Justice for Trafficking Victims: Criminal Restitution and Civil Litigation

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1 Justice for Trafficking Victims: Criminal Restitution and Civil Litigation Lawyers Club Human Trafficking Task Force October 13, 2015 THE HUMAN TRAFFICKING PRO BONO LEGAL CENTER Martina E. Vandenberg

2 Justice for Trafficking Victims: Criminal Restitution Civil Judgment

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4 Agriculture Begging/panhandling Construction Criminal activity Domestic work Factory work Nail salons Fishing industry Sheepherding Selling crews Egg harvesting Landscaping services Forced marriage Hotel or tourist industry Janitorial services Restaurants Sex industry Hair-braiding salons Teaching Bridal Shop Trafficking can occur in any labor sector or industry.

5 U.S. Government Prosecutions Total Federal Trafficking Cases Prosecuted 2012: 128 Cases 2013: 161 Cases 2014: 208 Cases Source: The Department of State Trafficking in Persons Reports June 2013, June 2014, July 2015 U.S. Chapter Reports

6 U.S. v. Shelby Lewis 1:09-cr EGS District Court for the District of Columbia S.H. 11 years old T.S. 13 years old M.S. 16 years old A.L. 14 years old

7 U.S. v. Lewis 1:09-cr EGS District Court for the District of Columbia Defendant pled guilty to four counts of sex trafficking of minors; Judge appointed guardian ad litem; GAL (a pro bono attorney) retained psychiatric expert to calculate restitution for future expenses; Prosecution calculated gross earnings to the traffickers; Court rejected the illegal work argument; Shelby Lewis sentenced to 240 months; Restitution ordered under 18 USC 1593; Total restitution award: $3,892,055 for four victims.

8 When the U.S. Government brings a trafficking prosecution under the TVPRA, Criminal Restitution is mandatory under 18 U.S.C. 1593

9 MANDATORY RESTITUTION Definition of full amount of the victim s losses under TVPRA, 18 U.S.C 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.

10 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.

11 U.S. v. Sabhnani, et al. Long Island, New York Case No (EDNY) 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.

12 Mrs. Varsha Sabhnani sentenced to 11 years imprisonment. Mr. Mahender Sabhnani sentenced to 3 1/3 years imprisonment. Defendants were initially ordered to pay $936, in criminal restitution. Appellate decision, 599 F.3d 215 (2d Cir. 2010)

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15 Three children trafficked for commercial sex from Milwaukee to Chicago.

16 Defendant pled guilty to trafficking, sentenced to 265 months, no restitution ordered.

17 What about the argument that this is illegal work? That argument is preposterous. United States v. Cortes- Castro (11 th Circuit) TVPA mandates restitution that includes a defendant s illgotten gains. United States v. Fu Sheng Kuo (9 th Circuit) Express terms of [the TVPA] require that the [sex trafficking victims] in this case receive restitution, notwithstanding that their earnings came from illegal conduct. United States v. Mammedov (2d Circuit)

18 U.S. v. Akouavi Kpade Afolabi Case No. 2:07-cr (D. N.J.) More than 20 girls from West Africa forced to work in hair braiding salons in Newark and East Orange, New Jersey; Girls ranged in age from 10 to 19; The girls were forced to turn over all of their earnings and tips to the traffickers; Afolabi sentenced to 27 years in prison and ordered to pay victims over $3.9 million in missed wages.

19 Mandatory Restitution Orders? An analysis of all federal trafficking cases in which the defendant pled or was found guilty between 2009 and 2012, the court ordered restitution just 36% of the time. The Human Trafficking Pro Bono Legal Center 2015

20 California Federal Criminal Statistics Indictments Filed Between January 1, 2009 and September 30, Trafficking Cases Indicted Under Chapter 77 of Title 18 (TVPA) 73 Sex Trafficking Indictments 3 Labor Trafficking Indictments (domestic servitude) Restitution Ordered in Just 8 Cases 13 Cases Ongoing

21 What if there is no federal criminal case?

22 Trafficking victims have a private right of action to sue their traffickers for damages in U.S. federal courts.

23 Private Right of Action:18 U.S.C (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 by ****New amendments extend SOL for child victims to 10 years after 18 th birthday.

24 U.S. v. Maksimenko Case No. 05-cr (D. Mich.) Sentenced to 14 years in prison; Ordered to pay $1,570,450 in restitution

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26 Federal jury in SPLC case awards $14 million to Indian guest workers victimized in labor trafficking scheme by Signal International and its agents.

27 151 federal civil cases have been filed under 18 U.S.C since the 2003 TVPRA amendments.

28 T-Visa Issuance: FY 2009: 313 T-visas FY 2010: 447 T-visas FY 2011: 557 T-visas FY 2012: 674 T-visas FY 2013: 848 T-visas FY 2014: 613 T-visas Continued Presence (CP) FY 2009: 299 CP approvals FY 2010: 186 CP approvals FY 2011: 283 CP approvals FY 2012: 199 CP approvals FY 2013: 171 CP approvals FY 2014: 130 CP approvals

29 Trafficking Civil Cases Sex Trafficking (11 cases) 7% Forced Labor (140 cases) 93% Source: The Human Trafficking Pro Bono Legal Center

30 Outcomes in Federal Civil Cases Under 18 U.S.C % 3% 15% Voluntarily Dismissed (22) Settled (51) Judgment for Plaintiff (8) Default Judgment (16) 21% Ongoing (31) 11% 34% Dismissed or Judgment for Defendant (16) Consolidated, Severed, or Closed (5) 5% Source: The Human Trafficking Pro Bono Legal Center

31 13 Federal Civil Trafficking Cases Filed in California

32 Special Ethical Considerations and Rules of Professional Conduct Competence (Rule 1.1 in the ABA Model Rules) Do consult attorneys who have more experience handling trafficking cases. ALWAYS CONSULT PUBLIC BENEFITS ATTORNEYS. Confidentiality (Rule 1.6) - Trafficking victims have been traumatized and are sharing sensitive information. In order to gain their trust, it is important to assure them that you will never share what they say without their express consent, even after the case is over. This is also true for prospective clients (Rule 1.18). Communication (Rule 1.4) One of the most important advantages of civil trafficking cases is that they give agency to the survivor. It follows that you should be diligent in keeping your client informed about the status of his case.

33 Special Ethical Considerations and Rules of Professional Conduct Advisory role (Rule 2.1) - The advice you provide to your client is not just about the law, but must factor in other considerations such as moral, economic, social, and political factors, that may be relevant to the client s situation. Candor Toward The Tribunal (Rule 3.3) Beware spoliation. Trafficking survivors have little experience with the Federal Rules of Civil Procedure. Explain the duty to preserve documents. Examine and preserve your client s Facebook and other social media materials.

34 Martina E. Vandenberg President The Human Trafficking Pro Bono Legal Center Tel: