Ricchio v. McLean, et al

Filing

OPINION issued by Sandra L. Lynch, Appellate Judge; David H. Souter,* Associate Supreme Court Justice and Bruce M. Selya, Appellate Judge. Published. *Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. [16-1680]

Case: 16-1680

Document: 00117138719

Page: 1

Date Filed: 04/05/2017

Entry ID: 6081827

United States Court of Appeals
For the First Circuit
No. 16-1680
LISA RICCHIO,
Plaintiff, Appellant,
v.
CLARK MCLEAN, ASHVINKUMAR PATEL, SIMA PATEL,
BIJAL, INC. d/b/a SHANGRI-LA MOTEL,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]

Before
Lynch, Circuit Judge,
Souter, Associate Justice,*
and Selya, Circuit Judge.

Felicia H. Ellsworth, with whom Cynthia D. Vreeland, Jason
H. Liss, Lucy Heenan Ewins, and Wilmer Cutler Pickering Hale and
Dorr LLP were on brief, for appellant.
Michael David Resnick, with whom John B. Reilly and John
Reilly & Associates were on brief, for appellees.

April 5, 2017

*

Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.

Case: 16-1680

Document: 00117138719

SOUTER,
actions

for

Page: 2

Associate

civil

Date Filed: 04/05/2017

Justice.

liability

under

Lisa
the

Entry ID: 6081827

Ricchio

brought

Trafficking

Victims

Protection Act against four defendants, including Ashvinkumar
Patel, Sima Patel, and Bijal, Inc.

As to them, the district

court dismissed under Federal Rule of Civil Procedure 12(b)(6),
for failure to state a claim.
For

the

purposes

We now reverse.
of

this

review

of

the

dismissal

motion and order, the allegations and inferences favorable to
Ricchio may be summarized briefly.

See SEC v. Tambone, 597 F.3d

436, 441 (1st Cir. 2010) (en banc) (at the 12(b)(6) stage, "we
accept as true all well-pleaded facts set out in the complaint
and indulge all reasonable inferences in favor of the pleader").
At the relevant time, the Shangri-La Motel was owned by the
defendant Bijal, Inc., and operated by the Patel defendants,
husband and wife, who themselves lived there.

In June 2011,

Clark McLean enticed Ricchio to drive from Maine to the ShangriLa in Massachusetts, where he took her captive and held her
against her will.

Over the course of several days there, McLean

physically and sexually abused Ricchio, repeatedly raping her,
starving and drugging her, and leaving her visibly haggard and
bruised.

He told her that he was grooming her for service as a

prostitute subject to his control.

McLean had prior commercial

dealings with the Patels, which the parties wished to reinstate
for profit.

McLean and Mr. Patel enthusiastically expressed

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this intent by exchanging high-fives in the motel's parking lot
while

speaking

about

"getting

this

thing

going

again,"

in

circumstances in which McLean's coercive and abusive treatment
of Ricchio as a sex slave had become apparent to the Patels.
Ms. Patel had not only nonchalantly ignored Ricchio's plea for
help in escaping from McLean's custody at the motel but, when
visiting

the

rented

quarters

to

demand

further

payment,

had

shown indifference to Ricchio's obvious physical deterioration.
And in plain daylight view of the front office of the motel,
either of the Patels on duty there would have seen McLean grab
Ricchio, kick her, and force her back toward the rented quarters
when she had tried to escape.

In these circumstances, it was a

plausible understanding that McLean was forcing sex in the motel
room where he held Ricchio hostage, and fairly inferable that
the gainful business that Mr. Patel and McLean spoke of had been
and would be in supplying sexual gratification.

It is likewise

inferable that the Patels understood that in receiving money as
rent for the quarters where McLean was mistreating Ricchio, they
were associating with him in an effort to force Ricchio to serve
their business objective.
Under Claims 1, 2, 3, 5, 6, and 7 of the complaint,1
these allegations and inferences suffice as plausible support

1

Claim 4 charges a violation by McLean alone.
It is now
moot, owing to voluntary dismissal of the complaint as against
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for pleading statutory violations by the Patel defendants in
their own right and as agents for renting out Bijal's motel
space, and by Bijal in consequence of the Patels' agency.

See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to survive a motion
to

dismiss,

a

complaint

"must

contain

sufficient

factual

matter . . . to 'state a claim to relief that is plausible on
its face'" (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007))); see also Decotiis v. Whittemore, 635 F.3d 22, 29
(1st

Cir.

2011)

("Applying

the

plausibility

standard

is

'a

context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.'" (quoting Iqbal,
556 U.S. at 679)).
In support of this conclusion, we note the following
points

of

congruence

between

the

extensive

allegations

summarized and provisions of the discursive Act.

just

In doing this

we do not mean to imply that the complaint does not support
claims under other provisions.

Our point is merely that it

withstands the general dismissal motion.

Claim

1,

under

18

U.S.C.

§§

1589

and

1595(a)2:

The

defendants' association with McLean was a "venture," that

him, following
charges.

his

conviction

2

and

incarceration

on

state

18 U.S.C. § 1595(a) is the civil remedy provision of the
Trafficking Victims Protection Act:
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is, a "group of two or more individuals associated in
fact," § 1591(e)(5), in conducting which the Patels (and
hence

Bijal)

knowingly

benefited,

that

is,

"receiv[ed

something] of value," § 1589(b), through renting space in
which McLean obtained, among other things, forced sexual
labor or services from Ricchio.

United States v. Cook,

782 F.3d 983, 988 (8th Cir. 2015) ("The phrase 'anything
of value' [in the Act] is extremely broad.").

The Patels

acted, at the least, in reckless disregard of the fact
that the venture included such conduct on McLean's part.
See 18 U.S.C. § 1589(b); United States v. Kaufman, 546
F.3d 1242, 1259-63 (10th Cir. 2008) (holding that "labor
or

services"

in

§ 1589

is

not

limited

to

"work

in

economic sense" and extends to forced sexual acts).
defendants'

knowing

benefit

from

that

conduct

an
The

entitles

Ricchio to damages under the derivative civil liability
provision of § 1595(a) in the instance of this claim and
by like application under those that follow.

An individual who is a victim of a violation of this
chapter
may
bring
a
civil
action
against
the
perpetrator
(or
whoever
knowingly
benefits,
financially or by receiving anything of value from
participation in a venture which that person knew or
should have known has engaged in a violation of this
chapter) in an appropriate district court of the
United States and may recover damages and reasonable
attorneys fees.

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Claim 2, under §§ 1590 and 1595(a): In continuing to rent
him

the

room

after

McLean's

conduct

was

manifest,

the

Patels knowingly harbored Ricchio at the Shangri-La Motel
for the purpose of McLean's object of obtaining her sexual
labor or services.

See § 1590(a); Kaufman, 546 F.3d at

1259-63.

Claim

3,

under

§§

1591

and

1595(a):

The

defendants

knowingly benefitted from the venture with McLean, since
they knew, or at least recklessly disregarded, the factual
prospect that force or threats of force would be used to
cause Ricchio to engage in a commercial sex act.

See §

1591(a)(2).

Claim

5,

under

§

1594(b)

and

(c),

and

§

1595(a):

The

venture constituted a conspiracy to violate §§ 1589, 1590,
and 1591 (see Claims 1, 2, and 3), the necessary overt
acts including the harboring of Ricchio and the receipt of
the benefit noted above.

See United States v. Ngige, 780

F.3d 497, 503 (1st Cir. 2015) (discussing the requirements
of a conspiracy generally).

Claim 6, under §§ 1594(a) and 1595(a):

The defendants at

the least attempted to violate §§ 1589, 1590, and 1591

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(see Claims 1, 2, and 3), the necessary substantial steps
including

the

benefit.

See United States v. Turner, 501 F.3d 59, 68

(1st

Cir.

harboring

2007)

constitute

a

of

("While

Ricchio

'mere

substantial

step

and

the

receipt

preparation'
[for

the

does

purposes

of

not
of

attempt], a defendant 'does not have to get very far along
the line toward ultimate commission of the object crime in
order

to

commit

the

attempt

offense.'"

(quoting

United

States v. Doyon, 194 F.3d 207, 211 (1st Cir. 1999))).

Claim 7, under §§ 1593A and 1595(a)(which § 1593A treats
as

creating

an

independent

violation):

The

defendants

knowingly benefitted (again, by way of payment for the
motel room) from participating in the venture as charged
in the preceding claims that formed a predicate for civil
recovery

under

§

1595(a).

The

complaint

plausibly

supports a claim that they acted with at least reckless
disregard of the fact that the venture activity resulted
in a "violation" of that section.

We repeat that we do not present this summary as necessarily
exhausting every variant of statutory violation and basis for
civil liability that could survive the general Rule 12(b)(6)
motion.

Our purpose here is solely to indicate that the claims

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so summarized (but yet to be proven) are supported by factual
allegations

and

reasonable

inferences

in

Ricchio's

favor

sufficient to pass muster under the plausibility standard.
We

conclude

by

focusing

on

specific

points

of

disagreement with the views expressed by the district court in
the order granting the motion to dismiss and the order denying
reconsideration.
body

of

To begin with, we give attention to the whole

allegations

as

circumstantially

supplying

meaning

to

particular acts by the Patels that the trial judge found too
ambiguous to support the claims when considered in isolation.
See Cardigan Mountain Sch. v. N.H. Ins. Co., 787 F.3d 82, 88
(1st Cir. 2015) ("The factual allegations [in the complaint] are
'circumstantial,' to be sure, but there is no requirement for
direct evidence." (citation omitted)); see also García-Catalán
v.

United

States,

734

F.3d

100,

101,

103

(1st

Cir.

2013)

(cautioning courts not to apply the plausibility standard "too
mechanically"

and

to

read

complaints

"as

a

whole").

Most

significantly, the district court found it "meaningless" that
McLean

and

Mr.

Patel

exchanged

high-fives

"getting this thing going again."

in

speaking

about

In isolation this may be so,

but the complaint is to be read as a whole, and we read the
statement

in

light

of

the

allegations

of

the

Patels'

complaisance in response to the several alleged exhibitions of
McLean's

coercive

and

brutal

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behavior

to

a

physically

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deteriorating Ricchio, who pleaded for help.

Entry ID: 6081827

Not only were

McLean's actions different from the expectable behavior of a man
who simply wished to overcome a woman's reluctance to engage in
sexual activity; they were indications of what he and Mr. Patel
had in mind when McLean spoke of "this thing."
Our

second

major

point

of

disagreement

with

the

district court is its holding that the various statutes under
which this action is brought require a showing that the Patels'
actions,

in

conjunction

with

McLean's,

succeeded

in

actually

establishing a going business of supplying third parties with
sexual opportunities.

Although § 1589 requires that labor or

services be provided or obtained, the other provisions noted
here do not.

See § 1590(a) (prohibiting the "knowing[] . . .

harbor[ing] . . . [of] any person for labor or services," which
is most obviously read as requiring only intent to produce the
result described); § 1594(a), (b), and (c) (prohibiting attempt
and conspiracy to violate §§ 1589, 1590, or 1591); United States
v. Mozie, 752 F.3d 1271, 1286 (11th Cir. 2014) ("It is enough
[for

§

1591

liability]

victims . . .

that

[the

defendant]

'recruited'

the

to engage in commercial sex acts even though they

did not actually do so."); United States v. Jungers, 702 F.3d
1066, 1073 (8th Cir. 2013) ("In many, if not all cases, the
commercial

sex

act

is

still

in

the

future

at

the

time

the

purchaser . . . [is] in violation of § 1591."); United States v.

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Todd, 627 F.3d 329, 334 (9th Cir. 2010) ("The knowledge required
of the defendant [for § 1591 liability] is such that if things
go as he has planned, force, fraud or coercion will be employed
to

cause

his

victim

to

engage

in

a

commercial

sex

transaction."); see also United States v. Roy, 630 F. App'x 169,
170-71 (4th Cir. 2015) (adopting the approach in Todd, 627 F.3d
at

334,

while

conviction).

reviewing
This

a

conclusion

conspiracy
(that

to

the

violate

objective

§

of

1591
forced

labor, forced services, or the intended trafficking need not be
satisfied for liability to attach) is confirmed in part by the
definition of "victim of trafficking" in a related statute as,
among

other

things,

a

person

who

has

been

"harbor[ed]

obtain[ed] . . . for the purpose of a commercial sex act."
U.S.C. § 7102(10), (15).

[or]
22

It is therefore not to the point under

the allegations in this case that no "act of commercial sex"
with a third party was plausibly pled.
The
claims

district

against

court's

defendants

judgment

Bijal,

Inc.,

dismissing
and

the

Ricchio's
Patels

reversed, and this case is remanded for further proceedings.

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is