Petition for Writ of Certiorari — Sabhnani v. United States

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NOFFIGE OF THE CLERK

IN THE

Supreme Court of the United States

MAHENDER MURLIDHAR SABHNANI,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

PETITION FOR A WRIT OF CERTIORARI

ALAN M. DERSHOWITZ MIGUEL A. ESTRADA

1575 Massachusetts Avenue Counsel of Record

Cambridge, MA 02138 DAVID DEBOLD

(617) 496-2187 GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

mestrada@gibsondunn.com

Counsel for Petitioner Mahender Murlidhar Sabhnani

QUESTIONS PRESENTED

Petitioner was charged with specific-intent

crimes arising from his wife’s alleged scheme to hold

two immigrant domestic workers in involuntary ser-

vitude. The government’s primary theory was that

petitioner aided and abetted his wife by failing to act:

t.e., he knew what his wife was doing but did not stop

her. The district court gave an aiding-and-abetting

instruction, over petitioner’s objection, stating that

willful) participation in’ the principal’s criminal

scheme could be satisfied, “in the case of failure to

act, [by] the specific intent to fail to do something

that the law requires to be done.”

In affirming, the Second Circuit found the gov-

ernment’s failure-to-act theory for aiding and abet-

ting “dubious,” but declined to decide whether it was

lawful for the jury to convict petiticner under it. The

court instead found that the challenged instruction

was not likely to have led the jury to convict for fail-

ure to act, but did so without engaging in the harm-

less-error analysis required under Neder v. United

States, 527 U.S. 1 (1999), Hedgpeth v. Pulido, 129

S. Ct. 530 (2008) (per curiam), and Skilling v. United

States, 1380S. Ct. 2896 (2010).

The questions presented are:

1. Whether a reviewing court may rule out the

risk of prejudicial error from an aiding-and-abetting

instruction that includes a legally erroneous ground

for conviction without engaging in the harmless-

error analysis required under Neder, Hedgpeth, and

Skilling.

2. Whether a defendant may be found guilty of

aiding and abetting under 18 U.S.C. § 2 for failure to

act where no law establishes a duty to act.

PARTIES TO THE PROCEEDING

Petitioner 1s Mahender Murlidhar Sabhnani, a

defendant-appellant below. Varsha Mahender Sabh

nani was also a defendant-appellant below.

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESEN TEED ....ccsccccsevscsscscvvccssnsseeeseenece i

PARTIES TO THE PROCEEDING .................0.0..0.... ll

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REASONS FOR GRANTING THE PETITION ....... 13

|. THE SECOND CIRCUIT'S ANALYSIS OF

INSTRUCTIONAL ERROR DIVERGES

SHARPLY FROM Tile PRECEDENTS OF

THIS COURT AND OTHER CIRCUITS................ 13

ll. THE QUESTIONS PRESENTED ARE

EXCEEDINGLY IMPORTANT FOR ‘THE

ADMINISTRATION OF CRIMINAL JUSTICE ........29

Il. IN THE ALTERNATIVE, THIS COURT

SHOULD GRANT THE PETITION, VACATE

THE RULING BELOW, AND REMAND IN

LIGHT OF SKILLING V. UNITED STATES ..... enthal

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APPENDIX A: Opinion of the United States

Court of Appeals for the Second Circuit

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APPENDIX B: Opinion of the United States

District Court for the Eastern District of

Now York (Beareit 11, BO) cissccvaceccvecsccccocevevccsesss 88a

APPENDIX C: Order of the United States

Court of Appeals for the Second Circuit.

Denying Rehearing (May 12, 2010)..................0... 118a

APPENDIX D: Colloquy on Aiding-and-

Abetting Instruction (December 5, 2007)............. 120a

APPENDIX E: Government Summation

(December 10, 2007) — excerpts.........................284 123a

APPENDIX F: Jury Instructions

(December 12, 2007) — excerpts....................06. wee L3ZA

APPENDIX G: Sentencing Hearing

(June 27, 2008) - excerpts ....................0000 ieseeel 136a

APPENDIX H: Oral Argument Before the

United States Court of Appeals for the

Second Circuit on Bail Motion

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APPENDIX I: Brief of the United States in

the United States Court of Appeals for

the Second Circuit (January 12, 2009)

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TABLE OF AUTHORITIES

Page(s)

Cases

Altamtrano v. Gonzales,

4387 F.3G SEG (Sth Cir. ZOOB)........cccccccsecvcocees: 16, 26

Bachellar v. Maryland,

re NG os. scsevaedbaisactausnnssivessveceins eet

Black v. United States,

ee ts ey I 0 ids dev scsncinicascxnsievecsapdvacsiebesses 35

Chapman v. California,

Be Fis Be CRIED taviceicciecsenvecicentes siecaige 13, 14, 15

Cupp v. Naughten,

i ie caicssip cna suas Scacnbausiadaacencestanracs 20

Goodman v. Bowdoin College,

ee ee Me Be GEE, BE) vcvivincccscccisiciccicsecsdectanen 21

Hedgpeth v. Pulido,

ee Bc Te CD re siivieakensccevcenaceveentie i, 13, 15, 16

Lambert v. Wicklund,

ee a EE IEE Fi cia cvncesxessn¥cnseussnanstnpscaceveonoenres 19

Neder v. United States,

Or BN iid icy ccannnsvenuenconsrpsdvasuadads 1, 15, 19

Nye & Nissen v. United States,

re We CNET isk vecenciccevscnvnsacesspsstbeacoonmtaees 16

Parr v. United States,

Be es Te PD hixevesetiseccissnscnciacetucssaseeebacseee 24

Skilling v. United States,

BO is OE, Be CL) wivviscccncnxsvcessessivinssinanis i, 14, 31

Stromberg v. California,

ORS RP SG |

United States v. Akpan,

407 F.3d 360 (5th Cir. 2005).......

United States v. Allen,

390 F.3d 944 (7th Cir. 2004)....... )

United States v. Aramony,

88 F.3d 1369 (4th Cir. 1996).......

United States v. Bailey,

405 F.3d 102 (1st Cir. 2005).......

United States v. Baldwin,

347 F. App’x 911 (4th Cir. 2009)

United States v. Bonetti,

277 F.3d 441 (4th Cir. 2002).......

United States v. Carney,

387 F.3d 436 (6th Cir. 2004).......

United States v. Clay,

495 F.2d 700 (7th Cir. 1974).......

United States v. Curran,

20 F.3d 560 (3d Cir. 1994) ..........

United States v. Davis,

138 F. App’x 914 (9th Cir. 2005)

United States v. Diaz-Boyzo,

432 F.3d 1264 (11th Cir. 2005)...

United States v. Fotovich,

885 F.2d 241 (5th Cir. 1989).......

United States v. Gaudin,

BLS U.S. SOG (LGB) .......ccrcsccccsvees

ineseauvaseea? er

edananadununontasedeaeks 209

jasabaaabernies 1.22, ol

eckanekiaesneen 28, 29

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Vil

United States v. Gonsalves,

OO Fe OO CUE CAE, Be) ovis cscncnvveccsscvccccvesssccens 30

United States v. Hayes,

574 F.3d 460 (8th Cir, ZOOB).........ccccccccevcccccssessees 16

United States v. Huezo,

B46 F.SG LTA (2G Cir. 2006) .....0ccccccccscccscoccsecsccvcces 26

United States v. Jenkins,

OO F.3d G14 (Sd Cie. LOBE) ....cccccccccccsscscccescsccscocsss 27

United States v. Labat,

SOG FB 16 CAG Cir. BOBO) .0....0cccrcecccccccsccosesesnseess 28

United States v. Lopez-Urbina,

434 F.3d 750 (5th Cir. 2005).......................... 16, 17

United States v. Medina-Roman,

Se ee Bh Ce Ca, BD crecva vnckcccovesnsncsacscensssoceas 16

United States v. Mercado,

GIO F.2e B41 (Ga Cir. BOLO) .....cccccocsccsccccacscevscscsee 26

United States v. Morrow,

ge oh Boe 2 eR | 26

United States v. Mucciante,

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United States v. Park,

Oe er Ne Ev cisccouaneveundonsouarendaicacaenceill 20, 21

United States v. Peont,

100 F.2d 401 (2d Cir. 1938)........................... 16, 26

United States v. Perez-Melendez,

Pe oe CRE Oi, PNUD cccnsvenecacssenccssccccuncsanvses 26

United States v. Ruiz,

OBS Fk BETS CTE CAP, TDL) vn ncencecesescccccsexcccscess 21

V1ll

United States v. Salamanca,

990 F.2d 629 (D.C. Cir. 1993)...................cccecceere- 26

United States v. Samuels,

§21 F.3d 804 (7th Cir. 2008).....................000.. 26, 27

United States v. Sanchez-Mata,

925 F.2d 1166 (9th Cir. 1991)...........................06. 27

United States v. Smith,

BE ee EE CHP UAE. BOO occ sccenvccscescecccconscceocsecces 8

United States v. Spoone,

741 F.2G GOO (4th Cir. 19G4)......ccccccccccccceccsesscceess 26

United States v. Summers,

414 F.3d 1287 (10th Cir. 2005)...................... 16, 26

United States v. Vonn,

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United States v. Wiley,

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United States v. Willis,

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United States v. Wills,

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United States v. Wilson,

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United States v. Wilson,

--- F.3d ---, 2010 WL 3419674

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van Hofe v. United States,

Be Ae BF Ce GAs TD cicescccsvnssecesancncscesesveces 25

Wright v. United States,

182 F.3d 458 (6th Cir. 1999)............... cece eee cece es 16

Yates v. Evatt,

SOO UB. Be Ca iathctinencoccccccsccccss 13, 14

Yates v. United States,

BOR Fi a 13

Statutes

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S U.S.C. & LSB A a ea aah ca ksccscccesccccccccccce 28

18 U.S.C. © B ivccccosccnvaeuneeeee rebadebe i, 1, 5, 25, 30

1B U.S.C. © Bea ccccce ee Ciiccsesccceccccccscene 2

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Other Authorities

Sand, Leonard, et al., Modern Federal

Jury Instructions—17 Criminal

(2006 ed.) ..:csvcsasndesslaueieeeeenenescecceses ae 0000

Weiss, Baruch, What Were They Think-

ing; The Mental States of the Aider

and Abettor and the Causer Under

Federal Law, 70 Fordham L. Rev. 1341

(BOOZ) «..cccevocccevsusnnsdeeeEENI Cnet escceresscecceseeeGO

PETITION FOR A WRIT OF CERTIORARI

Petitioner Mahender Murlidhar Sabhnani peti-

tions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Second

Circuit.

OPINIONS BELOW

The opinion of the court of appeals is published

at 599 F.3d 215 (Pet. App. la). The opinion of the

district court is published at 539 F. Supp. 2d 617

(Pet. App. 88a).

JURISDICTION

The court of appeals filed its opinion on March

25, 2010, and denied rehearing on May 12, 2010.

Pet. App. 118a. On July 16, 2010, JUSTICE GINSBURG

granted an extension of time to file a petition for cer-

tiorari to October 11, 2010. No. 10A67. The jurisdic-

tion of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 2 provides:

§ 2. Principals

(a) Whoever commits an offense against the

United States or aids, abets, counsels, commands,

induces or procures its commission, is punishable as

a principal.

(b) Whoever willfully causes an act to be done

which if directly performed by him or another would

be an offense against the United States, is punish-

able as a principal.

STATEMENT

The government, armed with a supporting jury

instruction, urged the jury in summation to convict

petitioner on a theory of criminal liability over-

whelmingly rejected by federal courts: that a defen-

dant is guilty as an aider and abettor under 18

U.S.C. § 2(a) for failing to stop the criminal conduct

of another. Decades of jurisprudence in this Court

and the courts of appeals hold that, in the absence of

a legally required duty to act, an essential element of

aiding and abetting is that the defendant participate

in the crime through an “affirmative act.” Yet when

reviewing petitioner’s convictions in a trial in which

failure to act was not only one of the government’s

two theories for conviction, but its principal theory,

the Second Circuit refused to conduct the harmless-

error analysis required by this Court’s precedents

Instead, it devised a halfway approach in which it

found no prejudice from instructing on failure-to-act

liability solely by looking to the challenged aiding-

and-abetting instruction—rather than the entire

trial record—and without placing the burden to dis-

prove prejudice on the goverrment. The Second Cir-

cuit’s erroneous method of harmless-error review

warrants this Court’s review, particularly in light of

the far-reaching implications of the government’s

overly broad aiding-and-abetting theory.

1. Between 2002 and 2007, petitioner and his

wife, Varsha Sabhnani, immigrants from India and

Indonesia respectively, employed two Indonesian

domestic workers, Samirah and Enung, in their

home in Syosset, New York. Pet. App. 4a—5a.

Samirah arrived in the United States and began

work in February 2002, and Enung in January 2005.

Id. at 5a, 1la. Petitioner’s interaction with Samirah

and Enung was minimal. He did not speak Indone-

sian, and they did not speak English. Trial Tr. 2370,

3488. Varsha, who did speak Indonesian, oversaw

the household while petitioner ran the family busi-

ness, a successful perfume export operation, from an

office adjacent to the home.

Samirah left the residence on the evening of May

12, 2007, and told police the following day that Var-

sha had physically abused her. Pet. App. 16a. The

next day, the police arrested petitioner and his wife,

and they were indicted on charges of forced labor (18

U.S.C. §1589(a)), harboring aliens (8 U.S.C.

§ 1324(a)(1)(A)(iii)), peonage (18 U.S.C. § 1581(a))

and document servitude (id. § 1592(a)), as well as

conspiracy counts for each of the four substantive of-

fenses. Pet. App. 18a—19a; D.E. 182 (E.D.N.Y. Sept.

18, 2007). According to the government, the

Sabhnanis had conspired to employ the women for

years without paying them directly and to prevent

them from returning to Indonesia. The government

identified a number of overt acts that allegedly fur-

thered the conspiracy, but nearly all were attributed

to Varsha alone. D.E. 182, at 2-6, 9-18. The gov-

ernment alleged, for example, that Varsha had

physically abused the women, prevented them from

leaving the residence, confiscated their passports,

and made them perform work without direct com-

pensation.! The only “acts” that the indictment at-

1 Samirah’s payment, which went to her daughter Lita in In-

donesia, was an initial $1 million rupiah and then $100 per

month (the equivalent of $1 million rupiah between 2002 and

2007). Trial Tr. 1369~70, 2508, 2511. Although the govern-

ment relied on these amounts to assert that Samirah must have

stayed involuntarily, the payment made to Lita was in line with

tributed to petitioner were accompanying Varsha

and others when they picked each of the two women

up at the airport upon their arrivals in the United

States; having joint access to the locked closet in

which Varsha stored the women’s passports along

with the Sabhnanis’ own immigration documents;

and joining Varsha in looking for Samirah on May

13, 2007 after she left without telling the Sabhnanis.

See id.

At trial, the government presented graphic tes-

timony from the women about Varsha’s purported

mistreatment of them by, for example, cutting

Samirah’s face and chest with a knife, forcing

Samirah to eat her own vomit, and inflicting numer-

ous other punishments for minor transgressions. See

Trial Tr. 1765, 1769, 1876-77.

The government's evidence against petitioner

paled in comparison. According to the testimony of

both Samirah and Enung, not only was petitioner

never present for the abusive behavior, Varsha took

active steps to conceal her conduct from him. For

example, Enung testified that “the Mister didn’t

know” about Varsha’s alleged threats to kill the

women. Trial Tr. 3576. Indeed, the few acts that the

government even tried to attribute to petitioner were

of weak probative value at best: e.g., instructing

Samirah on occasion to complete her household

chores (id. at 1768); telling his wife that Samuirah

had fallen asleep while cleaning and (on another oc-

casion) that she was eating food from a garbage re-

ceptacle (id. at 1848); and turning down a gardener’s

[Footnote continued from previous page]

Indonesian wages; for example, Lita’s husband made $2 million

rupiah per month as an attorney. Trial Tr. 2593-94.

offer to help the women carry a heavy statue (id. at

3650-54). The government did not allege, because

nothing would have supported it, that petitioner ever

laid a hand on either woman or that he restrained

them from leaving.

Given that the most the government could hope

to establish was that petitioner knew about the mis-

treatment, it built its case against him on the propo-

sition that his failure to intervene made him liable

for aiding and abetting his wife under 18 U.S.C. § 2.

That statute punishes as a principal “[w]hoever .. .

aids, abets, counsels, commands, induces or procures

lan offense’s] commission.” The government’s view

was that “aiding and abetting may be predicated

upon a failure to act” even without an established

duty to act, and that in any event the common law

and the statutes under which petitioner was charged

imposed a duty to stop another’s alleged mistreat-

ment of third parties. Pet. App. 158a—67a.

To that end, the government proposed an aiding-

and-abetting instruction that, in pertinent part,

stated: “Participation in a crime is willful] if action is

taken voluntarily and intentionally, or, in the case of

failure to act, with the specific intent to fail to do

something the law requires to be done.” D.E. 255, at

81 (E.D.N.Y. Dec. 1, 2007). Petitioner objected at the

charge conference to this instruction that allowed

him to be convicted for failing to act. Pet. App. 121la-—

22a. But the trial judge ruled that he would “leave it

in” because “if it is a proper thing, and you don’t do it

... liJt’s a violation of the law.” Jd. at 12la. Defense

counsel argued that such an instruction is appropri-

ate only “where the law imposes an affirmative duty

on the defendants to do something and there’s a fail-

ure to act,” such as the duty to pay taxes, and

pointed out that no such duty was alleged here:

“[Wle don’t have an offense here which charges a

crime of failure to do something.” Jd. at 121la—22a.

The trial judge disagreed:

Sure we do. We have a load of them to

stop what is going on in there, if you

take what the government says is [sic]

true. This man stayed there and let, for

five years, these beatings, deprivation,

lack of food, sleeping on the floor, wear-

ing tattered gowns, hit with a stick. He

failed to do anything. No, I’m leaving it

i} oe

Id. at 122a.

The judge therefore read the failure-to-act in-

struction to the jurors (twice), informing them that

willful participation as an aider or abettor included

“a failure to act with the specific intent to fail to do

something the law requires to be done.” Pet. App.

134a; see also Trial Tr. 5076. Under this objected-to

instruction, the jury had no need to concern itself

with any limits to what the law might have required

petitioner to do, because under the government’s

view of things the existence of a legal duty to act was

“not an issue that would be presented to the jury for

resolution.” Pet. App. 154a.

The government took full advantage of the re-

quested instruction in closing argument, urging the

jury to convict petitioner for his supposed failure to

stop Varsha from abusing the women. The govern-

ment readily conceded that petitioner “didn’t beat

them,” instead urging the jury to “[alsk yourselves

this, ladies and gentlemen: Who is worse? The

twisted soul who tortures the maid, or the man of the

house who lets it happen?” Pet. App. 124a. The

summation repeatedly stressed petitioner’s failure to

act in the face of what the government contended

was his knowledge of unlawful actions. Petitioner

“saw [Samirah] in rags, saw her in the wet clothing,

saw the hats [that she wore],” the prosecutor told the

jury, but “[hle didn’t do anything. He saw her sleep-

ing in the basement bathroom. He didn’t do any-

thing.” Jd. at 128a. Likewise, “[hle witnessed the

punishment of Enung for the chocolates [that she

had eaten]. ... She was forced to stand for hours.

What did he do? He laughed.” Jd. at 129a. The list

of things petitioner didn’t do continued:

e “He didn’t take Samirah to the doctor, even

though he saw her face that looked like that.”

ld.

e “He would see her swollen hands, her missing

teeth. He saw this and he did nothing.” /d.

e “(Wjhen she left his house on Mother’s Day for

hours and hours, he didn’t call the police.” /d.

Quoting from the failure-to-act instruction, the

government explained that “under the law Mahender

is responsible for each and every action of his wife”

because “[y]ou don’t have to have actually committed

the crime to be an aider and abettor.” Pet. App.

126a. “All that needs to be established,” the govern-

ment said, cementing the omissions theory in the ju-

rors’ minds, “is that somebody else committed the

crime, and that you knowingly and willfully associ-

ated yourself with that other person in some way to

help with the crime. Help with the crime. And that

can be done by action, or it can be done by a failure to

act.” Id. (emphasis added).

The jury convicted both petitioner and Varsha of

all counts. Pet. App. 97a. The jury found, as re-

flected on a special-verdict form, that the govern-

ment failed to prove that petitioner

a“

caused a ‘seri-

ous bodily injury” to Samirah or Enung or engaged

in “abuse or threatened abuse of the law or the legal

process.” D.K. 481-5, at 2, 4-7 (E.D.N.Y. Dec. 18,

2007).2

Petitioner moved for post-verdict acquittals, ar-

guing again that aiding-and-abetting lability could

not be predicated on a failure to act in the absence of

an established duty to act, and that “the Jury was

essentially invited to postulate any ‘legal duty’ it

thought appropriate under the circumstances.” D.E.

288-1, at 20—24 (E.D.N.Y. Jan. 21, 2008). The trial

judge denied the motion. He again held that the jury

was allowed to convict petitioner for failing to act,

citing statements in a number of Second Circuit deci-

sions that “to prove a defendant guilty of aiding and

abetting, the government must... prove... that the

defendant himself either acted or failed to act with

the specific intent of advancing the commission of

the underlying crime.” Pet. App. 115a (quoting

United States v. Smith, 198 F.3d 377, 383 (2d Cir.

1999) (ellipses in original)). In the alternative, the

judge concluded that “there was sufficient evidence

at the trial to prove that Mahender affirmatively

acted with the specific intent to advance the crimes.”

Id. at 116a. In other words, as the judge himself put

it, “this is not only a failure to act case.” /d. (empha

sis added).

2 Consistent with the government's failure-to-act theory, the

jury found that petitioner had “obtained the labor or services” of

the women “through threats of serious harm or physical re-

straint” all of which the testimony attributed to Varsha— and

likewise “a scheme, plan or pattern intended to cause [the

women] to believe that non-performance would result in serious

harm.” D.E. 481-5,. at 2-4.

At the sentencing hearing, the government con-

tinued to emphasize petitioner’s failure to act in the

face of inferred knowledge of his wife’s conduct: “He

had to know what was going on under his roof.” Sen-

tencing Tr. 33 (June 27, 2008). In pronouncing sen-

tence, the judge also focused yet again on the gov-

ernment’s failure-to-act theory for conviction. The

“role of Mahender,” he said, “is not as clear, certainly

as Varsha Sabhnani, who was... the active partici-

pant in these cruel acts.” Jd. at 37. He “had to sce

some of what was going on by Varsha,” and “so the

jury found that he aided and abetted in these crimes,

though he was not a participant at all.” Pet. App.

137a (emphasis added). Although Samirah and

Enung “testified that Mahender was not present

when many of these cruel things occurred,” a “rea-

sonable jury could believe that he had to see, hear,

and know about the many abuses of his wife.” Jd. at

138a—39a. The “main consideration in mitigation,”

the judge said, was that petitioner “never partici-

pated virtually in nothing. He participated in almost

none of the acts, except maybe the passport.” Jd. at

142a3 “But fhe] was there, saw, heard, and did

nothing.” Jd. The judge sentenced Mahender to 40

months in prison. Z/d. at 3a.4

3 This solitary affirmative act to which the judge was able to

point consisted of no more than petitioner’s awareness that

Samirah’s and Enung’s passports were safcly stored in the

same large cabinet that Varsha and petitioner used to store

their own immigration documents.

4 The judge also imposed an order of restitution in the

amount of $936,546.22, a fine of $12,500, and forfeiture of peti-

tioner’s house (including the office for his family business).

Varsha’s prison sentence was 132 months. Pet. App. 3a.

2. Petitioner sought bail pending appeal. He

pointed out that his appeal would raise the “signifi-

cant” issue of whether aiding-and-abetting liability

could be premised on a failure to act in the absence

of an established legal duty. Motion, at 6 (2d Cir.

Oct. 28, 2008). The district court denied the motion,

but a panel of the Second Circuit reversed. See Or-

der (2d Cir. Nov. 18, 2008) Goined by Sotomayor, J.).

At the hearing on the motion, the panel empha-

sized that the government’s failure-to-act theory

played a significant role in the appeal. See Pet. App.

l5la (Judge Sotomayor: “[T]he question is why a

charge indicating that the jury had to find a duty of

some sort wasn’t appropriate.”); id. at 1538a (Judge

Sotomayor: “[A]lssuming that you are correct, that

there is a duty here, isn’t that still an element that

must be charged to the jury for it to find, that the

circumstances were, as you said, ones that created a

duty?”). The government responded that the exis-

tence of a legal duty to act is “a matter of law and not

an issue that would be presented to the jury for reso-

lution.” 7d.

3. In its appeal brief on the merits, the govern-

ment continued to defend petitioner’s conviction un-

der the failure-to-act instruction. It argued again

that the jury did not need to be instructed on the

source or contours of a legal duty to act, and con-

tended that the court could divine such a duty from

the common law or the statutes under which peti-

tioner was charged. See Pet. App. 159a—66a. In the

alternative, the government expressed doubt that the

instruction led the jury to convict under the govern-

ment’s principal theory of failure to act, readily con-

ceding, however, that “the parties and the district

court interpreted the charge in this manner.” Id. at

158a n.15.

Another panel of the Second Circuit affirmed pe-

titioner’s conviction. See Pet. App. la—87a. The

court began by explaining that the failure-to-act the-

ory of liability on which the parties had tried the

case, and which the trial judge endorsed at the jury

charge conference, was probably legally invalid. Jd.

at 3la-—34a. “[|Wle find dubious,” the court wrote,

“the government’s claims that aiding and abetting

liability may generally be predicated upon a failure

to act unconnected to any legal duty to do so, that the

statutes at issue created an affirmative duty to act,

or that Mahender Sabhnani was properly found by

the jury to have violated a common law duty that re-

quired him to act.” Jd. at 3la—32a.

But the panel stopped short of deciding whether

petitioner’s conviction could be upheld on that the-

ory. Instead, it engaged in a truncated analysis of

the potential prejudice from the instruction, conclud-

ing—based solely on the aiding-and-abetting instruc-

tion itself—that it was unlikely that the jury’s ver-

dict rested on the failure-to-act instruction. “We

need not decide the question whether in the circum-

stances of this case Mahender Sabhnani could prop-

erly be convicted based upon an omission to act, .. .

because we reject his claim that the district court’s

struction on willfulness, considered in the context

of the aiding and abetting instruction as a whole,

rendered the instructions so confusing as to permit

the jury to convict him on this basis.” Pet. App. 34a.

The “failure to act” portion of the willfulness instruc-

tion, which had been “|d]Jrawn nearly verbatim from

the model jury instruction in the leading treatise on

the subject,” was, in the view of the court, “simply

extraneous to this case—at least absent further in-

struction as to a legal theory that would support li-

ability based on a failure to act.” Jd. By the court’s

lights, then, the legal error of giving an instruction

that spared the jury of any need to find an essential

element of failure-to-act aiding and abetting—1.e., to

find that the facts triggered a legal duty to act—

minimized rather than aggravated the instructional

error. Cf. United States v. Gaudin, 515 U.S. 506, 512

(1995) (holding that the government’s view that a

jury finds only “the factual components of the essen-

tial elements” and does not apply a “legal standard”

to “historical facts” “has absolutely no historical sup-

port”).

Petitioner had pointed out that failure to act—he

“didn’t do anything”—was the government’s main

theory of the case, and that the court of appeals

should take into account the fact that the parties and

trial judge all understood that this was the principal

focus of the prosecution. But the Second Circuit re-

fused even to consider these factors in its analysis of

potential prejudice. As for the trial judge’s conclu-

sion that petitioner could be convicted for failure to

act—i.e., despite the fact that petitioner “was not a

participant at all”—the court of appeals instead fo-

cused on the judge’s alternative ruling that there

was also minimally sufficient evidence for a jury to

convict based on affirmative acts. Pet. App. 37a.

The Second Circuit simply deemed it irrelevant as a

matter of law that the government relied throughout

trial on a failure-to-act theory or that the judge over-

ruled defense objections to the jury instructions so

that the jury could have that theory available to it.

The court reasoned that although “a party’s summa-

tion can heighten the already present risk that an er-

roneous jury instruction may mislead the jury,” it

could not be considered at all in assessing whether

the jury might have convicted on the ground that the

government urged. 7d. at 38a (emphasis in original).

In refusing to take account of anything beyond the

four corners of the aiding-and-abetting charge, the

panel never reached the stage at which the govern-

ment bears the burden of disproving prejudice be-

yond a reasonable doubt.

Petitioner raised the instructional issue again in

his petition for rehearing en banc, pointing out that

the panel had “skirted the issue” of failure-to-act li-

ability under Section 2. Pet’n for Reh’g, at 4 (2d Cir.

Apr. 7, 2010). The Second Circuit denied rehearing.

Pet. App. 118a—19a.

REASONS FOR GRANTING THE PETITION

I. THE SECOND CIRCUIT’S ANALYSIS OF

INSTRUCTIONAL ERROR DIVERGES SHARPLY

FROM THE PRECEDENTS OF THIS COURT

AND OTHER CIRCUITS

For decades this Court has recognized that giv-

ing the jury the option to convict for something that

is not, or cannot be made, a crime is constitutional

error. Stromberg v. California, 283 U.S. 359, 368

(1931); Yates v. United States, 354 U.S. 298, 311-12

(1957); Bachellar v. Maryland, 397 U.S. 564, 570-71

(1970). Two Terms ago, this Court held for the first

time that these sorts of “Yates” errors are subject to

harmless-error analysis. See Hedgpeth v. Pulido, 129

S. Ct. 530, 532 (2008). Under such analysis, the gov-

ernment bears the burden to establish harmlessness,

and its burden is substantial. Reversal is required

“if ‘there is a reasonable possibility that the [error]

complained cf might have contributed to the convic-

tion.” Yates v. Evatt, 500 U.S. 391, 403 (1991) (quot-

ing Chapman v. California, 386 U.S. 18, 24 (1967)).

The Second Circuit’s new approach to instruc-

tional challenges departs sharply from this Court’s

harmless-error standard. While the lower court rec-

ognized that the failure-to-act instruction was prem.

ised on a “dubious” legal theory and carried a risk of

misleading the jury on the proper elements of aiding

and abetting, it nonetheless reached its conclusion

that the instruction did not prejudice petitioner

without any consideration of the prejudicial effect of

the trial arguments and evidence. That mode of

analysis relieved the government of its burden to

prove beyond a reasonable doubt that the instruction

did not prejudice petitioner. Such a diluted form of

harmless-error review cannot be reconciled with the

well-settled precedents of this Court and other cir-

cuits.

The end result of the Second Circuit’s flawed

analysis was to insulate from review the govern-

ment’s sharp departure from what has long been the

settled rule for the elements of aiding and abetting:

that without an established legal duty to take certain

actions the government must prove that the defen-

dant affirmatively acted to bring about a desired il-

licit result. Indeed, the government confidently pro-

claimed throughout these proceedings—right

through briefing in the Second Circuit—that peti-

tioner could be convicted in the absence of any legal

duty to act. The government’s dramatic effort to ex-

pand aiding-and-abetting liability calls for serious

judicial scrutiny, not the ersatz harmless-error

analysis conducted here.

A. THE SECOND CIRCUIT’S DECISION

CANNOT BE RECONCILED WITH THIS

COURT’S HARMLESS-ERROR PRECEDENTS

1. This Court has repeatedly held that when a

jury instruction may have led the jury to convict

without finding every element of the offense beyond

a reasonable doubt, the harmless-error standard of

Chapman v. California, 386 U.S. 18 (1967), applies.

See Skilling v. United States, 130 S. Ct. 2896, 2934 &

n.46 (2010); Hedgpeth, 129 S. Ct. at 582; Neder v.

United States, 527 U.S. 1, 15 (1999). Nowhere is that

requirement more important than in a_ general-

verdict case where the jury is given multiple theories

on which to convict and one of them is legally invalid.

In such cases, a reviewing court must ask whether it

“appears ‘beyond a reasonable doubt that the error

complained of did not contribute to the verdict ob-

tained,” with the burden resting firmly on the gov-

ernment. /d. at 15 (quoting Chapman, 386 U.S. at

24).

Harmless-error review requires a court to deter-

mine not only whether a flawed jury instruction, in

the context of the instructions as a whole, could have

misled the jury, but also to examine the trial record

in its entirety to determine whether there is a “rea-

sonable possibility” that the error “might have con-

tributed to the conviction.” Yates, 500 U.S. at 403

(internal quotation marks omitted). The conviction

may be upheld only “if the reviewing court may con-

fidently say, on the whole record, that the constitu-

tional error was harmless beyond a_ reasonable

doubt.” Neder, 527 U.S. at 15-16 (emphasis added;

internal quotation marks omitted); see also id at 19

(“[Slafeguarding the jury guarantee will often re-

quire that a reviewing court conduct a thorough ex-

amination of the record.”). Under Chapman, “the

Government’s opportunity and burden is to show the

error harmless based on the entire record before the

reviewing court.” United States v. Vonn, 535 U.S. 55,

68 (2002).

For that reason, this Court has disallowed a

mode of assessing the prejudice of a challenged in-

struction that looks solely at the instructions them-

selves. In Pulido, this Court, after holding that the

Ninth Circuit had mistakenly classified instructional

error as structural, rejected the dissent’s view that

the court of appeals had nevertheless alternatively

conducted a proper harmless-error review; the major-

ity explained that the Ninth Circuit erred because it

looked solely to the instructions rather than “the re-

cord as a whole.” 1295S. Ct. at 533 n.*.

The Second Circuit radically diverged here from

this established structure of harmless-error review.

The court began by recognizing the distinct pos-

sibility that the instruction on the failure-to-act the-

ory had misled the jury. The Second Circuit in fact

had no dispute with petitioner’s contention that “the

prosecutor’s summation did misstate the applicable

law,” and it also recognized that the instruction

“could [have] potentially confuseld] the jury as to the

applicable law.” Pet. App. 34a, 38a.

The court could scarcely have concluded other-

wise. As discussed further in Section I.B infra, this

Court has long held that to establish aiding-and-

abetting liability, “it is necessary that a defendant ‘in

some sort associate himself with the venture, that he

participate in it as something that he wishes to bring

about, that he seek by his action to make it succeed.”

Nye & Nissen v. United States, 336 U.S. 613, 619

(1949) (emphases added) (quoting United States v.

Peoni, 100 F.2d 401, 402 (2d Cir. 1938)). The courts

of appeals have likewise unanimously held that un-

der this Court’s definition of aiding and abetting, a

defendant must “have aided the venture through af-

firmative action.” United States v. Summers, 414

F.3d 1287, 1296 (10th Cir. 2005) (emphasis added).°

2 Accord United States v. Medina-Romdn, 376 F.3d 1, 4 (Ist

Cir. 2004); United States v. Baldwin, 347 F. App’x 911, 912 (4th

Cir. 2009) (per curiam); United States v. Lopez-Urbina, 434

F.3d 750, 757 (5th Cir. 2005); Wright v. United States, 182 F.3d

458, 465 (6th Cir. 1999); United States v. Allen, 390 F.3d 944,

948 n.1 (7th Cir. 2004); United States v. Hayes, 574 F.3d 460,

476-77 (8th Cir. 2009); Altamirano v. Gonzales, 427 F.3d 586,

The “participation” requirement “means that the de-

fendant engaged in some affirmative conduct de-

signed to aid the venture.” United States v. Lopez-

Urbina, 434 F.3d 750, 757 (5th Cir. 2005) (internal

quotation marks omitted).

The instructions in this case, however, gave the

jury a second and much easier route to conviction.

The court told the jury that “[pjarticipation in a

crime is willful if [1] action is taken voluntarily and

intentionally or [2] in the case of a failure to act with

the specific intent to fail to do something the law re-

quires to be done.” Pet. App. 134a (emphases added).

This failure-to-act option was far from inadver-

tent. The government maintained throughout the

proceedings below, right up through its appellate

brief, that it was “legally correct” for the trial court

to have “permitted the jury to convict on an aiding

and abetting theory based upon a failure to act.” Pet.

App. 158a. Moreover, the government urged, a de-

fendant may be convicted of aiding and abetting

based solely on omissions because there is a free-

standing duty to act implicit in the law. /d. at 160a

6la.6 For that same reason, the government never

{Footnote continued from previous page!)

594 (9th Cir. 2005); United States v. Wilson, 160 F.3d 732, 738

(D.C, Cir. 1998).

6 The government argued, in the alternative, that petitioner

was properly convicted for failure to take required actions pur-

portedly specified in each of the underlying substantive statutes

charged here. Pet. App. 16la—62a. The Second Circuit cor-

rectly concluded, however, that “none of the statutes pursuant

to which Mahender was convicted expressly impose an affirma

tive duty to take action.” /d. at 30a. Nor could some vague

“background common law” “duty to the maids” fill the void, the

court explained, because even if one existed “the jury here was

not charged on the nature of this duty nor instructed as to the

factors it should consider in determining whether the duty was

tendered an instruction that defined the scope of the

duty to act so that the jury could at least find-—as it

plainly needed to—whether the facts of this case

triggered it. See Gaudin, 515 U.S. at 513 (holding

that it is the “historical and constitutionally guaran-

teed nght of criminal defendants to demand that the

jury decide guilt or innocence on every issue, which

includes application of the law to the facts”). In-

stead, the government’s unwavering objective was to

prod the jury into concluding that at some unspeci-

fied point the conditions had become such that an

amorphous and subjective duty to act sprang from

universal feelings of empathy and humanity.

Despite the unanimous weight of circuit prece-

dent requiring, as this Court did in Nye & Nissen,

that the defendant commit some affirmative act, the

government pressed forward on its omission theory

because it had to: It presented virtually no evidence

of any “affirmative actions” that petitioner took in

furtherance of the charged crimes. In the trial

judge’s words, petitioner “participated in almost none

of the acts.” Pet. App. 142a. The government fully

recognized that it needed a failure-to-act instruction

so that it could appeal to each juror’s sense of moral

obligation with the refrains that if you see a person

“wearing these rags in your home, you know some-

thing is wrong” and “I guarantee you, you would do

something about it.” Jd. at 127a. And, moreover, so

it could argue that petitioner was “responsible for

each and every action of his wife” because he knew

[Footnote continued from previous page]

discharged.” /d. at 33a—34a. Thus, the government’s primary

theory for convicting petitioner would be valid only if it could be

said without qualification that “aiding and abetting may be

predicated upon a failure to act.” Jd. at 159a.

what was happening in his house and “didn’t do any-

thing” about it. /d. at 124a, 128a.

Faced with an instruction that permitted the

jury to convict petitioner for a naked failure to act,

the Second Circuit had three options: (1) hold that

petitioner’s failure to act was sufficient for aiding-

and-abetting liability, creating a conflict between the

Second Circuit and nearly every other court, includ-

ing this one; (2) hold that even if affirmative acts

were needed to convict, the instruction was harmless

beyond a reasonable doubt because the record does

not “contain|| evidence that could rationally lead to a

contrary finding with respect to the [misstated] ele-

ment” (Neder, 527 U.S. at 19); or (3) hold that peti-

tioner could not lawfully be convicted under a fail-

ure-to-act theory and reverse because the govern-

ment failed to establish beyond a reasonable doubt

that the instruction had no improper effect on the

verdict. The Second Circuit panel that granted peti-

tioner bail clearly understood this: “The issue is

whether an erroneous charge, if one existed, contrib-

uted to the verdict in some way.” Pet. App. 151la (So-

tomayor, J.).

But the merits panel chose none of the available

options. Instead, it invented a novel fourth choice in

which it strongly suggested (but refused to hold) that

the government’s theory was legally incorrect—

“dubious,” in the panel’s words—but performed only

a truncated harmless-error review that failed to con-

sider the entire record and neglected to place the

burden on the government to disprove prejudice.

That mode of legal analysis marks such a sharp

break with the precedents of this Court that it de-

mands review. See, e.g., Lambert v. Wicklund, 520

U.S. 292, 293 (1997) (per curiam) (“Because the

Ninth Circuit’s holding is in direct conflict with our

precedents, we grant the petition for a writ of certio-

rari and reverse.”). Despite this Court’s repeated

rulings that harmless-error review requires analysis

of the entire record of a trial, see supra, the Second

Circuit expressly refused to consider anything but

one jury instruction. In particular, the court de-

clined to consider the prejudicial effect that the

prosecutor’s summation would have had on a juror’s

understanding of what was required for conviction—

a summation in which the government, armed with

the judge’s ruling at the charge conference, forcefully

stressed that petitioner could be found guilty for a

failure to act. E.g., Pet. App. 38a (“All that needs to

be established is that somebody else committed the

crime, and that you knowingly and willfully associ-

ated yourself with that other person in some way to

help with the crime. Help with the crime. And that

can be done by action, or it can be done by a failure to

act.” (government’s summation) (emphasis added)).

And the Second Circuit failed to place the burden on

the government, as Chapman requires.

2. The Second Circuit cited this Court’s decision

in Cupp v. Naughten, 414 U.S. 141 (1973), for the

rule that prejudice from a challenged instruction can

be ruled out solely by looking at the instructions in

isolation from the rest of the trial record. But Cupp

supports precisely the opposite conclusion. This

Court explained that in reviewing claims of instruc-

tional error a court must be cognizant that “a judg-

ment of conviction is commonly the culmination of a

trial which includes testimony of witnesses, argu-

ments of counsel, receipt of exhibits in evidence, and

instruction of the jury by the judge.” Jd. at 147.

“Thus not only is the challenged instruction but one

of many such instructions, but the process of instruc-

tion itself is but one of several components of the

trial ....” Id. (emphasis added).

Just two years later, in United States v. Park,

421 U.S. 658 (1975), this Court reemphasized that

jury instruction challenges must be reviewed in the

context of the entire trial. “[IJn reviewing jury in-

structions,” the Court said, “our task is . . . to view

the charge itself as part of the whole trial.” /d. at

674. Only after reviewing the trial record and con-

cluding that certain statements in the jury instruc-

tions would not have been misunderstood by the jury

did the Court conclude that the conviction could

stand. Id. at 675.

Other circuits have repeatedly emphasized what

this Court explained in Cupp and Park: that a poten-

tially prejudicial instruction must be evaluated in

light of the entire trial record. Appellate “review

of... challenged instructions considers the big pic-

ture, asking whether the charge in its entirety—and

in the context of the evidence—presented the relevant

issues to the jury fairly and adequately.” Goodman

v. Bowdoin Coll., 380 F.3d 33, 47 (1st Cir. 2004) (em-

phasis added). A court “looks at ‘the entire charge in

the context of the trial including arguments made to

the jury.” United States v. Willis, 38 F.3d 170, 179

(5th Cir. 1994) (emphasis added) (quoting United

States v. Fotovich, 885 F.2d 241, 242 (5th Cir. 1989)).

Thus, “even a facially correct instruction may, in the

light of record proof, the totality of the jury charges,

or other circumstances of the case, be incomplete,

misleading, confusing, or otherwise prejudicial.”

United States v. Carney, 387 F.3d 436, 449 (6th Cir.

2004) (emphases added); see also United States v.

Ruiz, 932 F.2d 1174, 1181 (7th Cir. 1991) (holding

that a reviewing court must examine an alleged error

“in the context of the instructions as a whole and in

light of the evidence adduced at trial” (emphasis

added)).

In line with these holdings, the First Circuit,

when confronted with a challenge to the same aiding-

and-abetting instruction, engaged in an analysis that

cannot be reconciled with the Second Circuit’s hold-

ing here. In United States v. Bailey, 405 F.3d 102

(1st Cir. 2005), a prison guard was convicted of aid-

ing and abetting another guard’s violation of an in-

mate’s civil rights. As here, the jury received an aid-

ing-and-abetting instruction that defined “willful”

participation in the crime as “action [that] is taken

voluntarily and intentionally, or, in the case of a fail-

ure to act, with the specific intent to fail to do some-

thing the law requires to be done.” Jd. at 110 (em-

phasis in original). The First Circuit reviewed only

for plain error because the defendant—unlike peti-

tioner—did not object to the instruction. Id.

Even under that more relaxed standard, the

First Circuit looked beyond the jury instructions to

determine whether it was likely that the failure-to-

act portion of the charge led the jury to convict under

that theory. “Because the government did not pro-

ceed on a failure-to-act theory,” the First Circuit ul-

timately held, “the court’s instruction on that point

was extraneous.” 405 F.3d at 110. The “government

did not allege that Bailey merely stood by while his

partner attacked the detainee,” but rather “that Bai-

ley struck the detainee himself, or, at a minimum,

that he actively participated in his partner’s as-

sault.” Id. Thus, only after concluding that the gov-

ernment had not pursued a failure-to-act theory

against Bailey did the First Circuit deem the same

challenged instruction—considered in context—

extraneous to the verdicts. Here, by contrast, not

only did the government vigorously pursue such a

theory, the court informed defense counsel at the

charge conference that he would need to argue peti-

tioner’s case in summation with “failure to act” as a

fully sufficient basis for the jury to convict. See

United States v. Clay, 495 F.2d 700, 707 (7th Cir.

1974) (agreeing with other circuits that the “obvious

object” of Rule 30’s requirement of a charge confer-

ence before closing arguments “is to require the judge

to inform the trial lawyers in a fair way what the

charge is going to be, so that they may intelligently

argue the case to the jury.”).

The Second Circuit departed from Bailey and a

long line of unmistakable precedent in refusing even

to consider the fact that everyone at the trial—the

prosecutors, the defense attorneys and the trial

judge—all understood full well that failure to act was

the principal theory of prosecution and that this the-

ory was fair game in closing argument. The court of

appeals’ newly minted version of harmless-error re-

view—combining a half-baked error discussion with

a severely curtailed prejudice analysis that shifts the

burden away from the government—cannot be rec-

onciled with this Court’s clear guidance on how to

review a Yates challenge.

3. This case is an ideal vehicle for reviewing the

Second Circuit’s misapplication of the harmless-error

standard, because under the correct test petitioner’s

convictions must be reversed.

The gravamen of the government’s case against

petitioner was that he had a duty to take affirmative

steps in response to his wife’s conduct. Indeed, as

the government portrayed it, petitioner’s failure to

act made him more culpable than the principal. Pet.

App. 124a (prosecutor asking rhetorically in summa-

tion: “Who is worse? The twisted soul who tortures

the maid, or the man of the house who lets it hap-

pen?”).

It would be charitable to say that the sum total

of what the government could muster in support of

its fallback theory of traditional aiding and abetting

was meager. The government’s “affirmative acts”

proofs were that petitioner accompanied his wife

when she met each woman for the first time on arriv-

ing in the United States; that petitioner’s immigra-

tion papers were kept in the same secure location as

the women’s passports; that he spoke to his wife

about the women on two occasions (when he noticed

that Samirah had fallen asleep on the job and after

he saw that she was eating from the garbage); that

he occasionally drove the women to another location

to do housework; and that he declined the gardener’s

offer to help the women move a heavy statue. It is a

close question whether the government could have

hoped to persuade a single juror that petitioner took

such nominal and inherently innocuous “actions”

with the intent to participate in and further an-

other’s criminal scheme.’ Not open to dispute, how-

ever, is the government’s utter inability to prove be-

yond a reasonable doubt that the jury surely took

that far more difficult route to conviction rather than

follow the government’s invitation to find petitioner

guilty simply because he failed to act.

A finding of instructional error would not only

require reversal of the substantive counts of convic-

tion but also of the intertwined conspiracy counts.

See, e.g., Parr v. United States, 363 U.S. 370, 393

(1960). “If ajury is misled into considering as unlaw-

ful the omission of an act that the defendant is under

no duty to perform, then a finding of conspiracy

based on such conduct cannot stand.” United States

7 It was not the government’s theory that Varsha intended to

force the women to work involuntarily from the outset (much

less that petitioner knew of such a plan). Trial Tr. 4676—77. In

fact, Samirah told investigators that Varsha’s treatment of her

became severe only in the final eight months before she left the

Sabhnanis’ residence. See Trial Tr. 2328. (That eight-month

period followed the death of Samirah’s son in Indonesia, a death

that Samirah accused Varsha of causing by placing a spell on

him. Trial Tr. 1685, 1703-04, 2736.) It therefore is highly

unlikely that the jury saw criminal intent in either an “airport

run” or the safe storage of immigration documents at the outset

of each woman’s employment.

v. Curran, 20 F.3d 560, 571 (3d Cir. 1994) (citing

cases). Moreover, the government’s introduction of

evidence of Mahender’s alleged non-actions, such as

his refusal to help the domestic workers carry a

statue, created “spillover” prejudice that likely influ-

enced the jury on the conspiracy charge against him.

See Black v. United States, 130 S. Ct. 2963, 2970

n.14 (2010) (remanding for consideration whether

instructional error on mail-fraud counts caused

“spillover prejudice” that would require vacatur of

obstruction-of-justice conviction).®

Because the Second Circuit’s approach to appel-

late review of challenged instructions cannot be rec-

onciled with the precedents of this Court and breaks

with the settled understanding that has prevailed in

the courts of appeals, the Court should grant review

and reverse the judgment.

B. THE GOVERNMENT’S OMISSION THEORY

OF AIDING AND ABETTING CONFLICTS

WitH THE HOLDINGS OF THIS COURT

AND THE COURTS OF APPEALS

If this Court grants certiorari on the question

whether the Second Circuit conducted an erroneous

mode of harmless-error review, it should also grant

review on the underlying legal question that the Sec-

ond Circuit skirted: whether, as the government con-

tends, a defendant may be found guilty under 18

U.S.C. § 2 for failure to act.

_- —— - — — — —

8 The portion of the sentence forfeiting petitioner’s interest

in his house and office, see D.E. 487 (E.D.N.Y. July 26, 2008),

would obviously fall as well, because the forfeiture required a

conviction. See, e.g., United States v. Aramony, 88 F.3d 1369,

1387 n.11 (4th Cir. 1996); cf. van Hofe v. United States, 492

F.3d 175, 186-91 (2d Cir. 2007) (reversing forfeiture of wife’s

interest in home where her offense was not as serious as the

husband’s).

The government tried petitioner on a theory that

broke with over a half-century of settled law in this

Court and the courts of appeals. The seminal case on

aiding and abetting was Judge Learned Hand’s opin-

ion in United States v. Peoni, 100 F.2d 401 (2d Cir.

1938). Peoni developed the classic formulation that

this Court later adopted in Nye & Nissen: The law

demands proof that the defendant “in some sort as-

sociate himself with the venture, that he participate

in it as in something that he wishes to bring about,

that he seek by his action to make it succeed.” ZId. at

402 (emphases added). The plain emphasis is “ac-

tion”—that the defendant take an affirmative step in

aid of the offense. The courts of appeals have ac-

cordingly concluded that it is not enough to be pre-

sent and have “knowledge that a crime was to be

committed.” United States v. Wilson, --- F.3d ---, No.

09-3338, 2010 WL 3419674, at *8 (8th Cir. Sept. 1,

2010) (internal quotation marks omitted).9

Under this clear line of authority, “[t]o establish

that the defendant participated in the criminal activ-

ity,” the government must prove that the defendant

“has acted in some affirmative manner to aid the

venture.” United States v. Akpan, 407 F.3d 360,

371 (5th Cir. 2005) (emphasis added); supra note 5.

9 Accord United States v. Perez-Melendez, 599 F.3d 31, 40-41

(1st Cir. 2010); United States v. Huezo, 546 F.3d 174, 181 (2d

Cir. 2008); United States v. Mercado, 610 F.3d 841, 846 (3d Cir.

2010); United States v. Spoone, 741 F.2d 680, 686 (4th Cir.

1984); United States v. Akpan, 407 F.3d 360, 371 (5th Cir.

2005); United States v. Morrow, 977 F.2d 222, 231 (6th Cir.

1992) (en banc); United States v. Samuels, 521 F.3d 804, 811

(7th Cir. 2008); Altamirano v. Gonzales, 427 F.3d 586, 595 (9th

Cir. 2005); United States v. Summers, 414 F.3d 1287, 1296

(10th Cir. 2005); United States v. Diaz-Boyzo, 432 F.3d 1264,

1269 (11th Cir. 2005) (per curiam); United States v. Salamanca,

990 F.2d 629, 638 (D.C. Cir. 1993).

The defendant must “provide an act of assistance,”

United States v. Samuels, 521 F.3d 804, 811 (7th Cir.

2008). Thus, the courts of appeals have thrown out

aiding-and-abetting convictions when, for example, a

defendant was a passenger in a vehicle that he knew

contained illegal drugs, see United States v. Sanchez-

Mata, 925 F.2d 1166, 1169 (9th Cir. 1991), was pre-

sent during the planning of a robbery and knew that

a firearm would be used in the robbery, United

States v. Davis, 138 F. App’x 914, 915 (9th Cir. 2005),

or was in close proximity to illegal drugs and was ac-

quainted with the principal offender, United States v.

Jenkins, 90 F.3d 814, 821 (3d Cir. 1996). In each

case, the government had produced no evidence that

the defendant “took any action to help [the offense]

succeed.” Id.

The theory on which the government tried this

case—and on which it urged the Second Circuit to

affirm petitioner’s conviction—is flat-out incompati-

ble with those long-settled principles. In the gov-

ernment’s view, “aiding and abetting may be predi-

cated upon a failure to act” even in the absence of a

duty grounded in statute or common law. Pet. App.

159a—60a. And precisely because this supposed duty

to act is freestanding, the government saw no reason

to bother the jury with an instruction delineating the

scope of petitioner’s duty to act under the statutes

with which he was charged.!9 Instead, it was the

10 As the Second Circuit recognized, even were the govern-

ment correct that those in petitioner's position can owe domes-

tic workers a legal duty of protection, the jury would need to

have been instructed on the circumstances in which such a duty

arises. See Gaudin, 515 U.S. at 512-13. The government’s ex-

hortation to the jurors to skip the affirmative-act findings and

instead follow their own subjective notions of moral responsibil-

ity or respect for human dignity only aggravated the risk of er-

beginning and the end of the matter for the jury to

find that petitioner knew his wife was engaging in

unlawful conduct and that he did not try to inter-

vene. Id. at 153-54a.

The government claimed to find support for this

theory in Second Circuit dicta to the effect that proof

of aiding and abetting requires “a voluntary act or

omission by the person charged as an aider or abet-

tor, with .. . the specific intent that his act or omis-

sion bring about the underlying crime.” Pet. App.

160a (quoting United States v. Wiley, 846 F.2d 150,

154 (2d Cir. 1988)). But, as the panel below correctly

pointed out, those passages referred to situations in

which a clear legal duty to act has been established

by statute, common law, or contract. /d. at 32a (cit-

ing United States v. Labat, 905 F.2d 18, 23 (2d Cir.

1990)). Not only is a separate duty to act missing in

this case (id. at 32a & nn.12-13), the instructions al-

lowed the jury to convict under an unspecified duty

to act precisely because the duty was never defined.

Id. at 32a~33a.

The only case the government cited below as

support for aiding-and-abetting liability in similar

circumstances was the Fourth Circuit’s decision in

United States v. Bonetti, 277 F.3d 441 (4th Cir.

2002). In Bonetti, the defendant was convicted of one

of the substantive offenses at issue in this case—

harboring an illegal alien—based on his wife’s mis-

treatment of a domestic worker. Jd. at 446. The jury

also found that the harboring of the alien “‘cause[d]

serious bodily injury,” which made the defendant

eligible for a higher sentence. Jd. (alteration in

original) (quoting 8 U.S.C. § 1324(a)(1)(B)Gii)). The

[Footnote continued from previous page]

ror from an instruction that offered no guidance on the scope of

the duty to act.

defendant challenged that finding insofar as it was

grounded in the defendant’s failure to take the

worker to the hospital for medical treatment. The

Fourth Circuit affirmed, finding, based on decisions

of the Connecticut and Virginia Supreme Courts,

that the defendant owed a duty to provide medical

treatment to a person living in his house who could

not obtain medical treatment herself. See id. at 447-

48. Bonetti did not involve an aiding-and-abetting

conviction (much less how to instruct when aiding

and abetting is charged), but to the extent it can be

read to mean that the Fourth Circuit has endorsed

the government’s incorrect view, this Court should

grant review to resolve the question.

In short, if this Court grants certiorari on the

first question presented, it should also resolve the

question whether the government’s theory of aiding

and abetting is legally valid. In the alternative, if

the Court reverses the Second Circuit’s holding on

the first question presented, it would be proper to

remand to the Second Circuit for full consideration of

the second question.

II. THE QUESTIONS PRESENTED ARE EXCEED-

INGLY IMPORTANT FOR THE ADMINISTRAT-

ION OF CRIMINAL JUSTICE

The Second Circuit’s misunderstanding of princi-

ples established by this Court for the review of in-

structional error not only puts it into conflict with

this Court and other circuits, but threatens to im-

munize highly “dubious” government theories of guilt

from appellate review. For that reason, it is surpass-

ingly important that this Court review the Second

Circuit’s hybrid harmless-error standard for instruc-

tions that carry the risk of leading a jury to convict

for conduct that is not a crime. That hybrid stan-

dard—in which the potential for prejudice can be

dismissed without examining trial evidence or the

government's arguments, and where the government

is relieved of its burden of disproving prejudice be-

yond a reasonable doubt—will undoubtedly enable

the government to obtain and preserve convictions

with purposefully confusing instructions.

Moreover, the Second Circuit’s misstatement and

misapplication of the law in this case blocked review

of the critical question whether aiding-and-abetting

liability may be premised on a failure to stop or pre-

vent another’s wrongdoing. The aiding-and-abetting

statute, 18 U.S.C. § 2, “is probably invoked more fre-

quently than any other federal criminal statute.”

Baruch Weiss, What Were They Thinking; The Men-

tal States of the Aider and Abettor and the Causer

Under Federal Law, 70 Fordham L. Rev. 1341, 1346

(2002). Moreover, “it is well established that a trial

judge may properly give an aiding and abetting in-

struction even if the indictment does not expressly

charge a violation of 18 U.S.C. § 2.” United States v.

Mucciante, 21 F.3d 1228, 1234 (2d Cir. 1994).1! The

availability of an omissions theory of aiding and

abetting therefore has tremendous implications

across the entire expanse of federal criminal law.

Despite the importance of the issue, there is sub-

stantial doubt whether an instruction like the one in

this case will face serious scrutiny in the courts of

appeals. That is because, as the panel noted below,

the instruction at issue is included in the leading

jury-instructions treatise. See Leonard Sand et al.,

Modern Federal Jury Instructions—17 Criminal,

§ 11-1 (2008 ed.) (“Participation in a crime is willful

if done voluntarily and intentionally ... with the

ll It is universally the case that “aiding and abetting need not

be separately charged to support an instruction.” E.g., United

States v. Gonsalves, 435 F.3d 64, 69 (1st Cir. 2006); United

States v. Wills, 346 F.3d 476, 495 (4th Cir. 2003).

specific intent to fail to do something the law re-

quires to be done[.]”). Both the first and Second Cir-

cuits cited the instruction’s established pedigree in

ultimately affirming. See, e.g., Pet. App. 34a; Bailey,

405 F.3d at 111 n.4 (“It is a hornbook definition.”).

The prospect of federal prosecutors abusing this

widely used instruction to peddle a defective failure.

to-act theory of aiding-and-abetting liability is rea-

son enough to grant review.

III. IN THE ALTERNATIVE, THIS COURT SHOULD

GRANT THE PETITION, VACATE THE RULING

BELOW, AND REMAND IN LIGHT OF

SKILLING V. UNITED STATES

If this Court chooses not to review this case on

the merits (either through briefing and argument or

summary reversal), it should grant the petition, va-

cate the decision below, and remand in light of its

recent decision in Skilling v. United States, 130

S. Ct. 2896 (2010). In Skilling, this Court held that

“errors of the Yates variety”>—which permit a jury to

convict for conduct that is not a crime—‘“are subject

to harmless-error analysis” on direct review (and not

solely on collateral review, as in Pulido). Id. at 2934

& n.46. Given that the Second Circuit plainly did

not apply the harmless-error review required by this

Court’s precedents, at a minimum a grant, vacate,

and remand disposition would be appropriate.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted

ALAN M. DERSHOWITZ MIGUEL A. ESTRADA

1575 Massachusetts Avenue Counsel of Record

Cambridge, MA 02138 DAVID DEBOLD

(617) 496-2187 GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

mestrada@pibsondunn.com

Counsel for Petitioner Mahender Murlidhar Sabhnani

October 8, 2010

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2008

Argued: February 5, 2009 Decided: March 25, 2010

Docket No. 08-3720-cv(L), 08-3731-cr(CON)

UNITED STATES OF AMERICA,

Appellee,

-V.-

MAHENDER MURLIDHAR SABHNANI, VARSHA

MAHENDER SABHNANI,

Defendants-Appellants.

Before: WESLEY, LIVINGSTON, Circuit Judges,

and RESTANI, Judge."

Defendants-Appellants Mahender Murlidhar

Sabhnani and Varsha Mahender Sabhnani appeal

from a judgment of the United States District Court

for the Eastern District of New York (Spatt, J.). Fol-

ee lalate : :

I'he Honorable Jane A. Restani, Chief Judge of the United

States Court of International Trade, sitting by designation.

lowing a jury trial, both defendants were convicted

on counts of forced labor, harboring aliens, peonage,

and document servitude, as well as conspiracy to

commit each of the substantive offenses, with

Mahender Sabhnani receiving a sentence of 40

months’ imprisonment and Varsha Sabhnani a sen-

tence of 132 months’ imprisonment. The district

court further ordered both defendants to pay sub-

stantial restitution to their victims and to forfeit

their ownership interest in their home, where their

victims had been held during the commission of the

crimes at issue. On appeal, the Sabhnanis raise

challenges to the district court’s refusal to grant the

defendants’ request for a change of venue, its refusal

to compel an independent psychiatric evaluation of a

prosecution witness, its management of the presen-

tation of witness testimony, the content of the jury

instructions, the sufficiency of the evidence, the ex-

tent of the district court’s inquiry into purported ju-

ror misconduct, the calculation of the applicable

Guidelines sentencing range, the amount of restitu-

tion, and the scope of the property forfeiture. We va-

cate the district court’s award of restitution to the

victims and remand for recalcuiation of the amount.

In all other respects we find Defendants-Appellants’

arguments to be without merit.

Affirmed in part, vacated and remanded in part.

MONICA E. RYAN, Assistant United States

Attorney (David C. James and _ Vincent

Lipari, Assistant United States Attorneys, of

counsel), for Benton J. Campbell, United

States Attorney for the Eastern District of

New York, Brooklyn, New York, for Appellee.

ALAN M. DERSHOWITZ (Victoria B. Eiger,

Natham Z. Dershowitz, Amy Adelson and

Daniela Klare Eliott, Dershowitz, Eiger &

Adelson, P.C., New York, New York, of coun-

sel), Cambridge, Massachusetts,for Defen-

dant-Appellant Mahender Murlidhar

Sabhnani.

SUSAN C. WOLFE, Hoffman & Pollok LLP,

New York, New York, for Defendant-

Appellant Varsha Mahender Sabhnani.

DEBRA ANN LIVINGSTON, Circuit Judge:

Defendants-Appellants Mahender Murlidhar

Sabhnani (“Mahender”) and Varsha Mahender

Sabhnani (“Varsha ) (collectively “the Sabhnanis” or

“appellants”) appeal from judgments of the United

States District Court for the Eastern District of New

York following a jury trial before the Hon. Arthur D.

Spatt, Senior Judge, convicting them of two counts

each of forced labor in violation of 18 U.S.C.

§ 1589(a), harboring aliens in violation of 8 U.S.C.

§ 1324(a)(1)(A)Gii), holding a person in a condition of

peonage in violation of 18 U.S.C. § 1581(a), and

document servitude in violation of 18 U.S.C.

§ 1592(a), as well as conspiracy to commit each of

these substantive offenses. The district court sen-

tenced Mahender Sabhnani to 40 months’ imprison-

ment, to be followed by a three-year term of super-

vised release, and ordered him to pay a $12,500 fine

and a special assessment of $1200. Varsha Sabhnani

was sentenced to 132 months’ imprisonment, fol-

lowed by a three-year term of supervised release, and

was ordered to pay a $25,000 fine and a special as-

sessment of $1200. The court also required both de-

fendants to pay the sum of $936,546.22 in restitution

to their victims, and ordered both defendants to for-

feit their ownership interest in their home, where

their victims had been held. The district court’s for-

feiture order was stayed pending the disposition of

this appeal. Varsha is currently serving her sen-

tence, and Mahender was granted bail pending ap-

peal by this Court.

The Sabhnanis jointly and individually make

numerous arguments on appeal, including: (1) im-

proper refusal by the district court to change the

venue of the trial in light of negative publicity re-

garding the defendants; (2) erroneous refusal to

compel a prosecution witness to submit to an inde-

pendent psychiatric examination; (3) incorrect in-

struction of the jury to the effect that it could convict

Mahender Sabhnani of the charged crimes on a the-

ory of omission as opposed to affirmative action; (4)

insufficiency of the evidence as to Mahender

Sabhnani’s convictions; (5) incorrect instruction of

the jury prohibiting it from drawing an adverse in-

ference from the refusal of prosecution witnesses to

speak to defense counsel; (6) improper refusal to re-

call a prosecution witness following the completion of

testimony and the beginning of jury deliberations; (7)

insufficient investigation into purported juror mis-

conduct; (8) procedural unreasonableness in Varsha

and Mahender’s sentencing, consisting of multiple

errors in the district court’s calculation of the appli-

cable Guidelines range; (9) various errors in the cal-

culation of the required amount of restitution; and

(10) overbroad and _ unconstitutionally excessive

property forfeiture. For the reasons that follow, we

conclude that none of these challenges has merit,

with the partial exception of the Sabhnanis’ chal-

lenge to the calculation of the restitution award.

BACKGROUND

Mahender Sabhnani, a naturalized citizen of the

United States born in India, lived with his wife, Var-

sha Sabhnani, a naturalized United States citizen

born in Indonesia, in a single-family home in Syos-

set, New York with their four children. The jury

found beyond a reasonable doubt that the Sabhnanis

conspired to harbor in their Syosset home two aliens

who were unlawfully in the United States — specifi-

cally, two domestic servants the couple brought from

Indonesia. The jury further found that the

Sabhnanis conspired to hold these two women in pe-

onage, keeping their travel documents, and to have

the aliens perform forced labor on the Sabhnanis’

behalf. The jury also convicted the Sabhnanis of

substantive counts of harboring, peonage, forced la-

bor, and document servitude based upon the evi-

dence of their mistreatment of the two women,

Samirah and Enung. The evidence at the Sabhnanis’

trial, viewed in the light most favorable to the gov-

ernment, demonstrated the following:

In 2001 and 2002, Varsha’s mother, known as

“Mrs. Joti,” arranged for Samirah, a 53-year old

woman from Indonesia, to obtain an Indonesian

passport and United States visa in order to travel to

the United States to work in the Sabhnanis’ home.

Samirah, a rice vender who spoke no English, did not

know what a visa was. She did not know how to

drive a car or use an American telephone. Samirah

agreed to work in the United States as a domestic

servant for $200 per month. She traveled to the

United States in February 2002 in the company of

Mrs. Joti, who carried Samirah’s passport, and Var-

sha’s_ brother Naresh. Mahender and Varsha

Sabhnani met them at John F. Kennedy Interna-

tional Airport and drove them to the couple’s home.

Varsha Sabhnani took Samirah’s passport and other

related documents and kept them until approxi-

mately April 2007, about one year after Samirah’s

passport had expired. Mrs. Joti returned to her home

in Indonesia shortly after delivering Samirah.

Samirah worked as a domestic servant for Var-

sha and Mahender Sabhnani from February 2002

through May 2007, even though the visa that Mrs.

Joti obtained for her authorized Samirah to enter the

United States solely as Mrs. Joti’s employee and to

work for her in this country only until May 2002.

During her time with the Sabhnanis, Samirah was

responsible for cooking, cleaning, laundry, and other

chores at the couple’s large three-story residence,

which included about seven bedrooms, seven baths,

and separate offices from which Mahender Sabhnani

operated PVM International and Eternal Love Par-

fums, the two companies that together constituted

his international perfume and toiletry business.!

Varsha told Samirah that her $200 per month salary

was being paid to her daughter Lita in Indonesia.

Lita was in fact paid only $100 per month. Samirah

received no money herself.

The circumstances of Samirah’s employment

were more than severe. While at the Sabhnanis’

home, Samirah, who had slept in her own bed at

home in Indonesia, was required to sleep first on the

carpet outside the bedroom of one of the children and

then on a mat on the floor of one of the residence’s

kitchens. Samirah was not given adequate food to

eat — to the point that she was often forced by hun-

ger to eat from the garbage. She worked for ex-

1 The companies were principally engaged in the export of

perfume, towels, body sprays and soaps to Dubai, the United

Arab Emirates, Saudi Arabia, Singapore, Bahrain and other

foreign markets.

tremely long hours per day and was often deprived of

sleep. On one occasion in 2003, William Hespeler, an

electrician performing work at the home, observed

Samirah dressed in “raggedy clothes,” following

Mahender Sabhnani as she carried a food and bever-

age tray. Tr. 3586. Her meager dress that day was

not atypical. Indeed, beginning around March 2007,

Varsha Sabhnani refused to provide Samirah with

even the semblance of adequate clothing, requiring

her to wear tattered sweat pants and a top made

from old rags and the cut remnants of a dress. Vari-

ous witnesses testified that Samirah wore “torn or

tattered,” “messy” clothing, rags “used for cleaning

the floor” and clothing that left her “private part...

visible.” Tr. 1786, 3834.

Samirah was subjected to extremely harsh

physical and _ psychological treatment in the

Sabhnanis’ home. On one occasion sometime before

2005, for example, Samirah drank milk directly from

a container, without using a glass; the incident was

reported to Varsha Sabhnani by one of her daugh-

ters. Varsha responded by beating Samirah and

pouring scalding hot water on her arm. At her

mother’s instruction, one of Varsha’s daughters took

a photograph of Samirah with the milk container.

Varsha Sabhnani told Samirah that the photo would

be sent to Samirah’s family in Indonesia to prove

that Samirah was a thief. The photo, which Varsha

thereafter kept in a locked cabinet in a closet adjoin-

ing the Sabhnanis’ bedroom, was introduced into

evidence at the trial. It depicts the discoloration on

Samirah’s arm from the scalding.

The milk incident was not an isolated one.

Samirah was beaten by Varsha Sabhnani with vari-

ous household objects, such as a broom, an umbrella,

and a rolling pin. She was punished for sleeping

late, for not receiving permission to throw out the

garbage, for stealing food from the trash, and for fail-

ing to clean the garage. Varsha threw boiling water

on Samirah on at least three separate occasions. She

also mutilated Samirah, pulling on Samirah’s ears

until they bled, causing scabs and scars, and cutting

Samirah with a knife, leaving scars on her face and

various parts of her body. Wearing plastic super-

market bags on her hands, Varsha Sabhnani on more

than one occasion pulled on Samirah’s ears and dug

her fingernails into the flesh behind them, causing

blood to trickle down Samirah’s neck. She punished

Samirah for various alleged misdeeds by forcing her

to eat large quantities of hot chili peppers until

Samirah vomited or moved her bowels uncontrolla-

bly. Varsha forced Samirah to walk up and down

flights of stairs many times in succession. Samirah

was required to bathe several times in a row, some-

times with her clothes on, and was not infrequently

made to work while wearing wet clothing. Varsha

Sabhnani also cut Samirah’s hair with scissors and

shaved her pubic hair, threatening Samirah that if

she resisted her children in Indonesia would be mur-

dered by Mahender Sabhnani and by the couple’s

teenage son. Samirah “never fought back,” according

to her own testimony, “because [Varsha Sabhnani]

always said, mind you, if you fight me off, then you

[will] be killed by the mister,” referring to Mahender

Sabhnani. Tr. 1774. The abuse suffered by Samirah

caused her to become so fearful that she would some-

times urinate on herself.

On at least three occasions, Varsha Sabhnani

forced Samirah to write letters to Samirah’s family

in Indonesia that Varsha dictated and then took

from Samirah and kept. These letters contained

statements to the effect that Samirah was a “crazy

person,” that she walked around naked, urinated and

defecated on herself, and wished to die. Tr. 2360.

They also contained a statement that, when trans-

lated, was interpreted to mean that Samirah pur-

ported to curse or cast a spell on her son, Erwin, who

was deceased. Varsha threatened to send these let-

ters to Samirah’s family. in Indonesia, but she actu-

ally kept them in the same locked cabinet in the

closet adjoining the Sabhnanis’ bedroom that con-

tained Samirah’s photograph with the milk con-

tainer, as well as her passport and related docu-

ments.

Subject to this recurrent abuse, Samirah often

asked to return to Indonesia or to be “give[n] ...

away’ to another person. Tr. 1881. When she did so,

Varsha Sabhnani told her that she would have to pay

money to make up for the expenses the Sabhnanis

had incurred in bringing her to the United States.

Varsha told Samirah that Samirah’s children would

be killed if she escaped. Varsha also threatened

Samirah that if she ran away, Varsha would falsely

report to the police that Samirah had stolen food and

jewelry and by this means have Samirah sent to

prison.

Most of Samirah’s day-to-day supervision came

from Varsha Sabhnani, who ran the Sabhnanis’

household and also spoke Indonesian, Samirah’s na-

tive language. However, Samirah served not only

Varsha, but also Mahender Sabhnani, who often

scolded her and who at least on occasion directly re-

quired Samirah to undertake various jobs, including

cleaning the bathroom in his office. Samirah testi-

fied that one of the Sabhnanis’ daughters “maybe .

(felt] pity” for her and intervened on her behalf one

10a

day after Samirah was hit with a telephone, telling

her mother that she would watch Samirah eat a raw

chili pepper but then helping Samirah to throw it

away. Tr. 1821. Mahender Sabhnani, in contrast,

reported on Samirah’s supposed misdeeds to his wife:

Q. Did you sometimes get punished for things

that you did that the Missus didn’t see you

do?

A. Yes.

Yes. The Mister would report to the Missus

that I slept in the bathroom upstairs and the

Missus would immediately hit me.

Tr. 1848.

Mahender informed Varsha Sabhnani on one oc-

casion that he had seen Samirah eating food from

the garbage and on at least one other that he had

found Samirah sleeping in a bathroom.” These inci-

dents resulted in Varsha’s physically abusing the

maid. Insofar as the record reveals, Mahender

Sabhnani was not present on the occasions of Varsha

Sabhnani’s most violent physical abuse. He was pre-

sent, however, when Samirah was forced to wear

dripping wet or grossly inadequate clothing that left

her body exposed. He saw his wife tear paper on

which she had forced Samirah to write into small

pieces and then throw it on the floor, only to require

Samirah to pick the pieces up, one by one. Moreover,

various marks on Samirah’s body resulting from

Varsha’s maltreatment, as well as Samirah’s swollen

2 In this instance, Samirah, who was washing an upstairs

bathroom, fell asleep. Mahender told Varsha that Samirah

“was not washing,” but that “she was sleeping in the bathroom.”

Tr. 1869.

lla

and mutilated face, were clearly visible to Mahender

Sabhnani during the time Samirah lived in his home

and served him.

In late 2004 and early 2005, the Sabhnanis ac-

quired the services of Enung, another woman from

Indonesia. Forty-seven years old, Enung, who had

completed only the first grade and who, like

Samirah, spoke no English, was also recruited by

Mrs. Joti. A sister of Varsha’s, Kareena Deepak Kir-

palani, trained Enung at Kirpalani’s residence in In-

donesia and, along with Mrs. Joti and Kirpalani’s

husband, helped Enung acquire the necessary travel

documents to come to the United States. Enung’s I-

94 Departure Form authorized only a brief stay of no

more than six months. Nevertheless, Enung began

work for the Sabhnanis immediately upon her arri-

val in the United States. She was met by Varsha

and Mahender Sabhnani at the airport in January

2005. Varsha took Enung’s passport and related

travel documents and kept them in the same locked

cupboard in the closet adjacent to the Sabhnanis’

bedroom in which she also kept Samirah’s passport

and related documents, the photo of Samirah with

the milk container, and the letters Samirah was re-

quired to write. Enung’s passport remained there

until discovered by law enforcement agents in May

2007, nearly two years after Enung was required to

depart the country and two-and-one-half years after

she began work for the Sabhnanis.

Enung, like Samirah, testified that she was

made to work lengthy hours — from about 4:00 or

5:00 A.M. until late at night, seven days a week —

and that she was generally denied food, sleep, and

even medical care when sick or injured. Both

Samirah and Enung testified to numerous occasions

L2a

on which they were driven by hunger to eat food from

the trash.

Enung was also a witness to Samirah’s mal-

treatment at Varsha Sabhnani’s hands — maltreat

ment that appears to have worsened during the pe-

riod after Enung’s arrival. Enung observed Varsha

hit Samirah with various household implements,

pull on Samirah’s ears, and throw hot water on her.

She, like Samirah, testified that Samirah was re-

quired to wear eyeglasses with tape and plastic ob-

scuring the lenses. Enung was present on many oc-

casions when Varsha Sabhnani forced Samirah to

eat whole raw chili peppers or chili powder mixed

with salt, often until Samirah became violently ill.

On one occasion Samirah refused to eat chili pep-

pers. Varsha Sabhnani first threatened to have her

drink cleaning fluid and then required her to take off

her clothes and stand naked while Enung put tape

on Samirah’s body and ripped it off, causing Samirah

to scream in pain.

“nung herself was not immune from these more

atrocious forms of abuse. Varsha Sabhnani forced

Enung to walk up and down stairs repeatedly as

punishment for supposed misconduct. She required

Enung to cut up her own clothing. On one occasion,

after Enung was accused of stealing two pieces of

chocolate, she was forced to stand in one place for

approximately ten hours from early in the morn-

ing until about 4:00 in the afternoon. Varsha and

Mahender Sabhnani, as well as their son, laughed at

her while she was being punished in this manner.

On another occasion when Varsha Sabhnani was

cooking, Enung handed her the wrong spice. Varsha

hit Enung in the face with a metal spoon, causing

KEnuny’s face to bleed and leaving a scar. Varsha

l3a

also struck Enung with her fist and with a glass Py-

rex cooking dish.

The Sabhnanis left the country for about two

months each summer. So far as the record shows,

the maids did not leave the residence or otherwise

attempt to escape during these periods. Varsha told

Enung that if she ran away, the police would shoot

her. She also threatened that if Enung left, Enung’s

husband in Indonesia, who had received advance

payment for Enung’s services, would be arrested.

During at least one of these summer absences, the

Sabhnanis’ large refrigerator was chained shut. The

Sabhnanis on more than one occasion failed either to

leave adequate food for the maids or to arrange for

its provision. Samirah and Enung begged for food in

these instances from both Deborah Litras, who

worked for Mahender Sabhnani as the export man-

ager of his businesses, and Anthony Pascarella, the

Sabhnani’s gardener, both of whom had brief contact

with the maids on a few occasions and both of whom

testified at trial.

In addition to providing the maids with food,

Litras also mailed several letters on their behalf. Af-

ter receiving the first of these letters, posted in July

2006, from the maids, Litras obliterated the return

address on the envelope, concerned that if the letter

was returned to the Sabhnanis, “that it might pre-

sent a problem” for the maids, and she “really didn’t

want them to be in any kind of trouble if this was

something that they weren’t supposed to be doing.”

Tr. 3855. After posting this first letter on their be-

half, Litras thereafter saw the maids only rarely:

“Then I didn’t see them ever, outside, by a shed, or

else anything. I started noticing that I was never

seeing them at all.” Tr. 3 85 8.

l4a

The letter posted in July 2006 was received by

Samirah’s children in Indonesia and was introduced

at trial. In it, Samirah inquired after her children

and pleaded for their help: “{YJou must do the mid-

night prayers if you want your mother to live and be

together with you again.” Tr. 2055. She informed

them that she was being tortured, not allowed to eat

or sleep, that she was forced to take repeated baths,

and that she was not permitted to wear adequate

clothing in the cold. She stated, “I don’t have the

strength to work here anymore.” Tr. 2052. Samirah

asked her children to pray for her return and also to

seek out a witch doctor to cast a spell “so that the

Missus would send me home and pay for it.” Tr.

2055. She advised her daughter, Lita, to seek her

return by contacting Varsha Sabhnanis’ relations,

but not to disclose the true reason:

Lita, don’t say that your mother told you of

being tortured, denied food, deprived of sleep,

told to take a bath 30 times, ciothes are torn

to shreds, not allowed to wear double cloth-

ing in the winter. Lita, just say this, the

children are grown, and working. So it’s my

turn to rest.

Tr. 2056. Samirah testified that she gave these in-

structions “[b]lecause if the Missus found out” she

was complaining to her children, she would “get beat

up some more.”? Tr. 2062.

3 After receiving the letter, Lita and Leo, one of Samirah’s

sons, approached Mrs. Joti seeking to have Samirah returned to

Indonesia. Mrs. Joti told them that they would have to wait

until Samirah’s “contract” had expired, Tr. 2557, and told them

that they would have to pay 40 million rupiahs, or approxi-

15a

Samirah and Enung approached Litras again in

April 2007, some nine months after this letter was

posted, when Litras was alone in Mahender

Sabhnani’s office and the Sabhnanis were not at

home. The maids were “disturbed and rushed,”

“[uJpset.” Tr. 3861. They came in together and

threw raw chili peppers on the ground. Using ges-

tures, they appeared to communicate that they were

forced to eat them. Samirah, whose hair Litras de-

scribed as “chopped up,” showed Litras a large gash

behind Samirah’s right ear and a bruise below her

left shoulder. Tr. 3863. According to Litras, “[t]he

language barrier was very difficult,” but the maids

appeared to act out a scenario in which one maid was

hit with an object and then was made to hit the

other. Tr. 3874. Both maids were crying. Samirah

and Enung provided Litras with another letter,

which she also posted, resolving to herself that she

“had to try to find out what was happening here.”

Tr. 3874. A few weeks later, on a morning on which

Mahender Sabhnani was present in the office, Litras

saw Samirah crouching at the office door that led

down to the basement with blood dripping from her

hairline. Litras gestured Samirah away so that

Mahender Sabhnani would not see her.

{Footnote continued from previous page]

mately $4400. During one of several telephone conversations

between Mrs. Joti and Leo, Mrs. Joti false!y told him that his

mother was in Los Angeles. On another occasion she told him

that his mother was “doing well” in America. Tr. 2732. In her

third conversation with Leo, Mrs. Joti became angry and told

Leo, who testified at trial, that she could have Samirah mur-

dered.

16a

Finally, on the evening of May 12, 2007,

Samirah, who had been beaten about the face by

Varsha in the preceding days and who testified that

she was fearful she would soon be killed, ran away

from the Sabhnanis’ house carrying the expired In-

donesian passport that Varsha had returned to her

the previous month. Samirah entered a Dunkin’

Donuts store in Syosset early the next morning. The

people inside the Dunkin’ Donuts were unable to

communicate with Samirah because she did not

speak English, but Samirah attempted to tell them of

her plight. Witnesses testified that Samirah showed

them the marks, bruises, cuts, and scars on her face

and arms and made gestures as if she were pinching

or slapping herself. A security videotape introduced

at trial captured Samirah motioning towards her

ears and pointing out her other injuries. The mother

of the store manager, a certified nursing assistant,

saw the wounds behind Samirah’s ears and the

marks on her forearms and told her son to call the

police. Samirah was taken to the Nassau University

Medical Center, where her treating physician diag-

nosed “[m]ultiple physical abuse.” Tr. 2874. Doctors

and nurses treated her ear wounds, which were in-

fected, and Samirah, through an interpreter, told her

treating physician about the abuse she had suffered.

Police officers recovered from Samirah her passport,

as well as a plastic bag Samirah had taken with her

when she fled the Sabhnani’s house, containing a

piece of paper with Varsha’s name and address on it,

a number of other papers, and a single chili pepper.

Police took a number of photographs of Samirah’s in-

juries, including pictures of her ears, face, forearms,

chest, neck, and back, which were admitted into evi-

dence during the trial.

17a

In the course of the resulting investigation,

agents from Immigration and Customs Enforcement

(“ICE”) executed two search warrants at the

Sabhnanis’ home. During the first search, Varsha

and one of her daughters told Enung to run away

and hide, and agents discovered her in a small closet

underneath the basement stairs. Enung provided

agents with a knife stained with Samirah’s blood and

tissues; both of these Enung had secreted away on

Samirah’s departure. Enung also showed agents a

broom and rolling pin with which Varsha had beaten

Samirah, and gestured to the agents that this was

their use. Agents also found a blood stain on the

door leading from the basement to Mahender

Sabhnani’s office — the location at which Litras tes-

tified that she had observed Samirah crouching, with

blood dripping from her hairline. DNA testing con-

firmed that the blood found on the door was

Samirah’s.

Agents also discovered that the Sabhnanis had

placed dead bolt locks on the outside of both doors to

the basement bathroom. This bathroom was used

solely by Samirah and Enung. Samirah testified

that at the time the locks were installed, Varsha told

her that she intended to lock Samirah up in the

bathroom because she was expecting a guest from

the Indies and was embarrassed about having some-

one in her home “who [didn’t] look good.” Tr. 2272.

Enung testified that Varsha threatened to lock

Samirah in the bathroom with no food and to give

both maids an “injection” there that would “dry up

the blood” or make them “go crazy.” Tr. 3245.

Enung testified that she was rendered so fearful by

virtue of this threat that she couldn’t eat.

18a

The Sabhnanis were arrested on May 14, 2007 on

charges of committing forced labor. In a superseding

indictment filed September 18, 2007, the Sabhnanis

were charged with the following crimes: (1) two

counts of forced labor or attempted forced labor in

violation of 18 U.S.C. §§ 1589(a) and 1594(a);4 (2) one

count of conspiracy to commit forced labor in viola-

tion of 18 U.S.C. §§ 371 and 1589(a); (3) two counts of

harboring aliens or attempting to harbor aliens in

violation of 8 U.S.C. § 1324(a)(1)A)Gii) and (v)(ID;5

(4) one count of conspiracy to harbor aliens in viola-

tion of 8 U.S.C. § 1324(a)(1)(A)Gi1) and (v)(1D); (5) two

4 18US.C. § 1589 provides in relevant part as follows:

(a) Whoever knowingly provides or obtains the la-

bor or services of a person by ... means of force,

threats of force, physical restraint, or threats of

physical restraint to that person or another per-

son ... shall be punished as provided under sub-

section (d).

18 U.S.C. § 1589(a). Section 1594(a) prohibits attempting to

commit forced labor, peonage, and document servitude, among

other offenses.

% 8 U.S.C. § 1324(a)(1)(A) makes criminally liable any person

who:

(K]nowing or in reckless disregard of the fact that

an alien has come to, entered, or remains in the

United States in violation of law, conceals, har-

bors, or shields from detection ... such alien in

any place, including any building or any means of

transportation ...

8 U.S.C. § 1324(a)(1)(A). Section 1324(a)(1)(A)(v\ID prohibits

aiding and abetting a violation of § 1324(a)(1)(A). Section

1324(a)(1A)(v)(1) prohibits conspiracy to commit the substan-

tive offenses.

19a

counts of peonage or attempted peonage in violation

of 18 U.S.C. §§ 1581(a) and 1594(a);®§ (6) one count of

conspiracy to commit peonage in violation of 18

U.S.C. §§ 371 and 1581(a); (7) two counts of docu-

ment servitude in violation of 18 U.S.C. §§ 1592 and

1594(a);7 and (8) one count of conspiracy to commit

document servitude in violation of 18 U.S.C. §§ 371

and 1592. A seven-week trial followed; the evidence

at trial consisted of testimony from many witnesses,

including Samirah, Enung, Hespeler, Litras, Pas-

carella, Samirah’s” relatives from Indonesia,

Samirah’s treating physician, and law enforcement

agents, as well as physical evidence recovered from

the house and numerous photographs.

The defense case consisted primarily of the tes-

timony of visitors to the residence who observed the

maids and noted nothing unusual. During summa-

tion, counsel for both Varsha and Mahender

Sabhnani contended that Samirah’s and Enung’s tes-

timony could not be believed, and that, despite her

denials, there was reason to believe that the marks

6 18 U.S.C. § 1581(a) prohibits “hold[ing] or returnling] any

person to a condition of peonage .. .” 18 U.S.C. § 1581(a).

7 18US.C. § 1592 provides:

Whoever knowingly destroys, conceals, removes,

confiscates, or possesses any actual or purported

passport or other imrnigration document, or any

other actual or purported government identifica-

tion document, of another person... in the course

of a violation of [§§ 1581, 1589, and 1594(a)) lor]

with intent to violate [§§ 1581, 1589, and 1594(a)]

. Shall be fined under this title or imprisoned

18 U.S.C. § 1592.

20a

on Samirah’s body were the product of kerokan, an

Indonesian folk remedy practiced by Enung that in-

volved rubbing a hard object on the skin. Defense

counsel suggested that Samirah was consumed with

hatred of Varsha Sabhnani because she believed

Varsha had cast a spell on her adult son, Erwin, who

died in 2006, while Samirah was working for the

Sabhnanis. Seeking financial reward, Enung sup-

posedly manipulated Samirah’s mental state to the

point that Samirah was willing to testify about

abuses that never occurred, while Enung falsely cor-

roborated her story. Following the trial, both Varsha

and Mahender Sabhnani were convicted on all

counts.

DISCUSSION

I. Pretrial Motions

A. The Venue Motion

Appellants contend that the district court im-

properly denied their motion pursuant to Fed. R.

Crim. P. 21(a) for a change of venue. We review the

district court’s disposition of such a motion for abuse

of discretion. United States v. Maldonado-Rivera,

922 F.2d 934, 967 (2d Cir. 1990). Rule 21(a) provides

in relevant part that “[ulpon the defendant’s motion,

the court must transfer the proceeding against that

defendant to another district if the court is satisfied

that so great a prejudice against the defendant exists

in the transferring district that the defendant cannot

obtain a fair and impartial tmal there.” Fed. R.

Crim. P. 21(a). The defendant must show “a reason-

able likelihood that prejudicial news prior to trial

will prevent a fair trial.”. Maldonado-Rivera, 922

F.2d at 966-67 (quoting Sheppard v. Maxwell, 384

U.S. 333, 363 (1966) (internal quotation marks omit-

ted)). “In assessing the motion, the district court

2la

may take into account, inter alia, the extent to which

the government is responsible for generating the

publicity, the extent to which the publicity focuses on

the crime rather than on the individual defendants

charged with it, and other factors reflecting on the

likely effect of the publicity on the ability of potential

jurors in the district to hear the evidence impar-

tially.” Jd. at 967.

The Sabhnanis contend that the prosecution

generated prejudicial pretrial publicity during bail

hearings on May 15 and 17, 2007. In the course of

the bail proceedings, the government described the

charged crimes as involving “incomprehensible bru-

tality and violence and inhumanity.” The local news

media printed and broadcast stories about the mat-

ter, several of which repeated the prosecution’s

statement that this was a case of “modern day slav-

ery.” The tabloid newspapers dubbed Varsha “Cru-

ella,” after the Disney villain Cruella de Vil, and

printed details of the methods that the Sabhnanis

allegedly used to torture their victims. During the

weeks following the bail hearings, in which there

was a significant amount of litigation over the bail

conditions, see United States v. Sabhnani, No. 07-CR-

429, 2007 WL 2769487, at *1-2 (E.D.N.Y. Sept. 21,

2007) (order denying transfer motion), the media re-

ported on various developments in the case, continu-

ally referring to it as the “Slave Case.” The coverage

also repeatedly referenced the Sabhnanis’ wealth

and the value and size of their home.

We conclude that the district judge did not abuse

his discretion in denying the Sabhnanis’ motion to

transfer venue. First, we agree with the district

court that the prosecution’s statements regarding the

character of the crimes were proper in the context in

22a

which they were made: bail hearings in which the

prosecutors were arguing that the Sabhnanis were a

danger to the victims and their families, justifying

an order of pretrial detention. The prosecution’s

mention of the Sabhnanis’ wealth was likewise

proper in the context of arguing that the Sabhnanis

were a risk of flight due to their substantial means.

While a district court may consider the government’s

role in generating adverse publicity in deciding a mo-

tion for change of venue, legitimate advocacy at a

court proceeding — even advocacy resulting in ad-

verse pretrial publicity — does not constitute conduct

for which the government is properly held responsi-

ble in a Rule 21(a) inquiry. Nor do we find any error

in the district court’s determination that, in any

event, the press coverage appears to have been

driven at least as much by comments of the

Sabhnanis’ counsel as by any prosecutor’s statement.

See Sabhnani, 2007 WL 2769487, at *3 & nn.4-6.

Second, we similarly conclude that the pretrial

publicity here was not so pervasive and prejudicial

as to have created a reasonable likelihood that a fair

trial could not be conducted. The bail hearings took

place in mid-May, and voir dire in the case began in

late October, five months later. This is a shorter

amount of time than has been present in some cases

in which we have noted that the effects of publicity

had dissipated by the time the trial began. See, e.g.,

United States v. Yousef, 327 F.3d 56, 155 (2d Cir.

2003). However, in Maldonado-Rivera, we affirmed

the denial of a motion to transfer venue even though

the district judge there found that the press coverage

was “continuing and prominent.” Maldonado-Rivera,

922 F.2d at 967 (describing district court’s finding of

“slightly more than one article per week over a three-

year period). Moreover, the record here indicates, as

23a

the district court found, that most of the press cover-

age tracked the frequent court proceedings in this

case. See, e.g., Varsha App. 10-11 (first appearance),

14-15, 22 (second bail hearing), 28-30 (indictment),

33-65 (litigation over bail conditions). Coverage of

actual developments in a criminal case generally will

not rise to the level of prejudicial publicity that will

warrant a venue change.

Most importantly, the cases involving claims that

pretrial publicity was so inherently prejudicial that a

fair trial in the district could not be had draw a clear

distinction between mere exposure to pretrial public-

ity and actual prejudgment by the venire of the is-

sues to be decided in the case. “We must distinguish

between mere familiarity with petitioner or his past

and an actual predisposition against him .... To ig-

nore the real differences in the potential for preju-

dice would not advance the cause of fundamental

fairness, but only make impossible the timely prose-

cution of persons who are well known in the commu-

nity ....” Murphy v. Florida, 421 U.S. 794, 800 n.4

(1975). It is true that the Supreme Court has in the

past stated that publicity can so saturate a commu-

nity (and be so highly prejudicial to the defendants)

that courts should in such cases presume a fair trial

was impossible. See, e.g., Rideau v. Louisiana, 373

U.S. 723, 724-26 (1963) (defendant was filmed, pos-

sibly without his knowledge, confessing to details of

crime, and film was shown repeatedly on television

in relatively small community); see also Patton v.

Yount, 467 U.S. 1025, 1031 (1984) (“[Aldverse pre-

trial publicity can create such a presumption of

prejudice in a community that the jurors’ claims that

they can be impartial should not be believed.”) (de-

scribing the holding of Jrvin v. Dowd, 366 U.S. 717

(1961)). Cases presenting this scenario are very

24a

rare, however, and have been characterized by our

sister circuits as “extreme situationl|s],” United

States v. Campa, 459 F.3d 1121, 1143 (11th Cir.

2006) (en banc) (upholding rejection of motion to

transfer venue of accused Cuban spies from Miami

despite alleged pervasive prejudice against the Cu-

ban government in the district), in which the “public-

ity in essence displaced the judicial process.” United

States v. McVeigh, 153 F.3d 1166, 1181 (10th Cir.

1998).

The Sabhnanis argue that we need not employ a

presumption of prejudice here because there is actual

evidence that the venire was biased. The record,

however, does not establish that the venire had pre-

judged the Sabhnanis’ case, and nothing argued to

the district court or to this court suggests anything

to the contrary. The Sabhnanis point to the voir dire

and, in particular, to the responses to questioning by

some potential jurors as evidence that these jurors,

who were excused, had been biased against them by

the media coverage. They also point to an e-mail

sent to the court by an excused potential juror, who

claimed that other members of the venire were “ly-

ing” and pretending to “live in a cave” in order to

serve on the jury in the case. Varsha App. 129-30.

8 We do not understand the appellants to be arguing that the

trial jury, as opposed to the venire, was prejudiced by the media

coverage. To the extent their arguments can be so construed,

they were soundly rejected by the district court in its decision

on the Sabhnanis’ Rule 33 motion on the ground that the

Sabhnanis could not demonstrate that any juror was actually

exposed to prejudicial publicity. The appellants make no argu-

ments here to demonstrate that this conclusion was erroneous

in any respect.

25a

We have noted, in the context of the appeal from

a conviction involving crimes far more notorious than

the ones in this case, that “the key to determining

the appropriateness of a change of venue is a search-

ing voir dire.” Yousef, 327 F.3d at 155. Here, as in

Yousef, the Sabhnanis did not renew their motion to

change the trial’s venue directly after the jury’s voir

dire, nor do they object here to the voir dire’s suffi-

ciency. Moreover, in seeking a new trial before the

district court post-verdict, although Varsha did point

to adverse publicity, she never contended that the

voir dire itself was deficient in any respect. See id.

(taking such silence as an “indication that counsel

was satisfied that the voir dire resulted in a jury that

had not been tainted by publicity”). The evidence the

Sabhnanis point to establishes no more than that

some members of the venire had been exposed to

publicity, and that some may have been reluctant to

admit it. We have rejected claims that the venire

was not sufficiently impartial in cases in which the

evidence that excused potential jurors had formed an

opinion of the defendant’s guilt or innocence based on

pretrial publicity was far more substantial. See, e.g.,

Knapp v. Leonardo, 46 F.3d 170, 176 (2d Cir. 1995)

(finding no manifest error in state court’s determina-

tion that jury was impartial when defendant argued

that 83% of veniremen were excused because they

had prejudged the case); see also United States v.

Higgs, 353 F.3d 281, 308-09 (4th Cir. 2003) (affirm-

ing denial of motion to transfer venue in which ma-

jority of potential jurors had heard about the case

and several stated that they had formed an opinion

based on publicity). Here, neither the character of

the publicity nor the extent to which potential jurors

were either exposed to it or affected by it warrants

the conclusion that a presumption or inference of

26a

generalized prejudice was appropriate in this case.

We conclude that the district court’s denial of the

motion for a change of venue was not an abuse of

discretion.

B. The Motion for a Psychiatric Examination

Appellants next assert that the district court

erred in denying their motion for a psychiatric ex-

amination of Samirah. The motion was based on: (1)

the affidavit of Dr. Barent Walsh, a clinical social

worker providing therapy to “self-injuring persons,”

which stated, based on Dr. Walsh’s examination of

photographs of Samirah’s injuries, that although he

could not be certain since he had never seen her, the

photographs showed injuries that could “be consis-

tent with self-injury,” Varsha App. 251; (2) Samirah’s

discharge papers from the Nassau University Medi-

cal Center, which noted that she was being referred

to an “outpatient psychiatry clinic”; and (3) the affi-

davit of one of the appellants’ daughters which

stated that she had frequently observed Samirah be-

having in a “strange fashion” (for instance by urinat-

ing uncontrollably), and that she had heard Samirah

state after the death of her son, Erwin, that she “de-

serve(d] to be punished.” Varsha App. 246-47. The

Sabhnanis also relied on letters written by Samirah

that contained what they argued to be further evi-

dence of Samirah’s possible mental instability.

Judge Platt denied the motion, which the defense re-

newed shortly prior to trial before Judge Spatt.9 At

that time, the defense also relied on the deposition

testimony of Samirah’s daughter Lita regarding in-

9 This matter was originally assigned to Judge Thomas C

Platt, and was reassigned to Judge Spatt shortly before trial

27a

formation that Varsha Sabhnani had provided to her

about Samirah’s behavior. Judge Spatt denied the

renewed motion.

“Ordering a witness to undergo a psychological

examination is a drastic measure.” United States v.

Russo, 442 F.2d 498, 503 (2d Cir. 1971); see also

United States v. Kehoe, 310 F.3d 579, 592 (8th Cir.

2002). Given the “inherent problems in allowing

psychiatric examination of a witness,” including “in-

vasion of privacy, limiting availability of witnesses,

[and] chilling testimony,” United States v. Gates, 10

F.3d 765, 766 (11th Cir. 1993), a court should exer-

cise its discretion to require such examinations only

sparingly. Here, the Sabhnanis do not claim that

Samirah was incompetent to testify, but only that

the district court abused its discretion by failing to

allow the defense to gather evidence of Samirah’s

psychological state that could have been used to im-

peach her credibility. We conclude that this argu-

ment is without merit.

In Russo, where we rejected the argument that a

purported “pathological liar” should have been re-

quired to undergo an independent psychiatric exam,

we noted that so long as “the jury from its observa-

tion has the opportunity to appraise the credibility of

the witness in the light of the facts tmpugning his

veracity, this constitutes the constitutional safe-

guard of a defendant’s rights.” 442 F.2d at 502. This

precept is fully applicable here. The jury had a full

opportunity in this case to assess Samirah’s credibil-

ity, and a psychiatric examination would not have

added measurably to its ability to do so. Samirah

testified for part or all of six days, and faced exten-

28a

sive cross-examination.!9 The Sabhnanis argue that

because Samirah’s testimony was given through an

Indonesian interpreter the jury was unable to assess

her tone of voice. Even assuming this to be case,

however — a matter on which we express no opinion

— the fact that Samirah’s testimony was conveyed to

the jury through the medium of an interpreter did

not measurably lessen the jury’s ability to assess

other aspects of her testimony, such as the content of

her statements, her body language, and her facial

expressions. Cf. Vasquez v. Kirkland, 572 F.3d 1029,

103 8 (9th Cir. 2009) (testimony by deaf-mute

through two separate sets of interpreters did not de-

prive defendant of opportunity to cross-examine wit-

ness; jury could assess credibility because witness

testified under oath and jury could observe her de-

meanor). The Sabhnanis also point to Samirah’s tes-

timony that Varsha Sabhnani put a spell on

Samirah’s son Erwin as evidence of Samirah’s un-

stable mental condition. That the jury heard this

testimony, however, only further undermines any

claim that a psychiatric examination was needed to

assist the jury in evaluating Samirah’s state of mind.

We conclude that the district court acted well

within its discretion in determining that the evi-

dence proffered by the appellants in support of their

motion was insufficient to show the need for a psy-

chiatric exam. Dr. Walsh’s affidavit, based only on a

review of photographs, indicated merely that

Samirah’s injuries might “be consistent with self-

10 The jury also heard testimony from Samirah’s treating phy-

sician at Nassau University Medical Center, Dr. Ami Attali,

who testified regarding Samirah’s mental state while at the

hospital.

29a

injury” — an assertion that fell well short of demon-

strating any mental instability, much less mental in-

stability warranting the conduct of a psychiatric ex-

amination. Cf. United States v. Gutman, 725 F.2d

417, 420 (7th Cir. 1984) (finding no abuse of discre-

tion in the district court’s refusal to hold a hearing to

determine whether a witness with a history of men-

tal illness was competent to testify). Similarly,

Samirah’s letters, most of which Samirah testified

Varsha dictated to her and forced her to write, did

not demonstrate the need for investigation into

Samirah’s mental state and, in any event, were

themselves available for assessment by the jury. The

hospital discharge papers noting Samirah’s referral

to an outpatient psychiatric clinic do not explain the

reason for the referral, but Dr. Attali testified that

such a recommendation is routine for most recover-

ing trauma victims. The district court did not abuse

its discretion by declining to afford these notes much

weight. Finally, neither the Sabhnani daughter’s af-

fidavit attesting to Samirah’s “strange” behavior —

much ef it, according to Samirah’s later testimony,

caused by the Sabhnanis’ mistreatment — nor the

deposition testimony of Samirah’s daughter, which

merely reported Varsha Sabhnani’s self-serving

statements, established a compelling need for

Samirah’s examination. The district court did not

err, much less abuse its discretion, in determining

that a psychiatric examination was not warranted.

II. Mahender Sabhnani’s Jury Instruction and

Sufficiency Challenges

Mahender Sabhnani raises two claims of error

with regard specifically to his convictions. First, he

contends that the charge to the jury on aiding and

abetting erroneously allowed the jury to convict him

on an omissions theory of liability, rather than on

30a

any affirmative acts he might have taken to aid and

abet his wife’s criminal conduct. This error, he con-

tends, infected every count on which he was con-

victed and requires that all of his convictions be va-

cated. Second, he contends that the evidence was in-

sufficient to sustain the convictions on any of the

twelve counts on which the jury convicted him. We

disagree with both claims.

A. Mahender Sabhnani’s Jury Instruction

Challenge

The government charged both defendants under

the aiding and abetting statute, 18 U.S.C. §2, as

well as under the specific substantive statutes at is-

sue. Mahender Sabhnani asserts error in approxi-

mately forty words in Judge Spatt’s 792-word in-

struction on aiding and abetting. In parucular, he

contends that the district court’s instruction on will-

fulness permitted the jury to convict him for failing

to act.t1 Because none of the statutes pursuant to

which he was charged predicates liability on a failure

to act, he argues, and because no common law duty

to act is at issue in this case, or was part of the jury

charge, this instruction was erroneous, requiring his

11 The instruction, which was given twice, reads in its entirety

as follows:

Participation in a crime is willful if action is

taken voluntarily and intentionally or in the case

of a failure to act with the specific intent to fail to

do something the law requires to be done, that is

to say, with a bad purpose either to disobey or to

disregard the law.

Tr. 5035.

3la

convictions to be vacated. For the following reasons,

we disagree.

A defendant challenging a jury instruction as er-

roneous must show “both error and ensuing preju-

dice,” United States v. Quinones, 511 F.3d 289, 313-

14 (2d Cir. 2007), and we review the jury instructions

“de novo ... viewing the charge as a whole,” United

States v. Quattrone, 441 F.3d 153, 177 (2d Cir. 2006)

(quoting United States v. Aina-Marshall, 336 F.3d

167, 170 (2d Cir. 2003)). “De novo review leads us to

[find] error if we conclude that a charge either fails

to adequately inform the jury of the law, or misleads

the jury as to the correct legal standard.” Jd. (quot-

ing United States v. Doyle, 130 F.3d 523, 535 (2d Cir.

1997)) (alteration in original) (internal quotation

marks omitted). We emphatically do not review a

jury charge “on the basis of excerpts taken out of

context,” but in its entirety, see United States v.

Mitchell, 328 F.3d 77, 82 (2d Cir. 2003) (quoting

United States v. Zvi, 168 F.3d 49, 58 (2d Cir. 1998))

Ginternal quotation marks omitted), to determine

whether considered as a whole, “the instructions

adequately communicated the essential ideas to the

jury.” United States v. Tran, 519 F.3d 98, 105 (2d

Cir. 2008) (quoting Uniied States v. Schultz, 333 F.3d

393, 413-14 (2d Cir. 2003) (internal quotation marks

and alterations omitted)); see also Cupp v. Naughten,

414 U.S. 141, 146-47 (1973) (“[A] single instruction to

a jury may not be judged in artificial isolation, but

must be viewed in the context of the overall

charge.”).

At the start, we find dubious the government’s

claims that aiding and abetting liability may gener-

ally be predicated upon a failure to act unconnected

to any legal duty to do so, that the statutes at issue

32a

created an affirmative duty to act, or that Mahender

Sabhnani was properly found by the jury to have vio-

lated a common law duty that required him to act. It

is a long-established principle that criminal law gen-

erally regulates action, rather than omission, and

that “[flor criminal liability to be based upon a fail-

ure to act it must first be found that there is a duty

to act — a legal duty and not simply a moral duty.” 1

Wayne R. LaFave, Substantive Criminal Law § 6.2

(2d ed. 2008).12. This genera! principle, that omis-

sions may serve as the basis of criminal liability only

if there is an affirmative duty to act, is equally appli-

cable when the crime charged is aiding and abetting.

See United States v. Labat, 905 F.2d 18, 23 (2d Cir.

1990) (“To convict a defendant on a theory of aiding

and abetting, the government must prove that the

underlying crime was committed by a person other

than the defendant and that the defendant acted, or

failed to act in a way that the law required him to

act, with the specific purpose of bringing about the

underlying crime.”). Here, none of the statutes pur-

suant to which Mahender was convicted expressly

impose an affirmative duty to take action, lest a

crime be committed.'3 And even assuming, ar-

12 Such a legal duty to act can arise from a statute specifically

creating the duty — the duty to file one’s tax returns, for in-

stance, see 26 U.S.C. § 7203 — or by extrapolation from a dif-

ferent statute, the commor law, or contract. 1 LaFave, Sub-

stantive Criminal Law § 6.2.

13 The document servitude statute, 18 U.S.C. § 1592, which

criminalizes the knowing destruction, concealment, removal,

confiscation, or possession of immigration documents of an-

other, may come the closest — predictably enough, as criminal

possession statutes often straddle the line between regulating

an act and an omission. See Sanford 11. Kadish et al., Criminal

33a

guendo, that Mahender Sabhnani owed a common

law duty to the maids that was sufficiently well es-

tablished in our legal tradition and practice that it

constitutes part of the background common law

apcinst which these statutes should be interpreted,

see, e.g., Morisette v. United States, 342 U.S. 246, 250

(1952); United States v. Rybicki, 354 F.3d 124, 135-

36 (2d Cir. 2003) (en banc), the jury here was not

charged on the nature of this duty nor instructed as

to the factors it should consider in determining

whether the duty was discharged. See Jones uv.

[Footnote continued from previous page]

Law and Its Processes: Cases and Materials 207 (8th ed. 2007).

We have held that constructive possession — established by a

showing that “a defendant knowingly had the power and the

intention at a given time to exercise dominion and control over

lan item]” — can be sufficient te render a defendant criminally

liable under such a statute. United States v. Chavez, 549 F.3d

119, 129 (2d Cir. 2008) (quoting United States v. Finley, 245

F.3d 199, 203 (2d Cir. 2001)) (internal quotation mark and al-

teration omitted) (constructive possession of a firearm was suf-

ficient for a conviction under 18 U.S.C. § 924(c)); see also United

States v. Jones, 531 F.3d 163, 168-69 (2d Cir. 2008) (construc-

tive possession of narcotics was sufficient for a conviction under

21 U.S.C. § 841(a)(1)). Under this definition of constructive

possession, one could violate § 1592 by forming the specific in-

tent to possess the immigration documents of another while

having knowing control over them — in theory, without taking

any affirmative act. Even accounting for this possibility, how-

ever, possessory offenses do not expressly impose affirmative

duties to act in the manner of traditional omissions statutes,

which, in effect, require affirmative conduct to be taken to avoid

commission of the crime. See, e.g., 18 U.S.C. § 2250(a) (knowing

failure to register or update a registration as a sex offender by

one who is required to do so); 50 U.S.C. § 462 (failure to perform

a duty of registration by one required to do so under the Mili-

tary Selective Service Act).

34a

United States, 308 F.2d 307, 310-11 (D.C. Cir. 1962)

(reversing on plain error review where a jury was not

instructed as to the nature of the common law duty

that was the basis for omissions liability).

We need not decide the question whether in the

circumstances of this case Mahender Sabhnani could

properly be convicted based upon an omission to act,

however, because we reject his claim that the district

court’s instruction on willfulness, considered in the

context of the aiding and abetting instruction as a

whole, rendered the instructions so confusing as to

permit the jury to convict him on this basis. To be

clear, the jury was instructed that participation in a

crime is willful if action is taken voluntarily and in-

tentionally, or in the case of a failure to act, with

specific intent to fail to do something the law re-

quires. Drawn nearly verbatim from the mode! jury

instruction in the leading treatise on the subject, see

1 Leonard Sand et al., Modern Federal Jury Instruc-

tions — Criminal, J 11.01, at 11-4 (2008 ed.), this in-

struction was not inaccurate, however, but simply

extraneous to this case — at least absent further in-

struction as to a legal theory that would support li-

ability based on a failure to act.

When a jury charge contains language that could

potentially confuse the jury as to the applicable law,

we look to see whether the charge as a whole ade-

quately instructed the jury as to the applicable legal

standard. Cupp, 414 U.S. at 146-47. Here, the jury

was never told that either Mahender or Varsha

Sabhnani could be convicted of aiding and abetting

based upon a failure to act. Indeed, immediately be-

fore the instruction on willfulness, the jury was in-

formed thet “({i]Jn order to aid or abet another to

commit a crime, it is necessary that the defendant

35a

willfully and knowingly associate herself in some

way with the crime and that she or he willfully and

knowingly seek by some act to help make the crime

succeed.” Tr. 5035 (emphasis added). Immediately

after the challenged language, the jury was in-

structed that the “mere presence of a defendant

where a crime is being committed, even coupled with

knowledge by the defendant that a crime is being

committed, or the mere acquiescence by a defendant

in the criminal conduct of others, even with , uilty

knowledge, is not sufficient to establish aiding and

abetting.” Tr. 5036. Cf. United States v. Elfgeeh, 515

F.3d 100, 134-35 (2d Cir. 2008) (finding it “highly

unlikely” that jury relied on erroneous sentence that

was immediately preceded and followed by correct

statements of the charge). An aider and abettor, the

district court said, must “know that the crime is be-

ing committed and act in a way which is intended to

bring about [its] success.” (emphasis added),

The repeated emphasis in the instructions on the

proposition that an aider and abettor must “seek by

some act to make the crime succeed” was further

stressed in the judge’s summary of the charge. The

district court instructed the jury to ask itself three

questions to determine whether a defendant aided or

abetted the commission of a crime:

Did the defendant participate in the crime

charged as something she or he wished to

bring about?

Did the defendant associate herself or

himself with the criminal venture knowingly

and willfully?

Did the defendant seek by her or his ac-

tions to make the criminal venture succeed?

36a

Tr. 5036 (emphasis added). If the government

proved beyond a reasonable doubt that the defendant

did these things, the district court instructed, “then

the defendant is an aider and abettor and therefore

guilty of the offense.” But “if on the other hand your

answers to a.:.y one of these series of questions ... is

no,” Judge Spatt continued, “then the defendant is

not an aider and abettor and you must find him or

her not guilty as to aiding and abetting.” Tr. 5036-

37.

We conclude that the charge’s repeated emphasis

on the necessity of acting in order to aid and abet,

coupled with the crystal clear summary, was suffi-

cient to ameliorate any possible confusion that might

conceivably have arisen from the willfulness instruc-

tion. See Brown v. Greene, 577 F.3d 107, 111-12 (2d

Cir. 2009) (collecting cases upholding jury charges

containing language that might have created some

confusion about the burden of proof, because the

charges as a whole made clear that the cases were

governed by the “beyond a reasonable doubt” stan-

dard); United States v. Locasio, 6 F.3d 924, 941 (2d

Cir. 1993) (ambiguous summary of element did not

warrant reversal where earlier discussion of element

was clear). This was not a case in which the jury in-

structions were insufficiently detailed as to an essen-

tial element of the crime and were never clarified by

other language, such that the jury could have con-

victed based on a legally erroneous theory. See, e.g.,

United States v. Hassan, 578 F.3d 108, 129-34 (2d

Cir. 2008) (instructions that failed to explain to jury

that defendant needed to have intent to import par-

ticular controlled substance and that other sub-

stances referenced in the evidence were not con-

trolled substances left open possibility for jury to

convict on importation of other substances that were

37a

not illegal). Here, the instructions clarified what

was required to convict, and the judge’s three-

question summary of the charge was perfectly clear,

removing the possibility of any confusion on the

jury's part. Cf United States v. Moran, 493 F.3d

1002, 1009-10 (9th Cir. 2007) (while instructions

might have had “minor ambiguity” after a “careful

picking apart” of their wording, clear summarizing or

overview paragraph that conveys basic point to jury

can cure potential error).

Mahender Sabhnani makes two arguments in

reply. First, he contends that Judge Spatt errone

ously believed that he could be convicted for aiding

and abetting based solely on his failures to act. To

be sure, when counsel objected to the instruction on

willfulness during the charging conference, Judge

Spatt did overrule the objection, suggesting that the

employer of a domestic servant does have an obliga-

tion to act when he allows “for five years ... beat-

ings, deprivation, lack of food, sleeping on the floor,

wearing tattered gowns, [and] hit[s] with a stick” to

take place in his home. Tr. 4427. Notably, however,

in denying Mahender’s Rule 29 motion, the judge

noted that “there was sufficient evidence at the trial

to prove that Mahender affirmatively acted with the

specific intent to advance the crimes alleged in the

indictment.” Even more importantly, the jury only

heard the instructions, not Judge Spatt’s opinion at

the charging conference, and our concern on appeal

is the effect of jury instructions, not “the district

court’s purpose in stating the jury instructions as it

did.” Hassan, 578 F.3d at 132. Mahender points

next to the government’s summation. In his sole ref-

erence to the necessary requirements for aiding and

abetting, the government attorney stated without ob-

jection during the main summation that:

38a

You don’t have to have actually committed

the crime to be an aider and abettor. All that

needs to be established is that somebody else

committed the crime, and that you knowingly

and willfully associated yourself with that

other person in some way to help with the

crime. Help with the crime. And that can be

done by actions, or it can be done by a failure

to act.

A failure to act with specific intent, to fail

to do something the law requires.

Tr. 4693. Mahender contends that these words

created a “not insubstantial” risk that the willfulness

instruction led the jurors to convict him on an invalid

basis. Mahender’s Br. 29. Here, however, we have

already determined that the jury instructions, read

as a whole, clearly apprised the jury of what it was

required to find in order to convict. We agree that a

party’s summation can heighten the already present

risk that an erroneous jury instruction may mislead

the jury. See, e.g., United States v. Joseph, 542 F.3d

13, 18-19 (2d Cir. 2008), But that situation is not

this case. The jury instructions, which we presume

that jurors follow, see, e.g., United States v. Stewart,

433 F.3d 273, 310 (2d Cir. 2006), were clear that

Mahender could not be convicted solely because he

knew of Varsha’s crimes or acquiesced in her actions,

without acting himself. And to the extent the prose-

cutor’s summation did misstate the applicable law,

Mahender raised no objection below and does not

press the issue here in those terms.

Given our conclusion that the instructions as a

whole adequately conveyed to the jury the law it was

to apply, we need not and do not address Mahender’s

argument that the error he alleges was sufficiently

39a

prejudicial to taint each of his convictions, including

the four separate conspiracy convictions to which the

challenged instructions did not apply. We conclude

simply that the aiding and abetting instruction, con-

sidered as a whole, adequately conveyed to the jury

the necessary and applicable requirements for aiding

and abetting, and that Mahender’s argument to the

contrary is without merit.

B. Sufficiency of the Evidence

Mahender also challenges the sufficiency of the

evidence to support his convictions for forced labor,

peonage, document servitude, and conspiracy to

commit these crimes. We review de novo challenges

to the sufficiency of the evidence. United States v.

Abdulle, 564 F.3d 119, 125 (2d Cir. 2009). In review-

ing a claim that the evidence was insufficient to sus-

tain a defendant’s conviction, “we view the evidence

in the light most favorable to the government, draw

ing all inferences in the government’s favor and de-

ferring to the jury’s assessments of the witnesses’

credibility.” United States v. Parkes, 497 F.3d 220,

225 (2d Cir. 2007) (quoting United States v. Arena,

180 F.3d 380, 391 (2d Cir. 1999)) (internal quotation

marks omitted). “We will sustain the jury’s ver-

dict|s] so long as any trier of fact could have found

the essential elements of the crime beyond a reason-

able doubt.” Jd. (quoting Jackson v. Virginia, 443

U.S. 307, 319 (1979)) (internal quotation marks omit-

ted).

Mahender’s main contention on appeal is that

the trial evidence was insufficient to show he had

knowledge that Varsha was threatening or physi-

cally abusing the maids — and thus a fortiori that

the evidence was inadequate to establish his intent

to participate in the crimes of forced labor and peon-

40a

age, whether as a principal, an aider and abettor, or

a conspirator. Mahender does not directly challenge

the sufficiency of the evidence to support his convic-

tions for document servitude and conspiracy to com-

mit document servitude, but instead argues that be-

cause the evidence was insufficient to sustain his

forced labor and peonage convictions, he cannot be

guilty of these “derivative” offenses. For the follow-

ing reasons, we disagree with these contentions.

1. Forced Labor and Peonage Convictions

With regard to the forced labor charges, 18

U.S.C. § 1589 at the time of the Sabhnanis’ convic-

tions prohibited “knowingly provid[ing] or obtain[ing]

the labor or services of a person by,” inter alia,

“threats of serious harm to, or physical restraint

against, that 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 .

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 proc-

ess.” 18 U.S.C. § 1589(a)(1)-(3) (2000). The jury con-

victed Mahender of obtaining the labor or services of

Samirah and Enung both “through threats of serious

harm or physical restraint against [them]” and

“through a scheme, plan or pattern intended to cause

[them] to believe that non-performance would result

in serious harm.” Verdict Sheet 2-4. The peonage

statute, 18 U.S.C. § 1581(a), prohibits “hold{ing] or

return[ing] amy person to a condition of peonage

....” To prove peonage, “the government must show

that the defendant intentionally held a_ person

against his or her will and coerced that person to

work in order to satisfy a debt by (1) physical re

straint or force, (2) legal coercion, or (3) threats of

Ala

legal coercion or physical force.” United States v.

Farrell, 563 F.3d 364, 372 (8th Cir. 2009).

At the start, the jury had a more than ample ba-

sis on which to conclude that Mahender knew of both

the threatened and actual maltreatment of Samirah

and Enung. “[JJurors are entitled, and routinely en-

couraged, to rely on their common sense and experi-

ence in drawing inferences” of a defendant’s knowl-

edge and his criminal intent. United States v. Huezo,

546 F.3d 174, 182 (2d Cir. 2008). Here, Samirah and

Enung lived and worked in Mahender’s home — a

home from which he also operated his business — for

five and two-and-a-half years, respectively. The jury

was entitled to credit the maids’ testimony that dur-

ing this time Mahender witnessed his wife humiliate

them — when, for instance, Enung was required to

stand in one place until she confessed to stealing

chocolate and Samirah was forced to pick up one by

one the tiny pieces of paper that Varsha Sabhnani

had just thrown to the ground. There was substan-

tial evidence, moreover, that Mahender observed

Samirah eat from the trash and wear rags that were

inadequate even to cover her body. Indeed, Enung

identified one such rag and confirmed that

Mahender, along with the rest of the family, ob-

served Samirah wear it every day — even after it

had been repeatedly cut up and resewn at Varsha’s

command, “every time [Samirah] made [a] mistake.”

Tr. 3196. Samirah testified that Mahender saw her

“every day” between 2005 and 2007, Tr. 2367 — a

period during which Varsha repeatedly cut Samirah

on the face with a knife and, indeed, on one occasion

(after a report from her husband) beat Samirah

about the face with an umbrella, leaving Samirah’s

face bleeding and swollen. Tr. 1855-57. Samirah

testified that Mahender saw her wearing rags and

42a

that he “[saw her] face, .. . the clothings .. . [and] all

the marks from the beating from missus. I would cry

and the mister would look at me.” Tr. 2368. Litras,

Mahender’s employee, did not live in the Sabhnani

household and saw the maids only infrequently.

Tellingly, however, even apart from the injuries the

maids directly showed her in April 2007, she testified

to noticing their “very messy ... tattered and torn”

clothing and, on one occasion, blood dripping from

Samirah’s hairline. Tr. 3860. The jury clearly had

more than ample evidence from which to infer

Mahender’s awareness of the maids’ plight.

There was also sufficient evidence of Mahender’s

intent to use Varsha’s threats and maltreatment

against the maids in order to obtain their labor.

Samirah testified that on one occasion when she fell

asleep cleaning a bathronm of one of the children,

“mister told missus that Sami [Samirah] was not

washing, but ... was sleeping in the bathroom” and

Varsha Sabhnani “came with something to hit.” Tr.

1869. Samirah, afraid, ran away and urinated by the

stairs, soiling Mahender’s shoes as two of the chil-

dren cried. Samirah further testified as follows:

Q. Did you sometimes get punished for

things that you did that the Missus didn’t

see you do?

A. Yes.

Yes. The Mister would report to the Mis-

sus that I slept in the bathroom upstairs

and the Missus would immediately hit

me. And another time ... it was during

the fasting months for the Muslims. I

couldn’t fast because I didn’t eat in — |

ate [food] from the garbage, and the Mis-

ter saw it, and told the Missus about it,

43a

and immediately the Missus got very an-

gry. “You again stole the food?” And I

said I found it in the garbage, and I was

hit.

Tr. 1848-49. It is of no importance that, as

Mahender points out, Samirah testified that he was

not present when Varsha hit Samirah for eating the

food, nor does it matter whether he was present on

the other occasions when she was punished aiter he

reported her misdeeds. The jury was not required,

as Mahender contends, to infer that he was acting

charitably by reporting the maids’ conduct to his

wife. On the contrary, the jury was entitled to infer

from these incidents and from the other evidence of

Mahender’s knowledge of abuse that when Mahender

reported Samirah’s conduct to Varsha, he knew how

she would react.

Mahender contends that even if there is suffi-

cient evidence to support his conviction for forced la-

bor, his peonage conviction is infirm because there

was no direct evidence that he held Samirah and

Enung in involuntary servitude in satisfaction of a

real or alleged debt. Samirah, Enung, and Samirah’s

daughter, Lita, testified that Varsha told them re-

peatedly that if the maids wanted to be returned to

Indonesia they would have to reimburse the costs of

bringing them to the United States. Enung specifi-

cally testified that she did not run away from the

Sabhnanis’ residence in part because she “still

owel[d]” months of work to Mahender and Varsha. “I

was very frightened. I didn’t dare to go out of the

house prior to the debt being paid off.” Tr. 3188.

Mahender concedes that this testimony, if credited,

might be adequate to support his wife’s conviction.

He contends, however, that it is insufficient to estab-

44a

lish Ais intent to hold the maids in satisfaction of a

debt because he “was not present during any conver-

sation about repaying money.” Mahender’s Br. at 58.

We disagree that this is the relevant question, and

that the evidence was insufficient in any respect.

18 U.S.C. § 1581(a) prohibits the holding of a

person in “a condition of peonage.” Peonage is com-

pulsory service in payment of a debt that can be real

or artificially created. See Bailey v. Alabama, 219

U.S. 219, 242 (1911); Pierce v. United States, 146

F.2d 84, 86 (5th Cir. 1944). Here, the jury was enti-

tled to infer first that Mahender knowingly partici-

pated in the creation of an obligation on the maids’

part to work. The jury was entitled to infer that the

appellants paid for the maids’ travel to the United

States based not only on the involvement of Varsha

Sabhnani’s family, but also upon Varsha’s state-

ments that this money had to be repaid if the maids

were to leave. Samirah testified, for instance, that

when she begged to be given away she was told by

Varsha that she was brought to the United States in

an airplane and that if she was to be given to some-

one else, that cost would have to be paid back: “(T]he

missus answered, you think I have money tree? You

came here with money. If you had 100 million

[rupiahs], Pll give you to someone else.” Tr. 1881.

Enung also testified that her salary was paid “up-

front” in its entirety, and that Varsha was supposed

to be the one paying it. The jury was permitted rea-

sonably to infer that Mahender knew of these pav-

ments, and that they evinced an intent to create a

debt-like obligation on the maids to work. Cf. Pierce,

146 F.2d at 85-86 (evidence sufficient to support pe-

onage conviction when defendant, among other acts,

paid the full fine owed by incarcerated women in ex-

change for them agreeing to work for him); Bernal v.

45a

United States, 241 F. 339, 341 (5th Cir. 1917) (defen-

dant convicted of peonage paid for victims’ transpor-

tation to come to work for her).

Second, the evidence also sufficiently demon-

strated that Mahender, who benefitted from the

maids’ labor, knew that the maids were being forced

to work and that the maids were completely depend-

ent on the Sabhnanis for food, clothing, and shelter,

the family’s provision of which contributed to the

maids’ obligated status. Cf Pierce, 146 F.2d at 85-86

(defendant contributed to victims’ indebtedness by

buying them clothes and other gifts). Indeed, the re-

cord shows that during the summer months when

the Sabhnanis departed, neglecting to leave ade-

quate provisions for the maids, it was Mahender who

called Litras to put her in touch with his wife, who

instructed Litras to obtain food — usually many

loaves of bread — for the maids, and to pay for it

with petty cash from Mahender’s office.14 From the

evidence that Mahender reported on Samirah when

she foraged in the garbage for something to eat, the

jury was entitled to infer both that Mahender knew

the maids were in a condition of abject dependence,

and that he both intended and acted to keep them in

that state. Under these circumstances, the evidence

supported the conclusion that Mahender, having

knowingly contributed to the creation of the maids’

indebted situation and knowing of their dependence

on the family, forced the maids to work through the

14 Litras testified that generally speaking her only contact

with the maids during the summer months was on these occa-

sions when she passed food to them through a partially opened

door — and that she never saw the maids outside when the

Sabhnanis were away.

46a

threat of violence from his wife. We therefore con-

clude that there was sufficient circumstantial evi-

dence from which the jury could infer that Mahender

acted to aid and abet the holding of the maids in sat-

isfaction of their “obligations” to the Sabhnanis.

For substantially the same reasons, we also re-

ject Mahender’s claim that the evidence was insuffi-

cient to support his convictions for conspiracy to

commit forced labor and peonage. The existence of a

criminal agreement between two persons can be in-

ferred from circumstantial evidence. Huezo, 546

F.3d at 180; see also United States v. Borelli, 336

F.2d 376, 384 (2d Cir. 1964) (Friendly, J.) (“Although

it is usual and often necessary in conspiracy cases for

the agreement to be proved by inference from acts,

the gist of the offense remains the agreement, and it

is therefore essential to determine what. kind of

agreement or understanding existed as to each de-

fendant.”); United States v. Amiel, 95 F.3d 135, 144

(2d Cir. 1996) (“A tacit understanding will suffice to

show agreement for purposes of a conspiracy convic-

tion. There need not be any written statement or

even a speaking of words which expressly communi-

‘tes agreement.”). As to a defendant’s participation,

even “a single act may be sufficient for an inference

of involvement ... if the act is of a nature justifying

an inference of knowledge of the broader conspiracy.”

Huezo, 546 F.3d at 180 (quoting United States v.

Tramunti, 513 F.2d 1087, 1112 (2d Cir. 1978)) (in-

ternal quotation marks omitted).

Here, the evidence is ample that Mahender as-

sisted his wife in bringing the maids to his home,

that he did so to benefit from theiz labor, which he

helped to direct, and that, knowing of his wife’s

threats and punishments, he aided her in meting

47a

them out. This evidence provides more than a suffi-

cient basis on which to conclude that there was a

“tacit understanding” between Mahender and Var-

sha that the maids would be held in involuntary ser-

vitude and peonage in the Sabhnanis’ home.

2. Other Convictions

As already noted, Mahender does not directly

challenge the sufficiency of the evidence to support

his convictions for document servitude and conspir-

acy to commit document servitude. Instead, he ar-

gues that, because the evidence was insufficient to

support his forced labor and peonage convictions, he

necessarily cannot be guilty of the “derivative” of-

fense of document servitude. Mahender’s Br. 64.

Mahender’s argument is based on a fundamental

misreading of the document servitude statute. Sec-

tion 1592 of Title 18 provides that “[w]hoever know-

ingly destroys, conceals, removes, confiscates, or pos-

sesses any actual or purported passport or other im-

migration document, or any other actual or pur-

ported government identification document, of an-

other person” either “in the course of” a violation of

one of a number of statutes, including the forced la-

bor and peonage statutes, or “with the intent to vio-

late” the same statutes, is guilty of a crime. 18

U.S.C. §§ 1592(a)(1)-(2). Mahender continually re-

fers to this crime as an offense that is merely “de-

rivative” of the forced labor and peonage crimes.

This is incorrect: a defendant may be convicted un-

der § 1592 for knowingly concealing immigration

documents merely “with intent to violate” the forced

labor or peonage statutes. 18 U.S.C. § 1592(a)(2).

In any event, we have already determined that

Mahender’s convictions for forced labor and peonage

were supported by sufficient evidence. Here, the

48a

evidence that Samirah’s and Enung’s passports and

other immigration documents were kept in a locked

cupboard in the closet adjacent to the Sabhnanis’

master bedroom was ample. The jury could infer

Mahender’s knowing possession of Samirah’s and

Enung’s passports and other immigration documents

from the fact that his own passport was kept in the

same cupboard, and from the closet’s position in the

house. Therefore, Mahender’s convictions for docu-

ment servitude anc -onspiracy to commit document

servitude are supported by sufficient evidence.

Finally, without challenging the sufficiency of

the evidence to support his conviction, Mahender

suggests that his conviction for harboring illegal

aliens should be vacated because the harboring stat-

ute, 8 U.S.C. § 1324(a)(1)(A), was not “designed” to

cover a situation in which a defendant forces an alien

who wishes to leave the country to remain here.

Such conduct is “outside the scope” of the statute,

which was only intended to criminalize conduct fa-

cilitating an alien’s illegal presence in the United

States. Mahender’s Br. 64-65. Suffice it to say that

the text of the statute cannot support such limita-

tions. The statute renders guilty of a crime any per-

son who, “knowing or in reckless disregard of the fact

that an alhen has come to, entered, or remains in the

United States in violation of law, conceals, harbors,

or shields from detection, or attempts to conceal,

harbor, or shield from detection, such alien in any

place, including any building or any means of trans-

portation.” 8 U.S.C. § 1324(a)(1)(A)(ii). The statute

does not attempt to distinguish among various rea-

sons why an alien has “come to, entered, or remains”

in the country illegally, nor does it distinguish

among various motives a defendant might have for

“concealing, harboring, or shielding” the alien. “[Sec-

49a

tion] 1324, on its face, does not restrict the persons

within its reach.” United States v. Kim, 193 F.3d

567, 573 (2d Cir. 1999). We decline Mahender’s invi-

tation to read words into the statute that are not

there.

III. The Refusal of Prosecution Witnesses To

Speak to Defense Counsel

On cross-examination by Mahender’s counsel,

several of the prosecution witnesses, including Deb-

orah Litras, admitted that they had refused to speak

to defense counsel prior to the trial. In the jury in-

structions, the district court told the jury that de-

fense counsel had acted properly in attempting to in-

terview witnesses, but that the witnesses were also

within their rights te refuse to speak:

Also, you have heard testimony from wit-

nesses that attorney Stephen Scaring

[Mahender’s trial counsel] asked to speak to

them prior to their testimony. I instruct you

that Mr. Scaring had a right to attempt to in-

terview these witnesses before they took the

stand. However, | also instruct you that

these witnesses had a right to decline to

speak to him. And no unfavorable inference

should be drawn against them because of

that declination.

Tr. 5005. Judge Spatt overruled the defense’s objec-

tion to this instruction at the charging conference.

Appellants argue that the district judge’s in-

struction that the jury could draw no unfavorable in-

ference against prosecution witnesses from the fact

that they refused to be interviewed by the defense

was erroneous because it prevented the jury from

evaluating a fact that went to the issue of witness

50a

credibility. Absent the instruction, the Sabhnanis

contend, the jury could have reasoned that because

these witnesses refused to speak to defense counsel,

they must have been biased against the Sabhnanis.

Moreover, the Sabhnanis argue, the instruction may

have cast Mahender’s trial counsel in a negative

light for even asking witnesses the question whether

they had refused to speak to the defense prior to

trial.

We review a claim of error in the content of jury

instructions de novo. United States v. Quattrone, 441

F.3d 153, 177 (2d Cir. 2006). We have no difficulty

concluding that there was no error in the instruction

here. Mahender himself concedes that the instruc-

tion was correct insofar as it recognized that wit-

nesses have a right to decline to be interviewed. See,

e.g., United States v. Agostino, 132 F.3d 1183, 1191

(7th Cir. 1997); United States v. Miller, 381 F.2d 529,

538 n.7 (2d Cir. 1967) (“While the Government is

doubtless bound not to obstruct a defendant’s access

to a prospective witness, we know of no rule requir-

ing the witness to submit to an interview.”); United

States v. James, No. 02 CV 0778(SJ), 2007 WL

914242, at *15 n.10 (E.D.N.Y. Mar. 21, 2007). The

instruction did nothing more than inform the jury of

this right and instruct that a witness does not act

wrongfully by exercising it. The defense was still

free to suggest — and did, through cross-

examination and in summation — that the refusal to

meet with defense counsel could suggest a witness’s

greater sympathy for or affiliation with the other

side of the case.

Moreover, the jury was explicitly charged that it

should evaluate the credibility of witnesses based on

“the circumstances under which each witness testi-

5la

fied” and “every matter in evidence that tends to

show whether a witness is worthy of belief.” Tr.

5011. Among these matters, the judge specifically

instructed the jury that:

How you choose to believe a witness may be

influenced by any bias, resentment or anger

that you may perceive the witness to have.

Does the witness have a relationship with

the government or a defendant that may af-

fect how he or she testified? Does the wit-

ness have some incentive, loyalty or motive

that might cause him or her to shade the

truth? Or does the witness have some bias,

prejudice or hostility that may have caused

the witness consciously or not to give you

something other than a complete, accurate

account of the facts?

Tr. 5012 (emphasis added). This charge clearly al-

lowed the jury to take into account any bias a wit-

ness might have, including any bias resulting from a

relationship with the government. Finally, we reject

as meritless any claim that the instructions could

fairly be read to cast aspersions on Mahender’s trial

counsel, given the court’s explicit statement that

counsel had every right to attempt to interview the

prosecution’s witnesses.

IV. The Defense’s Motion to Re-Open Follow-

ing the Commencement of Jury Deliberations

The Sabhnanis next contend that the district

court abused its discretion in failing to grant their

motion to reopen the proceedings after the jury had

begun its deliberations in order to present newly dis-

covered evidence of the alleged bias of a prosecution

witness. After closing arguments, during which

some of her testimony had been attacked by the de-

fense, prosecution witness Deborah Litras sent an e-

mail to a family friend that read in relevant pavt as

follows:

[ really do hope that the “theatrics” of the

closing arguments by the defense will not

sway the jury away from the right decision.

The thing that scares me is that there never

seems to be any justice in the world. I guess

we'll just have to wait and see. I don’t think

it’s going to be much longer. See ‘ya. Deb.

Tr. 5150. The defense, upon discovering the e-mail,

moved to reopen the case and to recall Litras for the

purpose of questioning her about it. Defense counsel

argued that the e-mail showed that Litras was bi-

ased in favor of conviction, The prosecution argued

that the e-mail, fairly read, did not indicate a bias,

but a desire for justice to be done, and also that it

was irrelevant to any issue the jury was considering

in that it principally expressed Litras’s opinion of the

closing arguments.

The district court denied the defense motion to

reopen. The judge noted that the e-mail did not ex-

pressly state that Litras was biased in favor of con-

viction and that, in any event, her trial testimony

was explicit that she “believed the maids’ com-

plaints.” Tr. 5188. “It was obvious from [Litras’s)

testiniony ... that she favored the maids [and] felt

sorry for the maids, and she was behind the maids in

this case.” /d. Because her testimony indicated that

Litras “favorled] the maids over her own boss,” Tr.

5189, and because the jury also heard evidence that

she had refused to speak to defense counsel while

meeting with the government several times, Litras’s

leanings were already clear. ‘The court also noted

that reopening the case solely for testimony regard-

53a

ing the e-mail would create enormous practical diffi-

culties and would be needlessly disruptive of the

jury’s deliberations. Finally, the court agreed with

the prosecution that the e-mail was irrelevant to the

question whether Litras was biased when she testi-

fied, and only reflected her “dismay ... [at] the the-

atrics of the closing argumentl|s], which somewhat

denigrated her.” Tr. 5196.

We review a district court's determination

whether to reopen a case after the jury has begun its

deliberations for abuse of discretion. See United

States v. Crawford, 533 F.3d 133, 138 (2d Cir. 2008);

United States v. Golomb, 754 F.2d 86, 89 (2d Cir.

1985). In Crawford, we noted the factors that a dis-

trict judge should consider in exercising this discre

tion:

The court must consider the timeliness of the

motion [to reopen], the character of the tes-

timony, and the effect of granting the motion.

The party moving to reopen should provide a

reasonable explanation for failure to present

the evidence in its case-in-chief. The evi-

dence proffered should be relevant, admissi-

ble, technically adequate, and helpful to the

jury in ascertaining the guilt or innocence of

the accused. The belated receipt of such tes-

timony should not imbue the evidence with

distorted importance, prejudice the opposing

party's case, or preclude an adversary from

having an adequate opportunity to meet the

additional evidence offered.

Crawford, 533 F.3d at 138 (quoting United States v.

Nunez, 432 F.3d 573, 579 (4th Cir. 2005)) (emphasis

omitted). Considering the Crawford factors, timeli-

ness cannot be counted against the appellants here,

54a

as their counsel! oLciained Litras’s e-mail only just be-

fore making the motion to reopen. Each of the other

relevant factors, however, weighs against the

Sahbnanis’ position. We conclude based on these fac-

tors that the district court did not abuse its discre-

tion.

At the start, the parties disagree about whether,

in assessing the character of the evidence, we should

construe it in the light most favorable to the defense.

We need not res

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