Sarah Roe v. Linda Howard

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-2338
SARAH ROE,
Plaintiff – Appellee,
v.
LINDA HOWARD,
Defendant – Appellant,
and
ESTATE OF RUSSELL HOWARD,
Defendant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, District Judge. (1:16-cv-00562-LO-JFA)
Argued: October 30, 2018 Decided: February 25, 2019
Before WILKINSON, KING, and QUATTLEBAUM, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion in which Judge Wilkinson
and Judge Quattlebaum joined.
ARGUED: Richard Francis Rinaldo, JONES, GREGG, CREEHAN & GERACE LLP,
Pittsburgh, Pennsylvania, for Appellant. Melissa Lim Patterson, JONES DAY,
Washington, D.C., for Appellee. ON BRIEF: Timothy J. Battle, Alexandria, Virginia,
for Appellant. Alison B. Marshall, Christian G. Vergonis, JONES DAY, Washington,
D.C., for Appellee.
2
KING, Circuit Judge:
Defendant Linda Howard appeals from a judgment entered against her in the
Eastern District of Virginia after a jury found her civilly liable to plaintiff Sarah Roe
under the Trafficking Victims Protection Act (the “TVPA”). 1 Roe had sued Howard for
her role in sexual abuse that Roe suffered at the hands of Russell Howard, Linda’s
husband, when Roe worked in 2007 as the Howards’ housekeeper in housing provided by
the Embassy of the United States in Yemen. 2 The jury found that Linda’s conduct in
Yemen contravened criminal provisions of the TVPA and thus awarded Roe $3 million in
damages pursuant to the TVPA’s civil remedy provision. See 18 U.S.C. § 1595. On
appeal, Linda challenges the district court’s denial of her post-trial motion for judgment
as a matter of law, wherein she sought relief on the ground that, in 2007, the TVPA’s
civil remedy provision did not apply extraterritorially. Linda also challenges the court’s
admission of testimonial evidence from another former housekeeper of Linda and Russell
whom they had similarly abused. As explained below, we are satisfied to affirm the
judgment.
1
The TVPA is generally codified at 18 U.S.C. § 1581 et seq.
2
To avoid confusion, we generally refer to Linda Howard and Russell Howard by
their first names, that is, simply as Linda and Russell. We refer to the plaintiff by her
pseudonym “Sarah Roe,” pursuant to the district court’s ruling in that regard. See Roe v.
Howard, No. 16-cv-562 (E.D. Va. May 27, 2016), ECF No. 11.
3
I.
A.
On July 31, 2017, following a four-day trial, a jury in the Eastern District of
Virginia found Linda Howard civilly liable for contravening criminal provisions of the
TVPA. More specifically, the jury found that Linda had engaged in forced labor in
violation of 18 U.S.C. § 1589, forced labor trafficking in violation of § 1590, commercial
sex trafficking in violation of § 1591, and conspiring to engage in those offenses in
violation of § 1594. See J.A. 115-17. 3
When we review an appeal following a jury verdict, we view the trial evidence in
the light most favorable to the prevailing party. See Randall v. Prince George’s Cty., 302
F.3d 188, 195 n.8 (4th Cir. 2002) (citing Lowery v. Cir. City Stores, Inc., 206 F.3d 431,
442-43 (4th Cir. 2000)). We are likewise obliged to accord the prevailing party the
benefit of all reasonable inferences to be drawn from the evidence. See Lowery, 206 F.3d
at 443. The facts recited herein are taken in that light and drawn from the record, which
includes evidence presented at trial and the parties’ joint submission of stipulated facts.
1.
Linda is an American citizen. She began working for the Department of State in
1991 as a Communications Officer in Paris, France. In Paris, Linda met and married
Russell, an Australian citizen who then worked for the Australian Embassy in France.
3
Citations herein to “J.A.__” refer to the contents of the Joint Appendix filed by
the parties in this appeal.
4
Over the next decade, Linda and Russell held similar postings around the world, usually
arranging their assignments so that they could pursue their careers in the same country.
In 2001, Russell retired from his position with the Australian government, and he
thereafter followed Linda as she continued her career with the State Department.
In 2005, the State Department assigned Linda to our Embassy in Sana’a, Yemen.
Russell accompanied Linda to Sana’a and also found work at the Embassy. Among other
jobs, Russell performed administrative work for the Embassy Commissary. In Sana’a,
Linda and Russell lived in housing provided by the State Department, and they were
protected by U.S. government security. Linda and Russell remained in Sana’a for
approximately three years. Around December 2008, Linda and Russell moved to Japan,
where Linda received her next State Department posting. By 2012, Linda and Russell
had relocated to Melbourne, Australia, where Russell died of pancreatic cancer that
September. Linda continues to reside in Melbourne.
2.
Sarah Roe first met the Howards in September 2005, soon after their arrival in
Yemen. At that time, Roe was twenty years old. Born into an impoverished family in
Ethiopia, Roe had moved to Yemen to seek work, and she initially secured various
housekeeping and cleaning jobs. In September 2005, Roe was employed there as a
waitress at a restaurant on U.S. Embassy grounds called Uncle Sam’s. It was at Uncle
Sam’s that the Howards first encountered Roe and sought to befriend her.
As one of his odd jobs around the U.S. Embassy, Russell worked in a shop next
door to Uncle Sam’s. He first introduced himself to Roe, and then introduced Roe to
5
Linda. Both Howards paid special attention to Roe: they complimented her appearance,
initiated friendly conversations, and encouraged her to work for them as their live-in
housekeeper. At first Roe declined the job offer, and Russell asked her to help “find a
beautiful woman like [her]self to work in [the Howards’] home.” See J.A. 232. Linda
would stop by Uncle Sam’s three or four times a week, where she would “greet” and
“hug” Roe. Id. at 231. Linda even gave Roe her personal phone number. Id. at 234.
Around 2006, Roe returned to Ethiopia from Yemen for several months to care for
her mother. As a result, she lost her job at Uncle Sam’s. When Roe returned to Sana’a, a
young Ethiopian woman named Sabha was then employed as the Howards’ live-in
housekeeper, but Linda helped Roe obtain a data-entry job at the U.S. Embassy. Linda
gave Roe an application for the data-entry position and taught her how to use a basic
data-entry program on Linda’s home computer. After Roe got the job, Linda continued
to befriend her, meeting Roe to talk about her hair stylist and other non-work matters.
Linda presented herself to Roe “as a friend, someone very easy to talk to, someone with a
very good heart.” See J.A. 239. Linda also promised to help Roe find another job after
the data-entry position ended. Roe believed Linda offered such help because Linda
“really liked” her. Id. at 241.
Some months later, in the spring of 2007, the Howards’ then live-in housekeeper
(another young Ethiopian woman named Brhan) left them. At the time, Roe was looking
for a new job and the Howards renewed their offer to Roe to fill the housekeeping
position. Roe was uncertain about accepting the Howards’ offer. She made more money
when she had jobs that allowed her to accept tips, like waitressing. Roe also had her own
6
apartment and did not want to move in with the Howards, which was a requirement of the
position. But the Howards offered to help Roe get medical treatment for an eye ailment,
renew her work visa, and aid her family in Ethiopia. Linda also “knew that [Roe] had a
desire to improve [her] language skills,” and promised that Russell could help her with
her English. See J.A. 247. As part of their discussions about the live-in position, Linda
explained to Roe “that Russell is usually at home, he needs a friend.” Id. Linda told Roe
that “the main part of this job is to make Russell happy.” Id. at 250. Roe understood this
to mean that “doing my job, cleaning, doing everything else was what was going to make
him happy.” Id. Roe accepted the position and agreed to move in with the Howards.
She began working for the Howards in June 2007.
Once Roe moved into the Howards’ apartment, she discovered that, although she
had her own room and bathroom, the door to her room could not be locked without a key.
The Howards told Roe they did not have the key. The Howards then presented Roe with
a uniform consisting of a “very short” skirt and a blouse that “looked like something you
would wear . . . when you go out.” See J.A. 253. Linda had made the outfit herself.
When Roe refused to wear the uniform, Russell took Roe to the mall to go
shopping. At the mall, he purchased a “very revealing” “one-piece” that “open[ed] in the
front,” and “underwear . . . with one tiny string” and “many holes.” See J.A. 253. Back
at the apartment, Russell asked Roe to put on the new purchases “and show him what it
looks like.” Id. at 254. Roe refused again and went to the kitchen to prepare Russell’s
lunch. She then retired to her room. Suddenly, Russell entered the room, naked. Roe
tried to escape but Russell cornered her, pinned her down on the bed, and raped her.
7
Russell continually raped and sexually assaulted Roe for the duration of her time with the
Howards. He repeatedly threatened Roe to maintain her silence: he verbally abused her,
he warned Roe that he could have her thrown in jail, he threatened to tell her religiously
conservative family about the assaults, and he retained possession of her passport.
As the district court succinctly put it in its post-trial opinion, “Linda Howard was
aware of these assaults.” See J.A. 145-46. Linda often watched as Russell touched Roe’s
rear end and breasts. Roe overheard Russell talking to Linda on the phone about the
assaults, including complaining that Roe “wasn’t like Brhan.” Id. at 258, 334. Roe knew
it was Linda on the other end of the line based on the nature and content of those
conversations. On one occasion, Russell related events to Linda over the phone as he
took Roe to a hospital to have an intrauterine contraceptive device implanted. Russell
also told Roe that he talked to Linda about the rapes.
Eventually, Roe’s continued resistance to Russell’s repeated assaults and open,
abject misery so enraged Russell that he fired her in December 2007. Linda then helped
Roe obtain another restaurant job near the Howards’ apartment and wrote a letter of
recommendation for her. Even then, Russell would often stop by the restaurant to
threaten Roe to maintain her silence about the rapes he had perpetrated.
B.
Congress enacted the TVPA in the year 2000 “to combat trafficking in persons, a
contemporary manifestation of slavery whose victims are predominantly women and
children, to ensure just and effective punishment of traffickers, and to protect their
victims.” TVPA, Pub. L. No. 106-386, § 102(a), 114 Stat. 1464, 1466 (codified at 22
8
U.S.C. § 7101(a)). The congressional findings that accompanied the TVPA in its original
form repeatedly emphasized the transnational nature of human trafficking and sexual
exploitation, and the enforcement challenges posed by the international scope of that
criminal activity. See id., § 102(b), 114 Stat. at 1466-69.
By way of the TVPA, Congress created several new federal criminal offenses
intended to more comprehensively and effectively combat human trafficking. Among
other provisions, the TVPA criminalized: “Forced labor,” “[t]rafficking with respect to
peonage, slavery, involuntary servitude, or forced labor,” and “[s]ex trafficking of
children or by force, fraud or coercion.” See TVPA, § 112(a)(2), 114 Stat. at 1486-88.
Those provisions are respectively codified at 18 U.S.C. §§ 1589, 1590, and 1591, all
within chapter 77 of Title 18.
In 2003, Congress reauthorized and amended the TVPA. See Trafficking Victims
Protection Reauthorization Act of 2003, Pub. L. No. 108-193, 117 Stat. 2875 (the “2003
TVPRA”). In the findings accompanying the 2003 TVPRA, Congress stressed the
challenges that remained “in responding to the needs of victims of trafficking in the
United States and abroad.” See id., § 2(2), 117 Stat. at 2875. As part of the 2003
TVPRA amendments, Congress added a civil remedy provision to chapter 77. See 2003
TVPRA, § 4(a)(4)(A), 117 Stat. at 2878. That civil remedy provision is codified at 18
U.S.C. § 1595(a), which provides:
(a) An individual who is a victim of a violation of [chapter 77] may bring a
civil action against the perpetrator . . . in an appropriate district court of the
United States and may recover damages . . . .
9
The 2003 TVPRA also amended § 1591, which prohibits “[s]ex trafficking of
children or by force, fraud, or coercion.” That amendment altered § 1591 to expressly
apply to acts committed “within the special maritime and territorial jurisdiction of the
United States.” See 2003 TVPRA, § 5(a)(2), 117 Stat. at 2879. The phrase “special
maritime and territorial jurisdiction of the United States” is a term of art defined
elsewhere in the U.S. Code. That term encompasses a variety of locations under varying
degrees of control by the United States and includes, with respect to offenses committed
by U.S. nationals, the grounds of U.S. diplomatic installations and related premises. See
18 U.S.C. § 7(9). Specifically, § 7(9) defines the term to reach:
(A) the premises of United States diplomatic, consular, military or other
United States Government missions or entities in foreign States, including
the buildings, parts of buildings, and land appurtenant or ancillary thereto
or used for purposes of those missions or entities, irrespective of
ownership; and
(B) residences in foreign States and the land appurtenant or ancillary
thereto, irrespective of ownership, used for purposes of those missions or
entities or used by United States personnel assigned to those missions or
entities.
See id.
In 2006, Congress again reauthorized the TVPA. See Trafficking Victims
Protection Reauthorization Act of 2005, Pub. L. No. 109-164, 119 Stat. 3558 (effective
Jan. 10, 2006) (the “2005 TVPRA”). This time, Congress expressly found that “[t]he
involvement of employees and contractors of the United States Government . . . in
trafficking in persons, facilitating the trafficking in persons, or exploiting the victims of
trafficking in persons is inconsistent with United States laws and policies and undermines
10
the credibility and mission of the United States Government programs in post-conflict
regions.” See id., § 2(10), 119 Stat. at 3559. Accordingly, Congress further expanded the
TVPA’s extraterritorial reach by providing:
Whoever, while employed by . . . the Federal Government outside the
United States, engages in conduct outside the United States that would
constitute an offense under chapter 77 . . . of this title if the conduct had
been engaged in within the United States or within the special maritime and
territorial jurisdiction of the United States shall be punished as provided for
that offense.
See id., § 103, 119 Stat. at 3562 (codified at 18 U.S.C. § 3271). Each of the statutory
provisions and amendments discussed heretofore was in effect between June and
December 2007, when the Howards exploited and abused Roe.
In 2008, after Roe had left the Howards, Congress further amended and
reauthorized the TVPA. See William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044 (the “2008 TVPRA”).
The 2008 TVPRA further expanded the extraterritorial reach of the TVPA by providing:
In addition to any domestic or extra-territorial jurisdiction otherwise
provided by law, the courts of the United States have extra-territorial
jurisdiction over any offense (or any attempt or conspiracy to commit an
offense) under section . . . 1589, 1590, or 1591 if—
(1) an alleged offender is a national of the United States . . . .
See id., § 223, 122 Stat. at 5071 (codified at 18 U.S.C. § 1596). The 2008 TVPRA also
expanded chapter 77 to prohibit conspiracy to commit the offenses codified at, inter alia,
18 U.S.C. §§ 1589, 1590, and 1591. See id., § 222, 122 Stat. at 5070 (codified at 18
U.S.C. § 1594(b)-(c)).
11
C.
In May 2016, Roe sued Linda in the Eastern District of Virginia pursuant to the
TVPA civil remedy provision codified at 18 U.S.C. § 1595. 4 See J.A. 15. Roe alleged
that Linda had violated multiple criminal provisions of the TVPA, including its
prohibitions of forced labor under 18 U.S.C. § 1589, forced labor trafficking under
§ 1590, commercial sex trafficking under § 1591, and conspiracy to engage in those
offenses under § 1594.
Before trial, Linda sought summary judgment on the grounds that the TVPA did
not apply extraterritorially to reach her conduct in 2007, and that the 2008 amendments
expanding its extraterritorial application did not apply retroactively. The district court
denied that request without prejudice after argument.
Linda also filed a motion in limine to exclude the testimony of Jane Doe, a live-in
housekeeper who worked for the Howards after Roe was fired. 5 The district court denied
that motion and ruled that Doe’s testimony was admissible under either Rule 404(b) or
Rule 415 of the Federal Rules of Evidence. Roe’s claims proceeded to trial in Alexandria
on July 26, 2017.
4
Roe originally sued Russell’s estate in addition to Linda, but later dismissed the
estate as a defendant in these proceedings. See Roe v. Howard, No. 16-cv-562 (E.D. Va.
July 26, 2017), ECF No. 78.
5
The district court permitted Jane Doe to testify using this pseudonym. See J.A.
156.
12
In accordance with the district court’s ruling, Jane Doe took the stand at trial.
Like Roe, Doe was a young Ethiopian woman who came to Yemen in search of work.
Doe testified, inter alia, that she began working for the Howards in Sana’a as a live-in
housekeeper in 2008. Doe followed the Howards to Tokyo when they relocated at the
end of that year, based in part on the Howards’ promises that they would increase her pay
and help her obtain health insurance. Such insurance was a benefit of particular value to
Doe, who had “kidney issues.” See J.A. 162-63. Doe knew no one in Japan other than
the Howards and did not speak Japanese.
Shortly after Doe and the Howards arrived in Tokyo, Russell’s behavior toward
Doe changed. Doe testified, over objection, that Russell told her about “some of the
ways he abused his former employees.” See J.A. 165. She described how Russell began
to touch her inappropriately, on her butt and thigh. Doe then testified that Russell
cornered her in her bedroom in the Howards’ home and raped her. Russell raped Doe
repeatedly during her employment with the Howards. Doe testified, over objection, that
Russell told her that Linda knew “everything that is happening.” Id. at 174. Doe also
related that, after they had arrived in Tokyo, Linda told Doe “to make sure that I please
[Russell], and that’s my primary job, that she didn’t want him to be mad.” Id. at 175.
Some months later, while Doe and the Howards were still in Tokyo, Russell fired Doe
and threatened to have her deported.
On July 31, 2017, after additional testimony and stipulated submissions consistent
with the preceding recitation of facts, the jury returned its verdict. The jury found Linda
liable for each of the four alleged violations of the TVPA. The jury calculated Roe’s
13
compensatory damages at $1 million for each violation. The jury found, however, that
those compensatory damages were duplicative, and thus awarded Roe $1 million in total
compensatory damages. The jury also awarded Roe $2 million in punitive damages. See
J.A. 115-17.
In September 2017, Linda filed multiple post-trial motions seeking to overturn the
jury’s verdict. As relevant to this appeal, Linda sought a new trial pursuant to Federal
Rule of Civil Procedure 59(a), contending that the district court had erred in admitting
Doe’s testimony. Linda also renewed her Rule 50 motion for judgment as a matter of law
on the grounds that the TVPA did not apply to her extraterritorial conduct in 2007, and
that the 2008 TVPRA amendments did not apply retroactively. In October 2017, the
court denied Linda’s post-trial motions. The court then entered judgment in favor of Roe
in accordance with the verdict.
In January 2018, the district court issued a post-trial opinion that addressed, inter
alia, Linda’s contention that the TVPA’s civil remedy provision did not apply
extraterritorially to reach her conduct in Yemen in 2007. See Roe v. Howard, No. 16-cv-
562 (E.D. Va. Jan. 3, 2018), ECF No. 125. The court ruled that, under the version of the
TVPA in effect in 2007, the presumption against extraterritoriality was rebutted with
respect to Linda’s relevant conduct. Specifically, the court applied the Supreme Court’s
decision in Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013), and this Court’s
decision in Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516 (4th Cir. 2014), to
conclude that Linda’s conduct sufficiently “touche[d] and concern[ed] the United States”
to displace the presumption against extraterritoriality. See J.A. 148-49. Alternatively,
14
the court determined that 18 U.S.C. § 1596, enacted in 2008, could apply retroactively
and supported the extraterritorial application of the TVPA civil remedy provision to
Linda’s conduct.
Linda has timely appealed the judgment of the district court, and we possess
appellate jurisdiction pursuant to 28 U.S.C. § 1291.
II.
We review de novo a district court’s denial of a Rule 50 motion for judgment as a
matter of law, viewing the evidence in the light most favorable to the nonmoving party.
See Fontenot v. Taser Int’l, Inc., 736 F.3d 318, 332 (4th Cir. 2013). We also review de
novo “the conclusions of law on which the court’s denial of judgment as a matter of law
was premised.” Adkins v. Crown Auto, Inc., 488 F.3d 225, 231 (4th Cir. 2007). Our de
novo review extends to all questions of statutory interpretation encompassed therein.
See, e.g., Stone v. Instrumentation Lab. Co., 591 F.3d 239, 242-43 (4th Cir. 2009).
By contrast, we review a district court’s denial of a Rule 59 motion for a new trial
for abuse of discretion, and we will reverse only “in the most exceptional circumstances.”
Minter v. Wells Fargo Bank, N.A., 762 F.3d 339, 346 (4th Cir. 2014). Likewise, we
review rulings on the admissibility of evidence, including testimony, for abuse of
discretion. See, e.g., United States v. Vidacak, 553 F.3d 344, 348 (4th Cir. 2009).
15
III.
Linda seeks to overturn the jury verdict against her by challenging two of the
district court’s rulings in the proceedings below. First, Linda maintains that the court
erred in concluding that the TVPA’s civil remedy provision applied to her extraterritorial
conduct in 2007, and thus erred in denying her motion for judgment as a matter of law.
By her second contention, Linda argues that the court erred in admitting Jane Doe’s trial
testimony regarding her abuse by the Howards in 2008. We address each contention in
turn.
A.
Linda seeks to vacate the judgment against her on the ground that the TVPA’s
civil remedy provision, codified at 18 U.S.C. § 1595, did not apply extraterritorially
before 2008. Linda contends that this precludes any liability for her conduct toward Roe,
which took place in Yemen in 2007. The district court rejected that argument when it
denied Linda’s post-trial motion for judgment as a matter of law. In so ruling, the court
relied on the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co., and
concluded that Linda’s conduct sufficiently “touch[ed] and concern[ed] the United
States” to displace the presumption against extraterritoriality. See J.A. 149 (citing
Kiobel, 569 U.S. 108, 124-25 (2013)). Alternatively, the court determined that 18 U.S.C.
§ 1596 — which expanded the extraterritorial reach of the TVPA in 2008 — applied
retroactively and sustained Linda’s liability under the TVPA.
As explained below, we affirm the district court and conclude that the TVPA’s
civil remedy provision applied to Linda’s conduct in Yemen in 2007. We reach this
16
conclusion, however, based on a somewhat different analysis than that employed by the
district court. See United States v. Smith, 395 F.3d 516, 519 (4th Cir. 2005) (confirming
that this Court “may affirm on any grounds apparent from the record”). Specifically, we
rely on the Supreme Court’s more recent decision on extraterritoriality in RJR Nabisco,
Inc. v. European Cmty., 136 S. Ct. 2090 (2016). Adhering to the framework explained in
RJR Nabisco, we ground our ruling on the text and structure of the relevant TVPA
provisions. Pursuant to our analysis, we are satisfied that the TVPA’s civil remedy
provision applied to Linda’s conduct toward Roe in 2007.
1.
Congress has the undisputed authority to apply its laws beyond “the territorial
boundaries of the United States.” See United States v. Ayesh, 702 F.3d 162, 166 (4th Cir.
2012). Whether it has exercised that authority “is a matter of statutory construction.” Id.
(citing E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991), superseded in part by
statute, Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1074, as recognized in
Landgraf v. USI Film Prods., 511 U.S. 244, 251 (1994)). The canon of statutory
interpretation known as the “presumption against extraterritoriality” instructs that
“[a]bsent clearly expressed congressional intent to the contrary, federal laws will be
construed to have only domestic application.” RJR Nabisco, 136 S. Ct. at 2100.
In its 2016 ruling in RJR Nabisco, the Supreme Court drew on its precedent to
describe a “two-step framework for analyzing extraterritoriality issues.” See id. at 2101
(citing Kiobel, 569 U.S. 108; Morrison v. Nat’l Austr. Bank Ltd., 561 U.S. 247 (2010)).
The first step of the RJR Nabisco framework asks “whether the statute gives a clear,
17
affirmative indication that it applies extraterritorially,” and thereby rebuts the
presumption against extraterritoriality. Id. In making that determination, courts look to
the text of the statute, but “an express statement of extraterritoriality is not essential.” Id.
at 2102. The structure and history of the statute are also relevant to this analysis, and in
some circumstances the statute’s “context” may be “dispositive.” Id. at 2102-03.
If the first step reveals that a statute — or a specific statutory provision — has
extraterritorial effect, our analysis is complete. See id. at 2101. If, on the other hand, the
first step shows that a statute does not apply extraterritorially, a court must proceed to the
second step identified in RJR Nabisco. Specifically, the court must then “determine
whether the case involves a domestic application of the statute” by considering the
challenged conduct in light of the statute’s “focus.” Id. at 2101. If “the conduct relevant
to the statute’s focus” occurred “in U.S. Territory,” then the application of the statute is
not truly extraterritorial. See id. 6 That is, such conduct would represent a “permissible
domestic application” of the statute at issue. See id. at 2100.
6
In delineating the two-step framework in RJR Nabisco, the Supreme Court drew
on two of its key precedents addressing extraterritoriality: Morrison and Kiobel. The
second step described in RJR Nabisco, however, appears to privilege consideration of a
statute’s “focus” — the approach set out in Morrison — over the inquiry articulated in
Kiobel, which asked whether the claims at issue “touch and concern the territory of the
United States.” See RJR Nabisco, 136 S. Ct. at 2102; Kiobel, 569 U.S. at 124-25. On the
other hand, RJR Nabisco did not overturn Kiobel and — in step two — retains a similar
emphasis on the relevant claim’s connection to U.S. territory. See RJR Nabisco, 136 S.
Ct. at 2101. We need not resolve the effect of RJR Nabisco on Kiobel because, as
explained herein, we do not reach the second step of the RJR Nabisco framework.
18
2.
The first step of the RJR Nabisco framework requires us to assess the specific
statutory provisions at issue to determine whether those provisions demonstrate “clearly
expressed congressional intent” that they will apply extraterritorially. See 136 S. Ct. at
2100, 2102; see also Morrison, 561 U.S. at 265 (emphasizing that “when a statute
provides for some extraterritorial application, the presumption against extraterritoriality
operates to limit that provision to its terms”). Here, Roe sued Linda pursuant to the civil
remedy provision of the TVPA, codified at 18 U.S.C. § 1595. Section 1595 permits
victims of the trafficking offenses specified in chapter 77 of Title 18 to sue the
perpetrator of such an offense. Roe sought to recover damages based on Linda’s
violations of the trafficking offenses codified at 18 U.S.C. §§ 1589, 1590, and 1591,
which prohibit forced labor, trafficking in forced labor, and forced sex trafficking,
respectively. Roe also alleged that Linda conspired to commit those offenses in violation
of § 1594. As described above, the jury at Linda’s trial found that she had committed
each of those four offenses and awarded Roe damages under § 1595.
Applying the first step of the RJR Nabisco inquiry, we are satisfied that § 1595 of
the TVPA evinces a “clear indication of extraterritorial effect,” at least with respect to the
conduct at issue here. See 136 S. Ct. at 2102. Of crucial importance, § 1595 directly
incorporates predicate offenses that govern foreign conduct, providing strong textual
evidence of its extraterritorial effect when applied to those predicates. See id. at 2102-03.
Additionally, the purpose, structure, history, and context of the TVPA militate toward the
extraterritorial application of § 1595, to the extent that the relevant predicate offenses
19
reach the challenged foreign conduct at issue. See id. at 2102 (consulting “context” to
determine extraterritoriality); In re French, 440 F.3d 145, 151 (4th Cir. 2006) (explaining
that courts should consult “all available evidence,” including text, statutory scheme, and
legislative history to determine extraterritorial effect of statute).
We begin our analysis by looking to the Supreme Court’s application of the first
RJR Nabisco step to the circumstances of that case. In RJR Nabisco, the Court addressed
whether the Racketeer Influenced and Corrupt Organizations Act (“RICO”) applied
extraterritorially. See 136 S. Ct. at 2099. The central RICO provision, 18 U.S.C. § 1962,
contains four substantive prohibitions that criminalize certain means of influencing or
operating an enterprise through “a pattern of racketeering activity.” See id. at 2097
(citing 18 U.S.C. § 1962(a)-(d)). RICO defines “racketeering activity” as comprising a
range of state and federal offenses, referred to as predicate offenses. See id. at 2096
(citing 18 U.S.C. § 1961). To determine whether the substantive RICO provisions
applied to foreign conduct, the Court examined the text and context of § 1962. See id. at
2101-03.
The Court explained that “[t]he most obvious textual clue” that § 1962 applied
extraterritorially was that RICO defined “racketeering activity” to include “a number of
predicates that plainly apply to at least some foreign conduct.” See id. at 2101. The
Court reasoned that “Congress’s incorporation of [such] extraterritorial predicates into
RICO gives a clear, affirmative indication that § 1962 applies to foreign racketeering
activity — but only to the extent that the predicates alleged in a particular case
themselves apply extraterritorially.” See id. at 2102. Thus, although Congress had not
20
included “an express statement of extraterritoriality” in RICO’s text, the context and
structure of § 1962 — specifically, its incorporation of “predicate statutes that do apply
extraterritorially” — nonetheless provided the necessary “clear, affirmative indication”
that § 1962 applied extraterritorially. See id. at 2101, 2102-03.
Put simply, RJR Nabisco teaches that, even absent an express statement of
extraterritoriality, a statute may apply to foreign conduct insofar as it clearly and directly
incorporates a predicate statutory provision that applies extraterritorially. See 136 S. Ct.
at 2102-03. Applying this rule to the TVPA, we are satisfied that § 1595 reflects
congressional intent that it applies extraterritorially to the extent that a plaintiff seeks
redress for a predicate offense “that is itself extraterritorial.” See id. at 2103.
Like § 1962, the TVPA’s civil remedy provision directly incorporates a set of
predicate offenses “that plainly apply to at least some foreign conduct.” See RJR
Nabisco, 136 S. Ct. at 2101. More specifically, § 1595 permits “a victim of a violation of
this chapter [chapter 77 of Title 18]” to bring “a civil action against the perpetrator.” See
18 U.S.C. § 1595. Many of the predicate offenses proscribed by chapter 77 apply
extraterritorially, either expressly or by way of other provisions delineating their
extraterritorial application. See, e.g., 18 U.S.C. § 1585 (prohibiting, inter alia, seizure of
persons “on any foreign shore” with “intent to make that person a slave”). Thus,
pursuant to RJR Nabisco, “Congress’s incorporation” of such “extraterritorial predicates”
into § 1595 “gives a clear, affirmative indication” that § 1595 provides a civil remedy for
the foreign conduct that is prohibited by chapter 77. See 136 S. Ct. at 2102. That is,
21
§ 1595 applies extraterritorially to the extent that the particular predicate offense
supporting a specific claim applies extraterritorially. See id. at 2103.
Reinforcing that conclusion, the purpose, structure, history, and context of the
TVPA all support the extraterritorial application of § 1595 for an appropriate predicate
offense. The TVPA’s stated purpose and accompanying congressional findings
demonstrate that Congress enacted it to address the problem of human trafficking
“throughout the world.” See Pub. L. 106-386 §§ 101-102, 114 Stat. 1464, 1466-69
(2000). The TVPA contains numerous provisions authorizing funds and programs to
support international efforts to address that global problem. See, e.g., 22 U.S.C.
§ 7104(c) (creating “border interdiction” programs to combat trafficking at “key border
crossings”); § 7105 (authorizing foreign assistance programs to protect and aid
trafficking victims abroad). Notably, Congress has consistently amended the TVPA to
reach and proscribe additional categories of foreign conduct. See, e.g., 18 U.S.C. § 1591
(amended by 2003 TVPRA to cover conduct committed in special maritime and
territorial jurisdiction of United States); § 3271 (enacted as part of 2006 TVPRA
amendments to cover trafficking offenses by U.S. government employees abroad).
Viewed as a whole, the TVPA represents a far-reaching congressional effort to combat
transnational human trafficking on numerous fronts, including by expanding the civil
claims and remedies available to its victims.
This is, in short, a situation in which Congress was clearly concerned with
international rather than purely domestic matters. In these circumstances, unduly limiting
the TVPA’s scope risks frustrating its animating purpose. See Ayesh, 702 F.3d at 166
22
(ruling that federal statute prohibiting U.S. employees from pilfering public funds applied
extraterritorially because holding otherwise would immunize broad category of conduct
and frustrate congressional intent); United States v. Delgado-Garcia, 374 F.3d 1337,
1345 (D.C. Cir. 2004) (concluding that statutes prohibiting inducement of aliens to enter
United States illegally applied extraterritorially because, inter alia, they were
“fundamentally international” in “focus and effect”).
Although we are satisfied that RJR Nabisco compels the extraterritorial application
of § 1595 with respect to its extraterritorial predicates, we recognize that Part IV of that
decision declined to apply RICO’s civil cause of action to foreign conduct. See 136 S.
Ct. at 2106. But that part of Justice Alito’s opinion for the Court depended on factors
that do not apply to § 1595 of the TVPA. First, RICO’s civil remedy provision, codified
at 18 U.S.C. § 1964(c), does not directly incorporate any extraterritorial predicates.
Indeed, it makes no reference to any extraterritorial provision whatsoever. Rather, civil
liability under § 1964(c) is premised on § 1962 criminal liability, but — crucially — is
not coextensive with § 1962 liability. Justice Alito emphasized that the text of § 1964(c)
limited its application to certain types of injuries, and thereby created a gap between the
reach of § 1964(c) civil liability and § 1962 criminal liability. See id. at 2106, 2108.
Further, § 1964 contained no other indication that it should apply extraterritorially; that
is, it lacked the kind of “foreign-oriented language” or reference to foreign activity that
could sustain its extraterritorial application. See id. at 2108-10 & n.12.
None of the foregoing considerations apply to § 1595 of the TVPA. As explained
above, § 1595 expressly and directly incorporates the TVPA’s criminal predicates, many
23
of which manifestly apply to foreign conduct. See RJR Nabisco, 136 S. Ct. at 2102. In
that regard, § 1595 of the TVPA resembles § 1962 of RICO rather than the circumscribed
text of § 1964(c). See id. at 2109-10 (comparing and distinguishing § 1962 and § 1964);
acc. Pfizer, Inc. v. Gov’t of India, 434 U.S. 308, 313-14 (1978) (sustaining extraterritorial
application of Clayton Act civil remedy due to, inter alia, its incorporation of definitions
expressly addressing foreign entities). Moreover, the text of § 1595 shows that it applies
coextensively with its predicate offenses, omitting any qualifying or modifying language,
which further distinguishes it from § 1964(c). Notably, as discussed above, the TVPA is
replete with the “foreign-oriented language” that Justice Alito found lacking in § 1964(c),
including in the predicates underpinning Roe’s claim. See RJR Nabisco, 136 S. Ct. at
2110 n.12. Indeed, the TVPA more clearly targets foreign conduct than any provision of
RICO, as demonstrated by its international scope and Congress’s repeated expansions of
its extraterritorial reach. See, e.g., 2005 TVPRA, 119 Stat. at 3562.
In short, § 1595 evinces the same relationship to its extraterritorial predicate
offenses that RICO’s substantive criminal provision does to its predicates, and is not
subject to textual limitations like those found in RICO’s private cause of action. Section
1595 therefore provides a civil remedy for conduct that comes within the extraterritorial
predicates of the TVPA. Accordingly, we now turn to the question of whether the
predicate offenses underlying Roe’s civil suit applied to Linda’s extraterritorial conduct
in 2007.
24
3.
The jury awarded Roe damages based on their findings that Linda had violated 18
U.S.C. §§ 1589, 1590, 1591, and 1594. Each of those offenses is a qualifying predicate
offense for § 1595 civil liability, as they are all found within chapter 77 of Title 18 of the
U.S. Code. See 18 U.S.C. § 1595 (authorizing civil suits by “a victim of a violation of
this chapter [chapter 77]” against the perpetrator or “whoever knowingly benefits” from
that violation). The remaining question for us today is whether those predicates applied
extraterritorially and reached Linda’s foreign conduct in 2007. See RJR Nabisco, 136 S.
Ct. at 2102. We will therefore assess each predicate offense, mindful that “the inclusion
of some extraterritorial predicates does not mean that all [statutory] predicates extend to
foreign conduct.” See id.
a.
Section 1591 — prohibiting sex trafficking — presents the simplest analysis.
Since 2003, § 1591 has applied to conduct committed “within the special maritime and
territorial jurisdiction of the United States.” See 18 U.S.C. § 1591; 2003 TVPRA, 117
Stat. at 2879. Where an offense is committed by a United States national like Linda,
Title 18 defines the “special maritime and territorial jurisdiction of the United States” to
include the “premises of United States diplomatic, consular, military or other United
States Government missions or entities in foreign States,” including related residences,
buildings, and land, that, “irrespective of ownership,” are used “for purposes of those
missions or entities.” See 18 U.S.C. § 7(9). It is undisputed that Linda’s part in Roe’s
abuse occurred entirely on U.S. embassy grounds and housing in Sana’a. Those premises
25
unquestionably fall within the “special maritime and territorial jurisdiction of the United
States,” as defined in Title 18. See id.; see also United States v. Passaro, 577 F.3d 207,
214 (4th Cir. 2009) (observing that American embassies are “plainly within § 7(9)’s
scope”); United States v. Erdos, 474 F.2d 157, 160 (4th Cir. 1973) (ruling that embassies
comprise part of “special territorial jurisdiction” of United States); H.R. Rep. No. 107-
236, at 74 (2001) (agreeing with Erdos and explaining that “embassies and embassy
housing of the United States in foreign states are included in the special maritime and
territorial jurisdiction of the United States”). Thus, § 1591 expressly applied to Linda’s
conduct in Sana’a in 2007, and she is liable for her violation thereof under § 1595.
b.
Sections 1589 and 1590 of Title 18 — prohibiting forced labor and forced labor
trafficking — do not directly refer to foreign conduct. But since 2006, those sections
have applied to extraterritorial acts committed by United States employees like Linda.
The 2005 TVPRA amended the TVPA by enacting 18 U.S.C. § 3271, which provides:
Whoever, while employed by . . . the Federal Government outside the
United States, engages in conduct outside the United States that would
constitute an offense under chapter 77 [of Title 18] if the conduct had been
engaged in within the United States or within the special maritime and
territorial jurisdiction of the United States shall be punished as provided for
that offense.
See 18 U.S.C. § 3271; see also 2005 TVPRA, § 103, 119 Stat. at 3562. Such language
“manifests an unmistakable congressional intent to apply extraterritorially.” See RJR
Nabisco, 136 S. Ct. at 2102 (internal quotation marks omitted). If a plainer indication
was needed, Congress included § 3271 in chapter 212A, titled “Extraterritorial
26
Jurisdiction Over Certain Trafficking in Persons Offenses.” See 2005 TVPRA, 119 Stat.
at 3562. By the TVPA’s own terms, this extraterritorial application is limited in scope;
that is, it applies only to persons employed abroad by the federal government. Linda,
however, falls within that class of employees. Consequently, her actions in Sana’a were
within the extraterritorial scope of § 1589 and § 1590 in 2007. The jury therefore
properly found her liable for violating those provisions under § 1595.
c.
Turning to § 1594, however, our analysis differs. Regardless of § 1594’s
extraterritoriality, the conspiracy provision for which the jury found Linda liable had not
been enacted by 2007. Rather, the conspiracy prohibitions contained in § 1594(b) and (c)
were added as part of the 2008 TVPRA amendments. See 2008 TVPRA, § 222, 122 Stat.
at 5070. That said, we need not resolve whether § 1594 applies retroactively in order to
affirm the award of damages to Roe. If this Court is “reasonably certain” that the jury
would have awarded the same amount of damages regardless of the “issues erroneously
submitted to it,” we are entitled to affirm the award. See Tire Eng’g & Distribution, LLC
v. Shandong Linglong Rubber Co., 682 F.3d 292, 314 (4th Cir. 2012). That rule holds
particular force where, as here, the jury has completed a special verdict form addressing
liability and damages. See id. at 313-14 (collecting and comparing cases). Because the
jury indicated that it calculated Roe’s damages at $1 million for each of the four TVPA
violations, but awarded only $1 million total because those damages were duplicative, it
is beyond reasonable debate that the jury would have awarded Roe $1 million in
27
compensatory damages for any one of Linda’s violations, and for any combination
thereof. See J.A. 115-17.
In sum, the facts established at trial show that Linda committed at least three
predicate offenses that applied to her extraterritorial conduct toward Roe in 2007.
Pursuant to the Supreme Court’s decision in RJR Nabisco, § 1595 authorizes Linda’s
civil liability based on her commission of those offenses. 7 We are entitled to affirm the
jury’s award of damages because they were properly awarded pursuant to § 1595, and
because any error with regard to the applicability of § 1594 did not affect that result.
Because step one of the RJR Nabisco framework demonstrates that § 1595 applied
extraterritorially to Linda’s conduct, we need not proceed to step two, which guides our
analysis only where the pertinent statute does not apply extraterritorially. See RJR
Nabisco, 136 S. Ct. at 2101. We thus have no occasion to determine whether, under step
two, Linda’s offenses involved “a domestic application” of the TVPA. See id.
Accordingly, we reserve for another day the issue of whether conduct occurring entirely
within U.S. embassy grounds and associated housing takes place “in U.S. territory.” See
id.; see also Arabian Am. Oil Co., 499 U.S. at 248. We confine our analysis today to the
text and context of § 1595, and affirm the jury’s award of damages to Roe on that basis.
7
Linda’s argument against the extraterritorial application of § 1595 relies almost
entirely on the Fifth Circuit’s ruling in Adhikari v. Kellogg Brown & Root, Inc., where
that court determined that § 1595 failed to provide a remedy for the plaintiffs’
extraterritorial TVPA claims. See 845 F.3d 184, 201-06 (5th Cir. 2017); see also Br. of
Appellant 8-16. That decision, however, is readily distinguishable because the Adhikari
plaintiffs did not allege a violation of 18 U.S.C. § 1591 and the defendants’ conduct
occurred before the enactment of § 3271. See Adhikari, 845 F.3d at 190, 200.
28
B.
Turning to Linda’s second and final appellate contention, we must resolve whether
the district court properly admitted Jane Doe’s evidence concerning the sexual abuse she
suffered while working as the Howards’ housekeeper in 2008. Linda raises various
objections to Doe’s testimony: that it was impermissible character evidence barred by
Federal Rule of Evidence 404(a); that it could not be admitted under Rule 415, which
permits testimony of “similar acts” in sexual assault lawsuits; that it was unfairly
prejudicial and thus barred by Rule 403; and that the portion of Doe’s testimony relating
to Russell’s statements constituted inadmissible hearsay. Each assertion is without merit.
First, Doe’s testimony was plainly admissible under Rule 404(b)’s exception to
Rule 404(a)’s general prohibition of character evidence to prove an action in conformity
therewith. Doe’s testimony described Linda’s efforts to recruit Doe to work as the
Howards’ housekeeper, and her knowledge and facilitation of Russell’s repeated sexual
assaults on Doe. Consistent with the permissible uses of character evidence under Rule
404(b), Doe’s testimony constituted highly probative evidence regarding Linda’s
intentions in her interactions with Roe; the existence of a plan or pattern of behavior by
the Howards toward their live-in housekeepers; and Linda’s knowledge of Russell’s
abuse of their staff. Doe’s testimony was therefore admissible under Rule 404(b)(2),
which permits the introduction of evidence of “a crime, wrong, or other act” to show,
inter alia, intent, preparation, plan, knowledge, or absence of mistake. Indeed, the
similarity between Doe and Roe’s accounts of their abuse enhances the probative value
and relevance of Doe’s evidence. See United States v. Queen, 132 F.3d 991, 997 (4th
29
Cir. 1997). 8 Because we are satisfied that Doe’s testimony was properly admitted under
Rule 404(b), we need not assess whether it was also admissible under Rule 415.
Nor was Doe’s testimony barred by Rule 403. Pursuant to Rule 403, a court may
exclude evidence if its “probative value” is “substantially outweighed” by, inter alia, the
risk of “unfair prejudice.” As noted above, Doe’s testimony provided highly probative
evidence of a pattern of abusive behavior by Russell, knowingly facilitated by Linda.
Moreover, because the assaults Roe suffered occurred in Yemen nearly a decade prior to
Linda’s trial, Doe’s evidence was particularly important given the lack of available
physical evidence to corroborate Roe’s claims. Finally, the district court limited the
scope of Doe’s testimony to avoid revealing the upsetting details of Russell’s past
assaults, and thus reduced the risk of unfair prejudice. See United States v. Mark, 943
F.2d 444, 449 (4th Cir. 1991). In these circumstances, the court did not abuse its
discretion in permitting Doe to testify. See Mohr, 318 F.3d at 619-20 (emphasizing that
Rule 403 only requires exclusion of evidence resulting in unfair prejudice that
“substantially” outweighs its probative value); United States v. Van Metre, 150 F.3d 339,
351 (4th Cir. 1998) (sustaining admission of evidence of prior sexual assault in light of its
“significant probative value” and trial court’s effort to reduce its prejudicial impact).
8
Linda argues that the standard for admitting evidence under Rule 404(b) changes
when that evidence concerns “subsequent” (rather than prior) acts. Br. of Appellant 26.
No such rule exists in this Circuit. Put simply, Rule 404(b) does not function differently
merely because Doe’s experience occurred after Roe’s. See United States v. Mohr, 318
F.3d 613, 617 (4th Cir. 2003).
30
Lastly, Doe’s testimony concerning Russell’s past statements was not inadmissible
hearsay. Rule 804(b)(3) authorizes the admission of hearsay statements by an
unavailable declarant that are manifestly against the declarant’s interest. Specifically, the
statement must be one that “a reasonable person in the declarant’s position would have
made only if the person believed it to be true because, when made, it . . . had so great a
tendency . . . to expose the declarant to civil or criminal liability.” Fed. R. Evid.
804(b)(3). Russell’s statements to Doe — admitting to his past assaults of his former
employees — more than qualify as statements against interest as so defined, and his death
in 2012 establishes his unavailability to testify. Thus, the trial court did not abuse its
discretion by relying on that exception to admit Doe’s testimony regarding Russell’s
incriminating statements. See, e.g., United States v. Udeozor, 515 F.3d 260, 267-68 (4th
Cir. 2008) (evaluating flexible requirements of Rule 804(b)(3) and sustaining admission
of hearsay statements that implicated declarant in multiple crimes).
In short, the district court did not abuse its discretion in admitting Doe’s
testimony, and we are satisfied to affirm the court’s rulings in that regard.
IV.
Pursuant to the foregoing, we affirm the district court’s judgment in favor of Roe
and against Linda Howard.
AFFIRMED
31