United States District Court, E.D. Michigan, Northern Division
ORDER DENYING MOTION FOR DISCOVERY CONCERNING
SELECTIVE PROSECUTION, DENYING MOTION TO DISMISS INDICTMENT
WITHOUT PREJUDICE AND AMENDING SCHEDULING ORDER
L. LUDINGTON UNITED STATES DISTRICT JUDGE
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
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.
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.
number of the employees indicated that Defendant Burke was
not aware of their undocumented status. Javier Gallegos-Munoz
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.
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
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.
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.
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.
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
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.
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.
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 ...