The defense has filed its notice of appeal in United States v. Cherwitz,1 setting the stage for the Second Circuit to confront what may be the most consequential First Amendment and statutory challenge to the Trafficking Victims Protection Act since its enactment. At issue is not merely the fate of two defendants—Nicole Daedone and Rachel Cherwitz, sentenced in March 2026 to nine and six and a half years, respectively, for forced labor conspiracy—but a question of fundamental constitutional dimension: whether the state may criminalize the persuasive power of ideas.
The government’s closing argument supplied the answer it sought: “there may not have been physical chains holding the victims in place,” prosecutor Nina Gupta told the jury, but “choice wasn’t something they were in a psychological state to even consider.” That sentence is the entire case. It is also, this article argues, a constitutional problem of the first order—one implicating the First Amendment, the void-for-vagueness doctrine, and the rule of lenity simultaneously.
It is also the culmination of a fifteen-year institutional project. The theory that convicted Nicole Daedone was not invented in the Eastern District of New York. It was built — across three administrations, through executive policy documents, federal agency training programs, and NGO funding conditioned on doctrinal compliance — into the infrastructure of American law enforcement before it ever reached a courtroom.
THE THEORY THE STATUTE DOES NOT CONTAIN
Begin with what the forced labor statute actually says. Congress enacted 18 U.S.C. § 1589 in 2000 in direct response to United States v. Kozminski,2 where the Supreme Court held that involuntary servitude required physical compulsion or legal coercion. Psychological pressure alone was insufficient. Justice O’Connor’s majority opinion was explicit about the dangers of expansion: a broader standard would “subject individuals to the risk of arbitrary or discriminatory prosecution” by “delegat[ing] to prosecutors and juries the inherently legislative task of determining what type of coercive activities are so morally reprehensible that they should be punished as crimes.”
Congress responded, but carefully. The TVPA was designed to address commercial trafficking—the exploitation of vulnerable populations through deception, passport confiscation, debt bondage, and threats of deportation or physical harm. Congressional notes accompanying the statute’s passage in October 2000 emphasized its paradigm case: individuals brought across international borders under false pretenses, stripped of their documents, threatened with arrest or deportation if they attempted to leave, and confined under conditions of near-total physical control. The paradigm was a trafficker who burned a victim’s passport and said: “I own you. You are my property and you will work until you earn your way out.”
The original statute left “serious harm” undefined. The door to psychological coercion theories was opened eight years later. The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 amended § 1589 to define “serious harm” as including “any harm, whether physical or nonphysical, including psychological, financial, or reputational harm” — and added the reasonable person standard as the intended limiting principle.
It wasn’t one. The Cherwitz prosecution argued the defendants had first destroyed the victims’ capacity for reasonable choice through psychological manipulation — converting the standard into a circular test. A limiting principle that evaporates upon a finding of effective persuasion is no limiting principle at all.
The Cherwitz prosecution asked the jury to find that losing “your job or your friends or your family or your belief system” constituted that level of serious harm—as applied to willing adult participants in a wellness organization they voluntarily joined, remained in, and evangelized on behalf of. That application has no support in the statute’s text, its legislative history, or any prior appellate decision extending § 1589 to this category of conduct. The Second Circuit must decide whether it will supply that support retroactively, or whether the rule of lenity requires it to decline.
THE DOCTRINE BEHIND THE PROSECUTION
The novel theory at the center of Cherwitz did not originate with the Eastern District of New York’s civil rights division. It was the operational product of a prosecution framework built across three administrations through executive policy documents that never received meaningful congressional debate.
The framework is called the Victim-Centered Approach (VCA). Its core operating principle was stated plainly in 2010 Senate testimony by President Obama’s trafficking ambassador, Luis C. de Baca: “It does not matter if a victim once consented to work for their trafficker. It does not matter if the victim returned to their trafficker after he or she was freed.” Consent — prior, ongoing, or repeated — is not a defense within the framework. Victim self-identification is not required. The government determines who was harmed.
That principle was progressively codified into federal law enforcement infrastructure. The Federal Strategic Action Plan on Services for Victims of Human Trafficking (2014) institutionalized VCA as the organizing doctrine for federal anti-trafficking coordination across agencies. The Frederick Douglass Reauthorization Act of 2018 was passed by unanimous consent with zero floor debate, extending the framework’s statutory reach. The Biden National Action Plan to Combat Human Trafficking (2021) embedded VCA across the full range of federal agency programming. Since 2010, over two billion dollars in federal funding has been granted to NGOs training law enforcement and the judiciary in human trafficking — with VCA compliance as a condition of receipt.
The National Judicial College’s training materials for sitting federal and state judges made the framework’s logic explicit. One trainer instructed judges receiving this training: “There may be and there often is that idea that the victim genuinely loves their trafficker.” The stated implication was not that love disproves trafficking. Within the doctrine, it is evidence of how completely the perpetrator controlled the victim. Courts were trained to look past the victim’s own account of their experience — to know better than they do what their own feelings mean.
The consequences for the Cherwitz trial were direct. Nine college-educated female witnesses testified. All nine had left OneTaste voluntarily. Not one testified that she was physically prevented from leaving. Defense counsel Celia Cohen told the jury: “These witnesses wanted to take OneTaste courses… OMing changed their lives, and they loved it.” One government witness testified she was simultaneously happy and brainwashed. Asked how both could be true, she answered: “The happiness is part of the brainwashing. People don’t stay in places where they’re not happy.” The prosecution’s answer — consistent with the doctrine in which it had been trained — was that loving it proved how effective the coercion was. Assistant United States Attorney Bensing stated in rebuttal: “Choice wasn’t something they were in a psychological state to even consider.”
The jury was never asked whether anyone was actually harmed. Prosecutor Kaitlin Farrell told them directly in closing: “It’s not about whether these victims actually suffered serious harm and whether they actually caused them to work. That is absolutely not the question of this trial.”
If harm is not the question, what is? Within the Victim-Centered Approach, the answer is control. And the measure of control is the persuasive power of the defendant’s ideas.
HOW THE DOCTRINE REACHED THE COURTROOM
The Victim-Centered Approach required an identification tool — a method for determining that a person who did not identify as a victim was, in the government’s assessment, one anyway. Steven Hassan provided it.
Hassan’s BITE Model — a framework for diagnosing organizational membership through control of Behavior, Information, Thought, and Emotion — was developed in the anti-cult movement and presented to federal law enforcement as a method for identifying trafficking victims inside ideological organizations. Between 2014 and 2021, he made at least four documented formal appearances at federal agency training programs. The FBI Law Enforcement Bulletin cited the BITE Model in an article titled “A Victim-Centered Approach to Sex Trafficking Cases,” embedding it in official FBI training materials. Hassan’s own doctoral dissertation, completed in 2020, stated that his goal was to establish “a new legal precedent” through quantitative BITE Model research.
In 2023, Paul Chang, the Department of Labor’s Federal Human Trafficking Coordinator, appeared on Hassan’s podcast and explained how the government now identifies trafficking victims inside organizations: “The best way to explain this is through the BITE model… what they do is modify or subject the victim through behavior control, misinformation, thought control, and emotional control.” Chang continued: “People don’t normally think that if you are being trafficked in a religious organization that you are potentially labor trafficked in many cases. But this is actually not unique, and it happens more often than you think.”
That same year, the DOJ’s Office of Community Oriented Policing Services published its report on labor trafficking trends. Its finding: “Among the most notable labor trafficking trends in recent years is forced labor perpetrated by religious organizations, or perhaps more accurately, organizations claiming to have a religious mission.”
Later that year, Assistant Attorney General Kristen Clarke, head of the Justice Department’s Civil Rights Division — the division that brought the OneTaste indictment — addressed an anti-trafficking audience: “While slaveholders in the 18th and 19th centuries used whips, chains and physical restraints, contemporary trafficking crimes often rely on invisible schemes of deception, debts, threats and insidious forms of psychological manipulation to bind victims to perpetrators.”
The result, at trial, was that the coercive persuasion framework — descended from the work of Margaret Singer and Robert Lifton, excluded as unscientific in United States v. Fishman3— never needed to appear as formal expert testimony. It entered through lay witness testimony and prosecutorial argument, pre-legitimized by the institutional infrastructure that had already accepted it as valid. The framework was immunized from scrutiny before the trial began.
THE FIRST AMENDMENT PROBLEM: PERSUASION AS ACTUS REUS
The Cherwitz prosecution’s theory contains a logical structure that has no parallel in American criminal law. The more powerful Nicole Daedone’s ideas were—the more deeply they changed how participants thought, worked, and lived—the more criminal her conduct became. Persuasiveness was not incidental to the offense. It was the offense.
The Second Circuit has not previously confronted a § 1589 prosecution in which the sole coercive mechanism alleged was the ideological content of the defendant’s teachings. The court will have to decide whether the First Amendment permits the government to use the persuasive effect of protected speech as the actus reus of a federal felony.
VOID FOR VAGUENESS: KOZMINSKI’S PREDICTION CAME TRUE
The void-for-vagueness doctrine requires that criminal statutes define the offense with sufficient clarity that ordinary people can understand what conduct is prohibited and that arbitrary enforcement is prevented.4 The Supreme Court in Kozminski anticipated exactly what happened in Cherwitz when it warned against expanding involuntary servitude beyond physical coercion: without a clear limiting principle, the statute would delegate to prosecutors and juries the standardless discretion to decide which forms of influence are too reprehensible to permit.
Congress tried to supply that limiting principle with the 2008 “serious harm” reasonable person standard. But the Cherwitz prosecution consumed it twice over. First, as a matter of logic: the government’s theory required finding that the defendants had first destroyed the victims’ capacity for reasonable choice — through psychological manipulation — before the reasonable person standard could even be applied. Second, as a matter of procedure, the trial court compounded that circularity by ruling that defense witnesses were inadmissible unless they had been present with the government witnesses “24/7” — a standard no witness could satisfy and one that functioned, in effect, as a categorical bar on rebuttal testimony going to voluntariness. The defense was thus foreclosed, as a structural matter, from calling the very witnesses — former participants who could speak to their own agency — whose testimony might have given the reasonable person inquiry independent content. A standard that depends on the defendant having first eliminated the victim’s rationality, and that is then insulated from rebuttal by an impossibly demanding evidentiary threshold, is no standard at all. It is a circular test that any sufficiently effective organization can be made to fail in retrospect, with no procedural mechanism for the defense to break the circle.
As applied to voluntary adult participants in a wellness organization—people who paid to attend, who left and returned, who described genuine benefit—the “serious harm” standard provided no fair warning that this conduct was criminal. Bouie v. City of Columbia and United States v. Lanier5 both hold that due process is violated when a court applies a novel construction of a criminal statute to conduct that could not reasonably have been anticipated as criminal. Nothing in § 1589’s text, legislative history, or prior case law put Daedone or Cherwitz on notice that running OneTaste could constitute forced labor conspiracy. The first time this theory was ever applied to this category of conduct was in their case. That is a constitutional deficiency the Second Circuit must confront.
THE THEORY THAT ENTERED THROUGH THE BACK DOOR
The constitutional and statutory problems are compounded by the procedural mechanism through which the government’s psychological coercion theory reached the jury. As described above, no expert witness testified that the defendants had subjected participants to brainwashing or mind control. No Daubert hearing was convened to evaluate the scientific validity of such a theory. No defense expert was permitted to rebut it. The coercive control framework descended from Singer and Lifton entered the trial through lay witness testimony and prosecutorial argument.
In Fishman, the district court excluded Singer’s coercive persuasion testimony after finding the theory lacked empirical foundation and had been rejected by the American Psychological Association. The court held that “the APA, in rejecting the theories of Singer and Boulette,” had concluded that “the scientific evidence does not support the hypothesis that coercive persuasion causes the kinds of harm alleged.” Thirty-five years later, the same theoretical lineage—repackaged and embedded in federal agency training curricula—formed the prosecution’s narrative in Cherwitz without ever passing through the scientific gatekeeping that Daubert v. Merrell Dow Pharmaceuticals6 exists to perform.
When a scientific theory is introduced through formal expert testimony, the proponent must establish reliability—peer review, error rate, and general acceptance in the relevant scientific community. The anti-cult coercive persuasion framework failed that test in Fishman and has not been rehabilitated in the scientific literature. By routing the theory through lay witnesses and closing argument, the government immunized it from the scrutiny Daubert requires. The Second Circuit may have to decide whether that procedural maneuver was permissible—and whether the resulting conviction can stand.
THE INTERNATIONAL BENCHMARK
The Second Circuit has a ready framework. The US Commission on International Religious Freedom (USCIRF)—in official reports transmitted to Congress—has specifically condemned the anti-cult movement’s use of “discredited theories and methodologies” (explicitly naming the Singer and Lifton lineage), described it as “fundamentally a propaganda outlet conducting a highly effective information war against religious minorities,” and rejected the prosecution theory that community members are “helpless victims without their own free will.”
USCIRF’s country reporting documented how France, Russia, and Kyrgyzstan deploy identical theories—psychological influence applied to voluntary adults, no physical harm required—and condemned those prosecutions as religious persecution. Kyrgyzstan’s 2026 law banning “psychological influence” without requiring physical harm is the statutory analog to the Cherwitz charging theory; USCIRF condemned it. The Cherwitz closing argument stated on the record that actual harm was not required for conviction.
Massimo Introvigne described the case in Bitter Winter as “the unwelcome return of the pseudoscientific theory of ‘cultic brainwashing’ in American courts.”7 He documented a direct precursor: beginning in 2018, Argentina’s PROTEX unit targeted organizations stigmatized as cults on the same theory—willing participants brainwashed, their voluntary testimony disregarded. Several Argentine courts rejected it. The United States was simultaneously pressuring Argentina to require force, fraud, or coercion as trafficking elements, while its own prosecutors applied the theory PROTEX had pioneered.
The framework USCIRF has condemned as state religious persecution when deployed abroad produced a nine-year federal sentence in Brooklyn.
WHO WILL BE WATCHING THE SECOND CIRCUIT
The breadth of communities with standing interests in the Second Circuit’s resolution cuts across ideological lines in ways that should give any thoughtful jurist pause.
Religious organizations across the spectrum face direct institutional exposure. Every high-commitment voluntary religious community — from Catholic religious orders to evangelical discipleship programs to high-demand Buddhist and Hindu organizations — operates by teaching ideas powerful enough to change behavior. If the persuasive effect of those ideas can constitute the coercive mechanism of a forced labor conspiracy, no such organization is structurally distinguishable from Cherwitz.
James R. Lawrence III — conservative evangelical Christian, former Deputy General Counsel at the Department of Health and Human Services, and former General Counsel at the FDA under the Trump administration — made this point in The American Conservative. Writing as someone who “believe[s] sex outside one-man-one-woman marriage is a sin,” he opposed this prosecution because he understood what the absence of a limiting principle means for institutions whose values he does share: “Against conservative Christians, the playbook would be straightforward. Evangelization becomes recruitment. Labor is extracted through church ministries. Accountability for sin and instruction to avoid temptation becomes control.”
The political stakes are impossible to ignore. The same anti-cult coercive control framework underlying the Cherwitz prosecution has been publicly applied — by figures within the same anti-cult movement — to characterize the MAGA political movement as a cult subject to the same coercive control analysis, and most recently to characterize a sitting Cabinet member’s health initiative as an authoritarian cult. The framework used to convict Nicole Daedone has been publicly announced as applicable to the current administration’s political programs. Whether that framework survives Second Circuit scrutiny is not an abstract legal question.
The court also has before it the civil attorney-client privilege appeal arising from the same prosecution (Case No. 25-1721-cv), in which the lower court effectively sanctioned the government’s use of stolen privileged materials as an investigative roadmap. The criminal appeal adds the constitutional dimensions.
What the Second Circuit decides will determine whether the TVPA’s forced labor statute has been permanently transformed from a tool targeting commercial trafficking into an instrument for prosecuting the ideological influence of any organization whose teachings are sufficiently compelling. The fifteen-year institutional record confirms what Kozminski warned in 1988: the transformation was not accidental. The question now before the Second Circuit is whether American law will correct it.
Endnotes
1. United States v. Cherwitz, et al., No. 23-cr-146 (DG) (E.D.N.Y.).
2. United States v. Kozminski, 487 U.S. 931 (1988).
3. United States v. Fishman, 743 F. Supp. 713 (N.D. Cal. 1990).
4. See Grayned v. City of Rockford, 408 U.S. 104 (1972).
5. Bouie v. City of Columbia, 378 U.S. 347 (1964); United States v. Lanier, 520 U.S. 259 (1997).
6. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993),
7. Massimo Introvigne, Brainwashing: Reality or Myth? (Cambridge UP, 2022).
Disclaimer: The opinions and views expressed in this article are those of the author and do not necessarily reflect the views of The National Law Review.
