Martina Vandenberg Keynote Presentation


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Martina Vandenberg Keynote Presentation

  1. 1. Justice for Trafficking Victims in the United States { THISTLE FARMS NATIONAL CONFERENCE October 15, 2013 Martina E. Vandenberg THE HUMAN TRAFFICKING PRO BONO LEGAL CENTER
  2. 2. July 2013
  3. 3. • • • • • • • • • • • Agriculture Begging/panhandling Construction Criminal activity Domestic work Factory work Nail salons Fishing industry Sheepherding Dry Cleaner Nursing • • • • • • • • • Landscaping services Forced marriage Hotel or Motel Janitorial Services Restaurants Sex industry Hair-braiding Salons Teaching Bridal Shop Trafficking can occur in any labor sector or industry.
  4. 4. Virginia
  5. 5. New Jersey
  6. 6. Arizona
  7. 7. In November 2010, two Boca Raton residents pled guilty to holding 39 Filipino workers in forced labor in local country clubs.
  8. 8. U.S. Government Prosecutions Source: The Attorney General’s Annual Report to Congress and Assessment of U.S. Government Activities to Combat Trafficking in Persons, FY 2010
  9. 9. U.S. Government Prosecutions Source: The Attorney General’s Annual Report to Congress and Assessment of U.S. Government Activities to Combat Trafficking in Persons, FY 2011
  10. 10. U.S. Government Prosecutions 2012 Total Federal Prosecutions in United States Initiated for Forced Labor and Adult Sex Trafficking: 55 Total Federal Prosecutions in the United States Initiated for Child Sex Trafficking: 73 Total Federal Trafficking Cases Prosecuted in 2012: 128 Source: The Department of State Trafficking in Persons Report June 2013, U.S. Chapter Report
  11. 11. ILO 2012 Global Estimate: 20.9 million State-imposed Forced Labor: 2.2 million Forced Labor for sexual exploitation: 4.5 million Forced Labor for labor exploitation: 14.2 million
  12. 12. { Source: Department of State Trafficking in Persons Report, 2013
  13. 13. Since 2000, • foreign victims trafficked to the United States received immigration legal services; • U.S. citizen and LPR victims received no legal services.
  14. 14. • • • • In FY 2010, the U.S. Government issued 447 T-visas to trafficking victims. In FY 2011, the U.S. Government issued 557 T-visas to trafficking victims. In FY 2012, the U.S. Government issued 674 T-visas to trafficking victims. There are 5,000 available each year.
  15. 15. Justice for Trafficking Victims: • Criminal Restitution • Civil Judgment
  16. 16. First Question: Is there a federal criminal case?
  17. 17. U.S. v. Sabhnani, et al. Long Island, New York • • • • A victim was found in a Dunkin’ Donuts store in Syosset, New York, wearing rags and with open wounds behind her ears. ICE obtained a search warrant and found a second victim hiding in a closet under the basement stairs in the defendants’ $2 million home. The two women, both from Indonesia, had been held in the defendants’ home, one for five years, the second for two years. Both defendants convicted on forced labor and related conspiracy charges. Source: Department of Justice Civil Rights Division Press Release
  18. 18. •Mrs. Varsha Sabhnani sentenced to 11 years imprisonment. •Mr. Mahender Sabhnani sentenced to 3 1/3 years imprisonment. •Defendants were ordered to pay $936,546.22 in criminal restitution.
  19. 19. When the U.S. Government brings a trafficking prosecution under the TVPRA, Criminal Restitution is mandatory under 18 U.S.C. 1593
  20. 20. Definition of “full amount of the victim’s losses” under TVPRA, 18 U.S.C. 1593 …the term “full amount of the victim’s losses” … 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.
  21. 21. Definition of “full amount of the victim’s losses” under TVPRA, 18 U.S.C. 1593: Definition.— 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.
  22. 22. U.S. v. Dennis Paris, et al. Criminal No. 3:06CR64(CFD) District of Connecticut • Defendants trafficked young women and girls into forced prostitution over a five-year period; • The youngest trafficking victim was 14; • One trafficker sold two women to another trafficker for $1,200; • Ten defendants indicted in a 64-count indictment, including child sex trafficking charges;
  23. 23. Restitution in Sex Trafficking Cases U.S. v. Paris U.S. District Court, District of Connecticut Criminal No. 3:06CR64(CFD) Nine of ten defendants pled guilty; • Paris convicted to trafficking under 1591 and sentenced to 30 years (360 months) incarceration, 5 years of supervised release; and • Paris ordered to pay $46,116 in restitution to victims. But one victim estimated that she had earned more than $1 million. •
  24. 24. Second Question: What if the defendants plead guilty to a lesser charge?
  25. 25. ANSWER: Get Restitution under the TVPRA Criminal Restitution Law
  26. 26. U.S. v. Bakilana U.S. District Court for the Eastern District of Virginia • • • Defendant, a World Bank employee, allowed to plead guilty to lying to the FBI; The plea agreement included $41,000 in restitution for back wages; Prepayment required into an escrow account before sentencing complete.
  27. 27. U.S. v. Edwards 011-CR-0316, District of Maryland, Greenbelt • • • • • Defendants pled guilty to alien harboring; Paid $50,000 into escrow account before sentencing; Court held two-day sentencing hearing; Liquidated damages for unpaid wages included in restitution order; Restitution paid under 18 USC §1593.
  28. 28. United States v. Alexander, et al. 3:10-cr-5435 (2010) Western District of Washington • • • • • Three defendants indicted under 18 U.S.C. 1591(sex trafficking of a child under 18); Alexander pled guilty and was sentenced to 108 months imprisonment, three years supervised release, and ordered to pay $130,000 in restitution; Prosecutors had requested $260,000 in restitution; A second victim was awarded $7,000 in restitution; A third victim received no restitution.
  29. 29. Mandatory Criminal Restitution Advocacy under 18 U.S.C. §1593 • • • • • • • Maximize the criminal restitution order; Use experts on wage rates and the victims’ “losses”; Calculate the value to the defendant of the victim’s forced labor or services; Invoke IRS Notice 12-2012; Insist that plea agreements include restitution order; Make sentencing contingent upon pre-payment into an escrow account; Argue to include liquidated damages in forced labor wage calculations.
  30. 30. Third Question: What if the prosecutors drop the criminal case?
  31. 31. ANSWER: File a federal civil law suit against the traffickers under the TVPRA 18 USC §1595
  32. 32. Trafficking victims have a federal private right of action.
  33. 33. Private Right of Action:18 U.S.C. §1595 (a) An individual who is a victim of a violation of this chapter may bring a civil action against the perpetrator (or whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter) in an appropriate district court of the United States and may recover damages and reasonable attorneys fees. (b) (1) Any civil action filed under this section shall be stayed during the pendency of any criminal action arising out of the same occurrence in which the claimant is the victim. (2) In this subsection, a “criminal action” includes investigation and prosecution and is pending until final adjudication in the trial court. (c) No action may be maintained under this section unless it is commenced not later than 10 years after the cause of action arose. ***Original statute passed in 2003, as amended.
  34. 34. Only 99 federal civil cases filed under 18 U.S.C. 1595 since 2003 TVPRA Amendments
  35. 35. Trafficking Civil Cases Sex Trafficking (4 cases) 3% Forced Labor (95 cases) 97% Source: The Human Trafficking Pro Bono Legal Center
  36. 36. Outcomes in 99 Federal Civil Cases under 18 U.S.C. 1595 9% Voluntarily Dismissed (9) 9% Settled (35) Judgment for Plaintiff (6) 32% 36% Default Judgment (8) Ongoing (32) 8% 6% Source: The Human Trafficking Pro Bono Legal Center Dismissed or Judgment for Defendant (9)
  37. 37. Case Facts Aguilar v. Imperial Nurseries, 2008 WL 2572250 (D. Conn. May 28, 2008) Twelve Guatemalan plaintiffs obtained lawful visas to work planting in North Carolina, but instead transported to Connecticut, forced to work at tree nursery for 78 hours a week and little pay. Passports confiscated and travel restricted--threatened with arrest, imprisonment, and deportation. Mazengo v. Mzengi, No. 07756 (D.D.C. 2008) Passport confiscated, forced to cook meals, clean, do laundry, and care for children. Forced to cook food for catering company. Cut off from contact with outside world. Threatened and never paid. Pena Canal v. de la Rose Dann, 2010 U.S. Dist. LEXIS 97856 (N.D. Cal. Sept. 2, 2010) Peruvian Plaintiff promised high wage and private living space for housework. Instead had passport confiscated, threatened with deportation, worked 15 hours/day 7 days/wk cleaning, caring for three children, cooking, and cleaning houses for defendant's real estate business. Forced to sleep on living room floor and kept from communicating with family in Peru. Duration of Labor Judgment 3 Months $3,000/day Compensatory (Forced Labor) $6,000/day Punitive $300,000 Trafficking Damages Total Awards Range from $371,000 to $827,000 per person 4 Years $510,249.21 in treble damages under the Maryland Wage and Hour Law; $45,101.69 in compensatory damages for unjust enrichment; $19,961.64 in compensatory damages for fraudulent inducement; $250,000.00 in compensatory damages for emotional distress; $150,000.00 in punitive damages; $84,036.25 in attorney’s fees Total Award = $1,059,348.79 1 Year, 9 Months Assumed hourly wage of $23.70. $340,746.75 wages (increased by labor code penalties; reduced by criminal restitution order of $123,740.34) $92,400 emotional distress $309,406.41 punitive Total Award = $618,812.82
  38. 38. Pioneering Areas of Pro Bono Representation of Trafficking Victims: 1. 2. 3. 4. 5. Representation in Criminal Cases Vacatur and Expungement Civil Litigation under 18 USC 1595 Sex Trafficking Civil Litigation Enforcement of Criminal Restitution Orders 6. Tax Advice and Financial Literacy Training 7. Litigation against Diplomats
  39. 39. Why Do A Civil Trafficking Suit? • • • • • • Provides an opportunity for a trafficking survivor to regain control over his/her life; Provides an opportunity to collect all damages, not just those permitted under the federal restitution statute; Provides a trafficking survivor with a day in court where the government does not bring criminal case; Provides an opportunity to hold unindicted perpetrators and coconspirators accountable; Creates a financial deterrent for traffickers; and Provides economic independence to survivors of human trafficking.
  40. 40. Martina E. Vandenberg President The Human Trafficking Pro Bono Legal Center Tel: 202-716-8485
  41. 41. Questions?