U.S. citizen Mabelle de la Rosa Dann recruited Peruvian victim P.C. to come to the United States as her nanny and housekeeper, promising P.C. that she would be paid $600 per month plus free room and board in exchange for working five days per week during regular business hours. But once P.C. arrived, Dann seized P.C.'s passport, and refused to pay her for two years. P.C. regularly worked from 6 a.m. until 9 p.m., and was prohibited from communicating with others or listening to Spanish language radio and television. At one point, Dann told P.C. that she owed her $13,000 and needed to work to repay the debt. Dann also asked P.C. to sign a document stating she had been paid minimum wage. This document along with P.C.’s Peruvian identification and passport were found by U.S. Immigration and Customs Enforcement agents in Dann’s clothing drawer.
At trial, Dann argued that P.C.’s testimony was tainted by her incentive to lie to obtain a T-visa and remain in the United States and that their relationship was similar to that of two female family members. The Government, in contrast, presented a case where Dann is a woman in need of free or cheap labor, who exploited P.C. and held her in slave-like conditions. The appellate court notes that because Dann was convicted, her story has been judged as less credible by the jury.
1st Instance:
Court: United States District Court for the Northern District of California
Date of decision: 2010
2nd Instance:
Court: United States Circuit Court for the Ninth Circuit
Date of decision: 9 May 2011
Dann was charged with conspiracy to commit visa fraud, visa fraud, forced labour, unlawful conduct regarding documents in furtherance of servitude, and harbouring an illegal alien for the purpose of private financial gain. She was found guilty of all five counts in a jury trial and sentenced to 60 months’ imprisonment. The District Court also ordered her to pay restitution to P.C. in the sum of $123,740.23. Because P.C. was living in a shelter and needed money immediately at the time, the court also ordered Dann to turn over to P.C. any accrued child support payments that Dann received from her ex husband.
Dann appealed the convictions of forced labour and related offenses of document servitude and harbouring an alien for financial gain and her sentence enhancements.
18 U.S.C. § 371 and § 1546
18 U.S.C. § 1546
8 U.S.C. § 1324(a)(1)(iii) and (B)(i)
18 USC § 1592
18 U.S.C. § 1589 and § 1594(a)
Dann appealed the convictions of forced labour and related offenses of document servitude and harbouring an alien for financial gain and three sentence enhancements.
The Circuit Court affirmed Dann’s conviction but declined to reach the merits of the first sentence enhancement because it didn’t affect the federal sentencing guidelines offense level, affirmed the second one, and affirmed the third.
The Circuit Court did, however, reverse the District Court’s restitution order. The case raised the question of whether child support arrearages belong to the criminal defendant such that the District Court could order them to the victim through a restitution order. Under California case law, the money received for child support does not belong to Dann, but rather to her minor children, and so it cannot be assigned to the victim.
United States Court of Appeals for the Ninth Circuit
Circuit Court Opinion: United States v. Mabelle De La Rosa Dann, No. 10-10191 (9th Cir., July 22, 2011).
District Court Docket Number: 4:08−CR−00390
Related Civil Action: 2010 U.S. Dist. LEXIS 97856
The Circuit Court discussed the forced labour conviction since Dann argued that her relationship with P.C. removed it from the forced labour statute. In doing so, the court considered the legislative history of the TVPA (2000) and noted that “legislative history suggests that Congress, in passing the act, intended to reach cases in which persons are held in a condition of servitude through nonviolent coercion.'" (2011 WL 2937944, *8 (C.A.9 (Cal.)) (citing the Victims of Trafficking and Violence Protection Act of 2000 § 102(b)(13)).
The Circuit Court also noted that “not all bad employer-employee relationships or even bad employer-immigrant nanny relationships will constitute forced labour. . . . the threat of harm must be serious” and the employer must have “intended to cause the victim to believe that she would suffer serious harm – from the vantage point of the victim – if she did not continue to work.” The key under section 1589, according to the court, is not just “that serious harm was threatened but that the employer intended the victim to believe that such harm would befall her.”
The Court considered the threats from Dann and asked whether from the perspective of P.C., these harms were sufficiently serious to compel her to remain with Dann. They answered that the threats of financial harm, reputational harm, immigration harm, and harm to Dann’s children were sufficient to compel a reasonable person in P.C.’s position to remain with Dann and so Dann intended to make P.C. believe she would suffer serious harm if PC ceased working for Dann.