“[A] district court is not required to adopt additional proposed language—even if it accurately states the law—and does not abuse its discretion in declining to do so.”
How later courts described this case
- “[A] district court is not required to adopt additional proposed language—even if it accurately states the law—and does not abuse its discretion in declining to do so.”
- treating the prohibited means listed in § 1589(a) as a single element of a forced labor offense
Written by the judges who cited it.
The opinion
Case: 19-10505 Document: 00515484144 Page: 1 Date Filed: 07/10/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-10505 FILED
July 10, 2020
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff – Appellee,
v.
MOHAMED TOURE; DENISE CROS-TOURE,
Defendants – Appellants.
Appeals from the United States District Court
for the Northern District of Texas
Before DENNIS, ELROD, and COSTA, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
Mohamed Toure and Denise Cros-Toure appeal from the district court’s
judgment convicting them of forced labor, conspiracy to harbor an alien for
financial gain, and harboring an alien. We affirm.
I.
Mohamed Toure and Denise Cros-Toure are a married couple who came
to the United States from Guinea. 1 Upon securing green cards, they became
1We view the facts in the light most favorable to the verdict, as we must. United States
v. Martinez, 900 F.3d 721, 728 (5th Cir. 2018).
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No. 19-10505
lawful permanent residents. The Toures resided in Southlake, Texas, with
their five children.
D.D. was born in Guinea. She lived in a village with her family until her
father took her to Conakry, the capital of Guinea, to live with and work for
Denise Cros-Toure’s parents. When D.D.’s mother learned of the arrangement,
she unsuccessfully attempted to hide D.D. with a relative because she did not
“want [D.D.] to become somebody’s slave.” While living with Denise Cros-
Toure’s parents, D.D. stopped going to school. Instead of continuing her
education, D.D. performed tasks such as taking care of Denise Cros-Toure’s
blind sister and giving massages to her mother.
In January 2000, D.D. was sent to live and work in Mohamed Toure and
Denise Cros-Toure’s home in Southlake, Texas. She was around nine or ten
years old. D.D. had no choice in the matter. According to Mohamed Toure,
D.D.’s father “decided to give—I mean, to let [them] have” D.D. To facilitate
the move, Denise Cros-Toure’s parents obtained a passport and tourist visa for
D.D. Although D.D.’s visa authorized her to stay lawfully in the United States
for six months, until July 18, 2000, she lived with the Toures until 2016.
Over the next sixteen years, D.D. worked for the Toures in their home.
She performed a wide variety of tasks for the family, often working from
around 6:30 or 7:00 a.m. to 8:00 or 9:00 p.m. every day. While working, D.D.
was not allowed to take many breaks. One of her main jobs was to cook meals
for the Toures. D.D. was also responsible for taking care of the Toures’ children
during the day, performing tasks such as changing diapers. When the children
grew older, D.D. had to walk them to school. While the children were at school,
D.D. cleaned the Toures’ house at Denise Cros-Toure’s direction. D.D. would
also shop for the Toures, walking or biking about a mile and a half to the
nearest grocery store to do so. In addition, the Toures tasked D.D. with fixing
household appliances, landscaping, and yardwork. D.D. also completed major
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household renovations, including painting the exterior of the home and helping
remodel the kitchen. At night, D.D. massaged Denise Cros-Toure’s back and
feet. On top of her work for the Toures, D.D. also cooked for and served the
Toures’ houseguests and watched over their children. At no point did the
Toures ever pay D.D. for her labor. Instead, D.D. obtained money through
occasional gifts, babysitting, and doing odd jobs for neighbors.
The Toures did not treat D.D. as if she were one of their own children.
While the Toures’ children received an education, D.D. was never allowed to
attend school. The Toures claim that they considered education options for
D.D., but they did not enroll her in school because they thought she needed to
have “papers.” The Toures did not home-school D.D. either, even though they
did not work outside the home for most of the time that D.D. lived with them.
During mealtimes, D.D. ate alone at the kitchen counter after the family had
finished eating together at the dining table. The defendants celebrated their
children’s birthdays but never D.D.’s. They displayed photos of their children
in the home but none of D.D. Denise Cros-Toure even made D.D. wash her
clothes separately from the laundry D.D. did for the rest of the family.
D.D. also suffered from medical neglect. The Toures provided routine
medical care, dental care, and orthodontia for their own children but not for
D.D. In fact, the Toures never took D.D. to see a doctor and took her to see a
dentist only once, despite her suffering from serious dental problems that
resulted in the loss of three adult teeth. On one occasion, D.D. had to extract
one of her own front teeth after it was partially dislodged in a fall at the Toures’
home. Next, after one of D.D.’s back teeth became infected and untreatable
with home remedies, Mohamed Toure took her to a dental clinic (instead of the
family dentist), where he paid cash for the tooth to be removed. Later, when a
second back tooth became infected, D.D. removed it herself with pliers.
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In addition to disparate treatment and neglect, D.D. suffered from
physical violence at the hands of the Toures. They frequently beat her—with a
belt, an electrical cord, a bottle, even a spoon. Once, when D.D. disrupted a
sleeping houseguest with her work, Denise Cros-Toure punished D.D. by
ripping her earring through her ear, permanently splitting D.D.’s earlobe.
Later, Denise Cros-Toure ripped another earring through D.D.’s other earlobe
and pulled out her hair, leaving D.D. with a bald spot. Mohamed Toure also
beat D.D. after she talked back to his mother and later sat on D.D.’s back to
hold her in place while his wife beat her.
The Toures would punish D.D., too, by banishing her from the house on
multiple occasions, during which she would stay alone at a local park. On one
such occasion, police officers found D.D. alone at the park, but she was unable
to communicate with them in English. After figuring out where D.D. lived, the
police officers brought her to the Toures’ home. Mohamed Toure was unable to
provide the police with a date of birth for D.D. when questioned, and he was
evasive in explaining her connection to the family. Once the officers left, Denise
Cros-Toure scolded D.D. for bringing the police to the house. During a
subsequent banishment, D.D. stayed at a public park for a week, sleeping on a
bench and using the hand dryer in a public bathroom to stay warm.
The Toures further punished D.D. through humiliation. Once, when she
was displeased with how D.D. maintained her hair, Denise Cros-Toure had
Mohamed Toure shave D.D.’s head. Another time, Denise Cros-Toure told D.D.
that she smelled bad and hosed her down in the back yard, commenting to her
husband that D.D. was so dirty that the soap would not foam. On other
occasions, Denise Cros-Toure called D.D. “[e]very name you can imagine,”
including “dog, slave, idiot, worthless, [and] useless.”
The Toures took steps to isolate D.D. and restrict her access to the
outside world. In addition to taking D.D.’s passport and visa when she arrived
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in the United States, the Toures never obtained new identification or
immigration documents for D.D. once these expired. When asked about D.D.,
the Toures told some people that she was their niece, while telling others that
she was an orphan. Although D.D. was allowed to roam around the
neighborhood, she could do so only after getting permission from Denise Cros-
Toure. Furthermore, D.D. did not have a cell phone, and the Toures did not
teach her to use the family’s landline or allow her to call her parents once she
arrived. The Toures also prevented D.D. from learning to read and write. For
example, when a family friend told the Toures about a school that would accept
D.D. without identification documents and offered to help transport her there,
the Toures still decided not to enroll her. When D.D. took a Hooked on Phonics
book that belonged to one of the Toures’ children, Denise Cros-Toure got angry
and made D.D. return it.
In 2016, a series of events compelled D.D. to flee the Toures’ home. First,
D.D. overheard a visiting family member ask Denise Cros-Toure if she could
have D.D. when she was done with her. Second, Denise Cros-Toure attacked
D.D. for talking back to Mohamed Toure, punching and choking D.D. until her
husband and one of their sons intervened.
Following this attack, D.D. fled the Toures’ house and went to stay with
a family friend. While there, D.D. revealed how the Toures abused her. When
the family friend asked D.D. if she wanted to contact the authorities, D.D.
chose to return to the Toures’ home because she feared involving the police.
When the family friend brought D.D. back to the Toures and inquired about
the abuse, they denied ever mistreating D.D. Once the family friend left, the
Toures confronted D.D. Denise Cros-Toure made D.D. apologize for leaving and
talking to the family friend, berated D.D. for being ungrateful, told D.D. to
leave the house and stay at the park, and said that she did not care if D.D.
were raped or killed. Denise Cros-Toure also dared D.D. to go to the police,
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stating that she would meet D.D. there and that the neighbors would support
the Toures. When D.D. asked the Toures to send her back to Guinea, Denise
Cros-Toure said she would not pay for D.D.’s travel. Later, Denise Cros-Toure
angrily told D.D. that “you need to be working in this house . . . you came here
for that,” and that “[her] house needs to be clean” before she would send D.D.
back to Guinea.
Eventually, D.D. was able to communicate with an acquaintance who
arranged for a former neighbor to collect D.D. from the Toures’ home. D.D. then
made her way to Houston, where the Y.M.C.A. put her in touch with the
Houston Human Trafficking Task Force. In his interview with law
enforcement, Mohamed Toure described D.D.’s departure as an “escape,” and
commented that he did not “turn her in” to the authorities when she left. He
also admitted that he did not know where D.D. was staying, did not know how
to contact her, and did not contact the police when she disappeared.
On September 19, 2018, a federal grand jury returned a five-count
indictment against the defendants. The indictment charged each defendant
with: (1) conspiracy to commit forced labor in violation of 18 U.S.C. §§ 1589
and 1594(b); (2) forced labor in violation of 18 U.S.C. §§ 2, 1589, and 1594(a);
(3) conspiracy to harbor an alien for financial gain in violation of 8 U.S.C. §§
1324(a)(1)(A)(v)(I) and 1324(a)(1)(B)(i); and (4) harboring an alien for financial
gain in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iii), 1324(a)(1)(A)(v)(II), and
1324(a)(1)(B)(i). The indictment also charged Mohamed Toure with (5) making
a false statement to a federal agent in violation of 18 U.S.C. § 1001(a)(2).
The case proceeded to trial. At the close of the government’s case, the
defendants moved for judgments of acquittal based on insufficient evidence.
The district court deferred ruling on the motion until after trial. Before
announcing the jury’s verdict, the district court denied the defendants’ motions
for judgments of acquittal. The jury found both defendants guilty of forced
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labor; conspiracy to harbor an alien for financial gain; and harboring an alien,
a lesser included offense of harboring an alien for financial gain. The jury
acquitted the defendants of all other charges. The district court sentenced
Mohamed Toure and Denise Cros-Toure to eighty-four months of
imprisonment and made each defendant jointly and severally liable for a
restitution award of $288,620.24.
The defendants now appeal their convictions, raising four issues: (1)
their forced-labor conviction under § 1589 should be vacated because the
statute’s definition of “serious harm” is unconstitutionally vague or overbroad;
(2) the evidence was insufficient to support Mohamed Toure’s conviction of
forced labor; (3) the district court abused its discretion by failing to give the
defendants’ requested jury instruction; and (4) the district court erred in
imposing a restitution award of $288,620.24. We address each of these issues
in turn.
II.
The defendants first argue that their forced-labor conviction
under § 1589 should be vacated because the statute’s definition of “serious
harm” is unconstitutionally vague or overbroad. We disagree.
The forced-labor statute, known as the Victims of Trafficking and
Violence Protection Act (TVPA), punishes anyone who “knowingly provides or
obtains the labor or services of a person” through one or more of several
prohibited means. 18 U.S.C. § 1589. Per the statute’s 2008 amendment, these
means include, in relevant part, “serious harm or threats of serious harm to
that person or another person,” id. § 1589(a)(2), or a “scheme, plan, or pattern”
intended to make the person believe that she or someone else will “suffer
serious harm or physical restraint” unless she performs the desired labor or
services, id. § 1589(a)(4). The 2008 amendment also defines “serious harm” as:
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any harm, whether physical or nonphysical, including
psychological, financial, or reputational harm, that is sufficiently
serious, under all the surrounding circumstances, to compel a
reasonable person of the same background and in the same
circumstances to perform or to continue performing labor or
services in order to avoid incurring that harm.
Id. § 1589(c)(2).
Because the defendants raise this issue for the first time on appeal, we
apply plain-error review. See United States v. Rojas, 812 F.3d 382, 390–91 (5th
Cir. 2016) (reviewing for plain error a constitutional challenge to a statute
raised for the first time on appeal). Under the stringent standard of plain-error
review, we “will reverse only if ‘(1) there is an error, (2) that is clear or obvious,
and (3) that affects [the defendant’s] substantial rights.’” Id. at 391 (quoting
United States v. Ferguson, 211 F.3d 878, 886 (5th Cir. 2000)). An error is “clear”
or “obvious” only if it is clear “under current law.” United States v. Olano, 507
U.S. 725, 734 (1993); see also United States v. Escalante-Reyes, 689 F.3d 415,
418–19 (5th Cir. 2012) (en banc). When all three prongs are satisfied, we will
exercise our discretion to correct the error only if it “seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Rojas, 812 F.3d
at 391 (quoting Olano, 507 U.S. at 736).
We need only address the second prong. The defendants have failed to
identify any authority holding that under current law—the standard they
must meet on plain-error review—the forced-labor statute’s definition of
“serious harm” is unconstitutionally vague or overbroad. Indeed, no court has
ever held that § 1589’s definition of “serious harm” is unconstitutional. In fact,
the courts that have addressed this issue have held the opposite. See United
States v. Calimlim, 538 F.3d 706, 710–13 (7th Cir. 2008) (holding that § 1589
is neither unconstitutionally vague nor overbroad); United States v. Wiggins,
No. EP-11-CR-2420, 2013 WL 12196743, at *2 (W.D. Tex. Mar. 5, 2013) (“The
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court . . . concludes that the counts invoking Sections 1589 and 1591 are not
unconstitutionally vague.”); United States v. Sou, No. 09-00345, 2011 WL
3207265, at *5–8 (D. Haw. July 26, 2011); United States v. Askarkhodjaev, No.
09-00143-01, 2010 WL 4038783, at *2–6 (W.D. Mo. Sept. 23, 2010), adopted by,
2010 WL 4038745 (W.D. Mo. Oct. 4, 2010); United States v. Garcia, No. 02-CR-
110S-01, 2003 WL 22956917, at *2–6 (W.D.N.Y. Dec. 2, 2003).
The defendants do not cite a single case holding otherwise. Because they
cannot show that the error (assuming there is one) is “clear or obvious,” their
challenge on this point fails. See, e.g., United States v. Parsons, 134 F. App’x
743, 743 (5th Cir. 2005) (“Given the lack of controlling authority on this
particular vagueness issue, any error on the part of the district court was not
clear or obvious and could not have been plain error.”); United States v.
Calverley, 37 F.3d 160, 165 (5th Cir. 1994) (en banc) (“The uncertainty
manifest in this area of the law illustrates that any error on the part of the
trial court could not be plain.”).
III.
Mohamed Toure next argues that the evidence was insufficient to
support his forced-labor conviction. 2 This argument also fails.
We review de novo a district court’s denial of a motion for judgment of
acquittal based on insufficient evidence. United States v. Reed, 908 F.3d 102,
123 (5th Cir. 2018). However, such challenges are considered “with substantial
deference to the jury verdict.” United States v. Evans, 892 F.3d 692, 702 (5th
Cir. 2018). We must affirm the jury verdict “if a reasonable trier of fact could
conclude from the evidence that the elements of the offense were established
beyond a reasonable doubt.” Reed, 908 F.3d at 123. When making this
2 Only Mohamed Toure—not Denise Cros-Toure—argues that the evidence was
insufficient to support his conviction.
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determination, we “view the evidence in the light most favorable to the verdict
and draw all reasonable inferences from the evidence to support the verdict.”
Id.
To establish that Mohamed Toure violated § 1589, as charged, the
government was required to prove beyond a reasonable doubt that he: (1)
“provided or obtained the labor or services of [D.D]”; (2) did so either by “threats
of serious harm” or “a scheme, plan, or pattern intended to cause [D.D.] to
believe that, if [D.D] did not perform such labor or services, [D.D] would suffer
serious harm”; and (3) did so “knowingly.” Mohamed Toure contests only the
second and third elements. In other words, he admits that he obtained D.D.’s
labor or services but claims that he did not knowingly do so by prohibited
means. Section 1589(c)(2) defines “serious harm” as harm that is “physical or
nonphysical, including psychological, financial, or reputational harm,” the
seriousness of which is viewed “under all the surrounding circumstances” in
light of the effect a defendant’s actions might have on a “reasonable person of
the same background and in the same circumstances” as the victim.
Mohamed Toure contends that although there is evidence that he
punished D.D. with violence, the evidence does not show that he punished
her—by way of means prohibited by the statute—with the intention to secure
labor or service from D.D. He also asserts that the evidence is insufficient to
show that he was part of a “scheme, plan, or pattern” intended to cause D.D.
to believe that, if she did not perform such labor or services, she would suffer
serious harm. Mohamed Toure supports this statement by arguing that his
involvement with D.D. was “episodic and his discipline of D.D. spread so widely
over sixteen years that the evidence [would] not permit a rational juror to
conclude that he engaged in such a ‘scheme,’ ‘plan,’ or ‘pattern.’” According to
Mohamed Toure, there is no evidence showing whether these incidents
occurred days, weeks, months, or years apart. Thus, he asserts that no rational
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juror could have concluded that he engaged in a “scheme” or “plan,” or that he
had the requisite mental state of knowing that his punishment would secure
D.D.’s future labor or services.
The government counters these assertions, first arguing that the jury
had sufficient evidence to determine that Mohamed Toure committed forced
labor either through “threats of serious harm” to D.D. or through a “scheme,
plan, or pattern intended to cause” D.D. to believe that if she did not work, she
would suffer “serious harm or physical restraint.”
We agree with the government. The record is replete with evidence
showing that Mohamed Toure intended to commit forced labor through
prohibited means. To start, Mohamed Toure retrieved D.D. from the airport
when she arrived in the United States alone, as a child, on a six-month tourist
visa that the Toures allowed to expire, leaving her undocumented. Mohamed
Toure either beat or helped beat D.D. when she failed to perform her work to
the Toures’ satisfaction. He also scolded her about her work performance and
disobedience.
Mohamed Toure took active steps to isolate D.D. and hide her. For
example, he evaded questions from the police when they found a young D.D.
banished in the park. When acquaintances asked about D.D., the Toures told
them that she was their niece, or told them she was an orphan. When D.D.’s
infected tooth required dental care, Mohamed Toure paid cash to have the
tooth removed at a dental clinic instead of taking her to the family dentist.
In addition, the Toures did not enroll D.D. in school or educate her at
home, despite Mohamed Toure never working outside of the home. Also, D.D.
did not have any independent means of leaving the neighborhood, as she could
neither drive nor access public transportation, and her savings consisted only
of occasional gifts and money from babysitting or doing odd jobs for neighbors.
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D.D. was even isolated from the other Toure children, receiving separate and
inferior treatment with respect to eating, sleeping, schooling, and medical care.
In his brief, Mohamed Toure cited three incidents of his conduct—
shaving D.D.’s head, beating D.D. for talking back to his mother, and
restraining D.D. during a beating from his wife—as insufficient to allow a jury
to find beyond a reasonable doubt that he committed forced labor. To the
contrary, each of these acts demonstrate that Mohamed Toure’s conduct caused
D.D. to remain with the defendants because she faced threats of serious harm,
or reasonably believed she would face serious harm, if she did not provide them
with her labor and services. By shaving D.D.’s head when his wife was
displeased with her hairstyle, Mohamed Toure contributed to a pattern of
dehumanizing and abusive behavior in order to secure D.D.’s compliance. In
beating D.D. and helping to beat D.D., Mohamed Toure personally employed
violence as a consequence for D.D.’s noncompliance with the family’s demands.
Indeed, it was D.D.’s failure to prepare breakfast for Mohamed Toure’s mother
that led him to beat her—a clear example of D.D. suffering physical harm if
she did not work.
The government next counters Mohamed Toure’s assertion that he did
not know that his actions would force D.D. to work by prohibited means.
During his interview with law enforcement, Mohamed Toure stated that D.D.’s
father “gave” or “let [the Toures] have” D.D., and he described D.D.’s departure
from the Toure’s home as an “escape.” These statements implicitly
acknowledge that D.D. had no choice in coming to live at the defendants’ home
and that she remained there against her will. These statements, combined
with the withholding of D.D.’s immigration documents and failure to help her
obtain new ones, would permit a reasonable jury to infer that Mohamed Toure
had the knowledge and intent to force D.D. to work by prohibited means. See
United States v. Dann, 652 F.3d 1160, 1172 (9th Cir. 2011) (concluding that
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there was sufficient evidence to establish § 1589’s scienter requirement in part
because the defendant described the victim’s departure as an “escape” and
withheld the victim’s immigration and identification documents).
Furthermore, we reject Mohamed Toure’s assertion that his
“involvement with D.D. and the family was episodic” such that he lacked
knowledge of the means used to obtain D.D.’s labor. The record clearly shows
that Mohamed Toure was personally involved in violent acts that were directly
related to D.D.’s labor. For example, Mohamed Toure attacked D.D. for not
preparing his mother’s breakfast, held D.D. down while his wife beat her, and
instigated his wife to beat D.D. by complaining about D.D.’s failure to make
dinner. Moreover, D.D. stayed in Mohamed Toure’s house for sixteen years.
Although he occasionally took trips abroad, he never worked outside of the
home. While home, Mohamed Toure benefited from D.D.’s cooking, cleaning,
and childcare services. We conclude that Mohamed Toure’s consistent presence
in the household for so many years, and direct participation in D.D.’s abuse,
amply supports the jury’s verdict. See United States v. Sabhnani, 599 F.3d 215,
241–42 (2d Cir. 2010) (explaining that the jury’s common sense and experience
allowed the reasonable inference that the husband knew that maltreatment
caused his family’s maids to work where he observed and contributed to his
wife’s abusive tactics).
IV.
The defendants also contend that the district court abused its discretion
by failing to give the defendants’ requested jury instruction. We find no abuse
of discretion by the district court.
We review challenges to jury instructions for abuse of discretion,
affording district courts “substantial latitude” in describing the law to the jury.
United States v. Wright, 634 F.3d 770, 774 (5th Cir. 2011). A district court’s
refusal to give a defendant’s proposed instruction is reversible error only
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where: (1) the instruction sought is “substantially correct”; (2) “the requested
issue is not substantially covered in the charge”; and (3) “the instruction
concerns an important point in the trial” such that its absence “seriously
impaired the defendant’s ability to effectively present a given defense.” United
States v. Daniel, 933 F.3d 370, 379 (5th Cir. 2019). Importantly, we have
previously confirmed that a “district court does not err by giving a charge that
tracks this Circuit’s pattern jury instructions and that is a correct statement
of the law.” United States v. Whitfield, 590 F.3d 325, 354 (5th Cir. 2009).
Concerning their charges of conspiracy to harbor an alien for financial
gain and harboring an alien, the defendants requested a jury instruction on
what qualifies as “harboring an alien.” Specifically, their requested instruction
provided:
The mere act of providing shelter to an alien, when done without
intention to help prevent the alien’s detection by immigration
authorities or police, is not an offense and is not alone, sufficient to
prove beyond a reasonable doubt that the defendant unlawfully
harbored an alien as alleged in the indictment.
The defendants argued at trial that this language explains that
concealing, harboring, or shielding means hiding something from detection,
consistent with Congress’s intent to proscribe knowing or willful conduct that
substantially facilitates an alien’s unlawful presence. The government argued
that adding this language was unnecessary and inadvisable, because it was
not included in the Fifth Circuit’s Pattern Jury Instruction and was not drawn
from criminal case law. The district court ultimately adopted most, but not all,
of the defendants’ proposed language. The district court instructed the jury
that “[t]he mere act of providing shelter to an alien is not, alone, sufficient to
prove beyond a reasonable doubt that the defendant harbored an alien.” The
district court thus omitted the italicized language in the defendants’ requested
instruction.
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Although the Toures claim error, they were still free to make this
argument during closing. See, e.g., United States v. Frame, 236 F. App’x 15, 18
(5th Cir. 2007) (holding no abuse of discretion where jury instructions
adequately addressed the defendant’s defenses and where the defendant was
free to argue those defenses during closing). Plus, per our precedent, the
district court did not abuse its discretion by using Fifth Circuit Criminal
Pattern Jury Instruction 2.01C to model its instruction to the jury on harboring
an alien. Because the district court’s instruction tracked 2.01C, see Fifth
Circuit Criminal Pattern Jury Instr. 2.01C (2015), the only question is whether
2.01C is a correct statement of the law. See Whitfield, 590 F.3d at 354. Here,
the defendants identify no authority or make any argument that undermines
the legal correctness of the Pattern Jury Instruction. In fact, the elements of
harboring in the Pattern Jury Instruction and in the district court’s instruction
closely adhere to this court’s description of harboring in prior cases. See United
States v. Shum, 496 F.3d 390, 392 (5th Cir. 2007); United States v. De Jesus
Batres, 410 F.3d 154, 162 (5th Cir. 2005).
Moreover, we have previously addressed the situation where a pattern
charge correctly states the law but a party requests an additional instruction
that also correctly states the law. In United States v. Cessa, 856 F.3d 370, 376
(5th Cir. 2017), this court, following earlier precedent, concluded that a district
court is not required to adopt additional proposed language—even if it
accurately states the law—and does not abuse its discretion in declining to do
so. We thus hold that the district court did not abuse its discretion by using a
pattern jury instruction that correctly stated the law.
V.
Finally, the defendants argue that the district court erred in imposing a
restitution award of $288,620.24. We find no error.
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No. 19-10505
The TVPA provides mandatory restitution for a conviction under § 1589,
and such restitution must include the “full amount of the victim’s losses” as
well as the “value of the victim’s labor as guaranteed under the minimum wage
and overtime guarantees of the Fair Labor Standards Act.” § 1593(b)(3). An
award under the Fair Labor Standards Act must also include back pay plus
“an additional equal amount” as liquidated damages, in effect doubling the
restitution award. 29 U.S.C. § 216(b).
The district court must resolve any disputes regarding the amount of
restitution based on a preponderance of the evidence. United States v. De Leon,
728 F.3d 500, 506–07 (5th Cir. 2013). In addition, a sentencing court’s “failure
to give a reasoned analysis of how it arrived at its [restitution] award in a
manner that allows for effective appellate review” may require vacating and
remanding. Id. at 507.
At sentencing, the defendants objected to the amount of restitution in
the Pre-Sentence Report (PSR) and explained why they believed the calculated
amount was incorrect. They contend that the district court erred by
nevertheless concluding, without explanation, that the defendants should pay
D.D. for forty hours of work per week for the sixteen years she stayed with
them. The government counters this assertion, arguing that the district court
sufficiently explained the basis for its restitution order and that the record
amply supported it. We agree with the government.
In reaching its suggested restitution amount, the Probation Office
explained that it based its factual conclusions on evidence of D.D.’s work for
the Toures, which neighbors and friends observed. The back-wage calculation
itself relied on information from a U.S. Department of State agent, who stated
that D.D. typically worked from 6:30 or 7:00 a.m. until 8:00 or 9:00 p.m.,
averaging 13.75-hour workdays. The calculation excluded thirteen weeks from
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No. 19-10505
D.D.’s sixteen years in the household, presumably to account for instances
when the Toures traveled and left D.D. in Texas.
At the sentencing hearing, the district court adopted the PSRs and PSR
Addendums with respect to the restitution award calculation methodology but
not with respect to the restitution amount. The court reduced the number of
hours D.D. worked per week from 96.25 to 40, “given the arguments” at the
sentencing hearing “as to DD’s daily life experience.” The court adopted
“everything else” that went into the Probation Office’s calculation of D.D.’s lost
wages—“the minimum wage numbers, the weeks worked numbers, and the
lodging credit number.” The court calculated the amount of restitution to be
$144,310.12 and then doubled it to arrive at a total of $288,620.24. The district
court sufficiently explained the basis for its restitution award. It therefore did
not constitute an abuse of discretion.
* * *
For the foregoing reasons, we AFFIRM.
17