Argued November 19, 2014
[Copyrighted Material Omitted]
Judgment affirmed; remanded for clerical correction.
Appeal from a judgment of the United States District Court for the Eastern District of New York, Edward R. Korman, Judge, convicting defendant of violation of the Mann Act, 18 U.S.C. § 2422, labor offenses, 18 U.S.C. § § 1351, 1589, and offenses with regard to the importation and employment of aliens, 8 U.S.C. § § 1324, 1328, following a jury verdict entered in defendant's absence. Defendant argues that his right to be present at trial was violated by the district court's refusal to delay the final stage of trial when he was unconscious and hospitalized, and by its refusal to grant a mistrial or a new trial, refusals based on the court's finding that defendant had waived his right to be present by deliberately overdosing on prescription drugs.
HILARY L. JAGER, Assistant United States Attorney, Brooklyn, New York (Loretta E. Lynch, United States Attorney for the Eastern District of New York, Jo Ann M. Navickas, Daniel A. Spector, Assistant United States Attorneys, Audrey E. Stone, Special Assistant United States Attorney, Brooklyn, New York, on the brief), for Appellee.
GEORGIA J. HINDE, New York, New York (Neil B. Checkman, New York, New York, on the brief), for Defendant-Appellant.
Before: KEARSE, JACOBS, and RAGGI, Circuit Judges.
KEARSE, Circuit Judge
Defendant Joseph Yannai appeals from a judgment entered in the United States District Court for the Eastern District of New York following a jury trial before Edward R. Korman, Judge, convicting him of enticement and coercion of others to travel in interstate and foreign commerce to engage in sexual activity, in violation of 18 U.S.C. § 2422; forced labor and attempted
forced labor, in violation of 18 U.S.C. § 1589; fraud in foreign labor contracting, in violation of 18 U.S.C. § 1351; importation of aliens for immoral purposes, in violation of 8 U.S.C. § 1328; inducement of an alien to illegally enter and reside in the United States, in violation of 8 U.S.C. § 1324; and unlawful employment of aliens, in violation of 8 U.S.C. § 1324 [sic]. Yannai was sentenced principally to 132 months' imprisonment, to be followed by a three-year term of supervised release. The jury's verdict was returned while Yannai was hospitalized after having overdosed on prescription medication. On appeal, he contends principally that his right to be present at trial was violated by the district court's refusals to adjourn the trial for more than one day or to grant him a mistrial or a new trial, based on its finding that Yannai had waived that right because the overdose was intentional and his absence was voluntary. He also contends that the resumption of trial after a continuance of no longer than one day was prejudicial to him because jurors were exposed to media reports that his absence was due to an attempt to commit suicide. Finding no basis for reversal, we affirm.
We remand only for a clerical correction of the judgment to state that the section violated by Yannai's unlawful employment of aliens was 8 U.S.C. § 1324a, rather than § 1324.
On August 3, 2010, while Yannai was facing New York State charges of labor trafficking and sexual abuse, he was arrested on related federal charges. A superseding federal indictment (" Indictment" ) alleged that from approximately 2003 to 2009, Yannai used the Internet to lure young women to the United States with offers of employment as his assistant at his home in Pound Ridge, New York. In so doing, he often represented that he was a woman named " Joanna" or " Sylvia" who had previously worked as a Yannai assistant. The Indictment alleged that Yannai chose young women, mostly between the ages of 18 and 25, based on their photographs and their willingness to live in his house. He instructed the selected women to travel to the United States on tourist visas and to conceal their work plans from immigration authorities. The Indictment alleged that after the women arrived at his home, Yannai limited their contact with the outside world and abused them sexually.
Except as indicated, the following facts are not in dispute. Some are reflected in documents filed under seal, which are hereby deemed unsealed to the extent that their contents are quoted or described in this opinion.
A. Yannai's First Overdose
On August 3, 2010, when federal agents arrived at the home of Yannai and his wife to arrest him, Yannai deliberately swallowed a large number of pills in an attempt to commit suicide. Yannai had learned of the impending federal charges and had planned for months to commit suicide, stockpiling pills for the day when federal agents came to arrest him. Shortly after taking the pills, Yannai collapsed and was taken by ambulance to a hospital, where he was intubated. A toxicology screen of his urine was positive for benzodiazepine, a class of drugs that includes diazepam and temazepam. Valium--a brand name for diazepam--is commonly taken during waking hours to reduce anxiety; temazepam--also known by the brand name Restoril--is a type of sleeping pill to be ingested at bedtime. Although a tox screen showing benzodiazepine does not distinguish between diazepam and temazepam, at least
one August 2010 hospital record indicated that Yannai had overdosed on Valium.
According to hospital records, on the day after that overdose Yannai, while sedated, indicated to the medical staff that he had overdosed intentionally and that he was still suicidal. Asked why, he mouthed the words " I'm finished." On the following day, prior to his release into federal custody, Yannai stated that he felt hopeless about his legal prospects and that he would attempt to commit suicide again rather than go to prison.
B. Pre-Trial Proceedings and the Trial Evidence
At Yannai's August 11, 2010 bail hearing, the government sought a permanent order of detention, arguing principally that his admitted suicide attempt and his statements to hospital staff demonstrated that he posed an extreme risk of flight. At the hearing, Yannai testified that when the agents came to arrest him on August 3, he attempted to commit suicide because he did not want to go to jail (see Detention Hearing Transcript, August 11, 2011 (" Bail Tr." ), at 35, 42); he said the pills he ingested at that time were sleeping pills, although he did not know what they were called (see id. at 43), but they were not Valium (see id. at 50). Yannai testified that after taking the pills he was unconscious for two days (see id. at 43), and he admitted that after regaining consciousness, he told hospital staff that he would try to commit suicide again (see id. at 51-52).
Yannai testified that he would not attempt to commit suicide again if released on bail, however, explaining that he realized, after a conversation with his wife, that his earlier attempt was a mistake. And he indicated that, after meeting his attorney in the present case, he felt a renewed determination to fight the federal charges. The magistrate judge found Yannai's testimony persuasive and ordered his release on a $500,000 secured bond.
Yannai was unable to provide suitable security, however, and remained in custody for several months. He eventually appealed to the district judge to reduce the amount of the required bond. The government again objected to Yannai's release, arguing that as the proceedings progressed it would become increasingly clear to Yannai that he would be convicted and would face a lengthy term of imprisonment. It argued that Yannai's prior conduct raised a very serious concern that if Yannai were on pretrial release, he would eventually fail to appear in court or would again attempt suicide.
The district court was persuaded to reduce the amount of the bond to $125,000. The court observed, inter alia, that Yannai had abided by bail conditions imposed in connection with his state prosecution and that the Bureau of Prisons had taken him off of suicide watch. Yannai promptly satisfied the reduced bond and was released on bail.
Yannai's trial began on May 23, 2011. The government's evidence included testimony from an investigator who had analyzed Yannai's computer and found at least 1,500 form emails written from the perspective of a supposed former Yannai assistant, sometimes signed " Joanna" or " Sylvia," and addressed to various women whom Yannai sought to interest in his purported employment offer. Five women testified to the emails they had received from Yannai in his own name and emails from purported former Yannai assistants named " Joanna" or " Sylvia" using language substantially identical to the form emails found by the investigator on Yannai's computer. The women testified that they accepted Yannai's offers of employment and were instructed by email to lie to
immigration authorities and state that the purpose of their trips was tourism rather than work. They testified that after they arrived to work for Yannai, he subjected them to sexual abuse, including forcible kissing, groping their breasts, digitally penetrating one woman, and attempting to force another to perform oral sex on him.
On May 26, the parties rested their cases, and the court adjourned trial until Tuesday May 31. On May 31, the court held a charge conference at which the court's instructions to the jury were finalized. The parties then delivered their summations.
C. Yannai's Second Overdose and the Remainder of Trial
On Wednesday morning June 1, Yannai failed to appear in court. Defense counsel reported that Yannai had collapsed at a gas station on his way to the courthouse and was in a hospital emergency room; soon thereafter, the government reported that Yannai was unconscious and that the medical personnel were unsure of the nature of his problem. (See Trial Transcript (" Trial Tr." ) 1165, 1168.) The Assistant United States Attorney reminded the court of the government's previously expressed concerns about the risk of flight or suicide, and he asked the court to issue a subpoena for Yannai's medical records, arguing that toxicology results might confirm that Yannai had again attempted suicide. The court denied the request on the ground that it was premature. The court dismissed the jury for the day and made arrangements for the jurors to telephone the court at the end of the day to learn when they would be required to return (see id. at 1172-74); the parties attempted to gather further information as to Yannai's condition and the circumstances of his collapse.
After a recess, the government reported on a conversation between a hospital psychiatrist and government case agents from whom the psychiatrist had sought information as to whether Yannai had a history of overdosing; the psychiatrist asked the agents because Yannai's wife had denied such a history and her denial conflicted with Yannai's medical records. The psychiatrist told the case agents that Yannai appeared to have attempted to commit suicide by overdosing. Yannai was still unconscious but was expected to recover fully. (See Trial Tr. 1179.)
Defense counsel, after speaking on the telephone with the psychiatrist (albeit assuming at the time of the conversation that he was simply the emergency room physician (see id. at 1182-83)), relayed to the court the psychiatrist's statement that Yannai might be released from the hospital as early as the next day but that " [i]t might be a couple of more days" before he would be " physically able to be released" (id. at 1180-81). Counsel indicated that, as to whether Yannai had attempted suicide, the hospital's findings were inconclusive, but that the psychiatrist's best guess was that he had overdosed. (See id. at 1181-82.)
The court thereafter, with counsel present, spoke by telephone conference with the psychiatrist and Yannai's primary attending physician--an internist--to learn their evaluations first-hand. The psychiatrist stated that he had been called in " [b]ecause it appeared that the most likely cause for" Yannai's condition " was an overdose of medication" and because Yannai's medical records " indicated that the gentleman has a history of suicide attempt in the past." (Trial Tr. 1186.) The psychiatrist added that
it was the opinion of the physicians in his care, that includes the emergency room physician who initially evaluated
him when he arrived, and [the internist], who was asked to admit him to the hospital when the emergency department determined that he needed to be admitted to the hospital. It was their opinion that the most likely explanation for his being unconscious at the present time was that--was due to an overdose of Valium or some such medication.
(Id. at 1187.)
The internist agreed. She said that various other causes had been eliminated based on the stability of Yannai's electrolytes and vital signs and the absence of any acute changes; she stated that Yannai's " urine tox [wa]s positive for Benzodiazepine and amphetamine." (Id. at 1188.) She said that the psychiatrist was involved because " this is likely an overdose case." (Id. at 1188-89.) She described Yannai as " pretty unresponsive" and predicted that he would probably awaken in one or two days. (Id. at 1189.)
Following receipt of these evaluations, the court found that Yannai had voluntarily absented himself from the criminal proceedings. Defense counsel objected, stating that, although " [i]t appears to be an overdose," there was " no conclusion from the doctors that this was a suicide attempt or an intentional overdose." (Id. at 1191.) The court found, however, that the overdose was intentional:
[F]irst of all, they've told me what they've ruled out which is what I asked the doctor and they've ruled out a number of causes.
Second, the overdose that he's had is not two pills. It's not three pills. And it was a combination of amphetamines and Valium . . . .
And he has a propensity to do this. He's done it once before. . . . I think I have a sufficient basis to conclude that this was the result of a voluntary act.
Defense counsel argued that Yannai had attended trial on a timely basis every day and " was on his way to court today," and that hence there was no basis for the court to find that Yannai " willingly absented himself from today's proceedings." (Id. at 1193-94.) The court disagreed, stating,
[w]ell, I have a doctor's opinion that it was likely that he did. I have doctors who tell me they've ruled out other possible ...