United States v. Bidemi Bello

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-15054
Non-Argument Calendar
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D.C. Docket No. 1:10-cr-00397-WSD-LTW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BIDEMI BELLO, a.k.a. Ola Williams,
a.k.a. Abidemi A. Bello,
a.k.a. Nimota Folashade Bello,
a.k.a. Wasilat O. Williams,
a.k.a. Bidemi A. Bello,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
________________________
(January 17, 2013)
ON PETITION FOR REHEARING
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Before DUBINA, Chief Judge, TJOFLAT and KRAVITCH, Circuit Judges.
PER CURIAM:
We grant Appellant Bidemi Bello’s petition for rehearing, vacate our
previous panel opinion, and substitute the following opinion in lieu thereof:
Following her convictions for two counts of forced labor, two counts of
trafficking with respect to forced labor, one count of document servitude, one
count of harboring for financial gain, and two counts of unlawful procurement of
naturalization, Appellant Bidemi Bello challenges the two forced labor
convictions, raising an issue regarding the Sixth Amendment right to a unanimous
jury verdict. Bello argues that the district court erred in refusing to instruct the
jury that it must find unanimously the unlawful means by which she coerced her
two victims into forced labor. After considering the record and the arguments of
the parties, we affirm the convictions.
I.
A. Facts
Bello, who emigrated to the United States, took trips to her native country,
Nigeria, where she recruited two teenage girls to work for her as nannies through
false promises of a better life in America. In both situations, Bello brought the
girls into the United States illegally and made the girls her domestic slaves by
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means of physical abuse, psychological abuse, and various threats. While the
maltreatment of each victim was very similar, our analysis requires that we
separately recount the testimony and evidence concerning each young woman.
1. Laome’s Forced Labor
First, Bello recruited Olawunmi Olatunbosun (“Laome”), a 17 year old from
a very poor family in Nigeria.1 Laome spoke no English. Bello promised Laome
and her father that if Laome worked as Bello’s nanny, Bello would pay her a
monthly salary, send money to the family in Nigeria, and allow Laome to attend
school in America. Bello brought Laome to the United States illegally in October
2001 where she lived with Bello in a large home outside of Atlanta.
Bello required Laome to cook, clean, and complete daily household chores
in addition to caring for T., Bello’s baby. Bello denied Laome access to available
tools at the home that would speed her work, such as a lawnmower, vacuum
cleaner, washing machine, or dishwasher. Instead, Bello required Laome to cut
the grass by hand, sweep the carpet with a broom, and hand-wash dishes, clothes,
and diapers. Bello demanded that Laome clean the bathrooms and a backyard
fence daily, regardless of whether they were dirty. Laome did these tasks while
1
The superseding indictment identifies Olawunmi Olatunbosun as “O.O.” Trial
transcripts and the jury instructions refer to her by the nickname “Laome,” which we also adopt
for ease of reference.
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simultaneously caring for T; thus, Laome often carried the baby with her on her
back. Laome was also responsible for caring for T. during the night if T. cried. If
Laome permitted T. to cry, Bello would beat Laome. When she was at home,
Bello never contributed to household upkeep or the care of her child. Over the
two and a half years that Laome worked for Bello, Bello never paid her directly,
although she did send a total of $300 to Laome’s parents. Laome never attended
school as Bello promised.
Bello secured Laome’s obedience and labor by abusing Laome and
threatening her. If household chores did not satisfy Bello, she hit and beat Laome
with the back of her hand, a shoe, a wooden spoon, an extension cord, a belt, a
hanger, a broom, or any item close at hand. On occasion, Bello stood on Laome’s
stomach while beating her. She also threatened to beat and kill Laome or send her
to jail in Nigeria. Bello told Laome that if she answered the door or talked to the
neighbors, the police would take Laome to jail. Laome believed all of Bello’s
threats. Bello further abused Laome by calling her dumb, stupid, poor, dirty, ugly,
demonic, a slave, a witch, and a bitch. Bello took Laome with her to her church
and told her church pastor that Laome was a witch.
Bello required Laome to sleep on the couch, even though the home had
extra bedrooms. Bello forbid Laome from using any of the home’s bathtubs, and
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instead, required Laome to bathe with a bucket. Bello dressed Laome in her old
clothes and underwear, cut her hair short against her wishes, and gave her no
privacy, requiring her to change clothes in a hallway near a closet where Laome
kept her belongings. Bello did not feed Laome well and often forced her to eat
old, moldy food. If Laome threw up the food, Bello made her eat her vomit.
Laome could not go and come from the house as she pleased. She had no
cell phone, keys to Bello’s home, or personal money. Laome made no friends of
her own in the United States. After Laome told Bello that Laome’s father called
the house, Bello beat and kicked her for hours and forced her to stand naked for a
day with one hand and one foot on the ground and the other foot in the air.
Eventually, in May 2004, Laome escaped Bello’s home with the assistance of two
of Bello’s friends who observed the abuse.
2. Dupe’s Forced Labor
After Laome’s escape, Bello needed someone else to care for her home and
T., so she returned to Nigeria and recruited Olayemia Shorinola (“Dupe”).2 Dupe
also came from modest means, but she knew a little English from school. Again,
Bello promised Dupe’s father that she would treat Dupe like family and put her
2
The superseding indictment identifies Olayemia Shorinola as “O.S.” Trial transcripts
and the jury instructions refer to her by the nickname “Dupe,” which we also adopt for ease of
reference.
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through school in America in exchange for Dupe’s care for T., who was then about
three years old. Bello also told Dupe’s father that Dupe would be expected to help
out around the house a little. Dupe’s care for T. was intended to be rendered in
exchange for Bello’s providing Dupe with an education. Bello used false
information and documents to bring Dupe illegally into the United States in the
fall of 2004.
Upon arrival at Bello’s home, Bello put Dupe to work and required her to
constantly busy herself with housework, yard work, and childcare. Dupe usually
began working around 5:00 in the morning and was not permitted to rest or have a
day off. If T. woke up during the night, Dupe had to care for her. Bello did no
childcare or chores herself. As with Laome, Dupe was not allowed to use
available appliances for her chores. Once, when Bello learned that Dupe used the
washing machine and caused it to malfunction, Bello slapped her.
Bello frequently slapped, hit, beat, and cursed Dupe. She insulted Dupe’s
family, called her stupid, a witch, and a slave. When Dupe fled from Bello’s
abuse, Bello would just corner her against a wall and then beat her more. More
than once, Bello caused Dupe to bleed. Usually the beatings were for what Bello
deemed unsatisfactory job performance, but at other times, Bello beat Dupe for
accidents and mistakes, or for standing up for herself by talking back to Bello.
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Dupe showed marks on her face to people at Bello’s church and told them that
Bello beat her.
Dupe was required to sleep on the floor and bathe with a bucket, even
though the house had spare bedrooms and bathrooms. Bello forced Dupe to cut
her hair short, against her wishes. Dupe could not eat the food she prepared for
Bello; rather, Bello bought Dupe cheap foods that were about to expire. On one
occasion, Bello forced Dupe to eat spoiled leftovers.
Like Laome, Dupe was not given a key to the house or a cell phone. She
could not go outside without Bello’s permission. Bello tried harder to isolate
Dupe than she tried with Laome, forbidding Dupe from speaking to people at her
church. Like Laome, Dupe had no other contacts in America, and Bello did not
allow Dupe to contact or be contacted by her family in Nigeria. Dupe did not
believe there was anything she could do about her situation. Dupe believed that
Bello had powerful friends in government in Nigeria who could have her or her
parents arrested. As with Laome, Bello told Dupe that American law enforcement
would put Dupe in jail or send her back to Nigeria if she ever called the police.
Bello never paid Dupe or her family, and she never sent Dupe to school as
promised. Eventually, in the spring of 2006, Dupe escaped Bello’s home, using
money given to her by Bello’s friends to call a taxi.
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B. Relevant procedural history
Bello was arrested in August 2010. A grand jury indicted Bello on nine
counts, two counts of which were for the forced labor of Laome (Count One) and
Dupe (Count Four). Counts One and Four of the superseding indictment charged
that Bello, in violation of 18 U.S.C. § 1589, knowingly obtained the labor and
services of both victims: (1) by means of threats of serious harm to and physical
restraint against the victims or another person; (2) by means of a scheme, plan, and
pattern intended to cause the victims to believe that, if they did not provide labor
or services, they or others would suffer serious harm; and (3) by means of the
abuse and threatened abuse of the law and legal process.3 Bello’s case proceeded
to trial.
At the charging conference, and later in writing, Bello objected to the
Government’s proposed instruction describing the elements of forced labor to be
proved on Counts One and Four. Bello argued that the jury must be instructed to
unanimously agree as to the prohibited means by which she obtained Laome and
Dupe’s labor. The court overruled the objection, which she renewed after the jury
3
The superseding indictment, the Government’s requested jury instructions, and the jury
charge all follow the original version of 18 U.S.C. § 1589, in force from 2000 to 2008. We also
reference the original, 2000 version of the statute in effect prior to the 2008 amendments, as this
statute was in effect at the time of Bello’s offense conduct.
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was charged. The jury found Bello guilty on eight of nine counts charged,
including Counts One and Four. The district court sentenced Bello to a term of
imprisonment of 140 months on Counts One, Two, Four, and Five; 120 months on
Counts Seven, Eight, and Nine; and 60 months on Count Three, all to run
concurrently for a total of 140 months’ imprisonment. Upon her release from
prison, Bello will serve three years’ supervised release. Bello was also ordered to
pay restitution in the amount of $144,200. Bello timely appealed, contesting the
jury instructions’ failure to require unanimity as to the means by which Bello
coerced Laome and Dupe to work.
II.
We review the legal accuracy of a jury instruction de novo. United States v.
Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). However, we review for an abuse
of discretion a district court’s rejection of a requested jury instruction. United
States v. Moore, 525 F.3d 1033, 1046 (11th Cir. 2008).
III.
On appeal, Bello reiterates her objection to the jury’s instruction on the
forced labor offenses. Bello contends that, pursuant to her Sixth Amendment right
to a jury trial and a unanimous jury verdict, the court should have required the jury
to unanimously find not only that she coerced Laome and Dupe into forced labor
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by some prohibited means, but also the specific statutory means by which she
obtained their labor. She further contends that because Counts Two, Three, and
Five include as an element the underlying violation of the forced labor statute, her
conviction on these counts also must be reversed. Similarly, she argues that Count
Eight must be reversed because it required a finding that Bello was not entitled to
naturalization as a U.S. citizen at the time she sought naturalization because she
committed a crime for which she had not been arrested, i.e., the crime of forced
labor.
The Government counters that the three means of coercion identified in the
statute are not elements of the offense of forced labor. Rather, coercion, by any,
some, or all of the three means, is the element that requires a unanimous jury
verdict, and the jury was adequately instructed to find unanimously that Bello
knowingly obtained forced labor by at least one of the means identified in the
statute. The Government contends that the statutory text, legislative history, and
narrow scope of conduct encompassed in 18 U.S.C. § 1589 compel the conclusion
that the methods of coercion listed in the statute are simply means, not individual
elements of the forced labor crime. Alternatively, the Government argues that
even if the instruction given was erroneous, any error was harmless because the
Government presented overwhelming evidence that Bello coerced her victims by
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all three of the enumerated methods of coercion.
The statute in dispute, 18 U.S.C. § 1589(a), states that
[w]hoever knowingly provides or obtains the labor or services of a
person—
(1) by threats of serious harm to, or physical restraint against,
that person or another person;
(2) by means of any scheme, plan, or pattern intended to cause
the person to believe that, if the person did not perform such labor or
services, that person or another person would suffer serious harm or
physical restraint; or
(3) by means of the abuse or threatened abuse of law or the
legal process,
shall be fined . . . or imprisoned . . . , or both.
Consistent with the text of the statute, the district court instructed the jury on
Counts One and Four as follows:
To find a Defendant guilty of forced labor, you must find that
the Government has proven each of the following three elements
beyond a reasonable doubt:
First, that the Defendant provided or obtained the labor or
services of another person.
Second, that the Defendant did so through at least one of the
following prohibited means:
One, by threats of serious harm to, or physical restraint against
the person or any other person;
Or, two, by a scheme, plan or pattern intended to cause the
person to believe that non-performance of labor or services would
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result in serious harm to that person or any other person;
Or three, by the abuse or threatened abuse of law or the legal
process.
And thirdly — this is the third element — that the defendant
acted knowingly.
...
If you find that the defendant used one of the prohibited means,
you must then determine whether such use was sufficient to cause
[either victim] reasonably to believe that she had no choice but to
remain working for the defendant.
[R. 81 at 1154–56 (emphasis added).] The court also instructed the jury generally
that “[a]ny verdict you reach in the jury room, whether guilty or not guilty, must
be unanimous. In other words, to return a verdict, you must all agree.” [Id. at
1169.]
It is clear that “a jury in a federal criminal case cannot convict unless it
unanimously finds that the Government has proved each element” of the crime
charged. Richardson v. United States, 526 U.S. 813, 817, 119 S. Ct. 1707, 1710
(1999) (emphasis added). It is unclear, however, whether the means of coercion in
§ 1589 should be treated as elements of a forced labor offense, requiring a jury’s
unanimous agreement as to which means of coercion were employed. The
question presents an issue of first impression in this circuit or any federal circuit.
Nevertheless, we will not resolve the issue in this instance because we are
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confident that even if the district court committed a constitutional error, the error
was harmless.
We employ the harmless error analysis enunciated by the Supreme Court in
Chapman v California, 386 U.S. 18, 87 S. Ct. 824 (1967), because this is a direct
appeal. See generally, Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710,
1721-22 (1993). Thus, we must consider whether the error here “was harmless
beyond a reasonable doubt.” Chapman, 386 U.S. at 24, 87 S. Ct. at 828.
The record before us indicates that the verdicts on Counts One and Four
would not have likely differed if the court instructed the jury to find unanimously
the means by which Bello coerced Laome and Dupe to work for her. The
Government presented evidence that: (1) Bello both threatened to beat and
actually beat both Laome and Dupe; and (2) Bello engaged in a persistent pattern
of abuse of both Laome and Dupe that led them to believe that disobeying Bello
would result in continued, and possibly more serious, abuse; and (3) Bello
threatened to subject both Laome and Dupe, or their families, to arrest and
imprisonment in the United States, Nigeria, or both. Congress defined forced
labor as knowingly obtaining a person’s labor through at least one prohibited
means of coercion. See 18 U.S.C. § 1589(a). Therefore, whether the jury might
have failed to unanimously agree that Bello employed at least one prohibited
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statutory means of coercion when the Government demonstrated Bello’s use of all
three prohibited means is harmless beyond a reasonable doubt. Furthermore,
because the verdicts on Counts One and Four were unaffected by the court’s
instructions, any error was likewise harmless as to Bello’s other convictions that
included as an element a violation of the forced labor statute.
Consequently, we hold that even if the district court’s instruction was
insufficient insofar as it did not require unanimity as to the prohibited means of
coercion, any error was harmless. Likewise, we conclude that the district court’s
rejection of Bello’s requested jury instruction was not an abuse of discretion.
IV.
For the foregoing reasons, we affirm Bello’s convictions as to Counts One
and Four, the substantive forced labor offenses, and as to Counts Two, Three,
Five, and Eight, the counts that Bello argues are dependent upon the guilty verdict
as to Counts One and Four.
AFFIRMED.
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