The defendant met the victim, Jodi, on an internet chat room. He convinced her to move to Maryland to be with him. There, they initially engaged in a consensual relationship. However, soon afterward Jodi expressed her desire to terminate the relationship, but through threats of force and reputational damage, Marcus began abusing Jodi. He engaged in a bondage, dominance/discipline, submission/sadism, and masochism (“BDSM”) relationship with Jodi. Marcus videotaped and otherwise documented the BDSM he engaged in with Jodi, forced her to maintain an online website, and kept all the profits from the website. At trial, the jury convicted Marcus on sex trafficking, forced labor, and dissemination of obscene material through an interactive computer service.
The jury found Marcus guilty under the TVPA and considered actions from 1999-2001, with no instruction that it cannot convict based solely on pre-2000, pre-enactment acts.
The 2nd U.S. Circuit Court of Appeals ruled the conviction violated the Constitution because Marcus was convicted of breaking a law, the 2000 Trafficking Victims Protection Act, that wasn't in place when some offenses happened.
The judgment of the district court was vacated, and the case was remanded for proceedings consistent with the opinion.
The ruling denied government’s use of the 2000 law to prosecute Marcus for incidents spanning from 1999 to 2001. Marcus' attorneys argued, and the court agreed, that the law was applied retroactively in violation of the Ex Post Facto Clause of the Constitution, constituting a “plain error” and warranting a reversal of his conviction.
Reversed & Remanded
The Supreme Court granted the Writ of Certiorari to the government. The Supreme Court has agreed to consider reinstating the sex trafficking and forced labor conviction of Glenn Marcus, and is currently in pending status.
At trial, the jury considered evidence of Marcus’ behavior that occurred both before and after the TVPA. The indictment referenced the acts he allegedly committed between “January 1999 and October 2001.” Because Marcus was indicted for conduct that occurred both before and after indictment, the court did not find a constitutional violation of the Ex Post Facto Clause. Specifically, the court stated that the “Constitution did not prohibit conviction for a ‘continuing offense’ so long as the conviction rested, at least in part, upon post-enactment conduct.” 560 U.S.(2010).
Marcus also contended that not bringing up the Ex Post Facto argument at trial constituted “plain error”, as defined in the Federal Rules of Criminal Procedure. The Supreme Court, however, disagreed, and articulated the test for plain error review as well as stressed that it requires the error to be prejudicial. In this case, the court did not believe that had the trial court considered the Ex Post Facto argument, the jury’s decision would be different.
United States District Court for the Eastern District of New York