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ICE Raid Results in $1 Million Fine for Nevada McDonald's Franchisee
Mack Associates Inc., which owns 11 Nevada-area McDonald's restaurants, pleaded guilty on July 16, 2008, to one count of conspiracy to encourage and induce an alien's unlawful residence in the United States and one count of aiding and abetting an alien to remain in the United States. Both are felony charges. The U.S. government and Mack Associates agreed that the corporation will pay a $1 million fine - $500,000 for each count, the maximum allowed - and be placed on probation during the period that the fine is outstanding. The court accepted this agreement. The corporation paid $300,000 immediately and will pay the balance within nine months. The probation will end when the fine is paid off.
Joe Gillespie, Director of Operations for Mack Associates Inc., also pleaded guilty to one felony count of aiding and abetting an alien to remain in the United States. In addition, Jimmy Moore, the franchisee's former vice-president, pleaded guilty to one felony count of inducing an illegal alien to remain in the United States. Both face up to five years in prison and a $250,000 fine when sentenced on October 15.
The McDonald's franchisee was suspected of knowingly hiring illegal aliens when the U.S. Immigration and Customs Enforcement (ICE) raided the 11 restaurants in September 2007. Fifty-eight employees suspected of being undocumented were arrested in that raid. |
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I'm Sorry, What Did you Say and Can You Speak Up?
Immigration and Customs Enforcement (ICE) is the largest investigative agency in the Department of Homeland Security (DHS). ICE has primary investigative responsibility for over 400 immigration and customs-related statutes. The enforcement of employer sanctions (Worksite Enforcement-WSE) is just one of the areas that ICE investigates but the media, politicians and special interest groups concentrate on these types of cases because of the current national interest in immigration-related issues.
The enforcement approach to worksite enforcement has evolved over the years since the passage of the Immigration Reform and Control Act (IRCA) in 1986. Initially, there was a lengthy period of employer education, followed by administrative actions including the apprehension of undocumented aliens and the assessment of civil fines against culpable employers. On the more rare occasion, criminal investigations were instituted against the most egregious employers. Following the events of September 11, 2001 and the subsequent creation of DHS and ICE, the approach to immigration enforcement took a turn toward a more aggressive use of criminal statutes and penalties. This included a increased use of sophisticated investigative techniques such as wired informants, development of grand jury testimony, electronic surveillance, and the governmental protection of alien witnesses through the use of immunity and cooperation agreements coupled with the granting of specialized visas to ensure cooperation in the investigation and subsequent prosecution.
A review of recent search warrant affidavits generated during the investigative stage in the Agriprocessors case in Postville, Iowa and the Action Rags, USA case in Houston, Texas supports this contention. ICE, supported by the Department of Justice (DOJ), is pursuing worksite enforcement cases as serious criminal violations of federal law. The allegations range from smuggling and harboring charges, to knowingly providing or accepting false or assumed identity documents, to IRS, Social Security and Labor law violations. The stated goal of these investigations is to enhance national security, protect infrastructure and ensure fair labor standards. The approach is not only to apprehend and punish the undocumented aliens and execute their removal from the United States, but also to work up the corporate chain and indict company officials who perpetrate the criminal activity.
In order to prove these criminal cases by the constitutional standard of "beyond a reasonable doubt," significant supporting evidence must be developed and presented to the court. The evidence trail is begun by the complaint itself. The case is driven by the significance of the allegations that are often brought by former employees or dissatisfied employees who observe what they believe to be malfeasance. If verified, the information will be further developed by various techniques, which include the recording of telephonic and in-person conversations. In the Agriprocessors and Action Rags cases, the affidavits indicate that this is what occurred. The taped conversations are logged into evidence following a chain of custody procedure and may be used during subsequent court proceedings along with all other evidence.
In high profile worksite enforcement cases, the arrest of hundreds of undocumented aliens is not the culmination of the criminal investigation but in reality may just be the beginning. While the aliens are processed for administrative removal or independent criminal prosecution, their attorneys will be familiar with options favorable to them. These may include remaining in the United States to testify for the government in a case against the employer. Multiple this possibility by the hundreds and it becomes obvious that a perceived administrative case can quickly evolve into a criminal action given other evidence and testimony.
The employer that desires to remain in compliance then must be ever vigilant that proper procedures, training, supervisory review and internal audits are conducted on a recurring basis. Complaints must be documented and thoroughly investigated. Individuals assigned to human resources functions and supervisory roles must be professionally developed and cognizant of the critical functions they perform to protect the interests of the employer and employees.
Know the rules, follow the rules, and always remember that someone might be listening or asking you to speak up or repeat yourself for the specific purpose of providing evidence for a worksite enforcement action. |
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