          United States Court of Appeals
                     For the First Circuit

No. 16-1680

                         LISA RICCHIO,

                     Plaintiff, Appellant,

                               v.

          CLARK MCLEAN, ASHVINKUMAR PATEL, SIMA PATEL,
               BIJAL, INC. d/b/a SHANGRI-LA MOTEL,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Richard G. Stearns, U.S. District Judge]


                             Before

                     Lynch, Circuit Judge,
                  Souter, Associate Justice,*
                   and Selya, Circuit Judge.


     Felicia H. Ellsworth, with whom Cynthia D. Vreeland, Jason
H. Liss, Lucy Heenan Ewins, and Wilmer Cutler Pickering Hale and
Dorr LLP were on brief, for appellant.
     Michael David Resnick, with whom John B. Reilly and John
Reilly & Associates were on brief, for appellees.


                         April 5, 2017




     * Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
           SOUTER,     Associate    Justice.        Lisa    Ricchio     brought

actions    for   civil     liability     under   the   Trafficking     Victims

Protection Act against four defendants, including Ashvinkumar

Patel, Sima Patel, and Bijal, Inc.               As to them, the district

court dismissed under Federal Rule of Civil Procedure 12(b)(6),

for failure to state a claim.          We now reverse.

           For   the     purposes   of   this    review    of   the   dismissal

motion and order, the allegations and inferences favorable to

Ricchio may be summarized briefly.          See SEC v. Tambone, 597 F.3d

436, 441 (1st Cir. 2010) (en banc) (at the 12(b)(6) stage, "we

accept as true all well-pleaded facts set out in the complaint

and indulge all reasonable inferences in favor of the pleader").

At the relevant time, the Shangri-La Motel was owned by the

defendant Bijal, Inc., and operated by the Patel defendants,

husband and wife, who themselves lived there.                   In June 2011,

Clark McLean enticed Ricchio to drive from Maine to the Shangri-

La in Massachusetts, where he took her captive and held her

against her will.        Over the course of several days there, McLean

physically and sexually abused Ricchio, repeatedly raping her,

starving and drugging her, and leaving her visibly haggard and

bruised.    He told her that he was grooming her for service as a

prostitute subject to his control.           McLean had prior commercial

dealings with the Patels, which the parties wished to reinstate

for profit.      McLean and Mr. Patel enthusiastically expressed


                                    - 2 -
this intent by exchanging high-fives in the motel's parking lot

while       speaking   about    "getting    this   thing   going     again,"    in

circumstances in which McLean's coercive and abusive treatment

of Ricchio as a sex slave had become apparent to the Patels.

Ms. Patel had not only nonchalantly ignored Ricchio's plea for

help in escaping from McLean's custody at the motel but, when

visiting      the   rented     quarters   to   demand   further    payment,    had

shown indifference to Ricchio's obvious physical deterioration.

And in plain daylight view of the front office of the motel,

either of the Patels on duty there would have seen McLean grab

Ricchio, kick her, and force her back toward the rented quarters

when she had tried to escape.              In these circumstances, it was a

plausible understanding that McLean was forcing sex in the motel

room where he held Ricchio hostage, and fairly inferable that

the gainful business that Mr. Patel and McLean spoke of had been

and would be in supplying sexual gratification.                   It is likewise

inferable that the Patels understood that in receiving money as

rent for the quarters where McLean was mistreating Ricchio, they

were associating with him in an effort to force Ricchio to serve

their business objective.

               Under Claims 1, 2, 3, 5, 6, and 7 of the complaint,1

these allegations and inferences suffice as plausible support


        1
       Claim 4 charges a violation by McLean alone.  It is now
moot, owing to voluntary dismissal of the complaint as against


                                      - 3 -
for pleading statutory violations by the Patel defendants in

their own right and as agents for renting out Bijal's motel

space, and by Bijal in consequence of the Patels' agency.                                See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to survive a motion

to     dismiss,       a    complaint     "must     contain       sufficient        factual

matter . . . to 'state a claim to relief that is plausible on

its face'" (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007))); see also Decotiis v. Whittemore, 635 F.3d 22, 29

(1st       Cir.    2011)    ("Applying      the   plausibility      standard        is    'a

context-specific task that requires the reviewing court to draw

on its judicial experience and common sense.'" (quoting Iqbal,

556 U.S. at 679)).

                  In support of this conclusion, we note the following

points      of     congruence     between    the    extensive      allegations        just

summarized and provisions of the discursive Act.                      In doing this

we do not mean to imply that the complaint does not support

claims under other provisions.                    Our point is merely that it

withstands the general dismissal motion.



     Claim    1,     under   18    U.S.C.    §§    1589    and   1595(a)2:          The

     defendants' association with McLean was a "venture," that


him, following             his    conviction      and     incarceration       on     state
charges.
       2
       18 U.S.C. § 1595(a) is the civil remedy provision of the
Trafficking Victims Protection Act:


                                         - 4 -
is, a "group of two or more individuals associated in

fact," § 1591(e)(5), in conducting which the Patels (and

hence    Bijal)     knowingly    benefited,    that    is,   "receiv[ed

something] of value," § 1589(b), through renting space in

which McLean obtained, among other things, forced sexual

labor or services from Ricchio.              United States v. Cook,

782 F.3d 983, 988 (8th Cir. 2015) ("The phrase 'anything

of value' [in the Act] is extremely broad.").                The Patels

acted, at the least, in reckless disregard of the fact

that the venture included such conduct on McLean's part.

See 18 U.S.C. § 1589(b); United States v. Kaufman, 546

F.3d 1242, 1259-63 (10th Cir. 2008) (holding that "labor

or    services"    in   § 1589   is   not   limited   to   "work   in    an

economic sense" and extends to forced sexual acts).                     The

defendants'       knowing   benefit   from    that    conduct   entitles

Ricchio to damages under the derivative civil liability

provision of § 1595(a) in the instance of this claim and

by like application under those that follow.



     An individual who is a victim of a violation of this
     chapter   may   bring  a  civil  action   against   the
     perpetrator     (or   whoever   knowingly     benefits,
     financially or by receiving anything of value from
     participation in a venture which that person knew or
     should have known has engaged in a violation of this
     chapter) in an appropriate district court of the
     United States and may recover damages and reasonable
     attorneys fees.


                                  - 5 -
Claim 2, under §§ 1590 and 1595(a): In continuing to rent

him   the    room   after      McLean's      conduct    was       manifest,   the

Patels knowingly harbored Ricchio at the Shangri-La Motel

for the purpose of McLean's object of obtaining her sexual

labor or services.             See § 1590(a); Kaufman, 546 F.3d at

1259-63.



Claim   3,    under       §§   1591    and     1595(a):       The    defendants

knowingly benefitted from the venture with McLean, since

they knew, or at least recklessly disregarded, the factual

prospect that force or threats of force would be used to

cause Ricchio to engage in a commercial sex act.                          See §

1591(a)(2).



Claim   5,   under    §    1594(b)     and    (c),     and    §    1595(a):   The

venture constituted a conspiracy to violate §§ 1589, 1590,

and 1591 (see Claims 1, 2, and 3), the necessary overt

acts including the harboring of Ricchio and the receipt of

the benefit noted above.              See United States v. Ngige, 780

F.3d 497, 503 (1st Cir. 2015) (discussing the requirements

of a conspiracy generally).



Claim 6, under §§ 1594(a) and 1595(a):                   The defendants at

the least attempted to violate §§ 1589, 1590, and 1591


                                      - 6 -
   (see Claims 1, 2, and 3), the necessary substantial steps

   including       the     harboring    of     Ricchio     and   the    receipt    of

   benefit.        See United States v. Turner, 501 F.3d 59, 68

   (1st     Cir.     2007)        ("While    'mere     preparation'       does    not

   constitute        a     substantial        step    [for   the       purposes    of

   attempt], a defendant 'does not have to get very far along

   the line toward ultimate commission of the object crime in

   order    to     commit     the    attempt    offense.'"       (quoting    United

   States v. Doyon, 194 F.3d 207, 211 (1st Cir. 1999))).



   Claim 7, under §§ 1593A and 1595(a)(which § 1593A treats

   as     creating       an   independent       violation):      The     defendants

   knowingly benefitted (again, by way of payment for the

   motel room) from participating in the venture as charged

   in the preceding claims that formed a predicate for civil

   recovery        under      §    1595(a).          The   complaint      plausibly

   supports a claim that they acted with at least reckless

   disregard of the fact that the venture activity resulted

   in a "violation" of that section.



We repeat that we do not present this summary as necessarily

exhausting every variant of statutory violation and basis for

civil liability that could survive the general Rule 12(b)(6)

motion.     Our purpose here is solely to indicate that the claims


                                            - 7 -
so summarized (but yet to be proven) are supported by factual

allegations        and       reasonable          inferences        in        Ricchio's        favor

sufficient to pass muster under the plausibility standard.

              We       conclude         by     focusing     on     specific             points     of

disagreement with the views expressed by the district court in

the order granting the motion to dismiss and the order denying

reconsideration.             To begin with, we give attention to the whole

body   of    allegations           as    circumstantially          supplying           meaning     to

particular acts by the Patels that the trial judge found too

ambiguous to support the claims when considered in isolation.

See Cardigan Mountain Sch. v. N.H. Ins. Co., 787 F.3d 82, 88

(1st Cir. 2015) ("The factual allegations [in the complaint] are

'circumstantial,' to be sure, but there is no requirement for

direct evidence." (citation omitted)); see also García-Catalán

v.   United       States,      734      F.3d     100,     101,    103       (1st       Cir.   2013)

(cautioning courts not to apply the plausibility standard "too

mechanically"          and    to    read       complaints        "as    a    whole").            Most

significantly, the district court found it "meaningless" that

McLean      and    Mr.   Patel       exchanged        high-fives        in       speaking     about

"getting this thing going again."                       In isolation this may be so,

but the complaint is to be read as a whole, and we read the

statement         in     light       of       the     allegations           of        the   Patels'

complaisance in response to the several alleged exhibitions of

McLean's      coercive           and         brutal     behavior        to        a     physically


                                               - 8 -
deteriorating Ricchio, who pleaded for help.                               Not only were

McLean's actions different from the expectable behavior of a man

who simply wished to overcome a woman's reluctance to engage in

sexual activity; they were indications of what he and Mr. Patel

had in mind when McLean spoke of "this thing."

            Our        second        major    point     of    disagreement        with   the

district court is its holding that the various statutes under

which this action is brought require a showing that the Patels'

actions,    in    conjunction          with    McLean's,       succeeded     in    actually

establishing a going business of supplying third parties with

sexual opportunities.                 Although § 1589 requires that labor or

services be provided or obtained, the other provisions noted

here do not.           See § 1590(a) (prohibiting the "knowing[] . . .

harbor[ing] . . . [of] any person for labor or services," which

is most obviously read as requiring only intent to produce the

result described); § 1594(a), (b), and (c) (prohibiting attempt

and conspiracy to violate §§ 1589, 1590, or 1591); United States

v. Mozie, 752 F.3d 1271, 1286 (11th Cir. 2014) ("It is enough

[for   §   1591    liability]          that    [the     defendant]     'recruited'       the

victims . . .          to engage in commercial sex acts even though they

did not actually do so."); United States v. Jungers, 702 F.3d

1066, 1073 (8th Cir. 2013) ("In many, if not all cases, the

commercial       sex    act     is    still    in     the    future   at   the    time   the

purchaser . . . [is] in violation of § 1591."); United States v.


                                              - 9 -
Todd, 627 F.3d 329, 334 (9th Cir. 2010) ("The knowledge required

of the defendant [for § 1591 liability] is such that if things

go as he has planned, force, fraud or coercion will be employed

to   cause       his    victim      to     engage       in    a     commercial        sex

transaction."); see also United States v. Roy, 630 F. App'x 169,

170-71 (4th Cir. 2015) (adopting the approach in Todd, 627 F.3d

at   334,    while     reviewing     a      conspiracy       to    violate     §     1591

conviction).         This    conclusion     (that   the      objective    of       forced

labor, forced services, or the intended trafficking need not be

satisfied for liability to attach) is confirmed in part by the

definition of "victim of trafficking" in a related statute as,

among    other     things,    a   person    who   has    been      "harbor[ed]      [or]

obtain[ed] . . . for the purpose of a commercial sex act."                             22

U.S.C. § 7102(10), (15).           It is therefore not to the point under

the allegations in this case that no "act of commercial sex"

with a third party was plausibly pled.

             The    district      court's    judgment        dismissing      Ricchio's

claims    against      defendants        Bijal,   Inc.,      and    the   Patels       is

reversed, and this case is remanded for further proceedings.




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