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Comments on Criminal Issues
November 7, 2007
HUMAN TRAFFICKING: AN EVIL ENTERPRISE
Houston Criminal Defense Attorney John T. Floyd
The Houston CHRONICLE, in a front-page October 28, 2007 article entitled “Houston a Major Hub for Human Trafficking,” reported that the U.S. State Department estimates that approximately 17,500 people are trafficked into the United States each year.
Former Attorney General Alberto Gonzales in February 2006 said that “human trafficking is the exploitation and enslavement of society’s most vulnerable members. It ranks among the most vile and degrading criminal practices.” See: “Report on Activities to Combat Human Trafficking,” Civil Rights Division, United States Department of Justice, p. 4 (2006)[hereinafter DOJ Report].
The DOJ reports that human trafficking is the third most profitable criminal enterprise after drugs and arms trafficking. Human trafficking produces $9.5 billion in profits worldwide for those who participate in this pernicious criminal activity. Id., Houston CHRONICLE, p. A6.
The State Department further estimates that between 800,000 to 900,000 men, women and children worldwide are trafficked each year across international borders for sex, labor, and other purposes. While human trafficking generally involves transporting people across borders, it can occur within a nation. Human trafficking in this country violates an individual’s human liberty guaranteed by the Thirteenth Amendment of the United States Constitution. Human trafficking, therefore, offends the basic civil rights this nation guarantees to all those living within its borders.
In response to the horrors involved in global human trafficking, the Congress of the United States enacted the Trafficking Victims Protection Act of 2000. See: 22 U.S.C. § 7102(8)(9)(as amended). This statute protects victims of any “severe form of trafficking in persons” with entitlements to certain public programs and benefits. The statute provides that a “severe form of trafficking” includes recruitment, harboring, transportation, provision, or detaining individuals for one of the three following purposes:
•Labor of services, through the use of force, fraud, or coercion; or
•A commercial sex act, through the use of force, fraud, or coercion; or
•If the person is under 18 years of age, any commercial sex act, regardless of whether any form of coercion is involved.
From 2001 through 2005, the Civil Rights Division and United States Attorneys’ Offices filed 91 trafficking cases, a 405% increase over the previous four years. In these cases the DOJ charged 248 trafficking defendants, a 210% increase over the previous five years. 140 of those defendants were convicted of trafficking-related crimes. See: DOJ Report, p. 9.
The DOJ directs its investigative and prosecutorial efforts at three primary forms of human trafficking: sex trafficking, labor trafficking, and child sex trafficking. Under the direction of the DOJ, the FBI in 2004 launched its “Involuntary Servitude and Slavery/Trafficking in Persons Initiative.” This initiative spearheaded the following actions:
•Developed and disseminated a general human trafficking investigative protocol intended to standardize human trafficking investigations by each FBI field office. This protocol serves as an informal investigative field-guide for the FBI field supervisors and investigators, covering activities from the initial investigation to post-trial and post-sentencing activities. For example, the protocol requires the prompt removal of victims out of harm’s way and the apprehension of all identified human trafficking subjects.
•Implemented commercial sex trafficking intelligence requirements and disseminated those requirements to every Bureau Field Intelligence Group. These requirements will allow the FBI to analyze trafficking related intelligence such as trends in working conditions, transportation routes, and countries of origin.
•Established a mechanism for agents to share information about the initiation of human trafficking, alien smuggling, and child prostitution cases across Bureau components.
•Expanded the Bureau’s outreach to national human trafficking victim advocacy organizations, such as the Freedom Network and the International Justice Mission, to establish contacts and leverages partnerships through field offices, especially those that are partners in the Department’s multi-disciplinary anti-trafficking task forces.
•Commenced, in October 2005, human trafficking threat assessments in each of the nation’s 56 Bureau field offices. The threat assessments are intended to help the Bureau determine the nature and scope of human trafficking and to develop a more informed response to the criminal activity. Once completed, field offices will use their assessments to develop more aggressive investigations and to guide their participation in the Department’s anti-human trafficking task force initiative, especially their work with local governmental and non-governmental organizations.
•Created, in November 2005, a case tracking database to track and maintain human trafficking intelligence data from the Bureau’s field office regarding the Department’s prosecutorial decisions, identifying emerging trends and reporting significant events in the field to the Bureau’s Civil Rights Unit or the Crimes Against Children Unit, as appropriate. The Bureau’s intelligence gathering is beginning to provide the Department with critical analysis.
See: DOJ Report, p. 28-29.
Below is a brief look at the three areas of human trafficking that concerns the DOJ the most:
1. SEX TRAFFICKING
“Sex trafficking” is prohibited by 18 U.S.C.A. § 1591 which makes it illegal to use force or coercion to obtain persons for commercial sexual activity, including special provisions regarding the involvement of minors. The DOJ considers other sex activities, such as servitude for non-commercial sexual activities (for example, sexual abuse of domestic help) or forced service in strip clubs, as part of the commercial “sex industry.” See: DOJ Report, p. 29.
There has been a dramatic increase in prosecutions under § 1591 over the past five years. Between 2001 and 2005 U.S. Attorneys filed 257 cases of sex trafficking and obtained the convictions of 109 sex trafficking defendants. See: DOJ Report, p. 30. One of those was Antonia Jimenez-Calderson who, along with four family members, was charged with conspiracy to recruit underage girls from the Mexican state of Tlaacla with promises of love and marriage in the United States. The young girls were forced into prostitution by threats of serious physical harm to their family members in Mexico. The defendant was sentenced to 210 months on August 7, 2003. See: United States v. Jimenez-Calderson, 135 Fed. Appx. 561 (3rd Cir. 2005).
Federal prosecutors in Texas have also been diligent in their prosecution of TVPA cases. In a 2001 case from the Western District of Texas, a husband and wife were convicted and sentenced to five years for bringing women from former Soviet republics under a student exchange program and then forcing them to work as “exotic dancers” in El Paso nightclubs. See: United States v. Gasanov, No. 01-1423 (W.D. Tex. 2001).
In a 2004 Southern District of Texas case eight men were convicted for being part of an alien smuggling organization that forced women to serve as “concubines” by cooking, cleaning, and submitting to sexual demands of the smugglers. The lead defendant in the case was sentenced to 23 years in prison following a guilty plea. See: United States v. Soto, No. 03-341 (S.D. Tex. 2004).
Vulnerable women are often imported into this country to work as “bar girls” – and while the DOJ says that this activity is not “technically sex trafficking under the TVPA” because it does not involve a sex act, it is part of the sordid sex industry because these women are forced to entertain male patrons by dancing and drinking with them at their pleasure. See: DOJ Report, p. 31.In a 2002 Northern District of Texas case six Hondurans in Fort Worth were convicted and sentenced to more than 5 years by forcing women to repay their alien smuggling debts through forced labor as “bar girls.” See: United States v. Molina, No. 114-A (N.D. Tex. 2002).
2. LABOR TRAFFICKING
18 U.S.C.A. § 1589 prohibits anyone from knowingly providing and obtaining the labor of a person through threats of physical harm or physical restraint. The DOJ says “this phenomenon commonly is found in farms, factories, and households.” See: DOJ Report, p. 31. It occurs when persons are subjected to coercion to stay in an employer’s service. The individual is considered a victim of forced labor even if he/she initially chose to work for the employer and was paid for his/her labor but is later forced to remain in the employer’s service. Between 2001 and 2005, U.S. Attorneys filed 23 labor trafficking cases that involved 59 defendants being charged with a § 1589 violation. See: DOJ Report, p. 32.
Two other cases brought between 1996 and 2000 involved another twenty-four defendants, including two who became the first Mexican citizens extradited to the United States for human trafficking offenses. See: United States v. Paoletti, No. 97-768 (E.D.N.Y. 1997)[18 defendants]; United States v. Flores, 199 Fed. Cir. 1328 (4th Cir. 1999)[6 defendants].
Labor trafficking does not always involved imported or smuggled immigrants. In a 2000 Southern District of Florida case three men recruited, and hired, homeless African-American men for their orange-picking operation. Once employed, the men were not allowed to leave. They were held captive through beatings, threats, and debts from the “company store” that included short term loans to buy food, cigarettes, and cocaine. The three defendants were convicted in 2001 and sentenced to 4 ½ years in prison. See: United States v. Michael, No. 00-14065 (S.D. Fla. 2000).
In a 2003 Western District of New York case four defendants were convicted and sentenced to nearly 4 years in prison for recruiting young undocumented Mexican aliens from Arizona and transporting them to New York where they were forced to work “stoop labor” in the fields with little or no pay and housed in filthy, overcrowded conditions under the threat of being turned over to the Border Patrol. In that case the court rejected a constitutional challenge that the TVPA was vague, inviting arbitrary and discriminatory enforcement. See: United States v. Garcia, No. 02-0000, 2003 WL 22938040 (W.D. N.Y. 2003).
Like “stoop labor” cases, “domestic” labor cases represent a significant part of the DOJ’s forced labor portfolio. These cases generally involve young women who are forced to work long hours at low pay as nannies and maids and who are routinely subjected to sexual abuse by their captors/employers. See: DOJ Report, p. 32. In a 2003 Maryland case a U.S. citizen of Cameroonian origin brought an 11-year-old girl from Cameroon into this country and forced her to perform household chores and care for two children. The 11-year-old was kept isolated, was not paid, was not allowed to attend school, and was constantly subjected to verbal and physical abuse, including being beaten with a cable, a high-heeled shoe, and a metal broom handle. The Cameroonian defendant was sentenced to 17 years in prison after being convicted in the case. See: United States v. Mubang, No. 03-0539 (D.Md. 2003).
3. CHILD SEX TRAFFICKING
18 U.S.C.A. § 1591(a)(1) prohibits enticing a minor to engage in a commercial sex act and 18 U.S.C.A. § 2422(b) prohibits enticing a minor to engage in prostitution. To confront what the DOJ calls the “evil of sex tourism” involving children, the Congress in 2003 passed the “Prosecutorial Remedies and Other Tools to End Exploitation of Children Today (PROTECT) Act. This legislation makes it a crime for anyone entering the United States, or for any U.S. citizen to travel to another country, for the purpose of sexually abusing children. The DOJ established a Child Exploitation and Obscenity Section to oversee the prosecution of cases involving the sex trafficking of minors. This section obtained at least 50 sex tourism indictments leading to 29 convictions between 2003 and 2005 under the PROTECT Act. See: DOJ Report, p. 34.
In a 2003 Southern District of California case an American man was prosecuted after he traveled to the Philippines on numerous occasions over a two-year period to have sex with children and to produce child pornography he intended to import into the United States. He was sentenced to 3 years in prison. See: United States v. Russell, No. 03-3283 (S.D. Cal. 2003).
With respect to cases within the borders of the United States, the TVPA effectively augments the historical Mann Act which prohibits the interstate transportation of individuals across state lines for prostitution or other sexual activity by extending federal jurisdiction to cases where pimps do not cross state lines with their minor victims. See: DOJ Report, p. 34. For example, in a 2001 Alaska case five defendants were convicted of being part of a human trafficking network that distributed cocaine to persons under the age of 21 and recruited minors to trade sex for money and crack cocaine. They were sentenced to prison terms ranging from 3 to 13 years following their convictions. See: United States v. Boehm, No. 04-003 (D. Alaska 2001).
In a 2004 Miami-Dade County, Florida case two defendants were convicted for their roles in a child prostitution ring. The court outlined the sordid facts of that case as follows:
“… From December 2004 until May 2005, a fourteen-year-old girl (‘Jane Doe’) worked for Evans as a prostitute in Miami-Dade County. Evans arranged ‘dates’ for Jane Doe at local hotels, and Jane Doe gave the money she earned on these dates to Evans. To inform Jane Doe of dates that he had arranged, Evans called Jane Doe on a cellular telephone that she had acquired from him. Evans also gave Jane Doe's cellular telephone number to customers and told Jane Doe to arrange dates when customers called. During the dates, Evans called Jane Doe on the cellular telephone to ‘check up on her.’ Evans supplied Jane Doe with condoms for use on the dates. The condoms were usually Lifestyle brand, which are manufactured overseas, imported into Georgia, and then distributed throughout the United States. In February 2005, Jane Doe was hospitalized for eleven days, during which time she was diagnosed with AIDS. A few days after Jane Doe's release from the hospital, Evans called her on a land-line telephone and induced her to resume her work as a prostitute for him. Jane Doe worked for Evans until May 2005, when she was again hospitalized for AIDS treatment.” See: United States v. Evans, 476 F.3d 1176, 1177-78 (11th Cir. 2007).
In yet another case out of the Eleventh Circuit, the appeals court dealt with a case that demonstrates how easy it is for a teenaged female to become a victim of child sex trafficking. The case involves the convictions and sentences of Mariece Sims for kidnapping in violation of 18 U.S.C.A. § 1201, sex trafficking of a minor by coercion and transporting of a minor across state lines for prostitution purposes in violation of 18 U.S.C.A. § 1591 and 2423(a), and transporting and coercing a person for purposes of prostitution in violation of 18 U.S.C.A. § 2421 and 2422(a). See: United States v. Sims, 161 Fed.App 849 (11th Cir. 2006). The appeals court outlined the facts of that case as follows:
“At trial, the evidence was as follows: Sims and his co-defendant, Dwayne Thigpen, encountered the victim, Erica Owens, while selling clothes in El Dorado, Arkansas. Sims knew Owens, and Owens entered their car willingly. The three of them drove around and smoked marijuana; Owens eventually fell asleep in the back seat. Owens testified that she awoke to discover they were no longer in El Dorado, although she believed Sims would take her home.
”The three were in a car accident in Texarkana. When the police reported to the accident, Owens did not tell them she had been kidnapped; nor did she try to escape. Owens testified that when the accident occurred, she did not seek the help of police because she still believed that Sims would return her to El Dorado. Owens further testified that Sims and Thigpen raped her in their hotel room in Texarkana. The three next traveled to Mississippi, where, according to Thigpen, Sims told Owens to see if she could make some money at the hotel; Owens returned with $20, which she gave to Sims.
“Sims later drove to a truck stop where he instructed Owens to prostitute herself. Owens returned several times without money, at one point claiming that a trucker tried to choke her. They next drove to Atlanta, and Sims dropped Owens off at a flea market on Metropolitan Parkway, an area popular with prostitutes. Sims bought Owens thongs, a miniskirt and some small shirts and again dropped her off on Metropolitan Parkway. Thigpen testified that he and Sims watched Owens as she waited for customers. Eventually, Owens returned with money for Sims. At one point, Owens disappeared. Owens testified that she had tried to escape three times. She stated that she had gone to a police station, where she was told to wait. She became tired and went outside, where Sims found her. Sims slapped her, told her not to disappear again, and continued to send her out on the street.
”Thigpen testified that he told Sims that he did not think Owens wanted to prostitute herself. Sims said Owens was ‘his girl’ and that he would ‘handle’ her.
”Eventually, Owens was picked up by Atlanta Police Officer Freddie Jenkins, Jr. Jenkins testified that he picked up Owens because she looked so young and further that he saw a dark SUV circling the block where Owens had been standing. Owens initially told him Jenkins she was 14 years old, although she revised that to 16 years old when they arrived at the police station. Jenkins took Owens to the hotel where she had been staying with Sims and Thigpen, and she identified both Sims and his SUV.
”C.R. Whitmire, an investigator with the child exploitation unit of Atlanta's police department, testified that Owens was smelly, shaking and wore little clothing when she was picked up by police. Whitmire had a rape kit administered to Owens. Georgia Bureau of Investigation expert Lisa Hobgood testified that the semen from Owens's rape kit did not match either Sims or Thigpen.
”After Owens returned home, Olivia Glosson, Sims's girlfriend, who is related to Owens by marriage, urged Owens to drop the charges against Sims. Owens agreed and provided two affidavits to the El Dorado prosecutor recanting the statement she had made to the Atlanta police. At trial, Owens admitted that the affidavits were false.
”The district court admitted the testimony of Sherlon Derks, the alleged victim of a prior sexual assault by Sims, but instructed that the witness could provide only a cursory review of the prior crime. Derks testified that one night while she was dating Sims, he had ‘snapped’ and beat and raped her. Although Sims was arrested, she requested that the charges be dropped after Sims and his family threatened her.” Id., at 850-51.
The following is a list of cities the DOJ has identified as “the most intense [top twenty] trafficking jurisdictions in the country:”
See: DOJ Report, p. 40.
Relying upon input from FBI special agent Maritza Conde-Vazquez, the Houston CHRONICLE reported that Houston is a popular human trafficking market because “the city is so diverse, with large Hispanic, Asian and Middle Eastern populations, which allow traffickers and their victims to blend into local communities. The city’s major port and proximity to the border also influence its position as a major distribution point for traffickers.” Id., at A6.