Participation in an organized criminal group

Offences

• Agreement to commit a serious crime (conspiracy)
• Participation in criminal activities of organized criminal group
• Organizing, directing, aiding, abetting, facilitating or counselling the commission of a crime involving an organized criminal group

Degree of Involvement

• Knowledge of aim or activities of the organized criminal group or its intention to commit the crimes in question
• Overt act in furtherance of agreement

Keywords

• Overt act in furtherance of agreement
• conspiracy
• criminal association
• organizing/directing commission of (serious) crime

Smuggling of migrants

Offences

• Enabling illegal stay

Cause No. 1:13-CR-117_Indictment by Grand Jury

UNODC No.:
USAh002

Fact Summary

Defendants J.M., L.G., S.J., J.P.Z., G.L.Z.and others known and unknown, were members and associates of an enterprise referred to as the Tai Shan Enterprise, an organization engaged in, among other things, recruiting and placing irregular migrants to work in restaurants throughout the state of Texas (U.S.), and elsewhere, for a fee. This organization also transported the irregular migrants to the restaurants where they were to work. The migrants were housed by the restaurant owners / operators during their employment. At times, the organization also housed the irregular migrants pending their transport to the restaurants to work. These activities were ensued in or about 2010, the exact date remaining unknown, until 7 November 2013, in the Eastern District of Texas.
 
The workforce supplied by the Tai Shan Enterprise was predominantly comprised of Hispanic irregular migrants from Mexico and Central America illegally in the United States. Irregular migrants were employed by the Tai Shan Enterprise for “commercial advantage and private financial gain”. It placed kitchen workers, food preparers, and dishwashers in budget-priced restaurants specializing in Chinese, Asian, and Asian-related cuisine throughout the United States.
In furthering and promoting its business, the Tai Shan Enterprise used, amongst other means, Chinese-language newspaper(s), including World Journal of Texas, and this newspaper's companion Internet website to solicit the Chinese restaurants and offer Hispanic irregular migrants. Following this solicitation, and upon agreement with the restaurant owners, the Tai Shan Enterprise charged fees for the transportation, housing, and delivery of irregular migrants. The amount of the fees depended on the length of time an unauthorized alien worker was housed by the Tai Shan Enterprise and how far the unauthorized alien was transported.
The Tai Shan Enterprise also accepted unauthorized alien workers on a "walk-in" basis and utilized Spanish-speaking recruiters to assist with communications in person and / or over the phone. As part of this scheme, these irregular migrants remained and resided in the United States in violation of the law.
The concerned restaurants adhered to this scheme in order to reduce costs and maximize profits. They would generally (i) make migrants work long hours with no of very few days off, (ii) paid migrants in cash, below the minimum salary, (iii) did not require irregular migrants to comply with local health standards for restaurant workers in the jurisdictions where they operated, (iv) did not require migrants to present documents establishing identity and /or employment eligibility as required by law*. As an incentive, and in order to remain competitive, these restaurant owners / operators often provided housing, board, and transportation to their unauthorized alien laborers.
Tai Shan Enterprise charged between $300 to $480 per person for housing while awaiting employment, job placement, and transportation to an employment location. The fee charged to the unauthorized alien was paid by the "client" restaurant owner and / or manager upon receiving an unauthorized alien from the Tai Shan Enterprise. The exact amount of these fees would then be deducted from the unauthorized alien's first month's salary.
In terms of accommodation, migrants often were subject to unfavorable living conditions due to crowding, lack of privacy, minimal or no furniture, and other adverse conditions, including sleeping on floors, and / or air mattresses. Migrants had no friends or family in the vicinity of their place of employment. This aspect, coupled with the difficulty in speaking English, made it difficult for the unauthorized alien employees to function outside their place of employment, for fear of law enforcement and lack of an ability to assimilate into the community.
Defendant J.M. was the owner and manager for the Tai Shan Employment Agency. Herecruited, referred for employment for a fee, transported, harbored, and encouraged and induced irregular migrants to reside in the United States. The other defendants assisted in the operation of the organized criminal group in different manners, namely by harboring, transporting and concealing irregular migrants. They accepted fees for their delivery to restaurant locations.
In ascertaining the facts, authorities relied inter alia on testimonial evidence (notably from migrants), interception of communications, and the results of undercover operations.

*Note:
Section 274A of the Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986, requires employers to hire only United States citizens and aliens who are authorized to work in the United States. Employers must verify the employment eligibility of any persons hired after 6 November 1986.
 
Legal findings:
The Grand Jury charged the defendants with:
  • RICO (Racketeer Influenced and Corrupt Organizations) Conspiracy;
  • Conspiracy to transport, harbor, and encourage and induce aliens to reside in the U.S.
 
The Grand Jury further determined that, were the defendants to be convicted, they were to forfeit to the United States all their titles, rights and interests on or deriving or having derived from or in connection with the criminal activities. This included at least 750 000 USD (re RICO conspiracy count) and 1 700 00 USD (re conspiracy to transport irregular migrants count).
If such property could not be located or had been significantly diminished, the Court would order the forfeiture of any other property of the defendants up to the value required, including, e.g., residence of defendants.

Commentary and Significant Features

The specifics of this case unveil the close connection between migrant smuggling and the purpose to obtain a financial or other material benefit and organised criminality. It further offers a view of different legislative options to prosecute this type of criminality (e.g. RICO conspiracy and migrant smuggling crime-types) given the different juridical assets protected in each proscription. This may be very relevant when evidence regarding the constitutive elements of migrant smuggling is insufficient and judicial authorities may have to resort to other possibilities to bring perpetrators to justice and thus reflexively raise barriers to the continuation of the organised criminal group.
 
Authorities resorted to different and effective investigative techniques, such as undercover operations and electronic interception. Making full use of investigative avenues is all more so important in the current age of new technologies and social networks whereby, as in the instant case, criminals resort to means difficult to oversee and trace (e.g. Facebook and online press).
 
This Indictment also mirrors a proactive and effective approach, at an early stage of proceedings, regarding the seizure and confiscation of assets involved in, deriving from, or somehow related to the smuggling of migrants. In this manner, it contributes to consolidating and enhancing the practical effect of Article 12 of United Nations Convention against Transnational Organised Crime (UNTOC).
 
NOTE: As per USA national law, the purpose of obtaining a financial or other material benefit is not a constitutive element of the crime of smuggling of migrants but rather an aggravating circumstance (see SHERLOC Database of Legislation – USA).
Sentence Date:
2013-11-07

Cross Cutting

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)
• organiser/director

Application of the Convention

Details

• involved an organized criminal group (Article 2(a) CTOC)

Investigation

Involved Agencies

• Criminal Police
• Public Prosecutor

Details

• electronic or other forms of surveillance
• undercover operation(s)

Confiscation & Seizure

Seized Money:
2450000 US Dollar
Seized Property:
Several real estate
 
Legal Basis:
Title 18, United States Code, Section 982(a)(6), in line with procedures of Title 21, United States Code, Section 853. 
 

Migrants

Migrant:
Gender:
Male
Hispanic irregular migrants from Mexico and Central America.

Defendants / Respondents in the first instance

Defendant:
J.M. aka P.
Indictment by Grand Jury.
Penalty for count 1: Not more than 20 years imprisonment, a fine of not more than twice the gross profits or other proceeds, and supervised release for a period of not more than five years.
 
Penalty for count 2: Not more than 10 years imprisonment, a fine of not more than $250,000.00 and supervised release for a period of not more than three years.
Defendant:
L.G.
Ibid. Defendant 1
Defendant:
S.J.
Ibid. Defendant 1
Defendant:
J.P.Z.
Ibid. Defendant 1
Defendant:
G.L.C.
Ibid. Defendant 1
Defendant:
X.C.
Ibid. Defendant 1
Defendant:
W.J.W.
Ibid. Defendant 1
Defendant:
X.F.Z.
Ibid. Defendant 1
Defendant:
Y.M.
Ibid. Defendant 1
Defendant:
Y.K.L.
Ibid. Defendant 1
Defendant:
S.F.
Ibid. Defendant 1
Defendant:
Z.Z.
Ibid. Defendant 1
Defendant:
J.H.J.
Ibid. Defendant 1
Defendant:
H.L.
Ibid. Defendant 1
Defendant:
H.C.
Ibid. Defendant 1
Defendant:
J.Z.F.
Ibid. Defendant 1

Charges / Claims / Decisions

Defendant:
J.M. aka P.
Verdict:
Other
Statute:
United States Code Title 18, Section 962(d) RICO (Racketeer Influenced and Corrupt Organizations) Conspiracy Other
Statute:
United States Code Title 8, Section 1324(a)(1)(A)(v)(I) Conspiracy to transport, harbor, and encourage and induce aliens to reside in the U.S.
Defendant:
L.G.
Defendant:
S.J.
Defendant:
J.P.Z.
Defendant:
G.L.C.
Defendant:
X.C.
Defendant:
W.J.W.
Defendant:
X.F.Z.
Defendant:
Y.M.
Defendant:
Y.K.L.
Defendant:
S.F.
Defendant:
Z.Z.
Defendant:
J.H.J.
Defendant:
H.L.
Defendant:
H.C.
Defendant:
J.Z.F.

Court

United States District Court for the Eastern District of Texas, Beaumont Division

Sources / Citations

United States District Court for the Eastern District of Texas, Beaumont Division
Cause No. 1:13-CR-117 - Indictment by Grand Jury
7 November 2013
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