UNITED STATES OF AMERICA, PETITIONER V. IKE KOZMINSKI, ET. AL. No. 86-2000 In the Supreme Court of the United States October Term, 1986 The Solicitor General petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Sixth Circuit. Petition for a Writ of Certiorari to The United States Court of Appeals for the Sixth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Constitutional and statutory provisions involved Question Presented Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals, sitting en blanc, (App. 1a-71a) is not yet reported. The panel opinion of the court of appeals (App. 72a-106a) is not yet reported. JURISDICTION The judgment of the court of appeals (App. 107a) was entered on April 16, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The pertinent constitutional and statutory provisions are set forth at App. 115a. QUESTION PRESENTED Whether "involuntary servitude" as prohibited and made criminal by the Thirteenth Amendment and 18 U.S.C. 241 and 1584, is present only where a person compels another to remain in his service through physical or legal coercion or, if the victim is a minor, an immigrant, or a mental incompetent, through fraud and deceit. STATEMENT Following a jury trial in the United States District Court for the Eastern District of Michigan, respondents, Ike and Margarethe Kozminski and their son John Kozminski, were convicted of conspiring to deprive two mentally retarded white adult males of their Thirteenth Amendment right to be free from involuntary servitude, in violation of 18 U.S.C. 241. Ike and Margarethe Kozminski were also convicted of holding the two adults to involuntary servitude, in violation of 18 U.S.C. 1584. John Kozminski was acquitted on that count. Ike and Margarethe Kozminski were each sentenced to five and ten years' imprisonment on the two counts, their sentences were suspended, and they were placed on probation for two years. Ike Kozminski was also fined $20,000 and ordered to pay $6,190.80 as restitution to each of the two victims pursuant to 18 U.S.C. 3579(a)(1). John Kozminski was sentenced to ten years' imprisonment, his sentence suspended, and he was placed on probation for two years. He was also fined $10,000. 1. At trial, the government established that in 1967 Margarethe Kozminski picked up Robert Fulmer while he was walking down the road and took him to work on the Kozminski family farm (App. 73a). At that time, Fulmer was working at another farm, and Mrs. Kozminski simply left a note telling Fulmer's former employer that he had gone (ibid.). Mrs. Kozminski later told several people that she had kidnapped Fulmer (ibid). Fulmer has an IQ of 67 (ibid.). He has lived in foster homes since he was five, and he spend some of his childhood at a training school (IV Tr. 134-135). Louis Molitoris came to the Kozminski farm in the early 1970's (App. 73a). Molitoris had been living on the streets in Ann Arbor, Michigan, and had sometimes used the Kozminski barber shop there as a place to sleep (ibid.). Some time after they met, Ike took Molitoris to work on his farm (ibid.). Molitoris has an IQ of 60 (ibid.). Molitoris had once been institutionalized at a state mental hospital (V. Tr. 66). The evidence indicated that the men were housed in an insect-infected dilapidated trailer with no heat and a refrigerator that did not work (App. 74a; II Tr. 51; III Tr. 24; IV Tr. 45, 143-144, 147-153, 155; V Tr. 15-16, 104). They were often worked from 3:00 in the morning until at least 8:30 at night, without vacation and without pay (except for small gifts on holidays and for the county fair) (ibid.). They were dressed in tattered clothes that were inadequate for warmth (App. 74a; III Tr. 20). They were sometimes provided moldy bread to eat and were not provided with proper nutrition (II Tr. 62; III Tr. 30, 32,; IX Tr. 208). /1/ Both men were also denied proper medical care (App. 74a). On one occasion, Fulmer cut off the tip of this thumb, and the Kozminskis would not let him have it treated at a hospital (ibid.). Neighbors later saw Fulmer's thumb covered with dirt and encrusted with blood (III Tr. 115, 171). Molitoris was once gored by a bull and at another time kicked by a calf, but on both occasions the Kozminskis refused his request to see a doctor (V. Tr. 71-73). The Kozminskis subjected Fulmer and Molitoris to physical abuse for not doing their work as they were directed (App. 74a). Specific instances of such abuse presented at trial include Ike's conduct in slapping Molitoris across the side of the face (II Tr. 139), striking Fulmer's ear with the back of his hand (II Tr. 211-212), kicking Fulmer (III Tr. 22; IV Tr. 141), slapping Molitoris across the back (III Tr. 125), and hitting Molitoris with his fist cutting him over his eye (IV Tr. 158-159); Margarethe dragging Molitoris off a tractor, throwing him in a ditch, and kicking him three or four times (III Tr. 22), and slapping Fulmer (V. Tr. 39); and John grabbing Molitoris and ripping off part of his shirt (III Tr. 23), and slamming him against the wall (III Tr. 137). The Kozminskis' herdsmen were specifically instructed to hit Fulmer and Molitoris if necessary to get them to work (II Tr. 37), and Molitoris was beaten nearly every day by one of the herdsmen (IV Tr. 157-158). The Kozminskis also frequently directed abusive language and obscenities to the men; they called them names such as "stupid bastard" and "(n)igger motherfucker" (App. 74a; II Tr. 138, 211; III Tr. 21; IV Tr. 82-83). The Kozminskis told the men they were not to leave the farm (II Tr. 100; IV Tr. 170; V Tr. 74). The Kozminskis also threatened to return the men to institutions if they did not do what they were told (App. 19a; IV Tr. 167). On a number of occasions, the men attempted to run away and the Kozminskis or one of their employees went after them and brought them back (App. 74a). The Kozminskis told the men not to talk to others and told others not to talk to them (App. 74a). Once when Fulmer used the phone to call a neighbor, Margarethe Kozminski ripped the phone from the wall and told him never to use it again (App. 5a; IV Tr. 168). They told Molitoris that a neighbor might shoot him (III Tr. 73). To further avoid interference, the Kozminskis falsely told neighbors, farm hands, and visitors that the men were in their custody (App. 5a, III Tr. 71, 96, 153; IV Tr. 84). The Kozminskis also discouraged relatives from contacting the men, and discouraged the men from contacting their relatives (App. 74a). Once when Fulmer's sister called to arrange a visit, Margarethe told her that Fulmer would be upset by such a visit and that she should not come (IV Tr. 101). Margarethe made the same representation to Fulmer's brother (X Tr. 206). Fulmer once told Ike Kozminski that he would like to visit his brother and sister, and Ike replied that they did not care about him (App. 5a; IV Tr. 173). Shortly after Molitoris came to the farm, the Kozminskis had him burn the trunk containing all his possessions -- including his family pictures -- because, they claimed, the trunk had cockroaches (App. 5a). Over the years, Fulmer and Molitoris asked others to help them leave the farm (App. 74a). Molitoris once begged a visitor to call the police to take him away (II Tr. 199-200). A neighbor testified that Fulmer told him he had to get away from the Kozminskis because, " 'they are killing me' " (III Tr. 171). And a temporary resident on the farm testified that Molitoris came to his trailer weeping and asked him to take him away from the farm when he left (IV Tr. 85). In August of 1983, a newly hired herdsman helped the men to leave the farm. While the Kozminskis were out of town, the herdsman notified county officials of the conditions under which the men lived (II Tr. 58-59). When the sheriff and a social service employee came to the farm, Fulmer and Molitoris asked to be taken away before the Kozminskis returned (IV Tr. 44-52). The men were then taken to an adult foster care home (ibid.). 2. At the close of the evidence, the district court instructed the jury concerning the meaning of "involuntary servitude." The same instructions applied to both Section 1584 count and the Section 241 count (for conspiring to deprive Fulmer and Molitoris of their Thirteenth Amendment rights). See App. 109a-112a; XI Tr. 131-137, 154. The court instructed the jury that it was "to determine if there was a means of compulsion used, sufficient in kind and degree, to subject a person having the same general station in life as the alleged victims to believe they had no reasonable means of escape and no choice except to remain in the service of the employer" (App. 110a). The court stated that involuntary servitude "may include situations in which * * * coercive acts or words cause persons in employment to believe they cannot freely leave employment if the acts are done or the words spoken with the intent to cause this result" (App. 109a). The court cautioned the jury that "an employer can use any legitimate means to retain the services of an emp(l)oyee, such as offering the employee benefits, or seeking to convince the employee that he would be better off if he continued in his employment" (App. 110a). 3. The court of appeals initially affirmed the convictions (App. 72a-106a). The court rejected respondents' claim that Section 1584 would be unconstitutionally vague if not limited to cases of physical or legal coercion (App. 77a-78a). Adopting the reasoning of the Ninth Circuit in United States v. Mussry, 726 F.2d 1448, 1454-1455, cert. denied, 469 U.S. 855 (1984), the court concluded that Section 1584's "mens rea requirement vitiated vagueness concerns" that might otherwise be presented by a broader construction of the statute (App. 78a). 4. On rehearing en banc, a majority of the court of appeals reversed (App. 1a-71a). The court held that the district court had improperly instructed the jury on the standard for proving involuntary servitude and remanded for a new trial. According to the majority, a holding to involuntary servitude occurs only when (id. at 12a): (a) the servant believes that he or she has no viable alternative but to perform service for the master (b) because of (1) the master's use or threatened use of physical force, or (2) the master's use or threatened use of state-imposed legal coercion (i.e., peonage), or (3) the master's use of fraud or deceit to obtain or maintain services where the servant is a minor, an immigrant or one who is mentally incompetent. According to the majority, the district court's charge was too broad because it "would appear to criminalize general psychological coercion without fraud, deceit, force or legal coercion and would include all individuals within the covered class of victims subject to psychological coercion, not just the particularly vulnerable classes" (id. at 14a). Finding sufficient evidence from which a jury could conclude that the victims were mentally incompetent and that the defendants practiced fraud and deceit in maintaining their services, the court remanded for a new trial on that limited ground (id. at 14a-15a). /2/ Five judges dissented (App. 50a-68a), concluding that the majority had constructed "an arbitrary definition (of involuntary servitude) that raises more questions than it answers" (id. at 51a). The dissent emphasized that the definition "not only unduly focuses on the means of accomplishing involuntary servitude, but also, at least as to its third prong, would define and limit the classes of persons to whom it applied" (ibid. (emphasis in original)). According to the dissent, involuntary servitude occurs whenever "'the subjugation of the will of the servant is so complete as to render him incapable of making a rational choice'" (id. at 52a (quoting United States v. Shackney, 333 F.2d 475, 488 (2d Cir. 1964) (Dimock, J., concurring)) and the master intends that result (App. 52a). /3/ REASONS FOR GRANTING THE PETITION The decision of the court of appeals misconstrues the terms of 18 U.S.C. 1584 and the Thirteenth Amendment /4/ to limit the scope of their respective prohibitions of "involuntary servitude." According to the court of appeals, a person is held to involuntary servitude, within the meaning of those prohibitions, only when the person's service is compelled by physical or legal coercion, unless he is a minor, immigrant, or mental incompetent, in which case service compelled by fraud or deceit is also barred. These arbitrary limitations find no support in the text of either provision and frustrate the clear intent of Congress and of the Framers of the Thirteenth Amendment to prohibit involuntary servitude wherever it is imposed. The decision also aggravates a split in the circuits on a matter which, for historical and practical enforcement reasons, demands national uniformity. Accordingly, this Court's review is clearly warranted. /5/ 1. The courts of appeals are in conflict on the precise issue presented in this case. To date, three circuits have directly addressed the issue whether involuntary servitude is limited to certain methods of compulsion or to certain classes of victims. Each has construed Section 1584 differently. The resulting confusion in the lower courts warrants this Court's review. Unlike the Sixth Circuit in this case, the Ninth Circuit in United States v. Mussry, 726 F.2d 1448, cert. denied, 469 U.S. 855 (1984), /6/ rejected an arbitrary construction of the scope of Section 1584 and of the Thirteenth Amendment. The Ninth Circuit held that "(c)onduct other than the use, or threatened use, of law or physical force may, under some circumstances, have the same effect as the more traditional forms of coercion -- or may even be more coercive" (726 F.2d at 1453). According to the Ninth Circuit, the "crucial factor" is not the precise character of the means of coercion, but "whether a person intends to and does coerce an individual into his service by subjugating the will of the other person" (ibid.). The court thus concluded, consistent with the jury instructions struck down by the Sixth Circuit in this case, that "(a) holding in involuntary servitude occurs when an individual coerces another into his service by improper or wrongful conduct that is intended to cause, and does cause, the other person to believe that he or she has no alternative but to perform the labor" (ibid.). The court specifically rejected (id. at 1454-1455) the claim, accepted by the Sixth Circuit in this case, that Section 1584 would be void for vagueness under the Due Process Clause if construed to extend beyond physical or legal coercion. The decision of the Sixth Circuit in this case is also inconsistent with the decision of the Second Circuit in United States v. Shackney, 333 F.2d 475 (1964). Both the Ninth and Sixth Circuits read Shackney as holding that involuntary servitude, within the meaning of Section 1584, is confined to circumstances where the defendant has subjugated the will of another through physical or legal coercion. See App. 6a; Mussry, 726 F.2d at 1452. Neither the Sixth Circuit nor the Ninth Circuit agrees with that standard. /7/ 2. The Thirteenth Amendment proclaims that "involuntary servitude * * * shall (not) exist within the United States." Section 1584 expresses Congress's commitment to that principle by making it unlawful to "knowingly and willfully hold() to involuntary servitude * * * any other person for any term." In each, the commitment to the elimination of involuntary servitude is unqualified. Except for the obvious exclusion of criminal punishment, there are no words of limitation. Involuntary servitude is condemned, in all circumstances and irrespective of the precise manner by which it is brought about. The district court in this case accordingly instructed the jury that to find the respondents guilty of violating Section 1584 and Section 241 (for conspiring to violate the Thirteenth Amendment rights of another) it must find that the defendants possessed the requisite specific intent and that "there was a means of compulsion used, sufficient in kind and degree, to subject a person having the same general station in life as the alleged victims to believe they had no reasonable means of escape and no choice except to remain in the service of the employer" (App. 110a). Hence, the court did not instruct the jury that it could consider only "means of compulsion" of a specified character, such as physical or legal coercion. Nor did the court instruct the jury that only certain classes of individuals were susceptible to some kinds of coercive measures. The court instead defined "means of compulsion" in terms of human condition the law was designed to condemn -- involuntary servitude -- thereby allowing jury consideration of any coercive means "sufficient in kind and degree" to produce that forbidden result. The court instructed the jury concerning the difference between coercive means and the employer's "use (of) legitimate means to retain the services of an emp(l)oyee, such as offering the employee benefits, or seeking to convince the employee that he would be better off if he continued in his employment" (ibid.), and made clear that the latter falls outside the scope of Section 1584 (App. 110a). The court of appeals reversed respondents' convictions on the erroneous ground that the jury instructions overstated the scope of Section 1584 (and thereby of the Thirteenth Amendment). The court did not dispute the district court's formulation of the requisite state of mind in the victim, agreeing that "involuntary servitude" requires a showing that "the servant believes that he or she has no viable alterntive but to perform service for the master" (App. 12a), and that there was sufficient evidence for the jury to conclude in this case "that the victims believed that they had no viable alternative but to perform the labor in question" (id. at 15a). The court nonetheless held that even if one were (as in this case) to establish that a defendant intentionally and successfully sought to create that subjugated state of mind in the victim, Section 1584 would still be violated only if it could be further established that the state of mind was caused exclusively by physical or legal coercion, or, if the victim is a minor, immigrant, or mental incompetent, by fraud and deceit. These restrictions have no basis in the relevant statutory and constitutional language. Both the Thirteenth Amendment and Section 1584 condemn the intentional creation of a result: involuntary servitude. Neither prescribe the means by which that result is achieved or distinguishes between different types of individuals, based on their membership in certain formal legal categories, such as minors, immigrants, and mental incompetents. Nor is there any reason to suppose that involuntary servitude results only from certain coercive means or occurs only to certain classes of persons in the context of Section 1584 and the Thirteenth Amendment. Just as involuntariness may be established in a variety of different ways in other more familiar legal contexts, ranging from contract and tort law to criminal procedure, so too may it be shown in establishing involuntary servitude. The court of appeals' decision itself provides little, if any, support for its restrictive gloss on Section 1584. The court readily acknowledges that one of Section 1584's parent statutes "was designed to reach a broader class of exploitation than was previously covered by laws dealing with slavery, involuntary servitude and peonage" (App. 10a), and that Section 1584 was itself a deliberate expansion upon all prior laws (App. 9a & n.5). The court never explains the basis for its conclusion that Section 1584 is, except for certain "legally incapable" persons, limited to "physical or legal coercion." Nor does the court's support for the exception justify its narrow scope. We do not doubt that Congress has the authority to impose limitations on the scope of Section 1584 that are comparable or even identical to those fashioned by the court of appeals in this case. Congress, however, has not enacted these limitations and, while the scope of Section 1584 may be less precise as a result, a judicial preference for greater precision neither substitutes for congressional intent nor excuses judicial legislation. 3. The issue presented in this case is important to the United States. The court of appeals' decision will impede our ability to maintain successful prosecutions under Section 1584 and 241 (for conspiring to violate the Thirteenth Amendment) in many meritorious circumstances. For instance, where, as in this case, the defendant used some limited physical force in combination with other means of coercion -- such as isolating the victim, withholding wages, denying needed medical assistance, and verbally abusing the victim -- the Sixth Circuit standard would preclude any reliance on those other means of coercion. /8/ Even introduction of evidence of a defendant's fraudulent and deceitful activities would be allowed only in a narrow class of cases, which may not include the present case. /9/ Most of our Section 1584 prosecutions depend, as does this case, on a combination of coercive measures (see note 8, supra). Perhaps even more important, an individual's entitlement to protection from involuntary servitude currently depends on the jurisdiction in which he happens to reside. Circumstances that would constitute involuntary servitude in the Ninth Circuit would not similarly be considered involuntary servitude in the Sixth Circuit and might not be so considered in the Second Circuit. The Thirteenth Amendment, particularly in light of its historical context, expresses a national commitment. For this additional reason, this Court's resolution of the current conflict in the courts of appeals is warranted. CONCLUSION This petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General WM. BRADFORD REYNOLDS Assistant Attorney General DONALD B. AYER Deputy Solicitor General ROGER CLEGG Deputy Assistant Attorney General RICHARD J. LAZARUS Assistant to the Solicitor General JESSICA DUNSAY SILVER IRVING L. GORNSTEIN Attorneys JUNE 1987 /1/ There was, of course, evidence presented tending to controvert the adverse conditions and conduct demonstrated by the government. There was testimony, for example, that Ike Kozminski delivered groceries, including luncheon meat, hot dogs, bread, ice cream, and potatoes, every week (IV Tr. 154); that Fulmer and Molitoris were taken out to dinner at a restaurant approximately once a week (IV Tr. 201; V Tr. 91); that they were taken to professional baseball games on several occasions (IV Tr. 203-204; V Tr. 96); and that Ike paid for Fulmer's teeth (V. Tr. 26). /2/ The majority also held that the district court erred in admitting expert psychological testimony that the defendents had broken Fulmer and Molitoris of their will to leave by involuntarily converting them (App. 15a-17a). The majority concluded that for expert testimony to be admissible, it must conform to a generally accepted explanatory theory and that the testimony on involuntary conversion did not satisfy that requirement (ibid.). /3/ The dissent concluded that the district court acted within its discretion in admitting the government's expert testimony on involuntary conversion (App. 53a-68a). According to the dissent, a district court has discretion to admit expert psychological testimony regardless of whether it conforms to a generally accepted explanatory theory (id. at 54a-59a). The dissent also pointed out that other courts of appeals have rejected the standard used by the majority (see id. at 58a-59a n.5). Finally, the dissent concluded that, in any event, the district court was justified in finding that the expert testimony conformed to a generally accepted theory (id. at 60a-66a). /4/ The jury instruction regarding the meaning of "involuntary servitude" that the court of appeals overturned related both to respondents' Section 1584 conviction and their Section 241 conviction for conspiring to deprive Fulmer and Molitoris of the Thirteenth Amendment rights (see page 5, supra). As noted by the court of appeals (App. 2a n.3), the parties agreed that the statutory and constitutional definitions of "involuntary servitude" were identical. /5/ Although the court of appeals reversed and remanded for a new trial on two grounds -- its ruling that the jury instructions too broadly defined involuntary servitude and its ruling that certain government expert testimony was improperly admitted (see note 2, supra) -- we have confined our petition to the involuntary servitude issue, which we believe is the more pressing issue for this Court's review. Hence, we do not challenge here the court of appeals' determination that a new trial is warranted. This Court's review is nonetheless appropriate because absent reversal of the court of appeals' construction of involuntary servitude, we will be forced to retry respondents based on an (incorrrect) legal theory, under which highly relevant evidence will be inadmissible and acquittal therefore will be more likely. Should the jury acquit respondents on remand, moreover, we would not then be able to seek review of that result. Indeed, absent review now by this Court, we will be precluded in the future from maintaining Section 1584 prosecutions in the Sixth Circuit that, like this case, depend on coercive means outside of the Circuit's reading of that statute. And, in light of the Double Jeopardy Clause, the government would be unlikely ever to have the opportunity to seek appellate review of this issue in the Sixth Circuit. /6/ We opposed certiorari in Mussry on the ground that the case was then in an interlocutory posture and petitioners were, following the court of appeals decision, in precisely the same position they would have occupied had the district court denied their motion to dismiss. Accordingly, we did not address the merits of the petition. See Memo. in Opp. at 3-4 & n.4, Singman v. United States, No. 84-91. Of course, while this case is also in an interlocutory posture, review now is appropriate because the government would not be equally free to seek further review after remand (see note 5, supra.) /7/ In dictum, the Fifth and Eleventh Circuits have both suggested their agreement with the Ninth Circuit standard or at least their disagreement with the standard now adopted by the Sixth Circuit. See United States v. Bibbs, 564 F.2d 1165, 1167 (5th Cir. 1977) ("the law takes no account of the means of coercion"), cert. denied, 435 U.S. 1007 (1978); United States v. Warren, 772 F.2d 827, 833-834 (11th Cir. 1985) ("(v)arious forms of coercion may constitute a holding in involuntary servitude"). /8/ Such coercive techniques were utilized by respondents in this case for the specific purpose of compelling service by Fulmer and Molitoris (see pages 3-5, supra) and these and comparable techniques have been utilized in other cases. See, e.g., United States v. Warren, 772 F.2d at 830, 832 (placing victim in unfamiliar setting; verbal abuse; inducing alcohol dependency), United States v. Booker, 655 F.2d 562, 564 (4th Cir. 1981) (verbal abuse; withholding wages); United States v. Harris, 701 F.2d 1095, 1098 (4th Cir.) (denying medical assistance), cert. denied, 463 U.S. 1214 (1983). /9/ The court of appeals remanded for a new trial only after concluding that "there (was) evidence from which a jury could conclude (1) that the victims believed that they had no viable alternative but to perform the labor in question, and (2) that the victims were mentally incompetent and the defendants practiced fraud and deceit in maintaining the victims' service" (App. 15a). Thus, the court of appeals apparently held that the presence of some physical abuse did not justify the admission of evidence of nonphysical coercion unless the victims fell within its third category. Nor is there any guarantee that on remand the jury (or judge) will conclude that the victims in this case were "mentally incompetent" and, hence, evidence of respondents' fraud and deceit may ultimately be deemed inadmissible; indeed, we note that the district court ruled that the victims were "competent" to testify. APPENDIX