Smuggling of migrants

Offences

• Enabling illegal entry
• Procuring, providing or possessing a fraudulent travel or identity document in connection with migrant smuggling
• Enabling illegal stay
• Financial or other material benefit (to smuggler)

United States of America v. NBL et al

UNODC No.:
USAx066

Fact Summary

Defendants 1 and 2 (which together form N.B.) conspired - with their employees Defendants 3 to 6 - to commit and cover up immigration violations during the hiring of aliens who worked in their packinghouse. Specifically, from 31 July 2000, "through on or about December 5, 2000," the defendants "willfully, and knowingly" conspired to commit various offenses including hiring irregular migrants, providing false immigration documents, completing false immigration forms, and representing to the Nebraska United States) Department of Labor that false social security numbers provided by irregular migrants were genuine. Six overt acts are alleged on various dates. The conduct of two confidential informants and an undercover Immigration and Naturalization Service (INS) agent prior to 5 December 2000, provides the factual basis for the overt acts.

Defendants 7 to 9 (who managed to escape authorities) are alleged of having - in El Paso, Texas (U.S.A.) and elsewhere - recruited irregular migrants to work at N.B., transported them to Omaha, Nebraska (U.S.A.) via bus and supplied them with false documents.

The defendants acted with the purpose of obtaining a financial or other material benefit.

On 5 December 2000, the INS executed search warrants and conducted a raid at N.B. The INS found and detained over 200 irregular migrants at N.B. The precise number of aliens is unclear because the government's records were poor. The number was probably between 209 and 213 people. Apparently because it was costing the Government over 11000 USD per day to hold the migrants, on 6 and 7 December 2000, approximately 152 migrants were removed from the United States. Other 19 migrants were held in custody and sent to Dallas, Texas (U.S.A.) to appear before immigration judges. Others – 30, according to INS estimation - were released on their own recognizance. Of those released on their own recognizance, at least 11 became fugitives. Ultimately, the INS admitted that at least 181 migrants were either deported or were "voluntarily returned". The whereabouts of the others remained unknown to the INS.

 

 

In ascertaining the facts, authorities relied on testimonial and documentary evidence as well as undercover surveillance and the input of confidential informants.

 

Legal findings:

 

Through a superseding indictment, the defendants were charged with conspiring to commit and covering up immigration violations during the hiring of irregular migrants. Defendants 1 to 6 were then indicted with various substantive counts in furtherance of the conspiracy. Defendants 7 to 9 were charged with recruiting irregular migrants to work at N.B., transporting them to via bus, and supplying them with false documents. The Prosecution asserted a forfeiture count against N.B.

 

Defendants 1 to 6 presented motions to dismiss the indictment due to loss of material and favourable evidence.

The Judge a quo entered an order precluding the Government from using at trial any evidence regarding the hundreds of irregular migrants who were removed from the country. The Prosecution appealed against this order.

The U.S. District Court for the District of Nebraska granted the motions of the defendants, consequently dismissing the indictments. It dismissed the appeal of the Prosecution.

 

For further details, see “Procedural History” and “Commentary”.

Commentary and Significant Features

In addressing the appeal, the U.S. District Court for the District of Nebraska (U.S.A.) noted as follows:

  • In the instant case, the Court is called to answer the following question: When the government removed hundreds of (irregular) aliens from this country before their testimony could be preserved, did the government act in bad faith and deny the defendants material and favorable evidence?”.
  • It is admitted that the Government seized all irregular migrants found at N.B., deported most of them and did not now know where any of them were. Accordingly, all such migrants were unavailable to the defendants. It is undisputed that defense counsel were not given an opportunity to interview any of the irregular migrants before they were removed from the United States.
  • The Immigration and Naturalization Service (INS) did not have the input of the United States Attorney's office when it conducted the interviews or removed the irregular migrants. It also does not appear that the United States Attorney's office was asked to review the interview forms before the migrants were removed from the country.
  • It is difficult to summarize the actual results of the interviews. This is so because many of the interviews were not conducted in accordance with the amended I-213 form and the instructions that the agents were given regarding those forms. Specifically, the agents frequently failed to fill out the amended form or the agents never asked the special questions called for on the said form (e.g. re the person who recruited the irregular migrants even though they had been specifically instructed to do so). At least 55 of the forms I-231, or roughly 25% of the interviews, were not completed as required.
  • Despite the difficulty in summarizing the interviews caused by the failure of the agents to follow instructions, much of the information provided by the irregular migrants was admittedly exculpatory. The case agent testified to an example of an excluded irregular migrant who could have given exculpatory testimony in favor of Defendants 1 to 6. Specifically, the said migrant would have inter alia declared to have rented false documents to a third party, not covered by the proceedings under assessment. Likewise, the case agent admitted that at least one of the irregular migrants could have given exculpatory testimony regarding all of the defendants (e.g. declaring to have obtained documents from aunts, cousins, brothers, people in Omaha, in Texas (U.S.A.), with the same applying to who had assisted them in obtaining those documents).
  • Importantly, some interviews were thought to be potentially exculpatory by the agents conducting them. These agents reported that view to the respective supervisors. However, the record revealed no serious attempt to detain those migrants as material witnesses, clarify the situation or take sworn statements from them to preserve their potentially exculpatory testimony.
  • The Sixth Amendment's assurance of compulsory process and the Fifth Amendment's guarantee of due process both prohibit the government from seizing irregular migrants and removing them from this country when the result of that action is to deny criminal defendants favorable and material testimony from those absent aliens (United States v. Valenzuela-Bernal, 1982). Notably, “when a witness has been deported prior to a criminal trial, the defendant can demonstrate a denial of compulsory and due process which require the dismissal of the indictment if he or she makes "a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses". See also United States v. Lin, 2001.
  • While not explicitly enshrined in Valenzuela-Bernal, some Circuits have required that defendants also prove that the Government's removal action be a result of "bad faith". See, e.g., United States v. Chaparro-Alcantara (2000, Seventh Circuit), United States v. Iribe-Perez (1997, Tenth Circuit). Although in the competent Eight Circuit, this remains an open question, it is likely that "bad faith" would be required if the Court of Appeals were to consider that issue. Accordingly, the defendants are obligated to prove bad faith in order to secure dismissal of the indictment.
  • The element of bad faith can be proven in one of two ways: show that the Govrnment (i) departed from normal deportation procedures, or (ii) deported the irregular migrants to gain an unfair tactical advantage over the defendant at trial. The proper focus is "on the Government's knowledge when, exercising its deportation authority, it arranged for the departure of the witnesses, not on any of its subsequent conduct” (Chaparro-Alcantara (2000, Seventh Circuit)).
  • In view of the facts of the case, the Government acted in bad faith when deporting the detained irregular migrants. The Government did not follow its own deportation procedures. It is undisputed that the normal INS procedure in a case involving a sweep to obtain evidence of a targeted criminal prosecution was to faithfully search for and preserve exculpatory evidence, as well as to gather and preserve inculpatory evidence. The involved agents knowingly failed to preserve exculpatory evidence. Three factors illustrate the point:
    • The I-213 form was amended by the INS to require the agents to gather pertinent information in a particular format. The agents were instructed to fill out the amended form. Yet, in a significant percentage of the cases the amended I-213 forms were not filled out as required.
    • It was clearly the policy of the INS not to remove anyone who the INS agents believed possessed exculpatory information. The case agent referred to irregular migrants in position to provide potential exculpatory evidence in respect of all or most defendants.
    • It is undisputed that if the interviewing agents had a question about whether an irregular migrant possessed exculpatory information, INS policy dictated that such information should have been reviewed by a supervisor so that appropriate action could be taken to preserve the potentially exculpatory information. Despite the fact the that (i) one agent testified that he made at least two referrals for review by supervisors and (ii) the case agent testified that at least some of the migrants in fact possessed exculpatory information, the record reveals no serious attempt on the part of supervisors to detain those migrants as material witnesses, clarify the situation or take sworn statements from them to preserve their potentially exculpatory testimony.
  • Contrarily to the view of the Judge a quo, the irregular migrants were in the position of providing material evidence. In making a determination of this kind, the Court must keep in mind the Supreme Court's observations that the witnesses' unavailability through no fault of the defendants "may well support a relaxation of the specificity required in showing materiality" and the defendants in this situation "cannot be expected to render a detailed description of their lost testimony". In support of the conclusion that the excluded migrants could provide material evidence, the following factors are to be taken into account:

(i)            Even the Government had admitted that the migrants’ testimony was central to the case by stating – while motioning for the declarations of untraceable migrants to be admitted as evidence – that it "constitutes a large portion of the government's case".

(ii)           It had been proven that many of the excluded "witnesses had information relating directly to the defendants' knowledge of whether their workers were” irregular," and that evidence is certainly both material and favourable to the defense of accusations relating to hiring irregular migrants.

(iii)          The Judge a quo concern that the migrants’ evidence would not specifically rebut each overt act or substantive count misses the point. Initially, for evidence to be favorable and material, it is not required that it serve as a defense to every Prosecution’s allegation. On the contrary, the question is whether the evidence "might be expected to play a significant role in the suspect's defense".

(iv)          The exculpatory testimony of the irregular migrants would not have been cumulative and could not have been provided by anyone else. Indeed, that is why the Government used over 100 agents to raid N.B. For the same reason, the superseding indictment alleged a conspiracy spanning 5 December 2000. No other witnesses could provide an unbiased, equally effective, substitute for their exculpatory knowledge of what went on at N.B.

  • The overt acts and substantive counts are much based on the conduct of two confidential informants and an undercover INS agent. Testimony from irregular migrant witnesses found at N.B. - who had no bias in favor of the Government or the defendants, that corroborated the assertion of the defendants that they did not intentionally and knowingly provide bogus forms or help to fill them out - would have served to dilute the significance of the testimony of the informants and undercover agent. Likewise, such testimony would buttress the defendants' obvious mistake defense. Thus, it would be wrong to suggest that the migrant witnesses would not have played a significant role as far as the Defence is concerned.
  • In light of the above, it is clear the Government faced a delicate dilemma in the instant case. On the one hand, it must enforce the criminal laws. On the other, it must enforce immigration laws. In so doing, it must also be sensitive to the very real humanitarian concerns, which require it to act in a prompt fashion when dealing with the often poor and abused irregular migrants who become wards of the Government. Thus, "It simply will not do, therefore, to minimize the Government's dilemma in cases like this". The Government must abide by its own procedures.

 

Against this background, U.S. District Court for the District of Nebraska granted the defendants’ motions and dismissed the indictments.

 

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:
2002-04-08

Cross Cutting

Liability

... for

• completed offence

... based on

• criminal intention

Investigation

Involved Agencies

• Immigration and Naturalization Service (INS)
• Criminal Police
• Public Prosecutor

Details

• Special investigative techniques
• undercover operation(s)
Comments:
Confidential informants
 

• Gender Dimension

Procedural Information

Legal System:
Common Law
Type of Proceeding:
Criminal
 
 
Proceeding #1:
  • Stage:
    other
  • Is the decision appealable?:
    No
  • Details:
    Pre-trial
  • Official Case Reference:
    United States of America v. NBL et al
  • Decision Date:
    08 April 2002

    Court

    Court Title:
    U.S. District Court for the District of Nebraska
     

    Location

  • City/Town:
    Omaha
  • Province:
    Nebraska
  • • Criminal
    Description:

    Following an investigation, a raid was ordered to the installations of N.B. This raid was different than a typical Immigration and Naturalization Services (INS) enforcement sweep whereas a specific criminal investigation is not the focus of the foray. Prior to the raid, a special briefing was held. While INS agents were present at the briefing, no Government lawyers were present. Regarding the pending charges, the agents were told that if they found irregular migrants, they were to interview them. The agents were told to "go into great depth" and look for and preserve both inculpatory and exculpatory information. The agents were instructed to record information on a certain form ("I-213") as well as to report potentially inculpatory or exculpatory information to supervising agents. The I-213 form had been amended in order to effectively meet the purpose of the raid/investigation. Notably, extra lines had been added, requiring the agents to ask: (i) who hired the migrant; (ii) who recruited the migrant; (iii) how the migrant traveled to Omaha, Nebraska (U.S.A.); (iv) who assisted in completing the relevant immigration forms; (v) from whom the migrant received his or her documents, and; (vi) how much the migrant paid for the documents.

    Through a superseding indictment, the defendants were charged with conspiring to commit and covering up immigration violations during the hiring of irregular migrants. Defendants 1 to 6 were then indicted with various substantive counts in furtherance of the conspiracy. Defendants 7 to 9 were charged with recruiting irregular migrants to work at N.B., transporting them to Omaha, Nebraska (U.S.A.) via bus, and supplying them with false papers.

    Even though the general practice of the INS was not to remove anyone who was considered a material witness for the Defense, the Government seized all migrants found at the raid, deported most of them and lost trace of all of them. The Judge a quo ruled the migrants were thus unavailable to defendants. Indeed, it is undisputed that defense counsels were not given an opportunity to interview any of the irregular migrants before they were removed from the country.

     

    Against this background, the Judge a quo recommended that the Judge ad quem denied the motion of Defendants 1 to 6 to dismiss the indictment due to loss of testimonial evidence. Although concluding the Government acted in bad faith, the Judge a quo believed that the irregular migrants who were removed from the United States could not have provided "material" testimony to the Defense (see “Commentary”). On the other hand, because of its bad-faith conduct, the Judge a quo entered an order precluding the government from using at trial any evidence regarding the hundreds of irregular migrants who were removed from the country country. The Prosecution appealed against this order
     

    Outcome

    Other Outcome:
    Motions granted – indictments dismissed
     

    Migrants

    Migrant:
    Approximately 200 migrants (see “Facts”)

    Defendants / Respondents in the first instance

    Defendant:
    N.B. Ltd

    Defendant #1
    The defendant argued the indictment should be dismissed because the Government acted in bad faith in deporting most irregular migrants detained at the raid to N.B. and losing trace of the others.  Likewise, the irregular migrants could have provided material and favorable evidence to the Defense

    Defendant:
    N.B. Inc

    Defendant #2
    Ibidem Defendant 1

    Defendant:
    K.V.N
    Defendant #3

    Ibidem Defendant 1
    Defendant:
    M.V.C
    Gender:
    Male
    Defendant #4

    Ibidem Defendant 1
    Defendant:
    T.N.J
    Gender:
    Male
    Defendant #5

    Ibidem Defendant 1
    Defendant:
    J.M
    Gender:
    Male
    Defendant #6

    Ibidem Defendant 1
    Defendant:
    J.de Q.N
    Gender:
    Male
    Defendant #7

    Managed to escape authorities
    Defendant:
    A.Q
    Gender:
    Female
    Defendant #8

    Ibidem Defendant #7
    Defendant:
    D.L
    Gender:
    Male
    Defendant #9

    Ibidem Defendant #7

    Charges / Claims / Decisions

    Defendant:
    N.B. Ltd
    Statute:
    United States Code Title 18, Section 371 Conspiracy to commit and cover up immigration violations during the hiring of aliens
    Defendant:
    N.B. Inc
    Statute:
    United States Code Title 18, Section 371 Conspiracy to commit and cover up immigration violations during the hiring of aliens
    Defendant:
    K.V.N
    Statute:
    United States Code Title 18, Section 371 Conspiracy to commit and cover up immigration violations during the hiring of aliens
    Defendant:
    M.V.C
    Statute:
    United States Code Title 18, Section 371 Conspiracy to commit and cover up immigration violations during the hiring of aliens
    Defendant:
    T.N.J
    Statute:
    United States Code Title 18, Section 371 Conspiracy to commit and cover up immigration violations during the hiring of aliens
    Defendant:
    J.M
    Statute:
    United States Code Title 18, Section 371 Conspiracy to commit and cover up immigration violations during the hiring of aliens
    Defendant:
    J.de Q.N
    Statute:
    United States Codes Title 8, Section 1324 Recruiting and transporting irregular aliens
    Defendant:
    A.Q
    Statute:
    United States Codes Title 8, Section 1324 Recruiting and transporting irregular aliens
    Defendant:
    D.L
    Statute:
    United States Codes Title 8, Section 1324 Recruiting and transporting irregular aliens
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