Sex trafficking conviction upset over evidence error

, Daily Business Review

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A federal appeals court has thrown out the sex trafficking conviction of a man whose defense was that he was actually involved in a consensual sadomasochistic relationship.

The U.S. Court of Appeals for the Second Circuit found that the due process rights of defendant Glenn Marcus were violated because the jury heard evidence of conduct that occurred before the enactment of the Trafficking Victims Protection Act—and that conduct was "materially" different after the act became law in October 2000.

However, the circuit upheld Mr. Marcus' forced labor conviction under the act in United States v. Marcus, 07-4005-cr, and remanded the case for a new trial on the trafficking charge.

It was the second time the court had addressed Mr. Marcus' case, this time after being corrected by the U.S. Supreme Court on the proper application of "plain error" review.

Mr. Marcus was convicted of sex trafficking and forced labor in a 2007 trial before Eastern District Judge Allyne Ross, who sentenced him to nine years in prison. The jury heard evidence from a woman named Jodi that what began as a consensual relationship devolved into one of abuse, as Mr. Marcus branded her, had violent sex with her and then posted pictures of her on his Web site. The woman also said Mr. Marcus forced her to work on his Web site and post diaries of her experiences.

The Second Circuit reversed and ordered a new trial, saying the ex post facto clause was violated because the jury heard evidence of conduct before the enactment of the statute (NYLJ, Aug. 19, 2008).

The 2008 panel of Judges Chester Straub, Sonia Sotomayor and Richard Wesley said the lower court should have instructed the jury on the date the law was enacted. It reversed for plain error, saying that retrial is necessary where there is "any possibility, however remote" that the jury voted for conviction relying exclusively on pre-enactment conduct.

The U.S. Supreme Court reversed and remanded the case, saying the plain error review conducted by the circuit was inconsistent with existing precedent. It instructed the circuit to decide whether the error affected Mr. Marcus' substantial rights and the fairness, integrity or public reputation of the trial.

After hearing oral argument on Oct. 13, Judges Straub and Wesley, now joined by Judge Guido Calabresi, applied that standard yesterday. Judge Sotomayor has since been elevated to the high court.

In addressing the forced labor conviction, Judge Wesley said "there is no reasonable probability that the jury would have acquitted Marcus absent the error."

He said, "From January 2000 until at least the spring of 2001, Marcus forced Jodi, through the persistent threat of physical harm and actual physical harm" to create and maintain the Web site that made him money, adding that "we find no reasoned basis to differentiate between Marcus's pre- and post-enactment conduct, and we find no reason to presume that the jury did so."

But the same was not true of the sex trafficking conviction under 18 U.S.C. §1591(a)(1).

"The government produced evidence that Marcus knowingly recruited and enticed Jodi in 1998; transported Jodi from Maryland to New York in early 2000; and harbored her from 1999 until 2001," Judge Wesley said. "Unlike the forced labor charge, the conduct supporting the sex trafficking charge differed materially before and after October 2000, such that there is a reasonable probability that the erroneous jury charge affected the fairness, integrity or public reputation of the proceedings."

Assistant U.S. Attorney Pamela Chen argued for the government.

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