# Petition for Writ of Certiorari — Sabhnani v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2586%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2011 - **Citation:** 562 U.S. 1194 ## Text 2me Court, U ' 'rEN \V 10-475 ocr 8 2010 NOFFIGE OF THE CLERK IN THE Supreme Court of the United States MAHENDER MURLIDHAR SABHNANI, Petitioner, v. 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. il 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 TERR CO BUTT PRC iae 6 oe ven cssecaceesveccnssntscvccasenessenceses Vv CFE EPC IO OES SPUR UY nictecisessiassssidtinedssaxssesnaensamints l Fs PETE PET ss ecasstiuninlisandcbuamne aie pecivevedaes l EA 8 ERE, eskssiksterscivcciadcc an ian 2 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 COL ATS scéasivserierccacssenes DaTukeuadal Veaetuauanniaptacueeraaaee APPENDIX A: Opinion of the United States Court of Appeals for the Second Circuit (DHRU Tei, Sete Ed? wansicncncccexsccvabusindsreseinaracs wasuhedichassa la APPENDIX B: Opinion of the United States District Court for the Eastern District of Now York (Beareit 11, BO) cissccvaceccvecsccccocevevccsesss 88a lV 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 CN Mt ss ccc nu wuildaibencauacesvesxieiuns 143a APPENDIX I: Brief of the United States in the United States Court of Appeals for the Second Circuit (January 12, 2009) IIE aikisconasixee scaceancndcaecresunccvsn via srimisinseisiaveaianseds 157a V 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 v1 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 eee eres e eee etter eeeeeee at a eee eee eee eee ewe eee eee eee oo 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, TE Fare Se Ce GRE. TED one nncccncscecanscscencsvecstiacs 30 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, SE I Me SED cs ccevccacavcstesavess suasedsusdessnekansunee 15 United States v. Wiley, BGG Fe BO Ce Cle, BOGS) cncccccncscscccnsccccrcesconcscss 28 United States v. Willis, BE F.BG BTG CGE Cir. 19B4).0.....0cccccccccoscrscesccccceces 21 United States v. Wills, BOS Fe BIO (GED CIP, BOOB). vcccriccrcccccceccccescescocses 30 United States v. Wilson, Be Fe Fee Cs GAR. DIG) oiccccesccccssccccccncssvesics 17 United States v. Wilson, --- F.3d ---, 2010 WL 3419674 EE Ms Bg PR iiacecccccsscinctcescoccscccecsenscvsesene 26 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 1X Yates v. Evatt, SOO UB. Be Ca iathctinencoccccccsccccss 13, 14 Yates v. United States, BOR Fi a 13 Statutes SB U.S.C. S LSB E ae eis iadescccccccccccccccccces0d 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 RE ROR ROM Bi ee 18 U.S.C. © Dra recsceccccccccccscccees. 3 16 U.S.C. © ea iivcscccscccccccscccs00d ys BOR ROM Be bm EE l 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. 2 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 3 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. 5 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: 6 “[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 7 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- 8 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. 9 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. 10 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. 11 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 12 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). 13 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- 14 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 & 15 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 16 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, 17 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 18 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. 19 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- 20 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 21 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- 22 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 23 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 24 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. 25 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). 26 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). 27 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- 28 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. 29 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 30 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). 3] 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. 32 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. 2a 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 3a 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- 4a 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- 5a 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 6a 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. Ta 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, 8a 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 9a 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. r % 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2586%3A1. Public record. Not legal advice.