United States v. Henderson

• Decision Date: 25 April 2012
• Docket Number: Criminal No. 09–10028–DPW.
• Citation: 857 F.Supp.2d 191
• Parties: UNITED STATES of America, v. Lorraine HENDERSON, Defendant.
• Court: U.S. District Court — District of Massachusetts

857 F.Supp.2d 191

UNITED STATES of America,

v.Lorraine HENDERSON, Defendant.

Criminal No. 09–10028–DPW.

United States District Court,

D. Massachusetts.

April 25, 2012.

Diane C. Freniere, United States Attorney's Office, John Joseph Moakley, Boston, MA, for Plaintiff.

Francis J. DiMento, DiMento & Sullivan, Boston, MA, for Defendant.

MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, District Judge.

In this criminal case the heedless, hapless, and negligent hypocrisy of the defendant confronts the stern, solemn, and implacable sanctimony of the government over a matter of household employment: the periodic engagement of a cleaning lady.

Now before me is the question whether a jury verdict supporting a felony conviction should stand in a case where an unmarried professional woman—with supervisory responsibility for the government in enforcing immigration laws—employed a person she came to learn was an illegal alien to clean her home from time to time and, when asked, advised the cleaning lady generally about immigration law practices and consequences. The question is framed by the defendant's renewed motion for a judgment of acquittal and, in the alternative, by her motion for a new trial.

The cleaning lady's employment was not itself illegal under regulations promulgated by the Attorney General of the United States. And the empathetic advice that the defendant gave her cleaning lady about immigration law practices—induced from the defendant as part of the script contrived for an elaborate undercover investigation involving surreptitious electronic recordings into her relationship with the cleaning lady—did not advise the cleaning lady to engage in fraud or commit some other crime.

Yet Customs and Border Protection administrative rules prohibit CBP personnel like the defendant from employing an illegal alien, sanctioning such conduct on a spectrum from a fourteen day suspension to removal. And, more menacingly, a federal criminal statute carrying a five year maximum incarcerative sentence makes it a felony to “encourage or induce” an illegal alien “to reside” in this country.

The defendant's employment of an illegal alien as an intermittent cleaning lady in her home coupled with the immigration advice she gave her was considered sufficient by an earlier administration of the United States Attorney's Office to mount this felony prosecution. The Office determined to exercise its considerable discretion, despite the fact that the parallel misdemeanor provision treats even more significant conduct as de minimis and consequently not meriting criminal sanction, to initiate this unusual prosecution under a felony statute designed to address conduct so serious that it provides a predicate for application of the blunderbuss Racketeering Influenced and Corrupt Organizations (“RICO”) statute, 18 U.S.C. § 1961 et seq. The current administration of the United States Attorney's Office appears content to permit the case to continue, presumably as consistent with the previous administration's earlier choice to pursue the prosecution in the first place.

I view the pursuit of this case to have been overkill through the improvident invocation of federal criminal felony process when alternative administrative sanctions more closely tailored to the significance of the misconduct are available and adequate. And I am puzzled by the dogged consistency¹ which causes this prosecution to continue. However, my responsibilities at this point are limited to determining whether the federal criminal law can permit such a prosecution and, if so, how a fair trial of such a prosecution may be managed.

After careful and extended review of the serious felony criminal statute the government invokes, I must conclude—under principles of statutory construction applicable to criminal provisions—that the government has the power to pursue such a prosecution. However, I also must conclude—in light of case law developing in the federal appellate courts while I have had this matter under advisement—that my instructions to the jury as to the elements of the crime were inadequate, and that a new trial is warranted in which appropriate jury instructions fashioned in response to recent developments in the case law will be delivered.

In the larger scheme of criminal justice proceedings, it is for the government to make the decision whether further pursuing a prosecution like this is a fair, reasonable, and proportionate exercise of prosecutorial discretion under circumstances involving a matter of at most modest culpability.

I. FACTS

In order to demonstrate the pedestrian quality of the conduct that is at the core of this felony prosecution, I will recite at length the largely undisputed facts as the jury could have found them in returning a guilty verdict.

A. Background1. The Defendant Comes to Boston

The defendant Lorraine Henderson graduated from Saint Raymond Academy for Girls, a Bronx parochial high school, on June 20, 1975. The next week she started work as a clerk/typist for the former United States Customs Services. By dint of hard work and native intelligence, Henderson, although not a college graduate, rose steadily through the ranks to analytical and management positions in Customs Services in the New York City area and then at headquarters in Washington, D.C.

Following the reorganization of the federal government's customs, border control, and immigration functions under the newly created Department of Homeland Security, Henderson was appointed in December, 2003, after a competitive process, to be Boston Area Port Director for United States Customs and Border Protection, a position at the highest regular civil service rank. One of the other candidates she prevailed over in the competitive process was Nora Ehrlich. Ehrlich thereafter herself became Assistant Director of Field Operations for Trade and Cargo in Boston. Both Henderson and Ehrlich were among the six senior managers who reported directly to Donald Farquharson, the District Field Officer in Boston.

As Boston Area Port Director, Henderson was responsible for the international ports of entry by air and sea in Massachusetts, Connecticut, and Rhode Island, such as Logan Airport in Boston, the cargo terminals of Boston Harbor, Bradley Airport in Connecticut, and T.F. Green Airport in Rhode Island. In addition to customs responsibilities for which she had developed experience and expertise while working for the Customs Service, Henderson also assumed responsibility for identifying and placing into deportation illegalaliens found in the ports of entry she oversaw. The responsibilities under immigration law were new to Henderson, because she had risen in the Customs branch of Homeland Security.

2. The Defendant Finds Cleaning Services

Upon her appointment as Boston Area Port Director, Henderson, who had never lived in the Boston area, bought a townhouse in a condominium complex in Salem. In March 2004, Henderson found a cleaning lady, Fabiana Bitencourt, through a business card that was posted in her condominium complex. She paid Bitencourt $75 for cleaning her townhouse roughly every two weeks.

When Ehrlich, who also lived in Salem, asked Henderson about what cleaning help she had, Henderson recommended Bitencourt; Ehrlich and her mother thereafter began using Bitencourt as their cleaning lady.

3. CBP Presses Standards

Following its reorganization and consolidation with the Department of Homeland Security, CBP undertook an especially vigorous initiative to emphasize its mission and to demand its employees observe a high standard of professionalism. As a result, Henderson received a number of advisories about the obligations of employee conduct, including agency directives that it was misconduct to “knowingly and inappropriately associate with ... illegal aliens” including any “off-duty ... business relationship,” as phrased in the 2004 CBP “Table of Offenses and Penalties.” Henderson, in her role as a supervisor, also gave other employees training on these advisories.

4. Ehrlich Identifies Bitencourt as an Illegal Alien

As part of the ongoing training CBP provided regarding employee obligations, all CBP employees in December 2005 received specific cautionary advice from CBP headquarters that they should not employ illegal aliens in the home. Shortly thereafter, Ehrlich inquired of Bitencourt whether she was a legal resident of the United States. When Bitencourt said that she was residing in the United States illegally after having paid to be led across the border from Mexico, Ehrlich terminated her employment. Ehrlich thereafter reported to another CBP supervisor the relationship she had terminated with Bitencourt, informed the supervisor that Henderson had a similar relationship with Bitencourt, and reported that she intended to inform Henderson that Bitencourt was an illegal alien. A month or two later, Ehrlich told Henderson that she had terminated Bitencourt, but Henderson chose to ignore the implications of Ehrlich's report and deflected the conversation without indicating what, if any, action she would herself take.

5. Henderson's Career Prospects Further Develop

Henderson's career continued to advance in CBP and she was offered a detail during 2008 to work in Los Angeles. This temporary assignment was seen by Henderson and others in the agency as a precursor to her appointment to the Senior Executive Service, a supergrade status at the top of the non-political positions in federal government employment. One day, while riding home to Salem with Ehrlich before moving temporarily to Los Angeles, Henderson told Ehrlich she would be suspending cleaning services at her condo. Henderson said that Bitencourt's friends had been doing cleaning for her recently while Bitencourt suspended work to have a child, and stated (incorrectly) that having a child in the United States made Bitencourt a legal resident.² Ehrlich did not pursue the matter further with Henderson, who thereafter was on a work...