Petition for Writ of Certiorari — Sabhnani v. United States

Supreme Court, U.S.

FILED

NV (I) 190-476 OC) B- 2010

NOD EEICE OE THE CLERK

———

Jn the Supreme Court of the United States

VARSHA MAHENDER 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

SUSAN C. WOLFE DAN HIMMELFARB

Hoffman & Pollok Counsel of Record

LLP BRIAN J. WONG

260 Madison Avenue Mayer Brown LLP

New York, NY 10016 1999 K Street, NW

(212) 679-2900 Washington, DC 20006

(202) 263-3000

dhimmelfarb@mayerbrown.

com

Counsel for Petitioner

; ed oer a , aa

WIL SON-EPES PRINTING CO , INC — (202) 789-0096 — WASHINGION,D C 20002

QUESTION PRESENTED

Whether a presumption of jury prejudice arises

when pervasive pre-trial publicity is “vivia” and “un-

forgettable,” the trial “swiftly follow|s]” the defen-

dant’s arrest, and the defendant is found guilty on all

counts, Skilling v. United States, 120 8S. Ct. 2896,

2916 (2010), and, if so, whether a presumption of

jury prejudice is irrebuttable.

1]

RULE 14.1(b) STATEMENT

Petitioner 1s Varsha Mahender Sabhnani, a de

fendant-appellant below. Mahender Murlidhar

Sabhnani was also a defendant-appellant below

Respondent is the United States of America, the

appellee below.

TABLE OF CONTENTS

Page

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OPINIONS BELOW................... spceresic deh cine aie ee l

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CONSTITUTIONAL PROVISION AND

RULE INVOLVED ...... POC eR eM PERN TL Mtb ort Wor s 22 l

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A. Proceedings In The District Court...................3

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3. The motion for a change of venue............. 1]

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B. The Court Of Appeals’ Decision ..................... 15

REASONS FOR GRANTING THE PETITION ....... 16

A. The Court Should Grant Certiorari To

Decide Whether A Presumption Of

Prejudice Arises When Pervasive Pre-

Trial Publicity Is Vivid And

Unforgettable, The Trial Swiftly

Follows The Arrest, And The Defendant

Is Found Guilty On All Counts. ..........0.......... 18

B. The Court Should Also Grant Certiorari

To Decide Whether A Presumption Of

Jury Prejudice Is Irrebuttable. ........0.00.000.0.... 26

1V

TABLE OF CONTENTS—continued

Page

C. At The Very Least, The Court Should

Grant The Petition, Vacate The

Judgment Below, And Remand For

further Consideration In Light Of

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APPENDIX A: Opinion of the Court of

Anpeate (iar. £5, DOIG)........cccsccecscecsscccvccssccscceecess la

APPENDIX B: Memorandum and Order of

the District Court (Sept. 21, 2007).................... 87a

APPENDIX C: Order of the Court of Appeals

Denying Rehearing (May 12, 2010)................... 97a

APPENDIX D: Excerpts of Transcript of

Initial Appearance (May 15, 2007).................... 98a

APPENDIX E: Excerpts of Transcript of

Bail Hearing (May 17, 2007) ........... NOD POY llla

APPENDIX F: Affirmation in Support of Motion

for Change of Venue and Exhibits A-M

ep EN oo hice Kavencvnncesecdlserecnseenuceivueteies 117a

APPENDIX G: Reply Memorandum in Support

of Motion for Change of Venue and Exhibit A

EO” ie Me: RANA IR na Ae ARIE aN Rare OE Oe 218a

APPENDIX H: Excerpts of Transcript of Jury

SOLOCCION COPCE. 17, BOOT) on cccccscccccnsecccsccesncvceccns Uae

TABLE OF CONTENTS —continued

Page

APPENDIX I: Court Exhibit 1 (Oct. 23, 2007).....308a

APPENDIX J: Excerpts of Transcript of Jury

PEE CUE. Bake BED ivcccsccevevecrccevccevsesccces 3dl2a

APPENDIX K: Excerpts of Transcript of Jury

Selection (Oct. 24, 2007) ..........ccecccceceee: | ..ol7Ta

v1

TABLE OF AUTHORITIES

Page(s)

CASES

Daniels v. Woodford,

428 F.3a 1181 (Sth Cir. 20085).............................. 27

DeRosa v. State,

89 P.3d 1124 (Okla. Crim. App. 2004) ................ 27

Estes v. Texas,

Re CBRE scacseyecadcnseuvencsesecsunseccnsens passim

Flamer v. Delaware,

68 F.3d 736 (3d Cir. 1995) (en banc) ................05. 27

Garrett v. United States,

Ee oc ccgcnaceskesssecnsencaneueeavenees |

Hooks v. Ward,

184° F.3d 1206 (10th Cir, 1999).....c0.cccccccceeeceeseeees 27

Irvin v. Dowd,

LS Re ee 2S) Re rer 20

Lawrence v. Chater,

516 U.S. 163 (1996) (per curlam) ................0.c0ee0 30

Marshall v. United States,

360 U.S. 310 (1959) (per curiam) ....................266 24

Mayola v. Alabama,

ee Oe Be CGE GIP, 19BO) ....0ccccsnccnccosesescess 29, 30

Mu’'Min v. Virginia,

Rts EG CLO ED ciicccsccscccncvescescccenses .... 16, 24, 28

Murphy v. Florida,

421 U.S. 794 (1975) ..ccccccccescccscecccsscesesseeee 17, 18, 24

Vil

TABLE OF AUTHORITIES—continued

Page(s)

Patton v. Yount,

UE BF ic Re 0 oe vnccccecacscosccevecssases 16, 21, 24, 28

People v. Leonard,

BOE ce Ee Cea BRP ED ikccancaseccsevesssiavcagcoseccseresnn 27

Pullman-Standard v. Swint,

ee es I oo gs cdcacuissaiesdudvcneacsctncceuness reces ee

Rideau v. Louisiana,

Ee Oe Fe 0 hve ovenvevionssncecsecesscnserceesess passim

Rogers v. Richmond,

365 U.S. 534 (1961) ....c..ccccccceccscecceccsseseesessesseeeeees 29

Sheppard v. Maxwell,

231 F. Stipp. 37 (B.D. Onio 19GA4) ..........cccceccccseces 22

Sheppard v. Maxwell,

te Ie OD cae vn ndcdnncnveskcvosustscanuadens .... passim

Skilling v. United States,

Ce ee ic ee io oekc odnsavicvccscecsccaccossssecas passim

State v. Hayes,

No. CRO70241859, 2010 WL 3328076

(Conn. Super. Ct. July 28, 2010)..................... ee

Stutson v. United States,

516 U.S. 193 (1996) (per curiam) .....................0. 32

United States v. Campa,

459 F.3d 1121 (11th Cir. 2006) (en banc)......27, 29

United States v. Chagra,

669 F.2d 241 (5th Cir. 1982)...........ccccccccssscsccsecees 26

Vill

TABLE OF AUTHORITIES—continued

Page(s)

United States v. Gonzalez-Lopez,

548 U.S. 140 (2006) ..cccccccccccccccceceeee a ee 28

United States v. Higgs,

DOS Be BOL CHEE CAP. ZOOS) oc ccccccccccccccecscsecescccece: 27

United States v. McVeigh,

153 F.3d 1166 (10th Cir. 1998).......................00.. 2d

United States v. Skilling,

BS Fee Ore COED) Cie, DODD) occcccccccncccccccecvcscecesccss 25

Vasquez v. Hillery,

474 U.S. 254 (1986)......cccccccccscsccseccesosscessssceseceeseee 28

Wellons v. Hali,

130 S. Ct. 727 (2010) (per curiam) ................ 30, 31

CONSTITUTIONAL PROVISIONS, STATUTES,

AND RULES

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Be es Oe BE ED viii ce cenccveticocccrasincasrsoncsecises 3

ee ns acnpabnkentevea nuannesiaconbannen 3

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a ge re bed e ae Uia ds cadealesaaemoais 3

es oh os da ddeiowiiaapeisoddaabadedinns 1

Federal Rule of Criminal Procedure 21.................... 25

Federal Rule of Criminal Procedure 21(a) ..... 1, 11, 24

saa Coeds saenenios eile taste 18

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Varsha Mahender Sabhnani, respect-

fully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Second Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

la-86a) is reported at 599 F.3d 215. The memoran-

dum and order of the district court denying petition-

er’s motion for a change of venue (App., infra, 87a-

96a) is unreported but is available at 2007 WL

2769487.

JURISDICTION

The judgment of the court of appeals was entered

on March 25, 2010. A timely petition for rehearing

was denied on May 12, 2010. App., infra, 97a. On

July 22, 2010, Justice Ginsburg extended the time

for filing a petition for a writ of certiorari to and in-

cluding October 11, 2010. The jurisdiction of this

Court rests on 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION AND

RULE INVOLVED

The Due Process Clause of the Fifth Amendment

to the United States Constitution provides: “No per-

son shall *** be deprived of life, liberty, or property,

without due process of law ***,”

Rule 21(a) of the Federal Rules of Criminal Pro-

cedure provides: “Upon the defendant’s motion, the

court must transfer the proceeding against that de-

fendant 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 }mpartial trial there.”

STATEMENT

Petitioner Varsha Mahender Sabhnani and her

husband, Mahender Murlidhar Sabhnani, were

charged with federal offenses relating to alleged mis-

treatment of two domestic workers in their home.

During the five months between their arrests and

trial, the local media reported on the case re!entless-

ly, in the most inflammatory and sensational terms

imaginable. The thrust of the coverage was that pe-

titioner and her husband were “millionaire slave-

holders” and that petitioner had committed “monstr-

ous” acts of “torture” and brutality.

The Sabhnanis moved for a change of venue, ar-

guing that the pre-trial publicity prevented them

from receiving a fair trial. The district court denied

the motion. A jury found both defendants guilty on

all counts, and the court of appeals affirmed. In ap-

proving the district court’s denial of a change of ve-

nue, the court of appeals refused to apply a presump-

tion of jury prejudice, as this Court has done on a

number of occasions.

Three months after the court of appeals’ decision,

this Court decided Skilling v. United States, 130

S. Ct. 2896 (2010). Skilling makes clear that further

review is warranted in this case, for two related rea-

sens. First, Skilling clarifies the circumstances in

which a presumption of jury prejudice is warranted,

and those circumstances are present here. Second,

Skilling left unresolved the question whether the

presumption of prejudice is irrebuttable (the Court

having concluded that no presumption arose in that

case), and that question can and should be resolved

here (where the presumption does arise) At a min.-

mum, the Court should grant the petition, vacate the

judgment below, and remand for further considera-

tion in light of Skilling, a highly relevant decision of

which the court of appeals did not have the berefit at

the time it issued its opinion.

A. Proceedings In The District Court

1. The charges

Petitioner and her husband were charged in a

12-count superseding indictment with forced labor,

in violation of 18 U.S.C. § 1589(a); harboring aliens,

in violation of 8 U.S.C. § 1324(a)(1)(A)(Qaii); holding a

person in a condition of peonage, in violation of 18

U.S.C. § 1581(a); document servitude, in violation of

18 U.S.C. § 1592(a); and conspiracy to commit these

offenses. The government’s theory was that the de-

fendants held two Indonesian domestic workers—

Samirah and Enung—in a state of servitude in their

Long Island, New York home, where they required

the workers to labor for long hours and low wages

and subjected them to inhumane treatment. The

case was prosecuted in the Eastern District of New

York, in Central Islip, Long Islar?. App., infra, 2a-

4a, 16a-18a, 98a, llla, 263a, 312a, 317a.

2. The pre-trial publicity

From the time of the Sabhnanis’ arrest in May

2007 through their trial in October 2007, the case

was the subject of unrelenting media coverage, fu-

eled in large part by the prosecution’s highly charged

rhetoric.

a. At their initial appearance on May 15, 2007,

the day after the arrests, the government described

the allegations against the Sabhnanis in unusually

4

vivid and inflammatory terms. According to the

prosecutor:

[T]his particular crime is a crime of incom-

prehensible brutality and violence and inhu-

manity. The conduct that these Defendants

engaged in was absolutely monstrous.

It truly is a case of modern day slavery.

And | know that typically when one hears

the word slavery, there are images evoked of

ancient pharaohs in Egypt or the Romans

and the slaves that they kept, or even Afri-

cans who were brought over to the New

World and to America and enslaved here.

Nobody would ever think that right here

on Long Island, human beings were being

brought in from another country, being held

and forced to perform domestic labor through

threats of violence, physical torture and re-

straint.

App., infra, 99a (emphasis added). The prosecutor

used similar language in describing how petitioner

was alleged to have treated the domestic workers (at

that time referred to as “Jane Doe 1” and “Jane Doe

Y 1

[I]t mainly was Mrs. Sabhnani who adminis-

tered the beatings to Jane Doe #1. And we're

not talking about a mere beating with a slip-

per or a slap of the hand.

This Defendant — Mrs. Sabhnani — syste-

matically, repeatedly, viciously attacked Jane

Doe #1. She beat her with her fists, she beat

her with wooden rolling pins, she beat he:

5

with wooden brooms, she cut her with a

knife, she poured scalding hot water on her.

And then she continued the torture by fore-

ing the victim on several occasions to take

repeated showers — shower after shower after

shower ~— for what apparent reason, Judge

some type of punishment in the Defendant’s

twisted mind.

Id. at 10la (emphasis added). In support of these ac-

cusations, the government submitted graphic photos

of the alleged victims and their injuries. Dist. Ct.

Dkt. No. 49, Ex. 3.

At the same hearing, the prosecutor made gra-

tuitous references to the Sabhnanis’ wealth. After

asserting that they had made Enung and Samirah

“sleep on mats on the kitchen floor,” for example, the

prosecutor sarcastically remarked that the Sabhna-

nis “had two kitchens, of course, so | guess it was

okay for them to make the victims sleep on one of the

floors.” App., infra, 102a. The prosecutor described

the Sabhnanis’ home as a “beautiful mansion on one

of the most exclusive areas of Long Island.” /d. at

100a. And she repeatedly stated that the Sabhnanis

had “vast sums of money” and “vast resources.” /d.

at 100a, 103a.

The local media seized upon this combination of

sensational allegations and class bias. On the very

day of the Sabhnanis’ initial appearance, the New

York Daily News ran the photos the government had

filed in court with an article titled “L.]. Slavery Kvi-

dence.” App., infra, 118a, 185a. The photos’ captions

echoed the government’s accusations:

e A photo of Enung lying on a mat was cap-

tioned “bed for one of two Indonesian women

6

allegedly kept as slaves by Mahender and

Varsha Sabhnani.” /d. at 185a.

e Photos of Samirah’s back and a drawer with

a rolling pin were captioned “Varsha Sabh-

nani allegedly beat one of the women ***

with a knife, rolling pin and broomstick.” /b-

id.

e A photo of an arm hooked up to an intraven-

ous line was captioned “If *** Samirah[] was

considered ‘disobedient, she was _ scalded

with hot water or forced to eat hot pevpers.”

Ibid.

* A photo of a woman kneeling in a closet was

captioned “[EKnung] was made to sleep in a

closet in her bedroom.” J/bid.

The next day, the New York Post ran an article

titled “Cruel L.I. Slave Masters,” which repeated al-

most point-for-point the government’s view of the

case. The Post described the Sabhnanis as a “mon-

strous’ millionaire couple”’—‘“perfume moguls from

the mega-rich community of Mutiontown’—who

“kept two indonesian women as slaves for five years

in their tony estate-turned house of horrors.” App.,

infra, 120a. Quoting the prosecutor, the Post charac-

terized the case as one of “modern-day slavery,”

which involved “incomprehensible . . . inhumanity.”

Id. at 120a-121la. The Post portrayed petitioner as

the “main torturer who doled out the horrific pu-

nishment,” td. at 121la, and highlighted the lurid de-

tails of the conduct alleged by the government:

e Samirah was “beaten with brooms and roll-

ing pins, repeatedly sliced on the ears with a

paring knife, starved and forced to sleep on

the kitchen floor.” Jd. at. 120a-121a.

4

e Petitioner's “cruelty” included “forcing Sam1-

rah to take as many as 30 ice-cold showers in

a row, run up and down a flight of stairs 150

times as fast as she could[,] and gulp down at

least 25 ‘extremely hot chill peppers at one

time.” Jd. at 121a.

e Knung “was once forced to *** take as many

as 10 icy showers in a row for ‘perceived

wrongdoing.” /d. at 123a.

e Samuirah had “highly visible scars that ap-

pear to be permanent over much of her body”

and “deep, open knife wounds behind her

sars.” Id. at 122a.

e Samirah and Enung were “starved to the

point that they began hiding food.” Jbid.

b. At a bail hearing on May 17, 2007, the prose-

cutor made additional claims. She asserted that pe-

titioner had struck Samirah “on the top of the head

with a closed fist while *** wearing a rather large

ring,” hit her “in the face with a metal spoon,” “forced

[her] to take *** cold baths,” starved her, and de-

prived her of sleep. App., infra, 112a-113a. The

prosecutor also implied that petitioner had inflicted

“bizarre types of punishments and emotional torture

and psychological torture” out of religious animus.

Id. at 115a. In that connection, the prosecutor stated

that petitioner had told Samirah that Samirah’s

“god, Allah is, *** a four letter word for fecal matter”

and that petitioner's “god is better” because he “gave

{petitioner} good fortune and four good kids.” J/bid.

The New York Post picked up on these develop-

ments in an article published the same day. Invok-

ing the fictional villain, the article stated that peti-

tioner had “inflicted ‘Cruella De Vil’ punishment” on

8

Samirah. App., infra, 130a. The “Cruella” label

stuck. The next day, the Post ran an article titled

“$3.5M Bail For Cruella And Hubby.” 7d. at 132a. It

followed that one with a May 19 article titled “Cruel-

la Gals Have Faith,” id. at 133a; a May 31 article de-

scribing Samirah as “a servant to Varsha ‘Cruella’

Sabhnani,” id. at 138a; and a June 7 article titled

“Cruella Death Threats,” id. at 146a.

On May 20, 2007, the New York Times ran an ar-

ticle titled “Slaves of Long Island,” which characte-

rized the case as a “horrifying story of exploitation

and cruelty” and detailed the “sickening” abuses al-

leged by the government. App., infra, 134a. In a

separate article published the same day, the 7imes

opined that the “exploitation and cruelty” that peti-

tioner had allegedly visited upon Samirah and

Enung established the need for a new law “crack|ing]

down on the trafficking of people for sex and labor.”

Id. at 135a.

On May 31, 2007, in an article titled “Slave ‘Slay

Threat,” the New York Post reported on the govern-

ment’s new allegation that petitioner’s mother had

tried to bribe Samirah’s son-in-law in Indonesia.

App., infra, 138a. According to the government, the

son-in-law was offered $28,000 to ensure that Sami-

rah “would leave the United States and not cooperate

with the prosecution.” J/d. at 138a-139a. The article

went on to say that, despite the “horrific charges of

inhumane’ brutality,” the Sabhnanis had been per-

mitted to “await trial in their luxurious estate,”

which “feature[d] an in-ground lagoon pool with wa

terfall and built-in stainless steel barbecue area.” /d.

at 139a. The New York Times also reported on the

alleged bribe. 7d. at 137a.

9

c. Thereafter, in the months leading up to the

trial, articles on the case continued to appear regu-

larly. The following is merely a sampling of the me-

dia coverage:

On June 4, 2007, the Long Island newspaper

Newsday published an article titled “Judge

rips detention plan in slavery case.” App., in-

fra, 141a-143a. Additional Newsday articles

followed on June 6 (“New plan for couple to

do time at home”); June 7 (“No bail yet for

couple accused in slave case”); June 9 (“Sla-

very case couple hire new lawyers”); June 12

(“Judge orders slavery couple held without

bail”); June 15 (“Slave case couple asks for

judge’s removal” and “Slave’ suspects appeal

bail denial”); June 16 (“Slave’ defense knocks

judge”); June 26 (“Step toward bail in LI

slave case,” “Lawyers: slavery couple a flight

risk,” and “Appeal set in slave case”); June 27

(“Ruling calls for bail deal”); June 28 (“Feds:

Armed guards should watch accused slave-

holders”); July 10 (“Slave’ suspects win bail

but release date unclear’); July 11 (“Slave’

suspects: Woman hurt self’); July 13 (“Attor-

neys call for slave case trial to be moved”);

July 14 (“No bail for pair in Muttontown

slave case”); July 17 (“Attorney raps subpoe-

nas in slavery case” and “Daughters subpoe-

naed in slave case”); July 18 (“Lawyer raps

daughter’s subpoena in slave case”); July 24

(“Daughters to testify in slavery case”); Au-

gust 3 (“Once again, bail denied in slavery

case’); and August 4 (“Home detention for

‘slave couple’ delayed”). Jd. at 144a-145a,

148a-15la, 155a-163a, 170a-173a, 176a,

10

179a-180a, 183a-184a, 235a-238a, 243a-257a,

260a-262a.

e Articles on the case appeared in the Asso-

ciated Press wire service on June 11 (“Judge

rejects bail application in Long Island slavery

case’); June 26 (“Appeals court could allow

accused LI slaveholders free on bail,” “Court:

Bail for Couple Accused of Slaves,” and “Mil-

lionaire slaveholders may be freed on bail”);

June 27 (“Slavery case couple to be granted

bail”); and June 28 (“Prosecutors: Bail should

mean armed guards in LI slave case”). Id. at

152a-154a, 164a-167a, 174a-175a, 177a-178a,

18la-182a. Many of these articles also ap.

peared in Newsday.

e The New York Daily News and the New York

Times ran articles on July 10 and July 13, td.

at 232a-234a, 241la-244a, and the New York

Post continued its particularly virulent cov-

erage, see id. at 239a-240a (July 13 article

titled “Slave’ labor of love”); id. at 258a-259a

(July 31 article titled “Indonesian slave’ was

nuts: Long Island family”).

Although television and radio coverage 1s less

easily documented, online reports indicated that it

was comparable in nature and frequency to the print

media’s coverage of the case. On May 17, 2007, for

example, WABC-TV Eyewitness News _ reported:

“Bail set for LI] couple accused of keeping slaves; Po-

lice: Worst Case they’ve ever seen.” App., infra,

194a, 197a. A week later, on May 24, WABC-TV an-

nounced that the “slavery couple” had been indicted

and again quoted the police as saying that it was the

“worst case they’ve ever seen.” Jd. at 194a, 198a-

200a. On May 30, June 4, June 11, June 26, and

1]

June 28, there were additional broadcasts on WABC-

TV, WCBS-TV, WCBS NewsRadio 880, and 1010

WINS Radio, which again employed the govern-

ment’s “modern-day slavery” slogan and detailed its

allegations. Id. at 194a-196a.

3. The motion for a change of venue

Invoking the Due Process Clause of the Fifth

Amendment and Federal Rule of Criminal Procedure

21(a), which requires a transfer to another district if

the defendant “cannot obtain a fair and impartial

trial” in the district where the case was brought, the

Sabhnanis moved for a change of venue based on the

pre-trial publicity described above. App., tnfra,

117a-118a, 218a, 230a. Even after the motion was

fully briefed, the sensational media coverage contin-

ued unabated.!

In a memorandum anda order dated September

21, 2007, the district court denied the motion. App.,

infra, 87a-96a. The court believed that a change of

venue was unwarranted because (a) “the govern-

ment’s statements” that were picked up by the media

“were related to the crimes with which defendants

are charged” and “|djefendants’ attorneys” them-

selves placed “their chents in the media spotlght”;

' See, e.g., Robert E. Kessler, Muttontown “slave couple” goes

home, NEWSDAY (Aug. 21, 2007); Selim Algar, “Cruella” Couple

in Home Jail, NEW YORK POST (Aug. 22, 2007); Richard Weir,

Shackles Off LJ. Pair in Slave-Torture Case Allowed Home on

$4.5M Bail, NEW YORK DAILY NEWS (Aug. 22, 2007); Robert E.

Kessler, Muttontown couple accused of forcing housekeeper to

eat vomit, NEWSDAY (Sept. 19, 2007); Millionaire Couple Faces

New Charges In LJ. Slave Case, WCBS-TV.com (Sept. 19,

2007); Robert E. Kessler, New judge named in LI slave case,

NEWSDAY (Sept. 28, 2007).

12

(b) “the vast majority of media coverage has coin-

cided with the court proceedings” and “amounts to no

more than *** the news of the day”; and (c) “tho-

rough voir dire examinations have been used *** to

produce unbiased juries, even in high-profile cases.”

Id. at 93a-95a (internal quotation marks omitted).

4. Jury selection

The jury selection confirmed that, contrary to the

district court’s belief, an unbiased jury could not be

produced in this high-profile case. The strongly neg-

ative reactions to the Sabhnanis reflected in the res-

ponses on juror questionnaires demonstrated the ex-

tent to which the venue had been saturated with un-

remittingly hostile pre-trial publicity.

Prospective jurors informed the court that they

were “shocked”, “angry,” and “repulsed” by what they

had heard and read in the press. App., infra, 270a,

303a, 304a; see also id. at 284a (“unacceptable and

awful’); td. at 306a (“horrific”). Several said they

would have difficulty following the court’s instruction

to ignore the media coverage. Jd. at 27la, 288a,

292a, 299a-300a. Others expressed bias against the

Sabhnanis on account of their wealth, id. at 274a-

275a, 290a, 292a, 303a, or national origin, id. at

272a-273a, 287a, 290a, 293a, 306a. An alarming

number unequivocally stated their belief that the

Sabhnanis were guilty, td. at 27la, 274a, 276a, 282a-

284a, 286a, 294a-295a, 298a-299a, 302a, 306a, or

admitted that they would have trouble remaining

fair and impartial, id. at 265a, 267a-269a, 271a-

277a, 280a-282a, 284a-287a, 290a-292a, 294a-296a,

300a, 304a-305a. One went so far as to say that

there was “no way that the [Sabhnanis] could con-

vince her that they [were] innocent.” /d. at 268a.

Many prospective jurors explicitly linked their per-

13

ception that the Sabhnanis were guilty to the media

coverage of the case. See id. at 298a (“as presented

in the newspaper the defendants appear to be

guilty”); id. at 302a (“response to the media exposure

assume|[d] guilt”); id. at 306a (“Newsday, the TV and

radio” made Sabhnanis “seem guilty to me”).2

As remarkable as these statements were, they

likely understated the prejudicial impact of the pre-

trial publicity. During voir dire, a prospective juror

who had been excused sent an e-mail to the court de-

scribing what she had learned in the jury-selection

process based on her conversations with other mem-

bers of the jury pool. App., infra, 308a-3lla. The

case had “receivi[ed] a lot of attention,” she said, and

everyone on “Long Island[] that is being honest”

knew about it. /d. at 309a-310a (emphasis omitted).

The excused juror expressed “surprise[]” about the

“number of jurors *** willing to pretend that they

‘lived in a cave” in order to serve on the jury and “as-

tonish|ment]” at the “sheer number of people” who

were “willing to hide truths, out and out lie, or, at

the very least, practice all forms of omission *** in

the pursuit of getting onto [the] jury.” /d. at 308a

310a (emphasis omitted). She believed that a fair

and unbiased jury could not be assembled when

people were “lying to get on [the jury] and admitting

2 See also App., infra, 266a (prospective juror “found what he

read in the Daily News and the Post appalling”); id. at 278a

(media accounts made Sabhnanis “look bad”); id. at 281a (“prior

opinion from the media coverage” made it impossible to “remain

fair and impartial”); id. at 292a (based on “media exposure,”

Sabhnanis “don’t seem like nice people’); id. at 300a (saw “case

on TV” and “thought it was a horrible thing to do to another

person”).

14

to both bias and opinions of guilt while lying in wait

to be chosen.” Jd. at 31la (emphasis omitted).

The Sabhnanis requested that the magistrate

judge presiding over jury selection call the e-mail to

the attention of the jurors who had already been

qualified and invite them to supplement their an-

swers about the extent to which media coverage had

affected their views of the case. App., infra, 315a-

316a, 318a-319a. The magistrate judge refused to

take any corrective action. Jd. at 316a, 319a.

5. The trial

Trial commenced in October 2007 and lasted for

seven weeks. App., infra, 17a, 2la. Intensive press

coverage continued throughout that period. See Pet.

C.A. App. 137-236.

The government’s case depended heavily on the

testimony of the two alleged victims, Samirah and

Enung. App., infra, 17a-18a. The defense argued

that they should not be believed, because, among

other things, (a) visitors to the Sabhnanis’ home had

observed Samirah and Enung and noticed nothing

unusual; (b) the medical evidence did not support

Samirah’s claim that she had been subjected to phys-

ical abuse; (c) Samirah believed that petitioner had

killed Samirah’s son by casting a spell on him; and

(d) Enung wanted to find a witch doctor to cast a

spell that caused Mahender Sabhnani to be attracted

to her and give her money. /d. at 18a, 26a-27a; Pet.

C.A. Br. 4-9.

After a little over two days of deliberations, the

jury found the Sabhnanis guilty on all counts. The

district court sentenced petitioner to 11 years of im-

prisonment and her husband to 40 months. App., in-

fra, 2a, 18a.

15

B. The Court Of Appeals’ Decision

1. The Sabhnanis raised multiple claims on ap-

peal, including, as relevant here, that the pervasive

pre-trial publicity required that the case be tried in a

different venue. In an opinion issued on March 25,

2010, the court of appeals rejected that claim and all

the others, except for one relating to restitution. The

court thus vacated the restitution award and re-

manded for recalculation, but affirmed in all other

respects. App., infra, 1a-86a.

The court of appeals acknowledged that pre-trial

publicity “can so saturate a community (and be so

highly prejudicial to the defendants) that courts

should in such cases presume a fair trial was imposs-

ible.” App., infra, 22a. The court concluded, howev-

er, that “neither the character of the publicity nor

the extent to which potential jurors were either ex-

posed to it or affected by it warrants the conclusion

that a presumption or inference of generalized preju-

dice was appropriate in this case.” Jd. at 24a. The

court instead required “actual evidence that the ve-

nire was biased” and determined that “[t]he record

*** does not establish” actual prejudice. /d. at 22a.

In holding that “the district judge did not abuse

his discretion in denying the Sabhnanis’ motion to

transfer venue,” App., infra, 20a, the Second Circuit

relied upon, and approved, the considerations identi-

fied by the district court. The court of appeals con-

cluded that “the prosecution’s statements regarding

the character of the crimes” that were picked up by

the press “were proper in the context in which they

were made” and that, in any event, “the press cover-

age appears to have been driven at least as much by

comments of the Sabhnanis’ counsel as by any prose-

cutor’s statement.” Jbid. The court also reasoned

16

that “most of the press coverage tracked the frequent

court proceedings in this case” and that “[cloverage

of actual developments in a criminal case generally

will not rise to the level of prejudicial publicity that

will warrant a venue change.” /d. at 2la. Finally,

the court believed that “the key to determining the

appropriateness of a change of venue is a searching

voir dire” and that the voir dire in this case was ade-

quate. Id. at 23a.

2. On April 6, 2010, the Sabhnanis filed a peti-

tion for rehearing. They requested, among other

things, that “the Panel or en banc Court hold this

matter pending the [Supreme Court’s] decision in

Skilling |v. United States]|,” which presented the

question of “when excessive adverse publicity man-

dates a change of venue,” and that the Second Cir-

cuit “then rehear [the case] or rehear it en banc.” Pe.

tition for Rehearing at 14, Sabhnani, 599 F.3d 215

(2d Cir. 2010) (No. 08-3720). On May 12, 2010, the

court of appeals denied the petition for rehearing.

App., infra, 97a. This Court decided Skilling on

June 24, 2010.

REASONS FOR GRANTING THE PETITION

This case involves the question of “[w]hen *** the

publicity attending conduct charged as criminal

dim|s] prospects that the trier can judge a case, as

due process requires, impartially, unswayed by out-

side influence.” Skilling v. United States, 130 S. Ct.

2896, 2913 (2010). More specifically, the case in-

volves two issues related to the presumption of jury

prejudice that arises when “adverse pretrial publici

ty” is such that “the jurors’ claims that they can be

impartial should not be believed.” Mu’'Min v. Virgin-

ia, 500 U.S. 415, 429 (1991) (quoting Patton v. Yount,

467 U.S. 1025, 1031 (1984)). In a case of that type,

the defendant need not demonstrate “actual preju

dice” from the publicity to be entitled to a trial in a

different venue. Murphy v. Florida, 421 U.S. 794,

799, 803 (1975).

In Skilling, this Court clarified that, under its

precedents, a presurnption of prejudice arises when

pervasive pre-trial publicity is “vivid” and “unforget-

table,” the trial “swiftly follow[s]” the defendant’s ar-

rest, and the defendant is found guilty on all counts.

130 S. Ct. at 2916. Those circumstances were not

present in Skilling, but they are present here, and so

the court of appeals’ refusal to apply the presump-

tion conflicts with this Court’s decisions. Certiorari

should be granted to bring the Second Circuit into

line with this Court’s precedents. See Point A, infra.

In Skilling, the Court did not decide the specific

question on which it had granted certiorari

whether the presumption of jury prejudice can be re-

butted—because it determined that the presumption

did not arise in that case. But the presumption does

arise here, and so the Court should also grant certi

orari to decide the question that it had no occasion to

reach in Skilling. See Point B, infra

At the very least, the Court should grant the pe

tition, vacate the judgment below, and remand for

further consideration in light of Skilling The

Second Circuit’s decision is inconsistent with the

reasoning in Skilling, of which the court of appeals

did not have the benefit at the time of its decision,

and there is a reasonable probability that it would

reach a different conclusion if given the opportunity

for reconsideration. See Point C, infra

18

A. The Court Should Grant Certiorari To

Decide Whether A Presumption Of Pre-

judice Arises When Pervasive Pre-Trial

Publicity Is Vivid And Unforgettable,

The Trial Swiftly Follows The Arrest,

And The Defendant Is Found Guilty On

All Counts.

This Court has presumed juror prejudice in three

cases: Rideau v. Louisiana, 373 U.S. 723 (1963);

Estes v. Texas, 381 U.S. 532 (1965); and Sheppard v.

Maxwell, 384 U.S. 333 (1966). See Murphy, 421 U.S.

at 798. In Skilling, the defendant relied on these

cases in arguing that juror prejudice should be pre-

sumed there as well. See Skilling, 130 S.Ct. at

2915. The Court found that reliance misplaced, be-

cause there are “[iJmportant differences” between

these cases and Skilling, which “shares little in

common” with them. /d. at 2915-2916. The Court

identified several characteristics of Rideau, Estes,

and Sheppard that led the Court to apply a presump-

tion of prejudice. Those characteristics were all ab-

sent in Skilling, but—with one partial exception

they are present here.

Skilling’s analysis thus confirms that, if a pre-

sumption of juror prejudice was warranted in RAt-

deau, Estes, and Sheppard, it is warranted here as

well. Skilling also demonstrates that the Second

Circuit’s refusal to apply the presumption is incon

sistent with these decisions. Certiorari should there.

fore be granted because the court of appeals “has de

cided an important federal question in a way that

conflicts with relevant decisions of this Court.” Sup

Ct. R. 10(c).

1. Skilling makes clear that a presumption of

prejudice arises when some combination of the fol

19

lowing circumstances are present: the news reports

included “blatantly prejudicial information of the

type readers or viewers could not reasonably be ex-

pected to shut from sight”; the defendant’s “trial

swiftly followed a widely reported crime”; there was

no “large, diverse pool of potential jurors”; and, “of

prime significance,” the jury found the defendant

guilty on all counts, and thus “the jury’s verdict did

not undermine in any way the supposition of juror

bias.” Skilling, 130 S. Ct. at 2915-2916; see, e.g.,

State v. Hayes, No. CRO70241859, 2010 WL 3328076,

at *2 (Conn. Super. Ct. July 28, 2010) (“The circums-

tances under which a ‘presumption of prejudice’ will

be inferred by the courts have recently been analyzed

in Skilling v. United States, *** [which] identifies

four relevant factors for judicial consideration ***.”).

All but one of those circumstances are undeniably

present here.

First, the sews stories about petitioner were not

merely “not kind.” Skilling, 130 S. Ct. at 2916. The

government accused petitioner of having committed

“absolutely monstrous” acts of “incomprehensible

brutality and violence and inhumanity,” including

“modern day slavery” and “physical torture,” that the

police considered the “worst *** they’ve ever seen.”

App., infra, 99a, 101la, 103a, 197a. Echoing—often

verbatim—that superheated rhetoric, the unrelent-

ing press reports described above purveyed “blatant-

ly prejudicial information” that was “vivid, unforget-

table,” “likely imprinted indelibly” in the minds of

potential jurors, and “of the type readers or viewers

could not reasonably be expected to shut from sight.”

Skilling, 130 S. Ct. at 2916. Both the offenses with

which petitioner was charged—including peonage

and forced labor—and the associated allegations of

brutality and torture are a world apart from the

20

bloodless corporate fraud that this Court in Skilling

deemed insufficiently “memorable and prejudicial” to

five rise to a presumption of prejudice. Jbid. Like

robbery, kidnapping, and murder—the offenses at is-

sue in Rideau, see 373 U.S. at 723-724, and Shep-

pard, see 384 U.S. at 335-336—they are precisely the

sorts of crimes that are likely to evoke an intensely

visceral response. See also Skilling, 130 S. Ct. at

2922 (“news stories about Enron contained nothing

resembling the horrifying information rife in reports

about [the] rampage of robberies and murders” at is-

sue in Irvin v. Dowd, 366 U.S. 717 (1961), which held

that pre-trial publicity had deprived the defendant of

a fair trial). Indeed, “enslavement” and “torture” are

more likely to evoke that response than ordinary

crimes of violence.

The risk of juror prejudice was only heightened

by the media’s reporting of gruesome details of peti-

tioner’s alleged conduct—even to the point of pub-

lishing photographs of Samirah and Enung’s inju-

ries. “[D]etails of the methods that [petitioner] alle-

gedly used to torture [her] victims,” App., infra,

19a—beatings inflicted with a rolling pin, broom, and

knife; forced consumption of hot peppers; scalding

with hot water; forced cold showers; starvation; and

sleep deprivation—are precisely the sort of “evidence

of the smoking-gun variety” that “invited prejudg-

ment of {petitioner’s] culpability.” Skilling, 130

S. Ct. at 2916. Given this “barrage of newspaper

headlines, articles, *** and pictures *** unleashed

against [petitioner] during the *** months preceding

h[er] trial,” the “build-up of prejudice is clear and

convincing.” Irvin, 366 U.S. at 725.

Second, petitioner’s trial “swiftly followed a wide-

ly reported crime.” Skilling, 130 S. Ct. at 2916. On-

21

ly five months elapsed between petitioner’s arrest (in

May 2007) and the start of trial (in October 2007).

App., infra, 2la. This case is thus very much like

Sheppard, in which the trial began approximately

three months after the defendant’s arrest, see 384

U.S. at 341-342, and very much unlike Skilling, in

which “over four years elapsed between Enron’s

bankruptcy and Skilling’s trial” and the “decibel level |

of media attention diminished somewhat in the years

following Enron’s collapse,” 130 S.Ct. at 2916.

There was no passage of time here that could have

made the prejudicial effects of pre-trial publicity dis-

sipate and “helped ‘sooth[e] and eras[e]’ community

prejudice.” Jd. at 2914 n.13 (quoting Yount, 467 U.S.

at 1034; brackets added by Court). On the contrary,

in the months immediately prior to trial, the media

kept feeding what the government described as the

“interest among the public in this case,” App., infra,

319a, by continuing to publish sensational articles.

Third, and of “prime significance,” the jury

handed the government an “overwhelming victory”

by finding both petitioner and her husband guilty on

all 12 counts of the indictment. Skilling, 130 S. Ct.

at 2916. Thus, as “[iJn Rideau, Estes, and Sheppard,

*** the jury’s verdict did not undermine in any way

the supposition of juror bias.” Jbid.8

3 The only one of the four factors identified in Skilling that does

not clearly favor petitioner does not clearly favor the govern-

ment either: “the size and characteristics of the community in

which the crime occurred.” Skilling, 130 S. Ct. at 2915. While

this case is not lke Rideau, in which the crime was committed

‘in a parish of only 150,000 residents,” it is also not hke Skil-

ling, in which the crime was committed in “the fourth most po-

pulous city in the Nation.” Jbid. The alleged crimes occurred in

a small suburban community on Long Island, and the trial was

2. In refusing to apply a presumption of preju-

dice, the court of appeals disregarded the considera-

tions that—as Skilling has since made clear—must

guide the presumption-of-prejudice inquiry. The

court did not consider the “vivid” and “unforgettable”

nature of the pre-trial publicity, Skilling, 130 S. Ct.

at 2916; it simply asserted, conclusorily, that “the

character of the publicity” did not warrant a pre-

sumption of prejudice, App., infra, 24a. The court

gave short shrift to the fact that the trial “swiftly fo)-

lowed” the arrests, Skilling, 130 S. Ct. at 2916; it ac-

knowledged that the trial commenced only “five

months” later, but found it permissible to deny a ve-

nue change even when “the press coverage [iJs con-

tinuing and prominent,” App., infra, 2la (internal

quotation marks omitted). And the court entirely ig-

nored the jury’s guilty verdict on all counts, a matter

of “prime significance” that resulted in an “over-

whelming victory” for the government. Skilling, 130

S. Ct. at 2916.

In the end, the Second Circuit rejected a pre-

sumption of prejudice with little more than the ob-

servation that “[c]ases presenting this scenario are

very rare.” App., infra, 22a. But that is not a suffi-

cient justification for refusing to apply the presump-

tion. Nor is anything else the court said in its opi-

nion.

held more than 50 miles from the federal courthouses in Man-

hattan and Brooklyn. In any event, the absence of a “large, di-

verse pool of potential jurors” cannot be a necessary condition

for the presumption of prejudice, since the Sheppard case was

tried in Cleveland. See Sheppard v. Maxwell, 231 F. Supp. 37,

60 (S.D. Ohio 1964), rev'd, 346 F.3d 707 (6th Cir. 1965), rev'd,

384 U.S. 333 (1966).

23

For example, the court of appeals declined to

“find any error in the district court’s determination

that *** the press coverage appears to have been dri-

ven at least as much by comments of the Sabhnanis’

counsel as by any prosecutor’s statements.” App., tn-

fra, 20a. As an initial matter, that determination is

erroneous, and manifestly so. On the few occasions

when defense counsel commented to the press, they

typically made a brief statement of fact or simple ex-

pression of confidence in the case; their benign re-

marks, see id. at 938a-94a & nn.4-6, 223a-228a, pale

in comparison to the government’s over-the-top rhe-

toric. Whether erroneous or not, moreover, the de-

termination has no legal significance. As this Court

explained in Rideau, “the question of who originally

initiated” the prejudicial pre-trial publicity is “a bas-

ically irrelevant detail.” 373 U.S. at 726. Consistent

with that view, this Court concluded in Sheppard

that the trial judge “did not fulfill his duty to protect

[the defendant] from the inherently prejudicial pub-

licity,” even though the defendant “made many pub-

lic statements to the press and wrote feature articles

asserting his innocence” and thus “many of the pre-

judicial news items c[ould] be traced to *** the de-

fense.” 384 U.S. at 340, 361, 363.

The Second Circuit also thought it significant

that “most of the press coverage tracked the frequent

court proceedings in this case.” App., infra, 2la. But

the court did not explain why articles portraying the

Sabhnanis as a “millionaire slave couple,” and peti-

tioner’s actions as “torture,” are any less “vivid” and

“unforgettable,” Skilling, 130 S. Ct. at 2916, simply

because they happen to have been prompted by a

proceeding in the case. They self-evidently are not.

24

Finally, the Second Circuit believed that “the key

to determining the appropriateness of a change of

venue is a searching voir dire.” App., infra, 23a (in-

ternal quotation marks omitted). But the whole

point of the presumption of prejudice is that “the ju-

rors’ claims that they can be impartial should not be

believed.” Yount, 467 U.S. at 1031. Accordingly, voir

dire either is irrelevant to the presumption-of-

prejudice inquiry or, at most, could be relevant only

when the government seeks to rebut the presump-

tion. See Point B, infra. It has no bearing on wheth-

er the presumption arises in the first place.

3. If anything, a presumption of prejudice may be

even more warranted in this case than in Rideau,

Estes, and Sheppard—all of which were state cases

because petitioner has invoked both the Due Process

Clause and Federal Rule of Criminal Procedure

21(a). “As this Court has indicated, its supervisory

powers confer ‘more latitude’ to set standards for the

conduct of trials in federal courts than in state

courts.” Skilling, 130 S. Ct. at 2953 n.9 (Sotomayor,

J., concurring in part and dissenting in part) (quot-

ing Mu’Min, 500 U.S. at 424).4 For that reason, “the

standard of Rule 21” is “more favorable” to the de-

fendant than the Due Process standard, which pro-

4 See, e.g., Marshall v. United States, 360 U.S. 310 (1959) (per

curiam) (reversing conviction, in exercise of supervisory powers

and without finding constitutional violation, based on jurors’

exposure to prejudicial publicity); see also Murphy, 421 U.S. at

804 (Burger, C.J., concurring) (“I would not hesitate to reverse

petitioner’s conviction in the exercise of our federal supervisory

powers, were this a federal case”); Rideau, 373 U.S. at 728

(Clark, J., dissenting) (“if this case arose in a federal court, over

which we exercise supervisory powers, I would vote to reverse

the judgment”).

25

vides only a “minimum constitutional baseline.”

United States v. Skilling, 554 F.3d 529, 559 n.39 (5th

Cir. 2009), vacated in part on other grounds, 130

S. Ct. 2896 (2010).

That Rule 21 is more protective than the Due

Process Clause is confirmed by this Court’s decision

in Skilling, in which—unlike in this case—the de-

fendant failed to raise a claim under Rule 21. See

130 S. Ct. at 2913 n.11. Had the Court been of the

view that the Due Process and Rule 21 standards are

identical, it would have had no reason to draw any

distinction between them. Instead, the Court took

care to point out that, because of the waiver, there

was no occasion to decide whether a change of venue

would have been required under Rule 21. See tbid.

(“We therefore review the District Court’s venue-

transfer decision only for compliance with the Con-

stitution.”); see also id. at 2942 (Alito, J., concurring

in part and concurring in the judgment) (“I also do

not understand the opinion of the Court as reaching

any question regarding a change of venue under

Federal Rule of Criminal Procedure 21.”). The Court

left open the possibility that a venue change would

have been required under Rule 21, moreover, even in

a case that “share[d] lttle in common with those

[cases] in which [this Court] approved a presumption

of juror prejudice.” Jd. at 2916.

Unhike in Skilling, the question whether a pre-

sumption of prejudice is warranted under Rule 21 is

squarely presented in this case, which—again unlike

Skilling—has much “in common with those in which

[this Court] approved [such] a presumption.” 130

S. Ct. at 2916. That makes this case an especially

good vehicle for deciding whether the presumption

applies.

26

B. The Court Should Also Grant Certiorari

To Decide Whether A Presumption Of

Jury Prejudice Is Irrebuttable.

In Skilling, the Fifth Circuit held that pervasive

pre-trial publicity gave rise to a presumption of jury

prejudice, but determined that the presumption was

rebuttable and that it was rebutted in that case. See

Skilling, 130 S.Ct. at 2911-2912. This Court

granted certiorari to decide “[w]hether the govern-

ment may rebut the presumption of prejudice.” Peti-

tion for Writ of Certiorari at i, Skilling, 130 S. Ct.

2896 (2010) (No. 08-1394), available at 2009 WL

1339243. The Court ultimately “ffou]nd a presump-

tion of prejudice unwarranted in th[e] case,” howev-

er, and thus determined that it “need not, and

[would] not, reach th[at] question{],” Skilling, 130

S. Ct. at 2912 n.10, 2917 n.18. Because a presump-

tion of prejudice is warranted here, this case

presents the Court with an opportunity to decide the

question it agreed, but had no occasion, to decide in

Skilling. The Court has already determined that the

question is sufficiently important to justify a grant of

certiorari, and it should decide the question now.

1. The question whether a presumption of jury

prejudice can be rebutted has divided the lower

courts. That is doubtless one of the reasons why the

Court granted certiorari to decide the question in

Skilling. The Fifth and Eleventh Circuits have held

that the presumption may be rebutted through voir

dire.6 By contrast, the Third, Fourth, Ninth, and

5 See, e.g., United States v. Chagra, 669 F.2d 241, 250 (5th Cir.

1982) (“This presumption is rebuttable, *** and the government

may demonstrate from the voir dire that an impartial jury was

actually impanelled in [the defendant’s] case.”), overruled in

27

Tenth Circuits have concluded that, when a pre-

sumption of prejudice arises, the case must be tried

in a different venue. A number of state courts of

last resort have reached the same conclusion.?

As the decisions of this Court make clear, the

majority view is correct. In the cases in which this

part on other grounds, Garrett v. United States, 471 U.S. 773

(1985); United States v. Campa, 459 F.3d 1121, 1143 (11th Cir.

2006) (en banc) (“[T]he government can rebut any presumption

of juror prejudice by demonstrating that the district court’s

careful and thorough voir dire *** ensured that the defendant

received a fair trial by an impartial jury.”).

6 See, e.g., Flamer v. Delaware, 68 F.3d 736, 754 (3d Cir. 1995)

(en banc) (Alito, J.) (“In order to invoke [the] presumption of

prejudice, [t]he community and media ... reaction must have

been so hostile and so pervasive as to make it apparent that

even the most careful voir dire process would be unable to as-

sure an impartial jury.” (internal quotation marks omitted;

second set of brackets and ellipsis added by court)); United

States v. Higgs, 353 F.3d 281, 307 (4th Cir. 2003) (“[T]he dis-

trict court must determine whether the publicity is so inherent-

ly prejudicial that trial proceedings must be presumed to be

tainted, and, if so, grant a change of venue prior to jury selec-

tion.” (internal quotation marks omitted)); Daniels v. Woodford,

428 F.3d 1181, 1210 (9th Cir. 2005) (finding presumption of pre-

judice and reversing conviction without considering adequacy of

voir dire); United States v. McVeigh, 153 F.3d 1166, 1182 (10th

Cir. 1998) (when presumption of prejudice arises, “we simply

cannot rely on jurors’ claims that they can be impartial and dec-

lare the publicity to be prejudicial as a matter of law” (internal

quotation marks omitted)), overruled in part on other grounds,

Hooks v. Ward, 184 F.3d 1206 (10th Cir. 1999).

7 See, e.g., People v. Leonard, 157 P.3d 973, 993-994 (Cal. 2007)

(when presumption of prejudice arises, “the ensuing conviction

must be reversed without regard to *** the prespective jurors’

protestations of neutrality during voir dire”); DeRosa v. State,

89 P.3d 1124, 1135 (Okla. Crim. App. 2004) (in some cases,

“prejudice against the defendant must be presumed and any

conviction overturned”).

28

Court applied a presumption of jury prejudice, it re-

versed convictions on that basis without any inquiry

into whether the presumption was rebutted. Thus,

in Rideau, “the foundation precedent,” Skilling, 130

S. Ct. at 2913, the Court reversed the conviction

“without pausing to examine a particularized tran-

script of the voir dire examination of the members of

the jury.” 373 U.S. at 727. Similarly, in Estes, after

finding that prejudice was “inherent” in the publici-

ty, the Court found it unnecessary to undertake “a

careful examination of the facts in order to deter-

mine whether [actual] prejudice resulted.” 381 U.S.

at 543. Finally, in Sheppard, the Court likewise

made no inquiry into actual prejudice after finding

the publicity to be “inherently prejudicial.” 384 U.S.

at 363.

The Court confirmed this view in Vasquez v. Hil-

lery, 474 U.S. 254 (1986), which catalogued the types

of errors that are subject to a rule of automatic re-

versal. The Court explained that the “expos{ure] to

prejudicial publicity” in Sheppard “required reversal

of the conviction” because the effect of the exposure

“cannot be ascertained.” Jd. at 263 (emphasis add-

ed); accord United States v. Gonzalez-Lopez, 548 U.S.

140, 149 n.4 (2006). This understanding of the

Court’s presumption-of-prejudice cases is consistent

with the basic justification for the presumption,

which is that pre-trial publicity can be so prejudicial

that “the jurors’ claims that they can be impartial”

simply “should not be believed.” Yount, 467 U.S. at

1031; accord Mu’Min, 500 U.S. at 429. The Court

has never suggested that this disbelief can be over-

come by a searching voir dire.

2. Even if a presumption of jury prejudice could

be rebutted, it was not rebutted here. Because the

29

district court failed to apply the presumption at all,

it did not do what is required in those circuits in

which the presumption is rebuttable: place on the

government “the burden of proving that the twelve

jurors finally impanelled actually were impartial,” a

burden that might be met by evidence that the

seated jurors “had [n]lever been exposed *** to the in-

flammatory publicity.” Mayola v. Alabama, 623 F.2d

992, 1000-1001 (5th Cir. 1980); see also United

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

2006) (en banc). Instead of deciding whether the

government had demonstrated that the seated jurors

were not actually exposed to prejudicial publicity, the

district court found that “the Sabhnanis could not

demonstrate that any juror was actually exposed to

prejudicial publicity.” App., infra, 23a n.8 (emphasis

added). Even assuming that the presumption is re-

buttable, this gets things exactly backwards.

Because the district court harbored an “errone-

ous view of the law,” in short, its findings are en-

titled to no weight. Pullman-Standard v. Swint, 456

U.S. 273, 292 (1982). “Historical facts ‘found’ in the

perspective framed by an erroneous legal standard

cannot plausibly be expected to furnish the basis for

correct conclusions.” Rogers v. Richmond, 365 U.S.

534, 547 (1961). If anything, the record here—which

includes “an e-mail sent to the court by an excused

potential juror[] who claimed that other members of

the venire were ‘lying’ and pretending to ‘live in a

cave’ in order to serve on the jury,” App., infra, 23a,

308a-311la, coupled with the magistrate judge’s re-

fusal to take remedial action in response, id. at 316a,

319a—demonstrates that the government would not

have been able to discharge its “very difficult” bur-

den of proving that all the seated jurors “actually

30

were impartial,” Mayola, 623 F.2d at 1001, even if

the lower courts had correctly held it to that burden.

C. At The Very Least, The Court Should

Grant The Petition, Vacate The Judg-

ment Below, And Remand For Further

Consideration In Light Of Skilling.

If the Court does not grant plenary review, it

should grant certiorari, vacate the judgment below,

and remand the case (GVR) for reconsideration in

light of Skilling, which was decided three months af-

ter the decision below. As this Court reiterated just

last Term, a GVR order is appropriate when (1) “in-

tervening developments ... reveal a reasonable prob-

ability that the decision below rests upon a premise

that the lower court would reject if given the oppor-

tunity for further consideration” and (2) “such a re-

determination may determine the ultimate outcome’

of the matter.” Wellons v. Hall, 130 S. Ct. 727, 731

(2010) (per curiam) (quoting Lawrence v. Chater, 516

U.S. 163, 167 (1996) (per curiam); ellipsis added by

Court). Both criteria are satisfied here.

In the decision below, the Second Circuit ac-

knowledged this Court’s holdings that publicity can

be “so highly prejudicial to the defendants” that a

court should “presume a fair trial was impossible.”

App., infra, 22a (citing, inter alia, Rideau). The

court nevertheless determined, without really ex-

plaining why, that “neither the character of the pub-

licity nor the extent to which potential jurors were

either exposed to it or affected by it” justifies the

conclusion that “a presumption or inference of gene-

ralized prejudice was appropriate in this case.” Id.

at 24a.

3]

Because the court of appeals did not have the

benefit of this Court’s analysis in Skilling, it took no

account of the characteristics of Rideau, Estes, and

Sheppard that—as Skilling has since made clear—

gave rise to the presumption of prejudice in these

cases, and it failed to address whether those charac-

teristics are present here. As we have explained, the

court did not consider the “memorable,” “indelibl|{e},”

“vivid,” and “unforgettable” nature of the pre-trial

publicity; it gave short shrift to the fact that the trial

“swiftly followed” the arrests; and it entirely ignored

something of “prime significance”: the jury’s guilty

verdict on all counts, which resulted in an “over-

whelming victory” for the government. Skilling, 130

S. Ct. at 2916. There is thus a “reasonable probabili-

ty” that, if “given the opportunity for further consid-

eration,” Wellons, 130 S. Ct. at 731 (internal quota-

tion marks omitted), the court of appeals would re-

ject an implicit premise of its decision—namely, that

the considerations subsequently identified in Skil-

ling are not fundamental, or even especially rele-

vant, to the presumption-of-prejudice inquiry.

It is equally clear that the court’s “redetermina-

tion” of that question could “determine the ultimate

outcome” of the case. Wellons, 130 S. Ct. at 731 (in-

ternal quotation marks omitted). First, under the

standard articulated in Skilling, the court might well

conclude that a presumption of prejudice applies

here; indeed, we believe it would be compelled to do

so. See Point A, supra. Second, because the pre-

sumption is not rebuttable—and because, even if it

were, it could not be rebutted in this case—

presuming prejudice would require that petitioner’s

conviction be vacated, and she would be entitled to a

new trial before a jury untainted by the pre-trial

publicity. See Point B, supra.

32

When, as here, an intervening decision of this

Court casts doubt on the decision below, a GVR order

both “guarantees to the petitioner full and fair con-

sideration of h[er] rights in light of all pertinent con-

siderations” and “respects the dignity of the Court of

Appeals by enabling it to consider *** [a] relevant

decision{] *** that w{as] not previously before it.”

Stutson v. United States, 516 U.S. 193, 197 (1996)

(per curiam). If the Court does not grant plenary re-

view, it should issue a GVR order in this case.

CONCLUSION

The petition for a writ of certiorari should be

granted and the case set for plenary review. In the

alternative, the petition should be granted, the

judgment of the court of appeals vacated, and the

case remanded for further consideration in light of

Skilling v. United States, 130 S. Ct. 2896 (2010).

Respectfully submitted.

SUSAN C. WOLFE DAN HIMMELFARRB

Hoffman & Pollok Counsel of Record

LLP BRIAN J. WONG

260 Madison Avenue Mayer Brown LLP

New York, NY 10016 1999 K Street, NW

(212) 679-2900 Washington, DC 20006

(202) 263-3000

dhimmelfarb@mayerbrown.

com

Counsel for Petitioner

OCTOBER 2010

APPENDICES

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

United States of America,

Appellee,

Vv.

Mahender Murlidhar Sabhnani,

Varsha Mahender Sabhnani,

Defendants-Appellants.

Docket No. 08-3720-cr(L), 08-373 1-cr(CON)

Argued February 5, 2009.

Decided March 25, 2010.

Before: WESLEY, LIVINGSTON, Circuit Judges,

and RESTANI, Judge.”

DEBRA ANN LIVINGSTON, Circuit Judge:

Defendants-Appellants Mahender Murlidhar

Sabhnani (“Mahender’) and Varsha Mahender

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

* The Honorable Jane A. Restani, Chief Judge of the United

States Court of International Trade, sitting by designation.

2a

“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)Gn), holding a person in a condition of

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

ument servitude in violation of 18 U.S.C. § 1592(a),

as well as conspiracy to commit each of these subs-

tantive offenses. The district court sentenced Ma-

hender Sabhnani to 40 months’ imprisonment, to be

followed by a three-year term of supervised release,

and ordered him to pay a $12,500 fine and a special

assessment of $1200. Varsha Sabhnani was sen-

tenced to 132 months’ imprisonment, followed by a

three-year term of supervised release, and was or-

dered to pay a $25,000 fine and a special assessment

of $1200. The court also required both defendants to

pay the sum of $936,546.22 in restitution to their vic-

tims, and ordered both defendants to forfeit their

ownership interest in their home, where their vic-

tims had been held. The district court’s forfeiture or-

der was stayed pending the disposition of this ap-

peal. Varsha is currently serving her sentence, and

Mahender was granted bail pending appeal by this

Court.

The Sabhnanis jointly and individually make

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

proper refusal by the district court to change the ve-

nue of the trial in light of negative publicity regard-

ing the defendants; (2) erroneous refusal to compel a

prosecution witness to submit to an independent

psychiatric examination; (3) incorrect instruction of

the jury to the effect that it could convict Mahender

Sabhnani of the charged crimes on a theory of omis-

3a

sion as opposed to affirmative action; (4) insufficien-

cy of the evidence as to Mahender Sabhnani'’s convic-

tions; (5) incorrect instruction of the jury prohibiting

it from drawing an adverse inference from the refus-

al of prosecution witnesses to speak to defense coun-

sel; (6) improper refusal to recall a prosecution wit-

ness following the completion of testimony and the

beginning of jury deliberations; (7) insufficient inves-

tigation into purported juror misconduct; (8) proce-

dural unreasonableness in Varsha and Mahender’s

sentencing, consisting of multiple errors in the dis-

trict court’s calculation of the applicable Guidelines

range; (9) various errors in the calculation of the re-

quired 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 excep-

tion of the Sabhnanis’ challenge to the calculation of

the restitution award.

BACKGROUND

Mahender Sabhnani, a naturalized citizen of the

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

sha Sabhnani, a naturalized United States citizen

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

set, New York with their four children. The jury

found beyond a reasonable doubt that the Sabhnanis

conspired to harbor in their Syosset home two aliens

who were unlawfully in the United States — specifi-

cally, two domestic servants the couple brought from

Indonesia. The jury further found that the Sabhna-

nis conspired to hold these two women in peonage,

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 labor, and doc-

4a

ument servitude based upon the evidence of their

mistreatment of the two women, Samirah and

Enung. The evidence at the Sabhnanis’ trial, viewed

in the hight most favorable to the government, dem-

onstrated 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 vica 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 Varsha’s broth-

er Naresh. Mahender and Varsha Sabhnani met

them at John F. Kennedy International Airport and

drove them to the couple’s home. Varsha Sabhnani

took Samirah’s passport and other related docu-

ments and kept them until approximately April

2007, about one year after Samirah’s passport had

expired. Mrs. Joti returned to her home in Indonesia

shortly after delivering Samirah.

Samirah worked as a domestic servant for Var-

sha and Mahender Sabhnani from February 2002

through May 2007, even though the visa that Mrs.

Joti obtained for her authorized Samirah to enter the

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

work for her in this country only until May 2002.

During her time with the Sabhnanis, Samirah was

responsible for cooking, cleaning, laundry, and other

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

which included about seven bedrooms, seven baths,

5a

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. Li-

ta was in fact paid only $100 per month. Samirah re-

ceived 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 hunger to

eat from the garbage. She worked for extremely long

hours per day and was often deprived of sleep. On

one occasion in 2003, William Hespeler, an electri-

cian performing work at the home, observed Samirah

dressed in “raggedy clothes,” following Mahender

Sabhnani as she carried a food and beverage tray.

Tr. 3586. Her meager dress that day was not atypi-

cal. 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. Various wit-

nesses testified that Samirah wore “torn or tattered,”

'The companies were principally engaged in the export of per-

fume, towels, body sprays and soaps to Dubai, the United Arab

Emirates, Saudi Arabia, Singapore, Bahrain and other foreign

markets.

6a

“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 phys-

ical and psychological treatment in the Sabhnanis’

home. On one occasion sometime before 2005, for ex-

ample, Samirah drank milk directly from a contain-

er, without using a glass; the incident was reported

to Varsha Sabhnani by one of her daughters. 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 Sa-

mirah 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 adjoining 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. Sami-

rah was beaten by Varsha Sabhnani with various

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

a rolling pin. She was punished for sleeping late, for

not receiving permission to throw out the garbage,

for stealing food from the trash, and for failing to

clean the garage. Varsha threw boiling water on Sa-

mirah on at least three separate occasions. She also

mutilated Samirah, pulling on Samuirah’s ears until

they bled, causing scabs and scars, and cutting Sa-

mirah with a knife, leaving scars on her face and

various parts of her body. Wearing plastic supermar-

ket 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

Va

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 Sa-

mirah vomited or moved her bowels uncontrollably.

Varsha forced Samirah to walk up and down flights

of stairs many times in succession. Samirah was re-

quired to bathe several times in a row, sometimes

with her clothes on, and was not infrequently made

to work while wearing wet clothing. Varsha Sabhna-

ni also cut Samirah’s hair with scissors and shaved

her pubic hair, threatening Samirah that if she re-

sisted her children in Indonesia would be murdered

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 Sabhna-

ni. Tr. 1774. The abuse suffered by Samirah caused

her to become so fearful that she would sometimes

urinate on herself.

On at least three occasions, Varsha Sabhnani

forced Samirah to write letters to Samirah’s family

in Indonesia that Varsha dictated and then took

from Samirah and kept. These letters contained

statements to the effect that Samirah was a “crazy

person,” that she walked around naked, urinated and

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

They also contained a statement. that, when trans-

lated, was interpreted to mean that Samirah pur-

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

was deceased. Varsha threatened to send these let-

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

ly kept them in the same locked cabinet in the closet

adjoining the Sabhnanis’ bedroom that contained

Samirah’s photograph with the milk container, as

well as her passport and related documents.

8a

Subject to this recurrent abus*, Samuirah 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 Sabhna-

nis had incurred in bringing her to the United

States. Varsha told Samirah that Samirah’s children

would be killed if she escaped. Varsha also threat-

ened 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 testified

that one of the Sabhnanis’ daughters “maybe

... [felt] pity” for her and intervened on her behalf

one day after Samirah was hit with a telephone, tell-

ing 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 Sabh-

nani was not present on the occasions of Varsha

Sabhnani’s most violent physical abuse. He was

present, 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

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 Sami-

rah, spoke no English, was also recruited by Mrs. Jo-

ti. A sister of Varsha’s, Kareena Deepak Kirpalani,

trained Enung at Kirpalani’s residence in Indonesia

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

helped Enung acquire the necessary travel docu-

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

room, fell asleep. Mahender told Varsha that Samirah “was not

washing,” but that “she was sleeping in the bathroom.” Tr.

1869.

10a

ments 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 arriv-

al 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 cup-

board in the closet adjacent to the Sabhnanis’ bed-

room in which she also kept Samirah’s passport and

related documents, the photo of Samirah with the

milk container, and the letters Samirah was required

to write. Enung’s passport remained there until dis-

covered 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 be-

gan 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, sieep, and

even medical care when sick or injured. Both Sami-

rah and Enung testified to numerous occasions 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

lla

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 1n pain.

Enung herself was not immune from these more

atrocious forms of abuse. Varsha Sabhnani forced

Enung to walk up and down stairs repeatedly as pu-

nishment 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 morning

until about 4:00 in the afternoon. Varsha and Ma-

hender Sabhnani, as well as their son, laughed at

her while she was being punished in this manner. On

another occasion when Varsha Sabhnani was cook-

ing, Enung handed her the wrong spice. Varsha hit

Enung in the face with a metal spoon, causing

Enung’s face to bleed and leaving a scar. Varsha also

struck Enung with her fist and with a glass Pyrex

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 at-

tempt 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

l2a

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, Li-

tras also mailed several letters on their behalf. After

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

present 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 behalf, Litras thereafter saw the maids only

rarely: “Then I didn’t see them ever, outside, by a

shed, or else anything. | started noticing that I was

never seeing them at all.” Tr. 3858.

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

l3a

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 re-

turn 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, clothes 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 “[blecause if the Missus found out” she

was complaining to her children, she would “get beat

up some more.”? Tr. 2062.

Samirah and Enung approached Litras again in

April 2007, some nine months after this letter was

posted, when Litras was alone in Mahender Sabhna-

ni’s office and the Sabhnanis were not at home. The

maids were “disturbed and rushed,” “[u]pset.” Tr.

3861. They came in together and threw raw chili

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

approached Mrs. Joti seeking to have Samirah returned to In-

donesia. 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 approximately

$4400. During one of several] telephone conversations between

Mrs. Joti and Leo, Mrs. Joti falsely 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 con-

versation with Leo, Mrs. Joti became angry and told Leo, who

testified at trial, that she could have Samirah murdered

l4a

peppers on the ground. Using gestures, they ap-

peared to communicate that they were forced to eat

them. Samirah, whose hair Litras described 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 lan-

guage barrier was very difficult,” but the maids ap-

peared to act out a scenario in which one maid was

hit with an object and then was made to hit the oth-

er. 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 Sami-

rah crouching at the office door that led down to the

basement with blood dripping from her hairline. Li-

tras gestured Samirah away so that Mahender

Sabhnani would not see her.

Finally, on the evening of May 12, 2007, Sami-

rah, 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 Indonesian

passport that Varsha had returned to her the pre-

vious month. Samirah entered a Dunkin’ Donuts

store in Syosset early the next morning. The people

inside the Dunkin’ Donuts were unable to communi-

cate with Samirah because she did not speak Eng-

lish, 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

15a

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

polce. 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 triai.

In the course of the resulting iivestigation,

agents from Immigration and Customs Enforcement

(“ICE”) executed two search warrants at the Sabh-

nanis’ 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 under-

neath the basement stairs. Enung provided agents

with a knife stained with Samirah’s blood and tis-

sues; both of these Enung had secreted away on Sa-

mirah’s departure. Enung also showed agents a

broom and rolling pin with which Varsha had beaten

Samuirah, 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 testified that she

had observed Samirah crouching, with blood drip-

ping from her hairline. DNA testing confirmed that

the blood found on the door was Samirah’s.

16a

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 bath-

room because she was expecting a guest from the In-

dies and was embarrassed about having someone 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.

The Sabhnanis were arrested on May 14, 2007

on charges of committing forced labor. In a supersed-

ing indictment filed September 18, 2007, the Sabh-

nanis were charged with the following crimes: (1) two

counts of forced labor or attempted forced labor in vi-

olation 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 1n vi-

4U.S.C. § 1589 provides in relevant part as follows:

(a) Whoever knowingly provides or obtains the labor or

services of a person by .. . means of force, threats of force,

physical restraint, or threats of physical restraint to that

person or another person ...shall be punished as pro-

vided under subsection (d).

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

commit forced labor, peonage, and document servitude, among

other offenses.

17a

olation of 8 U.S.C. § 1324(a)(1)(A)(in) and (v)(ID;5 (4)

one count of conspiracy to harbor aliens in violation

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

counts of peonage or attempted peonage in violation

of 18 U.S.C. §§ 1581(a) and 1594(a);6 (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,

5 8 U.S.C. § 13824(a)(1)(A) makes criminally lable 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, harbors, 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)T]) prohibits

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

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

tive offenses.

618 U.S.C. § 1581(a) prohibits “hold[ing] or return[ing] any per

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

718 U.S.C. § 1592 provides:

Whoever knowingly destroys, conceals, removes, confis-

cates, or possesses any actual or purported passport or

other immigration document, or any other actual or pur-

ported government identification document, of another

person ...in the course of a violation of [§§ 1581, 1589,

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

and 1594(a)] ... shall be fined under this title or impri-

soned....

18 U.S.C. § 1592.

18a

including Samirah, Enung, Hespeler, Litras, Pasca-

rella, 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 Sabh-

nani contended that Samirah’s and Enung’s testimo-

ny could not be believed, and that, despite her de-

nials, there was reason to believe that the marks on

Samirah’s body were the product of kerokan, an In-

donesian 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 suppo-

sedly manipulated Samurah’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

Il. Pretrial Motions

A. The Venue Motion

Appellants contend that the district court impro-

perly 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 dis-

cretion. United States v. Maldonado-Rivera, 922 F.2d

19a

934, 967 (2d Cir. 1990). Rule 21(a) provides in rele-

vant part that “[uJpon the defendant’s motion, the

court must transfer the proceeding against that de-

fendant to another district if the court 1s satisfied

that so great a prejudice against the defendant exists

in the transferring district that the defendant cannot

obtain a fair and impartial trial there.” Fed. R. Crim.

P. 21(a). The defendant must show “a reasonable li-

kelihood that prejudicial news prior to trial will pre-

vent a fair trial.” Maldonado-Rivera, 922 F.2d at

966-67 (quoting Sheppard v. Maxwell, 384 U.S. 333,

363, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966) (internal

quotation marks omitted)). “In assessing the motion,

the district court may take into account, inter alia,

the extent to which the government is responsible for

generating the publicity, the extent to which the pub-

licity focuses on the crime rather than on the indi-

vidual 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 impartially.” 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 sla-

very.” The tabloid newspapers dubbed Varsha

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

printed details of the methods that the Sabhnanis al-

legedly used to torture their victims. During the

weeks following the bail hearings, in which there

was a significant amount of litigation over the bail

20a

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

CR-429, 2007 U.S. Dist. LEXIS 70226, 2007 WL

2769487, at *1-2 (E.D.N.Y. Sept. 21, 2007) (order de-

nying transfer motion), the media reported on vari-

ous developments in the case, continually referring

to it as the “Slave Case.” The coverage also repeated-

ly 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 cha-

racter of the crimes were proper in the context in

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 prop-

er in the context of arguing ihat 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 motion for

change of venue, legitimate advocacy at a court pro-

ceeding — even advocacy resulting in adverse pretrial

publicity — does not constitute conduct for which the

government is properly held responsible 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 U.S.

Dist. LEXIS 70226, 2007 WL 2769487, at *3 & nn.4-

6.

Second, we similarly conclude that the pretrial

publicity here was not so pervasive and prejudicial

2la

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

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 ac-

tual 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,

22a

95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975). It is true that

the Supreme Court has in the past stated that pub-

licity can so saturate a community (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, 83

S. Ct. 1417, 10 L. Ed. 2d 663 (1963) (defendant was

filmed, possibly 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, 104 S. Ct.

2885, 81 L. Ed. 2d 847 (1984) (“[A]dverse pretrial

publicity can create such a presumption of prejudice

in a community that the jurors’ claims that they can

be impartial should not be believed.”) (describing the

holding of Jrvin v. Dowd, 366 U.S. 717, 81 S. Ct.

1639, 6 L. Ed. 2d 751 (1961)). Cases presenting this

scenario are very rare, however, and have been cha-

racterized by our sister circuits as “extreme situa-

tion[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 Cuban government in the district), in

which the “publicity 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,

23a

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.

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

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 Sabh-

nanis could not demonstrate that any juror was actually ex-

posed to prejudicial publicity. The appellants make no argu-

ments here to demonstrate that this conclusion was erroneous

in any respect.

24a

not sufficiently impartial in cases in which the evi-

dence 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 ge-

neralized 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

25a

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 renewed

shortly prior to trial before Judge Spatt.? At that

time, the defense also relied on the deposition testi-

mony of Samirah’s daughter Lita regarding informa-

tion 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 psy-

chiatric examination of a witness,” including “inva-

sion 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-

® This matter was originally assigned to Judge Thomas C. Platt,

and was reassigned to Judge Spatt shortly before trial.

26a

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 impugning 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 credibili-

ty, and a psychiatric examination would not have

added measurably to its ability to do so. Samirah tes-

tified for part or all of six days, and faced extensive

cross-examination.!° The Sabhnanis argue that be-

cause Samirah’s testimony was given through an In-

donesian 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,

1038 (9th Cir. 2009) (testimony by deaf-mute

through two separate sets of interpreters did not de-

prive defendant of opportunity to cross-examine wit-

10 The jury also heard testimony from Samirah’s treating physi

cian at Nassau University Medical Center, Dr. Ami Attali, who

testified regarding Samirah’s mental] state while at the hospit

al.

27a

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 Sami-

rah’s son Erwin as evidence of Samirah’s unstable

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 Sami-

rah’s injuries might “be consistent with self-injury”

an assertion that fell well short of demonstrating any

mental instability, much less mental instability war-

ranting the conduct of a psychiatric examination. Cf.

United States v. Gutman, 725 F.2d 417, 420 (7th Cir.

1984) (finding no abuse of discretion in the district

court’s refusal to hold a hearing to determine wheth-

er a witness with a history of mental] 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 as-

sessment by the jury. The hospital discharge papers

noting Samirah’s referral to an outpatient psychia-

tric clinic do not explain the reason for the referral,

but Dr. Attali testified that such a recommendation

is routine for most recovering trauma victims. The

district court did not abuse its discretion by declining

to afford these notes much weight. Finally, neither

the Sabhnani daughter's affidavit attesting to Sami-

28a

rah’s “strange” behavior — much of it, according to

Samirah’s later testimony, caused by the Sabhnanis’

mistreatment — nor the deposition testimony of Sa-

mirah’s daughter, which merely reported Varsha

Sabhnani’s self-serving statements, established a

compelling need for Samirah’s examination. The dis-

trict 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

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 approx-

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

struction on aiding and abetting. In particular, he

contends that the district court’s instruction on will-

fulness permitted the jury to convict him for failing

29a

to act.1!1 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

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. (quoting

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. Mit-

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

States v. Zul, 168 F.3d 49, 58 (2d Cir. 1998)) (internal

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

as follows:

Participation in a crime is willful if action is taken volun-

tarily and intentionally or in the case of a failure to act

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

quires to be done, that is to say, with a bad purpose ei-

ther to disobey or to disregard the law.

Tr. 5035.

30a

quotation marks omitted), to determine whether con-

sidered as a whole, “the instructions adequately

communicated the essential] ideas to the jury.” Unit-

ed States v. Tran, 519 F.3d 98, 105 (2d Cir. 2008)

(quoting United States v. Schultz, 333 F.3d 393, 413-

14 (2d Cir. 2003) (internal quotation marks and alte-

rations omitted)); see also Cupp v. Naughten, 414

U.S. 141, 146-47, 94 S.Ct. 396, 38 L. Ed. 2d 368

(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 lability may gener-

ally 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 vi-

olated a common law duty that required him to act.

It is a long-established principle that criminal law

generally regulates action, rather than omission, and

that “[fjor criminal lhability 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).!2 This general principle, that omissions

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.

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 differ-

ent statute, the common law, or contract. 1 LaFave, Substantive

Criminal Law § 6.2.

3la

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

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

anc. 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, arguendo,

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

criminalizes the knowing destruction, concealment, removal,

confiscation, or possession of immigration documents of anoth-

er, may come the closest — predictably enough, as crimina? pos-

session statutes often straddle the line between regulating an

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

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

We have held that constructive possession — established by a

showing that “a defendant knowingly had the power and the in-

tention at a given time to exercise dominion and control over

[an item]” — can be sufficient to render a defendant criminally

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

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

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

ration omitted) (constructive possession of a firearm was suffi-

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

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

tive possession of narcotics was sufficient for a conviction under

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

session, one could violate § 1592 by forming the specific intent

to possess the immigration documents of another while having

knowing control over them — in theory, without taking any af-

firmative act. Even accounting for this possibility, however,

possessory offenses do not expressly impose affirmative duties

to act in the manner of traditional omissions statutes, which, in

effect, require affirmative conduct to be taken to avoid commis-

32a

that Mahender Sabhnani owed a common law duty

to the maids that was sufficiently well established in

our legal tradition and practice that it constitutes

part of the background common law against which

these statutes should be interpreted, see, e.g., Moris-

sette v. United States, 342 U.S. 246, 250, 72 S. Ct.

240, 96 L. Ed. 288 (1952); United States v. Rybicki,

354 F.3d 124, 135-36 (2d Cir. 2003) (en banc), the

jury here was not charged on the nature of this duty

nor instructed as to the factors it should consider in

determining whether the duty was discharged. See

Jones v. United States, 308 F.2d 307, 310-11, 113

U.S. App. D.C. 352 (D.C. Cir. 1962) (reversing on

plain error review where a jury was not instructed as

to the nature of the common law duty that was the

basis for omissions liability).

We need not decide the question whether in the

circumstances of this case Mahender Sabhnani could

properly be convicted based upon an omission to act,

however, because we reject his claim that the district

court’s instruction on willfulness. considered in the

context of the aiding and abetting instruction as a

whole, rendered the instructions so confusing as to

permit the jury to convict him on this basis. To be

clear, the jury was instructed that participation in a

crime is willful if action is taken voluntarily and in-

tentionally, or in the case of a failure to act, with

specific intent to fail to do something the law re-

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

to register or update a registration as a sex offender by one who

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

of registration by one required to do so under the Military Se-

lective Service Act).

33a

quires. Drawn nearly verbatim from the model jury

instruction in the leading treatise on the subject, see

1 Leonard Sand et al., Modern Federal Jury Instruc-

tions — Criminal, P 11.01, at 11-4 (2008 ed.), this in-

struction was not inaccurate, however, but simply

extraneous to this case — at least absent further in-

struction as to a legal theory that would support Jia-

bility based on a failu~e to act.

When a jury charge contains '!anguage that could

potentially confuse the jury as to the applicable law,

we look to see whether the charge as a whole ade-

quately instructed the jury as to the applicable legal

standard. Cupp, 414 U.S. at 146-47. Here, the jury

was never told that either Mahender or Varsha

Sabhnani could be convicted of aiding and abetting

based upon a failure to act. Indeed, immediately be-

fore the instruction on willfulness, the jury was in-

formed that “[iJn order to aid or abet another to

commit a crime, it is necessary that the defendant

willfully and knowingly associate herself in some

way with the crime and that she or he willfully and

knowingly seek by some act to help make the crime

succeed.” Tr. 5035 (emphasis added). Immediately

after the challenged language, the jury was in-

structed that the “mere presence of a defendant

where a crime is being committed, even coupled with

knowledge by the defendant that a crime is being

committed, or the mere acquiescence by a defendant

in the criminal conduct of others, even with guilty

knowledge, is not sufficient to establish aiding and

abetting.” Tr. 5036. Cf. United States v. Elfgeeh, 515

F.3d 100, 134-35 (2d Cir. 2008) (finding it “highly un-

likely” that jury relied on erroneous sentence that

was immediately preceded and followed by correct

statements of the charge). An aider and abettor, the

district court said, must “know that the crime is be-

34a

ing committed and act in a way which is intended to

bring about [its] success.” (emphasis added).

The repeated emphasis in the instructions on the

proposition that an aider and abettor must “seek by

some act to make the crime succeed” was further

stressed in the judge’s summary of the charge. The

district court instructed the jury to ask itself three

questions to determine whether a defendant aided or

abetted the commission of a crime:

Did the defendant participate in the crime

charged as something she or he wished to

bring about?

Did the defendant associate herself or

himself with the criminal venture knowingly

and willfully?

Did the defendant seek by her or his ac-

tions to make the criminal venture succeed?

Tr. 5036 (emphasis added). If the government proved

beyond a reasonable doubt that the defendant did

these things, the district court instructed, “then the

defendant is an aider and abettor and therefore

guilty of the offense.” But “if on the other hand your

answers to any one of these series of questions .. . 1s

no,” Judge Spatt continued, “then the defendant is

not an aider and abettor and you must find him or

her not guilty as to aiding and abetting.” Tr. 5036-37.

We conclude that the charge’s repeated emphasis

on the necessity of acting in order to aid and abet,

coupled with the crystal clear summary, was suffi-

cient to ameliorate any possible confusion that might

conceivably have arisen from the willfulness instruc-

tion. See Brown v. Greene, 577 F.3d 107, 111-12 (2d

Cir. 2009) (collecting cases upholding jury charges

35a

containing language that might have created some

confusion about the burden of proof, because the

charges as a whole made clear that the cases were

governed by the “beyond a reasonable doubt” stan-

dard); United States v. Locascio, 6 F.3d 924, 941 (2d

Cir. 1993) (ambiguous summary of element did not

warrant reversal where earlier discussion of element

was clear). This was not a case in which the jury in-

structions were insufficiently detailed as to an essen-

tial element of the crime and were never clarified by

other language, such that the jury could have con-

victed based on a legally erroneous theory. See, e.g.,

United States v. Hassan, 578 F.3d 108, 129-34 (2d

Cir. 2008) (instructions that failed to explain to jury

that defendant needed to have intent to import par-

ticular controlled substance and that other sub-

stances referenced in the evidence were not con-

trolled substances left open possibility for jury to

convict on importation of other substances that were

not illegal). Here, the instructions clarified what was

required to convict, and the judge’s three-question

summary of the charge was perfectly clear, removing

the possibility of any confusion on the jury’s part. Cf.

United States v. Moran, 493 F.3d 1002, 1009-10 (9th

Cir. 2007) (while instructions might have had “minor

ambiguity” after a “careful picking apart” of their

wording, clear summarizing or overview paragraph

that conveys basic point to jury can cure potential er-

ror).

Mahender Sabhnani makes two arguments in

reply. First, he contends that Judge Spatt erroneous-

ly believed that he could be convicted for aiding and

abetting based solely on his failures to act. To be

sure, when counsv! objected to the instruction on

willfulness during the charging conference, Judge

Spatt did overrule the objection, suggesting that the

36a

employer of a domestic servant does have an obliga-

tion to act when he allows “for five years

... beatings, deprivation, lack of food, sleeping on

the floor, wearing tattered gowns, [and] hit[s] with a

stick” to take place in his home. Tr. 4427. Notably,

however, in denying Mahender’s Rule 29 motion, the

judge noted that “there was sufficient evidence at the

trial to prove that Mahender affirmatively acted with

the specific intent to advance the crimes alleged in

the indictment.” Even more importantly, the jury on-

ly heard the instructions, not Judge Spatt’s opinion

at the charging conference, and our concern on ap-

peal is the effect of jury instructions, not “the district

court's purpose in stating the jury instructions as it

did.” Hassan, 578 F.3d at 132. Mahender points next

to the government’s summation. In his sole reference

to the necessary requirements for aiding and abet-

ting, the government attorney stated without objec-

tion during the main summation that:

You don’t have to have actually committed

the crime to be an aider and abettor. All that

needs to be established is that somebody else

committed the crime, and that you knowingly

and willfully associated yourself with that

other person in some way to help with the

crime. Help with the crime. And that can be

done by actions, or it can be done by a failure

to act.

A failure to act with specific intent, to fail

to do something the law requires.

Tr. 4693. Mahender contends that these words

created a “not insubstantial)” risk that the willfulness

instruction led the jurors to convict him on an invalid

basis. Mahender’s Br. 29. Here, however, we have al-

ready determined that the jury instructions, read as

37a

a whole, clearly apprised the jury of what it was re-

quired to find in order to convict. We agree that a

party’s summation can heighten the already present

risk that an erroneous jury instruction may mislead

the jury. See, e.g., United States v. Joseph, 542 F.3d

13, 18-19 (2d Cir. 2008). But that situation is not this

case. The jury instructions, which we presume that

jurors follow, see, e.g., United States v. Stewart, 433

F.3d 273, 310 (2d Cir. 2006), were clear that Ma-

hender could not be convicted solely because he knew

of Varsha’s crimes or acquiesced in her actions, with-

out acting himself. And to the extent the prosecutor's

summation did misstate the applicable law, Ma-

hender raised no objection below and does not press

the issue here in those terms.

Given our conclusion that the instructions as a

whole adequately conveyed to the jury the law it was

to apply, we need not and do not address Mahender’s

argument that the error he alleges was sufficiently

prejudicial to taint each of his convictions, including

the four separate conspiracy convictions to which the

challenged instructions did not apply. We conclude

simply that the aiding and abetting instruction, con-

sidered as a whole, adequately conveyed to the jury

the necessary and applicable requirements for aiding

and abetting, and that Mahender’s argument to the

contrary is without merit.

B. Sufficiency of the Evidence

Mahender also challenges the sufficiency of the

evidence to support his convictions for forced labor,

peonage, document servitude, and conspiracy to

commit these crimes. We review de novo challenges

to the sufficiency of the evidence. United States v.

Abdulle, 564 F.3d 119, 125 (2d Cir. 2009). In review-

ing a claim that the evidence was insufficient to sus-

38a

tain a defendant’s conviction, “we view the evidence

in the light most favorable to the government, draw-

ing all inferences in the government’s favor and de-

ferring to the jury’s assessments of the witnesses’

credibility.” United States vy. Parkes, 497 F.3d 220,

225 (2d Cir. 2007) (quoting United States v. Arena,

180 F.3d 380, 391 (2d Cir. 1999)) (internal quotation

marks omitted). “We will sustain the jury’s verdict/s]

so long as any trier of fact could have found the es-

sential elements of the crime beyond a reasonable

doubt.” Jd. (quoting Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)) (in-

ternal quotation marks omitted).

Mahender’s main contention on appeal is that

the trial evidence was insufficient to show he had

knowledge that Varsha was threatening or physical-

ly abusing the maids — and thus a fortiori that the

evidence was inadequate to establish his intent to

participate in the crimes of forced labor and peonage,

whether as a principal, an aider and abettor, or a

conspirator. Mahender does not directly challenge

the sufficiency of the evidence to support his convic-

tions for document servitude and conspiracy to com-

mit document servitude, but instead argues that be-

cause the evidence was insufficient to sustain his

forced labor and peonage convictions, he cannot be

guilty of these “derivative” offenses. For the following

reasons, we disagree with these contentions.

5: Forced Labor and Peonage Convictions

With regard to the forced labor charges, 18

U.S.C. § 1589 at the time of the Sabhnanis’ convic-

tions prohibited “knowingly provid[ing] or obtain[ing}

the labor or services of a person by,” inter alia,

“threats of serious harm to, or physical restraint

against, that person,” “by means of any scheme, plan

39a

or pattern intended to cause the person to believe

that, if the person did not perform such labor

. that person or another person would suffer se-

rious harm or physica! restraint,” or “by means of the

abuse or threatened abuse of law or the legal

process.” 18 U.S.C. § 1589(a)(1)-(3) (2000). The jury

convicted Mahender of obtaining the labor or services

of Samirah and Enung both “through threats of se-

rious harm or physical restraint against [them]” and

“through a scheme, plan or pattern intended to cause

[them] to believe that non-performance would result

in serious harm.” Verdict Sheet 2-4. The peonage sta-

tute, 18 U.S.C. A LOCR(a), pronibite peice or re-

To prove peonage, “the government must show that

the defendant intentionally held a person against his

or her will and coerced that person to work in order

to satisfy a debt by (1) physical restraint or force, (2)

legal coercion, or (3) threats of legal coercion or phys-

ical force.” United States v. Farrell, 563 F.3d 364, 372

(8th Cir. 2009).

At the start, the jury had a more than ample ba-

sis on which to conclude that Mahender knew of both

the threatened and actual maltreatment of Samirah

and Enung. “[J]urors are entitled, and routinely en-

couraged, to rely on their common sense and expe-

rience in drawing inferences” of a deferidant’s know-

ledge and his criminal intent. United States v. Huezo,

546 F.3d 174, 182 (2d Cir. 2008). Here, Samirah and

Enung lived and worked in Mahender’s home — a

home from which he also operated his business — for

five and two-and-a-half years, respectively. The jury

was entitled to credit the maids’ testimony that dur-

ing this time Mahender witnessed his wife humiliate

them — when, for instance, Enung was required to

stand in one place until she confessed to stealing

40a

chocolate and Samirah was forced to pick up one by

one the tiny pieces of paper that Varsha Sabhnani

had just thrown to the ground. There was substan-

tial evidence, moreover, that Mahender observed

Samirah eat from the trash and wear rags that were

inadequate even to cover her body. Indeed, Enung

identified one such rag and confirmed that Mahend-

er, along with the rest of the family, observed Sami-

rah wear it every day — even after it had been re-

peatedly cut up and resewn at Varsha’s command,

“every time [Samirah] made [a] mistake.” Tr. 3196.

Samirah testified that Mahender saw her “every

day” between 2005 and 2007, Tr. 2367 — a period

during which Varsha repeatedly cut Samirah on the

face with a knife and, indeed, on one occasion (after a

report from her husband) beat Samirah about the

face with an umbrella, leaving Samirah’s face bleed-

ing and swollen. Tr. 1855-57. Samirah testified that

Mahender saw her wearing rags and that he “[saw

her] face, ...the clothings ... [and] all the marks

from the beating from missus. I would cry and the

mister would look at me.” Tr. 2368. Litras, Mahend-

er’s employee, did not live in the Sabhnani household

and saw the maids only infrequently. Tellingly, how-

ever, even apart from the injuries the maids directly

showed her in April 2007, she testified to noticing

their “very messy .. . tattered and torn” clothing and,

on one occasion, blood dripping from Samirah’s hair-

line. Tr. 3860. The jury clearly had more than ample

evidence from which to infer Mahender’s awareness

of the maids’ plight.

There was also sufficient evidence of Mahender’s

intent to use Varsha’s threats and maltreatment

against the maids in order to obtain their labor. Sa

mirah testified that on one occasion when she fell as-

leep cleaning a bathroom of one of the children, “mis-

4la

ter told missus that Sami [Samirah] was not wash-

ing, but ... was sleeping in the bathroom” and Var-

sha Sabhnani “came with something to hit.” Tr.

1869. Samirah, afraid, ran away and urinated by the

stairs, soiling Mahender’s shoes as two of the child-

ren cried. Samirah further testified as follows:

@. 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. And

another time ...it was during the fasting

months for the Muslims. I couldn’t fast be-

cause I didn’t eat in — I ate [food] from the

garbage, and the Mister saw it, and told the

Missus about it, and immediately the Missus

got very angry. “You again stole the food?”

And I said I found it in the garbage, and I

was hit.

Tr. 1848-49. It is of no importance that, as Mahender

points out, Samirah testified that he was not present

when Varsha hit Samirah for eating the food, nor

does it matter whether he was present on the other

occasions when she was punished after he reported

her misdeeds. The jury was not required, as Ma-

hender contends, to infer that he was acting charita-

bly by reporting the maids’ conduct to his wife. On

the contrary, the jury was entitled to infer from these

incidents and from the other evidence of Mahender’s

knowledge of abuse that when Mahender reported

Samirah’s conduct to Varsha, he knew how she

would react.

42a

Mahender contends that even if there is suffi-

cient evidence to support his conviction for forced la-

bor, his peonage conviction is infirm because there

was no direct evidence that he held Samirah and

Enung in involuntary servitude in satisfaction of a

real or alleged debt. Samirah, Enung, and Samirah’s

daughter, Lita, testified that Varsha told them re-

peatedly that if the maids wanted to be returned to

Indonesia they would have to reimburse the costs of

bringing them to the United States. Enung specifi-

cally testified that she did not run away from the

Sabhnanis’ residence in part because she “still

owe[d]” months of work to Mahender and Varsha. “I

was very frightened. I didn’t dare to go out of the

house prior to the debt being paid off.” Tr. 3188. Ma-

hender concedes that this testimony, if credited,

might be adequate to support his wife’s conviction.

He contends, however, that it is insufficient to estab-

lish his intent to hold the maids in satisfaction of a

debt because he “was not present during any conver-

sation about repaying money.” Mahender’s Br. at 58.

We disagree that this is the relevant question, and

that the evidence was insufficient in any respect.

18 U.S.C. § 1581(a) prohibits the holding of a

person in “a condition of peonage.” Peonage is com-

pulsory service in payment of a debt that can be real

or artificially created. See Bailey v. Alabama, 219

U.S. 219, 242, 31 8. Ct. 145, 55 L. Ed. 191 (1911);

Pierce v. United States, 146 F.2d 84, 86 (5th Cir.

1944). Here, the jury was entitled to infer first that

Mahender knowingly participated in the creation of

an obligation on the maids’ part to work. The jury

was entitled to infer that the appellants paid for the

maids’ travel to the United States based not only on

the involvement of Varsha Sabhnani’s family, but al-

so upon Varsha’s statements that this money had to

43a

be repaid if the maids were to leave. Samirah testi-

fied, for instance, that when she begged to be given

away she was told by Varsha that she was brought to

the United States in an airplane and that if she was

to be given to someone else, that cost would have to

be paid back: “[T]he missus answered, you think I

have money tree? You came here with money. If you

had 100 million [rupiahs], I'll give you to someone

else.” Tr. 1881. Enung also testified that her salary

was paid “up-front” in its entirety, and that Varsha

was supposed to be the one paying it. The jury was

permitted reasonably to infer that Mahender knew of

these payments, and that they evinced an intent to

create a debt-like obligation on the maids to work.

Cf. Pierce, 146 F.2d at 85-86 (evidence sufficient to

support peonage conviction when defendant, among

other acts, paid the full fine »wed by incarcerated

women in exchange for them agreeing to work for

him); Bernal v. United States, 241 F. 339, 341 (5th

Cir. 1917) (defendant convicted of peonage paid for

victims’ transportation to come to work for her).

Second, the evidence also sufficiently demon-

strated that Mahender, who benefitted from the ma-

ids’ labor, knew that the maids were being forced to

work and that the maids were completely dependent

on the Sabhnanis for food, clothing, and shelter, the

family’s provision of which contributed to the maids’

obligated status. Cf. Pierce, 146 F.2d at 85-86 (defen-

dant contributed to victims’ indebtedness by buying

them clothes and other gifts). Indeed, the record

shows that during the summer months when the

Sabhnanis departed, neglecting to leave adequate

provisions for the maids, it was Mahender who called

Litras to put her in touch with his wife, who in-

structed Litras to obtain food — usually many loaves

of bread — for the maids, and to pay for it with petty

44a

cash from Mahender’s office.'4 From the evidence

that Mahender reported on Samirah when she fo-

raged in the garbage for something to eat, the jury

was entitled to infer both that Mahender knew the

maids were in a condition cf abject dependence, and

that he both intended and acted to keep them in that

state. Under these circumstances, the evidence sup-

ported the conclusion that Mahender, having kno-

wingly contributed to the creation of the maids’ in-

debted situation and knowing of their dependence on

the family, forced the maids to work through the

threat of violence from his wife. We therefore con-

clude that there was sufficient circumstantial evi-

dence from which the jury could infer that Mahender

acted to aid and abet the holding of the maids in sa-

tisfaction of their “obligations” to the Sabhnanis.

For substantially the same reasons, we also re-

ject Mahender’s claim that the evidence was insuffi-

cient to support his convictions for conspiracy to

commit forced labor and peonage. The existence of a

criminal agreement between two persons can be in-

ferred from circumstantial evidence. Huezo, 546 F.3d

at 180; see also United States vy. Borelli, 336 F.2d

376, 384 (2d Cir. 1964) (Friendly, J.) (“Although it is

usual and often necessary in conspiracy cases for the

agreement to be proved by inference from acts, the

gist of the offense remains the agreement, and it is

therefore essential to determine what kind of agree-

14 Litras testified that generally speaking her only contact with

the maids during the summer months was on these occasions

when she passed food to them through a partially opened door —

and that she never saw the maids outside when the Sabhnanis

were away.

45a

ment or understanding existed as to each defen-

dant.”); United States v. Amiel, 95 F.3d 135, 144 (2d

Cir. 1996) (“A tacit understanding will suffice to

show agreement for purposes of a conspiracy convic-

tion. There need not be any written statement or

even a speaking of words which expressly communi-

cates agreement.”). As to a defendant’s participation,

even “a single act may be sufficient for an inference

of involvement ...if the act is of a nature justifying

an inference of knowledge of the broader conspiracy.”

Huezo, 546 F.3d at 180 (quoting United Staies v.

Tramunti, 513 F.2d 1087, 1112 (2d Cir. 1975)) (in-

ternal quotation marks omitted). Here, the evidence

is ample that Mahender assisted his wife in bringing

the maids to his home, that he did so to benefit from

their labor, which he helped to direct, and that,

knowing of his wife’s threats and punishments, he

aided her in meting them out. This evidence provides

more than a sufficient basis on which to conclude

that there was a “tacit understanding” between Ma-

hender and Varsha that the maids would be held in

involuntary servitude and peonage in the Sabhnanis’

home.

2. Other Convictions

As already noted, Mahender does not directly

challenge the sufficiency of the evidence to support

his convictions for document servitude and conspira-

cy to commit document servitude. Instead, he argues

that, because the evidence was insufficient to sup-

port his forced labor and peonage convictions, he

necessarily cannot be guilty of the “derivative” of-

fense of document servitude. Mahender’s Br. 64. Ma-

hender’s argument is based on a fundamental mi-

sreading of the document servitude statute. Section

1592 of Title 18 provides that “[w]hoever knowingly

46a

destroys, conceals, removes, confiscates, or possesses

any actual or purported passport or other immigra-

tion document, or any other actual or purported gov-

ernment identification document, of another person”

either “in the course of” a violation of one of a num-

ber of statutes, including the forced labor and peo-

nage statutes, or “with the intent to violate” the

same statutes, 1s guilty of a crime. 18 U.S.C.

§§ 1592(a)(1)-(2). Mahender continually refers to this

crime as an offense that is merely “derivative” of the

forced labor and peonage crimes. This is incorrect: a

defendant may be convicted under § 1592 for kno-

wingly concealing immigration documents merely

“with intent to violate” the forced labor or peonage

statutes. 18 U.S.C. § 1592(a)(2).

In any event, we have already determined that

Mahender’s convictions for forced labor and peonage

were supported by sufficient evidence. Here, the evi-

dence that Samirah’s and Enung’s passports and

other immigration documents were kept in a locked

cupboard in the closet adjacent to the Sabhnanis’

master beagroom was ample. The jury could infer

Mahender’s knowing possession of Samirah’s and

Enung’s passports and other immigration documents

from the fact that his own passport was kept in the

same cupboard, and from the closet’s position in the

house. Therefore, Mahender’s convictions for docu-

ment servitude and conspiracy to commit document

servitude are supported by sufficient evidence.

Finally, without challenging the sufficiency of

the evidence to support his conviction, Mahender

suggests that his conviction for harboring illegal

aliens should be vacated because the harboring sta-

tute, 8 U.S.C. § 1324(a)(1)(A), was not “designed” to

cover a situation in which a defendant forces an alien

47a

who wishes to leave the country to remain here. Such

conduct is “outside the scopes” of the statute, which

was only intended to criminalize conduct facilitating

an alien’s illegal presence in the United States. Ma-

hender’s Br. 64-65. Suffice it to say that the text of

the statute cannot support such limitations. The sta-

tute renders guilty of a crime any person who,

“knowing 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, harbors, or

shields from detection, or attempts to conceal, har-

bor, or shield from detection, such alien in any place,

including any building or any means of transporta-

tion.” 8 U.S.C. § 1324(a)(1)(A)(iii). The statute does

not attempt to distinguish among various reasons

why an alien has “come to, entered, or remains” in

the country illegally, nor does it distinguish among

various motives a defendant might have for “conceal-

ing, harboring, or shielding” the alien. “[Section]}

1324, on its face, does not restrict the persons within

its reach.” United States v. Kim, 193 F.3d 567, 573

(2d Cir. 1999). We decline Mahender’s invitation to

reac words into the statute that are not there.

» «he Refusal of Prosecution Witnesses To

Speak to Defense Counsel

On cross-examination by Mahender’s counsel,

several of the prosecution witnesses, including Debo-

rah Litras, admitted that they had refused to speak

to defense counsel prior to the trial. In the jury in-

structions, the district court told the jury that de-

fense counsel had acted properly in attempting to in-

terview witnesses, but that the witnesses were also

within their rights to refuse to speak:

Also, you have heard testimony from wit-

nesses that attorney Stephen Scaring [Ma-

48a

hender’s trial counsel] asked to speak to

them prior to their testimony. I instruct you

that Mr. Scaring had a right to attempt to in-

terview these witnesses before they took the

stand. However, I also instruct you that

these witnesses had a right to decline to

speak to him. And no unfavorable inference

should be drawn egainst them because of

that declination.

Tr. 5005. Judge Spatt overruled the defense’s objec-

tion to this instruction at the charging conference.

Appellants argue that the district judge’s in-

struction that the jury could draw no unfavorable in-

ference against prosecution witnesses from the fact

that they refused to be interviewed by the defense

was erroneous because it prevented the jury from

evaluating a fact that went to the issue of witness

credibility. Absent the instruction, the Sabhnanis

contend, the jury could have reasoned that because

these witnesses refused to speak to defense counsel,

they must have been biased against the Sabhnanis.

Moreover, the Sabhnanis argue, the instruction may

have cast Mahender’s trial counsel in a negative

light for even asking witnesses the question whether

they had refused to speak to the defense prior to tri-

al.

We review a claim of error in the content of jury

instructions de novo. United States v. Quattrone, 441

F.3d 153, 177 (2d Cir. 2006). We have no difficulty

concluding that there was no error in the instruction

here. Mahender himself concedes that the instruc-

tion was correct insofar as it recognized that wit-

nesses have a right to decline to be interviewed. See,

e.g., United States v. Agostino, 132 F.3d 1183, 1191

(7th Cir. 1997); United States v. Miller, 381 F.2d 529,

49a

538 n.7 (2d Cir. 1967) (“While the Government is

doubtless bound not to obstruct a defendant’s access

to a prospective witness, we know of no rule requir-

ing the witness to submit to an interview.”); United

States v. James, No. 02 CV 0778(SJ), 2007 U.S. Dist.

LEXIS 25862, 2007 WL 914242, at *15 n.10

(E.D.N.Y. Mar. 21, 2007). The instruction did noth-

ing more than inform the jury of this mght and in-

struct that a witness does not act wrongfully by exer-

cising it. The defense was still free to suggest — and

did, through cross-examination and in summation —

that the refusal to meet with defense counsel could

suggest a witness’s greater sympathy for or affilia-

tion with the other side of the case.

Moreover, the jury was explicitly charged that it

should evaluate the credibility of witnesses based on

“the circumstances under which each witness testi-

fied” and “every matter in evidence that tends to

show whether a witness is worthy of belief.” Tr. 5011.

Among these matters, the judge specifically in-

structed the jury that:

How you choose to believe a witness may be

influenced by any bias, resentment or anger

that you may perceive the witness to have.

Does the witness have a relationship with

the government or a defendant that may af-

fect how he or she testified? Does the witness

have some incentive, loyalty or motive that

might cause him or her to shade the truth?

Or does the witness have some bias, preju-

dice or hostility that may have caused the

witness consciously or not to give you some-

thing other than a complete, accurate ac-

count of the facts?

50a

Tr. 5012 (emphasis added). This charge clearly al-

lowed the jury to take into account any bias a wit-

ness might have, including any bias resulting from a

relationship with the government. Finally, we reject

as meritless any claim that the instructions could

fairly be read to cast aspersions on Mahender’s trial

counsel, given the court’s explicit statement that

counsel had every right to attempt to interview the

prosecution’s witnesses.

IV. The Defense’s Motion to Re-Open Foilowing

the Commencement of Jury Deliberations

The Sabhnanis next contend that the district

court abused its discretion in failing to grant their

motion to reopen the proceedings after the jury had

begun its deliberations in order to present newly dis-

covered evidence of the alleged bias of a prosecution

witness. After closing arguments, during which some

of her testimony had been attacked by the defense,

prosecution witness Deborah Litras sent an e-mail to

a family friend that read in relevant part as follows:

I really do hope that the “theatrics” of the

closing arguments by the defense will not

sway the jury away from the right decision.

The thing that scares me is that there never

seems to be any justice in the world. I guess

we'll just have to wait and see. I don’t think

it’s going to be much longer. See ‘ya. Deb.

Tr. 5150. The defense, upon discovering the e-mail,

moved to reopen the case and to recall Litras for the

purpose of questioning her about it. Defense counse!

argued that the e-mail showed that Litras was bi-

ased in favor of conviction. ‘I'he prosecution argued

that the e-mail, fairly read, did not indicate a bias,

but a desire for justice to be done, and also that it

5la

was irrelevant to any issue the jury was considering

in that it principally expressed Litras’s opinion of the

closing arguments.

The district court denied the defense motion to

reopen. The judge noted that the e-mail did not ex-

pressly state that Litras was biased in favor of con-

viction and that, in any event, her trial testimony

was explicit that she “believed the maids’ com-

plaints.” Tr. 5188. “It was obvious from [Litras’s] tes-

timony ... that she favored the maids [and] felt sor-

ry for the maids, and she was behind the maids in

this case.” Jd. Because her testimony indicated that

Litras “favor[ed] the maids over her own boss,” Tr.

5189, and because the jury also heard evidence that

she had refused to speak to defense counsel while

meeting with the government several times, Litras’s

leanings were already clear. The court also noted

that reopening the case solely for testimony regard-

ing the e-mail would create enormous practical diffi-

culties and would be needlessly disruptive of the

jury’s deliberations. Finally, the court agreed with

the prosecution that the e-mail was irrelevant to the

question whether Litras was biased when she testi-

fied, and only reflected her “dismay .. . [at] the thea-

trics of the closing argument[s], which somewhat de-

nigrated her.” Tr. 5196.

We review a district court’s determination

whether to reopen a case after the jury has begun its

deliberations for abuse of discretion. See United

States v. Crawford, 533 F.3d 133, 138 (2d Cir. 2008);

United States v. Golomb, 754 F.2d 86, 89 (2d Cir.

1985). In Crawford, we noted the factors that a dis-

trict judge should consider in exercising this discre-

tion:

52a

The court must consider the timeliness of the

motion [to reopen], the character of the tes-

timony, and the effect of granting the motion.

The party moving to reopen should provide a

reasonable explanation for failure to present

the evidence in its case-in-chief. The evidence

proffered should be relevant, admissible,

technically adequate, and helpful to the jury

in ascertaining the guilt or innocence of the

accused. The belated receipt of such testimo-

ny should not imbue the evidence with dis-

torted importance, prejudice the opposing

party’s case, or preclude an adversary from

having an adequate opportunity to meet the

additional evidence offered.

Crawford, 533 F.3d at 138 (quoting United States v.

Nunez, 432 F.3d 573, 579 (4th Cir. 2005)) (emphasis

omitted). Considering the Crawford factors, timeli-

ness cannot be counted against the appellants here,

as their counsel obtained Litras’s e-mail only just be-

fore making the motion to reopen. Each of the other

relevant factors, however, weighs against the Sahb-

nanis’ position. We conclude based on these factors

that the district court did not abuse its discretion.

At the start, the parties disagree about whether,

in assessing the character of the evidence, we should

construe it in the light most favorable to the defense.

We need not resolve this question, however, because

even viewing the e-mail and its potential effect in the

Sabhnanis’ favor, we conclude that the e-mail’s signi-

ficance did not merit reopening. We agree with the

district court that to the extent the e-mail tended to

show that Litras favored the maids, it was already

obvious from her testimony that she believed the ma-

ids’ stories of abuse and sympathized with them. Li-

53a

tras testified that she “felt sorry” for the maids, Tr.

3937, that she provided the maids with food surrepti-

tiously and hid the evidence from the Sabhnanis,

that she was “upset” after Samirah displayed her in-

juries, Tr. 3874, 3901, and that she was “glad” when

she learned that Samirah had fled the Sabhnanis’

home. Tr. 3969. Mahender contends that the e-mail

would have corrected a misimpression created by the

government that Litras, who suffered from cancer,

was reluctant to testify because doing so would place

her job and her health insurance in jeopardy. Despite

her personal concerns, however, Litras made it ab-

undantly clear to the jury that her sympathies were

with the maids and that, for this reason, she was not

a reluctant witness. The e-mail would thus have

added very little to what the jury had already heard.

The district court also properly considered the

practical difficulties that would be caused by stop-

ping the jury’s deliberations and recalling Litras to

testify. The potential for such a course of events to

give “distorted importance” to evidence that is of

marginal significance is obvious: here, there was a

real risk that the jury would be distracted in its deli-

berations from the main issues. See Crawford, 533

F.3d at 140-41 (collecting cases noting a presumption

that the significance of evidence introduced after the

jury has begun deliberating will be misconstrued).

We conclude that the district court’s reasons for de-

nying the motion — that the e-mail was of little or no

evidentiary value in the determination of the Sabh-

nanis’ guilt, that it would not meaningfully add to

what the jury already knew or could infer about Li-

tras’s leanings, and that the disruption that would

ensue would outweigh any potential usefulness of the

evidence to the jury — were sound. The district court

54a

did not err in denying the motion to reopen, much

less abuse its discretion.

V. The Allegation of Juror Misconduct

About three weeks before the jury verdict, which

was returned on December 17, 2007, a photographer

for the New York Daily News, Stephen Barcelo, was

sitting in his car in the parking lot of the federal

courthouse in Central Islip, New York, where the

trial was taking place, at about 5:00 p.m. His car was

in the first row of parked cars, where Barcelo often

parked in order to photograph the defendants and

the lawyers in the case as they arrived and departed.

On this occasion, Barcelo’s car window was partially

open. He observed a group of people leave the court-

house. Based on the time of day and the fact that he

recognized some of them, he believed the group to be

the Sabhnani jurors. Two women from the group —

women he did not recognize — passed by his car door,

speaking inaudibly. A minute or two later, he heard

from behind his car a woman’s voice loudly saying

the words “guilty, guilty” in a laughing manner. Bar-

celo was then facing forward in his car in a dark

parking lot, and he did not see who made the state-

ment. Barcelo related this incident to fellow photo-

grapher Mary McLaughlin of the New York Post and

to a reporter from the Daily News, Richard Weir.

Kieran Crowley, a reporter for the New York Post,

overheard Barcelo’s statements to McLaughlin and

related them to Mahender’s defense counsel on or

about December 19 — two days after the jury verdict.

The Sabhnanis, contending that the incident

demonstrated that the Sabhnani jurors had engaged

in impermissible deliberations before the close of

evidence, moved for a new trial pursuant to Fed. RK.

Crim. P. 33 and also for a hearing at which jurors

55a

would be required to testify. The district court held a

hearing at which Barcelo appeared. Barcelo testified

that because the parking lot was dark that night, he

could not and did not recognize the two women as

members of the Sabhnani jury, but merely assumed

that they were. Moreover, Barcelo admitted that as

of the day of his testimony, he probably couldn't

identify any member of the jury because he did not

regularly visit the courtroom during the trial, but

mostly observed groups of people coming in and leav-

ing the courthouse. Barcelo acknowledged that there

were other people in the parking lot that evening, in-

cluding spectators and jurors from other trials, and

that, because he did not witness the conversation, he

could not say for certain who made the statement

“guilty, guilty” or even whether it was one of the two

women he had initially seen. Barcelo stated he could

not hear any of the woman’s other words — and so

apparently could not say whether she was discussing

a case, a movie, or her own failure to go to the gym.

He could not identify her voice, or provide any addi-

tional context for her statement.

Judge Spatt denied the defense motion for a new

trial and also the motion for a hearing that would in-

clude juror testimony. See United States v. Sabhna-

ni, 529 F. Supp. 2d 384 (E.D.N.Y. 2008) (district

court opinion denying motion for new trial and evi-

dentiary hearing on juror misconduct). The judge ac-

curately noted that Barcelo’s evidence fell far short of

establishing that any misconduct had occurred. The

judge expressed doubt at Barcelo’s ability to identify

and recognize members of the Sabhnani jury in light

of his testimony that he did not visit the courtroom

for any significant period of time. Sabhnani, 529 F.

Supp. 2d at 389. The court noted that Barcelo could

not testify to the context in which the “guilty, guilty”

56a

statement was made, could not identify the person

who made the statement, and had admitted during

his testimony that he only assumed the speaker was

a member of the Sabhnani jury. /d. at 389-90. Noting

that the facts asserted were “vague and uncertain,”

the judge concluded that “the testimony and affida-

vits [were] insufficient to justify a further hearing

with testimony from the jurors, and certainly not a

new trial.” Id. at 390. The judge further concluded

that, even if the speaker had been shown to be a

member of the Sabhnani jury and to have been refer-

ring to the case, “[o]ne juror’s potentially out-of-

context, single word comment, does not demonstrate

that the jurors prematurely deliberated [and] does

not demonstrate that the juror would be unreceptive

to opposing arguments or that any juror failed to

participate in deliberations in good faith.” Jd. at 393.

The judge noted based on his own observations that

the

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