Obama Crackdown on Illegal Alien Hiring Has Revealed a Fraud Scheme Commonly Used to Conceal the Illegal Activity. Is Now as Good a Time as Ever to Invite Our Suave Friend RICO Over?

By: Andrew L. Dressler 

Although 2013 was a busy and by all means successful year for the federal government in its crackdown on employers who knowingly hire illegal aliens,[1] the government has wasted no time continuing its efforts in 2014.[2]  After seeing convictions in Maine,[3] Pennsylvania,[4] and Arizona,[5] as well as indictments in New York,[6] Kansas,[7] and New Mexico[8] in 2013, the government started its 2014 efforts with a conviction in Ohio.[9]  This conviction came following an investigation that revealed a large scale human trafficking and harboring operation conducted by the owner of the Dayton based Williams Brothers Roofing and Siding Company.[10]  In the indictment filed with the United States District Court for the Southern District of Ohio, federal prosecutors alleged that between the years of 2004 and 2013, the owner of the company personally arranged and supported the trafficking and hiring of illegal aliens in a scheme that netted $11.75 million.[11]  Prosecutors also alleged that the owner also filed various fraudulent 1099 forms that gave each illegal a false identity and also filed false insurance documents to defraud insurance companies and the government.[12]  Faced with strong evidence against him, the owner pled guilty to conspiracy to transport illegal aliens and also to conspiracy to commit wire fraud.[13]  He is expected to be sentenced in April to anything between 24 to 57 months imprisonment as part of a plea agreement, pending acceptance by the District Court.[14]

The fact pattern exhibited is nothing new.  In fact, the fact pattern here is very similar to the fact pattern in other ongoing crackdown cases, especially the 2013 cases in New York and Maine,[15] in which the defendants not only hired and harbored illegal aliens, but also falsified documents and committed fraudulent acts to cover their illegal activities.[16]  Given the frequency of this fact pattern, the government must look to find a deterrent to prevent continuing reoccurrence of these fact patterns.  This deterrent can be found in the Racketeering Influenced Corrupt Organizations (RICO) Act.[17] Because RICO’s purpose is to combat crime and corruption in American business,[18] a fact pattern such as this one is tailor-made for a RICO prosecution.  It is very probable that a prosecutor could build a RICO case on these facts because firstly, both the human trafficking, and wire fraud charges constitute racketeering activity[19] and together would make a pattern of racketeering activity.[20]  Additionally, because a case like this often involves a legitimate business, there would be no problem proving the existence of an enterprise.[21]  With these elements satisfied, a prosecutor could very likely argue that the fact pattern fits the act proscribed in Section 1962(c) of the RICO Act[22] because it involves a defendant conducting business through fraudulent and illegal practices and using those practices to further his business.  Additionally, these facts would also fit the kind of act prohibited by Section 1962(a) if the prosecutor can prove that the defendant invested proceeds he derived from the pattern of racketeering activity in some way.[23] Further, if successful in getting a conviction under these theories, the prosecutor could then use the conviction to open the door to harsher criminal penalties which include lengthy prison time, fines, and civil forfeiture.[24]  Given these possibilities, the federal government should strongly consider using RICO as an effective weapon not only to prosecute and convict those who commit these illegal hiring schemes, but also to send a strong message of deterrence to other employers and therefore strengthen the federal government’s enforcement of immigration law.

[1] See Cracking Down on Employers Hiring Undocumented Workers, Whitehouse.Gov, http://www.whitehouse.gov/issues/immigration/strengthening-enforcement (last visited Feb. 17, 2014).

[2]  See Employer Sanctions, Federation For American Immigration Reform, http://www.fairus.org/issue/employer-sanctions (last visited Feb. 17, 2014).

[3] See Press Release, Restaurant Owners Convicted Of Conspiracy To Harbor And Harboring Undocumented Aliens And Document Fraud, U.S. Attorney’s Office, District of Maine (Mar. 18, 2013) available at http://www.justice.gov/usao/me/news/20130318_fuentes_guillermo_convicted_fuentes_hector_convicted.html

[4] See Press Release, Pennsylvania man convicted of conspiracy to commit money laundering; harboring, transporting and employing illegal aliens, U.S. Customs & Immigration Enforcement (May 2, 2013) available at http://www.ice.gov/news/releases/1305/130502scranton.htm.

[5] See Associated Press, Ex-manager of Phoenix car wash chain pleads guilty, The Washington Times, January 13, 2014, available at http://www.washingtontimes.com/news/2014/jan/13/ex-manager-of-phoenix-car-wash-chain-pleads-guilty/  (this conviction came as the result of a successful ICE investigation in November of 2013 that resulted in the discovery of a car wash workforce made up largely of illegal aliens).

[6] See Press Release, Nine Individuals Indicted and Fourteen 7-Eleven Stores Secured as Federal Authorities Shut Down Multi-State Scheme to Conceal Systematic Employment of Illegal Immigrants, Victimize Immigrant Employees, and Steal Identities, U.S. Attorney’s Office E.D.N.Y. (June 17, 2013) available at http://oig.ssa.gov/sites/default/files/audit/full/pdf/press.release.Farrukh.Baig_.indict_0.pdf.  

[7] See, e.g., See Press Release, Kansas City construction company owners indicted for money laundering, harboring illegal aliens, U.S. Customs & Immigration Enforcement (Apr. 1 2013) available at http://www.ice.gov/news/releases/1304/130401kansascity.htm.; Press Release, Eastern Kansas restaurant manager indicted for harboring illegal aliens (Sept. 26, 2013) available at http://www.ice.gov/news/releases/1309/130926kansascity.htm.

[8] See Press Release, Roofing Company Owner Pleads Guilty to Conspiring to Smuggle Illegal Aliens and Insurance Fraud, U.S. Attorney’s Office S.D. Ohio (Jan. 7, 2014) available at http://www.justice.gov/usao/ohs/news/01-07-14_DAY.html

[9] See id.

[10] See id.

[11] See id.

[12] See id.

[13] See id. 

[14] See id. 

[15] See Press Release, supra note 6.  See also Press Release, supra note 3.

[16] Id. 

[17] 18 U.S.C. § 1961-1968 (2006).

[18] See Organized Crime Control Act of 1970 (OCCA), Pub. L. No. 91-452, § 1, 84 Stat. 922, 922 (1970) (Congressional Statement of Findings and Purpose) (codified at 18 U.S.C. §§ 1961-1968).

[19] See, e.g., 18 U.S.C. § 1961(1)(B) (2006); 18 U.S.C. § 1961(1)(F) (2006).

[20] See 18 U.S.C. § 1961(5) (2006).

[21] See United States v. Kirk, 844 F.2d 660, 664 (9th Cir. 1988) (holding that “the existence of a corporation fulfills the requirements of an ascertainable structure apart from the predicate racketeering activity.”)

[22] See 18 U.S.C. § 1962(c) (2006) (prohibits conducting or participating in the conduct or affairs of an enterprise through a pattern of racketeering activity).

[23] See 18 U.S.C. § 1962(a) (2006) (prohibits investment of proceeds derived from a pattern of racketeering activity).

[24] See 18 U.S.C. § 1963 (2006).


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: