US v. Alzanki
Case Date: 06/01/1995
Court: United States Court of Appeals
Docket No: 94-1645
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UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 94-1645 UNITED STATES OF AMERICA, Appellee, v. TALAL H. ALZANKI, Defendant, Appellant. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Rya W. Zobel, U.S. District Judge] ___________________ ____________________ Before Selya, Cyr and Stahl, Circuit Judges. ______________ ____________________ Michael A. Collora, with whom David A. Bunis and Dwyer & Collora __________________ ______________ _______________ were on brief for appellant. S. Theodore Merritt, Assistant United States Attorney, with whom ___________________ Deval L. Patrick, Assistant Attorney General, Donald K. Stern, United ________________ ________________ States Attorney, and Steven M. Dettelbach, Trial Attorney, United _____________________ States Department of Justice, were on brief for appellee. ____________________ June 1, 1995 ____________________ CYR, Circuit Judge. Defendant Talal H. Alzanki appeals CYR, Circuit Judge _____________ from a district court judgment convicting and sentencing him under 18 U.S.C. 371 and 1584, for holding a household employee in involuntary servitude. We affirm. I I BACKGROUND1 BACKGROUND __________ At the end of the Gulf War, Vasantha Katudeniye Gedara ("Gedara"), a native of Sri Lanka, was employed by appellant Talal Alzanki's family for a brief time as a domestic servant in their Kuwaiti residence. The Alzanki family prevented Gedara from leaving their residence, by retaining her passport and warning her that she would be subject to arrest and physical abuse by the Kuwaiti police should she venture outside. Gedara was informed that she soon would be sent to the United States to work for appellant Talal Alzanki and his wife, Abair, at a monthly salary of $250, which was reduced to $120 before she departed Kuwait. Immediately upon her arrival at appellant's apartment in Quincy, Massachusetts, on August 28, 1992, Gedara's passport was confiscated by appellant, who told her that she was not to leave the apartment alone. She was not permitted to use the ____________________ 1The facts are related in the light most favorable to the verdicts. See United States v. Tejeda, 974 F.2d 210, 212 (1st ___ _____________ ______ Cir. 1992). telephone or the mails, speak with anyone other than the Alzan- kis, nor even to venture onto the balcony or look out the apart- ment windows. Appellant told Gedara that the American police, as well as the neighbors, would shoot undocumented aliens who ventured out alone. During the four months she remained in the apartment, Gedara was assaulted twice. On one occasion, when Gedara asked that the volume be turned down on the television while she was trying to sleep, appellant grabbed and threw her bodily against the wall. On another occasion, Abair Alzanki slapped Gedara and spat in her face when she failed to turn off a monitor. The Alzankis deliberately risked Gedara's health by compelling her to work fifteen hours a day at hard, repetitive tasks. She was required to clean the apartment on a constant basis with caustic and noxious chemicals, without the benefit of respiratory protection, and her requests for rubber gloves were refused. Later, after the noxious fumes caused Gedara to faint, fall, and injure her ribs, the Alzankis withheld medical treat- ment. They also refused to let Gedara have dental treatment for an abscessed tooth. Finally, though affluent, the Alzankis denied Gedara adequate food, which resulted in serious symptoms of malnourish- ment, including enlarged abdomen, massive hair loss, and cessa- tion of menstrual cycles. She was provided with only two house- coats to wear and allowed to sleep and sit only on the floor. 3 3 Once, after Gedara accidentally broke a humidifier, the Alzankis threatened to withhold all her wages. In addition to the physical abuse and inhumane treat- ment, Gedara was threatened on almost a daily basis with deportation, death or serious harm should she disobey the Alzan- kis' orders. On numerous occasions, the Alzankis threatened to deport her to Kuwait, and not allow her to return to Sri Lanka. Appellant threatened to kill her if the Alzankis' newborn child suffering from spina bifida were to die while appellant was away in New York. The climate of fear was enhanced by Gedara's witnessing one incident involving Talal Alzanki's physical abuse of Abair, and by learning from Abair that he had struck Abair again shortly thereafter. On another occasion, Abair Alzanki threatened to sew up Gedara's mouth with a needle and thread, and throw her into the ocean. On December 17, 1992, after confiding her plight to nurses who came to the apartment to care for the Alzankis' sick child, Gedara fled the apartment and reported her ordeal to the local police. Appellant later complained to the police that Gedara should be returned, because she "belonged to him" and "he had a contract for her." A federal grand jury returned a two-count indictment, charging the Alzankis with conspiring to hold, and holding, Gedara in involuntary servitude, in violation of 18 U.S.C. 371 and 1584. At trial, the Alzankis testified in their own behalf; Gedara testified for the prosecution. Due to a medical emergen- 4 4 cy, a mistrial was declared as to Abair Alzanki, prior to her cross-examination. The government nonetheless agreed to permit her direct testimony to remain in evidence. The jury returned guilty verdicts against Talal Alzanki on both counts. The district court sentenced him to one year and one day, which represented a downward departure from the 18-to-24 month guide- line sentencing range, and to a modest restitutionary sentence. II II DISCUSSION DISCUSSION __________ Appellant challenges certain jury instructions; the sufficiency of the evidence supporting both convictions; various evidentiary rulings; the government's closing argument; and the $13,403.00 restitutionary sentence imposed by the district court. A. The Scope of the Involuntary Servitude Statute A. The Scope of the Involuntary Servitude Statute ______________________________________________ Section 1584 proscribes involuntary servitude.2 It is not to be read so narrowly as to pose Thirteenth Amendment problems. United States v. Kozminski, 487 U.S. 931, 945 (1988) _____________ _________ ("Congress' use of the constitutional language in a statute enacted pursuant to its constitutional authority to enforce the ____________________ 2At the time of the offense, the statute provided: Whoever knowingly and willfully holds to involuntary servitude or sells into any con- dition of involuntary servitude, any other person for any term, or brings within the United States any person so held, shall be fined not more than $5,000 or imprisoned not more than five years, or both. 18 U.S.C. 1584 (1992). 5 5 Thirteenth Amendment guarantee makes the conclusion that Congress intended the phrase to have the same meaning in both places logical, if not inevitable. In the absence of any contrary indications, we therefore give effect to congressional intent by construing 'involuntary servitude' in a way consistent with the understanding of the Thirteenth Amendment that prevailed at the time of 1584's enactment."); see also United States v. Booker, ___ ____ _____________ ______ 655 F.2d 562, 564-65 (4th Cir. 1981); United States v. Shackney, _____________ ________ 333 F.2d 475, 481-86 (2d Cir. 1964).3 The government need not prove physical restraint. See, e.g., United States v. King, 840 ___ ___ _____________ ____ F.2d 1276, 1278-79 (6th Cir. 1988) (upholding cult leaders' convictions for holding occupants in involuntary servitude, despite absence of fencing or other physical barriers); United ______ States v. Warren, 772 F.2d 827-33 (11th Cir. 1985) (upholding ______ ______ involuntary servitude conviction even though victim had opportu- nity to escape), cert. denied, 475 U.S. 1022 (1986); United ____ ______ ______ States v. Bibbs, 564 F.2d 1165, 1167 (5th Cir.) (recognizing that ______ _____ various forms of physical force and/or threats of violence may _____ _______ establish requisite coercion), cert. denied, 435 U.S. 1007 ____ ______ (1977). ____________________ 3Most peonage and involuntary servitude cases in recent years have involved migrant agricultural workers. See, e.g., ___ ____ Kozminski, 487 U.S. 931 (dairy farm workers); United States v. _________ _____________ Harris, 701 F.2d 1095, 1098 (4th Cir. 1982) (migrant truck-farm ______ workers), cert. denied, 463 U.S. 1214 (1983); Booker, 655 F.2d ____ ______ ______ 562 (migrant farm-labor camp); United States v. Bibbs, 564 F.2d _____________ _____ 1165, 1167 (5th Cir. 1977) (fruit harvesting crews), cert. ____ denied, 435 U.S. 1007 (1978); Shackney, 333 F.2d 475 (chicken- ______ ________ farm workers). 6 6 Absent proof of physical restraint, a finding of involuntary servitude is not warranted, however, unless the government establishes that the victim could only extricate herself by risking "imprisonment or worse." Shackney, 333 F.2d ________ at 486. Thus, compulsion is an essential element of involuntary servitude under section 1584. See Flood v. Kuhn, 316 F. Supp. ___ _____ ____ 271, 281 (S.D.N.Y. 1970), aff'd, 443 F.2d 264 (2d Cir. 1971), _____ aff'd, 407 U.S. 258 (1972). In sum, the requisite compulsion _____ under section 1584 obtains when an individual, through an actual or threatened use of physical or legal coercion, intentionally __ causes the oppressed person reasonably to believe, given her "special vulnerabilities," that she has no alternative but to remain in involuntary service for a time. See Kozminski, 487 ___ _________ U.S. at 952-53; United States v. Mussry, 726 F.2d 1448, 1451-52 ______________ ______ (9th Cir.), cert. denied, Singman v. United States, 469 U.S. 855 ____ ______ _______ _____________ (1984). A sustainable conviction under section 1584 therefore requires sufficient evidence to enable a finding, inter alia, _____ ____ that the defendant used or threatened physical restraint, bodily __ harm or legal coercion. Kozminski, 487 U.S. at 952 ("This __ _________ ____ definition encompasses those cases in which the defendant holds __________ ___________ _____ _____ __ _____ ___ _________ _____ the victim in servitude by placing the victim in fear of such ___ ______ __ _________ __ _______ ___ ______ __ ____ __ ____ physical restraint or injury or legal coercion.") (emphasis ________ _________ __ ______ __ _____ ________ added). Moreover, in assessing whether the government has succeeded in establishing the requisite compulsion, the jury is to consider the victim's "special vulnerabilities," with a view 7 7 to "whether the physical or legal coercion or threats thereof could plausibly have compelled the victim to serve [against her will]." Id.4 In other words, conviction under section 1584 is __ precluded absent proof, inter alia, that the victim was inten- _____ ____ tionally held in service against her will (i) by actual physical restraint or physical force or (ii) by legal coercion or (iii) by plausible threats of physical harm or legal coercion. B. Jury Instructions B. Jury Instructions _________________ We review the challenged jury instructions against the backdrop of the entire charge, see United States v. Tutiven, 40 ___ _____________ _______ F.3d 1, 8 (1st Cir. 1994) (citing United States v. Serino, 835 _____________ ______ F.2d 924, 930 (1st Cir. 1987)), cert. denied, 115 S.Ct. 1391 ____ ______ (1995), focusing our inquiry on whether the instructions ade- quately explained the law or "'whether they tended to confuse or mislead the jury on the controlling issues.'" Brown v. Trustees _____ ________ ____________________ 4The Kozminski Court elaborated on the evidentiary role of _________ the victim's "special vulnerabilities": [A] child who is told he can go home late at night in the dark through a strange area may be subject to physical coercion that results in his staying, although a competent adult plainly would not be. Similarly, it is pos- sible that threatening an incompetent with institutionalization or an immigrant with deportation could constitute the threat of legal coercion that induces involuntary ser- vitude, even though such a threat made to an adult citizen of normal intelligence would be too implausible to produce involuntary ser- vitude. 487 U.S. at 948. 8 8 of Boston Univ., 891 F.2d 337, 353 (1st Cir. 1989) (citation ________________ omitted), cert. denied, 496 U.S. 937 (1990). ____ ______ 1. The Instruction on Involuntary Servitude 1. The Instruction on Involuntary Servitude ________________________________________ Appellant asserts three challenges to the jury instruc- tion defining the substantive offense of involuntary servitude. First, he argues that the court misled the jury into believing that psychological pressure alone could establish the requisite element of compulsion, by defining "physical force" as encompass- ing "the notion of compulsion, coercion, power, violence." The district court's instruction stated: [T]he government has to prove that the defen- dant held Ms. Gedara in involuntary servitude by using or threatening physical force, or using or threatening legal coercion. Physical force includes restraint, physical restraint, locking somebody up, or in some other way restraining the person. It in- cludes physically injuring the person. It includes the notion of compulsion, coercion, power, violence. And the government has to _____ prove that the defendant held or participated in holding Ms. Gedara by using physical force, or by threatening to use physical force. (Emphasis added.) Appellant theorizes that the jury may have misinterpreted the term "power," in light of the expert testimony proffered by the government, see infra Section II.D.1, that "[a]n ___ _____ unequal power relationship is where there is a subordinate and a dominant person. It is generally defined by the authority person, and it is unequal because of that authority relationship that exists between the two parties." 9 9 The argument is without merit. The challenged instruc- tion, viewed against the backdrop of the entire charge, see ___ Tutiven, 40 F.3d at 8, left no doubt whatever that psychological _______ pressure alone would not satisfy the "force or threat" element of the involuntary servitude offense.5 Second, appellant claims that the district court failed to instruct the jury that any fear engendered in Gedara must be shown to have been "reasonable." But, in fact, the court in- structed the jury to decide "whether the service was involun- tary[] [and] whether Ms. Gedara reasonably believed that she had __________ ________ no choice except to remain in the service of the Alzankis." The district court's references to subjective considerations, such as "whether [Gedara] was personally in fear of physical or other means of coercion," occurred in the course of its discussion of the types of evidence the jury could weigh in deciding whether ________ Gedara's belief that she had no other choice was reason- ______ ___ _______ able. See also infra note 6. The trial judge assuredly did not ____ ___ ____ _____ suggest that a mere finding that Gedara harbored fears however unreasonably was enough to establish compulsion under section 1584. It was entirely proper to instruct the jury to consider ____________________ 5In the final jury charge, the trial judge provided un- mistakably clear guidance against any such misunderstanding: "But [Talal Alzanki] cannot be convicted if you find he used only ______ __ _________ psychological means to compel her, if he played mind games with her. That's not enough. The government does have to prove that ______ ___ ______ he used . . . or threatened physical or legal coercion." Moreover, the preliminary jury instructions explained: "Now, involuntary servitude . . . means a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury or by the ___ __ ______ __ ________ _________ __ ________ ______ __ __ ___ use or threat of coercion through law or legal process." ___ __ ______ __ ________ _______ ___ __ _____ _______ 10 10 Gedara's background and experience in assessing whether her fears were reasonable.6 The final instructional challenge relates to an uncer- tified transcript of the jury charge containing a clerical error made available to the jury during its deliberations. The transcript mistakenly stated: "The government does not have ___ to prove that [Alzanki] used, . . . or threatened physical or legal coercion." Thus, there can be no question that the tran- script misstated an essential element of the crime charged. ____________________ 6Similarly, appellant suggests that the jury instruction invited the impression that "extremely poor working conditions and/or special vulnerabilities of the servant" might serve as a proxy for actual or threatened use of physical force or legal coercion. However, the trial judge correctly instructed the jury that [the charged offense, involuntary servitude,] encompasses situations in which one person holds another in servitude by placing that person in fear of such physical restraint or ____ injury or legal coercion. It may be shown by __ ___ __ _____ __ evidence of extremely poor working conditions ________ and/or special vulnerabilities of the ser- vant. In addition, the jury received proper instructions on the roles of "legal coercion" and "physical coercion": [Legal coercion] simply means the use of the law, the legal process, or legal institutions to compel service. The question here that you will need to determine is: Did the gov- ernment prove beyond a reasonable doubt that the defendant used or threatened physical or legal coercion to compel Ms. Gedara's service in the household? Of course, the jury is presumed to have followed the instruc- tions. Tutiven, 40 F.3d at 7 (citing Yates v. Evatt, 500 U.S. _______ _____ _____ 391, 403-04 (1991)). 11 11 The jury had been deliberating for seven hours by the time it requested the transcript for the explicit purpose of ___ ___ ________ _______ __ reviewing witness testimony.7 Thus, there is but a remote pos- _________ _______ _________ sibility that the jury even consulted the portion of the tran- ____ _________ ___ _______ __ ___ _____ script containing the typographical error. Furthermore, even ______ __________ ___ _____________ _____ assuming the jury consulted the relevant portion of the tran- script, it is virtually inconceivable that it would have credited this lone typographical error over four correctly transcribed statements, and the five correct oral statements it had been given in the courtroom earlier, especially since the transcript itself alerted the jury with the imprint: "Rough Draft-Not Cer- tified." Cf. United States v. DeMasi, 40 F.3d 1306, 1317-1318 __ _____________ ______ (1st Cir. 1994) ("Our review of the instructions reveals that the district court referred to the 'beyond a reasonable doubt' standard no less than twelve times in the nine pages of jury instructions preceding the isolated section challenged here. This overwhelming number of correct references negated any chance that the contested statements were misconstrued by the jury as somehow reducing the government's burden of proof"), cert. ____ denied, Bonasia v. United States, 115 S.Ct. 947 (1995); United ______ _______ _____________ ______ States v. Glenn, 828 F.2d 855, 861 (1st Cir. 1987) ("This [cha- ______ _____ llenged] phrase [in the jury instructions] . . . 'may not be judged in artificial isolation, but must be viewed in the context ____________________ 7Despite the government's recommendation that the transcript be proofread, the defense suggested that it be submitted to the jury prior to proofreading or certification by the court report- er. 12 12 of the overall charge.'") (quoting United States v. DeVincent, _____________ _________ 632 F.2d 147, 152 (1st Cir.), cert. denied, 449 U.S. 986 (19- ____ ______ 80)).8 Given the fact that the trial judge correctly and repeatedly explained this element to the jury earlier in the courtroom, and absent any indication that the jury even noted, let alone credited, the isolated misstatement in the transcript, we find no prejudice. Cf. United States v. Griley, 814 F.2d 967, __ _____________ ______ 975 (4th Cir. 1987) (where deliberating jury received tape recording of jury instructions at defendant's criminal trial, as __ well as instructions given in unrelated civil case, conviction ____ __ upheld on grounds that appellant failed to demonstrate prejudice and trial court gave proper curative instruction); United States _____________ v. North, 746 F.2d 627, 631-32 (9th Cir.) (affirming conviction _____ even though a search warrant affidavit, excluded from evidence, was sent to jury room by mistake; finding "no reasonable possi- bility that [the warrant] could have affected the verdict"), cert. denied, 470 U.S. 1058 (1984), overruled on other grounds, ____ ______ ___________________________ Jacobson v. United States, 503 U.S. 540 (1992). There was no ________ _____________ reversible error. 2. The Conspiracy Instruction 2. The Conspiracy Instruction __________________________ Appellant claims that the district court incorrectly instructed the jury on an essential element of the conspiracy charge, by stating that he could be found guilty even if his only ____________________ 8The "force or threat" element was described correctly in the preliminary jury instructions as well. See supra note 5. ___ _____ 13 13 alleged coconspirator, Abair Alzanki, involuntarily cooperated under duress. Apparently unclear on this point, the jury later requested further instructions: "[I]s there a conspiracy if the second person [the wife] . . . joined the agreement not volun- tarily but in fear?" The trial judge instructed: The answer is yes. If she agreed with him to do an act that is unlawful, the first ele- ment, an agreement, is satisfied. You must, however, then go on and consider the second element, and determine whether [the husband, Talal Alzanki], the only person who is a defendant before you, joined into that agree- ment knowingly and willfully as I have de- fined it to you. Appellant correctly asserts that a viable conspiracy charge under 18 U.S.C. 371 requires at least two conspirators, each possessed of the requisite criminal intent. See, e.g., ___ ____ United States v. Penagaricano-Soler, 911 F.2d 833, 841 (1st Cir. _____________ __________________ 1990). He argues that his wife could not have been the indis- pensable second willing party, because he coerced her into ______ participating. For the latter proposition, he relies on cases which hold that a conspiracy charge will not lie if the putative coconspirator turned out to be an undercover law enforcement agent. See, e.g., United States v. Nason, 9 F.3d 155, 161 & n.2 ___ ___ _____________ _____ (1st Cir. 1993), cert. denied, 114 S.Ct. 1331 (1994). ____ ______ As the present claim is raised for the first time on appeal, we review only for plain error. DeMasi, 40 F.3d at 1318; ______ United States v. Griffin, 818 F.2d 97, 100 (1st Cir.), cert. ______________ _______ ____ denied, 484 U.S. 844 (1987). The burden therefore rests with ______ appellant to establish that the error was "clear," in the sense 14 14 that it was "obvious," that it affected "substantial rights," and that failure to vacate the conspiracy conviction would result in a "miscarriage of justice." United States v. Olano, 113 S.Ct. _____________ _____ 1770, 1776-79 (1993). We note at the outset that a "generalized fear" of harm would not have afforded Abair Alzanki a viable defense to the _____ conspiracy charge. See, e.g., United States v. Stevens, 985 F.2d ___ ____ _____________ _______ 1175, 1182 (2d Cir. 1993) (district court properly rejected request to instruct jury that generalized fear of harm, without more, would compel acquittal). Moreover, neither defendant contended at trial that Abair Alzanki conformed her will or behavior in response to duress. Indeed, nothing in the trial record intimates a causal link between Talal Alzanki's abusive behavior and Abair's participation in the conspiracy. Cf. Slater __ ______ v. United States, 562 F.2d 58, 62 (1st Cir. 1976) (defendant con- _____________ victed of Kickback Act violation, an essential element of which is the intimidation of others, was properly convicted as well of conspiring with those whom he intimidated). Thus, the district __________ court correctly advised the jury that the appropriate inquiry was whether Talal Alzanki "joined . . . that agreement knowingly and _____ willfully." As the evidence plainly supported such a finding, there was no error, let alone plain error. C. Sufficiency of the Evidence C. Sufficiency of the Evidence ___________________________ Appellant next contends that the evidence was insuf- ficient to convict on the substantive "involuntary servitude" charge. We review "the evidence in the light most favorable to 15 15 the verdict, in order to determine whether a rational trier of fact could have found guilt beyond a reasonable doubt. All reasonable inferences are drawn in favor of the verdict and any credibility determination must be compatible with the judgment of conviction." United States v. Tuesta-Toro, 29 F.3d 771, 776 (1st _____________ ___________ Cir. 1994) (quoting United States v. Tejeda, 974 F.2d 210, 212 _____________ ______ (1st Cir. 1992)), cert. denied, 115 S.Ct. 947 (1995). There was ____ ______ ample evidence to enable a rational jury to find, beyond a reasonable doubt, each essential element of the substantive offense. Appellant argues that the record discloses only a few isolated instances in which any physical force whatever was used against Gedara. These incidents, he argues, did not approach, either in frequency or severity, but see supra p.3, the level of ___ ___ _____ physical abuse present in the typical involuntary servitude case. Furthermore, he says, conditions in the Alzanki apartment were neither squalid nor jail-like; whereas in the typical involuntary servitude case, the victim is exposed to severe physical abuse, as well as confinement in extremely uncomfortable quarters. See, ___ e.g., Kozminski, 821 F.2d 1186, 1188-89 (6th Cir. 1987) (squalid ____ _________ lodgings, without plumbing; rotten food; numerous instances of slapping, choking, kicking), aff'd, 487 U.S. 931 (1988); United _____ ______ States v. Harris, 701 F.2d 1095, 1098 (4th Cir. 1982) (beatings ______ ______ with a rubber hose and confinement to quarters ("the jail") in retaliation for attempted escape), cert. denied, 463 U.S. 1214 ____ ______ (1983); Booker, 655 F.2d at 565-66 (numerous retaliatory beatings ______ 16 16 following escape attempts); Bibbs, 564 F.2d at 1167 (holding _____ victims at gunpoint; beating and threatening to kill any who attempted escape). Gedara testified that during her four-month ordeal in their apartment she was physically assaulted by the Alzankis on two occasions and contemporaneously informed that their purpose was to keep her "in her place." The physical violence appellant directed at Gedara was by no means trifling in degree. The evidence revealed that appellant punished Gedara merely for asking him to turn down the television by throwing her bodily against the wall. Moreover, she was kept in a serious state of malnutrition, deprived of medical care, and subjected to threats of deportation, physical harm and even death. Given her experi- ence as a domestic servant in Kuwait, see supra p.2,9 and in the ___ _____ Alzanki apartment in Quincy, the jury was entitled to infer that Gedara reasonably believed these threats. Appellant correctly asserts that the requisite "compul- sion" is not established in circumstances where an available alternative to continued service is merely "exceedingly bad." ____________________ 9Gedara testified to her understanding of Kuwaiti police practices toward household servants: Q. Ms. Gedara, what was your state of mind regarding the police in Kuwait? A. I heard if we go alone out in the street, they're going to catch us and hit [us] and put into jail. She testified that she believed that the American police would treat her much the same way were she to venture outside the Alzanki apartment. 17 17 See Kozminski, 487 U.S. at 938 (quoting Shackney, 333 F.2d at ___ _________ ________ 486). Instead, the evidence must establish that the victim reasonably believed she was left with no alternative to continued servitude that was not the equivalent of "imprisonment or worse." Shackney, 333 F.2d at 486. See, e.g., Steirer v. Bethlehem Area ________ ___ ____ _______ ______________ Sch. Dist., 987 F.2d 989, 1000 (3d Cir.) (community service ___________ requirement for high school graduation not a form of involuntary servitude, as student has choice of foregoing graduation) (citing Shackney, 333 F.2d at 486), cert. denied, 114 S.Ct. 85 (1993). ________ ____ ______ The evidence that Gedara herself was well aware of the severely restrictive conditions encountered by household servants in Kuwait would enable the jury rationally to conclude that Gedara threatened with deportation to Kuwait and no prospect of returning to Sri Lanka and her family confronted an alter- native to continued involuntary service which she reasonably considered at least as severe as imprisonment, particularly when viewed in light of her "special vulnerabilities."10 Moreover, the reasonableness of her fear of deportation was substantiated by the undisputed evidence that she would become deportable ____________________ 10Evidence of other threats and warnings provided further support for the verdict. These included warnings that the American police would shoot Gedara if she left the apartment alone. Though such a prospect might not have seemed credible to a competent adult American, the "special vulnerabilities" of the victim must be taken into consideration. See Kozminski, 487 U.S. ___ _________ at 948, 956. To a foreign worker familiar with Kuwaiti customs and practices (for example, at trial there was evidence that Kuwaiti soldiers manned checkpoints to enforce restrictions on noncitizen movement, especially household servants), a threat of deportation in these circumstances plausibly may equate with imprisonment. See supra note 9. ___ _____ 18 18 immediately upon loss of her "B-1" visa status, which allowed her lawfully to remain in the United States only while in the employ of the Alzankis. See 8 U.S.C. 1184(a)(1) ("[U]pon failure to ___ maintain the status under which [s]he was admitted, . . . such alien will depart from the United States." ); 22 C.F.R. 41.31. Although the defense presented contrary testimony, the jury fairly could infer that the most efficacious threats are those the victim reasonably believes can be carried out. Shack- ______ ney, 333 F.2d at 486-87. Cf. Booker, 655 F.2d 562 (threats, ___ __ ______ substantiated by severe beatings and assaults with firearms, coerced abductees into remaining at labor camp). The jury was entitled to make its own credibility determinations, Tuesta-Toro, ___________ 29 F.3d at 776, and to find, beyond a reasonable doubt, that Gedara believed appellant's deportation threats to be plausible and that the alternative to continued involuntary servitude was at least as severe as imprisonment. D. Evidentiary Rulings D. Evidentiary Rulings ___________________ 1. The "victimologist" testimony 1. The "victimologist" testimony _____________________________ Appellant filed an unsuccessful motion in limine to __ ______ preclude the government from calling Ann Burgess, a "victim- ologist," as an expert witness. At trial, the government used Burgess to refute the Alzankis' principal "defense"; viz., that ___ Gedara often ventured outside their unlocked apartment during her ________ alleged involuntary servitude, and given the normal human in- stinct for self-preservation, one would expect an unrestrained 19 19 person faced with actual or threatened physical abuse to flee from her abuser at the first opportunity. Burgess countered this evidence with testimony that abuse victims often harbor the opposite impulse overwhelmed by fear they remain with their abusers. Appellant contends that Burgess's expert qualifications related only to sexual abuse victimology, not the behavioral ______ responses of domestic workers subjected to involuntary servitude. Thus, appellant argues, the expert testimony presented by Burgess was irrelevant and unhelpful to the jury, see Fed. R. Evid. ___ 104(a), 702 (permitting use of expert testimony "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact") or, at the very least, its minimal probative value was substantially outweighed by the danger of unfair prejudice, see ___ Fed. R. Evid. 403. Finally, appellant argues that the jury was swayed by Burgess's professional credentials, and her testimony amounted to impermissible "bolstering" of the allegations of abuse made by Gedara. We review challenges to expert-witness qualification only for manifest abuse of discretion. See, e.g., United States ___ ____ _____________ v. Sepulveda, 15 F.3d 1161, 1183 (1st Cir. 1993), cert. denied, _________ ____ ______ 114 S.Ct. 2714 (1994); United States v. Echeverri, 982 F.2d 675, _____________ _________ 677 (1st Cir. 1993).11 The "gatekeeping function" contemplated ____________________ 11We reject the government's contention that the Rule 702 claim should be reviewed only for plain error, since only Abair Alzanki objected at trial. See United States v. Reed, 977 F.2d ___ ______________ ____ 14, 16 (1st Cir. 1992) (motion in limine must be "renewed" by timely objection at trial). At the outset, the trial judge 20 20 by Rule 702 essentially requires the trial judge to assess whether it is "reasonably likely that the expert possesses __________ ______ specialized knowledge which will assist the trier better to understand a fact in issue." Sepulveda, 15 F.3d at 1183 (citing _________ Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 _______ ___________________________________ (1993)) (emphasis added); Apostol v. United States, 838 F.2d 595, _______ _____________ 599 (1st Cir. 1988) (noting that Rule 702 rulings invite a "case- specific inquiry"). We find no error. The central fallacy in appellant's claim is its implic- it assumption that no one other than an "involuntary servitude" victimologist could have qualified as an expert under Rule 702 in the present case. This thesis obviously focuses only on the ____ "specialized knowledge" requirement under Rule 702, to the total exclusion of the ultimate standard for admission whether the _________ ________ "specialized knowledge" possessed by the witness "will assist the ______ trier of fact to understand the evidence or to determine a fact in issue . . . ." Fed. R. Evid. 702. It is one matter to acknowledge that a witness steeped in the behavioral reactions of Sri Lankan domestic servants abused by Kuwaiti nationals in the United States could be instructive (if not inordinately so) to a jury. It is quite another to suggest that it is not "reasonably likely," see Echeverri, 982 F.2d at 677, that a somewhat less ___ _________ specialized victimologist might "assist" a generalist factfinder in assessing evidence of the exceedingly uncommon phenomenon of ____________________ announced that an objection by either defendant would preserve the claim for both. See, e.g., Sepulveda, 15 F.3d at 1180 ___ ____ _________ (noting practice as common protocol). 21 21 domestic servant abuse in the present-day United States. Id. at ___ 783 (Rule 702 demands "common sense inquiry"). While the more generalized nature of the proffered testimony may temper its probative value to the factfinder, we do not think it can be said that its relevance is negated entirely.12 The record reflects that the trial judge carefully evaluated Ms. Burgess's professional qualifications following a lengthy voir dire. Burgess testified that her principal training and experience related to victims of sexual abuse, but that she had researched comparable clinical behavior manifested by victims of physical abuse of a non-sexual nature in so-called "unequal power" relationships (e.g., battered spouses and children). ____ Based on her general research and her personal interaction with hundreds of victims of sexual abuse, Burgess testified that Gedara's behavioral response to the non-sexual abuse administered by the Alzankis was consistent with the behavior of abuse victims __________ ____ ___ ________ __ _____ _______ generally. It seems to us that expert testimony on this subject _________ which the defense was free to contradict was "reasonably likely" to assist the jury in understanding and assessing the evidence, in that the matter at issue was highly material, ____________________ 12The rationale for the trial judge's ruling was much the same: It seems . . . that one doesn't have to be so specialized as to be an expert on the res- ponse of a slavery victim to the master rath- er than a victim of other kinds of abuse of power in unequal relationships. 22 22 somewhat technical, and beyond the realm of acquired knowledge normally possessed by lay jurors. Finally, appellant cites no federal case law for the contention that allowing an expert to testify to her empirical findings on the behavioral reactions of abuse victims impermis- sibly suggests to the jury that the putative victim's allegations of abuse should be believed. The overwhelming weight of authori- ty suggests otherwise. See, e.g., United States v. Hadley, 918 ___ ____ _____________ ______ F.2d 848, 852 (9th Cir. 1990) (upholding admission of expert testimony by child psychiatrist as to "general behavior charac- teristics that may be exhibited in children who have been sexual- ly abused"), cert. dismissed, 113 S.Ct. 486 (1992); Server v. ____ _________ ______ Mizell, 902 F.2d 611, 615 (7th Cir. 1990); United States v. ______ ______________ Pierre, 812 F.2d 417, 419 (8th Cir. 1987). Moreover, the able ______ trial judge left no room for doubting that the jury remained perfectly free to reject Burgess's expert opinion, as well as its predicate assumption.13 2. "Other Acts" Evidence (Rule 404(b)) 2. "Other Acts" Evidence (Rule 404(b)) __________________________________ ____________________ 13The judge firmly cautioned the jury immediately before Burgess testified: The witness who is about to testify is what we call an expert witness. She does not know what occurred at the Alzanki household. She wasn't there, she didn't see any of that. . . . [O]ne of the ways in which witnesses are very often examined, expert witnesses are very often examined, is that they are asked to make certain assumptions . . . that have to do with the facts in the case. . . . [I]f the facts are different from the assumptions, then the opinions based on the assumption are of absolutely no value to you. __________ __ _____ __ ___ 23 23 Appellant next contends that the district court erred in admitting Gedara's testimony concerning appellant's abusive behavior toward his wife, Abair Alzanki, because Rule 404(b) absolutely bars "other acts" evidence relevant only to prove criminal propensity or bad character. See Tuesta-Toro, 29 F.3d ___ ___________ at 775. We disagree. The Rule 404(b) bar is not implicated unless the chal- lenged "other crimes, wrongs, or acts are relevant exclusively to ___________ instigate an inference that the defendant is more likely to have acted in similar fashion by committing the offense for which he is on trial." Tutiven, 40 F.3d at 5 (emphasis added). By _______ contrast, the evidence admitted below bore special relevance to a pivota |