Big Cases, Big Problems

Big Cases, Big Problems

February 2008
Enforcement Advisor, Volume I, Issue I

When it comes to worksite enforcement actions, be it local, state or federal, the bigger the case, the bigger the problems for the U.S. Immigration & Customs Enforcement (ICE) and other law enforcement agencies. The breadth, depth and length of the investigations are highly correlated with the complexity and significance of issues that the enforcement agencies must overcome. Before authorizing and pursuing any large-scale, worksite investigation, law enforcement agencies consider a broad range of issues.

The first issue concerns budgetary constraints: How much will this case cost? How many man-hours will be devoted to it? What type of resources will it require? The expenses can be mundane or rather remarkable, depending on whether specialized informants are used and highly technical investigative approaches are authorized by the court, such as Title III non-consensual wiretaps over multiple jurisdictions.

The second issue concerns the scope of the case: How many jurisdictions or states will this investigation involve? How deep will the investigation go? How long will this case take? Oftentimes, large-scale investigations will not be instituted at the middle or end of a fiscal year cycle because of the accounting procedures and the inability to carry over expenses into the subsequent fiscal year. The government cannot deficit-spend so there is often pressure to complete an investigation in a timely manner before the fourth quarter of the current fiscal year.

The third issue concerns the likelihood of success: What are the chances that criminal sanctions and/or civil penalties will be imposed? Will this encourage employers to comply with the laws? This is really a business decision that involves a cost/benefit analysis related to the worksite enforcement action. The accounting group will determine the outlay and the source of the funding from various operating units. The likelihood of success will be discussed by local and senior management with various levels of concern and input from congressional affairs, community affairs, intelligence fusion units, detention units, pre-trial services, various prosecutorial entities on the local and federal level, and ultimately the asset forfeiture folks who will have to control items and monies that are seized and, if forfeited to the government, determine their final distribution on a percentage basis to the agencies that participated in the case.

ICE has profiled several significant investigations related to employer sanctions. In a September 27, 2007 ICE Fact Sheet, Assistant Secretary Myers, states, “ICE and our law enforcement partners will continue to bring all of our authorities to bear in this fight using criminal charges, asset seizures, administrative arrests and deportations.” Notable Operations were outlined in the same release such as Koch Foods, Fresh Del Monte Produce, George’s Processing, Quality Service Integrity (QSI), Tarrasco Steel, Jones Industrial Network, Michael Bianco, Inc., Rosenbaum-Cunningham International, Swift and Company, Fischer Homes, IFCO Systems of North America and many others. These cases are considered significant operations involving thousands of administrative arrests, criminal indictments of principals, and the seizure of significant assets.

Given the broad range of issues that are involved in a worksite enforcement action, the large-scale investigative undertaking is really the exception. The more likely case that will be opened and pursued will involve a local undertaking that can be supported by minimal appropriated funds, with the efforts and rewards shared among several local agencies.

Much less known and profiled are the small-scale sanctions investigations that are pursued on a daily basis throughout the country and should be of concern to the small and medium-size business owner.

Consider the following “small-scale” investigations:

In October 2007, David Wortman of Grand Island, Nebraska pled guilty to harboring illegal aliens and structuring monetary transactions to avoid the cash transaction reporting requirements. He agreed to restitution and forfeiture totaling $437,632. ICE, IRS Criminal Investigations Division and the U.S. Department of Labor investigated Mr. Wortman and his business, Cloudburst Underground Sprinkler Systems, a small enterprise.

In Baltimore, Maryland, owners of three Kawasaki Restaurants were criminally arrested for money laundering and harboring illegal aliens. The owners pled guilty to felony charges and agreed to forfeit approximately $1.1 million in assets.

In November 2007 a federal jury convicted Robert and Angelita Farrell of Mitchell, South Dakota, of criminal acts against Filipino employees at the Comfort Inn and Suites hotel in Oacoma, S.D. The criminal acts included conspiracy to commit peonage, peonage, document servitude, visa fraud and false statements. The jury heard emotional testimony of significant immigration and labor violations during a weeklong trial.

In Michigan, in November 2007, the former controller of RCI entered a guilty plea to charges arising from operating a nationwide cleaning service that was staffed primarily with illegal aliens. This case generated asset forfeitures totaling $1.5 million. In addition to immigration violations, the case centered on failure to pay federal income taxes, evasion of Social Security and Medicare payments, and trafficking in documents.

U.S. News and World Report in December 2007 documented an enforcement action against employees of the Sandhills Dairy in North Dakota. The employees had falsified their identities and work eligibility with false documents. The case is still being pursued.

In December 2007, a Utah construction contractor was charged with smuggling and harboring illegal aliens that were employed by his family-run firm. Prosecution is pending.

These examples are relatively low-scale enforcement actions conducted by ICE alone or in conjunction with other law enforcement entities. Furthermore, this article does not delve into the expanding reality of state enforcement actions instituted under recent state laws, such as those in Arizona, Arkansas, Oklahoma and Tennessee, which aim to curb employment of undocumented workers.

The Post 9-11 reality is that all employers regardless of size, in order to protect their interests, must examine their current state of employment practices and determine what vulnerabilities exist and assiduously address them. Failure to do so will invite some level of unwanted review from many law enforcement agencies.