U.S. v. Dann
| Decision Date | 22 July 2011 |
| Docket Number | No. 10–10191.,10–10191. |
| Citation | 652 F.3d 1160,11 Cal. Daily Op. Serv. 9234,11 Cal. Daily Op. Serv. 11080 |
| Parties | UNITED STATES of America, Plaintiff–Appellee,v.Mabelle de la Rosa DANN, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Barry J. Portman, Federal Public Defender, and Jerome E. Matthews, Assistant Federal Public Defender, Oakland, CA, for the defendant-appellant.Thomas E. Perez, Assistant Attorney General, Civil Rights Division, Melinda Haag, United States Attorney, Barbara J. Valliere, Chief, Appellate Section, and Assistant United States Attorney, Merry Jean Chan, Assistant United States Attorney, San Francisco, CA, for the plaintiff-appellee.Appeal from the United States District Court for the Northern District of California, Claudia Wilken, District Judge, Presiding. D.C. No. 08–390–CW.Before: BETTY B. FLETCHER and SIDNEY R. THOMAS, Circuit Judges, and NANCY GERTNER, District Judge.*
Mabelle de la Rosa Dann (“Dann”) was charged with conspiracy to commit visa fraud (count one), visa fraud (count two), forced labor (count three), unlawful conduct regarding documents in furtherance of servitude (count four), 1 and harboring an illegal alien for the purpose of private financial gain (count five). All charges arose out of conduct involving her live-in nanny and housekeeper, Zoraida Peña Canal (“Peña Canal”).
Dann, an American citizen of Peruvian descent, arranged for Peña Canal to travel from her native Peru to the United States in 2006 and enter under a fraudulently-obtained visa to serve as a nanny and housekeeper. Dann was going through a divorce at the time, was unemployed, and was not receiving child support. Once Peña Canal arrived, Dann kept her passport, forbade her from speaking with anyone outside the home, and failed to pay her for two years, although she often promised that she would. She repeatedly threatened to send Peña Canal back to Peru; and yet when Peña Canal agreed to go home, Dann told her that she would owe her $8,000 because she had only worked off $7,000 of the $15,000 worth of “expenses” that Dann had paid on her behalf. Dann eventually asked Peña Canal to sign a false statement that she had been paid minimum wage. This statement, along with Peña Canal's passport and Peruvian identification, were later found by U.S. Immigration and Customs Enforcement (“ICE”) agents underneath clothes in a drawer in Dann's room.
Dann was convicted after a jury trial on all five counts and sentenced to 60 months' imprisonment. The district court ordered that she pay restitution to Peña Canal of $123,740.34. And because the court found that Peña Canal (who was living in a shelter) needed money immediately, the court ordered Dann to turn over any accrued child support payments that she received from her ex-husband while incarcerated directly to Peña Canal. Dann's children were eligible for child support. Her eldest son is now sixteen, and her twins are ten years old.
Dann appeals her convictions for forced labor as well as for the related offenses of document servitude and harboring an alien for financial gain. She also appeals three sentencing enhancements under the United States Sentencing Guidelines (“U.S.S.G.”) and the district court's restitution order.
As we explain below, we affirm the convictions on all counts as supported by sufficient evidence. With respect to sentencing, we decline to reach the merits of the first enhancement for visa fraud because it does not affect the guidelines offense level; we affirm the second enhancement for holding Dann in forced labor for over one year; and we affirm the third enhancement for committing a felony “in connection with” forced labor.
Finally, we reverse the district court's restitution order. This case raises a question of first impression: whether child support arrearages belong to a criminal defendant such that they may be assigned to a victim by a restitution order while the defendant's children are still minors. Upon review of California case law, we conclude that the minor child is the real party in interest to accrued child support. Until the child reaches the age of majority, the parent remains a conduit of the support and may distribute it for his benefit. Thus, any money that Dann receives for child support does not belong to her but rather to her children; it cannot be assigned to Peña Canal.
The parties at trial and on appeal present two competing narratives. Dann contends that this case is a not unusual story of the relationship between two women, with all its ups and downs. As a divorced, single mother with three small children, Dann was desperate. She gave Peña Canal the opportunity to come to the United States, and she treated her as a family member. Dann took care of, housed, and fed Peña Canal, and wanted to pay her as soon as she had the chance. Dann hoped to give Peña Canal a room of her own but was unable to do so. The two women had their fights, as all family members do. After Peña Canal left Dann, she discovered that she could obtain a T–Visa and stay in the United States, as long as she testified against Dann.2 Peña Canal's testimony is tainted by her incentive to lie.
The government in turn portrays a woman who went to great lengths to violate immigration laws so that Peña Canal could work for her. She needed cheap—or free—labor, and this was her means of procuring it. Her behavior towards Peña Canal became worse and worse over time, culminating in Peña Canal's working without pay in slave-like conditions, fearful of what would happen if she were to leave.
Since Dann was convicted, however, the two narratives are not on equal footing. The Court is to construe all facts in favor of the verdict. The facts below are therefore presented in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Dann is a naturalized American citizen of Peruvian descent who graduated from U.C. Berkeley's Business School. She first met Peña Canal during a brief visit to Peru in March of 2002, when Peña Canal was working as a nanny for Dann's sister. Dann suggested that Peña Canal come to the United States to nanny for her family instead.
Dann returned to Peru a few months later and hired Peña Canal to take care of her twin baby boys during the trip. Again she spoke of taking Peña Canal to the United States. She promised Peña Canal the opportunity to study English and a salary that would increase from $300 to $600 per month. At trial, Peña Canal testified that even at that time, Dann spoke about deductions, calculations, and costs, such as the cost of a visa and the cost of housing in the United States.
Dann and Peña Canal went about the process of applying for a visa. Dann filled out the papers for Peña Canal and told her to pretend that she was a tourist going to the United States for vacation. Dann told her that it would be more believable if Peña Canal said that she had a daughter in Peru or a mother who was sick, and so on her first application, Peña Canal stated that she had a four-year-old daughter and presented a false birth certificate as proof. That application was denied.
Dann filled out a second application, this time stating that she and Peña Canal, along with the twins, would go to the United States for Thanksgiving and then return. This time Peña Canal was granted an interview at the U.S. Consulate, but this application was also denied. Dann returned to the United States in November of 2002 but vowed to send for Peña Canal, even if it meant smuggling her with “coyotes” through Mexico.
During the following two years, Dann tried to help Peña Canal come to the United States on three occasions. Dann was going through a divorce, and in 2004 she wrote to Peña Canal:
Dear Zoraida,
I hope you are well. Here, I'm trying to do everything possible to get ahead all alone and with the responsibility of three children. As you probably know, my divorce will be finalized very soon. Now, the judge has ordered that I must go out and work. And I need more help than ever ... I'm going to try and see how to bring you over here. As you probably know, a man that my brother is acquainted with is going to get in touch with you very soon and will try to bring you. Don't tell anyone from your family
....
Finally, in December 2004, Dann arranged for Peña Canal to contact Dann's friend, Silvana de la Rosa (“Silvana”). Dann and Silvana entered into a contract to bring Peña Canal to the United States. Silvana would pretend that she was so frail from cancer that she needed an assistant, Peña Canal, to travel with her. Dann hired a consultant to teach Peña Canal how to lie to immigration officials, with whom Peña Canal met regularly over a period of several months before her interview at the consulate. Peña Canal was granted a tourist visa and entered the United States on July 27, 2006.
At this point, Dann was unemployed and receiving no child support. She and her three children were living with her mother.
When Peña Canal arrived in the United States, she moved in with Dann and Dann's three boys at Dann's mother's house. The house was cramped, and Peña Canal slept on the floor. Dann promised that they would be there for only a few days, and then they would move to a bigger apartment where they would have more privacy. Around this time, Dann took Peña Canal's passport for safe-keeping, since Peña Canal did not have any private or secure space of her own. When Silvana left the country, Dann tore up Peña Canal's return ticket to Peru along with the contract to bring Peña Canal to the United States.
Eventually, in late September of 2006, Dann, her three children, and Peña Canal moved out of Dann's mother's house and into a two-bedroom apartment. Here again, Peña Canal did not have a room of...
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