United States v. Ike Kozminski, Margarethe Kozminski, and John Kozminski

at 1146-47 Hanna, 85 S.Ct. 380 U.S. J., Harlan’s

(Harlan, concurring). Justice pause Han-

words, reason gave which force cases

na, greater applies with even one, the bounds present

like outside Enabling Act. this, whether Loui- having all said

But forum non rejection of a doctrine of

siana’s exercise such an

conveniens is to define the sub- primary power

state’s ought that it rights of tortfeasors

stantive by a rule administration displaced

not judges federal remains

constructed efficiency its concerns so question;

close away pol- from substantive

inevitably drive immediate reaction

icy one’s surely rule cor-

application of federal so when the choice not sure But am

rect. competing but rules be- is not between Kennedy, Cornelia G. Wellford rejection federal rule and state’s tween a Judges, Krupansky, Circuit concurred Regardless, the outcome of the doctrine. opinions. filed my disagreement. the foundation Keith, Judge, Circuit dissented and opinion.

filed Jr., Ralph Guy, Judge, B. Circuit dis- opinion, filed F. Boyce sented and Jones, Martin, Jr., and Nathaniel R. Circuit Judges, Lively, Judge, joined. Chief America, STATES of UNITED

Plaintiff-Appellee,

v. KOZMINSKI, Margarethe

Ike Kozmin-

ski, Kozminski, and John

Defendants-Appellants.

No. 84-1288. Appeals,

United States Court

Sixth Circuit.

Reargued Dec. 1985. April

Decided Detroit, Mich., (argued),

Carl Ziemba for defendants-appellants. Shere, Detroit, M. Atty., Mich.,

Joel U.S. Stephen Hiyama, L. (argued), Irv Gornstein Matesich, Mildred M. Reyn- Wm. Bradford olds, Barnett, Dept, Justice, Walter W. Div., Rights Washington, Civil D.C., for plaintiff-appellee. LIVELY, Judge,

Before Chief ENGEL, KEITH, MERRITT, KENNEDY, JONES, MARTIN, CONTIE*, KRUPANSKY, WELLFORD, MILBURN, NELSON, GUY and Circuit Judges.

MERRITT, Judge. Circuit defendants, A jury convicted the dairy wife, farmer and his of two federal crimes: (1) “willfully holding involuntary servi- workers,1 (2) tude” two retarded farm conspiring deprive the workers of their right constitutional free from “invol- untary guaranteed servitude” Thirteenth Amendment.2 Their son was * Leroy any Honorable enjoy- J. Contie became Senior Cir- idate citizen in the free exercise or Judge July cuit any right 1986. privilege ment or secured to him the Constitution or laws the United 18, punishes felony: 1. Section Title as a States____” knowingly willfully "Whoever in- holds to The Thirteenth Amendment reads: "Section 1. voluntary any servitude or sells into condition servitude, slavery Neither nor ex- servitude, any person other cept punishment as a for crime whereof term, any brings any or within the United States convicted, party duly shall have been shall exist held____” person so States, any place subject within the United jurisdiction. conspiracy 2. Section Title states the persons Congress power offense as follows: "If two more Section shall have to en- threaten, conspire injure, oppress, by appropriate legislation.” or intim- force this article charge. up during milking, repaired barn conspiracy convicted

also equipment, hauled cleaned farm feed for contend that the defendants appeal On cows and did other farm chores. Dr. broadly defining “in- erred court below Stock, Harley psychologist, a clinical found purely psy- to include voluntary servitude” I.Q. 67 and Molitoris’ is 60. that Fulmer’s slavery, coercion addition chological physi- forms of other peonage, serfdom Fulmer in foster homes un- Robert lived argue They also legal cal coercion.3 He years he was eleven old. then en- til admitting in erred court below that the training boys a for where he tered school tending to testimony expert psychological general to do farm work. In the learned in were held the two victims that show 60’s, a farm 1950’s and he worked as hand through “involuntary conver- servitude evening in on various farms. One “brainwashing.” After reconsid- sion” or Margarethe Kozminski and their Ike and pur- development and legislative ering the Michael, son, picked up Fulmer on a road century criminal nineteenth pose of the two working. the farm where he was Ful- near the question, agree with in we statutes agreed to in exchange mer work for them in the erred that court below defendants a live. place for food and to Fulmer broadly, involuntary servitude too defining dairy on the worked Kozminski’s farm the testi- agree psychological and we Stockbridge, Michigan until 1968 when he not have been admitted. mony should Chelsea, to the Kozminski’s farm moved

Michigan. I. worker, Molitoris, The other farm Louis Ypsilanti at the government does not contend had been institutionalized The Hospital groundsk- a forcibly held to work on State and had been the men were two Arbor, brief, govern- eeper cemetery the at a in Ann Michi- In its en banc farm. gan prior coming “free to to to the that the men were Kozminski’s ment concedes leave,” early on own accord” farm. In the 1970’s Molitoris was “came back their go.” unemployed and the streets of Ann they place had no else to lived on but “believed winter, Kozminski, During Ike at the Arbor. Appellee for 15. Nevertheless Brief shop, occasionally also ran a government contends that the defendants’ who barber shop contact Molitoris to come into his to isolate men from allowed efforts sleep. and Ike through pattern get world warm Kozminski with the outside abuse, give place harsh Molitoris physical as as thereafter offered to verbal and well conditions, if working stay, cigarettes food and he living exerted would dairy farm. psychological extreme coercion work on the Kozminski Moli- form of agreed. upon given intelligence. the men their low toris According government’s testimony government The offered about case, conduct, this coercive referred the condition Fulmer Molitoris’ life “involuntary or “brainwash- conversion” living quarters, including the farm their on ing,” “involun- is sufficient constitute treatment, physical their their isolation on tary servitude.” the farm and how the Kozminski’s held servants, community. Louis out to Several Robert Fulmer and them wit- Molitoris, squal- testified the men lived lived and worked on the Kozmin- nesses occupied years filthy or. The trailer was dairy ski farm for more than ten water, brought having running no a broken general They refrig- laborers. farm milking day, maggot-infested cleaned food. for twice a erator Never- the cows below, jury incorpo- agree For the stated court instructed the rect. reasons we The trial incorrect, servitude definition § rate the was standard -and it encompasses the Thir- § § into applied should not have in either been context. parties do not chal- Amendment. The teenth question do not reach the of whether We it was statutory lenge process incorporating proper for the court to use the trial same stan- definition, al- definition into the constitutional though for 1584 since this § § dard issue was argue § Kozminskis that the parties. not raised incorporated incor- which was definition

H89 theless, apparently working discouraged men had also Molitoris’ sister from call- Moreover, ing nearby. him. facilities Ful- bathroom responsible and Molitoris were mer Witnesses testified that the Kozminskis cleaning quarters. their own Mrs. Kozmin- neighbors told and visitors to the farm the cooked meals when ski for Fulmer he lived men custody and were wards Stockbridge farm until he told her he state, although Mrs. Kozminski de- Thereafter, to cook

wanted for himself. allegations. nied these Both she and Ike provided the Kozminskis Fulmer later Kozminski testified that at one time groceries. Molitoris with had a farm hand who was a ward of the state. physical about the men’s gave general The court below charge neighbors’, treatment includes tenants’ and servitude. Under its in- descriptions being co-workers’ of the men structions, jury could convict de- slapped, choked and kicked on several occa- holding fendants of the workers to involun- Margarethe sions. John and de- Kozminski tary through psychological servitude striking the Ike nied men. Kozminski testi- physical well as coercion. It did not set out hitting fied that he kicked Fulmer a specific a theory of involuntary servitude pail cow with a crowbar and he threw a or jury’s confine the to par- deliberations a repairing him for not a leak. Ike also ticular of Instead, definition the crime. that he “as testified hit Molitoris hard as I left the definition of “involuntary servi- could,” they after Molitoris hit him while up jury tude” to general the under a loading pigs. charge. granted This Court en banc re- The men often drove a tractor the on vacating judgment view the of a three- road. Several witnesses also testified that judge Court, panel of the Judge Krupan- they had seen the men in town or in other sky, dissenting, which had affirmed the away locations from the farm. On occa- judgments convictions and of the court be- family sion left the farm to mem- visit low respect to each defendant. They bers or friends. sometimes “sneaked away” the They from farm. “hid” with II. neighbors. Two witnesses testified that Appeals The squarely Courts are Ike, Margarethe and John Kozminski interpretation conflict their of the words brought men the back to the farm and knowingly “whoever § willful discouraged leaving. them from Four wit- ly holds to servi [another] nesses testified that the men asked them to polar tude.” The two cases are United

remove them from the farm. (2d Shackney, States v. 333 475 Cir. 1964) J.), (Friendly, and United v. States government The contends that the Koz- (9th Mussry, Cir.), 726 F.2d 1448 cert. de minskis tried isolate the men from nied, 469 U.S. 105 S.Ct. 83 families and the outside world. The Koz- (1984) J.). (Reinhardt, L.Ed.2d ignore minskis told visitors the farm to Shackney, the gave Second Circuit “invol Fulmer and Molitoris and the men were untary a servitude” narrow construction. speak told Margarethe to visitors. effectively The court limited concept the pulled telephone Kozminski off the wall peonage: slavery and use the or threat of in the bam when Fulmer used it call physical punishment work, to enforce neighbor. Shortly after Molitoris moved state-imposed legal use coercion to farm, Margarethe Ike apparently make a debtor work for his creditor. ordered him to bum the con- trunk which belongings, including family tained his pic- Circuit, The Ninth like the trial court tures, allegedly because contained panel Court, below and the decision of our cockroaches. Ike Kozminski told adopts expansive Fulmer a more interpretation that his brothers and sister did not care about purely includes the use of psychological Margarethe him. discouraged Fulmer’s The Ninth opinion, coercion. Circuit like visiting sister and brother below, She the jury him. instruction court holding prior portation the crime to or sale nature of precise leaves the charge: “The general servitude. jury under person intends factor whether crucial metamorphosis The of the Padrone stat- an individual into and does coerce place present form ute into its took two subjugating the will — ” service stages. general The of the revision Although the Second and F.2d at 1453. language law criminal altered psycholog- differ on whether Ninth Circuits slightly but continued re- old statute “involuntary” servi- can cause ical coercion At importation or sale. quirement statute, meaning of the within the tude revision, Congress believed time of this agree physi- courts both coercion— language of the 1874 statute that the broad produce cal, legal psychological —must should retained because the Padrone be basic state of mind. the same in the victim exploita- system forms of other similar cause the victim to be- The coercion must tion still flourished. This sentiment viv- alternative,” Mussry, he has “no lieve that Henry idly by Senator Cabot illustrated way “no to avoid” F.2d at Lodge’s during remarks debate on Shackney, 333 F.2d at 486. labor. revision: difficulty statutory The construc- fact, President, slavery Mr. question presented and the lack tion long country has ceased to exist among the agreement Circuits justify not seem to me to the aboli- does and reconsider the prompted us to reread [these]____There tion of statutes such as legislative development and histo- unusual guilty of people who history statute ry of § designed which crimes those statutes Congress passed a begins in 1807 when punish. to The Senator referred to a trade, prohibiting the slave and statute the the Chi- case on Pacific coast where Congress, codify- while ends 1948 when years ago. nese were involved some I ing the criminal into Title com- laws a committee the was on of Senate which involuntary bined the slave trade and servi- question importa- investigated the present language into of tude statutes the boys country____ tion of Italian into this (The of these statutes and text § I happen to one of those who made be development their historical is summarized investigation into what was known as the Appendix.) hereto in a chart attached as an padrone system. padrones The words, The “hold to servi- brought boys in New York who out men directly as used in emanate tude” § Italy let out them various designed from an 1874 statute to outlaw purposes shoeblacks, thing and one ” — system import- so-called of the “Padrone boys and another that sort —and the of ing, selling exploiting the labor of Ital- practical were held in a condition of ian children the United States. The 1874 slavery. We have tried to meet some of punished shall Padrone statute “whoever immigration our these difficulties knowingly wilfully bring into the Unit- laws, slavery but the fact that has been any inveigled person ed States ... or ... abolished, crime, fact it is a the does kidnapped to ... with intent to hold ... desirable, to not to me make it seem service,” any involuntary to be or “cause therefore, the away to do with all stat- sold, any into of ser- condition designed punish utes which were the vitude, any person.” other The 1874 stat- crime and make it crime. goes say “every person on to who ute declaration thirteenth knowingly wilfully hold to invol- shall of amendment Constitution not untary any shall person service ... [such] ... so think that guilty felony____” deemed of be of itself sufficient statutes similar nature on the stat- original is narrower than statute of ute books the United States re- should present 1584 because the old statute § of prevent crimes quires “imported” or remain order be victim of servitude, character, they prior to whether occur “sold” whereas among immigrants of im- the Chinese or requirement 1584 eliminates the § padrones among who whether exist development torical but establishes the nar- in New in some our other York and row Second Circuit standard —limited to of large cities. physical legal coercion —without draw- ing content from the old Padrone statute. (1908) (statement Cong.Rec. 1122 of Sen. Judge Friendly reasoned that since the supplied). Lodge) (emphasis 1948 codification of 1584 “constitutes § proponent the chief of Heyburn, Senator law,’ ‘positive ... our search must be for revision, argued penal also for the law meaning rather than its § the Padrone statute in or- reenactment of parents.” two 333 F.2d at 482. Since protect classes of individuals who der Judge Friendly believed the 1948 enact- protect “can not themselves”: “extinguished” ment history, he did only criminal statute is intended [T]his not draw the old statute in framing a to enable to reach the law those who standard under any 1584. Neither do § being a party come here without their other cases decided to date. coming being party or here without We believe it a mistake to read § disposition of their or the services in isolation from the older statutes which whether be rights, control their produced it. statutes, Without the earlier irresponsible years children and con- the Padrone particularly statute, and the who, people or whether ditions legislative purpose them, which animated because their environment today. would not exist Section 1584 § lives, pro- conditions can appear any legislative does not to have tect themselves. purpose history aside from that associat- (1908) (statement Cong.Rec. 1115 Sen. parent ed with the statutes. We therefore Heyburn) (emphasis supplied). necessary believe it to define 1584 in § After reenactment and codification in terms of the nature of the evil which the stage metamorphosis the final predecessor sought two pre- statutes 1584 occurred in 1948. The old slave § vent. Padrone statute and the trade statute Specifically, legislative history sur- were combined into and the ele- § Padrone statute rounding suggests changed. ments of the crime were The designed it was to reach broader punish combined statute continues to those exploitation of class than was previously import, buy person or sell a who or with dealing slavery, covered laws invol- involuntary intent to hold to In servitude.4 untary peonage. servitude and The earlier addition, punishes just those also who clearly laws covered circumstances involv- person involuntary hold a to servitude with- ing the use or threatened of use law or kidnapping, importation selling. out or physical “holding force to constitute possible latter was under either the involuntary servitude.” The Padrone stat- old slave trade statute or the old Padrone was aimed at exploitation ute a form of statute.5 securing more that was subtle: the servic- of incapable es an individual is who of above, None of the cases listed giving legally valid consent. attempt give to define or content to involuntary of a standard servitude under Judge Blatchford, writing years pri two legislative rely purpose on the Court, or to elevation the Supreme § Padrone statute judicial or Padrone its purpose illustrated Ancarola, statute in United v. interpretation. Judge Friendly States F. Shackney opinion acknowledges (C.C.S.D.N.Y.1880). affirming this his- In An supra, changes 4. See 1. note other than the enumerated in the revi- notes, sion the 1948 recodification was not in- expansion This was not inadvertent. The revi- extinguish history tended to these stat- Congress sion notes to liberately 1584 indicate that § de- S.Rep. Cong., utes. No. See 80th 2d Sess. kidnapping require- eliminated the ("The (1984) original Congress intent of predicate ment which had been a to criminal preserved.”). liability predecessor in the statutes. 18 U.S.C. (1982). § 1584 historical and revision notes violating standard thus fails address the full for the Pa- conviction carola’s statute, Judge range proscribed by Blatchford addressed 1584 such conduct drone § jury trial court’s of the propriety In es- as that held criminal Ancarola. age that the instructed charge standard, which had attempted tablishing our we into account in taken of the victims be give way to the 1874 in a effect statute determining their em the voluntariness principle that is with the of nar- consistent age Holding that was indeed a ployment. Ac- row construction criminal statutes. considering the validity factor in relevant cordingly, adopt the standard modifies we consent, Judge Blatchford children’s type Shackney standard to include the circumstanc emphasized their unfortunate outlawed in the 1874 statute of servitude es: in the case. interpreted Ancarola children, serving the defend- [T]he “holding conclude that a We musicians, for his profit, to ant as street (a) involuntary servitude” occurs when morals, subject injury of their to his she has no servant believes he or control, properly be could not considered perform but service voluntary viable alternative rendering him service. (b) (1) for the the mas incapable exercising or master because They will affirmatively subject. physical ter’s use or threatened use of choice parents, force, (2) by their They were cast off the master’s use or threatened or Italy, (ie., state-imposed of the law legal violation use of coercion being country in this at all with the de- (3) peonage7), or use of fraud master’s facts, was, really on all the invol- fendant or deceit to obtain maintain services although parts, the sham untary on their minor, immigrant where is a the servant gone through form of their consent mentally incompetent. or one In who with. category, cases shown in the last it must be disability the servant under a Ancarola, 1 F. at 683. recognize or resist the master's fraud or view, thus In our Ancarola stands deceit of the servant’s vulnerabili because can important proposition service ty one of as member of these classes. there “sham where exists statute, guilty order found to be under as a result of several forms of consent” intentionally hold the vic the master must legal incapacity.6 The Ancarola standard tim to in one of these servitude only physical limited was therefore not proscribed ways. legal coercion. protects above, This those whose ser- Judge definition Friendly As does discussed wrongfully vices have been obtained and not focus on Padrone statute and the interpretation Shackney way who believe that have no viable thereof. employment Judge jury injurious trial one 6. Blatchford set forth the court’s such intended charge proper as follows: to morals and inconsistent with its its education, according condi- care and to its "proved charging After that it must be that tion, justified you finding will be then in brought the child here the the accused he to hold child to intended such brought hold so intent to involuntary cian,” the child when to indictment, service, charged in as the and beggar as a or a musi- service this, notwithstanding proceeded “Upon the the child the court as follows: fact employment Italy, question age important, had consented to the in and this child is the the of dissent, know, for, you regard things subsequent evidence while to that no some of accused, incapable years such con- the control the has child tender is under been of of of employment given." sent. The nature of the to which child, Ancarola, put (emphasis supplied). the the accused intended to the 1 F. at 682 arrangement regard evidence in to the made Williams, 4, e.g., See v. 7. Pollock 322 U.S. 64 Italy, ability and the of the child labor or to 792, (1944); instrument, Bailey S.Ct. 88 L.Ed. 1095 v. Ala- play important an circum- 219, 145, bama, connection, also, 31 219 US. S.Ct. 55 L.Ed. 191 you if stances Schmidt, (1911); History & IX A. Bickel B. the of believe from the evidence that intention of Supreme Court the United States: The bringing the accused in the child to this coun- of Responsible Judiciary try employ beggar and Government 1910-21 was to as a or as a the child musician, (1984). profit, street 820-907 for his own and that

1193 avoiding the services categories demanded. The statute to the narrow described legal physical prongs rulings force above. The coercion District Court’s appear instructions would Shackney prog- our standard follow and its criminalize general psychological coercion Fourth, without eny in Fifth and Eleventh Cir- deceit, fraud, legal force or coercion and cuits various forms of which outlaw slav- include all would individuals within the cov- ery, peonage.8 The serfdom and third ered subject class victims psychologi- directly prong history emanates from the coercion, cal just particularly not vul- designed protect 1584 ex- § nerable classes legisla- referred to in the tremely vulnerable classes of individuals history tive of the statute. The Ninth Cir- statute, by the covered 1874 Padrone cuit’s, panel’s and the District Court’s capaci- who classes similar to those lack broad might appear place definition ty to contract common law. day-to-day groups, of cult activities com- (Second) The Restatement Contracts religious munes within orders the cov- 12(2) capacity to contract discusses § erage of the statute. Our standard would person part relevant as follows: “A natural criminalize these only activities if the who manifests assent to a transaction has group engaged in one of the proscribed legal capacity full to incur contractual types of conduct. thereby (a) guard- he duties unless under We reverse and remand the case for (b) infant, (c) ianship, mentally or or ill new trial for these reasons. After a care defective____” or We also include immi- ful evidence, review we conclude grants express purpose because of the that we should not judgment order a 1584, predecessor statute the Pa- § acquittal, contend, as the defendants be interpretation sup- drone statute.9 This cause there is evidence from jury which a ported by Heyburn’s Senator statement (1) could conclude that the victims believed quoted above that the slave trade laws had no viable alternative but to protect were intended to “children of irre- perform (2) question, the labor in sponsible years and conditions ... [and] mentally the victims were incompetent and who, people because their environment practiced the defendants fraud and deceit lives, or pro- the condition of can maintaining the victims’ services. Cong.Rec. tect 42 themselves.” 1115 (1908). III. did District Court not limit the The Kozminskis also contest the admissi- or bility

masters psychological testimony servants covered requires 8. dessenting opinion, Judge The Fourth Circuit "threat vio In Section I of his confinement, sufficiently by lence or backed Guy immigrants derides inclusion of in our Harris, 1095, United deeds.” States v. by saying: standard Cir.), denied, 1214, (4th 1100 cert. 463 U.S. Furthermore, "immigrants” the inclusion of 3554, (1983) (quoting S.Ct. 77 L.Ed.2d 1400 Unit special supported as a class cannot Booker, (4th ed v. States F.2d Cir. majori- to the reference Padrone statute as the 1981)). requires Fifth Circuit fear of "such ty opinion suggests. Appendix itself As the leave, physical harm that victim is affraid to indicates, majority opinion itself the ante- regardless opportunities of the victim’s for es "any person cedent statutes reference invei- Bibbs, cape.” United States v. gled forcibly any kidnapped in or other coun- (5th Cir.1977), denied, cert. U.S. try, person with intent to hold such so invei- (1978). According 98 S.Ct. 56 L.Ed.2d 388 gled kidnapped any or in confinement Circuit, use, to the Eleventh “[t]he threat service____" hardly This is use, physical ened of force to create a climate of immigrant. definition grotesque example fear is the most such coer appendix This same sets forth the title of the 827, Warren, cion." United States v. 772 F.2d "Chap. pro- — statute follows: An act to (11th denied, Cir.1985), 833-34 cert. U.S. persons foreign against -, tect birth 1214, forcible (1986). S.Ct. 106 L.Ed.2d 326 89 constraint or We servitude.” think Mussry case is 9 of discussed footnote "persons foreign "immigrant” opinion. birth” means appar Warren Since evidence was standard, kidnapping ently would not include an “Ameri- sufficient under either court adopting point amply supported by rejecting did can in not comment on Muss Paris”—a ry. legislative history set out above. 1194 Harley Dr. ment of the test. The criticisms by Dr. Stock. Green

presented at trial given Tanay Drs. Emanuel and Robert that victims’ low voiced testified Stock pressures suggest ex- Dr. psychological Walsh Stock’s “involun- mentality, the “involuntary tary scientifically- is not upon created an conversion” erted them recognized. complete dependency Tanay akin to stated that he had conversion” psychological phe- “involuntary syndrome,” a never heard of Dr. Stock’s “captivity r prolonged physical theory prior trial. Dr. arising from conversion” Ta- nomenon phenomenon offered nay went on to note that the captivity. This “ideological and Molitoris were conversion” which is associ- that Fulmer show captivity syndrome coercion and had psychological ated with would victims of serving situation, the Koz- application” present into “no to the been “brainwashed” is inadmissible This evidence be- and that it would be “ridiculous” to at- minskis. tempt apply not laid to establish it. Dr. testified that cause a foundation was Walsh generally accepted ex- conformity to a he considered conversion to be its equivalent brainwashing theory. opined planatory diagnosis pro- Dr. Stock’s “exceeded sound admissibility expert testimo practice.” fessional governed by Rule 702 of the Federal ny is attempted Dr. Stock to establish his theo- Rule 702 states: Rules of Evidence. ry by incorporating the well-established scientific, technical, special- If or other “captivity syndrome.” Although captivity knowledge assist the trier of ized will syndrome generally accepted explan- is a the evidence or to fact to understand atory theory, application it has no to this issue, quali- fact in a witness determine a Tanay agreed case. Drs. and Stock both skill, expert by knowledge, fied as an “captivity syndrome” has ten neces- education, experience, training, sary elements: opinion testify thereto in the form of an (1) (2) Prolonged captivity; continuous or otherwise. supervision, around clock such as expert testimony to be admissible un For (3) environment; guarding; an isolated 702, four-part a test must met: der Rule (4) (5) supports; all removal of an attack (1) (2) qualified expert; testifying a on a (6) (7) personality; privacy; a lack of (3) subject; proper conformity gen to a (8) upon personality; assault the total a (4) erally accepted explanatory theory; systematic punish- use reward and probative outweighs any value of which (9) ment; tearing of the of the fabric Green, prejudicial effect. United States v. (10) personality; building up of a (6th Cir.1977) (empha personality. new Smith, supplied); sis United States v. (6th Cir.), denied, cert. present These factors are not in this 83 L.Ed.2d 143 U.S. S.Ct. case. There is no that Fulmer evidence (1984). part The elements of this four test subjected and Molitoris were to conditions preliminary ques under Green constitute equivalent to those described above. For 104(a) purposes Rule tions example, there was no evidence of actual such, Federal Rules Evidence. As captivity, necessary captivity element of judge trial must find that the syndrome. This list of conditions describes proposed testimony meet the Green process employed by the Chinese to prior admitting testimony: criteria prisoners during “brainwash” of war question. jury this is not a Fed.R.Evid. See Korean conflict. As bad as conditions on note; advisory committee’s 11 Moore J. dairy alleged the Kozminski’s farm are Bendix, Practice, H.& Moore’s Federal be, they fall short of those found (2d 1985).10 ed. § 702.10[3] prison camp. Accordingly, captivi- Chinese syndrome inapplicable as appear proper ty It does not a matter of given ele- the facts of this case. There- foundation was laid under the third law dissent, argument Judge Guy’sen banc and the court 10. The that United States v. Green has not considered or voted on this issue. should be overruled is made for the first time in fore, a proper foundation was not laid for Accordingly, judgment of the District Dr. Stock’s testimony under the third ele- Court is reversed and the ease remanded ment of the Green standard and it should for a new trial under the standards enunci- have been excluded. ated herein. court, KENNEDY, Circuit wards of acts which isolated G.

CORNELIA from commu- concurring. victims their families and the Judge, they had nity, telling the victims that Judge Merritt’s generally I concur go place to would to return no adopts a However, he because opinion. institution, fraud could be found to be of involuntar- subjective standard totally and Moli- prevented or deceit which Fulmer men- needs be some iness, I think there leaving prevented from the farm toris relationship of the standard tion of assisting community others Psychologi- defendants. intent of the so, incapable do them to when only can be established coercion cal acting on their own. testimony of witnesses through respect significant problem with presents WELLFORD, concurring: Judge, Circuit knowledge. intent and defendant’s

to a. holding guilty of someone a master be Can I disposed am toward the standard While master, involuntary where the servitude in Judge in in by Friendly this kind of case set servant know that the person, doesn’t laya Shackney, 475 States v. United expert testimony If involuntarily? remains Cir.1964), (2d adopt I and likewise do jury to find the servi- necessary the for in rationale set out v. the United States a de- it seem that involuntary, would tude (9th Cir.), Mussry, 726 F.2d 1448 cert. de expert knowledge. that also needs fendant nied, U.S. S.Ct. (1984), I persuaded L.Ed.2d 114 am uses or the the master force Where Judge analysis of state-imposed legal Merritt’s reasoned both coer- of force or threat case, remain, principal in this and I therefore the issues require the servant to cion to I, II III the result involuntary concur Parts and servant to hold the intent ultimately Here that reached. apparent. evidence servitude cruelly and the servants the master treated perhaps It seems to me that the best living deplorable conditions was provided expression of rule is the set out United establishing involuntariness relevant (5th Bibbs, v. States psychologist’s the clinical only because of Cir.1977), proof physical requires which of treatment, alternated testimony that such of coer- harm or reasonable fear harm and treatment, providing such as kind with imposed a victim cion a defendant on dinner, de- Sunday made the servants nice prosecution may be sustained: before pendent and unable to leave. Conduct per- guilty holding defendant is [A] effect, but evi- which had such without involuntary if de- son to servitude the the knew or dence that master should him placed fendant in such fear of has effect, does of that not tend known the is afraid to physical harm that victim of psychological intent. In the case prove regardless opportu- the leave victim’s coercion, required to jury the should be escape. nities his conduct find that defendant knew I therefore reverse and remand would cause the victim to remain involun- would this case. does not hold the serv- tarily. master servitude unless ant KRUPANSKY, Judge, Circuit concur- in- the servant serves master knows that ring. voluntarily. in Judge I concur Merritt’s well-reasoned agree I case should remanded be majority opinion and the decision acts for a new trial defendants’ because of the court and judgment reverse the trial likely would which made less that others this case for further its order remand help Fulmer Molitoris to leave judgment not inconsistent action farm; find jury could these acts majority the en court. banc keep intended to there that the them merely separately to observe incapable acting victims were write record, Stock, speaking through the Representation initiative. the Koz- Dr. own exception following hypotheses to the minskis Fulmer and Molitoris were takes logic of upon government’s proof which the the dissent seeks that both Fulmer and reasoning: Molitoris, its evolve as a result of an “involuntary conversion” became expert opinion testimony “psychological 1. his ad- hos- tages” vancing concept and lost their the novel of involun- “will” to leave the relationship and its tary conversion farm and service of the defendants. servitude was not an- Dr. Stock’s testimony only evi- scientifically accepted chored in the very dence that addressed the essence of captivity syndrome; government’s was, charges, there- concept 2. that his was not a novel sci- fore, qua jury’s verdict, sine non of the explanatory theory entific of first im- without conviction could not pression gained gen- one but that had stand. acceptance particular eral within the appropriate An point departure for my scientific field to belonged; which it chronology is a definition of purpose transcript that the of the record does for the rule that identifies standard to concept not contest novel as sci- applied in considering admissibility gained gen- entific theories that had of scientific evidence form expert acceptance particular eral within the testimony. they scientific field to which be- simply The rule stated in United longed. Brown, States v. 541, (6th 557 F.2d 556 throughout Dr. Stock insisted his testi- Cir.1977), and echoed in progeny its within mony, record, by as demonstrated and without circuit in the following scientifically recognized accepted and language: “captivity syndrome” theories “post- and necessary predicate A to the admission traumatic stress disorder” were seminal to of scientific principle evidence is that the concept “involuntary conversion” as upon which it is based “must suffi- be it related to servitude. The ciently gained gener- established to have government’s entire thrust of the evidence acceptance particular al in a field to upon keystone structured was of his States, Frye v. United belongs,” which it efforts to correlate his conclusions with 46, 1013, App.D.C. (1923). 54 293 F. 1014 syndrome” “captivity “post-traumatic and Franks, States v. United 511 F.2d stress His inability disorder.” to accom- (6th Cir.1975), n. 12 equated gener- 33 we plish this calculated result within the man- acceptance al in community the scientific legal existing precedent gives dates of rise showing princi- with a that the scientific to this order of reversal and remand to the ples procedures on which the trial court. testimony is based are reliable and suffi- It initially should be noted that the de- ciently accurate. fendants were convicted a conspiracy The purpose equally rule is sim- rights violate the of Fulmer and Molitoris ple. potential It evolved to avoid the preju- to be free from servitude in impact special dicial “the aura of reliabil- actually violation of U.S.C. and of § ity and trustworthiness” which attaches to holding Fulmer and Molitoris to involun- expert testimony proper admitted without tary preventing servitude and them from foundation which confuse or mislead leaving the farm where worked in trier of fact and thus defeat a defend- violation of 18 U.S.C. 1584. Both § right ant’s to a fair trial. charges proof of mandated intent com- mit the offenses. Perhaps purpose behind the rule is Brown, best in at articulated 557 F.2d government’s

It was not court where this admonished: presenting this case that either Fulmer or leaving Molitoris were restrained from laboratory. A courtroom is not a research employment by farm and defendants’ The of a fate defendant a criminal physical physical prosecution hang either force or threats of should not on his abili- Rather, successfully force. ty it the thrust rebut scientific evi- rule, purpose, Mindful of the its and the special “aura of an which bears dence application, my parameters of its observa- trustworthiness,” al- reliability analysis merely attempt present an tions testifying reality witness though concepts conclusions and of the scientific hypothesis unproved anof on the basis by Dr. Stock to the facts of this applied yet has experiment which isolated case. e.g., See field. in its gain acceptance Amaral, 488 F.2d v. United States Factually, is conceded that both Ful- Frye v. United mer and retarded, Cir.1973); mentally Molitoris (9th however, States, degree inferred in the not to the at 1014. 293 F. dissenting opinion. record reflects The expert testimo limits of permissible that both individuals had an acute aware- traditionally delegated to the ny have been activities, existing past their ness of their the trial court. sound discretion conditions, environment, working and their broadly has been this discretion scope of They general responsibilities and duties. construed, court’s exercise of the trial as evidenced their were well-oriented it is “unless is to be sustained its discretion attend, understand, enjoy abilities to Brown, manifestly erroneous.” games; to understand and follow baseball Green, 548 F.2d v. States United 556; presentations “soap the various serial See also United Cir.1977). (6th programs operas” and other television (6th August, 400, 407 v. States daily on a basis viewed However, must Cir.1984). such discretion on a television set furnished trailer basis, exercised, hoc bal on an ad defendants; and to visit and converse with of the evidence ancing probative value neighbors from time to time and return to upon effect the de prejudicial against its personal ap- Their the defendants’ farm. See right a fair trial. Fed.R. fendant’s pearance, hygiene, living conditions by Evid. 403. the house trailer furnished within defendants were of their own choice. proposi- endorse the fully recognize and Bunks, water, running soap, and showers certainty of result tion that absolute them in the always available to bunk- were opinion is not re- unanimity of scientific imposed regi- The defendants no house. admissibility long so as the con- quired for lifestyles adopted by the upon men two concerning the conclu- flicting testimony fact, although men. As a matter are based on experts sions drawn vicinity in the Kozminskis resided accepted and reliable scientific generally and Fulmer and Molitoris lived farm where principles. worked, they the farm more seldom visited that is decisive Having reviewed the rule frequently than once a week. Fulmer of- explan admissibility a scientific to the Kozminski’s sin- complained ten that John exist atory theory purpose provide for its gle and too isolated to Koz- visit was ence, expert testimony insight problems into the minski with an it is obvious operation of the farm. every inherent to permissible in case where testimony on purports to his witness base lifestyles Fulmer and Moli- of both See, e.g., ostensibly principles. scientific prior coming to to the defendants’ toris States, 293 F. 1013 (D.C. Frye v. United history of reflected an unfortunate farm Franks, States v. United Cir.1923); 511 significant fami- aimless dereliction without denied, cert. (6th Cir.), 12 33 n. working relationships. Prior to as a ly 45 L.Ed.2d 693 422 95 S.Ct. U.S. defendants, Molitoris, hand for the farm Green, v. States United (1975); years age, 60 was a street who was States v. United Cir.1977); (6th it, 1261 got food he found person where who Brown, United Cir.1977); (6th 557 F.2d 541 in the win- slept in cardboard boxes “had Brady, (6th Cir.), States v. box, F.2d 359 and “drank 595 in an old ice ter” and denied, Fulmer, cert. 862, 100 age years, S.Ct. U.S. homemade wine.” v. Amar age United States home from 5 to (1979); in a foster L.Ed.2d 84 had lived institutionalized, al, Cir.1973). was thereafter (9th years and 488 F.2d 1148 taught as a farm ject; conformity where he was to work a generally accept- to institution, Upon from the explanatory hand. release theory; ed probative and 4. performing he from farm to farm drifted compared value to prejudicial effect. per- simple, menial chores he same Brown, 557 F.2d at 556. for the formed defendants. The third element enumerated in Amaral addressing greatest significance Of provides such expert testimony must testimony of opinion Dr. Stock within “conformity be in to generally accepted the context of this case are concessions explanatory theory.” Implicit in the lan- (a) parties nor neither Fulmer guage is predicate that the physically Molitoris were ever confined sound, firmly reliable, anchored and suf- restrained; (b) they physi- were at all times ficiently accurate scientific principles, and will; (c) cally they free to leave the farm sufficiently point established hav- (d) farm; were knew leave the free ing general acceptance achieved within the individually together did fact particular it belongs. field which Stated occasions; leave the on numerous farm differently, the explanatory scientific theo- (e) they returned their own accord or (a) ry must have received at least some picked up were the defendants aas exposure peerage within scientific telephone par- result of calls from third (b) belongs; peer received evalua- ties; (f) they freely associated with each tion determine its validity scientific other, other farm working with hands (c) reliability; general accept- achieved farm, neighbors occasion; (g) ance within community the scientific they remained at or returned to the defend- belongs. which it farm, Fulmer, ants’ words “be- place go.” cause he had no Apart from the comments of his scien- peers, tific Dr. Stock’s own admissions ren- purported Dr. Stock tailored his scientific der his conclusions inadmissible under ex- opinions to the above related facts and isting legal outset, standards. At the that, living concluded as a result of the progression Stock’s “involuntary con- conditions to which Molitoris and Fulmer through version” “psychological hostage” exposed intentionally the defend- “involuntary to the ultimate result of servi- ants, experienced, the two men in Dr. distinguished tude” must be from his testi- Stock’s coined terminology, “involun- “captivity monial discussion of syndrome” conversion,” tary “psychological became “post-traumatic stress disorder.” The hostages,” and thus were held to involun- analysis distinction is critical to an of his tary servitude the defendants’ willful testimony “captivity syndrome” since and charged acts in as the indictment. “post-traumatic stress disorder” are mutu- determining In admissibility Dr. ally independent and exclusive ori- expert testimony Stock’s the pro within gins, fully as will more hereinafter dis- existing precedent nouncements of as dis cussed. herein, cussed guide am directed lines in syndrome,” enunciated United v. The “captivity States Amar as a charac- al, Cir.1973), (9th condition, 488 F.2d 1148 and genesis subse terized pre- had its as a adopted Green, quently by this circuit phenomenon dictable scientific in 1924 1268, applied Brown, 548 F.2d at and Pavlov, Ivan physicist, when a Russian Smith, F.2d at and v. perceived United States the relationship first between (6th Cir.), denied, cert. prolonged equivalent physical and mental 499 U.S. S.Ct. 83 L.Ed.2d patterns. stress and control of behavior (1984): subject again The received no- considerable toriety factors appear proliferation Four must as a result of record uphold prisoner camps admission of testi- and war concentration mony: qualified expert; proper 1. during 2. sub- existed that World War II. parties, On occasions when or Molitoris Fulmer were third there is no indication that picked up telephone forcefully as a result of calls from were returned to the farm. fatal, damaging, if not admis- early Dr. Stock’s scien- characterized practice, Syndrome testimony as a Triple-D opinion condemned his sions as literature tific dread), re- gener- was not “attained (debility, dependency, hypothecation had and effec- sophisticated highly community.” acceptance fined into a al the scientific during the Kore- Chinese by the tive ordeal readily He conceded that Brown at 556. research, Dr. published conflict. an literature, any let not aware of he was synthe- Lifton, psychiatrist, noted Robert research, that addressed published alone “captivity syndrome” concepts sized the Diagnostic and Statisti- theory; that the his clinical studies and his exhaustive from (Third Edi- of Mental Disorders cal Manual held returning Americans evaluations authority tion), recognized official during the Korean by the Chinese captive Association, car- Psychiatric American war. listing “involuntary conversion” ried no foregoing brief sum- Obvious hostage”; that his “psychological or currently Syndrome, Triple-D mary, peer recognition; and received had never syndrome,” had “captivity characterized concepts to not correlate his that he could the scientific exposure within wide received syndrome.” “captivity Lifton’s belongs, had been it community to which was, however, delivered coup grace de scientific peerage of that by the evaluated instant testimo- statements that his his own acceptance had received community, and case wherein he ny represented the first satisfying the thereby group, within hypothecations of “involun- advanced his Equally well of Amaral. third criterion “in- relationship its tary conversion” and psychi- peer group of recognized within It is no wonder voluntary servitude.”2 diagnosis psychologists was atrists of his initially unaware peers that his This disorder.” stress “post-traumatic having apprised of theory, and after been had, perhaps, received even diagnosis exceeding it as logic, characterized his acceptance than greater exposure professional practice, confused “sound syndrome.” “captivity “ridiculous” and “inven- situation” and juncture interesting note at this It is Accordingly, the record tion Stock.” testimo- of Dr. Stock’s that an examination if, Dr. make it evident disclosures he resorted ny that whenever discloses testified, instant his Stock by pub- opinion or conclusion supporting an theory, presentation of his public first endorsement, he peer lished research it never re- necessarily followed referred, subtlety, not to experienced validation, let peer evaluation ceived progression from “involun- theory of explanatory theory recognition as an alone through “psychological tary conversion” acceptance general within that had attained servitude,” hostage” “involuntary but community it be- to which the scientific “captivity syn- the conditions of rather to existing longed the mandates within “post-traumatic stress disor- drome” Green, Brown, Brady, precedent. See der,” re- philosophies of which had both Franks. recognition acceptance within ceived point perhaps appropriate at It is community to which be- scientific approval pronounce- interpose my long. right. your experience in- A. That is Q. Q. clinical with What is your testimony you involuntary have never voluntary opposed But servitude as to before; type isn’t dealt with this of situation conversion? my that correct? first case of A. This is actual —this A. That’s correct. servitude. regard Q. to you You have never testified with Q. have dealt So this is the first case that stress, situation before? the so-called or whatever —how- with Well, it, with I never you phrase A. if I have never dealt to it—was not immedi- ever want before. could have testified ate and obvious? upon Q. been called to make You have never in this case was A.- No. I think the threat diagnosis in this area be- or an evaluation immediate and obvious. fore; reached, right? you Q. isn’t That is the conclusion Right. A. it?

1203 Stifel, post-traumatic disorder, ments United States v. in 433 F.2d stress what denied, 401 (6th Cir.1970), people cert. 431, captivity.” (emphasis occurs in 438 added). 994, 1232, thereupon 91 S.Ct. 28 L.Ed.2d 531 Dr. Stock developed U.S. (1971), logic following nor manner that “neither newness lack on direct ren examination: certainty absolute a test suffices to Every new der it inadmissible court. Q. Well, you isn’t it true that contem- development day must first have its plate telling jurors, ... if allowed however, Stifel, expression court.” The so, to do that the so-called traumatic tempered longstanding must with the be event occured?

fel Franks. ards impression as teachings In would Brown, exposing Certainly, the application not this court Green, Brown, apply testified the trier of recognized theory facts Brady, to osten- the haz- of first of Sti Stock. A. No. information that had ing true, ^[******] my knowledge that it is What jurors, I am if my contemplating opinion, available me allegations an expert based wit- tell- are on sibly techniques ef- ness, scientific which defied these individuals did indeed response under fective circumstances syndrome. suffer the captivity They the scientific had no where demon- captivity syndrome. suffered against strable standard which it could be On proceeded: cross-examination he evaluated, tested, duplicated: Q. Despite the fact there is not litera- good why every There reasons ture subject on that all through at ostensibly technique scientific should be day February second of 1984 that recognized as the basis for testi- you are aware or have read? mony. apparent objectivi- Because its No. There A. is a lot of literature ty, opinion that claims scientific about the captivity syndrome. apt carry weight basis is undue with Q. In relation to sup- individuals who addition, In the trier fact. it is diffi- kept posedly are under conditions opinion except by cult to rebut such an which existed here? experts other cross-examination A. Yes. In the it sense not have thorough acquaintance based servitude, been called but underlying principles. order analogous the conditions are to other prevent deception or and to al- mistake happenings. such possibility of response, low the effective Q. analogous What were the condi- demonstrable, there must objective be a tions? procedure reaching opinion Well, Stringer A. Mr. through went qualified persons dupli- who can either points Lifton’s defined eleven [Dr. cate the result or criticize the means “captivi- underlying essential elements reached, drawing which it was their own like, ty syndrome”]. If you would I’d underlying from the conclusions facts. glad go through again. Brown, quoting United Q. But were basically, those all Baller, States v. (4th not, somebody where kid- denied, Cir.), cert. U.S. 96 S.Ct. naped camps pris- or concentration or a (1975). L.Ed.2d camp? oner of war scope magnitude of the confu- right. A. That is prejudice generated by sion and Dr. Stock’s added). (emphasis fully appreciated cannot be with- On further direct examination he elabo- analysis reasoning. out an of his Dr. Stock rated: particular case, “in this postulated post-traumatic basis stress disor- Q. you But have examined men these der as in the literature is the opinion and have an as to whether or defined captivity syndrome. captivity syn- they post-traumatic not suffer stress underlying drome is the event that causes syndrome that would be consistent syndrome prior prisoners cap- to the of American held research captivity awith war, them; by during cor- is that tive Chinese the Korean you examined time “brainwashing” “id- and the which induced rect? conversion,” eological analogous were to my understanding of A. Yes. Based techniques employed by the defendants my clinical literature and the scientific continuing intentionally in their efforts to area. experience in the control Molitoris and Fulmer. fact, did from the Q. they suffer now, post- captivity syndrome however, review, Even most casual syndrome, stress that traumatic identi- disclose that the eleven criteria will psychologi- would have affected by fied Dr. Lifton as essential to the “bra- leave leave end the—to ability cal to inwashing” by to implemented the Chinese causing this that was the environment thought necessary control to achieve syndrome; is that correct? accomplish “ideological conversion” “captivity syndrome” me are Yes. to the bottom-line characterized as A. It seems opportuni- incomparable living with the condi- people patently if have an question is they being held to which Molitoris and escape are tions treatment ty to when situation, Cap- why they? exposed. were any don’t Fulmer syndrome explains tivity that. Initially, it be noted the “bra- should that you me how THE Would tell COURT: inwashing” techniques by the employed captivity syn- you define would by as Dr. sci- Chinese studied Lifton were drome? conceived, entifically scientifically imple- syn- The captivity THE WITNESS: mented, scientifically monitored drome, Honor, psychological, Your The techniques around the clock. were manipulations that oc- are environmental professionally planned, into a structured thinking, people’s cur to normal make progressive program systematic, calculated feeling and reactions. totally pervert destroy to and/or an individ- change his ual and to behavior and (emphasis added). Essential to effective metamor- beliefs. stated, Simply posited Dr. Stock that was an environment phosis prisoner of the “captivity developed Molitoris and Fulmer physical captivity, a realization of living syndrome” condi- as a result rescue, escape or the use futility intentionally imposed tions and treatment ever-present or the threat force force in- upon by them the defendants which and even death. “post-traumatic stress duced disorder” Only insight sophis- destroyed voluntarily to leave the with an into the their will defendants, techniques even utilized the Chinese employ farm and ticated though they so, thereby systematically phasing captive through free to do were transforming stages by Dr. “psychological into hos- described Lifton’s writ- them inducing syn- tages” “involuntary ings “captivity servitude” as essential to bound hy- attempted for the Dr. further drome” does the correlation defendants.3 Stock syndrome,” living Dr. Lifton’s criteria to the conditions pothecated “captivity that the Ful- published discussed Dr. Lifton in his and treatment to which Molitoris and psychologically parents Dr. Direct examination of Stock: substituted for them. 3. They requisite could not form intent you any explanation Q. Do for their escape____ were, leaving they where the Koz- the farm minski farm? Although the term the record disclosed that Yes, surface, they appears A. on the "ideological refers conversion” to the efforts leave, opportunities and the had numerous question ideological the Chinese influence the beliefs me, interesting question, why having captives of American with a toward view they. didn’t propa- them denounce the United States for opinion my psychological It’s hostages, were ganda purposes, the record does not reflect though they physi- that even had farm, any relationship term the term ability get away bears cal from the "involuntary so conversion” coined tied to the farm that these [defend- caretakers, only they became were their Stock. ants] exposed incomprehensi- ological mer were accept become values and the values and beliefs “brainwashing” captors. of his by ble.5 The discussed Dr. sensory deprivation. Lifton involved total light of comparative analysis, any prolonged prisoner of the confinement attempt equate “brainwashing” prac- in a room of entailed total isolation limited by ticed the Chinese to induce Dr. Lifton’s space any point without access reference “captivity syndrome” with Dr. Stock’s “in- escape rescue; hope

and without of time voluntary conversion” and “psychological eliminated; concept hostage” was, and all of time were language in the of Dr. Em- anuel prisoner permitted Tanay,6 to see was no one “ridiculous” and an “inven- Walsh,7 tion of Stock.” Dr. Robert guard; slept his charac- prisoner only but as analogy terized Dr. Stock’s as exceeding permitted; permitted only he to hear was professional practice “sound and confused hear; he what was intended he was the issue.” spoken only by captors; his he was humiliated; physically he had no toilet fa- dire, On voir Dr. Stock under cross-exam- cilities; permitted privacy he was no ination when conceded: performing bodily functions; normal Q. Now, he sir, is dealing there literature clock by was under around the surveillance subject matter of involun- prisoner and tary constant- guard; being equatable his servitude as ly placed conversion, his you The insidious life. fear of aware of: procedure a total constituted assault on the to force A. Not individual calculated am aware of. personality personal Q. none, him to recant all of and ide- You right? know of inducing “capti- past president 5. The essential for Michigan elements ber and Psychia- of the syndrome” vity by Society profession- enumerated Dr. Robert trists and a number of other organizations Lifton were: al geographic in the immediate published area. He seventy has in excess of (1) (2) prolonged captivity; continuous professional papers has and lectured to various supervision, by around the clock such as agencies profession- law enforcement as well as (3) environment; guarding; (4) an isolated groups. al He has conducted seminars involv- (5) supports; removal of all personality; an attack on ing psychiatry throughout country. forensic (6) (7) privacy; a of lack assault appeared professional He has as a witness on (8) upon personality; systematic the total a (9) government behalf of the United States in a punishment; tearing use of reward and a matters, i.e., number of Ruby criminal the Jack (10) personality; of the fabric of the the build- investigation, case, captive the Garwood Vietnamese ing (11) up personality; of a new and ritual- Bundy and the Theodore case. He has behavior, by istic was not considered professional papers written on concen- analysis. Dr. Stock in his —treaties camp captives prisoner tration and survivors camps. paper of war graduate He delivered a Tanay at an Dr. Emanuel is a from the symposium psychiatric Munich, international on the University Germany, as- School of Med- pects captivity captives as well of terrorists Hospital icine. He interned Michael Reese at hostage arising Illinois; situations as a Chicago, psychiatric result there- completed his resi- Tanay of. Dr. dency a friend Dr. Lifton. Elgin Hospital. He is at State He attended presently professor psychiatry post-graduate clinical at University school at of Michi- Wayne State Medical School. gan. He is licensed as medical doctor Michigan. State Medical Board of He has a specialty psychiatry sub-specialty and a 7. Dr. Robert R. is a Walsh board-certified clini- psychiatry. diplomat psychologist forensic is a He of the cal licensed State of Michi- Psychiatry gan Neurology employee American Board of the State Prison of specialist Michigan and is certified as a Southern American since where he exer- Psychiatry Neurology responsibility virtually Board of cises and also ultimate the to- 5,000 dip- approximately acted on its Board of Examiners. He is tal mental health care of Psy- prisoners residing region lomat of the American Board of Forensic in the central of the chiatry. Michigan Department He is a director Detroit Receiv- of Corrections. He has a ing Hospital, Department Psychiatry. degree Michigan He en- bachelor’s and master’s joys privileges major hospitals University degree staff at all State and a doctoral from the area, Beaumont, Madison, including University in the Detroit Har- Wisconsin Wisconsin Grace, Sinai, John, per, Cottege Hospital Psychology. St. in Educational He is familiar with spectrum of Grosse a member Pointe. He is of the Ameri- Lifton’s book as as the entire well Association, Psychiatry subject can of literature Fellow of the on the and is a scholar Sciences, College American of Forensic a mem- the field. Quite they re-experience That’s correct. often A. the trau- stressor. ma or the Tanay Doctors and Walsh con- Both case In the of the Vietnam it veteran “involuntary that the terms conver- firmed may backfiring automobile, be of an “psychological hostage” sion” or could not just police- may it a or helicopter be a psychologi- any psychiatric in or be found helicopter just regular earshot, in throw- any psychiatric psy- or in cal textbook back, ing him psychologically back into chological literature. jungles in that condition of Vietnam. Stock, colloquy Dr. with the Even court, stated: He He ^{[*] [*]} He # captivity syn-

THE COURT: ... is but generally These are considered be a conversion the drome capacity respond diminished his or thing? same her environment. The reoccurrence of well, guess I THE WITNESS: ... it’s the stimulus event or something remote- exactly If thing. the same we look it, ly resembling whirring like the of a circle, captivity is an- syndrome at helicopter car, or the backfiring pro- of a circle. other very, very duces a clear effect dramatic on the individual. interrelationship “post-traumat- of a Walsh: vity experienced by Molitoris stress ties had defendants’ ic stress disorder” Dr. case comprehend. Stock’s formulations is more difficult to ... where time and in a state of bly traumatic tional disaster such as a quake, tornado or a severe auto accident examples have been assault could sor, delayed There death previously Exposure to the stressor It Stock’s syndrome” with the as ... remained in and the book is disorder. It is generally requires sort of very, camps to a definition is no captivity syndrome.” response of this. farm. exposed syndrome. reasoning, post-traumatic controversy very It equated is one thing definitely would incapacitated brutal on a to a Survivors example. well-identified Dr. wreckage diagnosis very the cause of semiconsciousness, “in this appear A and Fulmer required very the individual to between the living person. rape victim stress disorder clear post-traumatic severe severe P.T.S., post- that under The victim for a conditions particular with Dr. the Nazi initially. In the “capti- sexual giving earth- at has a possi- stres- Stock a na- long par- mentally, hears the may become He down the air. I ories or of the event. These are point during faced with al death and life-threatening. Generally the individu- are everyone. al is in situation where One, denced cant required able stressor that would evoke I’ve mentioned mentioned Re-experiencing of the And Again, standpoint may # He going recurrent Automatically, symptoms again start re-experiencing manual. whirring this is the no ^[*] He street, at least one of the the existence of a before, control from this is the very dangerous. acting very erratically. over it. survive. before, they ^[*] point imminent ^[*] of distress in almost for example, that he The first intrusive recollections of a the veteran psychologically and don’t know if he is diagnostic ^[*] very ^[*] helicopter They type very at least at some trauma it, possibility back thing severe, ^[*] of stressor ^[*] vivid really. following: perceptu- recogniz- in Nam. walking criteria signifi- that is in the really mem- H» ^[*] very evi- He As veterans, numbing responsiveness is a case the Vietnam he [T]here returned have back to the United States or reduced involvement with exter- beginning to the perception around nal world those sometime after them, relatively normally assimilated trauma is shown at least one of the something One, all of happens. then a sudden following: markedly in- diminished significant one background, terest or more With this activi- am con- Generally you to know ties. have what opinion8 strained to re-examine Dr. Stock’s person’s They interests were before. give in an effort some fabric to his They may often have had a withdraw. testimony. They may good been

hobby. following His examination reflects the dia- They particular some vocation. are no logue: this, they longer interested don’t do it. Q. you But have these examined men very sign people It’s obvious a around opinion an have as to whether or them, siblings, sort of spouse, thing. this they suffered post-traumatic Two, feelings of detachment or es- syndrome stress that would be con- trangement They from others. don’t feel captivity syndrome sistent society anymore, they part of feel differ- prior you time them; to the examined experience. They’ve had this They ent. is that correct? people. close They don’t feel to other my A. understanding Yes. Based of in very feel alienated real sense. You my scientific literature and clini- they experi- couldn’t understand what experience cal in the area. it, through ence. You weren’t this sort Q. fact, they did suffer from that thing, tendency pull of so there is a syndrome captivity and, now, post- away. syndrome, traumatic stress that effect, Three, typi- constricted would have affected psycholog- cally respon- that their means emotional ability ical to leave or end the—to longer sivity range runs full no that leave the that environment experience may euphoria we to ex- causing syndrome; this is that cor- depression. a much treme It’s in more rect? range. very may pri- limited It well be is, depressive, marily and often in con- A. Yes. It to me seems the bottom-line planned. They tent. It are not question is if people oppor- spontaneous, guess, I best word. tunity escape being when Spontaneous range or full in of emo- any situation, held in why don’t responsivity tional that we would be. they? Captivity syndrome explains that. dispute I among parties find no that diagnosis the essential stressor to a of proceeded He develop by his logic stat- post-traumatic stress disorder is an immedi- ing in response the court: ate, obvious, severe, life-threatening inci- THE you COURT: What do describe as dent over which the stressee/victim has no you condition that would define as perceptual Typical examples control. cited captivity syndrome? . in the of literature are victims the Nazi THE WITNESS: The condition camps; exceptionally death victims of an will, breaking down free of con- rape or brutal sexual assault or other vio- scious and volitional choice. act; lent criminal victims of severe natu- THE COURT: And its in this relevance earthquake, ral such disaster as a violent what, you case is understand it? tornado, fire, catastrophe; flood or other THE Explaining why if WITNESS: these disasters; airplane bombing; or automobile people opportunities way had to walk None torture. of such occurrences are [sic], why they did not. depicting living disclosed facts court, Upon to which conditions Molitoris Fulmer further examination exposed. responded: Stock diagnosis expressed "post- appears 8. The essence Dr. Stock’s conclusion to be contra- was, presume, traumatic provide dictory light stress disorder” his concession to the court substance his conclusion that both "post- reports diagnosis that his reflected no Fulmer, living Molitoris and conditions, as a of their result Tanay traumatic disorder.” Drs. stress Both were so that traumatized lost diagnosis. ruled Walsh also out the voluntarily their will to leave the farm. His your one, concluded, Q. report number place There is no ... which is a disorder, conclusion, captivity post-traumatic either exists? delayed, exists in Yes, chronic or this psychological A. in the sense. case, correct? is that (emphasis added).

A. That’s correct. true, appears It opine, as the dissent “captivity syndrome” is well doc- Upon further he conceded examination literature; psychological umented in how- will, captives’ collapse ever, recognition “captivity syndrome” Lifton, was not a described Dr. criterion generally as a accepted within the diagnosis for a post-traumatic stress dis- particular belongs field to which is not at order: issue in At appeal. issue is the corre- Q. post-traumatic Where under stress lation/equation lack thereof between it say breaking disorder does “captivity syndrome” and “psychologically part criteria, of will is down induced involuntary servitude.” It is this you told the is what Court? correlation/equation lack of between the that under A. would include the death two inconsistent theories that has been the camps, prison- camps, concentration argument thrust of defendants’ before the er of war. appeal. trial court and here It is the peer recognition, validation,

absence of any or acceptance of a correlation between the Q. asking you, I’m is that listed in the literature, research, two theories in or oth- entena? erwise that supports defendants’ as- down, A. breaking specifically, The signments of error. no, it’s not. It is also true that the defendants chal- (emphasis added). lenged terminology Dr. Stock’s of “involun- Stock, manner, purely conclusory Dr. in a conversion”; however, tary challenge rationale, thereafter summarized his after phrase. transcends the isolated The de- circle, going restating full his by scien- challenged application fendants of the that, tifically unsupported although thesis term catalyst as a Dr. Stock’s unsup- for “captivity syndrome” was anchored ported assertions “psychologically in- physical forcible confinement and was not duced involuntary “psycho- servitude” or a equatable living experi- to the conditions logical hostage” situation. It is the transi- Fulmer, by enced Molitoris and and the tion from physical a forceful confinement living facts of those conditions would not systematic coercive environment calcu- support diagnosis “post-traumatic “ideological lated to conversion,” induce disorder,” stress it was nevertheless his predicate which is the “captivi- essential opinion that both Molitoris and Fulmer ty syndrome,” psychologically induced “psychological hostages” were who had no servitude environment free will to farm leave the defendants’ and were physical psycho- forceful confinement or therefore “involuntary bound to servi- logical gives coercion that rise to the de- tude”: exceptions. fendants’ Q. Doctor, your opinion, the basis bridge The dissent gap, would vital you ... assumed all of the have although so, Dr. Stock was unable to do true, correct, facts as is that characterizing Dr. use of the Stock’s term you? have been related to merely descrip- conversion feelings were, A. if my Yes. It’s convey recognized tion to effects of the true, then, if this is what captivity syndrome. However character- occurred. ized, expressions Dr. Stock’s jury, Q. you And literally your intended as ostensibly opinion predi- eleven

points upon sufficiently profes- Lifton’s defined eleven cated established [Dr. rendering “cap- principles having gained elements sional gen- essential and as tivity syndrome”], you just acceptance particular if take eral in the field to ignored stensibly theory naked and scientific belonged, it stand carried undue which support only weight precluded in this the trier of peers his and find fact and personally response beyond tailored airing of his own effective an ineffective initial general denial. theory.9 Since Stock’s exposure among peers, received no had again misconstrues the is- The dissent qualified persons opportunity no had to ei- that, urges appeal since sues on when ther validate Dr. Stock’s results or criticize present two ex- the defendants elected opin- he the means reached his analogy Dr. Stock’s perts who contradicted Thus, paraphrasing ions. the admonition “captivity syndrome,” it was for the of the Brown, the courtroom weight of the evidence. jury to evaluate present in the case was a research labo- ques- is not in weight the evidence ratory. The in this defendants fate of tion; issue is the admissibil- the threshold prosecution criminal rested on their abil- initially of the that must be ity evidence ity successfully rebut evi- scientific Brown, 557 F.2d at ad- addressed. special dence which had an “aura reli- thusly: dressed the issue ” trustworthiness, ability although Conflicting testimony concerning the con- reality, testifying Dr. Stock to an un- by experts, long clusions drawn so proved hypothesis in an experi- isolated generally accepted they are based on gained general ment accept- which had not principle, ordi- and reliable scientific ance in its field.10 go weight narily to the I would therefore reaffirm the sound admissibility, than to its rather pronouncements by Green, circuit added). language presumes (emphasis Brown, and Brady and reverse the trial testimony competent expert witness and court on this issue. upon which is based demonstrated reliable principles sufficiently competency have been es- The testify which Dr. Stock to gained general accept- expert placed by tablished to have an witness was in issue government particular ance in the field to which and the court as demon- belong. by following dialogue: strated Morgan [government Ms. Your sum, represents counsel]: this case a classical Honor, we would offer Dr. Stock as an example expert of the manner which expert Psychiatry in the field of Forensic testimony, proper admitted without founda- expert testimony offer to the tion, can or mislead the trier confuse Jury. thereby right fact and defeat a defendant’s doubt, pass qualifica-

to a fair trial. THE I don’t Without Stock’s COURT: tions, opinion conveyed apparent up objectivity jury. as is it’s to the Go ahead and jury’s interrogate from the evident verdict. His ob- him. underlying principles. pre-

9. This was the first time that he testified to his In order to my theories: "this is first case of deception vent or mistake and to allow the servitude.” possibility response, there must be of effective demonstrable, objectiveprocedure reach- for appear It would that the dissent would over- ing opinion qualified persons who can overwhelming legal precedent rule in this cir- duplicate either the result or criticize throughout recognizes cuit and the nation that reached, by drawing means which it was their necessity strong countervailing for a re- underlying own conclusions from the facts. expert straint on the admission of to Brown, added). (emphasis 557 F.2d at 556 The protect right a defendant’s to a fair trial. disregards dissent the admonition with the ob- recognizing After that: produced servation that the "defense two ex- good why every There are reasons os- perts effectively who differed with and criti- tensibly technique recog- should scientific be testimony.” cized Dr. Stock’s expert testimony. nized as the basis for Be- erroneously It is true that after the trial court apparent objectivity, opinion cause of its an highly prejudicial admitted Dr. Stock’s testimo- apt carry that claims a scientific basis is ny, presented experts the defendants two to con- weight undue with the trier In addi- of fact. however, tion, opinions; tradict Dr. Stock’s opinion had it is to rebut such an difficult permitted except by experts by no alternative the court him to after other cross-examina- thorough acquaintance testify. tion based on a with 1210

Initially it should be noted that Dr. Stock courts only rationally accom- plished on an ad hoc basis. expert an field was offered “as Psychiatry.” Forensic Dr. Stock was nei- added). (emphasis qualified nor ther a medical doctor was he non-delegable is, The duty a matter of psychiatry, in the alone in specialty let law, placed squarely upon the shoulders of psychiatry. This alone the field of forensic judge. differently, compe the trial Stated suspect. his competency should have made tency testify aof witness to is for the judge credibility to decide while of the wit obviously The trial court abdicated its ness is left to the jury. United States v. pass compe- mandatory duty upon the Barnard, 907, (9th Cir.1973), 912 tency expert. offered a witness as an denied, 959, 1976, cert. 94 U.S. S.Ct. The dissent would dismiss this refusal to (1974). Expert L.Ed.2d testimony is by citing act to defense counsel’s failure to only admissible when the witness is in fact object. misplaced. The reliance expert an accepted by as such Amaral, court. United entering States v. purpose salient ob- (9th 1148, Cir.1973). Meaningful im jection during is to alert trial the trial court plementation of this mandate the trial to an issue which demands its attention and historically court has afforded accused appellate record for review the court’s protection against prejudicial im disposition thereof. The record here has opinion pact of evidence clothed with the concisely preserved appropri- the issue for weight expertise, gave rise to the disposed ate After the court review. rule, allayed the apprehensions voiced objection, obliged counsel were thereafter in Amaral and Green and echoed ruling proceed abide with progeny. Abdication the duty by Meyers, trial of the action. Maness v. plain judge trial error. 419 U.S. 95 S.Ct. dissent recognizes, but seeks to (1975). L.Ed.2d 574 avoid, charged by the error the defendants This construed court has Fed.R.Evid. 702 that, by stating in regard essence permit admission testimo criterion, the first the defendants did not ny only presented by (1) quali when it is argue that Dr. qualified Stock was not a (2) expert; testifying fied proper on a sub expert; they simply argued that the district ject; (3) conformity general accept in to a to qualified court failed find a that he was (4) theory; ed explanatory probative the expert. agree cannot with that conclu- outweighs any argument value of sion. The prejudicial presented which in defend- ants’ and Green, briefs before this court ap effect. F.2d at belies 1268. The that formulation. clearly Defendants con- pellants charged have also the trial court tested Dr. competency both Stock’s as an permitting government’s with error in the expert and the trial court’s refusal to con- expert testify express opinions to and to pass upon sider competency and when contrary to the first mandate of Green. expertise of his facts demanded a court Green, 1268, paraphrases Fed. ruling. More specifically, defendants chal- R.Evid. 702 as follows: lenged Dr. Stock’s competency extrapo- permit To expert testimony to heard “psychologically late a induced jury, trial court must first or a “psychological hostage” servitude” sit- specialized determine whether uation in an environment free of forceful knowledge involved “will assist the trier physical systematic confinement and/or of fact to understand evi- [other] psychological coercion from a forceful dence or to determine a fact in issue.” physical confinement and environment cou- satisfy prof- Then it must that the pled itself with insidious psychological coercive “qualified expert fered witness as an treatment calculated “ideological to induce skill, by knowledge, experience, or edu- conversion,” preconceived which is the Appellate cation ...” review such predicate syndrome” “captivity as dis- sum, sensitive lower Dr. discriminations cussed Lifton. In defendants competency All foregoing to Dr. Stock’s to for- objected practices proce- and testify psy- and thesis of first mulate dures were well within area his chiatric/psychological impression which expertise training. and experience His and unproved hypothesis in has its basis an training testing, in area of interpreting, purpose for an and derived isolated which evaluating and levels retardation did acceptance has no in the scientific field to not, however, qualify him as expert an in belongs. which it field unrelated discussed in Dr. Lifton’s of Dr. An examination Stock’s creden- Moreover, any book. absent correlation in training reflected tials11 academic the record between “terrorism” including diagnosis and treatment of chil- disturbed “hostage-taking” “captivi- Dr. and Lifton’s neurologically impaired dren and children. ty syndrome,” Dr. experience Stock’s in the experience testing He extensive had and area of “terrorism” no weight lends to his evaluating children adolescents who qualifications to beyond advance a theory mentally He retarded. was familiar expertise not recog- had received psychiatry with the literature in the field of nition, validation, general acceptance in “victimization,” characterized as which he belonged.12 the field to which it dealing rape as victims defines crimes, including other terrorism violent light questionable of Dr. Stock’s cre- hostage-taking, natural disasters. His highly dentials and his convoluted and of- knowledge syndrome” “captivity result- confusing ten and contradictory testimony, reading ed Dr. Lifton’s from book. court, very least, duty trial at the had questioned not The defendants have protect right the defendants’ to a fair competency Stock’s to administer individual by exercising trial mandatory duty its intelligence personality tests or assessment rule on competency appear Dr. Stock’s tests, group testing, conduct in- witness. Abdication of this terpret and evaluate individual mental re- duty by plain the trial court constituted levels, tardation the extent of examina- error. I would therefore also reverse tion he conducted Fulmer and Moli- trial court this issue. toris described extensive Accordingly, appear it would excep- dissent. Defendants have taken no support record does hypothe- herein opinions concerning tion to his the mental levels upon retardation of Molitoris or Fulmer. ses which the dissent relies. ing Hostage Negotiations. present- 11. The record disclosed that Dr. Stock's aca- He has demic credentials included a Bachelor of Arts papers Psychological ed at the American Associ- degree psychology University from the Washington, Technology ation in on the D.C. Children; Emotionally Florida Disturbed Psychological Terrorism and to Po- Consulation degree Psychology Master of Science in Clinical Agencies. paper lice He wrote a for the Journal Emporia University State and Doctorate Psychiatry subject on the of the Law on Psychology University in from the of Kansas in Competency to Stand Dr. charac- Trial. Stock Neurologically Impaired Children. Stock practice following terized his in the terms: fully psychologist was a licensed in the State of my capacity psychologist In as a I work with Michigan. any He was board in certified individuals, children, ' numerous and adoles- specialty. participated area or He an in intern- my mentally cents who retarded and ship Department Psychiatry Rutgers of at at work I at the Forensic Center have evaluated Adjunct Medical School. He was an Professor mentally and treated individuals who were College Psychology at Trenton State and in retarded. employment 1977 undertook at the Center for Ypsilanti, Michigan. Psychiatry Forensic He any 12. The record does not demonstrate inter- hospital privileges. listed no He has lectured at play "hostage-tak- interrelationship between Special Operations Research Section of the ing” “involuntary and Dr. Stock's conversion” Quantico, Academy Virginia FBI at on Interna- "psychological hostage” thesis. The conditions Hostage Negotiations tional Terrorism and and “hostage-taking" associated with were character- Academy at the United States Secret Service by Syndrome" ized as the "Stockholm Dr. Stock. Washington, Interrogation D.C. on Interview any analogy The record also fails disclose Analysis Threat President. He was Community points "capti- between the eleven Dr. Lifton’s College an instructor at the Jackson Academy vity syndrome” and criteria Police ing and the Criminal induces Justice Train- Hostage Syndrome.” Center Ohio in field of Tak- "Stockholm KEITH, Judge, dissenting. Circuit To arbitrary have an classification which will equal facility resolve with all of the Judge I Guy’s concur in well-reasoned cases that would arise under the statute However, dissenting opinion. I sepa- write tempting is indeed a prospect. It rately highlight my some of concerns much harder to have to work under a I about this case. feel that the majority statute which will raise ques- difficult opinion unduly scope restricts the of 18 tions in the borderline cases inevitable Judge Guy correctly U.S.C. 1584. states § application whenever the of a statute de- only that fraud and deceit are not the ways pends upon appraisal an of the state subjugate Also, the will of another. the human mind. limiting minors, the class of victims to im- 333 F.2d at 488. migrants incompetents and mental is un- derinclusive and without merit. problem with the definition offered majority only that it not unduly especially I am majori- disturbed with the focuses on the means of accomplishing in- ty’s treatment of testimony is- servitude, voluntary also, but at least as to sue. I think that the majority’s reliance of prong, its third would define and limit the Green, the factors in United States v. persons classes of applies. to whom it (6th Cir.1977), misplaced. F.2d 1261 necessity see no for the former and no analysis Green should be limited to deter- justification for the latter. mining admissibility evi- scientific case, attempts Whenever one dence. define of Dr. set- ting out the accomplishment means of Stock findings, was based his clinical risk of underinclusion is theory. not on an esoteric considerable. What is needed is a definition of “involun- above, Based on the I think the Court is tary listing servitude” not a examples committing egregious an posi- error in the how it accomplished. I would offer tion that it has taken. acceptable definition, as an least for “involuntary,” suggested in the con- GUY, Jr., RALPH B. Judge, Circuit dis- curring opinion in Shackney: “Where the senting, joined by LIVELY, Judge, Chief subjugation of the ofwill the servant is so and BOYCE F. MARTIN and NATHANI- complete as to render incapable him JONES, EL R. Judges. Circuit making choice, a rational the servitude is I respectfully dissent from the majority’s involuntary____” goes Id. at 488. It with- part conclusions in part both II and III of out saying that since this is a criminal opinion. statute, would, course, master

had to intend this result.1 I. The “fraud prong and deceit” of the ma- It is clear that 18 U.S.C. 1584 is lack- jority's apparently § test is the creation of ing precision in definitional when it makes majority limiting as is the of the classes holding criminal the of one in “involuntary to whom it apply. Prongs (1) is to (2) servitude.” genius Whether this is the proposed test-physical force and this section deficiency or a by legal to be cured coercion—are slavery peon- judicial legislation is not so age clear. The deceit,” tests. “Fraud however, majority apparently concludes it is a defi- are not terms of art the arena of involun- ciency proceeds cure it tary substitut- servitude cases and would seem to ing arbitrary definition that raises more cover an range almost limitless of conduct. questions than it In discussing answers. I support Since write in of a more flexible specific section, Judge Dimock, who definition than that offered by majori- concurred in Shackney, prophetically ty, it is not the breadth proposed of the wrote: troubling. definition that is simply I see no legislative 1. I history by think that the utilized contemplated type servitude is of a associat- majority helpful question is more on the slavery peonage. ed with what "servitude" means. I would concur specifically need to reference “fraud and II. I deceit” to the exclusion other means. I greater have even concern for the ram- agree deceit, would that fraud and in addi- part III of the majority’s deci- ifications sion than I coercion, physical legal

tion to force and part do II. This concern is ways subjugating are the will of anoth- predicated, part, at least in by the frequen- certainly only er—but not the cy with which courts deal prob- with these ways, they necessarily nor are the most Involuntary lems. servitude cases are few between, egregious. and far whereas in cases which experts testify daily are a occurrence. I puzzled why am also as to the “fraud Due to what the record tells us about the exception, one, and deceit” if there is to be condition of the alleged victims of this application should be limited its to mi- crime and how traumatic the trial was for nors, immigrants, incompe- mental them, I very doubt much that there will necessary tents. Where it is to resort to ever be a pursuant retrial to our remand. (Second) The Kestatement on Contracts to is, Even if there I do not consider it a interpret a criminal servitude global significance matter of whether Dr. statute, revision, concerned become Stock is testify allowed to or not.2 How interpretation, underway. Further- ever, I am concerned about the rationale more, “immigrants”' the inclusion of as a used for the exclusion of this evidence be special supported class cannot be refer- ing used in other cases. As I develop will ence majori- to the Padrone statute as the further, infra, I submit that our decision in ty suggests. appendix major- As the to the Green, (6th United States v. 548 F.2d 1261 indicates, ity opinion itself the antecedent Cir.1977), on majority which the wholly “any person inveigled statutes reference relies, should be if clarified not overruled forcibly kidnapped any country, other by this en banc court—not extended. person with intent to hold such inveigled so kidnapped any confinement or to in- A. service____” voluntary hardly This is The majority cites United States v. immigrant. definition of an Green, (6th Cir.1977), F.2d 1261 setting forth applied the standards to be I would offer as the final evidence in determining admissibility tes- support proposition majori- that the Green, timony. convicted of conspiracy to ty’s definition problems new causes more substance, manufacture a controlled Dime- that, than it cures the ap- fact when it is thyltryptomine, challenged expert testimo- case, plied to the instant result ny First, admitted at challenged trial. he remand for a retrial on the fraud and deceit testimony of a chemist from the Food theory majority even after the rules out Drug testified, Administration who Dr. Stock’s testimony. Although I would among things, other posed as to the threat original conviction, affirm the I nonetheless drug, upon body, its effects strange unsettling find it to send a procedure by which it have been clas- criminal case this nature back substance, sified as a controlled and its retrial on a never advocated relationship Second, to LSD. Green chal- government against or defended by the lenged testimony agent of a DEA who defendants in the first trial. testified as to dosage the number of units This is easy question not an definitional theoretically manufacturable and it is one on which reasonable minds found, from the anticipated chemicals might and federal circuits differ. I write purity product, price the final the street dissent, however, primarily because I dosage unit, of a and the details of other majority believe the has rewritten rather illegal drug transactions that had no rela- interpreted than 18 U.S.C. 1584. tion to the defendant. Id. at 1264-65. § majority opinion It is not clear from the find mandate exclusion of Dr. Stock’s problems whether the are correctible in a second trial. foundational 1214 result, first Green

Significantly, testimony the court noted Dr. Stock’s no different is 702 the test for assessments of set forth clinical psycholo- that Fed.R.Evid. than the admissibility expert testimony. 548 F.2d of physicians gists regularly by received Nevertheless, the court found at 1268. distinguish I am trial courts. unable to to applied deficient when criminal Rule 702 type from, example, of testimony this for cases, among that it failed to include psychologist psychiatrist that of testi- a to the trial court the be balanced factors fying on the issue of a criminal defendant’s impact expert prejudicial potential Essentially, testified, sanity. Dr. af- Stock rights testimony upon the substantial ter examination of individuals careful relying the accused. Id. Consequently, facts, the background as well as that the Amaral, 488 F.2d States v. United victims’ wills overborne. This nei- Cir.1973), (9th adopted “for the court 1153 theory general ther nor novel outside the appeals the four criteria use in criminal expertise psy- psychologist area of Amaral for of trial proposed review certainly chiatrist. It is not application concerning expert testimo- court decisions of a scientific test. qualified subject; ny: expert; proper 2. ‘1. majority opinion assumes testi accepted conformity generally to a ex- 3. mony offered like that of must Dr. Stock’s 4. planatory theory; probative value Green test be submitted to the for scien ” Id.3 prejudicial compared effect.’ Yet, tific evidence. such rationale for Green sug- extent that the court To the test, explained by court United as all gested applied must its test be Brown, (6th States v. 557 F.2d 541 Cir. cases, testimony in such expert criminal 1977), support does not such a conclusion: holding clearly inconsistent common with good are why “There reasons ev- many types practice. contrary, To the ostensibly ery technique scientific should expert testimony regularly received in recognized expert the basis for cases without to standards criminal resort testimony. apparent Because of its ob- Green Green. such those set forth in opinion jectivity, a scien- claims type generally of test courts describes apt carry weight tific basis undue employ analyzing admissibility when addition, trier with the of fact. In it is mind, my evidence. To there is a scientific opinion except difficult rebut such an type scientific difference between the experts byor other cross-examination testimony normally to which such a test is thorough acquaintance based on a testimony applied, expert and the of a clini- underlying principles. order In psychologist like Dr. cal Stock. prevent deception or mistake and al- simply did not two individ- Stock take possibility response, low the of effective uals, to, spoken he had whom never met or demonstrable, objective there must be attempt on a set and based of known facts reaching procedure opinion for Rather, theory. to fit them into a he exten- persons qualified dupli- who can either Molitoris, sively interviewed Fulmer and result or cate the criticize the means tests, battery performed psychological reached, drawing was which it their own histories, acquainted medical reviewed underlying conclusions facts.” with the under himself circumstances United States v. (quoting they lived. Dr. Stock testified that Baller, Cir.), cert. (4th opinion his his clinical derived from denied, 423 U.S. S.Ct. men, including evaluation two (1975)). L.Ed.2d 391 administered, objective tests he as well as accepted experience this field This statement indicates the tradi- two As a conversion. tional concerns involved with scientific tes- readily why testimony It is not understandable the Green cluded that the was irrelevant and necessary adopt any special prejudicial, commonly court found it determinations made un- signif- admissibility test der Fed.R.Evid. and 403. Even more finding criminal cases. trial court icant is the fact that Amaral was decided that the before admitting adopted. testimony, erred in court con- Rules of the Federal Evidence were

1215 McDonald, 351, People 37 (1) objective scientific testimo- v. Cal.3d timony: 723-24, special reliability Cal.Rptr. an “aura of P.2d 250-51 ny will bear trustworthiness,” Brown, (1984) 557 F.2d at expert psychological (permitting tes (2) that a “minimal reserve identification). timony eyewitness on See critically can examine the experts exist who Metzger, v. also United States in a validity a scientific determination (6th Cir.1985) (expert opinion as to Addison, case,” States v. particular United explosion part compar cause of based in (D.C.Cir.1974). Neither explosion actual ison between demon implicated by is the testi- of these concerns basis,” stration does not claim a “scientific mony of Dr. Stock. properly spe but falls more within “other knowledge” category cialized of Fed.R. testimony on the state of Dr. Stock’s 702; such, carry it does not Evid. with it predicated on a mind of the victims was any special reliability gener “aura” of technique type on the of sub- scientific but psychologist acceptance particular jective analysis that a clinical al field is not case, perform. In a recent required). is trained to Supreme rejected the ar-

California Court Likewise, concern, gument expert psychological testimo- the second relative to ny subject experts effectively should be to the same test as whether exist can who testimony: scientific being refute the scientific evidence admit- ted, Here, is not relevant. the defense important distinguish in this re- It is experts produced two who differed gard expert testimony and sci- with between gives effectively entific evidence. When a witness criticized Dr. Stock’s testi- personal opinion mony. prejudiced by on the stand—even The defense was not expert jurors qualifies if he as an being experts respond to locate unable —the temper acceptance of his testi- may their testimony.4 Stock’s mony healthy skepticism born of beings knowledge that all human Moreover, to the extent that the Brown opposite may But the are fallible. suggested court that it is soniehow unfair produced by

true when the evidence to burden the defendant with the necessity laypersons, jurors many machine: like obtaining experts prosecu- to rebut the inordinately high de- tend to ascribe an case, gain tion’s thorough or to acquain- gree certainty proof derived from tance underlying with the principles of the mechanism, in- apparently “scientific” expert’s testimony, suggestion such a procedure. Yet aura of strument or explicitly rejected by the Federal Rules of infallibility that often surrounds such ev- Evidence. Advisory See Notes of Commit- that it idence well conceal fact (rule tee to Fed.R.Evid. 705 “assumes that experimental remains and tentative. the cross-examiner has the advance knowl- ^{[*] [*]} # ^{[*] [*] [*]} edge which is essential for effective cross- examination”). Here, contrast, such methods are no applied in issue. never the Kel- We have expert testimony, rule medical

ly-Frye actually Green test is derivative of psychiatrist even when the witness Frye States, v. (D.C. United 293 F. 1013 subject and the matter is as esoteric as Cir.1923). But see Part C. It is infra past of a state of mind reconstitution noteworthy therefore that the court which prediction dangerous- or the of future first Frye introduced the standard for test ness, diagnosis or even the of an unusual ing admissibility of novel scientific evi form illness not listed in the of mental dence has stated that applies the standard diagnostic Psy- manual of the American “questions of admissibility expert tes Association____ chiatric timony based on new methods of scientific 4. It appears physical where was an obvious lack of clear from the record that there always government present present. testi- restraint The defense was knew it would have to accordingly. mony prepared on the state of mind in a case aware of this and victims' qualified. No one here has

measurement____” v. Ad United States challenged qualifications Stock, of Dr. added).5 (emphasis F.2d at 743 dison, 498 fact, and in he appears eminently qualified contemplated by The concerns the opinion to offer an on the state of victims’ adequately Green-Frye test can be ad element, The mind.7 second the whether in by Rule 403 these circumstanc dressed subject proper a expert is one for testimo- instance, the unwarranted “aura es. For ny, implicitly by has been answered this may reliability” surround the evi that involuntary court’s definition of servitude. tendency, if may assessed its dence be prong The majority’s first of the test is jury. any, mislead States the United v. that “the servant believes that he or she (3d 1224, 1239 Downing, 753 F.2d Cir. perform has no McCormick, viable alternative but to 1985); Handbook of see also (3d the service for the Consequently, Law of Evidence 203 at 608-09 master.” the § 1984).6 the extent servant’s is a ed. And to that the state mind crucial factor in Green-Frye works to assure the majority has, however, standard this formula. The expert availability of more than one on the adoption undercut its of this standard with involved, preserved value topic that can be type its that conclusion the testi- the Rules of Evidence under Federal as mony offered here state of victims’ may availability consider the well. Courts mind If proposition is inadmissible. is in experts to evaluate evidence de accepted something that less than actual termining prejudice might undue whether physical restraint can result in violation of result from its admission. prohibiting statute servi- tude, particularly in the case aof victim considering case Since we are this en mentally who is incompetent banc, appropriate an time thus it would be become an premise in that servant virtue of reconsider Green ex- fraud, pert testimony any qual- should the master’s deceit or criminal cases be then judged by psychiatrist psychologist a different standard than civil ified should be certainly cases. This result is testify particular dictated able to that in a instance Federal of Evidence Rules which the will of the victim was overborne to the relatively at the were new time Green was point involuntary. service was appears decided. It to me that the fact jury, a after consideration all the is, inquiry course, third the crucial evidence, including any expert opinions al- here; is, one testimony whether the is evidence, into must lowed find defend- in “conformity with generally accepted guilty beyond ant a reasonable doubt is all explanatory theory.” 548 F.2d at 1268. necessary the differentiation that above, As stated gene- this element has its called for. sis in Frye. time, At the same it has undergone a important subtle but change.

B. in Frye court held: Assuming, however, that majority going correct in on to apply part four Just when a principle scientific or dis- Green, test of the first inquiry covery is whether crosses line between ex- Frye 5. The test subject vigorous Jury has been the 6. dispelling instructions are also tool for an reliability, criticism. See Downing, jurors United States unwarranted aura of v. as instructed, 1224, usually here, (3d they Cir.1985), they F.2d 1235-37 and authori give expert’s opinion only should such ties cited therein. The courts that have moved weight deserves, think it and should away Frye adopted reliability have test. reject given it if "conclude that the reasons Downing, See (relying part support opinion (App. are not sound.” opinion on this court's in United States v. 154.) Franks, 25, (6th Cir.), 33 n. 12 cert. denied, 422 U.S. 95 S.Ct. 43 L.Ed.2d By "qualified” suggest mean more than (1975)); Berger, 3 J. Weinstein & M. Wein Here, just paper credentials. Dr. Stock had 702-20; stein’s Evidence § 702[03] at 702-18 worked victims conducted exten- Williams, (2d United States v. 583 F.2d 1194 testing. completely sive He was familiar with Cir.1978), denied, rt. 439 U.S. period S.Ct. long ce of servitude and the circum- (1979). 59 L.Ed.2d 77 surrounding stances it. factor, stages applying and demonstrable In perimental the majority con- cludes that Dr. testimony in this Stock’s difficult define. Somewhere is inad- missible because a foundation force of was not laid twilight zone the evidential to establish its conformity to a generally recognized, principle must be and while accepted explanatory theory. arriving In go long way admitting will courts conclusion, at this the court relies on the expert testimony deduced from a well- experts of defendants’ who criti- recognized principle or scientific dis- theory. addition, cized Dr. Stock’s thing from covery, the deduc- majority, listing after capti- the elements of sufficiently is made must estab- tion vity syndrome, determines that the facts gained general acceptance lished presented at trial support do not the exist- particular in the in which it be- field ence of these Accordingly, factors. the longs. court holds captivity syndrome inap- that added). (emphasis 1014 293 F. at “General plicable as a matter of law. acceptance particular in in the field which it type analysis While this may be com- belongs” widely applied is the criterion still pelled by formula, Green have serious Green, today. Yet in this standard has concerns with it. majority The frames the “conformity generally accept- become to a evidentiary inquiry as whether Dr. Stock’s explanatory theory.” ed The distinction is theory of involuntary conversion applied important Frye emphasis because in to this is in conformity case captivity with placed upon technique or was method- syndrome. why It is unclear Dr. Stock’s result, ology employed a yet to reach theory must completely captivity syn- track the focus Green has been transferred to drome. If the court is saying that involun- words, theory. In other rather than tary gained conversion must general assessing “thing from which the deduc- acceptance in particular field in which it made,” tion is we have focused on the belongs, and the field is captivity syn- deduction itself. drome, making the basis for that conclu- test, adopting When the Green the court specified. sion has not been only The field Amaral, relied on United v. States psychology involved here is psychiatry. 1152, F.2d at where the Ninth Circuit stat only testimony The as to what class of peculiar ed: “Because of the risks of ex experts qualified express would be an pert testimony, imposed opinion courts have an ad on these issues was Dr. Stock’s test, i.e., ditional testimony testimony psychiatrists that the forensic psychologists generally accepted expertise accordance with a would have such ex (App.75). planatory theory.” support In of this char acterization, the Frye Ninth Circuit cited determining After that Dr. Stock’s theo- Stifel, United States v. 433 F.2d 431 ry in conformity captivity must be with (6th Cir.1970), denied, 994, cert. 401 U.S. syndrome, majority concludes it is not (1971). 91 S.Ct. 28 L.Ed.2d 531 by relying testimony on the of the Stifel other correctly language sets forth the used in experts. words, In other the court found (record

Frye, 433 F.2d at affords experts the defense to be more believable support proposition for the that neutron admissibility and has determined the of Dr. analysis gained “general activation has ac testimony Stock’s on a credibility based ceptance particular field in which it finding. weighing This testimony clear- belongs”). The Ninth Circuit has never ly usurps jury the function of the in decid- “conformity general cited ing expert, Amaral to a if any, should be be- ly accepted explanatory theory.”8 lieved.9 fact, expert’s apparently testimony); Darcy, Ninth Circuit has Brown v. adopted "reliability’ Cir.1986). (9th standard. See United (9th Gwaltney, States v. Cir.1986) (proponent of scientific evidence has 9. As stated the court in Ibn-Tamas v. United laying proper showing burden of foundation States, (D.C.App.1979): 407 A.2d 626 underlying reliability scientific basis and

Next, captivity court, determines that the court The jury trial, a criminal syndrome inapplicable neither a fact finder weigher based on facts nor a of credi- bility. To Yet, trial, theory evaluate the during per- there that a this case. physically captive son not may undergo an all, if many, not of the ten conversion, correctly a court captivity syndrome.10 my elements of It is methodology evaluates the utilized to ar- understanding jury determines conclusion, rive but not the conclu- or not the facts which are whether neces- itself, sion province which is the sary expert’s opinion validate jury. methodology employed by Dr. present. careful, detailed, Stock was a lengthy raises, majority interpretation in examination of the victims and the facts turn, question “conformity” of what surrounding alleged captivity. It is generally accepted theory means. The open question argument nor is the court “captivi- concludes because the by anyone made here that that is not an ty” type here differs from the of restraint appropriate methodology.11 present captivity syndrome the classic Accordingly, the third element of the case, Dr. Stock’s is not in conformi- test, perhaps Green inadvertently, places ty syndrome. captivity presents This courts in position of evaluating experts’ problem because Dr. Stock testified that conclusions. The court’s role is prop- more captivity syndrome all elements of erly limited finding that expert’s the present would have to be and that captivity methodology generally accepted. The syndrome reliability would have of a low court should not take over the jury’s func- probability applicability high proba- to a tion weighing persuasiveness of the bility applicability depending on the envi- testimony. restrictions, constraints, ronmental and ma- nipulations conveyed. that were C. Essential- ly, the court has itself determined that The standard of appeal review on of the there probability is a applicability low testimony admission of is abuse of discre- because it has concluded from the facts tion. In order to determine whether the presented at trial that the environmental judge discretion, trial abused his we must restrictions here from differed that of clas- view the record as it was at the time the sic captivity syndrome. It seems that “in ruling time, was made. point At that must, conformity” case, at least in this only testimony Judge before Joiner was actually interpreted “exactly be Stock’s, the Dr. and he testified that his theory same.” generally accepted. was example, conflicting For experts, if there were privacy; that they the victims lacked that were judge would the testify? conclude that neither could punished rewarded; and sometimes and that only persuasive That the more one they physically abused. psychiatrist could? chologist erly psy- That a could while a judge’s prop- could not? The role is interesting speculate 11. It is on the result on credentials, verifying limited including this issue capti- if Dr. Stock had not referred to findings generally that the scientific field is vity syndrome, that, simply but had testified recognized methodology prof- and that testing based on his interviews with and of the generally accepted by fered is colleagues expert’s victims, training experience and his in this judge in the field. The is not to field, opinion in his their wills were overborne jury’s weighing take over the function of consequently involuntary. their service was persuasiveness testimony. entirely plausible This is an scenario in view of 407 A.2d at 638-39 n. 24. experts testify Fed.R.Evid. which allows instance, testimony 10. For there was that the prior underlying without disclosure of the facts repeatedly victims were told not to leave the opinion. or data which led to their It would did; they farm and that were retrieved if testimony indeed be ironic if Dr. Stock’s environment; that the farm was an isolated not allowed because he referred to an estab- supports social family were removed in that learning, captivity syndrome, lished branch of discouraged seeing members were the vic- to bolster his conclusion that Fulmer and Moli- tims repeatedly and that the victims were told hostages. psychological toris were them; person- no one cared about that their abuse; alities were attacked constant verbal involuntary only testimony Dr. Stock testified that con- before the court was general acceptance gained has gained version conversion had psychiatric psychologi- throughout the general acceptance. though Even the de- 51, 35), Judge community (App. Joiner cal experts testify fendants had retained testimony helpful could be found that behalf, none of sought the defendants trier of fact to understand the evi- to the to offer evidence at the time that Dr. Stock Moreover, under Fed.R.Evid. 702. dence was voir dired that conversion recognized Frye Judge Joiner also generally accepted. was not Yet defend- might applicable to standard not be this possessed ants at that time the information testimony, he felt that even if type of but rely arguing now on in that Dr. apply the more restrictive the court was to generally accept- Stock’s was not test, testimony was still admissi- Frye simply ed.12 I am unable to conclude that ble: Judge on this record Joiner abused his dis- answer, judg- in the It’s not an Court’s admitting cretion in of Dr. ment, very that this first time Stock. something said that someone has court, otherwise, we would never have III. any testimony any in court about new I would address one other issue raised on that, prevented idea if we but he has appeal and not majority addressed body to the that the demonstrated Court which could be in any involved retrial of experts that seem be relevant at appeal, this matter. On the defendants generally accepted point argued also judge that the trial erred going concepts and idea that he is to talk failing qualifications to rule on Dr. Stock’s about, process and he is in the now expert. trial, as an At after counsel for ideas, taking simply those which have government questioned Dr. Stock about broad, general acceptance among a rela- experience, following his education and important experts, class tive and colloquy occurred: attempting apply particular them to a Honor, Counsel: Your we would offer case, set of if facts there is expert Dr. Stock as an in the field of objection argumen- testimony to the it’s Psychiatry Forensic and offer his ex- objection in tative the sense that ulti- pert testimony jury. to the mately may testimony may it that the pass qualifications, The Court: I don’t particular not have value because the up jury it’s to the to. ahead Go support in the case facts do not the un- interrogate him. derlying going basis on which he is 101). (App. conclusions, base his and that is some- thing lawyers expert are most in The defendants assert that it error for was bringing out on cross-examination. specifically the court to decline to find that simply diagno- qualified. disagree.

It’s no different than a Stock was must things sis of tuberculosis or other of that attorney conducting When the the direct kind, me, it point. seems to at that So expert examination of an witness concludes going permit testimony I’m to be portion relating of the examination received. expert’s qualifications, it is common to 55.) (App. language so indicate to the court in quoted Judge ruling properly recog- person unlike that here. The offer- Joiner’s but, ing expert seeking ruling judge nized the role of the trial in admit- is not rather, ting expert testimony. ruling signalling preliminaries This' was that the correct, especially light of the fact that over and the other side now dire voir Brown, deciding 12. In the court noted that when a de- was admitted in whether the trial court produce fendant fails to when rebuttal abused its discretion. n. It at 557 17. so, given opportunity to do he runs a to me seems that defendants have taken that grave appellate risk that an court will focus on here, gamble paid and it has off. state record at the time the evidence side conducts other if If the desire. KENT, just objects Plaintiff-Appellant, objects then Lawrence H.

voir dire and dire, court must then a voir without v. possible is to do so. ruling amake if Foltz, Perry and Dale JOHNSON key question is Often it not because Defendants-Appellees. qualifications in general expert’s not the No. 84-1578. field, precise ques- some but whether opine is be asked to tion on which he will Appeals, United States Court expertise or meets some within his field Circuit. Sixth that set forth in the other such as test Argued 1986. Oct. here, To illustrate majority opinion. May Decided 1987. qualifica- Dr. Stock’s question was not impeccable. ques- June tions—those were On Reconsideration going he to be asked tion was what Rehearing Rehearing En Banc comprising an answer trigger which would 7, 1987. Aug. Denied “expert opinion.” Obviously, ruling no an expert actually can be made until Certainly the question.

asked the trial qualifications

judge upon the must rule challenged and must make all expert

an if required by objections evidentiary rulings specific questions. Federal Rules of require “proffering”

Evidence do not such, however. expert argument

The error of the defendants’

compounded procedure that the by the fact

suggested very thing exacerbates express

about concern—an special reliability” surrounding ex-

“aura of prosecutor

pert testimony. If the in a background completes

criminal case

questioning and then of an witness says,

turns to the court “I offer this

person response expert,” as an should replied. just Judge It is not what Joiner

for the to an “aura of court to add reliabili-

ty” by declaring juncture at this the wit- expert. evidentiary

ness an matter at opinion

issue is giving testimony. requisite rulings will be made when

“expert” opine. Any ruling is asked that,

prior response to an ob- unless

jection, appears type me to be some

advisory opinion pred- for which there is no

icate in the Rules of Federal Evidence.

Case Details

Case Name: United States v. Ike Kozminski, Margarethe Kozminski, and John Kozminski

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Apr 16, 1987

Citation: 821 F.2d 1186

Docket Number: 84-1288

Court Abbreviation: 6th Cir.