Monday, August 18th, 2008

Sex Post Facto

United States v. Marcus, No. 07-4005-cr (2d Cir. August 14, 2008) (Straub, Sotomayor, Wesley, CJJ) (per curiam)

Between 1999 and 2001, Glenn Marcus kept a woman, “Jodi,” as his sex slave. Having met her on the internet, he induced her to move from the Midwest to Maryland, where he set her up in an apartment. Marcus, who lived in New York, would visit Jodi there frequently and they would engaged in various sadomasochistic sex acts. Marcus would also “punish” Jodi for her disobedience, either real or perceived, often beating her severely. In January of 2000, Marcus told Jodi to move to New York, and the violent sexual behavior continued. In 2001, after subjecting Jodi to a particularly vicious beating, Marcus released her from his domination.

Marcus was charged with violating two provisions of the Trafficking Victims Protection Act (the “TVPA”) – the sex trafficking statute, 18 U.S.C. § 1591(a)(1) and the forced labor statute, 18 U.S.C. § 1589 – from January 1999 to October 2001. Although the TVPA was not enacted until October 2000, the government’s evidence spanned the entire period charged in the indictment. The district court did not instruct the jury about the enactment date of the statute, and Marcus did not object to the court’s jury instructions, or make any Ex Post Facto arguments in the district court at all.

He argued, for the first time, on appeal, that the TVPA had been applied retroactively against him, in violation of the Ex Post Facto Clause. The court, bound by its own precedents, concluded that the district court’s failure to instruct the jury on the enactment date of the statute was plain error. It vacated the conviction and remanded the case for a new trial.


This is a very strange case. The main opinion is a relatively short per curiam, and maps out the relevant precedents, under which “even in the case of a continuing offense, if it was possible for the jury … to convict exclusively on preenactment conduct, then the conviction constitutes a violation of the Ex Post Facto clause,” even on plain error review. Here, since even the government conceded that the jury “could have found” that Marcus violated the TVPA before its effective date, the panel had no choice but to remand for a new trial. Nor did it matter that this panel was “remote.” A retrial is “necessary whenever there is any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct.”

Judges Sotomayor and Wesley concurred, but in result only, urging the court to reexamine its jurisprudence in this area, since it does not “fully align with the principles adhering in the Supreme Court’s recent applications of plain error review.” The Supreme Court has held that, when it comes to plain error claims, there is no miscarriage of justice in “refusing to notice forfeited errors that did not affect the judgment.”

The concurrence goes on to suggest that a “reasonable possibility” standard would be more consistent with Supreme Court law and that, under this standard, based on a detailed review of the record, only Marcus’ sex-trafficking conviction should be vacated.

So what’s next here? Only time will tell. Just this month, the court, in an unprecedented move, sua sponte granted rehearing en banc (this circuit actually still calls it “in banc”) in the appeal of the civil case of a Canadian who was taken by the CIA to the Middle East, where he was tortured. Perhaps the court will en banc this case, too.

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