No. 95-619

In the Supreme Court of the United States
OCTOBER TERM, 1995

TALAL H. ALZANKI, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. DAYS, III
Solicitor General

DEVAL L. PATRICK
Assistant Attorney General

JESSICA DUNSAY SILVER
GREGORY B. FRIEL
Attorneys

Department of Justice
Washington, D.C. 20530
(202) 514-2217

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QUESTIONS PRESENTED

1. Whether the district court erred in admitting
expert testimony.
2. Whether the court of appeals erred in reviewing
the district court's decision to admit expert testi-
mony under an abuse-of-discretion standard.
3. Whether there was sufficient evidence of actual
or threatened physical or legal coercion to convict
petitioner of holding a person in involuntary servi-
tude, in violation of 18 U.S.C. 1584.

(I)

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TABLE OF CONTENTS

Page

Opinion below . . . . 1
Jurisdiction . . . . 1
Statement . . . . 1
Argument . . . . 5
Conclusion . . . . 12

     TABLE OF AUTHORITIES

Cases:

Bradley v. Brown, 42 F.3d 434 (7th Cir. 1994) . . . . 8, 9
Claar v. Burlington Northern R. R., 29 F.3d 499
(9th Cir. 1994) . . . . 8-9
Daubert v. Merrell Dow Pharmaceuticals, 43
F.3d 1311 (9th Cir.), cert. denied, 116 S. Ct. 189
(1995) . . . . 9
Daubert v. Merrell Dow Pharmaceuticals, inc.,
113 S. Ct.2786 (1993) . . . . 5, 6
Hamling v. United States, 418 U.S. 87 (1974 ) . . . . 8
Jackson v. Virginia, 443 U. S. 307(1979) . . . . 11
Paoli R.R. Yard PCB Litigation, In re, 35 F.3d
717 (3d Cir.1994), cert. denied, 115 S. Ct. 1253
(1995) . . . . 8
Patel v. Gayes, 984 F.2d 214 (7th Cir. 1993)  . . . . 9
Salem v. United States Lines Co., 370 U.S. 31
(1962) . . . . 8
United States v. Anderson, 61 F.3d 1290 (7th
Cir.), cert. denied, 116 S. Ct. 543 (1995)  . . . . 9
United States v. Harris, 701 F.2d 1095 (4th Cir.)  . . . . 11
United States v. Kozminski, 487 U.S. 931 ( 1988) . . . . 3, 11
United States v. Nobles, 422 U. S. 225(1975) . . . . 7, 8
United States v. Quintero, 21 F.3d 885 (9th Cir.
1994) . . . . 9
United States v. Rahm, 993 F.2d 1405 (9th Cir.
1993) . . . . 9

(III)

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IV

Cases-Continued:               Page
United States v. Shackney, 333 F.2d 475 (2d Cir.
 Cir. 1964) . . . . 9, 10

Statutes and rule:
18 U. S. C. 371  . . . . 2, 3
18 U.S.C. 1564 . . . . 2, 3, 10, 11
Fed. R. Evid. 702 . . . .  4, 7

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3

she was injured, and deprived her of adequate food. Id.
at 2a. The denial of food caused Gedara to experience
serious symptoms of malnutrition, including an en-
larged abdomen, massive hair loss, and cessation of
her menstrual cycle. Ibid.
Gedara eventually complained about the abuse to
nurses who visited the residence to care for the
Alzankis' child. The nurses notified local authorities,
who escorted Gedara from the Alzanki residence.
Pet. App. 3a.
2. A federal grand jury returned a two-count in-
dictment charging petitioner and his wife with con-
spiring to hold, and knowingly and willfully holding,
Gedara in involuntary servitude, in violation of 18
U.S.C. 371 and 1584, respectively. Pet. App. 3a. Be-
cause of a medical emergency, the district court
declared a mistrial as to -petitioner's wife. Ibid. A
jury returned guilty verdicts against petitioner on
both counts of the indictment. Ibid.
3. The court of appeals affirmed. The court re-
jected petitioner's contention that the evidence was
insufficient to support his conviction under 18 U.S. C.
1584. Relying on United States v. Kozminski, 487
U.S. 931 (1988), the court explained that, although the
government need not show that the victim was
physically restrained, a conviction under Section 1584
requires proof that the defendant intentionally held
the victim in service against her will by "actual or
threatened use of physical or legal coercion." Pet.
App. 5a; see also id. at 6a. The court found that
petitioner and his wife had subjected Gedara to such
legal and physical coercion, including frequent
threats of "deportation, death or serious harm should
she disobey the Alzankis' orders" (id. at 3a, see also
id. at 13a), and physical assaults designed to keep

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Gedara "in her place." Id. at 13a. The court also em-
phasized petitioner's inhumane treatment of Gedara,
inducting the "serious state of malnutrition," that
Gedara suffered at the hands of petitioner and his
wife. Ibid.
With regard to the threats of deportation, the court
concluded that Gedara reasonably considered the
consequences of a return to Kuwait to be "at least as
severe as imprisonment."  Pet. App. 14a. Several
factors led the court to that conclusion. Kuwait was
not Gedara's country of origin and the Alzankis had
warned her that they would not allow her to return to
her family in Sri Lanka. Id, at 3a, 20a. Gedara was
familiar with the Kuwaiti practice of stationing
soldiers at checkpoints to enforce restrictions cm the
movements of noncitizens, especially household ser-
vants. Id. at 14a n.10. She also had been told that
Kuwaiti police beat and imprisoned foreign household
servants who ventured out alone. Id. at 13a n.9, 20a.
The court added that other "threats and warnings"
supported the conviction, including petitioner's warn-
ing that the American police would shoot Gedara if
she left the apartment alone. Id. at 14a n.10; see also
id. at 20a.
The court of appeals further held that the district
court had not abused its discretion in admitting
expert testimony under Rule 702 of the Federal Rules
of Evidence.' The expert, Ann Burgess, testified that

___________________(footnotes)                       
                                
1 Rule 702 provides:
  If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise.

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victims of abuse are often so overwhelmed by fear that
they remain with their abusers instead of fleeing at
the first opportunity. Petitioner argued on appeal
that the expert's testimony was irrelevant and unduly
prejudicial because, he asserted, the expert's spe-
cialty was the behavior of victims of sexual abuse,
rather than the reactions of domestic workers subject
to involuntary servitude. Pet. App. 15a. The court of
appeals rejected that argument, observing that
Burgess had conducted research regarding victim
behavior in a range of abusive situations involving
unequal power relationships.  The court concluded
that "expert testimony on this subject-which the
defense was free to contradict-was `reasonably
likely' to assist the jury in understanding and assess-
ing the evidence, in that the matter at issue was
highly material, somewhat technical, and beyond the
realm of acquired knowledge normally possessed by
lay jurors." Id. at 17a. The court also rejected peti-
tioner's argument that Burgess's testimony imper-
missibly bolstered Gedara's allegations.  The court
observed that the district judge had cautioned the
jury that Burgess did not observe the events in the
Alzanki household and, as a consequence, had no
firsthand knowledge of what had occurred there. Id.
at 17a-18a & n.13. 2.

        ARGUMENT

1. Petitioner contends (Pet. 7-11) that the court of
appeals adopted a restrictive reading of Daubert v.
Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786
(1993), that conflicts with the decisions of other

___________________(footnotes)

2 petitioner challenged his conviction on several other
grounds, none of which are raised in the petition.

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circuits. According to petitioner, the court of appeals
held that Daubert's admissibility criteria 3. do not
apply to the psychological testimony at issue in this
case or to non-scientific expert testimony in general.
Petitioner is mistaken.
The court of appeals in this case did not hold that 
the criteria for the admission of expert testimony
articulated in Daubert are inapplicable to psychology-
cal or non-scientific expert testimony. Indeed, the
court cited Daubert, among other cases, for the pro-
position that trial judges have a duty to evaluate
expert testimony proffered under Rule 702. See Pet.
App. 16a (discussing trial court's "gatekeeping func-
tion" under Rule 702). Moreover, in addressing peti-
tioner's challenges to the expert's testimony, the 
court found that the trial judge evaluated the rele-
vance and reliability of that testimony (Pet. App. 17a),
as required by this Court's decision in Daubert, 113
S. Ct. at 2795. Petitioner suggests (Pet. 8-9} that the 
court of appeals should have expressly discussed each 
of the Daubert factors in deciding whether the
expert's testimony was admissible. The absence of

___________________(footnotes)

3 In Daubert, this Court articulated four factors to guide
trial judges in determining whether proffered evidence is
"scientifically valid" and thus qualifies as "scientific knowl-
edge" under Rule 702. Those factors, which were not intended
as a "definitive checklist or test," 113 S. Ct. at 2796, are (1)
whether a theory or technique can be, or has been, tested; (2)
whether the theory or technique has been subjected to peer
review and publication; (3) the known or potential rate of error
in using a particular technique and the existence and mainte-
nance of standards controlling the technique's operation; and
(4) whether a particular theory or technique has gained "gen-
eral acceptance" within the relevant scientific community. Id.
at 2796-2797.

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Similarly, the decisions in Bradley v. Brown, 42
F.3d 434 (7th Cir. 1994), and Claar v. Burlington
Northern R. R., 29 F.3d 499 (9th Cir. 1994), cited by
petitioner (Pet. 14), merely restate the well estab-
lished rule that a district court's construction of the
Federal Rules of Evidence is a question of law subject
to de novo review, while a trial judge's ruling as to
the admissibility of particular evidence under that
construction is entitled to substantial deference and
should be upheld unless "manifestly erroneous," see
Bradley v. Brown, 42 F.3d at 436-437; Claar v.
Burlington Northern R. R., 29 F.3d at 500-501-a
standard that is essentially equivalent to abuse-of-
discretion review. See, e.g., Patel v. Gayes, 984 F.2d
214, 217 (7th Cir. 1993) (treating "manifestly errone-
ous" and "abuse of discretion" standards as synony-
mous); United States v. Quintero, 21 F.3d 885, 893
(9th Cir. 1994) (same); United States v. Rahm, 993
F.2d 1405, 1410 (9th Cir. 1993) (same). Subsequent
decisions by the Seventh and Ninth Circuits, more-
over, have confirmed that the abuse-of-discretion
standard is the appropriate one for reviewing the
admissibility of expert testimony under Rule 702.
See, e.g., United States v. Anderson, 61 F.3d 1290,
1297 (7th Cir.), cert. denied, 116 S. Ct. 543 (1995);
Daubert v. Merrell Dow Pharmaceuticals, 43 F.3d
1311,1315 (9th Cir.), cert. denied, 116 S. Ct. 189 (1995).
There is no circuit conflict regarding the standard of
review of evidentiary decisions under Rule 702.
3. Finally, petitioner asserts (Pet. 15-17) that the
court of appeals' decision that the evidence was suffi-
cient to support his convictions conflicts with United
States v. Shackney, 333 F.2d 475 (2d Cir. 1964).
Petitioner contends that the court of appeals found
the requisite physical or legal coercion to have been

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established in this case "solely in the threats of de-
portation to a friendly country" (Pet. 15), and that the
decision therefore conflicts with Shackney, which
overturned a conviction under 18 U.S.C. 1584 that
rested exclusively on threats of deportation to the
employees' home country of Mexico.  There is no
conflict with Shackney.
Contrary to petitioner's contention, and in contrast
to Shackney, the court of appeals in this case did not
base its holding solely on petitioner's threat to have
Gedara deported to Kuwait. In the present case, the
court of appeals explained that petitioner's conviction
was further supported by substantial evidence of
"other threats. and warnings" (Pet. App. 14a n.10),
including petitioner's threat to Gedara that the police
would shoot her if she left the apartment alone.
Moreover, in reviewing the evidence supporting peti-
tioner's convictions, the court highlighted other
physical coercion and mistreatment, including peti-
tioner's assaults against Gedara and the serious
malnutrition she suffered as a result of petitioner's
actions. Id. at 13a-14a; see also id. at 3a ("In addition
to the physical abuse and inhumane treatment,
Gedara was threatened-on almost a daily basis-
with deportation, death or serious harm should she
disobey the Alzankis' orders.").
Even if the court of appeals had relied solely on the
deportation threat, its decision would not conflict
with Shackney. The defendant in Shackney threat-
ened to have the alleged victims deported to Mexico,
their country of origin. 333 F.2d at 477, 486. The
court reversed the defendant's conviction under Sec-
tion 1584, rejecting the proposition that "the statute
can be satisfied * * * by a threat to have the
employee sent back to the country of his origin, at

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least absent circumstances which would make such
deportation equivalent to imprisonment or worse."
Ibid. The threats at issue in Shackney are clearly
distinguishable from petitioner's threat to have
Gedara sent to Kuwait (which was not her country of
origin) and, thereby, to prevent her from returning to
her family in Sri Lanka. Gedara believed that if she
were sent back to Kuwait she would be subject to
imprisonment and beatings if she tried to leave. Pet.
App. 13a n.9 & 14a. The court of appeals thus con-
cluded that, under such circumstances, Gedara could
reasonably have believed that deportation to Kuwait
would produce consequences "at least as severe as
imprisonment." Pet. App. 14a. 6.  In any event, as this
Court observed in Kozminski, "threatening * * * an
immigrant with deportation could constitute the
threat of legal coercion that induces involuntary ser-
vitude." 487 U.S. at 948.
Viewing the evidence in the light most favorable to
the government, see Jackson v. Virginia, 443 U.S.
307, 319, (1979), the court of appeals correctly held
that a rational trier of fact could have concluded be-
yond a reasonable doubt that Gedara was "forced to

___________________(footnotes)

6 Nor is there any conflict between the court of appeals'
decision in this ease and United States v. Harris, 701 F.2d 1095
(4th Cir.), cert. denied, 463 U.S. 1214 (1983) (cited at Pet. 16).
The Harris court stated in dicta that "a mere reminder by the
employer that the consequences of leaving will be exceedingly
bad (e.g., deportation) is not enough [to support a Section 1584
conviction]." 701 F.2d at 1100. The Harris case itself did not
involve threats of deportation, nor does the decision in that
case cast doubt on the validity of a Section 1584 conviction
where, as here, the defendant combined threatened and actual
violence with the threat of deportation to a country other than
the victim's nation of origin.

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12

work for [petitioner] by the use or threat of physical
restraint or physical injury, or by the use or threat of
coercion through law or the legal process." Kozmin-
ski, 487 U.S. at 952. See Pet. App. 12a-15a. That hold-
ing does not warrant further review.
     
  CONCLUSION

The petition for a writ of certiorari should be
denied.
Respectfully submitted.

DREW S. DAYS, III
Solicitor General

DEVAL L. PATRICK
Assistant Attorney General

JESSICA DUNSAY SILVER
GREGORY B. FRIEL
Attorneys

JANUARY 1996