United States v. Marcus
2010 U.S. App. LEXIS 24895
| 2d Cir. | 2010Background
- Marcus was convicted at trial of forced labor (18 U.S.C. § 1589) and sex trafficking (18 U.S.C. § 1591) based on conduct from 1999 to 2001.
- The government introduced post-enactment evidence showing Marcus coerced Jodi to run a commercial BDSM website from January 2000 onward.
- Pre-enactment conduct included BDSM activities within a consensual framework; post-enactment conduct included threats, violence, and coercive control to extract labor and services.
- The TVPA was enacted in October 2000, but the jury was not instructed on enactment dates.
- On initial appeal, this court vacated the sex trafficking conviction for due process/plain-error reasons and remanded; the Supreme Court later reversed and remanded for proper plain-error analysis.
- On remand, the Second Circuit upheld the forced labor conviction but vacated the sex trafficking conviction and remanded for retrial on that charge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plain-error review requires reversal or retrial for Ex Post Facto error | USA argues the standard should look to substantial prejudice and overall fairness under plain error. | Marcus argues the error affected substantial rights and fairness, so retrial may be required for sex trafficking and possibly for coercive labor. | Proper plain-error standard applied; forced labor affirmed, sex trafficking vacated and retried. |
| Pre- vs post-enactment conduct sufficiency for forced labor | USA contends post-enactment coercion and labor satisfy § 1589 elements. | Marcus contends the conduct is part of an intimate BDSM relationship and not punishable. | No reasonable probability of acquittal; post-enactment conduct supports forced labor conviction. |
| Pre- vs post-enactment conduct distinction for sex trafficking | USA asserts material differences between pre- and post-enactment conduct justify conviction. | Marcus argues the sex trafficking evidence is not sufficiently distinguishable across enactment. | There is a reasonable probability the error affected the outcome; sex trafficking conviction vacated and retried. |
| Applicability of § 1589 to Marcus's conduct given the BDSM relationship | USA maintains the plain meaning of 'labor or services' extends to Jodi's website work and related coercion. | Marcus contends the statute would criminalize ordinary domestic BDSM activities. | The plain meaning applies unambiguously; the district court properly instructed on consensual BDSM limitations. |
Key Cases Cited
- United States v. Marcus, 538 F.3d 97 (2d Cir. 2008) (per curiam reversal; due process plain-error review in Ex Post Facto context)
- United States v. Cotton, 535 U.S. 625 (Supreme Court 2002) (plain-error review standard for prejudice and material impact)
- Johnson v. United States, 520 U.S. 461 (Supreme Court 1997) (plain-error standard and prejudice considerations)
- United States v. Monaco, 194 F.3d 381 (2d Cir. 1999) (continuing-offense considerations under Ex Post Facto contexts)
- United States v. Giordano, 442 F.3d 30 (2d Cir. 2006) (statutory interpretation when text is unambiguous)
- United States v. Nadi, 996 F.2d 548 (2d Cir. 1993) ( vagueness and plain meaning analysis in statutory interpretation)