USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1645
UNITED STATES OF AMERICA,
Appellee,
v.
TALAL H. ALZANKI,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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Before
Selya, Cyr and Stahl,
Circuit Judges.
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Michael A. Collora, with whom David A. Bunis and Dwyer & Collora
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were on brief for appellant.
S. Theodore Merritt, Assistant United States Attorney, with whom
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Deval L. Patrick, Assistant Attorney General, Donald K. Stern, United
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States Attorney, and Steven M. Dettelbach, Trial Attorney, United
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States Department of Justice, were on brief for appellee.
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June 1, 1995
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CYR, Circuit Judge. Defendant Talal H. Alzanki appeals
CYR, Circuit Judge
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from a district court judgment convicting and sentencing him
under 18 U.S.C. 371 and 1584, for holding a household employee
in involuntary servitude. We affirm.
I
I
BACKGROUND1
BACKGROUND
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At the end of the Gulf War, Vasantha Katudeniye Gedara
("Gedara"), a native of Sri Lanka, was employed by appellant
Talal Alzanki's family for a brief time as a domestic servant in
their Kuwaiti residence. The Alzanki family prevented Gedara
from leaving their residence, by retaining her passport and
warning her that she would be subject to arrest and physical
abuse by the Kuwaiti police should she venture outside. Gedara
was informed that she soon would be sent to the United States to
work for appellant Talal Alzanki and his wife, Abair, at a
monthly salary of $250, which was reduced to $120 before she
departed Kuwait.
Immediately upon her arrival at appellant's apartment
in Quincy, Massachusetts, on August 28, 1992, Gedara's passport
was confiscated by appellant, who told her that she was not to
leave the apartment alone. She was not permitted to use the
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1The facts are related in the light most favorable to the
verdicts. See United States v. Tejeda, 974 F.2d 210, 212 (1st
___ _____________ ______
Cir. 1992).
telephone or the mails, speak with anyone other than the Alzan-
kis, nor even to venture onto the balcony or look out the apart-
ment windows. Appellant told Gedara that the American police, as
well as the neighbors, would shoot undocumented aliens who
ventured out alone.
During the four months she remained in the apartment,
Gedara was assaulted twice. On one occasion, when Gedara asked
that the volume be turned down on the television while she was
trying to sleep, appellant grabbed and threw her bodily against
the wall. On another occasion, Abair Alzanki slapped Gedara and
spat in her face when she failed to turn off a monitor.
The Alzankis deliberately risked Gedara's health by
compelling her to work fifteen hours a day at hard, repetitive
tasks. She was required to clean the apartment on a constant
basis with caustic and noxious chemicals, without the benefit of
respiratory protection, and her requests for rubber gloves were
refused. Later, after the noxious fumes caused Gedara to faint,
fall, and injure her ribs, the Alzankis withheld medical treat-
ment. They also refused to let Gedara have dental treatment for
an abscessed tooth.
Finally, though affluent, the Alzankis denied Gedara
adequate food, which resulted in serious symptoms of malnourish-
ment, including enlarged abdomen, massive hair loss, and cessa-
tion of menstrual cycles. She was provided with only two house-
coats to wear and allowed to sleep and sit only on the floor.
3
3
Once, after Gedara accidentally broke a humidifier, the Alzankis
threatened to withhold all her wages.
In addition to the physical abuse and inhumane treat-
ment, Gedara was threatened on almost a daily basis with
deportation, death or serious harm should she disobey the Alzan-
kis' orders. On numerous occasions, the Alzankis threatened to
deport her to Kuwait, and not allow her to return to Sri Lanka.
Appellant threatened to kill her if the Alzankis' newborn child
suffering from spina bifida were to die while appellant was
away in New York. The climate of fear was enhanced by Gedara's
witnessing one incident involving Talal Alzanki's physical abuse
of Abair, and by learning from Abair that he had struck Abair
again shortly thereafter. On another occasion, Abair Alzanki
threatened to sew up Gedara's mouth with a needle and thread, and
throw her into the ocean.
On December 17, 1992, after confiding her plight to
nurses who came to the apartment to care for the Alzankis' sick
child, Gedara fled the apartment and reported her ordeal to the
local police. Appellant later complained to the police that
Gedara should be returned, because she "belonged to him" and "he
had a contract for her."
A federal grand jury returned a two-count indictment,
charging the Alzankis with conspiring to hold, and holding,
Gedara in involuntary servitude, in violation of 18 U.S.C. 371
and 1584. At trial, the Alzankis testified in their own behalf;
Gedara testified for the prosecution. Due to a medical emergen-
4
4
cy, a mistrial was declared as to Abair Alzanki, prior to her
cross-examination. The government nonetheless agreed to permit
her direct testimony to remain in evidence. The jury returned
guilty verdicts against Talal Alzanki on both counts. The
district court sentenced him to one year and one day, which
represented a downward departure from the 18-to-24 month guide-
line sentencing range, and to a modest restitutionary sentence.
II
II
DISCUSSION
DISCUSSION
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Appellant challenges certain jury instructions; the
sufficiency of the evidence supporting both convictions; various
evidentiary rulings; the government's closing argument; and the
$13,403.00 restitutionary sentence imposed by the district court.
A. The Scope of the Involuntary Servitude Statute
A. The Scope of the Involuntary Servitude Statute
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Section 1584 proscribes involuntary servitude.2 It is
not to be read so narrowly as to pose Thirteenth Amendment
problems. United States v. Kozminski, 487 U.S. 931, 945 (1988)
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("Congress' use of the constitutional language in a statute
enacted pursuant to its constitutional authority to enforce the
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2At the time of the offense, the statute provided:
Whoever knowingly and willfully holds to
involuntary servitude or sells into any con-
dition of involuntary servitude, any other
person for any term, or brings within the
United States any person so held, shall be
fined not more than $5,000 or imprisoned not
more than five years, or both.
18 U.S.C. 1584 (1992).
5
5
Thirteenth Amendment guarantee makes the conclusion that Congress
intended the phrase to have the same meaning in both places
logical, if not inevitable. In the absence of any contrary
indications, we therefore give effect to congressional intent by
construing 'involuntary servitude' in a way consistent with the
understanding of the Thirteenth Amendment that prevailed at the
time of 1584's enactment."); see also United States v. Booker,
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655 F.2d 562, 564-65 (4th Cir. 1981); United States v. Shackney,
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333 F.2d 475, 481-86 (2d Cir. 1964).3 The government need not
prove physical restraint. See, e.g., United States v. King, 840
___ ___ _____________ ____
F.2d 1276, 1278-79 (6th Cir. 1988) (upholding cult leaders'
convictions for holding occupants in involuntary servitude,
despite absence of fencing or other physical barriers); United
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States v. Warren, 772 F.2d 827-33 (11th Cir. 1985) (upholding
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involuntary servitude conviction even though victim had opportu-
nity to escape), cert. denied, 475 U.S. 1022 (1986); United
____ ______ ______
States v. Bibbs, 564 F.2d 1165, 1167 (5th Cir.) (recognizing that
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various forms of physical force and/or threats of violence may
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establish requisite coercion), cert. denied, 435 U.S. 1007
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(1977).
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3Most peonage and involuntary servitude cases in recent
years have involved migrant agricultural workers. See, e.g.,
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Kozminski, 487 U.S. 931 (dairy farm workers); United States v.
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Harris, 701 F.2d 1095, 1098 (4th Cir. 1982) (migrant truck-farm
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workers), cert. denied, 463 U.S. 1214 (1983); Booker, 655 F.2d
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562 (migrant farm-labor camp); United States v. Bibbs, 564 F.2d
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1165, 1167 (5th Cir. 1977) (fruit harvesting crews), cert.
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denied, 435 U.S. 1007 (1978); Shackney, 333 F.2d 475 (chicken-
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farm workers).
6
6
Absent proof of physical restraint, a finding of
involuntary servitude is not warranted, however, unless the
government establishes that the victim could only extricate
herself by risking "imprisonment or worse." Shackney, 333 F.2d
________
at 486. Thus, compulsion is an essential element of involuntary
servitude under section 1584. See Flood v. Kuhn, 316 F. Supp.
___ _____ ____
271, 281 (S.D.N.Y. 1970), aff'd, 443 F.2d 264 (2d Cir. 1971),
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aff'd, 407 U.S. 258 (1972). In sum, the requisite compulsion
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under section 1584 obtains when an individual, through an actual
or threatened use of physical or legal coercion, intentionally
__
causes the oppressed person reasonably to believe, given her
"special vulnerabilities," that she has no alternative but to
remain in involuntary service for a time. See Kozminski, 487
___ _________
U.S. at 952-53; United States v. Mussry, 726 F.2d 1448, 1451-52
______________ ______
(9th Cir.), cert. denied, Singman v. United States, 469 U.S. 855
____ ______ _______ _____________
(1984).
A sustainable conviction under section 1584 therefore
requires sufficient evidence to enable a finding, inter alia,
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that the defendant used or threatened physical restraint, bodily
__
harm or legal coercion. Kozminski, 487 U.S. at 952 ("This
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definition encompasses those cases in which the defendant holds
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the victim in servitude by placing the victim in fear of such
___ ______ __ _________ __ _______ ___ ______ __ ____ __ ____
physical restraint or injury or legal coercion.") (emphasis
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added). Moreover, in assessing whether the government has
succeeded in establishing the requisite compulsion, the jury is
to consider the victim's "special vulnerabilities," with a view
7
7
to "whether the physical or legal coercion or threats thereof
could plausibly have compelled the victim to serve [against her
will]." Id.4 In other words, conviction under section 1584 is
__
precluded absent proof, inter alia, that the victim was inten-
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tionally held in service against her will (i) by actual physical
restraint or physical force or (ii) by legal coercion or (iii) by
plausible threats of physical harm or legal coercion.
B. Jury Instructions
B. Jury Instructions
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We review the challenged jury instructions against the
backdrop of the entire charge, see United States v. Tutiven, 40
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F.3d 1, 8 (1st Cir. 1994) (citing United States v. Serino, 835
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F.2d 924, 930 (1st Cir. 1987)), cert. denied, 115 S. Ct. 1391
____ ______
(1995), focusing our inquiry on whether the instructions ade-
quately explained the law or "'whether they tended to confuse or
mislead the jury on the controlling issues.'" Brown v. Trustees
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4The Kozminski Court elaborated on the evidentiary role of
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the victim's "special vulnerabilities":
[A] child who is told he can go home late at
night in the dark through a strange area may
be subject to physical coercion that results
in his staying, although a competent adult
plainly would not be. Similarly, it is pos-
sible that threatening an incompetent with
institutionalization or an immigrant with
deportation could constitute the threat of
legal coercion that induces involuntary ser-
vitude, even though such a threat made to an
adult citizen of normal intelligence would be
too implausible to produce involuntary ser-
vitude.
487 U.S. at 948.
8
8
of Boston Univ., 891 F.2d 337, 353 (1st Cir. 1989) (citation
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omitted), cert. denied, 496 U.S. 937 (1990).
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1. The Instruction on Involuntary Servitude
1. The Instruction on Involuntary Servitude
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Appellant asserts three challenges to the jury instruc-
tion defining the substantive offense of involuntary servitude.
First, he argues that the court misled the jury into believing
that psychological pressure alone could establish the requisite
element of compulsion, by defining "physical force" as encompass-
ing "the notion of compulsion, coercion, power, violence." The
district court's instruction stated:
[T]he government has to prove that the defen-
dant held Ms. Gedara in involuntary servitude
by using or threatening physical force, or
using or threatening legal coercion.
Physical force includes restraint, physical
restraint, locking somebody up, or in some
other way restraining the person. It in-
cludes physically injuring the person. It
includes the notion of compulsion, coercion,
power, violence. And the government has to
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prove that the defendant held or participated
in holding Ms. Gedara by using physical
force, or by threatening to use physical
force.
(Emphasis added.) Appellant theorizes that the jury may have
misinterpreted the term "power," in light of the expert testimony
proffered by the government, see infra Section II.D.1, that "[a]n
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unequal power relationship is where there is a subordinate and a
dominant person. It is generally defined by the authority
person, and it is unequal because of that authority relationship
that exists between the two parties."
9
9
The argument is without merit. The challenged instruc-
tion, viewed against the backdrop of the entire charge, see
___
Tutiven, 40 F.3d at 8, left no doubt whatever that psychological
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pressure alone would not satisfy the "force or threat" element of
the involuntary servitude offense.5
Second, appellant claims that the district court failed
to instruct the jury that any fear engendered in Gedara must be
shown to have been "reasonable." But, in fact, the court in-
structed the jury to decide "whether the service was involun-
tary[] [and] whether Ms. Gedara reasonably believed that she had
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no choice except to remain in the service of the Alzankis." The
district court's references to subjective considerations, such as
"whether [Gedara] was personally in fear of physical or other
means of coercion," occurred in the course of its discussion of
the types of evidence the jury could weigh in deciding whether
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Gedara's belief that she had no other choice was reason-
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able. See also infra note 6. The trial judge assuredly did not
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suggest that a mere finding that Gedara harbored fears however
unreasonably was enough to establish compulsion under section
1584. It was entirely proper to instruct the jury to consider
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5In the final jury charge, the trial judge provided un-
mistakably clear guidance against any such misunderstanding:
"But [Talal Alzanki] cannot be convicted if you find he used only
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psychological means to compel her, if he played mind games with
her. That's not enough. The government does have to prove that
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he used . . . or threatened physical or legal coercion."
Moreover, the preliminary jury instructions explained:
"Now, involuntary servitude . . . means a condition of servitude
in which the victim is forced to work for the defendant by the
use or threat of physical restraint or physical injury or by the
___ __ ______ __ ________ _________ __ ________ ______ __ __ ___
use or threat of coercion through law or legal process."
___ __ ______ __ ________ _______ ___ __ _____ _______
10
10
Gedara's background and experience in assessing whether her fears
were reasonable.6
The final instructional challenge relates to an uncer-
tified transcript of the jury charge containing a clerical
error made available to the jury during its deliberations.
The transcript mistakenly stated: "The government does not have
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to prove that [Alzanki] used, . . . or threatened physical or
legal coercion." Thus, there can be no question that the tran-
script misstated an essential element of the crime charged.
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6Similarly, appellant suggests that the jury instruction
invited the impression that "extremely poor working conditions
and/or special vulnerabilities of the servant" might serve as a
proxy for actual or threatened use of physical force or legal
coercion. However, the trial judge correctly instructed the jury
that
[the charged offense, involuntary servitude,]
encompasses situations in which one person
holds another in servitude by placing that
person in fear of such physical restraint or
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injury or legal coercion. It may be shown by
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evidence of extremely poor working conditions
________
and/or special vulnerabilities of the ser-
vant.
In addition, the jury received proper instructions on the roles
of "legal coercion" and "physical coercion":
[Legal coercion] simply means the use of the
law, the legal process, or legal institutions
to compel service. The question here that
you will need to determine is: Did the gov-
ernment prove beyond a reasonable doubt that
the defendant used or threatened physical or
legal coercion to compel Ms. Gedara's service
in the household?
Of course, the jury is presumed to have followed the instruc-
tions. Tutiven, 40 F.3d at 7 (citing Yates v. Evatt, 500 U.S.
_______ _____ _____
391, 403-04 (1991)).
11
11
The jury had been deliberating for seven hours by the
time it requested the transcript for the explicit purpose of
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reviewing witness testimony.7 Thus, there is but a remote pos-
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sibility that the jury even consulted the portion of the tran-
____ _________ ___ _______ __ ___ _____
script containing the typographical error. Furthermore, even
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assuming the jury consulted the relevant portion of the tran-
script, it is virtually inconceivable that it would have credited
this lone typographical error over four correctly transcribed
statements, and the five correct oral statements it had been
given in the courtroom earlier, especially since the transcript
itself alerted the jury with the imprint: "Rough Draft-Not Cer-
tified." Cf. United States v. DeMasi, 40 F.3d 1306, 1317-1318
__ _____________ ______
(1st Cir. 1994) ("Our review of the instructions reveals that the
district court referred to the 'beyond a reasonable doubt'
standard no less than twelve times in the nine pages of jury
instructions preceding the isolated section challenged here.
This overwhelming number of correct references negated any chance
that the contested statements were misconstrued by the jury as
somehow reducing the government's burden of proof"), cert.
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denied, Bonasia v. United States, 115 S. Ct. 947 (1995); United
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States v. Glenn, 828 F.2d 855, 861 (1st Cir. 1987) ("This [cha-
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llenged] phrase [in the jury instructions] . . . 'may not be
judged in artificial isolation, but must be viewed in the context
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7Despite the government's recommendation that the transcript
be proofread, the defense suggested that it be submitted to the
jury prior to proofreading or certification by the court report-
er.
12
12
of the overall charge.'") (quoting United States v. DeVincent,
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632 F.2d 147, 152 (1st Cir.), cert. denied, 449 U.S. 986 (19-
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80)).8
Given the fact that the trial judge correctly and
repeatedly explained this element to the jury earlier in the
courtroom, and absent any indication that the jury even noted,
let alone credited, the isolated misstatement in the transcript,
we find no prejudice. Cf. United States v. Griley, 814 F.2d 967,
__ _____________ ______
975 (4th Cir. 1987) (where deliberating jury received tape
recording of jury instructions at defendant's criminal trial, as
__
well as instructions given in unrelated civil case, conviction
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upheld on grounds that appellant failed to demonstrate prejudice
and trial court gave proper curative instruction); United States
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v. North, 746 F.2d 627, 631-32 (9th Cir.) (affirming conviction
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even though a search warrant affidavit, excluded from evidence,
was sent to jury room by mistake; finding "no reasonable possi-
bility that [the warrant] could have affected the verdict"),
cert. denied, 470 U.S. 1058 (1984), overruled on other grounds,
____ ______ ___________________________
Jacobson v. United States, 503 U.S. 540 (1992). There was no
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reversible error.
2. The Conspiracy Instruction
2. The Conspiracy Instruction
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Appellant claims that the district court incorrectly
instructed the jury on an essential element of the conspiracy
charge, by stating that he could be found guilty even if his only
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8The "force or threat" element was described correctly in
the preliminary jury instructions as well. See supra note 5.
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13
13
alleged coconspirator, Abair Alzanki, involuntarily cooperated
under duress. Apparently unclear on this point, the jury later
requested further instructions: "[I]s there a conspiracy if the
second person [the wife] . . . joined the agreement not volun-
tarily but in fear?" The trial judge instructed:
The answer is yes. If she agreed with him to
do an act that is unlawful, the first ele-
ment, an agreement, is satisfied. You must,
however, then go on and consider the second
element, and determine whether [the husband,
Talal Alzanki], the only person who is a
defendant before you, joined into that agree-
ment knowingly and willfully as I have de-
fined it to you.
Appellant correctly asserts that a viable conspiracy
charge under 18 U.S.C. 371 requires at least two conspirators,
each possessed of the requisite criminal intent. See, e.g.,
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United States v. Penagaricano-Soler, 911 F.2d 833, 841 (1st Cir.
_____________ __________________
1990). He argues that his wife could not have been the indis-
pensable second willing party, because he coerced her into
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participating. For the latter proposition, he relies on cases
which hold that a conspiracy charge will not lie if the putative
coconspirator turned out to be an undercover law enforcement
agent. See, e.g., United States v. Nason, 9 F.3d 155, 161 & n.2
___ ___ _____________ _____
(1st Cir. 1993), cert. denied, 114 S. Ct. 1331 (1994).
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As the present claim is raised for the first time on
appeal, we review only for plain error. DeMasi, 40 F.3d at 1318;
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United States v. Griffin, 818 F.2d 97, 100 (1st Cir.), cert.
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denied, 484 U.S. 844 (1987). The burden therefore rests with
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appellant to establish that the error was "clear," in the sense
14
14
that it was "obvious," that it affected "substantial rights," and
that failure to vacate the conspiracy conviction would result in
a "miscarriage of justice." United States v. Olano, 113 S.Ct.
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1770, 1776-79 (1993).
We note at the outset that a "generalized fear" of harm
would not have afforded Abair Alzanki a viable defense to the
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conspiracy charge. See, e.g., United States v. Stevens, 985 F.2d
___ ____ _____________ _______
1175, 1182 (2d Cir. 1993) (district court properly rejected
request to instruct jury that generalized fear of harm, without
more, would compel acquittal). Moreover, neither defendant
contended at trial that Abair Alzanki conformed her will or
behavior in response to duress. Indeed, nothing in the trial
record intimates a causal link between Talal Alzanki's abusive
behavior and Abair's participation in the conspiracy. Cf. Slater
__ ______
v. United States, 562 F.2d 58, 62 (1st Cir. 1976) (defendant con-
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victed of Kickback Act violation, an essential element of which
is the intimidation of others, was properly convicted as well of
conspiring with those whom he intimidated). Thus, the district
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court correctly advised the jury that the appropriate inquiry was
whether Talal Alzanki "joined . . . that agreement knowingly and
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willfully." As the evidence plainly supported such a finding,
there was no error, let alone plain error.
C. Sufficiency of the Evidence
C. Sufficiency of the Evidence
___________________________
Appellant next contends that the evidence was insuf-
ficient to convict on the substantive "involuntary servitude"
charge. We review "the evidence in the light most favorable to
15
15
the verdict, in order to determine whether a rational trier of
fact could have found guilt beyond a reasonable doubt. All
reasonable inferences are drawn in favor of the verdict and any
credibility determination must be compatible with the judgment of
conviction." United States v. Tuesta-Toro, 29 F.3d 771, 776 (1st
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Cir. 1994) (quoting United States v. Tejeda, 974 F.2d 210, 212
_____________ ______
(1st Cir. 1992)), cert. denied, 115 S. Ct. 947 (1995). There was
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ample evidence to enable a rational jury to find, beyond a
reasonable doubt, each essential element of the substantive
offense.
Appellant argues that the record discloses only a few
isolated instances in which any physical force whatever was used
against Gedara. These incidents, he argues, did not approach,
either in frequency or severity, but see supra p.3, the level of
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physical abuse present in the typical involuntary servitude case.
Furthermore, he says, conditions in the Alzanki apartment were
neither squalid nor jail-like; whereas in the typical involuntary
servitude case, the victim is exposed to severe physical abuse,
as well as confinement in extremely uncomfortable quarters. See,
___
e.g., Kozminski, 821 F.2d 1186, 1188-89 (6th Cir. 1987) (squalid
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lodgings, without plumbing; rotten food; numerous instances of
slapping, choking, kicking), aff'd, 487 U.S. 931 (1988); United
_____ ______
States v. Harris, 701 F.2d 1095, 1098 (4th Cir. 1982) (beatings
______ ______
with a rubber hose and confinement to quarters ("the jail") in
retaliation for attempted escape), cert. denied, 463 U.S. 1214
____ ______
(1983); Booker, 655 F.2d at 565-66 (numerous retaliatory beatings
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16
16
following escape attempts); Bibbs, 564 F.2d at 1167 (holding
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victims at gunpoint; beating and threatening to kill any who
attempted escape).
Gedara testified that during her four-month ordeal in
their apartment she was physically assaulted by the Alzankis on
two occasions and contemporaneously informed that their purpose
was to keep her "in her place." The physical violence appellant
directed at Gedara was by no means trifling in degree. The
evidence revealed that appellant punished Gedara merely for
asking him to turn down the television by throwing her bodily
against the wall. Moreover, she was kept in a serious state of
malnutrition, deprived of medical care, and subjected to threats
of deportation, physical harm and even death. Given her experi-
ence as a domestic servant in Kuwait, see supra p.2,9 and in the
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Alzanki apartment in Quincy, the jury was entitled to infer that
Gedara reasonably believed these threats.
Appellant correctly asserts that the requisite "compul-
sion" is not established in circumstances where an available
alternative to continued service is merely "exceedingly bad."
____________________
9Gedara testified to her understanding of Kuwaiti police
practices toward household servants:
Q. Ms. Gedara, what was your state of mind regarding the
police in Kuwait?
A. I heard if we go alone out in the street, they're going
to catch us and hit [us] and put into jail.
She testified that she believed that the American police
would treat her much the same way were she to venture outside the
Alzanki apartment.
17
17
See Kozminski, 487 U.S. at 938 (quoting Shackney, 333 F.2d at
___ _________ ________
486). Instead, the evidence must establish that the victim
reasonably believed she was left with no alternative to continued
servitude that was not the equivalent of "imprisonment or worse."
Shackney, 333 F.2d at 486. See, e.g., Steirer v. Bethlehem Area
________ ___ ____ _______ ______________
Sch. Dist., 987 F.2d 989, 1000 (3d Cir.) (community service
___________
requirement for high school graduation not a form of involuntary
servitude, as student has choice of foregoing graduation) (citing
Shackney, 333 F.2d at 486), cert. denied, 114 S. Ct. 85 (1993).
________ ____ ______
The evidence that Gedara herself was well aware of the
severely restrictive conditions encountered by household servants
in Kuwait would enable the jury rationally to conclude that
Gedara threatened with deportation to Kuwait and no prospect
of returning to Sri Lanka and her family confronted an alter-
native to continued involuntary service which she reasonably
considered at least as severe as imprisonment, particularly when
viewed in light of her "special vulnerabilities."10 Moreover,
the reasonableness of her fear of deportation was substantiated
by the undisputed evidence that she would become deportable
____________________
10Evidence of other threats and warnings provided further
support for the verdict. These included warnings that the
American police would shoot Gedara if she left the apartment
alone. Though such a prospect might not have seemed credible to
a competent adult American, the "special vulnerabilities" of the
victim must be taken into consideration. See Kozminski, 487 U.S.
___ _________
at 948, 956. To a foreign worker familiar with Kuwaiti customs
and practices (for example, at trial there was evidence that
Kuwaiti soldiers manned checkpoints to enforce restrictions on
noncitizen movement, especially household servants), a threat of
deportation in these circumstances plausibly may equate with
imprisonment. See supra note 9.
___ _____
18
18
immediately upon loss of her "B-1" visa status, which allowed her
lawfully to remain in the United States only while in the employ
of the Alzankis. See 8 U.S.C. 1184(a)(1) ("[U]pon failure to
___
maintain the status under which [s]he was admitted, . . . such
alien will depart from the United States." ); 22 C.F.R. 41.31.
Although the defense presented contrary testimony, the
jury fairly could infer that the most efficacious threats are
those the victim reasonably believes can be carried out. Shack-
______
ney, 333 F.2d at 486-87. Cf. Booker, 655 F.2d 562 (threats,
___ __ ______
substantiated by severe beatings and assaults with firearms,
coerced abductees into remaining at labor camp). The jury was
entitled to make its own credibility determinations, Tuesta-Toro,
___________
29 F.3d at 776, and to find, beyond a reasonable doubt, that
Gedara believed appellant's deportation threats to be plausible
and that the alternative to continued involuntary servitude was
at least as severe as imprisonment.
D. Evidentiary Rulings
D. Evidentiary Rulings
___________________
1. The "victimologist" testimony
1. The "victimologist" testimony
_____________________________
Appellant filed an unsuccessful motion in limine to
__ ______
preclude the government from calling Ann Burgess, a "victim-
ologist," as an expert witness. At trial, the government used
Burgess to refute the Alzankis' principal "defense"; viz., that
___
Gedara often ventured outside their unlocked apartment during her
________
alleged involuntary servitude, and given the normal human in-
stinct for self-preservation, one would expect an unrestrained
19
19
person faced with actual or threatened physical abuse to flee
from her abuser at the first opportunity. Burgess countered this
evidence with testimony that abuse victims often harbor the
opposite impulse overwhelmed by fear they remain with their
abusers.
Appellant contends that Burgess's expert qualifications
related only to sexual abuse victimology, not the behavioral
______
responses of domestic workers subjected to involuntary servitude.
Thus, appellant argues, the expert testimony presented by Burgess
was irrelevant and unhelpful to the jury, see Fed. R. Evid.
___
104(a), 702 (permitting use of expert testimony "[i]f scientific,
technical, or other specialized knowledge will assist the trier
of fact") or, at the very least, its minimal probative value was
substantially outweighed by the danger of unfair prejudice, see
___
Fed. R. Evid. 403. Finally, appellant argues that the jury was
swayed by Burgess's professional credentials, and her testimony
amounted to impermissible "bolstering" of the allegations of
abuse made by Gedara.
We review challenges to expert-witness qualification
only for manifest abuse of discretion. See, e.g., United States
___ ____ _____________
v. Sepulveda, 15 F.3d 1161, 1183 (1st Cir. 1993), cert. denied,
_________ ____ ______
114 S. Ct. 2714 (1994); United States v. Echeverri, 982 F.2d 675,
_____________ _________
677 (1st Cir. 1993).11 The "gatekeeping function" contemplated
____________________
11We reject the government's contention that the Rule 702
claim should be reviewed only for plain error, since only Abair
Alzanki objected at trial. See United States v. Reed, 977 F.2d
___ ______________ ____
14, 16 (1st Cir. 1992) (motion in limine must be "renewed" by
timely objection at trial). At the outset, the trial judge
20
20
by Rule 702 essentially requires the trial judge to assess
whether it is "reasonably likely that the expert possesses
__________ ______
specialized knowledge which will assist the trier better to
understand a fact in issue." Sepulveda, 15 F.3d at 1183 (citing
_________
Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786
_______ ___________________________________
(1993)) (emphasis added); Apostol v. United States, 838 F.2d 595,
_______ _____________
599 (1st Cir. 1988) (noting that Rule 702 rulings invite a "case-
specific inquiry"). We find no error.
The central fallacy in appellant's claim is its implic-
it assumption that no one other than an "involuntary servitude"
victimologist could have qualified as an expert under Rule 702 in
the present case. This thesis obviously focuses only on the
____
"specialized knowledge" requirement under Rule 702, to the total
exclusion of the ultimate standard for admission whether the
_________ ________
"specialized knowledge" possessed by the witness "will assist the
______
trier of fact to understand the evidence or to determine a fact
in issue . . . ." Fed. R. Evid. 702. It is one matter to
acknowledge that a witness steeped in the behavioral reactions of
Sri Lankan domestic servants abused by Kuwaiti nationals in the
United States could be instructive (if not inordinately so) to a
jury. It is quite another to suggest that it is not "reasonably
likely," see Echeverri, 982 F.2d at 677, that a somewhat less
___ _________
specialized victimologist might "assist" a generalist factfinder
in assessing evidence of the exceedingly uncommon phenomenon of
____________________
announced that an objection by either defendant would preserve
the claim for both. See, e.g., Sepulveda, 15 F.3d at 1180
___ ____ _________
(noting practice as common protocol).
21
21
domestic servant abuse in the present-day United States. Id. at
___
783 (Rule 702 demands "common sense inquiry"). While the more
generalized nature of the proffered testimony may temper its
probative value to the factfinder, we do not think it can be said
that its relevance is negated entirely.12
The record reflects that the trial judge carefully
evaluated Ms. Burgess's professional qualifications following a
lengthy voir dire. Burgess testified that her principal training
and experience related to victims of sexual abuse, but that she
had researched comparable clinical behavior manifested by victims
of physical abuse of a non-sexual nature in so-called "unequal
power" relationships (e.g., battered spouses and children).
____
Based on her general research and her personal interaction with
hundreds of victims of sexual abuse, Burgess testified that
Gedara's behavioral response to the non-sexual abuse administered
by the Alzankis was consistent with the behavior of abuse victims
__________ ____ ___ ________ __ _____ _______
generally. It seems to us that expert testimony on this subject
_________
which the defense was free to contradict was "reasonably
likely" to assist the jury in understanding and assessing the
evidence, in that the matter at issue was highly material,
____________________
12The rationale for the trial judge's ruling was much the
same:
It seems . . . that one doesn't have to be so
specialized as to be an expert on the res-
ponse of a slavery victim to the master rath-
er than a victim of other kinds of abuse of
power in unequal relationships.
22
22
somewhat technical, and beyond the realm of acquired knowledge
normally possessed by lay jurors.
Finally, appellant cites no federal case law for the
contention that allowing an expert to testify to her empirical
findings on the behavioral reactions of abuse victims impermis-
sibly suggests to the jury that the putative victim's allegations
of abuse should be believed. The overwhelming weight of authori-
ty suggests otherwise. See, e.g., United States v. Hadley, 918
___ ____ _____________ ______
F.2d 848, 852 (9th Cir. 1990) (upholding admission of expert
testimony by child psychiatrist as to "general behavior charac-
teristics that may be exhibited in children who have been sexual-
ly abused"), cert. dismissed, 113 S. Ct. 486 (1992); Server v.
____ _________ ______
Mizell, 902 F.2d 611, 615 (7th Cir. 1990); United States v.
______ ______________
Pierre, 812 F.2d 417, 419 (8th Cir. 1987). Moreover, the able
______
trial judge left no room for doubting that the jury remained
perfectly free to reject Burgess's expert opinion, as well as its
predicate assumption.13
2. "Other Acts" Evidence (Rule 404(b))
2. "Other Acts" Evidence (Rule 404(b))
__________________________________
____________________
13The judge firmly cautioned the jury immediately before
Burgess testified:
The witness who is about to testify is what
we call an expert witness. She does not know
what occurred at the Alzanki household. She
wasn't there, she didn't see any of that. . .
. [O]ne of the ways in which witnesses are
very often examined, expert witnesses are
very often examined, is that they are asked
to make certain assumptions . . . that have
to do with the facts in the case. . . . [I]f
the facts are different from the assumptions,
then the opinions based on the assumption are
of absolutely no value to you.
__________ __ _____ __ ___
23
23
Appellant next contends that the district court erred
in admitting Gedara's testimony concerning appellant's abusive
behavior toward his wife, Abair Alzanki, because Rule 404(b)
absolutely bars "other acts" evidence relevant only to prove
criminal propensity or bad character. See Tuesta-Toro, 29 F.3d
___ ___________
at 775. We disagree.
The Rule 404(b) bar is not implicated unless the chal-
lenged "other crimes, wrongs, or acts are relevant exclusively to
___________
instigate an inference that the defendant is more likely to have
acted in similar fashion by committing the offense for which he
is on trial." Tutiven, 40 F.3d at 5 (emphasis added). By
_______
contrast, the evidence admitted below bore special relevance to a
pivotal element of the alleged offense quite apart from appel-
lant's propensity to commit wrongful acts; viz., the "reasonable-
___
ness" of Gedara's stated fear that she would be a target of
appellant's physical violence should she disobey him. See United
___ ______
States v. Oreto, 37 F.3d 739, 749 (1st Cir. 1994) (evidence of
______ _____
victim's awareness of defendant's prior bad acts against third
parties is especially relevant to an element of the offense,
i.e., the reasonableness of the stated basis for the victim's
fear) (citing United States v. DeVincent, 546 F.2d 452, 456-57
_____________ _________
(1st Cir. 1976), cert. denied, 431 U.S. 903 (1977)), cert.
____ ______ ____
denied, 115 S. Ct. 1161 (1995).
______
3. Evidence of Ethnic Background and National Origin
3. Evidence of Ethnic Background and National Origin
_________________________________________________
Appellant now claims that the government deliberately
introduced evidence of repressive Kuwaiti customs and practices
24
24
toward domestic workers primarily to inflame any ethnic bias
among the jurors.14 Since he asserted no contemporaneous ob-
jection, we review for plain error. See United States v. Figuer-
___ _____________ _______
oa, 976 F.2d 1446, 1455 (1st Cir. 1992), cert. denied, 113 S. Ct.
__ ____ ______
1346 (1993) (finding claim of ethnic bias waived, and no plain
error). We will reverse "only if the error 'seriously affect[ed]
the fundamental fairness and basic integrity of the proceed-
ings.'" Tuesta-Toro, 29 F.3d at 775 (citing United States v.
___________ _____________
Carty, 993 F.2d 1005, 1012 n.9 (1st Cir. 1993)). We find no
_____
error.
The government itself cautioned the jury during closing
argument that appellant's mere status as a foreign national
______
should play no part in their deliberations. Further, at no point
during the trial did the government make any inflammatory remark
relating to the Alzankis' ethnic background or national origin.
See United States v. Ovalle-Marquez, 36 F.3d 212, 221-22 (1st
___ _____________ ______________
Cir. 1994) (finding remarks not inflammatory because, inter alia,
_____ ____
they "serve [a] purpose other than to inflame"), cert. denied,
____ ______
115 S. Ct. 1322 (1995). Finally, unlike cases in which evidence
of this type has been found marginally relevant at best, see,
___
e.g., United States v. Rodriguez Cortes, 949 F.2d 532, 541-42
____ ______________ _________________
(1st Cir. 1991) (finding that admission of defendant's Colombian
identification card impermissibly invited jury to conclude that
____________________
14During jury impanelment, the trial judge scrupulously
inquired of each prospective juror whether the ethnic background
or national origin of the defendants would affect the juror's
capacity to serve impartially. Certain prospective jurors were
excused for cause on these grounds.
25
25
"a person . . . born in Colombia . . . must be involved in drug
trafficking"); see also United States v. Doe, 903 F.2d 16, 18
___ ____ _____________ ___
(D.C. Cir. 1990) (noting that prosecutor frequently referred to
defendants as "Jamaicans" and stressed expert testimony to the
effect that "Jamaicans" were known to be deeply involved in drug
trafficking), prevailing Kuwaiti customs were highly probative on
at least three issues material to the section 1584 prosecution.
See, e.g., Figueroa, 976 F.2d at 1455 (no plain error where
___ ____ ________
evidence related to true source of large bank deposits in defen-
dant's name, corroborated certain admissions by defendant, and
bolstered credibility of important government witness whose
credibility was challenged by defense).
First, it could be inferred that Gedara as a former
domestic servant in Kuwait developed a "special vulnerability"
to the Alzankis' threats, even though an American domestic worker
might not have been placed "reasonably" in fear thereby. See
___
Kozminski, 487 U.S. at 952. For example, the evidence relating
_________
to Kuwaiti customs and practices clearly tended to buttress the
reasonableness of Gedara's stated belief in appellant's warnings
that the American police, like their Kuwaiti counterparts, were
under orders to shoot undocumented domestic workers who ventured
out alone. Gedara likewise would have been especially vulnerable
to the coercive force of appellant's frequent threats to punish
her disobedience by returning her to Kuwait, rather than to her
_________ ___ __ ______
native home in Sri Lanka. Moreover, appellant's own familiarity
with Kuwaiti customs could generate the reasonable inference that
26
26
appellant played on Gedara's isolation and vulnerabilities,
making it more probable that he acted with the requisite specific
________
intent to subject her to involuntary servitude. Indeed, appel-
______
lant sought to capitalize on the very same evidence by arguing to
the jury that he should not be convicted since his experiences
growing up in Kuwait had never put him on fair notice that his
treatment of Gedara might be considered criminal in other cul-
tures.
4. Hearsay Testimony
4. Hearsay Testimony
_________________
Appellant next challenges, as inadmissible hearsay, the
testimony given by several nurses and a respiratory specialist
who came to the Alzankis' apartment to care for their ailing
child, and by a police officer who interviewed Gedara immediately
after she fled the apartment. These witnesses related various
contemporaneous statements Gedara made to them concerning the
harsh conditions and inhumane treatment she experienced at the
hands of the Alzankis. The government offered their testimony
under Rule 801(d)(1)(B) (prior consistent statements offered to
rebut charge of recent fabrication). The district court admitted
their testimony under Rule 803(3) (statements of declarant's
then-existing state of mind). We review for abuse of discretion.
United States v. Paulino, 13 F.3d 20, 24 (1st Cir. 1994).
_____________ _______
Some of the challenged testimony clearly was admissible
under Rule 803(3), such as Gedara's contemporaneous statements as
to her state of mind that she was afraid, hungry, exhausted.
On the other hand, Rule 803(3) has been held not to allow more
27
27
expansive statements elaborating upon the underlying reasons for
the declarant's state of mind. See, e.g., United States v.
___ ____ ______________
Fontenot, 14 F.3d 1364, 1371 (9th Cir.), cert. denied, 115 S.Ct.
________ ____ ______
431 (1994); United States v. Cohen, 631 F.2d 1223, 1225 (5th Cir.
_____________ _____
1980). In any event, we may affirm the district court ruling on
any ground apparent from the appellate record. United States v.
_____________
Norton, 26 F.3d 240, 244 (1st Cir. 1994).
______
The government was entitled to introduce the challenged
testimony to establish the truth of the matter asserted, if (1)
the declarant (viz., Gedara) testified at trial and was subject
___
to cross-examination; (2) the challenged statements and her trial
testimony were consistent; and (3) the challenged statements were
offered to rebut an express or implied charge that the declarant
recently fabricated her story, or became subject to some improper
influence or motive to falsify after making the challenged state-
ment. See Tome v. United States, 115 S. Ct. 696 (1995); United
___ ____ _____________ ______
States v. Arias-Santana, 964 F.2d 1262, 1264 (1st Cir. 1992);
______ _____________
United States v. Piva, 870 F.2d 753, 758 (1st Cir. 1989). All
_____________ ____
three criteria for admission under Rule 801(d)(1)(B) were met.
At trial, Gedara testified consistently with her
previous statements to the nurses, therapist, and police officer.
By suggesting, on cross-examination, that Gedara recently had met
with a Hollywood producer interested in purchasing the film
rights to her "story," that she was engaged in a Hollywood
bidding war, and that she had been interviewed by Boston newspa-
pers to drum up publicity for her "story," defense counsel
28
28
plainly impugned Gedara's motives and just as clearly invited the
government to respond as it did with corroborative evidence
that Gedara had made statements consistent with her trial testi-
mony long before the motivations attributed to her by the defense
had ever arisen. See United States v. Montague, 958 F.2d 1094,
___ _____________ ________
1095 (D.C. Cir. 1992).
E. The Restitutionary Sentence
E. The Restitutionary Sentence
___________________________
Finally, appellant contends that the restitutionary
sentence imposed pursuant to the Victim and Witness Protection
Act, 18 U.S.C. 3663(b)(2)(A), constituted error because it
reimbursed Gedara for (1) lost overtime wages to which she was
not entitled under the applicable law, see Fair Labor Standards
___
Act, 29 U.S.C. 213; Massachusetts Wage and Hour Act, Mass. Gen.
L. Ann. ch. 151; (2) lost wages for time she took off from her
job to assist the government in prosecuting its case against the
Alzankis, but see Ratliff v. United States, 999 F.2d 1023, 1026
___ ___ _______ _____________
(6th Cir. 1993); and (3) psychological counseling for chronic
stress symptoms attributable to her abusive treatment, but cf. 18
___ __
U.S.C. 3663(b)(2)(A) (restitution only for "bodily injury").
______
We decline to address appellant's challenges to the
restitutionary sentence since these claims were never raised
below. See United States v. Dietz, 950 F.2d 50, 55 (1st Cir.
___ _____________ _____
1991).15 Appellant's utter failure to object disabled the
____________________
15Indeed, as concerns the first contention, appellant flatly
stated at sentencing that he "would leave it up to the Court to
_____ _____ __ __ __ ___ _____ __
determine what is an appropriate restitution figure." Nor did he
_________ ____ __ __ ___________ ___________ ______
cite to the two statutes upon which he now relies. Rather, he
left the district court with the clear impression that some
____
29
29
sentencing court from making a reasoned assessment of the present
claims in the first instance, and from making the predicate
factual findings upon which the claims depend. For example, as
concerns appellant's second claim, the government responds that
the restitutionary sentence did not include reimbursement to
___
offset leave time Gedara took to help the government prepare its
case, but merely to reimburse her for lost wages occasioned by
having to leave her new employment to obtain treatment for the
debilitating stress she experienced during her four-month ordeal.
The government concedes that reimbursement for Gedara's assis-
tance in preparing for trial would be problematic as a matter of
law, but appellant's failure to alert the district court to the
claim, raised for the first time on appeal, prevented the sen-
tencing court from clarifying the factual basis for its resti-
_______
tutionary sentence. Lastly, appellant's only attempt at address-
ing the government's waiver argument that he promptly appealed
the restitutionary sentence is no answer at all. Nor did he
request reconsideration of the restitutionary sentence. See Fed.
___
R. Crim. P. 35(c); cf. United States v. Heilprin, 910 F.2d 471,
__ _____________ ________
474 n.5 (7th Cir. 1990).
III
III
CONCLUSION
CONCLUSION
__________
The district court judgment must be affirmed.
Affirmed.
Affirmed.
________
____________________
overtime wages might be appropriate as a matter of law.
30
30
