USA v. Marcus, No. 07-4005 (2d Cir. 2010)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on August 14, 2008.
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07-4005-cr USA v. Marcus 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2010 (Argued: October 13, 2010 Decided: December 7, 2010) Docket No. 07-4005-cr UNITED STATES OF AMERICA, Appellee, v. GLENN MARCUS Defendant-Appellant. Before: CALABRESI, STRAUB, WESLEY, Circuit Judges. Appeal from a judgment of the United States District Court for the Eastern District of New York (Ross, J.), entered on September 18, 2007, convicting defendant of violating the sex trafficking and forced labor provisions of the Trafficking Victims Protection Act. AFFIRMED in part, VACATED in part, and REMANDED. HERALD PRICE FAHRINGER (Erica T. Dubno, on the brief), Page 1 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Fahringer & Dubno, New York, NY, for DefendantAppellant. PAMELA CHEN, Assistant United States Attorney, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn NY, for Appellee. (Peter A. Norling, Assistant United States Attorney, Benton J. Campbell, United States Attorney, Eastern District of New York, Brooklyn, NY; Grace Chung Becker, Acting Assistant Attorney General, Jessica Dunsay Silver, Tovah R. Calderon, Attorneys, Department of Justice, Civil Rights Division, Appellate Section, on the brief in the original appeal). WESLEY, Circuit Judge: Defendant-Appellant was convicted following a jury 19 trial on charges of violating the forced labor and sex 20 trafficking provisions of the Trafficking Victims Protection 21 Act ( TVPA ), 18 U.S.C. §§ 1589, 1591. 22 August 14, 2008, this Court vacated the judgment and 23 remanded the case on the ground that, under plain error 24 review, Marcus s convictions violated the Ex Post Facto 25 Clause. 26 (per curiam). 27 28 In an opinion dated United States v. Marcus, 538 F.3d 97 (2d Cir. 2008) The Supreme Court reversed and remanded. Noting that Marcus s contention implicated the Due Process Clause,1 the 1 Marcus s claim is properly labeled a due process claim because the potential retroactive application of the Page 2 of 23 1 Supreme Court held that this Court s standard for plain 2 error review, as applied to Marcus s claim, was inconsistent 3 with the Supreme Court s extant precedent. 4 Marcus, 130 S. Ct. 2159, 2163 (2010). 5 address Marcus s due process challenge to his sex 6 trafficking and forced labor convictions under the 7 appropriate plain error standard. 8 below, we affirm Marcus s forced labor conviction and vacate 9 his sex trafficking conviction. United States v. On remand, we must For the reasons set forth The case is remanded to the 10 district court for proceedings consistent with this opinion. 11 I. BACKGROUND 12 The facts of this case are set forth in the district 13 court s opinion, United States v. Marcus, 487 F. Supp. 2d 14 289, 292 97 (E.D.N.Y. 2007), and summarized in this Court s 15 prior opinion, Marcus, 538 F.3d at 98 100. 16 familiarity with those opinions is presumed, we recite only 17 the facts and procedural history relevant to the issues on 18 remand. 19 Because From October 1998 through approximately June 1999, TVPA to Marcus s conduct was the result of an erroneous jury instruction rather than an act of Congress. See United States v. Marcus, 130 S. Ct. 2159, 2165 (2010). Page 3 of 23 1 Marcus and the complaining witness, Jodi,2 engaged in a 2 consensual relationship that involved bondage, 3 dominance/discipline, submission/sadism, and masochism 4 ( BDSM ). 5 Jodi to move from her home in the Midwest to Maryland, where 6 she lived in the apartment of a woman named Joanna. 7 Joanna, and other women participated in various BDSM 8 activities with Marcus. 9 Marcus s slaves and being subjected to various physical After they met on the internet, Marcus convinced Jodi, This included being considered 10 and sexual punishments. 11 maintained a membership BDSM website called Subspace, 12 which contained pictures of Jodi and other women 13 participating in BDSM activities and fantasy diary entries 14 written about these activities. 15 At Marcus s direction, Joanna By October 1999, the nature of this arrangement 16 changed. 17 to become one of Marcus s slaves, Marcus inflicted upon 18 Jodi a punishment that was the most physically severe that 19 she had experienced to date. Because Jodi refused to recruit her younger sister Jodi testified that she cried 2 At trial, the district court granted the Government s motion to allow certain witnesses to testify using their first names only. Marcus, 487 F. Supp. 2d at 292 n.2. Page 4 of 23 1 throughout the incident and that thereafter her relationship 2 with Marcus became nonconsensual. 3 began to feel trapped and full of terror. 4 According to Jodi, she In January 2000, Marcus instructed Jodi to move to New 5 York, where she lived with Rona, another one of Marcus s 6 slaves. 7 Marcus directed her to create and maintain a new commercial 8 BDSM website called Slavespace. 9 worked on the site for approximately eight to nine hours per 10 day, updating photographs and diary entries and clicking on 11 banner advertisements to increase revenue and enhance the 12 site s visibility on the internet. 13 continued to work on the website in this manner after she 14 obtained a full-time job in November 2000. 15 all revenues from the website, consisting primarily of 16 membership fees and advertising. 17 Jodi testified that upon her move to New York, Jodi indicated that she She testified that she Marcus received Although Jodi did not want to work on the website as 18 Marcus instructed, she did so because she feared the 19 consequences of her refusal. 20 Jodi s fear by physically and sexually punishing her when 21 he was unhappy with her work on the website. Marcus created and fueled Page 5 of 23 Punishment 1 would occur when Jodi did not post pictures or diary entries 2 quickly enough or when the website was not making as much 3 money as Marcus expected. 4 photographed, and the pictures were posted on Slavespace. 5 Additionally, Marcus required Jodi to write diary entries 6 about these punishments, which, at his direction, indicated 7 her satisfaction in receiving them. 8 9 These punishments were One of the most severe punishments Marcus imposed on Jodi occurred in Rona s apartment in April 2001. Marcus 10 tied Jodi s hands together with rope, made Jodi lie down on 11 a coffee table, and told Jodi he was going to put a safety 12 pin through her labia. 13 Marcus put a washcloth in Jodi s mouth and whipped her with 14 a kitchen knife in an unsuccessful attempt to force her to 15 stop crying. 16 Jodi s labia and attached a padlock to it, closing her 17 vagina. 18 were posted on the Slavespace website. 19 Jodi to write a diary entry about this incident for the 20 website. 21 22 Because she began to scream and cry, Marcus proceeded to put the safety pin through Marcus photographed this incident, and the pictures He also directed Although Jodi s relationship with Marcus had become nonconsensual, she remained with Marcus out of fear of his Page 6 of 23 1 reaction if she left. 2 told Marcus that she was unhappy and could not continue with 3 the arrangement, Marcus threatened to send pictures of Jodi 4 to her family and the media. 5 Specifically, at one point, when Jodi In March 2001, Jodi told Marcus that she wanted to 6 leave. 7 one final punishment. 8 residence, Marcus inflicted a severe punishment on Jodi, 9 including banging her head against a basement ceiling beam, In response, Marcus told Jodi that she had to endure In the basement of a Long Island 10 tying her hands and ankles to the beam, beating her and 11 whipping her while she was hanging from the beam, drugging 12 her with Valium, and inserting a large surgical needle 13 through her tongue. 14 let Jodi off the beam, took her to a bedroom, and had sexual 15 intercourse with her. 16 the punishment and instructed her to write and post on the 17 website a diary entry about the incident. 18 After inflicting this beating, Marcus Marcus photographed Jodi throughout Jodi testified that, after this incident, she felt 19 broken, surrounded by fear and terror, and trapped in this 20 relationship with Marcus. 21 apartment until August 2001, at which point Rona told Marcus 22 that she no longer wanted Jodi to live with her. She continued to live in Rona s Page 7 of 23 Jodi then 1 moved into her own apartment, and her interactions with 2 Marcus became less frequent and less extreme, although she 3 remained in contact with him until 2003. 4 On February 9, 2007, the Government obtained a 5 superseding indictment charging Marcus with violating the 6 sex trafficking statute, 18 U.S.C. § 1591(a)(1), and the 7 forced labor statute, 18 U.S.C. § 1589, of the TVPA [i]n or 8 about and between January 1999 and October 2001. 9 jury trial, Marcus was convicted on both counts.3 10 After a Although the TVPA was not enacted until October 28, 11 2000, the Government presented evidence with respect to the 12 entire period charged in the superseding indictment, and the 13 district court did not instruct the jury with respect to the 14 TVPA s enactment date. 15 the jury instructions on this ground, nor did he raise the 16 argument in his motion for a judgment of acquittal under 17 Rule 29 of the Federal Rules of Criminal Procedure. 18 Marcus s post-conviction motions for judgment of acquittal, 19 Fed. R. Crim. P. 29, and for a new trial, Fed. R. Crim. P. At trial, Marcus did not object to 3 The indictment also charged Marcus with obscenity in violation of 18 U.S.C. § 1462, but the jury acquitted him of that count. Page 8 of 23 1 33, were denied by the district court. 2 Supp. 2d at 313. 3 See Marcus, 487 F. Marcus brought a timely appeal in which he argued, in 4 relevant part, that the TVPA was applied retroactively in 5 his case in violation of the Ex Post Facto Clause of the 6 United States Constitution. 7 this argument before the district court, we reviewed for 8 plain error only. Because Marcus failed to raise 9 We vacated Marcus s convictions, holding that under 10 United States v. Torres, 901 F.2d 205 (2d Cir. 1990), on 11 plain error review, an error implicating the Ex Post Facto 12 Clause requires a new trial if, as was the case here, there 13 is any possibility, no matter how unlikely that an 14 uninstructed jury could have convicted the defendant based 15 exclusively on pre-enactment conduct. 16 102. Marcus, 538 F.3d at 17 Though joining in the judgment because our then 18 precedent compelled the result, two members of the panel 19 noted that the standard in Torres was inconsistent with 20 Supreme Court precedent. 21 concurring). Id. at 102 03 (Sotomayor, J., Looking to United States v. Cotton, 535 U.S. Page 9 of 23 1 625 (2002), and Johnson v. United States, 520 U.S. 461 2 (1997), the concurrence concluded that where there is no 3 reasonable possibility than an error not objected to at 4 trial had an effect on the judgment, the Supreme Court 5 counsels us against exercising our discretion to notice that 6 error. 7 to the context of an ex post facto violation under a plain 8 error standard of review, the concurrence reasoned: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Marcus, 538 F.3d at 104. Applying this principle [W]here 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 preenactment conduct, a retrial is unwarranted. In other words, the defendant must meet the low threshold of offering a plausible explanation as to how relevant pre- and postenactment 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 affect the fairness, integrity, or public reputation of the judicial proceedings. Id. The concurrence concluded that Marcus s sex trafficking 31 conviction should be vacated, but his forced labor 32 conviction affirmed, because with respect to the forced Page 10 of 23 1 labor charge, Marcus offered no plausible argument as to 2 why the jury would have differentiated between his conduct 3 before and after the enactment of the statute. 4 Id. at 106. The Supreme Court reversed and remanded, holding that 5 the any possibility, however remote standard was 6 inconsistent with its plain error review precedents. 7 Marcus, 130 S. Ct. at 2164. 8 whether the error in this case affected Marcus s substantial 9 rights and the fairness, integrity or public reputation of 10 On remand, we must decide his judicial proceeding. 11 II. DISCUSSION 12 Federal Rule of Criminal Procedure 52(b) permits an 13 appellate court to recognize a plain error that affects 14 substantial rights, even if the claim of error was not 15 brought to the district court s attention. 16 Ct. at 2164. 17 error not raised at trial only where an appellant 18 demonstrates that: 19 plain, that is, the error is clear or obvious, rather than 20 subject to reasonable dispute; (3) the error affected the 21 appellant s substantial rights, which in the ordinary case 22 means it affected the outcome of the district court Marcus, 130 S. We will exercise our discretion to correct an (1) there is an error; (2) the error is Page 11 of 23 1 proceedings; and (4) the error seriously affect[s] the 2 fairness, integrity or public reputation of judicial 3 proceedings. 4 third and fourth requirements are in dispute. 5 Id. (brackets in original). Here, only the To satisfy the third requirement, an appellant must 6 demonstrate that the error was prejudicial. 7 case, an error is prejudicial where there is a reasonable 8 probability that the error affected the outcome of the 9 trial. Id. In the ordinary Regarding the fourth requirement, in most 10 circumstances, an error that does not affect the jury s 11 verdict does not significantly impugn the fairness, 12 integrity, or public reputation of the judicial process. 13 Id. at 2166 (internal quotation marks omitted). 14 to have impacted Marcus s substantial rights and the 15 fairness, integrity or public reputation of the judicial 16 proceedings, the overall effect of the due process error 17 must have been sufficiently great such that there is a 18 reasonable probability that the jury would not have 19 convicted him absent the error. 20 Therefore, Here, there is no reasonable probability that the jury 21 would have acquitted Marcus absent the error. 22 Government presented post-enactment evidence sufficient to Page 12 of 23 First, the 1 satisfy the elements of the forced labor statute.4 2 January 2000 until at least the spring of 2001, Marcus 3 forced Jodi, through the persistent threat of serious 4 physical harm and actual physical harm, to create and 5 maintain a commercial BDSM website from which only Marcus 6 derived pecuniary gain. 7 Marcus s website for eight to nine hours a day including 8 while she had a full time job.5 From Jodi testified that she worked on During this time period, 4 18 U.S.C. § 1589 provided, in relevant part: Whoever knowingly provides or obtains the labor or services of a person . . . by threats of serious harm to, or physical restraint against, that person or another person; . . . by means of any scheme, plan, or pattern intended to cause the person to believe that, if the person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint; or . . . by means of the abuse or threatened abuse of law or the legal process, shall be [punished]. 18 U.S.C. § 1589 (2000). We note that the language of 18 U.S.C. § 1589 was amended in 2008. We apply the version of the statute in effect at the time of Marcus s conduct. 5 Marcus argues that the fact that Jodi acquired a full time job in November 2000 undermines the credibility of her testimony that she worked on the website eight to nine hours a day post-enactment. He also points out that Rona testified that Jodi did not work on the website after she acquired the full time job. These arguments, however, do not compel the conclusion that the jury believed that Jodi provided website related services to Marcus pre-enactment rather than post-enactment. First, it is not impossible for Jodi to have worked an eight-hour day, commuted from Queens, NY, and still worked eight hours on the website. Second, it is undisputed that Jodi was required, under threat of Page 13 of 23 1 Jodi was motivated to work on the website out of fear of 2 future physical and sexual abuse from Marcus. 3 most severe punishments, the April 2001 coffee table 4 incident, occurred post-enactment. 5 punishment was due to her unsatisfactory work on the 6 website. 7 Marcus obtained Jodi s labor through threat of serious 8 physical harm and actual physical harm after October 2000.6 9 Second, we find no reasoned basis to differentiate One of the Jodi testified that this Based on this evidence, a jury could find that 10 between Marcus s pre- and post-enactment conduct, and we 11 find no reason to presume that the jury did so. 12 the Government presented evidence that Jodi wrote diary 13 entries about her BDSM activities for Marcus s old BDSM 14 website dating back to 1999, the substantial evidence of 15 forced labor begins in January 2000, when Marcus directed 16 Jodi to move from Maryland to New York and instructed her to 17 create and manage his new commercial BDSM website. 18 January 2000, continuing through the effective date of the Although From punishment, to write diary entries for Slavespace expressing her enjoyment of the March and April 2001 punishments. 6 This conclusion likewise disposes of Marcus s argument that the evidence of his post-enactment conduct is insufficient to sustain the forced labor conviction. Page 14 of 23 1 TVPA in October 2000, and into April 2001, Marcus s conduct 2 supporting the forced labor conviction is essentially the 3 same. 4 increased post-enactment, with two of the most severely 5 violent incidents occurring in March and April of 2001. 6 Marcus offers no explanation for how his pre-enactment 7 conduct differed from his post-enactment conduct in a manner 8 that would lead us to conclude that there is a reasonable 9 probability that the jury would not have convicted him 10 If anything, Marcus s use of force against Jodi absent the due process error.7 7 On appeal, the parties originally disputed whether forced labor and sex trafficking constituted continuing offenses. 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. United States v. Monaco, 194 F.3d 381, 386 (2d Cir. 1999) (internal quotation marks omitted). Prior to the Supreme Court s opinion in this case, under Torres, the same analysis applied under plain error review. See Torres, 901 F.2d at 229. In our prior opinion, we did not decide whether violations of the forced labor and sex trafficking statutes constitute continuing offenses because, in any event, it was possible that Marcus had been convicted solely on the basis of pre-enactment conduct and thus a new trial was necessary. Marcus, 538 F.3d at 101. Although we now affirm Marcus s forced labor conviction, we again have no need to decide whether forced labor constitutes a continuing offense. Even assuming it does not, a new trial is not warranted because neither the third nor fourth requirements of the plain error standard are satisfied. Page 15 of 23 1 For substantially similar reasons, we reject Marcus s 2 additional argument that he was prejudiced, not because of 3 the potential retroactive application of the TVPA to his 4 pre-enactment conduct, but because the proceedings were 5 swamped by highly prejudicial evidence spanning 22 months 6 that, although charged as criminal, violated no law at the 7 time. 8 Marcus s post-enactment conduct, and nothing about the 9 nature or quantity of the evidence of Marcus s pre-enactment 10 conduct leads us to conclude that it is reasonably probable 11 that the jury would have acquitted Marcus but for the 12 evidence of Marcus s pre-enactment conduct. The Government presented substantial evidence of 13 Therefore, because the erroneous jury instruction 14 neither prejudiced Marcus nor called into question the 15 fairness, integrity or public reputation of the judicial 16 system, we will not set aside Marcus s forced labor 17 conviction. 18 See Marcus, 130 S. Ct. at 2164. By contrast, with regard to Marcus s sex trafficking 19 conviction, the Government concedes that the erroneous jury 20 instruction constituted plain error.8 8 The Government 18 U.S.C. § 1591(a)(1) provides, in relevant part: Whoever knowingly . . . in or affecting interstate or Page 16 of 23 1 produced evidence that Marcus knowingly recruited and 2 enticed Jodi in 1998; transported Jodi from Maryland to New 3 York in early 2000; and harbored her from 1999 until 2001. 4 Unlike with the forced labor charge, the conduct supporting 5 the sex trafficking charge differed materially before and 6 after October 2000, such that there is a reasonable 7 probability that the erroneous jury charge affected the 8 outcome of the trial and affected the fairness, integrity or 9 public reputation of the proceedings. Consequently, we 10 again vacate Marcus s sex trafficking conviction and remand 11 the case for retrial on this charge.9 What remains are foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, or obtains by any means a person . . . knowing that force, fraud, or coercion . . . will be used to cause the person to engage in a commercial sex act . . . shall be punished . . . . 18 U.S.C. § 1591(a)(1). 9 In our prior opinion we held that for substantially the same reasons set forth in the District Court s opinion, . . . the totality of the evidence presented at trial was sufficient to support the convictions. Marcus, 538 F.3d at 102 n.6. With respect to Marcus s sex trafficking conviction, we reaffirm that holding today. We need not decide whether only the post-enactment evidence was sufficient to sustain the sex trafficking conviction because, even assuming it was not, double jeopardy would not bar retrial. Id. (citing United States v. Mandel, 591 F.2d 1347, 1371 74, rev d en banc on other grounds, 602 F.2d 653 (4th Cir. 1979); United States v. Harmon, 632 F.2d 812, 814 Page 17 of 23 1 2 Marcus s other challenges to his forced labor conviction. Marcus argues that 18 U.S.C. § 1589 does not apply to 3 his conduct. 4 intimate domestic relationship based upon a shared BDSM 5 lifestyle. 6 statute s phrase labor and services is ambiguous as 7 applied to his conduct, and that the district court erred in 8 refusing to apply the rule of lenity to narrowly construe 9 the statute in his favor. He contends that Jodi and he engaged in an Further, he contends that the forced labor We agree with the district 10 court s well-reasoned opinion that these arguments are 11 without merit. 12 In relevant part, the forced labor statute punishes 13 anyone who knowingly provides or obtains the labor or 14 services of a person . . . by threats of serious harm to, or 15 physical restraint against, that person or another person. 16 18 U.S.C. § 1589 (2000). 17 which is not defined by the statute, is viewed in accord 18 with its ordinary meaning. 19 U.S. 223, 228 (1993); Harris v. Sullivan, 968 F.2d 263, 265 20 (2d Cir. 1992). The term labor or services, See Smith v. United States, 508 Absent ambiguity in the statutory text, (9th Cir. 1980) (per curiam)). Page 18 of 23 1 [o]nly the most extraordinary showing of contrary 2 intentions in the legislative history will justify a 3 departure from [the statutory] language. 4 Albertini, 472 U.S. 675, 680 (1985) (internal quotation 5 marks omitted). 6 interpret unambiguous statutes in rare and exceptional 7 circumstances. 8 (1984). 9 narrowly construe a statute where the applicable text is United States v. We will only look to legislative history to Garcia v. United States, 469 U.S. 70, 75 Moreover, we will not apply the rule of lenity to 10 unambiguous. 11 (2d Cir. 2006) (citing Salina v. United States, 522 U.S. 52, 12 66 (1997)). 13 See United States v. Giordano, 442 F.3d 30, 40 The parties do not dispute that the ordinary meaning of 14 the phrase labor or services 10 encompasses Jodi s various 15 contributions to the Slavespace website from which only 16 Marcus derived pecuniary gain. 17 that Jodi s work on the Slavespace website was volunteered Marcus, however, contends 10 Webster s Dictionary defines labor as the expenditure of physical or mental effort especially when fatiguing, difficult, or compulsory. Merriam-Webster s Third New International Dictionary Unabridged (2002) available at http://www.mwu.eb.com/mwu. Service is defined as the performance of work commanded or paid for by another. Id. Page 19 of 23 1 to Marcus in a manner similar to unpaid domestic chores 2 performed by any co-habitating couple, and the punishments 3 Marcus inflicted upon Jodi are inseparable from the BDSM 4 activities that were a long standing part of their intimate 5 relationship. 6 plain meaning to this relationship, the forced labor statute 7 is susceptible to application in the context of purely 8 domestic chores performed, for example, at the behest of an 9 abusive spouse. Marcus argues that by applying the statute s Marcus presses that this is an incorrect 10 application of a statute that was intended to proscribe 11 international trafficking in slave labor and prostitution. 12 Marcus s argument is unpersuasive. The jury was 13 properly instructed that consensual BDSM activities alone 14 could not constitute the basis for a conviction under the 15 sex trafficking charge,11 and there is no reason to believe 11 With respect to the sex trafficking charge, the court instructed: Throughout the trial, you have heard evidence about sexual practices called Bondage, Discipline/Domination, 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 statute was Page 20 of 23 1 that the jury did not understand this instruction to be 2 equally true with respect to the forced labor charge. 3 jury rejected Marcus s view of the affair, namely, that 4 Jodi s work on the website and punishments relating thereto 5 were all part of her long-time intimate relationship with 6 Marcus and their broad participation in BDSM. 7 evidence fully supports the Government s theory that, over 8 time, the violence Marcus inflicted upon Jodi became 9 nonconsensual, the punishments became more severe, and that 10 Jodi would not have performed services for Marcus s website 11 had she not feared that noncompliance would result in future 12 physical and sexual abuse. 13 arose from her initial participation in consensual BDSM 14 activities does not require a contrary conclusion. 15 16 The Moreover, the The fact that Jodi s enslavement Therefore, we conclude that the plain meaning of the forced labor statute unambiguously applies to Marcus s violated. For example, if the physical restraint 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. Trial Tr. 1261: 3 18. Page 21 of 23 1 conduct. Thus, we do not address the statute s legislative 2 history. See Giordano, 442 F.3d at 40.12 3 For the reasons discussed above, we affirm Marcus s 4 conviction with respect to 18 U.S.C. § 1589, vacate his 5 conviction with respect to 18 U.S.C. § 1591, and remand the 6 case to the district court for further proceedings 7 consistent with this opinion. 8 determine that it will not retry Marcus on the sex 9 trafficking charge, we direct the district court to Should the Government 10 reconsider Marcus s sentence. 11 reasonableness of his sentence is premature. At this time, review of the 12 Because we conclude that the forced labor statute unambiguously applies to Marcus s conduct, we reject his asapplied vagueness argument. [O]ne whose conduct is clearly proscribed by the statute cannot successfully challenge it for vagueness. United States v. Nadi, 996 F.2d 548, 550 (2d Cir. 1993). In any event, this argument was raised for the first time on appeal, and Marcus does not contend that the district court committed plain error by not addressing it. Consequently it is deemed waived. See United States v. Feliciano, 223 F.3d 102, 125 (2d Cir. 2000). Marcus also argues (1) that the district court s decision permitting two of the Government s witnesses to testify using only their first names and not to disclose their addresses or employment violated his due process rights; and (2) that the district court improperly denied Marcus s motion to suppress certain evidence. We have considered both arguments and find them to be without merit. Page 22 of 23 1 III. CONCLUSION 2 The district court s September 18, 2007 judgment of 3 conviction is hereby AFFIRMED in part and VACATED in part. 4 The case is REMANDED to the district court for proceedings 5 consistent with this opinion. 6 7 8 9 Page 23 of 23
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