, and she devoted a significant amount of time daily to this task. Based on the economic importance of the website to the defendant, as previously described, see supra I(D)(1), a reasonable jury could conclude that the defendant kept Jodi in a relationship against her will in order to obtain her labor on his site. Accordingly, the defendant's Rule 29 motion is de nied. While this case undoubtedly presents a novel ap plication of the forced labor and sex trafficking statutes, the evidence at trial was sufficient to show that defen dant's conduct fell within the plain language of the stat utes. To the extent that the BDSM conduct at issue cre ated any ambiguities in interpreting the evidence, the court construed the statute in the defendant's favor. The defendant has failed to persuade the court that the TVPA's legislative history or any other factor merits setting aside the defendant's conviction. II. Rule 33 Motion In the alternative, the defendant argues that the court should order a new trial so that the jury can be in structed that it must find that the defendant's _domin ant purpose_ in employing force or coercion was to ob tain a commercial sex act or labor or services in order to convict under the sex trafficking statute and the forced labor statute, respectively. The defendant continues to express the concern that he was convicted for sexual conduct within an intimate relationship and emphasizes that the BDSM conduct at issue likely complicated the jury's interpretation of the legal elements of the stat utes. (See Def.'s Mem. 24.) For the reasons stated be low, the defendant's motion is denied. The court deter mines that the defendant has failed to provide a suffi cient basis for importing such a _dominant purpose_ requirement into the statutes. Further, given the evi dence presented at trial, the court is persuaded that a commercial purpose sufficiently animated the defen dant's conduct towards Jodi that the existence of any ad ditional motives for the behavior leading to his convic tion does not satisfy the requirements of Rule 33. A. Standard of Review Rule 33 provides that a court may vacate a judgment and grant a new trial _if justice so requires._ The dis cretion granted under the rule is broad, but far from unfettered, and the relief available under the rule is to be granted _with great caution and in the most extraor dinary circumstances._ United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992). _The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice._ United States v. Fergu son, 246 F.3d 129, 134 (2d Cir. 2001). _There must be a real concern that an innocent person may have been con victed._ Sanchez, 969 F.2d at 1414. In exercising its discretion under Rule 33, _the court is entitled to weigh the evidence and in so doing evaluate for itself the credi bility of the witnesses._ Id. at 1413 (citation and internal quotation marks omitted.) B. Defendant's Claim that a Conviction Requires the Jury to Find that the _Dominant Purpose_ of the Force or Coercion was to Obtain the Commercial Sex Act or Labor or Services With respect to the sex trafficking statute, the court instructed the jury that a conviction required the gov ernment to prove that _the trafficking activity was un dertaken for the purpose of causing a person to engage in a commercial sex act._ (Jury Chg. 17.) Similarly, the court instructed the jury that a conviction under the forced labor statute required the government to prove that the defendant used threats or employed prohibited actions _for the purpose of obtaining labor or services._ (Id. at 23.) While the defendant did not contest these instructions at trial, 26 he now argues that a new trial is warranted so that the jury may be tasked with deter mining whether obtaining the commercial sex act or la bor or services was a _dominant purpose_ of the defen dant's use of coercion or threats. (Def.'s Reply 7-9.) The defendant relies on United States v. Sirois, 87 F.3d 34 (2d Cir. 1996), and United States v. Miller, 148 F.3d 207 (2d Cir. 1998), for the proposition that the court should have instructed the jury that a conviction required it to find that one of the dominant purposes of the defendant's actions was to force Jodi to engage in the conduct at issue. In Sirois, the Second Circuit re viewed the district court's jury charge with respect to 18 U.S.C. § 2251(a). Section 2251(a) proscribes a variety of conduct done with _the intent that [any] minor engage in any sexually explicit conduct for the purpose of pro ducing any visual depiction of such conduct_ in inter state or foreign commerce. In Sirois, the district court had instructed the jury that, in order to convict the de fendant, _it is not necessary for the government to prove . . . that illegal sexual activity, or visual depiction of that activity, was the sole or even the dominant purpose of the minors being transported. It is enough if the evi dence shows that the illegal sexual activity was one of the dominant purposes of the trip._ 87 F.3d at 39. On appeal, Sirois argued that the jury should have been instructed that the statute required a finding that the production of visual depictions of illegal sexual activity constituted the sole dominant purpose of the transporta tion. Id. The Second Circuit rejected this argument, finding that the jury could convict under the statute so long as the evidence showed that such an end _was one of the dominant motives for the interstate transporta tion of the minors, and not merely an incident of the transportation._ Id. In Miller, the Second Circuit reaf firmed convictions under 18 U.S.C. § 2422 and 18 U.S.C. § 2423(a), which prohibit, respectively, coercing travel and transporting minors, when such activities are under taken with the intent that the victim engage in prostitu tion or other criminal sexual activity. See 148 F.3d at 207. The Miller court upheld the district court's charge to the jury, which tracked the above-referenced charge in Sirois, and rejected a similar challenge that the pro scribed activity had to be the sole dominant purpose of the defendant's conduct. See Id. at 211-12. Those cases are insufficient to persuade the court that the requisite extraordinary circumstances are pres ent mandating a new trial. Not only do Sirois and Mil ler interpret statutes different from those at issue here, but the Second Circuit never addressed the issue pres ently before the court, namely whether the district court was required to instruct the jury that the prohibited activity had to be a dominant purpose of the defendant's conduct. Further, the language of the sex trafficking and forced labor statutes do not suggest such a require ment, nor is the defendant able to point to any language in the legislative history suggesting that the reach of the statutes should be limited in this manner. Finally, the court is not convinced that a manifest injustice would result in the absence of a new trial. The defendant makes a valiant attempt to depict his conduct as, at worst, domestic violence and to paint any commer cial aspects as merely incidental to what was really an intimate relationship. However, such a characterization vastly understates the role that the defendant's website appeared to play in his relationship with Jodi. Jodi tes tified about a wide variety of intimate conduct between her, the defendant, and other women that was photo graphed and displayed, for a fee, on the defendant's website. Moreover, based on her testimony, she was forced to describe this conduct-in minute detail-for posting on the website, and she was also made to spend eight or more hours a day updating the website and clicking on banner advertisements. Meanwhile, accord ing to Jodi, the defendant monitored her work daily, punished her when her performance was not up to par and collected all of the proceeds of her labor on the website. The defendant has provided no reason why the court should question the jury's apparent determination that Jodi was a credible witness, and the court finds none. After a close review of the evidence presented at trial, the court finds the commercial aspects to be suffi ciently pervasive in the non-consensual portion of the relationship between Jodi and the defendant that a new trial on these grounds is not warranted. Accordingly, the defendant's Rule 33 motion is denied. CONCLUSION For the reasons given above, the defendant's motions for a judgment of acquittal pursuant to Fed. R. Crim. P. 29 and for a new trial under Fed. R. Crim. P. 33 are de nied. SO ORDERED.
APPENDIX C 9. UNITED STATES COURT OF APPEALS 10. FOR THE SECOND CIRCUIT No. 07-4005-cr UNITED STATES OF AMERICA, APPELLEE v. GLENN MARCUS, DEFENDANT-APPELLANT [Filed: Dec. 8, 2008] [Dated: Dec. 10, 2008] ORDER Appellee filed a petition for rehearing in banc from the opinion filed on August 14, 2008. A poll on whether to rehear this case in banc was conducted among the active judges of the Court upon the request of an active judge of the court. Because a majority of the Court's active judges did not vote in favor of rehearing in banc, rehearing in banc is hereby DENIED. FOR THE COURT: CATHERINE O'HAGEN WOLFE, CLERK By: /s/ FRANKLIN PERRY