USA v. Jean Toviave

Filing

OPINION and JUDGMENT filed : Toviave's convictions for forced labor are REVERSED. Decision for publication. Richard F. Suhrheinrich, John M. Rogers (AUTHORING), and Jeffrey S. Sutton, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0170p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

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No. 13-1441

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JEAN CLAUDE KODJO TOVIAVE,
Defendant-Appellant.

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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:11-cr-20259-1—Arthur J. Tarnow, District Judge.
Argued: May 7, 2014
Decided and Filed: August 4, 2014
Before: SUHRHEINRICH, ROGERS, and SUTTON, Circuit Judges.
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COUNSEL
ARGUED: Christopher Keleher, THE KELEHER APPELLATE LAW GROUP, Chicago,
Illinois, for Appellant. Mollie E. O’Rourke, UNITED STATES ATTORNEY’S OFFICE,
Detroit, Michigan, for Appellee. ON BRIEF: Christopher Keleher, THE KELEHER
APPELLATE LAW GROUP, Chicago, Illinois, for Appellant. Mollie E. O’Rourke, UNITED
STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.
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OPINION
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ROGERS, Circuit Judge. Child abuse is a state crime, but not a federal crime. Forced
labor is a federal crime, 18 U.S.C. § 1589, but the statute obviously does not extend to requiring
one’s children to do their homework, babysit on occasion, and do household chores. Only by

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bootstrapping can this combination of two actions that are not federal crimes—child abuse and
requiring children to do household chores—be read as a federal crime.
Defendant Toviave brought four young relatives from Togo to live with him in Michigan.
After they arrived, Toviave made the children cook, clean, and do the laundry.

He also

occasionally made the children babysit for his girlfriend and relatives. Toviave would beat the
children if they misbehaved or failed to follow one of Toviave’s many rules. While his actions
were deplorable, Toviave did not subject the children to forced labor. The mere fact that
Toviave made the children complete chores does not convert Toviave’s conduct—what
essentially amounts to child abuse—into a federal crime.

Toviave’s federal forced labor

conviction must accordingly be reversed.
Toviave immigrated to the United States from Togo in 2001 and eventually settled in
Michigan. In 2006, he contacted Helene Adoboe, a girlfriend (sometimes referred to as his wife)
from Togo, and asked that she and four children—Gaelle, Rene, Kwami, and Kossiwa—come
and live with him in the United States. Kossiwa is Toviave’s younger sister, Gaelle and Rene are
Toviave’s cousins (although their degree of consanguinity is unclear), and Kwami is Adoboe’s
nephew. Adoboe and the children managed to enter the United States with false immigration
documents. Adoboe initially lived with Toviave, but their relationship quickly soured, and the
two separated in 2008.
Toviave apparently demanded absolute obedience from the children and was quick to
beat them. Toviave hit the children with his hands, and with plunger sticks, ice scrapers, and
broomsticks, often for minor oversights or violations of seemingly arbitrary rules. For example,
Gaele testified that Toviave hit her in the face for using loose-leaf paper rather than a notebook
to do her homework, and Kossiwa recounted an incident where Toviave hit her with a
broomstick for throwing a utensil in the sink.
The children were responsible for different household chores. Toviave made the children
cook, clean, and do the laundry. He also made the children pack up the house when the family
moved to a new apartment, serve food to Toviave’s guests, iron Toviave’s clothes, and clean his
van. Toviave also occasionally made the children babysit for the women he was dating, or for
his relatives.

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Toviave was not always cruel, however. He provided for the children by working two
jobs, and also did yard work. Toviave bought the children sports equipment and let them play
soccer.

The children also participated in some recreational activities with Toviave: they

exercised with him and went on family trips together. Toviave also put significant emphasis on
education; many of his punishments appear to have stemmed from problems related to
schoolwork. He hired a tutor to teach the children English. He also imposed mandatory study
periods: the children had to be at the kitchen studying at 5:30 a.m. on school days. The children
always attended school, and Toviave even created extra assignments and drills for the children to
complete when they finished their school assignments.
Eventually, the children’s teachers began to suspect that the children were being abused.
Michigan authorities caught wind of the allegations of abuse and began investigating Toviave.
The children were eventually removed from the house.

The federal government became

involved when a Michigan investigator began to suspect that the children had been brought into
the United States illegally. Agents with the Department of Homeland Security obtained a search
warrant and discovered false immigration documents in Toviave’s home. Some time later, a
grand jury indicted Toviave on charges of visa fraud, mail fraud, forced labor, and human
trafficking. Toviave pled guilty to the visa and mail fraud charges, and the government dropped
the trafficking charge. Toviave proceeded to trial on the forced labor charges. During the trial, a
juror asked the court, “Why is this [case] not tried under the child abuse laws?” The court
answered, “Child abuse laws are state laws, and there’s no reason that it couldn’t be tried under
both.” Toviave was eventually convicted on four counts with respect to the four children. He
appeals.
Although Toviave’s treatment of the children was reprehensible, it was not forced labor.
Three points compel this conclusion. First, forcing children to do household chores cannot be
forced labor without reading the statute as making most responsible American parents and
guardians into federal criminals. Second, requiring a child to perform those same chores by
means of child abuse does not change the nature of the work. And third, if it did, the forced
labor statute would federalize the traditionally state-regulated area of child abuse. In short,
treating household chores and required homework as forced labor because that conduct was

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enforced by abuse either turns the forced labor statute into a federal child abuse statute, or
renders the requirement of household chores a federal crime.
Apart from the abuse, the facts here amount to nothing more than household chores.
Toviave made the children clean the house weekly. This included washing the floors, windows,
and bathrooms, and doing dishes. Toviave also tasked the children with preparing food and
doing laundry. On one occasion, the family moved, and Toviave forced the children to do all of
the packing. Finally, Toviave made the children babysit for his friends and relatives. None of
this conduct goes beyond what a parent or guardian can expect from his child.
An American parent has always had the right to make his child perform household
chores. That right is codified in Michigan: “parents . . . are . . . entitled to the custody, control,
services and earnings of [a] minor.” Mich. Comp. Laws § 722.2; see also Rohm v. Stroud,
194 N.W.2d 307, 308 (Mich. 1972). A person standing in loco parentis, or “in the place of a
parent; instead of a parent; charged, factitiously, with a parent’s rights, duties, and
responsibilities” also has that right. Hush v. Devilbiss Co., 259 N.W.2d 170, 174 n.1 (Mich. Ct.
App. 1977). This principle reappears in different areas of the law. For example, child labor laws
often do not apply to domestic work or chores. See, e.g., Mich. Comp. Laws § 409.119(a);
29 C.F.R. § 570.126. A parent is also entitled to compensation for the value of his or her child’s
services in a tort action. See Rohm, 194 N.W.2d at 309. “In most states, as at common law,
gainful employment neither guarantees minor children the right to receive their earnings nor
provides them with a cause of action to recover the earnings their parents have taken from them.”
Jillian Benbow, Under My Roof: Parents’ Rights to Children’s Earnings, 16 J. Contemp. Legal
Issues 71, 72 (2005); see also Fox v. Schumann, 158 N.W. 168, 169 (Mich. 1916).
The government’s interpretation of 18 U.S.C. § 1589 would make a federal crime of the
exercise of these innocuous, widely accepted parental rights. Take a hypothetical parent who
requires his child to take out the garbage, make his bed, and mow the lawn. The child is
quarrelsome and occasionally refuses to do his chores. In response, the child’s parent sternly
warns the child, and if the child still refuses, spanks him. The child then goes about doing his
chores. There is no principled way to distinguish between that sort of hypothetical labor and
what Toviave made the children do in this case. Both the tasks assigned to the child by the

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hypothetical parent and the duties assigned by Toviave are “labor” in the economic sense of the
word: one could, and people often do, pay employees to perform these types of domestic tasks.
But it has always been true that parents can make their children perform this kind of
work. The forced labor statute could not have been intended to overturn this longstanding
parental right. Indeed, the Supreme Court has long recognized that the Thirteenth Amendment
“was not intended to apply to ‘exceptional’ cases well established in the common law at the time
of the Thirteenth Amendment, such as ‘the right of parents and guardians to the custody of their
minor children or wards.’” United States v. Kozminski, 487 U.S. 931, 944 (1988) (quoting
Robertson v. Baldwin, 165 U.S. 275, 282 (1897)). It is true that Toviave sometimes made the
children babysit, and kept the money. But requiring one’s child to babysit for a girlfriend is not
beyond the bounds of what a guardian can reasonably expect from his child.
There are two ways, to be sure, in which Toviave’s case is distinguishable from that of
ordinary parents requiring chores. One is that Toviave is not actually the victims’ parent or legal
guardian, and the second is that the chores were enforced by reprehensible, abusive force.
Neither distinction makes a difference, however, with respect to the federal crime of forced
labor.
First, whether a person standing in loco parentis is an actual parent or legal guardian has
little relevance one way or the other regarding forced labor. On the one hand a parent or
guardian can commit forced labor, and is not immunized by that status. The forced labor statute
contains no exception for parents or other close relatives, and at oral argument the Government
said that parents can subject their children to forced labor under the statute. A forced-labor
sweatshop could be run by a parent of one of the victims. For example, we have held that
express parental acquiescence did not immunize cult leaders from liability under the analogous
involuntary servitude statute. See United States v. King, 840 F.2d 1276, 1282 (6th Cir. 1988).
On the other hand, one can easily think of a situation where a child is in the household of a
thoughtful adult who temporarily brings that child into his or her home and takes responsibility
for the child. Perhaps a grandmother has taken a child while the child’s single parent is in
rehabilitation, or away on military duty.

The law necessarily recognizes that assigning

household chores does not require parental or guardian status, where there is a cooperative,

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homelike situation, even in far less sympathetic situations. See e.g., id. at 1280. Thus the
legality of parents’ requiring their children to do chores does not depend on parental or guardian
status. Indeed, so holding would undermine the ability to prosecute parents or guardians who
commit forced labor of their children.
Second, the extremity of force is also not a determinant of forced labor, one way or the
other. A parent who brutally beats a child to get the child to sit up straight or stop crying, or to
punish a child for some slight misdeed is not guilty of forced labor. In that hypothetical, there
may have been force, but there is no labor. On the other hand, paradigmatic forced labor, such as
prostitution, forced sweatshop work, or forced domestic service, may be federally criminal even
though the force is not physical at all, but merely psychological, such as isolation and pretended
threats to the victim’s friends or relations. See 18 U.S.C. § 1589(c)(2); see also United States v.
Sabhnani, 599 F.3d 215, 226 (2d Cir. 2010). Thus the legality of parents’ requiring their
children to do chores does not depend on the presence of physical force. Indeed, so holding
would undermine the ability to prosecute those who commit forced labor by psychological
coercion.
One may ask what harm is done if child abuse without forced labor is deemed to be a
federal crime. The harm is the federalization of state law. If it is the degree of force that turns
what otherwise is not criminal forced labor into a federal crime, then it is the degree of force that
is criminalized. In other words, the incidental presence of tasks turns the state crime of child
abuse into a federal crime. “Congress has traditionally been reluctant to define as a federal crime
conduct readily denounced as criminal by the States.” United States v. Bass, 404 U.S. 336, 349
(1971). In recognition of that fact, the Supreme Court has shied away from reading criminal
statutes as making “traditionally local criminal conduct . . . a matter for federal enforcement.”
Jones v. United States, 529 U.S. 848, 858 (2000) (quoting Bass, 404 U.S. at 350).
In Michigan, an individual that “knowingly or intentionally causes physical harm to a child”
is guilty

of

§ 750.136b(5)(a).

child abuse

in

the

third

degree.

Mich.

Comp.

Laws

In fact, child abuse is a crime in every other state as well.

NDAA, Statutory Compilation: Physical Child Abuse Penalties (April

2013)

available

See
at

http://www.ndaa.org/pdf/Physical%20Child%20Abuse%20Penalties%20Compilation%202013%

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20(3).pdf. Indeed, in a case involving child abuse, albeit where the issue was abstention, the
Supreme Court recognized that “[f]amily relations are a traditional area of state concern.”
Moore v. Sims, 442 U.S. 415, 435 (1979). The Supreme Court has moreover “cautioned . . . that
‘unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed
the federal-state balance’ in the prosecution of crimes.” Jones, 529 U.S. at 858 (quoting Bass,
404 U.S. at 349). The forced labor law contains no sufficiently clear statement that it applies to
the child abuse in this case.
The Supreme Court has recently reemphasized that we should be cautious in inferring
Congressional intent to criminalize activity traditionally regulated by the states. Bond v. United
States, 134 S. Ct. 2077 (2014), involved “an amateur attempt by a jilted wife to injure her
husband’s lover, which ended up causing only a minor thumb burn readily treated by rinsing
with water.” Id. at 2083. The wife, a microbiologist, obtained two different chemicals that can
be lethal in high enough doses. Id. at 2085. She proceeded to spread the chemicals on the
lover’s “car door, mailbox, and door knob.” Id. Because the chemicals were easy to see, the
lover managed to avoid serious harm. Id. Eventually, postal service investigators caught the
wife. Id. Despite the unwarlike nature of the wife’s conduct, the government charged her with
two counts of possessing chemical weapons in violation of 18 U.S.C. § 229.
The government’s position was that the wife’s conduct fell within the very broad scope of
the chemical weapon statute. Section 229F defines a chemical weapon as any “toxic chemical”
except for those intended for “[a]ny peaceful purpose related to an industrial, agricultural,
research, medical, or pharmaceutical activity or other activity.” Id. § 229F(7). Clearly the wife’s
purpose was not peaceful; it was to harm (or at least aggravate) the lover. Bond, 134 S. Ct. at
2088. But could a statute with origins arising out of the trench warfare of World War I really
apply to conduct that amounted to a vindictive prank? Not according to the Supreme Court. The
Court reasoned that § 229 was ambiguous due in part to the “improbably broad reach of” the
definition of chemical weapon and the “deeply serious consequences of adopting such a
boundless reading.” Id. at 2090. The Court held that reliance on the principles discussed
above—insisting that Congress clearly indicate that it intends to criminalize “purely local
crimes”—was appropriate in light of the ambiguity. Id. While the federal government might

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have “a substantial interest in enforcing criminal laws against assassination, terrorism, and acts
with the potential to cause mass suffering,” Congress does not typically criminalize purely local
conduct like the wife’s garden-variety assault. Id. at 2092.
The reasoning of the Supreme Court appears to apply directly to Toviave’s case. The
Court explained that “[p]art of a fair reading of statutory text is recognizing that ‘Congress
legislates against the backdrop’ of certain unexpressed presumptions.” Id. at 2088 (quoting
EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991)). One unexpressed assumption, surely
as incontrovertible as the examples used by the Supreme Court, is that parents can require their
children to do household chores. In the words of the Supreme Court, “[t]he notion that some
things ‘go without saying’ applies to legislation just as it does to everyday life.” Id. The
Supreme Court relied in particular on the background principle of construction that “‘it is
incumbent upon the federal courts to be certain of Congress’ intent before finding that federal
law overrides’ the ‘usual constitutional balance of federal and state powers.’” Id. at 2089
(quoting Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)). The Court explained that it has
“applied this background principle when construing federal statutes that touched on several areas
of traditional state responsibility,” and “[p]erhaps the clearest example of traditional state
authority is the punishment of local criminal activity.” Id. As explained above, household child
abuse is quintessential local criminal activity, at least as much as the arson in Jones, 529 U.S.
848, relied upon by the Court. The Court proceeded to reason that “[i]n settling on a fair reading
of a statute, it is not unusual to consider the ordinary meaning of a defined term, particularly
when there is dissonance between that ordinary meaning and the reach of the definition.”
The Court continued:
The Government would have us brush aside the ordinary meaning and adopt a
reading of section 229 that would sweep in everything from the detergent under
the kitchen sink to the stain remover in the laundry room. Yet no one would
ordinarily describe those substances as “chemical weapons.” The Government
responds that because Bond used “specialized, highly toxic” (though legal)
chemicals, “this case presents no occasion to address whether Congress intended
[section 229] to apply to common household substances.” That the statute would
apply so broadly, however, is the inescapable conclusion of the Government’s
position: Any parent would be guilty of a serious federal offense—possession of a
chemical weapon—when, exasperated by the children’s repeated failure to clean
the goldfish tank, he considers poisoning the fish with a few drops of vinegar.

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We are reluctant to ignore the ordinary meaning of “chemical weapon” when
doing so would transform a statute passed to implement the international
Convention on Chemical Weapons into one that also makes it a federal offense to
poison goldfish. That would not be a “realistic assessment[ ] of congressional
intent.”
Bond, 134 S. Ct. at 2091 (internal citations omitted). Similarly, we should not—without a clear
expression of Congressional intent—transform a statute passed to implement the Thirteenth
Amendment against slavery or involuntary servitude into one that generally makes it a crime for
a person in loco parentis to require household chores, or makes child abuse a federal crime.
None of this undermines the reasoning of the forced labor decisions of this court and our
sister circuits. For example, Toviave’s treatment of the children contrasts with the defendants’
treatment of the victim in United States v. Nnaji, 447 F. App’x 558 (5th Cir. 2011). There, the
victim “woke at 4:00 a.m. every day, attended to all of the household chores, and was the sole
caregiver for the Nnajis’ children. . . . Over the more than eight years that the victim spent
working for the Nnajis, she was not paid, and her family in Nigeria received less than $400 from
the Nnajis.” Id. at 559. The defendants falsely told the victim that her salary would be deposited
in a bank account and that money was being sent to the victim’s children in Nigeria. Defendants
kept the victim isolated, prohibiting her from making contact with outsiders, deciding not to
teach her how to use the telephone other than for emergency situations, and accompanying her
whenever she left the house. These factors described by the Fifth Circuit in Nnaji contrast
sharply with the facts of the instant case.
Other cases in which forced labor has been found in the household context are also
distinguishable in crucial ways. Most involve defendants that subjected their victims to more
extreme isolation, and none of the defendants provided their victims with an education. The
Seventh Circuit’s Calimlim decision involved a family that brought a Filipino woman—with no
apparent relationship to the defendant—to the United States to work as a domestic servant.
538 F.3d 706, 708 (7th Cir. 2008). The family confiscated the woman’s travel documents and
used her immigration status and her family’s reliance on her meager wages to keep the woman
isolated from the outside world. Id. at 709. The woman left the Philippines to work as a
domestic servant, and the family’s conduct was clearly aimed at keeping her from leaving or
asking for more money. The defendant in United States v. Dann, 652 F.3d 1160 (9th Cir. 2011),

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met the victim in Peru, asked her to come work for her as a nanny, confiscated her passport,
refused to pay her, and kept her presence in the United States a secret. Id. at 1162. Again, the
evidence indicated that the defendant went to great lengths to keep the victim hidden so that she
could benefit from the woman’s labor. In United States v. Afolabi, 508 F. App’x 111, 113 (3d
Cir. 2013), the defendant—a Togolese woman—brought more than twenty young girls to the
United States to work in hair-braiding salons. In evaluating the sufficiency of the evidence, the
Third Circuit summarized the relevant facts:
Five victims testified at trial that despite promises of schooling upon arrival in the
United States, they were forced to work 60 to 100 hours per week for several
years and to hand over all earnings from the hair-braiding salons where they
worked. They testified that they did so because Afolabi and her co-conspirators
(1) separated them from their families, any school community, funds, or
identifying documents; (2) threatened to deport them to Africa and to beat them
violently; and (3) in fact did assault and beat them, with various implements.
Id. at 119. Our own decision in United States v. Djoumessi, 538 F.3d 547 (6th Cir. 2008), which
involved a prosecution under the involuntary servitude statute, was about a family that brought a
fourteen-year-old Cameroonian girl to Detroit to work as a domestic servant. Id. at 549. The
victim worked sixteen hours a day, did all of the housework, and provided all of the childcare for
the defendants. Id. The defendants never paid the victim, allowed her to leave the home only as
part of her childcare duties, beat her, and even sexually abused her on three occasions. Id.
All of these cases involved victims who were brought to the United States to work and
who were subsequently cheated out of the salaries they were promised all while being subjected
to intolerable living conditions. See also United States v. Sabhnani, 599 F.3d 215 (2d Cir. 2010).
Here, the children were brought to the United States to obtain an education. The parties appear
to agree that the children spent a substantial amount of time at school, doing homework, and
studying. In fact, the evidence shows that Toviave had an almost single-minded fixation on
making sure the children got an education. Defendants in other cases typically exploit their
victims’ lack of education and familiarity with English as a way to keep them isolated from the
outside world. Here, Toviave actually hired an English tutor for the children when they first
arrived. It is hard to imagine why Toviave would bother to teach the children English if the
point of the relationship was exploitation.

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Furthermore, the victims in the other cases were denied almost all contact with the
outside world. The evidence in this case shows that the children attended school, spent time with
relatives and Toviave’s friends, engaged in recreational activities, and went on vacations with
Toviave. The children also interacted with teachers, classmates, and teammates on sports teams.
Viewing the evidence favorably to the government, it is true that the children probably did not
have the same freedom as many other children. For example, Toviave did not let the children
have friends over, go to sleep-overs, or freely use the phone. But their isolation was not nearly
as severe as the victims in other forced labor cases. Finally, we have found no other cases where
the government convicted a victim’s relative of forced labor. This absence is likely explained by
the difficulty of drawing a line between what amounts to forced labor and what are widely
accepted childrearing practices in the context of a familial relationship where the labor at issue
consists entirely of household chores.
The line between required chores and forced labor may be a fine one in some
circumstances, but that cannot mean that all household chores are forced labor, with only the
discretion of prosecutors protecting thoughtful parents from federal prosecution. The facts of
this case fall on the chores side of the line.
Because the Government did not present sufficient evidence of forced labor, we need not
reach the other issues in this case. Toviave’s convictions for forced labor are REVERSED.