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United States v. Burke

United States District Court, E.D. Michigan, Northern Division

August 23, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
D-1 DENIS BURKE, D-3 PARISVILLE DAIRY D-4 DUNGUNSTOWN DAIRY Defendants.

          ORDER DENYING MOTION FOR DISCOVERY CONCERNING SELECTIVE PROSECUTION, DENYING MOTION TO DISMISS INDICTMENT WITHOUT PREJUDICE AND AMENDING SCHEDULING ORDER

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE

         On September 14, 2016, an indictment was returned which charged Defendants Denis Burke, Madeline Burke, Parisville Dairy, and Dunganstown Dairy in several counts related to the employment of illegal aliens on the dairy farms. ECF No. 1. Madeline Burke has since pleaded guilty. ECF No. 45. On May 30, 2017, the two motions were filed. ECF Nos. 40, 41. In the first motion, the Defendant Denis Burke requests additional discovery to explore whether the Government is selectively prosecuting only dairy farmers of foreign origin for employing illegal aliens. In the second, the three remaining Defendants seek dismissal of the indictment because the Government has deported the “alien witnesses whose testimony would be exculpatory.” ECF No. 41 at 1. On August 15, 2017, the Court held a hearing on the two pending motions. For the reasons stated below, both motions will be denied.

         I.

         A.

         Defendant Denis Burke (and his wife Madeline Burke) own and operate the Parisville and Dunganstown Dairy farms. The Burkes are Irish citizens. In the indictment, the Government alleges that the Defendants conspired to cause “illegal aliens to be transported to their dairy farms in Huron and Tuscola counties, to obtain the services of the illegal alien workers.” Superseding Indict. at 2, ECF No. 23. The Government further alleges that the Defendants “failed to conduct the inquiries necessary to fully and accurately complete Employment Eligibility Forms (I-9 forms) for newly hired employees, as required by law.” Id. Defendants also allegedly “continued to employ and re-hire[] workers after having notice that the employees were working under invalid social security numbers” and further “agreed that other members of the conspiracy should help the illegal alien workers cash their paychecks and shop for food, cloths, and other items.” Id. at 3.

         B.

         On May 22, 2013, Immigration Customs Enforcement (ICE) agents executed search warrants on the Parisville Dairy and Dunganstown Dairy Farms. The agents seized employment records, cell phones, and a laptop. The agents also took fourteen employees, all undocumented immigrants, into custody. The employees were interviewed by ICE agents. In an investigation report prepared on May 22, 2013, ICE agents recorded statements made by the employees. In each interview, the employees were questioned regarding Defendant Denis Burke's knowledge of their undocumented status.

         A number of the employees indicated that Defendant Burke was not aware of their undocumented status. Javier Gallegos-Munoz stated:

I was hired by the boss and the manager; they did not know that I was not authorized to work. Denis is my supervisor. I filled out an I-9. I showed a permanent resident and socials security card - fake - got them in Indiana. My employer didn't ask me if I could legally work and I didn't tell him that I could not.

May 22, 2013 at 2, ICE Report, ECF No. 41, Ex. 1.

         Manuel Leuvano Martinez explained that “[o]wners did not ask for documentation or ask to fill out documents. . . . My employer didn't ask me if I could legally work and I didn't tell him that I could not.” Id. at 3. Jose Hernandez-Lara stated that “I did not complete an I-9 or show documents. My employer didn't ask me if I could legally work and I didn't tell him that I could not.” Id. Juan Alberto Hernandez-Reyes explained:

A Mexican guy, Jose Gaitan, hired me. . . . He told me he was illegal. . . . He didn't know I wasn't authorized to work in the U.S. . . . Everyone working is illegal. I filled out the upper part of the I-9 and gave it to [my supervisor]. [Redacted] got me a green card and social security card - I paid $200. I showed those documents. My employer didn't ask me if I could legally work and I didn't tell him that I could not.

Id. at 3-4.

         Rodolfo Christobal-Juarez asserted that “Denis hired me. He didn't know I was unauthorized to work because of my fake ID.” Id. at 4-5. Heriberto Estupian-Renteria stated that “Denis hired me and doesn't know I'm illegal - I told him that I was legal, he thinks that I have papers.” Id. at 5. According to Silverio Eliseo Lopez-Juarez:

I am not paid differently than employees who are authorized to work in the U.S. A friend in Grand Rapids, Michigan told me about the job. My boss, Denis, hired me. I did not complete an I-9 form and I was not asked to show documents. My employer never asked me if I could legally work in the U.S. and I never told him I could not.

Id. at 6.

         Jose Dejesus-Guerra stated that “he gave Burke fake ID and wasn't sure if Burke knew that he was illegal or not.” Id. Christobal Justiano Augustin-Miranda explained that “Denis Burke hired me. I don't know if he knew I was not authorized to work in the U.S. Denis Burke asked me to complete an I-9. I showed him documents in the name of Fedelino Lopez. . . . My employer never asked me if I could legally work in the U.S. and I never told him I could not.” Id. at 7. Mynor Augustin-Miranda asserted that “Denis Burke hired me. He didn't know I was not authorized to work in the U.S. No one asked me to complete an I-9 or for documents. My employer never asked me if I could legally work in the U.S. and I never told him I could not.” Id.

         However, some of the employees indicated that Burke was aware of the undocumented status of the workers and/or treated documented and undocumented employees differently. Sergio Hurtado-Delgado asserted that “[t]he ones who have papers are paid more. I was hired by Denis Burke. Denis knew I was not authorized to work.” Id. at 3. Vitor Salvador Lopez-Juarez stated that “[m]y employer knew I was not authorized to work. I did not fill out an I-9 but wrote on a piece of paper ‘illegal.' My employer did not ask me if I could legally work and I did not tell him that I could not. The majority of the workers are illegal but some have papers.” Id. at 4. Arelio Cardenas Lopez explained:

No money is held from my paycheck and I am not paid differently than employees who are authorized to work in the U.S. A friend in Grand Rapids, Michigan told me about the job. Denis hired me and knew that I was illegal but I did not tell him. My employer filled out the I-9 for me. I showed a green card and social security card that I bought in Grand Rapids. My employer never asked me if I could legally work in the U.S. and I never told him I could not.

Id. at 5-6.

         II.

         In the first motion, Defendant Burke requests an order “requiring production of materials relevant to his claim that the government selected him for prosecution because of his national origin.” Mot. Disc. at 1, ECF No. 40. In the second motion, all remaining Defendants seek dismissal of the indictment “due to the Government's deportation of the alien witnesses whose testimony would be exculpatory and who would have formed the core of the defense.” Mot. Dismiss Indict. at 1, ECF No. 41. The motions will be addressed in turn.

         A.

         A selective-prosecution claim challenges the Attorney General's “‘broad discretion' to enforce the Nation's criminal laws” and thus implicates “a ‘special province' of the Executive.” United States v. Armstrong, 517 U.S. 456, 464 (1996) (quoting Wayte v. United States, 470 U.S. 598, 607 (1985) and Heckler v. Chaney, 470 U.S. 821, 832 (1985)). Prosecutors have considerable “latitude” to make charging decisions and as such there is a “‘presumption of regularity'” when reviewing those decision. Id. (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)). Accordingly, the standard for proving a selective prosecution claim is “demanding” and, further, there is a “‘background presumption' that the showing necessary to obtain discovery should itself be a significant barrier to the litigation of insubstantial claims.” Id. at 463-64 (quoting United States v. Mezzanatto, 513 U.S. 196, 203(1995)) (internal citations omitted). Normally, “so long as the ...


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