Before MOORE and FRIENDLY, Circuit Judges, and DIMOCK, District Judge*fn*
In July, 1962, a grand jury in the District Court for Connecticut returned a nine count indictment charging David I. Shackney with violations of 18 U.S.C. §§ 1581(a) and 1584. The former section makes it a crime, punishable by a fine of not more than $5,000, or imprisonment of not more than five years, or both, to hold or return "any person to a condition of peonage" or to arrest "any person with the intent of placing him in or returning him to a condition of peonage." The latter section subjects to similar punishment "Whoever knowingly and willfully holds to involuntary servitude or sells into any condition of involuntary servitude, any other person for any term, or brings within the United States any person so held * * *." The first two counts of the indictment charged the holding of Luis Oros and his wife, Virginia Oros, in a condition of peonage in Middlefield, Conn., from July 12, 1961, to March 3, 1962. The other seven counts charged the holding to involuntary servitude of Luis, Virginia, their four daughters and their son, at the same place and for the same time. Trial before Judge Blumenfeld and a jury began late in January, 1963, and continued until mid-March. At the end of the Government's case the court granted a motion for acquittal on the two counts relating to the wife; later, on being required to elect between the peonage count and the involuntary servitude count as to the husband, the Government consented to dismissal of the former. Reserving decision on a motion for acquittal on the remaining six counts, all under § 1584, relating to Luis and the five children, the judge submitted the case to the jury, which rendered verdicts of guilty on all. Subsequently the judge denied Shackney's motions for an acquittal and for a new trial and entered the judgment of conviction whence this appeal is taken. We hold that the Government did not show commission of the crime defined by § 1584.
Taking the evidence most favorably to the Government, we summarize this, noting only a few of the many items that were contradicted. However, we must add in fairness that this gives an unbalanced impression of the record as a whole, since it omits substantial evidence favorable to Shackney, much of it developed on Oros' cross-examination*fn1, which we would be obliged to analyze carefully if, accepting the Government's broad construction of the statute, we found it necessary to rule on Shackney's contentions that the evidence still did not warrant a jury's finding his guilt to have been proved beyond a reasonable doubt and that his conviction may have resulted from unfair conduct by the prosecutor.
Shackney, who had been ordained as a rabbi in Poland, came to the United States with his wife in 1941. During the period charged in the indictment he taught afternoon classes at the B'nai Jacob School near New Haven, where his wife also taught; on two evenings a week he lectured on the Talmud to adult audiences in Middletown and New Haven. In addition, under the name of Maytav Kosher Packing Corporation, of which he was president, he operated a chicken farm adjacent to his home in Middlefield.
Shackney had found it hard to get American farm laborers who would accommodate themselves to the hens' annoying disregard for week-ends. Having seen an advertisement in a trade journal as to the availability of Mexican workers, he went to Mexico City in late June 1960, and hired two families, the Chavez' and the Olguins. One evening he hailed a taxi to take him to a theatre.The taxi was driven by Oros, then 40, who had been a Mexico City taxi driver for some eleven years. Oros had been in the United States as a railroad worker for nine months in 1944 in Wilmington, Delaware, and again in 1945-46 in Nevada. Talk in the taxi led, according to Oros, to Shackney's saying he needed still another family for the farm and Oros' offering his own. Shackney made it plain that Oros would have to sign a two-year contract, during which he was never to drink or to leave the farm. Undeterred, Oros took Shackney to his house to meet the family; Shackney said he had a house like it on his farm. The family being away, Oros later brought them to Shackney's hotel. Shackney, who was leaving the next morning, told Oros to prepare his immigration papers and to communicate with him.
Oros set about procuring his papers but letters to Shackney as to his progress were unanswered. In January, 1961, Shackney telegraphed Oros to phone him; Oros confirmed that he still desired to come. After developments unnecessary to detail, Oros, his wife and his eldest daughter Maria Elena signed a contract, in Spanish, to work on Shackney's farm. This provided, among other things, that the contract should have a two-year term beginning August 15, 1961; that together with another couple the three Oros' would care for 20,000 laying hens; that the hours of work were to be from 6:30 A.M. until the work was completed, with three breaks; that "because of the fact that our work will be handling living things which must be carefully cared for, this work must be done every day, 7 days a week and 365 days a year with no exception"; that they were to receive a furnished place to live, with heat, electricity and gas for cooking, and sufficient food; and that their combined salary should be $160 per month for the first year and $240 for the second, half of which was to be deposited in a joint bank account as security for their performing their obligations.
Since Oros had encountered difficulty in obtaining visas, he asked Shackney to come to Mexico City to help. It was apparently on this occasion that Shackney allegedly made two statements much emphasized by the Government:
"You have contract, if you break this contract, I deport you and you never come back to the United States, not you, not your son, and not your grandsons, nobody, because I have lot of friends in Mexico and the United States, too, and I have lot of money, and money is money here or any place."
"If you are nice man and you work in my farm the two years like say the contract, after two years you are American citizen and then you can go any place, you are free, you go to work in taxi-cab or you go to California if feel you want to go.You want stay in my farm, you can stay."
It developed that Oros had no money to pay for his visas or transportation save for $80 which he had borrowed and turned over to Shackney. The latter arranged for funds to be provided but insisted on the signing by Oros of twelve promissory notes for $100 each, payable monthly, and their co-signing by a friend, Rosalio, who owned his own home. The next day Shackney made Oros sign six additional $100 notes, allegedly explaining merely "You have confidence in me, you sign, and that's all." According to Oros, Shackney paid only $350 for bus tickets and $210 for expenses in connection with the visas. Shackney claimed the $1200 notes had covered $500 for the expense of procuring visas and other documents, and $700 for plane tickets, which Oros had wrongfully diverted to the payment of his debts, and that the $600 notes covered another $380 that had to be paid for bus tickets, $40 for spending money for Oros and a contribution toward the expense of Shackney's own trip. After four days and five nights of travel the Oros' reached the farm in the morning of July 12, 1961, and were immediately put to work.
They found the conditions of life less attractive and the work more arduous than they had pictured. Their dwelling was a four-room half of a Quonset hut, set upon wooden pilings; the walls were of corrugated cardboard; and there were holes in the floor which Shackney told Oros to cover. Two of the rooms were bedrooms, with a total of two beds and a cot for the family of seven, there was a bathroom, and the other room contained kitchen facilities, an automatic hot water heater, a large television set and later a radio as well. The dwelling was heated by a wood stove. There was some criticism of the food, but the Government does not make this a serious item of complaint. Shackney gave the Oros' used clothing, and also furnished them with some new clothes, toilet articles and postage stamps which he said would ultimately have to be paid for. Although the contract called only for the services of the parents and the eldest daughter, all seven of the family worked, the two youngest children, aged 9 and 7, starting their labors at 10:00 A.M. instead of 6:30 A.M. when the others began*fn2 There is dispute whether so many would have had to labor so long if Oros had worked diligently, the defense claiming the television set had proved unduly distracting. Shackney raised the monthly salary for the parents and Maria Elena to $180 and also drew monthly checks of $20 to Maria Teresa and Sergio, the second and third eldest children. However, the Oros' received no cash since Shackney would get them to endorse the checks and would tear up two $100 notes each month*fn3; the only cash they obtained during the entire period was $10 which Shackney gave them at the request of a purchaser of chickens whom they had helped*fn4
None of the Oros children went to school. Oros claimed that Shackney had said that the school was too far away, that the Oros' had no money to pay for the school, the school bus and clothing, and that the children could not speak English; Shackney countered that he had urged Oros to send the children to school but that Oros had objected. Oros also testified that a request for permission to attend the movies and a few requests to go to church were denied. Oros left the farm on only four occasions, Shackney going along on all save one. Until the latter months of the Oros' stay on the farm, all outgoing letters from the Oros' were given for posting to Shackney, who supplied the stamps; all incoming letters for the farm were placed in a rural post box and letters to the Oros' were delivered by him. There was evidence from which the jury could find that Shackney censored the Oros' mail, although he ...