Appeals from the United States District Court for the Eastern District of Wisconsin. No. 04 CR 0248-Rudolph T. Randa, Chief Judge.
The opinion of the court was delivered by: Wood, Circuit Judge
Before WOOD, SYKES, and TINDER, Circuit Judges.
At age 16, Irma Martinez began working for the Mendoza family in the Philippines, where it is common for wealthier families to have a live-in housekeeper to attend to the house and children. Her family was poor and depended on the salary she earned.
At the urging of Dr. Jovito Mendoza (the father of defendant Elnora Calimlim), Martinez traveled to the United States when she was about 19 years old. She told consular officials that she needed a visa in order to accompany Dr. Mendoza, who was going to the United States for medical treatment, but she really intended to stay in the United States to work. Her visa permitted a two-year stay as long as she departed and re-entered the United States at least once every six months.
When Martinez arrived, Jefferson and Elnora Calimlim confiscated her passport and told her that she would have to reimburse the Mendozas for the cost of her plane ticket. The Calimlims told her she was in the United States illegally from the day after she arrived. Martinez was unable to communicate in English for the first five or six years of her stay.
Martinez worked for the Calimlims, both of whom are physicians, as a live-in housekeeper. Her daily routine usually began at 6:00 a.m. and ended around 10:00 p.m., seven days a week as well as during most vacations. Her duties initially included caring for the Calimlim household and children; eventually they expanded to include the family cars, investment properties, and medical offices. After ten years, the family moved to a more luxurious house, 8,600 square feet in area and equipped with a private tennis court. Martinez provided their only household help.
While she worked for the Calimlims, Martinez was greatly restricted in what she could do. She never walked out the front door of the first house, and only answered the door in the second house once-on Halloween, wearing a mask. She was told not to play outside with the children or leave her room in the basement during social functions, even to go to the bathroom. She was permitted to walk to church (one selected by Elnora), but only via a back path that was well away from possible observation. Elnora did not allow her to go to the same church too many times in a row. When she was driven someplace she had to ride in the back seat with her head down so that nobody could see her. The "house rules" included a phone code that enabled Martinez to answer the phone when the children called, but not when outsiders did. The children were told not to discuss Martinez with anyone outside the family. Martinez was not permitted to seek medical care outside of the house, even for special needs such as dentistry.
The Calimlims allowed Martinez to speak with her family four or five times over the 19 years she was with them, and even then she was surrounded by the Calimlim family while speaking on the phone. Martinez initially had a savings account into which her earnings were deposited, but Elnora closed it one day after Martinez's visa expired. Martinez authorized Elnora to send money to Martinez's family in the Philippines through Elnora's parents' ac-count, but over the entire 19-year period, the total that the Calimlims sent was only 654,412 pesos, or about $19,000. Martinez's "earnings" were nothing but a book entry in the Calimlims' accounts. Martinez was allowed to shop for personal items, but she had to leave the cart in the store (so that Elnora Calimlim could pay) and go wait in the car; she would later "reimburse" the Calimlims for the cost through withheld "wages." Martinez was told repeatedly by the adult Calimlims and their children that if anyone discovered her she could be arrested, imprisoned, and deported, and she would not be able to send any more money back to her family. Fear of that consequence kept her from breaking any of the rules or appearing outside the house.
On September 29, 2004, federal agents, acting on an anonymous tip, executed a search warrant and found a trembling Martinez huddled in the closet of her bedroom. A federal grand jury returned a third superseding indictment on December 6, 2005, charging the Calimlims with obtaining and conspiring to obtain forced labor (Counts 1 and 2), in violation of 18 U.S.C. §§ 371, 1589, and 1594, and harboring and conspiring to harbor an alien for private financial gain (Counts 3 and 4), in violation of 8 U.S.C. § 1324(a)(1). A jury convicted them of all four counts on May 26, 2006. On November 16, 2006, the district court sentenced the Calimlims to 48 months' imprisonment on each count, to run concurrently. Bond was denied pending appeal.
The Calimlims appeal their convictions, and the Government has cross-appealed from the district court's refusal to apply several enhancements in its calculation of the advisory Sentencing Guideline range. We find no error in the convictions, but we agree with the Government that resentencing is required, and so we reverse and remand for that purpose.
The Calimlims challenge their convictions on several grounds: that the forced labor statute is vague and overbroad, that the jury instructions on the forced labor counts failed to exclude the possibility of a conviction for innocent actions, and that there was insufficient evidence of financial gain on the harboring counts.
A. Vagueness and Overbreadth
The Calimlims raise two constitutional challenges to the forced labor statute, 18 U.S.C. § 1589. First, they argue that the statute is so vague that it fails to provide notice of what is criminalized, and second, that it is overbroad enough to punish innocent activity. They do not specify which provision of the Constitution supports their position, but the first argument apparently alludes to the Due Process Clause of the Fifth Amendment, and the overbreadth argument sounds like a First Amendment free speech challenge.
A vagueness challenge is best described by the evils it seeks to prevent: "Unconstitutionally vague statutes pose two primary difficulties: (1) they fail to provide due notice so that 'ordinary people can understand what conduct is prohibited,' and (2) they 'encourage arbitrary and discriminatory enforcement.' " United States v. Cherry, 938 F.2d 748, 753 (7th Cir. 1991) (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)). The Calimlims argue that the statute failed to put them on notice that warning Martinez that she was violating the law by being in the country illegally could be construed as violating the forced labor statute. This point overlaps to some degree with their overbreadth argument. They also assert that this prosecution took the statute beyond the boundaries Congress intended. Neither argument has merit.
We find that the forced labor statute provides sufficient notice of what it criminalizes. Under 18 U.S.C. § 1589, it is illegal knowingly [to] provide or obtain the labor or services of a person-
(1) by threats of serious harm to, or physical restraint against, that person or another person;
(2) by means of any scheme, plan, or pattern intended to cause the person to believe that, if the person did not perform such labor or services, that person or another person ...