Jury Instructions Were Erroneous, But Defendant Gets No Relief from Mail Fraud, Forced Labor Convictions

U.S. v. Kalu, 2015 WL 3939007 (10th Cir. 6/29/15) (CO) - the district court committed two jury instruction errors in this mail fraud and forced labor case. The defendant was charged with fraudulent misrepresentations re: employment and salaries to foreign national nurses who were forced to work in CO nursing homes. Although the district court plainly erred by failing to instruct the jury that specific intent to defraud is an element of mail fraud under 18 U.S.C. § 1341, there was no reasonable probability that the outcome would have differed with a correct instruction, so Mr. Kalu gets no relief. Same result re: the district court's failure to instruct the jury with the knowledge or reckless disregard standard that is the statutory mens rea for encouraging or inducing an alien under 8 U.S.C. § 1324. The district court plainly erred by instructing the jury on a negligence standard, but there was no reasonable probability that the error affected the trial outcome. The evidence amply showed that Mr. Kalu had actual knowledge that the foreign nationals' entry into or residence in the US would violate the law. And the district court did not impermissibly broaden the indictment on the mail fraud charge, which alleged Mr. Kalu "devised and intended to devise a scheme" to defraud; the jury was instructed that it must find that Mr. Kalu "knowingly participated in a scheme or plan to obtain money or property from another person through false representation." Mr. Kalu did not show any possibility that he was convicted on a charge other than the one alleged in the indictment. Also, the jury was properly instructed re: threat of serious harm under the forced labor statute, which prohibits knowingly providing or obtaining labor or services by a variety of means, including "serious harm or threats of serious harm." The instruction included harm that "causes," but does not "compel" a person to provide labor. The trial evidence demonstrated that Mr. Kalu repeatedly threatened the foreign nationals with legal action, visa revocations, deportation, financial ruin, and physical harm. Finally, the district court did not abuse its discretion by calculating a restitution award based on the salaries Mr. Kalu promised the nurses in the three year job offer documented in the visa petitions.