What New York Judges Need to Know

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S&I: LABOR TRAFFICKING: WHAT NEW YORK JUDGES NEED TO KNOW WB/KZ JUNE 13, 2014

SYRACUSE, NEW YORK

JUDICIALȱCOLLEGE

SPONSORED BY THE STATE JUSTICE INSTITUTE

LABOR TRAFFICKING: WHAT NEW YORK JUDGES NEED TO KNOW Professor Terry Coonan OBJECTIVES: As part of a collaboration with the Center for Public Policy Studies and the Center for Court Innovation, this program is presented by the National Judicial College and sponsored by the State Justice Institute. After this session, you will be able to:

1. Describe how the Trafficking Victim Protection Act of 2000 and New York law have changed previous definitions of slavery;

2. Define how force, fraud, and coercion are employed against victims in modern labor trafficking cases;

3. Identify how labor trafficking is typically manifested in the U.S. economy and in New York; and

4. Summarize how federal and New York law address the issue of labor trafficking.

REQUIRED READING: PAGETerry Coonan and William Brunson, Labor Trafficking: What New York Judges Need to Know (July 2014) [NJC PowerPoint] .....................................................................1

Labor Trafficking: What New York Judges

Need to KnowPresented By:

Professor Terry CoonanFlorida State University

¾ Forms of modern-day slavery that involve the exploitation of persons for commercial sex or forced labor

¾ Often involves crossing an international border but does not require movement

¾ Traffickers use force, fraud, or coercion to control their victims

What Is Human Trafficking?

¾ Approximately 27 million people held in slavery worldwide

¾ Estimated 500,000 to 2 million people trafficked worldwide annually

¾ Estimated 15,000 to 18,000 trafficked annually into the United States

A Human Rights Crisis

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International trends since late 1980s led to the rapid growth of trafficking:

¾ Increased ability by people to cross borders

¾ Increased poverty worldwide

¾ Result: desperately poor people immigrate to seek work

A Global Phenomenon

Origin & Destination Countries

The U.S. is one of the most popular destinations for human trafficking.

The “Natasha Trade” Emerges in Eastern Europe

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Trafficking of Asian Migrants by “Snakeheads” Becomes

Lucrative International Business

Children Are Routinely Enslaved in West African Cocoa Farms

Children Are Also Exploited in Conflict Zones Around the

World as Child Soldiers

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Women Continue to Make Up 70% of the Victims Worldwide

Migrant Farmworkers Are Exploited Routinely

¾Yields an estimated $32 billion in profits each year, world-wide

¾An estimated $9 – $12 billion earned in the United States

A Lucrative Business

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¾After drug trafficking, human trafficking is the most lucrative business for organized crime

¾Unlike drugs, humans can be resold again and again

Organized Crime

It’s Here in the United States

National Trafficking Hotline

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It’s Here in New York

Top 5 Source Countries for Labor Trafficking in N.Y. State

• Mexico• India• Indonesia• Philippines• Nigeria

* Source: Immigrant Women & Children’s Project (IWC)

U.S. and New York Labor Trafficking Trends

and Cases

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U.S. Labor Trafficking Cases

U.S. Venues for Labor Trafficking

¾ Agriculture

¾ Hotels & Resorts

¾ Sweatshops andIndustry

¾ Domestic Servitude

¾ Diplomatic Staff

¾ Peddling Rings

¾ Service Sector

¾ Nails / Massage

¾ Strip Clubs

¾ The largest number of trafficking cases nationwide

¾ The largest number of victims

¾ Often occur “in plain sight”

¾ Often involve legitimate U.S. businesses (willful blindness)

U.S. Labor Trafficking Cases

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¾ Exploits both foreign nationals and U.S. citizens

¾ Typically the trafficker is the farm labor contractor

¾ But demand for trafficking comes from large agribusiness & from consumers

1. Labor Trafficking in Agriculture

Forced Agricultural LaborGarcia-Botello Case (2002)


¾ First involuntary servitude case in U.S. prosecuted under the 2000 Trafficking Victim Protection Act

¾ Involved farm labor exploitation of 40+ Mexican adults and children in Orleans and Genesee Counties in western N.Y. (dairy, fruit, vegetable farms)

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¾ Maria Garcia-Botello, an American of Mexican heritage, settled in N.Y. as a registered farm labor contractor

¾ Lured undocumented Mexicans to Albion, N.Y. from the Arizona border

¾ Then confiscated their documents and garnered their wages to pay off $1,800 travel debts



¾ Workers held in squalid trailers and guarded by enforcers

¾ Those who complained were beaten with brass knuckles and threatened with deportation

¾ A family business: Garcia’s sons and husband part of scheme

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¾ Workers escape and contact Farm Worker Legal Services of New York

¾ Garcia pleads guilty & given 46 month sentence

¾ Workers go on to win 2013 class action suit against Botello-Garcia & 36 other farm contractors

Homeless men and women recruited from public shelters for exploitation on potato and cabbage farms in North Florida

Forced Agricultural LaborEvans Case (Florida)

Forced Agricultural LaborEvans Case (Florida)

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Evans Case (Florida)Were held on isolated farms and plied daily with alcohol and crack cocaine . . . Drug and alcohol costs became the source of debt servitude

Investigation begins when EPA detects high level of human feces in St. John River

Evans Case (Florida)

Trafficker Johnny Evans

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¾ Global Horizons an L.A. based company run by Israeli immigrant Mordechai Orian

¾ Orian marketed his services promising that Thai laborers were compliant, hard-working, and could be secured through recruiting debts (of $15,000 - $25,000)

Global Horizons Case

¾ Between 2005 and 2007, Global Horizons brought over 700 Thai workers into the U.S. to perform agricultural labor

¾ The workers were sent to California, Washington, Florida, Hawaii, and Utahand subcontracted out to local farms

¾ Workers’ travel documents were confiscated by Global Horizons


¾ Thai workers housed in storage containers, kept in isolated locations, and threatened with deportation if they objected

¾ Company instructed the workers that Americans hated Asians

¾ Workers’ wages were garnished by Global Horizons and supposedly sent to Thailand


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Groups of Thai workers brought to farms on mainland & Hawaii on H-2A agriculture visas


Hawaii FarmsUtah Farms

¾ U.S. Justice Department moves to prosecute Global Horizons and Orian

¾ Comprised largest human trafficking case prosecuted to date in the United States

¾ USDOJ abruptly drops all charges in July 2012 with vague explanation that it could not prove case beyond a reasonable doubt


2. Labor Trafficking in U.S. Hotels & Resorts

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San Destin Hilton Case (Florida)The Victims:

� Eastern European college students admitted on J-1 student visas

� Arrived with plane tickets that would cost $2,000+ to change

San Destin Hilton CaseThe Traffickers – Eastern European Organized Crime Groups:

Eurohouse (2 companies)Southern Amenity et alSigor, Inc. ISS Inc., et alHigh Quality ServicesMVA Right ServicesEBSDarPol & AmPol Maint

Florida Panhandle Locations

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Southeast Locations

2010 Manuel Case (Boca Raton)

¾ Husband & wife Filipino subcontractors lure Filipino cruise ship employees to Boca Raton promising high paying “land” jobs

¾ 50+ Filipinos are held in a gated neighborhood and contracted out to the Boca Woods Country Club


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� Upon arrival in Florida, victims have their passports and ID documents confiscated

� Victims told that perpetrators have special relationship with local ICE officer



� Victims rescued when found begging for food outside a Catholic Church

� Florida Attorney General opens case as wage and hour violation

� Federal case follows

3. Labor Trafficking inIndustry & Sweatshops

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Several of the most prestigious U.S. law firms announce they will pursue multiple human trafficking lawsuits on a pro bono basis against Signal International on behalf of 500+ guest workers from India.

May 21, 2013 Lawsuits Announced

Largest Labor Trafficking Lawsuit in U.S. History

¾ Suit claims Signal defrauded workers of tens of thousands of dollars with “recruitment fees”

¾ Further alleges workers confined to overcrowded & unsanitary shipyard camps in Texas, Mississippi, and Alabama

Lawsuit Alleges Massive Fraud & Abuses by U.S. Company

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Workers allege visitors not allowed in camps and that company officials regularly searched their belongings

Workers who complained were threatened with deportation

Sweatshop TraffickingEl Monte Case (California)

¾ 72 Thai women rescued in 1995 in East Los Angeles

¾ Had been held in residential neighborhood and exploited in a sweatshop ringed with barbed wire

¾ Debt servitude enhanced by “company store” coercion

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The Victim Rescue

The Suburban Sweatshop

The front view The back view

4. Domestic Servitude

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Domestic Servitude¾ Forms of house slavery

¾ Perpetrator often from the same country as the victim

¾ Victims most often female

¾ “Cultural misunderstanding” the typical defense of the trafficker

Domestic ServitudeSabhnani Case

Long Island Dunkin Donut employees encounter partially clad Indonesian woman in May 2007 with signs of extreme physical abuse

Victim had escaped from home of millionaire couple Mahender and Varsha Sabhnani, owners of multinational perfume business


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51 year old victim had been held since 2002 as virtual house slave in the family’s $2 million Muttontown mansion


Woman testifies about routine abuses that had risen to the level of torture:

¾ Repeated beatings with brooms & umbrellas

¾ Being cut with a knife and burned with scalding water

¾ Being forced to swallow chili peppers &then eat her own vomit


Sabhnani CaseVictim When Rescued

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¾ Varsha Sabhnani identified as prime perpetrator and given 11 year sentence for forced labor

¾ Husband Mahender Sabhnani also deemed culpable even though he never inflicted physical abuse

¾ Given 3 year sentence


5. Abuses by Diplomats

Alleged Human Trafficking 2013 Khobragade Case

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Manhattan federal prosecutor accuses India Deputy Consul in N.Y. Devyani Khobragade of underpaying a maid from India and then lying about her wages in order to obtain a U.S. visa for the woman.

Alleged Human Trafficking Khobragade Case (Dec. 2013)

2013 Khobragade CasePolitical Firestorm Ensues

¾ Criminal charge is for visa fraud (not human trafficking)

¾ Khobragade allegedly strip-searched

¾ Khobragade successfully claims diplomatic immunity and is recalled to India

Alleged Human Trafficking 2013 Khobragade Case

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Alleged Human Trafficking March 2014 Islam Case

¾ Male domestic worker sues Consul General Monirul Islam from Bangladesh alleging inhumane conditions & low pay

¾ Worker claims Islam confiscated his passport & kept him in slave-like conditions in Consul’s W. 57th Street apartment

Alleged Human Trafficking March 2014 Islam Case

¾ Exploit both foreign nationals and U.S. citizens

¾ Individuals may appear to beg on their own behalf or for a charitable organization

¾ Often offer token items in exchange for a donation

6. Peddling & Begging Rings

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1997 N.Y.C. Paoletti Case

¾ Beginning in early 1990s, Mexican Paoletti family begins to lure deaf and mute Mexicans to the U.S. with promises of better jobs and social treatment

¾ Once arrived, victims forced to hawk trinkets in New York and other cities

1997 N.Y.C. Paoletti Case

1997 Paoletti Case ¾ Victims all had a daily sales quota

¾ If they failed to meet the quota they were beaten or shocked with stun guns by ringleader Adriana Lemus

¾ Were held in overcrowded apartments in Queens and the Bronx

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1997 N.Y.C. Paoletti Case Victims rescued after encounter with U.S. Good Samaritan

1997 N.Y.C. Paoletti Case ¾ Specialized victim care required--

N.Y.C. rents hotel to house victims

¾ Paoletti family believed to have trafficked as many as 1,000 hearing impaired Mexicans and earned $8 million in profits

¾ Adriana Lemus Paoletti given 14 year sentence

¾ Often involves “Mom and Pop” family retail or ethnic businesses

¾ Victims typically exploited by a trafficker from their own home country

7. Forced Labor in the Service Industry

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2010 Afolabi Case (New Jersey)

Akouavi Afolabi recruits girls from Togo & Ghana and exploits them in N.J. hair braiding salons

2010 Afolabi Case¾ Victims as young as 10 live and work

as slaves in Newark and East Orange

¾ Victims not allowed to attend school or make friends

¾ Afolabi threatens the girls with voodoo curses as part of the coercion

2013 “7-Eleven Plantation” Case

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¾ In June 2013 federal law enforcement agents execute search warrants nationwide on 30+ 7-Eleven Stores

¾ Ten owners & managers of stores on Long Island charged with decade-long trafficking scheme


¾ Suspects alleged to have exploited numerous males from Pakistan for labor trafficking in 7-Eleven stores

¾ Traffickers provided workers with identities stolen from U.S. citizens in seven states


¾ Victims held in homes adjacent to or near 7-Eleven stores

¾ Prosecutors term the case a “nationwide 7-Eleven Plantation”

¾ Five Long Island homes seized

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8. Massage & Nail Establishments

¾ Can be fronts for sex trafficking

¾ But also for labor trafficking of women from China, Korea, S. Asia

¾ Victims can owe smuggling debts as high as $100,000 . . . Are among the least cooperative victim witnesses for U.S. law enforcement

Massage & Nail Establishments

9. Labor Trafficking in Strip Clubs

Foreign-born dancers often forced to pay off immigration & recruiting debts

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2005 Trakhtenberg Case

Russian entertainment promoter exploits immigrant women in N.J. strip clubs

2005 Trakhtenberg Case¾ Lev Trakhtenberg brings women from

Russia to Brooklyn with visa fraud scheme

¾ Women driven nightly to N.J. and forced to work in strip clubs and to prostitute to pay off travel costs

¾ Trakhtenberg threatens women with harm to families in Russia

Trafficking Victims Protection Act (TVPA)

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¾ Prevent HT overseas and within US

¾ Protect & help victims to rebuild their lives

¾ Prosecute traffickers with enhanced criminal penalties

Trafficking Victims Protection Act (TVPA)

TVPA enacted in 2000 in order to:

¾ Meant to counter emerging trends in human trafficking nationwide

¾ Meant to legislatively respond to 1988 Kozminski Supreme Court decision (holding that slavery cases required showing of force or threat of force).

TVPA Background

¾ Trafficking victims, even if in U.S. illegally, viewed as crime victims.

¾ Programs created to assist victims including immigration remedies.

¾ Benefits afforded refugees given to HT victims willing to assist in prosecution.

TVPA = Victim-Centered Law

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¾ In U.S. law, human trafficking is now defined as criminal acts of involuntarylabor or commercial sexual exploitation that are induced through force, fraud, or coercion

¾ Similar to the definition under international law (U.N. Protocol)

Human Trafficking Defined

¾ Physical force is no longer required

¾ Showing of fraud or psychological coercion now suffices

¾ Prosecutors now have new tools to prove up slavery in U.S. courts

Physical Force Not Required

Force: physical violence that may take the form of beatings, rape, shootings, starvation, or physical confinement

TVPA – Force

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Fraud: can include false or deceptive offers of employment, marriage, or a better life

TVPA – Fraud

¾ Threats of serious harm against the victim

¾ Threats against the victim’s family

¾ Threats of deportation

TVPA – Coercion (“Invisible Chains”)

¾ Obtain medical care, witness protection, housing assistance, other social services

¾ Obtain civil remedies for financial losses

¾ Sue traffickers for punitive damages

TVPA Victim ProtectionsEnable trafficking victims to:

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¾ “T” trafficking visa created by Congress to give victims temporary legal status

¾ Victims must be willing to participate in law enforcement investigation

New Immigration Remedy

¾ Creates new offense of Fraud in Foreign Labor Contracting

¾ Criminalizes recruitment of foreign laborers using materially false or fraudulent representations

¾ Meant to address prevalent abuses by U.S. workforce recruiters overseas

Trafficking Victim Protection Reauthorization Act of 2008

The anti-trafficking movement in the United States is made up of a unique partnership:

1) Law Enforcement & prosecutors

2) Non-governmental service providers

The Collaborative Approach

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DOJ-Funded HT Task Forces

New York Labor Trafficking Statutes

¾ New York revamped its labor trafficking statutes in 2007 to cover nuances of modern trafficking cases

¾ N.Y. now has among the most comprehensive trafficking laws in the country

New York Labor Trafficking Statutes

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¾ Creates crime of Labor Trafficking

¾ Class D Felony with maximum sentence of 7 years

¾ Court may also impose a fine of $5,000 or double the defendant’s gain

N.Y. Penal Law 135.35

To compel a person to engage in labor (or to recruit, entice, harbor, or transport a person for labor) by means of intentionally:

1) Providing the victim with a controlled substance in order to impair a person’s judgment


2) Requiring servicing of a real or purported debt . . . intended to defraud another person

3) Withholding or destroying actual or purported government identification documents


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4) Using force or engaging in any scheme, plan, or pattern meant to instill fear of:

(a) Physical injury or death

(b) Damage to Property

(c) Unlawful imprisonment


(d) Threat of criminal charges or deportation

(e) Exposing a secret or fact that could lead to contempt or ridicule

(f) Testifying or withholding testimony regarding a legal claim

(g) Abuse of a position of public duty or authority


When a claimant applies as a victim of labor trafficking or sex trafficking for victim services, there shall be a rebuttable presumption that such a victim has suffered physical injury for purposes of eligibility

N.Y. Codes, Rules, Regulations9 N.Y.C.R.R. 525.20

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¾ No private right of action

¾ Explicit victim restitution provision needed

¾ Sentencing disproportionate with sex trafficking offenses

Remaining Gaps in N.Y. Labor Trafficking Laws

http://www.htcourts.org

Resource for Judges and Courts

Thank You!

Professor Terry [email protected]

Questions?

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Documents

What New York Judges Need to Know