UNITED STATES v. KOZMINSKI

Transcript: 

ORAL ARGUMENT OF WILLIAM BRADFORD REYNOLDS, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We will hear argument now in Number 86-2000, United States versus Ike Kozminski.

Mr. Reynolds, you may proceed whenever you are ready.

Mr. Reynolds: Mr. Chief Justice, may it please the Court, this case looks to the Thirteenth Amendment and its implementing legislation, principally Section 1584, Title XVIII of the U.S. Code, which makes it a crime for any person to knowingly and wilfully hold another to involuntary servitude.

At issue are the sorts of conduct the term "involuntary servitude" can properly reach.

Is it limited solely to the use of physical or legal force or the threat thereof, as the Second Circuit has held, or, as the court below concluded, may a defendant also be criminally liable if he uses fraud and deceipt to hold another against his or her will, at least as to certain classes of individuals, minors, immigrants, or mentally incompetent, or as we maintain and as the Ninth Circuit has held, may other forms of coercion also lead to criminal culpability if such behavior was intended to compel another to work against his or her will and did in fact have that result?

The actual backdrop in this case for deciding the issue is briefly the following.

Mr. and Mrs. Kozminski, with the help of their son, John, ran a family dairy farm outside Ann Arbor, Michigan.

In about 1967, a farmhand named Bob Fulner was brought to work on the farm.

Several years later, in the early 1970s, a second man, Lewis Molitoris, was brought to the farm to work.

Both men were moderately retarded.

They viewed the world in much the same way as children between the ages of seven and ten years of age.

The men generally worked from 3:00 o'clock in the morning until 8:30 or 9:00 o'clock at night, seven days a week, no holidays, performing heavy farm labor, including the cleaning of cow manure out of the barn by hand twice a day.

They were initially paid $15 a week plus room and board, but that pay was reduced to $1 a week and then was stopped altogether.

From about 1980 on, the two men were housed in an insect-infested trailer that had broken windows, no running water, no lights, and no heat.

They were dressed in torn clothes that did not provide protection against the cold and that remained filthy because the only washing machine that was available to them was broken.

They were denied medical assistance even when they suffered serious injuries, and were given food consisting largely of mouldy bread and cold cuts that left them serious nutritional deficiencies.

They were regularly subjected to physical and verbal abuse for not working as directed.

They were told not to leave the farm, and they were threatened that they would be sent to institutions if they did so.

Both men--

Unidentified Justice: Mr. Reynolds, do you think the government could win at trial without a broad definition of this statute and without the use of psychological testimony?

It sounded to me when I read the description in the briefs of the case that with evidence of physical beatings and threats of commitment that the government didn't need a broad interpretation of the statute here, in this case.

Mr. Reynolds: --Justice O'Connor, I think that we certainly feel that we could prevail in this case without the psychological testimony.

However, I think that there is a serious question in this case that would attach if we were to follow the Sixth Circuit's standard because it does not go beyond physical coercion unless you--

Unidentified Justice: Well, one thing that is a concern, of course, is that these are criminal statutes.

Mr. Reynolds: --Right.

Unidentified Justice: And presumably we have a rule of lenity, and the concern that one has in interpreting it broadly is, what do you do about services performed by someone because of the attraction of a loved one or the charisma of a spiritual or a political leader, or for example an adult child who may work for years taking care of an invalid parent out of fear that they will be cut off without an inheritance if they don't?

I mean, how do you take care of all those things?

Are all these criminal offenses?

Mr. Reynolds: Well, that obviously is the difficulty that the lower courts wrestle with.

The statute is directed at a condition, which is involuntary servitude, and the--

Unidentified Justice: Do we know what servitude is?

Mr. Reynolds: --I think that servitude is, as I understand the elements of that statute, it would include that a person is made to work for a defendant, to provide services for that defendant against his will, that that defendant has to specifically--

Unidentified Justice: Well, the against the will component would seem to me to go to what is involuntary.

I just wondered what servitude was.

Mr. Reynolds: --Servitude would be to perform services for the defendant who is exerting the coercion.

Unidentified Justice: Any kind of services?

Mr. Reynolds: Well, I think that it contemplates largely in the employment relationship.

Unidentified Justice: Like shoveling manure.

Mr. Reynolds: I am sorry?

Unidentified Justice: Like shoveling manure.

Mr. Reynolds: That would certainly be within the--

Unidentified Justice: Well, I used to have to do that as a youngster.

Now, I suppose I was in servitude?

Mr. Reynolds: --Well, first the definition of servitude under the Thirteenth Amendment is one that has been traditionally recognized and was at the time to exclude certain relationships, such as the parent-child relationship.

I think that beyond that, though, what you have to look to is why, what the conditions are, the elements are for the performing of the servitude.

This is involuntary servitude.

It is one that is brought about by reason of the fact that the defendant has, through certain conduct, intentionally caused the result of having a victim provide the services against his will, and I think there are three elements there that are essential.

You have to show that the person is made to work against his will.

You have to show that that was specifically intended by the defendant.

And you have to show that the defendant's conduct actually caused the intended result.

And unless you have all three of those elements, then you don't have the necessary evidence for--

Unidentified Justice: Well, what about the adult child who doesn't want to have to take care of an invalid parent but feels compelled to do so?

Mr. Reynolds: --Well, I think that again you have got to have... that would address the state of mind of the person who was providing the services.

That does not suggest that there is somebody who is exerting the kind of influence or manipulation over that person to make them work against their will, nor do you have the causal link.

Unidentified Justice: But you would acknowledge there could be facts that would fit within it if the parent indeed was exerting some kind of psychological pressure on the offspring to make them do it.

Mr. Reynolds: I think that there has to be... I am not sure psychological pressure alone would work.

If you are saying, can you posit a situation where a parent would engage in coercive conduct of an overbearing nature with the intent of forcing the child to perform certain services that the child felt compelled to do and would otherwise not do, and that that conduct caused that result to come about, that would fall into the realm, it seems to me, of the kind of evidentiary picture that would have to go to a jury to decide the state of mind of both of the participants and the causal link that is necessary.

Unidentified Justice: Mr. Reynolds, do you agree with the instruction that the District Court gave?

Mr. Reynolds: I think that generally the instruction that the District Court gave on those elements are acceptable.

Unidentified Justice: So you don't think a new trial was necessary, that the Court of Appeals should have affirmed.

Mr. Reynolds: Well, there is another element of the case that went to the testimony of... psychological testimony that we did not bring to the Court that was thrown out by the court below, which is why you would have to have a new trial.

Unidentified Justice: Well, I thought they ordered a new trial because the District Court's definition was too broad.

Mr. Reynolds: Well, they did.

I'm sorry, I misunderstood your question.

The Sixth Circuit felt that their definition was too broad, that you had to limit the scope of the conduct reachable here to physical coercion.

Unidentified Justice: You think the Court of Appeals should have affirmed the conviction?

Mr. Reynolds: That's right, I think it should have affirmed the conviction.

Unidentified Justice: And hence the instruction is perfectly... was a proper one.

Mr. Reynolds: Was a proper instruction.

That's correct.

Unidentified Justice: Mr. Reynolds, let's get back to Justice O'Connor's question about the meaning of servitude for a moment.

Take a fraternity hazing, where people may be involuntarily performing services for a period of 24 hours.

Is that the sort of... entirely apart from the involuntary aspect, is that servitude for purposes of this statute?

Mr. Reynolds: I would not think that that would be servitude for purposes--

Unidentified Justice: Why not?

Mr. Reynolds: --Well, I don't think that that is what the statute contemplates as requiring that a specific service be provided by the individuals who are hazed.

Unidentified Justice: Well, supposing you are--

Mr. Reynolds: That is a membership requirement to get into a fraternity.

Unidentified Justice: --Yes, but that would be involuntary.

Supposing they are told just to scrub the floors and scrub them and scrub them and scrub them for 24 hours.

Mr. Reynolds: Well, I think that... oh, I see what you... I guess technically one could say that would be servitude, although I think if it is a hazing thing it is an aberrational... I mean, it is not to hold them in service to do work for a term which I think would have to be more than a--

Unidentified Justice: How could it be servitude when you pay for it?

You pay the dues to sweep those floors.

That is not servitude.

Mr. Reynolds: --I guess the question went to before they got in.

Whether that--

Unidentified Justice: You pay the dues when you apply to a fraternity.

Mr. Reynolds, I am hung up on the involuntary part, not the servitude part.

It seems to me that there is no such thing as, if you take it literally, there is no such thing as involuntary servitude.

There is such a thing as involuntary imprisonment, or involuntary... but you don't work for somebody unless you want to work for them.

So really it is just a matter of what the alternative is.

You want to work for them if the alternative is, he is going to kill you, or if the alternative is, he is going to beat you.

Now, what other alternatives... I mean, involuntary doesn't mean literally involuntary.

It means, right, that the alternative is unattractive.

Mr. Reynolds: --I think it has to be more than unattractive.

I think it has to be so intolerable as to be unacceptable, and I would take the death or beating.

I do think, for example--

Unidentified Justice: Well, why not limit it to death or beating or some physical harm?

Once you leave that, I don't know what you are left with.

You will deprive yourself of the love of your father if you don't do what he says, or of the love of a spiritual leader?

Once you leave physical harm, what do you--

Mr. Reynolds: --I think, for example, that you could hypothesize a case involving hypnosis where somebody was hypnotized and told when they woke up they were going to have the kind of conditions of these two men here and perform whatever tasks they were asked to perform and would indeed be in servitude involuntarily by reason of hypnosis.

It seems to me that would be a situation not involving physical coercion or legal coercion that clearly is reached by the involuntary servitude condition, so I think it is the case that you can have an involuntary situation.

More likely than not what you are going to be wrestling with under involuntary is whether indeed the situation is so intolerable as to leave you no viable choice but to do the work.

Now, in this case, for example--

Unidentified Justice: --What do you mean, so intolerable?

Surely that depends on the individual.

If I am an adherent of a particular religious cult, depriving me of the love of the leader of that cult is the worst thing in the world that could happen to me.

I mean, that is intolerable to me.

Mr. Reynolds: --Well, and that goes to one of the elements of the offense, which is the state of the mind of the victim.

Whether or not it is so intolerable as to justify a--

Unidentified Justice: So that could qualify then.

That could qualify.

Mr. Reynolds: --I think there are situations that could qualify, for example, where a religious... in a religious situation where the leader of the cult believed that beating of children or adults was the reflex response to ensure that they would indeed adhere to him and his edicts, that that could indeed get to the point of being, and kept them, kept people basically in that kind of condition--

Unidentified Justice: What about depriving me of my father's love?

I am no longer a minor.

I am an adult.

But I truly love my father, and he says, you know, son, I want you to work in my business, and I say, Dad, this is really not what I like to do, but for you, for you I will do it, and it is the most important thing in the world to me.

Mr. Reynolds: --There again, I think that you are addressing only one feature of the element of the crime.

If your father is making demands of that sort with the intent of keeping you there against your will knowing it will have that and that his particular conduct causes that to happen, and indeed you have been left with no viable alternative, then I think that you would have to... that would raise a question.

Unidentified Justice: I think you are going to destroy a lot of family businesses in this country.

Mr. Reynolds: Well, I think that the... again, I am not sure that that... I don't think that that does follow, because I think what that suggests is that the specific intent factor that is necessary in the criminal case, and the intent factor for the state of mind of the victim are a lot more casual than they are under this code.

Unidentified Justice: Mr. Reynolds, shouldn't we leave a lot to the wisdom of the prosecutor?

I can't imagine a prosecutor, a U.S. Attorney prosecuting a father for making his son work.

Mr. Reynolds: Certainly the prosecutor--

Unidentified Justice: They just wouldn't bring a case like that, would they?

Mr. Reynolds: --I agree with you, Mr. Justice Marshall.

I think that certainly the history of this statute, the prosecutors have rarely... this statute has been used rarely by prosecutors, I think 19 times since '77, and most of those are in connection with the migrant worker kind of a context, where you have individuals brought over as migrant workers, and then basically detained on the farm and not allowed to go and not paid wages.

Unidentified Justice: Mr. Reynolds, can I interrupt you and go back a minute to your discussion of servitude?

Would you think that the statutory definition would have been met in this case if these people had been paid the minimum wage and overtime for their extra hours and had lived in a clean trailer?

Equally involuntary.

All your evidence of voluntariness is the same.

Mr. Reynolds: I don't think so.

I think those are factors that are in the mix that you have to consider, but I think that if you take those two factors out and you still have the physical abuse and the verbal abuse and you still have the threat of institutionalization, and you still have the isolation that you would have a situation in this circumstance, it seems to me, where you would still have the case, and--

Unidentified Justice: You think it would still be servitude if the terms of employment were perfectly normal and legitimate.

Here it seems to me that the case for calling it servitude is much stronger when you have the kind of facts you have here.

Mr. Reynolds: --I don't disagree.

Unidentified Justice: Although I am not sure they have anything to do with voluntariness.

Mr. Reynolds: I don't disagree that it is stronger if you are not paying somebody and keeping them in the situation then there is certainly more reason to--

Unidentified Justice: I suppose in terms of voluntariness, the worse the conditions are, the more likely it is that somebody would want to leave.

I mean, I don't know how it adds to the pressure not to feed people well.

I would think they would want to get out.

Mr. Reynolds: --I think that that certainly is in the balance, and what you have to do is weigh that against what it is... what the pressures are on the other side that are being exerted by the defendant to compel them to stay.

That again goes to the looking at the coercive conduct.

I think the mistake that was made by the Sixth Circuit here is that it said the only thing you could look to is physical coercion, and that that was all that as an evidentiary matter was allowed to be introduced to the jury in terms of determining whether you had the condition that was condemned, which is the condition of involuntary servitude.

Unidentified Justice: Or threatened state-imposed legal coercion, I thought--

Mr. Reynolds: That's right.

Unidentified Justice: --which may have been present here.

Mr. Reynolds: I think this has reference to--

Unidentified Justice: With mental institutions.

Mr. Reynolds: --the peonage situation--

Unidentified Justice: Well, it didn't say that.

Mr. Reynolds: --Justice O'Connor.

Unidentified Justice: It didn't say that.

Mr. Reynolds: I think that is what the legal coercion would amount to, where somebody owes a debt and is being held to pay off the debt.

Unidentified Justice: If you threaten someone with invoking the law to institutionalize them, that is certainly legal force, isn't it?

Mr. Reynolds: I think that if you... well, if you were... that is coercion.

I am not sure that it is legal coercion in the same sense that is understood by that term as it has been used, which goes to basically holding somebody to pay off a debt that they do owe.

Unidentified Justice: I take it, Mr. Reynolds, that you would not accept the same definition in this case as you would in a criminal case for the law of duress.

A criminal defendant claims that he was forced to do something, and the government always takes a very strict line there.

Duress is permitted only if there is no reasonable means of escaping imminent physical harm.

I take it you argue for something more broad than that.

Mr. Reynolds: On the side of the victim?

Unidentified Justice: Yes.

Mr. Reynolds: Well, more... it is not very far from that, but it is... what we are arguing here is that it has to be... that the victim has no tolerable choice, that effectively choice has been removed to do anything but what he is being compelled to do, that on the... either that he has lacked... has a lack of capacity to make any choice, and that is one of the features that is at play in this case, given the mental retardation of these individuals--

Unidentified Justice: That is just a subjective component.

There is no objective component as well, that a reasonable person would have to believe he or she had no choice?

Mr. Reynolds: --No, I don't think so.

I think that what has to be demonstrated is the state of mind of the victim with regard to the conduct that that victim is being subjected to as well as the state of mind of the defendant who is exerting this kind of coercive conduct on him, and then you have to also prove that the conduct of the defendant which was intended to cause this result of involuntary servitude did in fact cause it, and I think it is that burden of proof that provides ample protection against the kinds of hypotheticals that seem to be of some concern--

Unidentified Justice: But the jury always is going to have some sort of evidence from which they can deduce intent.

There are no eye witnesses to intent.

And that is pretty much a jury call.

It strikes me that your definition of this is very, very amphorphous for a criminal statute.

Mr. Reynolds: --The definition of involuntary servitude?

Unidentified Justice: The definition of both servitude and involuntary, particularly if there is no reasonable man standard for Justice Scalia's hypothesis when the father wants the son to keep working.

If in fact the son is very... has a will that is very easily overpowered, then that is enough, I take it, even though a reasonable person would not be overpowered by similar inducements from a father.

Mr. Reynolds: Well, I think that that is not unusual, though, in criminal law.

I mean, look at a crime of kidnapping or extortion, rape.

You have the same kind of situation, and the courts are called upon all the time to assess the subjective intent of in those instances both the... well, of the victim certainly and of the specific intent of the perpetrator of the crime.

That is not a task unfamiliar to the criminal law or to juries, I think.

Unidentified Justice: But with kidnapping and other crimes you have objective factors that have to be present as well as the intent, and here there seems to be quite a dearth of objective factors.

You know, you have to hold someone against their will.

Now, holding someone is fairly easy to define.

But--

Mr. Reynolds: You have to hold someone to involuntary servitude here.

Unidentified Justice: --Yes, but what you are talking about in a typical kidnapping statute is a physical restraint, and here obviously your definition embraces something a good deal more than a physical restraint.

Mr. Reynolds: Well, in the kidnappping statute you have to hold them against their will.

In the rape statute it has to be without consent.

In the extortion statutes, again, you have to look... there is no... it seems to me that the element that the jury has to determine is the intent factor in the same instance of the two parties, and that that... that that burden that has to be met is what protects against the kind of a hypothetical that Justice Scalia offered.

Unidentified Justice: What differs in all of those cast, though, is what I suggested earlier.

It is really true that you can kidnap someone against their will, and all you have to show is that you intended to kidnap.

You really cannot get somebody to work in the literal sense against his will.

He wills to work.

I mean, only because the choice you have given him is even worse than working, so you really can't compare what you do under these other criminal statutes.

Mr. Reynolds: But that then is a failure of all of the Courts of Appeals decisions.

I mean, that would be true than if we simply limited it to physical coercion.

Unidentified Justice: Well, that is right, but--

Mr. Reynolds: I mean, the fact is that if you are to... if you reach that conclusion that proves too much.

It is the case that there are certain conditions to which someone is subjected to that are so intolerable as to render no other choice meaningful.

Unidentified Justice: --All it proves is that the test can't be whether the person really wills it or not, that your focus on the voluntariness is a focus on something which never exists.

In all cases it is voluntary in some sense, so it seems to me what you have to look to is the choice that is given.

That is the only thing that distinguishes one case from the other.

What is the choice that forces you to accept this one rather than the other one, voluntarily?

Mr. Reynolds: I guess at one level one could say that, although taking this case, where you have two individuals who view the world in the same eyes as children of age seven to ten, and who are convinced as to no choice but to do that which the authoritative figure instructs them to do, add to that all of the other indicia of coercion that are in this case, and it seems to me that it is easy to conclude that here these individuals believed that they had no other choice than to stay in the circumstances they were in, and that that was what kept them there, notwithstanding the kind of living conditions that Justice White mentioned.

Unidentified Justice: What about the person who is absolutely convinced that all he has to do is quit his job and he will starve to death, that he can never get another job, and he sticks around because the person wants to keep him and will pay him?

Mr. Reynolds: Well, I think that that is a distinction, though, that is important.

It doesn't seem to me that we are talking here about societal conditions that might lead one to the conclusion they stay where they are.

It has to be the conduct of the defendant that causes the... that exploits the individual and causes the individual to be compelled to stay.

Unidentified Justice: Well, the defendant says, I want you to do this job, and I will pay you a certain amount of money, and I want to keep you here, and I am sure that if you quit you will never get another job.

As a matter of fact, I picked you out of the unemployment line on purpose.

Mr. Reynolds: I think that in some respects that is the factual backdrop in this case, where this defendant led these two people to believe that if they did not stay here that there was nothing out there, no job, no home.

They would--

Unidentified Justice: So in my example, yes, it might be... you might be able to make a prima facie case.

Mr. Reynolds: --You might be able to do that if you can demonstrate that... there again, you have to demonstrate that the defendant set about to achieve that result, intended to achieve it, and that the victim--

Unidentified Justice: He goes to the unemployment office and finds a... somebody who looks suitable, and brings him out to his farm, and has him work, and pays him, and has him work hard, and the fellow... and he feeds him well and all that, but the reason they stay, they can't stand farm work, but the reason they stay is that they are just sure they would be destitute.

And the employer agrees with them, you would be destitute if you left here, so stick around.

That makes out a case under your theory, I guess.

Mr. Reynolds: --Well, that is close.

I think that you... again, the lynchpin in terms of that is whether the reason they stay around is because the alternative is so intolerable as to be wholly unacceptable, akin to death or--

Unidentified Justice: Well, anybody would rather eat than starve, I suppose.

Isn't that the whole point, that what anybody would do what the jury would do, and the jury in this case convicted?

And in a case like all of these horribles that are being presented, no reasonable minded jury would convict.

Isn't that the solution?

Mr. Reynolds: --I think that in these hypotheticals, that a jury would be unlikely to convict because again I think we keep focusing on these hypotheticals on one aspect as opposed to three elements.

It is not only the state of mind of the victim, it is the state of mind of the defendant, and it is also the causal link that says that defendant's conduct, which was intended to cause this involuntary servitude situation, did in fact cause it, and I think with that as being the element of proof, that you have the protections that will ensure that the kinds of cases that result in conviction are the ones that have the factual backdrop such as we have here.

Chief Justice William H. Rehnquist: Thank you, Mr. Reynolds.

Mr. Ziemba, we will hear next from you.

ORAL ARGUMENT OF CARL ZIEMBA, ESQ. ON BEHALF OF THE RESPONDENT

Mr. Ziemba: Mr. Chief Justice, and may it please the Court, I should like to call the Court's attention first to the fact that the lower courts reversed the convictions of the defendants on two bases, and that the Solicitor General is not urging this Court that the judgment of the lower court was erroneous in ordering a new trial.

All that the Solicitor General is asking this Court to do is to amend the definition of involuntary servitude.

Unidentified Justice: But if there is going to be a new trial, the Solicitor General is interested in having the right instructions to the jury.

Mr. Ziemba: That's all.

Unidentified Justice: Well, that's quite a bit.

There is no use going through a--

Mr. Ziemba: Yes, I just wanted--

Unidentified Justice: --There is no use going through a trial for nothing and then having to go through it again.

Mr. Ziemba: --Right, I just wanted to make that clear.

Now, it does seem to me that the definition of involuntary servitude being advocated by the Solicitor General is too broad.

It casts its net too broadly.

It is too amorphous.

It is too indefinite.

It leaves too much room for the government to decide what conduct is improper, leading to a condition of which the government disapproves.

This is what the Solicitor General states on Page 30 of his brief.

"A person may be held to involuntary servitude by being intentionally deprived of the ability to make a rational choice not to remain in the master's service. "

In short, the servant or the servitor may not be making a complaint at all to anyone concerning his condition over a period of many years, but if the government decides that the condition of the servant in the eyes of the government is undesirable, or intolerable, then the government concludes that the servant has been deprived of an ability to make a rational choice to remain in his condition.

In other words, it seems to be an application of the post hoc ergo proctor hoc argument--

Unidentified Justice: But in this case aren't we dealing with a jury verdict, not what the prosecutor did?

Mr. Ziemba: --Well, I think--

Unidentified Justice: Are we?

Is that true?

Mr. Ziemba: --Half true.

It was the government's decision to present to the jury--

Unidentified Justice: But that is not what you are complaining about?

Mr. Ziemba: --No, but in answer to your--

Unidentified Justice: You are complaining about the judgment.

Mr. Ziemba: --In answer to your question.

Unidentified Justice: And what a jury decided.

Mr. Ziemba: Yes, but you see, I am convinced that in this particular case, and I--

Unidentified Justice: Didn't you file a motion to dismiss the indictment--

Mr. Ziemba: --I am sorry?

Unidentified Justice: --Didn't you file a motion to dismiss the indictment?

Mr. Ziemba: I was not trial counsel.

I did not move to dismiss--

Unidentified Justice: Well, was it filed?

It could have been filed, and you could have... all of this could have been washed out.

Mr. Ziemba: --I really can't recall, Your Honor, whether or not a motion of that nature was filed.

Unidentified Justice: [inaudible]

Mr. Ziemba: Yes, but you see, I--

Unidentified Justice: What should the instruction be, in your view?

Mr. Ziemba: --I'm sorry?

Unidentified Justice: What should the instruction be in your view?

Mr. Ziemba: The instruction should be as defined by the Sixth Circuit.

It should encompass the following definition.

"We conclude that a holding to involuntary servitude occurs when, A, the servant believes that he or she has no viable alternative but to perform service for the master, B, because of, 1, the master's use or threatened use of physical force, or 2, the master's use or threatened use of state-imposed legal coercion, for example, peonage, or 3, the master's use of fraud or deceipt to obtain or maintain services where the servant is a minor, an immigrant, or one who is mentally incompetent. "

Now, that definition in my opinion, I respectfully submit, embraces objective criteria which can be explained to a jury and which a jury, if they mean to convict, can find factual bases for the finding of the criteria--

Unidentified Justice: Mr. Ziemba, that--

Mr. Ziemba: --but psychological--

Unidentified Justice: --Well, what about your opponent's, Mr. Reynolds' suggestion of a hypnotized person?

That would not cover that.

And wouldn't that be about as plain a case as you could get of an involuntary relationship?

Mr. Ziemba: --My personal opinion, Justice Stevens, is that there is no such thing as hypnosis unless the subject wants to be hypnotized.

I maintain that a person who resists the arts of the hypnotist can never be hypnotized.

Unidentified Justice: Well, you may or may not be right.

But at least you would agree that the hypnotic case would not be covered.

You just say, that is not important because it never happens.

But it would not be covered under the definition of--

Mr. Ziemba: I would say that if a person complains about being hypnotized into a particular pattern of conduct, I would say that he voluntarily undertook that pattern of conduct because he voluntarily permitted himself to fall under the sway of the hypnotist.

That is the only way hypnosis can result.

Unidentified Justice: --Okay.

What about these people?

Do you think these particular victims made a voluntary choice to live under these conditions?

Mr. Ziemba: I think they did.

You must understand that I am not here to make a brief for my clients as to the payment of wages and living conditions and what have you.

But I think that these two individuals found themselves in such conditions in life, one was living in a cardboard box in the wintertime along the river in the city of Ann Arbor, Michigan, and the other one, I forget what, but he had been working on a farm in the vicinity of the defendant's farm.

And they both were invited to come to the farm to work.

I don't think they knew any other type of work.

They were unskilled.

I don't... and of course these were bachelors.

These were men without families.

Being a bachelor myself, I know how bachelors tend to live.

They don't tend to live as orderly and as cleanly as women do.

But they were given food, and there is nothing in this record to show that all their food was mouldy.

They were given weekly supplies of food, and they prepared their own food, and they ate what they wanted to eat, and they watched their television shows, and they had a place where they could take a shower or a both in sort of a concrete bunkhouse.

They had 25 cats living in the trailer.

I would have to judge--

Unidentified Justice: Big trailer.

Mr. Ziemba: --I'm sorry?

Unidentified Justice: Big trailer.

Mr. Ziemba: Or they certainly loved cats.

Unidentified Justice: Or both.

Mr. Ziemba: And there was no interference with their love of cats.

Unidentified Justice: Or little cats, maybe.

0 [Generallaughter.]

Mr. Ziemba: And they weren't fenced in.

There was no firearms or anything of that nature, no threats made that ill would befall them if they left forever.

They went into town periodically.

They encountered police officers in town and never made a complaint to police officers--

Unidentified Justice: What about the threat to institutionalize them?

Is that true?

Is that in the record?

Mr. Ziemba: --Yes, and then the follow-up question to the individual who was one of the... was, did that frighten you?

Did you like being in the institution?

Oh, yes, I liked it very much.

I wouldn't mind going back.

Unidentified Justice: A mentality of seven to ten years old.

Mr. Ziemba: Your Honor--

Unidentified Justice: You have got to do better than that.

Mr. Ziemba: --Well, you see, this is the testimony of a tester of psychology.

In other words, we test intelligence.

We give people intelligence tests.

What are we really measuring?

Is it really intelligence, or is it literacy?

Can an illiterate basically intelligent person, as we all understand that term, can such a person pass the ordinary intelligence test?

I doubt it very much.

Unidentified Justice: Did you put in--

Mr. Ziemba: You take an average--

Unidentified Justice: --Did you put in--

Mr. Ziemba: --I am sorry?

Unidentified Justice: --Did you put in any testimony contrary to that?

Mr. Ziemba: Oh, yes.

The defendants called a very highly respected psychiatrist from the Detroit area.

Unidentified Justice: Was he the same type as the other one?

Mr. Ziemba: I am sorry?

Unidentified Justice: Was he the same qualification?

Mr. Ziemba: Higher.

Higher qualifications than--

Unidentified Justice: So you think you have one, and I have one.

Right?

Mr. Ziemba: --There was one for the--

Unidentified Justice: Is that your position?

Mr. Ziemba: --prosecution and one for the defendant.

Unidentified Justice: Is that your position?

Mr. Ziemba: I am sorry?

Unidentified Justice: Is that your position, that you had one on one side and one on the other side?

Mr. Ziemba: That is a fact.

Unidentified Justice: That is your fact, and the jury decided which one was to be followed.

Is that correct?

Mr. Ziemba: Well, I think we have to infer that.

Unidentified Justice: Is that... you admit that?

Mr. Ziemba: We have to infer that, yes.

Unidentified Justice: Well, what are we arguing about?

Well, you don't necessarily need to infer that they believed that they had the mental ability of a seven or eight-year-old.

Mr. Ziemba: That's true.

That's true.

Unidentified Justice: Well, what do you have juries for?

Mr. Ziemba: Well, sometimes I seriously ask that question of myself--

Unidentified Justice: You asked for a jury, didn't you?

Mr. Ziemba: --when the verdict comes in adversely, wen the question... when the jury comes in with a verdict favorable to the defendant, I know precisely why we have a jury.

Unidentified Justice: Well, Mr. Ziemba, what about the employer who keeps... who hires a person that he knows is on the run?

He is wanted for... in another state for a crime, and he tells him, either stay and work for me at this wage or I am going to turn you in.

Mr. Ziemba: Oh, I think that falls under the Ingalls case, I believe it was.

Unidentified Justice: What is that?

Mr. Ziemba: Where the--

Unidentified Justice: Yes, but what about... does your definition that you are plugging for cover that?

Mr. Ziemba: --Oh, yes.

Oh, definitely.

That is legal coercion.

Unidentified Justice: That is legal coercion.

Mr. Ziemba: Yes.

Yes.

Unidentified Justice: You threaten to get him enmeshed in the... of the state.

Mr. Ziemba: Get the hounds of law upon him and send him away to involuntary incarceration, yes.

This is legal threat.

Unidentified Justice: So the threat of putting them in a mental institution is the same sort of thing.

Mr. Ziemba: I would think so, yes.

Unidentified Justice: Would the threat to sue him for a debt be that sort of coercion, or does legal coercion have to include the possibility of imprisonment or confinement?

Mr. Ziemba: I really haven't given consideration to the threat to sue for an indebtedness.

I think that that might... that comes very close to peonage, I would guess just off the top of my head.

Unidentified Justice: What about the threat to strand him--

Mr. Ziemba: I'm sorry?

Unidentified Justice: --What about the threat to strand him in the desert or lock him in his room?

Mr. Ziemba: That is--

Unidentified Justice: That is not legal, and it is not force.

Mr. Ziemba: --No, no, that is naked force, I would judge.

Unidentified Justice: That is force.

What about the threat to turn the employee's brother in?

He says, I know your brother, he is working on the next farm.

He is wanted in the next state.

Mr. Ziemba: I don't know.

Unidentified Justice: Now, you either stay here or I am going to turn him in.

Mr. Ziemba: I don't know.

You see, now we are getting into that gray area which we encounter in the analysis of any criminal law.

Is it coercion to say unless you perform according to Scriptures, you will spend eternity in the sulfurous fires of hell?

I don't know.

You see.

Unidentified Justice: I thought you said you did know.

Now you are talking like the Solicitor General.

laughter.

It is the Solicitor General who talks about these inevitable gray areas and what not.

I thought you were going to give us a nice, clear line.

Now you are telling us that you are just as bad as they are.

We are looking to you for salvation and there is none, you tell us.

Mr. Ziemba: No, I think I was being a little facetious.

However, the danger in the broad definition advocated by the Solicitor General is this, that persons who have a message such as Jesus Christ and Mohammed and Moses had, and who induce people to abandon everything they own and to follow in their steps and in their example, and who devote their lives to the word given by these charismatic religious leaders might be charged under the broad definition of, say, psychological coercion, which deprived the followers of a capacity to make a rational judgment in the eyes of the government as to what they should do.

Although they chose a hair shirt, chose to go barefooted through the world with a prayer bowl, the government said, we don't think that this is an appropriate condition for a human being to live in, therefore we must conclude that there was some conduct on the part of the master, some psychological coercion which deprived the follower of his capacity to make a rational judgment and decision as to whether to follow the leader to remain in his service or not.

In my opinion, that is the danger and the perniciousness in this broad, amorphous definition being advocated--

Unidentified Justice: Was there anything in any of the instructions that said what you said?

Mr. Ziemba: --In the case at bench?

Unidentified Justice: Yes, sir.

Mr. Ziemba: Nothing that remotely--

Unidentified Justice: Well, how does it apply here?

Mr. Ziemba: --I am sorry?

Unidentified Justice: How does it apply here?

Mr. Ziemba: You see, if the definition advocated by the Solicitor General is adopted by this Court and this case is tried according to that definition, then... and if the trial judge instructs the jury according to this amorphous definition of involuntary servitude which will embrace this nebulous concept of psychological coercion, then the jury will be left at sea without chart or compass to guide them in making a determination whether or not the master, the defendants actually did intend such a consequence, actually had the capacity and the knowledge to subject somebody to psychological coercion--

Unidentified Justice: Mr. Ziemba, if you take the Sixth Circuit's definition instead, the rather strictly defined definition, would it not be true that all the evidence about the conditions under which these men lived would be totally irrelevant and probably inadmissible?

Mr. Ziemba: --I don't think that they would be totally irrelevant and inadmissible.

Unidentified Justice: What would it tend to prove?

Most of it, the stuff, how they lived and worked from 3:00 in the morning and so forth, that doesn't show physical force--

Mr. Ziemba: No.

Unidentified Justice: --it doesn't show threatened legal coercion.

Mr. Ziemba: No, I certainly agree with Your Honor's observation that if these two individuals--

Unidentified Justice: So what you are really arguing is that all that evidence which somehow, I must confess, seems relevant to the ultimate question, is irrelevant under your definition of--

Mr. Ziemba: --It is irrelevant to the question of--

Unidentified Justice: --Involuntary servitude.

Mr. Ziemba: --of... yes, yes.

Unidentified Justice: Mr. Ziemba, you really think you couldn't get that evidence in on saying, you know, Your Honor, I want to introduce it, because nobody who has not been threatened with physical coercion would be likely to endure these conditions.

It tends to prove that the person was threatened with some physical harm or with some physical coercion.

Now, it doesn't necessarily establish that, but it certainly tends to prove it.

Wouldn't you be able to get it in on that theory?

Mr. Ziemba: I would agree with Your Honor, absolutely, but then on the other hand I fully agree with Justice Stevens in his observation that all of the conditions in this case being pressed say--

Unidentified Justice: [inaudible]

Mr. Ziemba: --You are next.

Unidentified Justice: I mean, while you are at it, if you are going to--

Mr. Ziemba: You are next, Justice Marshall.

0 [Generallaughter.]

All the conditions remain the same but the two individuals in this case were paid $5,000 a month for their labors, the government would not have made his suggestion of involuntary servitude.

What this case really comes down to is this.

Are the defendants guilty of not paying minimum wage or a decent wage or something of that nature?

Unidentified Justice: --Any wage.

Mr. Ziemba: I am sorry?

Unidentified Justice: Any wage.

They didn't pay any.

Mr. Ziemba: Oh, they did, for a while.

Unidentified Justice: I mean as of now they weren't paying them any when this case was brought.

They weren't paying them any.

Mr. Ziemba: Well, they were getting some payment in kind, food, weekly food, and they were taking--

Unidentified Justice: When did you ever consider food to be payment?

Mr. Ziemba: --When?

Unidentified Justice: When.

Payment means money, m-o-n-e-y.

Green.

0 [Generallaughter.]

And the only green they had was mouldy bread.

0 [Generallaughter.]

Mr. Ziemba: Very well, Your Honor.

Are there any further questions?

0 [Generallaughter.]

Unidentified Justice: Well, they did get $10 on holidays, didn't they?

Mr. Ziemba: Something of that nature.

There was testimony to that effect.

Unidentified Justice: For the county fair and this kind of thing?

Mr. Ziemba: They were taken into town for Sunday dinner.

I think they were taken to a baseball game maybe one or twice a year.

Something of that nature.

Gratuities.

Not payment, gratuities.

Are there any further questions?

Chief Justice William H. Rehnquist: Thank you, Mr. Ziemba.

Mr. Ziemba: Thank you.

Chief Justice William H. Rehnquist: Mr. Reynolds, you have used your time.

The case is submitted.