# Petition for Writ of Certiorari — Sabhnani v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2011
- **Citation:** 562 U.S. 1194

## Text

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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CONSTITUTIONAL PROVISION AND

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

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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
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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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a ge re bed e ae Uia ds cadealesaaemoais 3
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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 jur

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2587%3A1. Public record. Not legal advice.