U.S. v. Sabhnani

• Citation: 566 F.Supp.2d 139
• Decision Date: 19 July 2008
• Docket Number: No. 07-cr-429 (ADS) (WDW).,07-cr-429 (ADS) (WDW).
• Parties: UNITED STATES of America, Plaintiff, v. Varsha Mahender SABHNANI and Mahender Murlidhar Sabhnani, Defendants.
• Court: U.S. District Court — Eastern District of New York

566 F.Supp.2d 139

UNITED STATES of America, Plaintiff, v. Varsha Mahender SABHNANI and Mahender Murlidhar Sabhnani, Defendants.

No. 07-cr-429 (ADS) (WDW).

United States District Court, E.D. New York.

July 19, 2008.

Benton J. Campbell, United States Attorney, Eastern District of New York, by Mark Joseph Lesko, Demetri M. Jones, Assistant United States Attorneys, Central Islip, NY, for Plaintiff.

Hoffman & Pollok LLP by Jeffrey C. Hoffman, Esq., Susan C. Wolfe, Esq., Joanna Eftychiou-Evans, Esq., Of Counsel, New York, NY, for Defendant Varsha Mahender Sabhnani.

Scaring & Brissenden, P.L.L.C. by Stephen P. Scaring, Esq., Matthew W. Brissenden, Esq., Of Counsel, Garden City, NY, for Defendant Mahender Murlidhar Sabhnani.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

On May 22, 2007, Varsha Mahender Sabhnani ("Varsha") and Mahender Murlidhar Sabhnani ("Mahender") (collectively, the "Defendants" or the "Sabhnanis") were indicted and charged with two counts of forced labor and two counts of harboring aliens in relation to their alleged treatment of two domestic servants from Indonesia, named Samirah and Enung. On September 18, 2007, pursuant to a superseding indictment, the Defendants were charged with: (1) conspiracy to commit forced labor; (2) two counts of forced labor; (3) conspiracy to harbor aliens; (4) two counts of harboring aliens; (5) conspiracy to commit peonage; (6) two counts of peonage; (7) conspiracy to commit document servitude; and (8) two counts of document servitude.

On December 17, 2007, the jury returned a verdict finding both Defendants guilty of all 12 counts in the indictment.

On June 26, 2008, Varsha Sabhnani was sentenced to a term of imprisonment of 132 months in connection with her conviction. On June 27, 2008, Mahender Sabhnani was sentenced to a term of imprisonment of forty months in connection with his conviction.

Presently before the Court is the issue of the amount of restitution owed by the Defendants.

DISCUSSION

I. As To Restitution

A. Mandatory Restitution

18 U.S.C. § 1593 provides for mandatory restitution in cases of peonage, slavery and trafficking. Specifically, the statute provides

(a) Notwithstanding section 3663 or 3663A [18 USCS §§ 3663 and 3663A], and in addition to any other civil or criminal penalties authorized by law, the court shall order restitution for any offense under this chapter [18 USCS §§ 1581 et seq.].

(b) (1) The order of restitution under this section shall direct the defendant to pay the victim (through the appropriate court mechanism) the full amount of the victim's losses, as determined by the court under paragraph (3) of this subsection.

(2) An order of restitution under this section shall be issued and enforced in accordance with section 3664 [18 USCS § 3664] in the same manner as an order under section 3663A [18 USCS § 3663A].

(3) As used in this subsection, the term "full amount of the victim's losses" has the same meaning as provided in section 2259(b)(3) [18 USCS § 2259(b)(3)] and shall in addition include the greater of the gross income or value to the defendant of the victim's services or labor or the value of the victim's labor as guaranteed under the minimum wage and overtime guarantees of the Fair Labor Standards Act (29 U.S.C. 201 et seq.).

18 U.S.C. § 1593. As noted in the statute, victims are entitled to restitution in the "full amount of the victim's losses" including the value of their labor or services, pursuant to the Fair Labor Standards Act ("FLSA").

As noted in 18 U.S.C. § 1593, this Court must also comply with 18 U.S.C. § 3663. Pursuant to that section, the Court must also consider:

(I) the amount of the loss sustained by each victim as a result of the offense; and

(II) the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate.

18 U.S.C. § 3663. In addition, pursuant to 18 U.S.C. § 1593, the amount of the victim's losses "has the same meaning as provided in 18 U.S.C. § 2259(b)(3)." That statute enumerates some of the costs of the victim to be reimbursed as follows:

For purposes of this subsection, the term "full amount of the victim's losses" includes any costs incurred by the victim for—

(A) medical services relating to physical, psychiatric, or psychological care;

(B) physical and occupational therapy or rehabilitation;

(C) necessary transportation, temporary housing, and child care expenses;

(D) lost income;

(E) attorneys' fees, as well as other costs incurred; and

(F) any other losses suffered by the victim as a proximate result of the offense.

18 U.S.C. § 2259(b)(3).

B. As To Domestic Workers

The FLSA was amended in 1974 to broaden its coverage and include protection for workers performing domestic services. Coke v. Long Island Care at Home, Ltd., 376 F.3d 118, 123 (2d Cir.2004). However, there is an exception for domestic servants who reside in the employer's household. In this regard, the maximum hour requirements of the FLSA do not apply to "any employee who is employed in domestic service in a household and who resides in such household." 29 U.S.C. § 213(b)(21).

On February 3, 1981, the Department of Labor ("DOL") issued an opinion letter with regard to whether employees of a group home could be considered to reside at the home, noting "[w]here the facilities offered by the employer provide a homelike environment with private quarters separate from the residents ... we would regard such employees as residing there." In 2007, a Court in the Eastern District of California cited the DOL's 1981 opinion letter, again noting that an employee only resides on the employer's premises if the environment is homelike. Chao v. Jasmine Hall Care Homes, Inc., No. 05-cv-1306, 2007 WL 4591438, at *2 (E.D.Cal. Dec. 28, 2007).

In the present case, pursuant to the definition set forth by the DOL, the Court finds that Samirah and Enung did not "reside" with the Defendants within the purport of the FLSA. The trial testimony did not reveal a "home-like environment" where Samirah and Enung were provided with private quarters. To the contrary, the environment described throughout the trial was anything but "home-like." The women usually slept on the floor in various parts of the house. In addition, the proof was clear that they were beaten and tortured and kept in subjugation against their will. Their living in the Sabhnani home could not be properly characterized as "an employee ... in domestic service in a household who resides in such household." Samirah and Enung did not reside in the Sabhnani household, they were kept in confinement. As a result, the exception set forth in 29 U.S.C. § 213(b)(21) would not be applicable.

C. As To Sleep and Meal Periods

Pursuant to 29 CFR § 785.19, "[b]ona fide meal periods are not worktime ... These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals . .. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating." 29 CFR 785.19. As such, employees are not entitled to compensation for bona fide meal times. In addition, 29 CFR § 785.22 applies to employees who are on duty for 24 hours or more in a day. Pursuant to this section,

[i]f the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the period is interrupted to such an extent that the employee cannot get a reasonable night's sleep, the entire period must be counted. For enforcement purposes, the Divisions have adopted the rule that if the employee cannot get at least 5 hours' sleep during the scheduled period the entire time is working time.

29 CFR 785.22.

In the present case, Samirah and Enung testified that they were not provided with a sufficient amount of food and on occasion, were actually forced to eat food out of the garbage. The trial testimony of Samirah and Enung is filled with instances of cruelty, torture and deprivation of food and sleep. In addition, as the trial testimony revealed, Deborah Litras, the Mahender Sabhnani employee, felt sorry for Samirah and Enung and bought food for them, including donuts and muffins, but she removed the wrappers so the Defendants would not find out. Also, Anthony Pascarella, the Sabhnanis' gardener, testified that he gave food to Samirah and Enung, including donuts, chicken and bread. None of this trial testimony was refuted. As a result, it is apparent that the women were not provided with bona fide meal periods. As such, the Court finds that no time should be excluded for meal periods. In addition, the victims testified regarding their lack of sleep, as well as duties they were called upon to perform at all hours of the day and night. Specifically, Enung testified that she often worked late in the night and the she woke up at 4 a.m. every day to begin work. The proof at the trial revealed that they were, in fact, on duty 24 hours each day and unable to obtain 5 hours of sleep each night. As a result, the Court finds that the entire days for Samirah and Enung should be considered working time.

In further support of disallowing an exception for meals and lodging, in Marshall v. Intraworld Commodities Corp., No. 79 C 918, 1980 WL 2097, at *4 (E.D.N.Y. June 9, 1980), the Court refused to credit the employer for meals and lodging, finding "that a credit is allowed only where acceptance by the employee was voluntary and uncoerced." In that case, as in the instant case, the Court found that the employee had no other place to live and no choice but to accept what the employer had provided.

In support of these findings, by the terms of 29 CFR 785.20, "[u]nder certain conditions an employee is considered to be working even though some of h[er] time is spent in sleeping or in certain other activities." In the present case, it appears from the trial testimony that the victims...